This recent appellate decision from the Divisional Court reminds civil litigators, and jurists, that qualifying an expert is not a one-and-done exercise performed ahead of the expert giving testimony, and that it is something that needs to be continually assessed in the event new evidence comes forward to question the veracity of that qualification. Everyone……
News
Ontario Court of Appeal Sends Chilling Message to Insurance Carriers who Play Hardball in Personal Injury Claims
A defendant is not required to make any settlement offers, but if that is the posture adopted, it must live with the consequences of that posture if its decision does not prove to have been a reasonable one.
Defence Medical Exam Ordered in Wrongful Dismissal Case
This recent decision appears to be a first of its kind, at least in Ontario, where a fired employee advancing a wrongful dismissal claim against their former employer was ordered to undergo a defence medical examination. Section 105(2) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”) empowers the court to……
Person Alleging Cognitive Injury Fails to Have Settlement Set-Aside
In this recent appellate decision, a personal injury litigant was unsuccessful in having his settlement set-aside on the grounds that he was allegedly suffering from cognitive impairments at the time the settlement paperwork was signed. The settlement occurred in 2015, resulting in a consent dismissal order. Four years later, in 2019, the plaintiff brought……
Suing Crown Employees Personally has its Challenges
This recent case provides a good illustration of some of the obstacles that face a litigant when attempting to advance a personal injury claim against Crown employees. In this case, the Plaintiff, who was seriously injured during a vicious attack by fellow inmates in a correctional facility, wanted to sue the correctional officers who the……
Appeal Court Confirms that Judges Can Back-Date the Issuance Date of a Claim
This recent Ontario Court of Appeal decision delved into whether a judge has the power to back-date the issuance date of a Statement of Claim. In legal parlance, this is referred to as granting an order nunc pro tunc: latin for “now for then.” Nunc pro tunc orders are made all the time, typically to……
Court Approval of a Settlement Involving a Person Under Disability is Not a Slam-Dunk
This recent decision makes it clear to litigants that the Court requires cogent proof of the efficacy of any settlement involving a person under disability: a minor in this case. I recall in my earlier years that motions of this type, often referred to as “infant settlement motions,” were routinely considered to be an informal……
Falsifying an Insurance Proof of Loss Could Result in Your Entire Claim Being Lawfully Denied
Occasionally, people who sustain insurance covered losses feel compelled to “fudge” the numbers when making an insurance claim, but this recent case illustrates the dangers in falsifying just one thing in an otherwise honest insurance claim. In this case, there was a fire that damaged a home to the point where it was uninhabitable until……
It is a Revokable Privilege to Self-Represent Your Company in Court
In Ontario, corporations must be represented in court by a lawyer. However, the court is empowered to relax this requirement, and this typically occurs for small companies who cannot afford a lawyer. Regardless of the reason, however, once a company chooses to dispense with legal representation, a motion must be brought to seek permission from……
Appealing from a Small Claims Court Decision
In this recent Divisional Court ruling, Davies J., sitting alone, took a hard look at appeal rights following an order made by a Small Claims Court judge, and in the process provided some helpful guidance. In a nutshell, final orders must be appealed (ie: commenced with a Notice of Appeal), and an interlocutory order must……
Expert Report Ruled Inadmissible Where Expert Had Access to Settlement Discussions
In this recently released decision, the court had to contend with the admissibility of a report tendered by an expert who had access to the settlement discussions between the litigants. In many civil cases, the chances of this occurring is rare. For example, in a personal injury context, it would be rare indeed for a……
Family Protection Coverage in Homeowner’s Policy and in Auto Policy Are Very Different
Most automobile insurance policies contain a Family Protection endorsement which essentially ensures that anyone covered by the auto policy will not be denied recovery in the event that they become injured by an unidentified, uninsured, or underinsured owner/operator of another motor vehicle. In these situations, the Family Protection coverage would provide indemnity up to the……
Virtual Discoveries Can Be Easily Abused
Even though remote (virtual) discoveries are convenient, this recently released court ruling reveals how virtual discoveries can be abused, and why it is, in my view, important to conduct both discoveries and trials in-person. Discoveries are the cornerstone of just about every civil litigation file. In other jurisdictions this process may be called depositions, examinations,……
