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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

Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision by the Court of Appeal in Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267. The Court considered an appeal from the costs ruling of the trial judge brought by the defendant, Hamilton Retirement Group Ltd. (referredRead More

Further Suspension of Small Claims Court Hearings

Most Small Claims Court hearings were previously adjourned to May 3, 2021 due to the COVID-19 pandemic. In a notice issued yesterday, the Court advised that the adjournment is extended to June 1, 2021, or to such other date as determined by the Court. This applies to: matters that, asRead More

Court Approves $23 Million Settlement of Bank Cyber Breach Class Actions

By Andrew Yolles The Ontario Superior Court recently released joint decisions in Mallette v. Bank of Montreal, 2021 ONSC 2924, and Bannister v. Canadian Imperial Bank of Commerce, 2021 ONSC 2927, approving the settlement of both class actions arising from a data breach that occurred at BMO and CIBC inRead More

Personal Opinions Improper in Lawyers’ Affidavits

Lawyers frequently swear affidavits in support of motions. A recent court decision cautions that a lawyer’s personal beliefs or opinions do not belong in an affidavit. In Rochon v. Commonwell Mutual Insurance Group, 2021 ONSC 2880, the plaintiff sought to amend the statement of claim. In an affidavit, defence counsel stated thatRead More

Production of Surveillance Investigation Reports

When surveillance videos are produced by a defendant to a plaintiff, a question sometimes arises whether the reports and notes of the investigators also need to be produced. In Rumney v. Nelson, 2021 ONSC 2493, Justice Fowler Byrne held that the investigators’ reports and notes do not have to beRead More

Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of Master Robinson in Maier v. Cedarbuilt Project Management Ltd., 2021 ONSC 2894, regarding a motion brought by the plaintiff for an extension of the deadline to set the matter down for trial. Introduction The plaintiff moved for a statusRead More

Deferral of Civil Proceedings Due to COVID-19

The Ontario Superior Court of Justice issued an updated Notice of Profession and Public Regarding Court Proceedings on April 20, 2021. In light of the severity of the COVID-19 pandemic, the court is going to defer as many matters as possible until May 7, 2021. This includes virtual hearings. During this time,Read More

CaseLines Update

The Ontario Superior Court of Justice provided an update on CaseLines in a Supplementary Notice to the Profession that was issued on April 16, 2021. CaseLines has now been implemented in Toronto and was expanded to the East and Northwest regions in March 2021. CaseLines is being expanded to the CentralRead More

Court Rejects Late Notice Defence

In Graham v. City of Toronto, 2021 ONSC 2278, the plaintiff tripped on a large, deep pothole. She tore her right rotator cuff and sustained other injuries. She required surgery one year and three months after the accident. Under the City of Toronto Act, 2006, the plaintiff was required to giveRead More

Motion to Strike Jury Notice in Toronto Denied

In Losty v. Reesor, 2021 ONSC 2622, the court denied the plaintiffs’ motion to strike a jury notice in a Toronto action. The action arose out of a motor vehicle accident in August 2014. At trial scheduling court in November 2019, a three week jury trial was scheduled for theRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed the Court of Appeal’s decision in Goldentuler v Simmons Dasilva LLP, 2021 ONCA 219, wherein the defendants, Simmons Dasliva LLP and Ray Thapar, appealed the order of the motion judge dismissing their motion pursuant to r. 21.01(3)(b) of the Rules of Civil ProcedureRead More

Applications vs. Actions

An application to the court can only be brought in limited situations. Rule 14.05(3) of the Rules of Civil Procedure sets out the circumstances in which an application is authorized. There is a “catch-all” provision in rule 14.05(3)(h) which permits an application “in respect of any matter where it is unlikelyRead More

How Technology Can Outpace Law Reform

By Dana Eichler and Emily Vereshchak An attack on an individual’s character is not a new concept. People have been defaming and insulting each other for centuries. Obviously, however, the manner and nature in which defamatory statements and comments are made, has developed along with society. A press conference onRead More

