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Canada Gets Serious About Digital Privacy

By Tom Macmillan In today’s digital society, we give our personal information to organizations all of the time, sometimes unknowingly. Even when we provide an organization with consent to collect our personal information, we often do not know how it is being used or whether it is being shared withRead More

Fridays With Rogers Partners

This morning, at our first weekly meeting of the year, Athina Ionita discussed the case of Trumble v. Soomal, 2020 ONSC 8097. The court considered whether the plaintiff or the defendant is obligated to pay for medical records in a personal injury action. The plaintiff took the position that sheRead More

Assault in Parking Garage: Inadequate Security Measures Did Not Cause Plaintiff’s Loss

By Jocelyn-Rose Brogan Courts have been hesitant to find a defendant liable for damages caused by the intentional tort of a third party. This notion was reinforced in Teglas v. City of Brantford et al, 2020 ONSC 7408 (“Teglas”), a case which involved an assault in a parking garage. JusticeRead More

Two Recent Decisions on Motions to Strike Jury Notices During COVID-19

By Matthew Umbrio In December 2020, Justice Nicholson, of the Ontario Superior Court of Justice (“ONSC”), released two decisions, Solanki v. Reilly (“Solanki”)[1] and Smith v. Muir (“Smith”)[2], addressing motions brought by the plaintiffs to strike jury notices in actions commenced in London. Justice Nicholson’s decisions provide common sense solutionsRead More

New Notice to the Profession for Central East Region

The Central East Region has issued a new Notice to the Profession for civil matters, effective January 4, 2021. The Central East Region is comprised of Barrie, Bracebridge, Cobourg, Lindsay, Newmarket, Durham (Oshawa), and Peterborough. This is a summary: Pre-Trial Conferences Civil pre-trials are being held in all centres in the Region.Read More

Reminder on Amendments to Rules

As a reminder, several amendments to the Rules of Civil Procedure came into force on January 1, 2021. Please see our previous blog post for a summary.Read More

Happy New Year!

From all of us at Rogers Partners, we wish you a Happy New Year! 2020 was a unique and trying year for everyone. Our thoughts are with those who have been impacted by the pandemic. Here’s to brighter days ahead in 2021!Read More

From the Desk of Alon Barda

Virtual Appearances – Let’s Not Turn Back I recently took a look back to an article I wrote in October 2019. We were obviously in a very different time. The title of that article was “Promoting Efficiency in Litigation.” The last subheading in that article was entitled “Time to EmbraceRead More

Notice on Court Proceedings During Lockdown

As a result of the province-wide lockdown, the Ontario Superior Court of Justice issued an updated Notice to the Profession and Public last week. The notice states that, effective December 29, 2020, all non-jury matters should proceed virtually unless in-person attendance is absolutely necessary. This will remain in effect untilRead More

Happy Holidays!

All of us at Rogers Partners wish you a safe and happy holiday season, and the very best in 2021!Read More

Plaintiff’s Lawyer Ordered to Stop Communicating With Defence Experts

In D’Eon v. Hosseini, 2020 ONSC 7500, the court ordered the plaintiff’s lawyer to not communicate with medical experts retained by the defendants’ lawyer. The defendants’ lawyer had scheduled the plaintiff to attend a neuropsychology assessment. Prior to attending the assessment, the plaintiff’s lawyer wrote a lengthy letter to the expertRead More

Court of Appeal Overturns Bifurcation Decision

In a previous blog post, we discussed a decision in which the Divisional Court held that the court has inherent jurisdiction to bifurcate a non-jury case, even when a party does not consent. Last week, the Court of Appeal overturned the decision. In Duggan v. Durham Region Non-Profit Housing Corporation, 2020Read More

Update on Jury Trials

The Ontario Superior Court of Justice issued a new Notice to the Profession and Public last week. The suspension of jury trials has been extended until at least January 29, 2021 in all areas of the province except Green Zones. In areas that are not Green Zones, jury trials willRead More

