Summer 2018 – Newsletter

By Brian Sunohara

Recreational activities usually pose some risks.  Injuries can happen, but that does not necessarily mean someone is legally to blame.

In Martin v. Barrie (City), 2018 ONCA 499, the Court of Appeal dismissed an appeal by the plaintiffs in a lawsuit arising from an accident on a snow slide.

Facts

In February 2011, the City of Barrie hosted a Winterfest and Festival of Ice event.  One of the activities was a snow slide.  It was intended to be used primarily by children, but adults were also welcome to use it.

The main plaintiff’s two children went down the slide and were not injured.  The plaintiff then went down the slide.  Near the bottom, she dug in her heels to slow herself, and her buttocks struck a hardened piece of ice.  She felt immediate pain.

Trial Decision

In his trial decision, Justice Di Luca dismissed the plaintiffs’ claim.

Justice Di Luca went over the applicable law.  In particular, an occupier has a positive duty to take reasonable steps, in all the circumstances, to make the premises safe.  The standard of care does not require perfection.

The presence of a hazard does not necessarily lead to the conclusion that an occupier failed to meet the standard of care.  An occupier does not need to remove every possible danger.  Justice Di Luca noted that an injury, even a catastrophic one, does not in and of itself establish a breach of the duty of care.

Justice Di Luca found that the plaintiff hit a small piece of ice that had been buried under the snow in the landing area of the snow slide.

However, he was satisfied that the City of Barrie met the standard of care.  He found that the City took adequate and reasonable steps to safeguard guests who were using the snow slide.

Justice Di Luca indicated that the snow slide had a gradual slope.  It was not steep or tall.  Staff were positioned at the top and bottom of the hill, observing and directing the flow of guests.  Staff at the bottom of the hill were equipped with a shovel and were instructed to smooth out the landing, as well as fill in patches of snow.

The plaintiff testified that she heard a City employee say “I have to fill this again”, referring to filling in a hole in the snow.  Justice Di Luca stated that this demonstrated the City’s employee was paying close attention to the condition of the landing and was moving quickly to fill in a gap or a patch in the snow as would be expected.

Justice Di Luca did not find the small piece of ice to be a hazard that the City should have been reasonably required to address in order to meet the standard of care.

Appeal Decision

The Court of Appeal rejected the plaintiffs’ three grounds of appeal and dismissed the appeal.

The plaintiffs first argued that the trial judge made a palpable and overriding error by concluding that the chunk of ice was “small”.  The Court of Appeal did not accept this submission.  The plaintiff herself testified that the chunk of ice was about four to six inches in size.

Secondly, the plaintiffs argued that the trial judge erred in the inference he drew from the statement of the City’s employee regarding filling in the snow again.  The Court of Appeal saw no error with the trial judge’s conclusion that this statement supported that the City’s employee was paying close attention.

Lastly, the plaintiffs submitted that the trial judge erred in his analysis of the standard of care.  The Court of Appeal stated that the trial judge did not make an error of any kind, let alone a palpable and overriding error, in his analysis of the evidence and his application of the relevant negligence law principles to the evidence.

Conclusion

Accidents are bound to happen in recreational activities.  Those who operate recreational facilities are required to take reasonable steps to reduce the risk of injury.

However, it is impossible to remove every risk, and the courts do not expect perfection.

The trial judge indicated that “sliding down a snow slide is as Canadian an activity as one can imagine”.  He noted that generations of parents and children have participated in and enjoyed this activity over the years.

Although not stated by the trial judge or the Court of Appeal, placing too heavy a burden on operators of recreational facilities, particularly not-for-profit organizations, could have a chilling effect, leading to fewer activities being made available to the public.

The decision reached by the trial judge, and upheld by the Court of Appeal, is a sound one.

By Stephen Ross 

The Supreme Court of Canada recently released its decision in Groia v. Law Society of Upper Canada, 2018 SCC 27. The appeal was allowed and the Law Society appeal panel’s finding of professional incompetence was overturned.

Majority Decision

The majority of the Court found that professional misconduct allegations arising from counsel raising issues of prosecutorial misconduct, or impugning the integrity of opposing counsel, will be undertaken on a broad contextual basis.

As part of the analysis, the majority agreed with the Law Society panel’s decision that such allegations of impropriety on the part of opposing counsel could only be made if they are undertaken in “good faith” and there is a “reasonable basis” for the allegation.

The majority, the panel and, indeed, the dissenting judges of the Supreme Court of Canada part company in the interpretation of the “reasonable basis” requirement.  The majority found that a lawyer can be seen to have a “reasonable basis” even if the underpinning of that basis is an error of law, even an outrageous or egregious one.

In this case, Mr. Groia was under the mistaken understanding of the prosecutor’s obligations and of certain key evidentiary aspects of the hearing.

