Strung Mediations and Arbitrations Inc.

Bridging the Gap

Bridging the Gap

 

  John D. Strung

John D. Strung, B.Sc., M.Sc., LL.B.

Mr. Strung has a broad experience of more than 30 years as litigation counsel in Ontario. He has appeared as counsel at all levels of courts in Ontario as well as in various administrative tribunals, mediations and arbitrations.

He is experienced in the area of tort litigation, professional negligence law and in in all manner of insurance related litigation, including construction liability, products liability, directors and officers liability, property claims, pension fund litigation, and personal injury litigation.

Mr. Strung is based in Hamilton, Ontario and is available for mediations and arbitrations in the Golden Horseshoe from Toronto to St. Catharines and west to London and the Kitchener Waterloo region.

 
  E-mail: mediate@strung.me
Telephone: 416-548-4299
Fax: 647-477-3083
 
 
 

Commentaries:
Note: Right-click on a link to download the commentary in PDF format.

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  1. A Commentary on the 2012 Decision of the Supreme Court of Canada in Van Breda
 
In April 2012, the Supreme Court of Canada changed the rules for suing foreign torts in Ontario.
  2. Immunity to Third Party Claims *** Updated Nov. 9, 2012 ***
 
Three situations in which Third Party Claims can be struck by summary procedure.
  3. Priority Disputes Involving Commercial Vehicles, a Commentary on Security National v. Markel
 
In October 2012, the Ont. C. A. overruled established law on SABS priority involving commercial vehicles.
  4. Multiple Deductibles in Successive Motor Vehicle Accidents
 

In November 2012, the Ont. C. A. settled the issue of the applicability of multiple deductibles to successive auto accidents.

  5. Confusing the Contract and Tort Measures of Damages
 

The Ontario Court of Appeal, on Nov. 22, 2012 released its decision in Biskey v. Chatham, 2012ONCA802. This decision reminded me that one of the most commonly overlooked issues that I have seen in litigation over the years is the difference between the contract and tort measures of damage.

  6. Summary Judgment - Not Dead Yet? *** Updated Jan. 24, 2014 ***
 
Two Superior Court cases released post-Combined Air raise some interesting issues and indicate that Summary Judgement is still alive and well in Ontario.
  7. Court Uses s.106 of C.J.A. to Avoid Limitation Defence
 

The Ontario Court of Appeal, on Feb. 22, 2013, released its decision in Bruinsma v. Cresswell, 2013 ONCA 111. In that decision, the Court of Appeal invoked s.106 of the Courts of Justice Act to avoid a limitation defence. It remains to be seen if courts in the future will ignore this decision as a one-off based on a unique fact situation, or use it as a precedent to expand the ambit of s.106 of the Courts of Justice Act and re-introduce discretion into dealing with limitation periods.

  8. Jurisdictional Creepage - Van Breda Revisited - A commentary on Cesario v Gondek *** Updated Aug. 27, 2014 ***
 

Ever the wide-eyed optimist, in Commentary 1., above, I wrote that the Van Breda decision should put an end to suits in Ontario arising from torts in foreign jurisdictions. How wrong I was! In Cesario v. Gondek, the court allowed an action to proceed in Ontario against New York defendants with respect to an auto accident in New York State. Read my commentary to find out how the court did it and why I think the decision is wrong.

  9. Does s.18 of The Limitations Act, 2002 Apply Equally to Claims in Contract and Tort? A Commentary on Canaccord .v Roscoe
 
On a summary judgement motion in Canaccord v Roscoe, the motions court determined that the two year limitation period for indemnity claims running from the date of service of the statement of claim (as set out in s. 18 the Limitations Act, 2002) applies only to indemnity claims sounding in tort, not to contractual indemnity claims. The Court of Appeal addressed this issue for the first time in the appeal decision released June 7, 2013. Read the commentary to find out what the Court of Appeal decided and why.
  10. S.C.C. Settles Issue of Disclosure of Quantum in Pierringer Agreements
 

In Sable v. Ameron, released June 21, 2013, the Supreme Court of Canada settled the issue as to whether the settling parties must disclose the quantum of a Pierringer agreement to the non-settling parties.

  11. May Co-Plainitffs Attend Each Others' Discoveries?
 

The recent decision in Keasley v. Labelle highlights the seldom raised issue of whether and when co-plaintiffs may attend each others' discoveries and under what circumstances a defence motion to exclude them will be successful.

