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...
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,...
SNOW…AND ICE, ICE, BABY
All right, stop, collaborate and listen… Snow arrived much earlier than many of us expected. It isn’t 12 Inches of Snow just yet, but it is a seasonal reminder to many AB claims examiners that a flurry of OCF-1s may soon appear on their desks. Consider this blog posting your Informer about snow,...
Wait – Let Me Grab My Purse!
In the recent LAT decision of S.B. and Aviva, a woman who sustained injuries after retrieving her purse from her car, closing the door, and then falling to ground did NOT meet the definition of "accident" as defined in the SABS. Instead the applicant’s fall in this case was considered to be an...
How long has that been leaking?
Ontario’s Court of Appeal recently addressed the issue of “discoverability” in a contractor negligence and public health authority claim. In Presley v. Van Dusen, 2019 ONCA 66, the homeowners retained a contractor to install a septic system in 2010. After the installation was completed and...
Homeowners, Distributors and Contractors – Plenty of Blame to Go Around in Spill Case
The Court of Appeal has dismissed the appeal of a fuel supplier found 40% at fault in a case involving the discharge of 500 litres of fuel oil from two indoor residential tanks. The oil leaked into the soil underneath and around the house and ultimately made its way into a nearby lake. Remediation...
Mitigation? I Don’t Think So. (there’s a twist)
A recent case out of Ontario’s Superior Court of Justice focuses on the obligation of an insurer under a labour and materials payment bond. What makes the case interesting is that on the face of it, the plaintiff sub contractor ended up in a better position as a result of all of the circumstances...
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