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...
Are they spouses? To live together, or not to live together, that is the question.
kin to the controversy unleashed by Claudius’ usurpation of the Denmark crown, the July 10, 2018 endorsement of Justice Morgan in Royal v. Desjardins, 2018 ONSC 4284, relates to judicial review of Shari Novick’s February 24, 2017 priority private arbitration award in favour of Desjardins....
Hey Neighbour…It’s About that Fence
The Court of Appeal has provided further guidance on the issue of prescriptive easements in the case of Hunsinger v. Carter. The case involved one party having uninterrupted use of a shared driveway over a 40 year period for commercial purposes, facing off against a neighbor who purchased...
Why mediate? Plaintiffs dippin’ back to their bag of tricks
The February 23 and May 28, 2018 decisions of the Superior Court in Thomson v. Portelance and Canfield v. Brockville Ontario Speedway, respectively, 2018 ONSC 1278 and 2018 ONSC 3288, have Justices Firestone and Mew considering the benefit of mediation. In the former, the tort defendant in...
Rental Car Coverage: Were the words dull and hypothetical?
In the June 5, 2018 Divisional Court ruling in Enterprise Rent-A-Car v. Intact, 2018 ONSC 3517, Enterprise appealed the judgment of Justice Morgan of the Superior Court concerning the hierarchy of coverage provisions of s. 277(1.1) of the Insurance Act applying to the use or operation of a...
Production of Transcripts From Prior Actions
In the Superior Court matter of Cormack-Terrelonge v. Fahmy Estate , the plaintiff was involved in a motor vehicle accident. At examinations for discovery, the plaintiff testified that she had been involved in three motor vehicle accidents prior to the subject accident. The plaintiff...
It’s About Permanence (or not)
A recent Superior Court decision allowed an appeal from an arbitrator’s award in a priority dispute dealing with financial dependency, on the basis that the decision was not reasonable. In State Farm v. R, the arbitrator determined that two claimants were not financially dependent on State...
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