It was as a result of his misunderstanding of the law, among other contextual issues, that Mr. Groia believed the prosecution to be engaged in prosecutorial misconduct.

This was sufficient to dispose of the matter from the perspective of the majority.  In other words, if one viewed the matter as Mr. Groia did, in terms of his mistaken assumption regarding the Crown’s obligations and the rules of evidence, his allegations of misconduct had a reasonable basis.

The majority considers the “reasonable basis” test to be comprised simply of a factual foundation to underpin the (even incorrect) genuinely held, but mistaken, belief in the improper conduct of opposing counsel.

Here, Mr. Groia was under the mistaken belief that the prosecutor had a legal obligation to not only disclose, but tender into evidence, all relevant and even exculpatory documents and evidence.  This was clearly wrong in law.

However, based on this legal [mis]understanding, Mr. Groia believed that the prosecutor’s failure to abide by this erroneous obligation to be evidence of prosecutorial misconduct.

The majority takes the position that gross legal errors should not be considered at this stage of the legal test; rather, they would form part of the “good faith “aspect of the test.  In other words, the more outrageous the erroneous legal belief, the more unlikely it is that it is actually, or genuinely, held.

Moreover, the majority found that professional misconduct allegations based on outrageous or egregious legal errors would be better left for criticisms with respect to a lawyer’s competency rather than incivility.

Dissent

Conversely, the Law Society appeal panel and the Supreme Court of Canada dissent were of the view that errors of law can be so egregious that submissions based on those errors can have no “reasonable” basis.

The dissent found that allegations, although advanced in good faith, may nevertheless constitute professional misconduct if they have no “reasonable” legal basis.

The dissent notes that the majority test creates a “mistake of law” defence to allegations of professional misconduct, at least those based on allegations of incivility.

The dissent feels the majority has rendered immune from sanction, conduct based on honest but mistaken belief in an opposing counsel’s obligations, irrespective of how baseless or ill-informed that legal belief.  This is an interesting and controversial approach to evaluating the professional (mis)conduct of a legal professional.

Commentary

Regardless of one’s personal views of the case, the majority approach, of course, rules the day and the law of the land has now been set.

It is clear that allegations of professional misconduct based on incivility must consider both whether counsel had a good faith basis for his or her allegations of the misconduct of others, as well as having a reasonable, factual basis, irrespective of the legal foundation upon which the factual claim is set.

If one has a good faith but mistaken belief with respect to the legal and ethical obligations of opposing counsel, one need only have a factual basis for the belief (the person did not do the thing they are actually not required to do), notwithstanding how egregious or ill-informed one’s position is in law as it relates to the rules of evidence or the obligations of opposing counsel.

In short, it appears there is, indeed, as the dissent indicates, now a mistake of law defence to allegations of professional misconduct as it relates to civility in the courtroom.  As the adage goes, hard facts make bad law and one gets a sense of how far the majority had to go to shape the law in a fashion such that Mr. Groia’s conduct did not run afoul of it.

It is apparent, from a review of the decision, that much rested on the fact that Mr. Groia’s mistaken views were honestly held, based on his misunderstanding of the law; and that those views went unchecked and uncorrected until phase two of the proceedings, after which Mr. Groia’s conduct was said to have been appropriately altered.

As such, it would seem it is now all the more important for the court (urged upon by opposing counsel being unfairly maligned) to intervene to advise and instruct the accusatory counsel of his or her misunderstanding of the legal obligations of his or her opponent.  It would appear clear that once the legal misunderstanding was removed, any and all defences of Mr. Groia’s (and other accusatory counsels’) behaviour would fall away.

In short, it would seem that all players in the administration of justice have a role to play in ensuring that trials are fought fairly, in a manner in which fearless advocacy can still be fostered; but incivility is not.

By Kevin Adams & Alon Barda

In Mary Shuttleworth v. Licence Appeal Tribunal[1], a three judge panel of the Divisional Court scrutinized the internal review process for decisions of the Licence Appeal Tribunal (LAT).

As a result of the problems revealed,[2] changes will likely need to be made to the LAT’s consultation process to ensure that it does not create a reasonable apprehension of lack of independence.

LAT Decision

The LAT adjudicator in Shuttleworth issued a decision finding that the Applicant was not catastrophically impaired. However, several months after the decision was released, counsel for the Applicant received an anonymous note from someone within the LAT.

The note explained that the adjudicator initially found the Applicant to meet the definition to be considered catastrophically impaired, but the executive chair of the Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO)[3] reviewed the draft decision and “changed the decision to make the Applicant not catastrophically impaired”.

