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Noisy Neighbour? You May Not Be Entitled To A Legal Remedy

By Athina Ionita Introduction In Kikites v. York Condominium Corporation No. 382, 2022 ONSC 4606, a condominium unit owner (the Applicant) complains of noises coming from the upstairs unit. The Applicant seeks a number of remedies under the Condominium Act, 1998, SO 1998, c. 19, alleging that the condominium corporationRead More

Dispute Over Defence Medical Exam in LTD Claim

The case of Terra v. Desjardins Financial Security Life Assurance Company, 2022 ONSC 4673, involves a dispute over a defence medical examination in a long-term disability benefits claim. Prior to the commencement of the action, the plaintiff attended a psychiatric assessment with Dr. Chad at the request of the defendantRead More

Riley Groskopf Joins Rogers Partners

Riley Groskopf has joined our growing team! Riley comes to us from another insurance defence firm where his practice included defending claims involving motor vehicle accidents (tort and accident benefits), occupiers’ liability, and property loss. We’re happy to have Riley on board!Read More

Availability of Judicial Review in SABS Disputes

By Annie Levanaj The Court of Appeal’s decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, provides guidance on how judicial review should be dealt with when a statutory right to appeal also exists. It also reinforces the importance of limitation periods and ensuring claims are commenced inRead More

Slip and Fall Near Car Not “Accident” for SABS Coverage

In Namin v. Allstate Insurance Company of Canada, 2022 CanLII 70251 (ON LAT), Vice-Chair Maedel of the Licence Appeal Tribunal held that an incident wherein the applicant slipped and fell on snow and ice after exiting her vehicle was not an “accident” under the Statutory Accident Benefits Schedule. The descriptionRead More

Insurance Coverage Seminar

Our firm regularly conducts training seminars for our lawyers and students as part of our Litigation Strategy Series. Yesterday, Andrew Yolles presented on Insurance Coverage. Andrew prepared a helpful set of slides addressing the following issues: First party vs. third party coverage;Different types of liability coverage;Determining coverage: duty to defendRead More

Amendments to Superior Court’s Notice to the Profession

The Ontario Superior Court of Justice’s Notice to the Profession, Parties, Public and the Media was amended on August 2, 2022. Regarding civil matters, the amendments are contained in Part II, paragraphs 1 to 4 of the Notice. These amendments are as follows: Parties must provide accurate time estimates forRead More

LAT Limits Use of Insurer Examination Report Based on Improper Notice to Applicant

By Amanda Colarossi Overview Section 44 of the Statutory Accident Benefits Schedule (“SABS”) outlines the requirements of an insurer when scheduling an insurer examination (“IE”). The Licence Appeal Tribunal (“Tribunal”) can, on a motion, create remedies for any breaches of s.44. This was the situation in Waring v. Aviva GeneralRead More

Rogers Partners Carnival Potluck

Last week, we had a potluck lunch at our firm in celebration of Caribbean Carnival weekend and in recognition of Emancipation Day. Thank you to our Equity, Diversity and Inclusion Committee for organizing the lunch and to everyone who contributed to and participated in the event.Read More

Pleadings Seminar

Meryl Rodrigues presented an in-firm seminar for our lawyers and students this morning on Pleadings. Meryl addressed several issues to consider when preparing a statement of defence, including: Examining whether the client was properly named;Checking if the claim was issued in time;Assessing whether the court has jurisdiction;Seeing if other entitiesRead More

Athina Ionita Published in Ontario Accident Benefit Case Summaries

An article by Athina Ionita on the exclusive jurisdiction of the Licence Appeal Tribunal over statutory accident benefits disputes has been published in Ontario Accident Benefit Case Summaries, a LexisNexis publication. The article can be found here.Read More

Introducing Our New Articling Students

We’d like to extend a very warm welcome to our new articling students! Emmanuel Couture-Tremblay, Nasra Esak, Taya Rosenberg, and Katrina Taibi started with the firm this week. Congratulations to our new students on completing law school and entering the next phase of their journeys to becoming lawyers!Read More

Court Considers Criminal and Intentional Act Exclusions in Person Found Not Criminally Responsible

