Canada: Court Of Appeal Summaries (March 23-27, 2015)

Last Updated: April 10 2015
Article by John Polyzogopoulos

Hello. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal).

Yesterday, the Court release an important decision in Westerhof v Gee Estate, 2015 ONCA 206, in which it confirmed that treating physicians who are involved in the care of the plaintiff or who are retained by insurers to evaluate the plaintiff, are entitled to give evidence on their observations, opinions and conclusions reached during the time of treatment without being classified as expert witnesses. Accordingly, these experts are not litigation experts and, therefore, do not have to deliver an expert report in compliance with Rule 53.03 of the Rules of Civil Procedure. Obviously, this decision will have relevance to situations outside the personal injury or med/mal context, and therefore all litigators should be familiar with it.

Other topics covered this week include the enforcement of foreign judgments, a motion by an insurance company to set aside a default judgment in the context of a "hold harmless agreement" and several endorsements on summary judgment, default judgment, a request for an order of mandamus.

Please feel free to share this blog with friends and colleagues. As always, we welcome your comments and feedback.

Kavoussi v. Moos, 2015 ONCA 195

[Epstein, Pepall and Benotto JJ.A.]

Counsel:
Moos, acting in person
D. Sherkin and R. Wozniak, for the respondents

Keywords: Enforcement of Foreign Judgment, Fraud, Fresh Evidence, Summary Judgment

Facts: In July 2009, the respondents sued the appellant in California for damages based on fraud and negligent misrepresentation. In January 2010, the appellant, who resides in Ontario, unsuccessfully challenged the jurisdiction of the California court, a decision that was not appealed. The appellant then participated in the trial by defending the respondents' action on its merits. The trial resulted in a judgment in March of 2012, of approximately $3,000,000. The appellant's appeal from that judgment was dismissed in October 2013. His attempt to have the dismissal reviewed by the Supreme Court of California was dismissed in January 2014. The respondents commenced this action for, among other relief, enforcement of the judgment in Ontario.

The respondents moved for summary judgment. Problems arose out of the appellant's attempts to file additional materials. On January 6, 2014, the motion judge ordered that the appellant not be allowed to file additional material in response to the motion for summary judgment. The motion judge therefore concluded that there was no issue requiring a trial and ordered that the California judgment be recognized and enforced in Ontario.

Issue: Was the California judgment obtained by fraud?

Holding: Appeal dismissed.

Reasoning:

No. The court found that the appellant's argument depends on admitting the fresh evidence which the court cannot do. First, the motion judge refused to allow the appellant to submit this same evidence for the purposes of the summary judgment motion. That order was not appealed and is final.

Second, the proposed evidence does not meet the Palmer test.

Swain v. Gorman, 2015 ONCA 194

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:
Kerr, for the appellant
R. Witt and R. Boucher, for the respondent Ross
G. Paliare and T. H. Lie, for the respondent Sherry Gorman

Keywords: Endorsement, Civil Procedure, Summary Judgment, Motor Vehicle Accident

Facts: The defendant was granted summary judgment that she was not liable in the motor vehicle accident.

Holding: Appeal dismissed.

Han v. Li, 2015 ONCA 193

[Sharpe, Pepall and van Rensburg JJ.A. ]

Counsel:
A.S. Blott Q.C., for the appellant
Landy, for the respondents

Keywords: Endorsement, Civil Procedure, Default Judgment

Facts: This was an appeal from the order of Justice Andrea Pollak of the Superior Court of Justice, dated October 23, 2014.

Issues: Did the motion judge err in refusing to set aside the default judgment?

Holding: Appeal Dismissed.

Reasoning:

The motion judge identified and applied the correct test and found that the appellant had failed on all three elements, and concluded that it was not in the interest of justice to set aside the default judgment.

Ontario v. Waskowec, 2015 ONCA 203

[Watt, Lauwers and Hourigan JJ.A.]

