Saturday, December 31, 2011

2011 ClawBies Announced

The winners of the 2011 Canadian Law Blog Awards have been announced.

Congratulations to Erik Magraken's B.C Injury Law Blog, named as Canada's best of 2011, and to all winners and finalists in the many other categories.

Happily, Wise Law Blog has made the cut this year as a runner-up in the ClawBies' Legal News category for our 140Law updates.

We are proud to be in such good company as the Legal News winner, Legal Feeds, the blog of Canadian Lawyer magazine and the Law Times newspaper, and our co-runner-up, the Financial Post's Legal Post

Thanks so much for the honour and mention, which I gladly share with our office's law clerk extraordinaire, Rachel Spence, who has been the voice of so many of our daily legal news posts

Congrats, once again, to Steve Matthews of Stem Legal for so ably quarterbacking the 6th Annual ClawBie awards process.

- Garry J. Wise, Toronto
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Friday, December 30, 2011

Signing Off for 2011

It's been quite a year, and with this, our 400th post of 2011, let me simply thank our readers for joining us here at Wise Law Blog, via RSS, on Twitter and at the various sites where our posts can be found online.

We appreciate that you take the time to visit with us, and sincerely hope we've brought something of value to you in 2011.

Our thanks go out to Bob TarantinoSamantha Collier and V.MaryAbraham for their respective nominations of this blog for a 2011 Clawbie award.  It is greatly appreciated.

Have a safe and happy New Year's Eve tomorrow.

Best wishes from all of us at Wise Law Office.
- Garry J. Wise, Toronto
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140 Law - Legal Headlines for December 30, 2011

It's our final edition of 14o Law for the year!  Here are our leading legal headlines from Wise Law on Twitter  for Friday, December 30, 2011:

Wednesday, December 28, 2011

Scary, Dumb Republicans

Texas Governor and Republican presidential wannabe, Rick Perry:
“Every barrel of oil that comes out of those sands in Canada is a barrel of oil that we don’t have to buy from a foreign source,” Mr. Perry said in Clarinda, earning a loud round of enthusiastic applause.
(Via New York Times)
- Garry J. Wise, Toronto
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140 Law - Legal Headlines for December 28, 2011

Welcome to today's holiday edition of leading legal headlines from Wise Law on Twitter, where we will play catch-up on events over the last few days.  For those who are at the office today, what better break could there be from the hustle and bustle of workplace life?  And those that are at play... well you've come to the right place indeed!  So off to our headlines we must go:
And remember, today is the deadline for naming your #Clawbie nominatees. Details are here.
- Garry J. Wise, Toronto
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Tuesday, December 27, 2011

999 (and Counting)...

Who will be our follower number 1000 on the Twitter?
- Garry J. Wise, Toronto

And the winner is....  Israeli law firm, Herzog Fox & Neeman, our 1000th follower on the Twitter machine. Thanks to all for reading and tweeting.

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Monday, December 26, 2011

My 2011 #Clawbie Nominees

I typically like to do a year end wrap-up to accompany my Clawbie nominations.  This is my 2011 edition.

A significant development this year was the emergence of Twitter as a truly vital hub for the profession's online written contributions. Twitter now rivals law blogs in terms of volume of participation and as a reliable source of immediate legal information, particularly about current and breaking news and developments.

And in fact, I did find myself doing more tweeting than blogging in 2011 - posting legal headlines on Twitter in real time, and then reposting those headlines at this blog with our daily 140 Law summaries, to be specific.

All was not silent at Wise Law Blog in 2011, of course - aside from our daily updates we continued posting Ontario Court of Appeal Reports and ongoing employment law and topical updates.  I'd like to thank Robert Tanha, Rachel Spence, Christopher Bird and Alim Ramji for their contributions all year long.

This was not a year, however, in which I found myself doing that much analytical writing, in the traditional blogging sense.  My extra-curricular attentions, frankly, were mostly focused on chairing two Law Society of Upper Canada CPD programmes in October and November, Ethical Considerations in the Age of Technology  I'd like to take a moment to talk about these two webinars.