Son Took Car Without Consent: Case Dismissed Against Mother and Insurer

In Joseph v. Coxall-Mejia et al, 2021 ONSC 2508, the court granted summary judgment to the owner of an automobile and the owner’s insurer because the defendant driver did not have consent to possess the automobile. The driver was the son of the owner. The plaintiff went to visit theRead More

Updated Notice to the Profession on Superior Court Proceedings

The Ontario Superior Court of Justice released an updated Notice to the Profession and Public Regarding Court Proceedings on April 8, 2021. The Court continues to hear as many matters as possible virtually. In-person matters will not be held, except for only the most serious child protection matters, urgent familyRead More

Fridays With Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of the Ontario Court of Appeal in Francis v. Ontario, 2021 ONCA 197. Francis is an appeal arising from a summary judgment motion in a class action commenced against the Province by inmates subject to administrative segregation in Ontario’s correctionalRead More

The COVID Legal Landscape

By Athina Ionita, Student-at-Law The COVID-19 pandemic has brought with it a wave of legal claims. The Ontario government has attempted to protect those subject to this wave of litigation and return some stability to the litigation landscape with the passing of Supporting Ontario’s Recovery Act, 2020,[1] (“the Act”) whichRead More

Learning to Prioritize Mental Health During the Pandemic

By Rebecca Moore It is hard to believe that it has been over a year since the pandemic began. Over a year since we have all been trying to maintain that delicate balance between work-life and home-life, all the while trying to keep ourselves, our family and friends, safe andRead More

Costs at the LAT – Revisiting One of the More Controversial Changes

By Alon Barda Background and Legislative Basis for Costs In January 2018, I co-authored a paper that looked at the LAT as it approached two years at that time. The paper outlined that one of the most significant differences from FSCO to the LAT is the costs that may beRead More

Athina Ionita and Christopher MacDonald Hired Back as Associates

Rogers Partners LLP is delighted to announce that our articling students, Athina Ionita and Christopher MacDonald, will be joining the firm as associates after they are called to the bar this summer. They have had a very strong articling term and are solid additions to the firm. Congratulations to AthinaRead More

Happy Long Weekend!

All of us at Rogers Partners wish you a very safe, happy, and healthy long weekend! Our thoughts are with those who have been affected by the pandemic. We’re almost at the finish line. “We must accept finite disappointment, but never lose infinite hope.” – Dr. Martin Luther King, Jr.Read More

From the Desk of Andrew Yolles

Hoping for Normality Post-COVID It has been a strange and challenging year since the start of the COVID-19 pandemic. We have seen many rapid changes to the justice system and the practice of law in that past year, to cope with the new, socially-distanced reality in which we all findRead More

In-Person Assessments in the Time of COVID-19

By Meryl Rodrigues At this point, over a year later, it is trite to say that the COVID-19 pandemic has given rise to various changes (and challenges) in the civil legal landscape. From procedural overhauls to substantive legal issues, COVID-19 appears to be an ever-present factor arising in one aspectRead More

Is There a Duty to Warn of Obvious Dangers?

By Jocelyn-Rose Brogan There are dangers in everyday life, but people do not need to be warned of all dangers.  For instance, people do not need to be warned that jaywalking in rush hour traffic is dangerous. In occupiers’ liability claims, defendants should consider whether an alleged danger is anRead More

Rogers Partners Spring 2021 Newsletter

Spring is here, which means it’s time for the Spring 2021 edition of our newsletter, In|Sight! We hope you find the following topics to be of interest: Is There a Duty to Warn of Obvious Dangers?How Technology Can Outpace Law ReformAmendments to Occupiers’ Liability Act: Reasonable Excuse and PrejudiceThe COVIDRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a recent decision by the Court of Appeal in Malik v. Nikbakht, 2021 ONCA 176. In this decision, the Court of Appeal considered an appeal brought by the plaintiff, Sarfraz Malik. Mr. Malik appealed a lower court decision where the court held thatRead More

