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December, 2011 Directors & Officers Liability Insurance Update Geoffrey Adair acted as Counsel for the successful insured in two Major Directors & Officers liability insurance cases in which the judgement totalled $20 Million USD in the following cases. - Onex v. America Home [2011] O.J. 3031 - Coventree v. Lloyds [2011] O.J. 4036
December, 2011 In a special edition of the Globe and Mail Report on Business, Geoff Adair and Jerome Morse were listed as two of Canada's highest ranked litigation lawyers in selected business practice areas.
December 13, 2011 Tim Hortons Class Action Update Jerome Morse and Lori Stoltz are counsel to two Tim Hortons franchisees, Fairview Donut Inc. and Brule Foods Ltd., in a proposed class action against Tim Hortons and The TDL Group Corp. (Tim Hortons). This legal action challenges Tim Hortons franchise-wide conversion in 2002-2003 from a full baking to a par-baking system, as well as Tim Hortons requirement that franchisees sell lunch menu items resulting in unreasonably low margins for franchisees. The Plaintiffs seek damages of approximately $1.95 billion on behalf of all proposed class members for alleged breach of contract, unjust enrichment, breach of the duty of good faith at common law and under the Arthur Wishart Act (Franchisee Disclosure) (Ontario), and like statutes in other jurisdictions, misrepresentation and price maintenance in breach of the Competition Act (Canada). The Plaintiffs' motion for certification of the claim as a class action, and Tim Hortons' motion for summary judgment to dismiss the claim, were heard by Justice G. R. Strathy of the Ontario Superior Court of Justice on August 15-18 and 29-31, 2011, September 1 and 2, 2011 and October 5 and 6, 2011. His Honour's decision is under reserve and will be posted on this website upon receipt. For a more detailed summary of the case, Click Here The Plaintiffs welcome the participation of other Tim Hortons franchisees. Here are some of the options open to you: You may review and/or print the Plaintiffs detailed written legal arguments as submitted to the Court. Click Here For a copy of the Plaintiffs' Factum re Certification dated August 2, 2011 Click Here For a copy of the Plaintiffs' Factum re Summary Judgment dated August 10, 2011 You may review the complete affidavit of the Plaintiffs forensic accountants, Howard N. Rosen and Neal Mizrahi of FTI Consulting. Click Here For a copy of the FTI Expert Report dated May 4, 2011 (without attachments and exhibits) You may review the complete affidavit of the Plaintiffs' foodservice and franchising expert, Douglas G. Fisher of FHG International Inc. Part 1, Click Here For a Copy of Douglas Fisher's complete affidavit sworn July 5, 2010 (without attachments and exhibits) Part 2, Click here For a Copy of Douglas Fisher's complete affidavit sworn July 5, 2010 (without attachments and exhibits) Click here For a Summary of the conclusions set out in the affidavit of the Plaintiffs' food service and franchising expert, Douglas Fisher You may contact either of the proposed representative Plaintiffs: Arch Jollymore: ajollymore4@cogeco.ca, and 905-466-0294 (cell) Anne Jollymore, ajollymore4@cogeco.ca, and 905 484 2774 (cell) You may contact either of the proposed representative Plaintiffs legal counsel: Jerome R. Morse: jmorse@adairmorse.com, and 416-941-5867 Lori Stoltz: lstoltz@adairmorse.com, and 416-941-5868 Recent rulings in the case: On March 24, 2011, Justice G. R. Strathy of the Ontario Superior Court of Justice made a ruling to order documentary production sought by the Plaintiffs. For a copy of Justice Strathy's decision dated March 24, 2011 Click here On January 13, 2011, Justice G. R. Strathy of the Ontario Superior Court of Justice made a ruling to order documentary production from 11 franchisees who swore affidavits relied upon by the Defendants to oppose certification of the class action and dismiss the Plaintiffs claims. For a copy of Justice Strathy's decision dated January 13, 2011, Click here On December 3, 2010, Justice G. R. Strathy of the Ontario Superior Court of Justice made rulings to govern the confidentiality of documents produced by the