Saturday, February 27, 2010


Ignorance of the Law can be a Reasonable Excuse

The Court of Appeal for Ontario has held that the failure to give statutory notice within 10 days to the municipality, arising out of a slip and fall on an icy municipal sidewalk, is not a bar to an action where the injured person waited four months to give notice because (i) he had a serious injury, (ii) he didn't know about the law requiring him to give notice and (iii) he was depressed. He did not give notice to the City until he was contacted by a lawyer four months after the slip and fall.

At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."

Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."

The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.

The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.

Wednesday, February 17, 2010


Unprotected Defendants Entitled to Deduct Collateral Benefits under s. 267.8

Burhoe v. Mohammed (2010), 97 O.R. (3d) (391) (S.C.J.)

The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.

The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.

This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.

Wednesday, February 10, 2010


Municipality not liable for failing to erect signs

Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)

The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.

Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:

I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)

Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.

Thursday, February 4, 2010


Calculation of Housekeeping Losses

McIntyre v. Docherty [2009], 97 O.R. (3d) 189 (C.A.)

The Court of Appeal recently commented on the proper method of calculating housekeeping losses.

The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.

The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.

In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.

Tuesday, February 2, 2010


New Summary Judgment Rule Results in Dismissal of Claim

Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.

This may prove to be a precedent helpful to municipalities.

Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.

Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”

These statutory notices are often sent to municipalities late.

The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.

Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.

Now under new Rule 20 this is possible.

The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.

The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.

The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.

The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.

The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.

An interesting decision.