Legal & Industry Insights
Detailed insider views on legal trends and outcomes.
Spoliation as an Independent Cause of Action? The Jury Remains Out
The issue of spoliation is rarely dealt with in case law. It is a term that one hears regularly in the context of insurance claims related litigation and other litigation generally. Subrogating insurers want (or should want to) to ensure evidence is preserved to ensure they can prove their case. Liability adjusters can also have good reason to preserve evidence. Courts have generally held that to establish spoliation, you must establish not only that evidence has been compromised (damaged, destroyed, lost etc.) but also that it has happened intentionally and in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. However there is little direction on what the consequences are for a spoliating party. The question of whether spoliation is an independent cause of action (in addition to being an evidentiary rule) has been an open question that courts in Ontario have been reluctant to determine. The Ontario Court of Appeal had...
Just Dig: Musings on Collateral Benefits
In the long awaited July 14, 2022 LAT award rendered in #20-007407/AABS by Vice-chair, Sandeep Johal, the question arose whether an LTD benefit that was not being received could be deducted from an IRB benefit. The upshot was that the deadline for the SABS claimant to apply for the collateral...
Arguing Over Nothing: The Priority Dilemma
Seinfeld’s charm was that it was “a show about nothing.” Of course, anyone on “the priority circuit” knows that this concept is not limited to TV, and that sooner or later, you have been, or you will be, involved in a priority dispute “about nothing.” You get on the first...
Graul v. Kansal – An Abundance of Teaching Moments
The recent decision of Justice Lemon in Graul v. Kansal weighs in at 182 pages and comes with plenty of teaching moments about defending personal injury claims, weighing the strengths and weaknesses of a claim and the uncertainty of trials. The plaintiff came to the case as a 52 year old husband...
What did I just trip on?
A recent decision of Justice Mitchell of Ontario’s Superior Court of Justice has re-affirmed that a plaintiff in a slip and fall case is not required to pin point the exact cause or mechanism of the fall to succeed in establishing liability on a defendant. In Branton, the defendant was involved in...
Courts of Justice Act Medical Assessments – How Many is Too Many?
The issue of how many defence medicals are too many is the subject of a recent Ontario Superior Court decision. In the matter of Rocca and 6131646 Canada Inc. et al, the plaintiff was involved in a motor vehicle accident that resulted in injury. It was noted that the plaintiff had produced three...
Court’s in Session:
SCJ’s expanded virtual court operations and Corbett J. guidelines for remote hearings as set out in Ontario v. Ontario Association of Midwives, 2020 ONSC. To protect all court users during the COVID-19 crisis, all but urgent hearings in the Ontario Superior Court of Justice (SCJ) were suspended,...
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