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Fridays With Rogers Partners

Our lawyers and students meet each Friday in our boardroom for a “muffin meeting”, wherein we discuss new developments in the law and practice management issues. Times are different now due to COVID-19, so we had our first ever muffin meeting by videoconference this morning, and it went very well!Read More

What Civil Matters Will the Court Hear During COVID-19?

In a Notice to the Profession, the Ontario Superior Court of Justice has advised that, during the COVID-19 pandemic, it will hear the following civil matters: urgent and time-sensitive motions and applications, where immediate and significant financial repercussions may result if there is no judicial hearing; and outstanding warrants issuedRead More

Case Dismissed for Delay

By Ankita Abraham, Student-at-Law The court’s decision in Levant v. Gilbert Studios Limited, 2020 ONSC 1528, provides a summary of the test for dismissing an action for delay. The defendant brought a motion to dismiss the plaintiff’s action under rule 24.01(1)(c) of the Rules of Civil Procedure , on theRead More

Practicing Law and Social Distancing: Time to Get Creative

By Emily Vereshchak As lawyers, we are accustomed to adapting to change. Whether it is a new take on an old common law principle or the introduction of a divisive piece of legislation, lawyers must keep pace with the law as it transforms alongside society. However, these changes are oftenRead More

In|Sight – Spring 2020 Newsletter

Our associates and students have worked hard on contributing to our Spring 2020 Newsletter while working remotely during the COVID-19 pandemic. We hope you find the following articles to be of interest: 1.    The Third Time is a Charm; or is it? 2.    Relevancy of Reserves: Kanani v. Economical Insurance 3.    Rights and RemediesRead More

“Operation” of Vehicle and the Per Quod Doctrine

By Micah Pirk O’Connell, Student-at-Law In Faltas v. Macerollo, 2020 ONSC 1450, the defendants brought a summary judgment motion to dismiss the claims of the plaintiff, Mr. Faltas, and Royal Arts Pharmaceutical Inc., the company he worked for. Facts Mr. Faltas’ Lincoln was stopped in the outside lane of aRead More

Suspension of Limitation Periods Due to State of Emergency

The Ontario Bar Association has advised that the Province of Ontario has suspended limitation periods, retroactive to March 16, 2020. The suspension will stay in place for the duration of the Province’s state of emergency declaration. Other timelines are also suspended, but this is subject to the discretion of theRead More

Fridays With Rogers Partners

Trial judges are required to provide reasons that inform the parties, the appellate court, and the public of the result of the case and how the judge reached his or her conclusion. In an appeal, it is difficult to successfully argue that a judge provided inadequate reasons. For example, inRead More

Summary Judgment Granted in Hotly Contested Construction Dispute

By Colleen Mackeigan The Court of Appeal’s decision in 2099082 Ontario Limited v. Varcon Construction Company, 2020 ONCA 202, shows that summary judgment can be granted in cases involving complex factual and contractual issues and disputed expert evidence. The decision serves as an excellent example of what the Supreme CourtRead More

Mo Rajabali in The Lawyer’s Daily

An article written by Mo Rajabali has been published in The Lawyer’s Daily. The article is called “Relief from forfeiture in context of recoverable depreciation“. Mo addresses a Court of Appeal decision involving a dispute over whether an insurer had to pay its insured $3 million in depreciation costs followingRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed a duty to defend application and a dispute over the repayment of a litigation loan. Duty to Defend Application Matthew Umbrio addressed the case of Lincoln (Town of) v. AIG Insurance Co. of Canada, 2020 ONSC 1456. The matter involved an application byRead More

Juror’s Improper Internet Search

By Carol-Anne Wyseman How frequently do jurors conduct their own research of the issues involved in a trial, despite being instructed to not do so? We will never fully know the answer to this. As the Ontario Court of Appeal’s decision in Patterson v. Peladeau, 2020 ONCA 137, shows, improperRead More

Priority Dispute: Parents Not Dependants of Children

By Micah Pirk O’Connell, Student-at-Law The case of The Economical Insurance Group v. Desjardins Insurance, 2020 ONSC 1363, concerned a priority dispute between Economical and Desjardins regarding an elderly couple who suffered catastrophic injuries as pedestrians when they were hit by a motor vehicle. Economical sought to set aside theRead More

Upcoming LAT Conference With Kevin Adams and Alon Barda

Kevin Adams and Alon Barda will be involved in The Advocates’​ Society’s program on Licence Appeal Tribunal Advocacy. The program is on April 8, 2020 in Toronto. Kevin is a co-chair and Alon will be a speaker. Kevin and Alon have extensive experience in handling accident benefits claims. For registration details, click here. *Update:Read More

The Test for Misnomer

The court’s decision in Sora et al v. Emerson Electrical Co. et al, 2020 ONSC 1374, provides a summary of the applicable principles when a plaintiff attempts to substitute a defendant into an action based on misnomer. Justice Corkery referred to a previous decision, which stated as follows: When aRead More

Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a case wherein the defendants sought production of the plaintiffs’ lawyers’ files based on an alleged waiver of privilege. We also went over a costs decision following a trial. Motion for Lawyers’ Files Ankita Abraham discussed the case of Joshi v. Chada,Read More

When Can Police Officers Be Negligent For Laying Charges?

