With Thompson’s World Insurance News reporting (May 5, 2014) that Aviva detected over C$202.84m in insurance fraud in 2013–a 19% increase over 2012–over 45 claims a day (C$553,370) it is clear that one of the world’s oldest professions must be taken increasingly seriously by insurance claims executives. Fraudsters have historically viewed insurance fraud as a relatively low risk way of building a career in criminality. Fearful of investigation and defense costs, and of punitive damages verdicts where a defense does not succeed, many insurers have often paid claims they believe to be fraudulent. It is hard to scope out the true cost of fraud unless adequate resources are devoted to the task: you don’t find what you do not actively and aggressively pursue. With Insurance Bureau of Canada estimates of insurance fraud in Canada north of $500 million a year, the cost of inaction is clear. Cost/Benefit analyses solely focused on a case by … Read More
Court Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Leave to Bring Summary Judgment Motion Denied in Dog Bite Lawsuit
In Dickson v. Di Michele, 2014 ONSC 2513, the plaintiff claimed the defendants’ dog attacked her while she was delivering a pizza and sued the defendants for damages under the Dog Owners’ Liability Act. After the plaintiff set the action down for trial, the plaintiff brought a motion requesting leave of the court to bring a summary judgment motion with respect to liability and contributory negligence, while leaving the issue of damages for trial. The defendants argued that leave should be denied since the well-established test required the plaintiff to prove a substantial or unexpected change in circumstances since the action was set down for trial. Justice Bale found that the issue was whether the proposed summary judgment motion was likely to provide a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”, citing the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7. After considering the evidence, Justice Bale held … Read More
Summary Judgment Granted in Condominium Maintenance and Repair Case
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
Court Finds Foreign Hotel Operator Properly Served in Ontario
In Klein v. Occidental Hotels & Resorts, 2014 ONSC 2221, the Ontario Superior Court of Justice addressed the issue of whether a foreign hotel operator was properly served with a claim made in Ontario with respect to an accident that occurred at its hotel in the Dominican Republic. In this case, the Plaintiff purportedly served the claim on the receptionist at the address of the hotel operator’s office in Toronto. The hotel operator argued that it does not have any offices in Ontario nor does it carry on business in Ontario, and the location where the claim was purportedly served was the address of the marketing company it uses in Ontario. The hotel operator maintained that the marketing company was not its agent. In considering whether the hotel operator was properly served, Justice Healey considered the three-part test to determine whether a corporation is carrying on business in Ontario: (i) has the corporation carried on business in the jurisdiction for a sufficiently substantial period of time; (ii) … Read More
Court of Appeal Confirms Haunted House is not a Latent Defect in Real Estate Purchase and Sale
The Ontario Court of Appeal recently released its endorsement in 1784773 Ontario Inc. v. K-W Labour Association Inc., 2014 ONCA 288, a case which involved the purchase and sale of a “haunted” commercial property. In this case, the purchaser sued the vendor after hearing rumours that the property was haunted by ghosts of people who were murdered or had died on the property. The purchaser alleged that the vendor failed to disclose these latent defects in the property. The vendor brought a summary judgment motion to dismiss the claims against it. The judge hearing the summary judgment motion held that there was no genuine issue requiring a trial for the following reasons: (i) there was no evidence that anyone died on the property, either by natural causes or some criminal act; (ii) the vendor was not required to disclose that someone had died on the property or that the property may be haunted; (iii) there was no evidence as to how the purchaser could prove … Read More
Mixed Results in Summary Judgment Motion in Parking Lot Slip and Fall Case
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 of Appeal on Restrictive Covenant on Dissolution of Partnership
The Court of Appeal for Ontario released its decision on February 11, 2014, in Greenaway v Sovran 2014 ONCA 110 on the appeal by a “withdrawing” partner of a two-member firm from the decision of the Superior Court of Justice on an application to determine the enforceability of a “restrictive covenant” in their partnership agreement. The application judge found that the two-member firm partnership had been dissolved and declared the restrictive covenant unenforceable as a penalty, but directed a trial of an issue to determine the damages payable by the appellant as a result of a breach of the portion of the portion of the covenant he found valid and severable – the withdrawal having triggered a clause in the agreement which called for the reduction of the withdrawing partner’s capital account “by 500% of the average fees billed by the firm to clients who transfer to the withdrawing partner within 24 … Read More
Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications
On March 26, 2014, David Alderson, lawyer with Gilbertson Davis LLP was the Chair / Moderator of Osgoode Hall Law School’s webinar entitled Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications. The panelists were the Honourable Justice David M. Brown, Superior Court of Justice (Ontario), Professor Janet Walker, Osgoode Hall Law School and Cynthia B. Kuehl, Lerners LLP. A link to the agenda of the Osgoode PD Webinar Summary Judgment in the Supreme Court of Canada: Hryniak v Mauldin and Its Implications is here. David Alderson was one of the counsel for the successful respondents in the Supreme Court of Canada. The related Gilbertson Davis LLP Practice Area is described here.
Court of Appeal Refuses to Exercise Long-Arm Jurisdiction
In West Van Inc. v. Daisley, the Motion Judge found that the claim did not have a “real and substantial connection” to Ontario to give the Ontario Courts jurisdiction. The Plaintiff, a Canadian company, was suing an American lawyer for work he had done for the Plaintiff company in the U.S. The Court of Appeal considered whether the Court should exercise jurisdiction under the “forum of necessity” exception; the Ontario Courts may assume jurisdiction over a case which it otherwise would not if there is no other forum where the Plaintiff can “reasonably” sue. The Plaintiff argued that it could not reasonably sue the American lawyer in North Carolina because it could not find a lawyer to represent it there. The Plaintiff had called lawyers in two of North Carolina’s largest cities, but none would agree to take the case. The Court of Appeal was not satisfied that the difficulty in … Read More
Summary Judgment in Wrongful Dismissal Action in IT Sector
The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More