RP Blog
Court of Appeal Examines Pollution Exclusion
The Ontario Court of Appeal recently upheld a decision in which a pollution exclusion in a commercial general liability policy was found to not negate the insurer’s duty to defend. In Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908, John Hemlow, a mechanical contractor, opened a valve toRead More
Happy Holidays!
This year seems to have flown by! Rogers Partners wishes everyone a safe and happy holiday season!Read More
Disclosure of Pierringer Agreement Ordered by Court
The decision in Singh et al v. Mann et al, 2021 ONSC 8249, addresses whether a Pierringer Agreement needs to be disclosed. The non-settling defendants sought disclosure of a Pierringer Agreement redacted for quantum. The plaintiffs and the settling defendants argued that the non-settling defendants are only entitled to disclosureRead More
Updated Notice to Profession in Light of Omicron Variant
The Ontario Superior Court of Justice recently issued a Notice to the Profession and Public in response to the Omicron variant. Jury trials will not commence in any court location until February 7, 2022. The decision to continue trials that are in progress will be made by the presiding judge,Read More
Motion to Examine Non-Party Dismissed
In Birhane v. Wong et al, 2021 ONSC 8024, the court dismissed a motion for an oral discovery of a non-party. The plaintiff sued the defendant physicians for medical negligence. A key issue in the lawsuit is whether the plaintiff provided consent for the procedure in question. The plaintiff’s facility withRead More
2021 Holiday Party
We had a fun time at our firm’s virtual holiday party on Friday! There were some great ugly holiday sweaters. Our winners for the best sweaters were: Eugenia Arrieta, Jackie Galvin, Alejandra Luco, and Rescheen Scott. Congratulations to our bingo winners! Meryl Rodrigues won the first game, and Jennifer ThistelRead More
Income Replacement Benefits And CERB: To Deduct Or Not To Deduct? – Take 2
By Kayley Richardson The Applicant sought reconsideration of the Tribunal’s decision in Foster v. Aviva General Insurance[1], that was previously discussed on our blog. Our previous blog post can be found here. At first instance, Adjudicator Ferguson had concluded that the Canada Emergency Response Benefit (“CERB”) was akin to otherRead More
Launch of Tribunals Ontario Portal
Tribunals Ontario recently launched the Tribunals Ontario Portal, which is a new case management system designed to streamline the dispute resolution process. Applications can be filed online and documents can be exchanged with other parties through the portal. Scheduling will also be done online. Currently, only the Landlord and TenantRead More
Brain SPECT Ruled Inadmissible at Trial
In Meade v. Hussein, 2021 ONSC 7850, the plaintiff attempted to rely on a brain SPECT scan to demonstrate that she sustained a traumatic brain injury in a motor vehicle accident. The defendant’s expert testified that the use of a brain SPECT to diagnose a traumatic brain injury is notRead More
Rogers Partners Hiring Senior Law Clerk
Rogers Partners LLP currently has an opportunity for a law clerk with at least 5 years of insurance defence experience. This position will support a senior partner and his team with the management of tort litigation matters. Candidates must have certification from a recognized law clerk program. Since our foundingRead More
Virtual Trial at Rogers Partners
Two of our lawyers, Brian Sunohara and Erin Crochetière, participated in a virtual trial from our boardroom last week. The case involves alleged motor vehicle negligence and breach of Charter rights. The trial is anticipated to continue in the early new year. Although conducting a trial by videoconference is notRead More
Fridays with Rogers Partners
At our weekly firm meeting, Michael Kryworuk discussed the recent decision of Justice Dunphy in Basaraba v. Bridal Image Inc., 2021 ONSC 8038, which contains important practical advice for parties seeking summary resolution of their matters. History of the Litigation: This decision arose from a summary judgement motion that wasRead More
Tricks of the Trade Conference