The Applicant sought information from the LAT about how the decision was reached and it was revealed that, pursuant to an unwritten review process imposed by the executive chair, the legal department sent the adjudicator’s draft decision to the executive chair for review and comments.

In turn, the executive chair provided comments to the adjudicator and the adjudicator thanked the executive chair for the helpful review of the decision and noted that she was working on revising the decision. The adjudicator then made further revisions and the decision was released.

Arguments at Divisional Court

At the Divisional Court, the Applicant argued that the decision was deficient as consultation was imposed on the adjudicator by the executive chair and there was reason to believe the executive chair changed the decision, particularly since the LAT refused to provide evidence regarding the nature of the changes made to the draft decision.

In response, the LAT argued that its decision-making is a consultative process. The LAT explained that the review is not intended to question the facts and evidence or to comment on the ultimate decision, and adjudicators cannot be compelled to participate in the review process.

Affidavit evidence was presented to explain that the executive chair implemented the decision review process to maximize the quality of LAT decisions. This unwritten policy called for:

• an initial peer review by the Duty-Vice Chair (to improve clarity and ensure the correct legal test was applied);
• legal review by SLASTO Legal Services (to ensure the correct legal test has been applied and to identify related caselaw that may be helpful);
• a second peer review to the executive chair in rare instances (for example, if a decision involves a novel, contentious, precedent-setting, or high profile issue); and
• review by the file’s case management officer (i.e. for formatting and spelling).

Counsel for the LAT advised that it was important for the executive chair to review decisions and offer suggestions, particularly in Shuttleworth, since this was the first decision on catastrophic impairment by the LAT.

Divisional Court Decision

The Divisional Court observed that an institutional consultation procedure itself would not create an apprehension of bias or lack of independence provided basic principles are followed to ensure compliance with the rules of natural justice.

However, the Court cautioned that the consultation cannot be imposed by a superior level of authority within the administrative hierarchy, but can only be requested by the adjudicators.

The Court noted that the absence of a written policy regarding this review process is significant considering that the applicable legislation contains a “very formal process to ensure the accountability of tribunal members and officers both internally and to the public”.

In this regard, no documents were provided to outline the LAT’s review process, nor did the LAT advise that the process was adopted and published in accordance with the statutory process.

As a preliminary issue, the Court found that the application for judicial review may proceed even though the LAT’s internal mechanisms of appeal had not been exhausted (reconsideration by the executive chair and/or an appeal).

The Court then looked at the central issue of whether there was a reasonable apprehension that the adjudicator did not arrive at her decision independently.

As the Applicant did not cross-examine on the affidavit filed by the LAT, the Court accepted that the adjudicator has complete discretion to accept or reject any revisions offered and also the extent to which further drafts or revisions are shown to the reviewer before releasing a decision. As such, on the evidence, the Court was “unable to conclude that the adjudicator did not make her decision independently.”

Nevertheless, the Court highlighted that an important rule of consultation as set out by the Supreme Court of Canada in Ellis-Don Ltd. v. Ontario (Labour Relations Board)[4] was contravened in this case, as review was imposed by the executive chair (a person with supervisory level of authority within the administrative hierarchy).

Furthermore, consultation was not requested by the adjudicator and there was no formal written policy protecting the adjudicator’s right to decline to participate in review by the executive chair, or to decline to make changes proposed by the executive chair, notwithstanding the statutory accountability process that called for one.

Ultimately, the Court concluded that the adjudicator’s decision was subjected to a peer review process that did not contain the necessary safeguards of adjudicative independence and this failure to comply with the rules for consultation creates a reasonable apprehension of lack of independence. The decision of the adjudicator was therefore set aside and referred back to the LAT for a new hearing.

Importantly for the LAT, there was no finding of any actual impropriety having occurred, as the Applicant did not prove the executive chair did anything to force the adjudicator to change the original decision.

The fact that the adjudicator thanked the executive chair for her assistance in what was a difficult decision for her to complete, undermines the suggestion in the anonymous letter that the adjudicator was pressured to change her decision.

This is significant as a finding to the contrary would have called into question the overall independence of the adjudicative process at the LAT and could have impacted the many decisions already rendered by the tribunal.

Conclusion

As it stands, the decision by the Divisional Court in Shuttleworth is still significant in that the Court found that the consultative decision-making process followed by the LAT did not meet the minimum standards required to ensure both the existence and the appearance of independence of the adjudicator’s decision.

The Court aptly stated that “justice must not only be done” but also must “be seen to be done”.

Moving forward, the LAT should ensure that there is a written policy setting out a properly limited, voluntary consultative process in order to ensure that an informed and cautious observer would have no reasonable basis to believe that decisions by the LAT are anything but independent decisions of the appointed adjudicators.

[1] 2018 ONSC 3790.

[2] Considering the importance of this case, we can anticipate the LAT appealing the decision to the Court of Appeal.

