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Blouin Dunn LLP
Garic v. Mack Trucks Canada et al, 2014 ONSC 3103 (CanLII), http://canlii.ca/t/g6zdm – discoverability, adding a defendant
The plaintiff was driving a dump truck owned by her husband. She was injured when one of the axles gave way and the truck went into a ditch. She sued all the companies involved in manufacturing and maintaining the truck, with her husband as an FLA claimant. Six years after the date of loss, the plaintiff and her husband had separated, and she brought a motion to add him as a defendant, on the basis of discoverability and fraudulent concealment.
The judge did not buy any of the plaintiff’s arguments. She had said that a late statement from one of the other defendants made it clear that it was her husband who was responsible for maintaining the truck, and she had therefore only discovered a potential claim against him when she got that statement. The judge found that her husband’s role had been within her contemplation right from the start, by the fact that she had named the repair shop as a defendant and had deposed that she relied on her husband to take care of the maintenance. The judge said that “case law has established that to discover a claim the plaintiff must only have sufficient facts upon which to support an allegation that there is a cause of action, and it is not necessary for the plaintiff to have discovered complete evidentiary support to make the claim winnable.” The claim was therefore discoverable within the limitation period.
The plaintiff also tried to argue that there had been fraudulent concealment by her husband. The judge said that this doctrine was an equitable one meant to prevent unscrupulous defendants from benefiting from a limitation period. In order to invoke this doctrine, the conduct in question had to be unconscionable, and there was no evidence of that. The plaintiff’s motion to add the husband was dismissed.
Sharon’s comments: A cynic might say that the plaintiff’s discoverability of a potential claim against her husband began on the day they decided to end their marriage…
Morant v Sun life Assurance Company of Canada, 2014 ONSC 2876 (CanLII), http://canlii.ca/t/g6zz8 – settlement
At mediation, the plaintiff settled her AB claim for $110K, and her tort claim for $250K. About three weeks later, she changed her mind and tried to get out of the agreement. The judge said that she was properly represented, there was no evidence of any incapacity, and getting “buyer’s remorse” was not a sufficient reason to allow her to resile from the settlement.
Gilbert v. South et al., 2014 ONSC 2413 (CanLII), http://canlii.ca/t/g6ldb – threshold
The defendant brought a threshold motion at the conclusion of the jury trial. It was not disputed that the plaintiff had only returned to lighter duties at work, and that he suffered ongoing back pain that affected his activities; the issue was whether these problems were attributable to pre-existing problems or to the MVA.
The jury obviously felt this was a threshold injury, since it awarded the plaintiff general damages of $70K gross ($40K net of the deductible), $57K for future care, housekeeping of $85K, past income loss $6K, and future economic loss of $250K. The judge agreed with the jury, and found that the plaintiff’s chronic low back pain was caused by the MVA. The threshold was met.
Casselman v. Casselman, 2014 ONSC 1267 (CanLII), http://canlii.ca/t/g682k – unidentified
The plaintiff was a passenger in a car driven by her son, and she was injured in an MVA allegedly caused by an unidentified driver. She was insured with Aviva, and her son was insured with Economical. Her lawyer sued the son and her own insurer, Aviva, but she did not sue the driver’s insurer, Economical. The plaintiff brought a motion to attempt to add Economical, but it was brought more than two years after the date of loss. Her arguments were that the failure to name Economical was an inadvertent omission on the part of the lawyer, that there had always been an intention to claim against it, that Economical had been put on notice, and there was no prejudice notwithstanding the expiry of the limitation period. Aviva opposed the motion on the basis that it wanted Economical to be substituted for it, not named as an additional defendant.
The judge held that there was no prejudice to Economical, and that both insurers might have to provide coverage depending on whether it was unidentified, uninsured, underinsured, etc. Economical was added as a defendant.
