This action was brought against the Village of Kaslo (B.C.) by a plaintiff who sustained damages after falling down an embankment off Water Street (an unpaved alleyway). The Village had erected concrete barriers at the mouth of the street/alley in order to bar vehicles from entry and to demarcate the embankment. However, there were gaps between the barriers. Although the plaintiff was familiar with the area, she had her back to the barriers while helping her husband park their motor home. As a result, she stepped between one of the gaps before falling down and injuring herself.
In determining liability, the Court relied on the Supreme Court’s decision of Ryan v. Victoria (City), 1999 CanLII 706 (SCC) in which conduct was defined as negligent where it created “an objectively unreasonable risk of harm”. In this case, the Court noted the following factors: the embankment was patently obvious, the area was rarely used, the plaintiff knew of the embankment and there had been no other incidents of falls down the embankment.
Court dismissed the action and found that the infrastructure placed in the area of the fall by the Village was adequate. It was not necessary to put up fencing or fall protection as it was obvious that the area was hazardous. The Court also found that the plaintiff would not have fallen if she watched where she was stepping. Namely the “proximate cause” of her fall was determined to be her inattention in walking backwards toward the embankment despite being aware of the hazard.
While this decision is not binding on an Ontario Court, the duty of care owed by an occupier is defined almost identically in the Occupiers Liability Act of B.C. and Ontario. As such, the decision would likely be persuasive in Ontario in suggesting that common sense and the principles of reasonableness should prevail in disputes over whether an occupier has discharged its duty of care to ensure that people (and/or their property) will be reasonably safe while on their premises.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
The matter of Rosen Express v. Northbridge is yet another case of stolen cargo for which Rosen sought coverage. The case underlines for insurers that courts will often take a broad approach to coverage and they must provide supporting evidence when alleging misrepresentation.
This case involved electronic goods which were ultimately destined for Best Buy in Quebec. Affidavit evidence supported that Greenway Carriers transported the goods to Rosen Express by leaving a Greenway trailer in Rosen’s yard. Rosen ultimately was tasked with delivering the trailer to Quebec. Notably, the Greenway and Rosen properties were directly beside one another.
The insurer argued that there should be no coverage for two reasons. First, it argued the goods were not in Rosen’s custody and thus not covered by the policy. In support of this, the insurer argued that the goods remained in Greenway’s trailer and it was a Greenway employee who completed the police report. The court rejected these arguments as speculative and accepted Rosen’s evidence that it intended to transport the goods using the Greenway trailer.
The court also found, based on the policy wording, that the cargo would be covered regardless of whether they were dropped off at the Rosen property. Greenway was found to be acting as Rosen’s agent and therefore the goods were considered to be in Rosen’s custody even if on the Greenway property.
Second, the insurer argued that Rosen made a material misrepresentation when it applied for insurance because it failed to disclose that it would be transporting electronic goods. There was a space on the application to specify the type(s) of electronic goods being transported, which was left blank. The application described the types of goods very generally, including “consumer goods”. In the application, Rosen provided evidence that electronics comprised 1 to 2% of its shipments.
Morgan J. rejected the insurer’s submission that there was a material misrepresentation. It was significant that the insurer did not provide any evidence to support that it was induced by the misrepresentation or that it would have treated the application differently. The court differentiated the case from one where an insured transports something drastically more dangerous or expensive than that declared on the application (e.g. explosives or gold bullion).
Although the court rejected the insurer’s coverage arguments, Rosen was not entitled to any compensation. There was a lack of evidence to support the value of the cargo as no claim had been made against Rosen. While there was some evidence on the bill of lading and post-loss amounts had been withheld from Rosen, the court was not satisfied that the cargo claim value could be determined with accuracy. Therefore, the court left for another day the issue as to whether the policy would respond to a cargo claim and the amount of same.
The Supreme Court of Canada recently considered whether an individual can be impaired by reason of distracted driving in R. v. Suter. While the primary issue was the appropriate length of sentence for the criminal conviction, it also dealt with the concept of being impaired by distraction.
The facts of the case were tragic. Mr. Suter fatally injured a two year old when he drove his vehicle onto a restaurant patio. Following the incident, the accused was charged with impaired driving causing death, impaired driving causing bodily harm and refusing to provide a breath sample after causing an accident resulting in a death. Complicating the situation was the fact that sometime after the accident, Mr. Suter was attacked by a group of vigilantes who kidnapped him, beat him and cut off his thumb using a set of pruning shears.
