“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?

“Sharon’s Case Law Review” #3

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

Yetman v. Marzec, 2014 ONSC 4624 (CanLII), <http://canlii.ca/t/g8htk> – statutory third party and costs award

State Farm was a statutory third party in this MVA trial, as it had taken an off-coverage position against its insured. There was another claimant who had previously settled with State Farm for $100K, meaning that there was only $100K of available limits left for this plaintiff. At trial, a jury awarded the plaintiff a bit over $1 million. The plaintiff would only get the $100K from State Farm, but he wanted his costs of $421K and disbursements of $113K from it as well.

There had been previous offers exchanged, which the judge considered. The plaintiff had offered to settle for $200K + costs, and State Farm had countered with $100K plus costs, with costs to be determined. On the eve of trial, the plaintiff offered to settle for $101K plus costs and interest. I assume that State Farm’s refusal of what appears on its face to be a reasonable offer was because the plaintiff’s costs and disbursements were very high by that point and State Farm could not envision paying $100K in damages and $300K (or more) in costs and disbursements.

The trial judge was not happy with State Farm and how it conducted the trial, saying that “…positions were advanced by the Statutory Third Party in relation to liability that had no evidentiary support, thereby prolonging the length and complexity of the trial.” She said that since the statutory third party got full litigation rights according to statute, it should also be exposed to full costs consequences. She ordered State Farm to pay the $100K in damages, plus costs of $350K and disbursements of $100K. When adding State Farm’s own defence costs – probably at least another $300K – this file probably cost State Farm close to, or perhaps even more than, $1 million.

Sharon’s comments: I think the question in hindsight is whether this outcome was at all foreseeable. It seems to me that State Farm ought to have known it was unlikely to win on liability, given its inability to rely on its own insured and considering the judge’s comments. The fact that the jury awarded the plaintiff $1M would suggest that this was a relatively serious case. I understand that the plaintiff initially wanted $200K in damages and that State Farm had $100K of available limits, but you still have to wonder whether State Farm ought to have realized the potential exposure in taking this to trial.

This case is also illustrative of the fact that insurers will have full costs exposure even when they are on as statutory third parties.
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Stephen Azzopardi v. John Doe
, 2014 ONSC 4685 (CanLII), http://canlii.ca/t/g8ml4 – OPCF44R coverage

The plaintiff was driving his motorcycle when he claimed an unidentified vehicle cut him off and forced him to brake. He put his leg out and suffered severe orthopedic injuries. He sued the Personal under the unidentified provisions of his OPCF44R. The Personal brought a motion seeking a finding that their exposure was limited to $200K, on account of the fact that there were no witnesses and no corroborating physical evidence.

The judge decided that the nature of the plaintiff’s injury was such that it corroborated the plaintiff’s version of events. On that basis, he decided that this was an issue for trial, and he/she dismissed the Personal’s motion. He felt that corroborative evidence does not have to be limited to physical evidence at the scene, such as skid marks, but can be physical evidence extrinsic to the plaintiff’s self-report that supports and is consistent with the plaintiff’s story.

Sharon’s comments: This decision suggests that any plaintiff who is injured in a single vehicle accident could blame it on an unidentified vehicle and succeed in obtaining OPCF44R coverage. It seems to me that the plaintiff’s injury is supportive only of the fact that he put his foot out and suffered orthopedic injuries, not that there was an unidentified vehicle that caused him to put his foot out in the first place. Perhaps an animal ran across his path. As Jean Chretien famously said, “A proof is a proof, and when you have a good proof, it’s because it’s proven”. It seems to me that this judge’s decision eviscerates the plain meaning of the OPCF44R wording. The insurer will have to make the same argument at trial and hope that the trial judge is better at statutory interpretation than the motions judge.
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Sant v. Sekhon
, 2014 ONCA 623 (CanLII), <http://canlii.ca/t/g8vx4> – when joint and several liability bites you in the backside

This was an appeal of a jury trial verdict, by the insurer of a truck involved in a truck/car collision. The truck had a green light and collided with a car that went through the intersection on a red light. The plaintiff was a passenger in the car. At trial, the jury found the truck 5% liable, and the car driver 95% liable. The Court of Appeal found that the standard of care was that a driver who has a green light has a right to assume that drivers facing a red light will stop, but that driver must also exercise proper care. The court upheld the jury finding, with costs payable of $30,000.

