Waivers of Liability Enforced in Schnarr v Blue Mountain Resorts Ltd.

Yona Gal, J.D., LL.MCivil Litigation, Contract Disputes, Negligence0 Comments

What happens when statutes collide? In Schnarr v Blue Mountain Resorts Limited, the Ontario Court of Appeal was recently asked to bar a negligence suit by enforcing waivers of liability signed by skiers visiting a ski resort. The issues in the case clustered around the dual application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act (“CPA“) to agreements between skiers and ski resorts. As an occupier of premises, ski resorts are subject to the OLA.  To encourage landowners to make their property available for recreational activities, the OLA allows for landowners to limit their liability through waivers of liability.  However, as a consumer agreement, these ski resort contracts are also governed by the CPA.  The CPA requires services supplied under a consumer agreement to be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be void. The concurrent governance of the OLA and … Read More

#MeToo – The Assessment of Damages in Sexual Assault Cases

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Appellate Advocacy, Negligence, Sexual Assault, Sexual Harassment0 Comments

The Ontario Court of Appeal recently released the decision in Zando v. Ali, 2018 ONCA 680, which involved an appeal of an assessment of damages in a sexual assault case.  This case confirms the principles to be used in determining damages in civil sexual assault cases and is particularly relevant in the current climate of the #MeToo movement. In this case, the parties were physicians and colleagues at the Sarnia General Hospital.  They had initially met after their residency examination in Toronto and became friends.  They were both married and had immigrated from Pakistan.  After completing their respective training elsewhere, they both ended up practicing medicine at the Sarnia General Hospital. The respondent alleged that the appellant sexually assaulted her on June 22, 1999 at her house.  The appellant had attended her house to complete an insurance medical form.  After completing the insurance form, the respondent alleged that the appellant took his clothes off, tripped her to the floor and sexually assaulted her. The trial … Read More

Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial Contracts, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Negligence, Summary Judgment, Travel & Tour Operators, Travel & Tourism0 Comments

In Di Gregorio v. Sunwing Vacations Inc., the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa through their travel agent, Sunwing Vacations Inc. (“Sunwing”). While on vacation, the balcony railing gave way resulting in the appellants sustaining injuries. The motion judge was found to have erred in not conducting a jurisdictional analysis pursuant to Club Resorts Ltd. v. Van Breda. The Court of Appeal stated that the relevant connecting factor is that the claim pleaded was based on an Ontario contract. The alleged tortfeasors do not need to be party to the contract, as all that is required is that a “defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship” as stated in Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP. The Court of … Read More

Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Misrepresentation, Negligence, Real Estate | Developers, Real Estate Litigation0 Comments

Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More

What Does the Illegal Substances Clause Mean in OREA Agreements of Purchase and Sale?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Agents and Brokers, Appeals, Broker and Agent Claims, Civil Litigation, Commercial, Commercial Litigation, Contract Disputes, Contract Termination, Misrepresentation, Negligence, Real Estate Agent and Broker, Real Estate Litigation0 Comments

The Court of Appeal decision in Beatty v. Wei, 2018 ONCA 479, involved the failed closing of a residential property in Toronto and the proper interpretation of an illegal substances clause that is commonly found in OREA Agreements of Purchase and Sale. Illegal Substances Clause in OREA Agreement of Purchase and Sale In this case, about a month after entering into the Agreement of Purchase and Sale, the purchaser’s real estate agent discovered the property had been previously used as a marijuana grow-op in 2004.  The purchaser sought to terminate the agreement and demanded the return of the $30,000 deposit.  The sellers refused to terminate the agreement and commenced an application for a declaration that the purchaser breached the agreement by failing to close and an order that the sellers were entitled to the deposit and related damages.  In response, the purchaser commenced a competing application for similar relief. The dispute was in respect to … Read More

Business “One Step Removed” From Tort Liability: Rankin (Rankin’s Garage & Sales) v. J.J.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial, Negligence0 Comments

