For those who have been following Dispatches from the Middle, I’m very pleased to say that Volume Two is now published.

Dispatches from the Middle, Volume Two: Fault brings together 48 essays examining a subject that runs through virtually every corner of civil litigation: fault.

The essays began separately, prompted by cases, developments in the law and questions arising from practice. But as I began assembling them, I realized they were collectively examining something larger: how our civil justice system decides who is legally responsible when something goes wrong.

The book ranges from duty of care, causation and contributory negligence through motor vehicle accidents, occupiers’ liability, professional negligence, medical malpractice, social host liability, defamation and some of the emerging frontiers of negligence law.

Writing these essays from the perspective of a mediator has also made me think differently about fault. Courts ultimately have to decide it. At mediation, we have a somewhat different task. We have to assess the evidence, the competing arguments and the uncertainty, and then decide what that risk is worth.

Courts decide fault. Mediators price it.

Many of the ideas in this book first took shape here, through Dispatches from the Middle, so it seems particularly appropriate to announce its publication here first.

Thank you to everyone who has been reading, commenting, corresponding with me and encouraging me to keep writing. I hope you enjoy Volume Two.

Dispatches from the Middle, Volume Two: Fault is now available in paperback on Amazon.

View Volume Two on Amazon: https://www.amazon.ca/gp/product/B0HH7SGBNS

Over the past several months, I have been assembling the second volume of Dispatches From The Middle.

This volume has developed rather differently from the first, Dispatches from the Middle: Volume One - Civil Rules Reform (still available on Amazon in both e-book and paperback editions^[1]). The individual essays in this second volume were written separately, prompted by cases, developments in the law, and questions arising from practice. But as I began bringing them together, I realized that they were collectively examining a much larger and more fundamental subject: fault.

The result is a book that begins with the foundations of legal responsibility and follows fault through the many different places it appears in civil litigation, eventually arriving at the question I encounter most often from the mediator’s chair: not simply who is at fault, but what the uncertainty surrounding fault is worth.

Rather than try to describe the book, I thought before I publish, I would share its preface.

PREFACE

This volume is about fault.

That sounds simple enough. Lawyers spend much of their professional lives arguing about who was at fault. Someone drove too quickly, failed to clear the ice, missed a diagnosis, served too much alcohol, failed to supervise, gave bad advice, ignored a warning, or simply did something that another person says should never have been done.

But after more than three decades working in Ontario’s civil justice system, I have come to think that fault is considerably more complicated than that.

For most of my career, I looked at fault from one side of the table or the other. I practised as both plaintiff and defence counsel. Since becoming a full-time mediator, I have had the advantage of sitting in the middle, listening to both sides explain, often with complete conviction, why responsibility lies somewhere else.

That changes the way you see things.

Fault in civil litigation is rarely a simple question of who was right and who was wrong. It is a legal construct built from duty, standard of care, causation, foreseeability, evidence, credibility, statutory rules, and sometimes public policy. It can be shared. It can be shifted. It can be presumed by legislation. It can exist without producing meaningful compensation. And occasionally conduct that appears blameworthy in an ordinary human sense does not amount to legal fault at all.

That distinction between blame and legal responsibility runs through this book.

The essays begin with first principles because that is where fault itself begins. Before asking who caused an accident or who should pay for its consequences, the law asks whether an obligation existed in the first place. What duty was owed? What standard of conduct did the law require? What risk was reasonably foreseeable? Only then do we reach the questions that tend to dominate litigation: was the standard breached, did the breach cause the loss, and how much of that loss should properly be attributed to it?

Those questions sound remarkably stable. And they are.

The circumstances in which we ask them, however, are anything but.

The cases discussed in these pages range from the familiar world of automobile collisions, pedestrian accidents, bicycles, motorcycles, commercial vehicles and slip-and-falls to physicians, lawyers, insurance brokers, dog owners, social hosts, schools, boats, aircraft, elevators, beauty salons, e-scooters and defamation. Near the end of the book, the discussion reaches autonomous vehicles and the emerging technologies that will inevitably create the next generation of negligence claims.

What struck me while assembling these essays is how remarkably durable the underlying law has proven to be. The world changes. The machinery changes. The risks change. The same fundamental questions remain.

Did someone owe a duty of care? What did reasonable care require in the circumstances? Did the conduct cause the loss? Did the injured person contribute to it? If several people were responsible, how should responsibility be divided?

The common law has been asking versions of those questions for generations. As I discuss toward the end of this volume, autonomous vehicles will not make negligence law obsolete. They will simply give us more actors, more technology and more complicated facts to which familiar principles must be applied.

There is another theme running through these essays that became more apparent to me as the collection grew.

Fault is ultimately about evidence.

The law may provide the framework, but facts decide cases.

A beautifully constructed legal theory cannot overcome a missing record, an unreliable witness, an unexplained gap in treatment, an inconsistent account, damaging surveillance, a poorly documented inspection system, or an expert opinion that does not survive scrutiny. Conversely, a case that appears doubtful in the abstract can become compelling when the evidence forms a coherent and credible whole.

I have seen that repeatedly from the mediator’s chair. In personal injury litigation in particular, credibility can become a form of currency. Surveillance that merely shows a plaintiff having a good day may mean very little. Surveillance that proves the plaintiff was untruthful about what he or she could do may change the value of the case entirely.

That is why so many of these essays return to proof, even when ostensibly discussing doctrine.

The same is true of causation. The law can describe the but-for test in a sentence. Applying it to a human life is another matter entirely. People arrive at accidents with histories. Bodies deteriorate. Conditions overlap. Symptoms fluctuate. Other events intervene. The thin skull and crumbling skull doctrines attempt to impose legal structure on those realities, but in the end the result still depends upon evidence and credibility. The law compensates genuine vulnerability while refusing to make a defendant responsible for deterioration that would have occurred anyway.

Fault is also rarely binary.

One of the recurring lessons of civil litigation is that several things can be true at once. A driver may have been negligent and the pedestrian inattentive. An occupier may have maintained an inadequate system while the plaintiff failed to watch where she was walking. Several defendants may each have contributed to the same loss. A plaintiff may have suffered a genuine injury while overstating its consequences.

The law has mechanisms for dealing with those uncomfortable middle grounds: contributory negligence, apportionment, joint and several liability, causation principles, statutory presumptions and damages rules. Those doctrines matter enormously because real life seldom divides itself neatly into winners and losers. Liability more often exists along a spectrum.

That observation leads to the final theme of the book, and perhaps the one that most reflects where I sit today.

Courts decide fault. Mediators price it.

A judge ultimately has the luxury—or burden—of deciding what happened. A mediator does not. Neither do the lawyers and insurers trying to settle a case before trial. We work in probabilities.

How likely is a judge to accept this witness? How damaging is that document? What happens if the expert is rejected? Is the plaintiff ten per cent contributorily negligent or forty? Will the statutory defence succeed? What happens if the judge sees the facts differently? And how much will it cost everyone to find out?

Those questions explain why the legal value of a case and its settlement value are not the same thing. Settlement value is damages adjusted for risk, including the risks of liability, causation, credibility and apportionment, together with the cost and uncertainty of the litigation process itself.

That is what mediation does when it is working properly. It does not determine who is right. It translates competing legal arguments into assessments of risk, and those assessments of risk into decisions about settlement.

In that sense, the final chapter, Pricing Fault, is not simply another essay in this collection. It is where the preceding forty-seven chapters ultimately lead.

This book began with a question: where does legal responsibility begin?

It ends with another: what is the uncertainty surrounding that responsibility worth?

Everything between those questions is the law of fault as I have experienced it—not simply in reported decisions, but in discoveries, examinations, expert reports, negotiations, courtrooms and, increasingly, mediation rooms.

These essays were originally written separately, at different times and in response to different cases, developments and questions that caught my attention. I have deliberately preserved that character. This is not intended to be a textbook or comprehensive treatise on Canadian negligence law. It is a collection of observations from practice, informed by the cases and statutes that shape the disputes I see.

If there is one conclusion I have reached after spending a professional lifetime around these cases, it is that fault is simultaneously more stable and more uncertain than it first appears.

The principles endure.

The facts change.

And somewhere between the two lies the answer.

Shawn Patey

Dispatches From The Middle, Volume Two: Fault is now in its final stages. I’ll share more about the book, including publication details, here as it gets closer to release.

^[1] https://www.amazon.ca/Dispatches-from-the-Middle/dp/B0GPLDC7W6)

Most of the law of fault begins with a familiar question: did the defendant act as a reasonable person would have acted in the circumstances? We identify the duty, determine the applicable standard of care, examine what happened, and decide whether the defendant fell below that standard. The process is deeply rooted in the common law and, for the most part, places the burden upon the plaintiff to prove the case.

But the common law does not always have the last word. Throughout my Substack, I have considered several areas in which the Legislature has intervened in that ordinary process. Motorists who strike pedestrians^[1] and cyclists may encounter a reverse onus^[2]. Dog owners may be liable without proof that they knew their dog was dangerous or that they themselves were negligent^[3]. Occupiers owe a duty whose modern form is prescribed by statute^[4]. Municipal road authorities operate within a detailed statutory regime that both imposes obligations and provides statutory defences^[5]. Each of these areas can be examined separately, and usually is, but there is a larger point connecting them. Sometimes the Legislature does more than regulate conduct. It changes the architecture of fault.

It may change who bears the burden of proof. It may remove something the plaintiff would otherwise have to prove. It may replace an old common-law rule with a statutory standard. It may provide a defendant with a defence that would not otherwise exist. In some circumstances, it may effectively decide in advance which party should bear a particular risk. For anyone assessing liability, particularly at mediation, that distinction matters. Before asking who was at fault, we sometimes need to ask a more fundamental question: what rules has the Legislature chosen for deciding fault in this particular kind of case?

Breaching a Statute Is Not the Same Thing as Statutory Liability

There is an important distinction at the outset. The fact that a defendant has violated a statute does not ordinarily mean that the defendant is automatically civilly liable. Canadian law does not generally recognize an independent tort of breach of statutory duty merely because legislation has been contravened. A statutory breach may be important evidence of negligence, and the statutory requirement may provide a useful indication of the standard of reasonable conduct, but liability ordinarily remains grounded in negligence.

The Supreme Court of Canada established that principle in the 1983 decision The Queen (Canada) v. Saskatchewan Wheat Pool^[6], a case well-known to any first year law student. The case arose after the Saskatchewan Wheat Pool loaded wheat onto the bulk carrier ship Frankcliffe Hall at Thunder Bay which was later discovered to be infested with rusty grain beetle larvae. The infestation could not be detected by visual inspection and was discovered only through testing after the vessel had sailed, requiring the Canadian Wheat Board to divert the ship, fumigate the grain and incur approximately $98,000 in expenses. Significantly, the Wheat Board did not allege negligence. It relied entirely upon the fact that the Pool had delivered infested grain contrary to the Canada Grain Act^[7] and argued that the statutory breach itself entitled it to recover its loss.

The Supreme Court rejected that approach. Although the statutory prohibition had been breached, the evidence showed that the Pool had operated its terminal according to accepted industry standards, regularly inspected for infestation, and followed the inspection procedures established by the Canadian Grain Commission. The infestation simply could not have been discovered through those procedures before the vessel sailed. The Court held that Canada should not recognize a separate tort of statutory breach, nor should an unexcused statutory violation automatically constitute negligence per se. Instead, a statutory breach that causes the plaintiff’s loss may be evidence of negligence, and the statute itself may provide a useful standard against which reasonable conduct is measured, but the ordinary requirements of negligence, including fault and causation, remain. Because negligence had neither been pleaded nor proven, the Wheat Board’s claim failed.

That distinction is easy to overlook. A driver who exceeds the speed limit has breached the Highway Traffic Act^[8], but the plaintiff must still connect that conduct to negligence and causation. A regulatory violation by a business may be powerful evidence that reasonable care was not taken, but the regulatory offence and the civil claim remain conceptually different. The distinction is an important one. Sometimes the Legislature does more than tell us what people may or may not do. It changes the rules by which responsibility for the consequences of their conduct will be determined.

The Reverse Onus: When the Defendant Must Explain the Accident

The ordinary negligence action begins with the plaintiff carrying the burden of proof. The plaintiff alleges negligence and must establish it on a balance of probabilities. Section 193 of Ontario’s Highway Traffic Act^[9] provides an important exception. Where a person suffers loss or damage by reason of a motor vehicle on a highway, the legislation places upon the owner, driver, lessee or operator the burden of proving that the loss did not arise through that person’s negligence or improper conduct (s.193(1)). The provision does not apply to collisions between motor vehicles or to claims by passengers in the circumstances specified by the section (s.193(2)). Its practical importance is therefore most apparent in pedestrian and cyclist cases.

The significance is greater than a technical rule about evidence. The Legislature has altered the starting position. A pedestrian struck by a motor vehicle still has to establish the factual foundation necessary to engage the provision, but once it applies, the motorist cannot simply sit back and insist that the pedestrian prove precisely what the driver did wrong. The driver bears the burden of demonstrating an absence of negligence or improper conduct. Check out my Substack from last year, “Proving No Negligence: The Reverse Onus in Pedestrian Knock-Downs”.^[10]

Ontario courts have repeatedly treated the provision as a genuine reverse onus. In Sanson v. Paterson^[11], the plaintiff was cycling westbound on College Street in Toronto and had stopped at a red light in a lane shared by bicycles and cars. The defendant driver pulled up in the same lane and, when the light turned green, accelerated into the intersection without looking again to determine where the cyclist was. His vehicle struck her bicycle, throwing her to the pavement. The trial judge found that the driver had been focused on manoeuvring around parked cars ahead rather than ensuring that he could safely pass the cyclist, and held that he had failed to discharge the reverse onus under s. 193 of the Highway Traffic Act.

The Court of Appeal upheld that conclusion. The important point was not simply that the cyclist had been struck by the vehicle, but that the driver bore the burden of disproving his own negligence. His admitted failure to look at the cyclist as he began moving through the intersection fell short of what the Court described as the “minimum requirements of basic prudence.” Because he had failed to establish that the collision did not result from his negligence or improper conduct, he had not discharged the statutory onus. The Court also upheld the finding that the cyclist had done nothing to contribute to the collision, leaving the driver wholly responsible.

This does not make the motorist an insurer of a pedestrian’s safety, nor does it eliminate contributory negligence. A pedestrian may step unexpectedly into traffic. A cyclist may disregard traffic controls or place himself or herself in a position of obvious danger. The plaintiff’s conduct remains relevant. There is, however, a crucial distinction between proving that the plaintiff was negligent and proving that the defendant was not. Showing contributory negligence by the plaintiff does not itself discharge the driver’s statutory burden. The driver must establish the absence of negligence or improper conduct on the driver’s own part, after which the plaintiff’s contribution to the accident can be considered in the apportionment of responsibility. I commend to the reader my recent article “Whose Fault Is It Anyway: Contributory Negligence and the Value of Risk”.^[12]

That distinction can have considerable settlement significance. A pedestrian case that appears uncertain under an ordinary negligence analysis may look quite different once the statutory onus is properly applied. The facts have not changed, but the legal lens through which those facts are viewed has.

Dog Owners: When Negligence Is No Longer the Question

The Dog Owners’ Liability Act^[13] goes considerably further. Historically, liability for injuries caused by animals involved common-law rules including the doctrine of scienter^[14], the familiar notion that an owner might be liable where the animal had demonstrated a dangerous propensity and the owner knew of it. The modern Ontario statute largely removes that inquiry in the case of a dog bite or attack.

Section 2^[15] provides that the owner of a dog is liable for damages resulting from a bite or attack. More importantly, the statute expressly provides that liability does not depend upon the owner’s knowledge of the dog’s propensity or upon fault or negligence by the owner.

That represents a profound legislative choice. The central question is no longer whether a reasonable dog owner would have foreseen the attack. The plaintiff does not have to establish that the dog had bitten someone before. The owner cannot necessarily escape liability by demonstrating that the dog had always been gentle, that reasonable precautions had been taken, or that the attack was completely unexpected. The Legislature has essentially allocated the risk of the dog’s conduct to its owner.

The Ontario Court of Appeal has recognized the statutory displacement of the former common-law requirements associated with scienter. The significance of the legislation is that the injured person need not establish the dog’s dangerous propensity, the owner’s knowledge of that propensity, or negligence by the owner as the foundation for liability^[16].

Even here, however, fault has not entirely disappeared. The statute specifically permits damages to be reduced according to the degree to which the plaintiff’s own fault or negligence caused or contributed to the loss. An owner may therefore be liable even though personally blameless, while the plaintiff’s recovery may nevertheless be reduced because of the plaintiff’s conduct. That produces an interesting hybrid. Liability on one side does not depend upon fault, while apportionment on the other side still may. The result demonstrates how legislation can preserve fault for one purpose while removing it from another.

Occupiers’ Liability: Replacing the Old Categories

The Occupiers’ Liability Act^[17] illustrates a different form of legislative intervention. The Legislature did not simply reverse an onus or impose liability without negligence. Instead, it replaced much of the old common-law structure governing the duties owed by occupiers to people entering their property with a statutory duty based upon reasonable care.

The distinction matters historically. The common law once attached considerable significance to the status of the entrant and divided visitors into categories that affected the duty owed^[18]. Ontario’s legislation moved away from that approach and imposed a more general obligation upon an occupier to take reasonable care in all the circumstances to see that persons entering the premises are reasonably safe.

The Supreme Court of Canada’s decision in Waldick v. Malcolm^[19] remains important in understanding that change. The plaintiff was visiting his sister and brother-in-law at their rural farmhouse when he slipped on their icy parking area and fractured his skull. Although the occupiers knew of the icy conditions, they had neither salted nor sanded the area, relying in part on the practice of other residents in the rural community. The Court explained that the legislation replaced and harmonized the former common-law duties and imposed an affirmative obligation upon occupiers to take reasonable care for the safety of people permitted onto their premises. The fact that it may have been customary in the area not to sand or salt driveways did not excuse doing nothing in the face of clearly dangerous conditions.

The underlying concept remains reasonableness. The occupier is not an insurer, and the mere occurrence of an accident does not establish liability, but the source and formulation of the obligation have changed. That can also affect defences. In Waldick, the plaintiff knew that the laneway and parking area were icy and had taken particular care when walking across them, but the Supreme Court held that knowledge of the danger was not the same as willingly assuming the legal risk of injury. The statutory exception was interpreted narrowly and consistently with the traditional doctrine of volenti^[20], namely that the plaintiff must, in substance, have accepted not merely the physical danger but the legal risk, thereby absolving the occupier of responsibility.

The broader lesson is that once legislation occupies the field, we cannot safely approach the case as though we were dealing only with ordinary negligence principles. The statute must come first, because it tells us both the nature of the duty and the circumstances in which that duty may be modified.

Municipalities: Liability Within a Legislative Framework

Municipal road-maintenance cases demonstrate yet another way in which legislation can reshape fault. A municipality is not judged simply by asking what an ordinary private landowner or contractor would have done. Municipal liability for highway maintenance operates within the framework established by the Municipal Act, 2001^[21] and the Minimum Maintenance Standards^[22] enacted under it.

The legislation imposes obligations, but it also recognizes the practical realities under which municipalities operate. They maintain enormous road systems with finite resources, changing weather conditions and competing priorities. The statutory regime therefore does not simply tell municipalities what they must do. It also defines circumstances in which compliance with prescribed standards may provide a defence.

The result is that a case which superficially looks like an ordinary negligence claim involving an icy road, a pothole or accumulated snow, may turn upon detailed statutory and regulatory questions. What class of road was involved? What standard applied? Had the condition reached the prescribed threshold? When was the municipality required to respond? Did the Minimum Maintenance Standards actually address the alleged failure? Those questions may be every bit as important as the traditional negligence question of whether the municipality acted reasonably.

The Ontario Court of Appeal’s decision in Giuliani v. Halton (Regional Municipality)^[23] illustrates the importance of asking the last question carefully. The plaintiff lost control of her vehicle on Derry Road in Milton at about 7:00 a.m., after approximately two centimetres of snow had fallen and traffic had compacted the snow into ice. She crossed into the oncoming lane, collided with another vehicle and was seriously injured. The evidence established that the municipality had advance warning of the snowfall but had not adequately monitored the weather or deployed its winter-maintenance resources; salting operations did not begin until approximately 15 minutes after the accident.

The municipality relied upon the Minimum Maintenance Standards, but the Court concluded that the particular provisions relied upon did not answer the alleged failure to monitor weather conditions and deploy resources before the roadway became icy. The applicable standard for icy roads dealt with treatment after the municipality became aware that a roadway was already icy. It did not address reasonable steps that should have been taken to prevent the ice from forming in the first place. Statutory protection could not simply be assumed because the accident involved winter maintenance.

The case illustrates another recurring feature of statutory fault regimes. The statute may help the plaintiff in one respect and protect the defendant in another. The legislation has struck a balance, and the Court’s task is to apply that balance rather than create a different one.

Different Ways of Changing the Rules

The examples I have discussed in this article demonstrate that statutory intervention can occur at several different levels, and the distinctions are important. Sometimes the Legislature changes the burden of proof without necessarily changing the underlying concept of negligence. Section 193 of the Highway Traffic Act is the obvious example. The question remains whether the motorist was negligent, but the burden of answering that question has been altered.

Sometimes legislation changes the basis of liability, as with dog owners, where liability for a bite or attack does not depend upon negligence or knowledge of a dangerous propensity. Sometimes it changes the source and content of the duty, as the Occupiers’ Liability Act did when it replaced the old common-law categories with a generalized statutory duty of reasonable care. Sometimes it establishes a special liability and defence structure, as occurs with municipal highway maintenance.

Those distinctions should not be blurred together under the general heading of “statutory liability.” They represent different legislative techniques, and they produce different consequences. Understanding which technique the Legislature has used is often the first step toward understanding how fault will actually be determined.

Statutory Fault Is Still Fault in Context

One of the themes running throughout my Substack is that fault cannot be determined in the abstract. It depends upon context including the relationship between the parties, the nature of the risk, what each person knew or ought to have known, and what the law required of them. Statutory regimes add another layer to that context because they represent legislative judgments about risk.

Why should the motorist rather than the pedestrian bear the burden of explaining how the collision occurred? Why should the owner rather than the victim ordinarily bear the risk of a dog attack? Why should occupiers owe an affirmative duty to make premises reasonably safe? Why should municipalities be entitled to rely upon defined maintenance standards? Those are ultimately policy choices about who controls the risk, who possesses the relevant information, who is best positioned to prevent the harm, and how competing social interests should be balanced.

The common law makes many of those judgments incrementally, case by case, through the accumulated experience of judicial decisions. Legislation can make them directly. It can alter a rule that has existed for decades, replace it altogether, or preserve the basic common-law principle while changing who has to prove what. That is why the statute itself must always be part of the liability analysis rather than an afterthought added once the common-law analysis has been completed.

Why It Matters at Mediation

These distinctions matter at mediation because the legal significance of a fact depends upon the regime in which it is being assessed. A driver’s statement that “I didn’t see the pedestrian” takes on a different significance where the driver bears the statutory burden of disproving negligence. A dog owner’s lack of knowledge of any previous aggression may be beside the point. A plaintiff’s knowledge that a driveway was icy does not necessarily amount to acceptance of the legal risk, and compliance with ordinary winter-maintenance practices does not establish a municipal defence unless the applicable statutory requirements are actually met.

That matters to settlement value. Parties can spend considerable time debating a fact that appears important through the lens of ordinary negligence but carries much less weight once the governing statutory regime is understood.

Read the Statute Before Arguing About the Facts

From my seat, the practical lesson is simple. Where a statutory liability regime applies, read the statute before becoming too committed to a theory of fault. Ask whether the legislation replaces or supplements the common law, who bears the burden of proof, what the plaintiff must establish, what defences remain available, and whether contributory negligence can still reduce recovery.

Only then can the evidence be properly evaluated. Starting with the facts and discovering later that the Legislature has changed the rules by which those facts are judged is an easy way to misjudge liability.

When the Legislature Picks a Side

The Legislature does not necessarily “pick a side” by favouring plaintiffs or defendants. Rather, it decides how particular risks and responsibilities should be allocated. Statutes may impose liability, limit it, reverse an evidentiary burden, create a defence or remove the need to prove an element that the common law would otherwise require. What they ultimately do is allocate risk.

The Highway Traffic Act, Dog Owners’ Liability Act, Occupiers’ Liability Act and municipal maintenance legislation govern very different relationships, but they share that characteristic. In each, the Legislature has intervened in the ordinary law of fault and changed, to some degree, how responsibility is determined.

The lesson is therefore not simply to know the statutes, but to recognize what they are doing. Before asking who was at fault, ask first what rules govern that determination. Sometimes those rules come from the common law. Sometimes the Legislature has changed them. When it has, the fault analysis has to begin there.

^[1]

^[2]

^[3]

^[4]

;

^[5]

^[6] [1983] 1 S.C.R. 205 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2466/index.do)

^[7] https://lois-laws.justice.gc.ca/eng/acts/G-10/

^[8] https://www.ontario.ca/laws/statute/90h08

^[9] https://www.ontario.ca/laws/statute/90h08

^[10] https://shawnpatey.substack.com/publish/post/174516187

^[11] 2023 ONCA 798 (Online: https://www.canlii.org/en/on/onca/doc/2023/2023onca798/2023onca798.html)

^[12] https://shawnpatey.substack.com/p/whose-fault-is-it-anyway-contributory

^[13] https://www.ontario.ca/laws/statute/90d16

^[14] https://ca.vlex.com/vid/the-scienter-action-liability-684081785

^[15] https://www.ontario.ca/laws/statute/90d16

^[16] For a more detailed discussion of Ontario’s Dog Owners’ Liability Act and the case law concerning strict liability, ownership and contributory fault, see Shawn Patey, “Dog Owners’ Liability in Ontario: Strict Where It Counts, Nuanced Where It Matters,” Dispatches from the Middle, September 29, 2025 (Online: https://shawnpatey.substack.com/p/dog-owners-liability-in-ontario-strict)

^[17] https://www.ontario.ca/laws/statute/90o02

^[18] At common law, the duty owed by an occupier depended upon the entrant’s legal status, traditionally distinguishing among invitees, licensees and trespassers, with different standards of care applying to each category. See Waldick v. Malcolm, [1991] 2 S.C.R. 456 (online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/777/index.do), discussing the common-law categories displaced by Ontario’s Occupiers’ Liability Act.

^[19][1991] 2 S.C.R. 456 (online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/777/index.do),

^[20] I discussed the doctrine of volenti, and particularly the distinction between accepting the physical risks of an activity and accepting the legal risk of injury, in the context of sports liability in Shawn Patey, “Sports Liability in Canada: Voluntary Assumption of Risk (Volenti) Beyond the Waiver,” Dispatches from the Middle, September 18, 2025 (Online: https://shawnpatey.substack.com/p/sports-liability-in-canada-voluntary).

^[21] https://www.ontario.ca/laws/statute/01m25

^[22] Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, made under the Municipal Act, 2001, S.O. 2001, c. 25.(Online: Ontario Regulation 239/02 — Minimum Maintenance Standards for Municipal Highways)

^[23] 2011 ONCA 812 (Online: https://www.canlii.org/en/on/onca/doc/2011/2011onca812/2011onca812.html)

“I have called you together so we can resolve your indifferences.”

- Chief Justice Warren Winkler, 2010

(Originally published on Substack September 4, 2025)

I have been formulating this blog in my mind for some time, but what finally moved me to write it was a post on LinkedIn^[1] that led me to an address, of which I was not previously aware, by Chief Justice Warren Winkler at the University of Western Ontario’s Faculty of Law on March 24, 2010. In his lecture, “Some Reflections on Judicial Mediation: Reality or Fantasy?”^[2], Chief Justice Winkler traced the rise of mediation in Ontario, sketched its uneasy place within the courts, and candidly assessed its limits. His words ring true even fifteen years later, particularly now as Ontario prepares to expand mandatory mediation province-wide in 2026 as part of Phase 2 of the Civil Rules Reform^[3].

What follows is a reflection on His Honour’s speech, the stark contrasts between private and judicial mediation, and what the coming reforms may mean for the culture of dispute resolution in Ontario.

A Chief Justice’s Reflections on Judicial Mediation

Winkler C.J.’s central insight was simple yet profound. Mediation is not a science, but an art. Its effectiveness depends not on rigid formulas, but on the intuition, patience, and creativity of the mediator. Some judges and lawyers have those qualities. Others most definitely do not. He admitted that while mediation can be taught, it cannot be fully learned. It is in many respects a personal craft.

Chief Justice Winkler described how judicial mediation had deeper roots in Ontario than many realized. He traces judicial mediation back to Justice Edson Haines (One of the Founding Partners of what is now Thomson Rogers), humorously describing him thus:

“Edson Haines had been a high-profile plaintiff’s personal injury counsel, and he had an unforgettably flamboyant style and presence that suggested that he loved to call attention to himself. He was a dashing figure, dressed elegantly, wore his flowing, blond hair in the style of a British barrister, and drove a Rolls-Royce”.

Justice Haines in the 1960s became notorious for calling counsel into his chambers mid-trial and sending them back out with a settlement. What went on behind closed doors was never recorded, but Chief Justice Winkler suspected it closely resembled the techniques of modern mediation.

By the 1980s, pre-trials had become formalized under the Rules of Civil Procedure^[4]. In the 1990s, mandatory private mediation was introduced in Toronto, Ottawa, and Windsor. By the 2000s, the system had developed “designated hitters”, judges hand-picked to mediate especially difficult cases immediately before trial for their effectiveness. But Winkler also emphasized the structural tension. Many judges resisted the role. Their vocation, they argued, was to decide cases, not broker deals. Mediation, to them, was a descent into “the arena.” Others embraced it as an essential adaptation to litigants’ needs in an era when trial delays and costs were spiraling. Winkler’s conclusion was that judicial mediation was both a reality and a fantasy. It existed, but its availability was inconsistent. Equal access remained elusive. Courts lacked the infrastructure including breakout rooms, technology and scheduling flexibility, and many judges lacked either the desire or the aptitude.

His view was pragmatic. Mediation should be expanded, but it must supplement, not supplant, the Courts’ fundamental role of deciding disputes. Not every judge should mediate. Those who do must be willing and able. Mediation, in his words, should be “where necessary, but not necessarily mediation.”

The Limits of Judicial Mediation

The limits of judicial mediation are not theoretical. They emerge in practice every day. Judges can certainly influence parties, but they cannot compel agreement. They rarely have the time to let settlement discussions mature. Pre-trials are typically scheduled for less than an hour, and even when they run long, they seldom carry the same depth, intensity, or persistence that a full-day private mediation affords.

The judicial role itself creates tension. Judges are trained to resolve disputes by applying law to facts, not by coaxing creative, interest-based solutions. Their interventions can sometimes carry unintended coercive weight. Parties may settle not because they have genuinely reached consensus, but because “the judge said so.” The risk in such cases is a fragile agreement, more likely to unravel under strain.

Judicial mediation, then, is best understood as a tool of limited scope. It can provide valuable pressure points within the litigation process, especially on the eve of trial, but it cannot replicate the patience, flexibility, and creativity that skilled private mediators bring to the table. The line is delicate: judicial encouragement is appropriate, but judicial strong-arming is not.

The Designated Hitter Judge: A Hail Mary on the Eve of Trial

One of Ontario’s most distinctive innovations has been the “designated hitter.” These are judges selected for their subject-matter expertise, brought in on the eve of trial for a last-ditch settlement attempt. The metaphor is apt: it is a Hail Mary pass, a final swing before the expense and uncertainty of a trial.

I appeared on a handful of these “designated hitter” judicial mediation over my career. Some resolved, some didn’t. I’d say 50/50. One of them before a judge, very well-known for her tenacity, lasted from 10am to 7pm on a Friday, and was reconvened on Sunday morning, only to settle after the judge kicked all of the lawyers out of the room to speak alone with the litigants.

These sessions can be effective precisely because they occur at the moment of maximum risk. The looming prospect of trial, with its costs and unpredictability, sharpens parties’ focus. But they are also constrained by timing. By that late stage, parties have sunk enormous costs, hardened positions, and often invested emotionally in “having their day in court.” Settlement is possible, but much harder.

This duality is why many litigants and counsel still prefer to engage private mediators earlier in the life of a case. A designated hitter may salvage some files, but it cannot replace the proactive, deliberate work of structured mediation long before trial.

The Capacities of Private Mediators

Private mediators, by contrast, live entirely within the settlement space. They dedicate whole days, and often follow-up days, to a single case. They design processes suited to the dispute, like joint sessions, caucuses, staged offers, apologies, or creative remedies that courts cannot order. They are not bound by court hours or schedules. They can stay late, reconvene, or keep working the phones after the session ends.

Parties choose their mediator, and that choice carries psychological legitimacy. A mediator trusted by both sides enters the room with credibility. Their influence rests not on authority but on persuasion, persistence, and creativity. Because they lack coercive power, they must dig deeper into the parties’ real interests. In doing so, they often uncover solutions that judges, focused on legal rights and obligations, would never propose.

Private mediators also commit to their craft. They train continually on the job in negotiation theory, psychology, and conflict resolution. They bring to bear not just legal expertise, but emotional intelligence and human insight. Their neutrality allows parties to speak more freely. And their confidentiality protections exceed those of court-based settings.

Contrasting the Two Roles

When set side by side, the contrasts are stark. Judicial mediators bring the authority of the court, but are hemmed in by time, tradition, and role. They can move parties by the weight of their opinion, but that very authority can shade into pressure. They cannot follow up, cannot custom-design processes, and often cannot give mediation the space it requires.

Private mediators, lacking official authority, compensate with persistence, adaptability, and depth. They live in the gray zones, exploring remedies outside the binary of win or lose. They follow up, they probe, they persuade, and they build consensus in ways judges cannot. Judicial mediation is episodic; private mediation is immersive. Judicial mediation is an adjunct; private mediation is a vocation.

The Promise of Phase 2 (2026): Mandatory Mediation Expanded

Ontario’s Rules already reflect this hybrid reality. Rule 24.1 established mandatory mediation in Toronto, Ottawa, and Windsor in 1999. Empirical evaluations of Ontario’s mandatory mediation model (under Rule 24.1) demonstrate tangible reductions in both trial rates and litigation costs. One study, covering the first 23 months of operation, found that in approximately 85% of cases, mediation had a positive impact on reducing costs^[5].

But the experiment was never expanded province-wide, largely because of resource concerns. That is what Phase 2 of the Civil Rules Reform, set for 2026, now aims to change.

Ontario now stands on the threshold of a major shift. Phase 2 of the Civil Rules Reform, scheduled for 2026, anticipates expanding mandatory mediation province-wide. This will mark the first comprehensive extension of the Rule 24.1 experiment beyond Toronto, Ottawa, and Windsor. If realized, it will mean that early mediation is no longer a regional anomaly, but a universal expectation.

This reform carries both promise and challenge. On the one hand, it may reduce backlog, lower costs, and expand access to justice. On the other, it will test the capacity of the mediation bar. Will there be enough skilled mediators to handle the volume? Will rural and northern regions have the same access as major urban centres? And how will the bench adapt to a culture where mediation is the norm, not the exception?

The stakes are high. If implemented well, Phase 2 could mark a cultural shift on par with the introduction of mandatory mediation in 1999. If bungled, it could deepen cynicism about mediation as a perfunctory step.

Conclusion

Chief Justice Winkler’s reflections remain as timely now as in 2010. Judicial mediation is both real and illusory, present but inconsistent. Judges bring authority, but authority alone cannot substitute for the craft of mediation.

Private mediators, by contrast, bring persistence, creativity, and neutrality. They have the luxury of time and the freedom to innovate. They are chosen, not assigned. Their settlements are voluntary, not coerced.

They inhabit the art, not the science, of resolution.

