In Kapoor v. Kuzmanovski, on the eve of a trial, the Plaintiff brought a novel motion to exclude potential jurors who drive and pay for automobile insurance or who have insurance premiums paid on their behalf from the jury pool. The Plaintiff suggested that an inherent conflict of interest arose for these potential jurors due to the widespread and publicly known fact that increased court awards and settlements increased automobile insurance premiums. The Plaintiff alternatively sought orders that these same residents should be excluded from the jury selection process as being ineligible or based on widespread bias in the community. In the further alternative, the Plaintiff sought to strike the jury notice.
The motion was opposed by the Defendants. Additionally, the Attorney General of Ontario and The Advocates Society were invited to make submissions and render assistance as friends of the court. The motion proceeded before Regional Senior Judge Daley. Following lengthy submissions, the Court wholly dismissed the motion.
The selection and eligibility of jurors is mandated by the Juries Act. The Court noted that section 32 to 34 of the Juries Act deals with challenges and does not permit a broad/general challenge for cause. Rather, the Juries Act only allows for challenges for cause in civil cases on two grounds: (1) for want of eligibility; and (2) for ratepayers and officers/servants of municipal corporations, where the municipal corporation is a party. The Court recognized that a broad/general challenge for cause should not be read into the legislation.
Given that none of the parties involved in this action were a municipal corporation, the only basis for a challenge for cause was want of eligibility, which is addressed in section 3 of the Juries Act. Section 3(3) states as follows:
Connection with court action at same sittings
(3) Every person who has been summoned as a witness or is likely to be called as a witness in a civil or criminal proceeding or has an interest in an action is ineligible to serve as a juror at any sittings at which the proceeding or action might be tried.
The Court noted that this provision does not automatically disqualify jurors with an interest in the action and, further, nowhere does the Juries Act expressly state that lack of impartiality is a ground to disqualify a juror based on ineligibility. The Court concluded that the proper interpretation of section 3(3) led to the conclusion that the word “interest” could only reasonably be construed contextually to refer to having a “connection” to an action. Specifically, “has an interest in an action” was limited to witnesses and prospective witnesses. As such, the Court concluded that only individuals who are or who are likely to be called as witnesses are ineligible to serve as jurors under section 3(3).
The Court held that the Canadian system presumes that jurors are capable of setting aside their views and prejudices and acting impartially upon proper instruction by the trial judge. The Court found that a number of safeguards exist to ensure the integrity of the civil jury process and trial fairness, including the ability of the Court to discharge a juror during the course of a trial on several grounds, including impartially. Therefore, the presumption of impartiality may be overcome or displaced by calling evidence or by asking the Court to take judicial notice of facts (or both). However, a successful challenge cannot be based on speculation or assumptions.
Notably, the Plaintiff tried to rely on a survey that had been commissioned by his counsel as evidence of widespread bias. The survey was conducted over two days in January 2017 in Brampton. The Plaintiff alleged that this survey was expert evidence. The questions posed in the survey dealt with (1) the impact of higher automobile insurance premiums on the persons interviewed and (2) whether they would seek to lower their own premiums by limiting the damages awarded in a motor vehicle case or whether they would award damages regardless of the impact it would have on their insurance premiums. Notably, the survey was submitted as an attachment to an affidavit sworn by a law clerk.
A Voir Dire was held to determine whether the survey was admissible. First, the Court held that the evidence in the survey was hearsay at best and that, generally, social science and survey evidence was of uncertain quality and reliability. Second, the Court noted that opinion evidence should not be in the form of reports attached to an affidavit of a deponent who has no personal knowledge of the contents of the reports, as this essentially insulates the expert from cross-examination.
Third, the Court expressed concern that the survey did not consider whether the respondents, as prospective jurors, would be capable of setting aside bias if instructed to do so, as these types of questions were not posed. Fourth, the survey only surveyed individuals who drove and paid for auto insurance. It did not survey a random or representative sample of people. As such, it was considered to have little to no relevance or probative value.
The Court ultimately concluded that survey did not meet the minimum requirements to constitute expert evidence. Accordingly, it could not be admitted as expert evidence. The Court went on to find that there was no evidence whatsoever that would demonstrate the presence of widespread bias among Brampton citizens against the Plaintiff.
This decision is important because it confirms that jurors are always presumed impartial. Parties are not able to exclude jurors based on an allegation of bias before trial has even commenced. It is certainly difficult to believe that juries would continue to be representative of the general population if large population groups, such as people who pay auto insurance premiums, could be routinely excluded from the jury pool.
Julianne defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, subrogated losses and general negligence claims. Read more...
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 plaintiffs’ claim relates to an incident that took place on September 8, 2013. On that day, a car being driven by the plaintiff, John Bertolli, drove through a pothole located on McCowan Road, in the City of Markham and the Region of York. Consistent with the requirements of the Municipal Act a notice letter was delivered to the City of Markham advising it of the accident, asserting it had been negligent in the upkeep of the road, was responsible for any damage suffered by the plaintiffs, asking that its property liability insurers be notified, and raising the prospect that an action would be commenced against it. The letter began as follows:
Please be advised that I have been retained by the above noted individuals in connection with personal injuries sustained while driving on McCowan Road, north of Dennison Street, Markham, on September 8, 2013.
The City of Markham (“Markham”) immediately wrote to counsel for the plaintiffs advising that the location of the accident fell under the jurisdiction of the Region of York (“the Region)”, within which Markham is located. Markham passed the letter it had received on to the Region. Counsel for the plaintiffs followed up and sent a letter to the Region, containing the same advice as the letter it had sent to Markham. In particular, it included the same introductory words as quoted above.
