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Fridays With Rogers Partners

At our weekly Friday meeting, Angie Bellehumeur discussed a decision of the Licence Appeal Tribunal, R.A. v. Aviva Insurance Company, 2020 ONLAT 19-004208/AABS. The issue in this case was whether a chronic pain assessment costing $2,010 was a reasonable and necessary expense resulting from a motor vehicle accident according toRead More

Further Courtrooms in Ontario To Be Reopened

The Ministry of the Attorney General plans to open several further courtrooms in various jurisdictions on September 14, 2020. A list can be found here.Read More

Consolidation vs. Hearing Together

Rule 6.01 of the Rules of Civil Procedure permits the court to consolidate multiple proceedings or order that they be heard at the same time or immediately after the other. This relief can be granted if the proceedings have a question of law or fact in common; if the reliefRead More

Factors in Counsel’s Removal from Record

In Baradaran v. Alexanian, 2020 ONSC 4759, the court reviewed the case law on the principles applicable on a motion to remove counsel from the record. These principles include the following: A lawyer must  have “good cause” or “justifiable cause” to withdraw from representation. The commentary under rule 3.7-1 of theRead More

Amendment to Plead Battery Denied in Cosmetic Surgery Case

The case of Piatkowski et al v. Drakos, 2020 ONSC 3928, addresses the test to amend a statement of claim to assert a new cause of action following the expiry of the limitation period. In November 2013, the plaintiff underwent tummy tuck surgery. She alleged that she sustained full skin necrosisRead More

Fridays With Rogers Partners

11th Hour Change in Discovery Plan Deemed “Hiccup”: Motions for Costs Dismissed This morning, at our weekly meeting, Angie Bellehumeur discussed the court’s decision in 1479021 Ontario Inc. v Hawkesbury (Town of) et al., 2020 ONSC 4570, which involved a motion and a cross-motion for costs arising from cancelled discoveries.Read More

$21 Million PJI Award in Insurance Dispute

By Brian Sunohara In MDS Inc. v. Factory Mutual Insurance Company (FM Global), 2020 ONSC 4464, the plaintiff was awarded prejudgment interest (“PJI”) of $14.8 million (USD) or $21 million (CAD) on a judgment of $25 million (USD). The action arose from an insurance dispute, specifically a claim for lossRead More

New Regulation on Virtual Commissioning

There is a new regulation which expressly permits virtual commissioning. Ontario Regulation 431/20 – Administering Oath or Declaration Remotely, which came into effect on July 31, 2020, outlines the requirements for virtual commissioning, including: The person administering the oath or declaration and the deponent or declarant must be able toRead More

Strict Time Limit to Apply for Income Replacement Benefits

In C.G. v. Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS, the Licence Appeal Tribunal held that there is a strict time limit to apply for an income replacement benefit (“IRB”). The accident in question occurred on October 31, 2016. The applicant applied for accident benefits on November 8, 2016. On December 1,Read More

Fridays With Rogers Partners

Our newest articling, Angeline Bellehumeur, discussed a very interesting court decision at our weekly meeting this morning. The issue in Thomson v. Watson, 2020 ONSC 4409, was whether a worker who is involved in an accident outside of Ontario and elects to receive workers’ compensation benefits outside of Ontario, canRead More

Superior Court’s New Document Sharing & Storage Platform

Chief Justice Morawetz has announced in a memorandum that the Ontario Superior Court of Justice will be implementing CaseLines, which is a cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings. Court documents will continue to be filed with the court office. However, parties will nowRead More

Summary Judgment Motions: Proceeding With Diligence

Certain principles on the conduct of summary judgment motions emerge from the court’s recent decision in Meagher v. Hooper-Holmes Canada Limited, 2020 ONSC 4480. The plaintiffs commenced a medical malpractice claim. The defendants brought a summary judgment motion, which was first scheduled to be heard in January 2019. The plaintiffs soughtRead More

Fall Jury Trials in Central-East Cancelled

In a Notice to the Profession for the Central-East Region that was released yesterday, it was announced that the civil (non-family) trial sittings scheduled to commence on November 16, 2020 are cancelled. This means that there will be no civil jury trials in the Central-East Region this fall. The Notice indicatesRead More