  12. S.C.C. Clarifies When a Law Firm May Act Against a Present or Former Client.
 

The Supreme Court of Canada, in C.N.R. v. McKercher, 2013 SCC 39, has clarified the rules as to when a law firm may act against present or former clients. This is an issue which has become increasingly problematical as law firms expand in size and scope. This case makes useful and interesting reading and should be at the top of the list of reading for any lawyer who, or whose firm, is or may be, in the situation of acting against former or present clients.

  13. S.C.C. Decides When Legislation is Retroactive, when Res Judicata Attaches, and how Stare Decisis is to be Applied
 

The decision of the Supreme Court of Canada in Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, (released Sept. 13, 2013) deals with some very interesting and unusual issues of statutory interpretation, res judicata and stare decisis. This is a must read for law junkies.

  14. Recent Appellate Decisions on Issue Estoppel and Abuse of Process
 
There have been a flurry of recent decisions at all levels of courts as to when a previous decision in criminal court or by an administrative tribunal will bar a subsequent tort or contract action.
  15. Whether a Homeowner’s Policy Must Respond to a Third Party Claim for Contribution for Injury to a Family Member
 
Homeowner’s insurance policies typically contain an exclusion for claims for damages brought by one family member against another. The purpose of this exclusion is to avoid the possibility of family members colluding to make a false claim. However, what happens when a family member sues an unrelated third party who in turn third parties one of the other family members? Does the exclusion apply, or must the insurer respond? The Ontario Court of Appeal decided this issue in Bawden v. Wawanesa on Nov. 26, 2013.
  16. When is an Order Final or Interlocutory? Issue Estoppel and Summary Judgment Motions ***Updated Dec. 23, 2013 ***
 

The Ontario Court of Appeal has recently delivered two very important judgments clarifying its earlier decision in Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.) as to when an order dismissing a summary judgment motion is an interlocutory order or a final order. This is an important issue as final orders can be appealed directly to the Court of Appeal, but interlocutory orders are appealed to the Divisional Court and require leave. As the time limits are different for the two types of appeal, misjudging whether an order is final or interlocutory can result in an appeal being filed late and dismissed on procedural grounds.

These decisions also determine when issue estoppel attaches to decisions made by a judge dismissing a summary judgment motion. Again this is a very important issue as it is obviously important to know what issues remain alive for trial after a failed summary judgment motion.

The Court of Appeal laid out some rules as to what judges must put in their reasons to trigger an issue estoppel and what counsel must include in drafting the resultant order. It is very important that counsel be aware of these rules as a lack of care in drafting an order can result in unexpected consequences.

  17. Stunning New S.C.C. Decision Turns the World of Summary Judgment on Its Head
 
On Jan. 23, 2014, in Hryniak v. Mauldin, 2014 SCC7, the Supreme Court of Canada delivered a breath-taking decision turning the world of summary judgement on its head and setting out the Court’s vision for what may presage future major revisions to our judicial system. After considering the Ontario Court of Appeal's reasoning in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, it lowered the bar of summary judgment, raised the bar for appeals, encouraged greater judicial control of the procedure and set out a new vision of our judicial system. The importance of this decision cannot be overstated.
  18. Ont. C.A. Determines Limitation Period for Underinsured Motorist Coverage under OPCF-44R - ***Updated Aug. 22, 2014 ***
 

On Feb. 4, 2014, in Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, The Ontario Court of Appeal decided the issue as to when the limitation period begins to run on a claim for underinsured motorist coverage under form OPCF-44R. (Note - the Supreme Court of Canada denied leave to appeal on Aug. 14, 2014)

  19. Ont. C.A. Broadens the Scope of Relief from Forfeiture - A Commentary on Kozel v. The Personal Insurance Company
 

On Feb. 19, 2014, in an important new ruling in Kozel v. The Personal Insurance Company, 2014 ONCA 130, the Ontario Court of Appeal significantly broadened the scope of relief from forfeiture under s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43. While this decision came in an auto context, it is of broad application to general contractual litigation.

In the same decision, the Court resolved the long-standing issue as to whether the relief from forfeiture provision in s. 98 of the Courts of Justice Act applies to contracts regulated by the Insurance Act in view of the existence of a narrower relief from forfeiture provision found in s. 129 of the Insurance Act.

  20. When Summary Judgment Motions Backfire *** Updated Dec. 29, 2014 ***
 
On March 21, 2014, the Ontario Court of Appeal released its decision in King Lofts v. Emmonds, 2014 ONCA 215. This was a claim for solicitor’s negligence. The defendants brought a motion for summary judgment to dismiss the claim. The motions court judge not only dismissed the motion but awarded summary judgment to the plaintiffs subject to an assessment of damages. The defendants appealed on the basis that, among other grounds, the plaintiffs had not brought a cross-motion for summary judgment in their favour and the motions court judge was therefore precluded from granting that remedy.
  21. Van Breda Revisited – The Forum of Necessity Exception
 

In Club Resorts Ltd. v. Van Breda, Supreme Court of Canada left as the sole exception to the real and substantial connection test, the possibility of allowing an action which did not meet that test to proceed on the basis of the doctrine of “forum of necessity”.

