RP Blog
New Jury Trials Resuming in Brampton, Newmarket, Ottawa, and Toronto
Jury selection was paused in Brampton, Newmarket, Ottawa, and Toronto due to those areas being in a modified Stage Two related to COVID-19 pandemic. Since these areas are being removed from the modified Stage Two, new jury trials will resume. A Notice to the Profession indicates that, as of NovemberRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684. In this case, the Court considered an appeal brought by Svia Homes Limited (“Svia”). On appeal, Svia contended that the application judge wrongly dismissedRead More
“Wait and See”: Court Says Jury Notices Should Not Be Prematurely Struck
By Alon Barda I wrote an article about two months ago entitled “The End of Civil Jury Trials? Jury Notice Struck Due to COVID-19.” At the time, I discussed the case of Belton v. Spencer 2020 ONSC 5327,[1] wherein the motion judge held that the defendant’s right to a trialRead More
Thunder Bay Courthouse Temporarily Closed
For those with matters in Thunder Bay, the courthouse is temporarily closed due to a fire, as indicated in a Notice to the Profession. The closure could last until the end of December 2020. Most hearings will continue to be conducted virtually. Where in-person attendance is required, space at aRead More
CaseLines Expected to be Implemented in All Ontario Regions by Late 2021
The CaseLines Pilot Project appears to be progressing well. CaseLines is an online document storage platform that allows counsel and parties to upload documents for review by all participants before and during hearings, including motions and pre-trial conferences. CaseLines has now been implemented in civil and Divisional Court matters inRead More
Stephen Ross and Gemma Healy-Murphy on The Future of Summary Judgment
The Lawyer’s Daily has published an article by Stephen Ross and Gemma Healy-Murphy called “Summary judgment post COVID-19”. Stephen and Gemma indicate: Over the past few months, we have seen the judiciary quickly and creatively respond to the challenges imposed by the COVID-19 pandemic. In this way, we have seenRead More
Fridays With Rogers Partners
This morning, at our weekly firm meeting, Angeline Bellehumeur discussed the court’s decision in Frances v TTC Insurance Company, 2020 ONSC 6495. Master Wiebe considered a status hearing motion for dismissal of an action for delay pursuant to rule 48.14 of the Rules of Civil Procedure. This action arises fromRead More
Small Claims Court Now Accepting Court Documents by E-mail
An updated Notice to the Profession indicates that, on October 28, 2020, the Small Claims Court started to accept most court filings by e-mail at the e-mail addresses for the various court locations at this link. Enforcement documents cannot be filed by e-mail. E-mailed filings must be submitted in PDFRead More
Hypothetical Questions on Discovery
By Jocelyn-Rose Brogan When conducting an examination for discovery, counsel should keep in mind that the Rules of Civil Procedure are designed to provide parties with full disclosure of information in order to avoid surprise. However, as demonstrated in Beemer and Chrysler v. 1350246 Ontario Inc., 2020 ONSC 5564 (“Beemer”),Read More
Jury Selection Suspended in Newmarket; Virtual Hearings Encouraged
After the Region of Peel, Toronto, and Ottawa entered a modified Stage Two due to increasing COVID-19 cases, the Ontario Superior Court of Justice announced changes to court proceedings in those areas. Given that the Region of York has also moved into a modified Stage Two, the Superior Court has implementedRead More
Court Approves Settlement of G20 Class Actions
Two class actions against the Toronto Police have settled. The actions arose out of the arrest and detention of hundreds of protesters during the G20 summit that was held in Toronto in June 2010. In Good v. Toronto Police Services Board, 2020 ONSC 6332, Justice Belobaba approved the settlement, which requiresRead More
Fridays with Rogers Partners
At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Krukowski v. Aviva Insurance Company of Canada, 2020 ONCA 631. In this case, the Court considered an appeal brought by Deutschmann Law Professional Corporation, whose principal was Mr. Deutschmann. Mr. Deutschmann represented Mr. Krukowski, aRead More
Announcement From Court of Appeal on In-Person Hearings
Due to the COVID-19 pandemic, the Court of Appeal has been hearing appeals in writing and by videoconference. In a notice released this week, the Court of Appeal advised that it will hear some appeals in person. The Court will only consider holding an in-person hearing if all parties andRead More
Immunity From COVID Claims?
