Blouin Dunn Associate, Amir Fazel Successfully Opposes Motion To Set Aside Registrar’s Dismissal For Delay

WEB 1Associate, Amir Fazel, successfully opposed a plaintiff’s motion to set aside a registrar’s dismissal for delay.  Amir’s efforts highlight the need to take a pro-active approach to investigate and build a strong responding record to identify and highlight the delay-caused prejudice in such motions.  Indeed, one must be prepared to know the evidence supporting the plaintiff’s claims better than the plaintiff herself.

The case involved a file that had passed through two prior plaintiff’s solicitor firms.  The plaintiff was a postal worker who had suffered extensive orthopaedic injuries and would likely never return to her pre-accident job.  Her first lawyer allowed the action to be dismissed, possibly in part due to personal issues, and took no steps to set aside the dismissal for more than 2 years.  The subsequent lawyer focused his efforts on initiating litigation against the first lawyer, and took no steps to set aside the initial dismissal for another 3 years.  The plaintiff’s stated intention throughout had been to pursue compensation for her injuries.  The delay was long, but success on the motion was not guaranteed as the “innocent” plaintiff had been let down by her legal counsel and still awaited her day in Court.

Amir identified early on that the key consideration for the Court hearing the motion was whether the insurance defendant had suffered prejudice as a result of the plaintiff’s delay.  Amir’s efforts included an in-depth review of the oral and documentary evidence in the case to identify gaps that could no longer be filled due to the passage of time.  We identified potential witnesses from the discovery transcripts and followed up to confirm that some may no longer be available.  We contacted medical professionals, such as the pharmacies and medical imaging facilities the plaintiff had attended following the accident, to confirm if their records existed.  We confirmed that other treating professionals had retired, and that the statutory deadlines for the preservation of their records had expired.  We attempted to contact any identifiable first responders, including the investigating police officer and department, to confirm that relevant liability records may not have been preserved.

As a result of these efforts, the Court agreed with Amir that the insurance defendant had suffered “significant” prejudice by the plaintiff’s delay and refused to set aside the dismissal.  The plaintiff was also ordered to pay a significant costs award.

Reasons for Judgment of Justice Skarica – February 20, 2015

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Amir Fazel

The Big Mingle 2015

Our 9th Annual Big Mingle was another huge success this year! Held on February 3rd at The Fifth Social Club, The Big Mingle celebrated the Toronto street art scene, with décor from Graffiti Alley and two live artists; Skam and Javid.

This post CICMA/CIAA Joint Conference event saw hundreds of insurance claims industry professionals from across the country mixing and mingling the night away!

We’d like to thank all of our guests and sponsors for their support and look forward to seeing you all again next year!

Check out photos from the evening below and visit The Big Mingle website for upcoming news on next year’s event!

Big Mingle 2015 from MCC Events on Vimeo.

“Sharon’s Case Law Review” #4

334C0154c (1000x1500)My blog is a summary of recent case law, mainly in the area of personal injury. It is my personal take on cases that I find relevant, or sometimes simply entertaining. I hope you enjoy reading it.

I try to post a new summary every month or two, but I make no promises. If you want to be notified when a new posting comes out, just send me an e-mail at sshore@blouindunn.com, or follow Blouin Dunn on Twitter at @BlouinDunn.

Sharon Shore
Blouin Dunn LLP

MVAs

Alarcon v. Desai, 2014 ONSC 7200 (CanLII), http://canlii.ca/t/gfltj – summary judgment motion dismissed

The driver in the left lane of the QEW swerved onto the shoulder and lost control. She crossed three lanes and hit the vehicle in the middle lane, which then collided with the vehicle in the right lane. The right lane driver sued the left lane driver, who third partied the middle lane driver. Left Lane’s position was that Middle Lane had drifted into her lane, causing her to swerve and starting the chain reaction. Middle Lane denied this and brought a motion for summary judgment.

Unfortunately, Middle Lane’s motion materials were deficient. They relied in part on Middle Lane’s own discovery transcript, which is not allowed unless all parties consent. The motion record also included an affidavit from a lawyer, who the judge found was not a party with actual knowledge. The judge said that the lawyer could swear an affidavit about information contained in the pleadings, correspondence, etc., but not to things that were more appropriately sworn by an involved party. Not surprisingly, the judge dismissed the motion and said that this was a matter for trial.