Sharon’s comments: Because it was a jury trial, we do not have the details as to the damages. It is very rare that the Court of Appeal will alter a jury verdict. Even so, the truck’s insurer had no choice but to appeal the trial finding of 5% liability. Chances are that the car owner had $1 million of insurance. If the plaintiff was catastrophically injured, damages were likely to be well over $5 million (or maybe even over $10 million). With joint and several liability, even though the truck driver was deemed only 5% responsible, its insurer would be on for 100% of the damages over the car owner’s policy limits.
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The Economical Mutual Insurance Company v. Zurich Insurance Company
, 2014 ONSC 4763 (CanLII) http://canlii.ca/t/g8wjt – loss transfer

This is a loss transfer matter arising out of an MVA, where Economical’s insured was hit by a dump truck insured by Zurich on July 18, 2005. Economical paid the ABs and sent a notice of Loss Transfer on November 8, 2005. This was followed by several Requests for Indemnification dated Jan. 30, 2006, Feb. 21, 2008, and April 17, 2008.

At arbitration, Zurich relied on the limitation period, which it said commenced on Jan. 30, 2006, the date of the first request for indemnification. The arbitrator found that each request invoked a separate limitation period, or a “rolling limitation period”. This was an appeal of that decision by Zurich.

The judge agreed with the arbitrator, and with Economical. He said that loss transfer is different than a tort claim and is not based on negligence. Since the Insurance Act provides for arbitration, the limitation principles applicable to tort did not apply.
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Nandal v. Toronto Transit Commission, 2014 ONSC 4760 (CanLII), http://canlii.ca/t/g8mr4 – slip and fall

The plaintiff slipped and fell on a stairway at a TTC station. She thought she must have slipped on debris, but could not say for sure. There was no evidence of any debris, and the stairs were of non-slip tile. The TTC brought a motion for summary judgment. It argued that the standard for an occupier is not perfection, and that the plaintiff had to show that the TTC was negligent. The judge agreed with the TTC and dismissed the plaintiff’s action.
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Argyropoulos v. Toronto Transit Commission, 2014 ONSC 3261 (CanLII), http://canlii.ca/t/g825d – another TTC slip and fall

This was a costs decision following a jury trial on a slip and fall on an escalator. The jury dismissed the plaintiff’s action. Damages were assessed at $2,583 generals, 10K for past treatment expenses, nothing for past income losses, and nothing for the FLA claimants. The TTC requested $90K in costs and $52K in disbursements.

The plaintiff had served a Rule 49 offer in 2009 for $789K plus costs of $118K and disbursements of $50K. The TTC served a Rule 49 offer in 2013 for a dismissal with costs payable by the plaintiff of $5K, plus its disbursements of $40K.

The plaintiff argued that the TTC should be denied its costs because success at trial was divided. The judge said that there was no merit to that argument, as the jury found no liability and the action was dismissed. Damages were assessed by the jury only because it was ordered to do so; an assessment of damages in the absence of any liability finding is not a “partial success”. Without a finding of liability, the plaintiff had no entitlement to compensation from the defendant.

The plaintiff also argued that the TTC should be denied costs because it conducted the litigation in a way that was improper, vexatious, and unnecessary. The judge said that there was nothing that the TTC did that constituted misconduct. He said, “As was its right, the TTC took a consistent position throughout the litigation that there was no liability, a position that the jury accepted. While the TTC’s offer dated October 8, 2013, is an important factor to be considered in determining the quantum of costs, the terms of that offer are not a sufficient basis to depart from the general rule that the successful party is entitled to costs. The TTC also was within its rights to conduct surveillance. Whether it used this evidence at trial is a tactical decision it was entitled to make <although the judge did find that 29 days of surveillance was excessive -SS>. The TTC was entitled to use only a roster mediator and not to agree to a second pre-trial conference.”

The judge did not assess costs as against the FLA claimants. He awarded $30K to the TTC for costs, and $43K for disbursements.
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Sinclair v. Town of Markham
, 2014 ONSC 1550 (CanLII), <http://canlii.ca/t/g8z2w> – slip and fall on snow and ice

The plaintiff slipped and fell on ice, and sued the Town and the Town’s snow removal contractor. The Town was an added insured under the contractor’s policy and it wanted the contractor to assume its defence. The contractor’s insurer declined to do so, so the Town issued a third party claim as against the insurer and brought a motion to compel the insurer to defend it.