As Ontario looks to the future and the province-wide expansion of mandatory mediation, it must remember Winkler’s warning: mediation should supplement, not supplant, the courts’ core role. Judges must remain adjudicators first, mediators only where suited. Private mediators will continue to play the deeper, more flexible role.

Litigants and counsel should recognize the difference. Judicial mediation may be a checkpoint, sometimes a last chance. Private mediation is the real work of resolution, and the earlier it is embraced, the better the chances of avoiding the courthouse steps altogether.

^[1] https://www.linkedin.com/pulse/chief-justice-winklers-take-judicial-mediation-fifteen-sean-brown-6qo6c/

^[2] https://www.ontariocourts.ca/coa/about-the-court/archives/reflections_judicial_mediation/#_ftnref

^[3] https://www.ontariocourts.ca/scj/areas-of-law/civil-court/civil-rules-review/

^[4] https://www.ontario.ca/laws/regulation/900194

^[5] https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1142&context=faculty_books&utm

The Rule That Holds the Legal System Together

Sometimes, I like to return to the basics.

I recently had occasion to explain to someone (a non-lawyer) how our courts decide cases and, in particular, why judges cannot simply decide lawsuits according to what they personally think is fair or just. It reminded me that one of the most fundamental principles of our legal system is also one of the least understood outside the legal profession. Most people appreciate that judges interpret the law, but relatively few understand that judges, particularly trial judges, are themselves bound by legal rules that have already been established by higher courts.

That principle is known as stare decisis, a Latin phrase meaning “to stand by things decided.” It is one of the first concepts introduced to law students because it lies at the heart of our common law system. Without it, every lawsuit would become an opportunity to reinvent the law, and no one could predict with any confidence how a dispute might ultimately be resolved.

For lawyers, stare decisis is more than an academic concept. It shapes almost every opinion we give to a client, every legal argument we advance in court, and every assessment we make about the likely outcome of litigation. It is also one of the reasons I believe mediation works as well as it does. Parties are often able to settle because they have some reasonable ability to predict how a court is likely to apply existing legal principles to the facts before it. If every judge were free to make up the law as they went along, settlement would become far more difficult because no one could realistically evaluate the risks of proceeding to trial.

More Than Just Written Laws

Many people assume that the law consists entirely of legislation passed by Parliament or the provincial legislatures. While statutes certainly form a significant part of Canadian law, they are only one piece of the legal framework.

Legislation establishes the rules that govern countless aspects of Canadian life, but statutes rarely answer every question that arises. Words can be ambiguous. Circumstances change. New technologies^[1] emerge that legislators could never have anticipated. Someone ultimately has to determine what those statutory provisions mean when they are applied to real disputes involving real people.

That responsibility falls to the courts.

Judges interpret legislation, explain how it should operate, reconcile provisions that may appear inconsistent, and apply those principles to the facts before them. Those interpretations then become precedents that future courts are ordinarily expected to follow. In this way, judicial decisions become almost as important as the legislation itself because they explain how the written law is to be understood and applied.

Regulations operate in much the same way. Legislatures frequently enact broad statutory frameworks while authorizing governments to create detailed regulations dealing with the practical administration of those statutes. Those regulations also require judicial interpretation, and the courts’ decisions become part of the growing body of precedent that lawyers rely upon every day.

Alongside legislation sits the common law, which has evolved gradually through centuries of judicial decisions. Much of our law governing contracts, negligence, occupiers’ liability, fiduciary obligations, unjust enrichment and countless other subjects has not been created by legislation at all. Instead, it has developed incrementally as judges have decided one case after another, with each decision building upon those that came before it.

That gradual evolution is one of the defining characteristics of the common law. Rather than changing dramatically from one generation to the next, legal principles ordinarily develop in measured steps as courts confront new factual situations and refine existing rules.

The Hierarchy of Canadian Courts

To understand stare decisis, it is necessary to understand how our court system is organized.

At the top of Canada’s judicial hierarchy sits the Supreme Court of Canada^[2]. It is the highest court in the country, and its decisions are binding upon every court in every province and territory. Once the Supreme Court has determined a legal issue, trial judges and provincial Courts of Appeal are expected to apply that legal principle unless and until the Supreme Court itself revisits the issue or Parliament or a provincial legislature changes the governing legislation.

Immediately below the Supreme Court are the provincial and territorial Courts of Appeal. Their decisions bind the trial courts within their respective jurisdictions. In Ontario, for example, every judge of the Superior Court of Justice^[3] is required to follow decisions of the Ontario Court of Appeal^[4]. The same relationship exists in every province.

This relationship between higher and lower courts is what I have often seen described as vertical stare decisis. The principle is straightforward. Lower courts are expected to follow the legal decisions of the courts above them. It is not a matter of professional courtesy or institutional respect. It is an essential feature of an orderly legal system.

The modern leading authority is the Supreme Court of Canada’s 2013 decision Canada (Attorney General) v. Bedford^[5]. The case arose from a constitutional challenge brought by three current or former sex workers to several provisions of the Criminal Code governing prostitution. Although prostitution itself was legal in Canada at the time, the applicants argued that the prohibitions against keeping a common bawdy-house, living on the avails of prostitution, and communicating in public for the purposes of prostitution prevented sex workers from taking reasonable steps to protect themselves from violence, such as working indoors, hiring security personnel, or screening potential clients. The Supreme Court ultimately concluded that the challenged provisions violated section 7 of the Canadian Charter of Rights and Freedoms^[6] because they materially increased the risks to the safety and security of those engaged in an otherwise lawful activity.

Before reaching that conclusion, however, the Court addressed an equally important issue for lawyers and judges, that is whether the trial judge was bound by an earlier Supreme Court decision that had upheld much of the same legislative scheme. In doing so, the Supreme Court reaffirmed that trial judges are generally bound by decisions of higher courts and are not free to depart from established precedent simply because they believe an earlier decision was wrongly decided. The Court recognized only two narrow exceptions, namely where a new legal issue arises that was not previously considered, or where there has been a significant change in the circumstances or evidence that fundamentally alters the parameters of the debate.

Those exceptions are deliberately narrow because if every trial judge could revisit appellate decisions whenever they disagreed with them, the hierarchy of the courts would cease to function.

The Supreme Court returned to those principles only two years later in Carter v. Canada (Attorney General)^[7]. The case arose from a constitutional challenge to the Criminal Code provisions prohibiting physician-assisted dying. Gloria Taylor, who suffered from the fatal neurodegenerative disease ALS, together with other applicants, argued that the blanket prohibition forced competent adults with grievous and irremediable medical conditions to choose between enduring intolerable suffering or ending their lives prematurely while they were still physically capable of doing so. The Supreme Court ultimately held that the prohibition unjustifiably infringed section 7 of the Canadian Charter of Rights and Freedoms and declared the impugned provisions to be of no force or effect to the extent that they prohibited physician-assisted dying for competent adults meeting carefully defined criteria.

Before reaching that constitutional conclusion, however, the Court first addressed the doctrine of stare decisis. The Attorney General argued that the trial judge was bound by the Supreme Court’s earlier decision in Rodriguez v. British Columbia (Attorney General)^[8], which had upheld the prohibition on assisted suicide. The Supreme Court rejected that argument, holding that the trial judge was entitled to revisit Rodriguez because the case satisfied the narrow exceptions identified in Bedford. There had been significant developments in the legal principles governing section 7 of the Charter, particularly the concepts of overbreadth and gross disproportionality, and there had also been a fundamental change in the legislative and social facts surrounding physician-assisted dying. In doing so, the Court reaffirmed the limited flexibility recognized in Bedford while emphasizing that respect for precedent remains fundamental to the proper administration of justice.

Some observers wondered whether Bedford and Carter had created greater freedom for trial judges than had traditionally existed. That question arose in R. v. Comeau^[9], , a constitutional challenge to New Brunswick legislation restricting the importation of alcohol from other provinces. In reaffirming the doctrine of stare decisis, the Supreme Court made it clear that the exceptions recognized in Bedford remain narrow and exceptional, and should not be treated as an invitation for trial judges to disregard binding appellate authority simply because they would have reached a different result.

Taken together, those three decisions form the modern framework governing vertical stare decisis in Canada.

Why Trial Judges Cannot Simply “Do What Is Fair”

One of the questions I occasionally hear from non-lawyers is why a judge cannot simply reach the result that appears fairest in the individual case.

The answer lies in the distinction between deciding the facts and deciding the law.

A trial judge enjoys considerable independence in determining what actually happened. Witnesses may disagree. Documents may conflict. Expert opinions frequently point in different directions. Resolving those factual disputes is one of the central functions of a trial judge.

Once those facts have been determined, however, the legal principles governing those facts have often already been established by appellate courts. At that point, the judge’s task is not to invent a new legal rule but to apply the existing one.

That discipline is what allows lawyers to advise clients with some confidence. It enables businesses to understand their legal obligations before disputes arise. It allows insurers to assess litigation risk and helps mediators evaluate the strengths and weaknesses of competing legal positions. Most importantly, it promotes the public’s confidence that similar cases will ordinarily be treated similarly regardless of which courtroom they happen to enter.

When Precedent Does Not Dictate the Result

The existence of precedent does not mean that every future case automatically produces the same outcome.

Perhaps the greatest skill developed by lawyers over the course of their careers is learning when an earlier decision truly governs the dispute before the Court and when it does not.

The process is known as distinguishing a case. Its really the art of advocacy.

Suppose the Court of Appeal has decided a negligence case involving a commercial property owner who failed to maintain an icy parking lot. Years later, another negligence action comes before the court involving a municipality’s failure to maintain a public sidewalk. Although both cases involve slips and falls, the governing legislation, the applicable duties of care, or the factual circumstances may differ in ways that are legally significant.

The lawyer arguing against the application of the earlier decision is not suggesting that the precedent is wrong. Rather, the argument is that the precedent arose from materially different facts and therefore should not control the present dispute.

That process explains why legal research is often far more nuanced than non-lawyers imagine. Lawyers do not simply search for a case with similar facts. They attempt to identify the legal principle that actually emerged from the earlier decision and determine whether that principle genuinely governs the case before the court.

It is also why appellate judgments are read so carefully. Lawyers are not merely looking for helpful quotations. They are attempting to identify the legal rule that was necessary to decide the earlier case because that rule is what binds future courts.

Looking Beyond Your Own Province

The research process that lawyers follow when confronted with a new legal issue is far more structured than many people realize. It is not a matter of searching for any case that appears to support your client’s position. Rather, lawyers begin at the top of the judicial hierarchy and work their way down.

The first question is whether the Supreme Court of Canada has already decided the issue. If it has, the search is often substantially complete because the Supreme Court’s decision binds every court in the country. The focus then shifts from finding additional authorities to determining whether the facts of the current case truly fall within the legal principle established by the Supreme Court.

If there is no Supreme Court authority directly on point, the next question becomes whether the Court of Appeal in the province hearing the case has addressed the issue. For lawyers practising in Ontario, that means the Ontario Court of Appeal. Its decisions bind every judge of the Ontario Superior Court of Justice, and trial judges are expected to apply those decisions faithfully.

Sometimes, however, there is no appellate authority within the province. That does not mean the court is left without guidance. The next step is to examine appellate decisions from other Canadian provinces. While a decision of the Alberta Court of Appeal or the British Columbia Court of Appeal is not binding upon an Ontario judge, those decisions frequently carry considerable persuasive weight. Canadian appellate courts routinely look to one another when confronting novel legal issues, particularly where the common law is involved or where provincial legislation is substantially similar.

This exchange of ideas between appellate courts has helped produce a remarkably consistent body of Canadian common law despite the fact that each province maintains its own court system. Judges recognize that while they are not obliged to follow appellate decisions from another province, there is value in promoting consistency across the country whenever the legal principles and statutory frameworks are comparable.

Looking Beyond Canada’s Borders

Occasionally, even Canadian jurisprudence provides no clear answer.

That is particularly true when courts are confronted with emerging technologies or legal issues that simply did not exist a generation ago. Check out my recent Substack “Ever-Changing World: New Frontiers of Negligence Law”.^[10] Questions involving artificial intelligence, digital privacy, cryptocurrency, autonomous vehicles and other rapidly developing areas of the law sometimes require courts to examine how judges elsewhere have approached similar problems.

When Canadian courts look abroad, they do so carefully.

Historically, English decisions have carried particular significance because Canada’s common law developed from English common law. Many foundational legal principles governing contracts, negligence, trusts and property law originated in English courts long before Confederation. Although modern English decisions are no longer binding in Canada, they continue to be cited where their reasoning is persuasive and consistent with Canadian legal principles.

Canadian courts also occasionally consider decisions from Australia and New Zealand, jurisdictions whose legal systems share many common features with our own. I think that decisions from the United States appear somewhat less frequently, not because American judges lack expertise, but because constitutional structures, statutory schemes and public policy considerations often differ significantly from those in Canada. Nevertheless, where legal questions are genuinely comparable and Canadian authority is sparse, American jurisprudence may still provide useful guidance.

The point I am trying to make is that persuasive authority is exactly that. It is persuasive, not binding. Judges are free to accept or reject it depending upon the strength of its reasoning and its compatibility with Canadian law.

When Judges Disagree

People sometimes ask whether judges of the same court are required to follow one another’s decisions.

The answer is somewhat different.

A judge of the Ontario Superior Court is not technically bound by another decision of the Ontario Superior Court in the same way that he or she is bound by the Ontario Court of Appeal. Nevertheless, there is a long-standing expectation that judges of coordinate jurisdiction should generally follow one another unless there is a compelling reason to conclude that an earlier decision was clearly wrong or distinguishable.

The classic authority is Hansard Spruce Mills Ltd., Re^[11]. Although it was a trial court decision from British Columbia issued more than seventy years ago, it has been cited by courts across Canada for its thoughtful discussion of horizontal stare decisis. Justice Wilson recognized that, while judges of the same court are not technically bound by one another’s decisions, they should ordinarily follow them in the interests of certainty, consistency, and the orderly administration of justice. He explained that conflicting decisions of judges at the same level do not settle the law. They unsettle it by leaving litigants faced with competing authorities of equal weight. Accordingly, he concluded that a trial judge should depart from an earlier decision of a colleague only where subsequent appellate authority has undermined it, where binding authority or relevant legislation had been overlooked, or where the earlier decision was made without full consideration of the applicable law.

That principle is sometimes referred to as horizontal stare decisis. It does not impose the same rigid obligation that exists between higher and lower courts, but it reflects the broader objective of maintaining coherence and stability within the legal system.

The Supreme Court of Canada recently revisited these principles in R. v. Sullivan^[12]. Although the case principally concerned the constitutionality of the Criminal Code provisions governing the defence of extreme intoxication, it also required the Court to determine whether a trial judge was bound by an earlier declaration of unconstitutionality made by another judge of the same superior court. In resolving that issue, the Court reaffirmed that the ordinary principles of both vertical and horizontal stare decisis continue to apply, emphasizing that precedent promotes fairness, predictability, and confidence in the administration of justice. It further clarified that, while the common law must remain capable of development, changes to the law should ordinarily occur through the established appellate process, and that trial judges should depart from earlier decisions of courts of coordinate jurisdiction only in the narrow circumstances identified in Hansard Spruce Mills Ltd., Re.

The Law Evolves One Case at a Time

Some people mistakenly conclude that because judges follow precedent, the law never changes.

From where I sit, nothing could be further from the truth.

The common law is constantly evolving, but it evolves incrementally rather than abruptly. Every year, appellate courts are asked to consider new factual situations that existing precedents did not contemplate. Sometimes technological developments present entirely new legal questions. At other times, social changes require courts to re-examine longstanding legal assumptions. On still other occasions, legislatures enact new statutes that fundamentally alter the legal landscape.

When those situations arise, appellate courts refine existing principles or establish new ones. Those new decisions then become precedents themselves, providing guidance for future courts faced with similar issues.

The result is a legal system that is both stable and adaptable. Stability comes from respecting decisions that have already been made. Adaptability comes from allowing appellate courts to modify the law thoughtfully when genuine change becomes necessary.

I believe that that gradual evolution is one of the greatest strengths of the common law. Rather than lurching from one legal philosophy to another, it develops through careful reasoning, incremental adjustments and respectful consideration of what earlier courts have already decided.

Why This Matters Beyond the Courtroom

It is easy to think of stare decisis as a doctrine that concerns only judges and lawyers, but its effects are felt far beyond the courtroom.

Every business deciding how to structure a commercial relationship relies upon settled legal principles. Every municipality planning public infrastructure assumes that established rules governing liability will continue to apply. Insurance companies evaluate risk by examining how courts have decided similar cases. Estate lawyers advise clients how to draft wills and trusts based upon decades of judicial decisions interpreting testamentary intentions, powers of executors, and the rights of beneficiaries. Lawyers generally advise clients based upon existing precedent, not speculation about how they hope the law might develop. Mediators like me likewise help parties assess settlement options by discussing how established legal principles are likely to be applied if the matter ultimately proceeds to court.

In short, much of modern society depends upon legal predictability.

Imagine the uncertainty if identical disputes routinely produced completely different legal outcomes depending upon which judge happened to hear the case. Clients would have little confidence in the advice they received. Businesses would struggle to assess legal exposure. Settlement negotiations would become increasingly difficult because no one could reliably estimate how a court might decide the dispute.

Precedent reduces that uncertainty. It does not eliminate disagreement, nor does it guarantee that every case is easy to predict. Facts differ, legislation changes and reasonable lawyers frequently disagree about how existing authorities should be interpreted. Even so, stare decisis provides a framework that allows those disagreements to occur within an orderly and principled legal system.

The Rule of Law Depends Upon It

Lawyers often speak about the “rule of law,” but the phrase can sound abstract unless one understands the role that precedent plays in making it a reality.

The rule of law means that disputes are resolved according to established legal principles rather than the personal preferences of individual decision-makers. It means that judges are accountable to the law just as citizens are. It means that a trial judge cannot disregard a binding decision of the Court of Appeal simply because another result appears more attractive. It means that lawyers can advise clients based upon existing legal principles rather than attempting to predict the personal philosophy of the judge assigned to hear the case.

That is why stare decisis occupies such an important place in every first-year law curriculum. It is far more than a rule about following old cases. It is one of the fundamental safeguards of fairness, consistency and equality before the law.

The next time you hear a lawyer cite a case that was decided ten, twenty or even a hundred years ago, remember that the lawyer is not simply recounting legal history. She is identifying the principles that continue to shape the outcome of disputes today. Every precedent represents another thread in a fabric that has been woven over generations. Each new decision adds to that fabric, but it rarely tears it apart.

That is the quiet strength of the common law. It respects the wisdom of the past without becoming trapped by it, allowing the law to evolve carefully while preserving the consistency upon which justice ultimately depends.

^[1] See my recent blog “Ever-Changing World: New Frontiers of Negligence Law “ (Online:

^[2] https://www.scc-csc.ca/home-accueil/

^[3] https://www.ontariocourts.ca/scj/

^[4] https://www.ontariocourts.ca/coa/

^[5] 2013 SCC 72 (Online: https://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.html)

^[6] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/

^[7] 2015 SCC 5 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14637/index.do)

^[8] [1993] 3 S.C.R. 519 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1054/index.do)

^[9] 2018 SCC 15 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17059/index.do)

^[10]

^[11] 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.) (Online: https://www.canlii.org/en/bc/bcsc/doc/1954/1954canlii253/1954canlii253.html)

^[12] 2022 SCC 19 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19390/index.do)

For some time, I have wondered whether there is a mismatch developing in Toronto’s civil justice system.

On one side is an enormous volume of civil litigation, an overburdened court system, and an increasing institutional reliance on mediation to resolve cases before trial. On the other is what appears, at least from my perspective as a practising mediator, to be a relatively small group of experienced civil mediators whom lawyers, insurers and institutional litigants repeatedly seek to retain.

That raises a fairly simple question: do we actually have enough experienced mediators to do the work we are increasingly asking mediation to perform?

I do not pretend to have a definitive statistical answer. There is no comprehensive public census of full-time civil mediators in Toronto, much less reliable data showing their collective annual capacity. But I believe there is enough evidence to suggest that the question deserves considerably more attention than it has received.

The Demand Side of the Equation

The starting point is the sheer volume of civil litigation.

The Ontario Superior Court of Justice reported 180,831 active civil proceedings pending in 2025. During that year, 76,275 new civil proceedings were commenced while 34,384 proceedings were disposed of. Those figures are province-wide rather than Toronto-specific, and they should not be confused with the number of cases requiring mediation. Nevertheless, they demonstrate the scale of the civil justice system within which mediation operates^[1].

Toronto is particularly important because mandatory mediation has been embedded in its civil justice system for more than 25 years. Rule 24.1^[2] was introduced for certain Toronto and Ottawa actions in 1999, later expanded, and mediation is now mandatory in most civil actions commenced in Toronto, subject to specified exceptions^[3].

Mediation, in other words, is not peripheral to Toronto civil litigation. It is part of the infrastructure through which the system functions.

The Courts Want More Mediation, Not Less

This issue has become particularly timely because Ontario is reconsidering the architecture of civil litigation.

The Civil Rules Review Working Group’s Final Policy Report proposes expanding mandatory mediation province-wide while removing routine judicial settlement discussions from pre-trial conferences^[4]. The rationale is straightforward: settlement outside a dispositive hearing can resolve cases more quickly, reduce costs and relieve pressure on scarce judicial resources. Check out my blog “Mediation Re-engineered: Where Mandatory Mediation Fits in Ontario’s New Civil Justice System”^[5]

The Working Group’s assessment of mandatory mediation is striking. It concluded that the problem with mandatory mediation was not that it had been unsuccessful, but that it had not been expanded far enough. The Report refers to an earlier evaluation finding that Ontario’s mandatory mediation program reduced the time required to dispose of cases, lowered litigation costs and produced early settlements in approximately 40% of cases.

The Working Group also identified limited judicial resources and unacceptable pre-trial backlogs in some regions, concluding that other neutral venues for settlement have to be considered if those pressures cannot be relieved through additional judicial resources.

That places considerable responsibility on the mediation profession.

If we are going to shift more of the settlement function away from judges and toward private mediators, however, we should also ask whether the mediation market has sufficient capacity to absorb that responsibility.

A Shortage of Mediators or a Shortage of Experienced Mediators?

There are certainly many people qualified to mediate in Ontario. That is not really the issue.

The requirements for admission to a Mandatory Mediation Program roster include mediation training, knowledge of the civil justice system and references, but an applicant can satisfy the minimum experiential threshold after having conducted only five mediations^[6].

There is nothing wrong with new mediators entering the profession. Every experienced mediator was once an inexperienced one.

But in practice, lawyers do not select mediators randomly from a roster. Law firms develop preferred mediator lists. Insurers and other institutional litigants frequently have their own requirements. Counsel develop confidence in particular mediators through experience. Certain disputes require mediators with specialized subject-matter knowledge, considerable litigation experience, or sufficient credibility with both sides to deal effectively with difficult cases.

The relevant question may therefore not be whether Toronto has enough people capable of conducting a mediation.

It may be whether Toronto has enough experienced, regularly practising and commonly acceptable mediators to service the volume of disputes being directed toward mediation.

Those are two very different things.

Capacity Is Finite

A mediator’s annual capacity is also inherently limited.

There are only so many working days in a year. A mediator conducting 150 mediations annually is carrying a substantial caseload. Fifty such mediators collectively provide approximately 7,500 mediation sessions per year. One hundred provide approximately 15,000.

And their calendars are not devoted exclusively to newly commenced Toronto Superior Court actions. They may be mediating older cases, pre-litigation disputes, employment matters, estate litigation, disability claims, commercial cases and proceedings originating elsewhere in Ontario.

There is an additional practical constraint. Parties must agree upon the mediator.

A mediator may technically have an available date, but that does little good if the mediator is not on an insurer’s approved list, exceeds an institutional participant’s permitted rate, lacks the required subject-matter experience, or is unacceptable to one of the lawyers. The effective supply of mediator capacity is therefore smaller than the theoretical supply.

That is one reason experienced mediators can be substantially booked months into the future even though Ontario has many people offering mediation services.

The Roster Rate Problem

This brings me to an aspect of the system that I believe warrants reconsideration.

For a roster mediator conducting a mandatory mediation under Rule 24.1, Ontario Regulation 451/98 prescribes maximum fees of $600 for two parties, $675 for three parties, $750 for four parties and $825 for five or more parties. Those fees include one-half hour of preparation for each party and up to three hours of actual mediation^[7].

Those numbers have remained essentially frozen for a remarkable period of time^[8].

The Civil Rules Review has now squarely identified the problem. Its Final Policy Report^[9] states that the roster rates were established in 1999 and have not been updated since. More importantly, the Working Group concluded that the rates are far below current market pricing and provide limited incentive for individuals to serve as roster mediators.

That is not an argument being advanced solely by mediators seeking higher compensation. It is now an identified civil-justice policy issue.

The Unintended Consequence of Keeping Rates Too Low

There was an obvious and legitimate reason for keeping roster mediation inexpensive, an incentive I personally strongly believe in: access to justice.

Mandatory mediation should not become so expensive that ordinary litigants cannot participate meaningfully in the civil justice system.

But price controls have consequences.

If an experienced lawyer can earn substantially more practising law than conducting a roster mediation, there is little economic incentive to leave practice and become a full-time mediator. If an established mediator can fill the same calendar space with private mediations at several times the roster rate, there is an obvious incentive to limit the number of roster-rate cases accepted.

There is also a less obvious consequence.

Institutional participants sometimes use the statutory roster rate as a reference point even when selecting private mediators. That has contributed to a market in which some private mediators describe themselves as “roster friendly,” reserve certain calendar dates for roster-rate cases, or otherwise discount their ordinary rates to remain acceptable to institutional users.

That may be good for the immediate cost of an individual mediation. But if pricing remains artificially low for long enough, it can discourage experienced practitioners from entering the profession and discourage established mediators from making additional capacity available at those rates.

In the long run, cheap mediation is not necessarily accessible mediation if the mediators whom parties want to retain are unavailable.

Ontario’s Civil Rules Review Has Reached Much the Same Conclusion

The Working Group proposes three related reforms: establishing a province-wide roster enabled by virtual mediation, creating continuing professional development standards for roster mediators, and most importantly for present purposes, establishing a task force to update roster rates to reflect current market conditions^[10].

That combination makes sense to me.

If Ontario expects private mediators to assume a larger share of the burden presently carried by the courts, it should simultaneously concern itself with the quality, experience and supply of those mediators.

The objective should not simply be to create a longer roster.

It should be to create a sustainable profession capable of attracting experienced lawyers and other qualified professionals, allowing newer mediators to develop substantial practices, and giving established mediators an economic reason to continue allocating meaningful portions of their calendars to mandatory cases.

What Should the New Rate Be?

I do not suggest that the answer is simply to substitute an expensive private-market rate for the present $600 figure.

There remains a legitimate access-to-justice interest in maintaining an affordable court-connected mediation option. Indeed, the Civil Rules Review expressly acknowledges concerns about imposing additional expense on lower-income litigants and suggests that increased roster fees can still remain proportionate to Superior Court litigation.

A sensible reform from my seat could therefore combine an increased roster rate with a meaningful fee-waiver or subsidized-mediation mechanism for litigants genuinely unable to afford it.

Nor should the rate necessarily be indexed to the highest-priced mediators in Toronto. The purpose of a roster is partly to provide an affordable alternative to premium private mediation.

But there is a strong argument that a rate established in 1999 should not remain the economic foundation of an important component of the civil justice system in 2026.

Mediation Capacity Is Justice-System Capacity

Ontario is confronting a serious problem of civil delay. I examined the issue in my Substack last year called “Delay Reset: A Cultural Reckoning in Ontario’s Civil Justice System”.^[11] The Civil Rules Review itself describes the system in stark terms and proposes fundamental reform intended to reduce cost and delay.

Mediation can be part of the solution. Toronto’s experience over more than two decades suggests that it already is.

But mediation capacity cannot simply be assumed to exist.

If Ontario intends to place greater responsibility on private mediators for resolving civil disputes, then attracting, developing and retaining experienced mediators becomes part of maintaining the infrastructure of the justice system itself.

Increasing the roster rates will undoubtedly increase the cost of some mediations. That deserves serious consideration.

The other side of the equation deserves equal consideration. What does it cost the justice system when there are too few experienced mediators willing and available to do the work?

After more than a quarter-century at the same rate, it seems entirely reasonable to find out.

^[1] https://www.ontariocourts.ca/scj/wp-content/uploads/2026/05/2024-2025_English.pdf

^[2] https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2012#!fragment

^[3] https://www.ontariocourts.ca/scj/guides-and-service-resources/guide-to-representing-yourself/civil-resources-to-help-self-represented-litigants/steps-to-civil-case/

^[4] https://www.ontariocourts.ca/scj/files/pubs/2025-11-25-final-policy-proposal-accessible.pdf

^[5] https://shawnpatey.substack.com/p/mediation-re-engineered-where-mandatory?r=648252&utm_campaign=post&utm_medium=web

^[6] https://www.ontario.ca/page/apply-be-mandatory-mediation-roster

^[7] https://www.ontario.ca/laws/regulation/980451

^[8] Ontario Superior Court of Justice, Civil Rules Review: Final Policy Report (2025), Mandatory Mediation section: “Roster rates were set in 1999 and have not been updated since.” The Report further observes that the prescribed rates are significantly below current market rates and provide limited incentive to serve as a roster mediator.

^[9] https://www.ontariocourts.ca/scj/areas-of-law/civil-court/civil-rules-review/

^[10] https://www.ontariocourts.ca/scj/files/pubs/2025-11-25-final-policy-proposal-accessible.pdf

^[11] https://shawnpatey.substack.com/p/delay-reset-a-cultural-reckoning?r=648252&utm_campaign=post&utm_medium=web

More Than a Puddle on the Floor

Over the past several months I have mediated a number of slip and fall cases involving supermarkets and grocery stores. Although each case has arisen from its own unique facts, I have been struck by how often they follow the same path. At the beginning of the mediation, everyone is understandably focused on the accident itself. Counsel discuss whether the customer slipped on water, lettuce, a grape, milk, or some other foreign substance. They debate where the hazard came from, how long it may have been there and whether anyone ought to have discovered it before the accident occurred. By the end of the mediation, however, the discussion has almost always shifted somewhere else entirely. The real debate is no longer about the puddle on the floor. It is about the store’s system of inspection and maintenance.

That shift in focus reflects the way these cases are actually decided. Supermarkets are busy, constantly changing environments. Customers remove produce from displays, return merchandise to the wrong shelves, spill beverages, track rain and snow into entrances, and occasionally create hazards only moments before another customer walks through the same area. No retailer, regardless of the resources it devotes to safety, can realistically guarantee that a spill will never occur. The law has never imposed such an impossible obligation. Instead, it asks a far more practical question. Did the occupier take reasonable care to identify and remove foreseeable hazards before someone was injured?

That distinction lies at the heart of modern occupiers’ liability law. It also explains why so many supermarket cases are ultimately decided not by the condition of the floor itself, but by the quality of the inspection system operating behind the scenes. The accident may last only a matter of seconds. The inspection system, by contrast, exists every minute that the store is open for business. It is that system which the courts examine when deciding whether the occupier has met the standard of care imposed by Ontario’s Occupiers’ Liability Act^[1].

One of the interesting things about mediating these cases is that they often evolve into an examination of the retailer’s entire safety culture. Counsel are no longer discussing a puddle of water. Instead, they are examining inspection schedules, employee training, surveillance footage, maintenance manuals, incident reports, supervisory practices and, perhaps more frequently than any other document, the store’s sweep logs. Those records may appear mundane to someone unfamiliar with occupiers’ liability litigation, but they often become the most important evidence in the case. They can demonstrate that a thoughtful inspection system existed and was being followed. Equally, they can reveal gaps, inconsistencies or omissions that cast doubt on whether the system described in the policy manual was actually functioning on the day of the accident.

My purpose in writing this article is not to review every occupiers’ liability decision that has been released by the Ontario courts. That would be impossible. Rather, it is to examine the recurring principles I have seen emerge from those decisions and to consider how judges determine whether a supermarket has established a reasonable system of inspection and maintenance. I also write from the perspective of someone who, many years ago, learned, sometimes the hard way, that these cases are rarely won or lost simply because a customer slipped on a foreign substance. Early in my litigation career, I came to appreciate, through both successful and unsuccessful cases, that the real battleground is almost always the occupier’s inspection system and, perhaps even more importantly, the evidence available to prove whether that system was actually operating as intended on the day of the accident.

As we shall see, the answer is rarely found in a single document or a single witness. Instead, the court pieces together the evidence much like assembling a mosaic, looking for consistency between the written policies, the employees’ evidence, the surveillance footage and the inspection records. When those pieces fit together, the occupier is often in a strong position. When they do not, the litigation becomes considerably more difficult.

A Reasonable System Is the Real Issue

It is sometimes said that these cases are about a puddle on the floor. In my view, that description understates the inquiry that the courts are actually asked to undertake. The presence of a hazard explains why the litigation exists, but it does not answer the legal question before the court. A customer may slip on a grape that fell only seconds before the accident. Another customer may fall because an inspection that should have occurred thirty minutes earlier never took place. Although both accidents involve a foreign substance on the floor, the legal analysis may be entirely different.

The courts have consistently recognized that the Occupiers’ Liability Act does not impose a standard of perfection. Rather, an occupier’s obligation is to take such care as is reasonable in all of the circumstances to see that persons entering upon the premises are reasonably safe^[2]. The fact that an accident occurred does not establish negligence. If it did, every fall would result in liability, regardless of how conscientious the occupier’s inspection practices may have been. That has never been the law. Instead, the court asks whether the occupier acted reasonably in all of the circumstances. Reasonableness, of course, is a flexible concept. It depends upon the nature of the premises, the volume of customer traffic, the foreseeable risks associated with the particular area of the store and the steps that could reasonably have been taken to discover and eliminate hazards before they caused injury.

That is why the evidence in these cases extends well beyond the accident itself. I see that counsel frequently spend as much time examining what occurred before the accident as they do examining the accident itself. They want to know how often inspections were required, who conducted them, what training employees received, whether supervisors ensured compliance, how hazards were documented when discovered and whether the retailer’s records accurately reflect what actually occurred on the day in question. Those inquiries are not merely procedural. They go directly to the central issue in the litigation whether the occupier exercised reasonable care.

In many respects, I think these cases are an exercise in after-the-fact reconstruction. The court attempts to recreate the operation of the store during the period leading up to the accident. It examines the evidence chronologically, asking whether the inspection system was functioning as intended. Did employees complete their assigned inspections? Were hazards identified and addressed promptly? Does the surveillance footage corroborate the inspection records? Do the employees’ recollections correspond with the written documentation? The answers to those questions frequently determine whether the occupier succeeds or fails.

Looking Beyond the Policy Manual

One of the recurring themes I see emerging from the Ontario jurisprudence is that courts distinguish between having a safety policy and having an effective safety system. The difference is significant.

Most large retailers have comprehensive written policies governing inspections, housekeeping and hazard reporting. Those policies often prescribe inspection intervals, assign responsibilities to employees, require documentation of completed inspections and establish procedures for responding to spills or other hazards. On paper, many of these policies are impressive. They reflect considerable thought and a genuine commitment to customer safety.

A written policy, however, is only the starting point. It tells the court what the retailer intended to do. It does not necessarily establish what the retailer actually did.

That distinction has become increasingly important in the case law. Judges are interested not simply in the existence of a policy, but in whether it was consistently implemented. Was it understood by employees? Was it supervised by management? Were inspections completed when they were supposed to be completed? Were deficiencies corrected when identified? Most importantly, is there reliable evidence demonstrating that the system was operating as intended on the day of the accident?

Those questions transform what might otherwise appear to be a routine housekeeping issue into an evidentiary exercise. It is no longer sufficient for an occupier to produce a policy manual and suggest that the necessary procedures existed. The occupier must persuade the court that those procedures were actually followed. That is where from my seat in mediating these kinds of cases the documentary evidence assumes such importance.

The Ontario courts have examined these issues in considerable detail over many years, including in a number of decisions involving major retailers such as Walmart, where the reasonableness of inspection systems, Safety Sweep Policies and sweep log procedures has been subjected to careful judicial scrutiny^[3]. Those cases are instructive not because Walmart is subject to a different legal standard than other retailers, but because the evidence presented provides an excellent illustration of the factors courts routinely consider when evaluating whether an inspection system was reasonable. They demonstrate that the analysis extends well beyond the wording of a corporate policy and into the practical realities of how that policy was implemented on the sales floor from one hour to the next.

It is to those practical considerations that I now turn.

What Makes an Inspection System Reasonable?

There is no provision in the Occupiers’ Liability Act that tells retailers how often they must inspect their premises. Nor has the Ontario Court of Appeal established a universal rule requiring inspections every ten, fifteen or thirty minutes. That is because no single inspection interval could possibly be appropriate for every occupier. A convenience store operating with one employee presents different risks than a busy supermarket serving thousands of customers each day. Likewise, a produce department presents different challenges than a pharmacy counter or greeting card aisle. The law therefore avoids rigid formulas and instead measures an occupier’s conduct against the standard of reasonableness in all of the circumstances.

As a result, courts have identified a number of factors that repeatedly emerge when determining whether an inspection system satisfies the statutory duty of care. None of these considerations is necessarily determinative on its own. Rather, they are assessed collectively, with the court asking whether the inspection program, viewed as a whole, was reasonable for the particular premises.

The nature of the business is an obvious starting point. Grocery stores are not passive retail environments. Customers continuously remove produce from displays, examine fruit and vegetables, replace unwanted items on different shelves and occasionally spill liquids or drop merchandise. Some hazards are entirely foreseeable because they are inherent in the way supermarkets operate. A retailer selling fresh produce should reasonably anticipate that leaves, grapes or berries may occasionally find their way onto the floor. Similarly, stores with refrigerated displays may anticipate water accumulating from condensation, while entrances during the winter months present obvious risks associated with snow, slush and salt being tracked indoors. An inspection system that fails to recognize those predictable hazards is unlikely to satisfy the required standard of care.

Courts also consider the location within the store where the accident occurred. A spill in the produce department raises different considerations than a fall in an aisle selling canned goods. Some areas naturally require more frequent attention because the foreseeable risk of hazards is significantly greater. That does not mean every produce department must be inspected at identical intervals. It does mean that the inspection practices should reflect the realities of that particular environment.

Customer traffic I think is another important consideration. Inspection practices that may be entirely appropriate early on a Tuesday morning may require modification during the Saturday afternoon rush or immediately before a holiday weekend. Retailers know when their busiest periods occur. Reasonable inspection systems should take those predictable fluctuations into account. A system that remains static regardless of changing customer volume may invite scrutiny when an accident occurs during peak shopping hours.

The courts also examine staffing levels and employee responsibilities. An inspection policy is of limited value if the employee assigned to conduct inspections is simultaneously responsible for operating a cash register, stocking shelves, assisting customers and unloading deliveries. The question is not simply whether inspections were required, but whether the occupier devoted sufficient resources to make compliance with its own policies realistically achievable.

Training is equally important. Employees cannot be expected to identify and respond appropriately to hazards unless they understand what is expected of them. Consequently, retailers frequently rely upon orientation materials, training manuals, safety meetings and written procedures to demonstrate that employees received appropriate instruction. Once again, however, the court’s inquiry does not end with the existence of the training materials. Evidence that employees understood those procedures and consistently applied them in practice is often considerably more persuasive than the written documents themselves.

Finally, the courts frequently consider whether management actively supervised the inspection system. An inspection program should not operate on autopilot. Managers should be reviewing inspection records, ensuring that employees comply with company policies and addressing deficiencies when they arise. Active supervision demonstrates that the inspection system is part of the retailer’s daily operations rather than merely a policy contained within a binder.

The Story the Sweep Logs Tell

If there is one document that appears repeatedly in our supermarket mediations, it is the sweep log.

At first glance, sweep logs appear rather unremarkable. They typically consist of a series of times recorded throughout the day, together with the initials or signature of the employee who completed the inspection. Yet these seemingly routine records frequently become the focus of discoveries, cross-examinations and judicial analysis because they provide contemporaneous evidence of whether the inspection system was actually functioning.

When properly maintained, sweep logs can be compelling evidence. They establish not only that inspections were scheduled, but that they were actually completed. They identify the employee responsible for the inspection and create a chronology that may later be compared against surveillance footage, incident reports and witness testimony. When all of those sources of evidence are consistent with one another, the occupier is often in a strong position to demonstrate that reasonable care was exercised.

The converse is equally true.

Experienced litigators know that sweep logs often reveal their weaknesses under careful scrutiny. Missing inspection entries may suggest that required inspections were overlooked. Entries completed in identical handwriting at precisely the same time may raise questions about whether they were recorded contemporaneously or reconstructed later in the day. Surveillance footage that fails to show an inspection recorded in the sweep log may significantly undermine the credibility of the occupier’s evidence. Likewise, employees who cannot explain discrepancies between the documentation and the video evidence may face difficult cross-examination.

It is important, however, not to overstate the significance of sweep logs. They are not conclusive proof that reasonable care was exercised, nor does the absence of a sweep log automatically establish negligence. Like every other piece of evidence, I believe that they must be considered within the broader factual context. They form one part of the evidentiary mosaic the court assembles in determining whether the occupier acted reasonably.

Nevertheless, in my experience as a mediator, it is remarkable how often the discussion eventually returns to these documents. Counsel may spend hours debating the origin of the spill or the severity of the plaintiff’s injuries, but eventually someone asks to see the inspection records. Once they are produced, the focus of the mediation often changes. The conversation becomes less about the hazard itself and more about whether the occupier can demonstrate that its inspection system was actually operating during the period leading up to the accident.

That, in many respects, is where these cases are won or lost.

Walmart as a Case Study

The Ontario courts have considered Walmart’s inspection and maintenance practices on more than one occasion. Those decisions are valuable not because Walmart is subject to a higher standard than other occupiers, but because they provide detailed judicial analysis of what constitutes a reasonable inspection system in a modern retail environment.

The Ontario courts have examined these issues in considerable detail over many years, including in a number of decisions involving Walmart. Two of those decisions are particularly instructive because they illustrate the distinction between establishing the existence of a reasonable inspection system and proving that the system was actually operating as intended on the day of the accident.

In the 2017 case Rego v. Walmart^[4], the plaintiff alleged that she slipped on a puddle of liquid in a Walmart store and that Walmart had failed to maintain a reasonable system of inspection and maintenance. Walmart brought a motion for summary judgment, arguing that it had an appropriate inspection system in place and therefore could not be found liable. Justice Barnes dismissed the motion, holding that genuine issues requiring a trial remained. While Walmart had led evidence describing its inspection procedures, there was insufficient evidence that the employees responsible for carrying out those procedures had actually implemented them on the day of the accident. The Court emphasized that evidence of a written inspection system, standing alone, does not necessarily establish that reasonable care was exercised in practice. Questions concerning whether the inspection system had actually been followed, whether the relevant employees had carried out their assigned inspections and whether the documentary records accurately reflected what occurred all required a trial.

The 2023 decision in Fortune-Ozoike v. Wal-Mart Canada Corp.^[5] provides an even more detailed examination of Walmart’s inspection system. The plaintiff slipped on a plastic clothing hanger lying on the floor of a Walmart store on Boxing Day, suffering catastrophic injuries. Although the litigation ultimately focused primarily on subsequent allegations of medical negligence against treating physicians, the Court also undertook a careful review of Walmart’s occupiers’ liability. Justice Vermette examined Walmart’s Safety Sweep Policy, the frequency of inspections, employee training, supervisory responsibilities and the documentary evidence demonstrating how the inspection system operated in practice. After reviewing both the policy itself and the evidence of its implementation, the Court concluded that Walmart had established a reasonable system of inspection and maintenance and that there was no evidence demonstrating a breach of the applicable standard of care by Walmart.

Taken together, these decisions illustrate an important principle that runs throughout the occupiers’ liability jurisprudence. Courts are interested not simply in whether an occupier has developed thoughtful inspection policies, but whether there is reliable evidence demonstrating that those policies were consistently implemented. Inspection manuals, Safety Sweep Policies and sweep logs are all important. Their evidentiary value, however, ultimately depends upon whether they are supported by the testimony of employees, contemporaneous documentation and, where available, surveillance footage. The focus is therefore not on the existence of the system in the abstract, but on whether the occupier can prove that the system was functioning as intended at the time of the accident.

The cases examine matters such as inspection frequency, employee responsibilities, staff training, documented inspection procedures and the evidentiary value of sweep logs. More importantly, they reinforce a recurring principle found throughout the occupiers’ liability jurisprudence. A written inspection policy has limited value unless the occupier can demonstrate that it was actually implemented on the day of the accident.

That distinction cannot be overstated. Courts are not evaluating corporate aspirations. They are evaluating operational reality. Policies describe what should happen. Evidence establishes what actually happened.

As I read these cases, one principle emerges above all others. Courts do not expect perfection. They expect evidence of a thoughtful, well-supervised inspection system that is genuinely implemented by trained employees and supported by reliable documentation. When those elements are present, occupiers are frequently able to demonstrate that they exercised reasonable care, even though an accident ultimately occurred.

When they are absent, the existence of an impressive policy manual offers little assistance.

Practical Lessons for Counsel

One of the benefits of mediating these cases is that you have the opportunity to see the evidence from both sides of the dispute long before it is tested at trial. That perspective has reinforced for me that successful supermarket slip and fall litigation is rarely determined by a single piece of evidence. Rather, it is the cumulative effect of many relatively small pieces of evidence, all pointing in the same direction, that ultimately shapes the strength or weakness of a case.

For plaintiff’s counsel, that means looking beyond the incident itself. It is easy to become preoccupied with the mechanics of the fall, the nature of the substance on the floor or the seriousness of the injuries. Those issues are, of course, important. Equally important, however, is understanding how the occupier’s inspection system actually functioned on the day of the accident. Counsel should obtain the inspection policies, sweep logs, incident reports, employee training materials and surveillance footage as early as possible. Those documents often reveal whether the inspection program was operating as intended or whether there were inconsistencies that require further exploration through discovery.

It is also worth remembering that a sweep log should rarely be considered in isolation. Its significance often lies in whether it is corroborated by other evidence. Does the surveillance footage show the employee carrying out the inspection recorded in the log? Does the employee’s discovery evidence correspond with the written documentation? Was the area genuinely inspected, or was the inspection merely recorded? The answers to those questions frequently have a greater impact on the litigation than the wording of the inspection policy itself.

For defence counsel, the lessons are equally practical. A well-designed inspection program is only as persuasive as the evidence supporting it. Employees should understand not only their inspection responsibilities but also the importance of documenting those inspections accurately and contemporaneously. Managers should periodically review inspection records to ensure that the system is operating consistently and that deficiencies are addressed promptly. When an accident occurs, preserving surveillance footage and the relevant documentation should become an immediate priority. Years later, those records may become the most reliable evidence available to demonstrate that reasonable care was exercised.

These cases also remind us that litigation often begins long before a statement of claim is issued. Every inspection completed, every hazard documented and every sweep log accurately maintained contributes to the evidentiary record that may eventually be examined in court. Good risk management is therefore not simply about preventing accidents. It is also about creating reliable evidence that demonstrates the occupier’s commitment to customer safety.

The Importance of Consistency

For me, if there is one recurring theme running through the Ontario cases, it is consistency.

Courts are not looking for perfection. They recognize that hazards develop unexpectedly and that no inspection system can eliminate every risk. What they do expect is a thoughtful, organized and consistently implemented approach to identifying and addressing foreseeable hazards.

That consistency should be evident throughout the evidence. The written policies should correspond with the employees’ testimony. The employees’ testimony should correspond with the sweep logs. The sweep logs should correspond with the surveillance footage. Management practices should reinforce the inspection program rather than undermine it. When each piece of evidence supports the others, the court is presented with a coherent picture of a functioning inspection system.

Conversely, isolated inconsistencies are not necessarily fatal, but a pattern of inconsistency may significantly weaken an occupier’s position. A policy requiring inspections every thirty minutes carries little weight if the inspection records reveal lengthy gaps. Sweep logs lose much of their evidentiary value if surveillance footage suggests they were completed after the fact. Similarly, employees who cannot explain basic inspection procedures may inadvertently cast doubt on whether the written policy was ever meaningfully implemented.

Ultimately, these cases are less about whether an occupier had good intentions than whether it can demonstrate disciplined execution of its safety procedures. Courts understandably place greater weight on contemporaneous evidence than on retrospective explanations offered years after the event.

Final Thoughts

One of the interesting things about mediating supermarket slip and fall cases is that they often begin with an accident but end with an examination of an organization’s safety culture. As the day unfolds, the discussion gradually moves away from the spill itself and toward the systems that existed before the accident occurred. Counsel begin asking different questions. How were inspections carried out? Who was responsible? What records were created? Can those records be relied upon? Do they accurately reflect what was happening in the store during the period leading up to the accident?

Those are the questions that courts ask as well.

The Occupiers’ Liability Act does not demand perfection, and it does not require occupiers to guarantee that accidents will never occur. Busy supermarkets will always present challenges that cannot be eliminated entirely. What the law requires is reasonable care, exercised through a thoughtful inspection and maintenance system that reflects the nature of the business and the foreseeable risks associated with it.

That system, however, must be more than a corporate aspiration. It must exist in practice. It must be understood by employees, supported by management, consistently implemented and, perhaps most importantly, capable of being proved years later when memories have faded and the accident itself has become little more than a file number.

In the end, supermarket slip and fall cases are seldom decided by the puddle, the grape or the lettuce leaf alone. They are decided by the quality of the inspection system that existed before the hazard reached the floor and by the occupier’s ability to demonstrate, through reliable and consistent evidence, that the system was functioning exactly as it was intended.

That, perhaps, is the real story the sweep logs tell.

^[1] https://www.ontario.ca/laws/statute/90o02

^[2] See, for example, Waldick v. Malcolm, [1991] 2 S.C.R. 456 (Online: https://www.canlii.org/en/ca/scc/doc/1991/1991canlii71/1991canlii71.html)

^[3] Martin v. Attorney General of Ontario, 2022 ONSC 1923 at paras. 43–57 (Online: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1923/2022onsc1923.html); Rego v. Walmart, 2017 ONSC 812 at paras. 32–34 (Online: https://www.canlii.org/en/on/onsc/doc/2017/2017onsc812/2017onsc812.html); Fortune-Ozoike v. Wal-Mart Canada Corp., 2023 ONSC 421 at paras. 194–204 (Online:https://www.canlii.org/en/on/onsc/doc/2023/2023onsc421/2023onsc421.html)

.

^[4] https://www.canlii.org/en/on/onsc/doc/2017/2017onsc812/2017onsc812.html

^[5] https://www.canlii.org/en/on/onsc/doc/2023/2023onsc421/2023onsc421.html

What I Have Learned After Watching Hundreds of Them

In my previous article, I shared some observations about what I believe makes an effective plaintiff’s opening at mediation. Those reflections were shaped not only by my years representing injured plaintiffs, but also by my years defending insurers and defendants, and more recently by my experience as a mediator. Having now watched hundreds of mediation openings from the mediator’s chair, I have come to appreciate that the most persuasive advocates on either side have far more in common than many lawyers might think. They are prepared. They are professional. They are respectful. Most importantly, they understand precisely who they are speaking to and what they are trying to accomplish.

A defence opening serves a different purpose than a plaintiff’s opening, but it is no less important. Unfortunately, as with plaintiff openings, there has been a growing tendency in recent years abbreviate or to dispense with them altogether. Sometimes that is the right decision. There are mediations where emotions are already running high, where the parties know each other’s positions intimately, or where an opening is unlikely to advance the negotiations. In many cases, however, I believe a thoughtful defence opening remains one of the best opportunities to establish credibility, create a constructive atmosphere and, perhaps most importantly, reassure the plaintiff that their claim has been taken seriously.

One of the observations I have made repeatedly over the years is that plaintiffs generally do not arrive at mediation expecting the defence to agree with them. They understand that the insurer disputes aspects of the claim and that defence counsel has been retained to advocate for that position. What many plaintiffs hope for, however, is something much simpler. They want to know that someone has genuinely listened to their story, considered the evidence fairly and approached the mediation with an open mind. In my experience, the best defence openings accomplish exactly that. They explain why the defence disagrees with portions of the claim without leaving the plaintiff feeling that they have been dismissed or disbelieved before the negotiations have even begun.

Why Defence Openings Matter

The modern trend toward abbreviating or even waiving mediation openings has generated considerable discussion within the litigation bar. I understand why many lawyers have embraced that approach. Some believe that opening statements merely encourage parties to repeat positions that are already set out in their mediation briefs. Others worry that they may provoke unnecessary confrontation, particularly where liability or credibility is sharply contested. There is certainly merit to those concerns, and I have participated in many successful mediations where counsel elected to proceed directly into caucus.

At the same time, I have also seen many mediations where a carefully considered defence opening significantly improved the tone of the discussions that followed. In those cases, the opening was never about trying to win an argument. Nor was it an opportunity to catalogue every weakness in the plaintiff’s case. Instead, it was an opportunity to demonstrate that the defence had approached the litigation thoughtfully and objectively. It reassured everyone present that the insurer had not adopted its position reflexively, but had carefully reviewed the medical evidence, considered the legal issues and come to mediation prepared to negotiate in good faith within its assessment of the litigation risk.

That distinction is important because mediation is fundamentally different from trial. At trial, counsel advocate before a decision-maker who must ultimately determine the facts and apply the law. At mediation, the objective is entirely different. The goal is not to persuade a judge that one side is right. It is to help the participants develop a realistic understanding of the uncertainties that accompany every lawsuit. An effective opening contributes to that process by creating confidence that meaningful discussions can take place throughout the day.

Understanding Your Audience

One of the most common mistakes I have observed over the years is assuming that the audience for a defence opening consists solely of plaintiff’s counsel. Certainly, experienced plaintiff lawyers listen carefully to every submission, but they are not the only audience that matters. Sitting beside them or next to them on a computer screen in a Zoom meeting is a plaintiff who has often lived with the litigation for several years. The mediator is listening carefully, not only to the substance of the defence position but also to the manner in which it is presented. Across the table or on another screen sits the insurance adjuster, who is evaluating not only the plaintiff’s case but also the effectiveness of the defence presentation. Every person in the room hears the opening through a slightly different lens.

The plaintiff, in particular, deserves careful consideration. By the time a personal injury action reaches mediation, many plaintiffs have attended numerous medical appointments, independent medical examinations, examinations for discovery and meetings with their own counsel. Some have undergone surveillance. Others have had intimate details of their medical history scrutinized in ways they never anticipated before commencing litigation. Regardless of whether the defence ultimately accepts the plaintiff’s position, there is no question that the litigation process itself can be demanding.

One of the characteristics I have consistently observed in the strongest defence openings is that they recognize this reality without compromising the defence case. They acknowledge that the litigation has been difficult. They recognize that the plaintiff has invested considerable time and emotional energy in pursuing the claim. They do not suggest that these circumstances justify recovery. Rather, they simply recognize them as part of the human experience of litigation. That recognition often changes the atmosphere of the room in subtle but meaningful ways.

Begin With Empathy, Not Concessions

There is an important distinction between empathy and concession, and I sometimes think the two concepts become unnecessarily blurred. Defence counsel occasionally worry that acknowledging the plaintiff’s experience somehow weakens their client’s legal position. My own observations have led me to the opposite conclusion.

The strongest defence openings frequently begin by acknowledging that an unfortunate event occurred and that the plaintiff’s life has undoubtedly been affected by both the accident and the litigation that followed. Those observations do not concede negligence. They do not concede causation. They do not concede damages. They simply acknowledge what everyone in the room already knows, that litigation is stressful, accidents disrupt lives and no one would voluntarily choose to spend years involved in a lawsuit.

That simple recognition often accomplishes something remarkably important. It demonstrates respect. Plaintiffs may ultimately disagree with the defence’s assessment of liability, causation or damages, but they are far more likely to listen thoughtfully to those arguments if they first believe that the defence has listened to them. Over the years, I have become convinced that this is one of the most overlooked aspects of an effective defence opening. Before counsel can persuade someone to reconsider their own position, they must first demonstrate that they have genuinely tried to understand it.

Professionalism Creates Credibility

If empathy establishes the tone of the opening, professionalism establishes its credibility. Some lawyers appear to believe that vigorous advocacy requires an aggressive presentation. That has rarely been my observation. In fact, some of the most persuasive defence openings I have witnessed have been delivered quietly, respectfully and without a trace of personal criticism. Their effectiveness came not from rhetorical flourish but from the confidence that accompanies careful preparation.

Experienced defence counsel understand that credibility is one of their most valuable assets. Every statement made during the opening either strengthens or weakens that credibility. When counsel overstates the medical evidence, minimizes injuries that are plainly supported by the records or dismisses reasonable aspects of the plaintiff’s claim, the defence position often becomes less persuasive. Conversely, when counsel readily acknowledges those portions of the claim that are supported by the evidence before explaining where genuine disagreements arise, the remainder of the opening carries considerably greater weight.

I have often thought that the most effective defence counsel project a quiet confidence in their case. They do not feel the need to characterize every inconsistency as fatal or every surveillance video as devastating. Instead, they explain why certain evidence gives rise to legitimate questions that a trial judge or jury would ultimately have to resolve. By approaching the case in this measured fashion, they communicate something that is extraordinarily important in mediation: that the defence has evaluated the claim objectively rather than emotionally.

Addressing Liability, Causation and Credibility

Every defence opening must, of course, explain why the defence has arrived at its assessment of the case. In many personal injury actions, liability is not genuinely in dispute. Where that is so, there is little value in devoting significant time to an issue that is unlikely to influence the negotiations. In other cases, however, liability remains very much alive, and the opening should explain the defence position clearly and fairly. What I have consistently found effective is not simply identifying the weaknesses in the plaintiff’s position, but explaining why those weaknesses create genuine litigation risk. There is an important difference between saying that the plaintiff is wrong and explaining why a judge or jury could reasonably reach a different conclusion. The latter is almost always more persuasive because it invites reflection rather than resistance.

The same observation applies to causation. In my experience, causation is one of the most misunderstood issues discussed at mediation. Plaintiffs often hear the defence questioning causation as though it were questioning the legitimacy of their symptoms. Those are two very different propositions. Many plaintiffs are genuinely experiencing pain or functional limitations. The legal question is whether those limitations were caused by the accident, by a pre-existing condition, by the natural progression of degenerative changes, or by some combination of factors. Experienced defence counsel understand that distinction and explain it carefully. They avoid language suggesting that the plaintiff is imagining symptoms or deliberately exaggerating them. Instead, they focus upon the medical evidence and the competing inferences that may reasonably be drawn from it. That approach is not only more persuasive, but it also preserves the respectful atmosphere that mediation requires.

Credibility requires the same measured approach. During my years as counsel, and particularly during my years as a mediator, I have rarely found it productive for defence counsel to accuse a plaintiff of dishonesty. Such allegations immediately become personal, and once the discussion becomes personal, productive negotiations often become much more difficult. There are certainly cases where credibility is a central issue, but credibility can be addressed without attacking character. Surveillance, social media posts, employment records, inconsistent histories and conflicting testimony are all matters that courts routinely consider. Rather than inviting the plaintiff to defend their integrity, the better approach is to explain that these are pieces of evidence that a trial judge or jury would inevitably have to evaluate. That subtle shift changes the conversation from accusation to risk assessment, which is precisely where it belongs.

Working Methodically Through the Categories of Damages

One of the characteristics I have admired most in experienced defence counsel is the disciplined manner in which they discuss damages. Just this past week, I observed one defence counsel perform a master class in methodically addressing the vulnerabilities in every category of the plaintiff’s alleged damages. She began by explaining the adjuster’s role, emphasizing that the adjuster’s responsibility was not to pay as little as possible, but to fairly assess each category of damages and the risks of proceeding to trial, where an incorrect assessment could expose the insurer to significant financial consequences. Rather than speaking about the plaintiff’s claim in broad terms, she then moved carefully through each category of damages, explaining the defence assessment with respect to each. She addressed the plaintiff with empathy, while remaining direct, measured and clear. That structure demonstrates preparation and fairness. It reassures both the plaintiff and the mediator that the defence counsel and the adjuster have not dismissed the claim as a whole, but has instead evaluated every component individually.

General Damages

General damages for pain and suffering often provide the clearest example. I have found that the strongest defence openings do not begin by minimizing pain or suggesting that the plaintiff has escaped injury altogether. Where the evidence supports the existence of genuine injury, experienced counsel readily acknowledge it. They then explain why the defence believes the impact has been more limited than alleged or why the medical evidence supports a different valuation than the plaintiff proposes. In an Ontario motor vehicle case, thoughtful defence counsel also explain the significance of the statutory threshold and deductible, recognizing that neither is simply an abstract legal concept but an important component of the insurer’s assessment of litigation risk. I have also been impressed by defence counsel who place the plaintiff’s injuries within the context of prior judicial decisions, explaining that at trial both parties will invite the court to compare the plaintiff’s injuries with those in previously decided cases in order to arrive at an appropriate range of damages. That discussion helps the plaintiff understand that the valuation of pain and suffering is not arbitrary, but is informed by established legal principles and the guidance provided by earlier decisions. That approach carries considerably more credibility than attempting to deny injuries that are plainly supported by the record.

Income Loss

The same thoughtful analysis should extend to the economic aspects of the claim. Income loss is rarely a simple mathematical exercise. Questions frequently arise concerning residual earning capacity, labour market opportunities, mitigation, future employability and the distinction between actual income loss and a diminished competitive position in the labour market. A persuasive defence opening recognizes those complexities. Rather than suggesting that the plaintiff has suffered no loss simply because they have returned to work, experienced counsel explain why the available evidence may support a more modest assessment of future economic loss than the plaintiff advances.

Has the plaintiff resumed the same position at the same income?

Are they performing the essential duties of their employment without significant accommodation?

Have opportunities for promotion, overtime or career advancement genuinely been lost, or are those possibilities largely speculative?

Is there reliable vocational or economic evidence supporting the plaintiff’s future loss claim, or does the defence take the position that the evidence falls short of establishing a real and substantial possibility of future economic loss?

These are precisely the kinds of questions a trial judge will ultimately have to answer. By identifying them thoughtfully and objectively, defence counsel demonstrates that the insurer has evaluated not only the plaintiff’s current circumstances but also the legal and evidentiary foundation of the future income loss claim. They acknowledge uncertainty rather than pretending certainty exists, and in doing so help the plaintiff understand that the defence’s assessment is based upon evidence and litigation risk rather than institutional scepticism.

Housekeeping and Home Maintenance

Housekeeping claims deserve similar attention. Over the years, I have occasionally observed these claims treated almost as an afterthought. I believe that is a mistake. Jurors, in particular, readily understand the significance of losing the ability to maintain one’s home or perform ordinary household responsibilities because these are activities that virtually everyone performs in their own daily lives. The strongest defence openings therefore do not dismiss these claims out of hand. Instead, they acknowledge their importance before explaining why the defence believes the evidence supports a different assessment.

Has the plaintiff continued to perform many of these tasks, albeit more slowly or with some discomfort?

Have responsibilities been shared with a spouse or family member rather than abandoned altogether?

Is there objective evidence demonstrating a meaningful loss of housekeeping capacity, or is the claim based primarily upon subjective complaints?

Defence counsel need not agree with the plaintiff’s valuation, but they should demonstrate that they understand why the claim has been advanced and explain, in a measured and respectful way, why the evidence may support a more modest award. That approach not only enhances counsel’s credibility, but also reassures the plaintiff that the defence has carefully evaluated this aspect of the claim rather than dismissing it as insignificant.

Future Care

Future care claims likewise benefit from careful, balanced analysis. The strongest defence openings rarely dismiss future care recommendations wholesale. Instead, they distinguish between treatments that are reasonably supported by the evidence and those that appear more speculative or less clearly connected to the accident. Experienced defence counsel often remind the parties that Ontario’s accident benefits regime was designed to provide no-fault access to medical and rehabilitation benefits regardless of who caused the accident, and that the existence of this statutory scheme necessarily forms part of the overall analysis of future care claims. They also explain that the legal analysis governing a tort award for future care is not identical to the accident benefits test for funding treatment. The issue at trial will not simply be whether a treatment has been recommended, but whether the evidence establishes that the future expense is medically justified, reasonably necessary and likely to be incurred as a consequence of the injuries sustained in the accident.

Defence counsel who thoughtfully work through the future care recommendations one by one, explaining why some may be accepted while others are challenged, demonstrate that the insurer has carefully evaluated each component of the claim rather than rejecting the future care plan as a whole. That measured approach not only enhances credibility, but also helps the plaintiff understand that the dispute is over the evidentiary foundation and legal entitlement to particular items, rather than an unwillingness to fund genuinely necessary future treatment.

Indeed, one of the most persuasive defence openings I have observed expressly acknowledged those future care recommendations the defence considered reasonable before explaining, item by item, why others were not supported by the medical evidence.

Explaining Litigation Risk Rather Than Predicting Trial Outcomes

One of the themes running through both this article and my earlier discussion of plaintiff openings is that mediation is fundamentally about litigation risk. Neither side can predict with confidence what a judge or jury will ultimately decide. If those outcomes were certain, there would be little reason to mediate in the first place.

The strongest defence openings therefore avoid presenting their conclusions as inevitable. They do not suggest that the plaintiff will lose at trial. Instead, they explain why the evidence presents uncertainties that both parties must realistically consider. That discussion often includes the respective strengths and weaknesses of proceeding before a judge alone or before a jury where a jury notice has been delivered. Some juries respond strongly to compelling personal narratives. Others focus carefully upon inconsistencies in the evidence. Judges may approach the same evidence differently. None of these outcomes can be predicted with certainty, and experienced defence counsel acknowledge that reality.

I have always believed that discussing litigation risk in this balanced manner enhances the defence’s credibility. It demonstrates confidence in the case without suggesting overconfidence. More importantly, it encourages the plaintiff to think about uncertainty rather than certainty, which is ultimately the mindset required for successful negotiations.

The Plaintiff Wants to Be Heard

If there is one observation that has become increasingly clear to me since becoming a mediator, it is that plaintiffs rarely expect the defence to agree with them completely. Most understand that litigation involves disagreement. What many plaintiffs struggle with is the feeling that they have not been heard.

That is why I believe the most effective defence openings accomplish something that extends beyond legal advocacy. They reassure the plaintiff that the defence has genuinely listened. They communicate that the claim has been investigated carefully, that the medical evidence has been reviewed thoroughly and that the defence position has been reached after thoughtful consideration rather than institutional scepticism. Plaintiffs may continue to disagree with the conclusions ultimately reached by the defence, but they often become more willing to engage in realistic settlement discussions once they believe their circumstances have been fairly considered.

This is not simply a matter of courtesy. From my seat, it is sound advocacy. A plaintiff who feels respected is generally more receptive to difficult conversations about litigation risk than one who feels dismissed at the outset of the mediation. As mediators, we often spend considerable time helping parties rebuild communication that could have been established in the opening itself. The best defence counsel understand that from the beginning and use their opening to establish a foundation of professionalism and mutual respect.

The Best Defence Openings Build Trust

Looking back over my years as plaintiff’s counsel, defence counsel and now as a mediator, I have become convinced that trust is one of the most undervalued aspects of mediation advocacy. Trust does not require agreement. It does not require compromise. It simply requires confidence that the other side has approached the case honestly, professionally and objectively.

The finest defence openings consistently create that confidence. They acknowledge the plaintiff’s experience without abandoning the defence position. They discuss liability, causation, credibility and damages without becoming confrontational. They explain litigation risk without resorting to exaggerated predictions about trial outcomes. By the time the parties separate into caucus rooms, everyone understands where the defence stands and, just as importantly, why it stands there.

That foundation makes the remainder of the mediation significantly more productive. Difficult negotiations are still required. Hard decisions still have to be made. Yet those discussions take place within an atmosphere of professionalism rather than distrust, and that often makes all the difference.

Final Reflections from the Mediator’s Chair

When I practised as defence counsel, I will admit that I often viewed the opening primarily as an opportunity to explain why the plaintiff’s expectations should be moderated. There was certainly value in that objective, and there still is. Looking back from the mediator’s chair, however, I now think that perspective was incomplete.

Today, I see the defence opening as something much broader. It is an opportunity to demonstrate that the insurer has approached the litigation fairly, that difficult issues have been considered carefully and that the defence has come to mediation prepared to engage in meaningful discussions. It is an opportunity to acknowledge the human realities of litigation without compromising the legal issues that remain in dispute. Above all, it is an opportunity to establish trust at the very beginning of a process that depends almost entirely upon the willingness of people to engage in candid, respectful and realistic conversations.

After watching many hundreds of mediation openings over the course of my career, I have become convinced that the most persuasive defence advocates are not those who deliver the most forceful presentations. They are the lawyers who project quiet confidence, careful preparation and genuine professionalism. They understand that they can challenge a claim without diminishing the person advancing it. As the defence counsel in my mediation this week put it in caucus, “Easy on the person, hard on the facts”. They appreciate that empathy and objectivity are not signs of weakness, but hallmarks of experienced advocacy. Most importantly, they recognize that the purpose of the opening is not to win the mediation before it begins. It is to create an atmosphere in which thoughtful people can evaluate risk honestly, negotiate in good faith and, more often than not, find common ground.

What I Have Learned After Watching Hundreds of Mediation Openings

There was a time when mediation openings were almost a given. Counsel would gather in the same room, introduce their clients, and each side would have an opportunity to address the issues before the parties separated into caucus rooms. Today, particularly in personal injury litigation, many mediations begin without a joint session at all. Some lawyers worry that openings simply entrench positions or inflame emotions, making settlement more difficult rather than more likely.

I understand those concerns, and there are certainly cases where dispensing with an opening is the right decision. Yet after many years practising as both plaintiff’s counsel and defence counsel, followed by years serving as a mediator, I continue to believe that a thoughtful opening remains one of the most underappreciated opportunities in the entire mediation process. I have watched hundreds of them from every seat at the table. Some have been remarkably persuasive. Others have unintentionally made settlement more difficult before the first caucus even began.

The difference rarely lies in eloquence or theatrical advocacy. The best openings are rarely dramatic. They are professional, measured, carefully organized and, above all, directed to the people who actually have the responsibility of assessing litigation risk.

That last point is critical. Too many plaintiff’s openings are delivered as though they are closing arguments before a jury. They are not. The audience is not six jurors, nor is it the mediator. In the overwhelming majority of personal injury mediations, the real audience consists of experienced insurance defence counsel and the adjuster who has authority to recommend or approve settlement. These are professionals who have reviewed the pleadings, examined the medical records, read the mediation brief, and often spent weeks preparing the file. They are not looking to be entertained. They are looking to determine whether their assessment of risk should change.

I believe the best plaintiff’s openings recognize that reality from the very beginning.

Begin by Establishing Credibility

Before discussing damages, future care costs, or jury verdicts, successful plaintiff’s counsel establish the credibility of both their client and their case. In my experience, credibility is the single most valuable asset a plaintiff brings into a mediation. Once it is lost, every other argument becomes more difficult to accept.

That does not mean pretending the plaintiff is perfect. In fact, some of the strongest openings I have heard openly acknowledge imperfections. Perhaps the plaintiff had a prior injury. Perhaps there was a gap in treatment. Perhaps surveillance captured activities that, taken in isolation, appear inconsistent with the claim. Rather than ignoring these issues, experienced counsel address them directly and explain why they do not undermine the overall case.

There is a quiet confidence that comes from acknowledging difficult facts rather than hoping the other side overlooks them. Defence counsel and adjusters immediately recognize when plaintiff’s counsel has taken an objective view of the evidence. That professionalism often earns credibility before the substantive discussion even begins.

Tell a Story Rather Than Recite Evidence

One of the most common mistakes I see is treating the opening as a summary of medical reports. The parties have already read the briefs. They know what the MRI showed. They know what the specialists concluded. Simply repeating those opinions seldom changes anyone’s assessment of the file.

The most persuasive openings tell a story.

They explain who the plaintiff was before the accident, what happened, how life changed afterward, and why those changes continue to matter today. They connect the medical evidence to the human experience rather than asking the medical evidence to speak for itself.

That distinction matters. Medical reports explain injuries. Stories explain losses. Settlement value depends on understanding both.

Address Liability Honestly

Every case has strengths and weaknesses. Liability is no exception.

Where liability is straightforward, there is little reason to dwell on it. Where liability is disputed, however, the opening should not pretend otherwise. Experienced defence counsel already know the weaknesses in their case, just as they know the weaknesses in yours. Ignoring obvious issues simply reduces credibility.

The better approach is to acknowledge the defence position fairly before explaining why the plaintiff nevertheless expects to succeed. From my seat, doing so demonstrates confidence in the overall merits of the case rather than confidence based upon selective presentation of the evidence.

In my experience, candour is often more persuasive than certainty.

Build the Case One Category of Damages at a Time

Many excellent plaintiff’s counsel organize their opening around the traditional heads of damages. That structure helps the defence evaluate risk in a disciplined way while ensuring that nothing important is overlooked.

General Damages

In my experience, the strongest plaintiff openings do not begin by reciting medical diagnoses or listing every injury contained in the clinical records. The medical evidence is, of course, important, but by the time everyone arrives at the mediation, defence counsel and the adjuster have already reviewed the reports. Simply repeating the plaintiff’s diagnoses rarely changes anyone’s assessment of the case. What often does change that assessment is a thoughtful explanation of how those injuries have altered the plaintiff’s day-to-day life in ways that are both significant and permanent.

The most persuasive openings in my experience therefore focus on functionality rather than simply pain. They explain not only that the plaintiff continues to experience discomfort, but how that discomfort has fundamentally changed the way the person lives and, perhaps most importantly, works. Can the plaintiff still perform the essential duties of their employment, or are they working only through pain, modified duties, reduced hours or with the assistance of others? Has their earning capacity or career trajectory been permanently affected? In an Ontario motor vehicle case, these are critical considerations because the plaintiff must ultimately establish that they have sustained a permanent serious impairment of an important physical, mental or psychological function^[1]. As the Ontario Court of Appeal recognized in 1993 in Meyer v. Bright^[2], the court must assess the effect of the impairment on the plaintiff’s way of life as a whole, with the impact on employment often being one of the most significant considerations. The analysis should not stop there, however. Can the plaintiff still play recreational sports with their children, garden, golf, travel or participate in the hobbies and family activities that once defined their life? These are the kinds of practical changes that transform a medical diagnosis into a compelling human story and help the defence appreciate not merely what injuries the plaintiff sustained, but what the plaintiff has genuinely lost.

A thoughtful opening should therefore begin laying the evidentiary foundation for that analysis. It should explain why the impaired function was important to this particular plaintiff before the accident and why the impairment remains both serious and permanent today. Rather than relying upon broad assertions, experienced plaintiff’s counsel use concrete examples drawn from the plaintiff’s own life to demonstrate how the injury has altered the plaintiff’s ability to work, care for their family, participate in recreational activities and enjoy the ordinary amenities of life. Those examples not only humanize the claim but also help the defence appreciate why the plaintiff believes the statutory threshold is capable of being met.

Equally important is recognizing the role of the statutory deductible. Defence adjusters evaluate every motor vehicle case through the lens of the deductible because they know that an award for pain and suffering below a certain level may be substantially reduced. Plaintiff’s counsel should demonstrate that they have considered that reality. Where appropriate, they should explain why they believe the evidence supports an award that would exceed the deductible or, alternatively, why even if the deductible remains a live issue, the plaintiff’s claim retains significant value when all heads of damages are considered together. In my experience, acknowledging these statutory realities rather than ignoring them enhances counsel’s credibility. It tells the defence that the plaintiff’s case has been evaluated realistically and that settlement discussions are grounded in an appreciation of the legal framework governing motor vehicle claims.

Perhaps most importantly, the best openings remind everyone in the room that general damages are intended to compensate for the loss of the ordinary pleasures and amenities of life. Those losses cannot be measured by invoices or tax returns. They are measured by the things that many of us take for granted until they are gone, like the ability to pick up a grandchild without pain, to spend a weekend hiking with friends, to enjoy an uninterrupted night’s sleep, to work in the garden, to exercise, or simply to participate fully in family life. It is these everyday losses, described thoughtfully and authentically, that often resonate most deeply on a mediation because they transform abstract legal principles into the lived experience of the individual plaintiff.

Past Income Loss

In my experience, the strongest plaintiff’s openings approach past income loss with precision rather than rhetoric. Experienced plaintiff’s counsel rarely speak in broad terms about lost wages. Instead, they walk the defence through the calculation in the same disciplined manner they would ultimately present it to a trial judge. They identify the relevant period of disability, explain the plaintiff’s earnings before the accident, calculate the gross loss, and then acknowledge the statutory deductions that must be made. In an Ontario motor vehicle case, that includes deductions for income replacement benefits and other collateral benefits, together with the statutory reduction limiting recovery for past income loss to 70 per cent of gross income loss under the Insurance Act^[3]. By presenting the calculation transparently, plaintiff’s counsel demonstrates that they have approached the claim realistically rather than optimistically. It also gives the adjuster a concrete figure against which to measure litigation risk, rather than leaving the discussion at the level of general assertions.

Future Income Loss and Loss of Competitive Advantage

The discussion of future income loss necessarily becomes less mathematical because it concerns events that have not yet occurred. Nevertheless, the strongest openings are no less disciplined. They explain why the plaintiff faces a real and substantial risk of future economic loss by identifying the evidence that will be relied upon at trial. Has the plaintiff’s ability to perform the essential duties of their occupation been permanently compromised? Have they lost opportunities for overtime, promotion or advancement? Are they now restricted to lighter work, more vulnerable in a competitive labour market, or at greater risk of unemployment if their current position disappears? Astute plaintiff’s counsel connect these facts to the governing legal principles and explain why the evidence establishes more than mere speculation. The law does not compensate for hypothetical possibilities. It requires proof of a real and substantial possibility that the plaintiff will suffer future income loss or a loss of competitive advantage^[4]. A persuasive opening demonstrates why that standard is capable of being met and, in doing so, helps the defence appreciate that future economic loss is not simply a matter of prediction, but one of probability grounded in the evidence. I have written in greater detail on the law governing loss of competitive advantage in my Substack “LOCAmotive Express: Proving Loss of Competitive Advantage After a Car Crash”, and I refer interested readers to that discussion^[5].

Housekeeping and Home Maintenance

Housekeeping and home maintenance claims are sometimes treated as secondary issues. In my experience, they are anything but. They often provide some of the clearest evidence of how an injury has affected the plaintiff’s day-to-day functioning. A thoughtful opening should move beyond simply asserting that the plaintiff can no longer perform household tasks and instead explain what has actually changed. Is the plaintiff no longer able to vacuum, shovel snow, mow the lawn, carry groceries, clean bathrooms, paint the house or perform routine repairs? Has a spouse, child or other family member assumed responsibilities that the plaintiff once performed without difficulty? Has the plaintiff continued to do these tasks, but only much more slowly, with frequent breaks or significant pain afterward? These are practical losses that virtually everyone can understand. I think jurors, in particular, readily appreciate the significance of losing the ability to care for one’s own home and family. When presented thoughtfully, housekeeping and home maintenance claims reinforce the broader theme running throughout the plaintiff’s opening that the injuries have not simply caused pain, but have fundamentally altered the plaintiff’s ability to function in the ordinary activities of daily life.

Future Care

Future care recommendations should be presented realistically. Every recommendation should appear reasonable, medically supported and proportionate to the injuries sustained. Inflated future care claims seldom increase settlement value. More often, they invite scepticism that spills over into the remainder of the case. The strongest plaintiff’s openings explain not only what future treatment is being recommended, but why it will likely be required for years to come and how the medical evidence supports that conclusion. In many motor vehicle cases, plaintiff’s counsel should also explain the practical significance of the accident benefits regime. Where the plaintiff has exhausted, or is approaching the exhaustion of, available medical and rehabilitation benefits (or where those benefits will generally cease after the applicable statutory period in a non-CAT claim) the cost of ongoing treatment increasingly becomes part of the defendant’s exposure in the tort action. Experienced counsel also recognize that the statutory accident benefits test of whether a treatment is “reasonable and necessary” is not identical to the analysis governing an award for future care costs in tort. While there is obvious overlap between the two, a court assessing future care costs in a tort action is concerned with whether the recommended treatment is medically justified, reasonably likely to be incurred, and reasonably necessary to address the plaintiff’s ongoing impairments. A thoughtful opening therefore explains not only the medical recommendations themselves, but why the evidence is capable of supporting a future care award at trial. In doing so, it helps the defence appreciate that these recommendations are not simply treatment requests, but potentially significant components of the plaintiff’s damages claim.

Special Damages

Special damages generally require little advocacy. Their strength lies in organization rather than rhetoric. A concise explanation of significant expenditures is usually more effective than an exhaustive review of every receipt.

Causation Is Often the Real Battleground

Many personal injury mediations are not fundamentally about the seriousness of the plaintiff’s injuries. They are about whether the accident caused them. Over the years, I have come to appreciate that many cases settle or fail to settle not because the parties disagree about the plaintiff’s present condition, but because they fundamentally disagree about why the plaintiff is in that condition. Is it the accident? A pre-existing degenerative condition? A subsequent incident? The natural aging process? Or some combination of these factors? In many cases, causation becomes the central issue around which every other aspect of the litigation revolves. As I discussed in greater detail in my earlier article, “Causation in Personal Injury: Legal Limits on Linking Accident to Injury”^[6], causation remains one of the most heavily litigated issues in Canadian personal injury law.

The strongest plaintiff’s openings recognize this immediately. Rather than simply asserting that every complaint was caused by the accident, experienced counsel explain why the medical evidence supports that conclusion. They address pre-existing conditions openly rather than avoiding them. They acknowledge the defence theory where appropriate before explaining why it should not prevail. They carefully walk the defence through the chronology of symptoms, treatment, diagnostic investigations and functional decline, demonstrating that the plaintiff’s theory is grounded not in speculation but in the evidence that will ultimately be presented at trial. Where the defence attributes the plaintiff’s symptoms to degeneration, unrelated medical conditions or subsequent events, effective plaintiff’s counsel explain why those competing explanations are less persuasive when the evidence is viewed as a whole.

Ultimately, the objective is not to eliminate every possible defence argument. That is rarely achievable at mediation. Instead, the purpose of the opening is to persuade the defence that the plaintiff’s theory of causation is sufficiently supported by the medical and factual record that it creates genuine litigation risk. When plaintiff’s counsel accomplish that objective, the discussion shifts away from abstract disagreement and toward the realistic question that should drive every mediation: How is a trial judge or jury likely to resolve this issue, and what are the consequences if the defence is wrong?

Speak the Language of Risk

One observation has become increasingly clear to me as a mediator. Insurance adjusters do not settle cases because they suddenly agree with the plaintiff’s position. They settle cases because they evaluate risk.

Everything in an effective opening should therefore assist the defence in reassessing litigation risk.

How might a trial judge view this evidence?

How might a jury respond to this witness?

What uncertainties remain?

What are the financial consequences if the defence’s assessment proves to be wrong?

These are the questions adjusters are considering throughout the mediation. Plaintiff’s counsel who frame their submissions around litigation risk are speaking directly to the decision-making process occurring across the table.

Help the Defence Understand That You Understand Them

I strongly believe that one characteristic distinguishes many of the finest plaintiff advocates I have encountered.

They demonstrate that they understand the defence case.

They acknowledge that the plaintiff has reviewed the defence mediation brief. They explain that they have discussed those arguments carefully with their client. They recognize the legitimate issues the adjuster must consider before recommending settlement.

That approach accomplishes something important. It reassures the defence that they are negotiating with counsel who have taken an objective view of the litigation rather than simply advocating one side of the story.

Professional respect builds credibility.

Show Empathy for the Adjuster

This may surprise some readers.

Plaintiff’s counsel often speak eloquently about empathy for the injured person. Far fewer demonstrate empathy for the individual representing the insurer.

Yet experienced adjusters carry significant responsibility. They must justify reserves, explain settlement decisions to supervisors, comply with company guidelines, and evaluate litigation risk objectively. They cannot responsibly recommend substantial settlement authority simply because they believe the plaintiff is sincere. They require evidence. Acknowledging those professional responsibilities does not weaken the plaintiff’s position. Quite the opposite. It demonstrates maturity, professionalism and an understanding of how personal injury claims are actually evaluated. As I discussed in my recent article, “Mind the Gap: The Evidence Divide That Derails Personal Injury Cases”^[7], meaningful negotiations occur only when the adjuster has been provided with the documentary foundation necessary to assess causation, damages, credibility and overall exposure.

Some of the most effective plaintiff’s openings I have heard recognize that everyone at the mediation is trying to make the best decision they can with imperfect information. Rather than criticizing the insurer for questioning aspects of the claim, they acknowledge the adjuster’s obligation to carefully evaluate the evidence before recommending settlement. Having done so, they then explain why the medical records, employment documentation, expert opinions and other evidence now before the insurer justify a reassessment of the litigation risk. That simple acknowledgement often changes the tone of the discussion from confrontation to problem-solving and reinforces one of the central themes running through every successful mediation: informed decisions require informed evidence.

Establish the Litigation Landscape

One of the more sophisticated techniques I have observed is helping the defence appreciate the range of possible trial outcomes.

This is not the time for unrealistic predictions or extravagant numbers. Instead, experienced counsel explain the range of outcomes that a judge or jury could reasonably reach. They identify the strengths that support the higher end of that range while acknowledging the uncertainties that may influence the ultimate result.

In doing so, they establish the litigation landscape without appearing inflexible.

They are not making a demand.

They are defining the potential goalposts.

Discuss the Jury Thoughtfully

Where a jury notice has been delivered, or remains a realistic possibility, it deserves careful discussion. One of the strongest plaintiff’s openings I can recall did not attempt to persuade the defence that a jury would necessarily favour the plaintiff. Instead, counsel carefully explained why the uncertainty inherent in any jury trial materially increased the insurer’s litigation risk.

I believe jurors and judges inevitably approach cases somewhat differently. Jurors often respond strongly to issues of credibility, fairness and the plaintiff’s lived experience. Judges, by contrast, are more likely to approach the evidence through a detailed legal and analytical framework, including the statutory threshold and the effect of the deductible. Judges are, of course, fully aware that an award for pain and suffering may ultimately be significantly reduced or, in some cases, effectively eliminated by the statutory deductible, a consequence that juries are never told about. Decisions such as Cobb v. Estate of Long serve as a reminder that the arithmetic applied after a verdict can dramatically affect the plaintiff’s ultimate recovery^[8].

Experienced plaintiff’s counsel also recognize that perceptions about juries form part of the settlement discussion. Many litigators believe, rightly or wrongly, that jury attitudes toward personal injury claims can differ depending upon the community in which the case is tried. Some perceive that juries in larger urban centres, where exposure to insurance claims may be more commonplace, can be more skeptical of chronic pain and subjective injury claims than juries sitting in smaller communities. Whether that perception proves true in any individual case is impossible to know, but it nevertheless influences how many experienced litigators assess trial risk and advise their clients.

Finally, the practical realities of the litigation process should not be overlooked. Where a jury notice remains in place, there may be strategic and scheduling considerations that influence settlement discussions. Depending upon the region and the circumstances of the case, jury matters have at times been associated with longer waits for trial than judge-alone proceedings, although this has varied over time and by jurisdiction, particularly following the pandemic and the evolving case law on striking jury notices. Those practical considerations of delay, cost, uncertainty and the inherent unpredictability of six independent decision-makers, are all legitimate components of a thoughtful discussion about litigation risk.

For all of those reasons, the most persuasive plaintiff’s openings do not suggest that a jury will automatically favour the plaintiff. Instead, they explain why the choice of tribunal is simply another variable in the overall risk analysis and why that uncertainty should be reflected in any realistic assessment of settlement value.

Professionalism Persuades

Some lawyers believe passion requires confrontation. My experience has been quite different.

The strongest openings are almost always calm, respectful and measured. They avoid personal criticism of opposing counsel. They do not accuse the insurer of bad faith. They do not exaggerate the evidence or dismiss legitimate defence arguments.

Instead, they project confidence through preparation, fairness and professionalism.

Those qualities inspire confidence in the merits of the case.

Conclude With a Path Toward Resolution

The final moments of the opening should not sound like a closing argument. They should sound like an invitation to resolve litigation intelligently.

Counsel should explain that the plaintiff has come prepared to negotiate in good faith, understands the uncertainties inherent in every trial, and appreciates the opportunity mediation provides to achieve a fair resolution. That message signals confidence without rigidity and encourages the defence to approach the negotiations with the same mindset.

Ultimately, the purpose of an opening is not to win an argument. It is to influence the way the other side evaluates risk. The most effective plaintiff’s openings I have seen accomplish that not by speaking louder or longer than anyone else, but by demonstrating thoughtful preparation, professional judgment, and a genuine understanding of the realities facing everyone around the mediation table or on the computer screen in a Zoom meeting.

After watching hundreds of mediation openings over the course of my career as plaintiff’s counsel, defence counsel, and now as a mediator, I have become convinced that the very best advocates all share one characteristic. They never forget who their audience is. They understand that the opening is not about proving they are right. It is about helping experienced professionals on the other side of the table see the case through a slightly different lens. When that happens, even modestly, meaningful settlement discussions often become far easier to achieve.

^[1] Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5); O. Reg. 461/96, ss. 4.1–4.3 (definition of “permanent serious impairment of an important physical, mental or psychological function”).

^[2] Meyer v. Bright (1993), 15 O.R. (3d) 129 (Ont. C.A.)

^[3] Insurance Act, RSO 1990, c I.8, s. 267.5(1), together with the applicable provisions governing the calculation of past income loss and the 70 per cent limitation.

^[4] Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 27; Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

^[5] https://shawnpatey.substack.com/p/loca-motive-express-proving-loss

^[6] https://shawnpatey.substack.com/p/causation-in-personal-injury-legal

^[7] https://shawnpatey.substack.com/p/mind-the-gap-the-evidence-divide

^[8] See Cobb v. Long Estate, 2017 ONCA 717 (Online: https://www.canlii.org/en/on/onca/doc/2017/2017onca717/2017onca717.html), where a jury awarded the plaintiff $220,000 in damages, but after the application of statutory deductions, including the statutory deductible and collateral benefits, the final judgment was reduced to $34,000.

Introduction

Last summer, I wrote about the 2019 Alberta Court of Appeal’s decision in Mawhinney v. Scobie^[1], and explored an issue that remains largely unsettled in Ontario: could a beneficiary inadvertently trigger a no-contest clause simply by taking procedural steps to oppose a will?

At the time, Mawhinney stood as Canada’s leading appellate authority on the interpretation of no-contest, or in terrorem, clauses. The decision adopted a broad interpretation of language prohibiting beneficiaries from “commencing litigation” in connection with a will and served as a cautionary reminder that estate litigation can carry consequences extending well beyond the immediate dispute.

One of the observations I made in that earlier article was that Ontario practitioners had little guidance beyond Mawhinney. Although the Alberta Court of Appeal had spoken, there appeared to be very little reported Canadian jurisprudence considering or applying its reasoning. That absence of authority made it difficult to predict how courts elsewhere in Canada would approach similarly worded clauses.

The legal landscape has now changed.

In researching this update, I searched for reported Canadian decisions applying the principles articulated in Mawhinney. Despite that search, I have not located any reported Canadian decision that substantively applied the Alberta Court of Appeal’s reasoning except for two recent 2026 decisions from the Supreme Court of Newfoundland and Labrador: Franklin Estate (Re)^[2], and its companion decision, Franklin v. Franklin^[3].

Read together, these decisions represent the most significant development in Canadian law respecting no-contest clauses since 2019’s Mawhinney. Not only do they apply the Alberta Court of Appeal’s reasoning, they also demonstrate how those principles operate in practice when beneficiaries seek to remove an executor appointed by a testator.

Before examining the Franklin decisions, it is useful to briefly review how Canadian law arrived at this point.

The Evolution of Canadian Authority

Kent v. McKay: Public Policy and Testamentary Freedom

For many years, Canadian courts approached no-contest clauses cautiously.

One of the earliest Canadian authorities is the decision 1982 Kent v. McKay^[4], a decision of the Supreme Court of British Columbia. The case arose after a father created a testamentary trust for the benefit of his two adult children, providing them with life interests in income rather than outright gifts because he was concerned they would squander a substantial inheritance. To reinforce his estate plan, he included a broadly worded no-contest clause providing that any beneficiary who commenced litigation in connection with the Will would forfeit his or her interest, subject only to proceedings necessary for judicial interpretation or directions during the administration of the estate. After the father’s death, his son and daughter wished to commence proceedings under British Columbia’s Wills Variation Act^[5] but first sought the Court’s direction as to whether doing so would trigger the forfeiture provision and, if so, whether the clause was void as contrary to public policy.

The case reflected the traditional judicial concern that provisions discouraging litigation should not be enforced where they offend public policy or improperly prevent beneficiaries from seeking the assistance of the courts. Ultimately, the Court held that an application under the Wills Variation Act^[6] did constitute “litigation” within the meaning of the clause. However, because the legislation was enacted to ensure that spouses and children could seek adequate maintenance and support, the Court concluded that the no-contest clause was unenforceable to the extent that it purported to deter beneficiaries from exercising those statutory rights. In other words, although the clause was broadly drafted and would otherwise have captured the proposed proceeding, it could not override the public policy embodied in the dependent’s relief legislation.

The decision recognized an important tension that continues to exist today. On the one hand, courts have long respected the fundamental principle of testamentary freedom. Subject to statutory limitations, a person is generally entitled to decide how their property will be distributed after death and to impose conditions upon gifts made under a will. On the other hand, beneficiaries must retain the ability to challenge wills in appropriate circumstances. Allegations of undue influence, lack of testamentary capacity, fraud or forgery are serious matters that engage the integrity of the probate process itself. Courts have therefore historically been reluctant to interpret no-contest clauses so broadly that they effectively insulate suspicious wills from judicial scrutiny.

That balance between testamentary autonomy and access to the courts would become the central issue in later cases.

Anderson Estate: The Trial Decision

The next significant development came more than three decades later in Anderson Estate^[7], the Alberta Court of King’s Bench decision that was ultimately appealed to the Alberta Court of Appeal in Mawhinney v. Scobie. There, the applicant, Karen Mawhinney, had been in a long-term romantic relationship with the deceased for more than twenty years and claimed they had become engaged shortly before his death. Under four earlier wills, including one executed only months before he died, she and the deceased’s three adult children were equal residuary beneficiaries. However, a codicil and a new will executed approximately one month before the deceased’s death fundamentally altered that estate plan, removing Ms. Mawhinney as a residuary beneficiary and leaving the estate primarily to the deceased’s children. Concerned by what she alleged were suspicious circumstances surrounding the preparation and execution of the final testamentary documents, she wished to require the executors to prove the will in solemn form. Before doing so, however, she sought the Court’s advice as to whether such an application would trigger the broadly worded no-contest clause contained in the will.

Justice Jones concluded that an application requiring formal proof of the will would constitute a challenge to its validity. However, he also held that the no-contest clause expressly preserved a beneficiary’s right to seek rights or benefits conferred by the law of Alberta. Because Alberta’s Surrogate Rules^[8] specifically authorized an interested person to apply for formal proof of a will, the Court concluded that such an application fell within that exception and therefore would not trigger the forfeiture provision. In other words, although Ms. Mawhinney’s proposed application challenged the validity of the will, it remained protected because it was a statutory right expressly preserved by the wording of the clause.

Had Anderson Estate remained the governing authority, beneficiaries might reasonably have believed that applications seeking formal proof of a will under Alberta’s Surrogate Rules would generally fall outside the reach of a carefully drafted no-contest clause. That understanding, however, proved to be short-lived. The Alberta Court of Appeal reversed that conclusion in Mawhinney v. Scobie, adopting a considerably narrower interpretation of the exception for rights conferred by Alberta law and significantly strengthening the enforceability of broadly worded no-contest clauses.

Mawhinney v. Scobie: A Broader Interpretation Emerges

The Alberta Court of Appeal fundamentally altered the landscape in Mawhinney v. Scobie.

The will contained a broadly worded no-contest clause providing that any beneficiary who challenged the validity of the will or commenced litigation in connection with any provision of the will would forfeit their inheritance, subject to limited exceptions.

The beneficiary sought directions from the Court to determine whether requiring the will to be proved in solemn form would engage the clause.

The majority concluded that it would.

Writing for the majority, the Court held that although Alberta’s procedural rules authorized an application requiring proof in solemn form, those rules merely provided a procedural mechanism. They did not confer a substantive legal right that brought the application within the exceptions contained in the no-contest clause. In the majority’s view, an application requiring proof in solemn form necessarily challenged the validity of the will and therefore constituted precisely the type of litigation contemplated by the clause.

Justice O’Ferrall dissented, taking the view that the procedural right created by Alberta law fell within the clause’s exception for rights conferred by provincial legislation. Nevertheless, the majority decision became the governing law in Alberta.

Leave to appeal to the Supreme Court of Canada was subsequently refused on August 8, 2019^[9]. Although the refusal of leave does not constitute an endorsement of the Alberta Court of Appeal’s reasoning, it left Mawhinney standing as Canada’s leading appellate authority on the interpretation of broadly worded no-contest clauses.

I believe the practical significance of Mawhinney has extended well beyond Alberta. Estate lawyers across the country have been forced to confront an uncomfortable possibility. Procedural steps that had previously been viewed as routine might now expose beneficiaries to the loss of substantial inheritances if the will contained sufficiently broad language.

When I wrote about Mawhinney last year^[10], I observed that Ontario courts had not yet considered whether filing a Notice of Objection under Rule 75 might similarly constitute “commencing litigation.” That question remains unresolved in Ontario.

What was equally striking to me, however, was something else. Despite the importance of Mawhinney, there appeared to be remarkably little reported Canadian jurisprudence applying its reasoning in the years that followed. Practitioners were left with an influential appellate decision but very little guidance as to how courts would implement its principles in real-world estate disputes.

That changed in 2026. The Newfoundland and Labrador decisions in Franklin Estate (Re)^[11] and Franklin v. Franklin^[12] do considerably more than merely cite Mawhinney. Together, they demonstrate how broadly worded no-contest clauses operate in practice when beneficiaries challenge the administration of an estate. In doing so, they provide the first substantial judicial roadmap for applying the principles articulated by the Alberta Court of Appeal.

The Franklin Decisions: Canadian Law Takes Its Next Step

The Newfoundland litigation arose from the estate of John Franklin and involved a dispute between two sisters over the administration of their late father’s estate. At first glance, the litigation appears to concern only an application to remove an executrix. However, when the two reported decisions are read together, they become something far more significant. They provide the first substantial Canadian illustration of how the principles articulated in Mawhinney operate in practice.

The litigation resulted in two separate reported decisions. The first, Franklin v. Franklin, , addressed whether the executrix should be removed. The second, Franklin Estate (Re), considered whether the unsuccessful beneficiary’s litigation had triggered the broadly worded no-contest clause contained in the will. In my view, these decisions should not be read independently. They are companion decisions that collectively explain both why the litigation failed and the consequences that followed.

Franklin v. Franklin: Should the Executrix Be Removed?

The deceased appointed one of his daughters, Nina Franklin, as sole executrix and trustee of his estate. The estate itself was unusually complex. It included commercial real estate, an operating hotel business, assets located in three countries, substantial mortgage indebtedness, significant Canadian tax liabilities, United Kingdom inheritance tax issues, and probate proceedings in Newfoundland and Labrador, England and Wales, and Florida.

The applicant, Gemma Franklin, sought Nina’s removal as executrix. She alleged, among other things, excessive delay in administering the estate, inadequate accounting, failure to comply with prior accounting orders, self-dealing, conflicts of interest and hostility.

Justice O’Flaherty dismissed the application in comprehensive reasons that provide in my view an excellent review of the law governing the removal of estate trustees. The Court reaffirmed that removing an executor chosen by a testator is an extraordinary remedy. The guiding question is not whether the executor has made mistakes or whether relations between beneficiaries have deteriorated. Rather, the Court must determine whether there is good reason to conclude that the estate will not be properly administered if the executor remains in office.

Drawing upon earlier authorities such as Letterstedt v. Broers^[13], Dicks v. Dicks Estate^[14], Scott v. Scott^[15] and Fleming v. Fleming^[16], Justice O’Flaherty emphasized that courts should be slow to interfere with the testator’s deliberate choice of executor. Removal is intended to protect the future administration of the estate, not to punish an executor for past errors made in good faith.

Applying those principles, the Court concluded that the six-year delay in administering the estate did not result from incompetence or misconduct on the part of the executrix. Rather, the delay was largely attributable to the complexity of administering an international estate, significant tax issues, liquidity constraints, the COVID-19 pandemic and, importantly, litigation initiated by the applicant herself in multiple jurisdictions.

The Court found that the executrix had acted honestly, had substantially complied with her accounting obligations and had continued operating the deceased’s businesses in accordance with the broad powers expressly granted to her under the will.

Accordingly, the application to remove her was dismissed.

Standing alone, Franklin v. Franklin is a useful review of the law respecting removal applications. Read together with the subsequent decision, however, its significance becomes much greater.

Franklin Estate (Re): The Consequences of Bringing the Application

Following the dismissal of the removal application, a second issue arose.

The deceased’s will contained a broadly worded no-contest clause providing that any beneficiary who challenged the administration of the estate in specified ways would forfeit his or her entitlement under the will. The wording is critical. It read as follows:

“If any person who may be entitled to any benefit under my Will or the spouse of that person, commences any litigation in connection with any of the provisions of my Will, other than for the necessary judicial interpretation or for the direction of the court in the course of administration, all benefits to which that person would have been entitled shall cease and I revoke all such benefits. I direct that these benefits so revoked shall fall into and form part of the residue of my estate to be distributed as if the person had predeceased me and left no issue surviving me.”

The question before Justice Handrigan was whether Gemma Franklin’s unsuccessful application to remove the executrix engaged that clause.

The Court concluded that it did.

In reaching that conclusion, Justice Handrigan relied extensively upon the Alberta Court of Appeal’s reasoning in Mawhinney v. Scobie.

Like the majority in Mawhinney, the Court adopted a broad interpretation of the language chosen by the testator. The focus was not merely whether the beneficiary challenged the validity of the will itself. Rather, the Court examined whether the litigation constituted the type of adversarial proceeding that the testator intended to discourage through the no-contest clause. The Court concluded that seeking to remove the executrix struck directly at one of the central features of the deceased’s testamentary plan. The appointment of an executor is itself an important testamentary choice. An application seeking to remove that person therefore represented litigation that engaged the clause.

In practical terms, Franklin Estate (Re) became the first reported Canadian decision to apply the reasoning in Mawhinney to litigation directed not at the validity of the will itself, but at another essential feature of the testator’s estate plan—the appointment of the executor. The decision confirms that a broadly worded no-contest clause may extend beyond challenges to testamentary validity and encompass other forms of estate litigation where they seek to alter the testator’s expressed intentions^[17].

Why the Two Decisions Should Be Read Together

What makes the Franklin litigation particularly important is not simply the outcome of either case individually, but the way the two decisions interact.

Justice O’Flaherty first examined the merits of the removal application itself. After carefully reviewing the evidence, he concluded that the executrix should remain in office because the legal threshold for removal had not been met.

Justice Handrigan then considered the consequences of having brought that application.

The result is a coherent sequence of decisions. The first judgment establishes that the application to remove the executrix was unsuccessful because there was insufficient legal basis for disturbing the deceased’s chosen executor. The second judgment concludes that bringing that very application engaged the no-contest clause and resulted in forfeiture.

Each judgment reinforces the other.

Indeed, Justice O’Flaherty’s findings help explain why Justice Handrigan reached the conclusion that he did. The former repeatedly emphasizes the broad powers intentionally granted to the executrix by the deceased, the absence of misconduct warranting removal, and the considerable deference owed to the testator’s choice. Those findings provide the factual and legal foundation upon which the later no-contest decision rests.

What Does This Mean for Ontario?

Neither Mawhinney nor the Franklin decisions are binding upon Ontario courts.

Nevertheless, together they now represent the strongest reported Canadian authority supporting a broad interpretation of no-contest clauses.

Ontario practitioners continue to face unresolved questions. Does filing a Notice of Objection under Rule 75 constitute “commencing litigation” for the purposes of a broadly worded no-contest clause?

Would an application seeking directions engage such a clause? Would an application to remove an estate trustee trigger forfeiture where the will contains language similar to that considered in Franklin?

Those questions remain unanswered by Ontario appellate courts.

However, the analytical direction emerging from Alberta and Newfoundland and Labrador is becoming increasingly clear. Courts appear willing to focus less on the procedural label attached to the proceeding and more upon its practical effect. If the litigation seeks to interfere with or challenge a significant component of the deceased’s testamentary plan, there is an increasing willingness to conclude that the no-contest clause has been engaged.

That should give both beneficiaries and their counsel pause before commencing estate litigation where such clauses exist.

A Mediator’s Perspective

As a mediator, I view these decisions as reinforcing something that has long been apparent in estate disputes.

Family members frequently commence litigation believing they are simply asking the Court to “sort things out.” In reality, procedural steps taken at the outset of litigation can have unintended consequences that are not immediately obvious.

The Franklin decisions demonstrate that applications concerning the administration of an estate may carry risks extending well beyond the immediate issue before the Court. A beneficiary who believes they are merely challenging the conduct of an executor may ultimately be found to have jeopardized their entire inheritance.mThat reality makes early legal advice essential. It also makes mediation an increasingly valuable first step.

Where concerns exist regarding an executor’s conduct, accounting issues or the administration of an estate, mediation provides an opportunity to explore those concerns in a confidential and non-adversarial setting before procedural steps are taken that may later prove irreversible.

Conclusion

When I wrote about Mawhinney v. Scobie last year, I observed that Canadian law had been left with an important appellate decision but very little guidance as to how its principles would operate in practice.

The Franklin litigation has now provided that guidance.

Taken together, Franklin v. Franklin and Franklin Estate (Re) represent the most significant development in Canadian no-contest clause jurisprudence since Mawhinney. They demonstrate that courts remain highly protective of a testator’s deliberate choice of executor and that litigation seeking to interfere with that choice may, depending upon the wording of the clause, result in forfeiture of the beneficiary’s interest.

Whether Ontario courts ultimately adopt the same approach remains to be seen. Until they do, however, beneficiaries, lawyers and mediators alike would be well advised to approach broadly worded no-contest clauses with considerable caution. As the Franklin decisions illustrate, the greatest risk in estate litigation may not always be losing the case itself. It may be losing the inheritance altogether.

^[1] 2019 ABCA 76 (Online: https://www.canlii.org/en/ab/abca/doc/2019/2019abca76/2019abca76.html)

^[2] 2026 NLSC 7 (Online: https://www.canlii.org/en/nl/nlsc/doc/2026/2026nlsc7/2026nlsc7.html)

^[3] 2026 NLSC 19 (Online: https://www.canlii.org/en/nl/nlsc/doc/2026/2026nlsc19/2026nlsc19.html)

^[4] 982 CanLII 788 (BC SC) (Online: https://www.canlii.org/en/bc/bcsc/doc/1982/1982canlii788/1982canlii788.html)

^[5] https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-490/latest/rsbc-1996-c-490.html

^[6] https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-490/latest/rsbc-1996-c-490.html

^[7] 2017 ABQB 422 (Online: https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb422/2017abqb422.html)

^[8] https://www.canlii.org/en/ab/laws/regu/alta-reg-130-1995/latest/alta-reg-130-1995.html

^[9] https://www.scc-csc.ca/cases-dossiers/search-recherche/38609/

^[10] https://shawnpatey.substack.com/p/no-contest-clauses-after-mawhinney

^[11] https://www.canlii.org/en/nl/nlsc/doc/2026/2026nlsc7/2026nlsc7.html

^[12] https://www.canlii.org/en/nl/nlsc/doc/2026/2026nlsc19/2026nlsc19.html

^[13] https://vlex.co.uk/vid/letterstedt-v-broers-805036553

^[14] https://ca.vlex.com/vid/dicks-v-dicks-estate-680922961

^[15] https://www.canlii.org/en/sk/skqb/doc/1991/1991canlii7907/1991canlii7907.html

^[16] https://records.court.nl.ca/public/supremecourt/decisiondownload/?decision-id=9441&mode=stream

^[17] Suzana Popovic-Montag, “Can a Beneficiary Be Disinherited Under a No-Contest Will Clause For Applying to Remove the Estate’s Executor?” (4 March 2026), online: Hull & Hull LLP https://hullandhull.com/2026/03/can-a-beneficiary-be-disinherited-under-a-no-contest-will-clause-for-applying-to-remove-the-estates-executor/.

Over the past several months, I have noticed an interesting issue arise in a number of my mediations. During caucus discussions, counsel have occasionally questioned whether, if the case does not settle, an action that has proceeded under Rule 76’s simplified procedure should instead continue under the ordinary procedure. Those conversations have prompted thoughtful discussion about whether such a transition remains available once the litigation has significantly progressed, the factors the Court will consider on a motion to change procedural tracks, and the extent to which strategic considerations such as jury rights, trial complexity and evolving damage assessments, should influence that decision. Recent decisions of the Ontario Superior Court have begun to provide clearer guidance on these questions, making this an appropriate time to revisit Rule 76 and some of its more significant recent developments.

The History of Simplified Procedure in Ontario

The concept of the simplified-procedure track under Rule 76 of the Rules of Civil Procedure^[1] (Ontario) emerged from a recognition that the Superior Court’s ordinary procedure had become too costly, too slow and too formal for a class of claims whose value lay in an intermediate zone. The purpose of Rule 76 was “to reduce the cost of litigating claims of relatively modest amounts by reducing the amount of civil procedure”^[2]. Litigants with modest-value claims, exceeding the Small Claims Court limit but far below high-stakes commercial or catastrophic personal-injury litigation, were frequently deterred by legal fees, long discovery periods, jury obligations and a four-to-ten day trial^[3]. In short, the risk of devoting $100,000+ in legal fees to recover a claim of say $75,000 made many potential actions unviable^[4].

Accordingly, Rule 76 was introduced to bridge that gap, to make Superior Court litigation viable, efficient and proportionate for “modest-value” commercial, tort and contract claims^[5]. Rule 76 was originally introduced in 1996, with significant amendments in 2010 expanding its reach, including making simplified procedure mandatory for most actions up to $100,000. ^[6]

However, experience revealed that relatively few claimants actually used the simplified track, especially in personal-injury litigation. Plaintiffs routinely claimed above $100,000 simply in case future damages crystallized upward, thereby forfeiting the benefits of Rule 76^[7]. Moreover, the cap at $100,000 meant many viable claims remained in the ordinary track, perpetuating backlogs and cost-inefficiencies

Recognizing this, the province (in concert with the Civil Rules Committee) undertook a period of consultation starting in about 2016, engaging the bench, bar and civil-justice stakeholders in reforming Rule 76^[8]. That consultation^[9] culminated in amendments taking effect on January 1, 2020. Under those amendments^[10], the monetary ceiling rose from $100,000 to $200,000, jury trials were eliminated for simplified-procedure actions (other than select intentional-tort claims), discovery limits and trial length (five days) were formalized, and cost and disbursement caps were introduced ($50,000 costs, $25,000 disbursements)^[11]. The government described the reform objective as “making civil litigation easier [and] faster” and helping to “reduce cost and delay” in the Superior Court^[12].

In short, the evolution of Rule 76 reflects a deliberate, policy-driven shift, from a one-size ordinary procedure burdening mid-value claims, to a tiered, more proportionate model distinguishing higher- and lower-value litigation. The design of simplified procedure did not emerge as an experiment alone, but through consultation, monitoring, feedback and reform. It is the product of attempts to widen access to justice, contain costs and streamline the Court’s inventory of cases.

The Framework of Simplified Procedure Today

When It Applies

Under Rule 76.02(1)^[13], an action may proceed under the simplified procedure if the “amount of money claimed” and/or the “fair market value of any real or personal property claimed” is $200,000 or less, measured as of the date the action is commenced. Interest and costs are excluded from that calculation (unless the pleadings treat them separately). Parties may also opt-in to simplified procedure even if the value is lower, but they cannot proceed in that track if the action is governed by a special rule (for example, a class proceeding, or a matter under the Construction Act that has a trust component)^[14].

Procedural Consequences

Once an action is in the simplified track, several constraints apply^[15]. Discovery is limited in time (typically three hours of oral examination for discovery per side under the 2020 amendments). Affidavit evidence (rather than extensive viva voce) is standard. Time for trial is capped at five days. Cost recovery is capped (costs up to $50,000, disbursements up to $25,000 for actions commenced after Jan 1, 2020). Additionally, and importantly, for simplified-procedure actions commenced after January 1, 2020, jury trials are not available (save narrow exceptions). Thus proceeding under Rule 76 means accepting a judge-alone trial^[16].

I commend to you here a Substack I wrote recently on the choice of jury or judge-alone trials in PI cases, “Courtroom Gamble: Is a Jury Worth the Risk in Personal Injury Claims?”.^[17]

The Monetary Calculation and When the Cap Binds

A core strategic question is this: how do you calculate “amount claimed” and the property value at commencement?

Courts have emphasized that the ceiling must be assessed at the commencement date, not later. A claim drafted above $200,000 cannot simply be whittled down afterward so as to fit into simplified procedure unless the pleadings, parties and stage of the action support the transition. The substantive value of the claim must genuinely be within the boundary when commenced.

For example, in Ingratta v. McDonald, 2024 ONSC 371^[18], the Court examined the timing and value assessments relevant to Rule 76 and stressed that a late shift into simplified procedure invites scrutiny of prejudice, scheduling and fairness. The action had been commenced under ordinary procedure, and as trial approached the plaintiff sought to reclassify the case within Rule 76. The Court confirmed that the simplified-procedure ceiling is assessed as of the date of commencement, and that parties cannot use later developments in the litigation to retro-fit an action into Rule 76 once the litigation’s trajectory and scheduling expectations are set. In Ingratta, the Court declined the late transition, underscoring that monetary jurisdiction under Rule 76 turns on the pleadings and valuation at commencement.

Because interest, costs and post-commencement events may not count for the ceiling, counsel must craft the statement of claim carefully, controlling for extraneous items, and be clear that any interest sought is separate and does not form part of the monetary cap.

Can You Amend Down Into Simplified Procedure?

One of the more interesting developments in recent Rule 76 jurisprudence concerns the increasingly common situation where a claim is initially commenced under the ordinary procedure but, as the litigation progresses, the evidence reveals that its realistic value falls within the $200,000 jurisdictional limit for simplified procedure. In those circumstances, plaintiffs often seek leave to amend the Statement of Claim to reduce the amount claimed, continue the action under Rule 76, and strike any jury notice that has been delivered. While the Rules expressly contemplate this possibility, the recent case law demonstrates that the outcome is far from automatic.

In Belfiori v. Doe, 2025 ONSC 6166^[19], the Court confirmed that where a plaintiff genuinely limits the claim to $200,000 or less, Rule 76 becomes mandatory. Justice Muszynski rejected the insurer’s argument that the action should remain under the ordinary procedure because of its anticipated complexity or because the defendant would lose the benefit of a jury trial. Rather, once the statutory requirements of Rule 76 were met, the parties were expected to tailor the litigation to fit within the simplified-procedure framework, including its five-day trial limit and judge-alone format.

Justice Muszynski reaffirmed that approach only a few months later in Loveless et al. v. Club Medd Bowl, 2026 ONSC 2232^[20]. There, the plaintiffs had originally commenced the action under the ordinary procedure seeking $600,000 in damages. As discovery progressed, however, it became apparent that the plaintiff’s return to work had substantially reduced the economic loss claim. The plaintiffs therefore sought leave to amend the Statement of Claim to limit damages to $200,000 and continue under Rule 76. The Court granted the motion, emphasizing that litigants should be encouraged to reassess the value of their claims as the evidence develops. Importantly, Justice Muszynski held that the mere loss of a jury trial does not, standing alone, constitute non-compensable prejudice. Rather, a defendant resisting such an amendment must identify specific prejudice arising from the change in the mode of trial, such as litigation decisions or trial strategy that cannot be remedied by costs or an adjournment. General assertions that a jury has been lost are insufficient.

Only one week earlier, however, a different result emerged in Emamnazar v. Reid, 2026 ONSC 2062^[21]. There, the plaintiff also sought to reduce the claim to $200,000 and proceed under Rule 76. Unlike in Loveless, the action had been underway for approximately ten years, had already been set down for trial, and the defendant had long relied upon an existing jury notice. Justice Woodley concluded that, in those particular circumstances, removing the action from the ordinary procedure would cause non-compensable prejudice. Rather than refusing the amendment altogether, the Court fashioned an unusual remedy by permitting the plaintiff to amend the pleading, but only to $200,001, thereby keeping the action outside the mandatory simplified-procedure regime and preserving the defendant’s jury right.

Taken together, these decisions illustrate that the ability to amend down into simplified procedure is highly fact-specific. Courts remain receptive to amendments that reflect a genuine reassessment of a claim’s value as litigation unfolds. At the same time, they will consider the timing of the request, the procedural history of the action, the extent to which the parties have relied upon the existing litigation stream, and whether the proposed amendment would cause non-compensable prejudice. The modern trend appears to favour proportionality and efficient use of judicial resources, but the courts retain discretion to refuse or creatively modify an amendment where fairness requires it.

Jury Rights and the Trade-off

I wrote a Substack last summer on the right to a civil jury, “The Jury’s Still In: But for How Long in Ontario?”.^[22]

As I discussed in that blog, a major trade-off of proceeding under simplified procedure is the waiver of a jury trial. For claims commenced post-Jan 1, 2020 in the simplified track, the rule provides that there is no jury. That means parties who value a jury (and its perceived advantages) must think twice about whether to remain in the ordinary track. The right to civil jury trial in Ontario is statutory, not constitutional as in criminal matters, under s. 108 of the Courts of Justice Act^[23] and may be limited by procedure.

In Thomas v. Aviva, 2022 ONSC 1728^[24], the Court held that a legacy jury notice (served before the January 1, 2020 amendments) could not be stripped merely because the parties later sought to migrate the action into the simplified-procedure track. The plaintiff had commenced the action well before the Rule 76 reforms came into force, and the defence had exercised its statutory right to a civil jury under the pre-2020 regime. When the plaintiff later attempted to reposition the action within Rule 76, where jury trials are no longer permitted, the Court found that such a shift would improperly deprive the defendant of a right it had already acquired and relied upon. Justice Ramsay emphasized that the 2020 reforms were expressly prospective and did not retroactively extinguish jury notices delivered in accordance with the former rules. The case underscores that simplified-procedure transitions must respect statutory and temporal protections. Parties cannot retro-fit a legacy claim into Rule 76 simply because the quantum or litigation strategy has evolved, and courts will guard against procedural moves that erode vested rights.

In Lightfoot v. Hodgins, 2021 ONSC 1950^[25], the Court struck a jury notice where it was fair and appropriate to proceed judge-alone under the simplified procedure, even though the defendant had delivered its jury notice much earlier in the litigation. The underlying action arose from a 2015 motor-vehicle accident in which the plaintiff initially advanced damages well in excess of the Rule 76 ceiling, approximately $750,000, placing the case firmly in the ordinary-procedure stream. As the evidence matured, however, the plaintiff sought leave to amend the statement of claim to limit damages to $200,000 and to bring the matter within the simplified-procedure regime. The parties agreed the case was suitable for Rule 76, and the Court noted that a simplified five-day, affidavit-heavy trial was far more proportionate than the anticipated three-week jury trial required under ordinary procedure. Justice Muszynski held that in these circumstances, where the plaintiff genuinely reduced the claim, the action fit within Rule 76, and proportionality strongly favoured the streamlined process, it was just to strike the jury notice. The decision reflects the principle that procedural rights must yield where insisting on a jury would undermine the fairness, timeliness, and proportionality objectives that Rule 76 is designed to achieve.

The upshot? Simplified procedure forces a deliberate choice for a faster, leaner trial process, but no jury.

Recent Case Law: Clarifying the Scope of Rule 76

Sharma v. Bublyk 2025 ONSC 6245

While a full CanLII version is not yet available, Sharma v. Bublyk, 2025 ONSC 6245^[26] provides important clarification on how the $200,000 damages cap operates in multi-party actions under Rule 76. The case arose from a motor-vehicle collision in Barrie involving two plaintiffs, Mr. and Mrs. Sharma, who sued both the at-fault driver and the vehicle owner. Liability was admitted, leaving the Court to determine how the simplified-procedure monetary ceiling applies when there are multiple plaintiffs and multiple defendants. The Court held that the $200,000 limit applies per plaintiff, per defendant, meaning each plaintiff may claim up to $200,000 against each defendant individually. With two plaintiffs and two defendants, the theoretical maximum recovery under Rule 76 was therefore $800,000. The Court adopted this approach by relying on the wording of Rule 76.02 and by reaffirming earlier authority such as Guzha v. Eclipse Colour & Imaging Corp., 2005 CanLII 2400 (ON SC)^[27], which endorsed a liberal and access-to-justice-oriented interpretation of the simplified-procedure regime. The decision also confirmed that although the vehicle owner is vicariously liable for the driver’s negligence, vicarious liability does not expand the cap. The owner’s maximum remains the same as the driver’s, at $200,000 per plaintiff.

In short, Sharma illustrates that in multi-defendant cases, Rule 76’s ceiling multiplies according to the number of plaintiffs and defendants, allowing plaintiffs to maximize recovery while still remaining within the simplified-procedure framework.

Belfiori v. Doe, 2025 ONSC 6166

In the very recent decision of Belfiori^[28] I discussed above, the Ontario Superior Court addressed a plaintiff’s motion to amend a $1,000,000 motor-vehicle claim down to the $200,000 statutory minimum and to continue the action under Rule 76, with the consequential striking of the defendant’s jury notice. The plaintiff, injured when he swerved his motorcycle to avoid an unidentified vehicle, had originally pleaded higher damages on the assumption he might access OPCF-44R family-protection coverage up to $1,000,000. After diligent but unsuccessful efforts to obtain corroborating evidence of the unidentified automobile (including a private investigator and a Wagg motion for the police file), it became clear only the $200,000 unidentified-auto limit was available. The plaintiff moved to amend accordingly. Co-operators opposed, arguing the motion was premature, that there was no concrete plan yet to fit the trial into five days, and that it would suffer non-compensable prejudice by losing its jury. Muszynski J. held that once the claim is genuinely limited to $200,000, Rule 76 simplified procedure is mandatory, that there is no “too-complex/too-long” exception to the five-day trial cap, and that parties litigating sub-$200,000 disputes have an obligation to ensure the case can be tried proportionately within that framework. The Court found no non-compensable prejudice, granted leave to amend, ordered that the action continue under Rule 76, and struck the jury notice.

In practical terms, Belfiori v. Doe confirms that once a claim is properly limited to $200,000 or less, Rule 76 is mandatory and the loss of a jury does not amount to non-compensable prejudice. Parties must shape the case to fit the five-day simplified-procedure model, with the cost consequences in Rule 76.13 applying when an action is amended down from ordinary procedure.

Strategic Commentary for Practitioners

Early Decision-Making is Critical

Given that the ceiling is measured at commencement, counsel should from the outset evaluate whether the value of the claim (and the value of property claims, if any) can realistically fall within $200,000 (excluding interest and costs). That requires assessing potential heads of damage, future contingent claims, and whether the pleadings should limit relief to stay inside the simplified track.

Check Complexity and Readiness

Even if a claim is inside the monetary ceiling, you must ask whether the simplified procedure process will adequately accommodate the scope of the case. As Belfiori v. Doe confirms, once a claim is properly limited to $200,000 or less, the Rules do not permit a “too complex for Rule 76” argument. Parties are expected to shape the case to fit within the five-day model. Where needed, case management may assist, but complexity alone does not justify remaining in ordinary procedure. If you expect multiple experts, voluminous discovery, or viva voce trial evidence, the ordinary track may remain preferable.

Work with the Trade-offs

The simplified track offers distinct advantages including limited discovery, short timeline, cost caps, but it comes at a price. There’s no jury, truncated trial, limits on experts and costs recovery. Clients must understand that choosing the simplified track signals acceptance of these conditions in exchange for efficiency.

Monitor the Reform Environment

Although this article focuses on the current operation of Rule 76, practitioners should continue to monitor Ontario’s broader Civil Rules Review. Since this article was first published, the Civil Rules Review Working Group has completed its Final Policy Report, and the Attorney General and the Superior Court have confirmed that implementation of the recommended reforms will proceed in stages rather than through a single comprehensive rewrite of the Rules of Civil Procedure^[29].

Many of the proposed reforms including an upfront evidence model, enhanced pre-litigation protocols, expanded case management, streamlined commencement procedures, and a new three-track procedural framework, have the potential to reshape the strategic considerations surrounding Rule 76. If ordinary procedure becomes more efficient, proportionate and actively managed, the comparative advantages of simplified procedure may evolve. Conversely, if the reforms further emphasize proportionality and early disclosure, many of the concepts that have long characterized Rule 76 may increasingly influence civil litigation generally^[30].

For that reason, I believe counsel should view Rule 76 not as a static procedural regime, but as part of a broader movement toward a more efficient and proportionate civil justice system. The strategic question in the coming years may be less whether simplified procedure itself changes, and more how the distinction between simplified and ordinary procedure evolves as Ontario’s civil justice reforms continue to be implemented.

Practical Checklist for a Rule 76-file

From drafting the statement of claim onward, assess:

(1) total claimed relief and whether it is within $200,000;

(2) whether the client is willing to proceed judge-alone;

(3) whether the factual and expert scope can be limited to a five-day trial;

(4) whether cost/disbursement caps are acceptable; and

(5) whether the case is ready to move rapidly.

If the answers are favourable, simplified procedure can yield a streamlined, cost-efficient path. If not, the ordinary track remains the safe choice.

Conclusion

Rule 76 remains one of the most under-used yet most effective tools for managing modest-value civil claims in Ontario. Beyond its access-to-justice purpose, the simplified procedure now plays a critical structural role in alleviating the Superior Court’s backlog. Jury trials for sub-$200,000 cases, particularly chronic-pain and other lower-quantum tort actions, consume far more Court time than judge-alone trials, often anecdotally taking twice as long and proving substantially harder to schedule. They also tend to be more difficult to settle, given the inherent unpredictability of jury outcomes. Eliminating juries in this class of cases is not merely a procedural detail. It is a major efficiency gain for the civil justice system.

For practitioners, the incentives are unmistakable. Rule 76 offers faster trial dates, shorter trials, reduced costs exposure, more focused evidentiary presentation, and a streamlined framework that is far easier for clients to navigate. Yet from my seat as mediator, many lawyers still overlook the rule or fail to consider its strategic advantages, even where a claim fits comfortably within its boundaries. The recent decisions of Belfiori v. Doe and Sharma v. Bublyk demonstrate that when used thoughtfully, simplified procedure delivers proportionate, predictable, and timely adjudication without sacrificing fairness.

In a civil justice system under intense scheduling pressure, the simplified procedure is no longer a niche option. It is a core mechanism for restoring trial efficiency and improving access to justice. Counsel should assess, early and deliberately, whether a claim belongs in Rule 76, not only for the client’s benefit, but for the collective health and functionality of the courts themselves.

^[1] https://www.ontario.ca/laws/regulation/900194

^[2] https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2069?

^[3] https://www.lawtimesnews.com/archive/make-the-simplified-rules-meaningful/263345

^[4] https://mccagueborlack.com/emails/articles/rule-76.html

^[5] https://www.mcleishorlando.com/insights/significant-changes-coming-to-rule-76-simplified-procedure/

^[6] https://gowlingwlg.com/en-ca/insights-resources/articles/2020/ontario-introduces-simplified-amendments

^[7] https://gowlingwlg.com/en-ca/insights-resources/articles/2020/ontario-introduces-simplified-amendments

^[8] https://advocates.ca/Common/Uploaded%20files/Advocacy/Submissions/OntarioRulesofCivilProcedure/Simplified_Procedure_and_Jury_Trials-Consultation_Document.pdf

^[9] https://www.advocates.ca/Common/Uploaded%20files/Advocacy/Submissions/OntarioRulesofCivilProcedure/Letter_from_TAS_to_Civil_Rules_Committee-December_8_2016.pdf

^[10] https://mccagueborlack.com/emails/articles/rule-76.html

^[11] https://www.stringerllp.com/2020/01/29/recent-amendments-to-rule-76-simplified-procedure-2/

^[12] https://www.ontario.ca/page/civil-claims-simplified-procedure

^[13] https://www.ontario.ca/laws/regulation/900194

^[14] https://www.rmc-agr.com/publication/the-good-the-bad-and-the-ugly-understanding-simplified-procedure

^[15] https://mcmillan.ca/insights/ontario-makes-changes-to-court-procedures

^[16] https://mcmillan.ca/insights/ontario-makes-changes-to-court-procedures

^[17] https://open.substack.com/pub/shawnpatey/p/courtroom-gamble-is-a-jury-worth?r=648252&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

^[18] https://www.canlii.org/en/on/onsc/doc/2024/2024onsc371/2024onsc371.html

^[19] https://www.canlii.org/en/on/onsc/doc/2025/2025onsc6166/2025onsc6166.html

^[20] https://www.canlii.org/en/on/onsc/doc/2026/2026onsc2232/2026onsc2232.html

^[21] https://www.canlii.org/en/on/onsc/doc/2026/2026onsc2062/2026onsc2062.html

^[22] https://open.substack.com/pub/shawnpatey/p/the-jurys-still-in-but-for-how-long?r=648252&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

^[23] https://www.ontario.ca/laws/statute/90c43

^[24] https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1728/2022onsc1728.html

^[25] https://www.canlii.org/en/on/onsc/doc/2021/2021onsc1950/2021onsc1950.html999

^[26] You can find the full decision here on this LinkedIN post: https://www.linkedin.com/posts/nick-todorovic_sharma-v-bublyk-2025-onsc-6245-activity-7394013843787694081-xlD2?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAWkATcBmYAZoAxrwxelavqmdL_2EK5p_g8

^[27] https://www.canlii.org/en/on/onsc/doc/2005/2005canlii2400/2005canlii2400.html?resultId=d3bb008da29e4aaeb54a6f81c4c2c7c9&searchId=2025-11-16T09:21:51:084/71679d286c2347919f238245b0adc157

^[28] https://www.canlii.org/en/on/onsc/doc/2025/2025onsc6166/2025onsc6166.html

^[29] https://www.ontariocourts.ca/scj/areas-of-law/civil-court/civil-rules-review/

^[30] https://www.ontariocourts.ca/scj/files/pubs/2025-12-15-final-policy-proposal.pdf

“Plus ça change, plus c’est la même chose.”
(”The more things change, the more they stay the same.”)

— Jean-Baptiste Alphonse Karr, Les Guêpes (January 1849)

Why Traditional Negligence Principles Are Being Tested by Modern Transportation

Every generation seems convinced that the law has fallen behind technology.

The arrival of the automobile, commercial aviation, motorcycles, snowmobiles, bicycles, and now electric scooters and self-driving cars, has each prompted predictions that the existing legal framework would prove inadequate to deal with the challenges ahead. Yet I believe history tells a different story. While the facts have changed dramatically, the underlying principles of negligence law have remained remarkably resilient.

After my decades in practice, I am convinced that negligence law is one of the most adaptable areas of the common law. It does not require Parliament or the courts to reinvent it every time society adopts a new technology. Instead, it asks the same questions it has always asked. Did someone owe a duty of care? Was that duty breached? Did the breach cause the loss? If more than one person contributed to the accident, how should responsibility be apportioned?

Those questions are as relevant to a collision involving an autonomous vehicle as they were to one involving a horse and carriage.

What has changed is not the law.

What has changed is the environment in which the law now operates.

I have previously written about the unique legal issues surrounding electric scooters in my Substack “Sidewalk Roulette: The Legal Fallout of E-Scooter Use”^[1]. Although scooters have attracted considerable public attention, they represent only one example of a much broader phenomenon. Our roads, sidewalks and public spaces are becoming increasingly crowded with new forms of transportation and new forms of distraction. Ride-sharing like services like Uber and Lyft have transformed urban travel. Electric bicycles and scooters are now commonplace. Drivers increasingly rely upon sophisticated driver-assistance technology, and although fully autonomous vehicles remain some years away in Canada, their arrival appears inevitable. Pedestrians routinely navigate busy intersections while looking at smartphones or wearing noise-cancelling headphones.

None of these developments require courts to abandon established negligence principles.

They do, however, require courts to apply those principles to circumstances that would have been unimaginable even twenty years ago.

In my view, this is likely to become one of the defining themes of negligence litigation over the next decade. The legal framework is already in place. The challenge will be determining how those familiar principles should be applied in factual situations that continue to evolve at a remarkable pace.

Technology Has Changed Behaviour More Than It Has Changed the Law

One of the more interesting aspects of practising law over several decades is watching society change while the legal principles remain remarkably stable.

When I began my practice in the 80’s, the typical motor vehicle case generally involved allegations that one driver failed to stop at a stop sign, followed too closely, turned left without yielding, or drove too quickly for the conditions. Pedestrians certainly featured in many cases, but they were usually viewed as reacting to traffic rather than competing with it for attention.

Today, the factual matrix is considerably more complicated.

A driver may be receiving navigation instructions from a rideshare application while simultaneously relying upon adaptive cruise control. A cyclist may be travelling on an electrically assisted bicycle capable of speeds unheard of for traditional bicycles. A pedestrian may step into a crosswalk while concentrating on a text message. Delivery vehicles stop unexpectedly to satisfy increasingly demanding delivery schedules. Meanwhile, many newer vehicles monitor blind spots, automatically apply their brakes and, in some circumstances, even steer themselves within a lane.

The law governing negligence has not materially changed during this period.

Human behaviour has.

That distinction is important because some discussions I have read about emerging transportation technology often begin with the assumption that existing legal principles have become obsolete^[2]. In my view, that assumption is mistaken. The common law has always evolved incrementally. Rather than creating entirely new causes of action every time technology advances, courts generally ask whether existing principles can accommodate the new factual circumstances before them.

History suggests that they usually can.

The flexibility of negligence law lies in its ability to apply objective standards of reasonable care regardless of the particular technology involved. The “reasonable driver” of today is expected to exercise reasonable care while operating a vehicle equipped with technology that would have seemed extraordinary only a generation ago. Likewise, the reasonable pedestrian is expected to exercise reasonable care while navigating an increasingly complex urban environment.

The standard evolves because society evolves.

The legal principle does not.

The Rise of the Distracted Pedestrian

Much has been written about distracted driving. I wrote on the subject last summer on Substack in my blog “Driven to Distraction: Evidence, Apportionment & Settlement in Ontario Crashes” ^[3]. Legislatures have enacted prohibitions against the use of handheld devices while operating motor vehicles, public education campaigns have emphasized the dangers involved^[4], and courts have repeatedly considered the consequences of driver distraction.

Far less attention has been devoted to distracted pedestrians.

Yet anyone who regularly walks through a busy downtown core has witnessed the phenomenon. People cross intersections while reading messages on their phones, listening to music through noise-cancelling headphones, or scrolling through social media with little apparent awareness of the traffic around them. Many are so absorbed in their devices that they fail to observe traffic signals, cyclists, turning vehicles or even other pedestrians.

The law has never required perfection from pedestrians, any more than it has from motorists. However, it has always required reasonable care for one’s own safety.

That principle long predates the smartphone.

One of the foundational authorities remains the Supreme Court of Canada’s 1975 decision in Taylor v. Asody^[5]. In that case, a pedestrian crossed a downtown Toronto street between intersections and was struck by a motorist who was reversing his vehicle. Neither party saw the other in time to avoid the collision. Although the motorist admitted partial responsibility for the accident, the Supreme Court of Canada emphasized that the pedestrian likewise bore an independent obligation to exercise reasonable care for his own safety. The Court observed that pedestrians crossing outside designated intersections must remain vigilant and keep a proper lookout for traffic, just as motorists must exercise care when operating their vehicles. Although the case arose decades before mobile technology became part of everyday life, it reaffirmed an enduring principle that remains equally applicable today that neither motorists nor pedestrians are relieved of their obligation to exercise reasonable care simply because another person also owes a duty of care. The existence of one duty does not eliminate the other. Instead, negligence law recognizes that responsibility for an accident may be shared where each party fails to meet the standard of care required in the circumstances.

That principle has become increasingly significant as courts confront accidents involving distracted pedestrians. The question is no longer simply whether the driver exercised reasonable care. It is also whether the pedestrian’s own conduct contributed to the accident.

An instructive modern example is British Columbia Court of Appeal’s 2014 decision in Paskall v. Scheithauer^[6]. In that case, a young woman with cerebral palsy was struck by a motor vehicle while crossing a street in a marked crosswalk, where she clearly had the statutory right-of-way. The driver admitted negligence, but alleged that the pedestrian had also failed to take reasonable care for her own safety. Although the plaintiff testified that she had looked before entering the crosswalk, other witnesses suggested that she had stepped into the roadway without maintaining an adequate lookout. The jury ultimately found the driver predominantly responsible, but nevertheless attributed 20 percent of the fault to the pedestrian, and the British Columbia Court of Appeal upheld that determination. In doing so, the Court emphasized that while a pedestrian lawfully within a crosswalk is entitled to assume that motorists will obey the law and yield the right-of-way, that entitlement does not extinguish the pedestrian’s common law obligation to exercise reasonable care for his or her own safety. While each case necessarily turns upon its own facts, Paskall illustrates an important and enduring principle, that even where a pedestrian enjoys significant statutory protections, courts must still consider whether the pedestrian acted reasonably in the circumstances before apportioning liability.

Ontario’s Negligence Act has long recognized that responsibility for an accident may rest with more than one party^[7]. Courts are directed to apportion fault according to the respective degrees of negligence where both parties contributed to the loss. That statutory framework was not enacted with smartphones in mind. Nevertheless, it is perfectly capable of addressing the realities of modern pedestrian behaviour.

In my experience, this represents an important shift in the way many negligence cases are likely to be argued. Historically, pedestrian cases often focused almost exclusively on the driver’s conduct. Increasingly, counsel will also be examining the pedestrian’s awareness, attentiveness and decision-making in the moments immediately preceding the collision.

I am not suggesting that motorists owe any lesser duty toward vulnerable road users. Quite the contrary. Drivers continue to operate machines capable of causing catastrophic injury, and the law appropriately imposes significant responsibilities upon them.

The point is a different one.

As technology changes the way pedestrians behave, courts are likely to continue applying longstanding principles of contributory negligence to determine whether responsibility should be shared. The doctrine itself is neither novel nor controversial. What is changing are the factual circumstances in which that doctrine must now operate.

Rideshare Services: New Technology, Familiar Legal Principles

Rideshare services also illustrate how technological innovation can create new factual circumstances without fundamentally altering the law of negligence. Unlike the traditional taxi industry, rideshare platforms connect passengers with drivers through sophisticated digital applications, while drivers typically operate their own privately owned vehicles rather than company-owned fleets. The result has been the emergence of novel questions concerning insurance coverage, the legal status of drivers, and, in some cases, the potential liability of platform operators. The Supreme Court of Canada has recognized that Uber’s digital platform business model differs significantly from traditional transportation services, raising legal questions concerning the relationships between platform operators and those who use their services^[8].

When a collision occurs, however, the negligence analysis remains remarkably familiar. Courts must still determine whether the driver owed a duty of care, whether the applicable standard of care was breached, whether that breach caused the plaintiff’s injuries, and whether contributory negligence requires responsibility to be apportioned. The fact that the journey was arranged through a smartphone application rather than a dispatcher does not alter those fundamental principles.

Where rideshare litigation has proven more innovative is not in the law of negligence itself, but in the insurance issues that surround these claims. Ontario has developed an insurance framework that overlays commercial coverage onto personal automobile policies during different stages of a rideshare driver’s use of the platform, depending upon whether the driver is offline, awaiting a ride request, travelling to collect a passenger, or transporting one^[9]. Those issues frequently involve questions of insurance priority and available coverage rather than any departure from established negligence principles.

The lesson is an important one. Rideshare services have undoubtedly created new legal questions, but they have not required courts to reinvent negligence law. Instead, I believe judges will continue to apply long-established principles of reasonable care, adapting established common law principles incrementally to a transportation model that would have been unimaginable only a few decades ago.

When the Driver Is Assisted by Technology

Perhaps the most fascinating development to me lies not in ridesharing, but in the increasing sophistication of the vehicles themselves.

Many modern automobiles now monitor blind spots, warn of approaching hazards, apply emergency braking, maintain lane position and regulate following distance with minimal driver input. Manufacturers continue to move incrementally toward increasingly autonomous systems, even if fully autonomous vehicles remain relatively uncommon on Canadian roads.

This raises questions that would have sounded like science fiction only a few decades ago.

If a driver relies upon an automated emergency braking system that fails to activate, where should responsibility lie? If a lane-keeping system unexpectedly disengages, does the standard of care imposed upon the driver change? If software contributes to the accident, should responsibility remain exclusively with the driver, or should product liability principles assume greater importance?

From my research, Canadian courts have not yet produced a substantial body of jurisprudence answering these questions. That is hardly surprising. The technology is developing far more rapidly than reported litigation.

Nevertheless, the absence of extensive precedent should not be mistaken for uncertainty in the governing legal principles. The Supreme Court of Canada has repeatedly emphasized that negligence law develops incrementally by applying established principles to new factual circumstances rather than by creating entirely new legal doctrines whenever society changes. One of the leading authorities in that regard is the Supreme Court of Canada’s 2001 case Cooper v. Hobart^[10]. Although the case did not concern transportation technology, it reaffirmed the incremental development of the common law of negligence and cautioned against unnecessary expansion of legal principles where established doctrine already provides the analytical framework.

I suspect that future litigation involving advanced driver-assistance systems will follow precisely that approach. Courts are unlikely to abandon traditional negligence analysis simply because a vehicle incorporates increasingly sophisticated technology. Rather, they will ask what constituted reasonable care in light of the capabilities and limitations of that technology.

That is exactly how the common law has always evolved.

Canada May Be Years Away, But The Legal Questions Have Already Arrived

For Canadians, fully autonomous vehicles may still seem like something from the future. While many new vehicles now incorporate sophisticated driver-assistance technology, Although driverless vehicles have begun to appear in limited pilot programs, truly driverless vehicles remain rare on Canadian roads and are largely confined to testing or pilot projects^[11].

By contrast, parts of the United States have already moved beyond experimentation. Companies such as Waymo now operate fully autonomous ride-hailing services in cities including Phoenix, San Francisco and Los Angeles^[12], while several other manufacturers continue to test increasingly sophisticated autonomous driving systems on public roads. The legal questions that Canada will eventually confront are therefore already beginning to emerge south of the border.

I think there are several reasons why Canada appears likely to trail the United States in the widespread deployment of autonomous vehicles. Geography is one. Canada’s smaller population, lower traffic density and comparatively limited commercial market provide less incentive for manufacturers to invest heavily in nationwide autonomous fleets. Climate is another. Snow, ice, freezing rain and inconsistent lane markings present technical challenges that are far less common in many of the American jurisdictions where autonomous vehicles are currently being deployed. Regulatory fragmentation also plays a role. In Canada, responsibility for highways, driver licensing, automobile insurance and motor vehicle regulation rests primarily with the provinces, making large-scale implementation more complex than in many American states that have enacted legislation specifically designed to facilitate autonomous vehicle testing^[13].

None of this suggests that autonomous vehicles will not eventually become commonplace in Canada. Quite the opposite. Their arrival appears inevitable. The only real uncertainty is timing.

Fortunately, the American experience provides some indication of the legal issues Canadian courts are likely to confront.

The most significant event I have been able to find to date was the fatal collision involving an Uber autonomous test vehicle in Tempe, Arizona, in 2018^[14]. A modified Volvo XC90 operating in autonomous mode struck and killed a pedestrian who was crossing a multi-lane roadway at night while pushing a bicycle outside a designated crosswalk. Although the vehicle’s automated driving system detected the pedestrian several seconds before impact, it repeatedly misclassified her, failed to accurately predict her path, and ultimately relied upon the human safety driver to intervene, but intervention came too late.

Although the litigation itself undoubtedly remains significant, it was the subsequent investigation by the United States National Transportation Safety Board that has proven particularly instructive^[15]. The investigation concluded that responsibility did not rest solely with the automated driving system. Instead, it identified multiple contributing causes, including the safety driver’s failure to monitor the roadway, Uber’s inadequate safety culture and risk management practices, deficiencies in governmental oversight, and the pedestrian’s decision to cross outside a designated crosswalk.

From a negligence perspective, that conclusion is striking.

Rather than treating autonomous technology as replacing traditional negligence analysis, investigators approached the accident in much the same way courts have approached complex negligence cases for decades. They examined the conduct of every participant. They considered whether the human operator exercised reasonable care. They examined the design and operation of the automated system. They assessed the conduct of the pedestrian. They scrutinized the corporate practices governing the testing program itself.

In other words, the emergence of autonomous technology did not eliminate negligence law. It simply expanded the number of actors whose conduct required examination.

The same theme appears in litigation involving Tesla’s Autopilot and Full Self-Driving systems. Although these systems are not fully autonomous in the legal sense and continue to require active driver supervision, recent American litigation has increasingly focused on whether responsibility should lie with the driver, the vehicle manufacturer, or both. A Florida jury^[16] recently apportioned liability between Tesla and the driver following a fatal Autopilot collision, illustrating that traditional concepts of shared responsibility remain central even where advanced driving technology is involved. A more recent fatal collision in Katy, Texas, is also under investigation by the National Transportation Safety Board^[17]. According to the Board’s preliminary report, electronic data indicated that the driver manually overrode the vehicle’s Full Self-Driving (Supervised) system immediately before the crash, underscoring that even advanced driver-assistance systems continue to require active human supervision.

I suspect Canadian courts will ultimately approach these cases in much the same manner.

The central question will not be whether autonomous vehicles require an entirely new law of negligence. It will be whether existing negligence principles can fairly allocate responsibility among human drivers, vehicle manufacturers, software developers and, perhaps in some circumstances, governmental regulators. That exercise is certainly more complex than determining whether a driver failed to stop at a stop sign. Yet it remains recognizably the same legal analysis that courts have performed for generations.

If history is any guide, the law will not struggle because the technology is new. It will adapt, incrementally and pragmatically, just as it always has.

The Increasing Importance of Shared Responsibility

If there is one theme that I believe will become increasingly prominent over the next decade, it is the growing importance of apportioning fault.

Modern negligence cases rarely involve a single careless act viewed in isolation. Instead, they often involve a sequence of decisions made by multiple individuals, each contributing in some measure to the ultimate outcome.

A driver may be travelling slightly above the speed limit. A pedestrian may step into the roadway while distracted by a mobile device. A cyclist may be travelling faster than conditions reasonably permit. A rideshare driver may momentarily divide attention between traffic and a navigation application. None of these circumstances necessarily excuses the conduct of the others. Rather, each becomes part of the overall factual matrix that the Court must evaluate when determining responsibility.

For me as a mediator, this evolution presents both challenges and opportunities.

Parties frequently approach mediation viewing liability as an all-or-nothing proposition. Yet many modern negligence cases resist such simplistic analysis. As the factual circumstances become more nuanced, the likelihood increases that responsibility will be shared among several participants, each having fallen short of the standard of reasonable care in different ways.

Recognizing that possibility often changes the dynamics of settlement discussions. Once litigants begin viewing liability as a matter of degree rather than absolutes, meaningful compromise frequently becomes easier to achieve.

Looking Ahead

When lawyers discuss emerging technology, there is sometimes a temptation to focus on what is different.

The more interesting question, in my view, is what has remained remarkably constant.

The duty of care remains. The standard of reasonable care remains. The principles governing causation remain. The law respecting contributory negligence remains. Even the process by which the common law develops has remained fundamentally unchanged.

What has evolved are the factual situations to which those principles must now be applied.

That should give us confidence in the future of negligence law rather than concern. The common law has successfully adapted to the arrival of automobiles, commercial aviation, motorcycles, bicycles and, more recently, electric scooters. There is every reason to believe it will adapt equally well to ridesharing platforms, advanced driver-assistance systems and, eventually, autonomous vehicles.

As lawyers and mediators, we often spend our professional lives looking backward, reconstructing accidents that have already occurred. Increasingly, however, we will also be asked to consider accidents that could scarcely have been imagined when many of our foundational negligence principles were first developed.

That, to me, is one of the enduring strengths of the common law. It does not require us to abandon settled principles every time society changes. Instead, it asks judges to apply those principles thoughtfully, incrementally and pragmatically to the world as it actually exists.

The roads have changed.

The rules, for the most part, have not.

^[1] https://open.substack.com/pub/shawnpatey/p/sidewalk-roulette-the-legal-fallout?r=648252&utm_campaign=post&utm_medium=web

^[2] For example, Gregory C Keating, Pouring New Wine Into Old Skins: The Case of Self-Driving Cars (2026), USC Law Legal Studies Paper No 26-02 (SSRN) (Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6111626)

^[3] https://open.substack.com/pub/shawnpatey/p/driven-to-distraction-evidence-apportionment?r=648252&utm_campaign=post&utm_medium=web

^[4] Highway Traffic Act, RSO 1990, c H.8, ss. 78.1–78.2; Ontario Ministry of Transportation, “Distracted Driving” (Online: https://www.ontario.ca/page/distracted-driving)

^[5] [1975] 2 S.C.R. 414 (Online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4286/index.do)

^[6] 2014 BCCA 26 (Online: https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca26/2014bcca26.html)

^[7] Negligence Act, RSO 1990, c N.1, s. 1; Taylor v. Asody, [1975] 2 SCR 414.

^[8] Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 SCR 118 at paras 1–5, 37–41 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18406/index.do)

^[9] Financial Services Regulatory Authority of Ontario, Ridesharing, Carsharing and Auto Insurance in Ontario (Protect Yourself) (Online: FSRA https://www.fsrao.ca/consumers/auto-insurance/protect-yourself/ridesharing-carsharing-and-auto-insurance-ontario-protect-yourself); Ontario, Ontario Modernizing Auto Insurance System to Protect Ride-Sharing Consumers (7 July 2016) (Online: Ontario Newsroom https://news.ontario.ca/en/release/41055/ontario-modernizing-auto-insurance-system-to-protect-ride-sharing-consumers.)

^[10] 2001 SCC 79 (Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1920/index.do)

^[11] Transport Canada, Guidelines for Testing Automated Driving Systems in Canada: Version 2.0 (Ottawa: Transport Canada, 2021) (Online: Government of Canada https://tc.canada.ca/en/road-transportation/innovative-technologies/connected-automated-vehicles/guidelines-testing-automated-driving-systems-canada); Ontario, Automated Vehicle Pilot Program (Online: Government of Ontario https://www.ontario.ca/page/automated-vehicle-pilot-program).

^[12] Waymo LLC, Ride with Waymo: The World’s First Autonomous Ride-Hailing Service, online: Waymo https://waymo.com/rides/; Waymo LLC, Ride with Waymo, online: Waymo Help https://support.google.com/waymo/answer/9276820.

^[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, ss 91–92; Transport Canada, Guidelines for Testing Automated Driving Systems in Canada: Version 2.0 (Ottawa: Transport Canada, 2021), online: Government of Canada https://tc.canada.ca/en/road-transportation/innovative-technologies/connected-automated-vehicles/guidelines-testing-automated-driving-systems-canada; National Conference of State Legislatures, Autonomous Vehicles Legislation Database (updated 16 June 2026), online: NCSL https://www.ncsl.org/transportation/autonomous-vehicles-legislation-database.

^[14] https://www.ntsb.gov/investigations/pages/HWY18MH010.aspx

^[15] https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1903.pdf

^[16] https://www.reuters.com/legal/litigation/legal-heavyweights-square-off-in-243-million-tesla-crash-appeal-2026-07-16/

^[17] https://www.ntsb.gov/investigations/Pages/HWY26FH014.aspx

A Mediation Reminder

While preparing for a couple of recent mediations involving a public transit commission, I found myself revisiting a somewhat unusual corner of Ontario personal injury law. The plaintiff passengers in both cases alleged that they were injured when the bus came to a sudden stop. There was no collision with another vehicle and no impact with a fixed object. Instead, the allegation was that the force of the stop itself caused a loss of balance and the resultant injury.

As I reviewed the mediation briefs, I was reminded of how differently these cases are treated under Ontario’s automobile insurance regime. In most motor vehicle cases, discussions about compensation begin with accident benefits. Regardless of fault, lawyers immediately consider what treatment funding may be available, whether income replacement benefits are payable, and what rehabilitation supports can be accessed through the statutory accident benefits system.

In certain public transit cases, however, that conversation ends before it begins. Depending upon the circumstances, an injured passenger may have no entitlement to accident benefits whatsoever. That result flows from legislation enacted in 2011 and commonly described by the phrase “No Crash, No Cash.”

The phrase is memorable, but it does not fully capture what Bill 173 actually accomplished. The legislation did more than remove accident benefits from certain transit claims. It fundamentally altered the relationship between no-fault compensation and fault-based litigation. Fifteen years after its enactment, and in light of the recent 2026 Divisional Court decision in Mohammed v. TTC Insurance Company Limited^[1], it may be worth asking whether the legislative bargain ultimately delivered what it promised.

What Bill 173 Changed

Before Bill 173, for two decades into my practice in personal injury law, a passenger injured on a public transit vehicle could generally access statutory accident benefits in the same way as occupants of other motor vehicles. If the injury arose out of the use or operation of the vehicle, accident benefits were available to provide treatment funding, rehabilitation assistance, attendant care in appropriate cases, and income replacement benefits. The system was far from perfect, but it provided a source of immediate assistance without requiring an injured person to first establish fault.

Bill 173 changed that framework by introducing what is now section 268(1.1)^[2] of the Insurance Act. The provision creates an exception for occupants of public transit vehicles and states that accident benefits are not payable where the transit vehicle did not collide with another automobile or any other object.

The reform was driven largely by concerns expressed by public transit authorities and government policymakers regarding claims arising from non-collision transit incidents. These claims often involved allegations of injury resulting from sudden stops, sharp turns, abrupt acceleration or other routine movements of public transit vehicles. The government responded by removing access to accident benefits in many of those circumstances through the enactment of section 268(1.1) of the Insurance Act^[3].

The result was straightforward. A passenger injured during a non-collision transit incident would no longer have access to Ontario’s no-fault accident benefits regime. The more interesting question is what the legislature offered in return.

The Modern Example: Mohammed v. TTC Insurance Company Limited

The Divisional Court’s decision in Mohammed provides a useful illustration of how Bill 173 continues to operate today.

Sandra Mohammed was travelling on a TTC bus in November 2022 when a fire truck with activated emergency lights proceeded through an intersection ahead of the bus. The vehicle in front of the bus stopped, causing the bus operator to brake suddenly. Ms. Mohammed alleged that she was thrown forward and injured when she came into contact with the interior of the bus.

The facts are not unusual. Indeed, they are precisely the sort of circumstances that Bill 173 was intended to address. There was no collision with another vehicle. There was no impact with a fixed object. The alleged injuries arose entirely from the movement of the bus itself.

Ms. Mohammed applied for statutory accident benefits through TTC Insurance Company Limited. The claim was denied. She challenged that denial before the Licence Appeal Tribunal and eventually before the Divisional Court.

Her argument was creative. Section 268(1.1) removes accident benefits where a transit vehicle does not collide with another automobile or “any other object.” Ms. Mohammed argued that she herself constituted the relevant object. Since the movement of the bus caused her to strike the interior of the vehicle, she submitted that the collision requirement had effectively been satisfied.

The Divisional Court rejected that argument. The Court held that the phrase “another automobile or any other object” must be interpreted in context. The legislation was directed toward collisions involving the transit vehicle itself and contemplated contact with things external to the bus. A passenger riding inside the vehicle could not reasonably be regarded as the “other object” contemplated by the statute.

The Court’s reasoning was consistent with both the wording and purpose of the legislation. To interpret the provision otherwise would largely erase the distinction the legislature intended to create between collision and non-collision incidents.

As a result, Ms. Mohammed was found not to be entitled to accident benefits. However, the Court also observed that she remained free to pursue compensation through a tort claim against the TTC, which she had already commenced.

That observation goes directly to the heart of the legislative compromise created by Bill 173.

The Legislative Trade-Off

Bill 173 did not simply remove accident benefits and leave injured transit passengers without a remedy. At the same time that accident benefits were restricted, the legislation altered the tort landscape.

Prior to Bill 173, if a transit incident qualified as an automobile accident, a plaintiff seeking damages for pain and suffering generally faced the threshold and deductible provisions contained in the Insurance Act^[4]. Those provisions were designed to limit recovery in less serious cases and have long been a defining feature of Ontario automobile litigation.

Bill 173 largely removed those barriers in non-collision transit cases. The legislature’s apparent reasoning was that if passengers were going to lose access to accident benefits, they should receive broader access to the civil courts. The trade-off seemed straightforward. Transit authorities would be relieved of accident benefits exposure while injured passengers would gain easier access to tort claims.

A Different Perspective

Supporters of the reforms would likely view the legislation somewhat differently. From that perspective, Bill 173 was not intended to guarantee transit passengers an equivalent form of compensation, but rather to redefine the circumstances in which public resources would be engaged. The reforms responded to concerns that claims arising from routine bus movements, such as sudden stops, sharp turns and ordinary acceleration or braking, were increasingly generating accident benefits exposure even where no negligence had occurred. By restricting access to no-fault benefits while preserving the right to pursue a negligence claim, the legislature sought to distinguish between injuries resulting from the ordinary operation of public transit and those caused by legally blameworthy conduct. Whether that policy choice ultimately struck the appropriate balance remains open to debate.

On paper, the compromise appears balanced.

The difficulty is that access to a lawsuit is not necessarily the same thing as access to compensation.

Was the Trade-Off Really Equivalent?

The answer becomes less obvious once one moves beyond the legislation itself and examines how transit injury claims are actually litigated.

Last year, I wrote an article entitled The Bus Stops Here: Passenger Contributory Negligence in Transit Injury Claims^[5]. In reviewing the case law, I was struck by a recurring theme. Courts consistently emphasize that public transit operators are common carriers owing passengers a heightened duty of care. At the same time, however, courts are equally clear that transit authorities are not insurers of passenger safety. The fact that a passenger falls, loses their balance or sustains an injury while riding public transit does not, by itself, establish negligence.

That distinction matters because proving negligence in a transit case can be surprisingly difficult. Public transit vehicles start, stop and turn. Passengers frequently stand while travelling. Sudden movements are sometimes unavoidable. Courts have repeatedly held that the ordinary movements of a bus or subway do not amount to negligence merely because an injury results.

Cases such as the 2018 decision in Seyom v. TTC^[6] and the 2017 case Caplan v. TTC^[7] demonstrate the challenge. The courts have repeatedly held that plaintiffs must identify a specific act or omission constituting a breach of the standard of care. The mere occurrence of an injury is insufficient. A bus moved. A passenger fell. That alone does not establish liability.

Even where negligence can be established, transit defendants frequently advance contributory negligence arguments. Passengers may be criticized for failing to hold a handrail, failing to secure themselves properly, carrying cumbersome items, rushing to exit the vehicle, or otherwise failing to take reasonable steps for their own safety. Courts have often been receptive to those arguments and have reduced damages accordingly.

Read together, Mohammed and the cases discussed in The Bus Stops Here raise an interesting policy question. Bill 173 assumed that broader tort rights would adequately replace accident benefits in non-collision transit cases. Yet if proving negligence remains difficult, and if contributory negligence continues to reduce recoveries in many cases, one is left to wonder whether the replacement remedy is truly equivalent to the one that was removed.

There is another distinction that is often overlooked. In a conventional automobile case, the litigation unfolds within Ontario’s automobile insurance framework. Transit claims occupy a different space. Transit authorities are not ordinary motorists, nor are they typical automobile insurers participating in the standard accident benefits system. Although they maintain insurance arrangements and defend claims through captive insurers or self-insurance structures, the litigation environment is fundamentally different from that encountered in ordinary automobile negligence actions.

The result is that Bill 173 did not simply substitute one compensation system for another. It replaced a no-fault benefits regime with a fault-based litigation regime, complete with all of the evidentiary, procedural and practical challenges that fault-based litigation inevitably entails.

Immediate Compensation Versus Delayed Compensation

The distinction becomes even more significant when one considers the fundamentally different purposes served by accident benefits and tort claims.

Accident benefits are intended to provide immediate support. Their purpose is to fund treatment, facilitate rehabilitation and replace income while an injured person recovers. They exist because the consequences of injury are often immediate and pressing.

A tort claim serves a different purpose. It determines responsibility and compensates losses after the litigation process has run its course. In Ontario, that process often takes years.

For individuals fortunate enough to possess private disability coverage, extended health benefits or significant financial resources, that delay may be manageable. For others, it may not be. A successful tort claim several years later does not necessarily address the immediate need for treatment, rehabilitation and income replacement during the months following an injury.

The question is therefore not simply whether transit passengers retained a remedy. Clearly they did. The question is whether the remedy they retained serves the same function as the remedy they lost.

The View From the Mediation Room

From a mediator’s perspective, cases such as Mohammed provide an interesting lens through which to evaluate legislative reform. By the time these disputes arrive at mediation, the incident itself is often years in the past. The parties are understandably focused on liability, causation, damages and settlement value. Yet the practical consequences of the statutory framework often remain visible beneath the surface.

Unlike many conventional motor vehicle claims, there may have been no accident benefits available to fund treatment or rehabilitation during the years leading up to mediation. Treatment may have been delayed. Expenses may have been paid out-of-pocket. Opportunities for rehabilitation may have been lost.

These realities do not necessarily appear in the pleadings, but they often form part of the story behind the litigation. They are also a reminder that legislative reforms are ultimately experienced not by governments or insurers, but by individuals navigating the aftermath of injury.

Fifteen Years Later

The Divisional Court’s decision in Mohammed confirms that the “No Crash, No Cash” rule introduced by Bill 173 in 2011 remains firmly entrenched in Ontario law. The Court did not expand the legislation, narrow it or reinterpret it. Rather, it applied the statute exactly as the legislature appears to have intended.

Yet the decision also reminds me that the policy debate underlying Bill 173 has never entirely disappeared. Reasonable people may differ on whether public transit authorities should be relieved of accident benefits exposure in non-collision incidents. Equally reasonable people may question whether injured passengers should lose access to immediate no-fault benefits simply because their injuries resulted from a sudden stop rather than a physical impact.

The Mohammed decision does not answer those questions, nor was it the Court’s role to do so. What it does demonstrate is that fifteen years after Bill 173 became law, the balance struck by the legislature continues to have meaningful consequences.

The real question raised by Mohammed is not whether the legislature intended this result. Clearly it did. The more interesting question is whether the remedy that injured transit passengers retained is truly equivalent to the one they lost. Fifteen years after Bill 173, I think that remains a debate worth having.

^[1] https://www.canlii.org/en/on/onscdc/doc/2026/2026onsc1477/2026onsc1477.html

^[2] Insurance Act, R.S.O. 1990, c. I.8, s. 268(1.1), online: CanLII https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html.

^[3] Better Tomorrow for Ontario Act (Budget Measures), 2011, S.O. 2011, c. 9, Sch. 21, amending Insurance Act, R.S.O. 1990, c. I.8, s. 268

^[4] https://www.ontario.ca/laws/statute/90i08

^[5] https://shawnpatey.substack.com/p/the-bus-stops-here-passenger-contributory

^[6] https://www.canlii.org/en/on/onsc/doc/2018/2018onsc6848/2018onsc6848.html

^[7] https://www.canlii.org/en/on/onscsm/doc/2017/2017canlii67294/2017canlii67294.html

More Than Just Another Motion

During my years as litigation counsel, I brought dozens of Rule 7 approval motions. Not every one succeeded the first time. Whenever a motion was refused, the Court’s message was remarkably consistent, even if it was never expressed in exactly these words:

Do better.

Some arose from relatively modest settlements involving children injured in motor vehicle accidents or occupiers’ liability claims. Others involved catastrophically injured plaintiffs whose settlements could represent millions of dollars and would shape the course of their lives forever. Although the facts varied considerably from case to case, one feature remained constant. Regardless of how hard counsel had negotiated or how satisfied the parties were with the outcome, the settlement was not complete until the Court was satisfied that it ought to be approved.

For many lawyers, Rule 7 approval motions become almost routine. Once a settlement has been achieved, there can be a tendency to regard the motion as little more than a procedural formality before the settlement funds are released. That is an understandable temptation, particularly where the motion proceeds on consent and no party opposes the relief being sought.

The courts, however, have consistently reminded counsel that nothing could be further from the truth.

Unlike most motions brought in the ordinary course of civil litigation, a Rule 7 approval motion is not concerned primarily with resolving a dispute between adverse parties. Instead, it asks the Court to assume an entirely different role. The judge becomes the independent guardian of the interests of a person whom the law recognizes as requiring special protection. Whether the plaintiff is a young child or an adult who lacks legal capacity, the Court must independently determine whether the proposed settlement truly serves that person’s best interests. Consent of the parties, no matter how enthusiastic, is never enough.

That unique responsibility makes Rule 7 approval motions some of the most important motions that civil litigators ever bring. Ironically, I think the better counsel prepares the motion record, the less likely it is that anyone notices the work that has gone into it. The motion proceeds smoothly, the order is granted, and everyone moves on. It is only when the materials are incomplete or fail to provide the Court with the information necessary to perform its supervisory function that judges are reminded of their obligation to scrutinize the settlement independently.

A recent 2026 Ontario decision Aidan Ki, A Minor by his Litigation Guardian Vincent Ki v. Whitby Swimming et al.^[1], discussed more fully below, illustrates that principle particularly well. Rather than approving a substantial settlement involving a seriously injured minor, the Court refused approval because the evidentiary record failed to provide the information necessary to determine whether the settlement was fair and reasonable. The decision serves as an important reminder that these motions require considerably more than attaching medical records and expressing confidence in the negotiated result. They require counsel to assist the Court in carrying out one of its most important protective functions.

The decision also provides an excellent opportunity to step back and examine Rule 7 approval motions more generally, why they exist, what judges are trying to accomplish, and what experienced counsel should include in every motion record.

Why Court Approval Is Required

The requirement for judicial approval reflects a principle that is far older than the Rules of Civil Procedure. For centuries, superior courts have exercised what is commonly described as their parens patriae jurisdiction, that is the inherent responsibility of the Court to protect those who cannot fully protect themselves. I wrote a complementary piece last year on this subject “A Best Interests Playbook: Obtaining Court Approval for Minors & Persons Under Disability”.^[2]

Ontario’s Rule 7 gives practical expression to that longstanding responsibility. Where a proceeding involves a minor or a person under disability, any settlement affecting that individual’s rights generally requires court approval before it becomes binding. The litigation guardian may commence the action, instruct counsel, participate in negotiations and ultimately recommend acceptance of a settlement, but neither the litigation guardian nor the lawyer possesses the legal authority to compromise the claim unilaterally. The final responsibility rests with the Court.

That distinction is fundamental.

A litigation guardian is not a substitute judge. The litigation guardian owes fiduciary obligations to the person under disability and undoubtedly plays an essential role throughout the litigation, but the litigation guardian’s approval does not relieve the Court of its independent obligation to determine whether the settlement truly serves the vulnerable person’s interests.

Nor is the Court expected simply to defer to counsel’s experience or reputation. Even where highly experienced lawyers negotiate at arm’s length and jointly recommend approval, the judge must still be satisfied that the proposed resolution represents a fair and reasonable compromise in light of the evidence, the legal issues, and the litigation risks.

From my experience, the judge does not simply endorse what the parties have already decided. The Court must conduct its own independent assessment of the proposed settlement before permitting the litigation to come to an end.

The Court’s Role Is Different From Every Other Settlement Motion

I believe that one of the misconceptions surrounding Rule 7 motions is that the judge is merely ensuring that the settlement falls somewhere within a reasonable range. The Court’s role is considerably broader than that.

Every settlement represents compromise. Plaintiffs surrender the possibility of recovering more in exchange for certainty. Defendants pay money while avoiding the risks and expense of trial. Experienced litigators understand that settlement almost always reflects a practical accommodation of litigation risk rather than a mathematical calculation of damages.

Rule 7 motions are different because the person whose rights are being compromised often cannot personally evaluate those risks. A six-year-old child obviously cannot assess competing medical opinions or evaluate future loss of income. Likewise, an adult suffering from a significant cognitive impairment may lack the legal capacity necessary to understand the consequences of accepting or rejecting a settlement.

Accordingly, the Court assumes responsibility for asking the questions that the vulnerable litigant cannot ask for themselves.

Has liability been properly evaluated?

Have future care needs been adequately considered?

Does the medical evidence support the proposed compromise?

Have future income losses been appropriately assessed?

Are there significant litigation risks that justify accepting less than the full value of the claim?

Will the proposed settlement adequately protect the plaintiff for years into the future?

These questions extend well beyond whether the parties happen to agree.

What Does the Court Actually Want to Know?

Perhaps the most common mistake lawyers make on Rule 7 motions, one that I have certainly made while in practice, is assuming that attaching large volumes of evidence somehow answers the Court’s questions.

It usually does not.

Medical records speak to diagnosis and treatment, but they rarely explain how counsel assessed damages.

Expert reports identify opinions, but they do not necessarily explain why a negotiated settlement reflects a reasonable compromise.

The Court is not looking for an encyclopedia of every document generated during the litigation. Rather, it expects counsel to exercise professional judgment by synthesizing the evidence and explaining why the settlement is appropriate.

It is easy to forget that the judge hearing a Rule 7 approval motion knows nothing about the case beyond what appears in the motion record. Unlike counsel, who may have lived with the litigation for years, the judge is encountering the file for the very first time. The Court cannot assume facts that are not in evidence, nor can it rely upon counsel’s experience or reputation. If the material necessary to evaluate the settlement is absent, the Court has little choice but to refuse approval, regardless of how appropriate the settlement itself may ultimately prove to be. That is why thoughtful analysis from counsel is so much more valuable than simply filing another hundred pages of documents.

In many respects, the lawyer’s affidavit becomes the most important document in the motion record.

Judges expect counsel to explain the strengths and weaknesses of the liability case, the significant medical issues, the likely range of damages, the litigation risks, and the reasons why the negotiated settlement falls within a reasonable range. The affidavit should demonstrate that counsel has evaluated the claim professionally rather than simply accepting a number reached during mediation.

This principle appears repeatedly throughout the jurisprudence.

For example, in the 2021 decision Garcia v. Ledinek^[3], the Court refused to approve a proposed settlement involving a fourteen-year-old plaintiff injured in a motor vehicle collision because the evidentiary record was inadequate to permit the Court to discharge its protective function. Justice Stinson emphasized that broad assertions that a settlement is “fair and reasonable” provide little assistance. Instead, counsel should explain how the proposed settlement compares to the damages that might reasonably have been recovered at trial, the plaintiff’s future medical and care needs, any potential loss of earning capacity, the litigation risks affecting liability and damages, and the legal principles that informed the valuation. In many respects, Garcia moved the law forward by providing one of the most detailed judicial roadmaps for what a proper Rule 7 motion record should contain, and it has since become a frequently cited practical guide for counsel preparing approval motions.

From my seat, that expectation reflects common sense.

Judges cannot independently evaluate a settlement if counsel merely tells them that it should be approved.

The Lawyer’s Affidavit Is Not Advocacy

One lesson I learned relatively early in practice was that Rule 7 motions require a different style of advocacy than contested motions.

When preparing a Rule 7 motion, I found it helpful to imagine opening the motion record as the judge would. The judge knows nothing about the file beyond what appears in the materials. If the first affidavit clearly explains the accident, the liability issues, the injuries, the damages analysis, the litigation risks and, most importantly, why the settlement represents a reasonable compromise, the balance of the motion record becomes considerably easier to follow. If, on the other hand, the narrative only emerges after reading hundreds of pages of medical records, the motion record is probably organized backwards.

Lawyers naturally become advocates for their clients. We emphasize favourable evidence, distinguish unfavourable evidence, and attempt to persuade judges that our client’s position is correct.

Rule 7 motions call for something different.

The Court expects counsel to act as an objective professional assisting the Court in understanding the settlement. That means acknowledging both the strengths and weaknesses of the case. It means identifying legitimate liability concerns where they exist. It means recognizing evidentiary problems that may reduce the value of the claim. It also means explaining why, despite those risks, the proposed settlement remains appropriate.

Paradoxically, a balanced affidavit often carries greater credibility than one which attempts to portray the case as overwhelmingly strong.

Judges understand litigation. They know that every case contains uncertainty. A lawyer who candidly discusses those uncertainties while explaining why the settlement nevertheless represents a reasonable outcome is generally providing exactly the type of assistance the Court requires.

Assisting the Court, Not Overwhelming It

Over the years, I occasionally encountered the understandable temptation to include everything.

Every medical report.

Every clinical note.

Every surveillance photograph.

Every assessment.

Every expert opinion.

Every piece of correspondence.

While comprehensive disclosure has its place, volume alone rarely assists the Court.

The better practice is to provide the evidence necessary for the judge to understand the case while allowing counsel’s affidavit to explain why that evidence matters.

A carefully organized motion record demonstrates that counsel has exercised professional judgment. An enormous collection of documents without meaningful analysis often suggests precisely the opposite.

From my review, recent decisions have continued to reinforce that distinction. Judges repeatedly emphasize that they require thoughtful evaluation rather than indiscriminate reproduction of the litigation file. Counsel’s task is not merely to place documents before the Court but to explain what those documents establish and why they support approval of the settlement.

That is ultimately what distinguishes a persuasive Rule 7 motion from an inadequate one.

The Litigation Guardian’s Affidavit Matters Just As Much

While counsel’s affidavit generally provides the legal and evidentiary framework for the motion, the affidavit of the litigation guardian performs an equally important function. It assures the Court that the individual charged with protecting the interests of the vulnerable person understands precisely what is being proposed and why acceptance of the settlement is appropriate.

Too often, however, litigation guardians’ affidavits become little more than abbreviated versions of counsel’s affidavit. They summarize the accident, briefly describe the injuries, state that they support the settlement, and conclude by requesting the Court’s approval. Although understandable, that approach misses the point of the affidavit entirely.

The litigation guardian occupies a unique position. Unlike counsel, who brings legal expertise and objective analysis to the motion, the litigation guardian provides the Court with reassurance that the proposed settlement has been carefully considered from the perspective of the person whose interests are being protected. The Court should be left with no doubt that the litigation guardian understands the terms of the settlement, has discussed the proposal fully with counsel, appreciates the litigation risks, understands the legal fees and disbursements that will be deducted, and genuinely believes that accepting the settlement is in the best interests of the minor or person under disability.

Where the injured person is capable of expressing views, even if they remain legally incapable of making the decision themselves, it is often helpful to explain those wishes to the Court. They are not determinative, but they provide useful context demonstrating that the settlement process has been transparent and respectful of the individual’s circumstances.

The Court is not simply evaluating legal sufficiency. It is evaluating whether the vulnerable litigant has truly been protected throughout the settlement process.

Contingency Fee Agreements Receive Independent Scrutiny

One area that surprised me in my early years as plaintiff’s counsel is that the Court’s supervisory jurisdiction extends beyond the settlement itself. It also encompasses the legal fees that will ultimately be paid from the settlement proceeds.

That should not be surprising. If the Court is charged with protecting the financial interests of a minor or incapable person, it necessarily follows that the Court must consider whether the legal fees deducted from the settlement are themselves fair and reasonable.

Ontario courts have consistently emphasized this distinction. In the 2002 case Raphael Partners v. Lam^[4], a case arising from a catastrophic personal injury action in which the plaintiff later challenged his contingency fee agreement after settlement, the Ontario Court of Appeal drew an important distinction between the concepts of fairness and reasonableness. The Court explained that fairness focuses upon the circumstances surrounding the making of the agreement, namely whether the client fully understood its terms, whether the agreement was properly explained, and whether there was any inequality of bargaining power or procedural unfairness. Reasonableness, by contrast, focuses upon the ultimate result. Having regard to the work performed, the complexity of the litigation, the risks assumed by counsel, and the outcome achieved, was the fee ultimately justified? The Court upheld the agreement, emphasizing that these are separate inquiries and that both must be satisfied before a contingency fee agreement will be enforced. That analytical framework has become the leading authority in Ontario and continues to underpin judicial review of contingency fee agreements, including those scrutinized on Rule 7 approval motions.

Those principles were further developed in the 2012 decision Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre)^[5], a case arising from a catastrophic personal injury action involving a plaintiff who had suffered a severe traumatic brain injury. Although the litigation guardian and counsel had entered into a contingency fee agreement and later sought approval of both the settlement and the fees, the motion judge effectively disregarded the agreement and assessed the solicitor’s fees based primarily upon time docketed and hourly rates. The Court of Appeal held that this was an error. Where a finalized contingency fee agreement is presented to the court as part of a Rule 7.08 approval motion, the judge cannot simply ignore the agreement. Instead, the Court must first apply the two-step analysis established in Raphael Partners by determining whether the agreement was fair when it was made and whether it remains reasonable at the time of approval. Only if the agreement fails one of those inquiries may it be set aside and the fees assessed in the ordinary manner. In doing so, the Court reaffirmed that judges retain an independent supervisory role notwithstanding the existence of a signed contingency fee agreement, while also recognizing that such agreements should not be displaced without first applying the proper legal framework.

Put differently, a signed contingency fee agreement is not the end of the inquiry. It is merely the beginning.

The practical implication is straightforward. Counsel should never assume that attaching the contingency fee agreement resolves the issue. The motion materials should explain why the agreement was appropriate when entered into and why the resulting fee remains appropriate when measured against the work ultimately performed.

In my experience, that is rarely a difficult exercise where counsel has properly documented the file and achieved an appropriate result. It simply requires taking the Court seriously rather than assuming approval is inevitable.

The Decision in Ki: A Modern Reminder

Those principles are illustrated particularly well by Justice Ramsay’s recent decision in Aidan Ki, A Minor by his Litigation Guardian Vincent Ki v. Whitby Swimming et al., released June 26, 2026. The plaintiff, a sixteen-year-old competitive swimmer, suffered a catastrophic cervical spine injury during swim practice. Following mediation, the parties negotiated a settlement exceeding $330,000. The motion seeking approval proceeded on consent.

