Posted by Rikin Morzaria on May 10, 2013 under Case Law
Double Deductibles: Martin v. Fleming
Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming[1] that where a plaintiff has been involved in two accident and the actions are tried together to facilitate global assessment of damages, plaintiff is subject to one deductible for each claim. The Court adopted the following reasons of the motion judge:
In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
The court considered and rejected the “Charter values” approach to interpretation of legislation advanced by the Ontario Trial Lawyers Association on the basis that such an approach could only be adopted where the legislation was ambiguous. In this case, language was clear and free of ambiguity.
Conclusion
The cases reviewed in this paper are disparate and reflect the broad range of decisions handed down in the past year. As such, it is not possible to isolate trends or draw any larger lessons from the cases. They do, however, provide valuable guidance on topics that are frequently the subject of dispute.
To read the previous post click here.
About Rikin Morzaria, Partner, McLeish Orlando LLP
Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.
Rikin Morzaria devotes his practice to representing individuals who have suffered serious or catastrophic personal injuries and families who have lost a loved one in wrongful death cases.
Rikin has written and published more than twenty journal articles and chapters in leading textbooks in the field of civil litigation and personal injury law. He is regularly invited to give lectures to other lawyers and to health professionals about litigation and personal injury law.
Rikin was co-counsel at trial in McNeil v. Bryan, and achieved an $18.4 million judgment, the largest personal injury damages award in Canadian history. He has also represented clients in several precedent-setting cases, including a decision that prevented an insurer from obtaining defence medical examinations that would have delayed a trial of a multi-million dollar action.
Rikin is a member of The Law Society of Upper Canada, Ontario Trial Lawyers’ Association, Canadian Bar Association, Ontario Bar Association, and is currently a Director and the Secretary of the Board of Canadian Lawyers for International Human Rights (CLAIHR).
When not working Rikin enjoys cycling and spending time with his wife and son.
If you have any questions send an email to Rikin at rmorzaria@mcleishorlando.com.
[1] Martin v. Fleming, 2012 ONCA 750.
Posted by Rikin Morzaria on May 9, 2013 under Case Law
Unreasonable Finding by Jury re Negligence: El Dali v. Panjalingam
In El Dali v. Panjalingam,[1] the defendant lost control of his car on an icy road, crossed the centre line, and struck the plaintiff, El Dali’s, stopped car. Following a four-week trial, the jury answered “No” to the following question:
Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?
The plaintiff appealed, arguing that the jury’s verdict on liability was unreasonable and unsupported by evidence. The plaintiff pointed out that the defendant Panjalingam had led no evidence about why he lost control of his vehicle.
The Court of Appeal allowed the appeal, set aside the jury’s verdict on liability and ordered a new trial on liability alone. It noted that the defendant had provided no explanation for Panjalingam’s driving or why he had crossed the centre line and struck El Dali’s stopped car. There was no evidence about his speed or any steps he may have taken to avoid the accident. The Court, citing Gauthier & Co. v. The King,[2] noted that poor driving conditions alone did not permit the jury to infer that the accident was unavoidable and not caused by driver’s negligence. Moreover, the fact that the plaintiff was able to maintain control over his own car was some evidence that the road conditions did not point to an unavoidable accident. Finally, and perhaps most importantly for counsel, the Court found that he defence lawyer’s suggestion in closing argument that the defendant be found to be only 50 per cent at fault, while not binding, strongly suggested that the jury’s verdict was unreasonable.
The implication of the Court’s reference to the defence lawyer’s position in closing argument may be that defence lawyers will be more reticent to take softer positions at trial for fear that they will be held to those positions by appellate courts.
Posted by Rikin Morzaria on May 8, 2013 under Case Law
Duty of Municipality to the “Ordinary” Driver: Fordham and Ferguson
Last year, I reviewed the decision of the Ontario Court of Appeal in Morsi v. Fermar Paving Limited.[1] Morsi provided a reminder that in municipal road authority cases, it is not enough to establish negligence on the part of the road authority; a plaintiff must also establish that the negligence presents a risk to a driver exercising ordinary care. In Morsi, the plaintiff drove recklessly at over twice the speed limit along the disputed stretch of road before losing control of his car. The experts called at trial were in agreement that had Mr. Morsi operated his vehicle at or modestly above the posted speed limit, he would have been able to successfully negotiate the section of the road where he lost control. Based on this finding, the Court of Appeal held that Mr. Morsi’s reckless conduct absolved the defendants of liability.
Two decisions of significance have been released following Morsi, which provide some guidance as to how trial judges will apply the causation analysis dictated by the Court of Appeal in Morsi.
