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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

Rogers Partners Authors Chapter in New Civil Procedure Text

Civil Procedure & Practice in Ontario (CPPO) is a new text written by a team of 135 litigators and experts in Ontario civil procedure. It explains the Rules of Civil Procedure, the Courts of Justice Act, and the Limitations Act, along with the case law interpreting them. Professor Noel SempleRead More

The Interpretation of Standard Form Insurance Policies: $56 Million Award Overturned

By Natalia Sheikh The recent Court of Appeal decision in MDS Inc. v Factory Mutual Insurance Company discusses the interpretation of standard form insurance contracts and coverage in all-risk policies.[1] Background In MDS, the insurer appellant, Factory Mutual Insurance Company (“FM Global”), issued an all-risk insurance policy (“the Policy”) toRead More

Jennifer Singh Joins Rogers Partners

We’re happy to welcome Jennifer Singh to Rogers Partners as an associate lawyer! Jennifer joins us from the in-house legal department of an insurance company where she handled numerous bodily injury and accident benefits claims.Read More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision in Johnson v. Jevco, 2021 ONSC 4870. This case concerned an appeal of a decision made by the License Appeal Tribunal (“LAT”), finding that the applicant/respondent was entitled to statutory accident benefits (“SABs”) as he was insured at the timeRead More

Dismissal for Delay Upheld on Appeal

In Lumaj v. St. Michael’s Hospital, 2021 ONSC 5786, the Divisional Court upheld a dismissal of a lawsuit for delay. The registrar had dismissed the lawsuit in May 2013. The plaintiff’s former lawyer did not take steps to set aside the dismissal. The plaintiffs themselves first learned of the dismissalRead More

A Caution on Choice and Timing of Defence Medical Experts

By Meryl Rodrigues The recent Superior Court motion decision in Mitsis v. Holy Trinity Greek Orthodox Community of London[i] speaks to the importance of defence counsel properly considering strategy when arranging a medical examination of a plaintiff – both with respect to timing of such an examination and to theRead More

Occupiers’ Liability Claim Dismissed

In Massaroni v. Yum! Brands Inc., 2021 ONSC 5460, the court dismissed the plaintiff’s action in a matter involving an occupiers’ liability claim. The plaintiff was walking from a parking lot of a KFC store to a TD Bank.  There was a barrier separating two properties. The barrier was comprisedRead More

Vaccination Required to Serve on Jury in Upcoming Trial

The trial judge in an upcoming trial has ruled that, in order to serve on the jury, the jurors must be fully vaccinated against COVID-19. In R. v. Frampton, 2021 ONSC 5733, Justice Phillips stated that, “in the context of the burgeoning ‘fourth wave’, allowing an unvaccinated person to serveRead More

Fridays With Rogers Partners

At our weekly firm meeting, Michael Kryworuk discussed the case of Sarta v. Mazo, 2021 ONSC 5660. History of the Litigation This matter arises from an action commenced by the Plaintiff, Mr. Sarta, against the Defendants, his former lawyers, for breach of contract and negligence in handling his tort andRead More

Multiple Lawyers from Rogers Partners in The Best Lawyers in Canada

Rogers Partners LLP is pleased to announce that the following lawyers have been selected for inclusion in the 2022 edition of The Best Lawyers in Canada™:  Stephen Ross, Kevin Adams, Anita Varjacic, Brian Sunohara, and David Rogers.Read More

Court Confirms Jury Not To Be Advised of Statutory Deductible

One of the issues in Rumney v. Nelson, 2021 ONSC 5632, was whether the jury should be advised of the statutory deductible in a motor vehicle accident trial. Justice Fowler Byrne confirmed that the jury should not be so advised. Section 267.5(7) of the Insurance Act indicates that damages forRead More

Clarity at Last – Extension of Limitations Periods at the LAT

By Alon Barda There has been much confusion regarding the applicability of s.7 of the Licence Appeal Tribunal Act[1] (the “LAT Act”) in recent years. This was finally put to rest with the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company[2]wherein it was held that theRead More