Misnomer Motion Granted Despite Plaintiff’s Knowledge of Correct Defendant

The doctrine of misnomer is quite broad. In the recent decision of Scace v. Withers et al., 2020 ONSC 90, the plaintiff knew the name of a home renovation contactor that he alleged to be negligent, but named the contractor in the statement of claim as a pseudonym, “XYZ Contractor”.Read More

Fridays With Rogers Partners

This morning, at our weekly firm meeting, Matthew Umbrio addressed the Ontario Licence Appeal Tribunal decision of J.A. v. Intact Insurance Company, 2020 ONLAT 19-005110/AABS. The applicant was injured in an automobile accident on April 3, 2016 and sought benefits under the Statutory Accident Benefits Schedule (the “Schedule”). Intact deniedRead More

COVID-19 Screening Protocol at Courthouses

The Ontario Ministry of the Attorney General has advised that, as part of its COVID-19 Active Screening Protocol, a screening questionnaire must be completed before entering a courthouse. The questionnaire is available on-line, and the results of the questionnaire can be shown on your phone to a designated person atRead More

Suspension of Limitation Period Due to Incapacity

By Rebecca Moore In Ontario, the time period for a claimant to commence an action is outlined in the Limitations Act, 2002, (“LA”). The ‘basic limitation period’ is two years from the date on which the claim was discovered. There are, however, exceptions that have been carved out for particularRead More

Trampoline Injury: Defendant’s Motion to Enforce Waiver Dismissed

By Brian Sunohara In Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380, the plaintiff went to an indoor trampoline and fun park, Sky Zone, in Mississauga, Ontario. While attempting a backflip, he landed hard on his head and sustained a fractured vertebrae in his neck that required surgery. The defendant broughtRead More

Litigation Not on Hold Due to COVID-19

In Elson v. Polyethics Industries Inc., 2020 ONSC 4335, the defendant corporation refused to provide an affidavit of documents due to the COVID-19 pandemic. The defendant stated that requiring someone to attend at the office would risk spreading COVID-19 and that its CEO, who would be the person responsible forRead More

Fridays With Rogers Partners

At our weekly meeting, Matthew Umbrio addressed the Ontario Court of Appeal decision of Woods v. Jackiewicz, 2020 ONCA 458. The appellant physician appealed from an award of damages against him for negligent management of a twin pregnancy, following a jury trial. He did not challenge the jury finding thatRead More

COVID-19: Ultimate business interrupter

An article by David Rogers, entitled “COVID-19: Ultimate business interrupter”, was published in The Lawyer’s Daily this week. David says “it is unlikely that COVID-19-related losses would be covered under the business interruption provisions of most all-risks property policies, which require actual property damage”. However, David also notes that policyRead More

Class Actions Against SABS Insurers Dismissed for Lack of Jurisdiction

In Dorman v. Economical Mutual Insurance Company, 2020 ONSC 4004, class actions were commenced against several insurance companies for allegedly improperly deducting HST from statutory accident benefit payments. Justice Belobaba agreed with the insurers that the court does not have jurisdiction over the dispute. As a result, the class actionsRead More

The Talented Gemma Healy-Murphy

Gemma Healy-Murphy recently displayed her incredible singing skills at The Lawyer Show Cabaret in a heartwarming rendition of For the First Time in Forever from the movie Frozen! The event was held on-line by Nightwood Theatre in support of many worthy causes. Prior to becoming a lawyer, Gemma was aRead More

Emily Vereshchak in The Lawyer’s Daily

Emily Vereshchak was recently featured in a two-part series in The Lawyer’s Daily on joint liability and subrogation under the OPCF 44R. Both parts can be found here: Part 1 Part 2Read More

Fridays With Rogers Partners

At our weekly firm meeting, Matthew Umbrio addressed the Ontario Superior Court decision’s in Moxam v. Anderson, 2020 ONSC 4173. This action arose from two motor vehicle accidents. The first occurred on April 12, 2012, and the second on March 27, 2013. The plaintiff, Moxam, was a passenger in eachRead More

Access to Justice & Summary Judgment Post-Pandemic: A “Culture Shift” – At Long Last?