Counsel:
Waskowec, acting in person
Hurman, for the respondent

Keywords: Endorsement, Mandamus

Facts: The appellant brought a private prosecution against Hydro One. The prosecution arose from a dispute regarding the refusal to courier bills to the appellant's home. This was dismissed by the Justice of the Peace and the appellant appealed to the Superior Court. The application judge converted the appeal to an application for mandamus because an appeal was not available. The application judge noted that mandamus is discretionary and declined to exercise his discretion to grant mandamus.

Issue: Did the application judge err by not granting mandamus?

Holding: Appeal dismissed.

Reasoning: No. Hydro One had no duty to courier mail to the appellant's home and had fulfilled its statutory duties for the delivery of bills.

Intact Insurance Company v Kisel, 2015 ONCA 205

[Laskin, Simmons and Watt JJ.A]

Counsel:
J.A. Campion and T. Hanrahan, for the appellant
Rooz, for the respondents

Keywords: Civil Litigation, Insurance, Accident Benefits, Hold Harmless Agreements, Accrual of Cause of Action, Default Judgment, Noting in Default, Rules of Civil Procedure, Rule 19.03(1), Rule 19.08(1)

Facts: Rade Bijelic and Yaroslava Kisel were injured in a car accident in December 2009. Each applied for statutory accident benefits with their insurer, Intact Insurance, and most of these benefits were paid. Intact claimed that two of their health service providers- Osler Rehabilitation Centre and Assessment Direct- had submitted invoices for excessive amounts. Intact settled its dispute with Bijelic and Kisel under a partial settlement on February 5, 2013 and a full settlement on February 11, 2013. Under the partial settlement, Intact agreed to settle all accident benefit claims save for outstanding amounts of approximately $60,000 and $67,000, submitted to Intact by the two service providers. Under the full settlement, Bijelic and Kisel agreed to release Intact from any further claims, and Intact agreed to hold harmless and indemnify them for any claims brought by the two services providers for the outstanding amounts.

Both Osler Rehabilitation and Assessment Direct sent demand letters to Bijelic and Kisel for payment of their outstanding debts. Intact took the position that the hold harmless agreements had not been triggered because they had not yet started an action for payment. Bijelic and Kisel sued Intact alleging they had breached the hold harmless agreements. Intact delivered a notice of intent to defend in each action, but did not deliver statements of defence. Each plaintiff moved promptly to obtain a default judgment, in one case, and a noting of default in the other.

Intact moved to set aside the default judgment and noting of default. In dismissing Intact's motions, the motions judge did not accept that Intact had a reasonable excuse or explanation for its default and viewed that Bijelic and Kisel would be more prejudiced by granting Intact an indulgence than would Intact be prejudiced by a refusal to set aside the defaults. Intact Insurance appealed the refusal of the motion judge to set aside the noting of default and the default judgment.

Issues: (1) Did the motion judge err in dismissing the motion to set aside the noting of default and default judgment?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the motion judge erred in relying on the two grounds for refusing to set aside the default judgment. The Court found that Intact had a reasonable explanation for its defaults and neither plaintiff would have been prejudiced by allowing Intact to defend each action.

In finding that Intact had not offered a reasonable explanation for its defaults, the motion judge stopped short of interpreting the hold harmless agreements. However, the proper interpretation of the agreement was fundamental to Intact's submission that it had a reasonable explanation for not defending the action. Intact submitted that on a proper interpretation of the hold harmless agreements, the plaintiff's causes of action against Intact had not accrued because when they sued Intact, neither service provider had yet sued them. The Court agreed with this submission and held that neither plaintiff had a cause of action against Intact when each chose to sue the insurer. Thus, although Intact ought to have delivered a statement of defence, it had a reasonable explanation for not doing so.

The court held the motion judge's conclusion that the plaintiffs would be more prejudiced from setting aside the defaults than Intact would be maintaining them, was unreasonable. Setting aside the defaults would cause no prejudice to either Kisel or Bijelic. On the ground of prejudice alone, the Court set aside the defaults.

Petre v. Petre, 2015 ONCA 199

[Simmons, Tulloch and Pardu JJ.A.]

