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Thursday, September 29, 2016 @ 8:00 PM

Government Law - CROWN - Actions by and against Crown - Negligence by Crown - Practice and procedure - Discovery

Application by the plaintiff, Lindgren, for leave to appeal a chambers order regarding an examination for discovery. The underlying litigation arose from a 2008 motor vehicle accident. The plaintiff, now age eight, suffered devastating injuries. Parks Canada, a federal Crown agency, was one of the parties to the litigation. The plaintiff alleged Parks Canada was negligent for failure to ensure the reasonable safety of the highway, failure to salt, sand or plow the highway, and failure to properly maintain the highway and respond to dangerous road conditions. The plaintiff sought to examine Bergeron, one of the two snow plow operators on duty just prior to the accident. Parks Canada opposed the examination of Bergeron and instead designated DeMone, the associate director for highway service, as its representative. Under s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations, the Crown was entitled to designate its representative to be examined. The chambers judge found that Parks Canada’s proposed designate was not demonstrably unsatisfactory. The plaintiff sought leave to appeal. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Civil procedure - Parties - Class or representative actions - Certification - Common interests and issues - Members of class or sub-class - Procedure - Representative plaintiff

Appeal by the plaintiff, Warner, from refusal of certification of her proposed class action against the defendant, Smith & Nephew. The defendant was the manufacturer of the Birmingham Hip Resurfacing System (Birmingham System). The plaintiff had the Birmingham System implanted in her hip joint in a 2005 surgery. Three months later, the plaintiff noticed clicking and popping in the joint. A blood test showed elevated levels of cobalt. By 2012, the ion levels in the plaintiff’s blood were toxic. She consequently underwent further surgery to remove the Birmingham System in favour of a total hip replacement and bone graft. In 2013, the plaintiff commenced an action against the defendant for damages and applied for certification as a class action. Proposed class members were individuals in Canada who had the Birmingham system implanted and all qualifying dependants. The certification judge concluded that although the pleadings disclosed a cause of action, the other criteria for certification were not met. There was not an identifiable class of two or more persons, the claims did not raise a common issue, a class proceeding was not a preferable method for resolving the common issue, and the plaintiff was not a proper representative plaintiff. The plaintiff appealed. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Negligence - Duty and standard of care - Standard of care - Causation - Causal connection

Appeal by Ketler from decision dismissing Ketler’s action for damages for personal injuries. Ketler drove his vehicle through the side of a wooden bridge after swerving to avoid hitting a deer. In 2007, the Province of Nova Scotia implemented a new standard for timber bridges in the province (PR5076). The bridge was scheduled to be upgraded in 2014. Ketler commenced an action against the Province and alleged that the Department of Transportation and Infrastructure Renewal was negligent in the monitoring, maintenance, and failure to upgrade the structure. The trial judge found that the Province was not obligated prior to the accident to bring the bridge in line with the new standard, but rather than the Province’s obligation was to maintain the bridge to its original condition. The trial judge found that less than 50 percent of the barrier posts required replacement. In accordance with PR5076, this finding called for the barrier to be reinstated to the standard which applied to the original construction. The trial judge ultimately concluded that the Province failed to maintain the bridge to the standard of its original construction, and as such, breached its duty of care to Ketler. The trial judge further found that Ketler failed to establish causation on the basis that had the bridge been in its original condition, the vehicle would have likely broken through anyway. Ketler submitted that the trial judge erred by wrongly applying the legal test for causation, and erred in determining the standard of care to be met by the Province. ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Causation not proved, court back dismissal of case

Not applicable ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Health Law - Public health - Animals

Motion by Szalas to quash an appeal by Chirico, Medical Health Officer for the North Bay Parry Sound District Health Unit, from the dismissal of Chirico’s motion for a contempt finding against Szalas. Szalas owned a dog that bit people on four occasions. Chirico ordered him to relinquish the dog to the Humane Society to be euthanized. Szalas appealed from the order and, on conditions which included having the dog leashed and muzzled, obtained the return of the dog to him pending his appeal. Szalas was alleged to have breached the more serious of the conditions designed to keep the public safe from the dog pending the appeal, and was required to turn the dog over to the Humane Society. Szalas refused. A further order was issued with a deadline for Szalas to turn over the dog, failing which would result in the dismissal of Szalas’ appeal. Szalas failed to comply with the deadline and his appeal from the euthanasia order was dismissed. Szalas refused to relinquish the dog to an SPCA member who attended his residence to retrieve it. Chirico moved for a finding the Szalas was in contempt of the euthanasia order. The judge held that while Szalas deliberately sent his dog to the United States to avoid complying with the order, he did not fail to comply with the order to turn over the dog to the Humane Society, as it was the SPCA that attended to pick up the dog. Chirico argued on appeal that the judge erred in taking a formalistic approach to the issue of whether Szalas complied with the terms of the euthanasia order. ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Professional Responsibility - Regulated occupations - Occupations - Police officers - Duties

