Patrick Brown recently presented at The Oatley McLeish Lecture Series: Guide to Motor Vehicle Litigation and presented on the Top Tort Cases of the Year. AdvocateDaily sat down with Patrick and discussed the important decisions over the last 12 months, one being the disclosure of Facebook profiles. To read more of this article visit AdvocateDaily.com by clicking here.
On November 26, 2010 our client, Mr. Marcus, suffered serious personal injuries when he fell on a TTC bus at the age of 89. Mr. Marcus applied for and received statutory accident benefits from TTC Insurance, including an attendant care benefit. He also sought a determination of catastrophic impairment (“CAT”). Read more of this article »
Prior to Jan. 1, 2010, the power to bifurcate a civil trial was not conferred by any statute or found under the Rules of Civil Procedure, but was based on the court’s inherent jurisdiction to control its own process, writes Shaw. The amendment then came into force, changing the rules so they included a specific provision for separate hearings, which reads: “With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.” Read more of this article »
In this recent decision, Mr. Justice McCartney considered whether the amendment of a Statement of Claim in an FLA action to include damages for PTSD (known generally as nervous shock). The defendants opposed the amendment, arguing that the limitation period had expired since the claim for PTSD was a new cause of action in personal injury, rather than an FLA claim.
Settlement privilege is a long-standing concept that wraps a protective veil around the efforts that litigants make to settle their disputes. It does so by ensuring that communications made to negotiate a settlement are confidential and inadmissible at trial. With these assurances, parties can negotiate freely without worrying that the negotiations will later come back to haunt them. Read more of this article »
When is a treating Doctor an Expert under Rule 53.03? And what constitutes expert opinion?
In Westerhof v. Gee, the Divisional Court considered the requirements which apply to treating health care providers who are asked to give expert evidence in Court on behalf of a patient. The Court also considered what evidence treating health professionals can provide as fact witnesses, and at what point this evidence crosses over into the territory of expert evidence.
Previous lower court decisions, such as McNeill v. Filthaut, Kuznierz v. The Economical Mutual Insurance Company, and Slaght v. Philips), had focussed on the relationship of the health professional with the client to determine whether the health professional was required to comply strictly with Rule 53.03 of the Rules of Civil Procedure.
Rule 53.03 requires experts to prepare a report detailing their experience, area of expertise and outlining their opinion. In addition, Rule 53.03 also requires an expert to sign an Acknowledgment of Expert’s Duty which includes the following paragraph: “I have been engaged on behalf of the plaintiff to provide evidence in the above-noted court proceeding.” Also, an expert must be qualified as to his expertise before he will be permitted to give expert evidence. In the absence of any of these requirements, the expert is not permitted to give expert evidence at trial.
The decisions before the Divisional Court’s decision in Westerhof v. Gee suggested that treating health care professionals were not required to adhere strictly to the requirements of Rule 53.03, whereas experts hired for the purpose of the litigation, or “hired gun” experts were required to meet all conditions of Rule 53.03 in order to be permitted to testify.
In contrast to the earlier decisions Westerhof says that it is the nature of the evidence the expert intends to provide that determines the applicability of Rule 53.03, rather than the expert’s relationship to the Plaintiff.
Justice Thomas Lederer, writing for the Divisional Court concluded: Read more of this article »
The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
Double Deductibles: Martin v. Fleming
Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming 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.
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 firstname.lastname@example.org.
 Martin v. Fleming, 2012 ONCA 750.
Unreasonable Finding by Jury re Negligence: El Dali v. Panjalingam
In El Dali v. Panjalingam, 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, 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.
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. 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 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.