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Time to Appeal Usually Starts From Release of Reasons – But Not Always

The time to commence an appeal generally starts when the reasons for the decision are released (either orally or in writing), not from the date that the judgment is settled and issued. However, as indicated in the recent Court of Appeal decision of Gefen v. Gaertner, 2021 ONCA 631, thisRead More

Court Rejects Insurer’s Position on Material Misrepresentation Due to Insufficient Evidence

By Brian Sunohara The decision in Estate of Kareem Watson et al v. RBC, 2021 ONSC 5305, addresses some of the evidence that may be required when an insurer attempts to rely on a material misrepresentation as a basis for voiding an insurance policy. Watson and Doucette were common lawRead More

Fridays with Rogers Partners

At our weekly firm meeting, Michael Kryworuk discussed the decision of Ramnarine v. Marino, 2021 ONSC 5935, which we addressed on our blog yesterday. The decision shows that the court may dispense with service of a document where there is evidence of extensive unsuccessful efforts to personally serve the document.Read More

Dispensing with Service Can be Ordered in Appropriate Circumstances

In Ramnarine v. Marino, 2021 ONSC 5935, the plaintiffs brought a motion for substituted service of a statement of claim. The plaintiffs provided evidence of extensive efforts to locate the defendant. The plaintiffs sought to serve the defendant at his address contained in the Ministry of Transportation database. However, a processRead More

LAT Application Barred Due to Missed Insurer Examinations

By Suganiya Sivabalan The recent License Appeal Tribunal decision in Amoh v. Pembridge Insurance, 2021 ONLAT 20-001280/AABS, addresses the issue of whether an applicant is barred from commencing a proceeding against the respondent when the applicant fails to comply with section 44 of the Statutory Accident Benefits Schedule (“SABS”) byRead More

Who Pays for Productions in Simplified Procedure Actions?

One of the issues in the case of Rheaume v. Foster, 2021 ONSC 5804, was whether the plaintiff or the defendant was responsible for paying the cost of obtaining productions, such as medical records, in a Simplified Procedure action. Justice Boswell held that each party is required to pay forRead More

Andrew Yolles Successfully Defends Motion to Examine Non-Party

Andrew Yolles was recently successful in defending a motion to examine a non-party. The action arises out of remedial work that was being performed by the defendant at the plaintiffs’ house. One of the plaintiffs allegedly tripped on a plastic containment barrier. The plaintiffs allege that a former employee of the defendantRead More

Fridays with Rogers Partners

At our weekly firm meeting, Annie Levanaj discussed the recent decision of Justice Boswell dismissing a summary judgment motion brought by the defendants in Adler v. Promenade General Partner Inc., 2021 ONSC 5393. Incident This action arose from an incident that occurred on August 8, 2018, when Ms. Adler, theRead More

Rogers Partners Authors Chapter in New Civil Procedure Text

Civil Procedure & Practice in Ontario (CPPO) is a new text written by a team of 135 litigators and experts in Ontario civil procedure. It explains the Rules of Civil Procedure, the Courts of Justice Act, and the Limitations Act, along with the case law interpreting them. Professor Noel SempleRead More

The Interpretation of Standard Form Insurance Policies: $56 Million Award Overturned

By Natalia Sheikh The recent Court of Appeal decision in MDS Inc. v Factory Mutual Insurance Company discusses the interpretation of standard form insurance contracts and coverage in all-risk policies.[1] Background In MDS, the insurer appellant, Factory Mutual Insurance Company (“FM Global”), issued an all-risk insurance policy (“the Policy”) toRead More

Jennifer Singh Joins Rogers Partners

We’re happy to welcome Jennifer Singh to Rogers Partners as an associate lawyer! Jennifer joins us from the in-house legal department of an insurance company where she handled numerous bodily injury and accident benefits claims.Read More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision in Johnson v. Jevco, 2021 ONSC 4870. This case concerned an appeal of a decision made by the License Appeal Tribunal (“LAT”), finding that the applicant/respondent was entitled to statutory accident benefits (“SABs”) as he was insured at the timeRead More