The insurer argued that the Statement of Claim did not specify where the fall occurred, and that it only owed the Town a defence if the contractor was negligent. The judge found that while the claim did not specify an exact location, the Town had demanded and received particulars clearly showing the fall occurred on a sidewalk. Further, every one of the allegations against the Town fell within the policy coverage. The insurer not only owed the Town a defence, the judge found that the insurer had to fund the Town’s separate defence. The Town was awarded costs of $10,000.

Sharon’s comments: We keep seeing these same types of motions over and over again, where a winter maintenance contractor’s insurer in a slip and fall action refuses to assume the defence of its added insured property owner. In virtually every case, the insurer ends up being compelled to assume the occupiers’ defence. Not only that, but by refusing to assume the added insured’s defence from the start, the insurer is pretty much guaranteeing that its legal costs will double. For example, the insurer here will be paying the legal fees to defend its own insured, and the legal fees for the separate defence of the Town. On top of that, it had to pay its own lawyer for this ill-advised motion, plus another $10K for costs awarded to the Town.

To all CGL insurers of snow removal contractors: where the owner/occupier is an added insured on the contractor’s policy, unless there’s some solid evidence of a problem with the property (e.g. a known leaky roof causing ice build-up, poor lighting, potholes, etc.), you will owe the occupier a defence. It would be better to assume their defence sooner rather than later, before your own defence costs skyrocket.
____________________________________________________________________________________________________________________________MISC. CIVIL PROCEDURE

Cromb et. al. v. Bouwmeester et al., 2014 ONSC 5318 (CanLII), <http://canlii.ca/t/g90rh> – surveillance and privilege

The defendant in this MVA ordered three rounds of surveillance on the plaintiff. It disclosed the first two, but claimed litigation privilege over the third. The plaintiff brought a motion for, among other things, full disclosure of the third report. The judge ordered it disclosed, saying that the refusal to disclose the third round raised questions as to whether that evidence was detrimental to the defendant’s case. She suggested that the defendants were cherry-picking favourable evidence, and that this created a significant risk of the court not receiving a full and accurate picture of the plaintiff’s true level of functioning.

Sharon’s comments: I disagree with this. Surveillance captures the plaintiff at different points in time and it is not one continuous event. It is done for the purpose of litigation so it is privileged at first instance. The defendant is obligated to disclose the particulars, but it ought not to have to disclose the entire report. The rules are clear that if the surveillance is not disclosed, the party cannot rely on it at trial (unless for impeachment).
____________________________________________________________________________________________________________________________Signal Chemicals Ltd. v. Singh, 2014 ONSC 5228 (CanLII), http://canlii.ca/t/g8zxh – undertakings

The defendant did not comply with a previous Master’s Order to answer various refusals, and the plaintiff had brought a successful motion to strike the defence. The Master had found that trial was 1½ months away and felt that she had no choice but to strike the defendant’s pleading. The defendant appealed. The judge foundthat the Master committed an error of law when she said that she had no choice in the matter, since she did have discretion. In addition, this was hardly the eve of trial and there was still plenty of time. The judge reinstated the pleading that had been struck out, but gave the defendant a week to answer the refusals or else his pleading really would be struck.

Sharon’s comments: This just goes to show that even where a party has failed to comply with its undertakings, even when trial is approaching, the court will bend over backwards to give the party one more chance to comply.
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Cuff v. Gales, 2014 ONSC 4756 (CanLII), http://canlii.ca/t/g8ngs – more undertakings and refusals motions

Although this is a standard undertakings and refusals case motion, the motion records of both parties were deficient and the judge was quite vocal about it. Even though the defendant got most of what it asked for, no costs were awarded.

The judge came up with some “rules” for these motions:

Both parties:
a)           Page numbering
b)           A list of all of the undertakings, highlighting those alleged not to have been complied with, followed by related excerpts from the transcript.
c)           A Refusals and Undertakings chart, including all related correspondence.
d)           An affidavit identifying all correspondence sent and received in relation to the undertakings

The responding party:
c)           An affidavit setting out the full sequence of events in complying with undertakings, including the following:
–                 A list of the undertakings, the steps taken to comply, and the status of compliance.
–                 Any letters sent to non-parties and replies received;
–                 Any motion brought to compel production from a non-party.

Sharon’s comments: This judge wants to see all the letters, motions, and documents. Some masters and judges get annoyed if you include all of this. The moral of this story, articling students and junior lawyers, is that you will probably get chastised for deficiencies in your undertakings motions no matter what you do.
____________________________________________________________________________________________________________________________MISCELLANEOUS
Kechichian v. McIntyre, 2014 ONSC 4879 (CanLII), http://canlii.ca/t/g8qw7 – misc. personal injury

The plaintiff had been doing some work at his friend, the defendant’s, home and ended up with a partial amputation of his thumb. The jury trial took less than 2 ½ days, after which the plaintiff’s action was dismissed. The defendant had originally offered to go out without costs, and then offered $50K++ at pretrial, so he sought his costs.

The judge was annoyed at both parties. He found that this was a very basic trial between friends that was “devoid of any legal argument”. The judge likened this trial to a Small Claims Court trial and said that the issues were so simple that counsel could have “winged it”.

Defence counsel in his costs submissions described his fee as being flat rate. The judge did not like that either, stating that this may be what the insurer and counsel agreed on, but that it did nothing to inform the court. He said it provided neither calculation of the hours incurred or a description of the actual work done. He awarded costs of $2,500 – no doubt significantly less than what the defendant had been seeking.

Sharon’s comments: Ouch.
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Cruz v. McPherson
, 2014 ONSC 4841 (CanLII), <http://canlii.ca/t/g8qxl> – personal injury firms and paralegals

The plaintiffs were in an MVA, and retained a paralegal firm for their accident benefits. The paralegal firm’s brochure stated that it was in partnership with Fireman Wolfe, so the plaintiffs thought that Fireman Wolfe would be handling their tort claim. Fireman Wolfe did not start a tort claim within the limitation period. The plaintiffs sued the law firm, the paralegals, and lawyers Jack Fireman and William Wolfe personally, for breach of contract, negligence, and negligent misrepresentation.

The lawyers brought a Rule 21 motion for a determination that the lawyers did not have a contract with the plaintiffs, that the lawyers as individuals ought not to have been named, and that the tort of negligent misrepresentation was not properly made out. The judge agreed that the individual lawyers were improperly named, but found that it was not plain and obvious that the law firm itself did not owe a duty of care to the plaintiffs. Accordingly, he struck out the action as against the lawyers personally, but allowed the case against the law firm to continue.
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Douglas v. Stan Ferguson Fuels Ltd
., 2014 ONSC 4709 (CanLII), http://canlii.ca/t/g8lp6 – subrogation

The defendant did an inspection of the plaintiffs’ oil furnace system and shortly afterwards, delivered fuel oil to the plaintiffs. The entire delivery escaped into the ground. The fuel company immediately began remediation, but it was the plaintiffs’ own insurer, State Farm, who paid all the costs.

State Farm issued a subrogated action as against the fuel company in the plaintiffs’ name. The husband and wife plaintiffs separated, declared bankruptcy, and sold the premises. State Farm brought a motion for the right to continue its subrogated action in the plaintiffs’ name, or to be added as a plaintiff in its own right. The defendant fuel company argued that because of the bankruptcy, the plaintiffs had no capacity to bring or continue the action, and asked that the subrogated claim be struck.

The judge did not buy the fuel company’s argument. He said:

[53]      The Defendants, who, having allegedly caused the loss, retained the oil remediation specialists and thereafter handed over the total costs for remediation of the property to the Plaintiffs’ insurer, seek to avoid a trial of the action on the merits by asserting that the Bankruptcy and Insolvency Act extinguishes or trumps the subrogation rights of an insurer that is subrogated to recover from a potential tortfeasor. In short, to grant the order requested by the Defendants would be to allow the potential wrong-doer to profit from the fact that the Plaintiffs were insured.

[54]      To give effect to the relief requested by the Defendants in their cross-motion would be to incorrectly emphasize form over substance, which is the opposite of the substantive principle articulated by the Supreme Court in Somersall v. Freidman.

[55]      Further, to give effect to the Defendants’ position would offend the second of the two underlying objectives of the doctrine of subrogation as articulated by Iacobucci, J. in Somersall v. Freidman, specifically: First, it is important to keep in mind the underlying objectives of the doctrine of subrogation which are to ensure … (ii) that the loss falls on the person who is legally responsible for causing it. (emphasis added)

The judge found that State Farm had the right to continue and control this action to pursue its subrogated claim against the Defendants, without need of amending the Statement of Claim to itself as a party.
____________________________________________________________________________________________________________________________
Danovic v. Wagner
, 2014 ONSC 2664 (CanLII), http://canlii.ca/t/g7ms1 – fatal attraction

Ontario’s very own “fatal attraction”. A frightening example of the kind of crazy people one can meet on internet dating sites… I recommend you read the case for yourselves.