Counsel:
Petre, in person
Petre, in person

Keywords: Family Law, Endorsement, Separation Agreement

Facts: The appellant appealed the order of Kruzick J. dismissing his request to set aside the separation agreement he entered into with the respondent.

Issues: Did Kruzick J. err in law in refusing to set aside the parties' separation agreement?

Holding: Appeal Dismissed.

Reasoning:

No. The appellant failed to demonstrate that Kruzick J made any error in law in his reasoning, nor did he show any basis to interfere with any of the findings of fact made by Kruzick J. at trial. Kruzick J. fully considered all of the appellants' arguments, including the contention that he was pressured into signing the separation agreement. Kruzick J. made findings of fact against the appellant on all his arguments.

Westerhof v Gee Estate, 2015 ONCA 206

[Laskin, Sharpe and Simmons JJ.A.]

Counsel:
Poproski, L. Ferro and R. Zigler, for the appellant Jeremy Westerhof
K.C. Dickson and K.J. Raddatz, for the respondent the Estate of William Gee
Rollo and D. Visschedyk, for the appellant James Baker
P.J. Pape and J. Nairn, for the respondent Daniel McCallum
Halpern and B. Cameron, for the intervener the Ontario Trial Lawyers Association
W.D. Black, J.R. Morse and J.J. Morris, for the intervener The Holland Access to Justice in Medical Malpractice Group
J.A. Olah and S. Libin, for the intervener the Canadian Defence Lawyers Association
L.R. Rothstein and J.C. Killey, for the intervener The Advocates' Society

Keywords: Torts, Motor Vehicle Accident, Evidence Law, Evidence Act, Trial Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Form 53, Fact Witnesses, Treating Physicians, Whether Required to Deliver Expert Report in Compliance with Rule 53.03Courts of Justice Act, s. 134, Jury Instructions

Facts (Westerhof v Gee Estate):
Mr. Westerhof was injured in a car accident. He claimed that he suffered serious permanent impairments of important physical, mental and psychological functions as a result of the accident.

The major issues at trial related to causation and damages. Mr. Westerhof claimed that all of his injuries, and his resulting loss of future economic opportunity, were related to the motor vehicle accident. The defence maintained that his upper body soft tissue injuries had resolved well before trial, and that his remaining problems, including psychological, were not related to the accident.

Mr. Westerhof proposed to call evidence from nine medical witnesses. From the outset of the trial, the trial judge ruled that the medical witnesses who treated or assessed Mr. Westerhof but did not comply with rule 53.03 would not be entitled to give opinion evidence concerning their diagnosis or prognosis, even though they had not been retained for the purpose of the litigation. The trial judge dismissed the action, finding that Mr. Westerhof's claim for non-pecuniary damages did not meet the threshold in s. 267.5(5) of the Insurance Act

On appeal, the Divisional Court upheld the trial judge's evidentiary rulings and dismissed Mr. Westerhof's appeal. The Divisional Court rejected the conclusions of prior cases that a medical practitioner retained by a non-party insurance company and other "fact witnesses" need not comply with the amended rule 53.03 to give expert opinion evidence at trial. The Divisional Court had held that "[t]he important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not."

Issue: Did the Divisional Court err in affirming the trial judge's decision that Rule 53.03, dealing with expert evidence, applies to all medical practitioners who provide opinion evidence, whether or not they were retained for the purposes of the litigation?

Holding: Appeal allowed. A new trial was ordered.

Reasoning:

Yes. The Court of Appeal rejected the Divisional Court's conclusion that the type of evidence – whether fact or opinion – is the key factor in determining to whom rule 53.03 applies. Instead, the Court concluded that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation ("participant experts") may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

  • the opinion to be given is based on the witness's observation of or participation in the events at issue; and
  • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Similarly, the Court concluded that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject-matter of the litigation for a purpose other than the litigation.

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits noted above, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits. As always, the court retains its gatekeeper function.

The Court of Appeal rejected the Divisional Court's analysis and conclusions for six reasons.

