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INSIDE THIS ISSUE: Featured Cases: 03 Auto Insurance; Coverage; “Uninsured Automobile”; “The Insured”; Dependants - With 2 Counsel Comments 10 Medical malpractice; Standard of Care; Causation; Bacterial Infection - With 1 Counsel Comment 14 Contract; Insurance; Coverage; Limitation Period; “Business Agreement” - With 1 Counsel Comment 18 Real Property; Commercial Lease; Interpretation; Commencement Date - With 1 Counsel Comment 22 Negligence; Adequate Reasons; Expert Evidence; Causation; Standard of Care; Fire

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Jubenville v. Jubenville, 2013 ONCA 302 Areas of Law: Auto Insurance; Coverage; “Uninsured Automobile”; “The Insured”; Dependants ~Use of “the insured” in definition of “uninsured automobile” in Insurance Act refers only to person making claim~



t the age of five, the respondent, Ashley, was injured in a motor vehicle accident while riding as a passenger in her father Kevin’s vehicle. At the time of the accident, Ashley’s mother, Kelly, was Kevin’s spouse and had auto insurance covering two of her own vehicles. However, she did not insure Kevin’s vehicle and Kevin did not have his own insurance. An action was initiated by Ashley and Kelly against Kevin and Kelly’s insurance company, Economical Mutual Insurance Company (“Economical”), for denial of coverage for Ashley on the basis that Kevin’s vehicle was not an “uninsured vehicle” under the Insurance Act, R.S.O. 1990, c. I.8, as amended to 1993 (the “Act”). Economical brought a Rule 22 motion to determine whether, at the time of the accident, Kevin’s vehicle was an “uninsured automobile” as defined in the Act and Kelly’s insurance policy, which contained nearly identical wording as the Act with respect to uninsured automobile coverage. The policy stated that “a person insured under the Policy” was entitled to uninsured automobile coverage and defined “uninsured automobile” to exclude an “automobile owned by or registered in the name of the insured or his or her spouse”. The motion had depended on whether “the insured” referred to in the June 2013



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Jubenville v. Jubenville, (cont.) exclusionary part of the definition of “uninsured automobile” in the policy referred only to the person making the claim, Ashley, or to all those insured under the policy, including her mother, Kelly. If Kelly was included under “the insured” in that section, then the vehicle would not be considered an “uninsured automobile” under the policy as Kelly was Kevin’s spouse at the time of the accident, and thus Ashley would not be entitled to coverage. The motion judge took the view that “the insured” only referred to the person making the claim and therefore did not include Kelly. As a result, Kevin’s vehicle was considered an “uninsured automobile” and Ashley was covered under the policy. APPELLATE DECISION


he appeal was dismissed. Applying the general principles of contractual interpretation, the Court of Appeal agreed with the motion judge’s conclusion that “the insured”, as it is was used in the definition of “uninsured automobile”, only referred to the person making the claim and therefore did not include Kelly. Firstly, the purpose of the Act is to “internalize the costs of driving so that they do not fall on the public purse” and therefore should be interpreted in such a way that dependent relatives of policy holders can access insurance coverage. Secondly, the basic rule when interpreting insurance contracts is to resolve any uncertainties in favour of the insured. Lastly, principles of public policy and fairness play a role. Denying coverage to a dependent that has no control over coverage decisions, such as Ashley, would lead to an unjust result. Allowing coverage to dependents in this situation ensures that those responsible for insuring their vehicles, and the vehicles of their spouses, insure each vehicle they own.


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COUNSEL COMMENTS, Cont. Jubenville v. Jubenville, 2013 ONCA 302 Counsel Comments provided by Lauren Bloom, Counsel for the Appellant, Economical Mutual Insurance Company


could not also be “the he issue before the insured”. If Kelly was “the Court of Appeal in insured” then the vehicle Jubenville v. Jubenville was would not be an uninsured a narrow one. The crux of automobile as per the the issue was the definition exclusion. of “the insured” within the definition of “Uninsured The phrase “the insured” in Automobile” in Section Lauren Bloom Section 265 of the Insurance 265(1) of the Insurance Act had been interpreted Act in effect on May 23, in a different context as previously 1993 and the standard O.P.F. 1. The held by the Court of Appeal in definition of “uninsured automobile”... Taggert v. Simmons and McCardle v. “does not include an automobile Bulger. In those cases, “the insured” owned or registered in the name of was inclusive and held to mean every the insured or his or her spouse.” person entitled to Statutory Accident (hereinafter “the exclusion”) The Benefits under the contract. exclusion that exists today is nearly identical to the 1993 provision. The Economical Mutual Insurance Company (“Economical”) argued The lower Court decision found that that to find that the policy holder was “the insured” was interpreted to mean not included as “the insured” would “the claimant” and the vehicle did lead to an absurd result not intended not fall under the exclusion. Ashley by the Legislature. Further, since Jubenville (“Ashley”) therefore had previous interpretations were broad a viable action against her mother’s and inclusive, Kelly must also be policy for uninsured automobile included as “the insured”. Economical coverage. For this to be the result further argued that the exclusion however, the policyholder and named was meant to prevent spouses from insured, Kelly Jubenville (“Kelly”), June 2013