The case of Butterfield v. Intact Insurance Company, 2022 ONSC 4060, involves a duty to defend application against an insurer.  The applicant, who has schizophrenia, suffered a psychotic episode while at a firearms store.  He stabbed the store owner in the honest but deluded belief that he was defending himselfRead More

Mind Your Step

By J. Nicholas Fernandes Overview The Occupiers’ Liability Act places a positive duty on occupiers to take such care as is reasonable in the circumstances to ensure that persons entering upon their premises are reasonably safe when doing so. The duty of care in each case is fact specific and takesRead More

Appeal in LAT Proceeding Dismissed as Premature

In Grewal v. Peel Mutual Insurance Company, 2022 ONSC 4082, the Divisional Court confirmed that an appeal in a regulatory proceeding, such as a matter before the Licence Appeal Tribunal, must wait until there is a final determination of the claim. The matter in issue involved a statutory accident benefitsRead More

Fridays With Rogers Partners

At our weekly meeting, Michael Kryworuk discussed the court’s decision in Aditi v. Doe, 2022 ONSC 4049. Michael has written the following summary of the decision. History of the Litigation This case involved a dispute between a motorist and her insurer. The plaintiff, Ms. Aditi, was insured by Intact. TheRead More

Municipality Successfully Relies on Minimum Maintenance Standards in MVA claim

In Beardwood v. The City of Hamilton, 2022 ONSC 4030, the plaintiff was involved in a single vehicle motorcycle accident at an intersection in Hamilton, Ontario. The plaintiff was traveling at a low speed and encountered a bump or surface discontinuity on the roadway formed by a longitudinal asphalt lip. Read More

Court of Appeal Upholds Interpretation of Equitable Contribution

By Natalia Sheikh Overview When an insured has more than one insurance policy which each contain “other insurance” clauses, disputes sometimes arise over whether only one insurer has to respond to a loss, or whether multiple insurers have to respond. This was the situation in Northbridge General Insurance Company v.Read More

Rogers Partners Summer Party

We had a fun time playing mini golf and having great conversation at our employee summer party yesterday. What a great way to kick off the summer!Read More

Court of Appeal Upholds Coverage Denial for Intrusion Upon Seclusion

By Meryl Rodrigues In its recent decision of Demme v. Healthcare Insurance Reciprocal of Canada[1], the Court of Appeal addressed the commercial liability insurer’s duty to defend actions based on the tort of intrusion upon seclusion against an employee of the insured, ultimately affirming the insurer’s denial of coverage underRead More

Court of Appeal Removes Masking Requirement

Starting today, July 4, 2022, masks are no longer mandatory at the Ontario Court of Appeal. However, many COVID-related protective measures remain in place, which can be found in the Court’s Protocol for In-Person Hearings During the Pandemic. Those participating in an appeal should also review the Court’s Practice Direction.Read More

Happy Canada Day!

Rogers Partners wishes everyone a safe long weekend. Happy Canada Day!Read More

Concurrently Consuming and Serving: Considerations for Third Party Claims Against Commercial Hosts

By Kathryn Orydzuk In the recent decision, McHugh v. 2209664 Ontario Inc. et al, 2022 ONSC 3729, the Court considered a motion to strike a third party claim commenced by an occupier against a tavern. Facts The main action arose out of a 2018 slip and fall on an allegedlyRead More

Congratulations to Michael Kryworuk and Annie Levanaj

Congratulations to Michael Kryworuk and Annie Levanaj on recently being called to the Ontario Bar. Michael and Annie had a very successful articling term with Rogers Partners and are now officially lawyers! We’re happy that they have both returned to the firm as associates, and we wish them continued successRead More

Summary Judgment Motion Brought Too Late, with Too Little Evidence

By Jennifer Singh In our March 31, 2022 blog post[1], we discussed the decision in Atsaidis v. Sanford, 2022 ONSC 1690, wherein a consent adjournment of trial to permit the defendants to bring a summary judgment motion on a limitation period issue was denied by Justice D.A. Wilson. Justice WilsonRead More