Failure to Promptly Disclose Partial Settlement Agreement Results in Dismissal of Action

The court’s decision in Poirier v. Logan, 2021 ONSC 1633, demonstrates the importance of promptly disclosing partial settlement agreements that change the adversarial orientation of the proceeding. The plaintiff sued several parties. In October 2019, the plaintiff and one of the defendants entered into a settlement agreement wherein the action wouldRead More

Portions of Claim Struck Due to Abuse of Process

By Matthew Umbrio The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party or would bring the administration of justice into disrepute. This doctrine was recently considered in UrbanRead More

Updated Notice to the Profession for Toronto

The Ontario Superior Court of Justice’s Notice to the Profession for the Toronto Region was amended effective March 18, 2021. Regarding civil matters, direction is provided on filing documents for motions and applications. All materials for use on a motion or application must be first be filed through the CivilRead More

Update on Status of Civil Jury Trials

The Ontario Superior Court of Justice has issued an updated Notice to the Profession and Public Regarding Court Proceedings. Previously, jury selection and jury trials were suspended until May 3, 2021 at the earliest. The Court now anticipates resuming new jury selection and jury trials on June 7, 2021 atRead More

Friday With Rogers Partners

At our weekly meeting this morning, Angie Bellehumeur discussed the case of Loukas v. Imperial Oil Limited, 2021 ONSC 1944. The defendant brought a motion to dismiss the action for failing to comply with a court-ordered litigation timetable that was peremptory to the plaintiffs and for delay. Master Jolley did notRead More

Erin Crochetière Wins Duty to Defend Application

Erin Crochetière was successful yesterday in a duty to defend application. The underlying action arises out of an alleged slip and fall accident on spilled liquid at a store. The store contracted with a cleaning company that was insured by AIG. The store was an additional insured on the AIG policy. ShortlyRead More

Jury Notice Struck After Transfer to Simplified Procedure

By Jocelyn-Rose Brogan The simplified procedure under Rule 76 of the Rules of Civil Procedure offers a method of proceeding with actions seeking monetary damages (or real or personal property with a  fair market value) of $200,000 or less, that aims to simplify, speed up, and reduce the cost ofRead More

Jury Notice Not Struck in Central West Action

In S.M. v. Longo, 2021 ONSC 1348, the plaintiff moved to strike the jury notice on the basis of delay caused by the pandemic. The motion was dismissed. The action was commenced in 2014 in Milton. The trial was scheduled to commence on March 22, 2021 in Brampton. No civilRead More

Notice to the Profession on Divisional Court Proceedings

The Divisional Court recently released a detailed Notice to the Profession that applies to all Divisional Court matters anywhere in Ontario. All counsel with Divisional Court matters will need to be familiar with this notice. The information contained in the notice includes: How to commence a new Divisional Court proceedingHowRead More

Test for Scheduling Motions for Partial Summary Judgment

In Malik v. Attia, 2020 ONCA 787, the Court of Appeal provided directions on the factors to consider when determining whether a motion for partial summary judgment should proceed. The Court of Appeal indicated that the risk of inconsistent findings is only one factor.  The court must determine whether partialRead More

Fridays with Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the case of Tongtae v. Her Majesty the Queen (Ontario), 2021 ONSC 1613. The case concerned a Rule 21 motion brought by Her Majesty the Queen (“HMQ”) on the grounds that there was no private law duty of care owed to theRead More

Test for Setting Aside Noting in Default

In Westcott v. Khan, 2021 ONSC 1396, Justice Emery went over several cases which outline the issues to consider in setting aside a noting in default pursuant to rule 19.03(1) of the Rules of Civil Procedure. The principles are: The threshold for setting aside a noting in default is low. TheRead More

Reflections on COVID One Year Later – Apprehension and Appreciation

By Gemma Healy-Murphy Recently, while researching case law, I happened upon the words of Master Short who set the stage for those who might read his decision in years to come. He wrote: [1] At some future time, these reasons may require clarification arising from the 2020 impact on OntarioRead More