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COUNSEL COMMENTS, Cont. insuring one vehicle in a multiple vehicle household. Interpreting “the insured” to include the named insured would result in a commercially realistic purpose which would occasionally have the effect of precluding coverage to an innocent party (who would then have to claim through the Motor Vehicle Accident Claims Fund). Finally, Economical argued that the exclusion was drafted with respect to the ownership of the vehicle, and not the identity of the claimant. Despite these arguments, the Court of Appeal concluded that “the insured” referred to “the person making the claim” and did not include the named insured. The vehicle therefore did not fall under the exclusion (as Ashley did not own the vehicle and did not have a spouse) and was an uninsured automobile. In part, the Court of Appeal reasoned


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COUNSEL COMMENTS, Cont. that the Motion Judge’s decision was made in the interest of fairness and did not contravene the public policy purpose of the exclusion. Spouses would still be penalized for failing to insure the vehicles as they themselves would not be able to claim under the uninsured automobile section of the policy. The Court of Appeal was interested in sending a message that those who have no control over coverage decisions should be entitled to claim except where explicitly excluded from coverage. The decision of the Court of Appeal is only applicable in the limited circumstance that arose in the fact scenario at bar. While this circumstance does not arise frequently, it was important for Economical to seek clarification of the exclusion. There was only one prior decision with a similar fact scenario, however it only related to a fleet policy and did not have the same public policy considerations involved in familial relationships and multiple vehicles owned by spouses. Economical’s corporate objective is to pay claims where warranted and seek clarification of ambiguities (whether factual or legal) with the goal of keeping rising insuring premiums at bay. Economical opted to push this matter forward to the Court of Appeal for clarification where there was legal ambiguity. Counsel worked collaboratively to the extent of reaching the Court of Appeal in the most cost-effective and expeditious manner with an Agreed Statement of Fact and pre-arranged no-costs agreements. It was advocacy for the sake of achieving an interpretation where there previously was none. Economical will continue in its efforts to act responsibly and reasonably to seek clarity in the law when it is required. As this issue has now been clarified, it is open for the Legislature to reconsider the exclusion within the definition of uninsured automobile or for the insurance industry to be aware of this additional potential coverage which may not have been contemplated in the past. The case will not be appealed to the Supreme Court of Canada.”

June 2013


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COUNSEL COMMENTS, Cont. Jubenville v. Jubenville, 2013 ONCA 302 Counsel Comments provided by Laura M. Pearce, Counsel for the Respondents, Ashley Jubenville and Kelly Jubenville


ubenville v. Jubenville et al. holds the distinction as the first Ontario Court of Appeal decision confirming the interpretation of “the insured” in the definition of “uninsured automobile” in the O.P.F. 1 and at s.265 of the Insurance Act.

Laura M. Pearce

not simultaneously “the insured”. In the context of the exclusion, “the insured” is the person who is bringing the claim. The Respondents’ arguments were informed by the Ontario Superior Court of Justice decision of Wing v. 1198281 Ontario Ltd.

When the claimant Ashley is “the insured”, the exclusion in the definition of “uninsured automobile” is not triggered – the vehicle was not owned by her or registered in her name, and she was not Kevin Jubenville’s spouse.

The Court acknowledged that “the insured” encompasses persons other than the named insured, as per the seminal Ontario Court of Appeal decisions of Taggart v. Simmons and McArdle v. Bugler. In those cases, the Court held that the definition of “insured” found at s.224 of the Act applies to s.265 of the Act.

Jubenville is a decision that turned on the careful consideration of the language used by drafters of the applicable standard automobile policy and legislation in effect in May of 1993.

However, the Respondents’ critical argument on appeal was that while any person who is an “insured” pursuant to s.224 can be “the insured” in the definition of “uninsured automobile”, members of the complete class of persons included at s.224 are

The Respondents argued that “the” is the operative word. While “an” or the plural form “the insureds” could


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COUNSEL COMMENTS, Cont. refer to multiple persons at the same time (and in this case could thus cause Kelly to trigger the exclusion as the named insured), the wording at s.265 suggests a singular insured. It was open to the legislature to draft the provision otherwise if it intended to refer to multiple persons insured under a policy simultaneously. Finally, Jubenville is significant for its affirmation of principles of insurance contract interpretation and the support of public policy. Rouleau J.A., writing for the Court, agreed with the motion judge who noted that the purpose of the Act is to internalize the costs of driving so that they do not fall on the public purse. In line with this principle is the interpretation of “uninsured automobile” that does not exclude dependent relatives of policy holders from accessing insurance coverage. Rouleau J.A. also acknowledged the principle of insurance contract and legislation interpretation that any ambiguities in provisions dealing with the extent of coverage should be resolved in favour of the insured. Lastly, Rouleau J.A. noted that the motion judge’s decision is supported by the interests of fairness and public policy.”

June 2013


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Wilson v. Beck, 2013 ONCA 316 Areas of Law: Medical malpractice; Standard of Care; Causation; Bacterial Infection ~Despite how or why historical medical information is obtained, it cannot be ignored by medical professionals~




n December 22, 2003, Ken Wilson visited his family doctor, Dr. Beck, for bacterial conjunctivitis (pink eye) and was prescribed topical antibiotics. On December 28, Mr. Wilson began feeling sick and by the following day he was experiencing fever, chills, headache, dizziness, diarrhea, a lack of appetite, fainting spells, and his stomach burned when he ate or drank. Mr. Wilson’s wife, a registered nurse, gave Mr. Wilson Tylenol every four hours without improvement. That evening Mr. Wilson re-visited his family doctor and, after ruling out a bacterial infection, his doctor diagnosed him with the stomach flu (viral) and advised him to continue taking Tylenol and stay hydrated. The next day Mr. Wilson felt some improvement. However, in the early hours of December 31, Mr. Wilson was startled awake by the family cat and experienced a sudden sharp shoulder pain. He went to the emergency department of St. Joseph’s Hospital in London for his shoulder pain where Mrs. Wilson filled out a SARS form, checking “yes” that he was “feeling feverish, had shakes or chills in the last 24 hours” and had a “temperature above 38°C”. Mrs. Wilson also advised the triage nurse of his previous symptoms and treatment

but the nurse did not take his vitals and never recorded anything on his chart. Mr. Wilson saw Dr. Habdank, a first year internal medicine resident, who diagnosed him with a soft tissue injury, prescribed pain medication and sent him home with instructions to return if his symptoms worsened. Dr. Habdank’s diagnosis and instruction to Mr. Wilson were approved by Dr. Cram, the supervising physician, who did not see Mr. Wilson that day. In the early hours of the following night, Mr. Wilson was unable to catch his breath and the paramedics were called. They assured Mrs. Wilson that his shortness of breath was due to his fever and advised against visiting the hospital due to the influx of New Years Eve partiers. One of the paramedics had left her glasses in the ambulance so they did not check his vitals. During the following two days, Mr. Wilson remained weak and then, on January 5th, he became disoriented and unable to swallow his mucous. 911 was called and he was taken to St. Joseph’s Hospital and transferred to the ICU that night. On January 6th an echocardiogram revealed that Mr. Wilson had infective endocarditis (“IE”). On January 7th his infection was out of control and he was transferred to the London Health


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Wilson v. Beck, (cont.) Sciences Centre. On January 8th he had minimal brain functionality and on January 9th he passed away. After litigation commenced, the plaintiffs settled with the hospital and paramedics. The action proceeded to trial against Mr. Wilson’s

family doctor, Dr. Habdank and Dr. Cram where the trial judge found Mr. Wilson’s family doctor and Dr. Habdank liable in negligence and Dr. Cram vicariously liable for Dr. Habdank’s negligence. The physicians appealed.



n their statement of claim, the Respondents had not pled vicarious liability against Dr. Cram nor had it been argued at trial. It was a decision reached solely by the trial judge alone and, having never been pled or at issue, there was no basis for that conclusion and Dr. Cram’s appeal was granted. However, the trial judge’s findings of negligence against Dr. Habdank and Mr. Wilson’s family doctor were upheld. Dr. Habdank had been presented with a SARS form completed by Mrs. Wilson that contained information about Mr. Wilson’s symptoms and history of a febrile illness. Regardless of the purpose of the SARS form (i.e. to protect medical personnel), the experts called during trial agreed that “one cannot ignore historical information no matter how it is obtained and for what purpose”. Dr. Habdank and Dr. Cram also agreed that such information would have changed their assessment of Mr. Wilson. The trial judge reasonably concluded that, but for the negligence of the defendants, Mr. Wilson would have been diagnosed with IE at an earlier time. This was based on her findings that Mr. Wilson likely had IE on December 27th and a heart murmur on December 31st, which she had inferred from multiple sources of evidence, including expert opinions and a leading text in the field.

June 2013


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COUNSEL COMMENTS, Cont. Wilson v. Beck, 2013 ONCA 316 Counsel Comments provided by Counsel for the Respondents, Paul Bates, David Williams, and Mana Khami

Paul Bates

David Williams


Mana Khami

The Court of Appeal in Wilson disagreed with the Appellants’ position and held that there was evidence to support the trial judge’s findings. More importantly, in coming to that conclusion, the Court of Appeal noted that although there was other evidence with contradictory findings and although the trial judge was critical of the testimony of one of the Respondents’ expert witnesses, that did not detract from the fact that relevant evidence was introduced and put before an expert, who agreed with it. As such, the Court of Appeal held that the trial judge was entitled to accept and apply those conclusions, which she did.

s the Court of Appeal points out in Wilson v. Beck, 2013 ONCA 316, a review of the case law regarding the law of causation in medical malpractice cases establishes that this area is a complex and difficult area of law. The Appellants in Wilson argued that the trial judge erred in several respects in her causation analysis. More specifically, the Appellants argued that there was no evidence at trial in support of the trial judge’s finding that Mr. Wilson had Infective Endocarditis by a certain date, that he had heart murmur by a certain date and that further there was no evidence in support of the trial judge’s mathematical analysis.


