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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

Rogers Partners Hiring Associates

Rogers Partners LLP is seeking associate lawyers 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 longstanding relationshipsRead 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

Fridays With Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the case of Levant v. Demelle, 2021 ONSC 1074. The court granted an anti-SLAPP motion and dismissed the plaintiffs’ defamation action for lack of evidence of the impugned statements causing harm to the plaintiffs. Facts The plaintiffs, Rebel News Network and itsRead More

Matthew Umbrio in The Lawyer’s Daily

Matthew Umbrio was recently published in a two-part series in The Lawyer’s Daily. Matthew discusses two recent court decisions on motions to strike jury notices. The two parts can be found here: Part 1Part 2Read More

Scope of Documentary Production in Loss Transfer Disputes: Reasonableness, Probative Value and Costs of Production

By Colleen Mackeigan In the recent decision of Unifund Insurance Company v. Chartis Insurance Company of Canada (January 14, 2021), Arbitrator Bialkowski granted a wide breadth of documentary production requested in the context of a loss transfer dispute. His decision was predicated on the reasonableness of the requests and theRead More

Perfect Knowledge Not Required to Start Limitations Clock

The case of Taiga Building Products Ltd. v. Classic Fire Protection Inc., 2021 ONSC 676, addresses the type of knowledge required to start the limitations clock. On January 11, 2014, a sprinkler system inside the plaintiff’s business premises ruptured and caused a flood. Slightly more than two years later, on FebruaryRead More

Fridays With Rogers Partners

At our weekly firm meeting, Angeline Bellehumeur discussed the case of Kaushal v. Vasudeva et al., 2021 ONSC 440. The court considered a motion by the Applicant to strike the evidence of the Respondent on the basis of misconduct during his cross-examination via Zoom. Specifically, the Respondent was receiving promptsRead More

The New Tort of Harassment in Cyber-Stalking Case

By Andrew Yolles A judge of the Ontario Superior Court of Justice has recognized a new common law tort of harassment. As recently as 2019, the Ontario Court of Appeal declined to recognize the existence of a tort of harassment in Canadian law. In his recently released decision in CaplanRead More

New Practice Direction on Observing Appeals

In normal times, people can walk into a courtroom at the Court of Appeal to watch a hearing, save for limited circumstances. This is part of the “open court” principle. However, due to the pandemic, appeals are being heard remotely by video conference. The Court of Appeal has issued a practiceRead More

The Scope of Re-Examination on Discovery

By Gemma Healy-Murphy There are many frustrations in the litigation process, the most recent of which crossed my desk during the course of an examination for discovery of an opposing party where at the conclusion of my examination, the opposing lawyer chose to conduct a re-examination of their witness. TheRead More

Rogers Partners Volunteers at U of T Moot

Rogers Partners is proud to support the future of the legal profession by volunteering for the University of Toronto Faculty of Law Upper Year Moot. Brian Sunohara, Rebecca Moore, Andrew Yolles, and Meryl Rodrigues were all judges in this year’s moot and were very impressed by the excellent advocacy demonstratedRead More

Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Superior Court, Memelli v. Bhandal, 2021 ONSC 802. In this decision, the court considered a refusals motion brought by the defendant. Facts This case arose from a motor vehicle accident that occurred in 2017. There was evidence toRead More

Amendments to Occupiers’ Liability Act Now in Force

The amendments to the Occupiers’ Liability Act came into force on January 29, 2021. This means that plaintiffs now have to comply with a 60 day notice requirement for occupiers’ liability claims involving accidents caused by snow or ice. Written notice has to be provided to an occupier of theRead More

Working from Home and Blue Popsicles

By Alon Barda I am often asked how many children I have and I tend to respond jokingly (sort of) that I have 34 kids. In actual fact, that number is four with the ages being 2, 5, 7 and 9. While I used to joke I was not sure,Read More

Lessons on Trial Practice

Brian Sunohara spoke at The Advocates’ Society’s Tricks of the Trade Conference last week on “Girao v. Cunningham: Lessons on Trial Practice and Fairness for Self-Represented Litigants”. Brian wrote a paper in conjunction with his presentation. The paper covers the following topics: the use of joint document books;introducing evidence ofRead More

Rogers Partners Occupiers’ Liability Handbook

We’re pleased to present the Rogers Partners Occupiers’ Liability Handbook! This resource is a comprehensive guide containing strategies and key things to consider when handling occupiers’ liability claims, particularly from the defence perspective. It includes the following topics: Retainer: Initial Review and Ongoing CommunicationsResponding to the ClaimLiability and the TransferRead More

Fridays With Rogers Partners

This morning, at our weekly meeting, we had a group discussion on the Court of Appeal’s decision in Louis v. Poitras, 2021 ONCA 49, which was released earlier this week. The decision addresses striking jury notices due to delay caused by the pandemic. We previously wrote a summary of thisRead More

Court Provides Updated FAQs on CaseLines

The Ontario Superior Court of Justice has updated its Frequently Asked Questions about CaseLines. The updates include required document naming protocols and information on using tabs, bookmarks, and hyperlinks.Read More

The Basics of Court Approval of Settlements

By Jocelyn-Rose Brogan Any settlement of a claim by or against a person under a disability, which includes a minor, requires court approval pursuant to rule 7.08 of the Rules of Civil Procedure. If the settlement occurs before a lawsuit is commenced, approval of a judge has to be soughtRead More

Striking Jury Notices During COVID Depends on Local Conditions

By Brian Sunohara The Ontario Court of Appeal released a decision yesterday which shows that striking a jury notice in the context of the COVID-19 pandemic is location-specific and case-specific. In Louis v. Poitras, 2021 ONCA 49, the Court of Appeal overturned a decision of the Divisional Court and reinstatedRead More