Defendants and others pre-certification, regarding the scope of documentary production by the Defendants and approving the final form of the Plaintiffs' Amended Amended Statement of Claim to include allegations under the Competition Act (Canada). Justice Strathy also dismissed a motion by the 11 franchisees who have sworn affidavits filed by the Defendants to use pseudonyms in the litigation and redact identifying information from affidavits now filed in the public record and further documents to be produced. For a copy of Justice Strathy's decision of December 3, 2010, Click Here On October 28, 2010, Justice G. R. Strathy of the Ontario Superior Court of Justice granted the Plaintiffs leave to further amend their Amended Statement of Claim to include allegations of price maintenance contrary to relevant provisions of the Competition Act (Canada). For a copy of Justice Strathy's decision dated October 28, 2010, Click Here On October 28, 2010, Justice G. R. Strathy of the Ontario Superior Court of Justice ruled that the Defendants motion to challenge the admissibility of evidence from the Plaintiffs' food service and franchising expert, Douglas Fisher, will not be heard until the evidentiary record is complete, at the hearing of the certification and summary judgment motions from April 6 to 15, 2011. For a copy of Justice Strathy's decision dated October 28, 2010, Click Here On May 17, 2010, Justice G. R. Strathy of the Ontario Superior Court of Justice ordered that the Defendants motion for summary judgment will be heard at the same time as the Plaintiffs' motion for certification. For a copy of Justice Strathy's decision dated May 17, 2010, Click here On February 8, 2010, Justice G. R. Strathy of the Ontario Superior Court of Justice dismissed the Defendants motion for a confidentiality or sealing order restricting public access to certain documents or portions of documents. For a copy of Justice Strathy's decision dated February 8, 2010, Click here On November 25, 2008, Justice J. Lax of the Ontario Superior Court of Justice dismissed a motion by a group entitled the Executive Committee for the Concerned Franchisees Group for leave to intervene in the proposed class action. For a copy of Justice Lax's decision dated November 25, 2008, click here Archibald Jollymore is the principal of Brule Foods Ltd., one of the proposed representative Plaintiffs. For a copy of Mr. Jollymore's first letter to franchisees (undated) Click here For a copy of Mr. Jollymore's second letter to franchisees dated November 27, 2008, Click here
September 2011 Adair Morse's "Best Lawyers" We are very proud of 2 of our partners who have been selected by their peers to be included in the upcoming "Best Lawyers" 2012 directory. Geoffrey Adair - Insurance Law - Legal Malpractice Law - Personal Injury Litigation - Product Liability Law Jerome Morse - Personal Injury Litigation - Product Liability Law Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 320,000 confidential evaluations by the top attorneys in the country. Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor. Our annual, advertisement-free publication has been described by The American Lawyer as the most respected referral list of attorneys in practice. Geoffrey Adair was named Best Lawyers Insurance Lawyer of the Year for 2009 and Best Lawyers Legal Malpractice Lawyer of the Year for 2011. Click here for more details.
September 2011 Adair Morse is pleased to welcome, Asher Honickman and Dylan Crosby as associates. Both Asher and Dylan return to the office after a successful articling year.
May 2011 ING Insurance Company of Canada v. Miracle (Mohawk Imperial Sales and Mohawk Liquidate), 2011 ONCA 321 Michael Burgar acted for the insurer in this successful appeal related to a standard CGL pollution liability exclusion. The underlying claims were based on environmental land contamination caused by the leakage of gasoline from underground storage tanks related to a gas bar. The Court of Appeal overturned a superior court application result that had concluded there was coverage. Justice Sharpe found (for a unanimous panel) that the exclusion unambiguously applied to bar coverage. To read the decision, click here.