The neighbour principle derived from Donoghue v. Stevenson that underlies the Anns/Cooper test continues to animate all of tort law. The pendulum continues to swing regarding who we can properly call our “neighbours” for legal purposes. While limiting who qualifies as our neighbours is necessary to prevent indeterminate liability, a balance must be struck to ensure just and fair outcomes. Rankin (Rankin’s Garage & Sales) v. J.J., in a strong 7-2 decision, represents the Court attempting to strike such a balance. In Rankin (Rankin’s Garage & Sales) v. J.J. a 15-year-old Plaintiff, J., suffered a catastrophic brain injury as a result of being the passenger in a car accident that occurred after his 16-year-old friend, C., stole a car from Rankin’s Garage & Sales (paras 1-5). Justice Karakatsanis, writing for the majority of the Supreme Court of Canada, held that there was no duty of care owed in this case by a business that stores vehicles to someone who is injured following the theft of … Read More

Ontario Court Decides on Appropriate Use of Mini-Trial in Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Contract Disputes, Misrepresentation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Summary Judgment0 Comments

In Crisafi v. Urban Landmark Realty Inc., 2018 ONSC 191, the Ontario Superior Court of Justice addressed a summary judgment motion brought in a real estate litigation matter and provided guidance on when the Court will use its enhanced fact-finding powers set out in the 2010 amendments. Background This case involved a claim by a real estate agent against his former real estate brokerage for unpaid real estate commissions in the amount of $60,000.  The brokerage took the position that the agent breached his contractual, statutory and fiduciary duties to its clients and was negligent in handling four transactions which caused it to suffer damages. The brokerage argued that the agent failed to properly advise one of its clients while in a multiple representation situation including the anticipated sale price of the house and an estimate of whether the client could afford to purchase a subsequent property.  The house ended up sitting on the market even after several reductions in the listing price.  As is commonplace in the industry, this resulted in … Read More

Court of Appeal Allows Negligence Claim Against Individual Starbucks Employees to Proceed

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Civil Litigation, Commercial Litigation, Directors' and Officers' Liability, Insurance, Negligence0 Comments

In Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, the plaintiff alleged that a Starbucks barista poured scalding water on the plaintiff’s hands.  The plaintiff sued Starbucks, and also brought  claims against the barista and the Starbucks store manager personally.  The plaintiff alleged that the barista and the store manager owed the plaintiff a duty of care and that each was personally liable to the plaintiff for breaching those duties. Starbucks brought a motion to strike the plaintiff’s  claims against the barista and store manager on the basis that, among others, the plaintiff could not claim against them personally.  The motion judge agreed, stating that employees are not liable for acts within the scope of their authority and done on behalf of their corporation.  The motion judge struck the plaintiff’s  claims against the barista and store manager. The plaintiff appealed.  The Court of Appeal, citing the Supreme Court of Canada’s … Read More

Nick Poon Comments on Condominium Liability Issues for the Toronto Sun

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Condo Litigation, Directors' and Officers' Liability, Gilbertson Davis LLP News, Negligence, Property Management0 Comments

Nick Poon was recently asked to comment on the duty and standard of care of condominium corporations, boards of directors and property managers in respect to security and safety in condominiums. Read the Toronto Sun article here: “Creepy Yorkville condo stalker terrifies women“. If you require legal advice and representation in respect to condominium disputes, please contact us for an initial consultation.

Use At Your Own Risk: Partial Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Franchise Law, Misrepresentation, Negligence, Summary Judgment0 Comments

The Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, recently overturned an award of partial summary judgment in a professional negligence action and provided guidance on the appropriate circumstances in which partial summary judgment motions should be brought. In the original action, the plaintiffs brought an action against various Mitsubishi companies after their Mitsubishi dealership franchise failed, claiming damages for breach of contract, misrepresentation, negligence and breaches of the Arthur Wishart Act.  The original action was dismissed on summary judgment because the applicable two-year limitation period had passed.  The plaintiffs were also ordered to pay $150,000 in costs for both the action and the summary judgment motion. The plaintiffs appealed the summary judgment motion decision and argued that a six-year limitation period was applicable notwithstanding that they had conceded at the motion that the applicable limitation period was two years.  The appeal was dismissed. The plaintiffs then brought the subject action against their former lawyers for negligence.  The plaintiffs claimed damages for … Read More

Ontario Court Rejects Forum of Necessity Argument

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation, Negligence, Of Interest to US Counsel, Slip & Fall, Travel & Tour Operators0 Comments