In many ways, I believe they reflected yet another "coming of age moment" for the Canadian law blogging community, as our Law Society called upon four law bloggers to host two accredited professionalism programmes on the ethical considerations affecting blogging, social media, online marketing and living in "the Cloud."

Over 5,000 Ontario lawyers and paralegals joined us for these two programmes.  As I noted during the webinars, that may mean we had more viewers than SunTV  (and deservedly so, I might modestly add)!

That Canada's law bloggers were afforded this honour and acknowledgment by our regulators is noteworthy, to say the least.  It is certainly not something I imagined when I started this blog in April 2005.

The tremendous volume of legal information, opinion and analysis now emerging from our nation's excellent law blogs and twitter feeds is of enormous benefit to the public, the media and the profession, as a whole.  It is genuinely worthy of collective kudos.  That our regulators are also recognizing the important role played by the blogging community is extremely gratifying.

I implicitly cast my 2011 Clawbie votes when I asked Bob Tarantino (@bobtarantino) Mitch Kowalski (@mekowalski) and Omar Ha-Redeye (@omarharedeye) to join me as panelists for these webinars.  Today, I'd like to make that official with these nominations:
  • Bob Tarantino's Entertainment and Media Law Signal continues to be an excellent example of a well-written, thoughtful and consistently updated blog.  Its niche focus allows it to consider both substance and nuance with a depth of understanding and humour that I have learned is highly representative of Bob's own abundant talent as a legal professional.
  • Mitch Kowalski is a regular contributor to the Financial Post Legal Post, and while his focus there is on the offbeat and wacky developments in the law, he has also emerged in 2011 as one of the profession's most persuasive and outspoken proponents of practising law in the Cloud. Never afraid to speak his mind,  Mitch has taken it upon himself to urge the profession to a speedy embrace of a modernity our clients are increasingly going to demand.  It behooves us all to listen.
  • Finally, Omar Ha-Redeye. The Zelig of the Ontario bar, if there is an event or function somewhere in the legal community, Omar will probably be there - and a thoughtful and insightful blog post will almost certainly follow at Slaw,, or his old alma mater, Law is Cool.  For a man who was called to the Bar only a few months ago, he has already left quite the footprint throughout the profession.
You can see Bob, Mitch and Omar in action - in living colour - in this video.

In addition, I'd also like to mention:
  • Barry Sookman's blog  and Twitter feed, which provide an impressive collection of up-to-date reports and summaries on computer and internet law and are a must-follow for the tech-minded among us.
As a friend of the North, I'll nominate New York Personal Injury Law Blog's Eric Turkewitz. Aside from his annual April 1 festivities which have an increasingly Pan-American list of co-conspirators, Eric is doing much to assert and protect the freedom of expression of all law bloggers, north and south of the border, in his role as defence counsel for many - including Canadian lawyers - caught in the web of ongoing litigation brought in New York State against numerous (too many to mention) leading law bloggers.
I'd be remiss if I did not mention the contributions made by Mark Robins, as a builder of Toronto's burgeoning law blogger community. While I have no interest in wading into the so-called controversy about the place of legal marketers and social media professionals in the law blogging world, I'd like to note with thanks that no-one has been more active than Mark in encouraging Toronto's law bloggers to come together for the regular meet-ups that are now, always, among the highlights of my professional calendar.

If nothing else, our blogger meet-ups have proven that law bloggers are a genuinely interesting and entertaining group with a whole lot in common, aside from our chosen careers.

Thanks to Steve Matthews for once again taking the time to recognize this worthy group with this year's 6th Annual Clawbie Awards.

And good luck to all in the Clawbie hunt.
- Garry J. Wise, Toronto
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Friday, December 23, 2011

This Week at the Ontario Court of Appeal - December 23, 2011

Each Week Wise Blog analyzes recent decisions from the Ontario Court of Appeal.

Tarion Warranty Corporation v. Kozy

The main issue on appeal was whether the Respondent was considered a “builder” within the meaning of the term in the Ontario New Home Warranties Plan Act (“ONHWP Act”). The appellant, Tarion Warranty Corporation appealed the decision of the Ontario Court of Justice in December 13, 2010, where Downie J. dismissed an appeal of the Justice of the Peace’s acquittal of the respondent, David Kozy on two charges under the ONHWP Act.