[3] SLASTO is a cluster of adjudicative tribunals comprised of five tribunals, including the LAT.

[4] [2001] 1 SCR 221 citing IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R.

By Stephen Ross & Jonathan G. Mahoney

On April 30, 2018, the Ontario Court of Appeal released its decision in 1688782 Ontario Inc. v. Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc., 2018 ONCA 407 (“Maple Leaf Foods Inc.”). This case highlights the importance of properly defining and identifying the scope of any duty of care arising from a relationship between commercial parties.

Background/Facts

In August 2008, certain Maple Leaf brand ready-to-eat (“RTE”) meats became contaminated with listeria monocytogenes at dangerous levels. Some people fell seriously ill and even died as a result. Naturally, media attention followed and it was reported that RTE meats as supplied by Maple Leaf were being sold by certain food sellers, including McDonalds and Mr. Sub.

1688782 Ontario Inc. v. Maple Leaf Foods Inc. is a certified class action[1] where Mr. Sub franchisees allege that Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc.  (“Maple Leaf”) negligently supplied contaminated meat products that were not fit for human consumption to various Mr. Sub locations.

Although no Mr. Sub customer was harmed by any Maple Leaf supplied product, Mr. Sub claims that the franchisees suffered economic losses arising largely from the reputational harm from being linked to Maple Leaf, and therefore the 2008 listeria outbreak.

Mr. Sub claims damages for loss of past and future sales, past and future profits, and loss of capital value and goodwill. It also claims damages for clean-up costs and other costs related to the disposal, destruction and replacement of RTE meats.

Maple Leaf brought a summary judgment seeking dismissal of certain claims on the basis they owed the plaintiff no duty of care. In the alternative, Maple Leaf sought a dismissal of the claims for damages arising out of pure economic loss, namely alleged loss of past and future sales, past and future profits, loss of capital value of the representative plaintiff’s franchise and business, and loss of goodwill.

In the motion decision, Justice Leitch found that Maple Leaf owed a duty of care to Mr. Sub in relation to the production, processing, sale and distribution of the RTE Meats. This duty was described as “a duty to supply a product fit for human consumption.”

The Appeal

Maple Leafs appealed, maintaining that the motion judge erred in finding that:

1. Maple Leaf supplied the plaintiff with a defective product dangerous to public health;
2. This case falls within a recognized duty of care such that Maple Leaf owes the Mr. Sub franchisees a duty of care; and
3. Damages for pure economic loss are recoverable.

Following the appeal hearing on October 31, 2017, the Supreme Court of Canada released its decision in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (“Livent”), which had a direct impact on Maple Leaf’s appeal as it clarified the analytical approach to identifying a duty of care, especially in negligent misrepresentation claims. Accordingly, the parties were provided with the opportunity to file additional written submissions.

Analysis

The Court of Appeal held that the motion judge made three fundamental errors in her duty of care analysis:

1. No recognized duty of care

The motion judge erred in finding that the relationship between Maple Leaf and the Mr. Sub franchisees fell within an established category of relationships in which proximity had already been found to exist, therefore giving rise to a duty to supply a product fit for human consumption.

The Court of Appeal held that the judge improperly relied upon distinguishable cases in coming to this conclusion. The decision in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (“Livent”) had not yet been released when the motion judge made her decision.

In Livent, the Supreme Court of Canada cautioned against finding proximity based upon a previously established or analogous category, stating that the particular relationship at issue in each case need be examined.

The Court of Appeal found that there were fundamental differences between this case and the cases relied upon by the motion judge such that a full Anns/Cooper analysis was required to determine whether there was a duty of care.

2. Failing to consider the scope of proximity of relationship

The first stage of the Anns/Cooper test raises the question of whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm. If loss is foreseeable, a prima facie duty of care arises.

Next, it must be considered whether there are policy reasons why this prima facie duty of care should not be recognized.

The Court of Appeal concluded that the motion judge erred in failing to consider the scope of the proximate relationship between the parties or the scope of any duty of care arising from it (the first step of the Anns/Cooper test) and in concluding that the duty to supply a product fit for human consumption encompassed a duty of care to protect against the economic losses.

Writing for the Court, Fairburn J.A. stated:

[66] To conclude that Maple Leaf owed a duty of care in tort to the franchisees to protect them against the kinds of damages at issue on this appeal would be to enlarge the duty to safeguard the health and safety of customers by supplying fit meat to include a quite different and added duty to franchisees to protect against reputational harm. In my view, to do so would constitute an unwarranted expansion of a duty owed to one class of plaintiffs and extend it to the fundamentally different claim advanced by the franchisees. In other words, the franchisees cannot bootstrap their claim for damages for reputational loss to the different duty owed by Maple Leaf to their customers.