Brennan Paving and Construction Ltd. (“Brennan Paving”) was the road maintenance contractor identified as being responsible for the upkeep of the road at the location of the accident. The Region passed on the letter it had received to Brennan Paving.
The Statement of Claim was issued on August 27, 2015 naming the City of Toronto and John Doe Maintenance Company as defendants. The Claim notes the location of the accident as “northbound on McCowan Road, in the City of Toronto” and nothing more. It is important to note that parts of McCowan Road are located in the Region (which includes Markham) and other parts in the City of Toronto. At the time of the accident, and for the five years prior, Brennan Paving was not, and had not been, responsible for the maintenance on the part of McCowan Road that is located in the City of Toronto.
The Statement of Claim was served on the City of Toronto on September 1, 2015 and particulars of the exact location of the alleged accident were requested. In response, counsel for the plaintiffs advised that the “pothole was located in the northbound curb lane of McCowan Road, approximately 49 feet north of the white line/traffic lights at the intersection of McCowan Road and Dennison Street.”
Thereafter counsel for the plaintiffs began the process of bringing a motion to substitute the Region for the City of Toronto as a defendant in the action. Counsel also wrote to the Region asking for “…the legal name of the maintenance company”. No such letter was written to the City of Toronto prior to the issuance of the Statement of Claim.
Once Brennan Paving was identified, the plaintiffs served a Fresh as Amended Notice of Motion to amend the Statement of Claim to substitute the defendant City of Toronto with the Region and to substitute or add Brennan Paving.
The Master granted the motion allowing both the Region and Brennan Paving to be the defendants named in the action, based on the principle of misnomer.
Brennan Paving appealed the Master’s Order.
On setting aside the Master’s Order, the motion judge reviewed the doctrine of misnomer that states:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
The court held that the words “add” “delete” and “substitute” as found in the rule should be read each as modifying the authorization to “correct the name of a party incorrectly named”. The test, for misnomer, according to the court must start with the question:
How would a reasonable person receiving the document take it? If, in all of the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong,” then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then one is getting beyond the realm of misnomer.
Justice Lederer relied on the reasoning in the Court of Appeal decision, Essar Algoma Steel v Liebherrr (Canada) Co. to conclude that there are two questions to be answered:
Whether the failure of the plaintiffs to correctly name the Region as a defendant is a misnomer, and
Even if a misnomer occurred, should the Court exercise its discretion to refuse to permit the requested correction?
The court was clear that the onus or responsibility for identifying an otherwise unrecognized defendant lies with the plaintiffs and not the Region. The court also felt that it was incumbent on the plaintiffs to do something to figure out who, or what, John Doe Maintenance Company actually was, and they could have done so before issuing the Statement of Claim. It was relevant to the court that the accident occurred on September 8, 2013 and the Statement of Claim was not issued until August 27, 2015, nearly two years later. The court noted there was no reason why, during that time, a request could not have been made to the City of Toronto to determine the name of the maintenance company, and allowed the appeal.
The plaintiffs/respondents appealed. In dismissing the appeal, the Court of Appeal reviewed both the Master’s decision and the Superior Court’s decision and found that although the site of the accident, as identified in the Statement of Claim, was not particularized beyond alleging that it occurred on McCowan Road, in the City of Toronto, the Master concluded that the substituted defendants (the Region and Brennan Paving) would have known they were the intended defendants upon reading the Statement of Claim. The Master also assumed that the substituted defendants would have received a notice letter, delivered to them within days of the alleged accident, which would have identified the precise location of the alleged accident at a particular point on McCowan Road, which was in the Region when, in fact, the notice letter identified Markham as the relevant municipality. Markham forwarded the letter to the Region who, in turn, forwarded it to Brennan Paving.
The Court of Appeal held that even when read in combination, the notice letter and Statement of Claim were not capable of supporting an inference that the substituted defendants (City of Toronto and Brennan Paving) were the intended defendants. Without reference to the pothole in the notice letter and without particulars of the precise location of the accident alleged in the Statement of Claim, the reasonable reader could not know, without further inquiry, that the documents referred to the same accident. As the court states:
Put simply, the Master’s inference that the substituted defendants would know they were the intended defendants was not available on any reasonable view of the evidence. The Master’s order was properly set aside.
This decision clarifies the test for misnomer and makes it clear that it is the plaintiff’s responsibility to identity the proper defendant(s) and to take steps to make that determination before issuing a Statement of Claim.
The plaintiff was successful in his lawsuit against a speedway for injuries sustained while moving out of the way of a stock race car that came off its track. At the end of the seven-day trial in Belleville, the parties could not agree on costs.
In coming to its decision, the Court considered various issues, including the refusal of the defendant (i.e. the defendant’s insurer) to participate in mediation despite numerous proposals from the plaintiff for same.
The Court stated that while mediation was not mandatory for the jurisdiction, a party’s unreasonable refusal to mediate can attract an adverse costs award. The factors considered in such a determination include the nature of the dispute, the merits of the case, whether other methods of settlement have been attempted, whether the costs of mediation would be disproportionately high, whether mediation would delay a trial and whether the mediation had a reasonable prospect of success.
In this case, the Court found that the insurer took a “tough and uncompromising stance” in refusing mediation as, contrary to the insurer’s position, the facts of the case indicated that neither side had a strong position on liability. As such, the Court found that the defendant’s refusal to mediate deprived the parties of an opportunity to settle the case without the necessity for trial and without incurring substantial costs.
In practical terms, the Court would have awarded the plaintiff approximately $190,000 (plus HST) in costs but for the defendant’s unreasonable refusal to mediate, resulting in an award of $210,000 (plus HST).
This decision serves as a cautionary tale for those jurisdictions where mediation is not mandatory. In these jurisdictions, insurers should think long and hard before refusing to participate in a requested mediation as it may end up costing them in the end.
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.