By Rebecca Moore Immunity from liability for claims involving the spread of COVID-19? This is what has been put forward by the Attorney General of Ontario, Doug Downey, in the proposed bill, Supporting Ontario Recovery Act. If passed, this legislation will protect individuals and organizations found to be have makingRead More
Court of Appeal Addresses Releases in Recent Decision
In Huma v. Mississauga Hospital, 2020 ONCA 644, the Court of Appeal upheld a motion to enforce a settlement against three plaintiffs who were self-represented at the time of the settlement. One of the issues addressed by the Court of Appeal is the requirement to provide a release upon settlement. TheRead More
Motion to Add Defendant Dismissed Due to Insufficient Evidence on Discovery of Claim
In Condreanu v. Choi, 2020 ONSC 6105, the plaintiff was involved in a motor vehicle accident on November 23, 2017. On November 21, 2019, she commenced an action against a driver, Choi, along with the owner of Choi’s vehicle. One month prior to commencing the action, the plaintiff’s lawyer provided theRead More
Fridays With Rogers Partners
At our weekly firm meeting, Athina Ionita discussed the Court of Appeal’s decision in Becker v. Toronto (City), 2020 ONCA 607. This appeal addresses how framing the issues at trial influences what issues may be appealed. Further, this decision makes it clear that if counsel believes an issue is relevantRead More
Milton Courthouse Temporarily Closed
According to a notice issued yesterday, due to a new discovery of mould, all in-person hearings and processes at the Milton courthouse have been suspended. A health and safety investigation of the entire courthouse is being undertaken.Read More
Transfer of Actions from Small Claims Court to Superior Court
In Segura Mosquera v. Rogers Communications Inc., 2020 ONSC 6024, Justice Gomery stated that there is a relatively high onus on a party seeking to transfer an action from Small Claims Court to the Superior Court of Justice. The applicant must submit evidence that commencing the claim in Small ClaimsRead More
Court of Appeal Upholds Striking of Jury Due to Inaccurate Trial Duration Estimate and Late Disclosure
By Meryl Rodrigues In an interesting decision released by the Court of Appeal on October 13, 2020, the Court appears to have swiftly dealt with a defendant’s broad appeal on the merits of a trial judgment in an action arising from a motor vehicle accident.[i] The case of Rolley v.Read More
Motion for Consent Adjournment of Trial Denied
The court’s decision in Jaffer v. Remu et al, 2020 ONSC 5736, shows that parties must be prepared to attend a trial on the scheduled date and cannot assume that the court will grant an adjournment even if it is on consent. The action in question arose from a motorRead More
Jury Selection Suspended in Brampton, Toronto, and Ottawa; Virtual Hearings Encouraged
In a Notice to the Profession, issued on October 9, 2020, the Chief Justice of the Ontario Superior Court of Justice suspended jury selection in Brampton, Toronto, and Ottawa for the next 28 days. This follows the Province’s return to a modified Stage Two in Peel, Toronto, and Ottawa inRead More
Fridays With Rogers Partners
This morning, we continued with our in-firm Litigation Strategy Series. Tom Macmillan presented the second part of his seminar on mediations. Tom provided a lot of practical advice, including: In opening statements, be yourself and be brief. Also, consider leaving certain concepts to be explained later by the mediator as some thingsRead More
Due Diligence Required to Identify Liable Parties
In Ali v. City of Toronto, 2020 ONSC 5888, the court denied the plaintiff’s motion to add a winter maintenance contractor to the action after the expiry of the presumptive two year limitation period. The accident occurred in February 2017. The plaintiff slipped and fell on a City of Toronto sidewalk. SheRead More
Ontario Court of Appeal Weighs in on Jury Notices in the Context of the COVID-19 Pandemic
By Matthew Umbrio On September 4, 2020, Justice Sheard of the Ontario Superior Court of Justice released a decision on a motion to strike the defendant’s jury notice, in Belton v. Spencer.[1] Her Honour, in granting the plaintiff’s motion, held that, in order to respond to the additional challenges toRead More
Update on Suspension of Limitation Periods
Most limitation periods in Ontario were suspended due to the COVID-19 pandemic. The suspension started on March 16, 2020, and limitation periods resumed running on September 14, 2020. In a previous blog post, we noted that the regulation that provided for the suspension, Ontario Regulation 73/20, indicated that “the temporary suspensionRead More
Matthew Umbrio in The Lawyer’s Daily
Matthew Umbrio was recently featured in a two-part series in The Lawyer’s Daily on the extra-provincial application of Ontario’s priority dispute scheme: Part 1 Part 2Read More
Fridays With Rogers Partners
This morning, at our weekly firm meeting, Tom Macmillan presented a seminar on mediations as part of our in-firm Litigation Strategy Series. Tom provided some very helpful and practical tips, including: Be open-minded about the selection of a mediator. If you have not used a particular mediator before, it mayRead More
Who is the Ontario Patient Ombudsman?
