Action Dismissed for Failing to Provide Municipal Notice

A recent decision dismissed a plaintiff's claim against a municipality for failing to give notice within 10 days, as required by the Municipal Act.

In Seif v. City of Toronto, 2014 ONSC 2983 (S.C.J.), the plaintiff tripped and fell on a sidewalk.  She did not provide notice to the City for four months.  She stated she was unaware of the Municipal Act notice requirement. She was on painkillers for 3 days, was mobile within a week of the accident and was able to focus on a job search in the weeks after the accident.  The Court found that the delay in giving notice was as a result of her indecision as to whether to bring an action.

Justice Morgan dismissed the action.  Even though the notice requirement is "very unfair", it is a specific statutory requirement that can only be changed by the legislative.  The exception to the notice requirement is to accommodate plaintiffs whose delay is as a result of their injuries.  The plaintiff had no reasonable excuse for the failure to comply with the notice requirement.  Whether or not the City was prejudice was not relevant.

This is a useful decision for those dealing with a notice issue.

Lawyer Swearing Affidavit for Motion does not Waive Solicitor-Client Privilege

Solicitor-client privilege is an important right, as seen in a recent appeal of a Master's decision.

In Elgner v. Freedman Estate, 2014 ONSC 1989 (S.C.J.), the defendant brought a motion for particulars.  A lawyer from the firm representing the defendant swore an affidavit in support of the motion.  Plaintiff's counsel cross-examined on the affidavit and a number of refusals were given.  On a motion for the refusals, the issue was whether the tendering of litigation counsel's affidavit in support of a motion amounts to "a total waiver of privilege over a lawyer's file."  The Master held it did not and Justice Morgan upheld the decision on appeal.

The refusals were extremely broad, including things such as accounts, letter of advice, dockets, and the initial retainer.  The plaintiff argued that since defence counsel swore they had no information (and therefore needed particulars), the only way to test their assertion was to ask to see everything.  Plaintiff's counsel also argued they needed to see everything in order to test the assertion the affidavit was made for "no improper purpose".  Justice Morgan disagreed, holding that the onus is on the party asserting the affirmative, not the party stating a negative.  If a statement that an affidavit is sworn "for no improper purpose" requires cross-examination, it would "burden all affiants with limitless cross-examination".  The plaintiff's motion was a fishing expedition aimed at undermining their ability to conduct the litigation.  The appeal was dismissed.

Court of Appeal Rejects Discoverability Argument

A recent example shows that the new summary judgment rule may be used in cases where plaintiffs claim they did not discover they had a claim within the limitation period.

In Yelda v. Vu, [2014] ONSC 2168 (C.A.), the plaintiff was injured in a motor vehicle accident in 2002.  She did not commence an action until 2011.  She alleged that she did not discover her injuries met the threshold for a claim until she had an x-ray of her back in 2009.  A motions judge disagreed, and granted summary judgment dismissing the action.  The plaintiff appealed.

The Court of Appeal dismissed the appeal.  The plaintiff's own evidence was that she had "really bad" back pain "half the time" each month following the accident.  She was never really pain free at any time, and at all times she attributed the pain to the accident.  Apart from occasional visits to hospital emergency departments, the plaintiff took no active steps to investigate the back pain from 2002 to 2009.  The motions judge held that it was implausible that a reasonable person would consistently take over the counter medication, have "really bad" pain, be unable to function a couple of days each month, and would find pain so bad as to need to attend the emergency department, yet fail to do anything to investigate the cause.  The Court of Appeal held there was no error in the motion judge's finding.

Plaintiffs Denied Costs of Jury Trial

A London judge recently denied costs to plaintiffs following a jury trial which saw them recover less than 10% of their claim.

In Mayer v. 1474479 Ontario Ltd., 2014 ONSC 2622 (S.C.J.), the defendant admitted liability for a 2008 motor vehicle accident.  The action proceeded to a jury trial on damages.  The Statement of Claim sought damages of $1.1 million, and mid-trial the prayer for relief was amended to $2 million.  The jury awarded the primary plaintiff $137,000 (reduced to $116,000 after the deductible and collateral benefits), her daughter $3,300 (reduced to $0 after the deductible) and her husband $0, for a total recover of $119,300.  The plaintiffs sought costs of $422,000.