Stephen Ross and Gemma Healy-Murphy have written a thought-provoking article entitled “Access to Justice & Summary Judgment Post-Pandemic: A ‘Culture Shift’ – At Long Last?” In the article, Stephen and Gemma say: “The wheels of justice move slowly and it is only now, over six (6) years later, and inRead More

Preparing for Mass Remote Court Attendances

By Meryl Rodrigues Earlier this week, courts commenced their gradual reopening in the face of COVID-19 still persisting and public health and safety measures still in place. Since their closure in mid-March, although courts have been addressing urgent matters and some consent or other matters (depending on the region and/orRead More

Virtual Trials Can Work Says Judge

The use of technology in the courtroom is important to keep cases moving forward in an efficient manner. A recent decision of the Ontario Superior Court of Justice shows that “virtual trials” can work. The case arose in the criminal context. The trial took place by Zoom over four days,Read More

Superior Court’s Updated Notice on Resumption of Court Hearings

The Ontario Superior Court of Justice issued a further Notice to the Profession on June 25, 2020. The Notice indicates that COVID-19 risk assessments are being conducted at each Ontario courthouse. Issues such as physical distancing, facility and room capacity, plexiglass barriers, enhanced cleaning, courtroom configuration, document transmission, and COVID screening areRead More

Fridays With Rogers Partners

This morning, at our weekly firm meeting, Matthew Umbrio addressed the Ontario Court of Appeal decision of Nanda v. McEwan, 2020 ONCA 431. The appeal was brought by the moving party/defendants from an order made under s.137.1 of the Courts of Justice Act dismissing an “anti-SLAPP” motion. The action wasRead More

From the Desk of Colleen Mackeigan

Tips for Conducting Virtual Discoveries As society continues to learn to adapt to our “new normal” of social distancing, the legal profession has made every effort to persevere and find innovative ways to ensure, to the extent possible, that access to justice is preserved. One way in which lawyers continueRead More

Happy Canada Day!

From all of us at Rogers Partners, we wish you a safe, happy, and healthy Canada Day!Read More

Resuming Court Operations: Ministry’s Precautionary Measures

The Ministry of the Attorney General has released a very detailed guidebook called “COVID-19 Recommended Precautionary Measures – Resuming Court Operations”. The topics covered in the guidebook include: Preparing the court environment, including enhanced cleaning protocols, plexiglass barriers, physical distancing, and the use of face coverings Attendance at the courthouse,Read More

Successful WSIAT Hearing by Rogers Partners

In a decision released last week (Decision No. 1543/19), Tom Macmillan, Meryl Rodrigues, and Matthew Umbrio were successful in a hearing before the Workplace Safety Insurance and Appeals Tribunal. The main issue was whether the plaintiff was an employee of a tour bus company or an independent contractor. The factRead More

Fridays With Rogers Partners

At our weekly firm meeting this morning, Matthew Umbrio addressed the Ontario Superior Court decision of The Estate of Donald Farb v. Manulife, 2020 ONSC 3037. The applicant was the estate for Mr. Farb, who sought reimbursement for hospital expenses incurred while on vacation in Florida. Manulife had denied his claimRead More

Principles of Litigation Privilege

In Walsh Construction Company Canada v. Toronto Transit Commission, 2020 ONSC 3688, Master McGraw went over the main principles of litigation privilege: Litigation privilege is a fundamental principle of the administration of justice which serves an overriding public interest to ensure the efficacy of the adversarial process by protecting communicationsRead More

Extra-Provincial Application of Ontario’s Priority Scheme

By Matthew Umbrio The Ontario Court of Appeal has recently released Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382[i], which addresses the extra-provincial application of the Ontario Insurance Act in the priority dispute context. The decision was written by Justice Lauwers, who was joined by Justice PacioccoRead More