Manzoor Ur-Rahman v. Oma Devi Mahatoo et al., 2014 ONSC 2636 (CanLII), http://canlii.ca/t/g6r6c – slip and fall
This was a slip and fall on snow and ice, which left the plaintiff with a broken hip and allegedly severe psychological issues. The defendant was noted in default. The judge awarded damages as follows: Generals $90K, past loss of income $90K, future income loss $53K, handyman services $39.2K, future care $1.5K, and OHIP’s subrogated interest of $980. The total awarded, before PJI and costs, was $274.6K.
Sharon’s comments: If the defendant was noted in default, it probably won’t matter whether the judgment is for $3K or $300K, since the plaintiff is unlikely to ever collect any of it.
Seif v. City of Toronto, 2014 ONSC 2983 (CanLII), http://canlii.ca/t/g6v8q – statutory notice, municipality
This was a slip and fall on a sidewalk, where the plaintiff broke her wrist. She gave notice to the City four months later, notwithstanding the statutory requirement that notice must be provided within 10 days. The City brought a motion for summary judgment, on two grounds: 1) the plaintiff was out of time given the 10 day notice requirement, and 2) her notice contained a general description that was not specific enough for the City to have been able to properly inspect the area.
The judge found that the general description provided by the plaintiff was adequate enough for a layperson. However, the judge also found that although the 10 day rule can be waived where a person’s delay is the result of their injury (e.g. they were hospitalized), it was “…not designed to extend the time for a plaintiff whose delay is a result of their indecision or their apathy toward issuing a claim.” The judge said this was unfair, but since the plaintiff did not have a good explanation for the delay, her action had to be dismissed.
Sharon’s comments: It seems that most of the time, judges go to great lengths to find a reason to not apply this 10-day notice period requirement, so as not to deprive the plaintiff of the opportunity to bring his or her action. It is refreshing to see a judge who considers and properly applies the law.
Zonneville v. Andrews, 2014 ONSC 2380 (CanLII), http://canlii.ca/t/g6psn – examination of non-parties
The plaintiff became a quadriplegic after a fall from a pool ladder, and he sued various parties for $10M. The records indicated that he had told several treating health care providers that he had been diving. Plaintiff’s counsel refused to permit the defendant to speak with these providers, so the defendant brought a motion to examine the non-parties. The plaintiff opposed the motion and argued that the evidence from these parties would be inadmissible at trial as it was hearsay.
The Master granted the defendant’s motion. She found that admissibility at trial was not the test, but whether the court had reason to believe the non-parties had information relevant to a material issue in the action. She wrote “The defendant is entitled to know the case it has to meet prior to trial. This is one of the purposes of examinations for discovery. Here, the defendant is entitled to know prior to trial all of the facts surrounding the accident in order to properly defend the action, properly prepare for trial and to assess the defendant’s position. If the defendant were required to proceed to trial without having examined the non-parties, it would have to call numerous witnesses to give evidence on this issue which would, undoubtedly, lengthen the trial unnecessarily. Furthermore, having the testimony of non-parties prior to trial may promote settlement.”
Alladina v. Calvo, 2014 ONSC 2550 (CanLII), http://canlii.ca/t/g6rl6 – defence IME
The defence brought a motion for a psychiatric IME. The plaintiff opposed the motion, and moreover, tried to disqualify the proposed expert, Dr. Reznek, on multiple grounds. Dr. Reznek had his own counsel there, as his professional integrity was being very much maligned. The defence medical was ordered, the defendant got $7K in costs, and even Dr. Reznek got costs of $4K. It looks like the essence of the plaintiff’s arguments were “based on my personal experience in three matters in the early to mid-2000s, Dr. Reznek is biased”; “based on a selection of cases that I have cherry-picked, Dr. Reznek is biased”; “the fact that Dr. Reznek took offence at the allegations leads to a reasonable apprehension of bias”; and “I submit that Dr. Reznek supposes that insurance companies might not want to hear about reports in which he finds that the plaintiff has suffered psychiatric damage”.
The Master accepted none of the plaintiff’s arguments, saying in part: “The approach proposed by the Plaintiff would ask the court to make a determination of competence based on a plaintiff lawyer’s assessment of a health practitioner’s methodologies. For the reasons I discuss above, I do not accept that such an approach would be appropriate.”