By Gemma Healy-Murphy Established in 2016, the Ontario Patient Ombudsman[1] receives and resolves complaints related to Ontario’s public hospitals, long-term care homes, and home and community care coordinated by the Local Health Integration Networks. The Patient Ombudsman has no jurisdiction in matters involving a regulated healthcare professional, private retirement homeRead More
ORIMS Publishes Article by David Rogers
David Rogers’ article, “COVID-19: The Ultimate Business Interrupter”, was published in The Pulse, a magazine of the Ontario Risk and Insurance Management Society. David’s article starts at page 15 of the magazine.Read More
Successful Costs Decision by Tom Macmillan
Tom Macmillan was successful on the issue of costs in the case of De Albornoz v. Christie et al, 2020 ONSC 5642. The action arose out of the partial collapse of a house. Tom represented a third party engineering firm. The third party commenced a summary judgment motion, following which theRead More
Brian Sunohara in Canadian Underwriter
Brian Sunohara was recently quoted in Canadian Underwriter in an article called “Insurer ordered to pay $21 million in interest on a $25-million court award“. The article refers to commentary by Brian regarding a case where an insurer was ordered to pay compound prejudgment interest of US$14.8 million (about CAD$21Read More
Fridays With Rogers Partners
At our weekly meeting this morning, Angie Bellehumeur discussed the case of Coban v Declare, 2020 ONSC 5580. This case deals with a motion by the plaintiff to strike the jury notice pursuant to rule 47.02, and a cross-motion to seek an adjournment of trial pursuant to rule 52.02. TheRead More
An Update on Tort Immunity Under the Crown Liability and Proceedings Act
By Erin Crochetière The Ontario Crown Liability and Proceedings Act, 2019 (“CLAPA”) came into force in July of 2019, replacing the Proceedings Against the Crown Act. CLAPA received industry-wide scrutiny based on the provisions limiting Crown liability. Whereas the former Proceedings Against the Crown Act provided that the Crown wasRead More
New Protocol in Central East Region for Trials and Long Motions
The Central East Region has issued a new protocol for the resumption of civil proceedings, specifically, civil trials, summary judgment motions, long motions, and applications. The November 2020 civil trial sittings in the Central East Region are cancelled. The status of the May 2021 civil trial sittings is uncertain at thisRead More
Rogers Partners Fall 2020 Newsletter
We’re pleased to present the Fall 2020 edition of our newsletter, In|Sight, which covers the follows topics: 1. Additional Insureds: What Does “Arising Out of the Operations” Mean? 2. The Beginning of the End? What Recent Decisions Could Mean for Jury Trials in Ontario 3. UK Test Case on BusinessRead More
Scope of Cross-Examinations for Applications and Motions
In Sanctuary et al v. Toronto (City) et al, 2020 ONSC 4708, the court outlined the principles applicable to cross-examinations of a deponent of an application or motion. These principles include: The scope of a cross-examination of a deponent for an application or a motion is narrower than an examination forRead More
Fridays With Rogers Partners
At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Aviva Canada Inc. v. 1843538 Ontario Inc., 2020 ONCA 581. In this case, the Court considered an appeal by the appellants, 843538 Ontario Inc., c.o.b. Mississauga Collison Centre, and/or McLaren Collison, Fady Rony Warda, Rony Amanuel Warda, (“the Wardas”)Read More
Another Jury Notice Struck Due to COVID-19
Last week, Alon Barda posted an article on our blog regarding a decision where the court struck a jury notice due to the delay that would be caused by the COVID-19 pandemic. Another decision has been released where the court similarly struck a jury notice. In Louis v. Poitras, 2020Read More
Supreme Court of Canada Clarifies Test for Anti-SLAPP Motions
By Emily Vereshchak The Supreme Court of Canada has released two decisions interpreting the test on a motion to dismiss under s. 137.1 of the Courts of Justice Act, known as the anti-SLAPP legislation (strategic lawsuits against public participation). The direction provided by the Supreme Court is likely to changeRead More
No Obligation to Make Offer to Settle
In Smith v. Kane, 2020 ONSC 4814, Justice Gans stated that there is no obligation on a litigant to make an offer to settle. Justice Gans relied on a previous decision which indicated that it would be “an error in law to deny costs to a successful defendant because ofRead More
Welcome Back Jocelyn-Rose Brogan!
