Two days ago I blogged on a comment left from an Indian lawyer to my blog of February 27, 2010.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
A weekly update of cases pertaining to the practice of insurance defence.
June 23, 2010
June 21, 2010
Benefit of the Doubt has to be given to the Victim
It is not often we get comments on our blog. It is even rarer when we get a comment from someone who is outside Ontario, much less Canada. So it was good to read the comment from Ms Sindhu Yadav of Choir de Law Pvt. Ltd, India (and who I presume to be a colleague lawyer), to my February 27, 2010, blog on the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
June 16, 2010
Rule 31.05.01 - Extending the Seven Hour Discovery Rule
Those of you interested in the interpretation of the new rule 31.05.01, which provides a seven hour total limit on discovery, may wish to review Osprey Capital Partners v. Gennium Pharma Inc., [2010] O.J. No. 1721 (S.C.J).
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
June 12, 2010
If a City is going to fix a sidewalk, it has to do a good job
The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
June 9, 2010
Misfeasance in Public Office
St. Elizabeth Home Society v. Hamilton (City), [2010] O.J. No.1515 (C.A.)
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
June 2, 2010
Facebook in Litigation
Is the pendulum swinging back away from the use of Facebook in litigation?
In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.
Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.
Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.
In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.
Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.
Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.
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