West Van Inc. v. Daisley, released by the Ontario Court of Appeal on March 27, 2014, was the first case in Canada in which a common law appellate court had to deal with the issue of forum of necessity directly.

  22. Ont. C. A. Considers the Duty to Defend an Additional Insured
 

On April 25, 2014, in Great Atlantic & Pacific Co. of Canada Ltd. v. Economical Mutual Insurance Co., the Ontario Court of Appeal addressed the issue of the extent of the duty to defend an additional insured under a commercial general liability policy. In the circumstances of this case, they determined that, notwithstanding the wording of the certificate of insurance, the insurance was not limited to claims for indemnity arising from the vicarious liability of the named insured. They also determined that the additional insured could claim its defence costs as damages from the insurer after trial.

  23. Whether a UMP Defendant is a Presumptive Factor Under Van Breda - A Commentary on Taminga v. Taminga *** Updated Nov. 24, 2015 ***
 

On June 18, 2014, in Tamminga v. Tamminga, the Ontario Court of Appeal addressed the issue of whether the fact that an insurer has been added as a defendant pursuant to underinsured or uninsured motorist coverage is a presumptive factor giving an Ontario court jurisdiction over foreign tortfeasors with respect to a foreign tort.

  24. A Court’s Inherent Jurisdiction to Dismiss for Delay - A Commentary on Wallace v. Crate's Marine Sales Ltd.
 
Can a court dismiss an action for delay using its inherent jurisdiction, or does Rule 24 exhaust the field? The Ontario Court of Appeal addressed this issue on Sept. 30, 2014.
  25. Discoverability to be Pleaded by Way of Reply - A Commentary on Collins v Cortez
 

The court of appeal held that, although it was in fact necessary to plead a discoverability argument, a plaintiff need not anticipate a limitation period defence when drafting her statement of claim. If a plaintiff does not plead discoverability in the statement of claim, the plaintiff may plead it by way of a Reply.

  26. Degree of Detail Required in Pleading Negligence - A Commentary on Khan v Lee
 
On Dec. 11, 2014, in Khan v. Lee, the Ontario Court of Appeal resolved conflicting lower court decisions as to the degree to detail required in pleading negligence in medical malpractice cases. While this decision was in the context of a medical malpractice case, it would seem that the same reasoning would apply to other cases of professional negligence.
  27. The Man on the Clapham Omnibus, Revisited - A Commentary on Fordham v. Dutton-Dunwich (Municipality)
 
Much of the common law of negligence rests on Lord Greer’s hypothetical reasonable man who rode the Clapham Omnibus. Would our common law be different if Lord Greer had chosen as his standard a Yorkshireman in a farm lorry? This issue was canvassed by the Ontario Court of Appeal in Fordham v. Dutton-Dunwich (Municipality), released Oct. 11, 2014.
  28. A Commentary on Kassburg v. Sun Life Assurance Company of Canada
 

This decision, released by the Court of Appeal on Dec. 29, 2014, covers a number of interesting and important issues:

  1. When can you reduce a limitation period by contract?
  2. What is the standard of review for construction of contracts?
  3. What is the standard of review for summary judgment motions?
  4. Can a motions court judge grant summary judgement in favour of the respondent on the motion on his own initiative absent a cross-motion?
  5. Is there a general trend by the Court of Appeal to reduce appeals by granting more deference to judges of first instance?
  29. Important New Ont. C.A. Decision on Expert Reports and Testimony - A Commentary on Moore v. Getahun *** ***Updated Sept, 17, 2015 ***
 

In the course of its reasons,delivered on Jan. 29, 2015, the Ontario Court of Appeal opined on the following issues:

    1. Is it improper for counsel to assist an expert witness in the preparation of the expert’s report?
    2. Did the 2010 changes to Rules 4 and 53 of the Rules of Civil Procedure make substantive changes to the rules of admissibility of expert evidence or merely codify the existing common law?
    3. Are draft reports and consultations between expert witnesses and counsel protected by litigation privilege?
    4. May a trial judge take into account statements made by an expert in the expert’s report when the report was not in evidence, but was provided to the trial judge as an aide memoire?

    Note: See also Commentary 31, below.

  30. Ont. C.A. Opines on “Trial By Ambush” - A Commentary on Iannarella v. Corbett
 
    1. What disclosure obligations survive setting down for trial.
    2. When and if undisclosed surveillance can be used for impeachment.
 

31. Ont. C.A. Resolves Issue of Whether Rule 53.03 Always Requires Experts to Provide a Report - A Commentary on Westerhof v. Gee Estate ***Updated Oct. 29, 2015 ***

 

On March 26, 2015, the Ont. C.A. resolved the issue as to whether Rule 53.03 requires the provision of expert reports before an expert who was not retained by a party for the purposes of litigation is permitted to testify. Experts in this category would include “participant experts” who form opinions based on their participation in the underlying events rather than because they were engaged by a party to the litigation to form an opinion, as well as “non-party experts” retained by a non-party to the litigation.

Note: See also Commentary 29, above

  32. Duty to Defend – “Illegal Operation” Exclusion - A Commentary on Haryett v. Lloyd’s Canada
 

The applications court judge held that an exclusion in an insurance policy which reads, "We will settle or defend, as we consider appropriate, any claim or suit asking for these damages" gave the insurer a discretion to decline both to defend and to settle. Is this correct? Does an "illegally operated" exclusion allow an insurer to refuse to indemnify and defend a drunken boater? Read our commentary.

  33. Ontario Court of Appeal Overrules Itself - A Commentary on Fernandes v. Araujo
 

In Fernandes v. Araujo, released Aug. 10, 2015, the Ontario Court of Appeal overruled its earlier decision in Newman and Newman v. Terdik with respect to its interpretation of the vicarious liabiliy section of the Highway Traffic Act.

What is more interesting than the vicarious liability issue itself, though, is the Court’s statements as to the circumstances in which it will reverse a prior decision.

  34. Jurisdictional Issues in Ex Juris Enforcement Actions - A Commentary on Chevron Corp. v. Yaiguaje
 

In Chevron Corp. v. Yaiguaje, released Sept. 4, 2015, the Supreme Court of Canada decided the issue of whether ex juris enforcement actions are governed by the “real and substantial connection” test in Club Resorts Ltd. v. Van Breda.

  35. Failure to Mediate in Good Faith - A Commentary on Ross v. Bacchus
 
In Ross v. Bacchus, the Ontario Court of Appeal addressed the issue of whether an insurer who attended a half-day mediation after stating it had no intention of settling could be held liable for punitive costs under s.258.5 of the Insurance Act.
  36. Good Faith in Contractual Relations - Misrepresentation by Omission - A Commentary on Canaccord v. Pilot
 
In Canaccord v. Pilot, the Ontario Court of Appeal discussed good faith in contractual relations and misrepresentation by omission. This decision raises the bar on contracting parties' honesty and suggests that pre-2014 case law on the subject may no longer be valid.
  37. Standard of Appellate Review for Contractual Interpretation - A commentary on MacDonald v. Chicago Title Insurance
 

In MacDonald v. Chicago Title Insurance, the Ontario Court of Appeal distinguished the Supreme Court of Canada decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, and held that a different standard of review applies to the interpretation of a standard form contract like a contract of insurance. ***Updated Sept, 15, 2016 and Oct. 20, 2016***

  38. How to Interpret the Fault Chart - A commentary on State Farm Mutual v. Aviva Canada *** Updated Sept. 22, 2016 ***
 
In a decision released Dec. 24, 2015, the Ontario Court of Appeal changed the rules on how to interpret s. 5(1) of the automobile insurance Fault Chart.
  39. Ont. C.A. on Damages in a Fixed Term Employment Contract - A Commentary on Howard v. Benson Group Inc. *** Updated June 28, 2016***
 

When an employer terminates a fixed term employment contract before its expiry date, are damages payable on the basis of "reasonable notice" or on the basis of the payment to the end of the fixed term? Does the employee have a duty to mitigate?

  40. Supreme Court of Canada on Faulty Workmanship Exclusion and Standard of Appellate Review for Contractual Interpretation - A commentary on Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co..
 

On Sept. 15, 2016, the Supreme Court of Canada released its decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.This decision dealt with two important issues:
1.         The standard of review on appeals involving the interpretation of standard form contracts.
2.         The interpretation of the “faulty workmanship” exclusion in builders’ risk policies.

 

41. Ont. C.A. Sets Out Criteria For Proving or Rebutting Prejudice Allegations on Motion to Amend - A Commentary on 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company

 
On Jan. 18, 2017, the Ontario Court of Appeal released its decision in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, an interesting case on the issue of raising prejudice to resist a motion to amend pleadings.

 

Strung Mediations and Arbitrations Inc.