[68] Simply put, the type of injury claimed – economic losses arising from reputational harm – did not fall within the scope of any duty owed to the franchisees.

[69] In light of these conclusions, it is unnecessary to address the issue of whether there are any residual policy considerations that would negate the imposition of a duty of care…

3. No duty of care in the negligent misrepresentation context

In the context of the claim for negligent misrepresentation, the motion judge erred in failing to consider the scope of the proximate relationship between the parties.

In Livent, two factors were identified as being determinative when conducting a proximity analysis in a case of negligent misrepresentation: (1) the defendant’s undertaking and (2) the plaintiff’s reliance.

The Court of Appeal held that:

[80] …Maple Leaf undoubtedly undertook – in the context of its contractual relationship with the franchisor – to supply meat safe for human consumption by Mr. Sub customers. The nature or purpose of such an undertaking was to ensure that Mr. Sub customers who ate RTE meats would not become ill or die as result of eating the meats. The purpose of the undertaking was not, however, to protect the reputational interests of the franchisees.

[84] …The reputational damage said to be sustained by the plaintiff, arising from Maple Leaf’s supply to others and from the recall – aimed at safeguarding health and safety – falls outside the scope of Maple Leaf’s undertaking to the franchisees. Accordingly, the alleged injury was not reasonably foreseeable.

The reputational damage alleged by the franchisees was said to flow from the supply of tainted meat to others (not Mr. Sub franchisees or customers) and the recall of potentially tainted meat from Mr. Sub franchisees.

Given the source of the alleged damage, the Court of Appeal found that it fell outside the scope of Maple Leaf’s undertaking to the franchisees and that the alleged injury was not reasonably foreseeable.

The Takeaway

In sum, the takeaway from Maple Leaf Foods Inc. is that it is important to properly define the scope of any duty of care arising from a relationship between parties, particularly commercial entities.

There has to be a link between the duty of care and the damages suffered. Simply establishing a duty of care is not sufficient. The scope of the duty of care that is alleged must be broad enough to encompass the nature of the damages claimed, and the damages claimed must flow from a breach of the duty of care as defined.

In many cases, the existence of a recognized duty of care is simply assumed or looked at from a broad perspective. The Maple Leaf Foods Inc. and the Livent decisions serve to remind counsel and parties that careful consideration needs to be given to the specifics of a claim before the existence of a duty of care can be recognized.

In this situation, it is undeniable that there would be a duty of care as between a supplier (Maple Leaf) and a retailer (Mr. Sub) as it relates to certain types of losses such as harm caused to its customers. However, the Court of Appeal made clear that the duty must relate to the very damages claimed which, in this situation, was said not to include economic losses arising from reputational harm.

As such, going forward, the analysis of whether a duty of care exists must include a focus not just on the relationship between the parties but also the nature or type of injury being claimed.

An issue arises when many different categories of losses are advanced as against a party. It would appear that a duty of care is not an all or nothing proposition. A duty may be owed as it relates to some losses and not others. Therefore, the focus must not only include a consideration of the damages sought but on each category of damages claimed.

Livent and Maple Leaf Foods Inc. demonstrate just how critical it is to carefully consider and categorize the various heads of damages pursued to determine whether a duty of care exists for some, none, or all of the claims advanced.

[1] 1688782 Ontario Inc. is the representative plaintiff, representing a certified class of Mr. Sub franchisees.

By Tom Macmillan

The Federal Government has set November 1, 2018 as the date on which certain sections of the Digital Privacy Act will come into effect. This Act amended the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

On the same date, the new Breach of Security Safeguards Regulations will also come into effect.  The Regulations, in particular, impose significant new obligations on organizations, and steps should be taken to ensure that companies are ready for November 1, 2018.

PIPEDA is federal legislation that applies to organizations throughout Canada, save for those in provinces that have implemented substantially similar requirements.  Currently, PIPEDA governs the use and disclosure of personal information in all provinces other than Alberta and Quebec. It also applies to some organizations in British Columbia.

The most significant changes relate to mandatory reporting of data breaches.  Below is a brief run-down of the key changes, and how organizations can begin to get ready.

Report to the Privacy Commissioner

Under the new Regulations, an organization that experiences a privacy breach that poses a “real risk of significant harm” to an individual must report the breach to the Federal Privacy Commissioner. Reporting must be done as soon as feasible, and must be in writing.