By Andrew Yolles In the interesting decision in Drury v. Cornish, 2020 ONSC 1173, Justice Barnes, writing for the Divisional Court, explored the applicable standard of care for a claim against police in negligent investigation. The plaintiff, Philip Cornish, a criminal defence lawyer, commenced a claim against the OPP andRead More

Municipal Liability for Auto Accident

By Ankita Abraham, Student-at-Law The court’s decision in Lloyd v. Bush, 2020 ONSC 842 dealt with the issue of liability in a collision involving the plaintiff and a defendant truck driver. It was alleged that the municipal defendants, County of Lennox and Addington and the Town of Greater Napanee, wereRead More

Associates Appreciation Dinner

Thank you to our senior partner, Stephen Ross, and his wife, Patricia Ross, for once again welcoming us into their home for our annual Associates Appreciation Dinner. It was a great evening!Read More

Fridays With Rogers Partners

At our muffin meeting, we discussed a decision released yesterday wherein the Court of Appeal upheld a dismissal of a claim involving a trip and fall accident. In Nolet v. Fischer, 2020 ONCA 155, the plaintiff was moving out of his ex-girlfriend’s house when he tripped and fell on aRead More

Application of Tomec at the LAT

By Alon Barda The Licence Appeal Tribunal (“LAT”) recently released the first reconsideration decision applying the Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company.[1] In Tomec, the applicant applied for and was denied attendant care and housekeeping benefits on the grounds that such benefits are not availableRead More

Costly Improper Cancellation of Auto Policy

The court’s decision in Allstate Insurance Company v. Her Majesty the Queen, 2020 ONSC 830, shows that automobile insurers must comply with statutory requirements when cancelling policies, or else there can be costly consequences. In May 2014, Allstate sent the claimant a notice by registered mail that his policy wouldRead More

Erin Crochetière at Trial

Congratulations to Erin Crochetière for a remarkable job cross-examining four witnesses at a trial last week – an impressive feat for a second year lawyer! Erin, along with Brian Sunohara, are counsel for a police force in a claim arising from alleged motor vehicle accident negligence, false arrest, and breach of Charter rights.Read More

Fridays With Rogers Partners

At this morning’s muffin meeting, we reviewed an appeal of a trial judge’s decision to not strike the jury at trial and to not declare a mistrial. We also a reviewed a case addressing what considerations must be taken into account for a lawyer to withdraw from representation of aRead More

Hourly Rate for Self-Represented Parties

In Rubner v. Waddington McLean & Co. Limited, 2020 ONSC 692, Justice Myers allowed a successful self-represented plaintiff to recover costs in the amount of $100 per hour. Justice Myers indicated that the plaintiff is entitled to compensation for time that would otherwise have been spent by a lawyer. TheRead More

Jocelyn Brogan’s Summary Judgment Motion

Jocelyn Brogan was counsel in a summary judgment motion in August 2019, related to claims arising from an accident involving 30 vehicles. Justice George recently released his decision in Haidari v. Seney et al., 2020 ONSC 698. Although Justice George did not dismiss the actions as against our clients, HisRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, we went over a case dealing with a motion for production of an adverse costs insurance policy, and a case addressing the test for cross-examining a witness prior to trial. Motion for Production of Adverse Costs Insurance Policy Matthew Umbrio discussed the case of JamesRead More

When is a Defence to Crossclaim Required?

