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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

Rogers Partners Hiring Mid-Level Associate

Rogers Partners LLP is seeking an associate lawyer to join our team. Interested candidates should have two to five years of litigation experience, preferably in the areas of insurance defence or personal injury. Since our founding in 1994, we have specialized in the defence of liability claims. We have longstandingRead More

Trip and Fall Into Parked Vehicle Considered Automobile Accident

In Montesano v. Western Assurance Co., 2021 ONLAT 19-006780, the claimant proceeded up her driveway towards her house after smoking a cigarette. She tripped and fell forward, striking her face against the rear bumper of her parked SUV before falling to the ground. The claimant applied for statutory accident benefits fromRead More

Expanded Use of CaseLines

In a Supplementary Notice to the Profession and Litigants, the Ontario Superior Court of Justice has advised that, starting July 5, 2021, CaseLines will be expanded to the Central West, Northeast and Southwest Regions. The notice also indicates that, at least five days in advance of the hearing or atRead More

Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of Justice Perell in Fontaine v. Canada (Attorney General), 2021 ONSC 4363. This decision arose from a recusal motion, where the moving party requested that Justice Perell recuse himself as a result of real or a reasonable apprehension of bias.Read More

Arguments Against Virtual Trial Rejected

In Sui v. Chitiz, 2021 CanLII 50711 (ON SC), the plaintiff argued that the trial should not proceed by video conference because there are real issues of credibility which could be better assessed by an in-person hearing and because the volume of documents could more easily be managed through anRead More

Court Denies Request to Examine Non-Parties

The court has discretion to order an examination for discovery of a non-party. Before such an order is granted, the court must be satisfied that: the moving party has been unable to obtain the information from other people whom the moving party is entitled to examine for discovery, or from theRead More

Court of Appeal Dismisses Insurer’s Appeal Involving “Under Construction” Exclusion

In Tataryn v. AXA Insurance Canada, 2021 ONCA 413, the plaintiff commenced renovations to the second and third floor of her property while she lived on the first floor. Following the commencement of the renovations, there were two incidents of water damage. The plaintiff sought coverage under her homeowner’s insurance policy. TheRead More

Superior Court’s Latest Update on In-Person Hearings

In the latest Notice to the Profession and Public from the Ontario Superior Court of Justice, the Court advised that the number of in-person non-jury hearings will increase on June 21, 2021. This will be subject to the discretion of the Regional Senior Justice and the public health situation. VirtualRead More

Fridays with Rogers Partners

At our weekly meeting,  Athina Ionita discussed the Court of Appeal’s recent decision in Eynon v. Simplicity Air Ltd., 2021 ONCA 409. This was an interesting appeal from a jury award of punitive damages. The Court of Appeal upheld a $150,000 punitive damage award against the appellant, relating to injuriesRead More

Divisional Court Limits Scope of Intrusion Upon Seclusion

In Owsianik v. Equifax Canada Co., 2021 ONSC 4112, a majority of the Divisional Court partially overturned a certification of a class action involving a computer hacking incident. The motion judge had certified a number of causes of action against the defendant, including a claim for intrusion upon seclusion. TheRead More

Court’s Decision on Procedure for Virtual Trial

The decision in Cave v. Hovsepyan, 2021 ONSC 4126, addressed procedural issues for a virtual trial. Trial judges have broad discretion to determine the procedure for a trial, but this decision may provide useful guidance for other matters. For example, Justice Sanfilippo indicated that each party shall designate a leadRead More

Athina Ionita and Chris MacDonald Called to the Bar

Through their diligence and perseverance, Athina Ionita and Chris MacDonald have been called to the Bar and are officially lawyers! We’re so happy for Athina and Chris for achieving this special milestone. Athina and Chris had a very successful articling term with Rogers Partners, and we’re delighted that they’re nowRead More

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the decision of Heffernan v. John H. Keiffer Professional Corporation, 2020 ONSC 4174. In this case, Justice Daley provided his reasons for awarding costs to the defendants after the self-represented plaintiff’s action was dismissed for delay. In his reasons, His Honour grappled withRead More

Rogers Partners Announces New Partners

Rogers Partners LLP is delighted to announce that Alon Barda, Rebecca Moore, and Andrew Yolles have joined the partnership of the firm. Alon, Rebecca, and Andrew started with Rogers Partners as articling students. Over the years, their contributions to the firm have been invaluable. They demonstrate exceptional legal skills, leadership,Read More