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COUNSEL COMMENTS, Cont. The Court of Appeal’s decision in Wilson is significant because of the respect accorded by the Court of Appeal to the “robust and pragmatic” approach taken by the trial judge on the causation evidence, in furtherance of the Supreme Court of Canada’s recent decision in Ediger v. Johnston, 2013 SCC 18 and the Ontario Court of Appeal’s recent decision in Goodwin v. Olupona, 2013 ONCA 250. The Supreme Court of Canada in Ediger held that there was no palpable and overriding error in the trial judge’s conclusion to accept the only reasonable inference from all the evidence regarding causation, despite the fact that the trial judge noted that she could not be certain of the precise mechanism leading to “cord compression”. The Supreme Court of Canada further held that it was open to the trial judge to accept the testimonies of the witnesses that she accepted and it was also open to her to conclude that the evidence supported a finding of causation. The Court of Appeal in Goodwin noted that while there was no direct evidence of causation at the trial, there was “evidence from which the jury could properly infer a causal connection”. The Court of Appeal in Goodwin also referred to the Supreme Court of Canada’s decision in Clements v. Clements, 2012 SCC 32, noting that “causation evidence should be approached in a robust and pragmatic fashion, having regard to the nature of the factual issues underlying causation and the kind of evidence the parties are able to adduce”. The Court of Appeal ultimately held that there was evidence capable of supporting the jury’s findings of both negligence and causation. The Wilson case may be encouraging to plaintiffs’ counsel who find medical malpractice cases very challenging, especially in light of the complex nature of the law of causation in those types of cases. Both the Supreme Court of Canada and the Ontario Court of Appeal have recently adopted the “robust and pragmatic” approach with regards to causation evidence, providing more discretion to trial judges and more optimism to plaintiffs’ counsel.”

June 2013


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Boyce v. The Co-Operators General Insurance Company, 2013 ONCA 298 Areas of Law: Contract; Insurance; Coverage; Limitation Period; “Business Agreement” ~One-year limitation period in insurance policy covering business risks overrode statutory two-year limitation period~




he respondents owned and operated “Portside Boutique”, a business that specialized in women’s fashion. The business had been insured for a number of years by the appellant (“Co-Operators”) when, on the morning of October 30, 2010, one of the respondents arrived at the boutique to discover a pungent smell coming from her store. As a result of the strong foul odour, the respondents had to close the store for a period, incur substantial clean-up costs and lost a considerable amount of inventory. The respondents immediately advised CoOperators of the damage; however, Co-Operators denied coverage on the basis that the damage was caused by a skunk, which was not covered under the policy. The respondents disagreed and claimed that the foul odour had been caused by vandalism, a peril covered under the policy. Two months after the incident, the respondents filed a proof of loss claim and then in February 2012, a year and four months after the damage occurred, they commenced this action. The Co-Operators moved for summary judgment, claiming that the respondents’ action was time-barred

by the one-year time limitation period contained in s. 148 of the Insurance Act, R.S.O. 1990, c. I8 (the “Insurance Act”) as well as the contractual provisions in the policy that incorporated the Insurance Act’s limitation period. The motion judge held that policy provision containing the one-year limitation period under the heading “Statutory


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Boyce v. The Co-Operators General Insurance Company, (cont.) Conditions” was misleading because it suggested that the limitation period was mandated by legislation rather than by contract. Further, he held that the provision was not sufficient to override the statutory two-year limitation period contained in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24 (the “Limitations Act”) because the policy was not a “business agreement”. Therefore the policy failed to comply with the exception contained in s. 22(5) of the Limitations Act, which provides parties to business agreements the opportunity to contract out of the statutory limitation period. Co-Operators appealed the motion judge’s decision, arguing that the policy contained a one-year limitation period, the limitation period overrode the two-year limitation period set out in the Limitations Act, and the policy was a “business agreement” as defined in s. 22(6) of the Limitations Act. APPELLATE DECISION


he appeal was granted. The motion judge had failed to apply the ruling in International Movie Conversions Ltd. v. ITT Hartford Canada (2002), 57 O.R. (3d) 652 (C.A.), where the Court of Appeal dealt with a similarly-worded insurance policy and held that use of the heading “statutory conditions” did not render the policy provision ambiguous or confusing. In this case, the policy provided a one-year limitation period in clear and unambiguous language. Further, the specific requirements the motion judge applied to determine whether the policy provision could exclude the two-year statutory limitation period were too stringent. In order for the exceptions in s. 22 of the Limitations Act to apply, the contractual term intending to shorten

June 2013

the statutory limitation period must be written in “clear language” that sets out a limitation period, provides the scope of the application of that limitation period and excludes the operation of other limitation periods. The provision in the policy met these requirements. Lastly, a contract of insurance covering various business risks was not “for personal, family or household purposes” and therefore no parties to the contact were a “consumer” as defined in the Consumer Protection Act, 2002, S.O. 2002, C. 30. The policy fell within the meaning of a “business agreement” in s. 22(6) of the Limitations Act and therefore the one-year limitation period contained in the policy could override the statutory limitation period.


