Summaries Category Archives

16-001683 v. State Farm Mutual Automobile Insurance Company

The LAT held that the golf cart is not an “automobile” because the subject accident did not take place on a “common and public driveway”.  As such, the applicant was prohibited from launching an accident benefits claim.

Abdulwasi v Pietrantonio, 2017 ONSC 3608

After an action has been set down for trial, leave to conduct a further examination for discovery will be granted when there has been a “substantial or unexpected change in circumstances.” The plaintiff’s deterioration in health and subsequent surgery, if reasonable extensions of injuries present prior to setting the action down, will not satisfy this test.

Abu-Hmaid v. Napar, 2016 ONSC 2894

Abuajina v. Haval, 2015 ONSC 7938 (CanLII)

Summary judgment motions on the issue of liability are not appropriate where the credibility of witnesses are important, there is insufficient evidence on the record to evaluate credibility and a mini-trial is not appropriate in the circumstances of the case.

Ahmed v. Rowe, 2017 ONSC 2289

Aleksa v. Henley, 2017 ONSC 1117

This decision arises from a motion to remove Counsel of Record, Brennan Kahler and Gary Will, for the minor Plaintiff due to conflict of interest as they had previously also represented his parents whom the Defendants had counterclaimed against.

Ali v. Gibbons 2017 ONSC 5013

Where the party to be examined resides outside of Ontario, the test for determining the location of the examination for discovery is what is just and convenient for all parties based on the circumstances of the case.

Allstate Insurance Company of Canada v. Klimitz, 2015 ONCA 698

Anjum et al. v. Doe et al., 2015 ONSC 5501 (S.C.J)

Released September 3, 2015 | Full Decision Judge orders summary judgment motion to proceed with viva voce evidence This was a personal injury claim arising from a car accident. The plaintiff suffered catastrophic injuries. He claimed that an unidentified vehicle caused the accident and fled the scene. He then sued his own insurance company for unidentified motorist coverage. The insurer announced its intention to bring a …

Anjum v. John Doe and State Farm, 2016 ONSC 7784 (CanLII)

Aquatech Logistics et al. v. Lombard Insurance et al., 2015 ONSC 5858 (CanLII)

Released September 23, 2015 | Full Decision Justice Dunphy ordered that three insurance companies had the duty to defend. The Application was brought by Aquatech and one of its insurers, Aviva (provider of the automobile policy), against two of Aquatech’s liability insurers: Lombard – provided a $3 million Comprehensive General Liability Policy; ACE INA – provided a $1 million Pollution Incident Liability Insurance The purpose …

Arcari v. Dawson, 2016 ONCA 715

Arruda and Western Assurance Company, FSCO A13-003926

Released July 7, 2015 | Full Decision This decision by Arbitrator Jeffrey Shapiro makes clear that a diagnosis of chronic pain syndrome can remove an insured from the Minor Injury Guideline (the “MIG”). The arbitration concerned a motor vehicle accident which occurred on May 5, 2012. The insured sustained soft tissue and psychological injuries and was placed in the MIG. After depleting the maximum funding …

Arsenovski v. Bodin, 2016 BCSC 359

In a recent decision out of British Columbia, the Court ordered a punitive damage award of $350,000 against ICBC. The decision of Arsenovski v. Bodin underscores the importance of an insurer’s responsibility to act in good faith when undertaking claim investigations. In Arsenovski, the Court found the insurer acted maliciously and negligently in its investigation. The case reinforces the fact that insurers should reassess their position in response to new information and evidence to ensure they are acting reasonably and in good faith to their insureds.

Arunasalam v. State Farm Mutual Automobile Insurance, 2015 ONSC 5235

Released August 20, 2015 | CanLII This Superior Court decision involved a motion brought by a defendant for an order requiring the plaintiff to attend defence orthopaedic and psychiatric examinations. The plaintiff was involved in two motor vehicle accidents in 2006 and 2009. The pleadings and the available medical evidence indicated that the plaintiff’s physical and psychological impairments were matters at issue in the proceeding. …

Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563

The Court of Appeal held that Section 33(4)3 of the Statutory Accident Benefits Schedule does not require an insurer to give a specific reason for requesting an Examination under Oath of the claimant.

Ayr Farmers Mutual Insurance Co v. Wright, 2016 ONCA 789

This was an appeal of a preliminary issue application commenced by the insurer to determine if the applicant was entitled to accident benefits under the SABS. The question before the court was whether s.279 of the Insurance Act could be circumvented in this manner.

Badesha v. Haider, 2017 ONSC 1745

This refusals motion concerned a plaintiff’s request for the statutory third party’s file contents, including the defendant’s first statement to his liability insurer and all correspondence between the defendant and his liability insurer. TD, the statutory third party (when the motion was heard), refused production on the basis of litigation privilege. The plaintiff’s motion was defeated.

Baradaran v. Alexanian 2016 ONCA 533

The Court of Appeal confirmed that it is inappropriate to treat a motion to strike portions of a Statement of Claim as a summary judgment motion by examining evidence on the merits of the action.

Barker v. Barker, 2017 ONSC 3397 (CanLII)

Baron v. Clark, 2017 ONSC 738 (CanLII)

Despite serving the co-defendant to the point of intoxication and breaching their obligations under the Liquor License Act, the Court found no liability on the part of the bar for damages sustained by the Plaintiff in an assault and battery.

Basandra v. Sforza, 2016 ONCA 251(CanLII)

Batoor v. State Farm Mutual Automobile Insurance Company, FSCO A13-007600

This is a preliminary issue hearing as to whether the applicant, Hiwad, should be excluded by section 31(1)(a)(i) of the Statutory Accident Benefits Schedule from claiming certain accident benefits as a result of operating an uninsured automobile.

Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428

The Court of Appeal has upheld a trial judge’s decision finding the City of Sudbury negligent for failure to properly maintain a roadway during inclement winter conditions. Cities (and by extension winter maintenance contractors) are expected to respond to the potential of ice forming on roadways even while maintenance is underway. Even in the face of a roadway being cleared just prior to an accident a City may be found to have breached the standard of care in discharging a City’s obligation to maintain the roadway in good repair.