As a reminder to defence counsel, a crossclaim by a co-defendant needs to be examined to determine whether a defence to crossclaim is required. Unless the crossclaim is only for contribution and indemnity under the Negligence Act, a defence to crossclaim should be entered. In the personal injury realm, co-defendantsRead More

Judgment Granted Against Unidentified Defendants in Defamation Case

People who post defamatory statements on the Internet can be found liable for damages even if their identities are not known at the time of the court hearing. In Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, the defendants posted defamatory statements on a website that was aimed at investors. TheRead More

Insurer Bound by Position on Priority

When an automobile insurer accepts priority for a statutory accident benefits claim, it is very difficult to withdraw or resile from that position except in extreme situations, such as when there is bad faith or deliberate misrepresentation. In Pembridge Insurance Company v. The Sovereign General Insurance Company, 2019 ONSC 7291, the injured claimantRead More

Fridays With Rogers Partners

This morning, at our muffin meeting, we discussed whether a plaintiff can be compelled to travel for a defence medical examination. We also discussed a motion involving a dispute between current and former partners of a law firm. Defence Medical Exam Denied Due to Travel Ankita Abraham addressed the caseRead More

Alon Barda in The Lawyer’s Daily

In an article called “Striking insurance claims against adjusters“, Alon Barda explains why insurance adjusters and other employees generally cannot be personally sued. This article was published in The Lawyer’s Daily.Read More

Rogers Partners Guide to Defending Claims in Ontario

Rogers Partners has prepared a comprehensive booklet called “Defending Claims in Ontario”. The topics covered in the booklet include: an overview of lawsuits in Ontario; cross-border issues; a primer on Ontario auto claims; third party liability coverage in the auto context; and Bill 18 – priority scheme for rental vehicles.Read More

Stephen Ross at The Tricks of the Trade

Stephen Ross co-chaired the Tricks of the Trade conference on Friday. This is a popular event put on each year by The Advocates’ Society. Stephen also moderated an informative panel on potential reforms to the Statutory Accident Benefits Schedule. Stephen is a leader in this area. He’s been part ofRead More

Surveillance and Social Media Evidence

Brian Sunohara spoke at the The Advocates’ Society’s Tricks of the Trade conference. It was a great event with hundreds of attendees. Brian presented on surveillance and social media evidence at trial. Brian was co-counsel in the Ontario Court of Appeal’s latest decision on this topic, Nemchin v. Green. Based on thisRead More

Fridays With Rogers Partners

At our muffin meeting, we discussed a decision which provides a very helpful summary of several important principles of evidence. In particular, in Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2020 ONSC 433, the court stated: The truth-seeking function of the trial creates a starting premise that allRead More

Full Disclosure in Life Insurance Applications

The Court of Appeal released an interesting decision yesterday regarding the need to be fully candid in applications for life insurance. In Mohammad v. The Manufacturers Life Insurance Company, 2020 ONCA 57, the deceased was part of a terrorist group outside of Canada. In 1968, he stormed a civilian aircraft throwingRead More

Discovery Accommodations in Sexual Abuse Cases

Should a person accused of sexual abuse be permitted to sit in on the examination for discovery of the alleged victim? This issue was considered in G.S. v. K.C., 2020 ONSC 210. C.H. alleged that he was sexually abused by a family member when he was a minor. This was denied byRead More

What is the Collateral Fact Rule?

By Brian Sunohara The collateral fact rule is often misunderstood. As indicated by the Ontario Court of Appeal in R. v. A.C., 2018 ONCA 333, the collateral fact rule has “historically suffered from confusion in its application”. In R. v. A.C., the Court of Appeal noted that the collateral factRead More

Can Plaintiffs Refuse to Complete Questionnaires at Defence Medical Exams?

Sometimes plaintiffs will only agree to attend defence medical exams if they do not have to sign anything or complete any forms. In Coll v. Robertson, 2020 ONSC 383, Justice Grace held that this is improper. His Honour said that, when plaintiffs attend defence medical exams, they must complete questionnairesRead More

Tom Macmillan in The Lawyer’s Daily

Tom Macmillan discusses the definition of “household” in a recent article that was published in The Lawyer’s Daily. Tom specifically addresses an interesting Court of Appeal decision involving a homeowners insurance policy.  Read More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed a Court of Appeal decision involving a dispute over the limitation period in an LTD claim. We also went over a Court of Appeal decision which considered whether proper notice was given to the Crown in several class actions. Limitation Period in LTD DisputeRead More

Carol-Anne Wyseman in The Lawyer’s Daily

Carol-Anne Wyseman’s article called “Limitation period for duty to defend applications” was recently published in The Lawyer’s Daily. Carol-Anne provides her views on a surprising Court of Appeal decision.Read More

City of Toronto Not Liable for Skateboarding Accident

In Karpouzis v. Toronto (City of), 2020 ONSC 143, the plaintiff went skateboarding on a trail in a City of Toronto park in the middle of the night. The trail was dark. The plaintiff was 34 years old at the time. He was a very experienced skateboarder. He fell and sustainedRead More

