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12 Nov 09

Repic v. Hamilton (City), 2009 CanLII 60673 (ON S.C.)

[91] The City’s failure to provide a safe intersection for all users is disrepair and, accordingly, I am satisfied that the City of Hamilton has breached its statutory duty in its failure to make any modifications to the design of this intersection.

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Law Municipal roads Negligence bicycles

I find that the choice of the Parclo A4 interchange design at this location was
a policy decision. However, the actual construction of the interchange,
any modifications to the design, decisions regarding markage, signage, traffic
control devices, or any other such controls, are operation or implementation
decisions and are subject to scrutiny by the court
the evidence of Mr. Vandermark was very telling. He testified that modifications
to the design, such as signage, the movement of the light pole, or implementing
concepts as suggested by Mr. Robinson, would not require City/Regional Council
approval
6 more annotations...
- The City led no evidence
  to suggest that budgetary constraints informed the decision to erect or not
  erect stop and dismount signs, or other traffic controls at the intersection. In
  fact, the evidence from all witnesses was that the project was under budget
- [89] It is not for the court to
  dictate what measures should have been adopted only that the City’s failure to
  do anything with respect to this unprotected crossing fell below the reasonable
  standard of care of a municipality. The failure of the City to mark the
  crossing, alert motorists of the crossing, alert cyclists that the bike path was
  ending, or to consider any of the other modifications testified to by the
  various experts, left this intersection in a state of disrepair.
- If the City did
  not want to interfere with the free-flow design of the ramp, by either markings
  or traffic controls, then it was incumbent upon the City to provide a warning to
  approaching motorists that they might be faced with the unexpected hazard of
  either pedestrians or cyclists crossing the on-ramp. Failure to do so is a
  breach of their statutory duty to keep the roadway in a reasonable state of
  repair
- once the City opens a new freeway in a residential neighbourhood, the onus is
  on the City to inspect the new facility to see how it is being used by the
  public and assess any conflicts or safety issues that need to be addressed
- I am satisfied that the absence of the warning sign was sufficient to deprive
  Mr. Powell of that additional one minute and, accordingly, contributed to the
  cause of the accident
- I am also satisfied that if
  the stop and dismount sign as planned by the City had been erected, Daniel
  would have had a cue as to how he should have behaved and if he had stopped
  and/or paused for a moment longer before entering the intersection, the
  collision would have been avoided

18 Sep 09

Wildeboer Dellelce LLP v. Schillaci, 2009 CanLII 48517 (ON S.C.)

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Law Negligence particulars

09 Sep 09

Schryer v. 1232215 Ontario Limited (Lakeview Beachbar), 2009 CanLII 44716 (ON S.C.)

Once a patron arrives at his or her final destination safely, the tavern’s duty is discharged, irrespective of whether the bar took active steps to ensure that the person arrives safely.

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Law Intoxication Negligence

17 Aug 09

Copeland v. Hamilton (City), 2009 CanLII 42450 (ON S.C.)

A stone on a public highway does not disrepair make.

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Law Municipal roads Negligence

[21] I
find the Society did take positive action to take reasonable care under section
3(1) of the Occupiers’ Liability Act to see that the persons entering on
the Linc were reasonably safe while on the Linc
By participating in a Canadian Cancer Society Great Ride’n Stride event, I waive
and release any and all claims for myself, heirs, executors, and administrators
against all sponsors, officials, and organizers of the Great Ride’n Stride event
for injury, illness, or death which may directly or indirectly result from my
participation in this event. I have read and fully understand and agree
with the contents of this waiver/release prior to participating in the Great
Ride’n Stride event.
5 more annotations...
- [28]   I find:
  
  (a)   the release was valid in
  the sense that the plaintiff knew what she was signing;
  
  (b)   the scope of the release
  is worded broadly enough to cover the conduct of the defendants;
  
  (c)   the waiver should be in
  enforced because it was not unconscionable.
- [29] As between the defendants I
  find this event was highly organized as stated earlier, and the Society was
  fully aware of its obligations for being allowed to hold it as set out in
  exhibit 1, tab 6, which are the guidelines for special events.
- 31] The paragraph that is relevant
  is the one dealing with indemnification and saving the City harmless. It
  provides the special event organizer agrees to indemnify and hold The
  Corporation of the City of Hamilton and Regional Municipality of
  Hamilton-Wentworth from and against any liability, loss, claims, demands, costs
  and expenses, including reasonable legal fees, occasioned wholly or in part by
  any negligence or acts or omissions during the use of the municipal
  facility. All insurance documents must be acceptable to the City solicitor
  and the Regional solicitor prior to the event
- [33] I
  find that should I be found in error on my decisions to this point then the
  Society should indemnify and hold the City harmless from and against any
  liability and expenses as set out above
- [34] There was no duty to warn
  on the facts before me as I have found them because there were no risks to the
  knowledge of the defendants for which there should have been a warning

30 Jul 09

Heaslip Estate v. Ontario, 2009 ONCA 594 (CanLII)

[21] The appellants allege acts of negligence in responding to a specific request for urgently required medical services and the negligent failure to comply with an established government policy, both of which are alleged to have caused harm to Patrick Heaslip. I agree with the appellants that the alleged facts in this case support the existence of a duty of care akin to the one identified in Attis, at para. 66: “once the government has direct communication or interaction with the individual in the operation or implementation of a policy, a duty of care may arise, particularly where the safety of the individual is at risk.”

