Court of Appeal Releases Decision in Moore v. Getahun

The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts.  The Court of Appeal released its appeal of the decision January 29, 2015.  You can access the decision by clicking here.

The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice."  Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive.  There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.

Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced.  The foundational information used in formulating the opinion must still be produced.

This common sense decision will be welcomed by many on both the plaintiff and the defence side.

Changes to the Rules Regarding Appeals

A number of changes to the Rules of Civil Procedure came into effect on January 1, 2015.

One of the changes is with respect to obtaining leave to appeal an interlocutory Order of a judge.  The former rule 62.02 provided that a notice of motion for leave to appeal must be served within seven dates of the Order.  The new rule is a substantial change: r. 62.02(2) provides that the motion for leave to appeal shall be heard in writing.

The change may reduce costs in that it eliminates the need for an argued motion.  The test for such appeals remains the same: a conflicting decision and desirable that leave be granted, or good reason to doubt the correctness of the decision and an appeal involving matters of such importance that leave to appeal should be granted.  

Negligent drivers liable to rescuers for injuries that are reasonably foreseeable

A recent summary judgment motion dealt with the extent of the duty of care owed to rescuers.

In Maguire v Padt, 2014 ONSC 6099 (S.C.J.), the defendant, Suzanne Padt, was driving in whiteout conditions when she lost control of her car and rolled into a ditch. Several passing motorists pulled over to rescue Padt from her car. After placing Padt safely in a police cruiser, the rescuers were preparing to return to their vehicles when another passing car lost control and drove into them. Two of the rescuers were killed and a third was seriously injured.  They commenced an action against Padt.

Padt brought a motion for summary judgment, arguing that the duty of care that she owed to her rescuers concluded at the end of the rescue and that the rescue had concluded when she was removed from imminent peril and was safe in the police car.

In its decision, the court first reviewed and affirmed the established legal principle that negligent parties who cause themselves or others to be placed in danger owe a duty of care to the responding rescuers.

The court stated that the rationale underlying this duty was that injury to rescuers was a reasonably foreseeable consequence of the negligent conduct that led to their involvement. The court stated that the negligent party should be liable for any injury that was a reasonably foreseeable consequence of the negligent conduct – not just for injuries that occurred while the person being rescued was in peril. The court put it this way: “It is foreseeability, not the end of the peril, that sets the limits of the liability.”

Given the whiteout conditions on the road, the court found that the second accident was a reasonably foreseeable consequence of Padt’s negligent conduct. The court dismissed Padt’s motion and, under the assumption that Padt was negligent in causing the first accident (which was accepted for the purpose of the motion), granted partial summary judgment in favour of the plaintiffs.

Municipality Has No Duty to Negligent Drivers

The Court of Appeal recently held that there is no duty on the part of a municipality to keep its roads safe for those who drive negligently.  It also rejected an argument that there is a different standard for rural and urban drivers.

In Fordham v. Dutton-Dunwich, 2014 ONCA 891 (C.A.), the 16-year-old plaintiff was seriously injured when he came to a rural intersection, ignored a stop sign and drove through the intersection at 80 km/hr.  He lost control on a curve and crashed into a concrete bridge abutting the road.  The trial judge found the municipality 50% responsible for failing to post a checkboard sign warning of the change in the road's alignment.  She held that it was local practice for rural drivers to go through stop signs and the municipality should have known that ordinary rural drivers do not always stop at stop signs.

The Court of Appeal allowed the appeal and dismissed the action.  Laskin J.A. held that a municipality's duty of repair is limited to ensuring its roads can be driven safely by ordinary drivers exercising reasonable care.  In addition, there cannot be one standard of reasonable driving for rural drivers and another for city drivers.  There is one standard of reasonable driving and that standard requires drivers to obey traffic signs.

Fordham helps define a municipality's standard of care: although ordinary reasonable drivers are not perfect and may make mistakes, they are not negligent.