Fordham v. Dutton-Dunwich
Fordham v. Dutton Dunwich[2] arose from a single vehicle collision. The plaintiff, Andrew Fordham, was 16 years old and held a G2 driver’s licence. He ran a stop sign on a rural, gravel road at an intersection where yield signs had recently been replaced by 4-way stop signs. The intersection involved a sharp 8.9 metre offset that a driver would need to prepare for 2.5 to 3 seconds ahead of time. Because Mr. Fordham did not stop at the intersection, he lost control of his vehicle while attempting to manoeuver through it. He had a blood alcohol concentration of between 29.6 and 53.6 mg/100 mL at the time of the collision and later pleaded guilty to failing to stop at a stop sign. Mr. Fordham sued the municipality for failing to warn of the change in road alignment, based on the requirement in the Ontario Traffic Manual that a checkerboard sign be in place if the intersection is considered an offset. The defendant argued that, (1) the intersection was not an offset and (2) even if it was, it did not pose an unreasonable risk of harm to an ordinary motorist approaching the intersection because of the stop signs; there was no dispute that, had Mr. Fordham stopped at the stop sign, he would have been able to manoeuver safely through the intersection.
Evidence was presented that indicated that it was normal practice for rural drivers to proceed through intersections without stopping when they could see clearly that there was no traffic coming. The defendant relied heavily on Morsi and argued that Mr. Fordham’s driving was “reckless.” Madam Justice Morissette disagreed. In doing so, she cited the following factors:
- He was not driving at an excessive speed
- He had never driven on the road before and had no warning that the alignment of the road was about to change.
- He had a visible stop sign but likely saw that there was no oncoming traffic and drove through, not suspecting a change in the alignment of the road.
- Ordinary rural drivers do not always stop at stop signs.
Justice Morissette also pointed to the following facts regarding the defendant’s conduct and the state of the intersection:
- The actions of rural drivers who regularly failed to observe regulatory signs was a significant enough issue that it caused numerous complaints to Council and prompted it to replace all yield signs with stop signs.
- The defendant knew that ordinary rural drivers do not always stop at stop signs.
- Proper checkerboard signage was inexpensive at $800
- The defendant’s practice at other similar intersections was to place checkerboard signs in conjunction with stop signs. This was to protect people from going through the stop sign.
- The hidden and unknown change in road alignment was obscured from view and constituted a “hidden hazard.”
Justice Morissette concluded that the circumstances of the intersection required more than a simple stop sign to give ordinary rural motorists reasonable notice of a potentially catastrophic hazard ahead. She accepted the plaintiff’s submission that it was reasonable to infer that Mr. Fordham would have reduced his speed if he had been informed of the change in alignment at the intersection. She apportioned liability 50/50 between the plaintiff and the defendant.
Ferguson v. Brant (County)
On April 2, 2005, 17 year-old Jesse Ferguson was driving westbound on Scenic Drive in Brant County. There was snow and slush on the road. At some point, Scenic Drive curved sharply to Mr. Ferguson’s right. He failed to navigate that curve. The road did not have a “sharp curve” sign which was called for by the Ontario Traffic Manual. Experts for the plaintiff and the defendant disagreed on whether the existing signs warning of a “winding road” and a “y intersection” were sufficient.
Mr. Justice Kent reviewed the applicable authorities, including Morsi and concluded that a municipality owes a duty to keep the roadway in a reasonable standard of repair so that users exercising ordinary care may travel on it safely. The municipality does not owe such a duty to a negligent driver. He quoted the following applicable provision from the Ontario Traffic Manual:
In situations where a speed reduction is required to negotiate a curve, it is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.
He held that the signage on the relevant stretch of Scenic Drive was insufficient for the following reasons:
- It allows drivers to conclude that Scenic Drive and its curves could be safely negotiated the posted speed limit of 60 km/h;
- they allow drivers to conclude that the accident curve with something less severe than a sharp curve; and
- it prevented drivers from knowing that a safe speed to navigate the accident was 20 km/h less than the posted speed limit.
Based on the evidence of a forensic engineer and the police officers, Justice Kent concluded that Mr. Ferguson was driving at or slightly above the posted speed limit of 60 km/h. Given the road conditions, and in particular the fact that the roads were snow-covered, it was incumbent on Mr. Ferguson to drive at a lower speed. Justice Kent found that Mr. Ferguson was contributorily negligent. He fixed the defendant’s liability at 55% and the plaintiff’s degree of contributory negligence at 45%.
Both Fordham and Ferguson suggest that trial judges will not expect a driver to strictly comply with the rules of the road in order to find that the driver was exercising ordinary care. Instead, if plaintiffs can show that they were driving in a manner consistent with the driving habits of other motorists along the same stretch of road, they will be entitled to recover damages if the municipality in question has not met the requisite standard of care. Indeed, in both cases the plaintiffs were negligent in their operation of their vehicles, but the trial judges nonetheless found that the degree of negligence was in keeping with what one would expect of a driver exercising ordinary care.
[1] 2011 ONCA 577 (“Morsi”)
[2] 2012 CarswellOnt 150242 (S.C.J.)
Posted by Rikin Morzaria on May 7, 2013 under Case Law
OPCF 44R Limitation Period: Roque and Schmitz
Roque v. Pilot Insurance Company
In May of 2012, the Ontario Court of Appeal released its decision in Roque v. Pilot Insurance Company.[1] In Roque, the Court held that a plaintiff’s limitation period against an underinsured insurer pursuant to an OPCF 44R endorsement begins to run when the plaintiff has enough evidence to give him a “reasonable chance” of persuading a judge that his claims would exceed the minimum limits $200,000. The Court’s decision was a departure from some previous cases[2] that held that the limitation period only begins to run from the time when the plaintiff knows that the available insurance coverage under a defendant’s policy is less than that available under his or her own policy.
