BOGHOSIAN + ALLEN LLP - municipal law, public authority defence +

PRACTICE AREAS

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MUNICIPAL AND PUBLIC SECTOR LIABILITY
CLASS ACTIONS
PRODUCT LIABILITY
ROAD AUTHORITY CLAIMS
ERRORS AND OMISSIONS
PERSONAL INJURY CLAIMS
APPELLATE ADVOCACY
INSURANCE COVERAGE DISPUTES
SCHOOL BOARD LIABILITY
COMMERCIAL LITIGATION
EMPLOYMENT LAW
REGULATORY NEGLIGENCE
POLICE LIABILITY
REAL ESTATE LITIGATION
ESTATES LITIGATION
BANKRUPTCY AND INSOLVENCY
PROPERTY INSURANCE AND CONSTRUCTION
GENERAL MUNICIPAL LAW

MUNICIPAL AND PUBLIC SECTOR LIABILITY

Public sector risk managers, in-house counsel and insurers around the world look to Boghosian + Allen to provide skilled file handling and the most authoritative advice on municipal and public sector liability matters at competitive rates.

David Boghosian is a national expert in the field of municipal liability and public authority liability and the co-author of Canada’s leading loose leaf text on municipal liability, The Law of Municipal Liability in Canada. Mr. Boghosian is a national consultant and an international speaker on municipal and public sector liability topics. He is the Co-Director of the Osgoode Part-time LL.M. Program in Municipal Law and a Program Chair of the International Municipal Lawyers Association.

Boghosian + Allen is one of the leading municipal insurance defence firms in Ontario. The firm acts for numerous Ontario municipalities, including Toronto, Mississauga, Brampton, Burlington, Hamilton, Markham, Oakville, Region of Durham, Peel and Niagara.

The firm is one of a select few law firms selected to defend claims against the Province of Ontario, both in respect of highway non-repair and general liability claims, including those related to police, emergency and correctional services and maintenance of provincial facilities and parks.

The lawyers at Boghosian + Allen LLP have handled thousands of public sector defence claims involving virtually every potential source of liability on the part of public authorities including:

Building inspection
Business licensing
By-law enforcement
Campaign finance
Conflict of interest
Defamation
Environmental regulation
Fire protection services
Flood planning
Harassment and sexual assault
Malicious prosecution
Negligent investigation
Negligent misrepresentation
Collisions involving municipal vehicles/equipment
Operation of recreational programs

Operation of sewer and storm water management systems
Planning and zoning
Plans examination
Police services
Recreational facility maintenance
Regulatory negligence
Road design and signage
Road winter maintenance
Sidewalk and boulevard maintenance
Transit liability
Urban forestry
Operation of water and wastewater systems
Wrongful dismissal

We are also regularly retained by municipal in-house counsel in respect of a wide range of uninsured litigation matters, including those relating to:

by-law prosecutions (including a large volume of prosecutions relating to the UBER ride-sharing program on behalf of the City of Mississauga);
the validity of by-laws (e.g., regulation of smoking, fill importation and adult entertainment);
the validity of decisions of council;
controverted elections and elections finance;
licenses and permits;
workplace harassment and wrongful dismissal;
subdivision and development agreements;
claims for property damage to municipal property;
construction liens;
defective goods and services provided by City vendors (e.g., bus fire cases);
insurance coverage disputes; and
construction and maintenance agreements with third parties.

Boghosian + Allen LLP is also frequently retained to participate in special inquiries as well as strategic communications, government relations and crisis management.

CLASS ACTIONS

Boghosian + Allen’s client base of municipalities, public authorities and manufacturers are prime targets for plaintiffs’ class action law firms seeking to profit from class action proceedings, whether for property damage, personal injury, product liability or breach of privacy.