The Advocates’ Society’s popular Tricks of the Trade conference is coming up on January 28, 2022. It will be held online. Two of our partners are involved in the conference. Stephen Ross is a co-chair and Tom Macmillan will be speaking on “The Fallout: Personal Injury Law and the Pandemic”.Read More
Amendments to Claim Denied Where Leave Sought Too Close to Trial
By Athina Ionita In Falsetto v. Falsetto et al., 2021 ONSC 7964, the plaintiff sought leave to amend the statement of claim. The defendants opposed the plaintiff’s proposed amendments, arguing that the plaintiff was seeking to add new causes of action outside the limitation period, and that the motion wouldRead More
Plaintiff’s Appeal Dismissed on Attending In-Person Defence Medical Exams During the Pandemic
In a previous blog post, Meryl Rodrigues discussed the case of Mierzejewski v. Brook, in which the plaintiff was ordered to attend in-person defence medical assessments despite concerns over COVID-19. The plaintiff provided evidence from a treating doctor who indicated that the plaintiff was at high risk to contract COVID-19Read More
Court of Appeal Encourages Junior Counsel to Participate in Oral Argument
Chief Justice Strathy and Associate Chief Justice Fairburn recently released a statement encouraging junior counsel to be involved in oral argument at the Court of Appeal: The Court of Appeal has a rich tradition of welcoming submissions from counsel at all stages of their career.Opportunities to address the Court areRead More
Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision of the Court of Appeal in Adam v. Ledesma-Cadhit, 2021 ONCA 828, which was an appeal of a decision regarding a swine flu vaccine. Facts Amina Adam, the five year old daughter of two of the appellants, died five daysRead More
Rogers Partners Fall 2021 Newsletter
Click here for the Fall 2021 edition of our newsletter, In|Sight! The newsletter contains the following topics: Winter is Coming: The Supreme Court of Canada on Government Immunity for Policy Decisions and its Application to Snow RemovalInsurer Examinations – When is Another Examination Appropriate?Wait, Is it An Accident? The CloseRead More
Damages in Chronic Pain Trial
In the recent trial decision of Legree v. Origlieri, 2021 ONSC 7650, the plaintiff was rear-ended in stop and go traffic. The police and ambulance were called to the scene. The plaintiff did not have a significant pre-accident medical history. As a result of the accident, Justice Fowler Byrne found thatRead More
Happy Chanukah!
Rogers Partners would like to send out greetings for a Happy Chanukah! This year, Chanukah began on the evening of November 28, 2021 and ends on the evening of December 6, 2021. For those who wish to learn more about Chanukah, the Equity, Diversity and Inclusion Committee of Rogers PartnersRead More
Fridays with Rogers Partners
At our weekly meeting, Pip Swartz led a further discussion on the decision in Arksey v. Sky Zone Toronto[1]. A summary of the case from our previous discussion of it can be found here: https://www.rogerspartners.com/fridays-with-rogers-partners-47/ During our firm’s discussion of Arksey, a hypothetical question was raised: how would the judgeRead More
New Guidelines on Resuming Court Operations
The Ministry of the Attorney General recently released updated guidelines on resuming court operations. The “COVID-19: Recommended Preventative Measures for Resuming Court Operations” guidebook provides details about the steps being taken to ensure courts continue to operate safely. It includes information on: preparing courthouses to resume in-person appearances;protocols in place toRead More
A Cautionary Tale: The Consequences of Eliciting Previously Undisclosed Opinions from Participant Experts
By Suganiya Sivabalan In its recent decision in St. Marthe v. O’Connor, 2021 ONCA 790, the Ontario Court of Appeal provided guidance on the boundaries of appropriate expert evidence at trial, particularly evidence from participant experts. Background The plaintiff in this action was injured in a motor vehicle accident inRead More
Court Orders Production of Documents on Plaintiff’s Previous Settlements
In Burwash v. Levy, 2021 ONSC 7196, the court ordered production of settlement documentation from two previous actions. In the action in issue, the plaintiff sued several medical assessors and two medical assessment centres, alleging that they interfered with expert opinions in an accident benefits claim, which were relied onRead More