Fridays With Rogers Partners

At our weekly meeting, Angie Bellehumeur discussed a case address a dispute over the terms of a release. In Terranata Winston Churchill Inc. v Teti Transport Ltd., et al., 2020 ONSC 7577, the Court considered a motion for an order under Rule 49.09 enforcing a settlement reached as between theRead More

Amendments to Occupiers’ Liability Act: Reasonable Excuse and Prejudice

By Brian Sunohara A bill to amend the Occupiers’ Liability Act recently received Royal Assent (it is law), but it is not yet in force. A law does not operate until it comes into force. The Ontario government has yet to announce when the amendments will come into force. [Update:Read More

The Relevancy of Social Media – Who Should Decide?

By Gemma Healy-Murphy A recent decision of Master Jolley in Smith v. Jarnell, 2020 ONSC 6433, serves as an important reminder to counsel of the nature of questions required to establish the relevance of a plaintiff’s social media page in the context of a personal injury action. In Smith, theRead More

Update on CaseLines

The Ontario Superior Court of Justice advised on Twitter last week that CaseLines will be expanded to the entire province by July 2021. CaseLines is an online document storage platform that allows counsel and parties to upload documents for review by all participants before and during hearings, including motions andRead More

Rogers Partners Winter 2020 Newsletter

We’re pleased to present the Winter 2020 edition of our newsletter, In|Sight. We hope you find the following topics to be of interest: 1. Assault in Parking Garage: Inadequate Security Measures Did Not Cause Plaintiff’s Loss 2. Tort Action Arising from Injury at Heavy Metal Concert 3. The Scope of Re-ExaminationRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Zoutman v. Graham, 2020 ONCA 767. In this case, the Court of Appeal heard an appeal brought by Mr. James Graham. The appellant appealed a judgment dismissing his motion under section 137.1 of the CourtsRead More

Jury Notice in London Action Not Struck

In Pietsch et al v. Lyons, 2020 ONSC 7628, the plaintiffs sought to strike a jury notice in a motor vehicle accident case due to complexity and due to delay arising from the COVID-19 pandemic and related prejudice. The case was previously scheduled to be tried on three occasions, butRead More

Misnomer – What Happens if a Plaintiff Gets Its Own Name Wrong?

By Erin Crochetière In Dealer’s Choice Preferred Collision Centre Inc. v. Kircher, 2020 ONSC 7557, the Court considered the applicable test when a motion is brought to amend the named plaintiff  pursuant to the doctrine of misnomer. Motions based on the doctrine of misnomer are typically brought to correct anRead More

SABS Claim Arising From Parking Dispute

In L.L.B. v. Intact Insurance Company, 2020 ONLAT 17-003125/AABS, the Licence Appeal Tribunal considered an odd fact situation where a person was assaulted in downtown Toronto. The claimant was working as a crew member of a television production company. Her job was to keep watch over three dedicated parking spaces. ARead More

Courthouse Risk Assessments

The Ontario Bar Association has prepared a helpful resource which provides links to COVID-19 risk assessments that have been conducted at many of Ontario’s courthouses. The risk assessments address issues such as screening for COVID-19, enhanced cleaning, signage, plexiglass barriers, and facility and room capacity.Read More

Fridays With Rogers Partners

This morning, we continued with our internal Rogers Partners Litigation Strategy Series. Anita Varjacic led a discussion by Zoom on pre-trial conferences. We addressed the need to write persuasive pre-trial briefs and to be fully prepared for pre-trial conferences. We also discussed whether counsel should show their client’s complete handRead More

Jury Notice Not Struck in Toronto Action

In Saadi v. Silva, 2020 ONSC 6700, the court dismissed the plaintiff’s motion to strike a jury notice. The action arose out of a motor vehicle accident. A jury was selected in Toronto on October 5, 2020. The trial was supposed to commence on October 14, 2020, but could not proceed dueRead More

Vexatious Litigation is Not a Protected Form of Expression

By Emily Vereshchak In London District Catholic School Board v. Michail[1], the Ontario Superior Court of Justice considered a motion pursuant to s.137.1 of the Courts of Justice Act (commonly referred to as the “anti-SLAAP provisions”) within the context of an Application for a declaration of a vexatious litigant pursuantRead More

Upcoming Amendments to Rules of Civil Procedure

Amendments to the Rules of Civil Procedure are coming into force on January 1, 2021. The amendments can be found here. The amendments are fairly extensive and include: 1. Rule 1.08(1). For a hearing that requires attendance, such as a motion, the party has to propose whether it should beRead More

Is Court Approval Required to Dismiss Third Party Claim When Plaintiff is a Minor?