We’re very pleased to announce the return of Jocelyn-Rose Brogan from maternity leave. Today is Jocelyn’s first day back with the firm. Jocelyn’s looking forward to reconnecting with clients and colleagues!Read More
Fridays With Rogers Partners
At our weekly meeting, Athina Ionita discussed a decision of the Ontario Licence Appeal Tribunal decision, D.G. v. Co-operators General Insurance Company, 2020 CanLII 61461 (ON LAT). The case considered whether the applicant’s injuries fall outside of the Minor Injury Guideline (MIG). Facts The applicant was rear-ended by a TTCRead More
The End of Civil Jury Trials? Jury Notice Struck Due to COVID-19
By Alon Barda The recently released motion decision in Belton v. Spencer, 2020 ONSC 5327, is a very important one for anyone practicing civil litigation in the province. The Case The claim arises from injuries sustained by the plaintiff on May 21, 2010 when he was kicked by a horseRead More
When Less is More: ONCA Denies Request for Factum to Exceed 30 Pages
By Colleen Mackeigan In a recent decision of the Ontario Court of Appeal (“ONCA”) in Oz Merchandising Inc. v. Canadian Professional Soccer League¸2020 ONCA 532, OZ Merchandising Inc. (“OZ”) was denied leave to submit a 500 page factum, or alternatively a 125 page factum in support of its appeal ofRead More
Costs Decision in “Crushing and Complete” Trial Loss for Plaintiffs
In McNamee v. Oickle, 2020 ONSC 5078, the plaintiffs received $5,000 following a jury trial arising from a motor vehicle accident. Prior to trial, the defendant had offered a total of $350,000 plus costs. The plaintiffs had offered $900,000 plus costs. Justice Beaudoin described the result “as a crushing and completeRead More
Fridays With Rogers Partners
At our weekly meeting today, Angie Bellehumeur discussed the Court of Appeal’s decision in Le Treport Wedding & Convention Centre Ltd. v Co-operators General Insurance Company, 2020 ONCA 487, which involved an insurance coverage dispute. On July 8, 2013, the Greater Toronto Area (GTA) experienced the most expensive natural disasterRead More
Ignoring Page Limits Must Have Consequences, Says Judge
When a court orders submissions to be kept to a certain page limit, parties must comply with the order. In Stewart & Bernard v. Fuhgeh et al., 2020 ONSC 4850, the court ordered the parties to provide costs submissions by specific dates and limited the submissions to three pages plusRead More
Entitlement to Medical Cannabis in an Accident Benefits Context: P.A. v. TD General Insurance Company
By Carol-Anne Wyseman A recent decision of the Licence Appeal Tribunal (“LAT”), P.A. v. TD General Insurance Company, 2020 ONLAT 19-001349/AABS, considered an applicant’s entitlement to medical cannabis to treat psychological impairments resulting from a motor vehicle accident involving his family. Facts The applicant’s spouse and children were injured inRead More
Concise Factums Required
A factum at the Court of Appeal is limited to a maximum of 30 pages. If a party wishes to submit a lengthier factum, leave must be sought from the Court of Appeal. Leave is rarely granted. In OZ Merchandising Inc. v. Canada Professional Soccer League Inc., 2020 ONCA 532,Read More
2020-2021 Articling Students
We’re delighted to welcome our newest articling students to the firm, Angeline Bellehumeur, Athina Ionita, and Christopher MacDonald. Congratulations to Angeline, Athina, and Christopher on completing law school! We hope that you have a fulfilling articling term. You’ll be full-fledged lawyers before you know it!Read More
Fridays With Rogers Partners
At our weekly firm meeting, Chris MacDonald presented the case of Lamb v. Co-Operators General Insurance Co., 2020 ONSC 4955. This case concerned a motion brought by Co-Operators for summary judgment involving an unidentified vehicle claim by the plaintiff, Lamb. The court considered whether there was a triable issue onRead 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 named in the 2021 edition of The Best Lawyers in Canada: Stephen Ross, Kevin Adams, Anita Varjacic, Brian Sunohara, and David Rogers.Read More