Sharon’s comments: The deficient motion materials somewhat surprise me, coming from an insurance defence firm. Leaving that aside, it is my view that where there is a credibility issue which materially affects liability, it is not appropriate to bring a summary judgment motion unless there is some external or independent evidence. In this case, there were no independent witnesses or expert evidence, so I think a judge would be reluctant to decide credibility issues on a summary judgment motion. As an aside, it is because of cases like this that I have installed a dash-cam in my car. If the middle lane driver had only had one, she would have been able to prove that she never left her lane.
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Dubreuil v. Lalande, 2014 ONSC 7433 (CanLII), http://canlii.ca/t/gfs2m – limitations period, discoverability #1

The accident occurred on June 19, 2007, and the plaintiff issued his statement of claim on July 29, 2011. This was more than two years after the expiry of the limitation period, but the plaintiff argued that he only discovered he had permanent and serious injuries in 2010. The defendant brought a motion for summary judgment.

The defendant referred to the plaintiff’s discovery evidence that he had experienced pain in his neck within an hour after the accident; had gone for 20 chiropractic treatments in 2007 and 2008; the pain in 2008 affected his ability to function at work; and this pain caused him to black out and drop something, which caused him to fall and further injure himself. In early 2010, he was sent for an assessment, and he told the doctor that the pain from the accident interfered with his leisure and social activities.

The plaintiff only retained a lawyer in May 2010. In Sept. 2010 the plaintiff had an MRI which showed a small disc protrusion. His lawyer waited until July of 2011 to issue the claim. The plaintiff argued that he only discovered he had a permanent and serious injury when he got the MRI results.

The judge agreed with the plaintiff and dismissed the summary judgment motion.

Sharon’s comments: Why bother having a limitation period if MVA claimants can ignore them with impunity? This plaintiff clearly knew he was injured right from the start.
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Pereira v. Contardo, 2014 ONSC 6894 (CanLII), http://canlii.ca/t/gff8s – limitations period, discoverability #2

The defendant appealed the dismissal of its motion for summary judgment. The motor vehicle accident occurred on Dec. 21, 2008. The plaintiff hired a well-known personal injury lawyer, received accident benefits, and persistently complained of soft tissue injuries and chronic pain. 1 ½ years post date of loss, his lawyer sent him for an in-home assessment, where his attendant care needs were assessed at almost $7K a month. By December 2010 the plaintiff felt that his pain would never go away. He went to a pain specialist and orthopedic surgeon in 2012, and was diagnosed with chronic pain syndrome. He started an action on March 28, 2013, almost 4 1/2 years from the date of the accident.

The plaintiff’s argument in opposing the summary judgment motion was that he had acted reasonably, since the first time any of his doctors told him his pain might be permanent was in April 2012. Since he commenced his action within two years of the date he said he discovered his injuries were permanent, it was therefore within the limitation period.

The judge agreed, saying, “In sum, I am satisfied that acting reasonably, JP undertook the medical assessments in a timely fashion – in particular within months of being told by one of his doctors (for the first time) in 2012 that he “might never get better.” In a chronic pain case (which for almost everyone will have elements of hope and despair), and particularly on the facts herein, a delay of three and half years from date of accident to date of arranging expert medical assessments, is not unreasonable.”

The divisional court judge upheld the dismissal on appeal.

Sharon’s comments: More evidence that arguing discoverability on an MVA claim is doomed to fail, no matter how obvious the facts. By the way, the plaintiff retained a new lawyer and sued his old one. That means he was sucking and blowing at the same time – his former lawyer was negligent for not issuing a claim within the limitation period, but he didn’t know there was a limitation period until realizing four years after the accident that his problem might be chronic.
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Zhu v. Matadar, 2015 ONSC 178 (CanLII), http://canlii.ca/t/gfw24 – limitations period, discoverability #3

The plaintiff issued her claim 2 years and 21 days after the accident, and the defendants brought motions for summary judgment re the limitation period. The plaintiff argued discoverability, and won.

