All posts by honnerlawWP

Litigation Insurance

Buying ATE Insurance protects you against adverse cost awards for failed or abandoned litigation. It can also pay for your lawyer’s disbursements.  In these way it helps level the playing field for accident victims facing big insurance companies.

However, a judge from the Ontario Superior Court of Justice just ruled that ATE Insurance is not a compensable disbursement. That means that you cannot force the unsuccessful party to pay for the premium if you are successful at trial. For more information contact your lawyer.

Jury Notices and Summary Judgment Motions

A civil action can be dismissed before trial when a party – either a plaintiff or a defendant – brings a motion for summary judgment, seeking to persuade a judge that there is “no genuine issue requiring a trial”.

 If a judge finds that there is a genuine issue requiring a trial, he or she can nevertheless use certain discretionary fact-finding powers to determine the issue in question. These powers – sometimes referred to as “the toolkit” – are found in rule 20.04 (2.1) of the Rules of Civil Procedure, and they include the power to weigh evidence, evaluate credibility, and draw reasonable inferences “unless it is in the interest of justice for such powers to be exercised only at trial.”

In McDonald v. Doe et. al. 2015 ONSC 2607, Justice Dunphy considered the effect of a Jury Notice on a judge’s discretion to exercise his or her fact finding powers. He concluded that the existence of a jury notice – while not determinative – is a factor the court should consider before opening up the toolkit. He declined to use his fact- finding powers in the interest of justice, deciding it would be better to let the jury do that. The plaintiff is therefore entitled to a trial.

Think you’ve missed the Limitation Period?

Limitation periods vary with the type of lawsuit you are bringing, and an expired limitation period is a complete defence to a lawsuit. So what do you do if you have a claim but think you might have missed the limitation period?

You should contact a lawyer as quickly as possible. A lawyer might be able to help you persuade a judge that the limitation period should start to run from a later date.

That is what happened in the recent case of Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773. In that case, the plaintiff claimed she was injured after an out-of-bounds football player violently collided with her as she was watching her son’s football game from the sidelines. After the expiration of the presumed two-year limitation period, the plaintiff learned that the referees might be partially at fault for her injuries. She sought leave from the court to add the referees to the lawsuit.

 The plaintiff’s lawyer successfully argued that there was a live issue over when a diligent plaintiff could have discovered the claim against the referee. The judge granted leave to add the defendants to the claim.

 The plaintiff isn’t out of the woods yet. The limitation period can still be brought up at trial or on a motion for summary judgment. But she succeeded on the first step and based on statistics her claim will probably settle.

Witness awarded $40,000 in Publication Ban Case

Justice Grace recently awarded $40,000 in damages to Jane Doe following the publication of her name by the London Free Press after she testified in a high profile sexual assault trial. A publication ban had been in place.

Damages vary from plaintiff to plaintiff. In this case, Jane Doe’s damages included anxiety, depression, agoraphobia and harassment.

Justice Grace reminded us that the law does not compensate upset, disgust, agitation or other mental states that fall short of injury. Psychological damages must be serious and prolonged to rise above the ordinary annoyances, anxieties and fears people routinely experience.

The case is called Doe v. Sun Media, 2015 ONSC 4239 (CanLII).


Can you be married and have a common law spouse?

Yes, at least when it comes spousal support obligations following your death. In Dagg v. Cameron, 2015 ONSC 2597  – a case dealing with dependency claims under the Succession Law Reform Act – Justice Bale found that a deceased person could have two spouses to whom he or she owes support obligations.

In this case, the Deceased was legally married to the Respondent when he started cohabiting with the Applicant, who became pregnant with the Deceased’s child. The child was born after the Deceased’s death. The Applicant then brought an application for support under the SLRA, claiming to be a dependent spouse.

The definition of “spouse” under the Act includes two unmarried persons who are the parents of a child and have cohabitated in a relationship of some permanence. In this case, although the child was born post-mortem, Justice Bale found that the Deceased and the Applicant were, on the date of death, the parents of a child who was conceived before and born after the Deceased’s death.

Access to Civil Justice

In Hryniak v. Mauklin, the Supreme Court of Canada recently called for a “culture shift” to promote timely and affordable access to justice. As a step in this direction, the court broadened the interpretation of summary judgment rules.

The problem is that civil justice is too expensive. The consequence is that people either give up on justice, represent themselves, or look for alternatives.

One alternative gaining popularity is private arbitration. But when this option is used, justice ceases to be a public thing and the common law stagnates.

Another alternative is using paralegals, who can represent clients in Small Claims Court for lawsuits up to $25,000. But Small Claims Court does not mean that the legal issues are simple. Are paralegals sufficiently trained to handle complex contractual disputes or duty of care analyses which might arise in small claims court?

As part of the solution, the Supreme Court of Canada recently called on lawyers to facilitate access to justice. The court specifically stated that lawyers should consider their client’s limited means, the nature of their case, and fashion proportionate means to achieve a fair and just result. A trial should no longer be seen as the default position.

If you have a legal problem, I recommend calling a new lawyer. New lawyers are rigorously trained in the law and usually offer better rates than their more seasoned colleagues. New lawyers are also usually more effective with technology, and can pass savings onto their clients.

Don’t give up on civil justice.

By Alan Honner
Barrister & Solicitor