Failing to Serve Your Claims on Time Could be Very Costly
Although litigants and the courts are typically very willing to give a Plaintiff many indulgences when it comes to serving their Statement of Claim, this recent decision is a poignant reminder not to take these graces for granted. Indeed, in this case the worst-case scenario unfolded for the Plaintiff and their lawyers: not only did……
Employee Whose Duties Were Diminished After Announcing Resignation Was Not Constructively Dismissed
Except in the clearest of situations, employees generally have a very difficult decision to make when asserting that they have been constructively dismissed from their employment. This is largely because all the onus rests on them to prove that they were constructively dismissed, which effectively means that they must prove that they didn’t simply resign……
Litigation Settlements Are Generally Private, But Not When Settlements Involve Parties Under Disability
This recent Ontario Court of Appeal decision dealt with a very heated issue that involved various intervenors who all had strong opinions on whether motions for court approvals of a settlement involving a party under disability, brought under Rule 7.08 (herein “Rule 7.08 Motions”) should be presumptively sealed in order to “protect” the party under……
Juries Should Disregard Collateral Benefits when Assessing Damages
This recent case reveals the many challenges litigants, their counsel, judges and juries face when trying to navigate their way through the collateral deduction provisions of the Insurance Act. Thankfully the trial judge in this case provides some sage advice and guidance. This case involved a plaintiff who was catastrophically injured. The plaintiff and his……
Sellers and their Lawyers Need to Be Vigilant about Detecting Purchaser’s Deception About Needing the Acquired Property for their Personal Use
In my post entitled “Promising Vacant Possession on Closing of Tenanted Property”, I outline some of the potential pitfalls that can occur when a buyer insists on vacant possession on closing when the subject residential property is tenanted. In short, the safest route for a seller is not to promise vacant possession, but merely to……
Single Mother on Assistance Not Shielded from Paying Damages For Defaming Law Firm on Social Media
In this recently released decision, the court awarded a law firm damages in the sum of $30,000.00 against a single mother who defamed the law firm on social media after she had a falling out with the firm, and moved to another law firm. Granted, the defendant mother was self-represented and perhaps didn’t launch a……
Prejudgment Interest (PJI) for Motor Vehicle Claimants Now Exceeds the PJI Rate for All Other Personal Injury Claimants
The moto here could be “Careful What you Wish For.” In my article “Calculating Prejudgment Interest – Not as Easy as It Appears,” I provide a detailed breakdown of the many nuances behind calculating prejudgment interest, and what follows is a brief summary of a recent turn of events that has led to a rather……
Judges Should Not Readily Strike a Litigant’s Pleading For Procedural Defaults
This recent Ontario Court of Appeal decision is very brief, but it delves into two important legal principles: a) striking out a litigant’s pleading should not be the remedy of choice when addressing the litigant’s procedural defaults, and b) the importance of coming to court with clean hands. The defendant successfully appealed the lower court……
Snow Removal in Exclusive Use Areas is Residential Tenants’ Responsibility, Common Areas the Landlords’ Responsibility
This recent case helps illustrate who is responsible when a person slips and falls on the property of a residential tenanted building. In this case both the tenant and the landlord asked the court for an advanced ruling on who was responsible for clearing the snow at a residential complex, on the hope that they……
Landlord not Responsible for Injuries Caused by Dog Attack in Tenant’s Apartment
In this recent court decision the court had to decide whether a landlord of a residential complex was liable for the damages caused to a six year old’s face when it was bitten by a dog owned by the tenant while visiting with family in the tenant’s apartment. Liability of the dog owner is rarely……
Family Members Not Involved in a Motor Vehicle Accident Can Still Have a Catastrophic Impairment SABS Claim
People injured by a motor vehicle insured in Ontario have access to tiered accident benefits, called Statutory Accident Benefits (“SAB’s”). The available benefits are tiered because they starting at a base level and can be increased and/or broadened for an additional premium when the insurance coverage is purchased, and additionally, the limits can also vary……
Lawyer Getting off the Record Must Still Preserve Solicitor-and-Client Privileged Communication
This recent case illustrates: the importance of protecting solicitor and client privilege even when the lawyer wants to end that solicitor-and-client relationship through a motion to remove themselves as lawyer of record for a client; and the tremendous price a lawyer pays when they fail to keep solicitor-and-client communication private. By way of background, when……