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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