Sharon’s comments: More of the same; the details are irrelevant. Defendants should plead a limitation defence where appropriate, but I wouldn’t waste my time bringing a motion for summary judgment on this point unless there is a medical note or report dated more than two years before the action was commenced, which states that the injury was chronic or likely to be permanent.
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Abarca v. Vargas, 2015 ONCA 4 (CanLII), http://canlii.ca/t/gftzz – OPCF44R

The plaintiffs sued the other driver in respect of a 2007 MVA, in Newmarket. The defendant’s insurer took an off coverage position and added itself as a statutory third party. Plaintiff’s counsel brought a motion in Sept. 2010 without notice, seeking to add the plaintiffs’ own insurer as a defendant per the OPCF44R. The judge said that the limitation period had expired, so the motion had to be brought with notice. Instead of doing that, plaintiff’s counsel started a new action in May 2011, but in Toronto. The insurer brought a motion to dismiss. The judge found that this new action was in contravention of the judge’s endorsement and was an abuse of process, and the plaintiffs’ claim against their own insurer was struck. The plaintiffs appealed.

The Court of Appeal agreed that the plaintiffs’ ignoring the order of the Newmarket judge was indeed an abuse of process. However, it said that a dismissal of the action was too drastic a remedy as it would have the effect of denying the plaintiffs’ access to up to $800K of coverage (i.e., beyond the stat third party’s $200K limits). In the circumstances, the court found that the proper consequences for the abuse of process was an award of costs. Accordingly, although the plaintiffs won, they did not get costs of the appeal or the motion.

Sharon’s comments: Although my heart generally beats to an insurance tune, and I have been known to disagree on occasion with the Court of Appeal, I think this time they got it mostly right. Although the lawyer may have engaged in sharp practice, it would be unfair to deny the plaintiffs access to indemnification under their own policy. However, I do think the court got it wrong with the costs award. Declining to award any costs to a plaintiff is not remotely the same as the plaintiff having to pay costs for their lawyer’s abuse of process. As I see it, the plaintiffs have not been penalized in the least. I believe the defendants ought to have been awarded costs of the motion and possibly even costs of the action to date.

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Lakew v. Munro, 2014 ONSC 7316 (CanLII), http://canlii.ca/t/gfv03 – costs

Although the defendant had admitted liability for this MVA, the jury found that the plaintiff’s injuries were not caused by the accident. The action was dismissed, and the defendant sought $110K in costs and $45K in disbursements. The defendant had previously offered to settle for $30K gross, or zero net after deductible; the plaintiff had offered to settle for $45K all inclusive. In her costs submissions, the plaintiff argued, among other things, that she was impecunious, that the defendant was an insurer that could afford to bear the costs, that she hadn’t known about these large cost consequences, and that the defendant had attended at a “sham” mediation where it offered to pay nothing.

The judge found that the defendant was entitled to its costs, although as usual, he awarded much less than was requested. In particular, the judge said that the defendant had attended at a mediation and maintained its position, and that this did not constitute a sham. He awarded the defendant $40K in costs and $45K in disbursements, payable by the plaintiff over six months.

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Bustamante v. The Guarantee Company of North America, 2015 ONSC 94 (CanLII), http://canlii.ca/t/gftlz – the court criticizes this lawyer – again

The plaintiff received income replacement benefits, and then sued her insurer for denying her non-earner benefits. The defendant brought and won a summary judgment motion (see http://canlii.ca/t/gfj1g). The defendant then sought its costs on a substantial indemnity basis, arguing that plaintiff’s lawyer had caused costs to be incurred without reasonable cause.

Hamilton judges are unhappy with this lawyer’s practice. The judge wrote, “…That is quite separate whether Ferro & Company did anything wrong in advising the plaintiff to institute and pursue unfounded allegations of fraud. This is not the first time that this firm has participated in cases involving such unfounded allegations… Mr Oostdyk argues that the court should not punish a lawyer for good legal thinking. I think more to the point is whether it should punish bad legal thinking.”

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OCCUPIER’S LIABILITY

Clarke v. Alaska Canopy Adventures, 2014 ONSC 6816 (CanLII), http://canlii.ca/t/gfgtd – waivers

The plaintiff went on a zip-line while on an Alaskan cruise (presumably there is sufficient connection to Ontario to justify her commencing the action here). She was given an agreement to sign which contained a release of liability, waiver of claims, an indemnity agreement, and a description of the risk. She did not brake properly and hit a tree just past the landing platform, badly breaking her leg. She sued the ziplining company, which brought a motion for summary judgment on the waiver issue.