Late Service of Expert Report Causes Adjournment of Trial

By Brian Sunohara A recent court decision shows the importance of complying with timelines to serve expert reports. Justice Daley said that counsel are “sorely mistaken” if they think a breach of the Rules of Civil Procedure has no consequences. The decision involves a motion to adjourn a trial. Andrew YollesRead More

Objections and Video Recording Cross-Examinations for Motions

In Schukla v. Fenton, 2021 ONSC 1340, the plaintiff’s lawyer adjourned the cross-examination of a defendant in respect of a motion due to the alleged improper conduct of the defendants’ lawyer. During 43 minutes of cross-examination, there were 37 objections and refusals, most of which were on the grounds ofRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed the case of Baker v. Blue Cross, 2021 ONSC 1485. This decision is the most recent in a string of Toronto decisions wherein the Court has considered a motion to strike a jury notice due to delays caused by the pandemic. This decisionRead More

CaseLines Now in East and Northwest Regions

The Ontario Superior Court of Justice has issued a Supplementary Notice to the Profession and Litigants regarding the CaseLines document storage platform. CaseLines has now been implemented in Toronto. On March 1, 2021, it was expanded to the East and Northwest regions. In these regions, CaseLines will first be used forRead More

Door Remains Closed on Social Host Liability

By Erin Crochetière In Jonas v. Elliott, 2021 ONCA 124, the Court of Appeal added to the history of cases in which the courts have declined to recognize a duty of care between social hosts and those injured by the actions of their guests.[1] The plaintiff, Mr. Jonas, was assaultedRead More

Divisional Court Allows Appeal on Court-Appointed Expert

In Sosnov v. J&H Freiberg, 2021 ONSC 1081, the Divisional Court overturned an order regarding a court-appointed expert. The action involves an occupiers’ liability claim. The plaintiff alleges that she hit her head on the underside of an interior staircase in a building. At a pre-trial conference, the pre-trial judge feltRead More

Disclosure of Communications at Pre-Trial Conferences

Discussions at a pre-trial conference are generally without prejudice and cannot be subsequently disclosed in the proceeding. Rule 50.09 of the Rules of Civil Procedure states: No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in theRead More

Fridays With Rogers Partners

At our weekly firm meeting, Angeline Bellehumeur discussed the case of Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344. The court considered various relief sought by the defendant, Aviva General Insurance Company (“Aviva”). The following are highlights of the Court’s decision with respect to Aviva’s motion for anRead More

Court Comments on Supervision of Junior Lawyers and Students During Pandemic

Working from home during the pandemic has been necessary, but a recent decision of Justice Myers shows that it is not without some problems. The decision, Polgampalage v. Devany, 2021 ONSC 1157, involved an unopposed motion to transfer an action from Windsor to Toronto. Justice Myers dismissed the motion becauseRead More

Misunderstanding Over Scope of Claims Leads to Dispute at Trial

By Emily Vereshchak The mid-trial ruling of Justice Tranquilli in Solanki v. Reilly, 2021 ONSC 1326,[1] provides an analysis of the importance for counsel to ensure there is a “meeting of the minds” with regards to which claims are being pursued at trial. Overview The plaintiff sought to lead theRead More

Notice to the Profession on Civil Trials in Central East Region

The Central East Region of the Ontario Superior Court of Justice recently issued a new Notice to the Profession dealing with civil trials. The regular civil trial sittings will commence on May 17, 2021 for three weeks. Only non-jury matters will be heard. Trials will be conducted virtually. The following cases areRead More

Claim Struck Against Condo Board Members

In Matlock v. Ottawa-Carleton Standard Condominium Corporation No. 815 et al, 2021 ONSC 390, the plaintiff commenced an action against a condominium corporation for various alleged deficiencies. He also sued several members of the condominium’s Board of Directors. The board members brought a motion to strike the claim as against them. JusticeRead More