Law Times

January 16, 2017

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Ottawa bus driver partially at fault for crash BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has upheld a find- ing of liability against an Ottawa bus driver for a fatal crash, despite the fact that the driver of the other vehicle was im- paired and had entered the inter- section on a red light. The appellate court confirmed the trial judge's ruling that the the bus driver, Raymond Richer, and the City of Ottawa, were 20-per- cent liable for the crash because Richer was speeding in winter conditions and had taken his eyes off the road momentarily as he ap- proached the intersection. "In our view, when the trial judge's reasons are viewed in their entirety, they reveal no error in her articulation of the applicable standard of care or in her applica- tion of that standard to the facts as she found them," said the decision, Gardiner v. MacDonald, by Jus- tices Eleanore Cronk, Russell Juri- ansz and Lois Roberts. The 2008 crash killed three people, including the driver of the other car, Mark MacDonald, and left the plaintiff Ben Gardiner with serious injuries. MacDonald's estate admitted liability for the accident, as he had been drinking before the crash and entered the intersection on a red light. But the trial judge, Ontario Superior Court Justice Giovanna Roccamo, determined the City of Ottawa and Richer were also liable for damages. Roccamo found that Richer could have avoided the collision if he had been driving under the 60- kilometres-an-hour speed limit. Even though Richer had the right of way, a professional driver is required to yield when they have the ability to avoid a collision, she said. David Elman, a partner with Borden Ladner Gervais LLP, says the decision serves as a reminder that right of way does not provide ANTI-SLAPP TOOTHLESS? Some courts have taken narrow view of new law P7 FOCUS ON Insurance Law P8 See Insurer, page 2 PM #40762529 $5.00 • Vol. 28, No.2 January 16, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Alisa Mazo says she was surprised by the deci- sion to find the City of Ottawa partially liable for a 2008 crash involving a bus. TRIAGE LAWYERS Based in hospitals to help patients, families P4 BY ALEX ROBINSON Law Times A judge has found a well- known firm liable for negligence after one of its tax lawyers failed to advise a client on tax consequenc- es concerning their family trust. In Ozerdinc Family Trust v. Gowlings, Ontario Superior Court Justice Marc Labrosse found Gowl- ing Laf leur Henderson LLP (now known as Gowling WLG) liable for negligence, for failing to advise Muharrem Ozerdinc and Marion Grimes of an impending deemed disposition on a family trust they set up for their children. "…I conclude that none of the experts has persuaded me that the Defendants did not, at least in part, cause the Plaintffs' tax consequences resulting from the deemed disposition rule," Labrosse said in the decision. Grimes and Ozerdinc retained lawyer Mark Siegel in 1990 to cre- ate a family trust for their four children, which would be dis- tributed among them when the youngest sibling turned 22. In 2007, Grimes decided her children would acquire property in the trust too early. So Siegel dis- solved the first trust and created a second one that would distribute the assets to them when the young- est child turned 30 years old. Rosanne Dawson, a former Gowlings lawyer who is also named as a defendant in the law- suit, wrote a legal opinion for Grimes and Ozerdinc in 2007, which stated there were no imme- diate tax consequences related to creating the second trust. There was also no mention of the deemed disposition date of 2011 of the first trust, according to the decision. Deemed disposition rules re- quire that every 21 years there is an automatic disposition of assets in trusts. The rules were created in the intention of stopping the handing down of property through gen- erations without taxation. Ronald Caza, the lawyer rep- resenting the plaintiffs, says that while Siegel created a new trust, the 21-year rule still applied. The plaintiffs claimed that Sie- See Lawyer, page 2 Hilary Book says a recent Ontario Superior Court decision reinforces the need for litigators to consider whether summary judgment is available. Photo: Robin Kuniski Ruling relates to tax consequences for family trust Firm found liable for negligence Follow Integrated Legal Marketing Solutions Put Your Digital Marketing Tactics into High Gear Untitled-2 1 2017-01-10 12:28 PM A daily blog of Canadian legal news ntitled-7 1 2017-01-10 2:54 PM

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