New Case Conference Form in Toronto
The Notice to the Profession for Toronto was amended effective November 19, 2021 to provide for a new Case Conference Request form. This form replaces the Chambers Appointment Hearing Request form. There is also a new email address to submit Case Conference Request forms: TorontoCaseConferenceAppointments@Ontario.ca. Rule 50.13 addresses case conferences.Read More
Fridays with Rogers Partners
At our weekly meeting, Michael Kryworuk discussed the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47. This decision addressed the issue of promissory estoppel in the context of insurance coverage disputes. History of theRead More
Motion to Strike Jury Notice in Central East Region Dismissed
In Corkett v. Ginn, 2021 ONSC 7434, the court dismissed the plaintiff’s motion to strike a jury notice in an action commenced in the Central East Region. One of the reasons for dismissing the motion was that the plaintiff did not move the action forward expeditiously. There was an unexplainedRead More
Winter is Coming: The Supreme Court of Canada on Government Immunity for Policy Decisions, and its Application to Snow Removal
By Natalia Sheikh Introduction In the recent Supreme Court of Canada decision in Nelson (City) v. Marchi, 2021 SCC 41, the Court develops a four-factor test for determining whether a decision of a government entity is a “core policy decision” that is immune from liability in tort. This decision isRead More
Plaintiff’s Incorrect Description of Accident Location Leads to Dismissal Against Municipality
The court recently dismissed an action against a municipality due to insufficient notice. Under section 44 of the Municipal Act, 2001, when a person is injured due to an alleged improper state of repair of a municipal highway or sidewalk, the injured person must provide, within 10 days, written notice ofRead More
Is That An “Accident”? Are You Sure?
By Kayley Richardson In Sterling v. Heartland Farm Mutual Inc., 2021 ONLAT 20-000672/AABS-R,[1] Adjudicator Boyce dismissed the insurer’s request for reconsideration and upheld his preliminary issue decision that the applicant was involved in an “accident” pursuant to the Statutory Accident Benefits Schedule O. Reg. 34/10 (the “SABS”). Background On FebruaryRead More
Finding of Professional Misconduct Against Lawyer Overturned
In a previous blog post, we discussed the decision in Blake v. Blake, 2019 ONSC 4062. The motion judge held that a lawyer purposefully did not bring a relevant case to his attention. While conducting his own research, the motion judge found a blog written by another lawyer at the sameRead More
When is “The Close of Pleadings”?
By Meryl Rodrigues In a recent Court of Appeal decision, the Court clarifies what constitutes “the close of pleadings” in an action. The appeal in Kawaguchi v. Kawa Investments Inc.[1] arose from a motion wherein the motion judge prevented the plaintiffs/appellants from discontinuing their action against the respondents (three ofRead More
Changes to Confirming Motions/Applications and Obtaining Certification Forms in Toronto
The Consolidated Practice Direction for Toronto was amended effective November 4, 2021. One of the changes is that motion/application confirmation forms must include either the Justice Services Online filing confirmation number, or verification that the court documents were filed in hard copy at the court office. The second change isRead More
Court of Appeal Justice Calls for Legislative Reform on Appeal Routes
In 1476335 Ontario Inc. v. Frezza, 2021 ONCA 732, Justice Brown of the Ontario Court of Appeal noted that confusion frequently arises on the correct appeal route. Justice Brown called on the Ontario Legislature to create a simple test for when an appeal lies to the Divisional Court or whenRead More
Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision of the Court of Appeal in Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763. This decision dealt with a motion brought by a “John Doe” defendant, who was an anonymous online poster, to extend time to serve and fileRead More
Happy Diwali!
