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Toronto Office

Ottawa Office

Forget Smith brings together an experienced team of lawyers who exemplify the highest standards in the industry, delivering expert, responsible legal advice and client-oriented, technologically sophisticated services.

With offices in Toronto and Ottawa, Forget Smith provides bilingual advice and services throughout Ontario, including the Greater Toronto Area, the National Capital Region, Eastern Ontario, Southwestern Ontario and Northern Ontario.

Our practice focuses on all aspects of advocacy on behalf of insurers, including commercial liability claims, road liability claims, motor vehicle litigation, personal injury and disability litigation, “slips and falls”, subrogated claims, coverage disputes, professional liability claims, homeowners’ property and liability claims, accident benefits claims, regulatory negligence, administrative law, and construction matters. 

Our team of lawyers have decades of collective experience, with over 75 trials, hundreds of reported decisions, and countless successful settlements to their credit.  Our lawyers also have extensive trial and appellate court experience, with regular attendances before the Superior Court, the Divisional Court, the Court of Appeal, the Supreme Court of Canada, the Environmental Review Tribunal, the Financial Services Commission, and other tribunals.  

Although we are proud of our record in court, we recognize that early and cost-effective resolution of cases may require innovative strategies to avoid and manage disputes.  Accordingly, our lawyers have particular expertise with a full range of alternative dispute resolution options, including negotiation, mediation, arbitration, and other customized ADR solutions.

By offering cost-management strategies without compromising our superior quality of service, we deliver value to our clients both in terms of results and cost-effectiveness.  In this way, every client file is handled not only with top-tier expertise but with a focus on the particular needs of the case, whether the client is locally based or a multi-national organization. 

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Recent Cases

Horner et al v Paramsothy et al, [2016] ONSC 3624

Date of Decision: June 03, 2016

Case Summary:

We successfully defended the plaintiffs' motion for partial summary judgement on the issue of liability.

The plaintiff, John Horner, brought this action in connection with a head injury he sustained after falling on the concrete basement floor at a construction site. Our client’s insureds – the general contracting company and its principle – were named as defendants.

Prior to the commencement of the civil action, the corporate defendant, Howell Inc. had been charged and plead guilty to an offence under section 77(2)(f) of the Occupational Health and Safety Act (OHSA), namely: failing to ensure that guardrails were installed on the open side of the second floor landing.  It was the plaintiffs’ position on the motion that the guilty plea and conviction under the OHSA were determinative of the defendants’ liability in the civil action.  They thus sought partial summary judgement affirming that the defendants negligently caused Mr. Horner’s injury, leaving only the issue of contributory negligence for the jury.  The plaintiffs further argued that the defendants were precluded from leading any evidence on the issue of liability and that to do so would constitute an abuse of process.      

On behalf of the defendants, we argued that:

  • the plaintiffs failed to seek or obtain leave contrary Rule 48.04 (which requires leave to bring a motion after an action had been set down for trial), and as such, their motion was improperly constituted;
  • even if leave had been sought, it ought to be refused;
  • bifurcation of issues of liability and damages was not available for jury trials without consent.

Most importantly, we took the position that there was no evidence before the court to support the relief sought.  At most, the OHSA guilty plea and conviction were evidence of the essential facts underlying the offence under section 77(2)(f) of the OHSA.  However, those facts on their own did not provide the court with sufficient evidence to make a determination on the question of liability, particularly in relation to the central issues of “causation” and the defendants’ “voluntary assumption of risk” defence . Thus, it could not be concluded that “but for” the lack of railings on the second floor landing, Mr. Horner would not have sustained his injuries.     

After a thorough review of the jurisprudence on abuse of process, Justice Sutherland accepted our argument in this regard. Given that there remained conflicting evidence as to the cause of Mr. Horner’s fall, Sutherland J. was unable to determine liability on the available record, even with the use of the broader fact-finding powers available to him under Rule 20.04(2.1).  As he also emphasised, the determination of the wilful assumption of risk defence could not be made without the hearing of all available evidence at trial.  Likewise, the issue of contributory negligence required to be adjudicated at a trial by the jury.

In sum, Sutherland J. rightly agreed with our submission that a summary judgement in this case did not give effect to the goals of timeliness, affordability and proportionality in view of the litigation as a whole. The motion for partial summary judgement was therefore dismissed.   


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