Limitation Period and Discoverability in Unidentified Motorist Claims

By Alon Barda and Natalia Sheikh The Ontario Court of Appeal’s decision in Rooplal v. Foder, 2021 ONCA 357 addresses the time period that applies in unidentified motorist claims pursuant to s. 265 of the Insurance Act[1] and Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (“Regulation 676”). Facts The plaintiffRead More

Fridays with Rogers Partners

At our weekly meeting, Annie Levanaj discussed the recent decision of the Ontario Superior Court of Justice in Skoblenick v Aviva General Insurance Company, 2021 ONSC 5340. This decision concerned motions brought by both parties for directions and costs regarding repeatedly adjourned examinations for discovery. History of the Litigation ThisRead More

The Rule in Browne and Dunn

By Brian Sunohara Every litigator needs to be familiar with the rule in Browne and Dunn. In Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 4046, the court went over the principles of this rule. Overview of the Rule The rule in Browne and Dunn requires a cross-examining lawyerRead More

The “Appropriateness of Bringing a Claim” within the meaning of the Limitations Act

By Gemma Healy-Murphy The Ontario Court of Appeal recently considered s. 5 of the Limitations Act, 2002 and provided a helpful reminder of the principles governing discoverability of claims, including the factor set out in s. 5(1)(a)(iv) regarding the appropriateness of bringing a proceeding: 5 (1) A claim is discovered on theRead More

From the Desk of Athina Ionita

Equity, diversity and inclusion have always been incredibly important to me as a person of Romanian heritage. Further, growing up in a diverse Toronto east-end neighbourhood has entrenched my appreciation for the value and positive contributions that diversity can bring to a community.   This is why it is especiallyRead More

Rogers Partners Summer 2021 Newsletter

The Summer 2021 edition of our newsletter, In|Sight, is here! We hope you find the following topics to be of interest: New High-Water Mark for Loss of Care, Guidance & Companionship Damages; No Duty of Care Between Employer and Family Members of Deceased Employee; The Rule in Browne and Dunn;Read More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Superior Court of Justice in Merritt v. London Health Sciences Centre, 2021 ONSC 4351. This decision concerned a motion by the plaintiffs to examine non-parties for discovery, which was heard on June 14, 2021. Facts The motionRead More

Court of Appeal Upholds Dismissal of Wrongful Life Claim

In a previous article, we discussed a decision in which the motion judge dismissed a “wrongful life” claim. A wrongful life claim is a claim asserted by a child for a pregnancy that results in birth defects, where the child argues that, but for the negligence of the doctor, theRead More

Legal and Factual Causation in Medical Negligence Cases

By Erin Crochetière In Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, the Court of Appeal for Ontario considered issues of factual and legal causation in the context of medical negligence cases involving competing expert evidence. Overview The plaintiff, Armineh Hacopian-Armen, died on August 24, 2011, as a result of StageRead More

Procedure When Court Inadvertently Does Not Consider Written Submissions

In Derenzis v. Ontario et al., 2021 ONSC 5355, the defendant sought a dismissal of the action under rule 2.1.01 of the Rules of Civil Procedure, which indicates that the court may stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious orRead More

Motorcycle Found to Be “Newly Acquired Automobile”

In Johnson v. Jevco, 2021 ONSC 4870, a statutory accident benefits claimant had an automobile insurance policy with Jevco for a Chevrolet Silverado. He bought a motorcycle and contacted his broker to request a quote to insure the motorcycle. He was advised that Jevco does not underwrite motorcycle insurance andRead More

Fridays with Rogers Partners

At our weekly meeting, Michael Kryworuk discussed the recent Superior Court decision in Dentons Canada LLP v. Khan, 2021 ONSC 5261. This decision concerns a motion by the Defendant, Mr Khan as a self-represented litigant, to set aside both a noting in default and default judgement obtained against him byRead More

Welcome to Our New Students!

