State Farm vs. Aslan

In this significant procedural decision on the right to an Examination Under Oath (EUO), Justice Charles Hackland of the Ontario Superior Court of Justice, has ruled that an insurer must provide “reasonable advance notice of the reason or reasons for the examination” as a “condition precedent to the insured’s obligation to attend under section 33(4)3 of the schedule”.

Justice Hackland went on to say that the reasons given must be “something more than determining entitlement to benefits”. In this case, involving seven catastrophically injured claimants, the judge found that State Farm’s notice was inadequate and that the claimants were not required to attend the EUO. The judge found that the obligation to inform the insured of the specific reason for the EUO was “reflective of the good faith obligations owed by an insurer and an insured in contracts of insurance….”.

This decision overrules the recent FSCO decision by an arbitrator in Kivell v State Farm.

L Craig Brown of Thomson Rogers was counsel to the claimants’ lawyer Miryam Gorelashvili.

On August 10, 2015, the Ontario Court of Appeal released its decision in Fernandes v. Araujo confirming a motor vehicle owner’s liability under the Highway Traffic Act for its driver’s negligence is triggered solely based on the owners consent to possession and not the manner in which the vehicle was being operated.

Stacey L. Stevens and L. Craig Brown successfully argued this issue before the Court of Appeal’s five member panel on June 18, 2015.  In this instance, Ms. Fernandes was a passenger on an ATV which was involved in a single vehicle collision on a public highway.  Following the collision, the ATV owner took the position that while he consented to the operation of his ATV on his farm, he did not consent to it being driven on a highway. The owner’s insurer, Allstate, brought a motion for summary judgment in an attempt to dismiss the Plaintiff’s claims against the owner on the basis that he was not vicariously liable for the driver’s negligent operation of his ATV. Stacey L. Stevens defeated this motion. Allstate appealled.

As a result of Stacey and Craig’s efforts, the Court of Appeal overturned one of its previous decisions eliminating a long-standing conflict in this area of the law and preserving the rights of innocent accident victims to look to a motor vehicle owner for compensation for their injuries.

Melvin v. Ontario (Correctional Services) ONSC 5432
August 23, 2013

Court confirms that damages awarded at trial cannot be reduced by value of future accident benefits where entitlement to benefits is not “beyond dispute…in every respect.”

In a recent court decision, Thomson Rogers personal injury lawyers L. Craig Brown and Robert M. Ben won an important ruling for a brain-injured client whom David F. MacDonald and Michael L. Bennett successfully represented at trial. The court agreed with Thomson Rogers’ argument that the value of future accident benefits cannot be deducted from a judgment awarding damages for future care. The defendant is under a “very strict onus of proof” to show that the plaintiff’s entitlement to future benefits is “beyond dispute…in every respect.” The onus cannot be met absent a “guarantee” from the insurer that benefits will continue to be paid in the future. See the Judge’s reasons for decision here.

Quadriplegic Motor Vehicle Accident Trial (Spring, 2011)

In the spring of 2011, Craig Brown, Darcy Merkur and Stacey Stevens were trial counsel to a motor vehicle accident victim who had lost control of his motor vehicle within days of his vehicle passing a safety inspection. The plaintiff was catastrophically impaired in the accident and was receiving catastrophic accident benefits from his accident benefit insurer. The claim was for in excess of $15 million. Three weeks into this jury trial, in the Ontario Superior Court of Justice, a resolution was reached between the parties. The details of the resolution are confidential. With permission of the plaintiff, you can review a copy of the plaintiff’s opening statement at the link below (to product privacy, all names have been redacted).

• Opening Statement – Geoffrey B v. Mechanic Company, et al

A Certification and Settlement Approval motion with respect to a class action against the directors of a bankrupt investment company that were alleged to have breached their duty to the customers of that company. The $21.25 million settlement was approved. For details see: the reasons of Justice Perell.

In this class action lawsuit, Craig Brown and Darcy Merkur were successful in having a class action certified on behalf of users of a Parkinson’s Disease drug that claim they suffered compulsive behaviour, such as compulsive gambling, as a result of using the drug.