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COUNSEL COMMENTS, Cont. Boyce v. The Co-Operators General Insurance Company, 2013 ONCA 298 Counsel Comments provided by by Mitchell Kitagawa, Counsel for the Appellant


Group Inc. case which was hat makes this not argued by either counsel case somewhat at the motion. It was clear unique is that since the that the judge thought that Limitations Act, 2002 came there had to be more in into force in 2004, many the contract to attract the insurance companies had attention of the insured to assumed that the limitation the fact that they only had period for an insured to Mitchell Kitagawa one year to bring an action make a claim against their against the insurer. insurance company on a commercial property policy was 2 One of the cases that was not years.  They were probably correct, mentioned by the motions court, despite the fact that the policies stated now figures prominently in the Court under statutory condition 14 that the of Appeal’s decision to overturn insured had one year to commence the decision.  It was probably very the claim from the date of loss. helpful that the Hon. Justice Cronk, who wrote the International Movie This changed in 2006 when the Conversions Ltd. v. ITT Hartford legislature amended s. 22 of the Act Canada decision, was one of the to include the business agreement justices hearing the appeal. exception, but it does not appear that the courts had applied it to an The appeal court drilled down insurance policy. into supporting citations of the Bell Canada decision to indicate The reasons of the motion court did why it did not believe that case not address the two main cases that was applicable to this situation.  were the backbone of the moving Ultimately, it found that the wording party’s argument.  The court instead of s. 22 of the Limitation Act, 2002 introduced the Bell Canada v. Plan


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COUNSEL COMMENTS, Cont. did not require anything more than what is outlined in the Act in order to vary a limitation period. The appeal court also recognized that the characterization of a contract, in this case as a “peace of mind” contract by the motions court judge, had no bearing on the application of the Act. It re-emphasized that the freedom to change a limitation period was intentionally granted to businesses (not individuals) as long as they met the legislated criteria. The Court of Appeal decision is a classic black letter law application which greatly assists the insurance industry and others in interpreting the business agreement exception in the Limitations Act, 2002.”

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Ontario Pension Board v. H&M Hennes & Mauritz Inc., 2013 ONCA 352 Areas of Law: Real Property; Commercial Lease; Interpretation; Commencement Date ~Confirmation clause in lease not engaged therefore confirmation of “Commencement Date” in registered notice of lease not applicable~




n 2005, The Erin Mills Town Centre Corporation (“Erin Mills”) was the owner of a shopping centre and had entered into a commercial lease with H&M Hennes & Mauritz Inc. (“H&M”) to rent out retail premises within the centre. H&M took possession of the premises on August 15, 2005 and, in accordance with the lease, on that date a 90-day “Fixturing Period” began to run. The terms also stated that the “Commencement Date” of the lease began on the day following the expiry of the “Fixturing Period”. This meant that the Commencement Date was November 13, 2005. A clause in the lease also provided that, at a reasonable time after the Commencement Date, the parties to the lease would confirm the Commencement Date in writing and that such date would apply to the lease (the “Confirmation Clause”). In early 2006, H&M’s solicitors registered a notice of lease on title to the shopping centre that stated that the parties confirmed the Commencement Date to be October 27, 2005. In late 2010, the Ontario Pension Board (“OPB”) acquired the shopping centre from Erin Mills and took over the lease with H&M. Prior to closing, OPB had reviewed the terms of the lease with H&M. The lease provided H&M with a right to terminate the lease on the first day of the first calendar month following the fifth anniversary of the Commencement Date, and such right lasted for 60 days. Because H&M was a major tenant within the shopping centre, OPB entered into a post-closing agreement with Erin Mills to reduce the purchase price of the property should H&M choose to exercise their right to terminate the lease on or before December 31, 2010. This date was chosen by OPB on the basis that it had believed that the Commencement Date was October 27, 2005. On January 27, 2011, H&M delivered written notice of termination to OPB. Since notice was delivered after December 31, 2010, OPB was unable to benefit from its post-closing agreement with Erin Mills. OPB brought an application for declaratory relief to determine the Commencement Date of the lease, alleging that it was October 27, 2005 as set out in the notice of lease in accordance with the Confirmation Clause. The application judge did not agree. He held that the Commencement Date was November 14, 2005 on the basis that the Confirmation Clause would only be engaged if there had been a delay in the possession date, thereby delaying the Commencement Date. OPB appealed.


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Ontario Pension Board v. H&M Hennes & Mauritz Inc., (cont.) APPELLATE DECISION


he appeal was dismissed. The application judge had applied the proper principles of contractual interpretation in reaching his decision. His analysis properly attempted to discover and give effect to the true intention of the parties when making the lease and he considered the relevant provisions in the context of the lease as a whole. The Confirmation Clause was included in the lease for the limited purpose of dealing with the possibility of a delay to the Commencement Date by having the parties confirm the new Commencement Date. If no delay

occurred, then the Confirmation Clause was not applicable. Even though H&M finished its fixturing work prior to the 90-day period and opened for business on October 27, 2005, since no delay to the Commencement Date occurred, the provisions specifically dealing with such delay, including the Confirmation Clause, did not apply. The October 27, 2005 date written in the notice of lease was “plainly wrong”. Further, the application judge held that OPB had actual notice of the terms of the lease and therefore was not an innocent third party purchaser without notice.