Some guidance has been provided on what constitutes a “real risk of significant harm.” An incident should be considered to pose such a risk if it includes:

• bodily harm
• humiliation
• damage to reputation or relationships
• loss of employment or professional opportunities
• financial loss
• identity theft
• negative effects on the credit record
• damage to or loss of property

In the event that an organization deems a breach to pose such a risk, then a report to the Commissioner must include at least the following:

• the circumstances of the breach
• the cause, if determined at the time
• the personal information that was the subject of the breach
• the date or period of time of the breach

Notice to Affected Individual(s)

In addition to reporting requirements to the Commissioner, the new Regulations mandate that organizations notify individuals affected by the breach. Such notification must be made in person, or by email or telephone, unless it would be prohibitively expensive to do so, the organization does not have the affected individual’s contact information, or contacting the affected individual would cause further harm.

In terms of the content of such notice, organizations are required to provide at least the following:

• the circumstances of the breach
• what information was exposed as part of the breach
• the date or period of time of the breach
• the steps taken by the organization to reduce the risk of harm resulting from the breach
• the steps that the affected individual can take herself to reduce the harm resulting from the breach
• a toll-free telephone number and/or email address that the affected individual can access to obtain further information about the breach
• details of the organization’s internal complaint process and the affected individual’s rights relating to filing a formal complaint with the Commissioner

Record-Keeping

In addition to requirements related to reporting, the new Regulations impose on organizations an obligation to retain records of any and all breaches for a period of at least two years following the date of a breach.

The new Regulations have teeth as well, granting the Commissioner the right to compel such records, and the discretion to impose a fine of up to $100,000 on organizations that knowingly fail to abide by the above reporting requirements.

Notice to Other Organizations

The new Regulations require that an organization which is the subject of a breach with real risk of significant harm may also be required to advise government entities or other organizations of the breach, if the organization believes that doing so would reduce the risk of harm from the breach. The new Regulations provide no further clarity on the content of such notice.

Are You Ready?

Given the ever-increasing focus in the media on the misuse of individuals’ data and information, there is every reason to believe that the new data breach notification obligations will be taken seriously.

In addition to having in place the necessary policies and procedures within an organization for the collection and retention of records relating to breaches, companies would be wise to train their staff on the identification and timely reporting of breaches.

There may be room to debate whether specific breaches are likely to cause a real risk of significant harm, but it can be assumed that there will be little sympathy afforded those organizations that do not plan properly and do not have in place the proper policies and training by November 1, 2018.

By Brian Sunohara

In Turcotte v. Lewis, 2018 ONCA 359, the plaintiff was assaulted after going to a bar in Muskoka and taking a bus back to Barrie, Ontario.

On a summary judgment motion, the court dismissed the lawsuit as against the bar, a security guard, the bus driver, and the bus company.  However, the Ontario Court of Appeal overturned the decision and remitted the case to trial.

Facts

A bar in the Muskoka region held “resort nights” in which it arranged for a bus service to pick up guests, bring them to the bar, and return them at the end of the evening.

On the night in question, the bus departed the bar between 1:30 and 2:00 a.m. and headed for a plaza in Barrie.  A dispute arose on the bus.  The defendant, Aaron Lewis, pushed the plaintiff.  A security guard, who was hired by the bar, separated them.  There was jeering and shouting on the bus.

The security guard learned that someone at the back of the bus had “called ahead for backup”.  Concerned that the situation might escalate and that violence might occur when the bus got back to Barrie, the security guard called the police in Barrie asking that a cruiser meet the bus on arrival.  The bus driver slowed the bus in the hope of giving the police time to arrive at the plaza.

When the bus got to the plaza, the police had yet to arrive.  The security guard noticed that the cousin of Aaron Lewis was there.  The security guard knew that the cousin had a tendency to get involved in physical altercations.

The security guard and the bus driver permitted the plaintiff to get off the bus first to give him a head start.  The security guard told the plaintiff to leave the area.  However, the plaintiff did not immediately leave.

The plaintiff was surrounded by a group of people, including Aaron Lewis and his cousin.  He was punched and fell to the ground, striking his head on the pavement.  He suffered a traumatic head injury.

Summary Judgment Motion

The bar, the security guard, the bus driver, and the bus company (“the defendants”) brought a summary judgment motion.  The motion was granted.

The motion judge stated that the defendants fulfilled their duty to take reasonable steps to ensure that the plaintiff was safe while he was at the bar and while being transported to the plaza in Barrie.

Further, the motion judge rejected the allegations that the defendants failed to take measures in response to the escalating tension on the bus, such as diverting from the route and going to a police station or to another secure location.

The motion judge concluded that the defendants could not have known that the plaintiff would stop in the parking lot, instead of following the suggestion to move along.  Moreover, the defendants did not have authority to detain a passenger on the bus.

Lastly, the motion judge rejected the plaintiff’s argument that he was unaware of the risk.

Appeal Decision

The Court of Appeal allowed the plaintiff’s appeal, determining that a trial is necessary.