Diwali is a festival of lights and one of the major festivals celebrated by Hindus, Jains, Sikhs and some Buddhists. It is regarded as India’s biggest and most important holiday of the year. The festival is named after the Sanskrit term deepavali, translating as “row of lights”. To celebrate lightRead More
Emily Vereshchak in The Lawyer’s Daily
Emily Vereshchak was recently published in The Lawyer’s Daily in an article called “Address issues of venue and procedure early in litigation“. Emily discusses a case where the plaintiff’s motion to transfer an action to the Simplified Procedure or to the Small Claims Court was dismissed because the request wasRead More
Reconsideration at the LAT is Not For Re-litigating Issues
By Jennifer Singh In Sidiura v Aviva General Insurance, 2021 CanLII 100863, the Licence Appeal Tribunal (“LAT”) found that the Applicant was not entitled to income replacement benefits, a treatment plan for physiotherapy or an award for interest. The Applicant sought to have the Tribunal’s decision reconsidered on the basisRead More
LAT Denies Request for New House Due to Insufficient Housing Assessment
The decision in Mirzaie v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-009605/AABS, involves a statutory accident benefits claim in which the claimant sought a rehabilitation benefit for a new house at a cost of close to $1.3 million. The claimant sustained significant injuries in a motor vehicle accident. At the time ofRead More
Fridays with Rogers Partners
At our weekly meeting, Michael Kryworuk discussed the recent decision in Northbridge General Insurance Company v. Aviva Insurance Company, 2021 ONSC 6873, which concerned an application for equitable contribution between insurers. History of the Litigation The applicant, Northbridge General Insurance Company (“Northbridge”) sought a declaration that the respondent, Aviva InsuranceRead More
Virtual Discoveries Likely Here to Stay
The decision in Worsoff v. MTCC 1168, 2021 ONSC 6493, deals with a dispute over whether examinations for discovery should take place in person or by videoconference. The plaintiff wanted to examine the defendants’ representatives in person. The defendants objected to this and wanted to proceed by videoconference. Justice MyersRead More
Appeals of Preliminary Issues in Administrative Proceedings Must Await Final Decision
In administrative tribunal matters, a party generally cannot appeal a preliminary issue when there are other issues to be determined. This principle was noted in the recent decision of the Divisional Court in Millar v. The Cooperators General Insurance Company, 2021 ONSC 6643. The claimant was involved in a motor vehicleRead More
Plaintiffs Awarded Damages Over Racism Allegations on Instagram and Twitter
The court recently recently released a decision in an interesting defamation action involving comments made on social media. The facts of the decision in Lavallee et al. v. Isak, 2021 ONSC 6661, are as follows: [1] On May 30, 2020, Justine Lavallee, Shania Lavallee, and Gilmour Driscoll-Maurice (Shania’s boyfriend) wereRead More
Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision of the Supreme Court of Canada in Nelson (City) v Marchi, 2021 SCC 41, which dealt with the question of when public authorities can be held liable in negligence. Facts This case arose from an incident that took place inRead More
New Procedure for Submitting Pre-Trial Briefs in Toronto
The Notice to the Profession for Toronto was amended effective October 18, 2021 to indicate that pre-trial conference briefs should only be uploaded to CaseLines, not e-mailed to the trial coordinator’s office or submitted through the court’s online portal. Specifically, paragraph C.3.9 of the Notice states: Briefs, draft reports, andRead More
Evidence of Delay is Required on Motions to Strike Jury Notices
By Erin Crochetière Motions to strike Jury Notices due to the alleged delay associated with Jury trials during the pandemic have become common place. In some cases, the Court has struck Jury Notices where there was evidence that the trial could proceed much sooner without a Jury.[1] Generally, the decisionRead More
Court of Appeal’s Tentative Return to In-Person Hearings
The Ontario Court of Appeal is considering a return to in-person hearings as early as November 8, 2021. The Court of Appeal has released a document called “Tentative Model for Return to In-Person Proceedings“. There may be a staggered return, with in-person criminal appeals beginning before civil appeals. There willRead More
Income Replacement Benefits and CERB: To Deduct or Not To Deduct?
