In Lascaris v B’nai Brith Canada, 2019 ONCA 163, the Court clarified that on a motion to dismiss under s. 137.1 of the Courts of Justice Act, the responding party’s burden under s. 137.1(4)(a)(ii) is to show that it is possible that a defence would not succeed as opposed to showing that a defence has no hope of success. In applying this standard, the Court reversed the motion judge’s dismissal of the defamation action.
In Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, the Court held that Bondfield (which, as an aside, is now under CCAA protection) was only required to show that a reasonable trier of fact could conclude that the Globe did not have a valid defence. The Court held that Bondfield would meet that onus if it showed that a reasonable trier of fact could reject all of the various defences put in play by the Globe.
In Endean v St Joseph’s General Hospital, 2019 ONCA 181, the Court reviewed the nature of Pierringer Agreements and Orders and confirmed that, in the context of a Pierringer Order, the Court’s decision in Taylor v Canada (Health), 2009 ONCA 487, does not stand for the general proposition that fault in a negligence action may be apportioned to non-parties. In a Pierringer settlement, the non-settling defendant is only entitled to a reduction of the damages by the amount of fault apportioned to settling defendants, not non-parties. The Court also confirmed that the two-year limitation period in the Public Hospitals Act is not subject to a discoverability principle.
Other topics covered this week included insurance in the MVA context, nuisance and intrusion upon seclusion.
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