Court’s Intervention Needed for Excessive Noise in Condo

The court’s decision in Metropolitan Toronto Condominium Corporation No. 933 v. Lyn, 2020 ONSC 196, involved two tenants in a high-rise condominium building in downtown Toronto. They are neighbours. After Kalicharan moved into her unit, Rosenstrom began to experience noise issues, such as extremely loud music and loud television shows comingRead More

Motion Denied: Insurer Not Required to Disclose Reserves

On Friday, the court released a decision that will be of interest to insurers and counsel handling first party claims. In Kanani v. Economical Insurance, 2019 ONSC 7201, the plaintiffs brought a motion to compel an insurer to produce reserve information in an accident benefits claim. Justice Nadeau denied thisRead More

Fridays With Rogers Partners

This morning, Meryl Rodrigues conducted an in-firm seminar on pleadings as part of our Litigation Strategy Series. Meryl went over issues to analyze before entering a statement of defence, including: Examining whether the client was properly named; Checking if the claim was issued in time; Assessing whether the court hasRead More

Welcome Back Gemma Healy-Murphy!

Rogers Partners is happy to welcome back Gemma Healy-Murphy! This is Gemma’s first week in the office following her maternity leave.Read More

Vicious Hockey Hit Costs Player $700,000

By Brian Sunohara Emotions can run high in sports, even in recreational adult leagues.  That is understandable due to the competitive nature of many athletes. However, players must play within the rules and spirit of the game.  Failing to do so can result in criminal charges and a significant monetaryRead More

Similar Fact Evidence

Plaintiffs sometimes attempt to rely on similar fact evidence to prove liability. Similar fact evidence is evidence of past misconduct of a defendant for the purpose of inferring that the defendant is liable for the incident in question. Similar fact evidence was addressed in the recent decision of SecurityInChina InternationalRead More

Exclusive Jurisdiction of LAT to Enforce SABS Settlements

In Riggs Estate v. Intact, 2019 ONSC 6846, the terms of a global settlement of a tort claim and an accident benefits claim were agreed to at a private mediation. The claimant unexpectedly died before executing a release and a Settlement Disclosure Notice with respect to the accident benefits claim. TheseRead More

Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a case wherein the lawyers for the plaintiff sought a charging order following a jury trial. We also went over a decision in which one of the issues was the test to withdraw admissions. Charging Order Denied Matthew Umbrio discussed the Court ofRead More

Alon Barda in Canadian Underwriter

Alon Barda was quoted in a Canadian Underwriter article yesterday regarding his opinion on a “highly questionable” special award ordered by the Licence Appeal Tribunal.  The article is called “Did the threshold for special awards against insurers just sink lower?“Read More

No Liability for Unusual Accident at Soccer Game

The trial decision in Onley v. Town of Whitby, 2020 ONSC 20, shows that unfortunate accidents can occur but that no one is liable. The plaintiff was 18 years old and was playing in a soccer game. She sustained an electric shock as she was sitting near a light poleRead More

Section 132 of Insurance Act: Direct Actions Against Insurers

Section 132 of the Insurance Act permits a plaintiff to commence a direct action against an insurer when an insured is liable for injury or damage and fails to satisfy a judgment, except in relation to motor vehicle liability policies. The plaintiff is subject to the same equities as the insurer would haveRead More

Surprising Special Award Against Insurer

A recent decision of the Licence Appeal Tribunal indicates that an insurer cannot simply rely on the opinions of assessors when determining a claimant’s needs. The adjudicator said that the insurer should have considered all relevant medical evidence and should have followed up with the assessors for clarification of theRead More

Test to Re-open Case at Trial

The decision in Loye v. Bowers, 2019 ONSC 7143, involved a jury trial in a personal injury action. Through inadvertence, the plaintiff did not enter his income tax returns into evidence before closing his case. The plaintiff brought a motion to re-open his case. Justice J.R. Turnbull took into account the factors outlined byRead More

Fridays With Rogers Partners

This morning, at our weekly muffin meeting, we discussed two very interesting cases dealing with costs. Apportionment of Costs Between Defendants Matthew Umbrio discussed the Court of Appeal’s decision in Bondy-Rafael v. Potrebic, 2019 ONCA 1026. The action arose out of an accident at a plaza. Two young plaintiffs were struck byRead More

No Opting Back Into Ontario SABS

When an automobile accident occurs outside of Ontario, in particular, in another province or territory of Canada, or in the United States, a claimant may elect to receive either Ontario-level benefits or benefits under the law of the jurisdiction where the accident occurred as if the person was a residentRead More

Happy New Year!