May 2011 Pepe v. State Farm Jerome Morse acts for the plaintiffs in this personal injury action arising out of a motor vehicle accident involving a claim against an unidentified driver. The evidence respecting how the accident occurred came from the plaintiff, and the passenger in the plaintiffs car, who was the plaintiffs girlfriend at the time of the accident (but not by the time that the action was commenced). The defendant State Farm brought a Rule 21 motion to determine a question of law: whether or not the evidence provided by the passenger meets the test of other material evidence that corroborates the plaintiffs evidence, as required by the OPCF 44R Family Protection Endorsement. The defendant argued that because the passenger had commenced her own action against State Farm in respect of the accident, her evidence was not independent and therefore not corroborative of the plaintiffs evidence. The defendant was unsuccessful before the motion judge and appealed to the Court of Appeal. As far as we can tell, this is the first time that the particular corroboration provision of the OPCF 44R has been considered by the Court of Appeal. The Court of Appeal rejected all of the defendants submissions and adopted the plaintiffs position that the classes of witnesses whose evidence can not meet the requirements of the OPCF 44R are limited to the specific categories identified in the Endorsement. The case is important not only for the interpretation of the OPCF44R, but also for affirming the nature and importance of the reasonable expectations of insured persons with respect to the coverage they are purchasing.
April 2011 Michael Burgar will speak and present a paper at the Osgoode CLE, Expert Evidence in Personal Injury Cases, on Thursday, April 14, 2011 at the Osgoode Professional Development Centre, Toronto.
March 1, 2011 Michael Burgar presented at the Insight Information, Complex Mega and Advanced Litigation Conference, on Tuesday, March 1, 2011 at the St. Andrews Club and Conference Centre, in Toronto. His topic was Recent Tort Law Trends.
March 2011 On June 1, 2010, the Honourable Justice Reilly rendered judgment for damages in the sum of $3,580,229.69, inclusive of prejudgment interest, following a two-month trial in a matter where the team of Jerome Morse, Sally Powell and Agape Lim represented Gloria Musselman and her family. Mrs. Musselman was rendered permanently quadriplegic on February 10, 2004, when she fell in a stairwell in Cities Bistro, a Toronto restaurant. It was held that the stairwell did not comply with the Ontario Building Code when constructed, and the measurements of the runs and risers were inconsistent throughout the staircase. The trial judge, Justice Reilly, found the stairs to be an accident waiting to happen. He found that the City of Toronto was grossly negligent in its process of inspection when the stairs had been replaced or repaired in 1990 . He found the stairs to be the sole cause of Mrs. Musselmans fall, dismissing defence evidence suggesting Mrs. Musselman had a medical condition that caused it. Justice Reilly adjudged the Citys liability at 30%. Brian Heasman, the owner of Cities Bistro (a tenant in the building) was found by Justice Reilly to be 70% liable for Mrs. Musselmans fall. The action against Fred Dominelli and Ida Dominelli, the owners of the building, was dismissed. Justice Reillys decision, as it pertains to Fred Dominelli and Ida Dominelli, has been appealed to the Court of Appeal. To see a copy of Justice Reillys decision dated June 1, 2010, Click Here
February 4, 2011 Jerome Morse recently spoke at the Ontario Bar Association, presenting "Assessing Damages [in Subrogation] Property Damage Claims: A Primer"
November 2010 Jerome Morse successfully argued on behalf of the plaintiff to secure $1,000,000.00 underinsurance coverage. In Pepe v. State Farm Mutual Automobile Insurance Co, recently reported at 101 O.R. (3d) 547 (SCO) , the plaintiff was injured in a single-vehicle accident. He claimed that the accident was caused by an unidentified motorist. The plaintiffs then girlfriend a passenger in the vehicle was determined to be an independent witness capable of corroborating his evidence concerning the involvement of an unidentified motorist for the purpose of s1.5(C) and 1.5(D)of the OPCF 44R Family Protection Coverage Endorsement. State farm has appealed to the Court of Appeal.
