RP Blog
From the Desk of Andrew Yolles
Hoping for Normality Post-COVID It has been a strange and challenging year since the start of the COVID-19 pandemic. We have seen many rapid changes to the justice system and the practice of law in that past year, to cope with the new, socially-distanced reality in which we all findRead More
In-Person Assessments in the Time of COVID-19
By Meryl Rodrigues At this point, over a year later, it is trite to say that the COVID-19 pandemic has given rise to various changes (and challenges) in the civil legal landscape. From procedural overhauls to substantive legal issues, COVID-19 appears to be an ever-present factor arising in one aspectRead More
Is There a Duty to Warn of Obvious Dangers?
By Jocelyn-Rose Brogan There are dangers in everyday life, but people do not need to be warned of all dangers. For instance, people do not need to be warned that jaywalking in rush hour traffic is dangerous. In occupiers’ liability claims, defendants should consider whether an alleged danger is anRead More
Rogers Partners Spring 2021 Newsletter
Spring is here, which means it’s time for the Spring 2021 edition of our newsletter, In|Sight! We hope you find the following topics to be of interest: Is There a Duty to Warn of Obvious Dangers?How Technology Can Outpace Law ReformAmendments to Occupiers’ Liability Act: Reasonable Excuse and PrejudiceThe COVIDRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed a recent decision by the Court of Appeal in Malik v. Nikbakht, 2021 ONCA 176. In this decision, the Court of Appeal considered an appeal brought by the plaintiff, Sarfraz Malik. Mr. Malik appealed a lower court decision where the court held thatRead More
Failure to Promptly Disclose Partial Settlement Agreement Results in Dismissal of Action
The court’s decision in Poirier v. Logan, 2021 ONSC 1633, demonstrates the importance of promptly disclosing partial settlement agreements that change the adversarial orientation of the proceeding. The plaintiff sued several parties. In October 2019, the plaintiff and one of the defendants entered into a settlement agreement wherein the action wouldRead More
Portions of Claim Struck Due to Abuse of Process
By Matthew Umbrio The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party or would bring the administration of justice into disrepute. This doctrine was recently considered in UrbanRead More
Updated Notice to the Profession for Toronto
The Ontario Superior Court of Justice’s Notice to the Profession for the Toronto Region was amended effective March 18, 2021. Regarding civil matters, direction is provided on filing documents for motions and applications. All materials for use on a motion or application must be first be filed through the CivilRead More
Update on Status of Civil Jury Trials
The Ontario Superior Court of Justice has issued an updated Notice to the Profession and Public Regarding Court Proceedings. Previously, jury selection and jury trials were suspended until May 3, 2021 at the earliest. The Court now anticipates resuming new jury selection and jury trials on June 7, 2021 atRead More
Friday With Rogers Partners
At our weekly meeting this morning, Angie Bellehumeur discussed the case of Loukas v. Imperial Oil Limited, 2021 ONSC 1944. The defendant brought a motion to dismiss the action for failing to comply with a court-ordered litigation timetable that was peremptory to the plaintiffs and for delay. Master Jolley did notRead More
Erin Crochetière Wins Duty to Defend Application
Erin Crochetière was successful yesterday in a duty to defend application. The underlying action arises out of an alleged slip and fall accident on spilled liquid at a store. The store contracted with a cleaning company that was insured by AIG. The store was an additional insured on the AIG policy. ShortlyRead More
Jury Notice Struck After Transfer to Simplified Procedure
By Jocelyn-Rose Brogan The simplified procedure under Rule 76 of the Rules of Civil Procedure offers a method of proceeding with actions seeking monetary damages (or real or personal property with a fair market value) of $200,000 or less, that aims to simplify, speed up, and reduce the cost ofRead More
Jury Notice Not Struck in Central West Action
In S.M. v. Longo, 2021 ONSC 1348, the plaintiff moved to strike the jury notice on the basis of delay caused by the pandemic. The motion was dismissed. The action was commenced in 2014 in Milton. The trial was scheduled to commence on March 22, 2021 in Brampton. No civilRead More