The decision in Ciarlo et al v. Sesula and Rees, 2020 ONSC 7051, indicates that, when a third party defends a main action in which the plaintiff is a minor, court approval of a dismissal of the third party action is required. The third party claim cannot simply be dismissed onRead More

Fridays With Rogers Partners

At our weekly meeting, Athina Ionita discussed the court’s decision in Boone v. O’Kelly, 2020 ONSC 6932, which involved a ruling on expert evidence. The court determined that the defence expert’s evidence was not reliable and was, thus, inadmissible.  Background The plaintiff suffered injuries during a procedure to remove aRead More

No In-Person Hearings at Court of Appeal Until Further Notice

In a previous blog post, we advised of a notice from the Court of Appeal that it would hear some appeals in person. However, this has changed. In a further notice, the Court of Appeal has stated that it will not conduct in-person appeals until further notice. The Court ofRead More

Waiting Too Long to Add Third Party Can Have Consequences

By Colleen Mackeigan In Crawford v. Standard Building Contractors Limited, 2020 ONSC 7022, the Ontario Superior Court of Justice exercised its discretion under rule 29.02(1.2) of the Rules of Civil Procedure and denied the defendant leave to add a third party for the reason that doing so would cause prejudiceRead More

Andrew Yolles in The Lawyer’s Daily

Andrew Yolles was recently published in a two-part series in The Lawyer’s Daily in an article called “SCC decision roadmap to damages in tort for pure economic loss”. Andrew comments on the Supreme Court of Canada’s decision in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35. Andrew says, “TheRead More

What the HIC?: Preventing and Responding to Privacy Breaches in Health Care Organizations

By Gemma Healy-Murphy I recently attended an interesting and informative program put together by Osgoode Hall Law School titled “The 2020 Legal Guide to Privacy & Information Management in Healthcare”. Below are my key takeaways from the program, including best privacy practises and how to deal with a potential privacyRead More

Jury Trials Only Permitted in Green Zone

In a Notice to the Profession, the Ontario Superior Court of Justice has advised that, effective November 23, 2020, there will be no new jury selection in any court locations, except those in a Green Zone as defined by the Ontario Government. This will remain in effect until at leastRead More

Fridays With Rogers Partners

At our weekly firm meeting, Angeline Bellehumeur addressed the Divisional Court’s decision in  Louis v Poitras, 2020 ONSC 6907. The defendants appealed the motion judge’s decision to strike a jury notice due to the delay caused by the COVID-19 pandemic. The decision involves two Ottawa actions related to a motorRead More

Court Declines to Rule on Effect of Suspension of Limitation Periods

By Brian Sunohara Most limitation periods in Ontario were suspended for close to six months, from March 16, 2020 to September 14, 2020, due to the COVID-19 emergency. The regulation that provided for the suspension, Ontario Regulation 73/20, indicated that “the temporary suspension period shall not be counted” toward theRead More

Subsequent Discovery of Severity of Injuries and Limitation Periods: Baig v. Mississauga

By Carol-Anne Wyseman In Baig v. Mississauga, 2020 ONCA 697, the Court of Appeal recently upheld a summary judgment finding that a man who fell off his bicycle and injured himself in 2013 was barred from suing the Corporation of the Town of Mississauga (“Mississauga”), as the two-year limitation periodRead More