September 2010 Couchiching First Nation v. Attorney General (Canada) Jerome R. Morse, working with local counsel Wesley Derksen, represents the defendant Town of Fort Frances in this land-claim case advanced by various First Nations. The plaintiff First Nations claim ownership of a property that includes the Town of Fort Frances town park, which is a central feature of town and community life. The First Nations have claimed that they currently own the property and are entitled to exercise all the rights of ownership while the litigation is ongoing. However, the property had until April 2010 existed as a public park under the Towns stewardship for 100 years, and current ownership is the very issue in dispute in the litigation. Jerome and Wes successfully obtained an interim order preserving the property until the litigation is resolved. The First Nations, and the federal and provincial crowns (both of which are parties to the litigation) sought leave to appeal to the Divisional Court, arguing that injunctive relief, including a preservation order, is not available against the Crown. Justice D.C. Shaw dismissed the leave application, providing extensive reasons in which he addressed at length the jurisprudence surrounding the availability of injunctive relief against the Crown. Justice Shaws decision must be seen as one of the leading cases on the law of the availability of injunctions and other preservation-type relief against the Crown. Most importantly, Justice Shaw recognizes that there is an exception to the general rule that injunctive relief is not available against the Crown, which arises where the relief is necessary to preserve the administration of justice and the courts ability effectively to adjudicate the lis. Jerome and John Adair of our firm continue to assist Wes Derksen in representing the defendant Town as the litigation moves forward toward a trial.
August 2010 Adair Morse "Best Lawyers in Canada" We are very pleased to announce that 2 of our lawyers have been selected again by their peers for inclusion in the upcoming "Best Lawyers in Canada" 2011 directory. Geoffrey Adair - Insurance Law - Legal Malpractice Law - Personal Injury Litigation - Product Liability Law Jerome Morse - Personal Injury Litigation - Product Liability Law Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 320,000 confidential evaluations by the top attorneys in the country. Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor. Our annual, advertisement-free publication has been described by The American Lawyer as the most respected referral list of attorneys in practice. Click here for more details.
August 2010 Van Breda v. CRL Jerome R. Morse, Lori Stoltz and John Adair represent the plaintiffs, the Charron family, in this fatality action against various Ontario and Cuban defendants. The action arises out of the unfortunate death of Dr. Claude Charron while he was on vacation with his wife Anna in Cuba. The defendant CRL brought a motion to have the Ontario action stayed on the basis that Ontario lacks jurisdiction over the dispute. The motion was opposed by the plaintiffs and the Ontario defendants, all of whom took the position that Ontario has jurisdiction to hear the claims advanced by the Charron family against the Cuban resort operator, which relies heavily on Ontario customers and promotes its resorts extensively here in Ontario. The motion was unsuccessful, with the Superior Court of Justice concluding that Ontario does indeed have jurisdiction over the case. The defendants appealed. The Ontario Court of Appeal took the unusual step of calling for a second hearing before a five-judge panel. The Court then dismissed the appeal and, in doing so, reformulated the governing test for the assumption of jurisdiction that the Court of Appeal had previously set down in Muscutt v. Courcelles. The Charron respondents submissions were accepted by the Court on several issues, and the case is now the leading authority in Ontario on the issue of jurisdiction. The case is now headed to the Supreme Court of Canada, to be heard on March 21, 2011. Adair Morse will continue to advocate for the Charron family in this important jurisdictional case.
June 11, 2010 Top court analyzes meaning of accident Michael Burgar wrote an article for The Lawyers Weekly, (Insurance Focus Section, June 11, 2010 edition), on the SCC's interpretation of the insurance law meaning of "accident" in Co-operators Life Insurance Co. v. Gibbens, [2009] S.C.J. No. 59. To read the article, Click here
February 5, 2010 Michael Burgar delivered a paper and spoke on a panel of legal speakers, at the Ontario Psychological Association annual meeting and conference, on the topic of the new amendments to the Rules of Civil Procedure related to expert reports and the testimony of experts at trial.
January 2010 Adair Morse Lawyers Named in 2010 Legal Lexpert Directory Geoffrey Adair, Q.C. and Jerome Morse have been listed in the 2010 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada.