The judge dismissed the motion. He wrote: “… a complete factual record is required in order to justly determine the legal rights which are being waived. This is especially so given that the agreement in question is called a “Participant Agreement (including assumption of risks and agreements of release and liability)” and not a “Release of Liability, Waiver of Claims and Assumption of Risks Agreement”; the typographical errors contained in the agreement as well as the fact that there is not a description of the legal rights which are being waived in the bold letters which appear directly above the signature line. A complete record is necessary to justly determine the plaintiff’s reasonable understanding of the purpose and scope of the waiver in the circumstances, and further whether the very terms of the agreement should be limited or restricted based on the factual matrix of this case.”

Sharon’s comments: It seems to me that a rose is a rose is a rose, and a waiver is a waiver is a waiver, whatever you call it. Historically, however, Ontario judges have been highly averse to dismissing a waiver case on a summary judgment motion. Nonetheless, there is a large body of case law in BC where summary judgment motions successfully established that a waiver was a complete defence to an action. There is also a lengthy and well-written decision in Ontario where an action was dismissed on the basis of a waiver (see Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON SC), <http://canlii.ca/t/1xmgh>), although this was a trial decision rather than a motion for summary judgment. Perhaps with the more expansive approach to summary judgment, some Ontario judges will accept what BC judges have long recognized, i.e., a properly written waiver, brought to the attention of a plaintiff who is capable of understanding it, is a complete defence.

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De Cou v. Leamington (Municipality of), 2014 ONSC 6044 (CanLII), http://canlii.ca/t/gfczd – tobogganing

The plaintiff was sledding down a hill in Leamington that was commonly used for sledding. She lost control and veered off to the right, coming to a sudden stop and getting ejected. She sued the municipality, alleging that it failed to keep the property safe for her, failed to post warning signs, and failed to erect barriers to prevent the hill’s use. The municipality argued that it owed a duty not to create a danger or act with reckless disregard, that it was unaware of any dangers as there had never been a prior injury, and that the risks were willingly assumed by the plaintiff.

The judge agreed with the Municipality, and found the plaintiff 100% responsible for her injuries. He wrote:

[18] There is no doubt that sledding/tobogganing brings with it a foreseeable risk of falls, tumbles and detachment from one’s sled. The sled used by the plaintiff was a very light piece of Styrofoam with minimum steering ability. It was not surprising that the plaintiff lost control of her sled and left the worn path that she had taken down the hill on a first run. There was no evidence before me that she hit a log or any other hidden obstruction. The plaintiff’s claim that she hit a log (or a hidden trap) is speculation unsupported by the evidence. It is clear that she came off the sled and rolled down the hill and hurt herself. I cannot conclude that her being thrown off the sled was the result of hitting a hidden object. In my view, it is equally consistent that the plaintiff’s foam sled veered to the edge of the travelled pathway and collided with the harder untravelled snow, launching her from her sled. I do not find that the hill was dangerous for public use.

[19] The plaintiff has not established that she relied on a belief that the town was maintaining the trail. I do not find that what occurred to her on February 2, 2009 was outside the scope of what she would reasonably have expected could happen on a hill of this size. I do not find that her injuries were a result of the breach of a duty of care owed to her by the Town of Leamington. Going down a snow covered hill in February on a light piece of material (be it plastic, cardboard, Styrofoam or wood) is a typical Canadian winter experience. Falling off a sled is also part of that experience. I find that Ms. De Cou willingly assumed the known risk that she could be injured. It is indeed unfortunate that Ms. De Cou suffered an injury which hospitalized her but this was an accident for which I find the cause was Ms. De Cou’s inability to control the sled on which she chose to travel.

[20] I find no causal link between Leamington’s failure to supervise or inspect the hill and Ms. De Cou’s injuries.

Sharon’s comments: There has been a lot of media coverage lately about municipalities shutting down tobogganing hills out of fears of being sued, including reference to an older case that cost the City of Hamilton almost $1 million. At least here we have a good example of the exercise of common sense.
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MISCELLANEOUS

Coleman v. Neagu, 2014 ONSC 6331 (CanLII), http://canlii.ca/t/gfrpm – lawyers behaving badly

The defendants were to be examined in Hamilton, and the plaintiffs the following day in Windsor. Plaintiff’s counsel started driving to Hamilton (from Windsor) in the morning, but hit snow. She was unable to get hold of defence counsel but notified his office re rescheduling both plaintiff and defence discoveries. Defence counsel did not get the message, and he travelled to Windsor the following day to examine the plaintiffs.

