Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 4 www.canadianlawyermag.com NEWS BRIEFS Tribunal rules over spilled tea The Ontario Licence Appeal Tribunal ruled that an applicant could not seek auto injury benefits over hot tea, spilled on herself as she sought to secure the lid of the takeout cup while stopped at a red light. The tribunal in M.P. v. Allstate Insurance Company of Canada, 2020 said the use of the vehicle was incidental to the injury, which was caused by the drive-through employee and the applicant in both failing to secure the lid. PI lawyer says when pandemic ends, Zoom should remain By forcing lawyers and other parties to a legal dispute to operate through video-conferencing, the COVID-19 pandemic has produced a new flexibility for all involved, and that has resulted in files being completed faster and more efficiently, says Ryan Naimark, founder of Naimark Law Firm, a plaintiff- side personal injury firm. "Once people became aware of the technology and started to use the technology, most people liked it and my expectation is that things are never going to go back. The genie's out of the bottle," says Naimark. PI lawyer takes aim at Uber and Toronto David MacDonald, a partner at Thomson Rogers, has filed a statement of claim against Uber Canada and the City of Toronto, among other defendants, after one passenger died and one was severely injured when the Uber in which they were riding was rear-ended on the Gardiner Expressway. While the statement names the two drivers, MacDonald says the wider responsibility falls on the rideshare app company and the city for creating the circumstances of this accident. Report says B.C. assisted-living regime is struggling The Canadian Centre for Policy Alternatives, the Hospital Employees' Union and the B.C. Health Coalition have released a report concluding that the assisted-living sector in B.C. is under-regulated and under-researched. The report found that many seniors in assisted-living residences seemingly do not meet the legislative requirements for assisted living. The report urged B.C.'s Seniors Advocate to conduct a review of the sector that considers feedback from seniors, their families and front-line workers. Ontario AG considers removing juries from civil trials In a letter obtained by Canadian Lawyer, Ontario Attorney General Doug Downey has sought the input of key stakeholders in the legal community about the possibility of removing juries from civil trials to help address additional court backlog resulting from the COVID-19 pandemic. "I think it's bold; I think it's appropriate," says Steve Rastin, managing partner at Rastin Law Trial Lawyers. "I think what the attorney general is doing is giving some thought to how are we going to deal with the massive backlog that's in the system right now." Appeal leaves questions about fiduciary duty in clinical trials Lawyers on Stirrett v. Cheema weigh in on the legal and policy implications of the appeal AN APPEAL in Stirrett v. Cheema, 2020 ONCA 288, has resulted in success for the appellants, including a research physician. Lawyers on the appeal have highlighted the significant policy implications of this case. The suit stemmed from the death of David Stirrett, a participant in a clinical research trial, who died of complications arising from an angiogram he underwent as part of the trial. His widow sued the two physicians who performed the angiogram as well as the researcher, Bradley Strauss. At trial, the jury found that Strauss alone was negligent in failing to update the sample size of his study, failing to set up a data safety monitoring board and failing to submit any deviations in protocol to the research ethics board. But it found that this negligence did not cause Stirrett to undergo the angiogram, applying a "but-for" test. The trial judge, Justice Grant Dow of the Superior Court, found that Strauss owed an ad hoc fiduciary duty to Stirrett and breached that duty in the negligence found by the jury. He said that with such a duty owed, causa- PERSONAL INJURY UPDATE

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