Justice Leach went through the factors in r. 57.01.  Some of the factors considered were:

1.  The plaintiffs fell "drastically short" of the amounts claimed;
2.  The time and resources devoted by the plaintiffs were disproportionate to what the case was worth, as determined by the jury; 
3.  There were disbursements for experts who either did not add much to the proceeding or overlapped with other experts;
4.  The case was scheduled for 2 weeks and ran to 4 weeks, for which the plaintiffs were largely responsible; and
5.  Various disbursements were not permissible in any event, such as a "day in the life" video which was not used, the cost of a trial that was adjourned by the plaintiffs, and the cost of a voluntary mediation.

The defendants made several offers; however, they were not r. 49 offers as they failed to separate interest from damages, did not make it clear whether the offer was global for all plaintiffs or severable, and were not clear as to whether the plaintiffs could retain future collateral benefits.  But for the deficiencies in the offers, the defendants would have been entitled to partial indemnity costs in the amount of $181,000.  Even though they were not r. 49 offers, the defendants' offers were taken into account in exercising the Court's discretion.  Justice Leach held that each party should bear their own costs.

Mayer should be reviewed by counsel as guidance in making offers, as well as in deciding what resources should be put into a particular file.

Evidence Required to Dismiss a Non-Earner Benefits Claim

In Willoughby v.Dominion of Canada General Insurance Co, 2014 ONSC 1136 (S.C.J.), the plaintiff sustained injuries in a motor vehicle accident on July 8, 2004. The plaintiff settled her claim for income replacement benefits with her insurer and proceeded to bring a claim for non-earner benefits.

The insurer brought a motion for summary judgment on the basis that the plaintiff did not satisfy the test for non-earner benefits. To support the motion, the insurer submitted an affidavit relying on the oral evidence given by the plaintiff at her examinations for discovery that showed she had continued to engage in her pre-accident activities. The plaintiff opposed the motion and submitted an Affidavit sworn by the plaintiff, a report of a neurologist and a report from an occupational therapist, all highlighting the differences in her pre and post-accident life. The insurer did not cross-examine on the affidavit nor did they submit an affidavit in response. Given this the court held that the evidence provided by the plaintiff would be considered undisputed.

In their reasoning, the court relied on the Ontario Court of Appeal’s decision in Heath v. Economical [2009] O.R. (3d) 785 for the general principle that in cases where pain is a primary factor preventing the claimant from engaging in substantially all of her pre-accident activities the question is not whether the insured is physically able to do these activities, but whether the degree of pain experienced is such that the claimant is practically prevented from engaging in those activities. The court applied a qualitative perspective requiring the activities to be viewed as a whole and held that the evidence led by the insurer was insufficient. Therefore the motion was dismissed.

Willoughby indicates the high standard courts will apply in summary judgment motions to dismiss applications for non-earner benefits. Defendants who bring such motions should not merely rely on the plaintiff’s evidence provided at examinations for discovery to satisfy the court’s qualitative approach.  

Substantial Indemnity Costs for Unsubstantiated Bad Faith Claim

In Sagan v. Dominion of Canada General Insurance Company, 2014 CanLII 16478 (SC.J.), the defendant insurer successfully moved to dismiss the plaintiff's claim for non-earner benefits and mental distress.  The claim continued "a litany of unsupported allegations of bad faith, misconduct and incompetence against the defendant".  There was no evidence to support the allegations and they were maintained right up until the hearing of the motion.

Justice Lofchik awarded substantial indemnity costs for the motion itself, and partial indemnity costs for the remainder of the action.  He held that substantial indemnity costs may be appropriate where a party makes empty bad faith allegations.  The purpose is to diminish frivolous and speculative litigation, to cause litigants to focus on the real issues and to foster sober reflection above that of an emotional response.

Although brief, Sagan is a useful decision, especially where plaintiffs commonly throw in allegations of bad faith where an insurer denies a claim.

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

For several years, there have been two streams of cases regarding whether courts can order independent medical assessments by non-health practitioners under s. 105 of the Courts of Justice Act and r. 33.  The Divisional Court considered the issue in Ziebenhaus v. Bahlieda, 2014 ONSC 138 (S.C.J.).

The Court held that court have inherent jurisdiction to order physical or mental examinations by non-health practitioners.  The inherent jurisdiction is to be exercised to further trial fairness and justice.  There is no automatic rule that "levels the playing field" by providing the defendant is entitled to each type of report that is obtained by the plaintiff.  The focus is on the need for a particular examination in order to meet the plaintiff's case.

Ziebenhaus provides guidance on an area that has called out for clarification for some time. Defendants who bring motions to compel IMEs should make sure they address how the proposed assessment will further trial fairness and justice.  It may be that it will become easier to obtain IMEs with future care cost assessors, occupational therapists and so forth than in the past.