Many lawyers might reasonably have expected the motion to be granted.

Instead, approval was refused.

Importantly, Justice Ramsay did not criticize the amount of the settlement itself. Rather, he concluded that the evidentiary record simply did not permit the Court to perform its independent supervisory function. The lawyer’s affidavit reproduced extensive excerpts from medical records but failed to explain how counsel had assessed the various heads of damages. Judge Ramsay noted that there was little discussion of liability, virtually no meaningful explanation of future income considerations, no comparison to comparable cases, inadequate discussion of defence medical evidence, deficiencies respecting the contingency fee agreement, insufficient evidence concerning OHIP’s subrogated claim, and even the executed Minutes of Settlement had not been filed.

Perhaps the most significant observation made by Justice Ramsay was that repeated assertions that the settlement was “fair and reasonable” did not assist the Court. The Court required analysis, not conclusions. It required counsel to explain why the settlement represented an appropriate compromise after considering the evidence, the law, and the litigation risks.

That distinction deserves emphasis because it reflects a recurring theme throughout the Rule 7 jurisprudence.

Judges are not asking lawyers to guarantee that the settlement represents the best possible outcome. No one can know what a trial judge or jury might ultimately have awarded. Rather, the Court expects counsel to demonstrate that the settlement falls within the range of reasonable outcomes having regard to the evidence available at the time.

Those are very different inquiries.

Practical Lessons From the Cases

When I read the Rule 7 decisions collectively, several consistent themes emerge.

First, counsel should remember that the judge knows nothing about the file beyond what appears in the motion record. Matters that seem obvious to the lawyers because they have lived with the litigation for years may be entirely absent from the evidence before the Court. Every important conclusion should therefore be explained rather than assumed.

Second, analysis is invariably more persuasive than volume. A carefully drafted affidavit explaining why competing medical opinions create litigation risk will almost always assist the Court more than attaching several hundred pages of medical records without meaningful commentary.

Third, difficult issues should never be avoided. If liability is uncertain, explain why. If contributory negligence presents a genuine concern, discuss it openly. If surveillance evidence weakens the claim, acknowledge its potential impact. Judges expect balanced professional analysis rather than one-sided advocacy.

Finally, counsel should remember that the motion is not solely about damages. Future care, structured settlements where appropriate, government benefits, subrogated interests, management of settlement funds, legal fees, and the practical consequences of settlement all form part of the Court’s broader assessment of whether approval should be granted.

The stronger motion records are invariably those that anticipate the judge’s questions before they are asked.

The Best Practice Guidelines Are Worth Reading

Another lesson emerging from the recent jurisprudence is that counsel should not overlook the Superior Court’s Best Practice Guidelines respecting Rule 7 approval motions^[6]. Perhaps the greatest practical value of the Guidelines is that they operate as a pre-filing checklist. If every item identified in the Guidelines can be answered affirmatively before the motion is served, counsel is far less likely to discover, after the hearing, that an important evidentiary gap has resulted in an adjournment or refusal.

These guidelines do not replace the Rules of Civil Procedure, nor do they create new substantive law. What they do provide is a practical roadmap identifying the information judges have repeatedly indicated they expect to receive. In many respects, they distill years of judicial experience into a straightforward checklist for practitioners.

Justice Ramsay referred to those Best Practice Guidelines repeatedly in Ki. That is significant. It signals that the judiciary increasingly expects counsel to be familiar with them and to prepare their motion materials accordingly.

In my view, every lawyer who expects to bring Rule 7 motions should read those Guidelines before preparing the first affidavit, not after receiving a refusal.

Looking Back

Reflecting upon the many Rule 7 motions I brought over three decades of practice, I have come to appreciate that they occupy a unique place within Ontario civil procedure.

They are certainly procedural motions, but they are also something more. They represent one of the clearest examples of the Court exercising its historic protective jurisdiction in modern litigation. In virtually every other civil proceeding, judges resolve disputes presented by parties who are free to make their own decisions. Rule 7 motions are different because the person whose legal rights are being compromised often cannot protect those interests independently. The Court therefore assumes that responsibility.

That reality should shape the way lawyers approach these motions.

The objective is not simply to persuade the Court that counsel negotiated well. It is to provide the judge with sufficient evidence and thoughtful analysis to permit an independent conclusion that the settlement truly serves the best interests of the vulnerable litigant.

When viewed from that perspective, the purpose of the motion becomes much clearer. The Court is not acting as an obstacle to settlement. Nor is it second-guessing counsel’s professional judgment.

Rather, it is performing precisely the role that the law has assigned to it for generations, that is to ensure that those who cannot fully protect themselves receive the same careful consideration that any reasonable and informed person would expect if making the decision for themselves.

If lawyers approach Rule 7 approval motions with that principle firmly in mind, most motions will proceed quietly, efficiently, and successfully. Judges rarely write lengthy endorsements praising complete motion records because there is usually nothing to say. The order is simply granted and the litigation comes to an end.

When that happens, counsel has probably done exactly what the Court expected.

When it doesn’t, the message is often the same:

Do better.

^[1] 2026 ONSC 3641 (Online: https://www.canlii.org/en/on/onsc/doc/2026/2026canlii63654/2026canlii63654.html)

^[2] https://shawnpatey.substack.com/p/a-best-interests-playbook-obtaining

^[3] 2021 ONSC 8433 (Online: https://www.canlii.org/en/on/onsc/doc/2021/2021onsc8433/2021onsc8433.html)

^[4] 2002 CanLII 45078 (ON CA) (Online: https://www.canlii.org/en/on/onca/doc/2002/2002canlii45078/2002canlii45078.html)

^[5] 2012 ONCA 496 (Online: https://www.canlii.org/en/on/onca/doc/2012/2012onca496/2012onca496.html)

^[6] https://www.ontariocourts.ca/scj/filing-procedures/regional/best-practices-guidelines-and-checklist/?utm

How can a legal doctrine survive for more than a century without Canada’s highest court ever deciding whether it truly forms part of our law?

That was the question that occurred to me as I was reading the Supreme Court of Canada’s recent decision in Resler v. Anglin[1]. The case itself involved a former Alberta Member of the Legislative Assembly who alleged that the province’s Chief Electoral Officer had improperly interfered with his election campaign. Among the damages he claimed was compensation for something I could not recall ever encountering during more than thirty years as a civil litigator: the loss of a chance to be re-elected.

That immediately caught my attention.

During my years litigating personal injury, insurance and commercial disputes, followed by several years mediating them, I like to think I have encountered most of the recurring principles of Canadian tort law. Yet I cannot remember ever seeing a pleading advancing a claim based upon loss of chance. The more I read, however, the more fascinating the doctrine became. Not because it is new (it certainly is not) but because, despite more than a century of judicial consideration, Canadian courts still have not reached a definitive answer as to whether, and in what circumstances, the doctrine should apply.

That uncertainty is precisely what makes it interesting.

Unlike many legal doctrines that eventually become firmly established or are quietly abandoned, loss of chance has occupied an unusual middle ground. From my review, courts have acknowledged it, debated it, applied it in some circumstances, rejected it in others, and repeatedly questioned whether it fits comfortably within traditional principles of causation. The result is a doctrine that has remained remarkably elusive.

Before turning to Resler, it is worth understanding how we arrived here.

The Traditional Approach to Causation

Every lawyer learns early in law school that negligence involves more than proving careless conduct. A plaintiff must also establish that the defendant’s negligence actually caused the loss complained of. As a general rule, Canadian tort law requires proof, on a balance of probabilities, that the injury would not have occurred but for the defendant’s wrongful act.

That principle has served Canadian courts well for generations. It provides a relatively clear framework for determining liability while avoiding awards based upon speculation or mere possibilities.

Loss of chance, however, asks courts to look at the problem from an entirely different perspective. Rather than asking whether the defendant caused the ultimate loss, the doctrine asks whether the defendant wrongfully deprived the plaintiff of a genuine opportunity to achieve a better outcome. The lost opportunity itself becomes the injury.

At first glance, the idea has an intuitive appeal. Most people would readily accept that opportunities can have real value. A lost business opportunity may carry financial consequences. A lost opportunity to pursue litigation may have measurable economic value. Even outside the legal context, people instinctively recognize that missing an important opportunity can sometimes be every bit as significant as suffering an actual loss.

The legal difficulty lies elsewhere. How does a court measure the value of something that never actually occurred? More fundamentally, how does a judge distinguish between a genuine opportunity and nothing more than speculation?

Those questions have occupied courts for generations. The debate is not simply about valuing opportunities. From my seat, it goes to the heart of how negligence law distinguishes between causation and damages. Traditionally, a plaintiff must first prove, on a balance of probabilities, that the defendant’s negligence caused the injury before the court ever considers how much that injury is worth. Loss of chance, however, appears to reverse that sequence. Rather than asking whether the defendant caused the ultimate outcome, it asks whether the lost opportunity itself should be treated as the injury and then values that opportunity according to the likelihood that it would have produced a better result. To some judges, that is a principled way of compensating a genuine loss. To others, it risks relaxing the ordinary rules of causation by awarding damages for outcomes that may never have occurred. It is that tension, more than anything else, that has kept the doctrine in a state of uncertainty for more than a century.

The Origins of the Doctrine

Most discussions of loss of chance begin with the English Court of Appeal’s decision in Chaplin v. Hicks (1911)[2]. The facts were unusual, but they gave rise to a principle that has echoed through the common law ever since.

The defendant, a theatrical producer, organized a competition to discover young actresses. More than 6,000 women applied, and through a series of selections the plaintiff, Miss Chaplin, advanced to the final group of just fifty contestants. The producer promised to interview each finalist personally before selecting twelve women who would receive lucrative theatrical engagements. Through no fault of her own, however, Miss Chaplin never received timely notice of her interview. By the time she learned of it, the interviews had already taken place and the twelve winners had been chosen. She sued, alleging that the producer’s breach of contract had deprived her of the opportunity to compete for one of the available engagements.

The producer argued that her claim could not succeed because nobody could ever prove she would have been one of the twelve successful candidates. The Court of Appeal rejected that argument. Although it was impossible to determine with certainty whether Miss Chaplin would ultimately have been selected, the Court held that she had nevertheless lost something of genuine value, namely the opportunity to compete as one of a relatively small group of finalists. The uncertainty surrounding the ultimate outcome did not render her loss incapable of assessment. Rather, it was for the jury to determine, as best it could, the monetary value of the opportunity of which she had been deprived.

From my research, the decision has often been regarded as the foundation of the modern doctrine of loss of chance. Importantly, however, Chaplin did not establish that every lost opportunity is compensable. Nor did it suggest that courts should award damages whenever success cannot be proven with certainty. Instead, it established the narrower proposition that the loss of a genuine and measurable opportunity may itself constitute compensable damage, even though the ultimate result depended upon contingencies that could never be known with certainty.

Yet Chaplin answered only one question. It recognized that, in some circumstances, an opportunity may itself possess measurable value. It did not answer the much more difficult question that courts continue to wrestle with today. When does an opportunity become sufficiently real that the law should compensate its loss?

That distinction has proven remarkably difficult. Over the decades that followed, courts in England and throughout the common law world generally applied Chaplin cautiously, most often in cases involving economic loss, commercial disputes and solicitor’s negligence[3]. At the same time, many courts proved reluctant to extend the doctrine into areas such as personal injury and medical negligence, where questions of causation and proof become considerably more complex[4].

Canadian courts have largely followed that cautious approach.

Canada’s Uneasy Relationship with Loss of Chance

The Supreme Court of Canada first confronted the doctrine directly in the 1991 decision Laferrière v. Lawson[5].

The case arose from tragic circumstances. In 1971, Mireille Fortier-Dupuis consulted Dr. Ray Lawson after discovering a lump in her breast. Dr. Lawson performed a biopsy, which revealed breast cancer, but he neither informed his patient of the diagnosis nor arranged any meaningful follow-up care. For more than four years, Mrs. Dupuis remained unaware that she had cancer. By the time another physician discovered the earlier pathology report, the disease had progressed significantly. Despite surgery and further treatment, she died in 1978 while her negligence action was still pending. Her estate continued the litigation against Dr. Lawson.

The medical evidence presented a difficult causation problem. Although Dr. Lawson’s negligence was clear, the evidence did not establish that earlier diagnosis and treatment would probably have prevented Mrs. Dupuis’s death. A majority of the Quebec Court of Appeal nevertheless awarded damages on the basis that the doctor’s negligence had deprived her of a real opportunity to receive timely treatment and improve her prospects.

The Supreme Court of Canada rejected that approach. Writing for the majority, Justice Gonthier emphasized that Canadian negligence law ordinarily requires proof, on a balance of probabilities, that the defendant’s negligence caused the injury complained of. While acknowledging that loss-of-chance analysis had found acceptance in certain “classic” cases, such as solicitor’s negligence, he concluded that it was inappropriate, at least where death or illness had already occurred. In those cases, the traditional principles of causation remained both sufficient and essential to the law of negligence.

For many years, Laferrière was widely understood as signalling that Canadian law had little appetite for embracing a broad doctrine of loss of chance. At the same time, however, the Court stopped short of rejecting the doctrine altogether. Instead, it carefully distinguished the traditional loss-of-chance cases from claims involving personal injury and medical negligence, leaving open the possibility that the doctrine might continue to operate in other contexts.

The story, however, did not end there.

As different factual scenarios emerged, Canadian courts began recognizing that not every loss-of-chance claim involved the same policy considerations. Cases involving commercial transactions or solicitor’s negligence presented very different issues from medical negligence. In those cases, the lost opportunity often involved the loss of a legal right, a commercial advantage or the ability to pursue litigation, matters that were arguably more capable of objective assessment than predicting whether a patient would have recovered from an illness.

That distinction gradually became more apparent in subsequent appellate decisions.

In the 2005 decision of Folland v. Reardon[6], the Ontario Court of Appeal revisited the doctrine in a markedly different context. Gordon Folland had been convicted of sexual assault and imprisoned for almost three years before his conviction was set aside on appeal after fresh DNA evidence emerged implicating another suspect. Folland subsequently sued his criminal defence lawyer, alleging that negligent representation had deprived him of the opportunity to secure an acquittal at trial.

The Court held that the negligence action should proceed to trial because there was a genuine issue as to whether competent representation would, on a balance of probabilities, have resulted in an acquittal. In doing so, the Court applied the traditional “but for” test for causation. However, it went considerably further. Recognizing that the pleadings could be amended, Justice Doherty undertook an extensive review of the loss-of-chance doctrine, observing that if the plaintiff could establish only that the lawyer’s negligence deprived him of a real, albeit less than probable, chance of acquittal, difficult questions concerning the doctrine would arise. Although the Court ultimately found it unnecessary to resolve those questions, it acknowledged that loss-of-chance remained a live and controversial issue in Canadian law.

While Folland did not recognize a free-standing cause of action for loss of chance, it suggested that Canadian law had not completely closed the door on the doctrine. Instead, the Court carefully explored its potential application while leaving the issue for another day.

The discussion continued more than a decade later in Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP[7], another solicitor’s negligence case arising out of the 2009 restructuring of General Motors of Canada. Hundreds of automobile dealers alleged that their lawyers’ conflicts of interest deprived them of the opportunity to negotiate collectively for better compensation before signing Wind-Down Agreements that terminated their dealerships. The trial judge found that the dealers had lost a valuable opportunity to negotiate a more favourable settlement and awarded damages based on the value of that lost chance.

On appeal, the Ontario Court of Appeal undertook possibly its most comprehensive examination of the loss-of-chance doctrine to date. While emphasizing that not every lost possibility warrants compensation, the Court explained that the doctrine applies only where the lost opportunity is real, substantial, and capable of rational assessment rather than mere speculation. The Court ultimately upheld the trial judge’s conclusion that the dealers had lost a measurable opportunity with economic value, confirming that, in appropriate circumstances, damages may be assessed by valuing the probability that the lost opportunity would have produced a better outcome.

Taken together, these decisions reveal something rather interesting. Canadian law has never entirely accepted the doctrine. Nor has it rejected it. Instead, courts have approached loss of chance incrementally, recognizing its potential application in some circumstances while remaining reluctant to transform it into a general principle of negligence law. The result is a body of jurisprudence that provides guidance without offering certainty.

That uncertainty remained largely academic until this year. Then came Resler v. Anglin.

Rather unexpectedly, an election law dispute placed what I think is one of the oldest unresolved questions in Canadian tort law squarely before the Supreme Court of Canada. Rather than finally resolving the debate, however, the Court did something in my view perhaps even more intriguing. It confirmed that the debate remains very much alive.

Resler v. Anglin: A Doctrine Still Searching for an Answer

The recent decision in Resler v. Anglin brought the doctrine of loss of chance back into the spotlight in a way few lawyers including myself could have anticipated.

On its face, the case was not really about loss of chance at all. It arose from a dispute following the 2015 Alberta provincial election. Joseph Anglin, a former Member of the Legislative Assembly, alleged that Alberta’s Chief Electoral Officer had improperly exercised his statutory powers during the election campaign. Anglin claimed that those actions damaged his campaign and ultimately deprived him of the opportunity to be re-elected. Among the damages sought was compensation for the loss of that opportunity.

The Supreme Court was therefore presented with an unusual question. Before anyone could determine whether Anglin’s allegations were true, the Court first had to decide whether a claim for loss-of-chance damages was legally capable of proceeding at all.

One might have expected the Court to seize the opportunity to provide a definitive answer. After all, the doctrine has existed in one form or another for well over a century, and Canadian appellate courts have discussed it on numerous occasions. Yet the Supreme Court chose a different path.

The majority concluded that the issue should not be decided on a motion to strike. Accepting the pleaded facts as true, it held that the claim should be permitted to proceed. More significantly, the Court acknowledged that loss of chance remains an unsettled area of Canadian tort law, raising significant unresolved questions concerning causation. Those questions, the majority concluded, should await a case where they can be decided on a full evidentiary record rather than at a preliminary procedural stage.

That conclusion is, in my view, the most important aspect of the decision. The Court did not recognize a new doctrine. Nor did it reject one. Instead, it confirmed that Canadian law has not yet reached a consensus. That alone makes Resler an important decision.

A Court That Agreed…and Disagreed

Although all nine members of the Supreme Court agreed that most of Anglin’s action should be allowed to proceed, they were far from unanimous on the issue of loss of chance.

Justice Karakatsanis, writing for herself, Chief Justice Wagner and Justice Martin, would have struck that portion of the claim. Her reasons provide perhaps the most comprehensive modern discussion of loss of chance ever undertaken by the Supreme Court of Canada.

Reviewing both Canadian and foreign authorities, she observed that the doctrine has generally been developed to address situations where a plaintiff has lost a measurable opportunity that depended upon the decisions or conduct of someone else. At the same time, she emphasized that courts must be extremely cautious before compensating losses that are inherently speculative.

In the electoral context, she concluded, those concerns become overwhelming.

Election campaigns are dynamic. Public opinion changes daily. Polls fluctuate. Unexpected events alter momentum. Voters make decisions for countless personal reasons that courts can never fully reconstruct after the fact. Attempting to determine the percentage chance that a candidate would have won an election had certain events not occurred would require judges to engage in an exercise that borders on speculation.

Justice Karakatsanis also expressed broader public policy concerns. Courts are understandably reluctant to make findings that could undermine public confidence in democratic elections by effectively declaring, years after the fact, that a different candidate probably should have won. For those reasons, she would have dismissed the claim for loss-of-chance damages altogether.

The majority took a more restrained approach.

Rather than deciding whether Justice Karakatsanis was ultimately correct, the majority simply concluded that this was not the appropriate case in which to resolve those broader issues. The doctrine remains unsettled. The legal arguments had not been fully developed. The factual record had yet to be established. Those circumstances, in the majority’s view, made it inappropriate to close the door on the claim before trial.

That difference in approach is significant. The disagreement was not simply about election law. It reflected two different philosophies regarding the development of the common law. One approach favoured providing certainty by deciding the issue immediately. The other preferred allowing the law to evolve gradually as future cases present different factual contexts and more complete evidentiary records.

Neither approach is unfamiliar to Canadian jurisprudence.

Why This Matters Beyond Election Law

It would be easy to dismiss Resler as a case confined to election law. That would be a mistake. The real significance of the decision lies elsewhere. For the first time in many years, the Supreme Court openly acknowledged that one of the most debated doctrines in tort law remains unresolved. Rather than pretending the answer already exists, the Court accepted that Canadian jurisprudence continues to evolve.

That observation extends well beyond elections. Could loss of chance eventually become more firmly established in solicitor’s negligence? Might it expand further into commercial litigation? Could future courts revisit aspects of medical negligence or other professional liability claims?

The Supreme Court did not answer those questions. Equally important, however, it did not foreclose them.

For litigators, that uncertainty creates both opportunity and risk. Creative counsel will continue advancing loss-of-chance arguments in novel factual situations. Equally creative counsel will continue resisting them by relying upon traditional principles of causation.

Some of those cases will undoubtedly reach appellate courts. Eventually, one of them may return to the Supreme Court.

A Mediation Perspective

One of the reasons I found Resler so interesting has little to do with election law and potentially alot to do with mediation.

Mediators spend much of their time helping parties evaluate litigation risk. Sometimes that exercise is relatively straightforward because the governing legal principles are well established. Even where the facts are disputed, experienced counsel can usually predict how a court is likely to approach the issues.

Cases involving unsettled legal principles are different. When the law itself remains uncertain, neither side possesses the comfort of established precedent. Plaintiffs may believe they have an opportunity to persuade a court to extend the law. Defendants may be equally confident that existing principles will prevent that expansion. Both positions may be entirely reasonable.

That uncertainty frequently becomes one of the most important drivers of settlement. It reminds me that litigation is not simply about disputed facts. Sometimes the greatest uncertainty concerns the law itself.

Experienced litigators understand that uncertainty carries value.

Experienced mediators learn that it often creates opportunity.

Final Thoughts

When I first encountered the doctrine of loss of chance, I assumed I had simply overlooked an established area of tort law during my years in practice. The more I read, however, the more I realized that many lawyers have had relatively little exposure to it because the law itself remains remarkably unsettled. Perhaps that is what makes the doctrine so fascinating.

More than a century has passed since Chaplin v. Hicks. Canadian courts have discussed the issue in Laferrière, Folland, Trillium Motor World, and now Resler. Each decision has moved the conversation forward. None has brought it to an end.

The common law often develops in careful, incremental steps rather than dramatic leaps. Courts test principles against new factual circumstances, refining them over time until a coherent rule eventually emerges.

Loss of chance appears to be following precisely that path.

Whether it ultimately becomes a firmly established doctrine of Canadian tort law remains to be seen. For now, the Supreme Court has left the question open. That may frustrate lawyers looking for certainty, but it also reflects one of the enduring strengths of the common law. It develops cautiously, deliberately and incrementally, waiting for the right case before announcing a definitive rule.

For the moment, the door remains open.

It will be interesting to see who walks through it next.

[1] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21546/index.do

[2] https://www.trans-lex.org/382400/_/chaplin-v-hicks-[1911]-2-kb-786/?utm

[3] Allied Maples Group Ltd. v. Simmons & Simmons, [1995] 1 W.L.R. 1602 (C.A.) (Online: https://professionalnegligenceclaimsolicitors.co.uk/wp-content/uploads/Allied-Maples-Group-Ltd-v-Simmons-Simmons-a-firm-1995-EWCA-Civ-17-12-May-1995-1.pdf); Laferrière v. Lawson, [1991] 1 S.C.R. 541(Online: https://www.canlii.org/en/ca/scc/doc/1991/1991canlii87/1991canlii87.html); Gregg v. Scott, [2005] UKHL 2, [2005] 2 A.C. 176 (Online: https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd050127/greg-1.htm).

[4] Laferrière v. Lawson, [1991] 1 S.C.R. 541; Gregg v. Scott, [2005] UKHL 2, [2005] 2 A.C. 176; Resler v. Anglin, 2026 SCC ___.

[5] https://www.canlii.org/en/ca/scc/doc/1991/1991canlii87/1991canlii87.html

[6] https://www.canlii.org/en/on/onca/doc/2005/2005canlii1403/2005canlii1403.html

[7] https://www.canlii.org/en/on/onca/doc/2017/2017onca544/2017onca544.html

During my years in practice, I both brought and defended motions for security for costs. They were never routine motions. Unlike the more familiar procedural disputes over productions, refusals or amendments to pleadings, security for costs motions usually arose because there was something fundamentally different about the litigation itself.

Sometimes the plaintiff lived outside Ontario, making the collection of a future costs award uncertain. Sometimes the plaintiff was a corporation that appeared to have no assets of its own. Occasionally, the plaintiff had already failed to satisfy previous costs orders. In other cases, there were legitimate concerns that a defendant could incur hundreds of thousands of dollars defending an action yet have no practical ability to recover costs if ultimately successful. Sometimes the litigation appeared to be funded by someone standing quietly in the background, while the named plaintiff had little or no ability to satisfy a future costs award.

From the opposite perspective, I also represented plaintiffs who faced security for costs motions that threatened to end otherwise legitimate lawsuits before they ever reached trial. Those cases demonstrated that the law is not intended simply to protect defendants. Courts have long recognized that requiring substantial security from an impecunious litigant may effectively deny access to justice. The challenge has always been balancing those competing interests.

That balancing act remains at the heart of every security for costs motion.

Today, as a mediator, I encounter these issues less frequently than I did in practice, but when they arise they often have a significant impact on settlement negotiations. A pending security for costs motion, or the prospect of one, can materially alter the parties’ assessment of litigation risk, available resources and negotiating leverage. Understanding these motions therefore remains important not only for litigators but also for anyone attempting to resolve complex civil disputes.

Why Security for Costs Exists

At first glance, a motion requiring a plaintiff to deposit money with the Court before proceeding may appear inconsistent with the principle that courts should be accessible to everyone. After all, justice should not be available only to those with financial means.

The history of security for costs demonstrates, however, that the doctrine was never intended to create financial barriers for their own sake. Rather, it developed as a mechanism to protect defendants from unfairness.

Civil litigation is expensive. A defendant wrongly sued may ultimately recover a costs award after years of litigation, but that judgment has little practical value if the successful defendant cannot collect it. Security for costs attempts to address that problem by requiring, in appropriate circumstances, that funds be posted before the litigation proceeds.

From my seat, the remedy therefore reflects two competing principles that continue to shape the jurisprudence today. The first is that defendants should not be forced to incur significant legal expenses without a realistic opportunity to recover costs if they successfully defend the action. The second is that legitimate claims should not be terminated merely because the plaintiff lacks financial resources.

Modern security for costs jurisprudence represents the Courts’ continuing attempt to reconcile those competing objectives.

Rule 56.01 - The Statutory Framework

In Ontario, security for costs motions are governed principally by Rule 56.01 of the Rules of Civil Procedure.

The Rule identifies several circumstances in which a defendant may seek security for costs, including where the plaintiff ordinarily resides outside Ontario, where there is good reason to believe the plaintiff has insufficient assets in Ontario to satisfy a costs award, where a corporate plaintiff appears unable to pay costs, where another statute authorizes such relief, or where the plaintiff has failed to satisfy an existing costs order.

Importantly, satisfying one of these grounds does not automatically entitle a defendant to security for costs. The Rule creates a gateway to judicial discretion rather than an automatic remedy.

That distinction is critical. The jurisprudence consistently emphasizes that security for costs is a discretionary order grounded in fairness rather than a mechanical application of predetermined criteria.

The Court’s Balancing Exercise

Over the years, the courts have increasingly emphasized that security for costs motions require a contextual analysis rather than a checklist.

The moving defendant must first establish one of the grounds identified in Rule 56.01. If that threshold is met, the Court must then determine whether ordering security would be just in all the circumstances.

That broader inquiry frequently considers matters such as the apparent merits of the action, whether the motion has been brought promptly, whether the order would effectively terminate the litigation, whether the plaintiff’s financial circumstances arose through the very wrongdoing alleged in the action, and whether requiring security would advance or undermine the interests of justice.

As a result, two cases involving superficially similar facts may produce entirely different outcomes because the Court’s ultimate task is to fashion an order that is fair to both parties.

The Leading Cases

The modern jurisprudence illustrates how the courts have attempted to balance these competing interests.

The evolution of the modern approach to security for costs can be seen in the Yaiguaje v. Chevron litigation. In the 2015 decision Chevron Corp. v. Yaiguaje[1], the Supreme Court of Canada reaffirmed the principles of comity and access to justice by holding that Ontario courts could entertain proceedings to recognize and enforce a multibillion-dollar Ecuadorian judgment obtained by Indigenous villagers alleging decades of environmental contamination, even though Chevron itself had no assets in Ontario. The litigation later returned to the Ontario Court of Appeal in 2017 on the question of security for costs. In Yaiguaje v. Chevron Corporation[2], the Court emphasized that security for costs is not a mechanical remedy triggered whenever the technical requirements of Rule 56 are satisfied. Rather, it remains a fundamentally discretionary remedy requiring the Court to balance the defendant’s legitimate interest in protection against unrecoverable costs with the equally important principle that deserving litigants should not be denied access to the courts. Together, the two decisions reinforce that procedural rules must be applied in a manner that promotes both fairness and access to justice, rather than becoming barriers to the adjudication of legitimate claims. The decision has since become the leading Ontario authority on the discretionary nature of security for costs and is routinely cited whenever courts consider whether an order would be “just in all the circumstances.”

Ontario appellate decisions similarly emphasize that satisfying one of the Rule 56.01 criteria does not end the inquiry. The Court retains an overriding discretion to determine whether the order would be just in all the circumstances. For example, in the 2009 decision Zeitoun v. Economical Insurance Group[3], the Ontario Court of Appeal reinforced that Rule 56.01 creates eligibility to seek security for costs, not an automatic entitlement to obtain it. The case arose after the defendant successfully obtained an order from a master requiring non-resident plaintiffs to post security for costs. Although the master mistakenly referred to the defendant’s “prima facie” entitlement to security, the Divisional Court concluded that, when the reasons were read as a whole, the master had applied the correct legal principles and had not reversed the onus. The Court of Appeal agreed, dismissing the appeal and expressly adopting the Divisional Court’s reasoning. In doing so, it confirmed that the existence of one of the grounds enumerated in Rule 56.01 does not itself compel an order for security for costs. Rather, the motion judge must consider the evidence as a whole and determine whether the order is appropriate in the particular circumstances of the case.

Perhaps the most significant theme emerging from the jurisprudence is that these motions are intensely fact specific. The Rules establish the framework, but individual circumstances ultimately determine the outcome.

Practical Considerations

Experience teaches that timing often matters as much as the legal principles themselves.

A defendant genuinely concerned about recovering costs should ordinarily bring the motion promptly. Waiting until substantial litigation costs have already been incurred may weaken the argument that security was truly necessary from the outset. Delay can also suggest that the motion is being used strategically rather than protectively.

Equally important is the evidentiary foundation. From my experience, mere suspicion that a plaintiff lacks assets is rarely sufficient. Successful motions are typically supported by concrete evidence establishing one or more of the Rule’s statutory grounds.

Plaintiffs responding to these motions likewise benefit from presenting detailed evidence concerning their financial circumstances, the merits of the claim and the practical effect an order would have upon their ability to continue the litigation.

In my experience, defendants occasionally waited until the litigation had progressed significantly before bringing the motion. That delay often became part of the plaintiff’s response. If security was truly necessary, judges understandably questioned why it had not been sought much earlier.

In many respects, security for costs motions are won or lost on the quality of the evidentiary record rather than the sophistication of the legal argument.

Security for Costs and Settlement

One aspect of security for costs motions receives relatively little attention in the reported decisions but frequently arises in practice, that is their influence upon settlement.

A pending security for costs motion can fundamentally change the litigation landscape. Unlike many interlocutory motions, a security for costs motion is not simply about procedure. It forces both parties to confront the economic realities of continuing the litigation.

For a plaintiff, an order requiring substantial security may require difficult financial decisions. Even a plaintiff who believes strongly in the merits of the claim must determine whether the cost of posting security justifies the potential recovery. In some cases, family members, litigation lenders or third-party funders may be asked to assist. In others, the plaintiff may conclude that the financial risk of proceeding has become too great. I have seen that reassessment often leading to a renewed willingness to engage in meaningful settlement discussions.

From the defendant’s perspective, the motion can also alter negotiating strategy. A defendant who succeeds in obtaining security has significantly reduced the risk of defending the action. Knowing that some portion of a future costs award is protected may reduce the pressure to settle simply to avoid mounting legal expenses. Conversely, where the motion appears unlikely to succeed, defendants may conclude that pursuing it will only generate additional costs and delay, making early settlement the more pragmatic course.

As a mediator, I have occasionally encountered cases where a pending security for costs motion has become one of the unspoken drivers of the negotiations. Although the motion itself may never be argued, both parties understand the leverage it creates. Plaintiffs appreciate the financial uncertainty that may lie ahead, while defendants recognize that an unsuccessful motion may strengthen the plaintiff’s resolve and increase litigation costs without materially advancing the defence.

Timing can also be significant. Parties sometimes choose to mediate before the motion is heard in an effort to avoid the expense and uncertainty of litigating the issue. In other cases, they deliberately postpone mediation until after the motion has been decided, believing that the Court’s ruling will provide greater clarity regarding litigation risk and bargaining strength. Either approach may be appropriate depending upon the circumstances, but the existence of the motion invariably becomes part of the strategic landscape.

In my experience, security for costs motions rarely determine the ultimate outcome of a lawsuit. They do, however, frequently influence the path by which the litigation reaches resolution. By changing the parties’ assessment of financial risk, litigation costs and negotiating leverage, these motions often become an important, if understated, factor in achieving settlement.

Final Thoughts

Security for costs occupies a unique place within Ontario civil procedure. It reflects one of the oldest tensions in civil justice, that is balancing meaningful access to the courts against the legitimate right of defendants to protection from unrecoverable litigation costs.

That is why these motions rarely lend themselves to bright-line rules. Rule 56.01 provides the framework, but it is the careful exercise of judicial discretion that determines whether ordering security is just in the particular circumstances.

In many respects, a security for costs motion is a balancing act. Lean too far in one direction and deserving plaintiffs may be denied their day in court. Lean too far in the other and successful defendants may be left with an uncollectible costs award. The challenge, as it has always been, is finding the right balance.

[1] 2015 SCC 42, Online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15497/index.do?utm

[2] 2017 ONCA 827, Online: https://www.canlii.org/en/on/onca/doc/2017/2017onca827/2017onca827.html

[3] Zeitoun v. Economical Insurance Group, 2009 ONCA 415 (Online: https://www.canlii.org/en/on/onca/doc/2009/2009onca415/2009onca415.html) at paras. 1–3, affirming Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (Ont. Div. Ct.) (Online: https://www.canlii.org/en/on/onscdc/doc/2008/2008canlii20996/2008canlii20996.html) particularly at paras. 26, 36 and 40–41.

In personal injury law, lawyers often spend years arguing over whether an event is an “accident” within the meaning of the Statutory Accident Benefits Schedule[1]. Usually, those arguments arise because a claimant wants access to accident benefits. Much less common is a case where a defendant wants an incident to be characterized as an automobile accident after the fact, so that statutory deductions and OHIP limitations can reduce the defendant’s exposure.

That unusual scenario found its way before the Ontario Court of Appeal in the 2026 decision of Diep v. Mac’s Convenience Stores Inc.[2]

The result is a significant reminder that the meaning of “arising directly or indirectly from the use or operation of an automobile” is not necessarily the same in every legal context. The same incident can be broad enough to qualify for accident benefits while remaining, in substance, an occupiers’ liability claim.

The decision has significant implications for occupiers’ liability litigation, winter maintenance claims, and the availability of accident benefit deductions where an injured plaintiff has already succeeded in obtaining statutory accident benefits.