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Law Negligence Duty-of-Care Public

The duty of care alleged here belongs within the established category of a
public authority’s negligent failure to act in accordance with an established
policy where it is reasonably foreseeable that failure to do so will cause
physical harm to the plaintiff
I fail to see how Ontario can claim that following its own policy would “pose a
real potential for negative policy consequences”
4 more annotations...
- To the extent that the appellants’ claim rests on the proposition that Ontario
  had failed to devote adequate resources to the provision of air ambulances,
  those allegations fail for the same reason that the claims in Eliopoulos
  and Williams v. Canada (Attorney General), 2009 ONCA 378 (CanLII), 2009 ONCA 378
  (“Williams”), failed.
- [33]
  The motion judge’s concerns regarding the risk of
  indeterminate liability suffers from the same difficulty as his duty of care
  analysis, namely, he failed to take into account the very specific nature of the
  claim.
- When stripped to its essentials, the allegation of specific acts of negligence
  in response to a specific request for air ambulance services, any risk of
  indeterminate liability evaporates
- where the government has made a policy decision to provide a service, a
  negligent failure to implement that policy at the operational level may be
  actionable when an individual member of the public suffers loss

04 Jun 09

Bain v. Black & Decker Canada (1989), 2009 CanLII 26598 (ON S.C.)

Anxiety from a burned hand: [68] I similarly find that in the context of the facts in this case that any anxiety or “psychiatric illness” that Mrs. Bain may have suffered as a result of the defendant’s negligence in this case was not a foreseeable consequence of its failure to adequately warn, design, or manufacture the hair dryer in this case. Any such injury is too remote and therefore not caused in law by the defendant’s conduct.

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Law Negligence nervous-shock remoteness

03 Jun 09

CanLII - 2009 CanLII 23385 (ON S.C.)

the plaintiff pleads that the police “caused substantial damage to the property and its contents” in the course of executing the search warrant. Assuming that this assertion discloses a cause of action against the police, it does not do so against the Crown. A search warrant is a “judicial process”: R. v. Pugliese 1992 CanLII 2781 (ON C.A.), (1992), 8 O.R. (3d) 259 (C.A.), at paragraph 10, and s. 5(6) of the Proceedings Against the Crown Act exempts the Crown from liability in negligence for the conduct of its servants in executing a judicial process.

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Law search Negligence

Liability for a constitutional tort requires wilfulness or mala fides.
Proof of simple negligence is not sufficient:

08 May 09

Ryan v. Sault Ste. Marie (City), 2009 ONCA 344

The City of Sault Ste. Marie ...grossly negligent in its failure to maintain its sidewalks at the time that the respondent slipped, fell and suffered injuries.

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Law Municipal Negligence Slip'n'fall

30 Apr 09

CanLII - 2008 CanLII 69501 (ON S.C.)

it was open to the City of Burlington to pay the $200,000 sought by the Plaintiffs to settle this matter, and to them claim indemnification from the individual Defendants, were they unwilling to come to the table as they seem to have been, in the days preceding the commencement of this trial.

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Law costs Municipal Negligence

Cole v. Deep River (Town of), 2003 CanLII 23452 (ON S.C.)

[96] The extent of this duty of care must, in my opinion, be determined in the context of weather and related conditions to which Canadian Citizens are, and can expect to be, exposed. Any adult person familiar with Canadian weather knows, or should know, that walking on sidewalks, ramps, or streets can and may be dangerous, especially in winter and spring conditions. The statute does not impose strict liability on a municipality.