The Court of Appeal stated that the motion judge did not properly define the standard of care.  The standard of care had to account for the circumstances as they unfolded during the bus ride and when the bus arrived at the plaza.

The motion judge did not articulate her conclusions on the likelihood of foreseeable harm, the gravity of that harm, or the reasonableness of measures that could have been taken to prevent it.

The Court of Appeal indicated that the motion judge absolved the defendants of liability because the plaintiff was as aware of the risk as the defendants were.  This improperly put the responsibility of avoiding the risk entirely on the plaintiff, without considering the defendants’ duty to him.

The fact that the plaintiff ignored the advice to leave the area immediately would not necessarily relieve the defendants of liability if the defendants put the plaintiff in a dangerous position.  However, it could be relevant to the issue of contributory negligence on the plaintiff.

Overall, the Court of Appeal held that the motion judge significantly understated the standard of care.  The bar catered to a large number of youthful customers.  The bar provided transportation through the services of a bus company so that customers could drink without driving.  The bar also provided security to address the foreseeable risk of violence between customers.

The Court of Appeal stated that the defendants were aware of a clear and substantial risk of violence when the bus arrived in Barrie.  Harm was reasonably foreseeable.

There were means available to protect the plaintiff, such as by telling him to not get off the bus until the police arrived, or by accompanying him to a place of safety, or by delaying the arrival of the bus until the police arrived.

Conclusion

According to the Court of Appeal, on a summary judgment motion in a negligence action, a motion judge should conduct a robust analysis of the standard of care.  This analysis needs to take into account the context of the incident.

Even when a plaintiff has an opportunity to prevent an incident from occurring, a defendant still has a responsibility to address foreseeable risks.

There is a duty to not place another person in a position where it is foreseeable that the person could suffer injury.  This can encompass many situations, such as ejecting an intoxicated customer from a bar or permitting an intoxicated person to engage in a recreational activity.

When faced with a challenging situation, it is often best to put yourself in the shoes of the other person and come up with a common sense solution.

By Brian Sunohara

In Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, Justice Mew stated that, even when a mediation is not mandatory, the court can take into account a party’s refusal to mediate in determining costs.

Following a seven day jury trial, the plaintiff recovered significantly more than the defendant’s last settlement offer, which Justice Mew described as little more than a nuisance offer.

The trial was heard in Belleville, Ontario, which does not have a mandatory mediation program.  The defendant and its insurer were not willing to engage in a mediation, despite the plaintiff’s request to do so.

Justice Mew indicated that, in England and Wales, an unreasonable refusal to mediate can trigger cost consequences.  However, he noted there is also the view that plaintiffs should not be able to use the threat of a cost sanction to extract a settlement from defendants even when a claim is without merit.

Justice Mew stated that the reasons given by the jury showed that neither side had a strong position on liability.  As a result, declining an offer to mediate was unreasonable.

Although Justice Mew indicated that defendants do not have to settle, he stated that, if reasonable opportunities to mediate are spurned, that can be a relevant factor when fixing costs.  He suggested that hardball positions taken by a party should not be condoned.

The cost penalty to the defendant for refusing to mediate was approximately $20,000.

This case demonstrates that, even when a mediation is not mandatory, parties should give careful consideration before refusing to mediate.  The courts strongly encourage settlement and do not look favourably upon unreasonable settlement positions.

That being said, plaintiffs who have weak cases should not request a mediation as a tactical ploy to attract cost sanctions.

• The Spring of 2018 was an exciting time at Rogers Partners, with many of our lawyers appearing before the courts in interesting matters.

• In March, Stephen Ross and Meryl Rodrigues were counsel at the Court of Appeal in a sexual abuse case. The case could have important implications on the admissibility of expert evidence. The decision is under reserve.

• Erin Crochetiere was successful in a Small Claims Court trial in April. Erin represented the defendant, a municipal housing corporation. The action arose out of the alleged theft of jewelry during pest control operations. The plaintiff’s claim was dismissed.

• Andrew Yolles was successful in a summary judgment motion in May. The court accepted Andrew’s arguments that the plaintiffs’ subrogated claim was barred due to the plaintiffs’ breach of contract.

• In May, Kevin Adams and Erin Crochetiere were successful in the dismissal of a priority dispute arbitration. The arbitrator accepted that the first party insurer was not entitled to reimbursement of benefits paid. A driver had a heart attack and died.  The arbitrator held that the death was not caused by an automobile accident.

• In May, Stephen Ross and Gemma Healy-Murphy were counsel at the Court of Appeal in a rare five-member panel appeal which addressed significant issues related to auto claims. The decision is under reserve.

• In May and June, Anita Varjacic and Rebecca Moore have been involved in a four week jury trial in Brampton. The case involves a death at an assisted living home. At the time of publishing this newsletter, the jury was deliberating.

