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10 Nov 09

Kurdina v. Gratzer, 2009 CanLII 60403 (ON S.C.)

the issue before the court is not about the existence of psychotronic weapons or about how other professionals might treat Ms. Kurdina for her symptoms. Ms. Kurdina is entitled to her belief that such weapons exist and that she has been the victim of them. The issue is whether Dr. Gratzer was negligent as a psychiatrist, and that is an issue that must be decided based on relevant evidence about the standard of care of psychiatrists

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Law Mental Health standard-of-care

the standard of care of psychiatry is measured by the standard of care of
practitioners of psychiatry and not by the standard of care of toxicologists or
by practitioners of other disciplines of knowledge that believe in the existence
of effects from psychotronic weapons

03 Jun 09

Holmes v. Kingston (City), 2009 CanLII 22556 (ON S.C.)

A municipality is not obliged to maintain roadways as if they were primarily to be used for pedestrian traffic, except in the confines of established crosswalks. Pedestrians who choose to convenience themselves by crossing a roadway primarily designed for motor vehicle traffic, excluding highly unusual circumstances, must take the roadway as they find it.

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

[22] There may, in fact, be
circumstances where an increased standard of care is required for pedestrian use
of a roadway. Those circumstances would, in my view, be quite rare.

30 Apr 09

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.

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

26 Sep 08

Phinny v. Macaulay, 2008 CanLII 47015 (ON S.C.)

An excellent overview of Registry Act title requirements, requisitions, easements, abandonment, duty Lawyers owe clients, and mitigation.

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Law property Easement abandon title Professional-Responsibility lawyer standard-of-care

Mr. Provenzano was negligent and in breach of his contract to Mr. Phinny in
keeping relevant information from his client, preventing his client to assess
his obligations under the Agreement given the change in circumstances,
preventing his client from instructing him, preventing Mr. Phinny from
evaluating his risk in not closing, failing to advise the client as to the new
information obtained and alternative court remedies as to the then issues
between the parties and loosing an opportunity to purchase the property.
Accordingly, Mr. Provenzano is
responsible in law for any liability determined owing to the plaintiffs by Mr.
Phinny’s failure to close and to repay his client his deposit with interest in
such event

24 Jul 08

Di Martino v. Delisio, 2008 CanLII 36157 (ON S.C.)

[51] The leading case in Ontario on the subject of barrister’s negligence is the decision of the Court of Appeal in Folland v. Reardon 2005 CanLII 1403 (ON C.A.), (2005), 74 O.R. (3d) 688, 249 D.L.R. (4th) 167 (C.A.), which holds that counsel’s liability for the conduct of litigation, whether in the pre-trial stages or during the trial itself, is to be assessed by the standard of reasonableness

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Law Negligence Lawyer standard-of-care expert

[51] The leading case in Ontario on the subject of
barrister’s negligence is the decision of the Court of Appeal in Folland v.
Reardon 2005 CanLII 1403 (ON C.A.), (2005), 74 O.R.
(3d) 688, 249 D.L.R. (4th) 167 (C.A.), which holds that counsel’s liability for
the conduct of litigation, whether in the pre-trial stages or during the trial
itself, is to be assessed by the standard of reasonableness
in light of Folland v. Reardon and Wernikowski v. Kirkland et al.,
the Original Trial may be revisited and that such revisitation does not
constitute an impermissible collateral attack on the judgment at trial.
5 more annotations...
- 84] Counsel has a responsibility to recommend that an
  expert witness be retained in an appropriate case.
- a number of reasons why an expert was necessary including: (1) providing the
  lawyer with an understanding of what was being asserted by the other party; (2)
  obtaining the expert’s assessment of the validity and strength of the opinion
  being asserted; (3) giving an assessment of the evidence available to rebut the
  opinion of the opposing expert; (4) obtaining expert knowledge and advice to
  test the qualifications and testimony of the plaintiff’s expert; (5) assisting
  in putting together a defence; (6) assisting in developing questions to ask the
  other expert; and (7) assisting in determining what other evidence might be
  required in the case.
- One of the first questions that counsel should address, in
  determining whether to recommend that an expert be engaged for the purpose of
  trial, is whether the proposed evidence meets the requirements set out by the
  Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (S.C.C.), [1994] 2 S.C.R. 9, 114
  D.L.R. (4th) 419, and specifically whether it is necessary for the
  purpose of assisting the trier of fact. Are the issues in the case such that
  expert evidence will be required in order to make out an essential part of the
  client’s claim or defence?
- Counsel must investigate witnesses necessary to establish the client’s claim or
  defence, interview them as required, and call them if necessary.
- Counsel may be found negligent for failing to call a witness whose evidence is
  necessary to establish the client’s case:

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