“Learn from yesterday, live for today, hope for tomorrow” – Albert Einstein. Rogers Partners wishes you a happy, healthy, and successful New Year! We hope you’re enjoying the RP Blog. We’ll have lots of updates in 2020!Read More

Limitation Period for Uninsured Automobile Coverage

In Rooplal v. Fodor, 2019 ONSC 7211, the Divisional Court agreed with the decision of the motion judge, Justice Chiappetta, that the limitation period for claims for uninsured automobile coverage only begins to run when the plaintiff makes a claim for indemnity to the insurer and the insurer fails to satisfyRead More

Standard of Review of Administrative Decisions: How the Supreme Court’s New Decision Applies in Ontario

Last week, the Supreme Court of Canada released a landmark decision which outlines a new test for the standard of review of decisions made by administrative bodies and tribunals. Brian Sunohara has written an article called “Standard of Review of Administrative Decisions: How the Supreme Court’s New Decision Applies in Ontario“.Read More

Fridays With Rogers Partners

At our muffin meeting, we discussed a Divisional Court decision which those who handle statutory accident benefits claims have been waiting for. A previous decision of the Financial Services Commission of Ontario caused a great deal of controversy. The arbitrator held that the Minor Injury Guideline (“MIG”) in the Statutory AccidentRead More

Punitive Damages Award Overturned

A decision released by the Court of Appeal yesterday addresses the principles of punitive damages. In Cable Assembly Systems Ltd. v. Barnes, 2019 ONCA 1013, the Court of Appeal noted that punitive damages should only be awarded on an exceptional basis for “malicious, oppressive and high-handed misconduct that offends the court’sRead More

Happy Holidays!

As the year draws to a close, all of us at Rogers Partners would like to wish you a safe and happy holiday season! Thank you to everyone for a great 2019! We’re looking forward to 2020!Read More

From the Desk of Meryl Rodrigues

T’is the season for many things. Yes, of course, it’s the season of festive gatherings, gift-giving and all the feelings espoused in the holiday music playing overhead (or, if you subscribe to a more cynical perspective, the season of crowds, overindulgence and all of the hassles inherent of winter). NoRead More

Ugly Holiday Sweater Day!

There are some amazing sweaters in the office today for Ugly Holiday Sweater Day! After careful and spirited deliberations, the ugly sweater committee is pleased to announce that the winner of this year’s best sweater is Pam de Perio! Pam received a perfect 10 out of 10 for creativity for herRead More

Fridays With Rogers Partners

This morning, we had an “Ugly Holiday Sweater” edition of our weekly muffin meeting. We discussed a Court of Appeal decision involving coverage under a homeowner’s insurance policy. We also went over a decision in which a plaintiff sued a doctor and the Ministry of Health in relation to an allegedRead More

Expert Disclosure at Discovery Stage

In Galea v. Best Water Limited, 2019 ONSC 7213, the defendant requested production of certain “foundational information” of the plaintiff’s expert, including information on the type of testing performed, raw data, and photographs. The requirement to produce “foundational information” is mandated by rule 53.03(2.1) of the Rules of Civil Procedure.Read More

Tricks of the Trade Conference

The annual Tricks of the Trade conference by The Advocates’ Society is coming up on January 31, 2020. Brian Sunohara will be speaking at the conference. His topic is “Surveillance and Social Media Evidence Update”. Brian was one of the lawyers involved in the Court of Appeal’s most recent decision onRead More

Costs Sanctions at Pre-Trial Conference

In Clarke v. Tennant, 2019 ONSC 7222, costs were ordered against one of three defendants at a pre-trial conference. The action arose out of a motor vehicle accident. At a mediation, the defendant, Silcox, was prepared to settle for a significant amount.  However, at the pre-trial conference, Silcox maintained aRead More

In|Sight – Winter 2019 Newsletter

We’re pleased to present the Winter 2019 edition of our quarterly newsletter, In|Sight! There are several interesting articles, which we hope you’ll find to be useful, plus news on the latest happenings at Rogers Partners. The topics in the newsletter are: Limitation Period for Duty to Defend Applications Striking ClaimsRead More

2019 Holiday Party!

Games, prizes, singing, great food, and, most importantly, terrific people. We had it all at our firm holiday party at Bymark! It was a fantastic day!Read More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed the test for admitting an expert’s reply report after the expert has already testified at trial. We also considered a decision which addressed whether the court had jurisdiction over an employee’s LTD claim against her insurer or whether the claim is subject to theRead More

What is Loss of Competitive Advantage?

In Mundinger v. Ashton, 2019 ONSC 7161, one of the issues addressed was the definition of loss of competitive advantage and its relationship with loss of future income. Justice Charney noted that an award for loss of competitive advantage is expressed as damages in recognition of the fact that aRead More