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.
No compensation without causation in a breach of fiduciary duty claim
by Ejona Xega | Jun 17, 2020
In the recently released decision, Stirrett v. Cheema, 2020 ONCA 288, the Court of Appeal opined on the role causation plays in awarding damages for a breach of fiduciary duty. The Court held that the trial judge had erred in awarding compensation for a breach of fiduciary duty when causation had not been proven. The Court of Appeal’s decision confirmsRead More...
Should MDS Inc. V. Factory Mutual Insurance Company (FM Global) Impact COVID-19 Business Interruption Claims?
by Avi Sharabi | Jun 17, 2020
The novel coronavirus causing the COVID-19 infection is likely to impact insurers in several ways. In addition to an anticipated decrease in premium collection due to cancellation of policies, and a probable shrinking of investment returns, it is anticipated that there will be numerous claims that arise from the pandemic, including business interruptionRead More...
Technical Changes to Ontario Rules and the Impact for Litigants and Litigators
by Katie Di Tomaso | Apr 13, 2020
In advance of 2020, Ontario litigators saw changes on the horizon when, on October 23, 2019, the Ontario Government announced significant amendments, effective January 1, 2020, to Ontario’s Rules of Civil Procedure. In particular, the changes were to rule 76 governing actions commenced under simplified procedure. The purpose of the changes isRead More...
The Supreme Court’s Decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
by Linda Phillips-Smith | Apr 13, 2020
In two recent decisions, the SCC has re-written the standard of review to be applied by courts when hearing appeals of administrative decisions. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, a Canadian born child of two Russian spies, was initially stripped of his citizenship by the Canadian Registrar of Citizenship. ThatRead More...
Edwards v. McCarthy, 2019 ONSC 3925 – Disclosure of “foundational information” to an Expert’s Report
by Jessica DiFederico | Oct 23, 2019
The decision in Edwards v. McCarthy, 2019 ONSC 3925 provides some guidance on how much information a party is required to disclose pertaining to retained experts, before the party has decided whether or not to call the expert as a witness at trial. In Edwards, the plaintiff brought an action against his former lawyer, alleging that his lawyer hadRead More...
The Type of Case the Summary Judgment Rule was Designed to address: Kueber v. Royal Victoria Regional Health Centre
by Jacinthe Boudreau | Oct 23, 2019
Earlier this year, the Supreme Court of Canada dismissed the plaintiff’s application for leave to appeal the decision of the Court of Appeal in Kueber v. Royal Victoria Regional Health Centre[1] affirming the motion judge’s decision to grant partial summary judgment. The motion judge had dismissed the plaintiff’s action against 9 physicians, anRead More...
Summary Judgment Motions: Hearsay Evidence and Boomerang Motions
by Jacinthe Boudreau | Oct 23, 2019
The Court of Appeal made new law in Drummond v. Cadillac-Fairview Corporation Limited[1]. The Court held that a motion for summary judgment should not be granted against a party who has had no notice that summary judgment was being sought against it. The Court found that the motion judge erred by failing to afford the defendant an opportunity to addressRead More...
S.H. v CAS of Haldimand-Norfolk, 2019 ONSC 848
by Elizabeth Bowker | Oct 23, 2019
The plaintiff, the father of a child, alleged that the Children’s Aid Society (“C.A.S.) negligently investigated and maliciously prosecuted him. The CAS brought a motion for an Order striking the Statement of Claim pursuant to Rule 21 of the Rules of Civil Procedure, on the grounds that the Statement of Claim failed to disclose a reasonable causeRead More...
Stephenson v Cheng, 2019 ONSC 543
by Elizabeth Bowker | Oct 23, 2019
The City of Barrie sought to have the plaintiff’s action dismissed by way of summary judgment motion on the grounds that the plaintiff had failed to provide notice of his claim to the Municipality within ten days of his accident, as required by Section 44.10 of the Municipal Act. The plaintiff was struck while riding his bicycle on July 29, 2015.Read More...
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,Read More...
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. CreditRead More...
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 appraisalRead More...
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 negligentRead More...
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 provideRead More...
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,Read More...
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 containedRead More...
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”)Read More...
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 someoneRead More...
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 passengersRead More...
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 LimitationsRead More...
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: http://canlii.ca/t/hr6rs. 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 judgeRead More...
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 plaintiffsRead More...
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’Read More...
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’Read More...
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) (http://canlii.ca/t/ggbk3). I was pleased to deliver a paper I had written on the topic of properly using surveillance evidence in litigation cases. Fast-forwardRead More...
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 limitationRead More...
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:Read More...
No compensation without causation in a breach of fiduciary duty claim
Should MDS Inc. V. Factory Mutual Insurance Company (FM Global) Impact COVID-19 Business Interruption Claims?
Technical Changes to Ontario Rules and the Impact for Litigants and Litigators
The Supreme Court’s Decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
Edwards v. McCarthy, 2019 ONSC 3925 – Disclosure of “foundational information” to an Expert’s Report