Notice to the Profession on Divisional Court Proceedings
The Divisional Court recently released a detailed Notice to the Profession that applies to all Divisional Court matters anywhere in Ontario. All counsel with Divisional Court matters will need to be familiar with this notice. The information contained in the notice includes: How to commence a new Divisional Court proceedingHowRead More
Test for Scheduling Motions for Partial Summary Judgment
In Malik v. Attia, 2020 ONCA 787, the Court of Appeal provided directions on the factors to consider when determining whether a motion for partial summary judgment should proceed. The Court of Appeal indicated that the risk of inconsistent findings is only one factor. The court must determine whether partialRead More
Fridays with Rogers Partners
At our weekly firm meeting, Athina Ionita discussed the case of Tongtae v. Her Majesty the Queen (Ontario), 2021 ONSC 1613. The case concerned a Rule 21 motion brought by Her Majesty the Queen (“HMQ”) on the grounds that there was no private law duty of care owed to theRead More
Test for Setting Aside Noting in Default
In Westcott v. Khan, 2021 ONSC 1396, Justice Emery went over several cases which outline the issues to consider in setting aside a noting in default pursuant to rule 19.03(1) of the Rules of Civil Procedure. The principles are: The threshold for setting aside a noting in default is low. TheRead More
Late Service of Expert Report Causes Adjournment of Trial
By Brian Sunohara A recent court decision shows the importance of complying with timelines to serve expert reports. Justice Daley said that counsel are “sorely mistaken” if they think a breach of the Rules of Civil Procedure has no consequences. The decision involves a motion to adjourn a trial. Andrew YollesRead More
Objections and Video Recording Cross-Examinations for Motions
In Schukla v. Fenton, 2021 ONSC 1340, the plaintiff’s lawyer adjourned the cross-examination of a defendant in respect of a motion due to the alleged improper conduct of the defendants’ lawyer. During 43 minutes of cross-examination, there were 37 objections and refusals, most of which were on the grounds ofRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed the case of Baker v. Blue Cross, 2021 ONSC 1485. This decision is the most recent in a string of Toronto decisions wherein the Court has considered a motion to strike a jury notice due to delays caused by the pandemic. This decisionRead More
CaseLines Now in East and Northwest Regions
The Ontario Superior Court of Justice has issued a Supplementary Notice to the Profession and Litigants regarding the CaseLines document storage platform. CaseLines has now been implemented in Toronto. On March 1, 2021, it was expanded to the East and Northwest regions. In these regions, CaseLines will first be used forRead More
Door Remains Closed on Social Host Liability
By Erin Crochetière In Jonas v. Elliott, 2021 ONCA 124, the Court of Appeal added to the history of cases in which the courts have declined to recognize a duty of care between social hosts and those injured by the actions of their guests.[1] The plaintiff, Mr. Jonas, was assaultedRead More
Divisional Court Allows Appeal on Court-Appointed Expert
In Sosnov v. J&H Freiberg, 2021 ONSC 1081, the Divisional Court overturned an order regarding a court-appointed expert. The action involves an occupiers’ liability claim. The plaintiff alleges that she hit her head on the underside of an interior staircase in a building. At a pre-trial conference, the pre-trial judge feltRead More
Disclosure of Communications at Pre-Trial Conferences
Discussions at a pre-trial conference are generally without prejudice and cannot be subsequently disclosed in the proceeding. Rule 50.09 of the Rules of Civil Procedure states: No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in theRead More
Fridays With Rogers Partners
At our weekly firm meeting, Angeline Bellehumeur discussed the case of Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344. The court considered various relief sought by the defendant, Aviva General Insurance Company (“Aviva”). The following are highlights of the Court’s decision with respect to Aviva’s motion for anRead More
Court Comments on Supervision of Junior Lawyers and Students During Pandemic
Working from home during the pandemic has been necessary, but a recent decision of Justice Myers shows that it is not without some problems. The decision, Polgampalage v. Devany, 2021 ONSC 1157, involved an unopposed motion to transfer an action from Windsor to Toronto. Justice Myers dismissed the motion becauseRead More
Misunderstanding Over Scope of Claims Leads to Dispute at Trial
By Emily Vereshchak The mid-trial ruling of Justice Tranquilli in Solanki v. Reilly, 2021 ONSC 1326,[1] provides an analysis of the importance for counsel to ensure there is a “meeting of the minds” with regards to which claims are being pursued at trial. Overview The plaintiff sought to lead theRead More
Notice to the Profession on Civil Trials in Central East Region
The Central East Region of the Ontario Superior Court of Justice recently issued a new Notice to the Profession dealing with civil trials. The regular civil trial sittings will commence on May 17, 2021 for three weeks. Only non-jury matters will be heard. Trials will be conducted virtually. The following cases areRead More
Claim Struck Against Condo Board Members
In Matlock v. Ottawa-Carleton Standard Condominium Corporation No. 815 et al, 2021 ONSC 390, the plaintiff commenced an action against a condominium corporation for various alleged deficiencies. He also sued several members of the condominium’s Board of Directors. The board members brought a motion to strike the claim as against them. JusticeRead More
Fridays With Rogers Partners
At our weekly firm meeting, Athina Ionita discussed the case of Levant v. Demelle, 2021 ONSC 1074. The court granted an anti-SLAPP motion and dismissed the plaintiffs’ defamation action for lack of evidence of the impugned statements causing harm to the plaintiffs. Facts The plaintiffs, Rebel News Network and itsRead More
Matthew Umbrio in The Lawyer’s Daily
Matthew Umbrio was recently published in a two-part series in The Lawyer’s Daily. Matthew discusses two recent court decisions on motions to strike jury notices. The two parts can be found here: Part 1Part 2Read More
Scope of Documentary Production in Loss Transfer Disputes: Reasonableness, Probative Value and Costs of Production
By Colleen Mackeigan In the recent decision of Unifund Insurance Company v. Chartis Insurance Company of Canada (January 14, 2021), Arbitrator Bialkowski granted a wide breadth of documentary production requested in the context of a loss transfer dispute. His decision was predicated on the reasonableness of the requests and theRead More
Perfect Knowledge Not Required to Start Limitations Clock
The case of Taiga Building Products Ltd. v. Classic Fire Protection Inc., 2021 ONSC 676, addresses the type of knowledge required to start the limitations clock. On January 11, 2014, a sprinkler system inside the plaintiff’s business premises ruptured and caused a flood. Slightly more than two years later, on FebruaryRead More
Fridays With Rogers Partners
At our weekly firm meeting, Angeline Bellehumeur discussed the case of Kaushal v. Vasudeva et al., 2021 ONSC 440. The court considered a motion by the Applicant to strike the evidence of the Respondent on the basis of misconduct during his cross-examination via Zoom. Specifically, the Respondent was receiving promptsRead More
The New Tort of Harassment in Cyber-Stalking Case
By Andrew Yolles A judge of the Ontario Superior Court of Justice has recognized a new common law tort of harassment. As recently as 2019, the Ontario Court of Appeal declined to recognize the existence of a tort of harassment in Canadian law. In his recently released decision in CaplanRead More
New Practice Direction on Observing Appeals
In normal times, people can walk into a courtroom at the Court of Appeal to watch a hearing, save for limited circumstances. This is part of the “open court” principle. However, due to the pandemic, appeals are being heard remotely by video conference. The Court of Appeal has issued a practiceRead More
The Scope of Re-Examination on Discovery
By Gemma Healy-Murphy There are many frustrations in the litigation process, the most recent of which crossed my desk during the course of an examination for discovery of an opposing party where at the conclusion of my examination, the opposing lawyer chose to conduct a re-examination of their witness. TheRead More
Rogers Partners Volunteers at U of T Moot
Rogers Partners is proud to support the future of the legal profession by volunteering for the University of Toronto Faculty of Law Upper Year Moot. Brian Sunohara, Rebecca Moore, Andrew Yolles, and Meryl Rodrigues were all judges in this year’s moot and were very impressed by the excellent advocacy demonstratedRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Superior Court, Memelli v. Bhandal, 2021 ONSC 802. In this decision, the court considered a refusals motion brought by the defendant. Facts This case arose from a motor vehicle accident that occurred in 2017. There was evidence toRead More