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Law Municipal Slip'n'fall Negligence standard-of-care

[98] A
municipality cannot be expected to continually remove accumulated sand from
sidewalks and ramps particularly where it has received no complaints of unsafe
conditions. Where a municipality is, or should be, aware of unusual risks,
it must act to minimize or eliminate those risks whether they result from
weather conditions, design faults, damage, or other causes.
[99] A
trip, slip, or fall on a sidewalk or ramp that is covered with sand, does not
automatically warrant a finding that a municipality has failed to meet its
statutory duty to keep them in repair. A municipality cannot be expected
to eliminate each and every condition that might possibly contribute to the
possibility of someone slipping, tripping, or falling. The streets,
sidewalks and ramps must be maintained and kept in a state of repair that will
ensure they are safe for use by pedestrians. Pedestrians too must also
make reasonable use of them. It is common knowledge that sand can reduce
friction (where ice is not involved).
2 more annotations...
- [100] A sloped street, sidewalk, or ramp with accumulated sand,
  regardless of the degree of slope, calls for vigilance on the part of a
  pedestrian. In short, a pedestrian traversing a sloped ramp covered or
  partly covered with sand must look where he/she is going.
- [103] It is very significant that Mrs. Cole was the only one to have
  fallen on the ramp and that there were no other complaints about the ramp.

Cartner v. Burlington (City), 2008 CanLII 37900 (ON S.C.)

Burlington is 20% liable because it did not inspect sidewalks for improper slopes and this sidewalk sloped in such a way that a pool of slurry formed and Ms Cartner slipped.

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Law Municipal Slip'n'fall Negligence Causation standard-of-care Nuisance