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June 2013


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COUNSEL COMMENTS, Cont. Ontario Pension Board v. H&M Hennes & Mauritz Inc., 2013 ONCA 352 Comments provided by Counsel for the Respondent, Arie Gaertner


his decision is of interest for several reasons. It reaffirms our courts’ contextual or holistic approach to how contracts are to be interpreted. Here, the court recognized the very limited purpose of the Confirmation Clause and did not permit it to trump the intentions of the parties as revealed by the contract when read as a whole and in context.

document under the Land Titles Act. As stated in the appellant’s factum, “[m]ore generally, the objective of the Land Titles Act is to provide a register that is a reliable and Arie Gaertner accurate statement of title.” In other words, the appellant suggested that it had the right to rely on the accuracy of the Commencement Date shown on the Notice of Lease (even if such Commencement Date otherwise This case also speaks to the conflicted with the Commencement purpose and effect of registering Date as defined in the Lease). a Notice of Lease under the Land Titles Act, a rather common However, neither the appellant occurrence where notice is nor Justice Cronk referred to given to third parties in order subsections 111(4) and (5) of the to protect the priority of the Land Titles Act which explicitly registering party’s leasehold provide that the party registering interest against competing claims the Notice of Lease “shall deliver by others. The appellant argued to the land registrar the original that Justice Stinson had erred in lease … and the lease …. so his assessment of the significance deposited shall be deemed to be and effect of H&M’s Notice the instrument of which notice is of Lease by failing to consider given.” Justice Cronk expressed this the purposes of registering such relationship between a Notice of


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COUNSEL COMMENTS, Cont. Lease and the Lease of which it gives notice by stating that “it is undisputed that, as a matter of law, the Notice of Lease did not amend the terms of the Lease…. {T]o the extent that there is any discrepancy between the terms of the Notice of Lease and those of the Lease itself, the terms of the Lease govern.” However, in the paragraph immediately preceding such pronouncement, Justice Cronk observed that “OPB is not an innocent purchaser without Notice of the Lease” and that “[i]t therefore had actual knowledge of the provisions of the Lease regarding the Commencement Date.” One may therefore have concluded that the main reason for OPB not having been able to rely on the contents of the Notice of Lease was that OPB had been given the Lease and therefore had actual notice of the terms of the Lease. While OPB’s actual notice of the terms of the Lease was a valid reason for not allowing the appellant to rely on the principle of ‘estoppel by representation’ (see paragraphs 40 to 43 of the reasons), it should have been unrelated to why OPB could not rely on the Notice of Lease in any event. Even if OPB had not had possession of the Lease prior to closing, the result should have been the same. A Notice of Lease merely directs its reader to the Lease (a copy of which must be deposited with the land registrar), the terms of which will trump any inconsistent recital in the Notice of Lease, whether or not a party had actual notice of the Lease. Put differently, the requirement to deposit with the land registrar the “original lease” and the statutory language that provides that “the lease … so deposited shall be deemed to be the instrument of which notice is given” means that everyone is deemed to have actual notice of the lease and therefore can never be heard to say that it did not have actual notice. The fact that OPB was given the Lease as part of its due diligence investigation when purchasing the shopping centre in which H&M’s premises were situated should therefore have been irrelevant to the finding that a Notice of Lease cannot alter the terms of the Lease and thus confer on any party any greater rights than the Lease itself. ”

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D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356 Areas of Law: Negligence; Adequate Reasons; Expert Evidence; Causation; Standard of Care; Fire ~Findings on admissibility and weight attached to expert opinion only interfered with by appellate court if no evidentiary basis~




he appellant was the owner of the Parkview Hotel (the “Parkview”), which burned down on February 5, 2002. The Parkview was 80 years old at the time of the fire and had been built with a wooden “balloon frame”, which meant that continuous wooden studs spanned from the foundation to the attic with horizontal joists connecting at 90-degree right angles. The stud walls did not contain any vertical fire stops and therefore a fire could spread rapidly between floors. In the basement of the building had been a gas-fired boiler with an exhaust ventilation duct connected to the chimney. The boiler had been purchased second hand more than ten years prior to the fire and was not regularly inspected or maintained by the appellant. On the day of the fire, the appellant had smelled smoke and called firefighters to the scene. A fire was observed by the firefighters in the wooden joists supporting the ceiling above the exhaust ventilation duct’s entry point into the chimney. After it was extinguished, a second team of firefighters found a fire on the second floor that ended up causing extensive

damage to the Parkview and adjacent buildings owned by the respondents. Investigations were conducted by two Ontario Fire Marshal (“OFM”) officials, but they were unable to determine whether the boiler or the electrical wires on the second floor caused the fire. However, one of the officials determined that the wooden ceiling joists were closer to the boiler than the required minimum clearance distance. The trial judge bifurcated the trial, dealing with liability first, with damages to be dealt with at a later date. On issue of liability, the trial judge heard 16 witnesses including experts from both sides. The trial became a “battle of the experts” as the evidence between the experts considerably diverged as to the cause and origin of the fire. The trial judge accepted the “vent pipe theory” of the respondents’ expert over that of the appellant’s experts, which he found to have been unreliable, undermined in cross-examination, unfair, subjective and partisan. On this “vent pipe theory”, he found that the fire had originated in the furnace room as a result of deficiencies with the boiler’s exhaust system and its proximity to the wooden