At first glance, the result appears counterintuitive. The plaintiff successfully established before the LAT that his injuries arose from the use and operation of an automobile. Yet when the defendants later attempted to rely upon that same finding to obtain statutory deductions and defeat OHIP’s claim, the Court concluded that the action was fundamentally an occupiers’ liability case. The decision demonstrates how the same facts can yield different legal consequences depending upon the statutory context in which they are examined.

A Slip and Fall That Became an Accident Benefits Claim

The facts were straightforward.

Mr. Diep parked his vehicle in a convenience store parking lot in Markham during winter conditions. After making a purchase, he returned to his vehicle. He unlocked the vehicle using his key fob and, while reaching for the door handle to enter the vehicle, slipped on snow or ice and suffered serious injuries.

When he applied for statutory accident benefits, his insurer denied the claim on the basis that the incident was merely a slip and fall. The Licence Appeal Tribunal disagreed.

Applying the familiar two-part test from the 2004 Ontario Court of Appeal decision Greenhalgh v. ING Halifax Insurance Co.[3], the LAT concluded that Mr. Diep was in the process of entering his vehicle when he fell. Because entering a vehicle is an ordinary use of an automobile, and because the chain of events had not been interrupted, the LAT found that the incident qualified as an “accident” under the Schedule. Mr. Diep therefore became entitled to accident benefits.

Had the story ended there, the decision would have been unremarkable.

It did not.

The Occupiers’ Liability Action

Mr. Diep later sued the owners and winter maintenance contractors responsible for the parking lot, alleging negligence and breaches of the Occupiers’ Liability Act[4].

The defendants recognized a potential problem.

If Mr. Diep had already succeeded in establishing that his injuries arose from the use or operation of an automobile, then surely any tort award should be reduced by the accident benefits he received. Likewise, they argued that OHIP’s subrogated claim should be barred.

Their position was rooted in a common-sense notion that many litigators instinctively find attractive that a plaintiff should not be permitted to have it both ways.

The defendants therefore argued that the prior LAT determination effectively settled the issue. If the incident was an automobile accident for accident benefits purposes, then it should remain an automobile accident for deduction and subrogation purposes.

The Court of Appeal disagreed.

The Difference Between the Incident and the Cause of Action

What makes the decision particularly interesting to me is the Court’s focus on the nature of the tort claim rather than simply the mechanics of the incident.

The Court accepted that the LAT had properly determined that Mr. Diep was involved in an “accident” under the Statutory Accident Benefits Schedule. That determination entitled him to accident benefits.

However, the Court emphasized that the occupiers’ liability action was fundamentally different. The essence of the tort claim was not that someone negligently operated a motor vehicle. The essence of the claim was that snow and ice were not properly removed from a parking lot.

In other words, the presence of the automobile explained why Mr. Diep happened to be there, but it was not the legal wrong that formed the basis of the lawsuit.

The Court endorsed the motion judge’s conclusion that the dominant cause pleaded in the action was the alleged failure of the occupiers and maintenance contractors to maintain the premises in a reasonably safe condition. The action was therefore substantively distinct from a claim arising from the use or operation of a motor vehicle.

That distinction ultimately carried the day.

No Automatic Deduction of Accident Benefits

The defendants relied heavily on the principle against double recovery.

They argued that section 267.8 of the Insurance Act[5] was designed to prevent plaintiffs from recovering the same losses twice. Since Mr. Diep had already obtained accident benefits, any future tort award should be reduced accordingly.

The Court acknowledged that preventing double recovery is one purpose of section 267.8. However, the Court held that the threshold question remains whether the tort action itself is one for damages arising directly or indirectly from the use or operation of an automobile.

The Court concluded that it was not.

As a result, the statutory deduction provisions did not apply.

The practical consequence is striking. A plaintiff may be entitled to receive accident benefits because the incident satisfies the generous and remedial interpretation given to the Schedule, yet still pursue a full occupiers’ liability claim without those accident benefits automatically reducing the tort recovery.

For defendants and insurers, that is a significant result.

OHIP’s Claim Survives As Well

The same reasoning carried over to OHIP’s subrogated claim.

The defendants argued that section 30(5) of the Health Insurance Act[6] barred OHIP’s recovery because the injuries arose directly or indirectly from the use or operation of an automobile.

Again, the Court rejected the argument.

The defendants relied heavily on the Court of Appeal’s earlier 2002 decision in OHIP v. Georgiou[7], where OHIP’s subrogated claim was barred following a motor vehicle collision allegedly caused by icy road conditions. The Court distinguished that case on the basis that nobody disputed that the plaintiff’s injuries arose from the use or operation of an automobile. In Diep, by contrast, the central issue was whether the occupiers’ liability action itself could properly be characterized as arising from the use or operation of an automobile. The Court focused on the substantive nature of the action. Since the lawsuit was fundamentally an occupiers’ liability claim rather than an automobile negligence action, the statutory restriction on OHIP’s subrogation rights did not apply.

The result was that OHIP’s claim survived alongside the plaintiff’s claim.

Why Abuse of Process Did Not Apply

Perhaps the most fascinating part of the decision is the Court’s treatment of abuse of process.

The defendants argued that Mr. Diep had successfully persuaded the LAT that his injuries were caused by the use or operation of an automobile and was now taking the opposite position in the tort action.

At first glance, that argument has intuitive appeal.

The Court nevertheless held that the issue before the LAT was fundamentally different from the issue before the Superior Court.

The LAT was interpreting a consumer-protection scheme that is intended to be interpreted broadly and generously in favour of accident victims. The motion judge, by contrast, was considering statutory provisions that restrict common law rights and therefore require a narrower interpretation.

Because the statutory purposes were different, the Court concluded that the legal questions were not the same. The prior LAT decision therefore did not create issue estoppel, nor did it amount to an abuse of process.

The Court effectively held that the same facts can legitimately produce different legal conclusions when different statutory schemes are being interpreted for different purposes.

The Larger Lesson

The decision serves as a reminder that legal characterization often depends on context. Lawyers sometimes speak about whether an incident “is” or “is not” an automobile accident as though the answer is universal. This case demonstrates that the answer may depend entirely on why the question is being asked.

For accident benefits purposes, the courts have consistently adopted a broad and remedial interpretation designed to ensure compensation for injured claimants. For occupiers’ liability purposes, the focus shifts to the true nature of the cause of action being advanced.

The same facts can therefore support both conclusions without creating a contradiction.

A Mediator’s Perspective

From a mediator’s perspective, Diep is likely to create interesting settlement dynamics in future winter maintenance and occupiers’ liability cases.

For years, parties have often assumed that a successful accident benefits claim would inevitably translate into deductions against a future tort recovery. This decision introduces greater uncertainty into that assumption.

The practical mediation consequence may be an increase in the value gap between plaintiffs and occupiers in winter maintenance cases. Defendants may no longer be able to assume that accident benefits received by a plaintiff will automatically translate into statutory deductions. That uncertainty alone may become a negotiating issue in future mediations.

It also illustrates the danger of relying too heavily on labels. Calling an incident an “accident” in one forum does not necessarily answer the questions that matter in another. What matters is the statutory context and the legal purpose behind the inquiry.

In mediation, counsel frequently arrive with strongly held views about how prior findings will affect the ultimate value of a case. Diep is a reminder that those assumptions deserve careful scrutiny. The case demonstrates that the path from accident benefits entitlement to tort recovery is not always as direct as it may first appear.

Sometimes a slip and fall remains, at its core, a slip and fall even when the plaintiff was reaching for the door of a car.

[1] https://www.ontario.ca/laws/regulation/100034

[2] https://coadecisions.ontariocourts.ca/coa/coa/en/item/24254/index.do

[3] https://www.canlii.org/en/on/onca/doc/2004/2004canlii21045/2004canlii21045.html

[4] https://www.ontario.ca/laws/statute/90o02

[5] Insurance Act, R.S.O. 1990, c. I.8, s. 267.8. The section requires specified deductions from tort awards in actions for bodily injury or death arising directly or indirectly from the use or operation of an automobile, including the deduction of certain statutory accident benefits received or available to the plaintiff.

[6] Health Insurance Act, R.S.O. 1990, c. H.6, s. 30(5). The provision limits OHIP’s statutory right of subrogation against persons insured under an Ontario motor vehicle liability policy in respect of personal injuries arising directly or indirectly from the use or operation of an automobile.

[7] https://www.canlii.org/en/on/onca/doc/2002/2002canlii45036/2002canlii45036.html

After more than thirty years as litigation counsel and now several years as a full-time mediator, I have noticed a recurring pattern in personal injury cases. Lawyers arrive at mediation prepared to debate damages. They have carefully calculated income loss, future care costs, housekeeping claims, attendant care needs and every other component of the plaintiff’s losses. Yet one issue that can dramatically affect the value of a case often receives far less attention than it deserves.

That issue is contributory negligence.

The irony is that contributory negligence can have a greater impact on the ultimate value of a claim than many of the damages issues that occupy counsel’s attention. A plaintiff with damages worth $500,000 may not actually be arguing about a $500,000 case. Depending upon the degree of contributory negligence ultimately found at trial, the real dispute may concern whether the case is worth $500,000, $450,000, $375,000 or even $250,000. The difficulty, of course, is that liability apportionment is often as much an exercise in judgment as it is an exercise in law, particularly where a jury is involved.

In mediation, that percentage often becomes one of the most important variables in the room.

Winning the Case but Losing Part of the Recovery

Many clients understandably view liability as an all-or-nothing proposition. Either the defendant was negligent or the defendant was not. The law, however, rarely operates in such absolute terms.

The Negligence Act[1] permits courts to apportion responsibility among parties whose conduct contributed to the loss. A plaintiff may successfully establish negligence against a defendant and still recover only a portion of his or her damages because the plaintiff’s own conduct contributed to the accident or to the resulting injuries.

One of the most recent examples appears in occupiers’ liability litigation. In the 2024 Ontario Court of Appeal decision Lyng v. Ontario Place Corporation[2], the plaintiff suffered a serious knee injury after descending a grassy embankment at Ontario Place. The trial judge found Ontario Place liable for failing to provide a safe alternative exit route but also concluded that the plaintiff bore some responsibility for his own predicament. Liability was apportioned 75% against Ontario Place and 25% against the plaintiff, and the Ontario Court of Appeal upheld that result. The decision is a useful reminder that a plaintiff can succeed at trial while still experiencing a substantial reduction in recovery.

The lesson extends far beyond occupiers’ liability claims. Courts regularly conclude that more than one person contributed to an accident. The practical question is not whether a plaintiff can establish negligence against a defendant. The practical question is often how responsibility will be divided.

Rear-End Collisions Are Not Always One Hundred Percent Cases

Lawyers frequently describe rear-end collisions as straightforward liability cases. In most circumstances, the driver of the rear vehicle will bear primary responsibility. However, even apparently simple motor vehicle accidents can involve findings of contributory negligence. I wrote a blog last year you should read, “Rear-Ender, Reviewed: How the Reverse Onus Survives Rebuttal”.[3]

Even cases that many lawyers instinctively view as straightforward liability matters can involve findings of contributory negligence. The Ontario Court of Appeal’s 2015 decision in Martin-Vandenhende v. Myslik[4] demonstrates the point. The plaintiff slowed in preparation for a left turn into a private driveway and was struck by a vehicle attempting to pass. Although the passing driver bore the majority of responsibility, the Court ultimately upheld a finding that the plaintiff’s own conduct contributed to the accident. Liability was apportioned 90% against the defendant and 10% against the plaintiff.

For mediators, these cases are particularly interesting because they challenge assumptions. Counsel often arrive with a binary view of liability. Once contributory negligence enters the discussion, the analysis becomes more nuanced. The debate shifts from “Who wins?” to “By how much?”

The Seatbelt Cases: A Different Kind of Contributory Negligence

Seatbelt cases occupy a somewhat unique place in contributory negligence jurisprudence. I have also recently written an article on Substack you should check out, “Seatbelt Defences and Settlement Value: Why a Small Percentage Can Move the Needle”.[5]

Unlike many negligence cases, the plaintiff’s failure to wear a seatbelt usually does not contribute to causing the accident itself. Instead, it contributes to the severity of the injuries sustained. The defendant remains responsible for causing the collision, but the plaintiff may bear responsibility for failing to take reasonable steps to protect against injury.

Ontario courts have developed relatively consistent principles in this area. In the 2005 Court of Appeal case of Snushall v. Fulsang[6], the plaintiff suffered serious injuries as a passenger in a motor vehicle collision while wearing only a lap belt in an older vehicle equipped with a separate shoulder harness. Although a jury found her 35% contributorily negligent for failing to wear the shoulder harness, the Ontario Court of Appeal reduced that finding to 5%, emphasizing that the defendant’s negligence caused the accident and that a plaintiff’s failure to wear a seatbelt relates only to the extent of the injuries suffered, not the cause of the collision itself. The Court observed that reductions for failure to wear a seatbelt generally should not exceed 25%, with most cases falling significantly below that upper limit. Courts continue to apply that framework today

The significance of these cases extends beyond seatbelt litigation. They illustrate a broader principle that often surprises clients. A plaintiff may do nothing to cause the accident itself and still face a reduction in damages because of conduct that increased the extent of the injuries.

Pedestrians, Cyclists and the Problem of Shared Responsibility

Pedestrian and cyclist cases often produce some of the most difficult apportionment exercises. Check out my Substack on bike accidents, “Special Considerations in…Bicycle Accidents”[7] and also my article on pedestrians, “Proving No Negligence: The Reverse Onus in Pedestrian Knock-Downs”[8].

A motorist may fail to keep a proper lookout, yet a pedestrian may also have crossed against a signal or entered the roadway unexpectedly. A cyclist may have been struck by a negligent driver while simultaneously failing to take reasonable safety precautions.

The same issues arise in slip-and-fall litigation, where courts frequently examine whether a plaintiff ignored an obvious hazard, failed to use available handrails, or wore footwear ill-suited to the conditions.

These cases rarely lend themselves to bright-line rules. Courts are frequently asked to evaluate the conduct of multiple parties and determine whose actions materially contributed to the accident. The result is often a percentage allocation that reflects relative blameworthiness and causal contribution rather than a simple finding for one side or the other.

From a settlement perspective, these are among the most challenging cases to value because reasonable lawyers can honestly disagree about the likely apportionment.

Why Contributory Negligence Matters More Than Many Damages Issues

Lawyers understandably devote substantial attention to damages evidence. Future care reports, vocational assessments, economic calculations and medical opinions all matter. However, from my seat, contributory negligence has a unique characteristic. It affects every dollar of damages that follows. A disagreement about future housekeeping may involve $20,000 or $30,000. A disagreement about contributory negligence may affect the entire award.

Assume a case has a likely trial value of $800,000. A finding of 25% contributory negligence immediately reduces that figure by $200,000. A finding of 10% reduces it by $80,000. A finding of 50% cuts the recovery in half.

Viewed from that perspective, contributory negligence is often one of the largest financial variables in the litigation.

What Mediators See

One of the more interesting dynamics of mediation I see is that contributory negligence rarely dominates the opening discussion.

Plaintiff’s counsel usually begin with the injuries. Defence counsel often respond with challenges to causation, prognosis or damages. The parties discuss treatment records, employment history, surveillance, expert reports and future losses.

As the day progresses, however, the conversation frequently shifts. The parties begin evaluating litigation risk rather than simply asserting their preferred outcome. It is at that stage that contributory negligence often emerges as a central issue.

The discussion becomes less about whether the plaintiff can establish negligence and more about what a trial judge or jury might actually do with the evidence. Would a jury assign 10% responsibility to the plaintiff? Twenty-five percent? More? How would that affect the likely judgment? How would it affect costs exposure? What risks are the parties prepared to accept?

These are not easy questions. They are also questions that cannot be answered with mathematical precision.

In my experience, some of the most difficult mediations are not those involving disputed damages. They are the cases where counsel have fundamentally different views regarding how responsibility will be apportioned. The uncertainty associated with contributory negligence often becomes the bridge between the parties’ positions, or the obstacle that prevents resolution.

Final Thoughts

Contributory negligence is rarely the most exciting issue in a personal injury case. It does not generate the same attention as catastrophic injuries, future care costs or multimillion-dollar income loss claims.

Yet it may be the most important issue that lawyers overlook.

The next time you prepare for a mediation, consider whether you are spending enough time assessing the most expensive percentage in the room. Before debating the final dollar value of the claim, it may be worth asking a simpler question:

What percentage of that claim is truly at risk?

[1] https://www.ontario.ca/laws/statute/90n01

[2] https://www.canlii.org/en/on/onca/doc/2024/2024onca23/2024onca23.html

[3] https://open.substack.com/pub/shawnpatey/p/rear-ender-reviewed-how-the-reverse?r=648252&utm_campaign=post&utm_medium=web

[4] https://www.canlii.org/en/on/onca/doc/2015/2015onca806/2015onca806.html

[5] https://open.substack.com/pub/shawnpatey/p/seatbelt-defences-and-settlement?r=648252&utm_campaign=post&utm_medium=web

[6] https://www.canlii.org/en/on/onca/doc/2005/2005canlii34561/2005canlii34561.html

[7]

[8]

Last year I wrote about[1] the Ontario Court of Appeal’s decision in Cadieux v. Cadieux and the continued evolution of Pierringer agreements in Ontario litigation. At the time, my focus was on the legitimacy of the Pierringer mechanism itself and the Court of Appeal’s confirmation that properly structured agreements do not inherently prejudice non-settling defendants. The message from Cadieux was clear that Pierringer agreements remain an important and effective settlement tool in multi-party litigation.

A new decision released June 10, 2026, from the Ontario Superior Court of Justice reminds us, however, that the most difficult questions often arise after the agreement has been signed.

In Furtado v. DeSousa, 2026 ONSC 3356[2], Justice Heeney was required to address a recurring but often overlooked issue. What happens when a plaintiff settles with one defendant under a Pierringer agreement, proceeds to trial against the remaining defendant, and the settling defendant is ultimately found to bear no liability at all?

The answer has important implications for litigators who negotiate and draft these agreements.

The Facts

The plaintiff was injured as a passenger in a motor vehicle collision. Her boyfriend, who was driving, failed to stop at a stop sign and entered an icy intersection into the path of another vehicle that had the right of way. Both drivers were sued.

Shortly before trial, the plaintiff entered into a Pierringer agreement with one of the defendants. That defendant paid $150,000 and was dismissed from the action. The trial proceeded solely against the remaining defendant. The jury ultimately found the settling defendant was not negligent and allocated one hundred percent of the liability to the non-settling defendant. The jury assessed damages at approximately $415,000 before statutory deductions.

The issue then became whether the entire settlement payment should be deducted from the judgment.

The Continuing Reach of the Double Recovery Principle

The starting point for Justice Heeney’s analysis was the long-established principle that a plaintiff is entitled to full compensation, but not more than full compensation. Canadian tort law seeks to restore a plaintiff to the position they would have occupied absent the wrongdoing, not to create a windfall.

That principle is straightforward enough when discussing collateral benefits or prior settlements. The difficulty arises when a settlement has been reached with a party who is later found to have no liability whatsoever.

The plaintiff argued that the settlement should not simply be deducted dollar-for-dollar because substantial legal costs had been incurred in pursuing the settling defendant and obtaining that settlement. The defendant argued that the entire settlement amount should be credited against the judgment.

Justice Heeney ultimately concluded that the settlement proceeds must be taken into account, but only after deducting an appropriate amount representing the plaintiff’s reasonable solicitor-client costs incurred in pursuing the settling defendant. Those costs were to be assessed on a full indemnity basis.

Why Drafting Matters More Than Ever

One of the most important lessons from Furtado is that counsel should not assume the wording of their settlement agreement will determine how a court approaches the deduction issue later.

Justice Heeney relied heavily on Alberta authorities holding that the rule against double recovery is a rule of law rather than a rule of contract. In other words, parties cannot simply draft around the principle. They cannot conclusively determine through private agreement what portion of a settlement will later be treated as damages and what portion will be treated as costs. That remains a question for the Court.
This may come as an unpleasant surprise to counsel who believe that carefully allocating portions of a settlement to costs, damages or interest will necessarily control future judicial treatment of the settlement proceeds.

According to Furtado, it will not.

The Importance of Costs Language

At the same time, I do not think that Furtado should be read as suggesting that drafting is irrelevant.

The agreement before the Court described the settlement as an “all-inclusive” amount and contained releases addressing damages, interest and costs. Justice Heeney relied upon those provisions when concluding that some portion of the settlement necessarily reflected costs. The problem was not that costs were excluded. The problem was that no specific allocation had been made.

The decision therefore highlights the importance of ensuring that settlement agreements clearly acknowledge that the settlement resolves not only damages claims but also claims for costs and disbursements. Such language may not determine the ultimate allocation, but it may assist in demonstrating that costs formed part of the bargain.

The Real Asset Is the Evidentiary Record

From my seat, perhaps the most practical lesson from Furtado concerns documentation.

The Court emphasized that costs associated with pursuing the settling defendant were not hypothetical. They were real expenditures arising from discoveries, expert reviews, correspondence, pre-trial preparation, negotiations and other litigation activity. Justice Heeney spent considerable time describing the work that necessarily would have been performed before settlement occurred.

For plaintiff’s counsel, this suggests that the strongest protection against a future deduction may not be found in the wording of the Pierringer agreement at all. It may instead be found in maintaining detailed records of the work performed against each defendant throughout the litigation.

When a settlement later becomes subject to judicial scrutiny, contemporaneous records may become critically important in establishing the reasonable costs incurred to obtain the settlement.

The Hidden Risk in Every Pierringer Agreement

There is another lesson embedded within the facts of Furtado.

Every Pierringer agreement involves a prediction about future fault allocation. The parties are making that prediction before a judge or jury has spoken. Sometimes the prediction proves accurate. Sometimes it does not.

In Furtado, the settling defendant paid $150,000 despite ultimately being found completely free from liability. The non-settling defendant unsuccessfully attempted to attribute fault to that defendant at trial, yet still obtained the benefit of a substantial deduction from the judgment. Justice Heeney openly acknowledged the resulting windfall. He noted that deducting the entire settlement amount would effectively have treated the settling defendant as though she bore 41.7 percent of the responsibility for the accident, notwithstanding the jury’s finding of zero liability.

That observation illustrates the inherent gamble embedded within every Pierringer agreement. The settlement amount is fixed. The eventual allocation of fault is not.

A Reminder for Counsel

The broader lesson from Furtado is that Pierringer agreements should never be viewed as simple exit documents.

Counsel often devote significant attention to the traditional components of a Pierringer agreement, including dismissal of the settling defendant, protection from contribution and indemnity claims, amendment of pleadings, disclosure obligations, and preservation of settlement privilege. Those elements remain essential.

What Furtado reminds us is that equal attention should be paid to the consequences that may arise after trial. Counsel should carefully consider how costs are addressed in the agreement, maintain detailed records of litigation work performed against settling defendants, and recognize that future fault findings may dramatically alter the practical value of a settlement.

The decision does not diminish the usefulness of Pierringer agreements. If anything, it confirms their continued importance. But it also serves as a reminder that successful Pierringer practice involves more than understanding how to settle. It requires understanding what may happen after the settlement is over.

[1] https://shawnpatey.substack.com/p/pierringer-agreements-in-the-wake

[2] https://www.canlii.org/en/on/onsc/doc/2026/2026onsc3356/2026onsc3356.html

During my years as plaintiff’s counsel, I represented many individuals whose injuries ultimately prevented them from returning to work. In serious injury cases, the litigation rarely stopped with the accident itself. Once employability became affected, a single event could generate several overlapping legal proceedings, including tort actions, accident benefits disputes, employment-related issues, and long-term disability claims.

Over time, it became increasingly apparent that long-term disability litigation occupies a unique space within the civil justice system. These cases are medically complex, emotionally difficult, financially significant, and highly dependent on future uncertainty. They also can present a distinct set of challenges at mediation.

Unlike many traditional personal injury disputes, I perceive that LTD claims often focus less on what happened in the past and more on what lies ahead. The core issues frequently involve future functionality, employability, prognosis, and the interpretation of policy language that can significantly affect a claimant’s entitlement to ongoing benefits. Those realities create a negotiation environment that differs in important ways from many other forms of civil litigation.

The Nature of the LTD Dispute

At the heart of most LTD cases is the question of whether the claimant meets the contractual definition of disability contained in the policy.

While that may sound straightforward, the analysis is often highly nuanced. Many policies initially provide benefits where a claimant is unable to perform the duties of their “own occupation,” but later transition to a stricter “any occupation” standard after a specified period, commonly two years. It is at that transition point that disputes frequently emerge.

Not surprisingly, many LTD disputes arise at the point where a claimant transitions from the “own occupation” definition to the “any occupation” definition. What had previously been a relatively straightforward question whether the claimant could return to their former employment becomes a broader inquiry into employability generally. That transition often represents a significant shift in the parties’ positions and is a common catalyst for litigation.

In many cases, the claimant’s medical condition may remain relatively unchanged while the legal and contractual analysis shifts considerably. An insurer may accept that a claimant cannot return to their former employment while maintaining that the claimant nonetheless possesses capacity for alternative work. Claimants, on the other hand, may take the position that their impairments continue to prevent consistent and substantially gainful employment of any kind.

The Supreme Court of Canada addressed the distinctive nature of disability insurance contracts in the 2006 decision Fidler v. Sun Life Assurance Co. of Canada[1]. The case arose from a claim by Connie Fidler, a bank employee who became disabled by chronic fatigue syndrome and fibromyalgia. Sun Life initially paid long-term disability benefits for several years but later terminated them after conducting surveillance and concluding that her observed activities were inconsistent with her reported limitations. Ms. Fidler challenged the termination and relied upon medical evidence from her treating physicians supporting her ongoing disability. The insurer maintained its denial for more than five years before ultimately reinstating her benefits and paying the arrears shortly before trial. As a result, the litigation proceeded primarily on the issue of damages arising from the wrongful denial itself.

The Supreme Court recognized that disability insurance contracts differ in important respects from ordinary commercial agreements. Individuals purchase disability coverage not merely to receive monthly benefit payments, but to obtain financial security and peace of mind in the event illness or injury prevents them from working. The Court held that where benefits are wrongfully withheld, the resulting emotional distress may be a reasonably foreseeable consequence of the breach of contract. In Ms. Fidler’s case, the Court upheld an award of damages for mental distress arising from the insurer’s wrongful denial of benefits, emphasizing that years without the promised income protection caused genuine anxiety and hardship beyond the simple loss of money.

Equally important, however, the Court drew a distinction between a wrongful denial of benefits and bad faith claim handling. Although the Court found that Sun Life had breached the contract by denying benefits to which Ms. Fidler was entitled, it concluded that the evidence did not establish the level of misconduct necessary to justify punitive damages. The insurer’s decision was ultimately wrong, but the Court found that it was based on a genuine, albeit mistaken, belief regarding the claimant’s capacity for work rather than an improper or malicious purpose.

Fidler remains one of the leading Canadian LTD decisions because it captures the dual nature of these disputes. On the one hand, disability insurance claims involve contractual and financial issues. On the other hand, they frequently involve questions of security, dignity, independence, and the psychological impact of losing income protection during a period of illness or vulnerability. The decision reflects the broader recognition that long-term disability litigation often engages interests that extend beyond purely economic loss, a reality that continues to influence both litigation strategy and mediation discussions today.

The Role of Medical and Vocational Evidence

Medical evidence lies at the centre of virtually every LTD case, but these disputes are rarely confined to diagnosis alone.

Often, the existence of a medical condition is not seriously contested. The disagreement instead focuses on functionality. Can the claimant sustain regular attendance at work? Can they maintain concentration and productivity? Are they capable of retraining? Are the reported limitations consistent over time? How should chronic pain, psychological symptoms, fatigue, or cognitive impairment be assessed in a workplace setting?

Those questions often generate competing medical and vocational opinions.

Treating practitioners may support ongoing disability, while insurer-retained assessors may conclude that the claimant retains some work capacity. Vocational experts may disagree about transferable skills or labour market opportunities. Psychiatrists, psychologists, occupational therapists, and functional capacity evaluators may each interpret the evidence differently.

None of this necessarily reflects bad faith or improper conduct by either side. LTD litigation frequently develops because reasonable professionals reviewing the same information can arrive at different conclusions regarding employability and functional impairment.

That complexity is one of the reasons why, from my experience, these cases can become difficult to predict at trial and, correspondingly, well-suited for mediation.

Credibility and Surveillance

Credibility often becomes a central issue in LTD litigation, particularly where the alleged impairments are not readily visible or objectively measurable.

Conditions such as chronic pain, depression, anxiety disorders, fibromyalgia, PTSD, and chronic fatigue syndrome can create particularly challenging evidentiary issues. In those cases, insurers may rely on surveillance, social media evidence, medical reviews, or functional assessments as part of their investigation process. Claimants, meanwhile, may view those investigative steps as intrusive or inconsistent with their lived experience of disability.

In 2014, the Ontario Court of Appeal considered insurer conduct in Fernandes v. Penncorp Life Insurance Company[2]. The plaintiff, a self-employed bricklayer, suffered serious back injuries and became unable to continue the heavy physical work required by his trade. Although the insurer had medical opinions, including opinions from its own experts, supporting the conclusion that he remained disabled from bricklaying, it terminated benefits largely on the basis of surveillance footage showing him performing limited physical activities around his home. The benefits remained unpaid for approximately six years.

At trial, the court found that the surveillance evidence did not reasonably establish an ability to return to the demanding work of a bricklayer and concluded that the insurer had failed to assess the claim in a fair and balanced manner. The Ontario Court of Appeal upheld the finding that the insurer had breached its duty of good faith, emphasizing that insurers must evaluate disability claims reasonably and in light of the entirety of the available evidence, rather than relying selectively on surveillance that may not accurately reflect a claimant’s true occupational capacity. While the Court reduced the award for mental distress damages, it upheld a substantial punitive damages award, making Fernandes one of the leading Canadian cases on insurer bad faith in the long-term disability context.

For mediators, Fernandes serves as a reminder that LTD disputes often involve competing interpretations of functionality rather than simple disagreements about diagnosis. A claimant’s ability to perform isolated activities on a particular day may not necessarily answer the more difficult question of whether that individual can reliably sustain the essential duties of an occupation over time.

At the same time, courts have consistently recognized that insurers are entitled, and indeed expected, to investigate claims thoroughly before making benefit determinations. The challenge in many LTD disputes lies in balancing the insurer’s legitimate investigative role against the claimant’s expectation of fair and reasonable treatment throughout the process.

Those competing perspectives often shape the dynamics of mediation.

The Expanding Role of Bad Faith Allegations

In recent years, LTD litigation has increasingly involved claims extending beyond entitlement to benefits themselves. Plaintiffs may allege that the insurer’s handling of the claim caused additional harm or reflected conduct warranting aggravated or punitive damages.

The Ontario Court of Appeal’s 2023 decision in Baker v. Blue Cross Life Insurance Company of Canada[3], significantly increased attention on insurer bad faith in the long-term disability context. The case involved a hospital executive who suffered a stroke and was denied ongoing LTD benefits after exhausting the insurer’s internal appeal process. A jury found that she met the policy definition of total disability and awarded unpaid benefits, mental distress damages, and $1.5 million in punitive damages.

The Court of Appeal upheld the punitive damages award, finding that the evidence permitted the jury to conclude that the insurer had handled the claim with reckless indifference to its good-faith obligations. The Court pointed to evidence that the insurer selectively relied on information supporting denial of benefits while disregarding or mischaracterizing evidence supporting entitlement. Baker remains significant because it reinforces the principle that while insurers are entitled to dispute claims in good faith, courts may impose substantial punitive damages where the claims-handling process itself falls materially short of the standard of fairness required of disability insurers.

Baker does not stand for the proposition that every denial of benefits exposes an insurer to punitive damages. Courts continue to recognize that insurers are entitled to dispute claims where legitimate grounds exist. Nonetheless, the decision reflects the judiciary’s willingness, in appropriate cases, to scrutinize claim handling practices closely where the evidence justifies doing so.

From a mediation perspective, bad faith allegations can substantially complicate negotiations. They may increase financial exposure, intensify emotional dynamics, and make compromise more difficult if either side feels that broader reputational or principled issues are at stake.

Why LTD Cases Often Resolve at Mediation

Despite their complexity, from my experience, LTD cases are frequently resolved through mediation.

Part of the reason is practical. These cases are inherently uncertain. Predicting future employability, future medical improvement, or long-term functional capacity is rarely straightforward. Trials can also be expensive, time-consuming, and emotionally taxing for all parties involved.

Mediation provides an opportunity to manage that uncertainty.

For claimants, resolution may provide financial stability and finality after years of ongoing litigation. For insurers, mediation may reduce the risks associated with uncertain medical evidence, future exposure, adverse cost consequences, or broader bad faith allegations. For counsel on both sides, mediation offers a structured environment in which complicated medical, vocational, and financial issues can be addressed pragmatically rather than left entirely to judicial determination.

Importantly, LTD mediations often involve sophisticated parties and experienced counsel who understand both the strengths and vulnerabilities within their respective positions. That can create productive conditions for negotiation, particularly where the parties approach the process realistically and with a clear understanding of litigation risk.

The Challenge of Valuing Future Exposure

One of the defining features of LTD mediation is the difficulty of valuing future exposure.

Unlike many personal injury claims focused primarily on historical damages, LTD disputes frequently involve ongoing monthly benefits potentially extending years into the future. Assessing settlement value may require consideration of future employability, age, education, retraining potential, offsets, taxation issues, CPP disability eligibility, policy limitations, and the possibility of future medical improvement or deterioration.

These calculations are rarely precise.

A younger claimant with transferable skills may present a very different risk profile than an older claimant with a highly specialized employment history. Similarly, psychological conditions, fluctuating symptoms, and chronic pain disorders may create particularly difficult forecasting challenges for both sides.

Those uncertainties are often what ultimately drive resolution efforts.

The Intersection with Other Proceedings

LTD claims also rarely exist in isolation.

In many serious injury cases I have handled in practice, disability litigation proceeded alongside tort actions, accident benefits disputes, workplace accommodation issues, human rights complaints, or wrongful dismissal claims. Each proceeding may affect the others in important ways, including through offsets, income replacement calculations, disclosure obligations, or future income loss analysis.

As a result, mediating LTD disputes often requires a broader understanding of the claimant’s overall litigation and employment landscape. A resolution in one proceeding may materially affect exposure or strategy in another.

That interconnectedness adds another layer of complexity to these mediations and reinforces the importance of careful preparation by counsel and a strong understanding of the surrounding legal framework.

Why These Cases Matter

From my seat, what distinguishes LTD litigation from many other forms of civil litigation is the extent to which it often intersects directly with personal stability. These disputes frequently arise at periods of significant uncertainty in a claimant’s life, when employment, income, identity, and long-term planning may all be in question simultaneously.

At the same time, insurers are tasked with assessing claims that can involve difficult medical questions, conflicting expert opinions, and ongoing future exposure. The claims process therefore requires balancing fair investigation practices with contractual obligations and responsible benefit administration.

Those realities help explain why LTD mediations can be both challenging and constructive. The disputes are rarely simple, but they are often capable of resolution where the parties engage realistically with the evidentiary uncertainties, litigation risks, and practical considerations that define this area of law.

Having spent many years representing individuals involved in these claims, one thing became consistently clear to me. Long-term disability litigation occupies a uniquely important space within the civil justice system because it sits at the intersection of medicine, employment, insurance, and human uncertainty. That combination is precisely what makes these cases so complex, and why mediation can play such an important role in resolving them.

[1] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2303/index.do

[2] https://www.canlii.org/en/on/onca/doc/2014/2014onca615/2014onca615.html

[3] https://www.canlii.org/en/on/onca/doc/2023/2023onca842/2023onca842.html