• Banerjee v. Shire Biochem Inc. et al., 2010 ONSC 889 (CanLII),
  February 8, 2010

• Baxter v. Canada (Attorney General), 2006 CanLII 41673 (ON S.C.), December 15, 2006
• Baxter v. Canada (Attorney General), 2005 CanLII 18717 (ON S.C.), May 30, 2005

• Cowles v. Balac, 2006 CanLII 41806 (ON C.A.), December 15, 2006
• Cowles v. Balac, 2006 CanLII 34916 (ON C.A.), October 19, 2006
• Cowles v. Balac, 2005 CanLII 2038 (ON S.C.), January 27, 2005
• Cowles v. Balac Judgement, January 22, 2005
• Cowles v. Balac, 2004 CanLII 42936 (ON S.C.), November 19, 2004
• Cowles v. Balac, 2004 CanLII 35085 (ON S.C.), November 4, 2004
• Cowles v. Balac, 2004 CanLII 35084 (ON S.C.), November 4, 2004

• Lytle v. Toronto (City), 2006 CanLII 33300 (ON C.A.), September 27, 2006
• Lytle v. Toronto (City), 2004 CanLII 12155 (ON S.C.), April 15, 2004

We are proud to announce that 13 Thomson Rogers partners have been selected for inclusion in the 14th Edition of The Best LawyersTM in Canada. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.  Lawyers are not required or … Continued

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We are proud to announce that 16 Thomson Rogers partners have been selected for inclusion in the 13th Edition of The Best LawyersTM in Canada. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 87,000 industry … Continued

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Join us on Saturday, April 7th and Sunday, April 8th at the Toronto International Centre for the Toronto Spring Motorcycle Show. Thomson Rogers will once more be showing three vintage Motorcycles – Nortons and a Triumph all of which will be entered into the vintage bike championships. Join Craig Brown, Leonard Kunka, Robert Ben, Ian … Continued

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Published annually by Best Lawyers®, The Best Lawyers in Canada is one of the country’s most highly regarded legal directories. Inclusion is based on an exhaustive peer-review survey and a thorough authentication process. We are proud to announce that the following 17 lawyers from Thomson Rogers were selected for inclusion in 12th Edition of The … Continued

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We are proud to announce that 14 of Thomson Rogers’ lawyers have earned the distinction of being listed in the 2017 Canadian Legal Lexpert® Directory. To be included in the directory is an acknowledgement of excellence by their peers. Congratulations to: DAVID NEILL – listed as  Repeatedly Recommended in Plaintiff Personal Injury Litigation PATRICK SCHMIDT – listed as Consistently … Continued

They say you don’t need a helmet to ride this motorcycle. BMW recently released information about its latest concept bike, the . While it’s easy to expect futuristic styling with concept vehicles, BMW boasts about this one’s ability to keep riders completely safe from accidents or injury. Leave your helmet and body armour at home … Continued

Thomson Rogers is proud to be the Diamond sponsor of the Toronto ABI Network Conference 2016. We are also looking forward to co-hosting with the Toronto ABI Network the Networking reception on Thursday, November 10th. This year’s conference will focus on Connecting, Learning and Inspiring. The conference will be held on Thursday, November 10th and Friday, … Continued

Published annually by Best Lawyers®, The Best Lawyers in Canada is one of the country’s most highly regarded legal directories. Inclusion is based on an exhaustive peer-review survey and a thorough authentication process. We are proud to announce that the following 14 lawyers from Thomson Rogers were selected for inclusion in 11th Edition of The Best … Continued

Location: The Carlu, 444 Yonge Street, Toronto  View Google Map Conference Goals This conference will enable participants to: Develop and enhance techniques for providing expert testimony Improve your confidence and avoid embarrassment in court educate delegates about the technical requirements of Examination in Chief and Cross-Examination Provide insight on how to handle difficult cross-examinations Provide strategies … Continued

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A controversial foot doctor is now facing accusations about the use of questionable implants on patients without their knowledge. Go Public and Radio-Canada recently reported how, after being banned from dentistry in Quebec following serious problems with patients, Pierre Dupont reinvented himself as a foot specialist in Ontario. One of his Ottawa patients contacted us … Continued

View decision: State Farm vs. Aslan In this significant procedural decision on the right to an Examination Under Oath (EUO), Justice Charles Hackland of the Ontario Superior Court of Justice, has ruled that an insurer must provide “reasonable advance notice of the reason or reasons for the examination” as a “condition precedent to the insured’s obligation … Continued