August 2009 Adair Morse's "Best Lawyers in Canada" We are very proud of 2 of our partners who have been selected by their peers to be included in the upcoming "Best Lawyers in Canada" 2010 directory. Geoffrey Adair - Insurance Law - Legal Malpractice Law - Personal Injury Litigation - Product Liability Law Jerome Morse - Personal Injury Litigation - Product Liability Law The Best Lawyers in Canada is related to "The Best Lawyers in America", a publication founded in the United States more than 25 years ago. As with "The Best Lawyers in America", lawyers listed in the Canadian edition were chosen for inclusion based solely on the votes of their peers. Listings could not be bought, and no purchase was required to be included making Best Lawyers a reliable, unbiased source for lawyer ratings. Click here for more details.
BioHerbaLai Inc. v. SwingThink Inc., 2009 Can LII 18217 (ON. S.C.) Michael Burgar won a trial decision and costs order for SwingThink. BioHerbaLai sued based on (what it said) was the wrongful exercise of a contract termination provision. The court agreed with SwingThink that the claim had no merit. SwingThink had offered to settle the case two years before trial for $1. The court awarded substantial indemnity costs in favour of SwingThink because of the plaintiffs failure to accept the offer.
Announcement - June 2009 Adair Morse LLP is pleased to announce that our partner, The Honourable Thomas John McEwen, was appointed Judge of the Superior Court of Justice in and for the Province of Ontario on June 19, 2009.
Upcoming Event February 2009 Michael Burgar will present a paper and join a panel discussion at the Ontario Bar Association CLE program, When the Butterfly Flaps its Wings: Cross-Border Litigation in Your Practice. Michael will focus on insurance coverage issues and how they impact the conduct of cross-border litigation. The CLE event will take place on February 2, 2009, 9:00 a.m. to 4:30 p.m., at the Metro Toronto Convention Centre, South Building, 222 Bremner Boulevard. To register, click here.
Godoy v. 475920 Ontario Ltd. Michael Burgar and Robert Ben appeared in the Court of Appeal for successful defendants. The court upheld a motion judges ruling that Family Law Act claims for wrongful death were out of time and properly dismissed. The claims were governed by the two-year limitation period contained in section 38(1) of the Trustee Act and could not be extended.
TDL Franchisee Update November 27, 2008 To read a copy of Arch Jollymore’s second letter to franchisees Click Here. To read a copy of Justice Lax’s reasons dated November 25, 2008 Click Here.
Upcoming Event - January 2009 Tricks of the Trade 2009 Practical Strategies for Winning Medical Battles Friday January 16, 2009 Advocacy Demonstration featuring Geoffrey D.E. Adair, Q.C. and Jerome Morse
October 30-31, 2008 Jerome Morse recently spoke in Toronto, at the Ontario Trial Lawyers Association, The Road to Trial, Successful Trial Strategies. "Six Months and Counting - A Checklist You Must Have".
October 29, 2008 TDL Franchisee Update To read a copy of Archie Jollymores letter to franchisees Click Here. To read a copy of the Amended Statement of Claim Click Here.
September 2008 Thomas McEwen recently spoke in Toronto at the Osgoode Hall Law School Professional Development Lecture Series on the issue of "Motor Vehicle Litigation: Recent Trends".
June 2008 Jerome Morse and Agape Lim are the Adair Morse LLP lawyers who represent the plaintiffs in an intended class action initiated on June 12, 2008. The proposed representative plaintiffs, Fairview Donut Inc. and Brule Foods Ltd., are franchisees of Tim Hortons in Ontario. They seek compensation with respect to business carried on under license agreements with The TDL Group Corp.s predecessors because they were required to convert their Tim Hortons stores to the Always Fresh frozen product system at considerable unrecovered capital costs and have also sustained lost profits due to the increased costs of production of donuts utilizing the Always Fresh frozen product system and because they were required to sell lunch menu items resulting in unreasonably low margins. For further information, contact Lori Stoltz at lstoltz@adairmorse.com. To read a copy of the Statement of Claim, please click here.
