Articles 2021

Novel claims present a significant challenge for courts in the context of interlocutory proceedings such as motions to strike or amend pleadings, or to certify class proceedings. In Atlantic Lottery Corp. Inc. v. Babstock, the Supreme Court of Canada provided welcome guidance on how courts should approach motions to strike pleadings of novel causes of action. Notably, the Court held that a plaintiff’s claim will not survive a motion to strike simply because it is novel.

The OSC has finally decided the merits of a class action under the secondary market liability provisions of the Ontario Securities Act. Belobaba, J. began by noting that “leave to proceed will be granted if there is enough evidence to clear the ‘reasonable possibility’ hurdle,” but “when the matter is litigated in full and the plaintiff’s hurdle is the more demanding ‘balance of probabilities’, the defendants may prevail and the securities class action will be dismissed."

Effective advocacy in health law requires the ability to argue before a variety of adjudicators. Read this summary of the OBA Health Law Section's recent PD program on Advocating before Health Discipline Committees and gain valuable insights from the decision-makers themselves about how counsel can advocate effectively for their clients at health discipline committee hearings.

We are excited to share with you the insights of five prominent members of the bar with extensive experience in medical malpractice litigation, both from the perspective of plaintiffs and defence counsel. Whether you are currently working on medical malpractice files, considering a career in this interesting and complex area of litigation, or are just curious about what senior members of the bar who practice in this field have to say about their work, read on.

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario. In Rusinek, the Court refused to allow the trustee in bankruptcy to bring a claim for equalization of net family property against the bankrupt’s spouse. The Court found that s. 7(2) of the Family Law Act precludes a trustee from commencing an equalization claim for the first time after the bankruptcy. Other topics addressed this week included social host liability and interveners.

The Toronto Estates Court and its Estates List Users Committee (ELUC) have approved the publication of full Minutes (rather than summaries) of all ELUC meetings going forward. These December 2020 Minutes provide updates on probate wait times, issuing applications, booking hearing dates, and best practices for filing large records, among other matters.

The Court's decision in this case turns on the somewhat puzzling distinction between a life interest and a license to use a property - a distinction that courts have not consistently applied, but which in Barsoski resulted in the Deceased's intended gift to the Respondent failing entirely. Despite the lack of clarity in the law regarding licenses to use vs. life interests, drafting lawyers can take certain clear steps, enumerated here, to make sure the testator's wishes are upheld.

At the February BBL meeting, participants discussed the details of the Small Estates Process, to come into effect April 1, and the important differences from the regular application procedure. This article's summary of that discussion is helpful reading for anyone planning to use the new process. Other topics of discussion included billing practices for estate administration work, and e-certificates of appointment. The next BBL is March 16 - we hope to see you there!

The first Brown Bag Lunch of 2021 kicked off the year with discussion of Barsoski v. Wesley, and various considerations related to the increasingly virtual nature of our practice: e-filing of probate applications, electronic Certificates of Appointment, and virtual witnessing.