Appeal by the RCMP from a decision dismissing its motion for summary judgment to dismiss the action against them. The action arose out of a fatal motor vehicle accident in which the driver, Coady, collided with a tanker driven by the respondent Walsh. Both drivers were killed in the accident. The respondents alleged that the RCMP knew or should have known that Coady was impaired and not fit to drive or that his vehicle was mechanically unsound and unsafe to drive. On the day of the accident, Coady was observed to be mentally or physically impaired and driving dangerously. His dangerous driving was reported to the RCMP. An officer approached Coady in his vehicle, but then allowed Coady to drive away. The RCMP argued that the motions judge erred in law in concluding that the pleadings disclosed a cause of action against them and in improperly applying the Anns/Cooper test. The motions judge concluded that the case fell within the recognized class of cases involving a public authority’s negligent failure to act within established policies when it was foreseeable that the failure to do so might result in physical harm to a member of the community who was in geographic proximity. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Tort Law - Abuse of legal procedure or process - False arrest or imprisonment - Defences - Lawful authority - Arrest by private citizen

Action by Mann for damages for false imprisonment and personal injuries in relation to an incident at a Canadian Tire store in Toronto. Mann claimed he was threatened with death by a staff member after a security alarm sounded as Mann exited the store. He started filming and claimed he was forced to remain in the store while the police were called. He claimed further threats were made because he refused to stop filming and refused to delete the video he had recorded. Mann called a friend during his detention in the store, who advised him to play “chicken” with the staff who were preventing his exit, by slowing walking toward the exit. Mann claimed one staff member sought to block his exit with his foot and arm, but that he was able to leave the store. As he walked away, Mann turned to see two men running from the direction of the store. In fear they were chasing him to carry out their threats, Mann accidentally hit his head on a set of pipes nearby and sustained long-lasting injuries, including impaired concentration, headaches, insomnia, shoulder and back pain, indigestion and stomach pain. The video Mann took did not reveal that any threats were made or any force was used to detain Mann in the store. The security video showed Mann being treated calmly and professionally by staff who detained him out of concern that he was filming in the store. Police were called by the staff to verify that the filming was not illegal, after which Mann was permitted to leave. Canadian Tire moved for summary judgment to dismiss the false imprisonment claim based on shopkeeper’s privilege, and to dismiss the damages claim as too remote. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Transportation Law - Motor vehicles and highway traffic - Vehicle licensing - Registrar of vehicles - Conditions - Number plates

Appeal by the Registrar of Motor Vehicles from a determination that the Registrar acted unreasonably in revoking personalized licence plates issued to Maxwell, a criminal lawyer. Maxwell specialized in defending clients charged with impaired driving offences. In 2008, he was issued plates reading “DUI DR”. The plates were renewed each year without question, until 2015. The Registrar received a written complaint regarding the plates in November 2014, and two further separate complaints from MADD Canada and MADD Greater Fredericton, prior to making the decision to revoke the plates. The Registrar wrote to Maxwell to inform him the plates were erroneously issued in 2008 and to request the return of the plates within 14 days. Maxwell did not return the plates and the Registrar issued an order authorizing their seizure. The Registrar mailed new plates to Maxwell, which Maxwell returned. Both DUI DR plates were seized by June 2015. Maxwell sought judicial review of the Registrar’s decision to revoke the plates. The judge found that there had been a breach of procedural fairness and that the Registrar’s decision was unreasonable, as there was no evidence providing a basis for the decision. The judge ordered the Registrar to return the DUI DR plates and to pay $5,000 to Maxwell in costs. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

The problem with Pokémon

By now, most have heard of the phenomenon of Pokémon Go, a new app that uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train and battle digital Pokémon characters that appear onscreen in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go has become a real concern for liability insurers. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Start bar liability actions right

Gathering the right information at the beginning of an alcohol liability case is central to obtaining a fair and timely resolution. And yet, few if any resources exist to inform litigation lawyers about what constitutes “right information.” The following suggestions draw from my experience writing reports and providing testimony for over 60 alcohol-related lawsuits involving licensed premises and special occasion events in Ontario. ... [read more]