New Jury Trials on Hold in Hamilton and Newmarket

The Ontario Superior Court of Justice previously advised that jury selection and new jury trials in Newmarket would resume on November 16, 2020. However, that has changed due to the deterioration of the public health situation. In an updated Notice, the Court has advised that jury selection and new juryRead More

Rogers Partners Supports Bee Population

Rogers Partners is pleased to support the local bee population through the Toronto Bee Rescue. We participated in a beehive share program which yielded 24 litres of honey.Read More

Fridays With Rogers Partners

At our weekly firm meeting, Athina Ionita addressed the decision in Campbell v Desjardins, 2020 ONSC 6630. The court discusses the appraisal process, highlighting several key points. These points are: Appraisals are valuation decisions where two appraisers argue the property loss value before an impartial umpireAppraisers act like advocates andRead More

New Jury Trials in Brampton and Toronto on Pause Again

The Ontario Superior Court of Justice previously advised that jury selection and new jury trials would again resume in Brampton and Toronto on November 16, 2020. However, in an updated Notice to the Profession, the Court has advised that, due to a deterioration in the public health situation, jury selectionRead More

Supreme Court’s Clarification of the Availability of Damages in Tort for Pure Economic Loss

By Andrew Yolles In its recent decision in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, the Supreme Court of Canada was divided on whether Mr. Sub franchisees could claim damages in negligence for pure economic loss resulting from contaminated meat products supplied by  Maple Leaf Foods.Read More

Claim Struck Due to Breach of Deemed Undertaking Rule

By Brian Sunohara The court’s decision in Sciucca v. Yoon, 2020 ONSC 6539, cautions against using information obtained from discoveries to commence a new action, even if the new action is related to an existing action. The matter involves a failed real estate transaction. Through documentary discovery and oral discovery,Read More

New Jury Trials Resuming in Brampton, Newmarket, Ottawa, and Toronto

Jury selection was paused in Brampton, Newmarket, Ottawa, and Toronto due to those areas being in a modified Stage Two related to COVID-19 pandemic. Since these areas are being removed from the modified Stage Two, new jury trials will resume. A Notice to the Profession indicates that, as of NovemberRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684. In this case, the Court considered an appeal brought by Svia Homes Limited (“Svia”). On appeal, Svia contended that the application judge wrongly dismissedRead More

“Wait and See”: Court Says Jury Notices Should Not Be Prematurely Struck

By Alon Barda I wrote an article about two months ago entitled “The End of Civil Jury Trials? Jury Notice Struck Due to COVID-19.” At the time, I discussed the case of Belton v. Spencer 2020 ONSC 5327,[1] wherein the motion judge held that the defendant’s right to a trialRead More

Thunder Bay Courthouse Temporarily Closed

For those with matters in Thunder Bay, the courthouse is temporarily closed due to a fire, as indicated in a Notice to the Profession. The closure could last until the end of December 2020. Most hearings will continue to be conducted virtually. Where in-person attendance is required, space at aRead More

CaseLines Expected to be Implemented in All Ontario Regions by Late 2021

The CaseLines Pilot Project appears to be progressing well. CaseLines is an online document storage platform that allows counsel and parties to upload documents for review by all participants before and during hearings, including motions and pre-trial conferences. CaseLines has now been implemented in civil and Divisional Court matters inRead More

Stephen Ross and Gemma Healy-Murphy on The Future of Summary Judgment

The Lawyer’s Daily has published an article by Stephen Ross and Gemma Healy-Murphy called “Summary judgment post COVID-19”. Stephen and Gemma indicate: Over the past few months, we have seen the judiciary quickly and creatively respond to the challenges imposed by the COVID-19 pandemic. In this way, we have seenRead More

Fridays With Rogers Partners

This morning, at our weekly firm meeting, Angeline Bellehumeur discussed the court’s decision in Frances v TTC Insurance Company, 2020 ONSC 6495.  Master Wiebe considered a status hearing motion for dismissal of an action for delay pursuant to rule 48.14 of the Rules of Civil Procedure. This action arises fromRead More

