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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

Fridays With Rogers Partners

Robert Forderer discussed a very interesting decision at our muffin meeting this morning. In Moushi v. Stephen, 2019 ONSC 3125, the defendant, Lauren Stephen, had been admitted to the hospital for a psychiatric evaluation. After being discharged, the plan was for him to start a program at a detox centre. Read More

Closing Addresses in Jury Trials

In a closing address in a jury trial, a lawyer is afforded considerable latitude to advance the cause of his or her client fearlessly and with vigour. However, there are important limits. A jury must not be distracted from its task of deciding the case on the evidence, and trialRead More

Colleen Mackeigan Called to the Bar

Colleen Mackeigan has been called to the bar and is now officially a lawyer! Colleen had a very successful articling term with Rogers Partners. We can’t wait for her to return to the firm as an associate. Congratulations Colleen! All of us at Rogers Partners are very happy for you.Read More

Occupiers Beware: Keep an Eye on Your Contractors

Brian G. Sunohara
Brian Sunohara has written an article called “Occupiers Beware: Keep an Eye on Your Contractors“. The article addresses a recent court decision and the steps occupiers need to take to insulate themselves from liability when they retain an independent contractor. In the article, Brian says that occupiers cannot take aRead More

Partial Summary Judgment – An Option No More?

Meryl Rodrigues
An article written by Meryl Rodrigues entitled “Partial Summary Judgment – An Option No More?” has received a great deal of attention. The courts have been reluctant to grant partial summary judgment, and, in some cases, will not even schedule motions for partial summary judgment. In her article, Meryl explainsRead More

Costs Sanction Against Insurer at Pre-Trial Conference

By Brian Sunohara In Al-Khouri v. Hawari, 2019 ONSC 3681, the defendant’s insurer was sanctioned for its conduct at a pre-trial conference. The defendant’s insurer took a “no liability” position and refused to negotiate a settlement. Justice Trimble referred to rule 50.05(2) of the Rules of Civil Procedure, which indicates: Read More

Fridays With Rogers Partners

Our muffin meeting focused on the Supreme Court of Canada’s recent decision in Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec. The decision analyzes the test in determining whether a person is an employee or an independent contractor. Although the case relatesRead More

Stephen Ross Elected to The Advocates’ Society Board of Directors

Rogers Partners had a strong contingent at The Advocates’ Society End of Term Dinner! It was an extra special evening as Stephen Ross was elected to The Advocates’ Society Board of Directors, which is comprised of leaders of the bar. Congratulations to Stephen on this accomplishment!Read More

Plaintiffs Permitted to Sue in Ontario for Scooter Accident in Thailand

In Vahle et al v. Global Work & Travel Co. Inc., the court determined that Ontario has jurisdiction over a lawsuit related to an accident that occurred in Thailand. Two sisters from Ontario went to Thailand to teach English. The teaching program was organized by the defendant. While riding a motorRead More

Third Party Claim Against Plaintiffs’ Lawyers Struck

Can a defendant commence a third party claim against a plaintiff’s lawyer for failing to preserve evidence? In most cases, the answer is no, according to the Court of Appeal. In Hengeveld v. The Personal Insurance Company, the plaintiffs sued their insurer for failing to preserve their vehicle following aRead More

The Dangers of Drinking and Driving

Drinking and driving remains a far too frequent occurrence. There can be catastrophic consequences, as shown in the case of Hummel v. Jantzi. Some friends met at a house and consumed alcohol. They then went to a bar to watch a Stanley Cup hockey game. The bar had a specialRead More

In|Sight – Summer 2019 Newsletter

We are pleased to present our Summer 2019 Newsletter. There are a number of interesting articles, which we hope you will find informative: Lessons from Gopie v. Ramcharran:  A Case Comment and Review of Issues on Appeal in Civil Jury Trials; School Boards, Teachers, and Student Fights; Partial Summary Judgment –Read More

Rogers Partners 25th Annual Employee Summer Party

On Friday, June 14, Rogers Partners held its 25th annual employee summer party. We broke into five teams and worked together assembling and painting nightstands, which will be donated to Habitat for Humanity. There were a lot of creative designs! We carried on to Kelly’s Landing for a fun eveningRead More

Fridays With Rogers Partners

At our muffin meeting this morning, we had a roundtable discussion on a lawyer’s duty of resolute advocacy versus a lawyer’s obligation to not use tactics that are dishonest, including in their interactions with opposing counsel. This discussion arose from the Court of Appeal’s decision in Paulus v. Fleury, whichRead More

Resolute Advocacy vs. Civil Fraud

The Supreme Court of Canada denied leave to appeal today in a case involving an allegation of civil fraud against a plaintiffs’ personal injury lawyer. The case of Paulus v. Fleury arose out of a car accident. At a pre-trial conference, the plaintiffs’ lawyer made submissions that he had “independent”Read More

Subrogated Claim Against Tenant Barred

In Rocky Heights v. Biber, the court refused to allow a subrogated claim by an insurer of a landlord to proceed against a tenant. The claim arose out of a residential fire. The fire was caused by the tenant leaving a boiling pot of oil unattended. The tenant was anRead More

Cyber-Attack Class Action Not Certified

In Kaplan v. Casino Rama, the court dismissed a certification motion in a class action involving a cyber-attack. Casino Rama’s computer system was hacked, and personal information was stolen relating to customers, employees, and suppliers. The hacker posted the stolen data on the Internet. Just under 11,000 people had some personalRead More

A Comedian’s Costly Tweets

Social media has been a popular way of communicating with others for some time now. However, caution must be exercised when using social media. As a recent court decision shows, legal damages can be very high when defamatory comments are made. In Emeny v. Tomaszewski, the plaintiff and the defendantRead More