Rogers Partners Celebrates Pride Month

June is Pride Month, where we recognize the history, courage, and diversity of the 2SLGBTQ+ community. Rogers Partners is committed to fostering an inclusive workplace. We celebrate diversity and its role in our firm’s fabric. We wish everyone a Happy Pride Month!Read More

Tom Macmillan Speaking at Cybersecurity and Privacy Conference

The Advocates’ Society’s program on Cybersecurity and Privacy for Litigators is coming up on July 5, 2022. Tom Macmillan will be on a panel discussing confidentiality issues. As indicated by The Advocates’ Society, privacy and cybersecurity issues arise in all legal practices. Civil litigators handle massive amounts of sensitive data andRead More

Government Liability: Tension Between the Legislature and the Courts

Stephen Ross, Andrew Yolles, and Natalia Sheikh have written a detailed paper called “Government Liability: Tension Between the Legislature and the Courts“. It addresses the following issues: History of Crown Liability; Jurisdiction & Framework for Statutory Causes of Action Against Government Entities; Private Law Duty of Care; Enactment of theRead More

“Dependent Relative” Under the OPCF 44R: Where Does the Plaintiff “Reside”?

By Emily Vereshchak In Chaboyer et al v. Gill et al, 2022 ONSC 3452, the Court analyzed the details of the plaintiff’s living circumstances to determine whether she could be classified as an “eligible claimant” and make a claim pursuant to an OPCF 44R Family Protection Endorsement in an insuranceRead More

Providing Summary of Party’s Statement Generally Not Required

At examinations for discovery, counsel will sometimes ask for a summary of an opposing party’s statement. Such a summary usually does not have to be provided, if the statement is protected by litigation privilege. This issue was addressed by the Divisional Court in Sangaralingam v. Sinnathurai, 2011 ONSC 1618 (Div.Read More

Stephen Ross and Anita Varjacic Presenting at OBA Trial Conference

The Ontario Bar Association’s Anatomy of a Trial conference is coming up on June 23 and 24, 2022. It will feature eight justices of the Superior Court of Justice and the Court of Appeal and 45 experienced trial advocates. The conference will cover all main steps in a personal injuryRead More

No Damages, Nominal Damages, and Costs

By Erin Crochetière The Ontario Court of Appeal heard the appeal in Pullano v. Hinder, 2022 ONCA 418 regarding an action for battery, and counter-claim in defamation. The plaintiff, Mr. Pullano, was punched in the chest by the defendant, Mr. Hinder. Mr. Hinder’ s employer was also named in theRead More

New Notice to the Profession in Central East Region

The Central East Region of the Ontario Superior Court of Justice has issued a new Notice to the Profession and Parties, which came into effect on June 1, 2022. The notice addresses issues such as the mode of hearings, uploading documents to CaseLines, scheduling motions, documents required for long motions,Read More

Michael Brown Joins Rogers Partners

We’re happy to announce that Michael Brown has joined the firm as an associate lawyer! Michael has practiced insurance defence and personal injury litigation since his call to the Bar in 2019. He is a welcome addition to our growing team!Read More

Reference to Masks, COVID-19 Not Sufficient to Dismiss Action via “anti-SLAPP” Legislation

By Athina Ionita In Dent-X Canada v. Houde, 2022 ONCA 414, the Court of Appeal considered whether a defamation action concerning an internet post about the plaintiff’s services in supplying face masks during the COVID-19 pandemic should be dismissed pursuant to Ontario’s “anti-SLAPP” legislation, s. 137.1 of the Courts ofRead More

Amanda Colarossi Joins Rogers Partners

We’re pleased to welcome Amanda Colarossi to the firm as an associate lawyer! Amanda joins us from a large insurance company where she was in-house counsel since 2019. Amanda has a wide range of experience handling tort and accident benefits claims. We’re happy to have her on board!Read More

Landlord Not Permitted to Rely on Waiver Clause in Residential Lease

The decision in Lewis v. 3414493 Canada Inc., 2022 ONSC 2769, involves a slip and fall accident in the parking lot of an apartment building. The plaintiff is a tenant of the building. The defendant landlords relied on a waiver clause in the tenancy agreement. The waiver indicated that theRead More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Court of Appeal in Lin v. Weng, 2022 ONCA 367. Facts On March 15th, 2016, Qi An Weng, one of the defendants, burned down her landlord’s residence while attempting to extract resin from marijuana. Her landlord, theRead More