Small Claims Court Now Accepting Court Documents by E-mail

An updated Notice to the Profession indicates that, on October 28, 2020, the Small Claims Court started to accept most court filings by e-mail at the e-mail addresses for the various court locations at this link. Enforcement documents cannot be filed by e-mail. E-mailed filings must be submitted in PDFRead More

Hypothetical Questions on Discovery

By Jocelyn-Rose Brogan When conducting an examination for discovery, counsel should keep in mind that the Rules of Civil Procedure are designed to provide parties with full disclosure of information in order to avoid surprise. However, as demonstrated in Beemer and Chrysler v. 1350246 Ontario Inc., 2020 ONSC 5564 (“Beemer”),Read More

Jury Selection Suspended in Newmarket; Virtual Hearings Encouraged

After the Region of Peel, Toronto, and Ottawa entered a modified Stage Two due to increasing COVID-19 cases, the Ontario Superior Court of Justice announced changes to court proceedings in those areas. Given that the Region of York has also moved into a modified Stage Two, the Superior Court has implementedRead More

Court Approves Settlement of G20 Class Actions

Two class actions against the Toronto Police have settled. The actions arose out of the arrest and detention of hundreds of protesters during the G20 summit that was held in Toronto in June 2010. In Good v. Toronto Police Services Board, 2020 ONSC 6332, Justice Belobaba approved the settlement, which requiresRead More

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Krukowski v. Aviva Insurance Company of Canada, 2020 ONCA 631. In this case, the Court considered an appeal brought by Deutschmann Law Professional Corporation, whose principal was Mr. Deutschmann. Mr. Deutschmann represented Mr. Krukowski, aRead More

Announcement From Court of Appeal on In-Person Hearings

Due to the COVID-19 pandemic, the Court of Appeal has been hearing appeals in writing and by videoconference. In a notice released this week, the Court of Appeal advised that it will hear some appeals in person. The Court will only consider holding an in-person hearing if all parties andRead More

Immunity From COVID Claims?

By Rebecca Moore Immunity from liability for claims involving the spread of COVID-19? This is what has been put forward by the Attorney General of Ontario, Doug Downey, in the proposed bill, Supporting Ontario Recovery Act. If passed, this legislation will protect individuals and organizations found to be have makingRead More

Court of Appeal Addresses Releases in Recent Decision

In Huma v. Mississauga Hospital, 2020 ONCA 644, the Court of Appeal upheld a motion to enforce a settlement against three plaintiffs who were self-represented at the time of the settlement. One of the issues addressed by the Court of Appeal is the requirement to provide a release upon settlement. TheRead More

Motion to Add Defendant Dismissed Due to Insufficient Evidence on Discovery of Claim

In Condreanu v. Choi, 2020 ONSC 6105, the plaintiff was involved in a motor vehicle accident on November 23, 2017. On November 21, 2019, she commenced an action against a driver, Choi, along with the owner of Choi’s vehicle. One month prior to commencing the action, the plaintiff’s lawyer provided theRead More

Fridays With Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the Court of Appeal’s decision in Becker v. Toronto (City), 2020 ONCA 607. This appeal addresses how framing the issues at trial influences what issues may be appealed. Further, this decision makes it clear that if counsel believes an issue is relevantRead More

Milton Courthouse Temporarily Closed

According to a notice issued yesterday, due to a new discovery of mould, all in-person hearings and processes at the Milton courthouse have been suspended. A health and safety investigation of the entire courthouse is being undertaken.Read More

Transfer of Actions from Small Claims Court to Superior Court

In Segura Mosquera v. Rogers Communications Inc., 2020 ONSC 6024, Justice Gomery stated that there is a relatively high onus on a party seeking to transfer an action from Small Claims Court to the Superior Court of Justice. The applicant must submit evidence that commencing the claim in Small ClaimsRead More

Court of Appeal Upholds Striking of Jury Due to Inaccurate Trial Duration Estimate and Late Disclosure

By Meryl Rodrigues In an interesting decision released by the Court of Appeal on October 13, 2020, the Court appears to have swiftly dealt with a defendant’s broad appeal on the merits of a trial judgment in an action arising from a motor vehicle accident.[i] The case of Rolley v.Read More