Benhaim v. St-Germain, 2016 SCC 48

In a 5-4 decision, the Supreme Court of Canada held that a trial judge is not required by law to draw an adverse inference against physicians whose negligence makes it impossible to prove causation and where the plaintiff adduces at least some evidence of causation. Trial judges are permitted to draw such inferences, but are not required to do so.

Bhatt v William Beasley Enterprises Limited, 2015 ONSC 4941 (CanLII)

Released August 10, 2015 | CanLII This is a brief decision addressing whether counsel must produce dockets when the issue of costs is being considered after a trial. This issue arose after the Plaintiffs were successful at trial and awarded $305,000.00 for damages, inclusive of interest. The damages award was more than double the amount of the Defendant’s formal Offer to Settle. This was a judge alone …

Bhatt v. William Beasley Enterprises Limited, 2015 ONSC 2168

Released June 12, 2015 | CanLII This is a judge alone trial decision. The trial proceeded before Mr. Justice Faieta in March 2015. The minor Plaintiff was injured while boarding a ride with his father at the Centreville Amusement Park. The Defendant advanced the argument that there was contributory negligence on both the minor Plaintiff and his father in part because he had a pre-existing …

Bishop-Gittens v. Lim, 2016 ONSC 2887

Superior Court Threshold Motion in which the plaintiff established that their impairments (including chronic pain disorder) constituted permanent serious impairment of important physical, mental or psychological function as a result of a motor vehicle collision

Bishop-Gittens v. Lim, CV-11-00107056-0000

In considering the issue of costs, factors taken into account include: 1) the rates charged and the hours spent by the plaintiff’s counsel; 2) the amount claimed and the amount recovered by the plaintiff; 3) the complexity of the proceeding and the importance of the issues; 4) the conduct of any party that tended to shorten or lengthen the proceeding; 5) whether the action should have been brought under the simplified rules pursuant to Rule 76; and 6) the reasonableness of the costs.

Bonilla v. Great-West Life Assurance Co. et al, 2016 ONSC 2249 (CanLII)

Brown v. Baum, 2016 ONCA 325

The Ontario Court of Appeal held that, in circumstances where the plaintiff’s doctor continued to treat the plaintiff and engage in good faith efforts to remediate damage, the plaintiff did not know that it was appropriate to start an action against the doctor until after the last surgery proved unsuccessful.

Bruff-Murphy v. Gunawardena, 2016 ONSC 7

This decision concerns a threshold motion following final instructions to the jury for an order striking the plaintiff’s claim for general damages on the basis that she failed to prove she suffered permanent and serious impairment of an important physical, mental or psychological function pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990 Chapter I.8, as amended, including Ontario Regulation 381/03, made therunder. The motion was defeated.

Bruff-Murphy v. Gunawardena, 2017 ONCA 502

Bustamante v. The Guarantee Company of North America, 2015 ONCA 530 (CanLII)

Released July 13, 2015 | CanLII This is an appeal by the Plaintiff from the judgment of Ramsay J., granting summary judgment and dismissing the Plaintiff’s claim for non-earner benefits (“NEBs”) as time-barred. At the time of the accident on June 3, 2004, the Plaintiff was a hairdresser. She elected income replacement benefits (“IRBs”), although her disability certificate indicated that she was entitled to both IRBs …

Campbell v. Bruce (County), 2016 ONCA 371

The Court of Appeal upheld the trial decision of Justice M.A Garson. The County of Bruce (Bruce) as occupier, was liable for the Plaintiff’s injuries for failing to take reasonable care. No damages were dealt with at trial.

Cardenas v. Toronto (City), 2017 ONCA 237

Defendant brought Third Party claim against home owner, but failed to serve the Third Part Claim. Defendant’s motion to validate service was dismissed. Court was not satisfied that statement of claim came to third party’s attention. Motion judge found personal service was important because third party’s potential liability far exceeded limits of her policy. Defendant appealed and this appeal was dismissed as the interests of justice did not require dispensing with service.

Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited 2015 ONCA 592 (CanLII)

Released September 2, 2015 | CanLII In August 2006, a fire spread from land owned by the respondent, Canadian Pacific Railway Ltd. (“CPR”), to land owned by the applicant, Carioca’s Import & Export (“Carioca”). Carioca alleged that the fire spread due to CPR’s negligence and claimed against CPR for the alleged damage that it caused. In June 2009, Carioca set the action down for trial, and …

Castronovo v. Sunnybrook & Women’s College Health Sciences, 2016 ONSC 6275 (CanLII)

Chambers v. Cobb, 2015 ONSC 5313

Released August 24, 2015 | CanLII This Superior Court decision involves two summary judgment motions brought by two defendants to dismiss the action against them on the basis of liability. The action arose from injuries the plaintiff sustained to his left ankle while operating a tractor on a steep embankment of a cottage property. While the plaintiff was moving rocks on the property, the tractor flipped …

Charlebois v. SSQ Life Insurance Co., 2015 ONSC 6231

Costs on a Motion – Allegations that impugn the professional integrity of opposing counsel and are unproven warrant a punitive award of costs and will result in an award on the substantial indemnity scale.

Charlebois v. SSQ Life Insurance Company, 2015 ONSC 2568

Released May 29, 2015 | CanLII This was an appeal of an order dismissing SSQ’s motion to remove plaintiff’s counsel in a disability claim against SSQ. The motion was brought by SSQ after it learned that plaintiff’s counsel had retained two medical experts who had been consulted by SSQ regarding the plaintiff’s treatment needs prior to litigation. SSQ argued that the two experts, an occupational …

Chernet v. RBC General Insurance Company, 2017 ONCA 337

Choma v. City of Toronto, 2016 ONSC 5510

Given a proper evidentiary record, a Court may draw reasonable inferences and grant summary judgment in favor of a party who is seeking to prove that, on the balance of probabilities, an event is unlikely to have occurred, so long as the party can show that it exercised due diligence and that a trial would not change anything in that regard or show different evidence.

Clatney v. Quinn Thiele Mineault Grodski LLP, 2016 ONCA 377

In special circumstances, the Court of Appeal has jurisdiction to reopen contingency fee agreements that have been paid and order an assessment to be conducted to ensure public confidence in the administration of justice.