 

 

 

 

“Sharon’s Case Law Review” #2

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

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…
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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.
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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.
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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.
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OCCUPIERS’ LIABILITY

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.
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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.
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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.”
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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.
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INSURANCE

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.
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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.
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OTHER

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.

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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…
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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.

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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.

 

 

 

“Sharon’s Case Law Review” #1

334C0154c (1000x1500)To my clients:

I like to send out a brief summary of recent case law every month or two (or as time permits). It is not a high-level analysis, just my personal take on cases – mainly BI – that I think are relevant, or sometimes simply entertaining. Below is the first one I’ve done since joining Blouin Dunn.
I hope you find it informative and useful. Please feel free to forward it on. If someone wants to be added to my mailing list, just e-mail me at sshore@blouindunn.com (with this new anti-spam legislation, I can only send this to those who want it). And if I’ve missed anyone, I apologize in advance.

I hope you enjoy reading “Sharon’s Case Law Review”.

Sharon Shore
Blouin Dunn LLP

OCCUPIERS’ LIABILITY

Souliere v. Casino Niagara, 2014 ONSC 1915 (CanLII), http://canlii.ca/t/g6bpm

This was a slip and fall in a self-serve restaurant located inside Casino Niagara. Damages had been agreed on (the amounts are not mentioned in this decision), so this was a trial on liability only. A cashier testified that she saw a customer drip something onto the floor and that the plaintiff came along and fell about three seconds after. The judge found that the restaurant had a reasonable system in place, and that even if there had been non-slip mats, they would not have covered the area where the plaintiff slipped. The action against Casino Niagara was dismissed.

Sharon’s comments: Occupiers’ liability cases depend on the specific circumstances of a case and who the judge is, which is why the outcome of such trials is always unpredictable. At least this time, common sense triumphed.

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Pammett v. Ashcroft, 2014 ONSC 2447 (CanLII), http://canlii.ca/t/g6mg3

This was a slip and fall on snow and ice outside a Tim Horton’s. The plaintiff originally sued only the Tim Horton’s franchisee, a tenant of a strip mall, and only added the landlord and the snow removal contractor as defendants after the expiry of the limitation period. The two added defendants brought a summary judgment motion.

The evidence showed that the plaintiff, through her lawyer, knew about the contractor and the landlord; in fact, the franchisee had commenced third party actions against the contractor and landlord when it defended the main action. Also, the information about snow removal was contained in the lease and the plaintiff had a copy of it.

The Master agreed that dismissing the plaintiff’s action against the landlord and the contractor would be an injustice to the plaintiff, but said that nonetheless, the existence of these parties had been discoverable within the limitation period. The action against the landlord and the snow removal contractor was dismissed.

Sharon’s comments: A personal injury lawyer who does not turn his/her mind to the likelihood that a strip plaza would retain a snow removal contractor, and who does not do a title search to see who owned the property where his/her client fell, is a lawyer who should be looking for another line of work.
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Wiseman v. Carleton Place Oil Inc., et al, 2014 ONSC 1987 (CanLII), http://canlii.ca/t/g6bqm

Another case where the occupier and the snow removal contractor brought a summary judgment motion on a slip and fall outside of a Tim Horton’s, but this time on liability. The judge was none too pleased about it, commenting that this was a simplified procedure matter that ought to have been resolved in a one-day trial, and that this motion took a half day to argue and involved hundreds of pages of materials.

Having expressed that view, the judge then dismissed the occupier’s motion, ruling that it was an issue for trial as to whether the occupier had ensured that its pedestrian access was designed safely. He also said that the defendants, in pursuing this motion, had incurred unnecessary expense which was unfair to the plaintiff. However, the judge did throw a bone: he found that the snow removal contractor had met all of its contractual obligations and dismissed the action as against it.

Sharon’s comments: Notwithstanding Hyrniak, my view is that occupiers should consider summary judgment motions only after very careful consideration, and only where their case is virtually airtight. As each such case is decided based on the specific circumstances, a plaintiff can almost always raise issues that muddy the waters. On the other hand, this case shows that if one is a contractor that has met all of its contractual obligations, a summary judgment motion might be a very appropriate strategy for an Occupiers’ Liability claim. This is something for insurers to consider where there are co-defendant occupiers who refuse to let a non-negligent contractor out of the action.

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Saisho v. Loblaw Companies Ltd, 2014 ONSC 1949 (CanLII), http://canlii.ca/t/g6bqh

An elderly man was shopping in the grocery store, when he was struck by a shopper pushing an overloaded shopping cart (i.e., stacked higher than eye level). He went flying, hit his head, and ultimately became quadriplegic before dying a couple of years later. The plaintiff’s estate and the widow sued the other shopper and Loblaw. The basis for the claim against Loblaw was that it had not meet its responsibility under the Occupiers’ Liability Act to ensure its customers’ safety, in that it should have prevented the customer from overloading the shopping cart. One might think that was a bit of a stretch, but the negligent shopper had no assets and Loblaw was the only pocket around. As long as the plaintiffs could get at least 1% liability on Loblaw, Loblaw would be jointly and severally responsible for 100% of the damages.

Luckily for Loblaw, the plaintiff’s action against it was dismissed. Damages would have been significant, assessed by the judge as follows: OHIP subro $262K (which I know for a fact was negotiated down from a much higher figure), general damages of $160K, $55K for the FLA claim, and $63K for pecuniary damages.

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MOTOR VEHICLE ACCIDENTS

O’Connell v. The Personal Insurance Company, 2014 ONSC 1469 (CanLII), http://canlii.ca/t/g68s8

The defendant had loaned his car to his girlfriend, whom he believed had a valid driver’s license. She was in an accident, and it was discovered that she only had a G1 license. The Personal denied coverage on the basis that its insured had breached a statutory condition of the OAP1. The insured then brought a motion that his insurer owed him both a defence and indemnification.

The judge found that the insurer did indeed owe its insured a defence and indemnification, and that there was no evidence that he had breached a statutory condition. The judge said: “In this case the applicant insured and the driver were boyfriend and girlfriend and had been for some five months. That, in my view, is a relationship of trust. The applicant knew Ms. Smith had a license because he had seen her use that license as a means of official identification, and it looked no different than his own license. He had also been in a car when she was the driver, and had heard anecdotes involving driving. Very significantly she never informed him at any time pre-accident, including the day she borrowed the car, that her license had limitations. There is no evidence he had any basis to suspect that she would withhold that crucial information from him, and it would be reasonable for him, in their circumstances, to assume she would not do that.”

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Economical Insurance v. Nationwide Mutual Insurance, 2014 ONSC 2080 (CanLII), http://canlii.ca/t/g6g0s

An interesting fight between insurers. Ms. Fink caused an accident which injured Ms. Williams. Even though she was insured, Fink told the police she was uninsured, and was charged. Williams correctly sued her own insurer, Economical (ACTION #1). Economical paid Williams $186K and got a default judgment against Fink.

Williams’ passenger brought a separate action against Williams and Fink (ACTION #2). Economical, in the course of defending Williams in Action #2, learned that Fink in fact did have insurance. However, as these were two separate claims with two separate adjusters, the adjuster in Action #1 was unaware that Fink had insurance which could satisfy the default judgment it had against her. The adjuster in Action #1 learned of this coincidentally, when a team leader who had been the adjuster on Action #1 read the file on Action #2.

When Economical tried to collect its judgment from Fink’s insurer, Nationwide, Nationwide refused to pay, and Economical brought an action against it. Nationwide argued that Economical did not exercise due diligence, and it had actual knowledge of the existence of insurance several years earlier when it was defending Williams in the passenger’s action.

The judge said that Economical had been reasonably diligent, and granted judgment to it. No reasonable insurer would expect a driver in an accident to deny the existence of valid insurance. Secondly, since claims are handled separately, knowledge of insurance in one action did not translate to knowledge in a separate action.

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COVERAGE

Rochon v. Rochon, 2014 ONSC 2337 (CanLII), http://canlii.ca/t/g6k8r

The son was tinkering with his car and through his negligence, started a fire that destroyed his parent’s home. The parents’ property insurer, Grenville, brought a subrogated action against the son’s auto insurer, Economical, for $148K. Grenville argued that the fire was caused by an “at-fault” party through the use and operation of a vehicle, and the auto policy should respond. Economical argued that the son was an unnamed insured on Grenville’s policy, and that an insurer cannot subrogate as against its own insured. The judge agreed with Economical and dismissed the action, without determining whether the fire arose out of the use and operation of a vehicle.