Escalator Stunt Gone Wrong: Case Dismissed Against Shopping Mall

By Gemma Healy-Murphy Summary judgment can be a powerful tool in a litigator’s toolkit, if the Court can be persuaded that there is no genuine issue for trial. There appears a general judicial reluctance however to summarily dismiss an action, with the remedy oftentimes reserved for the most clearest ofRead More

Notice to the Profession on Scheduling Trials in Toronto

A Notice to the Profession indicates that the Toronto Region will be holding a virtual trial scheduling court on June 21, 2021. This trial scheduling court will be for cases that had fixed trial dates after March 15, 2020 that were cancelled due to COVID-19 and where a new trialRead More

Kayley Richardson and Suganiya Sivabalan Join Rogers Partners

We’re delighted to welcome Kayley Richardson and Suganiya Sivabalan to Rogers Partners! Kayley and Suganiya both started with the firm today.Read More

Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the Superior Court’s decision in Gagnon v. Sivasamboo, 2021 ONSC 3853. In this decision, the Court considered whether a plaintiff may maintain an action against a defendant’s insurer for declaratory relief respecting the applicability of a defendant’s insurance policy in the context ofRead More

Court Addresses Location of Defence Medical Examination

The court’s decision in Harris v. Mast Landscaping Limited, 2021 ONSC 3937, dealt with a dispute over the location of a defence medical examination. The defendants requested the plaintiff to attend a defence medical examination with a neurologist in Toronto. The plaintiff lives around one hour away from Toronto. The plaintiff doesRead More

Potential New Avenue of Liability of Parent Companies

By Erin Crochetière In Avedian v. Enbridge Gas Distribution Inc., 2021 ONCA 361 the Court of Appeal granted an appeal from an order granting summary judgment on the basis that the motion should not have been allowed to proceed after the trial had been scheduled. The Court of Appeal alsoRead More

Divisional Court Overturns LAT Decision on HST

In Dominion of Canada General Insurance Company v. Ridi, 2021 ONSC 3707, the Divisional Court overturned a decision of the Licence Appeal Tribunal and held that, for accidents occurring prior to June 3, 2019, amounts of HST payable for taxable attendant care services are to be paid as part ofRead More

Jurisdiction Over Michigan Accident

In Orum v. Maksuta, 2021 ONSC 2974, the plaintiff was struck by a motor vehicle in Michigan. He commenced an action in Ontario against the driver and also against his Ontario insurer for uninsured/underinsured coverage. He did not commence an action in Michigan and the limitation period to do so expired. TheRead More

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the Superior Court’s decision in Del Giudice v. Thompson, 2021 ONSC 2696. In this decision, the plaintiffs, Rina Del Giudice and Daniel Wood, sought court approval of a settlement agreement with the defendant, Github Inc., pursuant to section 29 of the Class Proceedings Act,Read More

Brian Sunohara and Erin Crochetière Successfully Defend Mistrial Motion

In the recent decision of Leendertse v. HMQ, 2021 ONSC 3765, Brian Sunohara and Erin Crochetière successfully defended a mistrial motion brought by the plaintiff. The initial part of the trial proceeded over four days in February 2020. It was adjourned to May 2020, but the COVID-19 pandemic prevented the trialRead More

Superior Court Interprets Meaning of “Unnamed Insured” in CGL Policy

By Emily Vereshchak In Moore Equipment Ltd. v. Temple Insurance Company, 2021 ONSC 3622, the Court examined an endorsement in a comprehensive general liability insurance policy to determine whether the Applicant was entitled to coverage under the policy as an “Unnamed Insured”.  Overview The Applicant, Moore Equipment Ltd. (“Moore”), broughtRead More

Natalia Sheikh Joins Rogers Partners

Natalia Sheikh has joined Rogers Partners as an associate lawyer. Today is Natalia’s first day with the firm, and we’re delighted to welcome her to the team!Read More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed the Court of Appeal’s decision in Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314. The case involves an appeal by the plaintiffs of proposed class actions from the dismissal of their claims for lack of jurisdiction, and the refusal to approve settlementRead More

Defendants Should be Given Notice of Motions for Default Judgment in Toronto

When bringing a motion for default judgment in Toronto, plaintiffs should serve their motion materials on the defendants against whom judgment is sought. This is not required by the Rules of Civil Procedure or by a practice direction. However, in Madison Homes v. Ng, 2021 ONSC 3104, Justice J. Wilson notedRead More