By Kayley Richardson Under the Statutory Accident Benefits Schedule O. Reg. 34/10 (the “SABS”), if a person is employed at the time of the accident and suffers a substantial inability to perform the essential tasks of their employment, they are entitled to receive income replacement benefits (“IRBs”). Once it hasRead More
Fridays with Rogers Partners
At our weekly meeting, Pip Swartz discussed the recent decision of the Supreme Court of Canada in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22. In this case, 5 former members of a Toronto Catholic Church (‘the members’) sued their church (‘the church’) forRead More
Court Orders Genetic Testing of Plaintiffs in Medical Malpractice Action
By Kayley Richardson Anita Varjacic of Rogers Partners LLP recently successfully brought a motion to compel the plaintiffs to undergo genetic testing. The decision in Klinck v. Dorsay, 2021 ONSC 6285, is the first time in Ontario that a court has ordered genetic testing as part of a medical examinationRead More
Motion to Transfer to Simplified Procedure Comes Too Late
By Emily Vereshchak In Granville v. Blue Cross Life Insurance Company of Canada[1], the plaintiff sought leave to transfer his action from regular procedure to Simplified Procedure. In the alternative, the plaintiff sought to transfer the action from the Superior Court of Justice to the Small Claims Court. The plaintiff’sRead More
Chris MacDonald Wins Motion
Congratulations to Chris MacDonald on his success in a motion to dismiss an action last week. The plaintiff failed to comply with an order to file a notice of intention to act in person or to have a new lawyer appointed, following his former lawyer’s removal from the record. TheRead More
Fridays with Rogers Partners
At our weekly meeting, Michael Kryworuk discussed the Court of Appeal’s decision in Gordon Dunk Farms Limited v HFH Inc, 2021 ONCA 681, dealing with discoverability and the commencement of a limitation period. History of the Litigation This appeal arises from an action commenced by the appellant, Gordon Dunk Farms,Read More
Rogers Partners Hiring Legal Assistant
Rogers Partners LLP currently has an opportunity for a legal assistant with at least 3 years of civil litigation experience. Candidates should have a legal assistant diploma from a recognized college. The responsibilities of the position include maintaining files from opening to closing; scheduling; updating internal databases; communicating with clientsRead More
Tort of Public Disclosure of Private Facts
In ES v. Shillington, 2021 ABQB 739, the Alberta Court of Queen’s Bench considered the tort of “public disclosure of private facts”. The parties were involved in a relationship for 11 years and have two children together. The relationship was marred by the defendant committing multiple acts of physical and sexualRead More
Disclosure in an Adjudicative Proceeding Cannot Ground a Claim for Intrusion Upon Seclusion
By Christopher MacDonald In the recent decision in Wakeling v. Desjardins General Insurance Group Inc., 2021 ONCA 672, the Court of Appeal considered, among other things, whether the dissemination of information about an employee to an employer through public adjudicative proceedings, and the subsequent use of said information by theRead More
New Form for Short Motions and Applications in Toronto
The Notice to the Profession for Toronto was amended on September 29, 2021 to provide a link to a new Requisition to Schedule a Short Motion or Application form. This form now contains a section for the judge or associate judge to endorse and sign.Read More
Kathryn Orydzuk Joins Rogers Partners
We’re very pleased to welcome Kathryn Orydzuk to the firm as an associate lawyer! Kathryn started with us today.Read More
Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision in Bédard v. Pye et al., 2021 ONSC 6379, granting a motion to dismiss an action for damages allegedly resulting from medical malpractice. There had been a prior decision in the action by the same judge on a motion forRead More
National Day for Truth and Reconciliation and Orange Shirt Day
By Sharon Lam Yiu, Law Clerk Orange Shirt Day began when author, Phyllis Jack Webstad, a Northern Secwepemic from the Stswecem’c Xgat’tem First Nation, shared her experience as a survivor of the St. Joseph Mission Residential School, near Williams Lake, British Columbia. Phyllis Jack Webstad recalled that on herRead More
Denial of Extension of a Class Action Opt-Out Deadline is a Final Order
By Athina Ionita In Johnson v. Ontario, 2021 ONCA 650, the Court of Appeal determined that a decision refusing to extend the deadline for opting out of a class action affects a substantive right, and is therefore a final order, as it disposed of the plaintiff’s ability to continue hisRead More
Pre-Certification Summary Judgment Motions in Class Actions