First, the Divisional Court made no reference to pre-2010 jurisprudence supporting the conclusion that, prior to the 2010 amendments to the Rules of Civil Procedure, participant experts were entitled to give opinion evidence arising from their observation of or participation in events for the truth of its contents without complying with the former rule 53.03. In Marchand v The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, the Court of Appeal had confirmed that treating physicians could testify about treatment opinions without complying with the former rule 53.03.

Second, apart from Westerhof, no cases were brought to the Court's attention that supported the view that participant experts were obliged to comply with rule 53.03 when giving evidence concerning treatment opinions.

Third, nothing in the report of the Honourable Coulter Osborne, which related to expert witnesses in the civil justice system, indicated an intention to address participant experts or non-party experts.

Fourth, the text of the 2010 amendments supported the view that rule 53.03 did not apply to participant experts or non-party experts. The Court agreed with the judge in McNeil v Filthaut, 2011 ONSC 2165 that rule 4.1.01, rule 53.03 and Form 53 formed a comprehensive framework addressing a specific class of expert witnesses and expert reports. There was no basis for concluding that rule 53.03 was intended to apply to persons other than expert witnesses "engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding".

Fifth, the Court was not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with rule 53.03.

Sixth, requiring participant witnesses and non-party experts to comply with rule 53.03 could only add to the cost of the litigation, create the possibility of delay because of potential difficulties in obtaining rule 53.03 compliant reports, and add unnecessarily to the workload of persons not expecting to have to write rule 53.03-compliant reports (e.g. emergency room physicians, surgeons and family doctors).

Based on these conclusions, the Court of Appeal agreed that the trial judge erred in holding as a general matter that the various medical practitioners who had treated or assessed Mr. Westerhof could not give opinion evidence because they had not complied with rule 53.03. The Court considered each impugned evidentiary ruling that the trial judge made, concluding that some of the treating physicians and non-party experts should not have been excluded from giving expert opinion evidence, while others were properly excluded. Notably, the Court held that the trial judge erred in excluding the opinion testimony of two non-party experts who conducted a functional abilities assessment of Mr. Westerhof in August 2006 and prepared a report for Mr. Westerhof's SABS insurer. These witnesses were entitled to testify concerning the history they took, the tests they performed, and the results they observed, including their observations about whether Mr. Westerhof was experiencing pain, without complying with rule 53.03, because of their status as non-party experts.

Finally, the Court held that the trial judge's erroneous evidentiary rulings warranted a new trial, pursuant to s. 134 of the Courts of Justice Act. The trial judge's erroneous evidentiary rulings prevented Mr. Westerhof from placing important evidence before the judge and jury that could reasonably have affected the outcome of the trial.

Facts (McCallum v Baker):

In this companion case to Westerhof, Mr. McCallum suffered injuries in a motor vehicle accident. Mr. McCallum claimed that he was healthy prior to the accident, but that as a result of the accident he suffered serious injuries to his neck, back, shoulder and hands, as well as chronic pain, chronic headaches and severe depression. He claimed that these injuries prevented him from returning to work and severely curtailed his activities of daily living. He also claimed that it was unlikely that he would ever be able to return to work.

The defendant, Mr. Baker, admitted liability and agreed that Mr. McCallum was entitled to damages, including a significant amount for general damages and sums for future loss of wages and future care. However, Mr. Baker also claimed that Mr. McCallum had pre-existing conditions that were aggravated by the accident, and disputed Mr. McCallum's assertions that he would never be able to return to work.

At trial, the trial judge permitted several medical practitioners who had treated Mr. McCallum to give opinion evidence concerning Mr. McCallum's future employment prospects and future treatment needs without complying with rule 53.03. The trial judge concluded that because these witnesses were treating medical practitioners, they could give opinion evidence without complying with rule 53.03.

