The City of London has successfully defended a slip and fall action that occurred following a winter storm. In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning. Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m. In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
Rabu, 24 April 2013
Kamis, 18 April 2013
The Agony of the Collision
A recent motion decision dealt with the standard of care in emergency situations.
In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn. An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident. Unfortunately, the other driver also swerved and they collided.
Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle. Justice Spence reviewed three formulations of the test for negligence in an emergency:
1. Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2. Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision. He is not negligent for failing to adopt the best course of action in the light of hindsight;
3. Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.
Justice Spence concluded:
[39] The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.
In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn. An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident. Unfortunately, the other driver also swerved and they collided.
Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle. Justice Spence reviewed three formulations of the test for negligence in an emergency:
1. Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2. Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision. He is not negligent for failing to adopt the best course of action in the light of hindsight;
3. Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.
Justice Spence concluded:
[39] The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.
Rabu, 03 April 2013
Causation and Insurance Broker Negligence
The Ontario Court of Appeal recently commented on one of the leading cases pertaining to insurance broker negligence, Fletcher v. Manitoba Public Insurance Company, [1990] 3 S.C.R. 191.
In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage.
The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation. There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.
In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage.
The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation. There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.
Rabu, 27 Maret 2013
Videotaping Examinations for Discovery
In what circumstances will a court permit examinations for discovery to be videotaped?
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
Rabu, 20 Maret 2013
Amendments to the Minimum Maintenance Standards - Part 6
This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.
Part 6: Sidewalks
The MMS were amended in February 2010 to require annual inspections of sidewalks for surface discontinuities and required treatment of surface discontinuities that exceeded two centimetres. The standard has been amended to expressly provide that a surface discontinuity is deemed to be in a state of repair if it is less than or equal to two centimetres. The standard also provides that sidewalks are deemed to be in a state of repair between annual inspections, provided that the municipality does not acquire actual knowledge of a surface discontinuity in excess of two centimetres. It will be interesting to see the extent to which the constructive knowledge provision is applied in sidewalk cases.
Rabu, 13 Maret 2013
Amendments to the Minimum Maintenance Standards - Part 5
This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.
Part 5: New Ice Formation and Icy Roadways Standard
The MMS previously required municipalities to treat icy roadways within a prescribed time after becoming aware that the road was icy. This remains the standard for roads that have become icy but is now part of a larger, more comprehensive standard for ice prevention and treatment.
The standard for prevention of ice formation requires municipalities to monitor the weather and patrol as described above. If, as a result of these activities, a municipality determines that there is a substantial probability of ice forming on a roadway, it must treat the road to prevent ice formation within a specified time, starting from the time it determines is appropriate to deploy resources for that purpose. Treating a road means applying material, including but not limited to salt, sand or a combination.
The ice prevention standard provides that roads are deemed to be in a state of repair until the time that the municipality becomes aware that the roadway is icy or the applicable time for ice prevention expires, whichever is earlier. This should be read in conjunction with the constructive knowledge provision. The icy roadways standard has also been amended to provide that roads are deemed to be in a state of repair until the applicable time for treatment expires.
As with the snow accumulation standard, the ice prevention standard is a response to the narrow interpretation of the icy roadways standard in Giuliani. The discretion afforded to municipalities to determine when to deploy resources to prevent ice formation may be subject to challenge in future claims. Nonetheless, compliance with the standard will assist in defending claims where it is alleged that a municipality failed to anticipate icy road conditions.
Rabu, 06 Maret 2013
Amendments to the Minimum Maintenance Standards - Part 4
This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.
Part 4: New Snow Accumulation Standard
The MMS previously required municipalities to clear snow within a prescribed number of hours after becoming aware of the fact that specified snow accumulation depths were reached. This part of the standard is essentially unchanged, though it now requires municipalities to “address” snow accumulation and “reduce the snow depth” rather than “clear” the snow.
However, there have been several additions to the standard. The most significant addition is a provision which states that if the depth of snow accumulation on a roadway is less than or equal to the specified depth for that class of roadway, “the roadway is deemed to be in a state of repair with respect to snow accumulation”. This provision is clearly intended to address the restrictive interpretation of the snow accumulation standard in Giuliani and should provide municipalities with a strong defence in cases where the standard is met. The standard also sets out how the depth of snow accumulation on a roadway may be determined and how it may be addressed.
The requirement that municipalities address snow accumulation after becoming aware of it must be read in conjunction with the constructive knowledge provision in section 1 of the MMS, which provides that a municipality is deemed to be aware of a fact if circumstances are such that the municipality ought reasonably to be aware of the fact.
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