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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

Five Factors to Set Aside Dismissal of Appeal for Delay

In Davies v. The Corporation of the Municipality of Clarington et al, 2019 ONSC 6895, Justice Woodley went over the test to set aside a registrar’s order dismissing an appeal for delay. The test is: whether the appellant had an intention to appeal within the time for bringing an appealRead More

Updated Lawyer Bio Photos

We’ve just updated our website bio photos. Check out our new Our Lawyers page!  Read More

Can Condos Stop Smoking on Balconies?

In Wellington Condo. Corp. No. 31 v. Silberberg et al, 2019 ONSC 6594, the Silberbergs smoked on their balcony from time to time. The condominium’s rules permitted smoking on balconies. However, the condominium began to receive complaints about smoking from other people living in the building. Due to the complaints, the applicableRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed the test to set aside a default judgment. We also went over a Divisional Court case that addressed the effect of a sealing order on subsequent litigation. Setting Aside Default Judgments Ankita Abraham went over the five-part test to set aside a default judgment:Read More

Kudos to Nancy Buronyi!

Rogers Partners would like to give very special recognition to one of our legal assistants, Nancy Buronyi. For the past 25 years, Nancy has organized the charity events at our firm. This includes the annual Salvation Army Toy Drive, charity potluck lunches, and Casual Fridays for charity. Due to Nancy’sRead More

Exclusion From Discoveries

Parties to a lawsuit usually have the right to be present at the discoveries of all other parties. However, the court has discretion to order otherwise. In Findlay v. Yagminas, 2019 ONSC 6743, the court outlined the factors to consider in determining whether co-parties should be excluded from each other’s discoveries.Read More

Discoveries: Who Goes First?

Generally, the first party to serve a sworn affidavit of documents and a notice of examination is entitled to examine the opposing party for discovery before being examined himself or herself. However, the decision in Lambert v. Maracle, 2019 ONSC 7003, shows that, in order to rely on this rule,Read More

Employee Appreciation Celebration – 25 Years!

We had a fun employee appreciation wine and cheese yesterday as part of our 25th anniversary celebrations! In 1994, Rogers, Moore opened its doors after our founding partners wanted to start a new venture and decided to leave Osler, Hoskin & Harcourt. In 2005, Patrick Moore was appointed to theRead More

Prejudice and Dismissals for Delay

A plaintiff has five years to set an action down for trial, or else the action will be dismissed for delay by the registrar. If the action cannot be set down within five years, the parties can consent to a timetable at least 30 days prior to the expiry ofRead More

Fridays With Rogers Partners

This morning, at our muffin meeting, we discussed a Court of Appeal decision which provides guidance on the extent of a trial judge’s discretion regarding costs when a party beats an offer to settle. We also went over a decision involving a motion to strike certain portions of a claimRead More

Defendant Beats Offer by Over $100K – Appeal Dismissed

In Hadzic et al v. Croxford, 2019 ONSC 6839, the Divisional Court considered an appeal by the plaintiff following a jury trial arising from a motor vehicle accident. Prior to trial, the defendant offered to settle for $150,000, net of the deductible, plus costs. The jury awarded $15,000 for generalRead More

$210 Million Claim By Subway Dismissed Against CBC

Brian Sunohara has written an article called “Subway’s ‘50% Chicken’ Lawsuit Against CBC Dismissed“. The article addresses a very interesting lawsuit by Subway, arising out of comments by the Canadian Broadcasting Corporation that Subway’s chicken could contain only about 50% chicken. Justice Morgan held that the lawsuit had to beRead More

Rental Priority Rules Not Applicable to Listed Driver

Last week, the Court of Appeal released an important decision for rental car companies and their insurers. Section 277(1.1) of the Insurance Act contains a priority scheme for accidents involving rented or leased vehicles. The provision states as follows: (1.1) Despite subsection (1), if an automobile is leased, the followingRead More

Supreme Court Denies Leave in Oil Leak Case

The Supreme Court of Canada recently denied leave to appeal in the case of Gendron v. Doug C. Thompson Ltd. (Thompson Fuels).  This brings an end to a lawsuit that determined several important issues. Facts The case arose out of an oil leak. Approximately one week into trial, the plaintiffRead More

Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a controversial Court of Appeal decision addressing whether discoverability can apply to the limitation period in claims for statutory accident benefits. We also went over a Superior Court decision involving the doctrine of misnomer. Discoverability in SABS Claims Matthew Umbrio addressed the recentRead More

