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Delay: Jordan’s Big Effect on Civil Litigation

An article written by Brian Sunohara called “Delay: Jordan’s big effect on civil litigation” has recently been published.[1] The article addresses a case recently heard by the Supreme Court of Canada that may cause further delay to civil litigants. [1] The article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca),Read More

Fridays With Rogers Partners

At this morning’s muffin meeting, Micah Pirk O’Connell discussed a Court of Appeal decision involving underinsured coverage for an automobile accident. In Murphy v. Savoie, 2019 ONCA 784, Aviva provided automobile insurance to Emblem Flowers. The policy included an OPCF 44R endorsement. Emblem Flowers employed Colm Hogan as a delivery vanRead More

Drainage Dispute Between Neighbours

“It is very unfortunate that these neighbours could not have found someway to work this out. Sadly, both sides have incurred significant legal costs and an even more significant amount of stress”. Those were the comments of Justice J.E. Ferguson in a dispute between neighbours in Dawes v. Gill, 2019 ONSCRead More

Lost Oil Tank: Action Dismissed

Brian Sunohara of our firm has handled numerous product liability and environmental claims involving leaks from oil tanks. In some of these cases, the oil tank went missing before it could be fully inspected by experts. Plaintiffs will sometimes argue that the cause of the leak can still be determinedRead More

The $800,000 Question: No Waiver By Insurer

In Bradfield v. Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800, the Court of Appeal disagreed with the trial judge that an insurer waived its right to rely on a policy breach for not conducting thorough and timely investigations. The matter arose out of a motorcycle accident inRead More

Test for Binding Settlements

In Lumsden et al v. The Toronto Police Services Board et al, 2019 ONSC 5052, the court addressed the essential features of a binding settlement: There has to be a mutual intention to create a legally binding contract. The parties must reach an agreement on all the essential terms ofRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, Micah Pirk O’Connell discussed the Court of Appeal’s recent decision in 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753. This was an appeal of a judgment following an application by Rosen Express as against its insurer, Northbridge, for various declaratoryRead More

From the Desk of Alon Barda

Promoting Efficiency in Litigation In my personal life, I am probably best known for having four kids under the age of eight years old. In my legal life, I am certainly best known for being involved as counsel for one of the defendants in a trial (or as it hasRead More

No Underinsured Coverage for Truck Driver

By Brian Sunohara In Kahlon v. ACE INA Insurance, 2019 ONCA 774, the Ontario Court of Appeal held that a commercial truck driver was not entitled to underinsured coverage from either his personal automobile insurer or a fleet insurer. Overview The plaintiff, Kahlon, was involved in a serious accident inRead More

Third Party Claims and Attornment

The Court of Appeal’s decision in Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, describes what a defendant should do if it has a viable third party claim for contribution and indemnity, but wants to challenge whether Ontario is the appropriate forum for the main action. When facedRead More

Demonstrative Aids in Opening Addresses

In Robichaud et al v. Constantinidis et al., 2019 ONSC 5396, there was a dispute over whether plaintiffs’ counsel could make use of demonstrative aids in an opening address to the jury. The particular items in question were photographs showing the plaintiff, her son, and her dog, as well asRead More

Fridays With Rogers Partners

At our muffin meeting this morning, Ankita Abraham discussed a decision in which the Court of Appeal emphasized the requirement for plaintiffs to exercise reasonable diligence in identifying potential defendants. In Rumsam v. Pakes, 2019 ONCA 748, the plaintiff had a wrist injury.  She sued a doctor and a clinicRead More

No Cap on General Damages in Sexual Abuse Claim

In D.S. v. Quesnell, 2019 ONSC 3230, the plaintiff was sexually abused by his step-father between the ages of five and ten. The step-father was criminally convicted of assault, sexual assault, and sexual interference. In a civil action, the plaintiff brought a motion for default judgment against his step-father. Medical evidenceRead More

Cracking Down on Delay

The decision in Sokoloff v. Bateriwala, 2019 ONSC 5442, is another example of the courts cracking down on delay in litigation. The lawsuit in question was commenced in April 2013. It was dismissed for delay by the registrar in April 2018. The plaintiffs sought to set aside the dismissal. This request wasRead More

Is a Psychologist a Physician?