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Kinkade v. 947014 Ontario Inc. c.o.b. as The Silver Dollar, 2014 ONSC 1599 (CanLII), http://canlii.ca/t/g67tr

The plaintiff was shot by a bar employee. The bar’s CGL insurer, Omega, denied coverage to the bar as the policy excluded claims arising out of the use of a gun. The bar brought a Rule 21 motion as to whether the insurer had a duty to defend it, and it also wanted to be able to retain and instruct counsel of its choice. The bar argued that a) the majority of the allegations did not relate to the use of the gun, but to the bar’s duty as occupier (i.e., training, supervising employees, failing to warn, failing to ensure safe premises, etc.), and b) its employee was off duty and it did not know he even had a gun.

The judge ruled that the exclusion clause was ambiguous, in that it did not specify who had to own or use the gun and how coverage was to be limited. Further, it was unclear whether concurrent causes of action were excluded. The judge granted the bar’s motion and ruled that the insurer owed a defence to the bar. However, given the potential conflict and the fact that the insurer might not owe the bar indemnification, the insurer was required to appoint and pay for the bar’s separate counsel.

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MISCELLANEOUS 

Downing v. Reynolds, 2014 ONSC 2520 (CanLII), http://canlii.ca/t/g6lxf

Although this was an MVA case, this decision relates to a problem with an infant settlement. The plaintiff settled her claim in 2010, including an FLA claim by her minor daughter, for $700K all inclusive. The pre-trial judge had apparently felt that $25K was an appropriate amount to be set aside for the daughter, but this was never formalized or put into the release. The plaintiff’s then-lawyer – who is not identified – told defence counsel to send him the settlement funds, and said that he would hold the funds in trust until he got approval for the minor settlement. The defendant sent the money, and plaintiff’s counsel paid it out to his client except for $25K. He then never brought an application for judicial approval.

The plaintiff brought a motion to a) set aside the original settlement, on the basis that her daughter suffered catastrophic impairments (the daughter was an FLA claimant, and the alleged catastrophic impairment was from the “shock” of arriving on the scene and seeing her mother put into an ambulance), and b) to sever the daughter’s case. The defendant argued that the $700K settlement should be approved and that if the $25K kept aside for the daughter was not deemed sufficient, that any additional amount be reallocated from the $700K, or alternatively, that the entire settlement be put aside and the funds returned to the defendant.

The judge found that the funds could not be returned to the defendant as they had been paid to former counsel, who was not a party to the proceedings (although it looks like the defendant brought a separate action against former plaintiff counsel). The entire settlement was set aside – but the judge declined to sever the infant settlement. As the plaintiff was largely successful, she was awarded costs.

Sharon’s comments: This seems like a case of unjust enrichment to me. The plaintiff already got her money, and now she has another kick at the can. The defendant won’t get its $700K back except by litigating against the first lawyer, meaning it will be fighting an insurer and will be lucky to get 70 cents on the dollar – plus it will incur legal fees in the process. It may well have to pay something for the daughter’s FLA claim, and possibly something more to the plaintiff. This is a win-win for the plaintiff, lose-lose for the defendant – and all because of $25K and a sloppy plaintiff’s lawyer.

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Foniciello v. Bendall, 2014 ONSC 2204 (CanLII), http://canlii.ca/t/g6g9f

The plaintiff in this MVA case alleged a severe brain injury, and wanted the jury struck on the basis that this was too complex for a jury. The essence of the argument seems to be that the plaintiff presented so well due to the nature of his injury that the jury might not understand how severe it actually was. The defendants argued that juries routinely hear brain injury cases, and asked that if the court was considering striking the jury, that the judge take a “wait-and-see” approach before doing anything, or bifurcate the trial and let the jury decide on liability. The judge accepted the plaintiff’s arguments, but allowed bifurcation.

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Cannon v. Funds for Canada Foundation, 2014 ONSC 2259 (CanLII), http://canlii.ca/t/g6lxh

Sharon’s comments: No details necessary, only the first 3 sentences are relevant. This is what I call a succinct decision:

[1] Four class members, who opted out of a class proceeding more than a year ago, want to opt back in. While they were watching from the sidelines, class counsel achieved a multi-million dollar settlement with some of the defendants and stayed the third party claim. The four moving parties now ask that the court let them back into the class action.

[2] Opting out does not mean “wait and see.”

[3] The motion to opt back in is dismissed with costs.