In the moments leading up to the accident, the accused and his wife got into a fight in the parking lot in front of the restaurant patio. During this fight, his wife exclaimed “Maybe we should just get a divorce.” At about the same moment, the wife realized that the vehicle was inching forward and she yelled at the accused to stop. Unfortunately, Mr. Sutter’s foot had come off the brake pedal. Instead of hitting the brake, he pressed down on the gas pedal which caused the vehicle to launch forward onto the patio where he struck the child. Following this, Mr. Suter was pulled from the vehicle, thrown to the ground and beaten by witnesses at the scene. He was arrested, taken to the police station and a breath demand was made. It was after speaking with a lawyer to obtain legal advice that he ultimately refused to provide the breath sample.
The Supreme Court of Canada noted that the circumstances were unique as the reason the accused refused to provide the police with a breath sample was because he was given bad legal advice which he followed. The impaired driving charges were ultimately withdrawn when the accused plead guilty to one count of refusing to provide a breath sample.
The Court of Appeal of Alberta found that the sentencing Judge made several errors in his decision. One of these errors was that the sentencing Judge failed to consider the fact that the accused “cho[se] to drive while distracted in the context of his health and pre-existing alcohol problems.” The Court of Appeal found that this was an aggravating factor.
The Supreme Court of Canada was critical of the Court of Appeal for engaging in their own interpretation of the evidence by concluding that what happened was more than just a momentary driving error. Although it was accepted that the accused was not impaired by alcohol, the Court of Appeal concluded that the accused’s ability to drive was “knowingly impaired by health and other factors.” Specifically, the Court of Appeal concluded that the accused’s ability to drive was “impaired by the distraction offered by his argument with his wife, in the context of [his] health and drinking problems.”
The Supreme Court of Canada held that the concept of “impaired by distraction” was “both novel and confusing” and would not endorse it. The Supreme Court of Canada found that the Court of Appeal did so primarily to circumvent the lower Court’s finding that the accident was a result of a non-impaired driving error. The Supreme Court of Canada noted that in describing the circumstances of the accident, the Court of Appeal focused on the fact that the accused chose to drive (1) in a busy parking lot; (2) while angry and distracted; and (3) in the context of pre-existing martial/health/alcohol problems.
The Supreme Court concluded that the Court of Appeal:
[I]mproperly recast the accident as one caused by health and alcohol problems, anger, and distraction. It reweighed the evidence and looked to external factors that had no bearing on the gravity of the offence for which Mr. Suter was charged, nor on Mr. Suter’s level of moral blameworthiness.
The Supreme Court of Canada found that this was an error in principle that resulted in the imposition of an unfit sentence.
While impaired by distraction may not be sufficient for a criminal conviction, an individual’s state of mind while behind the wheel continues to play a significant role in motor vehicle tort claims. The standard to prove negligence is lower than the criminal burden of proof. Although the Supreme Court of Canada may not have been willing to assign criminal fault in these circumstances, the reasonableness of a driver’s actions in a similar civil setting is still fair game.
As the quarter-final round of the World Cup is happening, the Ontario Court of Appeal saw fit to release a decision about an altercation that occurred in the middle of a soccer game. For those not familiar with the sport, physical altercations are not typical: soccer is a technical sport which requires high physical stamina, incredible ball control, and a dash of theatrics to make a fall look more painful than it actually is (see Neymar Jr’s theatrics at the 2018 World Cup). However, when tempers rise and an altercation ensues, who should be held responsible for damages associated with an assault on the field?
On September 9, 2010, the North Mississauga Soccer Club was playing against Hamilton Sparta in a game governed by the Ontario Soccer Association (OSA). In the middle of the game, Da Silva, a player on the North Mississauga club, was battling for the ball against a player from Hamilton Sparta. The referee decided that the battle was too physical and stopped the play. After the whistle blow, players from both teams ran onto the field from the benches. Among those players was Gomes, a player from Hamilton Sparta, who decided to punch Da Silva.
Gomes was criminally convicted of assault. Da Silva also commenced a civil suit against Gomes, Hamilton Sparta, the coach, team manager and vice president of Hamilton Sparta, and the OSA. The defendants (with the exception of Gomes) brought a summary judgment motion to dismiss the action against them.
At the summary judgment motion, Da Silva argued that the defendants breached the standards of care for coaches, on-field supervision, and player conduct. Fundamental to his claim was the argument that Hamilton Sparta, and its executive team, should have foreseen that Gomes would commit an assault and should have prevented him from playing. This was based on two previous occasions where Gomes had verbal altercations with referees.
The motion judge rejected this argument. She relied on case law from BC and concluded that, when dealing with sport coaches, “the standard of care is not that of a careful and prudent parent but whether the coach acted in accordance with the ordinary skill and care of a coach in the circumstances in which he or she find themselves”. The motion judge found that the assault was a “sudden and unexpected” event that was not foreseeable by the club, its staff, or the OSA. The judge also determined that the two past incidents were not predictive of Gomes’ conduct exhibited in this game.
Additionally, the FIFA Laws of the Game (the rules governing Ontario Soccer) specifically state that the coach and other team officials are not allowed to enter the field of play without the permission of the referee. Therefore, Hamilton Sparta staff could not do anything to prevent the assault from occurring.
The Plaintiff attempted to rely on Forestiere v. Urban Recreation Limited, wherein the court found that a coach had breached a standard of care when a player was injured as a result of a slide tackle. However, the motion judge distinguished this case as, in Forestiere, the slide tackle was performed by an unregistered player who was not aware of a rule unique to that league: no slide tackling. In that case, the court found that the coach breached the standard of care by not informing the unregistered player of this rule.
The motion judge found that there is no unique rule to soccer prohibiting one player from punching another – it’s simply a criminal act. A code of conduct prohibiting punching during a game would not be a unique rule and likely would not have prevented Gomes from committing the assault. The motion judge concluded that the OSA, Hamilton Sparta, and its coach, manager, and Vice President did not breach their respective standards of care. The judge therefore dismissed the action against these defendants.
The Ontario Court of Appeal
The Ontario Court of Appeal agreed with the motion judge.
The Court of Appeal found that the motion judge did not make any palpable and overriding errors and confirmed that supervising authorities are “not legally responsible for a sudden unexpected event in the midst of an acceptable, safe activity”.
The court also reiterated the importance of parties putting their best foot forward on summary judgment motions, noting that courts reasonably assume that “the parties have placed before it, in some form, all of the evidence that will be available at trial”. The court specifically noted that the plaintiff’s case “foundered on the absence of evidence”.
Takeaway – Raising the Standard
This case confirms that, in Ontario, athletic organizations and coaches will only be held legally responsible for acts that are foreseeable and that are ultimately preventable. An organization will be held to a higher standard of care if it creates unique rules, policies, and procedures. However, absent a self-implemented standard of care, an athletic organization will not be legally responsible for “sudden unexpected events” in an activity that is innately acceptable and safe. Happy Soccering!
Stas practices in insurance-related litigation. He has a broad range of experience including tort claims, accident benefits, subrogation, priority and loss transfer disputes, WSIB matters, and fraudulent claims. Read more...
The question of whether the jury in a negligence action is required to provide particulars of any finding of the Defendant’s negligence was considered by the Court in Poonwasee v. Plaza. After reviewing the relevant case law, the Court found that there was no such obligation.
The action arose as a result of a motor vehicle accident. Initially, Counsel proposed that the jury questions include a request that the jury provide particulars of the Defendant’s negligence, if there was a finding of negligence. Further, Counsel had proposed that the jury describe the Plaintiff’s injuries if they found that there were injuries caused by the accident. However, during the pre-trial conference, Counsel for the Plaintiff changed his position and did not want the questions to be submitted to the jury.
The Court noted that section 108(5) of the Courts of Justice Act provided that the Judge may require the jury to give a general verdict or answer specific questions. However, the Court noted that there was little case law with respect to the type of questions that ought to be left to the jury. Upon reviewing the case law, the Court acknowledged that there were both advantages and disadvantages to requiring a jury to provide particulars. The advantages were that (1) it allowed for the opportunity to “test” the jury’s understanding of the Court’s instructions; (2) it ensured that the jury did not disregard the law in favour of an emotional verdict; and (3) it concentrated the jury’s mind.
The disadvantages were that (1) it failed to allow for the possibility that the jurors may not agree on the reasons for negligence; and (2) it risked revealing the substance of the jury’s deliberations. The Court also noted that there was a danger that by attempting to precisely articulate the particulars of their findings, the jurors may become distracted from their main tasks of determining liability and damages.
The Court found that the questions put to a jury are within the discretion of the trial judge. In making this determination, the trial judge should consider whether the advantages of asking the jury to provide particulars outweighs the disadvantages. This will depend on the circumstances of the case.
In the present case, the Court found that there was nothing to suggest a need to “test” the jury’s understanding of the instructions on negligence. In fact, the issue was not complex as the Defendant did not lead any evidence to explain her conduct. As such, it was likely that the jury’s focus would be on the issues of causation and damages, not liability. The Court found that nothing would be served by requiring the jury to articulate the nature of the Defendant’s negligence. With respect to the Plaintiff’s injuries, the Court was unable to see how asking the jury to list the injuries would test the jury’s understanding of the judicial instructions. There was conflicting evidence regarding the extent of the injuries. The Court noted that the jury was provided with the standard instructions on causation without objection. Particulars were not required in light of the specific circumstances of the case.
As a result of this decision, parties should not automatically assume that jurors are going to be required to provide particulars on negligence or the nature of the injuries. The parties need to consider whether the benefits of asking for particulars outweigh any disadvantages of same.
The recent decision of Roskaft v. RONA Inc., 2018 ONSC 2934, sheds some light on when an employer can successfully claim frustration of contract when an employee is in receipt of long-term disability benefits.
The facts of this case were fairly straight forward. The Plaintiff began working for RONA in 2002 in a clerical role. In 2012, he started a leave of absence due to a medical condition. The Plaintiff had access to short term and long-term disability benefits provided by Sun Life. Sun Life approved the Plaintiff’s claim for LTD benefits. RONA had no involvement with the Plaintiff’s LTD claim. In December, 2014, Sun Life allegedly advised RONA that the Plaintiff was “permanently” disabled from his own occupation and any occupation. In September, 2015, three years after the onset of his disability, RONA terminated the Plaintiff’s employment due to frustration of contract. RONA relied on Sun Life’s December, 2014 letter and the fact the Plaintiff continued to receive LTD benefits. He was paid his statutory minimum entitlements under the Employment Standards Act, 2000. The Plaintiff commenced an action for wrongful dismissal. He alleged that RONA failed to obtain information from the Plaintiff which would have indicated his condition was improving at the time of dismissal.
On a summary judgment motion, Pollak J., found that the contract of employment between RONA and its employee of 13 years was frustrated by the employee’s 3 year absence.
Interestingly, Pollack J., concluded that the December, 2014 letter from Sun life, on its own, was insufficient to conclude that the Plaintiff was “permanently” disabled. Notably, there was apparently no reference to “permanent” disability in the correspondence. However, due to the following points, he found that it was reasonable to conclude that there was “no reasonable likelihood” that the plaintiff would return to work within a reasonable period of time:
Sun Life’s determination that the plaintiff was sufficiently disabled to receive long term disability benefits;
The Plaintiff’s post termination representations to Sun Life that his medical condition had not improved; and
The Plaintiff’s continued receipt of LTD benefits.
While employers are usually unable to rely on post termination medical documentation to support their claim for frustration, Pollack J., allowed the representations to Sun Life in as evidence. It is likely this post termination evidence that carried the day for the employer. Pollack J., specifically indicated it directly contradicted the plaintiff’s assertion that he would have provided further evidence had RONA asked and have been able to return to work in a reasonable period of time.
It is apparent that Pollack J., was unwilling to let the Plaintiff have his cake and eat it too. On the one hand, the Plaintiff was reporting to Sun Life that his condition remained stable and unchanged. On the other hand, he alleged that had RONA asked for additional medical information, he would have advised that he was improving. Both were unlikely to be accurate.
It is unfortunate that Pollack J. sidestepped the issue of which party had the obligation it is to submit or request medical information. Notably, the Plaintiff dropped his claim under the Human Rights Code, and so Pollack J., did not have to address the issue of accommodation by RONA. While there is case law that suggests an employer may suffer repercussions if they request information too frequently, many employment lawyers will vehemently argue that simply relying on the conclusion of the LTD insurer is insufficient to justify a claim of frustration without more. This decision would suggest that that a determination by the LTD carrier of ongoing disability, coupled with the continued receipt of LTD benefits may be a sufficient basis for employers to allege frustration of contract.
The Plaintiff’s receipt of long-term disability benefits for three years suggests his disability was severe enough that he was unable to engage in any employment for which he was reasonably suited. Those in the long-term disability industry recognize that this is a stringent test to meet and would be compelling evidence for employers to consider a frustration argument. However, as best practices, employers should request additional information from time to time from their employee and seek legal advice prior to making a final determination. While RONA was ultimately successful, their decision to dismiss the employee resulted in costly litigation.