nothing in Resurfice, or the strong authorities that preceded it,
prevents liability from being found against a defendant where the defendant’s
negligence is found to be “a cause” of injury on a balance of probabilities,
even if not the ultimate cause.
Proof that the state of non-repair that I have found to have existed was “a
cause” of the accident does not need to be established here with the level of
scientific precision and exactitude sought by the City. The plaintiffs
here need not prove that the state of non-repair of the sidewalk was the
cause – they need only show that it was a cause. Further, the
authorities establish not only that the matter may properly be considered as a
practical question of fact which can best be answered by ordinary common sense
being applied to the facts that have been proven, but also that an inference of
causation may be drawn from the evidence without positive scientific proof
46 more annotations...
- this is arguably the very kind of case that calls for the application of the
  “material contribution” test. There is no doubt that the defendant City
  owed a duty of care to the plaintiff to prevent unreasonable risk of injury by
  ensuring that its sidewalks, and this sidewalk in particular, were kept in the
  state of repair that the City is statutorily required to maintain.
  Mrs. Cartner suffered the form of slip and fall injury that the City had a
  duty to guard against. Failure to maintain that standard breached the
  City’s duty of care to the plaintiff and meets the second element of the two
  requirements that Resurfice establishes must be met if the material
  contribution test is to be applied.
- The City was not able to tell the Court when the original sidewalk was
  constructed and by whom. While it acknowledged that the three reverse
  sloped slabs were newer than the rest of the sidewalk, it was unable to clearly
  identify when those newer slabs of sidewalk had been constructed. It had
  no work orders or contracts that might have permitted the plaintiff to show that
  those three slabs were improperly constructed. It had only limited records
  of sidewalk inspection, and these were cursory at best in their detail of
  sidewalk imperfections and trip ledges that might require repair. There was no
  evidence of repairs having taken place on the north edge of the three newer
  slabs in any work order with respect to the grinding work that appears actually
  to have been performed in 1999, three years before the accident. That such
  repairs occurred could only inferentially be determined from a listing of
  amounts paid globally to a contractor for numerous sidewalk trip ledges around
  the City that had all been repaired by the same contractor at about the same
  time
- it is important to bear in mind that the public policy purpose that permits the
  application of the “material contribution” test is that basic notions of
  fairness and justice would otherwise be offended if liability were to be denied
  where the requirements of the stricter "but for" test could not be met. In my
  view, while not necessary to the decision I have reached, this is just such a
  case.
- [113]
  At common law, a property owner did not have a duty of care with respect
  to the public sidewalks adjacent to their property. However, there were
  two exceptions to this rule. The first was that a property owner might be
  deemed in law to be an occupier of an adjacent public property if the owner
  assumed control of that property. The second exception to the general
  principle that a property owner was responsible only for his or her property is
  that the duty of care on the owner extends to ensuring that conditions or
  activities on his or her property cannot flow off the property and cause injury
  to persons nearby:
- [114]
  Not all nuisances will be actionable, but a property owner can be held
  strictly responsible in nuisance for injuries caused by substances that flow
  from his or her property, as well as in negligence if the owner failed to ensure
  that his or her actions would not cause injury to others.
- At its essence, the tort of nuisance is established where the defendant creates
  a dangerous situation or fails to take reasonable steps to abate it when the
  defendant knew or ought to have known of its existence:
- Further, in cases where the performance of its public duties by a municipality
  is not governed by a statute such as the Municipal Act, but rather by the
  common law, a municipality may also be found liable in nuisance. However,
  municipalities may also enjoy immunity from liability for nuisance where the
  offending activity was authorized by statute, and where the activity was
  necessary or an unavoidable consequence of the exercise by the municipality of
  its statutory authority
- In the absence of an explanation, the Court can draw an unfavourable inference
  when a defendant like Ms. Huang does not testify, or from the failure of the
  defence to call a witness who would have knowledge of the facts and would be
  assumed to be willing to assist that party.
- In circumstances where a litigant or likely material witnesses like Ms. Huang or
  Mr. Chung do not testify, the Court must presume that such evidence would have
  adversely affected the defendant’s case:
- These inferences, to be sure, cannot fairly be made except upon certain
  conditions, and they are also open always to explanation by circumstances which
  make some other hypothesis a more natural one of the party’s fear of exposure,
  but there is no doubt of the propriety of such an inference in general
- [150]
  It should be noted here that if only one defence were provided to the
  City under the Municipal Act, that of not reasonably being able to have
  known of the pooled concrete slurry on the sidewalk, in my view such a defence
  would have provided complete exoneration of the City from liability in this
  matter, regardless.
- if liability is to be found here it will be based on the physical state of the
  sidewalk itself, and whether that state was one of disrepair. That is the only
  basis upon which the liability of the City can be engaged here
- it necessarily follows that if a state of non-repair is found to have existed
  for one or more of the reasons advanced by the plaintiffs, in considering the
  availability to the City of the statutory defences in subsections 248(1.2) and
  (1.3) of the Municipal Act, reproduced below, the focus must be on
  whether the City ought reasonably to have been aware of the existence of a
  physical state of non-repair, and whether its inspection and maintenance
  policies and programs, and the manner in which inspection and maintenance was
  carried out constituted reasonable steps to prevent a physical state of
  non-repair
- it is the duty of a municipality to keep its roads, or to use all reasonable
  efforts to keep its roads, in a reasonable state of repair. When it is
  shown that a road is not in a reasonable state of repair and that damage has
  been caused by the want of repair, a prima facie case is established
  against the municipality.
- When want of repair is shown, a prima facie case is made out; it is then
  for the municipality to show that the want of repair existed notwithstanding all
  reasonable efforts on the part of the municipality to comply with the law
- 157]
  Other decisions of Canadian courts and this court, in particular,
  establish that the standard of repair is a reasonable one and that a
  municipality is not an insurer which guarantees that citizens who use its
  sidewalks will not sustain injuries.
- [166]
  A municipality must actively take steps to prevent disrepair from
  arising.
- However even a trend towards an expansive interpretation of what constitutes
  non-repair cannot cause the municipality to be treated as having guaranteed the
  safety of those using its streets and highways. Its obligation is not
  absolute. Rather, it involves a duty to take reasonable action. It
  cannot be expected to make all of its roads passable at all times and in all
  weather conditions. An ideal standard of perfection is neither achievable
  nor is it required.
- in assessing the state of the sidewalk in this case, and whether it was in a
  state of non-repair, a determination by the municipality itself that a portion
  of sidewalk or roadway requires remedial work under its own maintenance policies
  must necessarily lead to the conclusion that the portion or area of sidewalk is
  not in a state of repair. Moreover, where a municipality determines that a
  section of roadway or sidewalk is in a state of non-repair and proceeds to fix
  it, it cannot be unreasonable for residents to expect that the remedial work
  will actually repair the defect identified by the municipality, in accordance
  with its policies, and not leave the sidewalk or roadway in a continuing state
  of non-repair in spite of the remedial work
- [176]
  In determining whether a section of sidewalk or roadway is in a state of
  non-repair, it seems equally reasonable to expect that the municipality will
  adhere to its own inspection, maintenance and repair procedures, and take
  reasonable steps to insure that the sidewalks and roadways are in compliance
  with those policies, regardless of whether those policies might otherwise be
  considered adequate on their own merits.
- However, even if the three slabs of newer sidewalk were not initially
  constructed at an angle and slope that was the reverse of the rest of the
  sidewalk, and even if heaving or settling did cause those newer
  sections of sidewalk to slope in the reverse direction away from the roadway and
  the drainage it provided, it is evident to me that neither heaving
  nor settling ought to have occurred with a newer section of sidewalk if it was
  laid properly in the first place
- the reverse sloped situation of a portion of the sidewalk on Guelph Line in
  front of Crystal Shoes is not an issue of maintenance. It is, at
  least initially, one of construction
- in the absence of topographical features that would have required that the
  section of sidewalk consisting of three slabs be designed and constructed with a
  slope towards the properties rather than towards the roadway, both the Ontario