The defence sought to recover the costs it wasted for the unnecessary attendance. The case conference master declined to order any costs, so the defendants appealed. On appeal, the defendants argued, among other things, that the plaintiff ought to have travelled to Hamilton the night before so she would not have encountered the snow.

The judge hearing the appeal threw out the certificates of non-attendance that the defendants had obtained, said that the Master would have been justified in ordering costs against the defendants, and tossed the appeal. He said it was inconceivable why defence counsel, even if somehow unaware from the court reporters’ office, his own office, or the plaintiff, that the examination was cancelled, would not have contacted plaintiff counsel’s office to find out why she had not shown up and whether the plaintiffs’ examination could still proceed.

The judge added that the material filed on the appeal revealed “a level of intractability, discourtesy and bullying behaviour on the part of the defendants’ counsel… which was completely unacceptable and contrary to the standards of civility expected by the Law Society and the courts of this province”. He ordered the defendants to pay costs of $10,000.

Sharon’s comments: As defence counsel, we often complain about incivility and discourtesy in the plaintiff bar. I suppose this case proves only that incivility and discourtesy can be found on both sides.

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Winters v. Haldimand, 2014 ONSC 5759 (CanLII), <http://canlii.ca/t/gdvtc> – costs

This is the costs award after a 2012 trial. The plaintiff had become a paraplegic after falling from a tree, and sued the municipality. Damages had been agreed on, and the trial was on liability only. The plaintiff’s action was dismissed and the defendants now sought their costs.

The plaintiffs had previously served a Rule 49 offer to settle for $749K plus costs, and the defendants’ offer was for a dismissal without costs. The defendants wanted their costs and disbursements of $140K, including as against OHIP (for its subrogated claim) and the FLA claimants. The plaintiffs argued impecuniosity and that no costs should be awarded due to the tragedy of the situation, as well as the usual costs arguments (e.g. duplication of effort, too many counsel, etc.).

The judge felt that OHIP’s subrogated claim was 2% of agreed on damages, and that it should pay costs in that proportion. There was no evidence that the plaintiff was impecunious, and the tragedy was something to take into account but was not a reason to deny costs. As far as costs against FLA claimants, although some judges have refused to assess costs against them so as not to discourage them from bringing such claims, this judge felt that there needed to be a balance, and that costs against FLA claimants were appropriate in some circumstances.

At the end of the day, the judge awarded the defendants $75K in total, or just over half of what it sought. OHIP had to pay 2% of it, proportionate to its claim, and each of the seven FLA claimants had to pay $5K each, leaving the plaintiff having to pay just under $40K. The judge also added that all such costs are “payable if demanded”, a neat little twist designed to make the insurer feel bad if it insists on its costs.

Sharon’s comments: I wonder if the insurer will demand its costs. It has been put into a very difficult position.

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Szakacs v. Clarke, 2014 ONSC 7487 (CanLII), http://canlii.ca/t/gfs1j – Another entertaining decision from Justice Quinn

Here’s how it starts:

[1] For best courtroom adaptation of a work of fiction, the award goes to the applicant, XX, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.
[2] One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous”.

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Sandu v. Fairmont Hotels and Another, 2014 ONSC 5919 (CanLII), <http://canlii.ca/t/gfs35> – not a very merry Christmas

The plaintiff’s husband was employed by the hotel and the family attended a Christmas party there. They booked a heavily discounted, non-refundable room. Although the room was on a non-smoking floor, someone had previously smoked in it. The family demanded a new room, which was offered, but apparently engaged in a verbal altercation with front desk staff and left the hotel. The desk clerk wrote up the incident as he was required to do, including a description of the plaintiff as belligerent, intoxicated, etc., which was circulated to various people in the company. The plaintiff sued for defamation.

The judge dismissed the action: he/she preferred the evidence of the staff and accepted that the plaintiff was most likely angry and difficult. Further, writing up the incident and circulating it internally to various people was in accordance with company requirements, and necessary. Last, this communication arose in a context of qualified privilege.

Sharon’s comments: Did no one tell this woman that by suing for defamation, now everybody will know about this?