June 2008 Jerome Morse and Lori Stoltz are the Adair Morse LLP team that is co-counsel with Fancy Barristers P.C. who represent the plaintiffs in an intended class action initiated on June 9, 2008. In this action, Peter Dennis and his wife, Zubin Noble, have put themselves forward as representative plaintiffs to seek compensation for all compulsive gamblers in Ontario and the United States who signed self-exclusion agreements with the OLGC from December 1, 1999 to February 10, 2005 to be denied access to gambling venues in Ontario but were nonetheless allowed access to gamble at these venues where they sustained significant losses now sought to be recovered. For further information, see the website that pertains to the proposed class action: www.problemgamblerslawyer.com.
May 2008 McNeil v. Brewers Retail Inc. et al., [2008] O.J. No. 1990 (C.A) Jerome Morse and Erica Toews of Adair Morse LLP and Kirk Stevens of Lerners LLP recently successfully represented Doug and Terry McNeil and the Court of Appeal, where the court upheld a jury verdict against Brewers Retail Inc., requiring payment for damages and costs of approximately $2,350,000.00. Brewers Retail Inc. maliciously prosecuted Douglas McNeil for a workplace theft they knew he did not commit when it supplied the police with apparently incriminating surveillance videotapes and summaries of such videotapes while failing to reveal the evidence it knew exonerated him. This judgment represents the largest reported damages award for a claim for malicious prosecution. Brewers Retail Inc. appealed both liability and the quantum of damages to the Ontario Court of Appeal, and also mounted arguments based upon lack of jurisdiction and res judicata. The appeal was dismissed on all grounds in reasons released May 22, 2008, reported at [2008] O.J. No. 1990 (C.A.). The Court of Appeal found there was no reason to interfere with the jury's damages award, noting in particular that the awards for aggravated damages and punitive damages "reflect[ed] the jury's sense of outrage at BRI's conduct and the enormity of the harm it concluded McNeil had suffered." The court stated at paragraph 65: By its verdict, it is apparent that the jury viewed BRI as a Calculating and insensitive company that was prepared, for its own purposes,to see an innocent man convicted of a crime he did not commit. As counsel for the respondents points out, the duplicity and deception practiced by BRI was not limited to a one-time act of folly that occasioned limited harm; rather, BRI carried on the charade for the better part of thirteen years. Notably, as late as 1995, BRI continued its duplicity at the arbitration hearing and in the process, robbed McNeil of his reputation, his employment, his dignity and his self-respect. Shocked and devastated by his arrest, proclaimed publicly as a common thief, terminated from his employment, forced to go on unemployment insurance, forced to sell the family home and move to an apartment, forced to ensure anguish, stress and uncertainty of a thirteen-year ordeal - these are but some of the consequences McNeil was exposed to by reason of BRI's callous and malicious conduct. Doug McNeil maintained from the moment he was falsely charged and throughout his 13-year battle that he was innocent and falsely accused, unfairly tried and convicted of a theft he did not commit and vowed he would obtain justice against Brewers Retail. His courageous battle to prove his accuser knew he was innocent of these malicious charges and the bring Brwers Retail to justice has concluded.
April 2008 Geoff Adair was recently presented with the Award of Excellence in Insurance Litigation by the Insurance Law Section of the Ontario Bar Association at their Annual dinner on April 23, 2008.
Upcoming Events April 19, 2008 Jerome Morse will be presenting "Modern Litigation: for the Ontario Bar Association in Ajax, ON.
April 3, 2008 Geoffrey D. E. Adair, Q.C. delivered a lecture on "Legal Principles Governing Appellate Intervention" at the Annual Law Society of Upper Canada's special lecture series. A published copy of the speech will be available from the LSUC at a later date.
April 2008 Jerome Morse recently spoke at the Ontario Trial Lawyers Association CLE in Marco Island. Over the period April 1 - 3rd, Jerome presented "Final Reports: What An Expert Needs to Know"; "Shortening the Process II"; and "Damages Assessment: The Times They Are A Changing".
February 21, 2008 Geoffrey D.E. Adair, Q.C. and Thomas J. McEwen spoke at the "Winning Personal Injury Cases" conference sponsored by The Canadian Institute.