In Rodrigues v. Purtill, 2019 ONCA 740, one of the issues was whether a psychologist is a “physician” for the purpose of proving that the plaintiff meets the statutory threshold in motor vehicle accident claims. In order to meet the threshold of a permanent serious impairment, the applicable regulation requiresRead More

In|Sight – Fall 2019 Newsletter

We’re pleased to present our Fall 2019 Newsletter. We hope you find the following articles to be of interest: Taking Away the Plaintiff’s Right to Sue; Monitoring Commercial Drivers; Endean St. Joseph’s Hospital (ONCA): A Contextual Approach to Partial Settlement Agreements; Life Insurance and Mental Health; Discovery Rights at SmallRead More

Fridays With Rogers Partners

At our muffin meeting this morning, Ankita Abraham discussed an appeal of a Master’s order dismissing a summary judgment motion. The case of Gates v. Gates, 2019 ONSC 5416, arose out of a motor vehicle accident. The defendant argued that the plaintiff missed the limitation period. The Master dismissed the motion,Read More

Test for New Venue

The test for transferring an action to a different jurisdiction was considered in Shokar v. Windsor Casino Limited, 2019 ONSC 5242. The plaintiff commenced a lawsuit in Brampton arising from money that he lost gambling at Caesars Windsor. He lost $342,000 over three days. The plaintiff lived in Mississauga atRead More

Denial of Natural Justice Leads to New LAT Hearing

In a reconsideration decision at the Licence Appeal Tribunal, the claimant successfully argued that a new hearing should be ordered due to a denial of nature justice. In S.A. v. Guarantee Insurance, 2019 CanLII 77002, a combined written and oral hearing was conducted on consent. The matter dealt with entitlementRead More

Court of Appeal Upholds Dismissal for Delay

The Court of Appeal’s decision in Erland v. Ontario, 2019 ONCA 689, shows that the five year deadline to set civil actions down for trial must be taken seriously. A plaintiff who seeks to extend the deadline and prevent an action from being dismissed for delay has the burden ofRead More

SABS Bad Faith Decision Good For Insurers

Kevin Adams was recently quoted in a Law Times article called “Court of Appeal affirms supremacy of Licence Appeal Tribunal”. The article addresses the Court of Appeal’s decision in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615. The Court of Appeal held that statutory accident benefits claimants cannot sue inRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, Matthew Umbrio discussed a case in which the plaintiffs attempted to back out of a settlement. In Huma et al v. Mississauga Hospital and Queensway Health Centre, 2019 ONSC 5115, the plaintiffs commenced a medical negligence lawsuit. A lawyer assisted with drafting the Statement ofRead More

Four Issues From Recent Jury Trial

Brian Sunohara has written an article called “Four Issues From Recent Jury Trial“.  The article summarizes a court decision which examined the following issues: Addressing Unfairness From Partial Settlement Agreements Jury Questions Demonstrative Aids In Opening Addresses Experts’ PowerPoint SlidesRead More

Who is a “Lessee”?

Section 277(1.1) of the Insurance Act outlines the order in which motor vehicle liability policies have to respond to accidents involving rented and leased vehicles. The order is: lessee, driver, and owner. In Aviva Insurance Company v. Wawanesa Mutual Insurance Company, 2019 ONCA 704, the Court of Appeal examined who isRead More

Collision Damage Waiver for Rental Vehicle Invalidated

In Enterprise Rent-A-Car v. Richards, 2019 ONSC 5201, the defendant rented a minivan and purchased an optional Collision Damage Waiver. The vehicle was involved in an accident. The defendant’s son was driving the vehicle with the defendant as a passenger. The son was not an authorized driver under the rental agreement andRead More

