Wednesday, March 31, 2010


Amendments to the Municipal Minimum Maintenance Standards

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 23/10, which came into effect on February 18, 2010. Several of the amendments are significant and will require municipalities to review their maintenance practices to ensure that the standards are met.

Over the next several blog entries, we will provide comments on the most significant changes to the Minimum Maintenance Standards. These comments were authored by Jennifer Stirton of our office.

Here is the first:

1. Constructive Knowledge of Facts
Many maintenance requirements in the MMS apply when a municipality becomes aware of a particular fact, such as a minimum snow accumulation, icy road conditions or a missing road sign. The MMS now provide that a municipality is deemed to be aware of a fact if the circumstances are such that the municipality ought reasonably to be aware of the fact.

Monday, March 29, 2010


Court to use a contextual approach in deciding whether to set aside a dismissal order

Finlay v. Van Paassen 2010 ONCA 204 (C.A.)

In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.

The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:

1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.

For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.

The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.

This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.

Tuesday, March 23, 2010


Graham v. Toronto, [2009] O.J. No. 4633

This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.

I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.

Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.

The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.

The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.

The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.

The trial judge then dismissed the plaintiff’s claim.

The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.

Tuesday, March 16, 2010


Court rejects argument deductible does not apply to awards of exactly $100,000

Van Winckle v. Siodlowski, [2009] O.J. No. 4807 (S.C.J.).

In this motor vehicle accident case, the jury awarded the plaintiff exactly $100,000 in non-pecuniary general damages. The plaintiff made the creative argument that the deductible should not apply where the award is exactly $100,000. Section 267.5(8) provides the deductible does not apply where the amount of non-pecuniary general damages "would exceed $100,000".

The Court held that "exceed" means greater than, not greater than or equal to. The deductible applied.

The decision makes sense. If the legislative had meant "greater than or equal to" $100,000, it would have said so.

Tuesday, March 9, 2010


SCC: good review on law of negligence

The Supreme Court of Canada has recently released unanimous reasons for judgment written by Cromwell J., Fullowka and Pinkerton’s of Canada Limited, 2010 SCC 5.

I bring this case to your attention as a helpful overview on the law of negligence in Canada.

A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.

The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.

The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.

All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.

Saturday, March 6, 2010


New SABS Regulations Available

The new Statutory Accident Benefits regulations are now posted on e-laws. They are effective September 1, 2010.

You can find them on the e-laws website at:

http://www.search.e-laws.gov.on.ca/en/isysquery/36aa91e5-e4cf-4b25-81b8-3823a94a0369/3/frame/?search=browseSource&context

Or go to www.e-laws.gov.on.ca then go to "Source law", choose "Regulations as filed", select 2010 and look under "I" for Insurance Act.