Sharon’s comments: The plaintiff’s arguments appear patently absurd, not to mention that everything he suggests about a defence expert physician would apply equally (or more, perhaps) to the doctors who work mainly for the plaintiff bar. A worthwhile read.
Sanofi Pasteur Limited v. UPS SCS, Inc. et al., 2014 ONSC 2695 (CanLII), http://canlii.ca/t/g6q5l
Sanofi stored $8 million worth of vaccines at a UPS facility, in a temperature-controlled environment, at a cost of about $9K per month. Not surprisingly, someone at UPS was negligent in controlling the temperature, and the vaccines were ruined. Sanofi sued UPS and others. The contract between them contained a clause requiring Sanofi to have an all-risks policy on the vaccines that included UPS as an additional insured. Sanofi’s insurer paid the loss, and then brought a subrogated action against UPS.
The judge found that Sanofi’s covenant to insure relieved UPS of any liability, even for its own negligence. The judge said, “a covenant to insure operates for the benefit of both parties to the contract, ensuring that the promisee is relieved of liability for the loss and that the promisor will be indemnified for the loss. Given that this is a subrogated action, the Plaintiff has indeed been indemnified; the other half of the covenant’s bargain – relieving SCS of liability – must also be enforced.”
Sharon’s comments: There is now a substantial body of case law that stands for the proposition that these clauses will be enforced.
Neely v. MacDonald, 2014 ONSC 2866 (CanLII), http://canlii.ca/t/g6v8m
A well-known Toronto insurance defence firm held its annual golf tournament at a Clublink course. In what can only be described as irony, a passenger in one of its golf carts was injured when the driver lost control going down a steep hill. The injured golfer sued the golf cart driver, the golf club, and Clublink. Clublink in turn third partied the law firm (more accurately, the corporation to which the law firm belonged, called CLC). The contract between CLC and Clublink had a hold harmless clause in favour of Clublink. CLC brought a motion for a determination that it did not owe Clublink an indemnification, arguing that the hold harmless clause did not expressly cover claims for personal injury or claims based on Clublink’s own negligence.
The judge was not impressed with the motion, saying that “It is somewhat rich to hear an insurer complain about the onerous, unfair burdens of contractual exclusions”. He determined that “the liability claimed in this case arises out of the normal use of a golf cart as driven every day by thousands of golfers at golf courses. CLC undertook responsibility for its guests’ understanding the safe operation of the carts. It undertook to indemnify Clublink from any ‘claims of any nature that may arise from or through the use of a golf cart.’ The most obvious claims are personal injury claims arising out of accidents in which case Clublink’s liability is necessarily tortious… Clublink may well be liable to the plaintiff; that is an issue for trial. In my view, however, CLC has agreed to indemnify Clublink for that risk.”
Sharon’s comments: Same as above. The courts will enforce these clauses.
Woodbury v. Woodbury, 2014 ONSC 3149 (CanLII), http://canlii.ca/t/g6zz3 – boat injury, ungrateful plaintiff
Woodbury Senior drove his boat at high speed into a stationery boat operated by Hamilton. Hamilton and his passengers honked, waved, and screamed to try to get him to stop, to no avail. Hamilton dove into the water to save Woodbury Junior, who was severely injured and unconscious. Junior then sued his father, who was noted in default, and Hamilton. Hamilton brought a successful motion to bifurcate the trial, but Junior appealed. On appeal, aside from noting in the history of the proceeding that Junior had sued the very man who saved his life, Justice Morgan said that bifurcation was the only way to secure the just, most expeditious and least expensive determination of the proceeding on its merits. The appeal was dismissed, so the trial would still proceed on a bifurcated basis.
Ferreira v. Marcos, 2014 ONSC 1536 (CanLII), http://canlii.ca/t/g6k9m – the neighbour from hell
Ferreira did substantial exterior renovations. Before starting, he obtained the approval of his neighbours, including Marcos. At some point, Marcos decided he did not like the work that was being done, and he began a steady campaign of bullying and threats against Ferreira. Ferreira contacted the police on multiple occasions. This angered Marcos, so he in turn initiated a private criminal complaint against Ferreira for mischief and uttering threats (the very things he had been doing to Ferreira). Ferreira was emotionally impacted by these criminal charges, and sued Marcos for malicious prosecution.