Class actions are as close to “bet the farm” litigation as most public authorities face. Boghosian + Allen is prepared to aggressively defend all manner of class actions. The firm’s class action experience includes defending municipalities, land owners and product manufacturers from claims brought by both small and large classes. Boghosian + Allen has defended class actions brought against a regional municipality regarding the loss of confidential personal information, class action and mass tort actions brought against municipalities with respect to mass flooding in the wake of major storms and a class action against a predecessor owner of the Eastwood Mall in Elliott Lake with respect to the collapse of its roof in 2012.

Boghosian + Allen’s lawyers are experienced in defending all aspects of class actions, from preliminary motions and certification proceedings to the negotiation and implementation of innovative settlements. We are familiar with the post-settlement litigation administration and claims process and have successfully responded to claims made by individual class members under class settlement agreements. In Rowlands v. Durham Regional Health, et al., we successfully negotiated strict eligibility criteria under the class settlement and subsequently successfully defended claims submitted by individual class members under the settlement, such that the litigation administrator only approved one individual class member’s claim under the settlement out of a class size initially estimated to include over 83,000 individuals.

PRODUCT LIABILITY

Boghosian + Allen is experienced in defending product liability claims for manufacturers, distributors, retailers and suppliers. The firm is litigation counsel for one of the largest and most recognizable manufacturers and distributors of electronics and household appliances in the world, representing them in all product liability actions nationwide in Canada. The firm’s lawyers have litigated product liability claims dealing with all manner of products, including automobiles, heating equipment, gas equipment, residential and commercial appliances, industrial equipment, batteries and electronics.

We have successfully managed hundreds of product liability claims in both the pre-litigation and litigation stages against a breadth of allegations, including personal injury, property damage, negligent misrepresentation, failure to warn, breach of warranty and breaches of all provinces’ consumer protection and sales of goods legislation.

Boghosian + Allen understands that product liability actions are complex and, for larger companies, may involve a complicated web of affiliate companies and third party suppliers in countries on opposite sides of the globe. The firm’s litigators are familiar with these kinds of issues and are able to help clients navigate complexity. Our litigators are also experts in insurance coverage matters, and have extensive experience representing product manufacturers in disputes over the provision of defence and indemnity by and from retailers, subcontractors, suppliers and servicers.

Boghosian + Allen is equipped and ready to defend product liability claims brought in respect of the the latest technologies and trends including drones and autonomous vehicles.

ROAD AUTHORITY CLAIMS

Accidents on municipal highways provide the largest single source of claims against municipalities. Boghosian + Allen LLP is one of Canada’s leaders in the defence of these claims.

David Boghosian is a national expert in the field of road authority claims and municipal liability and the co-author of Canada’s leading loose leaf text on municipal liability, The Law of Municipal Liability in Canada. The lawyers at Boghosian + Allen LLP have unsurpassed experience in the successful defence of road authority claims, including road authority claims related to road maintenance, winter road maintenance, road design, road signage, road lighting and traffic control. Boghosian + Allen LLP is also one of a handful of law firms selected to defend claims against the Province of Ontario in respect of road authority claims and highway non-repair claims.

Our lawyers also regularly advise municipalities and other government bodies on rational internal policies and guidelines for the maintenance and inspection of local roads and highways. Rational internal policies and guidelines with respect to maintenance and inspection of roads and highways are paramount in road authority claims prevention and management.

Members of the firm have litigated a number of precedent-setting trials and appeals in this area of law, including Lloyd v. Bush (Ont. C.A.); MacMaster (Litigation Guardian of) v. York (Regional Municipality) (Ont. C.A.); Fraser v. Mississauga (City) (Ont. C.A.); Walton v. Cote (Ont. C.A.); and Cosford v. Cornwall (Ont. C.A.); Greenhalgh v. Douro-Dummer (Township)(Ont. C.A.); Bisoukis v. Brampton (City) (Ont. C.A.); Mackinlay v. Matthews (Ont. Div. Ct.); Smith v. Brampton (City) (Ont. Gen. Div.); and Dorland (Litigation Guardian of) v. Nanticoke (City) (Ont. Gen. Div.).

ERRORS AND OMISSIONS

The lawyers of Boghosian + Allen regularly defend errors and omissions claims arising from public sector operations, including claims involving conflict of interest. Reported cases handled by members of the firm include: Jakobek v. Hall (Ont. S.C.J.) (campaign finance overspending); Santa v. Thunder Bay (City) (Ont. S.C.J.) (campaign finance overspending); Thirsty’s Bar & Grill/Cambridge Bingo Hall v. Waterloo (Region) (Ont. S.C.J.) (validity of non-smoking by-law); and Simms v. Conestoga College of Applied Arts and Technology (Ont. Gen Div.). They are also experienced in defending errors and omissions liability claims against professionals, including regulated health professionals, as well as errors and omissions claims against the Ministry of Community Safety and Correctional Services and the Ontario Ministry of Health and Long-Term Care.

PERSONAL INJURY CLAIMS

Regardless of the challenge, opposition or risk of a dispute we are here to help and obtain the best, most efficient result. Our lawyers draw from extensive trial and appellate experience with respect to personal injury claims.

The firm’s lawyers have extensive experience in defending all manner of personal injury claims, from small soft tissue claims to fatalities to claims involving multiple catastrophic injuries. As damage assessments are a significant factor in determining litigation strategy, our lawyers take very seriously the task of assessing damages with regard to all relevant information, legislation and case law regarding the application of thresholds and deductibles and the deduction of collateral benefits.

The firm’s lawyers are adept in minimizing damage exposure through effective use of prior inconsistent statements, questioning at examinations for discovery and trial, investigation, surveillance and strategic selection of medical, vocational and economic loss experts.

Members of the firm have extensive experience in defending personal injury claims with numerous reported decisions in a wide array of claim types. We have handled road authority, Occupiers’ Liability Act, police correctional authority, school board liability and transit authority claims. Whatever the personal injury claim, members of the firm have seen it before and have the expertise to obtain superior results.

APPELLATE ADVOCACY

Appeals require tenacity and skill. We have both.

Our superior advocacy skills shine on appeal. Boghosian + Allen lawyers appear on appeals as both appellants and respondents having argued over 100 appeals at all levels of appellate court—including precedent-setting cases before the Supreme Court of Canada.

Clarity is important in all litigation, but it is essential on appeal. Appeal courts expect counsel to present issues concisely and accurately. Appeals also require a meticulous assessment of the evidence before the lower court or tribunal and comprehensive legal research. It takes skill to spot issues that merit appellate intervention—skill that is needed whether you are launching an appeal or responding to one. We have what it takes when it comes to appeals and have an enviable track record in convincing appellate judges of our client’s positions.

INSURANCE COVERAGE DISPUTES

Boghosian + Allen’s lawyers are regularly retained to provide coverage opinions to insurers and municipalities. They are well-versed in the interpretation of the Insurance Act and all standard insurance policies. Where clients are named as additional insureds under a third party’s insurance policy, the firm ensures that the benefit of a defence and indemnity is obtained through negotiation or court proceedings.

We have litigated many of the leading insurance law decisions involving municipalities and are frequently invited to speak on this topic at public sector and insurance coverage conferences. Reported cases handled by members of the firm include:

