Spring 2017 Newsletter
Welcome to In|sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.
When is an Occupier’s Liability Case Ripe for Summary Judgment?
By Stephen G. Ross and Andrew Yolles
Through Hryniak v. Mauldin,  1 SCR 87, the Supreme Court of Canada has encouraged litigants and judges to make use of the summary judgment process. Summary judgment is more attractive than ever as an efficient and cost-effective means of adjudicating certain cases. The catch is, it should be the right case, or a summary judgment motion could be a waste of time and money. How do you know if your case is the right case? A court will grant summary judgment when it can confidently make the necessary findings of fact and apply the law to those facts in a manner that is proportionate to the claim and is more expeditious and less expensive than a trial.
Practically speaking, this means that summary judgment will be most appropriate, and most likely to succeed, where the case can be narrowed to a few specific, determinative issues that can be judged on the basis of discrete evidence.
In a claim for personal injury in an occupier’s liability context, the issue of damages can be discretionary to fit this mold. Because so much depends on the evidence of the plaintiff as well as his or her likeability and credibility as a witness, the summary judgment process is not particularly well-suited to that determination. However, some liability defenses in an occupier’s liability claim are well suited to summary judgments.
In an occupier’s liability case, the plaintiff must prove that there was a hazard on the premises that caused his or her accident. The defense best suited to summary judgment is one in which the defendant can demonstrate with evidence that no such hazard was present on the premises. A common example is where the plaintiff fell and claims that there was liquid or debris on the floor. However, the plaintiff does not have sufficient evidence to prove that a hazard was present, or the defendant has overwhelming evidence to demonstrate that there was no hazard present.
This was the case in Nandlal v. Toronto Transit Commission, 2015 ONCA 166. The Ontario Court of Appeal upheld the summary dismissal of the plaintiff’s action. Her claim was that she slipped and fell on stairs in a subway station, and though she saw debris elsewhere in the same subway station and on prior occasions, she did not claim to have seen any at the location of her fall. Further, the defendant led evidence that the stairs were made of non-slip material and were in good condition.
In another case that was appropriate for summary judgment, the plaintiff’s accident was caused by a feature of the premises that cannot reasonably be considered to be a hazard. In Jassal v. Hilcox, 2016 ONSC 5523, the plaintiff tripped over a tennis net post on a public tennis court. The court found that summary judgment was appropriate because the feature that caused the plaintiff’s accident was not an unreasonable hazard.
Finally, a defendant may also obtain summary judgment on the basis that notwithstanding the presence of a hazard on the premises, the defendant occupier nevertheless met its duty of care. Section 3 of the Occupiers’ Liability Act requires the occupier “to take such care as in all the circumstances of the case are reasonable” to ensure that people are reasonably safe while on the premises. The courts have held that this is not strict liability, and that the occupier can avoid liability by demonstrating that it took reasonable care to prevent hazards from occurring on the premises (Waldick v. Malcom,  2 SCR 456).
On such motions, the defendant would need to provide clear evidence that it took reasonable steps to prevent the plaintiff’s accident. This will usually involve evidence including maintenance policies and procedures, as well as evidence that those policies and procedures were followed at the time of the accident.
However, where there is solid evidence of preventative maintenance being conducted in the location of the accident shortly before an accident, summary judgment should be carefully considered. In many cases, the potential advantages of such a motion (successful end to the case) outweigh the disadvantages of bringing one and losing (exposure to costs) or not bringing one at all (a distant and expensive trial or an unhappy compromise).
So summary judgment may save time and expense when you have an occupier’s liability case where: the plaintiff has no real evidence of a hazard; you have good evidence of the absence of a hazard; the “hazard” is an innocuous feature of the premises; the hazard was caused entirely by the negligence of a contractor; or you have good evidence that preventative maintenance was conducted in the location of the accident shortly before it occurred. If the case is borderline, unclear on the evidence, or there is contradictory evidence, summary judgment will be more of a long shot.
In any event, in the aftermath of Hryniak, an analysis of whether summary judgment is a useful tool to employ in a given case is a consideration every litigator must undertake.
Still No Loss Transfer for Non-Colliding Vehicles
By Alon Barda
Can loss be transferred between non-colliding vehicles when one vehicle down the chain is not moving at the time of the incident?
In Kingsway General Insurance Company v. Dominion of Canada General Insurance Company (2017 ONSC 498), the court considered whether loss transfer is available under s. 9(3) of the Fault Determination Rules (FDRs).
Specifically, the case involved a four-vehicle chain reaction collision with all vehicles travelling in the same direction and lane. The heavy commercial vehicle insured by Kingsway was the last in the chain and struck a moving car, which then struck a moving car insured by Dominion. The Dominion vehicle then struck a stationary car. As such, there was no impact between the Dominion and Kingsway vehicles. Dominion paid SABS to its insured and sought loss transfer from Kingsway.
The parties agreed that, had only the three moving vehicles been involved in the accident or if all four vehicles were in motion, Dominion would not be entitled to seek loss transfer from Kingsway pursuant to s. 9(3) of the FDRs (three or more vehicles travelling in the same direction and in the same lane while all vehicles are in motion). This is due to the decision in State Farm v. Old Republic (2015 ONCA 699) wherein the Court of Appeal found that loss transfer is not available under s. 9 between two non-colliding vehicles.