Dismissal for Delay Upheld on Appeal

In Lumaj v. St. Michael’s Hospital, 2021 ONSC 5786, the Divisional Court upheld a dismissal of a lawsuit for delay. The registrar had dismissed the lawsuit in May 2013. The plaintiff’s former lawyer did not take steps to set aside the dismissal. The plaintiffs themselves first learned of the dismissalRead More

A Caution on Choice and Timing of Defence Medical Experts

By Meryl Rodrigues The recent Superior Court motion decision in Mitsis v. Holy Trinity Greek Orthodox Community of London[i] speaks to the importance of defence counsel properly considering strategy when arranging a medical examination of a plaintiff – both with respect to timing of such an examination and to theRead More

Occupiers’ Liability Claim Dismissed

In Massaroni v. Yum! Brands Inc., 2021 ONSC 5460, the court dismissed the plaintiff’s action in a matter involving an occupiers’ liability claim. The plaintiff was walking from a parking lot of a KFC store to a TD Bank.  There was a barrier separating two properties. The barrier was comprisedRead More

Vaccination Required to Serve on Jury in Upcoming Trial

The trial judge in an upcoming trial has ruled that, in order to serve on the jury, the jurors must be fully vaccinated against COVID-19. In R. v. Frampton, 2021 ONSC 5733, Justice Phillips stated that, “in the context of the burgeoning ‘fourth wave’, allowing an unvaccinated person to serveRead More

Fridays With Rogers Partners

At our weekly firm meeting, Michael Kryworuk discussed the case of Sarta v. Mazo, 2021 ONSC 5660. History of the Litigation This matter arises from an action commenced by the Plaintiff, Mr. Sarta, against the Defendants, his former lawyers, for breach of contract and negligence in handling his tort andRead More

Multiple Lawyers from Rogers Partners in The Best Lawyers in Canada

Rogers Partners LLP is pleased to announce that the following lawyers have been selected for inclusion in the 2022 edition of The Best Lawyers in Canada™:  Stephen Ross, Kevin Adams, Anita Varjacic, Brian Sunohara, and David Rogers.Read More

Court Confirms Jury Not To Be Advised of Statutory Deductible

One of the issues in Rumney v. Nelson, 2021 ONSC 5632, was whether the jury should be advised of the statutory deductible in a motor vehicle accident trial. Justice Fowler Byrne confirmed that the jury should not be so advised. Section 267.5(7) of the Insurance Act indicates that damages forRead More

Clarity at Last – Extension of Limitations Periods at the LAT

By Alon Barda There has been much confusion regarding the applicability of s.7 of the Licence Appeal Tribunal Act[1] (the “LAT Act”) in recent years. This was finally put to rest with the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company[2]wherein it was held that theRead More

Limitation Period and Discoverability in Unidentified Motorist Claims

By Alon Barda and Natalia Sheikh The Ontario Court of Appeal’s decision in Rooplal v. Foder, 2021 ONCA 357 addresses the time period that applies in unidentified motorist claims pursuant to s. 265 of the Insurance Act[1] and Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (“Regulation 676”). Facts The plaintiffRead More

Fridays with Rogers Partners

At our weekly meeting, Annie Levanaj discussed the recent decision of the Ontario Superior Court of Justice in Skoblenick v Aviva General Insurance Company, 2021 ONSC 5340. This decision concerned motions brought by both parties for directions and costs regarding repeatedly adjourned examinations for discovery. History of the Litigation ThisRead More

The Rule in Browne and Dunn

By Brian Sunohara Every litigator needs to be familiar with the rule in Browne and Dunn. In Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 4046, the court went over the principles of this rule. Overview of the Rule The rule in Browne and Dunn requires a cross-examining lawyerRead More

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