February 06, 2008 Michael Burgar presented a paper on "Insurance Policies and Assessing Coverage - The Latest on "Use and Operation of an Automobile" on February 6, 2008 as part of the Osgoode Law School Professional Development CLE, Managing and Litigating Motor Vehicle Accident Claims.
January 2008 Adair Morse Lawyers Named in 2008 Legal Lexpert Directory Geoffrey Adair, Q.C., Jerome Morse, and Thomas McEwen have been recognized in the 2008 Legal Lexpert Directory, which identifies leading lawyers across Canada as selected by their peers.
December 2007 As profiled in the December 2007 issue of Privacy Journal, a leading publication on the right to privacy, Jerome R. Morse and Agape Lim successfully invoked copyright infringement to force websites around the world to remove photographs of Toronto Maple Leafs hockey player, Jiri Tlusty.
December 2007 Kramarz v. KMH Cardiology & Diagnostic Centres Godoy v. 475920 Ontario Ltd. Robert Ben and Michael Burgar have both recently won dismissal orders for their clients because of Trustee Act limitation period issues. In Kramarz v. KMH Cardiology, [2007] O.J. No. 3258 (S.C.), the claim was issued more than two years after the death of the principal plaintiff whose family alleged she died because of medical negligence related to a heart stress test. Godoy v. 475920 Ontario Ltd., [2007] O.J. No. 3522 (S.C.) was a claim for negligence against an apartment building and property manager where the family of a murdered tenant sued for damages because of an alleged failure to warn and maintain proper security in the building. In both cases, the court found that the limitation period contained in section 38(3) of the Trustee Act expired two years after the date of death. It made no difference whether the plaintiffs knew of their right to sue. The special rules that sometimes lengthen limitation periods because of discoverability, or because the plaintiff has not reached the age of majority, do not apply to the Trustee Act limitation period. KMH included a review of the transition provisions contained in the Limitations Act 2002 and concluded the Trustee Act limitation period is not affected by the new limitations legislation. These court decisions reinforce how important it is to consider the Trustee Act limitation period in any action where any party to the action (any plaintiff or defendant)is deceased. The two-year limitation runs from the date of the death and will govern the claim regardless of whether the death has anything to do with the claim, or is even known by the plaintiffs who intend to sue. The Godoy decision is under appeal. KMH will not be appealed.
December, 2007 Tom McEwen was a guest speaker at the Ontario Trial Lawyers Association Fall Conference. Tom's presentation was on "The Use and Abuse of Objections During Jury Closing Arguments".
December 2007 Dmytrenko v. Vandenbor Michael Burgar won a summary judgment motion on behalf of ING Insurance Company of Canada. A third party claim for insurance coverage was in dispute. The issue was whether the "business use" exclusion in a homeowners policy applied to bar coverage of a litigation claim. The claims against the insured arose from her work in the home as a child care services worker. It was alleged that the child care worker failed to properly supervise a child who was injured as a result. Justice MacKenzie agreed with Mr. Burgar's submissions on behalf of ING that the "no business use" exclusion applied. There was no coverage. The claims against ING were dismissed. This decision reinforces that homeowners should make sure their insurance coverage is in order before undertaking any commercial or business activity in the home, which may give rise to new claims risks not covered under a standard homeowners policy.
October 2007 Citadel General Assurance Co. v. Vytlingam On October 19, 2007, the Supreme Court of Canada allowed an appeal argued by Geoffrey D.E. Adair on behalf of the Citadel General Assurance Co. Michael Vytlingam, an Ontario resident, had been driving along an interstate highway in North Carolina when his vehicle was struck by a large boulder which had been dropped from an overpass. The persons responsible for dropping the boulder were inadequately insured, and the Vytlingams made a claim pursuant to the Family Protection Endorsement contained in their own policy of insurance with the Citadel. At issue was whether the injuries suffered by Michael Vytlingam were caused by an inadequately insured motorist, and whether the injuries arose directly or indirectly from the use or operation of an automobile. In a unanimous decision, the Court stated that insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer and that for coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. The Court also stated that to suggest that any time a car is used to transport people to the scene of a tort or a crime is sufficient to engage inadequately insured motorist coverage stretches the intended coverage until it snaps. The Court held that the rock throwing was an independent act which broke the chain of causation and that, accordingly, the Citadel was not liable to the Vytlingams.