In October 2020, the Class Proceedings Act, 1992 was amended to provide for an early resolution of issues. Section 4.1 of the Act states: 4.1 If, before the hearing of the motion for certification, a motion is made under the rules of court that may dispose of the proceeding in wholeRead More
Uncivil Conduct Leads to Fresh Discoveries
One of the issues addressed in the recent decision of Paterson v. HMQ Ontario, 2021 ONSC 6295, is the overarching importance of civility between counsel. Justice Di Luca said that this may be even more important at discoveries since there is no judge in the room. His Honour stated: [47]Read More
Fridays with Rogers Partners
At our weekly meeting, Pip Swartz discussed the recent decision in Verhoef v. Intact Insurance Company, 2021 ONSC 4310. This case concerned a motion for summary judgement dismissing an action for unidentified motorist coverage. Facts The plaintiff, Brandin Verhoef, brought an action against the defendant, Intact, for damages arising fromRead More
Time Limit for Simplified Procedure Discoveries
In Simplified Procedure actions, a party is limited to conducting three hours of oral examinations, regardless of the number of parties or other persons to be examined. The case of Leask v. Homewood Health Centre Inc., 2021 ONSC 6287, involves a Simplified Procedure action. The defendants permitted the plaintiff’s lawyerRead More
Supplementary Submissions Permitted After Release of Decision
Once a court has rendered a decision, parties are generally not permitted to make further arguments. However, in Leroux v. Ontario, 2021 ONSC 4468, the Divisional Court permitted further arguments after it had released its decision, but before an order had been issued and entered. After the Divisional Court providedRead More
Time to Appeal Usually Starts From Release of Reasons – But Not Always
The time to commence an appeal generally starts when the reasons for the decision are released (either orally or in writing), not from the date that the judgment is settled and issued. However, as indicated in the recent Court of Appeal decision of Gefen v. Gaertner, 2021 ONCA 631, thisRead More
Court Rejects Insurer’s Position on Material Misrepresentation Due to Insufficient Evidence
By Brian Sunohara The decision in Estate of Kareem Watson et al v. RBC, 2021 ONSC 5305, addresses some of the evidence that may be required when an insurer attempts to rely on a material misrepresentation as a basis for voiding an insurance policy. Watson and Doucette were common lawRead More
Fridays with Rogers Partners
At our weekly firm meeting, Michael Kryworuk discussed the decision of Ramnarine v. Marino, 2021 ONSC 5935, which we addressed on our blog yesterday. The decision shows that the court may dispense with service of a document where there is evidence of extensive unsuccessful efforts to personally serve the document.Read More
Dispensing with Service Can be Ordered in Appropriate Circumstances
In Ramnarine v. Marino, 2021 ONSC 5935, the plaintiffs brought a motion for substituted service of a statement of claim. The plaintiffs provided evidence of extensive efforts to locate the defendant. The plaintiffs sought to serve the defendant at his address contained in the Ministry of Transportation database. However, a processRead More
LAT Application Barred Due to Missed Insurer Examinations
By Suganiya Sivabalan The recent License Appeal Tribunal decision in Amoh v. Pembridge Insurance, 2021 ONLAT 20-001280/AABS, addresses the issue of whether an applicant is barred from commencing a proceeding against the respondent when the applicant fails to comply with section 44 of the Statutory Accident Benefits Schedule (“SABS”) byRead More
Who Pays for Productions in Simplified Procedure Actions?
One of the issues in the case of Rheaume v. Foster, 2021 ONSC 5804, was whether the plaintiff or the defendant was responsible for paying the cost of obtaining productions, such as medical records, in a Simplified Procedure action. Justice Boswell held that each party is required to pay forRead More
Andrew Yolles Successfully Defends Motion to Examine Non-Party
Andrew Yolles was recently successful in defending a motion to examine a non-party. The action arises out of remedial work that was being performed by the defendant at the plaintiffs’ house. One of the plaintiffs allegedly tripped on a plastic containment barrier. The plaintiffs allege that a former employee of the defendantRead More
Fridays with Rogers Partners
At our weekly firm meeting, Annie Levanaj discussed the recent decision of Justice Boswell dismissing a summary judgment motion brought by the defendants in Adler v. Promenade General Partner Inc., 2021 ONSC 5393. Incident This action arose from an incident that occurred on August 8, 2018, when Ms. Adler, theRead More
Federal Privacy Commissioner Calls for Updated Federal Privacy Laws amidst Inconsistent Provincial and Territorial Privacy Protection Frameworks