  Standard for construction and common sense make clear that the sidewalk should
  slope towards the roadway.
- It may be that the slope of those sections as newly constructed could not have
  been in exact compliance with the construction standard. This would have been
  the case, for example, if the older section was not in exact conformity with the
  slope stipulated in the standard. In such a case, the more prudent course
  of construction so as not to create trip hazards in the course of the new
  construction would likely have been to conform the slope of the new three slab
  section to the same approximate degree in the same direction of slope as the
  older sections of sidewalk that abutted the newly constructed section. It
  would not, however, have been to slope the sidewalk in the opposite direction,
  away from the roadway, and at a cross slope from the existing sidewalk slope,
  again in the absence of evident topographical features demanding it
- I find that such subsidence would only have occurred if the foundation for that
  section of the sidewalk had been improperly laid by whoever it was that
  constructed this new three slab section of sidewalk for the City of Burlington.
  - Too bad Burlington didn't figure out who did the work and bring them in on a 3rd Party claim. - on 2009-04-30
  Add Sticky Note
- The City could provide no evidence that it was constructed in accordance with
  the applicable Ontario construction standard, no evidence regarding its
  construction at all. It could provide no evidence that it had records
  relating to who constructed that section of sidewalk or how they did it.
  Its own absence of records even prevents them from asserting that it was a
  third party contractor who improperly constructed it, rather than their own
  roads and sidewalks department. They simply do not know. Neither do
  they know why the sidewalk slopes away from the roadway contrary to the
  construction standard, and against the slope of the rest of the sidewalk, or why
  the state of that sidewalk as a whole at the time of the accident was in
  non-compliance with their own standards for trip ledges and repair. Had they
  been able to advance such evidence there might have been an exculpatory
  explanation, but there was none present here
- There is simply no adequate evidentiary foundation to conclude that a situation
  of non-repair existed attributable solely to the alleged drainage
  characteristics of the site
- the City has no obligation to intercept or interrupt rainwater which may fall on
  the municipality, and consequently no obligation to provide drainage.
- No evidence advanced on this trial permits a conclusion to be drawn reasonably
  on a balance of probabilities whether the sidewalk provided adequate drainage of
  water – I emphasise, not concrete slurry with its obviously increased viscosity
  and necessarily different drainage characteristics, but simply water
- [234]
  The City argues that any attempt to argue that the grinding in 1999 was
  improper and not in accordance with the City’s policy should be discarded as
  unsupported by the evidence. They claim that it would be ironic for the
  Municipality to face a finding that in an attempt to remedy a condition of
  non-repair for pedestrians it created a condition of non-repair in the event
  that someone would deposit a substance on the sidewalk such as occurred in 2002.
  It says it was clearly not foreseeable that concrete slurry would be placed on
  the sidewalk and would impose much too high a duty on the municipality.
- First, while it may have attempted to remedy the condition of the sidewalk, it
  was a half- hearted attempt, with no explanation being available as to why the
  City did not complete the slabs or section replacement that was the standard of
  repair called for.
- Second, I agree that it may not have been foreseeable that concrete slurry in
  particular would find its way onto the sidewalk, but it certainly was
  foreseeable that in failing to repair the sidewalk to standard, the sidewalk
  would remain in a state of non-repair, and that continuing state of non-repair
  could cause injuries to arise, either on its own, or in combination with other
  factors
- In failing to comply with its own maintenance standard by grinding the sidewalk
  down rather than replacing it, the City failed to meet its statutory
  obligations. But even worse, in choosing to remedy the situation in this way,
  whether they knew it or not, they created a new problem
- I find that the grinding work done by the City, in addition to leaving an
  impermissible height differential between the two slabs in totality, changed the
  drainage characteristics of that slab. The grinding was evidently
  extensive enough that the slope created by the grinding itself, a slope which
  can clearly be seen in the photographic exhibits, obviously changed the
  direction of the flow of drainage at that edge of that sidewalk slab away from
  the roadway and towards the three reverse sloped slabs of sidewalk that lay to
  the immediate south of it on the sidewalk. That changed flow of drainage,
  combined with the trapping characteristics of the three reverse sloped slabs,
  permitted the pooling of water or other liquids to occur on those three slabs
- a public body that undertakes repair work they are authorized to perform must do
  so in a manner that avoids the creation of some other hazard or nuisance. If it
  does not discharge its statutory obligation in a manner that adheres to its own
  policies or that avoids the creation of a nuisance, it will be found to be
  liable whether it is negligent or not.
- I must confess to having found the submission unpersuasive given the City’s
  complete inability to produce any records of any significance with respect to
  the state of this sidewalk, its history, construction or maintenance. Perhaps
  there had never been any complaints about this section of sidewalk, but the
  unreliability of the City’s recordkeeping with respect to other aspects of the
  sidewalk, must cast at least some uncertainty on the question of whether
  complaints were ever received or acted upon
- The plaintiffs here need not prove that the state of non-repair of the sidewalk
  was the cause – they need only show that it was a cause. The
  determination should be made as a practical question of fact best answered by
  the application of ordinary common sense to the facts that have been proven.
  Inferences of causation may be drawn from the evidence without positive
  scientific proof
- An accident caused by pooled concrete slurry on a sidewalk that is in a state of
  repair does not engage the liability of the City, or put the onus on it to
  defend itself, assuming it could not have known of the presence of the hazard
- What is certain and different here, however, is that the sidewalk was in a state
  of non-repair, albeit for causes not associated with the slurry itself. The two
  distinct aspects of that state of non-repair were its improper and faulty design
  and construction and the faulty and incomplete repair work performed to that
  area of sidewalk by the City. The presence of that double-barrelled state of
  non-repair left that area of the sidewalk in a state where the evidence showed
  that liquids would have a tendency to pool and accumulate.
- I do not need to determine whether the slurry would have been present if the
  sidewalk had not been in a state of non-repair. I do not need to determine
  whether the slurry would have been present if the trapping characteristics of
  the three slab reverse sloped section of sidewalk had been properly designed and
  constructed. I do not need to determine whether the slurry would have been
  present if the City had repaired the trip ledge in compliance with its own
  policies. The simple observable fact is that these conditions of non-repair,
  conditions that the City knew existed, created a sidewalk condition that
  permitted the concrete slurry to become trapped when it pooled on the sidewalk
- in considering the municipality's conduct in a case such as this where a
  statutory cause of action is asserted for injuries caused by non-repair, the
  reasonableness of its steps to inspect and maintain its sidewalks in this case
  is of critical importance. It is to be evaluated in much the same way as would
  be the case in a negligence action
- An important difference, once a finding of non-repair has been made, is that the
  onus rests upon the municipality to disprove negligence on its part.
  Nevertheless, some legal writers argue that reference to a municipality having
  to rebut the "presumption" imposes too high a burden upon the municipality.
  They say a municipality should be found to have discharged its evidentiary
  burden that it took reasonable measures to keep the sidewalk in repair simply by
  establishing that it had a reasonable system of maintenance and inspection,
  notwithstanding that a condition of non-repair existed at the time of the
  accident
- The existence of a sidewalk inspection and maintenance policy alone will go some
  distance towards satisfying the requirement that the municipality take
  reasonable steps to avoid permitting its sidewalks to fall into a state of
  non-repair that violates its Municipal Act obligations. However, any such
  policy will be meaningless if it is not actually fully and faithfully
  implemented and adhered to.
- the policy of inspection of the City of Burlington, as laudable as it may have
  been with respect to the identification and repair of trip ledges, was
  inadequate as it read at the time of Marjory Cartner’s accident and is not a
  true policy of inspection of the state of the sidewalks as a whole. It does not
  address issues of slope, grade or drainage
- even if the policy is adequate, in my opinion it can not afford the City a
  defence from liability if the City cannot show that it was actually followed in
  practice in the circumstances of this case, by inspectors who were properly
  trained and equipped to do the job
- inadequate actions such as those taken by the City in this case can not
  possibly satisfy the onus that rests upon it if it is to enjoy the benefit of
  the statutory defence afforded to it under the Municipal Act