However, since the front vehicle in the chain was not moving, Dominion argued that s.9(3) was applicable and fault should be determined in accordance with the ordinary rules of law as outlined in s. 5 of the FDRs. At first instance, the arbitrator accepted this argument and concluded that s. 9(3) did not apply and the heavy commercial vehicle was 100% responsible pursuant to s.5.
In the appeal decision, Justice Charney highlighted that the Court of Appeal in State Farm v. Old Republic concluded that the word “incident” as it appears in subclauses (a) and (b) of s. 9(4) can refer only to the collision identified in the particular subclause and “cannot reasonably refer to the entire chain reaction.” Further, Justice Charney noted that this equally applies to s. 9(3) as the Court of Appeal held that s. 9(3) and s. 9(4) are parallel provisions that must be read consistently.
As such, Justice Charney found that s. 9(3) of the FDRs properly applies to the fact scenario in this case since there were three vehicles in the chain (A, B and C) in motion and travelling in the same lane and direction. The presence of a stationary fourth vehicle down the chain is irrelevant. Therefore, there was no loss transfer available to Dominion since there was no impact between the Kingsway and Dominion insured vehicles.
This is a well-reasoned decision and it accords with the findings of the Court of Appeal in State Farm v. Old Republic. It is also a helpful reminder of the longstanding principle that the FDRs are to be interpreted in a “gross and somewhat arbitrary fashion, favouring expedition and economy over finite exactitude.”
Teen Steals Car and Sues for Injuries
The case of J.J. v. C.C., 2016 ONCA 718, demonstrates that a plaintiff can recover damages even if he or she engages illegal or immoral conduct.
Two teenagers, 15 and 16 years old, stole a car from a car repair and sales business, Rankin’s Garage, located in a small town in Ontario. The teenagers had been drinking alcohol and smoking marijuana. The car was unlocked with the keys in the ashtray. The plaintiff and his friend took the car for a joyride. The plaintiff’s friend, who did not have a driver’s license, did the driving. They were involved in a single vehicle accident, and the plaintiff sustained a significant brain injury.
At trial, the jury found Rankin’s Garage 37% liable. The driver was found 23% liable and the plaintiff 10%. The driver’s mother was found 30% liable for supplying beer to the teenagers earlier in the evening.
Rankin’s Garage appealed. One argument raised by Rankin’s Garage was that it would be “offensive to society’s standards” for it to be found liable for the injuries of someone who participated in a theft. The sentiment underlying this position is that wrongdoers should be responsible for the damage they may cause to themselves by their wrongdoing. The Court of Appeal rejected this and other arguments, and the appeal was dismissed.
The Court held that Rankin’s Garage owed the plaintiff a duty of care. There was evidence of prior thefts from Rankin’s Garage. It was foreseeable that minors might take a car from Rankin’s Garage that was made easily available to them. Further, the Court said it is a matter of common sense that minors might harm themselves in joyriding, especially if they are impaired by alcohol or drugs. The Court stated it is well established that the duty of care operates independently of the illegal or immoral conduct of an injured party.
The Supreme Court of Canada has taken an interest in this matter and recently granted Rankin’s Garage leave to appeal. Leave to appeal in civil cases is rarely granted. The fact that the Supreme Court has agreed to hear the appeal suggests that it does not agree with the Court of Appeal’s conclusions on the duty of care or with the jury’s apportionment of liability.
As it currently stands, this case demonstrates that a property owner must protect against foreseeable risks, including actions by trespassers and others engaged in illegal activity.
What is the Standard of Review for contracts?
By Anita Varjacic and Rebecca Moore
Clarification on the standard of review for appeals involving contractual interpretation was provided by the Supreme Court of Canada decision of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
The Court found contractual interpretation involves issues of mixed fact and law as it “is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.” As such, deference should be accorded to the court of first instance.
However, the Court recognized this rule is not absolute. It’s possible to identify extricable questions of law within questions of mixed fact and law, although caution should be exercised when doing so. Examples of legal errors that will fall within this exception include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor.
An example of the application of this principle can be seen in the Court of Appeal’s decision in Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc, 2016 ONCA 246. This case involved the interpretation of a commercial lease agreement following a fire. Applying Sattva, the Court of Appeal found the motions judge failed to apply binding appellate authority with respect to contractual allocation of risk, failed to adopt a construction of the subject lease that accorded with the governing principles of contractual interpretation, and also failed to assign meaning to the contested terms of the lease. As these legal errors were found to involve extricable questions of law, a correctness standard of review applied.
Leave was sought to appeal the Deslaurier decision to the Supreme Court of Canada, which remanded the matter back to the Court of Appeal for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37. The Court of Appeal’s decision following the Supreme Court of Canada’s direction is pending.