Tarion is the corporation that administers the ONHWP Act. The Act is consumer protection legislation designed to protect purchasers of new homes in Ontario. In 2006, Joseph and Irena Kobylinski purchased a property in Simcoe County. They entered into a contract with the respondent for the construction of a house on the property. The contract between the parties stated that the Contractor was to supply all the materials and perform all the work. The respondent performed the majority of the construction work for a price of $153,594.00. The Kobylinski's paid for several items not completed by the respondent. They paid $6,600.00 for driveway work and the septic system, $6,254.00 for the well and water system connected to the house and $4,458.00 for two fireplaces. The respondent was charged with two offences under the ONHWP Act for violating ss.6 and 12 of the Act.

At trial, the Justice of the Peace acquitted the respondent of both charges and held that he did not fall within the definition of “builder” or “vendor”. Justice Downie dismissed an appeal from the Justice of the Peace’s acquittal of the respondent. The appeal judge held that the addition of fireplaces by the owner’s (Kobylinski's) did not take the construction by the respondent out of the definition of “builder” but the owners’ involvement in arranging and paying for the well and septic system did take the construction by the respondent out of the definition of “builder”.

The appellant was granted leave to appeal by Chief Justice Winkler. Downey, J.had declared that the definition of “builder” under the ONHWP is a person who undertakes the performance of “all the work and supply of all the materials” necessary to construct a completed home. Moreover, he held that the septic system was essential for a home to be considered functional and the fact that the owners arranged for this work meant that the respondent did not complete all work and supply of materials and thus could not be considered a “builder”.  The Court of Appeal did not agree with this analysis.  They commenced their review by discussing the purpose of the ONHWP Act and found that the Act required that a broad and liberal approach be taken to interpreting the meaning of the term “builder” in order to reflect the remedial purpose of the Act.

Further, the Appellate Court held that the Act contemplates that owners will often perform some work relating to a construction project. Given the purpose of the Act, it was important not to deny such owners New Home Warranty Program coverage. Moreover, the Court noted that a finding that a contractor who leaves some work for the owners to complete is not a “builder” would be inconsistent with the purpose of the Act. The jurisprudence is clear that the fact that the owners installed the water and septic systems did not mean that the respondent was not a “builder”.

The Court declared that the respondent’s unfinished work in constructing the home did not remove his duty to comply with the ONHWP Act and did not negate the owners’ warranty coverage under the Act.

The main issue that was decided on appeal was whether the appellant’s claim to long-term disability benefits was time-barred beyond the limitation period prescribed by her Employee Benefit Plan. The relevant provision of the “Claims” provision of the Plan read as follows:
No action or proceeding against the Planholder in respect of a claim under this plan shall be commenced within 60 days of the date on which proof of the claim is filed with the Administrator, nor after 2 years from the date of the happening of the covered event.
The appellant had suffered injuries from two accidents, one at work in 1993 and a subsequent motor vehicle accident in 1994. She applied for and received short-term disability benefits for 26 weeks. She subsequently applied for long-term disability benefits but her application was denied by Canada Life, the Plan administrator. An appeal was denied. In its reasons for denying the appeal, Canada Life stated that the medical opinion that the appellant provided was unsupported by any objective tests or other  substantiation of her claim. The appellant received a letter from Canada Life terminating her benefits effective November 21, 1995.

The appellant did not commence an action until 2006, 11 years after her claim was denied. She submitted that her claim was not time-barred for several reasons. The appellant stated there was ambiguity in the Plan document as there was no definition of “the covered event”. Thus, she claimed that the document must be read contra proferentem against the insurer. As a consequence, the appellant stated that there was no identifiable starting point for the limitation period, with the result that the claim was not time barred. Additionally, the other argument advanced by the appellant was that jurisprudence established that long term benefits that are payable monthly are governed by a rolling limitation period that runs for two years from each month that no payment was forthcoming. The effect was that the claim was commenced in time in respect of the payment for November 2004 and for all following payments as long as her disability continued.