Cobb v. Long Estate, 2015 ONSC 6799

Released November 13, 2015 | Full Decision [CanLII] Note:  not yet available on CanLII There are 3 good reasons to do careful mathematics before resolving a case, drafting an offer to settle or going to trial: deduction of collateral benefits; the statutory deductible for General and FLA damages; and the applicable pre-judgment interest rate. In Cobb, a $220,000 jury verdict, broken down below, was virtually …

Cobb v. Long Estate, 2017 ONCA 717 & El-Khodr v. Lackie 2017 ONCA 716

Amendment to PJI Rates & SABS Calculations Applicable to 3rd Party Claims. These companion Judgments are appeals dealing with, among other issues, pre-judgment interest and SAB claw-back’s in 3rd party claims  

Corbett et al v. Odorico, 2016 ONSC 1964 (CanLII)

Corbett v. Odorico, 2016 ONSC 2961

Superior Court Motion for costs of trial by successful plaintiff. The sought costs exceeded the award recovered at trial. The court decides that over-emphasis on proportionality may serve to under-compensate a litigant for costs legitimately incurred

Cormack v Chalmers, 2015 ONSC 5564

Released September 8, 2015 | Full Decision This case involved a plaintiff who was badly injured when she was struck by a motor boat while swimming near a harbour entrance. She had been staying at a cottage owned by defendants Shannon Pitt and Erik Rubadeau (“Pitt defendants”) at the time. She brought claims against Benjamin Chalmers in his capacity as driver of the motor boat and …

Cormack v Chalmers, 2015 ONSC 5599

Released September 8, 2015 | Full Decision Following jury selection and prior to the commencement of trial, counsel sought a ruling concerning the legal effect of the Apology Act. The plaintiff was badly injured when she was struck by a motor boat while she was swimming in close proximity to a harbour entrance. At the time the plaintiff went swimming, she was a guest of the …

D.E. v. Unifund Assurance Company, 2014 ONSC 5243

Related: Unifund Assurance Company v. D.E., 2015 ONCA 423 Released September 11, 2014 | CanLII This was an application for a declaration that Unifund Assurance Company (“Unifund”) had a duty to defend and indemnify the applicants under a homeowner’s property insurance policy. The applicants were a married couple who lived with their minor daughter in Toronto. The daughter and parents were all sued as defendants in a lawsuit …

Dabor et al. v. Southbram Holdings Limited et al. (CV-11-417735)

This verdict serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.

Daggitt v. Campbell, 2016 ONSC 2742

Dale Cox and Aviva Canada Inc., FSCO A13-012588

Released July 3, 2015 | Full Decision The Applicant was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. The vehicle did not stop and there were no known witnesses. The Applicant’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. …

Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4

This decision concerns the relief from forfeiture provisions at ss. 129 of the Insurance Act and 98 of the Courts of Justice Act. The provisions were invoked because the plaintiff, who was involved in a motor vehicle accident with an unidentified driver, failed to comply with the reporting requirements in s. 3 of the Schedule attached to the Uninsured Automobile Coverage regulation under the Insurance Act (the “Schedule)”.

David Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114 (CanLII)

Davis v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624

Denis v. Lalonde, 2016 ONSC 5960

This was a motion by the Plaintiff to compel productions and attendance at examinations for discovery of an insurance broker after the matter had been set down for trial in which conflicting authorities were reviewed.

Dhawan v Wehbe, 2015 ONSC 6104 (CanLII)

Released October 15, 2015 | CanLII This motion concerns a plaintiff’s efforts to set aside an administrative dismissal order dated November 26, 2014 to permit reinstatement of the proceeding and to extend time to set the action down for trial. The action was commenced in 2008 and at the time of the motion, the plaintiff’s counsel missed deadlines to set it down. The defendant consented …

Dimopoulos v. Mustafa et al, 2016 ONSC 429

Ding et al v. John Doe et al, 2016 ONSC 1690 (CanLII)

Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429

Spilling hot coffee in a drive-through is an “accident” under s.3(1) of the SABS Released October 24, 2017 | Full Decision [CanLII] The Plaintiff spilled hot coffee on her lap while in McDonald’s drive-through. Her car was in gear at the time, but not moving. There was no other vehicle involved in the spill. She was wearing her seatbelt and could not take evasive action …

Doe v. Sun Media et al, 2015 ONSC 4239 (CanLII)

Released July 2, 2015 | CanLII This lawsuit was commenced in relation to the violation of a publication ban by the defendant, Sun Media Corporation, after a long and complex criminal proceeding involving Gregory Last, accused of various offences including sexual assault. Briefly, the accused was convicted in 2005, lost on appeal, but had his convictions set aside by the Supreme Court of Canada in 2009.  The …

Dube v. RBC Life Insurance Company, 2015 ONCA 641

Released September 21, 2015 | Decision Dube permitted relief from forfeiture for a disabled employee who failed to give proof of claim within the 90-day period under his employer’s group policy.  The Court of Appeal provides a victim-friendly analysis under the relief from forfeiture test. In Dube, the Plaintiff was injured in an accident in May 2010. His employer advised him that he was ineligible …

Duncan v Taylor, 2015 ONSC 7186

In this MVA summary judgment motion, the court found that the plaintiff’s conviction of “failure to yield” under the Highway Traffic Act did not resolve the issues of liability in the civil action.

Dunk v. Kremer, 2017 ONSC 1547

This is a Costs Hearing subsequent to the Judgment by Healey J., with respect to a Motor Vehicle Accident Claim with a particular focus on SABS deductibility Released March 7, 2017 | Full decision [CanLII] Two of the most pressing issues to be decided by the Court were: The amount, if any, of any deduction for collateral benefits to be made from Meaghan Dunk’s award; The scale …

Echelon General Insurance Company v. Ontario (Minister of Finance), 2016 ONSC 5019

This was an appeal of a preliminary award in which the arbitrator determined that an insurer’s policy had expired prior to the collision in question. The issue on appeal was whether an improperly cancelled policy remained in force.

Economical Mutual Insurance Company v. Caughy, 2015 ONSC 3251

Released June 10, 2015 | CanLII Patrick Caughy applied to Economical for accident benefits under his own motor vehicle policy, as a result of injuries he sustained on August 3, 2012. Economical brought an application for a determination as to whether Mr. Caughy had been involved in an “accident”, pursuant to section 3(1) of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“the Schedule”). …

Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (CanLII)

Edwards v Camp Kennebec, 2016 ONSC 2501

In this settlement approval motion, plaintiff counsel’s fees were reduced from $793,500 to $225,000 because the contingency fee agreement was not compliant with the Solicitor’s Act

El-Khodr v. Lackie, 2015 ONSC 4766

Released July 28, 2015 | CanLII This decision concerns the calculation of prejudgment interest, whether the Court has jurisdiction to make an order pursuant to the trust and assignment provisions of the Insurance Act in the absence of a notice of motion and costs. It was released after the plaintiff, who was catastrophically injured in a motor vehicle accident, was awarded $2,931,006.00 by a jury. …

Evans v. Canusa Automotive Warehousing Inc., 2015 ONSC 6406 (CanLII)

Released October 16, 2015 | CanLII This endorsement on costs concerns the plaintiffs’ effort to escape an adverse costs award after their action was dismissed following the defendants’ successful summary judgement motion.  The plaintiffs requested there be no cost order on the basis of their impecuniosity, which they sought to substantiate by filing an affidavit stating they had accumulated debt and tax liabilities in excess …

Farhat v. Monteanu, 2015 ONSC 2119 (CanLII)

In this summary judgment motion, Perell J. of the Ontario Superior Court of Justice held that a person cannot always be expected to commence an action before he or she knows that the injuries surpass the threshold, which may not always be apparent on the date in which the accident occurred.

Ferawana v State Farm Mutual Automobile Insurance Co, 2016 CarswellOnt 14392

If an insurer fails to comply with the notice requirements at section 38(8) of the SABS, the relief in section 38(11) is mandatory and the insurer is prohibited from making a MIG determination on the applicant’s claim.

Fernandes v. Araujo, 2015 ONCA 571

Released August 10, 2015 | CanLII After 62 Years, Court of Appeal Admits it was Wrong A five-judge panel of the Court of Appeal just over-ruled its own decision from 1953 on vicarious liability of the owner of a vehicle being driven on the highway. This week, the Court released its decision in Fernandes v. Araujo (2015 ONCA 571) about the liability of the owner of …

Fontanilla v. Thermo Cool Mechanical, 2016 ONSC 7023 (CanLII)

Forestall v. Carrol, 2015 ONSC 5883 (CanLII)

Released September 23, 2015 | Full Decision Rarely will leave to appeal be granted from the decision to dismiss a summary judgment motion. Normally, the moving party lives to fight the issue on the merits another day. This was the rare case. The issue was discrete but central in the proceedings. It would speed the resolution of a long standing case. In 2005, a collision …

Forestall v. Carroll, 2015 CarswellOnt 14272

Released Semptember 23, 2015 | Full decision [OTLA Document Bank] This was a motion before the Divisional Court for leave to appeal an order dismissing a summary judgment motion. The defendant, Elizabeth Carroll had pleaded that she was driving her mother, the defendant Celina Carroll’s car with permission.  Apart from the presumption of permission, all other evidence, including the sworn testimony of both defendants on …

Forsythe v. Westfall, 2015 ONCA 810 (CanLII)

A plaintiff’s claim against her own Ontario-based automobile insurance company for uninsured/underinsured coverage is not a “real or substantial connecting factor” in establishing jurisdiction over an out-of-province motor vehicle tort claim

Francis v State Farm Mutual Automobile Insurance, CV-13-5492-00

Franklin et al. v. The City of Greater Sudbury, 2016 ONSC 4739 (CanLII)

In considering the issue of gross negligence by a city, the court looked at whether it was reasonably foreseeable that members of the public would enter the premises during the winter season. If it is, the city must provide a reasonable level of winter maintenance, post notice that maintenance had ceased, or block access to the premises. However, the court will also look at whether enough snow has fallen that a reasonable observer would conclude that the premises are no longer in use and/or not being maintained and, at that point, the city may reasonably cease all maintenance on the premises as there would be no good reason to believe that anybody will use it.

Galota v. Festival Hall Developments Ltd. et al, 2015 ONSC 6177 (CanLII)

Released October 6, 2015 | CanLII This is a motion for summary judgment on a limitation period issue. On May 13, 2006, the Plaintiff fell off of a dance stage at a bar and broke her arm. She sued only the bar owner (tenant) within two years of the fall. The bar and its insurer defended the action; unfortunately, the bar closed and its insurer became …

Gardiner v. MacDonald, 2016 ONCA 968

Gardiner v. MacDonald, 2016 ONSC 602

This case affirms that liability in motor vehicle accidents is not clear-cut, even in cases where the right of way is undisputed. In apportioning liability for an accident, the court will assess the reasonableness of each driver’s actions in the circumstances. Professional drivers will be held to a higher standard of care than ordinary drivers in similar situations.

Gomez v Vandelden, 2016 ONSC 1966 (CanLII)

Despite concerns regarding the credibility of the parties, Justice Dow grants Summary Judgment in “very exceptional case where the paper record was sufficient to reach a fair conclusion”

Grajqevci v. Rustaie, 2017 ONCA 2535

Court is not required to determine whether a plaintiff’s injuries meet threshold for non-pecuniary general damages and health care costs under s. 267.5(15) of the Insurance Act if the amount awarded for pain and suffering is zero.

Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585

Released July 15, 2015 | CanLII This Divisional Court decision concerns the issue of when interest begins to run on attendant care benefits.  The Divisional Court noted that the determination of this issue turned on when the payment of a benefit is “overdue”. The Plaintiff was involved in a motor vehicle collision on December 7, 2001. The Plaintiff retained various occupational therapists and case managers to …

Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854

An LTD insurer is entitled to reduce the amount of LTD payments under a group insurance plan by the amount of the non-earner benefit the insured person is receiving, so long as the accident benefits insurer is not deducting LTD payments from the amount of the NEB payable.

Hamilton v. Bluewater Recycling Association, 2016 ONCA 805

This was a motorcycle vs. recycling truck collision where the parties agreed that the Plaintiff motorcyclist’s damages were $8 million. The Plaintiff appealed the jury’s verdict that he was 100% liable for the collision. 

Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation 2017 ONSC 5467

Harris v. Ontario, 2016 ONSC 4641

Are claims for recovery of legal expenses incurred in connection with the inquest conducted into the death of JD potentially recoverable in law as against the defendants, pursuant to section 61(1) of the Family Law Act, or are such expenses excluded claims which are not potentially recoverable at law?