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Posted by McLeish Orlando on March 26, 2013 under Accident Benefits, Automobile Insurance, Case Law, Insurance Companies
Mr. Smith suffered serious injuries in a single vehicle collision involving a rental car owned by Enterprise Rent-A-Car. Mr. Smith was a passenger in the car and the driver of Mr. Smith’s vehicle held her own insurance policy with liability limits of $1 million. Enterprise brought a summary judgment seeking to be released from the action, because Enterprise could not be liable for any amount over $1 million.
McLeish Orlando’s associate lawyer, Josh Nisker, successfully defended the motion on behalf of Mr. Smith.
On October 16, 2012, Justice McCarthy of the Ontario Superior Court of Justice ruled that Enterprise was required to remain a party to the action. Justice McCarthy agreed with the plaintiff’s position that the 2006 amendments did not modify the applicable principles of vicarious liability or joint and several liability. Specifically, his honour made the following findings:
- Legal liability for the accident and legal liability to pay the claim are “distinct considerations.”
- Section 267.12 of the Insurance Act clearly contemplates the “continuing legal exposure” of a lessor for vicarious liability.
- The plaintiff clearly had a right of action in vicarious liability against Enterprise and that right of action was not displaced by the operation of section 267.12.
- The provisions of the Insurance Act did not prevent the plaintiff from maintaining an action against Enterprise.
The Smith decision is significant in that it establishes that rental companies must remain parties to an action despite the availability of other insurance. This is especially important to plaintiffs as there will still be an owner’s insurance policy available if the driver’s insurer denies coverage during the litigation. This ensures that the plaintiff will not be left without an insurance company to satisfy a judgment.
The full text of the decision may be found online at CanLii Smith v. Smith, 2012 ONSC 5872 (CanLII).
Posted by Rikin Morzaria on November 9, 2012 under Automobile Insurance, Case Law
The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.
Posted by Rikin Morzaria on November 8, 2012 under Case Law
Deanna Zurek suffered soft tissue injuries in a rear-end collision. After a trial, a jury awarded her non-pecuniary general damages, damages for past loss of income, and damages for future care costs. However, it awarded her no damages for future loss of income. Ms. Zurek appealed, citing the trial judge’s erroneous charge to the jury as the reason for the jury’s failure to award damages for future income loss.
The Court of Appeal released its decision in Zurek v. Ferris on November 5, 2010. The Court agreed with Ms. Zurek that many of the trial judge’s comments to the jury were unnecessary and “not germane to the issues the jury had to decide.” It characterized the charge as “unorthodox.” Despite these comments, the Court held that the charge as a whole was fair. It cited the following examples of the trial judge’s attempts to have the jury resolve the issues using relevant evidence:
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Posted by Patrick Brown on October 17, 2012 under Case Law, Cycling, News, Safety
The Supreme Court of Canada has held that motorists ought to be held liable for injuries when they fail to slow down and drive carefully in areas where there is a possibility there may be children, including playgrounds, schools and built up residential areas.
In the case, Anapolis County District School Board v. Marshall, a 4 years old suffered “catastrophic” injuries when struck by a school bus. The Supreme Court upheld the trial judges direction to the jury that recited the law, as it applied to children, is as follows:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.
The ruling is consistent with the recent Ontario Coroners’ Review on Pedestrian Deaths that calls for reduced speed limits in areas with children. Simply going the speed limit may not be enough. The actions of a child are clearly different than adults. When drivers are entering areas where there is a possibility of children running out, they ought to slow down and keep a keen eye out. The ruling adds to a long list of authorities that require extra care must be taken when children are involved.
Tags: bike crash, bike lanes, bike safety, Children Safety, children struck by cars, hit by car, Playgrounds, School areas, Speed limits, struck by car, Supreme Court, toronto biking, toronto cycling
Posted by Rikin Morzaria on September 27, 2012 under Accident Benefits, Case Law
The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
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Posted by Rikin Morzaria on July 27, 2012 under Case Law
When a party to a lawsuit refreshes her memory with a privileged statement before examination for discovery, is the privileged waived? In other words, does she now have to produce a copy of the statement to the other side? That was the question that confronted Justice Peter Hockin in Knox v. Applebaum Holdings.
In the Knox case, the property manager at Applebaum Holdings prepared a statement for her insurance company for potential litigation after the plaintiff was injured in the Applebaum parking lot. Before her examination for discovery, the property manager reviewed the statement to refresh her memory. The plaintiff brought a motion to compel the property manager to produce the statement. The plaintiff argued that the property manager may have given evidence that was not a true memory, but rather an account based solely on the statement. Justice Hockin noted that previous cases had held that refreshing one’s memory to prepare for examination for discovery does not amount to a waiver of privilege. In addition, previous cases established that so long as the witness can provide the relevant information, the other party has access to the information and the production of the statement is unnecessary. Justice Hockin agreed with the reasoning of those cases and held that the property manager had not waived privilege. Therefore, the statement was not producible.
Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.