• Brian Sunohara was counsel at the Court of Appeal in June. Brian represented a defendant in a case involving the alleged improper installation of an HVAC system. The plaintiffs appealed a judgment in which their claim was dismissed on the basis of missing the limitation period. The Court of Appeal’s decision is under reserve.

• Stephen Ross has been selected as Chair of the Personal Injury & Insurance Practice Group for The Advocates’ Society. Stephen looks forward to assuming this leadership role.

• Tom Macmillan has been selected as a member of the Young Advocates’ Standing Committee for The Advocates’ Society. Tom is eager to lend a voice to the future of the profession.

• In May, an article written by Brian Sunohara on the duty of an occupier was published in The Lawyer’s Daily. Brian addressed best practices for retail stores and other occupiers.

• In June, an article written by Brian Sunohara, entitled “Two Impactful Court of Appeal Decisions Affecting Auto Claims”, was cited in the on-line version of Canadian Underwriter.

• Erin Crochetiere and Emily Vereshchak have successfully completed their articling terms and are being called to the bar in June. We are thrilled that Erin and Emily will be returning to the firm as associates in July.

• We are very pleased to announce that we have hired two more associates to join our team. Christine Lau and Robert Forderer will be starting with us in July.

• Rogers Partners looks forward to welcoming two bright and keen articling students, Sara Baum and Colleen MacKeigan, to the firm in July.

It’s 10:00pm, do you know where your carefully cultivated online image is?

It came likely as a shock to many not familiar with the advancements in artificial intelligence and facial recognition, when Facebook announced that it has implemented a program that can tag a user in photographs without any input or confirmation by the user herself.  The program uses the vast database of photographs of the user already at its disposal on Facebook, and applies that to additional photographs to see if the user is in those as well.

Apparently the program is pretty good at what it does. That many find this unsettling is evident from the fact that entering “Facebook facial recognition” into Google results in dozens of articles on how to disable the feature.

The fact is that Facebook has been using facial recognition for years. There is recently, however, increased scrutiny on how data and privacy in our digital lives has been managed and mismanaged by the honest folk in Silicon Valley and beyond.

Most notably, the global scandal involving the sharing of user data by Facebook with Cambridge Analytica without users’ consent placed a bright spotlight on the extent to which information is shared, and the paucity of rules governing this exchange.  Facebook itself conceded that as many as 600,000 Canadians may have had their data shared with the British company, without their knowledge or consent.

Leaving aside debates over appropriate regulation of the internet, what I found most interesting about the fallout from all of this is that it has been met largely with a collective shrug from a public that has grown increasingly comfortable with the erosion of personal privacy.  Anecdotally, I know not a single person who has sworn off social media and Google in the wake of this scandal, and I suspect it is not the reassuring words of Mark Zuckerberg that kept everyone on board.

In the world of personal injury litigation, social media can be a vast source of information about an individual claiming that her quality of life has been altered by an accident. In my experience, my requests for production of photographs from a person’s social media profiles are almost always refused by counsel.

This is not because the information is not relevant (more than often it clearly is), but because counsel recognizes that allowing an opposing party to enter into the digital life of an individual is letting an adversary uncomfortably close. In the past, the retention of a private investigator was the only way for a defendant to observe a plaintiff in her daily life, and to see whether alleged daily limitations were observed.

Now, through a person’s social media profile, any observer is there at a plaintiff’s birthday, vacation, and (gulp!) aerobic salsa class. Counsel for plaintiffs understandably default with refusing the request, and roll the dice on the defendant not bringing a motion on the refusal.

But if a person’s social media profile has the potential to scuttle a personal injury case, then why do individuals continue to post throughout the course of a lawsuit?  Why not shutter one’s digital persona temporarily and eliminate that risk altogether?

But then again, why do we still post on social media when we know without doubt that our personal data is shared without our explicit consent, with unknown parties around the globe with an interest in manipulating us?

I think for many, it is now almost inconceivable to picture a life without a digital component.  This is a remarkable progression, given that Facebook and Twitter are not even twelve years old. While this attitude is strongest amongst younger Canadians, the fact that my mother became an Instagram user last year shows that we are all moving away from, not toward, unplugging.

The courts must catch up to the reality that social media is no longer a collection of pictures, the admissibility of which should be discouraged. Incredibly, the courts continue to be suspicious of attempts to introduce into evidence the content of people’s social media profiles. This continues at a time when it is clearer than ever that we all consider social media so much more than an online photo album, but rather an integral component of our lives.

Seen this way, it becomes harder to shelter that component from production in the context of a lawsuit. We will see if the courts come to accept this. In the meantime, however, it’s probably best to keep the video of you bowling off the internet, at least until your lawsuit has settled.