Notably, the Supreme Court of Canada decision of Ledcor recognizes an exception to Sattva when dealing with standard form contracts (specifically a builders’ risk insurance policy). In upholding the general principles as articulated in Sattva, the Court held that standard form contracts involve a unique set of issues as their interpretation “is of precedential value and there is no meaningful factual matrix that is specific to the particular parties to assist in the interpretation process.” As a result, these contracts are more appropriately classified as involving questions of law, thereby attracting a correctness standard of review.
In reaching this decision, the Court drew a distinction between the applicable standard of review generally to be applied in cases involving contractual interpretation (deferential), from those specifically involving standard form contracts (correctness). However, the Court appears to have left the door open for standard form contracts to still attract a deferential standard of review when involving a question of mixed law and fact. Overall, “[a]ppellate courts should consider whether ‘the dispute is over a general proposition’ or ‘a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future’.”
Delays in Civil Trials
By Thomas Macmillan
Those involved in setting trial dates for civil matters are no strangers to seeing trials set far in advance. A new level of chaos may be upon us. The Supreme Court of Canada’s ruling in R. v. Jordan,  1 SCR 631, sets out strict timelines by which criminal cases must be brought to trial.
The result is that civil trials are taking a back seat. The effect has been felt, not only in scheduling trials, where appearances at civil practice court in Toronto have resulted in dates being set for early 2019, but also in matters where a firm trial date is already set.
In one situation, our firm was set to proceed to trial on a medical malpractice matter in Sault Ste. Marie in February of 2017, only to be advised that it had been bumped in favour of criminal matters. The Regional Senior Justice intervened and provided a trial date in May of 2017, on the basis that the trial was a serious case involving a minor. In a more standard case, the trial likely would have been delayed for a significant amount of time.
We understand that the federal government is in the process of filling several judicial vacancies in Ontario, which will hopefully alleviate some of the current stress on judicial resources. The scarcity of judicial resources is a key reason why lawyers and their clients must conduct proceedings in an efficient manner
What’s Happening at Rogers Partners
• One of our valued partners, Diane Craig, has retired from the firm. For the past 20 years, Diane has been a trusted advisor to our clients. Most of all, she has been a loyal friend to all of us at Rogers Partners. We will all miss her sense of humour, her warmth, her good judgment and her common sense approach to solving problems. Please join us in wishing her and her husband, Peter, the best in their next chapter.
• Double congratulations to Tom Macmillan. The first for being made partner at the beginning of this year. Since joining in 2010, Tom’s personable and energetic nature has been a key part of Rogers Partners. He has appeared before the Superior Court of Justice and the Workplace Safety and Insurance Appeals Tribunal and his recent success at trial resulted in the plaintiff being awarded damages of $0 by a jury. The second congratulations is for Tom and his wife, actress, Emma Hunter, on the upcoming birth of their child.
• Partner Stephen Ross recently co-chaired the License Appeal Tribunal (LAT) Advocacy Program at The Advocates’ Society Education Centre. The new program for the personal injury bar addressed key considerations for both plaintiff and defense counsel appearing before the LAT. It was a double dose of Rogers Partners. Kevin Adams was part of the faculty who lent his expertise to the half day session. Participants received practical tips on preparing for each stage of the LAT and heard directly from LAT representatives and senior litigators on effective advocacy at the LAT.
• The Oatley McLeish Guide to Motor Vehicle Vehicle Litigation 2017 through the Law Society of Upper Canada recently drew on a couple of experts here at Rogers Partners. Stephen Ross shared his insights on The Interplay between Tort and Accident Benefits while Donald Rogers spoke on Actions Against Insurance Brokers – What’s Next in the Law?
• And Rogers Partners continues its Casual Fridays in support of charities and non-profits such as the Centre for Addiction and Mental Health (CAMH). Every staff who participates makes a contribution so that we can collectively make a donation to support a worthy cause.
FROM THE DESK OF STEPHEN G. ROSS
In the course of a busy day, many documents and papers cross every lawyer’s desk. I personally enjoy trying to keep track of cases, particularly appellate cases, and certain trends in our area of law. Most recently, we have been watching with interest the issue of contingency fees and await the outcome of the Court of Appeal’s decision in Hodge v Neinstein. It is our understanding that the appeal has been heard and the Court’s decision is pending. Should the Court of Appeal uphold the Divisional Court’s decision to certify a class based on the nature of contingency fees agreements previously executed, this may well have profound implications for the industry.
It is my understanding that many plaintiff personal injury firms utilized the percentage of all damages plus costs to form the contingency fee agreement (costs-plus CFAs) at issue in the Hodge decision. If the Court of Appeal certifies a class, agreeing with the Divisional Court that a disgorgement of all fees obtained would be a solution, widespread and serious financial consequences could follow. Whatever the Court of Appeal does, this may not be the last chapter in this story.
We are also tracking developments with respect to law firm advertising. The Law Society has already recently amended lawyer and paralegal conduct rules relating to false and misleading advertising practices and further changes are anticipated.
It will be interesting to see what the Law Society, the legislature, or both, may do as we look to find the balance between legitimate and appropriate promotion; and the need to protect the public and the profession from over-zealous and potentially misleading advertising. The issue is indeed complicated, but it does seem that some further regulation or change is necessary.
Next issue we’ll hear from another one of our partners.