Amendments to Occupiers’ Liability Act Now in Force
The amendments to the Occupiers’ Liability Act came into force on January 29, 2021. This means that plaintiffs now have to comply with a 60 day notice requirement for occupiers’ liability claims involving accidents caused by snow or ice. Written notice has to be provided to an occupier of theRead More
Working from Home and Blue Popsicles
By Alon Barda I am often asked how many children I have and I tend to respond jokingly (sort of) that I have 34 kids. In actual fact, that number is four with the ages being 2, 5, 7 and 9. While I used to joke I was not sure,Read More
Lessons on Trial Practice
Brian Sunohara spoke at The Advocates’ Society’s Tricks of the Trade Conference last week on “Girao v. Cunningham: Lessons on Trial Practice and Fairness for Self-Represented Litigants”. Brian wrote a paper in conjunction with his presentation. The paper covers the following topics: the use of joint document books;introducing evidence ofRead More
Rogers Partners Occupiers’ Liability Handbook
We’re pleased to present the Rogers Partners Occupiers’ Liability Handbook! This resource is a comprehensive guide containing strategies and key things to consider when handling occupiers’ liability claims, particularly from the defence perspective. It includes the following topics: Retainer: Initial Review and Ongoing CommunicationsResponding to the ClaimLiability and the TransferRead More
Fridays With Rogers Partners
This morning, at our weekly meeting, we had a group discussion on the Court of Appeal’s decision in Louis v. Poitras, 2021 ONCA 49, which was released earlier this week. The decision addresses striking jury notices due to delay caused by the pandemic. We previously wrote a summary of thisRead More
Court Provides Updated FAQs on CaseLines
The Ontario Superior Court of Justice has updated its Frequently Asked Questions about CaseLines. The updates include required document naming protocols and information on using tabs, bookmarks, and hyperlinks.Read More
The Basics of Court Approval of Settlements
By Jocelyn-Rose Brogan Any settlement of a claim by or against a person under a disability, which includes a minor, requires court approval pursuant to rule 7.08 of the Rules of Civil Procedure. If the settlement occurs before a lawsuit is commenced, approval of a judge has to be soughtRead More
Striking Jury Notices During COVID Depends on Local Conditions
By Brian Sunohara The Ontario Court of Appeal released a decision yesterday which shows that striking a jury notice in the context of the COVID-19 pandemic is location-specific and case-specific. In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal overturned a decision of the Divisional Court and reinstatedRead More
Damages in Fatality Claim
The case of Campeau v. Ontario, 2021 ONSC 129, involved a motion for default judgment against the Province of Ontario. A worker was severely injured during the course of his employment and died approximately 90 minutes after the accident in question. The claim was advanced against Ontario by his wife, two children,Read More
Fridays With Rogers Partners
Vicarious Liability of Rental Car Company At our weekly firm meeting, Angeline Bellehumeur, discussed the case of Mamo v. Morgan, 2020 ONSC 7829. Our firm was counsel for two of the defendants in the claim. The Court considered a motion by a rental car company, Practicar, to grant summary judgmentRead More
Amendments to Practice Direction – Gowning and Class Proceedings
The Ontario Superior Court of Justice’s Consolidated Provincial Practice Direction was amended effective January 18, 2021. The amendments address gowning in court, as well as costs outlines and a new Judges’ Book of Authorities in class proceedings. Gowning Requirements Paragraph 59 of the Consolidated Practice Direction indicates that, unless aRead More
Security for Trial Judgment Ordered for First Time in Ontario
By Rebecca Moore Can a court order an appellant to post security for a trial judgment prior to the appellant being permitted to continue with an appeal? In Wiseau Studio, LLC v. Harper,[1] the Court of Appeal ordered this remedy for the first time in Ontario. It is an “extraordinaryRead More
Gemma Healy-Murphy Interviewed by Canadian Underwriter