The Latest on Disclosure of Adverse Costs Insurance
By Andrew Yolles Since the proliferation of adverse costs insurance through the legal industry over the last few years, there have been a handful of decisions in Ontario dealing with a plaintiff’s disclosure obligations with respect to such insurance policies. Generally speaking, adverse costs insurance, sometimes referred to as “AdverseRead More
Court Denies Request for Summary Judgment Motion to be Heard Prior to Certification Motion in Class Action
The court has discretion on whether to permit a summary judgment motion to proceed prior to a motion for certification in a class action. In Belec v. Sun Life Assurance Company of Canada, 2020 ONSC 4961, Justice R. Smith outlined the following factors to consider, as determined in a previousRead More
What is a Speed Test?
A person who operates a motor vehicle is not permitted to engage in a “race” or a “speed test”. Doing so is a breach of a statutory condition in the standard Ontario Automobile Policy. In Vyas v. Brown, 2020 ONSC 4916, Justice O’Brien noted that the case law indicates that aRead More
Fridays With Rogers Partners
This morning, at our weekly firm meeting, Athina Ionita discussed the Supreme Court of Canada’s decision in Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19. This case dealt with a number of issues, including whether waiver of tort is a valid cause of action, the remedy of disgorgement, andRead More
Suspension of Limitation Periods Ending
The suspension of limitation periods in Ontario is coming to an end on September 14, 2020. The suspension is retroactive to March 16, 2020. If counsel were delaying commencing claims during the period of the suspension, now is the time to think about those claims. Section 1 of Ontario RegulationRead More
Chronic Pain and the MIG
By Alon Barda The issue as to what constitutes removal from the Minor Injury Guideline (“MIG”) continues to be one of the most common issues I deal with at the Licence Appeal Tribunal. This is particularly the case when the claim involves an apparent chronic pain diagnosis. The MIG establishesRead More
Further and Better Affidavit of Documents Ordered in Bad Faith Claim
In Carroll v. Aviva Canada Inc., 2020 ONSC 4683, the plaintiff brought a motion for the defendant insurer to serve a further and better affidavit of documents in an insurance dispute. The action arose out of a motor vehicle accident. The plaintiff sued her own insurer for underinsured coverage. The plaintiffRead More
SCC Grants Leave in Dispute Over Release in MVA Claims
The Supreme Court of Canada has granted leave to appeal in a case involving the interpretation of a release in a matter relating to a motor vehicle accident. The brief facts of the case, City of Corner Brook v. Bailey, are as follows. Bailey was operating a vehicle and struck TempleRead More
Fridays With Rogers Partners
At our weekly Friday meeting, Angie Bellehumeur discussed a decision of the Licence Appeal Tribunal, R.A. v. Aviva Insurance Company, 2020 ONLAT 19-004208/AABS. The issue in this case was whether a chronic pain assessment costing $2,010 was a reasonable and necessary expense resulting from a motor vehicle accident according toRead More
Further Courtrooms in Ontario To Be Reopened
The Ministry of the Attorney General plans to open several further courtrooms in various jurisdictions on September 14, 2020. A list can be found here.Read More
Consolidation vs. Hearing Together
Rule 6.01 of the Rules of Civil Procedure permits the court to consolidate multiple proceedings or order that they be heard at the same time or immediately after the other. This relief can be granted if the proceedings have a question of law or fact in common; if the reliefRead More
Factors in Counsel’s Removal from Record