24 Apr 09

Bingley v. Morrison Fuels, 2009 ONCA 319

I question my colleague’s application of Assiniboine in this case, given that the live issue in Assiniboine was remoteness and in this case it is the standard of care

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Law Negligence foreseeability standard-of-care

[50]
Although I acknowledge that the trial judge referred to the
unusual chain of events that occurred, as I have said, in my opinion, her core
finding was that, viewed from a 1979 perspective, there was no foreseeable risk
of a mistaken oil fill when the Stanzel method was used. This finding reflects
an appreciation that the risk of harm was a mistaken oil fill and a conclusion,
based on the evidence, that using the Stanzel method would negate that general
risk of harm. Accordingly, on my reading of the trial judge’s reasons, I am not
persuaded that Assiniboine applies
My concern is that applying the Assiniboine principles could result in
holding defendants to a standard of perfection.

21 Apr 09

Glover v. Toronto (City), 2009 CanLII 16740 (ON S.C.)

[51] I also reject Toronto’s submission that I cannot certify the breach of contract claim as a common issue. The plaintiffs have produced evidence of a standard form contract between Seven Oaks and the representative plaintiff, Anna Rada. It incorporates a Residents’ Bill of Rights as set out in the Homes for the Aged and Rest Homes Act, R.S.O. 1990, c. H.13, which the plaintiffs plead and rely on. Item 18 of the Bill of Rights, which forms part of the contract provides: “Every resident has the right to live in a safe and clean environment.”