Rogers Partners In|Sight – Summer 2020 Newsletter

We’re pleased to present the Summer 2020 edition of our newsletter, In|Sight. We hope you enjoy the following: COVID-19: The Ultimate Business Interrupter Special Awards at the LAT – An Upward Trend The Latest Ruling on Social Host Liability House Construction: The Duties of Contractors and Municipal Building Inspectors Access to Justice &Read More

Material Changes in Risk: Causal Connection to Loss Not Required

The Supreme Court of Canada recently denied leave to appeal in an insurance coverage dispute. A building on the plaintiffs’ property was damaged by fire. The plaintiffs’ insurer denied a claim under a homeowner’s policy based on the plaintiffs’ failure to notify of a material change of risk, in particular,Read More

Fridays With Rogers Partners

At today’s weekly firm meeting, Matthew Umbrio addressed the Ontario Court of Appeal decision of Peter B. Cozzi Professional Corporation v. Szot, 2020 ONCA 397. The appellant in this decision was the solicitor for Mr. Nguyen, the plaintiff in a motor vehicle personal injury action. The Court of Appeal wasRead More

Early Investigation & Preservation of Evidence in Personal Injury Claims

By Gemma Healy-Murphy When adjusters are put on notice of a potential lawsuit, either by an insured or the potential claimant, there are several loss control measures that can be taken at an early stage and in contemplation of litigation (thus arguably preserving the privileged nature of any such effortsRead More

Court of Appeal Overturns Coverage Decision in Sexual Abuse Claim

In a previous blog post, we discussed a decision in which an insurer was ordered to defend a training academy for allegations related to the alleged sexual abuse of a student. The decision was overturned yesterday by the Court of Appeal. In Southside Muay Thai Academy Corporation v. Aviva InsuranceRead More

Allegations of Personal Liability of Employees

The Court of Appeal’s decision in Burns v. RBC Life Insurance Company, 2020 ONCA 347, dealt with a motion decision to strike a statement of claim against two employees of the defendant insurer for disclosing no reasonable cause of action. The plaintiff sued RBC Life in a disability benefits claim.Read More

Fridays With Rogers Partners

At our weekly firm meeting, Matthew Umbrio addressed the Divisional Court decision of Industrial Alliance Securities Inc. v. Kunicyn, 2020 ONSC 3393. The appellant, Ms. Kunicyn, appealed the Order of Justice Stewart dismissing her motion seeking answers to certain questions that were refused and disclosure of certain documents. The refusals concernedRead More

Procedure for Opposed Short Motions in Toronto During COVID-19

In Mann v. Chack-Wai, 2020 ONSC 3428, Justice Myers considered the first opposed short motion in writing under the Toronto Region Notice to the Profession, dated May 13, 2020.  Justice Myers described the procedure for such motions. Parties who seek to bring a short opposed motion or application must fileRead More

Bifurcated Trial, Bifurcated Offers, and Bifurcated Costs

By Erin Crochetière In a recent costs decision in Blaese v. Metcalfe, 2020 ONSC 3432, the Court dealt with some interesting issues regarding offers to settle in the context of bifurcated trials. The parties in the action agreed to bifurcate the issues of liability and damages, and a trial onRead More

Jurisdiction of Court of Appeal to Order Appeals to be Heard in Writing

In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, Justice Roberts held that the Court of Appeal has jurisdiction to order a civil appeal to be heard in writing, regardless of whether one of the parties objects. Justice Roberts noted that the Court of Appeal has broad implicitRead More

The Two Types of Set-Off

In Mujtaba v. Yasin, 2020 ONSC 2554, Justice Emery addressed the two types of set-off: legal set-off and equitable set-off. Legal set-off is provided for in section 111 of the Courts of Justice Act, which states: “in an action for payment of a debt, the defendant may, by way of defence,Read More

Fridays With Rogers Partners

David Rogers led a seminar on productions this morning at our firm’s weekly meeting. The court’s decision in SecurityInChina International Corp. v. Bank of Montreal, 2019 ONSC 7183, provides an excellent summary of production requirements. Justice Mitchell outlined the following principles: [8] Rule 30.06 requires production of every document relevant to any matterRead More