In Cook v 1293037 Alberta Ltd., the Ontario Plaintiff was allegedly injured in an incident at the Defendant’s Alberta hotel.  The Plaintiff commenced an action in Ontario respecting the incident nearly two years after the incident occurred.  The Defendant brought a motion to dismiss the Ontario action on the grounds that Ontario did not have jurisdiction over the claim.  By the time the Defendant brought the motion, more than two years had passed since the incident. The Ontario Court applied the test for jurisdiction simpliciter set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda – i.e. whether the claim had a “real and substantial connection” to Ontario.  The Plaintiff argued that the Defendant corporation was “domiciled or resident in Ontario” because one of the corporation’s directors had moved to Toronto, Ontario following the incident.  The Court rejected this argument, stating that there was no evidence that the … Read More

GD Blog analysis vindicated: Court finds s. 258.3(8.1) of Insurance Act retroactively scales back PJI rates

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Civil Litigation, Insurance, Negligence0 Comments

In a post on this site last November, “Why the new s. 258.3(8.1) of the Insurance Act will retroactively scale back prejudgment interest rates in MVA actions,” I stated that the statutory amendment reducing the rate of prejudgment interest for non-pecuniary damage awards (damages for pain and suffering and the non-pecuniary portion of dependent family claims) in automobile tort cases must be applied retroactively.  In large or catastrophic claims involving years of pre-trial procedures, the difference can be quite substantial. These past four months, I am told the blog post has been printed off and by defence lawyers across Ontario, and that the reasoning has been debated at mediations and pretrials.  Lawyers have been waiting for the court to opine on the subject.  In a decision released today but not yet available on the court’s website, Cirillo v. Rizzo 2015 ONSC 2440, the Ontario Superior Court followed the reasoning I stated in the … Read More

Summary Judgment Granted in Condominium Maintenance and Repair Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Negligence, Summary Judgment0 Comments

In Patriarcki v. Carleton Condominium Corporation No. 621, 2014 ONSC 1507, the self-represented plaintiff sued her condominium corporation and the condominium corporation’s contractor alleging that they negligently repaired and replaced a boiler in her condominium unit which exposed her to toxic fumes that made her very sick.  The defendants brought a summary judgment motion seeking to dismiss the claims against them. The Court considered the guidance recently provided in the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, with respect to summary judgment motion principles before providing its analysis of the case.  The issue was whether there was a genuine issue for trial in light of the plaintiff’s alleged failure to present any evidence of liability on the part of the defendants. Although the plaintiff relied on a number of medical reports which opined that her health problems were caused by gas leaks from the boiler, the Court found that the … Read More

Mixed Results in Summary Judgment Motion in Parking Lot Slip and Fall Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Insurance, Negligence, Summary Judgment0 Comments

In Wiseman v. Carleton Place Oil Inc., 2014 ONSC 1987, the Ontario Superior Court of Justice addressed the summary judgment motion brought by the two remaining Defendants in a case involving a slip and fall in a Tim Hortons parking lot.  The Plaintiff alleged that she broke her wrist when she slipped and fell on accumulated snow along the curb of the drive-through lane.  The owner of the parking lot took the position that they had satisfied their duty of care by contracting out for snow removal on the premises.  The snow removal contractor argued that they had performed all their contractual obligations on the day of the incident. After summarizing the law on summary judgment as set out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Justice Pedlar held that there were genuine issues requiring a trial in respect to whether the owner was negligent in designing a parking lot that required customers to step over the drive-through curbing to … Read More

Court Declines to Grant Summary Judgment, But Orders “Summary Trial”

Andrew Ottaway, B.A. (Hons.), LL.B.Medical Malpractice, Negligence, Summary Judgment0 Comments

Kristensen v. Schisler is another decision on the heels of Hryniak v. Mauldin, the Supreme Court case promoting better access to justice through summary judgment.  This case was for professional negligence and battery.  The Plaintiff claimed against the Defendants, a dentist and an oral surgeon, for removing his tooth without consent. The Judge considered the new test set out by the Supreme Court in Hryniak v. Mauldin, stating that “The overarching question to be answered is ‘whether summary judgment will provide a fair and just adjudication’.”  The Judge concluded that he could not grant summary judgment.  He stated that more evidence was necessary to “do justice between the parties” because: 1) the case turned on credibility, the Plaintiff’s in particular; the Plaintiff denied consenting to the tooth removal, even though the Defendants’ records suggested otherwise.  If the Plaintiff were to be found highly credible (presumably after in-court cross-examination), his evidence might “trump” … Read More