Enter your email address for updates:

August 23, 2011

Gross Negligence Standard for Municipal Sidewalks

In Richer v. Elliot Lake [2001] ONSC the plaintiff slipped and fell on ice on a sidewalk. In accordance with s. 44(9) of the Municipal Act, the standard of care is lowered from ordinary negligence to gross negligence.

Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.

In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.

Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.

The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.

August 17, 2011

Supreme Court comments on motions to strike

The Supreme Court recently commented on motions to strike on the basis there is no reasonable cause of action. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Imperial Tobacco is a defendant in two cases in British Columbia: one where the government seeks to recover the cost of medical treatment provided to smokers, and the second a class action pertaining to class members who purchased “light” or “mild” cigarettes. Imperial Tobacco issued third party claims against the federal government, alleging negligent misrepresentation, negligent design and failure to warn. In addition, Imperial alleges Canada was a “manufacturer” or “supplier” of cigarettes.

The Supreme Court held that all of the third party claims failed to disclose a reasonable cause of action and struck them. The Court confirmed that the test remains whether the claim has no reasonable chance of success. The purpose of the test is described as follows:

[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.
[20] This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.
[21] Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

Imperial argued that the motion to strike should be dismissed on the basis that future evidence might reveal more evidence against the government. The Court rejected this argument; the focus is on the pleadings, not the evidence and a judge cannot consider what future evidence might or might not show.

In addition to a useful summary of the test on a motion to strike, the Court goes through the Anns duty of care analysis. The decision is a good synopsis of these important principles.

August 10, 2011

Discoverability - Identity of Vehicle Owner

After determining vehicle ownership, is counsel required to continue looking for contrary information?

Velasco v. North York Chevrolet Oldsmobile Ltd., [2011] ONCA 522 (C.A.), involves a car accident that occurred in 2005. The appellant’s vehicle was struck by two other vehicles. The ownership of the one vehicle (the “Denyer vehicle”) is the subject of this appeal.

The appellant issued a statement of claim in 2006. Counsel relied on a statement in the police report to determine that Denyer was the owner of the Denyer vehicle. This belief was confirmed later that year by way of the pleadings delivered by Denyer’s insurer stating that Denyer was the owner of the vehicle.

Early in 2007, counsel for the appellant received a 732 page Crown Brief that contained a license plate search which showed that Denyer was not in fact the owner of the vehicle. This search did not come to the attention of counsel until two years later when preparing for discoveries. At that time, a statement of claim was issued against the respondents on the basis of their ownership.

The respondents brought a motion to dismiss the claim against them on the basis that the limitation period had expired. The motion judge held that counsel for the appellant should not have closed their minds to the ownership issue and should have reviewed the Crown Brief promptly to settle that issue.

The Court of Appeal disagreed with the motion judge and held that counsel had acted with reasonable diligence in continuing to rely on the initial information they had received “until contrary information actually came to their attention”. The court did not find a duty on counsel to positively search for contradictory information after they were satisfied as to the ownership.

Thanks to our articling student, Kristen Dearlove, for this post.

August 3, 2011

Leave to call nine witnesses denied

The rules of evidence allow for three expert witnesses to be called at trial. The plaintiff in Leonard v. Kline ,[2011] ONSC 2730 (S.C.J.) sought leave to call nine expert witnesses at her upcoming jury trial. The list of proposed experts included a psychiatrist, psychologist, vocational expert, vocational rehabilitation consultant, accountant/actuary and others.

The issue at the plaintiff’s upcoming trial was her earning capacity. The plaintiff sought to have each expert witness give an opinion on whether she would be able to engage in gainful employment. The plaintiff’s argument was two-fold: 1) each expert approaches the issue from a different area of expertise; and 2) the jury should know what the “weight of expert” evidence is on the issue.

The defendant argued that this would be duplicitous [sic - duplicative]. The defendant only intended to call two expert witnesses.

Ellies J. did not agree with the plaintiff’s “weight of expert evidence” argument expressing his concern with trials becoming battles of the experts. He went on to consider the eight factors listed in Burgess (Litigation Guardian of) v. Wu , [2005] O.J. No. 929. His decision focused on factor seven – the degree to which there is duplication in the proposed opinions of different experts.

Upon determining that some of the proposed expert witnesses were duplicitous [sic - duplicative]. , Ellies J. proceeded to divide them into groups based on shared opinions, whether they prepared joint reports, and whether they used similar tests upon the plaintiff in which their opinion was based. The plaintiff was then given the option to choose one expert witness from each group.

This decision seems to be a good example of the court fulfilling its "gatekeeper" role with respect to experts.