Gemma Healy-Murphy was recently quoted in Canadian Underwriter in an article called “Additional Insured – The Most Litigated Insurance Concept“. The message from the article is that, if a contract requires a party to be named as an additional insured, make sure that proper insurance coverage has been obtained. Further,Read More
Tricks of the Trade 2021
The popular Tricks of the Trade conference by The Advocates’ Society is coming up on January 29, 2021! It will be held online and will feature four judges and several personal injury and insurance law practitioners. Two lawyers from Rogers Partners LLP will be involved in the conference. Stephen RossRead More
Judges’ Reasons in Small Claims Court: How Detailed?
Since the Small Claims Court limit increased from $25,000 to $35,000 last year, we will likely see an increase in Small Claims Court lawsuits. This means that judges hearing Small Claims Court trials will be busier than ever. The question then arises: how detailed do trial judges’ reasons need toRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Superior Court of Justice, Deonanan v. Kwan, 2021 ONSC 266. In this decision, the court considered a motion brought before the close of pleadings by Economical Insurance Company – the insurer of one of the defendants. EconomicalRead More
Suspension of Jury Trials Extended
In an updated Notice to the Profession and Public issued yesterday, the Ontario Superior Court of Justice advised that the suspension of jury trials is extended until at least May 3, 2021. Jury trials that are in progress may continue subject to the discretion of the trial judge. Further, theRead More
Further Insight into Deductibility of Collateral Benefits
By Meryl Rodrigues In a recent case before the Ontario Superior Court of Justice, the Court was once again faced with a question surrounding the deductibility of collateral benefits in the motor vehicle accident context. In Finnemore v. Hyde et al[i], which arose from a 2016 motor vehicle accident, theRead More
Tort Action Arising from Injury at Heavy Metal Concert
By Carol-Anne Wyseman In Webster v. Inneractive Security Services Inc.,[1] the Ontario Superior Court of Justice recently granted summary judgment in a case where the plaintiff had sustained injuries at a heavy metal concert while dancing in a crowd. Background In November 2015, the plaintiff went to a heavy metalRead More
Canada Gets Serious About Digital Privacy
By Tom Macmillan In today’s digital society, we give our personal information to organizations all of the time, sometimes unknowingly. Even when we provide an organization with consent to collect our personal information, we often do not know how it is being used or whether it is being shared withRead More
Fridays With Rogers Partners
This morning, at our first weekly meeting of the year, Athina Ionita discussed the case of Trumble v. Soomal, 2020 ONSC 8097. The court considered whether the plaintiff or the defendant is obligated to pay for medical records in a personal injury action. The plaintiff took the position that sheRead More
Assault in Parking Garage: Inadequate Security Measures Did Not Cause Plaintiff’s Loss
By Jocelyn-Rose Brogan Courts have been hesitant to find a defendant liable for damages caused by the intentional tort of a third party. This notion was reinforced in Teglas v. City of Brantford et al, 2020 ONSC 7408 (“Teglas”), a case which involved an assault in a parking garage. JusticeRead More
Two Recent Decisions on Motions to Strike Jury Notices During COVID-19
By Matthew Umbrio In December 2020, Justice Nicholson, of the Ontario Superior Court of Justice (“ONSC”), released two decisions, Solanki v. Reilly (“Solanki”)[1] and Smith v. Muir (“Smith”)[2], addressing motions brought by the plaintiffs to strike jury notices in actions commenced in London. Justice Nicholson’s decisions provide common sense solutionsRead More
New Notice to the Profession for Central East Region
The Central East Region has issued a new Notice to the Profession for civil matters, effective January 4, 2021. The Central East Region is comprised of Barrie, Bracebridge, Cobourg, Lindsay, Newmarket, Durham (Oshawa), and Peterborough. This is a summary: Pre-Trial Conferences Civil pre-trials are being held in all centres in the Region.Read More
Reminder on Amendments to Rules
As a reminder, several amendments to the Rules of Civil Procedure came into force on January 1, 2021. Please see our previous blog post for a summary.Read More
Happy New Year!