Hartley v. Security National, 2017 ONCA 715

The Court of Appeal for Ontario held that a Minnesota tortfeasor with only $500,000 liability limits is an “inadequately insured motorist” under the Family Protection Endorsement (OPCF 44R) in Ontario, where the 44R limits are $1 million.

Hoang v. Vicentini, 2016 ONCA 723

Humphrey v. Attorney General of Canada, 2016 ONSC 2659

The Court ordered that it was just and convenient to conduct examinations for discovery by way of video conference based on Rule 1.04 and Rule 37.04. The Midland decision clearly states that where a party resides outside of Ontario, neither party has a prima facie right with respect to the place of examination. Equally, there is no presumption for or against video conferencing. The test for determining the location of examinations is what is just and convenient for both parties based on circumstances of the case.

I.B. v. Aviva Insurance Company of Canada – Tribunal File Number 16 004144 AA85

Iannarella v. Corbett, 2015 ONCA 110

Once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent.

Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609

J.I.L.M. Enterprises & Investments Ltd v. Intact Insurance, 2017 ONSC 357

This fire loss trial resulted in an award to the plaintiff for its losses under the policy, extended profits losses due to insurer delay and a punitive award to denounce the high handed insurer behavior in delaying payment two years.

Jamieson v. Kapashesit et al, 2017 ONSC 5784 (CanLII)

Adverse costs insurance policies need not be produced in their entirety where the insured is the law firm and not the plaintiffs. To require disclosure would require a breach of the solicitor-client privilege of other clients covered under the policy.

Jeliazov v. John Doe, 2015 CarswellOnt 14677

Released September 28, 2015 | Full Decision [OTLA Document Bank] This was a summary judgment motion seeking to dismiss the action against the defendants, Economical Insurance Group and its subsidiary, Perth Insurance Company.  On July 5, 209, the plaintiff, Dimitar Jeliazov was struck on his motorcycle by an unidentified motorist.  He had taken possession of the motorcycle on June 29, and had not yet informed …

Kabutangana v. Coachman Insurance Co., 2016 ONSC 6330

Kania v 1618278 Ontario Inc (c.o.b. Heart and Crown Irish Pubs), 2015 ONSC 7042

Kapoor v. Kuzmanovski, 2017 ONSC 1709

The Court is set to consider whether payors of automobile insurance premiums should be excluded from sitting on juries and intervening parties are set to weigh in to assist the Court in making a determination.

Kassburg v. Sun Life Assurance Company 2014 ONCA 922

Released December 29, 2014 | Decision Kassburg imposes on insurers a duty to communicate a clear and unequivocal denial of a claim in order to trigger the limitation period under the Limitations Act 2002.  It also ruled that LTD contracts are not “business agreements.” Ms. Kassburg stopped working due to disability in October 2007, submitted her LTD claim in April 2008 and was denied benefits …

Kelly v. Mikhael, 2016 ONSC 6296

This was a defendant’s motion for an order pursuant to Rule 19.03 of the Rules of Civil Procedure setting aside the noting of default and allowing him to file a statement of defence. The motion was granted after Maramger J. reviewed principles the Court will take into account when exercising its discretion to set aside and order noting a party in default.

Kheriji v. 14939201 Ontario Limited et al, 2015 ONSC 5196

Released September 4, 2015 | CanLII This was a motion by the defendant, 14939201 Ontario Limited, to dismiss the plaintiff’s action against it for failure to issue within the limitation period and for summary judgment on the basis that the defendant did not owe a duty of care to the plaintiff. The plaintiff’s action arose from an assault at the Ministry nightclub. The defendant was the owner …

Kushnir v. Macari, 2017 ONSC 307 (CanLII)

To ensure trial fairness and the preservation of proper litigation, it was justified to impose a condition to ensure that expert reports are written solely by their author and not by a ghost writer, as has become more common and problematic in litigation recently.

Labelle v. Canada (Border Services Agency), 2016 ONCA 187

This appeal to set aside the dismissal order was allowed on the basis that prejudice to the defence existed regardless of the Appellant’s delay. The factor of delay by itself is not sufficient to deny the Appellant’s request to reinstate the action.

Lambert v. Khan et al, 2016 ONSC 103

Motion by Plaintiff to determine whether OPCF 44R applied to her claim, in which case her insurer, TD would be required to respond. Companion motion by defendant Lombard, seeking to have cross-claim against it by TD dismissed on rounds of zero liability.

Landre and Western Assurance Company, FSCO A16-001321

Landriault v. Sun Life, 2015 ONSC 3196

This is a summary judgment motion brought by the Defendant for a determination that the Plaintiff is statute barred from commencing an action beyond the two year period from the date of denial.  Here, the Plaintiff applied for LTD benefits from the Defendant and received monthly payments from September 2008 through October 2010.  The Plaintiff was denied benefits in October 2010 following obtaining the results …

Lauesen v. Silverman, 2016 ONCA 327

The Ontario Court of Appeal held that a solicitor’s negligence claim based on improvident settlement in a personal injury action was not discoverable until new counsel advised the plaintiff of it after obtaining an expert medical-legal opinion.

Lennox v Burns, 2016 ONSC 2993 (CanLII)

This was a medical negligence claim against a general surgeon following a Hartmann’s procedure and colostomy reversal. Failure to secure informed consent, and failure of surgical and post-operative standard of care were at issue.

Leon v. Toronto Transit Commission, 2016 ONSC 3394 (CanLII)

Levita v Alan Crew et al., 2015 ONSC 5316 (CanLII)

Released September 1, 2015 | CanLII This action arose out of a recreational hockey incident in which the plaintiff, Robbie Levita, suffered a fractured right tibia and fibula after being checked by the defendant, Alan Crew, while playing in a league operated by True North Hockey Canada. Levita claimed that Crew checked him into the boards from behind, either intentionally or recklessly, in contravention of the rules …

Lexfund v. Ferro et al., 2016 ONSC 4113 (CanLII)

Lica v. Dhaliwal, 2015 ONSC 3888 (CanLII)

Released July 29, 2015 | CanLII The Plaintiff commenced an action against the Defendants after sustaining injuries in a motor vehicle accident. State Farm Mutual Insurance Company (“State Farm”) denied coverage to the Defendants and had itself added as a statutory third party in the action, but refused to provide detailed information as to why it denied coverage. The Plaintiff sought an order requiring State …

Little v. Einarsen, 2015 BCSC 2127 (CanLII)

Released November 19, 2015 | Decision It was an unusual situation. Einarsen parked her vehicle on a slope and engaged the emergency brake.  She entered the pub.  About ten minutes later, her unoccupied automobile rolled down the slope of the parking lot. The Plaintiff, Little, was struck from behind by the rolling car as he walked across the parking lot.  The vehicle continued to roll …

Lloyd v. Bush, 2017 ONCA 252

A municipality will only be liable for failing to salt and clear road of snow where it had actual or constructive knowledge that road conditions create unreasonable risk of harm to users of a highway, and where the municipality unreasonably neglected that risk. Furthermore, in determining the proper reasonable response, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. Whether municipality’s actions are reasonable or not depends in part on resources that were available to the municipality.