Rogers Partners Celebrates Asian Heritage Month

This month is Asian Heritage Month in Canada. It is a time to reflect on and recognize the many contributions that Canadians of Asian heritage have made and continue to make to Canada. As the Canadian government aptly states: Diversity represents one of Canada’s greatest strengths, and we strive toRead More

Effect of Subsequent Offers to Settle on Prior Offers

In some cases, a party will make an initial offer to settle and will then make subsequent offers. When a subsequent offer is made, previous offers are withdrawn by implication. However, in many situations, it is beneficial to leave prior offers on the table in order to potentially obtain aRead More

Court of Appeal COVID-Related Procedures

The Ontario Court of Appeal has prepared a helpful one page document on COVID-related procedures. It addresses issues such as filing court documents and the mode of proceedings.Read More

Court Denies Motion to Transfer Action to Simplified Procedure When Jury Notice Filed Prior to Amendments to Rules

The decision in Thomas v. Aviva, 2022 ONSC 1728, arose out of a motor vehicle accident in April 2016. An action was commenced under the ordinary procedure. The defendants, RBC and Aviva, delivered a statement of defence and a jury notice in September 2018. The plaintiff subsequently brought a motionRead More

Practice Management Seminar & Dinner

Our lawyers and students have an annual Practice Management Seminar where we share ideas on professional development. It was wonderful to get together yesterday for our seminar and dinner. Most importantly, it was a great chance to connect with each other. A fun time was had by all!Read More

The Court of Appeal Decides First Pandemic Coverage Claim

By Natalia Sheikh Overview In 202135 Ontario Inc. v. Northbridge General Insurance Corporation, 2022 ONCA 304, the Ontario Court of Appeal ruled in favour of the insured on an insurance coverage application related to coverage for business interruption losses as a result of the COVID-19 pandemic. This appears to beRead More

Divisional Court Dismisses Appeal on Deducting LTD Settlement from Income Replacement Benefits

The decision in Co-operators General Insurance Company v. Branden, 2022 ONSC 2473, involves a statutory accident benefits claim in which the insurer sought to deduct from income replacement benefits amounts received in a settlement of an LTD claim. The Licence Appeal Tribunal held that there were insufficient details of theRead More

Claim Arising From Slip and Fall at Courthouse Dismissed

In Martin v. AGO et al, 2022 ONSC 1923, the plaintiff, a lawyer, attended at the Hamilton courthouse and slipped on a small amount of water.  It was raining on the day of the accident, and the water on the floor came from a wet umbrella of a visitor toRead More

Rogers Partners Meetup

We’ve started a new tradition at Rogers Partners. For over 25 years, our lawyers and students have gotten together on Friday mornings for a “muffin meeting”, where we discuss legal developments. Now, each month, we’re going to have one of our meetings on Thursday afternoon and then get together forRead More

Ahluwalia v. Ahluwalia: Ontario’s Latest Ground-breaking Decision

By Nicholas Fernandes Overview: In an unexpected and precedent setting decision, an Ontario Superior Court judge established a new tort. In the recent case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Justice Renu Mandhane ordered a man to pay his former spouse $150,000 in damages for the physical and psychological abuse sheRead More

Plaintiff Awarded $125,000 for Internet Defamation

The decision in Cyr v. LeBlanc, 2022 ONSC 2555, shows that damages in defamation actions can be quite high. The defendant published statements about the plaintiff on several websites.  Many of the statements labeled the plaintiff as being racist.  The plaintiff contacted the defendant by Instagram, requesting the postings beRead More

Eid Mubarak

Eid al-Fitr (“Festival of Breaking Fast”) marks the end of Ramadan, the Muslim holy month of fasting. It is celebrated during the first three days of Shawwal, the 10th month of the Islamic calendar. It is an occasion for special prayers, family and friends visiting, gift-giving and charity. In Canada,Read More