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D.M. Drugs (HGD) v. Barry Edward Bywater (PH), (cont.) ceiling joists. Because the appellant failed to properly inspect and maintain the boiler, he was found negligent, and such negligence was the proximate cause of the damage to the respondents’ adjacent buildings. The appellant appealed this decision primarily on the basis that the trial judge had failed to supply adequate reasons, and particularly, failed to clarify the applicable standard of care and consider relevant evidence that would have led to a different conclusion. APPELLATE DECISION


he appeal was dismissed. The duty of a trial judge to give reasons in a civil case “should be given a functional and purposeful interpretation”. The Court of Appeal will not interfere with the trial judge’s reasons so long as they illustrate why he arrived at his conclusion. In accepting the expert evidence of the respondents, the trial judge properly concluded that the opinions of the appellant’s experts had been based on a set of facts that were inconsistent with his fact findings. Further, he was entitled to attach no weight to the evidence of two of the appellant’s experts on the basis of their lack of objectivity and partisanship. One of the necessary conditions for admitting expert evidence is to assist the trier of fact. In Carmen Alfano Family Trust (Trustee of ) v. Piersanti, 2012 ONCA 297, 291 O.A.C. 62, the Court of Appeal held that “in determining whether an expert’s evidence will be helpful, a court will, as a matter of common sense, look to the question of the expert’s independence or objectivity”. Unless there is no basis June 2013


in the evidence, an appellate court will not interfere with the trial judge’s evidentiary findings, including those relating to the admissibility and weight to be attached to expert opinion. With respect to the applicable standard of care, the presumption is that judges know the law in which they work with on a regular basis. Reading the trial judge’s reasons functionally and purposively, the trial judge clearly demonstrated that he was alive to the issue of the appellant’s breach of the standard of care and the issue of proximate cause.


Legal Research: From Issues to Solutions 2013 Earn 6 CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

November 28, 2013 The Four Seasons Hotel 9:00 am - 4:15 pm

Comments from past attendees: “For a lawyer in private practice who wants to research the law

Includes Full Afternoon High Tea Service

with confidence, it was well worth the price of admission.”

“Excellent speakers – I only dream of being as well educated and well spoken.”

“I really enjoyed the course. I found the information

“A practical and comprehensive

very practical and

summary of legal research tools and

pertinent to my work.”

techniques. The presenters really knew their craft.”

November 28, 2013 The Four Seasons Hotel 9:00 am - 4:15 pm

Includes Full Afternoon High Tea Service

Legal Research: From Issues to Solutions 2013


nPoint Legal Research L.C. has been researching and preparing memoranda and facta for other lawyers for over 14 years. In the fourth annual presentation of this course, OnPoint research lawyers and guest research specialists from Davis LLP, Borden Ladner Gervais, and Dentons Canada LLP will draw from their experience to demonstrate how to map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider� tips, discuss legislative research techniques, and lead an interactive session on how to approach a sample legal issue.

Who should attend?


We have created this course for all levels. It is appropriate for senior lawyers wanting a refresher course or needing to be updated on the lastest techniques, junior lawyers wishing to become better researchers, and students wanting to start off their careers with valuable tips from research specialists. Paralegals will also benefit from this course.

Legal Research: From Issues to Solutions 2013 Our Panel Knows Research Chair: Sarah Picciotto, Founder of OnPoint Legal Research- As a clerk to the B.C.S.C. in 1998, Sarah learned the importance of sound legal research. She gained practical experience as a litigator with Edwards Kenny & Bray before leaving practice to establish OnPoint in 2000. Sarah is committed to providing OnPoint’s clients with a competitive edge. She is dedicated to ensuring that OnPoint produces nothing less than exceptional work and offers outstanding service. Ellen Vandergrift, OnPoint Legal Research- Ellen clerked at the Court of Appeal of Alberta before articling and practicing at Fraser Milner Casgrain. She subsequently spent several years as legal counsel to the Queen’s Bench and has now been with OnPoint for over eight years. She is well-suited to appellate work and particularly enjoys researching and analyzing complex legal issues and preparing facta.

Do-Ellen Hansen, Borden Ladner Gervais- As a partner at Borden Ladner Gervais, Do-Ellen provides complex research analysis and advice on diverse legal issues to private and Crown corporations, banks, and insurers. In the course of her practice, she regularly prepares legal opinions and analyses, litigation briefs, and legal arguments for trials, appeals, and arbitrations.

Monika Gehlen, Davis LLP- Monika is a partner with Davis LLP, where she specializes in written advocacy, appellate practice, legal opinions, and strategic advice. As a member of the firm's Legal Research and Litigation Practice Groups, Monika has extensive experience in the research and analysis of complex legal issues.

Legal Research: From Issues to Solutions 2013 Eric Sherbine, Dentons Canada LLP- Eric Sherbine is a Research Specialist with Dentons Canada LLP, where he provides legal and business research services.   He has substantial legal research experience in both Canada and the United States.  Prior to immigrating to Canada, he practiced as an employment and labour lawyer in the US.

Michelle Maniago, Borden Ladner Gervais-Michelle Maniago practises in the area of civil litigation and arbitration at Borden Ladner Gervais, with an emphasis on commercial and corporate disputes. She also practises as a legal research lawyer and works with both solicitors and litigators to prepare legal opinions. Prior to joining the firm, Michelle had the opportunity to hone her legal research skills as a clerk with the B.C.C.A.

Meghan Maddigan, Legal Community Liason, Courthouse Libraries BCMeghan is the point person for training at the library and is committed to helping lawyers succeed in their practice through outreach. Prior to joining Courthouse Libraries BC in 2010, Meghan practiced law for five years with a small firm where she gained first-hand experience learning what is required to conduct successful legal research in private practice.

Agenda- Legal Research: From Issues to Solutions 2013 8:30- 9:00

Registration and Pastries and Coffee

9:00- 9:15

Welcome from Sarah Picciotto, Founder of OnPoint

9:15- 10:00 Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course”

- The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:00-10:45 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part One: The General"

- Insider tips from research lawyers who perform computer research every day - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool

10:30- 10:45 Coffee break 10:45- 12:00 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part Two: The Specific"

- Pointers on when to use which resource for what task - Cost-efficient uses of electronic resources - Important resources for keeping current

12:00- 1:00 Lunch (on your own, but save room for Full Afternoon Tea Service at 2:30) 1:00- 2:00

Meghan Maddigan- "Tackling Legislative Research Like a Pro” - Making it modern: How to ensure you are looking at the most current, in-force laws - So many sources, so little time: Where to start and finish when looking at legislation - Working backwards: How to trace specific provisions through time - Who said what: Finding judicial consideration of legislation

Agenda (cont.) 2:00- 2:30

Eric Sherbine, "Handling American Research Sources" - Available resources for specific tasks - Free vs. paid sources - What can you reasonably expect to research without U.S. training - Answers to lawyers' commonly asked questions about conducting U.S. research

2:30- 2:45

Break- Prepare for Full Afternoon High Tea Service during next presentation

2:45-3:15 3:15- 4:15

Monika Gehlen , "Presenting Your Work- Writing to Win" - Tips for better written advocacy - Factum writing Group Panel- “Time to Take the Plunge: A Sample Research Issue, Step By Step�

Research to a


We are pleased to be serving Four Seasons' full afternoon tea during our afternoon presentation. Enjoy an assortment of finger sandwiches, scones with Devonshire cream, opera cake, French macarons, lemon tartlets, and other assorted petit fours, along with a selection of teas or coffee.

Course Registration Form Date: Format: Feature: Location: Price:

November 28, 2013- 9:00 to 4:15 (registration and light continental breakfast starts at 8:30) Live Program with Materials Four Seasons' Full Afternoon High Tea Service at 2:30 The Four Seasons Hotel, Vancouver Really Early Bird (before July 30) Regular: $450; Paralegal: $350; Student: $200 Early Bird (before Oct.31) Regular: $475; Paralegal: $375; Student: $225 Starting Nov.1: Regular: $525; Paralegal: $425; Student: $265










OTHER __________




Year of Call ______

REALLY EARLY BIRD (Register by July 30, 2013) Regular -------$450+ $22.50 GST = $47.25 Student ------ $200 + $10.00 GST = $210.00 Paralegal ----- $350+ $17.50 GST = $367.50 EARLY BIRD (Register by October 31, 2013)

REGULAR PRICING (Starting Nov.1, 2013)

Regular -------$475 + $23.75 GST = $498.75 Student ------ $225 + $11.25 GST = $236.25 Paralegal ----- $375 + $18.75 GST = $393.75

Regular -------$525 + $26.25 GST = $551.25 Student ------ $265 + $13.25 GST = $278.25 Paralegal ----- $425 + $21.25 GST = $446.25

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Credit Card (MC or VISA)





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By Phone: 604.879.4280

By Mail: OnPoint Law Corporation, 178-2498 W.41st Ave, Vancouver, BC V6M2A7 Email:

604.879.4280 |

Who is OnPoint?


nPoint is a law firm of on-call research lawyers, all of whom have completed clerkships and litigated with downtown law firms. “OnPoint has always performed in a timely, effective and professional manner and has done excellent work at a reasonable price. We do not hesitate to use their services.” Larry Kahn, QC and Marvin Lithwick, Kahn Zack Ehrlich Lithwick

For over 13 years, our firm has completed research and writing projects for lawyers in the private and public sectors, from case summaries to complex memoranda and facta. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients. T.604.879.4280 F.604.648.8930

Sarah Picciotto, B.A., LL.B. Founder of OnPoint Legal Research Law Corp.

“OnPoint’s lawyers are knowledgeable, efficient, effective and reliable. Their work is always proficient and timely. It is a pleasure to work with them. They are an invaluable resource to our firm.” Angiola De Stefanis, Alliance Lex Law Corp.

“All of us at Taylor Veinotte Sullivan use OnPoint’s researchers on our cases. OnPoint’s expertise in a wide range of complicated commercial litigation is invaluable to a firm of our size and is also a real costs savings to our clients” Carey Veinotte, Taylor Veinotte Sullivan


OnPoint Legal Research | Take Five

Ontario Take Five June 2013  

Selected case summaries from ONCA in May, including Counsel Comments

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