Motion for Consent Adjournment of Trial Denied

The court’s decision in Jaffer v. Remu et al, 2020 ONSC 5736, shows that parties must be prepared to attend a trial on the scheduled date and cannot assume that the court will grant an adjournment even if it is on consent. The action in question arose from a motorRead More

Jury Selection Suspended in Brampton, Toronto, and Ottawa; Virtual Hearings Encouraged

In a Notice to the Profession, issued on October 9, 2020, the Chief Justice of the Ontario Superior Court of Justice suspended jury selection in Brampton, Toronto, and Ottawa for the next 28 days. This follows the Province’s return to a modified Stage Two in Peel, Toronto, and Ottawa inRead More

Fridays With Rogers Partners

This morning, we continued with our in-firm Litigation Strategy Series. Tom Macmillan presented the second part of his seminar on mediations. Tom provided a lot of practical advice, including: In opening statements, be yourself and be brief. Also, consider leaving certain concepts to be explained later by the mediator as some thingsRead More

Due Diligence Required to Identify Liable Parties

In Ali v. City of Toronto, 2020 ONSC 5888, the court denied the plaintiff’s motion to add a winter maintenance contractor to the action after the expiry of the presumptive two year limitation period. The accident occurred in February 2017. The plaintiff slipped and fell on a City of Toronto sidewalk. SheRead More

Ontario Court of Appeal Weighs in on Jury Notices in the Context of the COVID-19 Pandemic

By Matthew Umbrio On September 4, 2020, Justice Sheard of the Ontario Superior Court of Justice  released a decision on a motion to strike the defendant’s jury notice, in Belton v. Spencer.[1] Her Honour, in granting the plaintiff’s motion, held that, in order to respond to the additional challenges toRead More

Update on Suspension of Limitation Periods

Most limitation periods in Ontario were suspended due to the COVID-19 pandemic. The suspension started on March 16, 2020, and limitation periods resumed running on September 14, 2020. In a previous blog post, we noted that the regulation that provided for the suspension, Ontario Regulation 73/20, indicated that “the temporary suspensionRead More

Matthew Umbrio in The Lawyer’s Daily

Matthew Umbrio was recently featured in a two-part series in The Lawyer’s Daily on the extra-provincial application of Ontario’s priority dispute scheme: Part 1 Part 2Read More

Fridays With Rogers Partners

This morning, at our weekly firm meeting, Tom Macmillan presented a seminar on mediations as part of our in-firm Litigation Strategy Series. Tom provided some very helpful and practical tips, including: Be open-minded about the selection of a mediator. If you have not used a particular mediator before, it mayRead More

Who is the Ontario Patient Ombudsman?

By Gemma Healy-Murphy Established in 2016, the Ontario Patient Ombudsman[1] receives and resolves complaints related to Ontario’s public hospitals, long-term care homes, and home and community care coordinated by the Local Health Integration Networks. The Patient Ombudsman has no jurisdiction in matters involving a regulated healthcare professional, private retirement homeRead More

ORIMS Publishes Article by David Rogers

David Rogers’ article, “COVID-19: The Ultimate Business Interrupter”, was published in The Pulse, a magazine of the Ontario Risk and Insurance Management Society. David’s article starts at page 15 of the magazine.Read More

Successful Costs Decision by Tom Macmillan

Tom Macmillan was successful on the issue of costs in the case of De Albornoz v. Christie et al, 2020 ONSC 5642. The action arose out of the partial collapse of a house. Tom represented a third party engineering firm. The third party commenced a summary judgment motion, following which theRead More

Brian Sunohara in Canadian Underwriter

Brian Sunohara was recently quoted in Canadian Underwriter in an article called “Insurer ordered to pay $21 million in interest on a $25-million court award“. The article refers to commentary by Brian regarding a case where an insurer was ordered to pay compound prejudgment interest of US$14.8 million (about CAD$21Read More