Fridays with Rogers Partners

This week, our weekly firm meeting was held on Thursday afternoon! Michael Kryworuk discussed the recent decision of the Court of Appeal in 1152729 BC Ltd v. Chicago Title Insurance Company Canada, 2022 ONCA 321. History of the Litigation: This appeal arises from a coverage dispute between the appellant insurerRead More

Late Service of Expert Reports Now Being More Closely Scrutinized

In Agaj v. Munroe, 2022 ONSC 2508, the plaintiff proceeded to trial in a motor vehicle accident case without having expert reports addressing the plaintiff’s claim for income loss and medical and housekeeping needs. After the jury was selected, the plaintiff’s lawyer advised the court that he had spoken toRead More

Rule 59.06 and Re-Opening Hearings

By Meryl Rodrigues Finality in proceedings is generally promoted by the courts. In Tsaoussis (Litigation Guardian of) v. Baetz, the Ontario Court of Appeal stated: Finality is an important feature of our justice system, both to the parties involved in any specific litigation and on an institutional level to theRead More

New Notice to the Profession for Northwest Region

There is a new Notice of the Profession for the Ontario Superior Court of Justice’s Northwest Region. The Northwest Region is comprised of Thunder Bay, Kenora, and Fort Frances. For civil matters, the presumptive mode of proceedings in the Northwest Region is the same as the Provincial Notice to theRead More

New Notice to the Profession for Northeast Region

The Ontario Superior of Justice’s Northeast Region has issued a new Notice To The Profession, The Parties, And The Public. The Northeast Region is comprised of Cochrane, Gore Bay, Haileybury, North Bay, Parry Sound, Sault Ste. Marie, Sudbury, and Timmins. In terms of the mode of proceedings, one notable changeRead More

Fridays with Rogers Partners

At our weekly meeting, Annie Levanaj discussed the recent decision of the Ontario Superior Court in Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030. Overview This case involved slip and fall accident that occurred on the morning of December 5, 2016 at 9:30 am. The plaintiff,Read More

New Notice to the Public and Profession for Central South Region

The Ontario Superior Court of Justice’s Central South Region has issued a Notice to the Pubic and Profession, which came into effect on April 19, 2022. The notice addresses issues such as: the presumptive mode of proceedings the use of CaseLinesscheduling motions and applicationsthe materials for use on motions, includingRead More

Taylor v. Mayes: A Case Study in Highway Winter Maintenance Actions

By Kathryn Orydzuk This case study will review the various issues considered in two motions in the same action, one of which was appealed. The three decisions are as follows: Taylor v. Mayes, 2019 ONSC 5651Taylor v. Mayes, 2021 ONSC 2239Taylor v. Mayes, 2022 ONCA 297 The motions are demonstrativeRead More

Plaintiff Ordered to Pay Costs of Obtaining Documents in Fulfillment of Undertakings

In Endale v. Parker, 2022 ONSC 2008, the plaintiff, on an examination for discovery, undertook to provide medical records, but a dispute arose over who was required to pay for the records. Rule 30.02(1) of the Rules of Civil Procedure provides: “[e]very document relevant to any matter in issue inRead More

New Provincial Notice from Superior Court of Justice

The Ontario Superior Court of Justice has issued a Notice to the Profession, Parties, Public and the Media. This notice consolidates and supersedes all previous provincial notices. The regional notices still need to be consulted for region-specific practices and protocols. The new provincial notice addresses issues such as: GowningStandard documentRead More

Costs at the LAT – Unlikely to Act as a Deterrent to Future Conduct

By Alon Barda One of the more controversial changes when the adjudication of SABS disputes was transferred from FSCO to the LAT is the ability of the Tribunal to award costs. At FSCO, the arbitrator could award “all or part of such expenses incurred in respect of an arbitration proceedingRead More

Think Before You Sign – A Recent Decision on the Implications of Signing a Waiver

By Alon Barda The issue of waivers has been prevalent in many cases recently and was, yet again, in the recent summary judgment decision of French v. Augusta Motorsports Park, 2021 ONSC 8385. Overview In July 2015, the main plaintiff was riding his four wheel-wheel drive vehicle up a sandRead More