Lyons Estate v. Dr. Freeman et al., 2017 ONSC 676 (CanLII)

MacDonald v. Duncan, 2015 ONSC 7135

MacKay v Starbucks Corporation, 2017 ONCA 350

The Court of Appeal upheld the trial judge’s ruling that Starbucks was an occupier of a municipal sidewalk leading into a Starbucks patio. The Court noted that in order for an adjacent property owner to be an occupier, the adjacent property owner’s actions must constitute more than “merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.”

Malfara v. Vukojevic, 2015 ONSC 78

Released January 8, 2015 | CanLII This case contains a good refresher on the principles which will be considered in threshold motions.  Justice Firestone set out the following principles: the trial judge is not bound by the jury’s verdict, but is a factor he or she can consider in determining the threshold motion; “permanent” does not necessarily mean forever until death; a permanent impairment is a weakened …

Mamado v. Fridson, 2016 ONSC 4080 (CanLII)

At the conclusion of trial, the defendant brought a threshold motion and called two expert witnesses in support of the motion: Dr. Soric and Dr. Reznek. The Court found that the evidence from both witnesses contained serious flaws and expressed concern regarding how the majority of their income was derived from conducting medical-legal work for defendants. The motion was denied.

Mandel v Fakhim, 2016 ONSC 6538

This was a threshold motion brought by plaintiff’s counsel during jury deliberations. The question before the court was whether the question was rendered moot as a result of the jury’s nominal award.

Mazzucco et al. v. Herer et al, 2015 ONSC 7083

Michael Digby v. Aviva Canada Inc., FSCO A16-001425

Middleton v. Pankhurst, 2017 ONCA 835 (CanLII)

The Court of Appeal affirmed that the term “authorized by law” applies only to licencing and restrictions imposed by the Ministry of Transportation.  A driver who operates a vehicle with alcohol in his system, in breach of his probation order, is not in violation of statutory conditions.

Mikolic v. Tanguay, 2015 ONSC 71 (CanLII)

The Divisional Court concludes that accident benefit settlements encompassing both past and future benefits are deductible against global damages awards without regard to apportionment between past and future amounts.

Nemchin v. Green, 2017 ONSC 2283

On the threshold motion, the trial Judge found that Dr. Richard Hershberg was not a credible witness and gave his evidence much less weight than the evidence of the Plaintiffs’ psychiatrists.

Niforos and Allstate Insurance Company of Canada, FSCO A13-007892

Heard April 25, 2015 | Document Bank The Applicant had been receiving CPP disability benefits since 1994. Approximately sixteen years later on March 1, 2010, the Applicant was injured in a motor vehicle accident.  Following this accident, the Applicant continued to receive CPP disability benefits. She also applied to her automobile insurer for non-earner benefits. A preliminary issue arose as to whether the Insurer was entitled to …

Nikolakakos v. Hoque, 2015 ONSC 4738 (CanLII)

P.K. v. The Guarantee Company of North America, 16-001348/AABS

P.L.F.R. v. Intact Insurance Company, Tribunal File No. 16-000145/AABS (LAT)

In what is believed to be the first LAT decision on catastrophic impairment, Vice-Chair Flude held that the applicant, who had been intubated and sedated before having GCS scores of 9 or less recorded, had suffered a catastrophic impairment.

Parasiliti v. Beatty, 2015 CarswellOnt 15370

Released Octiober 8, 2015 | Full Decision [OTLA Document Bank] This action in medical negligence was brought following an incident where the plaintiff, Rosetta Parasiliti, injured her hand while walking a friend’s dog.  She suffered three comminuted fractures to three left fingers. The attending physician, Dr. Lee performed a closed reduction and casted the hand on August 31, 2008.  On September 4, 2008, Ms. Parasiliti …

Parmar v. Teachers Life, 2017 ONSC 2329

The Plaintiff commenced an action for payment of disability benefits from the Defendant. The Defendant brought a motion for summary judgment, arguing the action was barred by the policy and/or the Limitations Act. The Court granted the Defendant’s motion for summary judgment.

Perth Insurance Company v. Salim Surani, 2017 CarswellOnt 13620 (FSCO Appeal Decision)

Pinch (Guardian ad litem of) v. Morwood, 2017 BCCA 234 (CanLII)

Powell v. Maisuria, 2017 ONSC 2278

Despite the accident occurring in Brampton, and the Plaintiff and the Defendant both residing in Brampton, the Court dismissed the Defendant’s motion to have the action transferred from Toronto to Brampton.

Pupo v. Venditti, 2017 ONSC 1519

The jury awarded $150,000 for pain and suffering damages where the Plaintiff suffered from chronic pain and had returned to work. After the jury delivered its verdict, defence counsel brought a threshold motion which was dismissed by the court

Puri Consulting Limited v. Kim Orr Barristers PC, 2015 ONCA 727 (CanLII)

In this appeal, the Court of Appeal found that even if the plaintiff’s offer to settle does not specifically provide for the inclusion of costs, the plaintiff would be entitled to it pursuant to rule 49.07(5)(b). Further, even if words in the offer are believed to be ambiguous or unambiguous, the meaning of those words can only be properly ascertained by considering the entire context in which the offer was made.