Appeal Route for Dismissed Claim When Damages Not Assessed

Section 19(1.2)(d) of the Courts of Justice Act gives the Divisional Court jurisdiction over appeals where: the trial court has dismissed a claim in which the plaintiff had not claimed more than $50,000 exclusive of costs, or the trial court has dismissed a claim and, if the claim had been allowed,Read More

Fridays With Rogers Partners

At our muffin meeting, we discussed a decision released by the Court of Appeal this week which addressed liability for an oil leak and the test for causation. In Donleavy v. Ultramar Ltd., 2019 ONCA 687, the Court of Appeal upheld the trial judge’s apportionment of liability of 40% onRead More

Condo Owner Loses Unit Due to Unruly Tenant

There are risks with renting out condominium units. The case of York Condominium No. 187 v. Sandhu, 2019 ONSC 4779, demonstrates an extreme risk. Sandhu owned a condominium unit. She leased it to a tenant. The tenant was in constant conflict with building management and ultimately sued the condominium corporation (“YCC”) forRead More

Issue Estoppel vs. Abuse of Process

In Peter B. Cozzi Professional Corporation v. Szot, 2019 ONSC 5071, the court went over the differences between the doctrines of issue estoppel and abuse of process. The purpose of both doctrines is to promote finality to litigation. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are toRead More

Three Rogers Partners Lawyers Named in The Best Lawyers

Rogers Partners LLP would like to congratulate the following lawyers named to the 2020 edition of The Best Lawyers in Canada: Stephen Ross – Personal Injury Litigation, Insurance Law Kevin Adams – Insurance Law Anita Varjacic – Personal Injury LitigationRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, Micah Pirk-O’Connell discussed an interesting decision on whether an additional insured is entitled to appoint counsel of its own choosing at the insurer’s expense. In Markham (City) v. AIG Insurance Company of Canada, 2019 ONSC 4977, the plaintiff was struck by a hockey puck whileRead More

Mistaken Settlement Not Set Aside

If a party makes a mistake in entering into a settlement agreement, it is difficult to set the settlement aside. In Kearns v. Canadian Tire Corporation Limited, 2019 ONSC 4946, a settlement was reached at a mediation in a wrongful dismissal claim. Following the mediation, the defendant realized that a paymentRead More

Insurer Estopped From Denying Coverage

The Court of Appeal’s decision in The Commonwell Mutual Insurance Group v. Campbell, 2019 ONCA 668, demonstrates that, if an insurer wants to dispute coverage, it must do so in a timely manner or at least notify its insured of a potential coverage issue. Campbell was involved in an accidentRead More

Negligent Parenting Not Covered Under Auto Policy

In Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656, the Court of Appeal upheld a decision which addressed whether an automobile insurer had to defend a father for negligent parenting. A daughter sued her father arising out of a motor vehicle accident. The daughter alleged that her father wasRead More

No Duty of Care Owed By Doctors to Family Member

Does a doctor owe a duty of care to a family member of a patient? That was one of several questions in the case of Wawrzyniak v. Livingstone, 2019 ONSC 4900. The plaintiff’s father was elderly and was suffering from several illnesses, including gangrene in his legs. Following knee amputation surgery,Read More

Fridays With Rogers Partners

At our muffin meeting this morning, Matthew Umbrio discussed an interesting Small Claims Court decision in St. Lawrence Testing & Inspection Co. Ltd. v Lanark Leeds Distribution Ltd., 2019 CanLII 69697 (ON SCSM). The defendants brought a motion for judgment confirming that the terms of settlement had been satisfied. ThisRead More

The New Crown Liability and Proceedings Act

The Proceedings Against the Crown Act was repealed on July 1, 2019. It has been replaced with the Crown Liability and Proceedings Act, 2019 (“CLPA”). Under section 11 of CLPA, claims are not permitted against the Crown in respect of legislative, policy, and regulatory decisions. Section 17 of CLPA requiresRead More

Priority Dispute for Out-of-Province Claimant

In Intact v. Gore, 2019 ONSC 4508, the court overturned a decision of an arbitrator regarding a dispute between insurers over the responsibility to pay statutory accident benefits to a claimant who was injured in an out-of-province accident. The claimant was a passenger in a single vehicle accident in Alberta. HisRead More

