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March 5, 2018

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BY ALEX ROBINSON Law Times A n Ontario Court of Ap- peal justice has warned against "summary judg- ment at all costs" in her dissent of a ruling on the applica- tion of the doctrine of emergency in a personal injury case. In Isaac Estate v. Matuszyn- ska, a 2-1 decision upheld a rul- ing through summary judgment dismissing a claim brought by the estate and mother of a man, Glen Isaac, who died after hitting his head on a curb during an alterca- tion in 2009. During a drug deal in a park- ing lot, an argument broke out between Isaac and another man, who was sitting in the driver's seat of a car owned by one of the defen- dants, the decision said. After Isaac broke one of the car's front windows, the driver drove off, swerving and trying to kick Isaac, who was holding on to the car until he fell and hit the curb. The police determined Isaac's death was accidental and his mother started proceedings against various defendants, in- cluding the owner of the vehicle and a statutory third party — State Farm Mutual Automobile Insur- ance Company. The motion judge granted sum- mary judgment to the defendants finding that the doctrine of emer- gency applied and that, therefore, the driver could not be faulted for his reaction to Isaac's actions. The plaintiffs appealed the mo- tion judge's decision, arguing she had erred by granting summary judgment and by applying the doctrine of emergency. The Court of Appeal, however, found the judge had made no er- ror, that there was no genuine is- sue requiring a trial and that the appellant was asking the court to "reweigh the evidence" that was considered by the motion judge to reach a different conclusion. Insurance defence lawyers say the decision demonstrates the promise of the Supreme Court of Canada's 2014 decision in Hryn- iak v. Mauldin to improve the summary judgment process, par- ticularly in the insurance context. Russell Hatch, a partner with Blaney McMurtry LLP, who was not involved in the case, says he thinks Hryniak has had mixed $1-million crossclaim against firm heads to trial BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal is letting a $1-million counterclaim against Aird & Berlis LLP proceed to trial. A former client — Oravital Inc. — filed the counterclaim after the firm brought a claim against the company for $182,569 in unpaid accounts. A motions judge sum- marily dismissed the cross-claim and granted Aird & Berlis' claim, but the Court of Appeal found the matter should go to trial. The Court of Appeal over- turned a finding by the motion judge that the plaintiffs were aware of the value of damages and risks of litigation as they were sophisti- cated businesspeople. In Aird & Berlis LLP v. Oravi- tal Inc., the court said this find- ing was "a misapprehension of the solicitor's duty of care to advise the clients about the legal basis for damages and the risks of litigation." Lawyers say the motion judge's ruling would have had implica- tions for the profession if upheld, as it could have meant that prac- titioners would not have a duty to provide advice on certain issues a client was knowledgeable about. In 2010, Oravital retained Aird & Berlis to represent it in an ac- tion against a number of corpora- tions and individuals, claiming the defendants had wrongfully misappropriated its system, which is used to diagnose and treat oral infections. The firm represented Oravital for five years in the matter, which the motion judge described as "ac- rimonious and protracted" litiga- tion. Aird & Berlis then launched its claim against Oravital in 2015 af- ter the client retained new counsel, contending the company still owed $182,569 to the firm in unpaid fees. In the counterclaim it then filed, Oravital alleged the firm was negligent in its carriage of the retainer and had failed to provide CANNABIS LAWYER Province's approach criticized P6 FOCUS ON Corporate & Commercial Law P8 PM #40762529 $5.00 • Vol. 29, No. 8 March 5, 2018 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 FEDERAL BUDGET Government retreats on proposed reforms P5 See Goal, page 4 Geoff Hall says a recent Ontario Court of Appeal decision sends a clear message that it is part of a lawyer's duty to explain to clients the risks of litigation and the proper quantifi- cation of potential damages. See Duty, page 4 OCA rules on emergency doctrine Russell Hatch says insurers have shied away from bringing summary judgment motions in recent years as the costs can be quite prohibitive. Photo: Robin Kuniski Follow TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit THE LATEST NEWS THE BEST COMMENTARY DELIVERED WEEKLY FOR READING ON ANY DEVICE Untitled-2 1 2018-01-23 11:05 AM

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