Bentley v. Hastings, 2017 ONSC 2980 (breach of contract for failure to procure insurance)
Carneiro v Durham, 2015 ONCA 909 (currently the leading case relating to the obligations of insurers to additional insureds)
Day v. Wood, [2008] O.J. No. 3296 (S.C.J.)
Markham v. Intact Insurance Co., 2017 ONSC 3150 (duty to defend)
Moore (Township) v. Guarantee Co. of North America, (1991), 4 O.R. (3d) 556 (Gen Div.)
Ontario Cancer Treatment and Research Foundation v. Ottawa Civic Hospital, [1999] O.J. No. 2258 (S.C.J.); aff’d [2001] O.J. No. 106 (C.A.)
Osborne v. Non-Marine Underwriters, Lloyd’s of London, [2003] O.J. No. 1007 (S.C.J.)
Oxford and Woodstock v. Guarantee Company of North America, [2012] O.J. No. 4887 (S.C.J.)
Pabla v. Mississauga, 2015 ONSC 5156 (municipal defence counsel not obligated to report to contractor’s insurer)
Seidel v. Markham, 2016 ONCA 306 (contractor’s insurer cannot resile from assumption of defence agreement)
Sinclair v. Markham, 2014 ONSC 1550 (a Response to Demand for Particulars forms part of the pleadings for the purpose of ascertaining an insurer’s duty to defend)
Zhou v. Markham, 2014 ONSC 435 (a leading duty to defend decision)

SCHOOL BOARD LIABILITY

Claims are commonly made against teachers, schools and school boards, not only in connection with supervision on school grounds claims but also in connection with sexual abuse or misconduct, a lack of supervision for activities off campus (including during transportation), teaching conditions, physical safety of students, maintaining discipline and order in the classroom, student rights, teaching practices, caring for special needs students and other claims dealing with discrimination and civil rights violations.

When an injury or misconduct occurs on school grounds or during school hours, students and their parents frequently look to school boards for compensation arising from a breach of obligations under contract, statute or tort.

The defence of claims against school boards and those for whom boards are vicariously liable requires a sophisticated understanding of the principles of vicarious liability, the applicable standards of care, the Occupiers’ Liability Act, other legislation relating to schools and school boards, the Charter of Rights and Freedoms and an acute understanding of the law of causation and damages.

The lawyers at Boghosian + Allen, having acted regularly for multiple school boards, have developed the insight, innovation and expertise needed to successfully defend such claims. Indeed, our hands-on experience gives us a unique perspective in determining whether a duty of care was breached and, if so, whether there is a compensable claim. We have the experience and foresight to obtain answers to important questions at the forefront and to make timely determinations, many of which lead to extricating the board and other named parties from the lawsuit entirely in the early stages of litigation.

COMMERCIAL LITIGATION

Boghosian + Allen LLP represents corporations and individuals in a wide range of commercial disputes, including those involving breach of contract, construction liens, negligent misrepresentation, intentional interference with contractual relations, breach of fiduciary duties, breach of the duty to act in good faith and defamation.

EMPLOYMENT LAW

The termination of an employment relationship is often fraught with emotion and sometimes driven by perceptions of principle and fairness. Boghosian + Allen lawyers act for both employers and employees in wrongful dismissal and related disputes. Our expertise in employment law is a product of decades of dedicated service to our clients in wrongful and constructive dismissal, workplace harassment and bullying and employment-related discrimination and human rights violation. We provide strategic and goal-oriented employment law advice from reviewing employment contracts to helping you navigate the termination process with agility, compassion and resolute dedication. Our lawyers are experienced litigators who have appeared at all levels of court, including the Supreme Court of Canada.

REGULATORY NEGLIGENCE

Government regulation can involve complicated matters of legislative interpretation and the potentially planned and unplanned effects of policy. Litigation in this area can give rise to civil claims and criminal charges, judicial review and mandatory court orders.

Boghosian + Allen lawyers are highly experienced in the defence of regulatory negligence claims, including those relating to by-law enforcement, planning, plans examination and building inspection. Members are also experienced in defending claims alleging negligent misrepresentation and abuse of public office.

Reported decisions handled by members of the firm include:

Ambler-Courtney Ltd. v. Rocca Steel Ltd. (Brampton), [1992] O.J. No. 1471 (Gen. Div.)
Febeau v. Mississauga, 2015 ONSC 5120
Gornegrat Developments Ltd. V. Markham, 2014 ONSC 4383
Hilton Canada v. Magil Construction, (1998), 71 O.T.C. 81, 47 M.P.L.R. (2d) 182 (Gen. Div.) (a leading case on the ability of municipalities to rely on the plans of professional engineers)
Iacolucci v. Fernbrook Homes (Brooklin) Ltd., [2007] O.J. No. 3863 (S.C.J.)
King City Securities (Western) Ltd. v. King (Township), [1995] O.J. No. 3510 (Ont. C.A.)
King Estate v. King-Fleming (Litigation Guardian of), (1995), 10 E.T.R. (2d) 258 (Gen. Div.)
Ontario New Home Warranty Program v. Stratum Realty Development Corp., [2005] O.J. No. 165 (S.C.J.)
Tri-Lag Corp v. York Region District School Board, 2016 ONSC 7581
Vandyk-Wyndham Place Ltd. V. Oakville, 2014 ONSC 6132

We are adept at representing clients with respect to these matters and are often retained by municipalities throughout the province of Ontario and even prior to litigation to strategically manage and avoid the need for litigation.

Members of the firm are also adept in litigating disputes before and involving various administrative tribunals and agencies that may play a role in regulatory negligence claims.

POLICE LIABILITY

Police liability actions are frequently high profile—now more than ever. Boghosian + Allen litigators have decades of experience defending these unique and complex claims.

Claims defended by the firm concern excessive use of force, de-escalation techniques and false arrest. Our lawyers successfully defended the Hamilton-Wentworth Regional Police Services Board at the Supreme Court of Canada against allegations of negligent investigation. That case, Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, remains the leading police liability case regarding the tort of negligent investigation.

Defending police liability claims requires police liability expertise. The issues are of crucial importance to the defendants and police conduct is under ever greater scrutiny. The firm’s police liability expertise arises from its regular engagement by municipalities across Ontario including the Cities of Hamilton, Windsor and Peterborough, the Regional Municipalities of Durham and Niagara. The firm has also successfully defended the Ontario Provincial Police.

The firm is also one of the few to act for the Ministry of Community Safety & Correctional Services. Issues of liability for the conduct of individuals in custody regularly arise in those engagements and the firm’s deep grasp of police liability is critical in the defence of these claims.

The firm’s record in the defence of police liability claims is sterling. Reported police liability cases include: McTaggart v. Ontario (Ont. Gen. Div.); Hui v. York (Regional Municipality) Police Force (Ont. Gen. Div.); Romagnoulo v. York (Regional Municipality) Police (Ont. S.C.J.); and Mundulai v. Wilson (Ont. C.A.)

REAL ESTATE LITIGATION

Members of the firm have extensive experience in all manner of real estate, condominium and construction litigation, acting for contractors, owners, property management companies, condominium corporations, purchasers and vendors. The firm has expertise in the application of and compliance with the Ontario Building Code, thus allowing it to provide superior legal services to a diverse range of clients.

ESTATES LITIGATION

Estate litigation typically involves challenges to a will or trust. Not only can these proceedings be highly emotional and complex but the law in estate litigation is very fact-specific and contains many “grey areas”. We provide insight and guidance to clients navigating the unique challenges of estate litigation in a timely and cost-effective manner. Our team of lawyers have years of experience successfully representing trustees, executors, beneficiaries and spouses in a wide range of estate litigation matters, including:

Dependent support claims;
Will challenges on the basis of undue influence and/or lack of testamentary capacity;
Constructive trust claims;
Unjust enrichment claims; and
Quantum meruit claims.

At Boghosian + Allen, we listen to our clients, identify their needs and craft strategies that fit the circumstances of each particular case. Our primary goal is to protect our clients interests and ensure they receive the assets they are entitled to under the law. If a resolution cannot be reached, we do not back down from pushing the matter to trial. To date, our firm has a perfect record on estates trials.

BANKRUPTCY AND INSOLVENCY

Members of the firm act for creditors, trustees in bankruptcy and debtors in bankruptcy and restructuring proceedings including receiverships, opposed applications for bankruptcy orders (petitions), appeals from disallowance and related matters. The firm’s experience allows it to provide cost-effective representation for a wide range of services from attendances before the Registrar in Bankruptcy to complex matters on the Commercial List.

PROPERTY INSURANCE AND CONSTRUCTION

We serve complex insurance and commercial niche markets in the private sector. This insurance market represents a very broad spectrum of residential and commercial losses requiring strategic partnerships to assess risks and losses in the face of our changing and evolving economy. At Boghosian + Allen, our litigators understand our client’s aim to deliver their services or products by driving innovation on thought leadership, best practices and efficient use of data. This is why we partner with our clients (insurers, insureds and businesses on self-insured claims) to design and implement litigation management procedures to improve the efficiency and expense of litigation before, during and following an incident as well as representing them in litigation.

Our services include defence and subrogation of losses incurred in areas such as construction as a result of structural collapses (representing first and third party underwriters on behalf of general contractors, building inspectors, and various trades), manufacturing (machinery and equipment failure), product liability (including automotive, heat and gas equipment, residential/commercial appliances, industrial equipment), industrial negligence including gas/oil spills, professional liability, cyber breaches, as well as natural catastrophes, including fires, windstorms and floods. We are also often retained by insurers to represent property managers and condominium owners in a wide variety of disputes including property losses.

For many of our insurer clients, subrogation has become an integral part of their business: one measured by its litigation handling both in time and expense. In this distinct area, our law firm provides timely, detailed and cost-effective investigations to assess and implement a potential recovery. We have partnerships in numerous industries including forensic experts with whom we work closely to facilitate an early response, investigation and assessment on the cause of a loss. We are experienced civil litigators who make the difference between success and failure.

GENERAL MUNICIPAL LAW

Our lawyers have in-depth knowledge in the area of municipal law as a result of their extensive experience in advising and litigating on behalf of municipalities as well as their commitment to fostering the sharing of knowledge among stakeholders in the municipal sector.

David Boghosian’s highly regarded text book, The Law of Municipal Liability in Canada deals extensively with Municipal Act, 2001 provisions relating to highway non-repair (including notice and limitation periods relating thereto) and nuisance claims; Drainage Act provisions relating to flood claims; Building Code Act provisions relating to negligent building inspection claims; Occupiers Liability Act provisions relating to injuries sustained on municipal property other than highways; Police Services Act and Public Authorities Protection Act provisions relating to claims against police forces; and Limitations Act, 2002 provisions relating to claims against municipalities.

Areas in which the firm has provided opinions include:

development charges issues;
municipal election finance;
the ability of a municipality to compel the province to appoint justices of the peace;
the interaction of municipal services with federal undertakings;
the interpretation of development agreements;
the interpretation of municipal liability insurance policies;
grounds on which the issuance of a building permit can be denied;
the legality of decisions regarding business licensing;
the scope of reimbursement of expenses of councillors;
the statutory and constitutional validity of municipal decisions;
the validity and enforceability of by-laws (e.g., by-laws regulating smoking and adult entertainment);
the validity and enforceability of municipal contracts;
the validity of decisions concerning the granting or rejection of licenses and permits;
the validity of decisions of council, including issues of lack of authorizing by-laws, the validity of confirmatory by-laws, vagueness of by-laws and ratification of actions undertaken without proper council authorization;
wrongful dismissal, harassment and defamation in the municipal context; and
legal considerations on the use of drones in providing municipal services.

Boghosian + Allen also frequently provides opinions regarding risk management relating to all facets of municipal government, including the operation of parks, community centres and arenas, highways, stormwater management, waste disposal, building regulation, licensing, by-law enforcement and environmental issues.

Our lawyers are experienced in drafting contracts, by-laws and policies as well as attending Council, committee and staff meetings to make presentations on legal issues when necessary.