Joint Liability and the Nature of Subrogation under the OPCF 44R

 By Emily Vereshchak The Court of Appeal has released a new and detailed decision in Tuffnail v. Meekes, 2020 ONCA 340, which addresses issues related to underinsured automobile coverage.[1]. The decision was written by Associate Chief Justice Hoy, who was joined by Justice Doherty and Associate Chief Justice Marrocco (adRead More

Alon Barda Discusses Limitation Periods at the LAT

Alon Barda was recently featured in a two-part series in The Lawyer’s Daily called “Uncertainty surrounding extension of limitation periods at LAT”. Part 1 Part 2Read More

Security for Costs in Frivolous and Vexatious Actions

In Rebello v. Paragon Security et al, 2020 ONSC 2303, the court considered the test for ordering a plaintiff to pay security for costs when an action may be frivolous and vexatious. The Test Rule 56.01(1)(e) states that, on a motion by a defendant or a respondent in a proceeding,Read More

Matthew Umbrio Called to the Bar

Congratulations to Matthew Umbrio on his call to the Ontario Bar last week! Matthew had a very successful articling term, and we’re delighted to welcome him back to the firm as an associate lawyer.Read More

Apportionment of Costs Based on Insurance Policy Limits

The decision in Hummel v. Jantzi, 2020 ONSC 3052, dealt with the apportionment of costs between defendants following a trial. The action arose out of a motor vehicle accident. The trial judge, Justice G.E. Taylor, found the defendant driver to be 80% liable and the defendant tavern to be 20% liable. Read More

Fridays With Rogers Partners

This morning, at our weekly firm meeting, Ankita Abraham discussed the case of Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, a decision addressing the fundamental obligation to disclose and produce relevant documents and the principles guiding the exercise of a court’s discretion toRead More

Virtual Hearings Likely Here to Stay

In the recent decision of Scaffidi-Argentina v. Tega Homes Developments Inc, 2020 ONSC 3232, Justice MacLeod said that “virtual hearings are likely to retain a permanent place in the judicial tool box”. However, His Honour noted there will be difficulties with conducting many trials by videoconference. It is much easierRead More

The Latest on Virtual Commissioning

By Colleen Mackeigan Justice MacLeod in Rabbat et al. v. Nadon et al, 2020 ONSC 2933, confirmed the legitimacy of virtual commissioning of affidavits. In Rabbat, a case conference was held virtually in light of the current suspension of in-court appearances due to COVID-19, to establish a timetable leading upRead More

Civility in the Courtroom

The recent decision in Stepita v. Dibble, 2020 ONSC 3041, demonstrates the importance of civility in the courtroom. Justice Ferguson stated, “It is expected that parties to litigation will disagree about the issues. It is expected that they will make vigorous, fulsome arguments as to the substance of the mattersRead More

Court Calls for Understanding and Empathy

A recent decision of Justice Myers stresses that cooperation between counsel and parties is essential during this period of emergency caused by COVID-19. In Campbell v. 1493951 Ontario Inc., 2020 ONSC 2942, Justice Myers stated, “The court calls on counsel and the parties to recognize the need for and theRead More

Fridays With Rogers Partners

At our weekly meeting this morning, Ankita Abraham discussed the case of Deschenes v. Lalonde, 2020 ONCA 304, an appeal from a judgment rescinding and setting aside a settlement agreement. The plaintiff sued a priest who allegedly sexually assaulted her in the early 1970s. The plaintiff also sued the Roman CatholicRead More

Rights, remedies between primary and excess insurers

Stephen Ross and Erin Crochetière were recently featured in a three-part series in The Lawyer’s Daily on “Rights, remedies between primary and excess insurers”. Stephen and Erin provide an in-depth look at the nature and scope of the duties owed between primary and excess insurers from a Canadian perspective, includingRead More

Tea Time Gone Wrong: Spilled Tea in Car Not an Automobile Accident

By Carol-Anne Wyseman In M.P. v. Allstate Insurance Company of Canada,[1] a recently released preliminary issue decision of the Licence Appeal Tribunal (the “LAT”), the LAT considered the definition of “accident” in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “SABS”). Subsection 3(1) ofRead More

