Articles 2024

The key takeaways from the Westport decision are that sureties will be entitled to assert priority against a wide range of funds, including those awarded in construction adjudications, as long as their indemnity agreements are drafted broadly. While ensuring the flow of funds through adjudication is important, a competing and equally important consideration is not disturbing the construction bonding regime.

An update from the Bench regarding requests to defer Estate Administration Tax and the required evidence to support such a request.

At the recent OBA’s CPD Essential Updates on Court Processes for Estate Litigators, new rule 6.1.01 of the Rules of Civil Procedure was reviewed, together with relevant case law and the potential application of bifurcation to estate matters.

Further update regarding the use of Calendly on the Estates List and in other courthouses including availability and appointment scheduling.

Please fine below our summaries of the civil decisions of the Court of Appeal for Ontario for the week of October 7, 2024.

The WSIB has updated its Gastrointestinal (GI) Cancer-Asbestos Exposure Policy, effective October 1, 2024. The revised policy establishes three criteria for entitlement for GI cancers related to workplace asbestos exposure and includes general pre-1987 asbestos exposure data for various occupations. This data may streamline entitlement for workers with five or more years of pre-1987 work in listed jobs. Additionally, the policy will apply retroactively to some previously decided cases.

The BC Supreme Court overturned a BC Workers’ Compensation Appeal Tribunal decision that denied a mental disorder claim, finding that the Tribunal unreasonably relied on an expert opinion and, as a result, failed to ensure procedural fairness. This case highlights the risks of relying on expert opinions that may be based on incomplete or inaccurate information and underscores the importance of providing experts with a full and accurate record of factual and medical history.

A recent WSIAT decision upheld an agreement under section 63 of the WSIA, resolving a worker’s appeal about her post-injury real estate income being offset against her LOE benefits. This case illustrates the complexities of concurrent employment, the importance of optional WSIB coverage for self-employment, and offers Schedule 2 employers a cost-effective option for resolving disputes through section 63 agreements.

The decision in Stewart v. Bay of Quinte Mutual Insurance Co. provides insights into the responsibilities of insurers, particularly in assessing the value of lost property and managing risks. As well, the decision highlights the discretion held by courts in allocating value to lost property, and the underlying public policy considerations in insurance contracts.