Fridays With Rogers Partners

This morning, at our weekly Friday muffin meeting, Colleen Mackeigan discussed the case of Christie v. TD Insurance Meloche Monnex. The parties agreed to a further examination for discovery of the defendant based on answers to undertakings and additional productions. However, the defendant argued that the total length of the initialRead More

Bifurcating Non-Jury Trials

In Duggan v. Durham Region Non-Profit Housing Corp., the Divisional Court was split on whether consent of the parties is required to order bifurcation of non-jury trials. Rule 6.1.01 of the Rules of Civil Procedure indicates: “with the consent of the parties, the court may order a separate hearing on oneRead More

The Duty of Civility

Lawyers have a professional obligation to not take advantage of other lawyers’ slips or mistakes not going to the merits of a matter. This obligation was at the forefront of the court’s decision in Khoshaba v. Gore Mutual Insurance Company. The applicant applied for statutory accident benefits. The insurer requiredRead More

Photos from our Practice Management Seminar

Last night, we had a great time at our Practice Management Seminar and Dinner. This is an annual tradition for the lawyers at our firm. We find the seminars to be a productive way to have open discussions in a collegial setting. We discussed best practices and how we canRead More

The High School Fight

A fight breaks out at a high school. Can teachers at the school and the school board be held liable? It depends on whether the fight could have been anticipated and on what supervision protocols were in place. In Tilli v. Hamilton-Wentworth Catholic District School Board, two students started aRead More

Piercing the Corporate Veil

An article written by Stephen Ross and Andrew Yolles has been published in the Summer 2019 edition of the highly regarded publication, The Advocates’ Journal. The article is called “Yaiguaje v. Chevron Canada Corporation: A new and restrictive approach to piercing the corporate veil”.Read More

Fridays With Rogers Partners

Over the past 25 years, it’s been a tradition at Rogers Partners for our lawyers and students to meet every Friday morning to discuss practice management strategies, ethical issues, and the latest developments in the law. We call these sessions “muffin meetings” because someone would always bring muffins. These days,Read More

Court of Appeal Overturns Finding of Liability on Shopping Mall

The Court of Appeal released a decision today in Drummond v. Cadillac Fairview Corporation Limited, dismissing a claim involving a trip and fall on a skateboard in a mall food court. On a summary judgment motion, the mall sought a dismissal of the action. The motion judge did not dismiss the actionRead More

Addressing Conflicts in Defending Additional Insureds

In HMQ v. AIG Insurance, the Province of Ontario was sued in two actions arising from highway construction work. AIG insured a construction company, Aecon. Ontario was an additional insured on the AIG policy. AIG agreed to defend Ontario and to have Ontario’s own counsel represent Ontario. However, AIG insistedRead More

Scope of Builder’s Risk Coverage

What does builder’s risk insurance cover? That was the question in Pre-Eng Contracting v. Intact. A builder repaired the roof at a school. As a result of negligent work, rain spilled through the roof onto the wooden floor of a gymnasium. The builder had a builder’s risk policy with NorthbridgeRead More

Further Case on Partial Summary Judgment

In a recent post, we discussed the case of Farooqi v. Lorenzo. The court would not schedule a summary judgment motion as requested by a defendant driver because, if summary judgment was granted, the claim would still continue against other defendants. However, in a decision released today, Extreme Venture Partners FundRead More

Plaintiff Not Permitted to Add Family Law Claim After Expiry of Limitation Period

The case of Malik v. Nikbakht indicates that, if an injured plaintiff wants to advance a claim under the Family Law Act, it must be done within the limitation period. Justice Cavanagh overturned a decision of a master.  The master had applied authority of a single judge of the DivisionalRead More

Summary Judgment in Multi-Party Litigation

A recent court decision serves as a warning to think hard about bringing a summary judgment motion in multi-party litigation, if the motion will only partly dispose of a claim. In Farooqi v. Lorenzo, a defendant driver sought to be dismissed from an action by way of summary judgment. TheRead More

Congratulations to Colleen Mackeigan

Rogers Partners LLP is delighted to announce that Colleen Mackeigan has completed her articles and will be returning to the firm as an associate following her call to the bar in June. Colleen has worked hard during her articling term and has demonstrated commitment and a strong desire to learn.Read More

From the Desk of Jocelyn Brogan

Jocelyn-Rose Brogan
Outside of work life, I often find myself noticing conditions or activities carried out on properties that have the potential of being the subject matter of a personal injury action. However, just because I notice the vulnerabilities of occupiers in everyday life, this certainly does not mean that a potentialRead More

The Collateral Benefits/Tort Interface

Stephen Ross and Meryl Rodrigues have written an updated comprehensive paper on the interaction between tort claims and collateral benefits. The initial version of this paper was relied on by the Court of Appeal in El-Khodr v. Lackie, 2017 ONCA 716, wherein it was held that strict qualitative and temporalRead More

Trip & Fall Claim Dismissed

In Ali v. Smart REIT, the plaintiff tripped on a curb in a shopping plaza and fell on her face. The curb had a slope for barrier-free access. The plaintiff argued that the curb was hazardous because the slope was not gradual and because there was no warning as toRead More

Rogers Partners LLP Welcomes Carol-Anne Wyseman

Rogers Partners LLP welcomes Carol-Anne Wyseman to the firm as an associate lawyer. Carol-Anne was called to the Bar in 2016. She joins us from an in-house legal department of an insurance company where she maintained full carriage of numerous insurance-related files. Carol-Anne completed her undergraduate studies at Western University,Read More