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Law Negligence Class-Action Municipal

I agree with the submission of Toronto that the pleading of declaration that the
defendants were negligent is superfluous and adds nothing to this action in the
way of common issues. Any common issues raised by the pleading that the
defendants were negligent and liable to pay damages are the very same issues
raised by a pleading for a declaration that the plaintiff was negligent and
liable for damages
[46]
The defendants dispute that questions of duty and standard
of care can be addressed on a class-wide basis. They say that different duties
may be owed at different times to different class members or may not be owed at
all. I do not find this argument persuasive. Common issues include common but
not necessarily identical issues of law that arise from common but not
necessarily identical facts. The Class Proceedings Act gives the court
the flexibility to deal with differentiation among class members. The trial
judge has the power to adopt a nuanced approach and create subclasses when this
is necessary:
3 more annotations...
- [65]
  In my view, this is a case like Bywater where
  causation will be an individual issue. The amount of damages claimed by each
  class member will vary in accordance with their individual circumstances. Proof
  of loss will be individual. As I do not believe that there is any reasonable
  likelihood that conditions (b) and (c) can be met, proposed common issue 3
  should not be included as a common issue.
- [85]
  Unfortunately, Mr. and Mrs. Glover do not cross this
  threshold. They appear to have no appreciation that they are representing a
  class. Nor do they understand the nature of the plaintiffs’ complaints against
  Toronto and Ontario. Both thought the claim was about late notice of the
  outbreak and that they are involved in the litigation to further their
  individual interests. I am not persuaded that either is a suitable
  representative plaintiff
- class counsel cannot unilaterally choose to terminate representation, but is
  bound to represent those class members who wish to pursue individual claims on
  the same basis as the retainer agreement provides until the class member or the
  court directs otherwise. It seems to me that the proposed abandonment of class
  members following the determination of common issues is completely at odds with
  the fiduciary duty that a lawyer has to a client, which includes the duty of
  loyalty

15 Apr 09

CanLII - 2009 CanLII 15655 (ON S.C.)

[23] In the case at bar, the allegedly wrongful acts by PwC are it having its name appear on Portus documents or its failing to disavow its name being associated with Portus. In my opinion, these acts are insufficient to establish a relationship that prima facie entails a duty of care and it is not necessary to consider whether there might be policy reasons to negate any duty of care. In my opinion, just having your name as auditor on a fraudster’s documents does not establish the degree of proximity required to give rise to a duty of care to the readers of the document by the person named as auditor in the document.

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Law Negligence Duty-of-Care

the proximity necessary for tortious liability certainly must be something more
than just being in the vicinity of the wrongdoing
on the one hand, if it was true that PwC was the auditor then there is no
misrepresentation pleaded, and on the other hand, if it was false that PwC was
the auditor, then the false statement was not made by PwC

07 Feb 09

Employers' duties for reasonably foreseeable psychiatric injuries: Hegarty v. Queensland Ambulance Service. | Full text Post Traumatic Stress Disorder articles from leading publications on ArticleArchives.com.

This article explores the ramifications of the Queensland Court of Appeal decision in Hegarty v Queensland Ambulance Service [2007] QCA 366 and endeavours to identify from decided authorities when employers will be exposed to liability for failure to exercise due care for their employees, or, alternatively, to provide them with a safe workplace

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Law employment mental-distress psychology Negligence

26 Jan 09

Frank v. Corporation of the Municipality of Central Elgin, 2009 CanLII 1368 (ON S.C.)

The municipality is not an insurer. Its obligation is to do all that should reasonably be required of it as measured against the winter standards which applied and the well understood standard of care which applies generally in all negligence cases, whether the steps taken were reasonable and executed properly. On the standard of care and its formulation in municipality cases, I am instructed by the cases of Ondrade v. Toronto (City), [2006] O.J. No. 1769 at para. 65 (S.C.J.) and Rydzik v. Edwards, [1982] O.J. No. 3446 at para. 24 (H.C.J.)

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Law Municipal Roads Negligence standard-of-care

21 Jan 09

Samuel v. Ho, 2009 CanLII 941 (ON S.C.)

[23] In cases where liability issues are technical, such as in medical malpractice cases as this, a finding of negligence must be based on a supporting expert opinion.

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Law negligence expert malpractice

27] Cross examination, without an expert
medical opinion filed in support of the plaintiffs’ claim is not enough to raise
a triable issue.

23 Dec 08

Guy v. Toronto (City), 2008 CanLII 66626 (ON S.C.)

Is this alley/laneway without a footpath or a sidewalk, a carriageway for vehicles, or a footpath/sidewalk for pedestrians, or can it be both? Answer: Yes, and to not treat it like a sidewalk is gross negligence.

