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Civil Litigation

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Monday, April 03, 2017 @ 11:42 AM

CIVIL PROCEDURE - Actions - Availability - Right of action

Appeal by Godbout from a judgment of the Quebec Court of Appeal setting aside a decision concluding that her civil action against the medical staff who treated the injuries she had suffered in an automobile accident was admissible and appeal by Gargantiel from a judgment of the Quebec Court of Appeal affirming a decision that dismissed his claim against Sûreté du Québec officers who were allegedly negligent in searching for the crashed vehicle he was in. Godbout and Gargantiel were both seriously injured in automobile accidents and were compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (SAAQ) under the Automobile Insurance Act (Act). In separate actions, they sought reparation for the injuries caused by the alleged subsequent faults of third parties. Godbout was involved in a serious automobile accident in January 1999. She was treated by Pagé, an orthopaedic surgeon, and the other respondents. After suffering from advanced compartment syndrome and muscle compartment necrosis that led to amputations following the surgery, Godbout filed a motion to institute proceedings against them for failing to act in accordance with good practice in treating her and causing separate injuries that had not been suffered in the automobile accident. The trial judge concluded that s. 83.57 of the Act did not preclude her action, but the Quebec Court of Appeal allowed the appeal and set aside the trial judge’s decision. In October 2009, Gargantiel lost control of his automobile. Even though the OnStar company, having located Gargantiel’s vehicle by satellite, contacted the Sûreté du Québec’s call management centre and provided it with the GPS coordinates of the vehicle, officers were unable to locate it and decided to give up the search. Gargantiel was found by a passerby 40 hours after the accident with severe hypothermia and other serious bodily injuries that led to the partial amputation of his leg. He claimed damages from the Attorney General of Quebec (AGQ) for injuries linked to the negligence of the officers who had participated in the search for his car. The trial judge granted the AGQ’s motion to dismiss, and the Court of Appeal dismissed Gargantiel’s appeal. The Supreme Court of Canada considered whether a person injured in an automobile accident who was eligible to receive compensation under the Act but whose condition was aggravated as a result of a fault committed by a third party could bring a civil action against the third party to seek compensation for bodily injury resulting from that subsequent fault. ... [read more]

Monday, April 03, 2017 @ 8:55 AM

Don’t ignore theory of damages in class actions

Although theories of liability such as a government’s negligence, a bank’s breach of contract or an insurance company’s bad faith usually get the legal headlines, sometimes the theory of damages will be the most important issue in a class action for the following four reasons:  ... [read more]

Friday, March 31, 2017 @ 9:01 AM

Auto dealers now have a duty of care to thieving minors

A recent decision from the Ontario Court of Appeal affirmed that when it comes to tort law, “sentiment is not principle.” The duty of care operates independently of the illegal or immoral conduct of the injured party. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Quebec must pay $1.6 million for 'withholding information' from subcontractor

Not applicable ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Appeal court tosses suit over unwanted child

Not applicable ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Civil Litigation - Civil procedure - Disposition without trial - Dismissal of action - Delay or failure to prosecute

Appeal by the defendant, the litigation representative of the wife’s estate, from refusal to strike a matrimonial property claim issued by her ex-husband. The parties married in 1982, separated in 1996, and divorced in 1999. The husband’s original matrimonial property action remained unresolved. After the wife’s death in July 2014, the husband filed a proof of death with the registrar of land titles. The wife’s estate applied to sever the joint tenancy in the matrimonial home and brought an application to terminate co-ownership. The wife sought dismissal of the husband’s original matrimonial property action pursuant to Rule 4.33 on the basis of undue delay. The chambers judge refused the relief sought. Although three years had passed since the last significant advancement of the action through examinations for discovery, the wife’s counsel had acquiesced in the delay by leading the husband’s counsel to believe no steps would be taken to enforce time limits while the matter moved toward settlement. Continuation of the matrimonial action was warranted to ensure the husband received an equitable division of property now held in the wife’s name. The wife’s estate appealed. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Damages - For torts - Fraud and misrepresentation

Appeal by the defendant, Gemnay, from a civil fraud judgment in favour of the plaintiff, Nicholson. The plaintiff was a recent widow with a grade 8 education and two young children. The defendant was a friend of her late husband. The plaintiff gave the defendant $200,000 to use for investments. The defendant emphasized he would not do anything to jeopardize the funds. The defendant proceeded to invest in call options using his own personal accounts, resulting in a total loss. The defendant repaid $8,000. The plaintiff sued to recover the remainder. The trial judge made adverse credibility findings against the defendant, and granted the plaintiff judgment for $192,000, plus pre-judgment interest, punitive damages of $25,000, and costs of $85,000. The defendant appealed. ... [read more]

Thursday, March 30, 2017 @ 11:53 AM

Updated: Supreme Court rules automatic suspensions OK when lawyers fail to take mandatory CPD Rosalie Abella

Affirming that law societies must be afforded “considerable latitude” in exercising their public interest mandate, the Supreme Court has split 5-2 to dismiss the challenge of an 87-year-old Winnipeg litigator who now faces an automatic suspension of his licence to practise because he refuses to take the 12 hours of continuing professional development (CPD) required annually in Manitoba. ... [read more]

Wednesday, March 29, 2017 @ 9:18 AM

Not naming an executor in a will can add cost, complexity and family conflict

Each year, 90,000 individuals die in Ontario alone, leaving behind tens of thousands of estates to be administered by family members, friends, professionals, or — in rare cases — the government. While there is any number of reasons why it’s advantageous to name an executor in a will, many people never do so. ... [read more]

Tuesday, March 28, 2017 @ 3:52 PM

Supreme Court to rule on challenge to compulsory CPD for lawyers Charles Huband

The Supreme Court of Canada will decide Thursday whether to endorse a Winnipeg lawyer’s far-reaching — but thus far unsuccessful — challenge to mandatory continuing professional development (CPD) for lawyers. ... [read more]