September 2007 David v. Parkway Hotels On September 26, 2007, Michael Burgar won a defence jury verdict. The plaintiff was struck on the back of his head by a piece of wet ceiling tile while he sat at a table at an off-track betting establishment. Responsibility for the tile was admitted. The trial proceeded as an assessment of damages. The plaintiff's case included testimony from Dr. Donna Ouchterlony. The defence relied on Dr. Lawrence Freedman. It was alleged that the plaintiff suffered a mild traumatic brain injury and, as a result, lost his trucking business and was effectively unemployable. Counsel for the plaintiff argued the jury should award damages in the amount of $850,000 plus interest and costs. The jury determined that the incident did not cause the plaintiff to sustain any injury on a reasonable balance of probabilities. The claim was dismissed with costs if demanded.
August 2007 Adair Morse's "Best Lawyers in Canada" We are very proud of 3 of our partners who have been selected by their peers to be included in the upcoming "Best Lawyers in Canada" 2008 directory. Geoffrey Adair - Insurance Law - Legal Malpractice Law - Personal Injury Litigation - Product Liability Jerome Morse - Personal Injury Litigation Tom McEwen - Personal Injury Litigation The Best Lawyers in Canada is related to "The Best Lawyers in America", a publication founded in the United States more than 25 years ago. As with "The Best Lawyers in America", lawyers listed in the Canadian edition were chosen for inclusion based solely on the votes of their peers. Listings could not be bought, and no purchase was required to be included making Best Lawyers a reliable, unbiased source for lawyer ratings.
June 2007 The Canadian Institute's Litigating Insurance Coverage Disputes Conference Michael Burgar is on a panel entitled, "Successfully Avoiding, Managing and Resolving Conflicts of Interest in Insurance Coverage Disputes", at the Metro Toronto Convention Centre, June 19, 2:15 to 3:15.
May 2007 Friedrich v. Northumberland Hospital et al. Jerome Morse was senior counsel for the plaintiffs in a medical malpractice action in Friedrich v Northumberland Hospital et al. On April 16, 2007, Justice Shaughnessy granted judgment for the plaintiffs that pays the minor Plaintiff, Rebecca Friedrich, tax free periodic payments totalling $211,380 annually indexed at 2% per year for life plus lump sum damages of $1,887,000. The total lump sum damages and costs payable to all plaintiffs, in addition to the tax free periodic payments to Rebecca, was $ 4,850,000.
April 2007 Adair Morse Lawyers named to Best Lawyers list for Personal Injury. Geoffrey Adair and Jerome Morse have been recognized amongst the national leaders in the profession in the area of Personal Injury by the National Post -Best Lawyers in Canada. The National Post Best Lawyers in Canada is a bi-weekly publication highlighting the countrys top-rated lawyers in specific practice areas. The feature, established in October 2006, is a partnership between the National Posts Legal Post and the US publication Best Lawyers.
April 2007 Templeman v. McIntyre et al. Thomas McEwen successfully represented Tyler Templeman and his family with respect to a catastrophic brain injury sustained by Mr. Templeman in a motor vehicle accident. A multi-million dollar Judgment was obtained in March, 2007 in Orangeville, Ontario on behalf of Mr. Templeman and his family.
February 2007 Daly v. ING Halifax Insurance Co. Thomas McEwen successfully represented the ING Insurance Company of Canada in the Ontario Court of Appeal with respect to a significant statutory accident benefits issue. The Ontario Court of Appeal allowed the appeal brought by Mr. McEwen on behalf of ING and held that the hourly rates set out in the Statutory Accident Benefits Schedule and the Form 1 could not be disputed by an insured person. This decision was of significant importance to the insurance industry since, if the plaintiffs position was accepted, commercial hourly rates could have been used in pursuing attendant care benefits which would have greatly increased insurers exposure to such claims.


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