Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.
A weekly update of cases pertaining to the practice of insurance defence.
February 10, 2010
February 4, 2010
Calculation of Housekeeping Losses
McIntyre v. Docherty [2009], 97 O.R. (3d) 189 (C.A.)
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
February 2, 2010
New Summary Judgment Rule Results in Dismissal of Claim
Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
January 27, 2010
Painful Symptoms Alone Insufficient to Claim Non-earner Benefits
Mangallon v. T.T.C. Insurance Company Ltd., FSCO A07-001813, December 18, 2009
A FSCO decision recently confirmed the stringent test for entitlement to non-earner benefits.
Ms. Mangallon was injured on October 27, 2005 when the rear doors of a T.T.C. bus suddenly closed on her as she attempted to board. She applied for a non-earner benefit, which T.T.C. refused to pay. T.T.C. argued that the incident was a minor one and did not result in an impairment that affected the claimant’s ability to function to a degree that would qualify her for a non-earner benefit. T.T.C. took the position that Ms. Mangallon’s post-accident headaches, dizziness, whole body pain and depression pre-dated the accident and were due to long standing and serious heart disease, diabetes and depression, which were not related to the accident.
The arbitrator agreed with T.T.C. Arbitrator Sapin held that the test for entitlement to a non-earner benefit is stringent. An impairment sustained in the accident must be one that continuously prevents the insured from engaging in substantially all of the activities in which she engaged before the accident. Arbitrator Sapin quoted from the Ontario Court of Appeal decision in Heath v. Economical stating that where pain is the primary factor, “the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.” Arbitrator Sapin further held that accident related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient to qualify a person for a non-earner benefit. This is the case even though such pain might entitle the person to damages for pain and suffering in a tort action. Arbitrator Sapin was not convinced that Ms. Mangallon met the test for non-earner benefits.
By confirming the stringent test for entitlement for non-earner benefits, this decision may serve to limit the number of claims for non-earner benefits, especially in cases where the claimant has substantial pre-accident history and causation of his or her post-accident symptoms is doubtful.
A FSCO decision recently confirmed the stringent test for entitlement to non-earner benefits.
Ms. Mangallon was injured on October 27, 2005 when the rear doors of a T.T.C. bus suddenly closed on her as she attempted to board. She applied for a non-earner benefit, which T.T.C. refused to pay. T.T.C. argued that the incident was a minor one and did not result in an impairment that affected the claimant’s ability to function to a degree that would qualify her for a non-earner benefit. T.T.C. took the position that Ms. Mangallon’s post-accident headaches, dizziness, whole body pain and depression pre-dated the accident and were due to long standing and serious heart disease, diabetes and depression, which were not related to the accident.
The arbitrator agreed with T.T.C. Arbitrator Sapin held that the test for entitlement to a non-earner benefit is stringent. An impairment sustained in the accident must be one that continuously prevents the insured from engaging in substantially all of the activities in which she engaged before the accident. Arbitrator Sapin quoted from the Ontario Court of Appeal decision in Heath v. Economical stating that where pain is the primary factor, “the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.” Arbitrator Sapin further held that accident related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient to qualify a person for a non-earner benefit. This is the case even though such pain might entitle the person to damages for pain and suffering in a tort action. Arbitrator Sapin was not convinced that Ms. Mangallon met the test for non-earner benefits.
By confirming the stringent test for entitlement for non-earner benefits, this decision may serve to limit the number of claims for non-earner benefits, especially in cases where the claimant has substantial pre-accident history and causation of his or her post-accident symptoms is doubtful.
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