Superior Court Issues Updated Notice to the Profession

The Ontario Superior Court of Justice has provided a further Notice to the Profession which is effective today, May 19, 2020.  The main points are: The Court will not resume in-person hearings of any matters until July 6, 2020 at the earliest.  However, it will continue to hear certain mattersRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed a case involving a plaintiff’s request for CCTV footage and a case regarding a dispute on the terms of an agreement on the assignment of benefits in a tort action Pre-Examination Production Motion Matthew Umbrio addressed the case of Strength of Two Buffalo DaleRead More

Assumption of Defence: Seven Points to Consider

By Andrew Yolles A co-defendant has offered to “assume” or take over your client’s defence in a lawsuit. Great! But before you agree, there are some important points to consider to ensure your client is properly protected in the future. #1:       Why are they assuming your client’s defence? The firstRead More

Coverage Under Homeowner’s Policy for Automobile-Related Incident: SCC Denies Leave

The Supreme Court of Canada recently denied leave to appeal in a case wherein it was found that an insured was entitled to be defended under both an auto policy and a homeowner’s policy for an auto-related incident. We previously provided the following summary of the issues involved. The caseRead More

Test for Further Discovery After Setting Action Down for Trial

A party who sets an action down for trial or consents to an action being placed on a trial list is generally not permitted to conduct an examination for discovery of an opposing party. Leave of the court is required under rule 48.04(1) of the Rules of Civil Procedure, unless theRead More

Gemma Healy-Murphy in The Lawyer’s Daily

Gemma Healy-Murphy’s article called “Being a reasonable parent: What does it mean?” was  recently published in The Lawyer’s Daily. Gemma says, “Now, we all strive to be the ‘perfect’ parent, whatever that may be. But fear not, while you may hold yourself to this impossibly high standard, the court doesRead More

Fridays With Rogers Partners

At our weekly meeting by videoconference, we discussed a case involving whether the plaintiff met the statutory threshold and a case involving the limitation period in a disability benefits claim. Threshold Not Met Ankita Abraham went over the case of McNamee v. Oickle, 2020 ONSC 2371, a decision addressing theRead More

Errors on “Incurred” Expenses: New Trial Ordered in SABS Claim

By Alon Barda and Modasir Rajabali In the recently released case of Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, the Court of Appeal dealt with the central issue of whether the trial judge erred in holding that the respondent, Ms. Pucci, was entitled to payment of housekeepingRead More

Discovery Ordered to Proceed by Videoconference or Not at All

“It’s 2020…We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back”. These were the comments of Justice Myers in Arconti v. Smith, 2020 ONSC 2782. The plaintiffs objected to conducting an examinationRead More

Timely Justice Key Factor in Dismissal for Delay

In American Environmental Container Corp. v. Kennedy, 2020 ONSC 1662, the plaintiffs’ action was dismissed for delay at a status hearing. The action was commenced in July 2014. There was activity in the case for the first two years of the action. However, there was thereafter a 30 month period in whichRead More

Principles from $2.7 Million Costs Award

In Fram Elgin Mills 90 Inc. v. Romandale Farms Limited et al, 2020 ONSC 1621, the defendant was awarded costs of $2.7 million following a 13 day trial in an action that spanned 12 years. The following principles emerge from the decision: The quantum of costs should reflect an amountRead More

Fridays With Rogers Partners

This morning, at our muffin meeting by videoconference, we discussed a Court of Appeal decision regarding a dispute over whether an insurer was required to pay benefits that were not incurred. We also discussed a Superior Court decision which granted an injunction to nurses at long-term care facilities to beRead More

Plaintiff Who Collapses at Trial Responsible for Costs Thrown Away

By Rebecca Moore Will costs thrown away be awarded when the health of a party necessitated the adjournment of a trial? This was one of the issues examined by Justice Fowler Byrne in Syed v. Petrie, 2020 ONSC 2513 (CanLII). Background This matter proceeded to trial during the January 2020Read More