From all of us at Rogers Partners, we wish you a Happy New Year! 2020 was a unique and trying year for everyone. Our thoughts are with those who have been impacted by the pandemic. Here’s to brighter days ahead in 2021!Read More
From the Desk of Alon Barda
Virtual Appearances – Let’s Not Turn Back I recently took a look back to an article I wrote in October 2019. We were obviously in a very different time. The title of that article was “Promoting Efficiency in Litigation.” The last subheading in that article was entitled “Time to EmbraceRead More
Notice on Court Proceedings During Lockdown
As a result of the province-wide lockdown, the Ontario Superior Court of Justice issued an updated Notice to the Profession and Public last week. The notice states that, effective December 29, 2020, all non-jury matters should proceed virtually unless in-person attendance is absolutely necessary. This will remain in effect untilRead More
Happy Holidays!
All of us at Rogers Partners wish you a safe and happy holiday season, and the very best in 2021!Read More
Plaintiff’s Lawyer Ordered to Stop Communicating With Defence Experts
In D’Eon v. Hosseini, 2020 ONSC 7500, the court ordered the plaintiff’s lawyer to not communicate with medical experts retained by the defendants’ lawyer. The defendants’ lawyer had scheduled the plaintiff to attend a neuropsychology assessment. Prior to attending the assessment, the plaintiff’s lawyer wrote a lengthy letter to the expertRead More
Court of Appeal Overturns Bifurcation Decision
In a previous blog post, we discussed a decision in which the Divisional Court held that the court has inherent jurisdiction to bifurcate a non-jury case, even when a party does not consent. Last week, the Court of Appeal overturned the decision. In Duggan v. Durham Region Non-Profit Housing Corporation, 2020Read More
Update on Jury Trials
The Ontario Superior Court of Justice issued a new Notice to the Profession and Public last week. The suspension of jury trials has been extended until at least January 29, 2021 in all areas of the province except Green Zones. In areas that are not Green Zones, jury trials willRead More
Fridays With Rogers Partners
At our weekly meeting, Angie Bellehumeur discussed a case address a dispute over the terms of a release. In Terranata Winston Churchill Inc. v Teti Transport Ltd., et al., 2020 ONSC 7577, the Court considered a motion for an order under Rule 49.09 enforcing a settlement reached as between theRead More
Amendments to Occupiers’ Liability Act: Reasonable Excuse and Prejudice
By Brian Sunohara A bill to amend the Occupiers’ Liability Act recently received Royal Assent (it is law), but it is not yet in force. A law does not operate until it comes into force. The Ontario government has yet to announce when the amendments will come into force. [Update:Read More
The Relevancy of Social Media – Who Should Decide?
By Gemma Healy-Murphy A recent decision of Master Jolley in Smith v. Jarnell, 2020 ONSC 6433, serves as an important reminder to counsel of the nature of questions required to establish the relevance of a plaintiff’s social media page in the context of a personal injury action. In Smith, theRead More
Reflections on COVID One Year Later – Apprehension and Appreciation