New Notice to the Profession for Central West Region

The Central West Region has issued a Notice to the Profession and Parties, which will be effect on April 19, 2022. One notable difference from the recent guidelines issued by the Ontario Superior Court of Justice on the mode of proceedings is that long motions in the Central West RegionRead More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Court of Appeal in Stamatopoulos v. Harris, 2022 ONCA 179. Facts Stamatopoulos v. Harris is a case about municipal negligence. In 2004, a motor vehicle drove over a road depression, spun, and collided with a pole. TheRead More

From the Desk of Kathryn Orydzuk

By Kathryn Orydzuk With International Women’s Day falling last month, I took some time to reflect on my experience as a young woman in the legal profession and the particular challenges and opportunities that I have encountered in my almost three years of practice. This reflection is not meant toRead More

Order for Security for Costs Granted Against Michigan Plaintiff

By Jennifer Singh In Chahal v. Abdullah et al, 2022 ONSC 1727 [1], the defendant, Peter Cunnington, brought a motion for an order staying or dismissing the plaintiff’s action against him pursuant to r.56.02 of the Rules of Civil Procedure, or alternatively an order pursuant to r.56.01 requiring the plaintiffRead More

Court of Appeal Rejects Late Notice Defence

By Annie Levanaj, Student-at-Law The Ontario Court of Appeal, in Graham v. Toronto (City), 2022 ONCA 149, recently considered whether a claim against a municipality was barred due to the plaintiffs’ failure to comply with the 10 day notice requirement. The issues involved in the appeal are relevant not only to claimsRead More

Rogers Partners Spring 2022 Newsletter

We’re pleased to present our Spring 2022 Newsletter.  We hope you find the following topics to be of interest: Think Before You Sign  – A Recent Decision on the Implications of Signing a Waiver; Rogers Partners Insurance Coverage Checklist; Court of Appeal Rejects Late Notice Defence; Amendments to Rules onRead More

Fridays with Rogers Partners

At our weekly Friday meeting, Michael Kryworuk discussed the Superior Court’s decision in Beazley v. Johnston et al., 2022 ONSC 1739. History of the Litigation This interim ruling in a series of summary judgment motions considered whether the self-represented plaintiff, Mr. Cary Beazley, met the threshold requirement for qualification asRead More

Adjournment of Trial Due to Summary Judgment Motion Denied

In Atsaidis v. Sanford, 2022 ONSC 1690, the defendant raised a limitations defence in a personal injury action arising from an incident in 2013. In November 2020, a trial date of June 2022 was scheduled. Subsequently, in March 2022, the parties, on consent, sought to adjourn the pre-trial conference andRead More

Golf Club Neighbours Miss their Shot at Injunction

By Emily Vereshchak Overview In Horan v. Marlwood Golf and Country Club, 2022 ONSC 1806 (CanLII), the plaintiffs commenced an action against the defendants seeking damages as a result of golf balls that were landing on their property from the defendants’ neighbouring golf course. The plaintiffs then brought a motionRead More

Changes to Rules of Civil Procedure on Confirming Motions and Applications

A new regulation to amend the Rules of Civil Procedure comes into force on April 23, 2022. The main change is that motion and application confirmation forms will have to be submitted by moving parties and applicants five days prior to the hearing date, instead of three days. If respondingRead More

Court of Appeal to Resume In-Person Hearings

The Ontario Court of Appeal has advised that it will resume hearing appeals and panel motions in person on April 4, 2022. Single motions, purge court, and status court will continue to be heard remotely until further notice. An announcement from the Court of Appeal indicates: “In-person attendance is ordinarilyRead More

Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision of the Divisional Court in Dunbar et al v. Ontario Gaming West GTA Limited Partnership, 2022 ONSC 1096, regarding the applicable rules for a casino game. Summary The underlying action in Dunbar et al v. Ontario Gaming West GTA LimitedRead More

New Superior Court Guidelines on Mode of Proceedings

The Ontario Superior Court of Justice has issued guidelines on the mode of proceedings, which take effect on April 19, 2022.  The guidelines set out the default position of the Court on whether a matter should proceed in person, virtually, or in writing. The following events will proceed virtually (byRead More