In dismissing the appellant’s position, the Court noted that although there was no specific definition of the “covered event” in the Plan document, the covered event was discernable after reading the first three paragraphs in the document.  The Court asserted that there were two possible “covered events”. The first was the date when the individual provides initial proof of disability following 26 weeks of being continuously disabled. If payment did not occur, then the individual has two years to commence an action. The second covered event occurs when the individual is deemed no longer to be disabled because they have not provided satisfactory proof of their continuing disability. The individual would also have two years following that date to commence an action.

The Court referred to Wilson’s Truck Lines Ltd. v. Pilot Insurance Co., which involved a claim for accident benefits payable under the Insurance Act and contained a limitation period of one year “from the date on which the cause of action arose”. In that case, the court stated that the right to sue arose when the claimant had a right to what was being claimed, which was 31 days after the claim was filed with the insurer. Moreover, if the claimant was entitled to the benefits claimed, then his right to sue them accrued every 30 days thereafter and lasted for one year in duration each time. The Court considered the foregoing to be a prime example of a rolling limitation period.

The Court dismissed the appellant’s application of the rolling limitation period to his claim. For the rolling limitation to apply, the “covered event” would have had to occur every month, just as the cause of action accrued every month in the Wilson’s Truck case. However, each of the “covered events” only occurred once, not every month on an ongoing basis.

The Court agreed with the motion judge that the appellant’s action exceeded the two-year limitation period set out in the Benefit Plan. The appeal was dismissed. 

Langenecker v. Sauve

The appellant, Peter Langenecker, suffered significant injuries in a motorcycle accident in June 1994. In June 1995, he brought an action against the respondents and others alleging that their negligence caused him permanent injuries and disabilities. Fifteen years later (September 2010), the respondents brought a motion under Rule 24.01 seeking an order dismissing the action for delay. The motion judge granted the motion and dismissed the action. The appellant appealed the motion judge’s decision.

In reviewing the motion judge's decision, the Court applied the test under rule 24.01 for dismissal of an action for delay. They discussed three types of cases that justify an order for delay according to Lord Diplock.  The first are cases where the delay is caused by intentional conduct by the plaintiff or his/her counsel that demonstrates a disdain  or disrespect to the court process. This type of delay did not apply to the appellant's situation.

The second type of case discussed by the Court that justifies an order dismissing an action for delay has three characteristics.  The delay must be inordinate, inexcusable, and must give rise to a substantial risk that a fair trial of the issues in the litigation will not be achievable as a consequence of the delay. The inordinance of the delay is determined by reference to the length of time from the commencement of the proceeding to the motion to dismiss. The Court stated that there was no doubt that 15 years from the appellant's commencement of this action to the moment where the motion was dismissed, constituted inordinate delay.

The third requirement concerned the prejudice caused by the delay associated with to the defence's ability to put forward its case for adjudication on the merits. The Court emphasized that prejudice is inherent in long delays as memories fade, witnesses become unavailable, and as such there is a greater likelihood that documents and other potential exhibits may be lost. The respondents claimed that their inability to obtain an expert was caused by the delay in the prosecution of the claim and resulted in prejudice to their clients.
The Court declared that the appellants were unable to demonstrate that the motion judge committed a factual error in his characterization that the delay was "inexcusable". In support of the appellant's submission that the inference of prejudice was rebutted, counsel for the appellant submitted that two experts, one for each side, had been able to give written opinions on the reasonableness of the doctors' conduct based on the medical records. Furthermore, the appellant's proclaimed that the respondents were examined for discovery many years ago and therefore they had the ability to refer to the discovery transcripts to refresh their memory.  The Court rejected the appellant's arguments.  The experts' ability to offer an opinion based on the medical records presumed that the records provided an accurate or complete basis upon which to assess the reasonableness of the respondent doctors' conduct and the care they rendered.

In denying the appeal, the Court held that the motion judge applied the correct test for delay.  Moreover, the Court found that the motion judge's assessment of the facts revealed no reversible error.

- Alim Ramji, Toronto

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