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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 Dale v. Attorney GeneralRead 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

Four Expert Issues From Trial

In Sit v. Trillium Health Centre, 2020 ONSC 2458, Justice Trimble addressed several issues related to expert evidence at trials. Expert Report as an Aide Memoire Justice Trimble confirmed that, unless a medical report is tendered as a medical expert’s evidence-in-chief in place of oral testimony, the report has noRead More

Ontario Court of Appeal Addresses Important Trial Practice Issues

By Brian Sunohara In Girao v. Cunningham, 2020 ONCA 260, the Ontario Court of Appeal addressed several important issues regarding trials, particularly in personal injury actions. These issues include the use of joint document books; introducing evidence of participant experts and non-party experts; the distinction between section 35 and sectionRead More

Fridays With Rogers Partners

This morning, Logan Cooper of Cooper Mediation presented us with an engaging webinar on mediation strategies. Logan has written a comprehensive and very helpful article called “Getting the Most Out of Your Mediation“. The article addresses the following topics: Setting Up Your Mediation Picking Your Mediator Preparing For Mediation: CaseRead More

SCC Grants Leave in Ontario Insurance Dispute

The Supreme Court of Canada granted leave to appeal today in a case that could have important implications on the issues of waiver and estoppel in insurance disputes, including the extent to which insurers have to conduct investigations in a timely manner to examine potential coverage violations. It is rareRead More

Can a Dog Owner Be Liable to a Dog Walker?

By Brian Sunohara Dog walking services have become fairly common in recent years. When dog owners are away from home, they do not want their dogs to be trapped inside all day. For extended periods away from home, dog owners will sometimes send their dogs to dog camps or boardingRead More

Update on Suspension of Civil Jury Trials

In a Notice of the Profession released yesterday, the Ontario Superior Court of Justice announced that it will not be hearing any civil jury trials until September 2020 at the earliest. The Court will provide a further update in early May. Each region of the Court will consider how itRead More

Final Transition from FSCO to LAT in Accident Benefits Disputes

Statutory accident benefits disputes that were commenced at the Financial Services Commission of Ontario (“FSCO”) will be extinguished on July 1, 2020. This applies to mediations, arbitrations, appeals, and applications for a variation or revocation of an order. If, on July 1, 2020, an order has yet to be issued inRead More

Insurance Policy vs. Insurance Contract

In Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222, the Ontario Court of Appeal stated that, although the words “insurance policy” and “insurance contract” are often used interchangeably, there are important distinctions, and conflating the two can cause considerable confusion. No legal obligations are created by the mereRead More

Fridays With Rogers Partners

At this morning’s muffin meeting by videoconference, we discussed a decision regarding the limitation period for third party claims and a decision involving approval of the discontinuance of a class action. Third Party Claim Commenced Too Late Ankita Abraham addressed the case of London Transit Commission v. Eaton Industries (Canada)Read More

Charter Breaches Against G20 Protester Lead to $500 in Damages

By Brian Sunohara In a decision released by the Ontario Court of Appeal today, one of the issues was the quantum of damages available to a plaintiff when there is a breach of the Canadian Charter of Rights and Freedoms. The decision shows that damages are usually minimal. Background InRead More

A Caution on Misnomer

By Meryl Rodrigues The doctrine of misnomer seems, more often than not, to be quite generously applied to permit litigants to add (or, more accurately, “substitute”) parties to an action, generally well after the expiry of the presumptive two year limitation period. The doctrine permits the amendment of a pleadingRead More

Offer of Without Costs Dismissal: Defendant Did Not Play Hardball

By Brian Sunohara Defendants and insurers are sometimes criticized if they refuse to offer a monetary amount to settle an action. However, a recent court decision shows that they should not fear doing so if their position is supportable. In Mundinger v. Ashton, 2020 ONSC 2024, Justice Charney referred toRead More

Happy Long Weekend

All of us at Rogers Partners wish you a healthy, safe, and happy long weekend. Our thoughts are with everyone who has been affected by the COVID-19 pandemic. We’ll all pull through this together.Read More

Failure to Attend Insurer’s Exams Fatal to SABS Claim

In A.U. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-000276/AABS, the insurer denied a treatment plan for a chronic pain assessment and gave notice to the claimant to attend in-person assessments to determine if the denied treatment plan was reasonable and necessary. The claimant did not attend the assessments. Her counsel advised theRead More

The Rights of Action of an Unborn Child

By Gemma Healy-Murphy While a “wrongful life” claim is a novel question of law, it is certainly not a rare one. Such a claim has been examined by the Canadian courts on several occasions and, most recently, by the Ontario Superior Court of Justice in Florence v. Benzaquen[1]. What isRead More

Two Key Points on Offers to Settle

Take an instance where defence counsel e-mails plaintiff’s counsel with a settlement offer of, say, $200,000 plus costs.  The plaintiff’s lawyer e-mails back to reject the offer and to make a counter-offer. The defendant’s lawyer subsequently obtains surveillance which completely undermines the plaintiff’s case.  The surveillance is sent to theRead More

Guidance on Scheduling Urgent Court Matters During COVID-19

In Wang v. 2426483 Ontario Limited, 2020 ONSC 2040, Justice Myers provided instructions related to the scheduling of urgent court matters during the COVID-19 pandemic. His Honour implored parties and counsel to stop clogging up the Motion Coordinator’s email. Justice Myers stated that counsel should not provide detailed submissions on theRead More