Coverage Under Homeowner’s Policy for Automobile-Related Incident

The case of Pembridge Insurance Company of Canada v. Chu, 2019 ONCA 904, arose out of a motor vehicle accident. The plaintiff sued Fabrizi alleging that he drove through a red light and caused her injuries. Fabrizi commenced a third party claim against Chu. Fabrizi alleged that Chu drove negligently. FabriziRead More

Vicarious Liability and Punitive Damages

David Rogers and Carol-Anne Wyseman have written an informative paper entitled “Will Failure to Admit Liability in a Timely Fashion Give Rise to Punitive Damages? The Law after McCabe”. The paper addresses the principles of vicarious liability and punitive damages. David and Carol-Anne specifically examine a recent decision by theRead More

No Consent, No Uninsured Coverage

In Conners v. D’Angelo, 2019 ONCA 905, the plaintiff was a passenger in a vehicle driven by an unlicensed driver, without the permission of the owner. The plaintiff was injured in an accident and sued the driver, the owner of the vehicle, and the owner’s liability insurer. On a summaryRead More

Rogers Partners at the Santa Claus Parade

Rogers Partners had a fun time volunteering for The Advocates’ Society at the Santa Claus Parade yesterday! In conjunction with the parade, The Advocates’ Society held a special event at Campbell House with hot chocolate, cookie decorating, and holiday crafts. To the delight of many children in attendance, one ofRead More

Fridays With Rogers Partners

At this morning’s muffin meeting, we discussed file opening procedures as part of the Rogers Partners Litigation Strategy Series. Dana Eichler led this seminar. Dana addressed important issues for handling new files from the defence perspective, including: Immediately diarizing limitation periods Confirming instructions on who to defend Checking on whether ourRead More

Brian Sunohara in The Lawyer’s Daily

An article by Brian Sunohara on a recent Court of Appeal decision has been published.[1] The article is entitled “Defendant liable for plaintiff jumping out of bus”. The Court of Appeal upheld a finding of 75% liability on a bus company for an incident in which a grade 8 studentRead More

Pre-Accident Records: How Far Back?

In discoveries in personal injury actions, there is sometimes disagreement over how far back a plaintiff’s medical records should be produced. In Imbrogno v. Gonzalez, 2019 ONSC 6404, the court determined that records and information from 17 years prior to the incident in question were relevant. The plaintiff sued overRead More

Communicating with Treating Healthcare Practitioners

Defence counsel are not permitted to communicate with a plaintiff’s treating healthcare practitioners, without the plaintiff’s consent. This includes preparing a treating healthcare practitioner for trial. In Roy v. Primmum Insurance Company, 2019 ONSC 6361, which involved an accident benefits trial, the court considered whether defence counsel could prepare the plaintiffs’Read More

Rogers Partners Welcomes Mo Rajabali

Rogers Partners is pleased to welcome Modasir “Mo” Rajabali to the firm as an associate lawyer. Mo started with us today. Mo achieved his law degree from the University of Windsor in 2018 and was called to the Bar earlier this year. Prior to law school, Mo majored in PoliticalRead More

Fridays With Rogers Partners

Two of our articling students, Ankita Abraham and Micah Pirk O’Connell, provided helpful information at our muffin meeting this morning. Changes to Small Claims Court and Simplified Procedure Actions Ankita Abraham noted that the monetary jurisdiction of Small Claims Court actions will be increasing from $25,000 to $35,000, effective JanuaryRead More

David Rogers Presenting at Osgoode Personal Injury Conference

David M. Rogers
David Rogers will be presenting tomorrow at Osgoode’s 15th annual Personal Injury Law & Practice conference. David’s topic is “Will Failure To Admit Liability In a Timely Fashion Give Rise to Punitive Damages? The Law After McCabe”. David will be discussing vicarious liability and whether punitive damages can be awardedRead More

Does Hryniak Apply to the Wealthy?

By Brian Sunohara Does the Supreme Court of Canada’s decision in Hryniak apply to litigants with “deep pockets”? Should defendants with insurance be allowed to bring summary judgment motions? Is summary judgment available to plaintiffs who have contingency fee arrangements with their lawyers and legal cost protection? These are someRead More

Defendant Liable for Plaintiff Jumping Out of Bus

By Brian Sunohara In Little v. Floyd Sinton Limited, 2019 ONCA 865, the plaintiff was largely successful in an appeal involving an incident where the plaintiff jumped out of the back of a moving school bus. Background At the time of the incident, the plaintiff was 13 years old andRead More