The trial judge found Marcos not to be credible, and accepted the evidence of Ferreira in every respect, holding that the elements of the tort of malicious prosecution were met. Ferreira was awarded $40,000 in general damages.
Sharon’s comments: If Marcos does not pay the judgment, Ferreira can put a lien on Marcos’ home. If Marcos was a mean-spirited bully before, I can only imagine how he might react to that…
Victoria Mendes et al. v. Blaisdale Montessori School, 2014 ONSC 3178 (CanLII), http://canlii.ca/t/g70t2 – the parent from hell
The four year old pre-schooler was a behavioural problem, so the private Montessori school he attended asked him to leave. The child, via his mother, sued for breach of contract and breach of fiduciary duty. The judge was openly scornful of both of the lawyers on this case, chastising them for failing to quote relevant law (Hyrniak) or submit proper affidavits (both contained extensive hearsay and were from people with no knowledge of the matter). The judge said:
o First, the plaintiff’s entitlement to be at the school was contractual. The school was entitled to require him to withdraw without notice. The school’s duties to the child are tempered by the circumstances. It is trite law that not everything done by a fiduciary is necessarily done in a fiduciary capacity.
o Second, the plaintiff does not deny the misbehaviour alleged by the school principal. The very lengthy list of aggressive acts reported over a very short time frame readily engaged the school’s duties not just to the plaintiff, but to other students too.
o Third, the plaintiff’s mother’s allegations that other students misbehaved are generally irrelevant except to the extent that they might lead to an inference that the plaintiff was innocent of any misbehaviour or that he was provoked. Common sense suggests the legal principle “it takes two to tango” would seem to apply.
o Fourth, the school reports that the plaintiff’s mother was utterly unwilling to engage constructively. Her own letter bears this concern out completely.
o Fifth, the plaintiff has not delivered any evidence on this motion to deny the allegations in the school’s correspondence or to establish any other factual basis for the fiduciary duties alleged.
o Sixth, the plaintiff has not put forward any evidence of any damages having been suffered at all. It is not self-evident to me that a 4 year old suffers compensable loss from being asked to withdraw from pre-school or from the school failing to find an alternative pre-school – even assuming that it had such a duty (note: the school refunded the tuition).
o Seventh and perhaps most significant, the allegations in paragraph 7 of the Statement of Claim and the nature and scope of the fiduciary duties alleged by counsel, without any supporting law, do not strike me as fiduciary in nature or compensable at the suit of the child if at all.
As you can guess, the plaintiff’s action was dismissed, and the defendant was awarded $24,294 in costs.
White v. 123627 Canada Inc., 2014 ONSC 2682 (CanLII), http://canlii.ca/t/g6zxh – privilege
The defendant in this slip and fall action inadvertently sent the plaintiff a statement from Schedule B of its Affidavit of Documents. Plaintiff’s counsel (Wallbridge & Wallbridge) not only kept the statement, he tried to examine the defendant on it – which was when defence counsel first learned that it had been disclosed. Plaintiff’s counsel subsequently refused to return it in spite of multiple requests. The defendant brought a motion seeking removal of plaintiff counsel, among other relief. Plaintiff’s counsel set the matter down for trial, opposed the motion, and brought its own motion to obtain a summary of this statement and all others in the defendant’s possession.
It appears that the judge was not too pleased with the conduct of plaintiff’s counsel. He denied leave to the plaintiff to bring its motion as the matter had already been set down for trial, removed the law firm as plaintiff’s counsel of record, ordered the firm to destroy all privileged documents it had in its possession, forbade it to discuss the contents of those documents or from using it in any related proceeding, had the related portion of the discovery transcript ordered expunged, and because the judge evidently did not trust the law firm, ordered it to confirm to the court in writing that it had complied.
Sharon’s comments: Nice to see misconduct by counsel get the treatment it deserves.