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Friday, April 07, 2017 @ 10:53 AM

Litigation funding for high-stakes commercial suits coming | Julius Melnitzer

In a sure sign of desperate times for general counsel and in-house law departments, litigation funding is coming into its own — although it is just starting make a dent in Canada. The desperate part is that cost constraints are failing. It’s not that GCs haven’t been trying. The legal press has been awash for some years now with self-congratulatory back-slapping so rampant it risks breaking the collarbone of the backslappers themselves.   ... [read more]

Thursday, April 06, 2017 @ 8:34 AM

PRACTICE AND PROCEDURE - Charge to jury - Jury's answers - Grounds for appeal

Appeal by the defendant from jury determinations in a personal injury action. The defendant traveled westbound on a two-lane road. The plaintiff traveled eastbound. The plaintiff's vehicle was struck from behind by another eastbound vehicle, causing it to spin, flip, and cross into the westbound lane, colliding with the defendant's vehicle. The plaintiff settled a claim against the driver who caused the first collision, and settled quantum of damages with all involved. The sole issue at trial was whether the defendant was negligent for the second collision with the plaintiff's vehicle. A jury determined that the defendant's negligence caused or contributed to the second collision. The defendant appealed. ... [read more]

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 @ 8:33 AM

DISCRIMINATION - Types of discrimination - Constructive or adverse effect

Application by Peart for judicial review of a decision of the Human Rights Tribunal that dismissed his discrimination application. The applicant filed his complaint after the Office of the Chief Coroner declined a request to conduct a discretionary inquest into the workplace death of his brother, a migrant farm worker from Jamaica who was employed under the Seasonal Agricultural Workers Program (SAWP). Police had investigated the death and found the brother had not followed the safety training he had received. The Tribunal found s. 10(5) of the Coroners Act did not discriminate against migrant farm workers by denying them the benefit of mandatory inquests into preventable workplace fatalities. It found that s. 10(5) of the Act had a disproportionate impact on migrant workers. It concluded the purposes underlying the requirement for mandatory inquests in accidental workplace deaths in mining and construction, but not in agriculture, were non-discriminatory. ... [read more]

Wednesday, March 29, 2017 @ 9:06 AM

Battle brews over MPP’s bill to cap contingency fees, scrap referral fees

Personal injury law firm Diamond & Diamond Personal Injury Lawyers has hired a public affairs firm to lobby against a proposed private member’s bill to cap contingency fees and scrap referral fees. ... [read more]

Tuesday, March 28, 2017 @ 12:13 PM

Speeding up criminal trials slows civil court system, but there are fixes | John McLeish and Stefanie Chimienti

Civil trial lawyers complain about increasing delays in the civil trial system. In Toronto, while short trials (those lasting 10 days or less), can be scheduled within a year, the same is not true for long trials. ... [read more]

Monday, March 27, 2017 @ 7:11 PM

Ontario Court of Appeal rules structured settlements are 'income' not 'property'

In a noteworthy decision for both the family law and personal injury bars, the Ontario Court of Appeal has ruled that personal injury structured settlements are “income”— not matrimonial “property” — and thus their value is not shared between the estranged spouses. ... [read more]

Friday, March 24, 2017 @ 4:39 PM

SCC rules no-fault car accident regime bars negligence suits against third parties Andrew Kliger

Eight years ago Gilles Gargantiel lost part of his leg to frostbite as he lay injured in a ditch for nearly two days in October because Sûreté du Québec police stopped looking for him two hours after his auto accident — while ignoring the GPS co-ordinates repeatedly being sent to them by his car’s on-board location system. Ten years earlier, Thérèse Godbout’s fractured legs were both amputated as a result of complications she claims were caused by the negligence of the Montreal surgeons who operated on her after a serious car crash. ... [read more]