In Baradaran v. Alexanian, 2020 ONSC 4759, the court reviewed the case law on the principles applicable on a motion to remove counsel from the record. These principles include the following: A lawyer must have “good cause” or “justifiable cause” to withdraw from representation. The commentary under rule 3.7-1 of theRead More
Amendment to Plead Battery Denied in Cosmetic Surgery Case
The case of Piatkowski et al v. Drakos, 2020 ONSC 3928, addresses the test to amend a statement of claim to assert a new cause of action following the expiry of the limitation period. In November 2013, the plaintiff underwent tummy tuck surgery. She alleged that she sustained full skin necrosisRead More
Fridays With Rogers Partners
11th Hour Change in Discovery Plan Deemed “Hiccup”: Motions for Costs Dismissed This morning, at our weekly meeting, Angie Bellehumeur discussed the court’s decision in 1479021 Ontario Inc. v Hawkesbury (Town of) et al., 2020 ONSC 4570, which involved a motion and a cross-motion for costs arising from cancelled discoveries.Read More
$21 Million PJI Award in Insurance Dispute
By Brian Sunohara In MDS Inc. v. Factory Mutual Insurance Company (FM Global), 2020 ONSC 4464, the plaintiff was awarded prejudgment interest (“PJI”) of $14.8 million (USD) or $21 million (CAD) on a judgment of $25 million (USD). The action arose from an insurance dispute, specifically a claim for lossRead More
New Regulation on Virtual Commissioning
There is a new regulation which expressly permits virtual commissioning. Ontario Regulation 431/20 – Administering Oath or Declaration Remotely, which came into effect on July 31, 2020, outlines the requirements for virtual commissioning, including: The person administering the oath or declaration and the deponent or declarant must be able toRead More
Strict Time Limit to Apply for Income Replacement Benefits
In C.G. v. Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS, the Licence Appeal Tribunal held that there is a strict time limit to apply for an income replacement benefit (“IRB”). The accident in question occurred on October 31, 2016. The applicant applied for accident benefits on November 8, 2016. On December 1,Read More
Fridays With Rogers Partners
Our newest articling, Angeline Bellehumeur, discussed a very interesting court decision at our weekly meeting this morning. The issue in Thomson v. Watson, 2020 ONSC 4409, was whether a worker who is involved in an accident outside of Ontario and elects to receive workers’ compensation benefits outside of Ontario, canRead More
Superior Court’s New Document Sharing & Storage Platform
Chief Justice Morawetz has announced in a memorandum that the Ontario Superior Court of Justice will be implementing CaseLines, which is a cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings. Court documents will continue to be filed with the court office. However, parties will nowRead More
Summary Judgment Motions: Proceeding With Diligence
Certain principles on the conduct of summary judgment motions emerge from the court’s recent decision in Meagher v. Hooper-Holmes Canada Limited, 2020 ONSC 4480. The plaintiffs commenced a medical malpractice claim. The defendants brought a summary judgment motion, which was first scheduled to be heard in January 2019. The plaintiffs soughtRead More
Fall Jury Trials in Central-East Cancelled
In a Notice to the Profession for the Central-East Region that was released yesterday, it was announced that the civil (non-family) trial sittings scheduled to commence on November 16, 2020 are cancelled. This means that there will be no civil jury trials in the Central-East Region this fall. The Notice indicatesRead More
Misnomer Motion Granted Despite Plaintiff’s Knowledge of Correct Defendant
The doctrine of misnomer is quite broad. In the recent decision of Scace v. Withers et al., 2020 ONSC 90, the plaintiff knew the name of a home renovation contactor that he alleged to be negligent, but named the contractor in the statement of claim as a pseudonym, “XYZ Contractor”.Read More