On appeal, Mr. Baker accepted that treating physicians may give opinion evidence directly related to their treatment of a patient, such as a working diagnosis and prognosis. However, he submitted that the trial judge retained a gatekeeper function in relation to opinion evidence of treating physicians who do not comply with rule 53.03 and that, in his case, the trial judge erred in failing to fulfill his gatekeeper function in three ways:

(1) permitting treating physicians to give opinion evidence concerning matters such as future employability and future medication requirements that were not directly related to the treating physician's treatment of Mr. McCallum and that had not been disclosed prior to trial;

(2) permitting treating physicians to give opinions that went beyond their expertise; and

(3) by permitting treating physicians to opine on matters that properly fell within the boundaries of rule 53.03 expert evidence, the trial judge unfairly allowed an excessive amount of expert evidence and ran afoul of the provisions of s. 12 of the Evidence Act, R.S.O. 1990, c. E.23. Subject to leave, s. 12 limits to three the number of experts who may testify for a party.

Mr. Baker also submitted that the trial judge's jury instructions were unbalanced and failed to adequately summarize for the jury his overriding theory – and the evidence that supported it – that many of Mr. McCallum's complaints were being caused by the medications he was taking and that Mr. McCallum had not taken adequate steps to improve his condition.

Issues:

(1) Did the trial judge err in failing to limit the nature of the opinion evidence proffered by the medical practitioners who had examined McCallum without being required to comply with Rule 53.03, dealing with expert evidence?

(2) Did the trial judge err in failing to limit the amount of expert evidence proffered by McCallum?

(3) Did the trial judge err in his charge to the jury?

Holding: Appeal dismissed.

Reasoning:

(1) No. On Mr. Baker's first and second arguments, the treating physicians' testimony concerning Mr. McCallum's future medication requirements and future employability related to their treatment of Mr. McCallum and fell within their respective areas of expertise. It appeared that the opinions at issue were formed at the time of treatment. There was no indication in the transcript that the opinions had not been disclosed prior to trial. Similarly, the opinions given concerning Mr. McCallum's ability to return to work appeared to have been formed at the time of, and arose directly from, the practitioners' treatment of Mr. McCallum. Further, they were not complex vocational opinions requiring highly specialized expertise, and there was no indication that they had not been disclosed prior to trial.

(2) No. The Court of Appeal was not persuaded that the trial judge erred in failing to exclude some of the impugned evidence to avoid an "avalanche" of expert evidence. Again, the opinions concerning ability to return to work were not complex vocational opinions of the kind one would expect from a rule 53.03 expert. They were formed by treating practitioners in the course of their treatment. There was no suggestion that these practitioners were litigation experts in disguise.

(3) No. In the context of a civil jury trial, failure to object to the charge, particularly in a case involving non-direction, will often be fatal to any subsequent claim that the charge was flawed: Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.). Counsel for Mr. Baker did not raise an objection to the trial judge's jury instructions despite having received a copy of them the evening before the judge's charge to the jury. Counsel who receive a copy of such jury instructions have an obligation to the court to review them before the charge is delivered. Counsel who fail to review the instructions and make prompt objections in advance of their delivery to the jury do so at their peril. Further, the nature of Mr. Baker's objection would have made it difficult for the trial judge to promptly prepare a meaningful recharge.

Tags: Torts, Motor Vehicle Accident, Evidence Law, Evidence Act, Trial Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Form 53, Fact Witnesses, Treating Physicians, Whether Required to Deliver Expert Report in Compliance with Rule 53.03

Abdulle (Re), 2015 ONCA 209

[Simmons, Juriansz and van Rensburg JJ.A]

Counsel:
D.F. Embry, for the appellant
Medeiros, for the respondent Ministry of the Attorney General
Warner, for the respondent Centre for Addiction and Mental Health

Keywords: Administrative Law, Endorsement, Ontario Review Board, Detention Order

Issues: Did the Board err by imposing a detention order?

Holding: Appeal dismissed.

Reasoning: No. It was open to the Ontario Review Board to accept the expert opinion that further violence was inevitable if the appellant remained in a medium secure facility. The doctor's report addressed the issue of risk as well as the issue of criminal responsibility.

Tags: Administrative Law, Endorsement, Ontario Review Board, Detention Order

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John Polyzogopoulos
Events from this Firm
8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions