SB Case Presentations

Recovery for Pure Economic Loss: A Narrow Right of Recovery

by Iain Peck, Alanna Brogan | Oct 26, 2021

INTRODUCTION A ‘pure economic loss’ is a financial loss suffered by a person or corporation which is not accompanied by bodily injury or property damage. As a matter of common law, courts have historically limited recovery for pure economic losses to certain, defined, categories. The result was that smart plaintiff’s counsel would attempt
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Insurance Potpourri: Survey of Recent Case Law

by Rovena Hajderi, Andrea LeDrew, Leigh Clark | Oct 26, 2021

Potpourri: an unusual or interesting mixture of things. - Cambridge Dictionary The last two years have certainly brought many new and interesting changes to the legal world, including some pertinent case law worth discussing. We have collected some compelling insurance cases covering a range of relevant topics. POLICY EXCLUSION CLAUSES Tataryn
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Contractual Duty of Good Faith: Judicial Krazy Glue?

by Kurt Pereira, Ejona Xega, Leigh Clark | Oct 26, 2021

In late 2020 and early 2021, the Supreme Court of Canada revisited the duty of good faith in contract in two hotly anticipated decisions. In this paper, we will review these important decisions and how they have been interpreted by lower courts before identifying the key takeaways from these updates. Bhasin v Hrynew: introducing the organizing principle
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Anti-SLAPP Legislation: Is it Working?

by Linda Phillips-Smith, Nicola Brankley, Noah Eklove | Oct 26, 2021

A legal proceeding intending to silence a group or individual who speaks out on matters of public interest is known as a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of a SLAPP is to silence critics with less financial resources by forcing them to spend time and money to defend baseless lawsuits.[1] Examples of SLAPPs may include
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Moving the Goal Posts: 2020 Developments in Sports and Recreation Liability

by Grant Ferguson, Laurie Graham | Oct 20, 2020

Sections 3(1) and 4(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) import duties on occupiers to take some care to see that patrons are safe while on the premises.  The duty is not absolute.  In the case where s. 3(1) applies, the risk must be foreseeable by the “reasonable” system in place.[1]  Under s. 4(1), the risk
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All about the journey?: Circumstantial evidence and standard of care

by Elizabeth Bowker, Michael Connolly | Oct 20, 2020

It can be difficult for litigants and the Courts to figure out the complex relationship between the standard of care analysis and the nature of the injury or damage suffered by the plaintiff. There is no duty to “Be Perfect”:  the standard of care analysis does not impose an absolute duty of perfection.[1]  In cases of professional negligence,
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Picking Policies: 2020 Update on Auto Coverage

by Sukhpal Dial, Katie Di Tomaso, Michael Connolly | Oct 20, 2020

Motor vehicle accident claims involve complex contractual and regulatory issues and may generate exposure for multiple insurance policies in certain circumstances. Ontario courts have held that automobile insurance policies form part of an “integral social safety net”[1] designed for consumer protection and guaranteed compensation for victims.[2]
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Double Duty: The equities of concurrent duties to defend

by Avi Sharabi, Michael Connolly | Oct 20, 2020

Claims made against defendants who are also contractual parties may give rise to concurrent coverage issues.  For example, a defendant party may be named as an additional insured to the policy of a tenant, landlord, business partner, service provider, etc., who is also a co-defendant, in addition to maintaining their own insurance. This creates the
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Update on Limitation Periods – Where have we been and where are we headed?

by Jessica DiFederico, Michael Cremasco | Oct 23, 2019

Introduction Although the Limitations Act, 2002 (the “Act”)[1] has now been in force for almost 20 years, the manner in which it should be interpreted and applied continues to be refined by the courts. We will examine some recent trends in the case law, particularly on what it means to have “discovered” a claim and how the application of
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Serving Alcohol: The Evolving Law

by Murray Stieber, Christopher Afonso | Oct 23, 2019

Introduction Insurers of those who serve alcohol continue to grapple with uncertain liability. Commercial host and social host liability are different but related lines of negligence law. Both involve an inquiry into a whether a duty of care was owed between the host and an injured party, who may or may not be a guest of the host. Generally, the
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Evidence and Fairness in Summary Judgment: Drummond V. Cadillac Fairview

by Christian Breukelman | Oct 23, 2019

OVERVIEW The landscape of summary judgment has changed considerably since the “culture shift” imposed by the Supreme Court of Canada in Hryniak v. Mauldin[1] back in 2014. Very few decisions should prove to be as instructive as the Ontario Court of Appeal’s recent decision in Drummond v. Cadillac Fairview Corporation Limited.[2] In Drummond,
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Partial Summary Judgments: Cost Savers or Money Pits?

by Shadi Katirai | Oct 23, 2019

Introduction Over the last several years the Ontario Court of Appeal has come out with several strongly worded decisions against providing partial summary judgment. Despite this, litigants continue to bring these motions, and thus far in 2019 are receiving a reasonable degree of success when proceeding under the right circumstances. This paper will
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Protecting Innocent Co-Insureds in Ontario

by Iain Peck, Gaetana Campisi | Oct 19, 2018

Insurance law’s treatment of innocent co-insureds has troubled courts for some time.  Up until this year, an insurer in Ontario, and many other Canadian provinces and territories, could deny a claim for recovery by an innocent insured if the loss was caused by an intentional or criminal act of a person who was also insured under the policy.  Courts
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2018 Causation Update

by Simon Clements | Oct 18, 2018

In 2018, the test to establish causation is clear. What remains unclear is how that test is to be translated into jury questions, and how the Court will assess the evidence to determine if a plaintiff has met that test.  This paper will consider those current issues. The Test Care must also be taken to separate the articulation of the test, from
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Claims for Contribution and Indemnity: When? Who? Why?

by Frank Csathy, Lesley Albert | Oct 16, 2018

INTRODUCTION Commencing claims for contribution and indemnity is a common and important part of the litigation process and can be essential to protect the interests of our clients.  As such, it is important to recognise when such claims are available in law and when they are appropriate. Generally speaking, there are three situations wherein
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Update on Mental Distress Law: A Review of Nissen v. Durham Regional Police Services Board

by Jacinthe Boudreau | Oct 10, 2018

Is There a Need to Review Your Reserves?   Introduction Since the decision of the Supreme Court in Mustapha in 2008, the law of “mental distress” has continued to evolve. As some of my colleagues addressed at the Stieber Berlach 2017 Insurance Law Update Seminar, the Supreme Court held in 2017, in Saadati, that a finding of a recognized
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Punitive Damages

by Murray Stieber, Andrea LeDrew, Christian Breukelman | Oct 24, 2017

Overview: An award of punitive damages[1] is an exceptional and relatively rare remedy available to plaintiffs in civil proceedings.  As suggested by its name, such an award is punitive as opposed to compensatory by nature, straddling the frontier between civil and criminal law. This paper will provide an overview of the legal framework underlying
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Down But Not Out: An Update on Social Host Liability

by Emily R. McKernan | Oct 17, 2017

More than a decade ago, the Supreme Court of Canada released the decision of Childs v. Desormeaux[1] in which the Court considered for the first time whether hosts of parties where alcohol is served (i.e. social host cases) owe a duty of care to public users of highways who are injured when an intoxicated guest drives after the leaving the party. 
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Carter V. Intact: Replacement Property Must Be of Like Kind and Quality

by Alanna Brogan | Oct 16, 2017

When is a property owner entitled to replacement cost coverage? What qualifies as a replacement building?  This paper will provide you with what the Ontario Court of Appeal has to say on these issues, as recently addressed in its decision Carter v. Intact Insurance Co.[1]. A Primer on the Basis of Valuation in a Property Policy Property insurance
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Timeliness of Appraisals: How Late is Too Late?

by Nicola Brankley | Oct 16, 2017

1. OVERVIEW The appraisal process is an effective and efficient way to quantify a disputed claim under a policy of insurance. It provides an out-of-court mechanism through which qualified individuals can assess and measure the monetary value of a loss. While the commencement of a civil action does not itself preclude the right to trigger the appraisal
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The Supreme Court of Canada’s Decision in Saadati v. Moorehead

by Jessica DiFederico | Oct 10, 2017

Overview In Saadati v. Moorehead, the Supreme Court of Canada considered the issue of whether evidence of a “recognizable psychiatric illness” is required to recover for mental injury.  Before the Supreme Court’s decision in Saadati, lower courts required that plaintiffs show a recognizable psychiatric illness to recover for mental injury,
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From Katrina to Fort McMurray: The Post-Disaster Economy and Business Interruption Coverage

by Emily Stock, Steven Stieber | Oct 25, 2016

ABSTRACT How should business interruption valuation clauses be interpreted when a catastrophic event has impacted the business' surrounding economy?  Should it be based on historical data only?  Cases in the United States have applied the valuation clauses inconsistently, which causes uncertainty and ultimately is to the detriment of both the insurers
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Whose Risk Is It Anyway – Part One

by Grant Ferguson | Oct 25, 2016

INTRODUCTION The two biggest questions for which we, as defence lawyers, are engaged are: “what is the liability” and “what are the damages”. Every case management or litigation plan is structured around these two questions.  There are strategic assessments of them, separate spreadsheets to assess their intertwining influence, and budgets
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Whose Risk Is It Anyway? – Part Two

by Kurt Pereira | Oct 20, 2016

A Further Discussion of Hold Harmless Agreements and Indemnity Provisions   BRIEF INTRODUCTION The second portion of this paper discusses a number of decisions interpreting contractual hold harmless and indemnity provisions. The cases below are motion and application decisions, which primarily arise out of disputes between defendant property
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Developments in Relief From Forfeiture

by Murray Stieber, Caroline Gronke | Oct 19, 2016

NO HARM, NO FOUL: DEVELOPMENTS IN RELIEF FROM FORFEITURE   By Murray Stieber and Caroline Gronke OVERVIEW Relief from forfeiture refers to the power of the court to protect a person against the loss of an interest or a right because of a failure to perform a covenant or condition in an agreement or contract. While the doctrine of relief
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