Counsel’s Role in Preventing Humiliated Experts

Brian Sunohara has written an article called “Counsel’s Role in Preventing Humiliated Experts“. Brian discusses a recent court decision involving an expert who was testifying for the first time. The trial judge found the expert to be biased and unfamiliar with his role as an expert witness. Justice Tzimas emphasizedRead More

No Interim SABS

In T.K. v. Allstate Insurance, 2019 ONLAT 18-007113/AABS, the Licence Appeal Tribunal (“LAT”) confirmed that it does not have jurisdiction to award interim statutory accident benefits, unlike the previous FSCO regime. This is consistent with a prior decision of the LAT. The adjudicator agreed with the insured that the Tribunal’sRead More

Fridays With Rogers Partners

Our articling students did a great job this morning at our muffin meeting! Ankita Abraham addressed the decision in Maria-Antony v. Ivaschenko, 2019 ONSC 4731. The defendants brought a motion for leave to conduct a second psychiatric assessment of the plaintiff. The plaintiff attended a defence psychiatry assessment in 2015. TheRead More

Common Issues in the Automobile Litigation Process – A Primer for Insurance Professionals

Stephen Ross, Tom Macmillan, and Erin Crochetière have prepared a handy resource called “Common Issues in the Automobile Litigation Process – A Primer for Insurance Professionals“. The slides provide a high level, basic overview of defending automobile claims, in particular: Jurisdictional Issues Pleadings Liability Damages Collateral Benefits Prejudgment Interest CostsRead More

The Use of Surveillance at Trial – Abridged Article

We have written an abridged version of our recent article, “The Use of Surveillance at Trial“. In the article, Stephen Ross, Brian Sunohara, and Meryl Rodrigues say that a recent Court of Appeal decision will make it less onerous for defendants to rely on surveillance at trial. The Court of AppealRead More

Damages for Complex Regional Pain Syndrome

In Noiles v. MTD Products Inc., 2019 ONSC 4642, the plaintiff was putting air into a tire of a snow thrower when the tire rim exploded. He was 39 years old at the time. Pieces of the fractured rim and tire struck the plaintiff’s right shin. He sustained bruising andRead More

Successful Motion for Further Discovery

In Leendertse v. OPP, 2019 ONSC 4661, the court granted a further discovery of the plaintiff one month prior to trial. The plaintiff provided information and documentation following his initial discovery that suggested a change in his work status. Justice S.K. Campbell stated that, to avoid the defendants being unpreparedRead More

Amendments to Rules on Lawyers’ Removal From Record

Due to amendments to the Rules of Civil Procedure which came into effect on January 1, 2019, motions by lawyers to be removed from the record must be made on notice to all parties. Previously, lawyers only had to provide notice to their own clients. Rule 15.04(1.1) indicates that only the notice ofRead More

Fridays With Rogers Partners

Ankita Abraham discussed the court’s decision in Walker v. Canada, 2019 ONSC 4578, at this morning’s muffin meeting. The plaintiff alleged that he injured his left knee at a worksite while he was incarcerated in a federal penitentiary. The plaintiff argued that the federal government was negligent in the maintenanceRead More

Scale of Costs Thrown Away

Costs thrown away are the payment of a party’s costs for wasted preparation for a trial or other hearing, such as when there is an adjournment or a mistrial. Counsel often assume that costs thrown away are fixed on a partial indemnity scale, and the courts often award costs thrownRead More

Timing of Motions to Strike Affidavit Evidence

Affidavits in support of motions and applications are not permitted to contain legal argument and opinions (except in rare cases where a legal opinion may be relevant to the hearing, such as proving foreign law), nor can they contain comments on the legal position of the opposite party. Rule 4.06(2)Read More

SABS Claim Barred Due to Failure to Comply With Production Requests

A recent decision of the Licence Appeal Tribunal shows that, if insureds do not comply with insurers’ production requests in a timely manner, they may be barred from receiving statutory accident benefits. In I.A. v. TTC Insurance Company Limited, 2019 ONLAT 18-004128/AABS, attendant care benefits and non-earner benefits were in dispute. The insurerRead More

