Jury Can Hear Cases Involving Waivers & Volenti

The Court of Appeal has confirmed that juries can hear cases involving waivers.

In Kempf v. Nguyen, 2015 ONCA 114 (C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride.  The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.

The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations.  She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury.  She also rejected the defendant's suggestion to take a "wait and see" approach.  She struck the jury and found in favour of the plaintiff.

The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law.  Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence.  Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge.  This is what juries do every day" (para. 59).

Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.

Intrusion Upon Seclusion

One of the more recent torts that has been developing is the tort of intrusion upon seclusion.  The Court of Appeal recently commented on this developing tort. 

In Hopkins v. Kay, 2015 ONCA 112 (C.A.), the plaintiffs brought a proposed class action alleging that their records as patients of the Peterborough Regional Health Centre were improperly accessed.

The hospital brought a r. 21 motion to dismiss the claim on the ground that the Personal Health Information Protection Act ("PHIPA") is an exhaustive code that ousts the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records.  The motions judge dismissed the motion and the hospital appealed.

The Court of Appeal held that PHIPA is not an exhaustive code, and the plaintiffs were not precluded from asserting a common law claim for intrusion upon seclusion.  There is no express intention in PHIPA to create an exhaustive code and it contemplates other proceedings.  The commissioner has no power to award damages so an individual must commence an action in the Superior Court to seek damages.  PHIPA is tailored to deal with systemic issues rather than individual complaints. 

The Court of Appeal dismissed the appeal.

The Importance of Credibility in Threshold Motions

When a defendant brings a threshold motion at the end of trial, the plaintiff bears the onus of proving his injuries meet substantially interfere with work or activities of daily living.  As a result, the plaintiff's credibility can be highly relevant.  One such example is Berfi v. Muthusamy, 2015 ONSC 981 (S.C.J.). 

The plaintiff brought an action as a result of a pedestrian-motor vehicle accident that occurred on October 28, 2010.  The jury found the defendant 80% at fault and the plaintiff 20%, and awarded $43,000 in general damages, $6,000 for past loss of income and nil for future loss of income.  The defendant brought a threshold motion.  The plaintiff alleged he sustained injuries to his left shoulder, arm and hand.  He continued to work full time, apart from a 17-day period following surgery.  He testified he did so in order to reach age 55 when he could retire and receive a union pension.  His anticipated retirement date was March 1, 2015.

After the plaintiff testified, counsel received the union file which included a Notice of Election form which indicated he planned on returning to work in April 2015.  A union representative testified the plaintiff contacted her the day before to withdraw the Notice of Election.

Stinson J. held the plaintiff had not met threshold.  There were a number of conflicts in the plaintiff's testimony, and he had continued to work in the same job for four years after the accident; Stinson J. described this factor as a "strong indication" the injuries had not substantially interfered with the plaintiff's ability to continue his regular employment.  In addition, the award of zero for future income loss was consistent with the jury finding the plaintiff was capable of working.  Finally, Stinson J. held that the limitations the plaintiff had with respect to household chores, and social and sporting activities were related to problems that pre-dated the accident.

The defendant's motion was granted.

Principles Relating to the Threshold

A helpful discussion of the principles relating to the Insurance Act threshold can be found in Malfara v. Vukojevic, 2015 ONSC 78 (S.C.J.).  The arose out of a 2006 motor vehicle accident.  A jury awarded $7,700 in general damages, $1,326 for past income loss and nil for future loss of income.  Justice Firestone heard a threshold motion while the jury was deliberating.  He held that the plaintiff had not met threshold.

Justice Firestone set out a number of principles with respect to threshold motions, including:

• the trial judge is not bound by the jury's verdict, but is a factor he or she can consider in determining the threshold motion;
• "permanent" does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;
• "serious" relates to the seriousness of the impairment to the person and not to the injury itself;
• the degree of the impairment must go beyond tolerable to be serious;
• it is the effect of the injury and not the type of injury that is the focus of the threshold inquiry.

The evidence was that the plaintiff was 24 years old at the time of the collision and was completing a plumbing apprenticeship.  He alleged he sustained chronic neck and back pain as a result of the accident.  He was off work for 2-3 weeks then returned to his apprenticeship, ultimately becoming a fully licenced plumber.  He currently performs all of his job duties but with pain.  He no longer participates in sporting activities, partly because of his injuries and partly because he is busy.  He continues to cut grass, shovel snow and help in the kitchen, although with pain.

Justice Firestone granted the defendant's motion, stating "I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages".  The evidence did not support that the injuries and impairments had a significant effect on the plaintiff's enjoyment of life, or that they substantially interfered with his capacity for work or pleasurable activities. The impairments were not serious.