Limitation Period for Duty to Defend Applications

It is often thought that the limitation period to commence a duty to defend application is two years from an insurer’s refusal to defend. For example, in Zochowski v. Security National Insurance, 2015 ONSC 7881, Justice Belobaba stated that “[t]he law is clear that a clear and unequivocal denial of coverage triggersRead More

Fridays With Rogers Partners

Two of our articling students presented very interesting insurance cases this morning at our muffin meeting. $500,000 Ring Stolen on a Beach Micah Pirk O’Connell addressed a case involving an insurance claim for a stolen ring. In Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, the plaintiff wasRead More

Dash Cam Video Proves Defendant Right

The court’s decision in Dainov v. Lee, 2019 ONSC 5993, shows the value of dash cam footage in determining liability for an accident. Based on a dash cam video, Justice Koehnen was satisfied that the defendant driver was not liable for a motor vehicle accident. The video showed that theRead More

“Automobiles” and Foreign Accidents in the SABS Context

In Benson v. Belair Insurance Company Inc., 2019 ONCA 840, the Court of Appeal examined whether two Ontario insurers had to provide statutory accident benefits (“SABS”) in regards to accidents that occurred outside of Ontario involving an ATV and a dirt bike. One accident occurred in British Columbia. The claimantRead More

A Primer on WSIAT Right to Sue Applications

An article by Jocelyn Brogan has been published.[1]  The article, entitled “Giving consideration to plaintiffs’ right to sue”, examines the main issues that arise in right to sue applications at the Workplace Safety Insurance and Appeals Tribunal. [1] The article was originally published by The Lawyer’s Daily (, part ofRead More

New Court of Appeal Decision on PJI Rate

By Brian Sunohara For many years, the default prejudgment interest (“PJI”) rate in Ontario for non-pecuniary damages in personal injury cases was 5%. When this rate was introduced, market interest rates were actually much higher than 5%. In auto cases, the default 5% PJI rate changed in 2015 to accountRead More

Rogers Partners 25th Anniversary Celebration

Rogers Partners LLP celebrated its 25th anniversary last night with many special guests at the Royal York! It was a terrific evening. We’re grateful to everyone who has played a part with our firm over these past 25 years!Read More

Fridays With Rogers Partners

At our weekly meeting, we discussed a decision addressing the statutory threshold in motor vehicle accident claims. In MacFarlane v. Razmerita, 2019 ONSC 6160, the jury did not award the plaintiff any damages whatsoever. Previous case law considered whether a trial judge has to make a determination on the thresholdRead More

New Small Claims Court Limit

The Ontario government has announced that, effective January 1, 2020, the monetary limit of the Small Claims Court will increase from $25,000 to $35,000. The government believes that wait times in the Superior Court of Justice will be reduced, as many civil cases that would have started in Superior CourtRead More

Test for Negligent Misrepresentation

In Doumouras v. Chander, 2019 ONSC 6056, the court outlined the five requirements for a claim for negligent misrepresentation: there must be a duty of care based on a “special relationship” between the representor and the representee; the representation in question must be untrue, inaccurate, or misleading; the representor mustRead More

Class Members Cannot Appeal Settlements

In Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, a five-member panel of the Court of Appeal confirmed that an individual member of a class action does not have the right to challenge settlement approval orders by way of appeal. The Court of Appeal stated that class members who doRead More

Credibility vs. Reliability

By Brian Sunohara In Paddy-Cannon et al v. Attorney General of Canada et al, 2019 ONSC 5665, the court went over the differences between credibility and reliability. A credible witness may not be a reliable witness. Credibility has to do with a witness’s veracity. Reliability has to do with theRead More

Fridays With Rogers Partners

At our weekly firm meeting, Ankita Abraham discussed a decision in which a psychologist was not qualified as an expert witness because he lacked independence and objectivity. In Barker v. Barker, 2019 ONSC 5906, the plaintiffs sued a mental health centre. They alleged that they were experimented on and harmed byRead More

Successful WSIAT Hearing

Brian Sunohara and Colleen Mackeigan were recently successful in a hearing before the Workplace Safety Insurance and Appeals Tribunal (Decision No. 1709/19). The claim arose out of an accident involving a car and a truck. Both drivers were working at the time of the accident. Our clients argued that the plaintiff’sRead More

Mental Health and Insurance Premiums

Tom Macmillan has written a thought-provoking article entitled “Differentiation allowed to determine risk in insurance”.[1] One of our articling students, Matthew Umbrio, provided helpful research. The article explores whether insurers should be allowed to charge different life insurance premiums to people with mental health issues. [1] The article was originallyRead More

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 (,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

By Brian Sunohara 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 aRead 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