Last updated August 6, 2008

Judge applies "but for" causation test in slip and fall case
The court also apportioned 20% of the fault to a municipality for having failed to maintain the city sidewalk adequately.

Plaintiff claiming against uninsured motorist coverage need not sue any tortfeasors
New case says uninsured motorist coverage claimants "can simply submit the claim to the insurer and the insurer will pay". What are the ramifications of this ruling? If the plaintiff doesn't sue tortfeasors, can the uninsured motorist insurer pursue third party claims against them?

Judge says offer made "without prejudice" is not one governed by Rule 49
We're not so sure...

Div. Ct. says trial judge wrong to strike jury notice on basis of his judicial notice of prejudice against Muslims
In this personal injury case, the Court also discussed whether or not Ontario should introduce jury challenges for cause. Two of three panel members thought not.

Waiver signed by deceased defeats FLA claims
A Superior Court judge found that the negligence of diving instructors caused the death of a novice diver, but that a waiver of liability signed by the deceased barred a claim by his wife and child.

C.A. says power to extend limitation periods in "special circumstances" is no more
But the power does still exist for older claims.

C.A.: "Don't let sleeping judges lie"
What to do when the trial judge is in the Land of Nod? The Court of Appeal tells us.

S.C.C. upholds dismissal of "fly in the bottle" case
The Court made it clear that, in the law of negligence, foreseeability is measured by an objective standard.

Divisional Court lays down the law on appeals from masters' orders
In an important decision, the Divisional Court has clarified the role of masters in the Ontario judicial system and has clearly established the standard of review to be applied on appeal from orders made by masters. No more hearings de novo!

Master gives primer on pleadings in MVA cases
Even though the pleadings are often "boiler-plate", they must still allege "material facts".

First Bill 198 decision!
Justice Morissette concludes that the "gloss" on the Insurance Act "threshold", enacted four and a half years ago, didn't produce much of a change.

C.A. says trial judge applied wrong standards in deciding MVA threshold issue
The Court ordered this issue to be reconsidered by another judge after faulting the trial judge's analysis of "permanent" and "serious". There was no discussion of how the jury's assessment of damages should enter into the equation, if at all.

Insurer ordered to defend additional insured against all allegations in underlying suit
This decision of Hennessy J. sheds some light on this troublesome area of insurance law, but also illustrates why it so often gives rise to difficulties.

A tool for multi-party mediations
An interesting article describes a device for facilitating mediation of multi-party insurance disputes, but we think it can be used in other types of cases too.

C.A. says negligent loading of ladder on truck is excluded under CGL
The Court rejected the argument that the exclusion relied upon by the insurer defeated the insured's "reasonable expectations" and said that there would have had to be evidence of this.

Judges repeal R. 49 for MVA defendants!
Well, a slight exaggeration. But two recent cases (this one and this one) complete the judicial trifecta that started with Rider v. Dydyk and that prevent insurers in MVA litigation from being able to make offers to settle that would ever be effective. Now, accident benefits received and the fact that the claim fails to meet the threshold are to be ignored for purposes of determining costs.

C.A. upholds huge personal injury award
Defence strikes out with all of its attacks on the $17 million award. But the Court reduced a risk premium from $350,000 to $50,000. Now, the premium is for something other than risk. Not sure what.

C.A. says insurer liable to pay where contractor's negligence weakens building's foundation
"Your work" exclusion not applicable.

Summary judgment refused in social host case
As predicted, Childs v. Desormeaux hasn't meant the end of these claims.

"Special circumstances" power still exists
...says Templeton J. No vacillating, she comes out and says that despite the "mandatory" language of s. 21(1) of the Limitations Act, 2002, courts do still have the discretion to add defendants after the expiry of a limitation period.

C.A. upholds Monks SABS award
And it was big.

Polygraph results not admissible in Ontario
A new trial was ordered after a Deputy Small Claims Court judge allowed polygraph test results into evidence, saying, "my goodness, if we have a chance to have this resolved by this scientific or quasi-scientific means, why not do it?"

Court dismisses civil suit for sexual assault on basis of findings at criminal trial
The court concluded that it would be an abuse of process to permit the civil action, even though the plaintiffs had not been involved in the criminal trial.

Court dismisses third party claim relating to plaintiff's previous accident
The motions judge applied the C.A. decision in Misko v. Doe, but without a key factual element present in that case.

Former Negligence Act limitation period applies to 2008 claim for contribution or indemnity arising out of 2001 accident

Uninsured motorist coverage applies where lessee of vehicle injured
The car was being driven without consent but insurer still liable under uninsured motorist coverage.

Judge says it's "clear" that Limitations Act, 2002 has done away with discretion to relieve against limitation periods
Confusion in this area of law awaits clarification in upcoming C.A. ruling in Meady v. Greyhound.

Limitation period for loss transfer claim held to be six years
Decision applies to pre-Limitations Act, 2002 cases.

Plaintiff's failure to file affidavits of experts results in dismissal of medical malpractice claim on motion
Court rejects hearsay affidavit, stresses importance of opposing party having right to cross-examine experts.

Divisional Court slams motions judge's failure to give reasons
The court said that the motions judge had effectively "declined jurisdiction".

HTA limitation period doesn't apply where injury caused by tailgate
Henderson J. says that limitation period is six years where the offending part not integral to "conveyance" function of pickup truck.

Must insurer maintain "firewall" between tort and no-fault claims?
Decision of Valin J. suggests that the answer is "yes".

Divisional Court orders new trial because of defence counsel's "offensive" jury address
In this Bill 59 MVA trial, the defence solicitor had said in his jury address, "the courts of Ontario are not an ATM machine" and urged the jury to give the plaintiff nothing. It obliged. But now, they'll have to do it all again.

Master proposes guidelines for solicitors' affidavits filed on motions
The Master's decision also contains a useful discussion of summary judgment motions and evidentiary issues that arise on them, as well as particular issues that surface in discoverability cases.

Constitutional challenge to power to dismiss juries is rejected
Power J. found no violation of Charter rights in Rule 47.02, which allows the court to strike out a jury notice.

C.A. finds insurer owes duty to defend despite "anti-concurrent causation" clause in policy
The court also permitted the insured's firm (which happens to be ours) to defend the underlying action, despite an ongoing coverage dispute.

General damages "cap" applies to multiple accidents
A Superior Court judge rejected the argument that a plaintiff who has been injured in multiple accidents can recover total non-pecuniary damages in excess of the current maximum of about $312,000.