SB Case Commentaries

These Case Commentaries will provide you with a brief update on recent or important court decisions and our thoughts about their implications. Please check back regularly for the latest news as we add to our Commentaries.

Case commentary on Telus v. Wellman, 2019 SCC 19: Enforcing arbitration agreements to avoid class action in Ontario

by Christopher Afonso | Jun 07, 2019

Arbitration agreements can be useful for commercial litigants seeking to resolve disputes faster and with heightened confidentiality as compared to court actions. In the context of standard agreements for consumer goods and services, arbitration clauses are sometimes used by companies seeking to limit their exposure to court actions brought by customers,

Cheesman v. Credit Valley Hospital: How much Expertise does an Expert Require?

by Jessica DiFederico | Jun 07, 2019

Counsel in medical malpractice actions have traditionally matched experts closely to the defendant’s practice area when addressing standard of care issues. A community doctor’s actions, for instance, will be commented on by another community doctor. This convention may no longer be as important following the recent decision of Cheesman v. Credit

Dismissing professional negligence claims at the pleadings stage: A commentary on a recent Ontario Court of Appeal decision

by Christopher Afonso | Mar 15, 2019

The Ontario Court of Appeal recently upheld the dismissal of a professional negligence claim at the pleadings stage of an action. Our firm represented the successful defendant who had been sued for negligent misrepresentation in connection with a real estate appraisal report. The dismissal occurred largely because of the disclaimers in the appraisal

Update to the Anns Test and a rejection of the tort of “negligent misstatement”: Case commentary on Lavender v. Miller Bernstein LLP, 2018 ONCA 729

by Christopher Afonso | Mar 15, 2019

Overview The Ontario Court of Appeal granted an appeal and dismissed a class action against an auditor. In doing so, the Court applied the updated test recently established by the Supreme Court to determine whether a duty of care arises between a negligent party and the party claiming damages. The Court also determined that a claim based on negligent

The Fettered Right to Utilize an Unfettered Right to Terminate a Service Contract

by Michael Cremasco | Mar 15, 2019

On May 7, 2018, the Ontario Court of Appeal released Mohamed v. Information Systems Architects Inc., 2018 ONCA 428, a case that dealt with the circumstances of terminating a fixed-term contract, and whether a seemingly unfettered contractual right to do so is limited by any other factors. The plaintiff was retained by the defendant, ISA, to provide

The Court of Appeal Clarifies the Scope of Participating Expert Evidence

by Ashley Goren-Gibson | Mar 15, 2019

In Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888 (“Imeson”), the Court of Appeal emphasized the importance of the judicial gatekeeping role for expert witnesses, and clarified the boundaries of proffering “participant expert” evidence at trial. In a narrow exception to Rule 53.03 of the Rules of Civil Procedure,

How Far Does Municipality Liability Stretch? The Case of Martin v. Barrie (City)

by Sarah Attardo | Nov 22, 2018

On May 28, 2018, the Court of Appeal provided some clarification as to the extent that a municipality can be held liable for personal injuries during festivities that it hosts. Background In Martin v. Barrie (City), 2018 ONCA 499, the Court of Appeal reviewed a trial decision that found a municipality had satisfied the standard of care contained

ONCA Slapps Down a Framework for Dismissing Strategic Lawsuits

by Michael Cremasco | Nov 21, 2018

On August 30, 2018, the Ontario Court of Appeal released its decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 0685, the first appellate-level decision to consider the effect of the additions of sections 137.1 – 137.5 to the Courts of Justice Act (“CJA”)  spurred by the Protection of Public Participation Act (“PPPA”)

The Supreme Court of Canada Reinforces the Importance of Reasonable Foreseeability in the Duty of Care Analysis

by Jessica DiFederico | Nov 21, 2018

The case of Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, reminds us that judges can and do disagree about how to interpret and apply legal principles – even legal principles which have been well-established for many years. In Rankin, the Supreme Court of Canada considered whether the owner of a garage owes a duty of care to someone

Taxi Drivers Owe no Duty of Care to Adult Intoxicated Passengers

by Rovena Hajderi | Nov 21, 2018

In a recent case of the Superior Court of Justice, Stewart v. The Corporation of the Township of Douro-Dummer, 2018, ONSC 4009, Justice Ricchetti grappled with the issue of what duty of care a taxi driver owes to an intoxicated passenger.  The Court concluded that there is no positive duty of care on a taxi driver to ensure that intoxicated adult passengers

When Does the Limitation Period Start to Run for a Third Party Claim?

by Simon Clements | Aug 14, 2018

The Issue An important decision was released on May 7, 2018 by the Ontario Court of Appeal in the case of Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, stating that the two year limitation period for third party claims for contribution and indemnity under s. 18 of the Limitations Act, 2002, SO 2002, c 24, Sch B (the Limitations

Expert Evidence in Occupiers’ Liability Trials Involving Flooring Material

by Katie Di Tomaso | Aug 14, 2018

A recent Ontario Court of Appeal decision, Tondat v. Hudson’s Bay Company, 2018 ONCA 302 (“Tondat”), upheld the trial judge’s finding of liability in a slip and fall accident:  The case arises from a plaintiff’s slip and fall on a wet tile floor in the Bay. The sole issue on appeal was whether the trial judge

Leave Granted to Examine Non-parties in Favour of Full Discovery

by Katie Di Tomaso | Aug 14, 2018

It is an era of broad disclosure for civil litigants.  In Kissoon v. Aviva Insurance Company of Canada[1], Mr. Justice C. De Sa J. demonstrated this by granting leave for examination of occupants of a car involved in a motor vehicle accident as non-parties. The motion stemmed from three separate actions which were commenced by three separate plaintiffs

Ontario Court of Appeal Validates Liability Waivers

by Andrea LeDrew | Aug 14, 2018

Background In Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, two appeals were heard together as they raised common issues. The cases have similar facts, as the plaintiffs were both patrons of ski resorts and had executed waivers of liability as a condition of their ski tickets. In both cases, the plaintiffs had been injured on the ski resorts’

The Sound of Silence – The Ontario Court of Appeal Interprets Silence in a Termination Clause

by Jessica DiFederico | Mar 29, 2018

The Court of Appeal has provided some much needed clarification on the ever changing subject of enforceability of employment contracts. In Nemeth v. Hatch Ltd., 2018 ONCA 7 (“Nemeth”), the plaintiff (appellant) was employed with the defendant for about 19 years. He was terminated and was given eight weeks’ notice of termination, 19.42 weeks’

Managing Surveillance

by Katie Di Tomaso | Mar 29, 2018

In 2015, I was honoured to speak to Stieber Berlach’s clients on the then recent Ontario Court of Appeal decision and leading case on surveillance, Iannarella v. Corbett, 2015 ONCA 110 (CanLII) ( I was pleased to deliver a paper I had written on the topic of properly using surveillance evidence in litigation cases. Fast-forward

Preventing Extensions Of Limitation Periods

by Christopher Afonso | Mar 29, 2018

Newly developing law concerning extending limitation periods was clarified in a recent decision of the Ontario Superior Court. In Peloso v. Griesbach, 2018 ONSC 798, the court considered whether a limitation period could be extended beyond two years where a tort claimant is engaged in a process to limit or remove its damages. The law that limitation

The Framework: Anti-Slapp Legislation

by Farhad Shekib | Mar 29, 2018

Section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) was enacted in response to strategic litigation against public participation (“SLAPP”) lawsuit. Such lawsuits use the court system to limit the effectiveness of the opposing party’s speech or conduct. The stated purpose of sections 137.1 to 137.5 of the CJA is to: