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Theall Group LLP | Canada | 8 Jun 2021

'Additional insured' coverage and multiple insurers: duty to defend and allocation of defence costs

Insureds which suffer a loss may find that they are covered by multiple insurance policies for that loss. Such situations can arise inadvertently, or the existence of multiple overlapping policies may be by design. A number of issues may arise with the duty to defend, where there are overlapping or concurrent insurance policies. This article focuses on the duty to defend and how the courts......
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Theall Group LLP | Canada | 4 May 2021

Court of appeal overturns order requiring insurer to defend privacy class action

The Ontario Court of Appeal (ONCA) has released a decision that reiterates a key guiding principle in proceedings brought to enforce an insurer's duty to defend: the court must carefully review the underlying pleading and focus on the true nature of the claim, not simply the words used by the plaintiff in the underlying claim, to determine whether any of the claims could potentially be......
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KPMG Law | Canada | 28 Apr 2021

M&A considerations: court reiterates applicable law for employees terminated following transaction

The Ontario Court of Appeal recently commented on an employee's entitlement to reasonable notice of termination when their employer sells its business and the successor employer subsequently terminates the employee. The court confirmed that an employee's length of service with the vendor employer will be considered, together with their prior experience and the benefit of that experience to......
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KPMG Law | Canada | 7 Apr 2021

Employment litigation update: what do employers need to know?

This article covers three recent cases that employers should keep in mind. The first serves as a reminder that employment contracts must be carefully drafted to ensure compliance with the Employment Standards Act. The second makes clear that parties to employment contracts must be careful not to deceive one another and, where they have, must take appropriate steps to correct false......
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Lapointe Rosenstein Marchand Melançon LLP | Canada | 16 Feb 2021

Cold cut for franchisees! Supreme Court of Canada denies designated supplier's duty of care for pure economic loss

The Supreme Court of Canada recently dismissed the proposed class action brought by Mr Sub franchisees against Maple Leaf Foods for damages resulting from a listeria outbreak linked to Maple Leaf cold cuts. By ruling in Maple Leaf's favour, the majority of the court found that no duty of care is owed by an exclusive supplier for purely economic losses suffered by franchisees with which the......
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Smart & Biggar | Canada | 30 Nov 2020

Effectively using experts in IP litigation part two: practice

In IP litigation, the outcome of many high-stakes cases has turned on expert testimony. It is therefore important for litigators to spend time and effort to properly identify, select and prepare expert witnesses. Effective experts may need to construe complex claims through the eyes of a person skilled in the art, assess the state of common general knowledge, conduct tests to show......
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Lapointe Rosenstein Marchand Melançon LLP | Canada | 24 Nov 2020

Cutting the red tape: recent amendments to Ontario's franchise disclosure act

In 2017 the Ontario government enacted the Cutting Unnecessary Red Tape Act with the objective of alleviating unnecessary regulatory burdens for businesses. The act provided for a series of proposed amendments to Ontario's franchise disclosure legislation and ultimately came into force on 1 September 2020. The amendments include measures to clarify the province's franchise laws and temper or......
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Lapointe Rosenstein Marchand Melançon LLP | Canada | 22 Sep 2020

Surprise! Rescission notice can be served in a pleading

Ontario's Arthur Wishart Act (Franchise Disclosure) requires franchisors to provide adequate pre-contractual disclosure to potential franchisees, failing which a franchisee may be entitled to rescind its franchise agreement. When properly invoked, rescission by a franchisee imposes extensive obligations on the franchisor. The Ontario Court of Appeal recently dealt with the issue of whether a......
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Theall Group LLP | Canada | 15 Sep 2020

Concurrent duty to defend – a team sport

In a recent case, the Ontario Court of Appeal addressed three important elements of the duty to defend where there is concurrent coverage under two policies – namely, whether there was a concurrent duty to defend given the existence of an 'other insurance' clause, the obligation to pay ongoing costs and its allocation and the right to participate in the defence.
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Theall Group LLP | Canada | 21 Jul 2020

Novel case on data exclusion interpreted in favour of insureds

An Ontario judge recently interpreted a data exclusion in favour of the insureds, ordering the insurer to defend claims arising out of an alleged website security breach. This case reaffirms the principle that exclusions are to be read narrowly, not broadly. Particularly where the relevant policy provisions engage complex issues not yet judicially considered, the court may err on the side of......
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