Fridays With Rogers Partners

This morning at our muffin meeting, Brian Sunohara led a group discussion on the impact of the Court of Appeal‘s decision in Nemchin v. Green, 2019 ONCA 634, which was released earlier this week. Our firm represented the appellant on the appeal. We have written a detailed article containing aRead More

Claims Against Educational Institutions

The Supreme Court of Canada recently dismissed an application for leave to appeal in the case of Lam v. University of Western Ontario. The plaintiff was a Ph.D. student in biochemistry at the University of Western Ontario. His academic supervisor unexpectedly died. The plaintiff was then supervised by a supervisory committee. TheRead More

The Use of Surveillance at Trial

The Court of Appeal released a decision today in Nemchin v. Green, 2019 ONCA 634.  The decision deals with a dispute over the exclusion of surveillance evidence and Facebook posts at trial. Stephen Ross, Brian Sunohara, and Meryl Rodrigues were counsel on appeal for the appellant. The Court of Appeal held that theRead More

Non-Responsive Plaintiff’s Case Dismissed

Meryl Rodrigues was successful in a motion to dismiss an action today. Meryl made repeated attempts to move the action forward, without any response from plaintiff’s counsel. As a result of the lack of response, Meryl unilaterally scheduled a discovery of the plaintiff. The plaintiff failed to attend the discoveryRead More

A Primer on Hearsay

A thorough understanding of hearsay is important for all litigators. Brian Sunohara has written an article called “A Primer on Hearsay“. The article addresses some of the basic principles of hearsay. Brian covers the following topics: What is Hearsay? Traditional Exceptions to the Hearsay Rule Principled Exceptions to the HearsayRead More

Discoveries of Corporate Parties: Who to Produce?

At an examination for discovery of a corporate party, the deponent does not necessarily need to have personal knowledge of the matters in issue. The key thing is whether the deponent properly informed himself or herself. In Boville v. The York Club, 2019 ONSC 4335, plaintiff’s counsel served a notice ofRead More

Fridays With Rogers Partners

At our muffin meeting this morning, we had a great group strategy session on discoveries. We also discussed Tom Macmillan’s court appearance yesterday at an interesting hearing involving a dispute over the sale of certain products at retail stores. Matthew Umbrio went over the court’s decision in Farrugia v. AhmadiRead More

When Can an Insurance Policy Breach Be Forgiven?

Strict compliance with an insurance policy is not necessarily required for an insured to recover under the policy. Two of the main considerations in determining whether an insured should be relieved of a breach of a policy are the seriousness of the breach and prejudice to the insurer. Brian SunoharaRead More

Lawyers’ Professional Duties

In Blake v. Blake, 2019 ONSC 4062, Regional Senior Justice Daley provided a detailed overview of a lawyer’s professional duties to keep up to date on case law and to bring relevant authorities to the court’s attention. Disclosure of Authorities Counsel have a positive duty to make full disclosure of allRead More

Bad Faith and Statutory Accident Benefits

By Kevin Adams In Stegenga v. Economical Mutual Insurance Company, the plaintiff brought a court action seeking damages related to the administration of her accident benefits claim based on alleged bad faith, negligence and fraud on the part of her insurer, Economical. The defendant brought a Rule 21 motion toRead More

Cross-Examining Plaintiffs on Collateral Benefits

By Brian Sunohara In a trial of a motor vehicle accident action, deductions for collateral benefits are determined by the trial judge after the jury’s verdict. The jury is not permitted to deduct collateral benefits in its assessment of damages. The Issue A question then arises on whether defence counselRead More

Fridays With Rogers Partners

It was great to see two of our new articling students present cases at our muffin meeting this morning. They did a fantastic job! Ankita Abraham discussed the Court of Appeal’s decision in Hengeveld v. The Personal Insurance Company, 2019 ONCA 497. The defendant insurer commenced a third party claimRead More

SCC Denies Leave in Limitations Case

In a judgment released today in the case of Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., Brian Sunohara was successful in a Supreme Court of Canada leave to appeal application. Brian acted for an HVAC company that installed an HVAC system at the plaintiffs’ house. The plaintiffs alleged that thereRead More

Winning Plaintiff Denied Costs

In Mahood v. Walsh, 2019 ONSC 4312, Justice Heeney declined to order any costs despite finding that the plaintiff “clearly won” the trial. The plaintiff was awarded $72,500 in damages and interest, which was less than the defendants’ offer to settle of $90,000. However, Justice Heeney held that the defendants’Read More

Test for Setting Aside Default Judgments

In Kaur v. Janeallam, 2019 ONSC 4249, Master Muir outlined the test to set aside a default judgment, as previously stated by the Court of Appeal in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194: whether the motion was brought promptly after the defendant learned of the default judgment;Read More

An Evening to Celebrate

Friday night was the perfect time to celebrate our new articling students’ first week at the firm! Ankita Abraham, Micah Pirk O’Connell, and Matthew Umbrio are learning the ropes and settling in nicely. We also celebrated the call to the bar of our newest associate, Colleen Mackeigan. Colleen had a greatRead More

Fridays With Rogers Partners

This morning at our muffin meeting, Brian Sunohara discussed the Court of Appeal’s decision in Dermann v. Baker, 2019 ONCA 584. The defendants had made an offer to settle of $150,000 in a motor vehicle accident case. This offer was not accepted, and the jury awarded the plaintiff just overRead More

Liability Admissions in Sexual Abuse Claims

David M. Rogers
An article written by David Rogers, entitled “Liability admissions in sexual abuse claims“, has been published by Canadian Employment Law Today. In the article, David says: “the Ontario Court of Appeal has confirmed that the standard for an award of punitive damages is very high. There must be egregious conductRead More

Drinking and Driving: Accident After Work Party

Commercial hosts, such as banquet halls, must take steps to prevent over-service of alcohol and to stop guests from drinking and driving. In Eastwood v. Walton, 2019 ONSC 4019, an insurance company held a staff Christmas party at a banquet hall. Following the party, an employee of the insurance company, Walton,Read More

Mould in Condo Unit: Who’s Responsible?

By Brian Sunohara The case of Brasseur v. York Condominium Corporation No. 50, 2019 ONSC 4043, outlines the respective responsibilities of a condominium corporation and a unit owner. Duty to Maintain and Repair Condominium corporations have a duty to maintain and repair the common elements. On the other hand, theRead More

Introducing Our New Articling Students

We’d like to extend a very warm welcome to our new articling students! Ankita Abraham, Matthew Umbrio, and Micah Pirk O’Connell started at Rogers Partners today. Ankita, Matthew, and Micah worked very hard in law school and are now entering the final phase before becoming lawyers. Congratulations on making itRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, Robert Forderer led a group conversation on expert witnesses, particularly, disclosure obligations. This discussion arose from the court’s decision in Edwards v. McCarthy, 2019 ONSC 3925. Justice Stinson held that, at the pre-trial stage, instructing letters from counsel to an expert and the documents givenRead More

Ex Turpi Causa and an Insurer’s Anti-Fraud Initiative

By Brian Sunohara The doctrine of ex turpi causa provides that a person cannot pursue a legal remedy if it arises in connection with the person’s own illegal act. For example, you cannot commit murder and then seek to recover under the victim’s life insurance policy. As another example, twoRead More

WICC Golf Tournament

Rogers Partners is delighted to sponsor and participate in the Women In Insurance Cancer Crusade 20th Annual Golf Tournament. It’s a great day to golf and to support an important cause!Read More

Expert Opinions: What Needs To Be Disclosed?

In Edwards v. McCarthy, 2019 ONSC 3925, Justice Stinson overturned the decision of a Master, in which the Master made the following order in relation to a defendant’s expert report: Production of documents or disclosure of information that demonstrate the instructions on which the expert proceeded Production of documents orRead More