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September 24, 2014

Owner of Vehicle Not Protected Under the Workplace Safety and Insurance Act

A recent Superior Court decision highlights the interplay of the Workplace Safety and Insurance Act with the Highway Traffic Act.

In Maria-Antony v. Selliah, 2014 ONSC 4264 (S.C.J.), the plaintiff was injured in a motor vehicle accident involving a tractor-trailer owned by FTI.  At the time of the accident both the plaintiff and the defendant driver (Selliah) were employed as transport truck drivers for 1362038 Ontario.  They had been contracted to carry cargo for 1323109 Ontario. 

A right to sue application was brought before the Workplace Safety and Insurance Appeals Tribunal.  The tribunal held that plaintiff's action against Selliah and the numbered companies was barred.  Since FTI was not an employer, the action against it as owner was not barred.

FTI brought a summary judgment motion to have the action against it dismissed, taking the position that the result of the Tribunal decision was to make any liability to the plaintiff several (not joint and several), thereby limiting liability to its own negligence.  There was no evidence of negligence by FTI; the claim was based on its status as owner of the vehicle.

O'Marra J. dismissed the motion.  Section 192 of the Highway Traffic Act which imposes vicarious liability on the owner of a vehicle for the actions of the driver, and so FTI remained liable for the acts of the driver.  Even though the action against Selliah was barred, FTI did not enjoy the statutory protection under the WSIA.

It seems that this decision allows plaintiffs to do indirectly what they cannot do directly: recover damages based on the negligence of a protected worker.

September 10, 2014

Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants.  In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities.  She complained of problems that limited the time she is able to spend using websites like Facebook.  The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55]         I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced.   The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party.  The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

September 3, 2014

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim.  This week, our focus is on a slip and fall action that was dismissed at trial.  Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant.  A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout.  There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care.  The liability analysis in occupier's liability cases is fact driven and varies from case to case.  It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed.  Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.