R.S. v. Aviva Insurance Canada, 16-003141/AABS (LAT)

A must read for anyone arguing non-earner benefit entitlement before the LAT Date Case Heard: Written Hearing: May 15, 2017 | Full Decision [PDF] This is a recent non-earner benefit eligibility case from the LAT.  It provides a helpful guide on how to argue a non-earner benefit case before the LAT. At the outset, the adjudicator addressed a number of preliminary procedural issues.  It allowed …

Rawsthorne v. Marotta, 2017 ONSC 2182

Discoverability is triggered when the plaintiff knows that some damage has occurred and she has identified the specific tortfeasor who caused the damage. Knowledge of the damage alone does not trigger the limitation period.

Richards v. Sun Life Assurance Company of Canada et. al, 2016 ONSC 5492

Ladies and Gentlemen, start your engines….and your Statement of Claims. This recent summary judgement dismissal suggests that an insurer’s delay in paying a benefit will trigger the commencement of the limitation clock, even where there has not been a “clear and unequivocal denial” of the disability claim.

The limitation period for disability benefits does not require a clear and unequivocal denial according to Justice Bale in his fact-specific decision on Summary Judgment motion.

Richards v. Sun Life Assurance Company of Canada, 2016 ONSC 5492

In an action for disability benefits, a plaintiff does not get the benefit of a rolling limitation period because the material facts upon which the action rests will have arisen at the time the plaintiff alleges that he or she first became entitled to periodic payments and it would be unfair to require the insurer to litigate those facts for a potentially unlimited period of time.

Rivera v. British Columbia Life & Casualty Company, 2015 CarswellOnt 16988

This application addressed the priority of coverage between a Long-Term Disability Carrier and an Accident Benefits Carrier. The Respondent, BC Life & Casualty Company, took the position that it was entitled to deduct Income Replacement Benefits from their calculation of the Applicant’s Long-Term Disability Benefits. The Applicant brought an application for a declaration that this was inappropriate. As per both the Insurance Act and the …

Romanko v. Nettina, 2014 ONSC 5153

Released September 8, 2014 | CanLII The insureds, Victor Romanko and Teareasa Romanko, were Ontario residents were injured in a motor-vehicle accident while driving in New York State. The insureds brought an action in Ontario against the driver and owner of the other vehicle involved in the accident, Dennis Nettina, a resident of New York State, and the Romanko’s automobile insurer, the Co-operators General Insurance …

S.T. v. Economical, 2017 CanLII 59507

LAT upheld the limitation period for denied CAT Benefits. It held that a catastrophically impaired Applicant missed the two year limitation period to dispute the Insurer’s refusal to pay housekeeping and attendant care benefits.

Saadati v. Moorhead, 2017 SCC 28

Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

An insurer cannot rely on its specialized knowledge of jurisprudence to advance an interpretation of the policy that goes beyond the clear words of the policy as understood by an average person.

Saleh v. Nebel, 2015 ONSC 3680

Released June 8, 2015 | CanLII This eight-day motor vehicle injury trial proceeded before the Honourable Mr. Justice F.L. Myers and a jury in Toronto in January and February 2015. Liability was admitted. The jury awarded the plaintiff $30,000 for general damages but nothing for his claims for past and future loss of income or for future care.  Justice Myers subsequently granted the defendant’s threshold …

Samur (Litigation Guardian of) v. Antoniak, 2016 ONCA 851

Sanzone v. Schechter, 2016 ONCA 566

This appeal to set aside a dismissal granted at a summary judgment motion was allowed on the basis that the respondents failed to present evidence going to the merits of their defence but instead attempted to compel the appellant to deliver an expert report and show that she has not done so.

Scarlett v. Belair Insurance, 2015 ONSC 3635

Released June 5, 2015 | CanLII In this most recent installment in the Scarlett saga, the Divisional Court reviewed the decision of Director’s Delegate Evans from November 28, 2013.  That decision had overturned the original Arbitration decision of March 26, 2013. The Director’s Delegate had remitted the matter to be heard in full by a different arbitrator. Mr. Scarlett sought to reinstate the Order of …

Schaefer v Ayeneababa, 2016 ONSC 3673 (CanLII)

Sharon Todd v. Felton Brushes Ltd. et al., 2016 ONSC 5252

Shaw v. Mkheyan, 2017 ONSC 851

This is a threshold motion in which the plaintiff had pre-existing osteoarthritis in his left knee. The plaintiff was successful in establishing the subject car accident caused his asymptomatic left knee to become symptomatic and thus his injuries met threshold.

Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014 (CanLII)

Released December 30, 2014 | CanLII The plaintiff, Misty Shawnoo, suffered a catastrophic brain injury following a motor vehicle collision that occurred on December 12, 2010. As a result of the collision, she suffered from ongoing issues with impulsiveness and risk-taking behavior sufficient to warrant constant monitoring and supervision. Ms. Shawnoo applied for attendant care benefits under the SABS from the defendant, Certas, for care provided …

Silvera v. Olympia Jewellery Corporation, 2015 ONSC 3760

Released June 15, 2014 | CanLII Ms. Silvera – who had worked at Olympia Jewellery Corporation as a receptionist/administrative assistant – was fired after a two week absence from work due to dental surgery. At the time, she earned $28,000 a year, and had worked for the employer for a year and a half. She brought an action against Olympia for wrongful termination and against …

Simmons et al. v. Mallika et al., 2015 ONSC 5964

Master refuses security for costs to the defendants Released October 5, 2015 | Full Decision [Document Bank] The defendants brought a motion seeking security for costs from the plaintiffs in the motor vehicle accident action. The accident took place on April 7, 2006. The defendant rear-ended the plaintiff’s vehicle. The plaintiff suffered injuries. The plaintiff’s husband and two daughters were added to the action under s. 61 of …

Skunk v. Ketash, 2016 ONSC 2019

Defendant insurer brings summary judgment motion on UMC coverage for car taken without consent. Owner of car’s husband injured as a passenger in the stolen car. Justice Newton finds person who took vehicle without consent is an “inadequately insured motorist” under OPCF 44. Defendant’s motion dismissed.

Sobh v. RBC General Insurance Co. et al, 2016 ONSC 7382

This was a motion and cross-motion for summary judgment. The defendant driver sought to have the claim dismissed as against him and his numbered company. The Plaintiff’s insurer sought its release from the action under its unidentified coverage. In the alternative, it sought a ruling that the OPCF 44R was not triggered in the circumstances of this claim.