Current State of Affairs Must Be Examined in Motions to Strike Jury Notices

In Premanathan v. Kandasamy,  2021 ONSC 3207, the court dismissed the plaintiff’s motion to strike a jury notice in a Toronto action. The action arises from a motor vehicle accident in 2012. A two week jury trial was scheduled for June 2021. The principal reason for dismissing the plaintiff’s motion wasRead More

Dismissal of Class Actions Against Insurers Upheld by Court of Appeal

In a previous blog post, we discussed a decision involving class actions against several insurers for improperly deducting HST from statutory accident benefits. The motion judge dismissed the claims against the insurers because the Licence Appeal Tribunal has exclusive jurisdiction over statutory accident benefits disputes. The plaintiffs also sued theRead More

Court’s Guide to Virtual Hearings

The Ontario Superior Court of Justice recently issued a resource called “At-A-Glance Guide to Virtual Hearings“. It’s a very handy, one-stop guide on many issues relating to virtual hearings.Read More

Fridays With Rogers Partners

At our weekly meeting this morning, Athina Ionita discussed the Divisional Court’s decision in H.A. v. S.M., 2021 ONSC 3170. The case involves an appeal of a summary judgment motion. The Divisional Court held that the motion judge erred in not dismissing negligent investigation and malicious prosecution claims against theRead More

Updated Notice to the Profession on Court Proceedings

The Ontario Superior Court of Justice released an updated Notice to the Profession and Public yesterday. The Court has directed all non-jury matters to proceed virtually unless it is absolutely necessary to hold the proceedings in person. The requirement to defer as many matters as possible, including virtual hearings, noRead More

Articling During The Pandemic

By Chris MacDonald Before joining Rogers Partners in the summer of 2020, I had three predictions about articling: First, it would be challenging. Second, I would need to learn to adapt (and quickly).  Third, I would develop both professionally and personally as a result. Looking back, these predictions were spotRead More

Jury Notice Struck in Toronto Action

There have been several motions to strike jury notices in Toronto due to delay related to the COVID-19 pandemic. The decisions have gone both ways. In Cave v. Hovsepyan, 2021 ONSC 3386, the plaintiff was successful in striking a jury notice for a trial scheduled to commence on May 31, 2021.Read More

Grandmother Potentially Liable for Autistic Grandson Causing Accident at Swimming Pool

The case of Boustany v. Singh, 2021 ONSC 3140, involves an accident at a pubic swimming pool. The defendant is the grandmother and caregiver of a child with significant autism. The child was at the swimming pool for a public swim and was under the care of the Halton DistrictRead More

Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed Justice Myers’ recent decision in Sheikh v Kathuria, 2021 ONSC 3273, in which Justice Myers expounded the importance of cooperation in avoiding excessive Court procedure, and the timely resolution of disputes.  Background In December of 2014, the plaintiff, Sana Sheikh, was injured inRead More

Ontario Bar Association Wellness Hub

This week is “Mental Health Week” and “Wellbeing Week in Law”. The Ontario Bar Association has some helpful mental health resources on its “Wellness Hub” that are worth checking out.Read More

The Importance of Clarity in Pleadings

By Athina Ionita Andrin Hillsborough Limited v. Eliaszadeh, 2021 ONSC 3229, provides a helpful discussion on pleading bad faith, and the importance of pleading with sufficient clarity. Background This decision relates to the defendants’ motion for leave to amend their Statement of Defence, and to add a Counterclaim. The plaintiffRead More

Appeal Allowed in Medical Malpractice Case Due to Improper Expert Evidence

The Court of Appeal recently overturned a dismissal of a medical malpractice action due to improper expert evidence. In Parliament v. Conley, 2021 ONCA 261, a baby was diagnosed with hydrocephalus (an accumulation of fluid within the brain) when he was around four month old. He is now 21 years oldRead More

Relevance of Post-Accident Remedial Measures

In Kruger v. Queen Elizabeth Hotel GP Inc., 2021 ONSC 3097, the court considered a refusals motion in a slip and fall case. Two of the refusals motions related to post-accident remedial measures taken by the defendant. The plaintiff asked for any relevant emails regarding anti-slip material that was used afterRead More