We’re excited that our new articling students have started with the firm! Welcome to Michael Kryworuk, Annie Levanaj, and Pip Swartz.Read More

Court Declines to Recognize Novel Duty of Care between Employer and Family Members of a Deceased Employee

By Emily Vereshchak In Sigurdson et al v. Norboard Inc. et al, 2021 ONSC 5193,the Superior Court of Justice declined to recognize a duty of care between the employer of a deceased individual and his family members. The Court stated that negligence alone should not open the gates to liabilityRead More

SCC Allows Appeal in Interpretation of Release in MVA Claim

In a previous blog post, we advised that the Supreme Court of Canada granted leave in a matter involving the interpretation of a release in a motor vehicle accident claim. The appeal was argued and the Supreme Court has rendered a decision in Corner Brook (City) v. Bailey, 2021 SCCRead More

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the recent Superior Court decision in Letchumanan v Jeyaseelan et al., 2021 ONSC 5253. In this decision, the defendant brought a motion to compel the plaintiff to attend a defence psychiatric evaluation in September 2021. History of the Litigation This action arose asRead More

Extension of Small Claims Court Adjournments

The Small Claims Court previously adjourned hearings to August 3, 2021. In a notice issued yesterday, the Court advised that the period of adjournment is now extended to September 1, 2021, or to such other date as determined by the Court. This applies to all Small Claims Court proceedings that:Read More

Small Claims Court Elaborates on Scope of New Privacy Tort

By Chris MacDonald In 2018, a new tort of public disclosure of private information was recognized by the Ontario Superior Court in Jane Doe 72511 v N.M., 2018 ONSC 6607. In this decision, the defendant was found liable for uploading an intimate video of the plaintiff on an explicit websiteRead More

Appeal Route for Dismissed Claim

There is sometimes confusion over which court to appeal to, and the Courts of Justice Act and the Rules of Civil Procedure need to be closely examined. In Pullano v. Hinder, 2021 ONSC 4714, the Divisional Court addressed the appeal route for a claim that is dismissed. The plaintiff suedRead More

Small Claims Court Defamation Judgment Overturned

In Welch v. Quast, 2021 ONSC 5083, Justice Tranquilli allowed an appeal of a Small Claims Court judgment that awarded the plaintiff damages for defamation. The purported defamatory statements were contained in e-mails the defendant sent in February 2016. The plaintiff amended his claim to plead defamation in March 2019.Read More

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the recent Superior Court decision in Fernandez v. Toronto (City of), 2021 ONSC 5106. In this decision, Justice Perell considered a summary judgment motion brought by the defendants to dismiss the plaintiff’s action. Facts On the morning of December 11, 2014, after aRead More

Court Denies Leave to Late File Jury Notice

In Schram v. Loughrey, 2021 ONSC 5018, defence counsel inadvertently did not file a jury notice, contrary to the defendant’s insurer’s litigation guidelines. The statement of defence was delivered on June 28, 2018. The oversight was discovered on or around September 25, 2018. Due to a “miscommunication” within the client’sRead More

LAT has Jurisdiction to Extend SABS Limitation Period

By Athina Ionita In Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997, the Divisional Court held that the Licence Appeal Tribunal (the “LAT”) has the power, under section 7 of the Licence Appeal Tribunal Act (the “LAT Act”), to extend the two-year limitation period under section 56 ofRead More

Court Determines Ownership of Pet Dog

In Duboff v. Simpson, 2021 ONSC 4970, following a couple’s separation, the court was asked to resolve a dispute over ownership of a dog. The applicant and the respondent are both lawyers. The applicant had always wanted a rescue dog and eventually found a boxer. The respondent was working 12Read More