Soczek v. Allstate Insurance Co., 2017 ONSC 2262

State Farm Mutual Automobile Insurance Company v. Aslan et al., 2016 ONSC 2725

An April 13, 2016 decision by Justice Hackland in Ottawa has provided further guidance on the notice requirements before an insurer can perform a section 33 Examination Under Oath. A generic statement that the insurer requires an examination under oath to determine the insured’s entitled to statutory accident benefits will not suffice.

Surujdeo v. Melady, 2017 ONCA 41

The Court of Appeal clarifies the causation question to be put to the jury in medical malpractice trials (and lots more). Released January 18, 2017 | Full Decision [CanLII] This action was brought by the surviving spouse of a 36-year-old woman, Rossana Surujdeo, who presented to hospital with flu like symptoms and died approximately 9 hours later. The cause of her death was a rare …

T.C. and Personal Insurance Company of Canada, FSCO A13-009880

This arbitration was to determine whether monies received for providing attendant care to a child/family member constitute post-accident income that is deductible from the amount of the applicant’s income replacement benefits.

Thompson v. Intact Insurance Company, 2016 CanLII 60729 (ON LAT)

Released August 16, 2016 | Full Decision [CanLII] This is one of the first AABS decisions from the LAT. The applicant brought an AABS application to determine entitlement to a denied treatment plan. Prior to the hearing, Intact agreed to fund the treatment plan. Despite the settlement, the applicant sought to recoup its costs of preparing for the hearing. The LAT was forced to decide …

Thorne et al. v. Hudson et al., 2016 ONSC 5507

In cases with multijurisdictional facts, the choice of law analysis depends on the specific tort alleged. In Thorne, the claims were mainly based on the tort of negligent misrepresentation, which occurs where the misinformation is received or relied upon.

Tierney v. North Waterloo Farmers Mutual, FSCO A15-003293

Applicants successful in demonstrating economic loss for care provider who was a student at the time of the MVA and subsequently had to accept a lower paying position than anticipated due to the requirement for flexible time and proximity to provide AC services.

Todhunter v. Owles, 2015 ONSC 5656

This decision concerns a motion for leave to appeal an order permitting the plaintiff to amend his statement of claim by adding named third parties as defendants after the expiry of the limitation period. The third parties were municipal entities. Leave was not granted.

Tompros v. Ravitharan et al, 2015 ONSC 3998

Released June 19, 2015 | CanLII This was a motion brought by Desjardins as intervener to have a coverage issue determined prior to trial regarding an excluded driver under one of its policies. The excluded driver had signed an OPCF 28A Excluded Driver form in 2007. The form had not been approved by the FSCO Superintendent, was not witnessed, and did not specify which automobiles …

Unifund Assurance Company v. D.E., 2015 ONCA 423

Released June 11, 2015 | OntarioCourts.ca The Court of Appeal has allowed Unifund’s appeal and overturned the lower court decision. The Court held that an insurer does not have a duty to defend and indemnify its insureds under a homeowner’s policy, with respect to claims they failed to investigate, remedy and prevent their daughter from bullying. In the original ruling, (previously summarized here) Justice Stinson held that …

Usanovic v. La Capitale Life Insurance Company, 2016 ONSC 4624

Vickers v. Palacious, 2015 CarswellOnt 20889

After the close of the plaintiff’s case, during which the plaintiff filed the reports of two radiologists, the trial judge denied the defendant’s request for a ruling permitting it to cross-examine the radiologists.

Vickers v. Palacious, 2015 CarswellOnt 20890

Late disclosure of surveillance evidence, in breach of the defendant’s continuing disclosure obligations, led the trial judge to exclude surveillance evidence both as substantive evidence and for the purpose of impeachment.

Watkins v. Western Assurance Co., 2016 ONSC 2574

Accident Benefits Insurer’s failure to provide an Explanation of Benefits to a dependent of a policyholder who may have been entitled to accident benefits does not stop the time requirement of that dependant to apply for accident benefits within the statutory timelines and commence an action within the two-year limitation period

Watts v. Bowman, 2016 ONSC 3994

Watts v. Bowman, 2016 ONSC 3994 (CanLII)

In order to determine whether a driver of a vehicle has the implied consent of the owner of the vehicle to drive it, the court has to ascertain what he or she actually did under the circumstances, not what he or she would have done under different circumstances. The court cannot speculate on whether or not an owner would consent to allow a vehicle to be driven if the driver had requested the permission.

Wilk v Arbour, 2017 ONCA 21

The Court of Appeal held that the term “owner” in the Dog Owners’ Liability Act is more expansive than the colloquial meaning and refers to a person who has some measure of control and physical possession of the dog immediately prior to the injury. The Court furthered clarified the application of negligence to cases of injury by animals, holding that there must be “special circumstances” in which the owner could reasonably foresee that a specific animal was dangerous in specific circumstances.

Wong v. Salivan Landscape Ltd., 2016 ONSC 4183

The limitation period against a security firm contracted to perform winter maintenance at a condominium property did not begin to run before the plaintiff had actual knowledge of the security firm’s responsibility. Plaintiff’s counsel’s property searches, notice letters and reliance on information obtained from the property owner constituted due diligence.

Woodhouse v. Snow Valley Resorts (1987) Ltd., 2017 ONSC 222

Where a service provider relies on the waiver clause of a consumer agreement, and the consumer agreement contains terms that are void by operation of the Consumer Protection Act, the service provider bears the onus to persuade the court that it would be inequitable not to bind the Plaintiff to all or some portions of the consumer agreement, including its waiver clause.

Wright v. Detour Gold Corp., 2016 ONSC 6807

Where an expert has retained separate legal counsel to assist with the preparation of a report or affidavit, the expert will not be required to produce drafts or copies of communications between the expert and his or her counsel. However, the expert will be required to produce drafts and correspondence if there is a factual basis for the reasonable suspicion that counsel has improperly influenced the expert.

Zarebicki v. Wal-Mart Canada Corp., CV-14-0778-00

Ziebenhaus v. Bahlieda, 2015 ONCA 471

Released June 24, 2015 | CanLII In this decision, the Court of Appeal considered the inherent jurisdiction of the court to order a party to undergo a defence medical examination by someone who is not a “health practitioner” as defined by s. 105 of the Courts of Justice Act. The Court acknowledged at the outset that there was conflicting case law on the issue. The …