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Law negligence Slip'n'fall Roads Municipal

[61] In the circumstances of this
case, any prejudice suffered by the City arising from the very brief delay in
the timing of the notice and the sufficiency of the notice, of which in the
circumstances I find none, would be clearly outweighed by an injustice that
would be occasioned to Ms. Guy if her claim were to be barred, in light of the
fact that she did attempt to provide the City with timely notice, although
delivered by regular mail rather than by personal service or registered mail.
[73] The standard of care to be
exercised by the City for users of a highway differs from the standard of care
to be exercised by the City for pedestrians using a sidewalk, the higher
standard being applicable to the pedestrian use of a sidewalk
4 more annotations...
- [91] Notwithstanding that this
  public alley/laneway was originally designed as a road for vehicular traffic and
  that roadways are used for the benefit of vehicles, not for pedestrians, this
  particular section of laneway between Linnsmore and Greenwood had become a
  shared roadway and sidewalk. In that particular segment of the laneway,
  pedestrians ought to be granted no less duty of care by the City than that
  imposed on the City respecting snow or ice on sidewalks.
- [96] The duty to protect the public
  from the hazard of snow and ice is far from absolute. The City is not an
  ensurer of safety. It must take reasonable steps to keep the sidewalks
  free of dangerous conditions, but its failure to do so does not necessarily
  result in liability to everyone who falls and is injured. For liability to
  ensue, the cause of injury must be more than a mere breach of duty. The
  breach must be of such magnitude that it can be properly described as gross
  negligen
- 112]
  Since this particular segment of this laneway has become in part, a
  pedestrian walkway between the Greenwood subway station and Greenwood Avenue, it
  should receive the exact same attention as a sidewalk designed for pedestrian
  use
- [113]
  The segment of the laneway between Linnsmore and Greenwood should have
  been foot patrolled to determine the existence of ice beneath the snow, as would
  have been determined by a foot patrol of a sidewalk. The same reasonable
  efforts that were expended by the City in determining safe passage on the
  sidewalks ought to have been employed on this segment of this laneway between
  Linnsmore Crescent and Greenwood Avenue

20 Dec 08

Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII)

The Flaming Zamboni

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Law negligence Product liability

Liability for negligence requires breach of a duty of care arising from a
reasonably foreseeable risk of harm to one person, created by the act or
omission of another: Jordan House Ltd. v. Menow, 1973 CanLII 16 (S.C.C.), [1974] S.C.R. 239, at
p. 247, per Laskin J. (as he then was). By enforcing reasonable
standards of conduct, so as to prevent the creation of reasonably
foreseeable risks of harm, tort law serves as a disincentive to risk-creating
behaviour
Foreseeability depends on what a reasonable person would anticipate, not on the
seriousness of the plaintiff’s injuries (as in this case) or the depth of the
defendant’s pockets
6 more annotations...
- the basic test for determining causation remains the “but for” test. This
  applies to multi-cause injuries. The plaintiff bears the burden of showing
  that “but for” the negligent act or omission of each defendant, the injury would
  not have occurred. Having done this, contributory negligence may be
  apportioned, as permitted by statute.
- 23
  
        The “but for” test recognizes that compensation
  for negligent conduct should only be made “where a substantial connection
  between the injury and the defendant’s conduct” is present. It ensures
  that a defendant will not be held liable for the plaintiff’s injuries where they
  “may very well be due to factors unconnected to the defendant and not the fault
  of anyone”:
- the cases in which the “material contribution” test is properly applied involve
  two requirements
- The impossibility must be due to factors that are outside of the plaintiff’s
  control; for example, current limits of scientific knowledge.
- First, it must be
  impossible for the plaintiff to prove that the defendant’s negligence caused the
  plaintiff’s injury using the “but for” test.
- Second, it must be clear that the defendant breached a duty of care owed to the
  plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and
  the plaintiff must have suffered that form of injury

17 Nov 08

Fisher v. Victoria Hospital, 2008 ONCA 759 (CanLII)

the robust and pragmatic approach does not permit drawing inferences concerning either the ultimate issue of causation or links in the chain of causation without reviewing the relevant evidence and without making findings about the range of available inferences

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Law negligence causation

the robust and pragmatic approach offers a method for evaluating evidence. It is
not a substitute for evidence that the defendant’s negligence caused the
plaintiff’s injury; nor does it change the amount of proof required to establish
causation.
just as the robust and pragmatic approach cannot be used as a substitute for
evidence, it cannot be used as a substitute for reviewing and making findings
about relevant evidence
1 more annotations...
- [77]
  Nonetheless, to make a finding of causation based on a
  robust and pragmatic approach, in my view, it was incumbent on the trial judge
  to consider and make findings about the evidence relevant to the medical issues.
  This is particularly the case where there was no opinion evidence dealing
  directly with the theory of causation determined by the trial judge