Test for Ordering Plaintiffs to Attend Defence Medical Examinations

In Chandrababu v. Tharmalingham, 2021 ONSC 4885, the court ordered the plaintiffs the attend defence medical examinations even though the trial was less than three months away. The reason was that the plaintiffs had recently served several expert reports and had recently provided the records of a treating psychiatrist. One plaintiff had already attendedRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a costs decision by the Superior Court in Gallo v 1884735 Ontario Inc., 2021 ONSC 4895. Facts The plaintiffs sought two million dollars in damages for demolition and construction costs of a partially constructed home that was left unprotected and damaged by weather. TheRead More

Choice of Corporate Representative for Discovery

An examining party has a prima facie right to select the corporate officer, director, or employee to be examined for discovery, and the court will not lightly interfere with the selection. The onus is on the corporation to show that the person selected is inappropriate. In Mohotoo v. Humber River Hospital, 2021Read More

Amendments to Court of Appeal Practice Direction

Last week, the Court of Appeal amended its “Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic“. Many of the amendments address the electronic filing of documents. At present, all documents must be filed electronically. Paper copies are not required. Documents must comply with namingRead More

Default Judgment Set Aside

In 2545890 Ontario Ltd. v. Cambium Inc., 2021 ONSC 4813, the defendant sought to set aside a noting in default and default judgment. The action was commenced in August 2019. An insurance adjuster was retained on behalf of the defendant to investigate the claim. In November and December 2019, the plaintiffs’Read More

Suganiya Sivabalan Wins Motion

Suganiya Sivabalan was successful in a motion last week. Our firm represented the defendants in an action that settled. Following the settlement, the plaintiff would not provide a release. Earlier this year, we brought a motion to enforce the settlement and were successful. The plaintiff was ordered to provide the executedRead More

Fridays with Rogers Partners

This morning at our weekly firm meeting, we discussed the case of Andrews et. al v. Pattison, 2021 ONSC 4757. Rebecca Moore recently wrote a detailed article about this case. The plaintiffs sued a doctor, alleging medical malpractice. On a summary judgment motion, the action was dismissed because the plaintiffsRead More

Timing of Jury vs. Non-Jury Trials in Toronto

In Chandarpal v. Ferreira, 2021 ONSC 4622, a civil jury trial was scheduled for the June 2021 sittings in Toronto, but it did not proceed due to a Notice to the Profession which suspended jury trials until July 5, 2021 at the earliest. In early June, the plaintiff brought aRead More

Discoverability of Medical Malpractice Claims

By Rebecca Moore In the context of a medical malpractice case, when is a claim discoverable by a plaintiff, so as to begin the running of the limitation period?   This issue was examined in the recent decision of Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII). In thisRead More

Alon Barda Wins Priority Dispute

Alon Barda was recently successful in a priority dispute arbitration. The decision in Aviva v. State Farm, Commonwell, and Chubb was rendered by Arbitrator Bialkowski. The decision addresses a number of issues, including whether the claimant was an “occupant” of her mother’s vehicle, whether the claimant was financially dependent on herRead More

Superior Court Clarifies Gowning Requirements

The Ontario Superior Court of Justice updated its Notice to the Profession and Public Regarding Court Proceedings last week to clarify gowning requirements. Gowns are not required for virtual proceedings. For in-person proceedings, counsel must comply with paragraphs 59 to 61 of the Consolidated Practice Direction. Unless specified by aRead More

Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision in Arksey v Sky Zone Toronto, 2021 ONSC 4594. In that case, the defendant moved for a summary judgment motion to dismiss the plaintiff’s claim for damages for personal injury. The plaintiff was injured when attending at the defendant’s premises,Read More

New High-Water Mark for Loss of Care, Guidance & Companionship Damages

By Meryl Rodrigues In the recently released decision by the Court of Appeal in Moore v. 7595611 Canada Corp., 2021 ONCA 459, the Court upheld a jury award for damages for loss of care, guidance and companionship (among other heads of damages) awarded to the parents of an adult childRead More