The recent decision of Justice Lemon in Graul v. Kansal weighs in at 182 pages and comes with plenty of teaching moments about defending personal injury claims, weighing the strengths and weaknesses of a claim and the uncertainty of trials.
The plaintiff came to the case as a 52 year old husband and father of 3 grown children. He had a lengthy work history in a supervisory capacity with the City of Guelph working at the Guelph wastewater treatment plant. The decision depicts an individual who lived a full life before the accident – earning $100,000 per year in a job he enjoyed, active in sports and recreational activities and an engaged father and husband who enjoyed excellent health. After the accident, he did not return to work and his recreational pursuits and social life were significantly curtailed. The plaintiff, supported by his doctors and experts retained in the litigation, alleged that he suffered a mild traumatic brain injury with a constellation of related and other symptoms including memory and focus problems, issues relating to his hearing and vision and back and neck pain.
The plaintiff was successful in his claim. The case heard by a judge alone awarded $225,000 in general damages, past and future income losses of $1,300,000 million and future care costs of $735,000. The court accepted that the plaintiff would have worked until he was 70 which accounted for the sizable income loss award.
Of note is that the SABS experts that testified all supported the plaintiff’s general position that there were real injuries that impacted the plaintiff, providing various diagnoses including ‘major depressive disorder’ and confirmed his inability to ‘participate and produce in most work roles in a sustained way’. One of the defendant’s experts agreed that there was a mild TBI and while she did not believe it was accident related, she agreed that it could be. A neuro psychologist retained by the defence gave testimony on the issue of whether the plaintiff sustained a traumatic brain injury but had not been involved in TBI treatment for over 15 years. Despite this, he agreed that the plaintiff’s test results would suggest difficulty working with ‘machines and processes’ which was central to the plaintiff’s pre accident employment. The defence had abundant surveillance which depicted the plaintiff engaged in a variety of daily activities (although not work) but the trial judge put little or no weight on this evidence. The decision makes clear the aspects of the case on which the defendant based its defence. In reading the decision, one has an equally clear idea of how and why the judge discounted that evidence.
There are an embarrassment of riches in this case to dissect by way of a post mortem to see why things went so well for the plaintiff and so badly for the defence. In an alternative universe, with a different judge or with a jury, it may have turned out differently. But not at this time, with these facts and this judge.
A recent decision of Justice Mitchell of Ontario’s Superior Court of Justice has re-affirmed that a plaintiff in a slip and fall case is not required to pin point the exact cause or mechanism of the fall to succeed in establishing liability on a defendant.
In Branton, the defendant was involved in a municipal infrastructure project involving the installation of sewers and related road and curb work. The construction resulted in residents, including the plaintiff, having restricted access to their driveway while curbs were being poured. A rope between two temporary poles was placed as a barrier preventing passage to the roadway.
To facilitate access for the injured plaintiff’s spouse on the date of loss, a portion of the rope between two poles was removed and a temporary ramp was constructed from the driveway over the apex of the newly poured curb and onto the roadway. Several hours later, the plaintiff, unaware of this temporary construction, departed his house late at night and tripped as he passed between the opening in the ropes. He did not know precisely what caused him to fall.
There were no photographs or measurements taken of the temporary ramp at the time of the loss. Therefore the description of what was built and how it was built was based on the evidence of the injured plaintiff’s spouse who watched it being constructed. She was only able to provide estimates of ramp dimensions but was able to describe the manner in which it was constructed. The evidence was uncontroverted that the defendant constructed the ramp ‘on the fly’ and did not rely on any set procedure for construction of this kind.
The plaintiff testified that when he fell it was night time and the area was poorly lit and was able to describe the mechanism of the fall as follows:
I got to the pathway, and I walked through the opening, because I’ve seen the way it was open, and then as soon as I walked to go through the pathway, then as soon as I went through
that opening I tripped, or whatever, and I fell down. And I got up, and I tried to put weight on my foot, and I felt pain in my toes, and I didn’t put no weight on it.
The defendant argued that the plaintiff’s inability to describe what caused him to fall is fatal to the case because he could not prove that there was any hazard proximate to where he fell. The court disagreed, noting:
 Although Mr. Branton cannot say specifically what caused him to fall, he knew the precise location of his fall. The uncontradicted evidence places him stepping into the
construction zone where the ramp was constructed earlier that day. It is not disputed there was a drop off on either side of the temporary ramp.
 It is not disputed that Mr. Branton fell as he stepped through the opening between the poles. It is not disputed that Euro-Ex removed the rope between the poles to allow the
plaintiffs access from their driveway onto Maple Lane. It is not disputed Euro-Ex constructed a temporary ramp between the poles where the rope had been removed. Euro-Ex has produced
no evidence suggesting an alternative cause of Mr. Branton’s fall other than the design and construction of the ramp.
In this instance, the evidence was clear that the defendant, in constructing a temporary ramp had created a hazard and the court made that express finding. The court noted that the duty to keep premises in safe are fact specific in each case and in this instance the standard was informed by the following:
In this case, I have considered the absence of policies and procedures related to the construction, maintenance and inspection of potential hazards including temporary ramps and the admitted absence of any visual aids (pylons or demarcations) or additional lighting to assist pedestrians to safely traverse the temporary ramp and illuminate the width of the ramp
and therefore the drop-off.
This decision is consistent with the Court of Appeals’ decision in Kamin v. Kawartha Dairy in which an occupier was still found liable where the plaintiff was unable to recall the precise location of a fall in a parking lot that was found to be in a state of disrepair. The decision reinforces the importance of an occupier’s policies and procedures aimed at ensuring premises are maintained in a reasonable state.
The decision in Branton v. 2008422 Ontario Limited can be found here.
The issue of how many defence medicals are too many is the subject of a recent Ontario Superior Court decision. In the matter of Rocca and 6131646 Canada Inc. et al, the plaintiff was involved in a motor vehicle accident that resulted in injury. It was noted that the plaintiff had produced three expert medical reports, including a psychiatric report, an orthopaedic report, and a physiatry report authored by Dr. Mailis. The plaintiff had also attended orthopaedic, psychiatry, and neurology defence medicals. The orthopaedic report was authored by Dr. Marks. The defendant sought to have a rebuttal report to the plaintiff’s physiatry report. The defendant brought a motion pursuant to Section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure for an order compelling the plaintiff to attend a physiatry defence medical. The argument was premised on the imperative of ensuring a fair trial and a determination on the merits, not to mention levelling the playing field all of which warranted an order to allow the defendant an adequate opportunity to meet the plaintiff’s case.
Justice Jolley noted that Dr. Marks had reviewed the physiatry report prepared by Dr. Mailis and had disagreed with most aspects of that report. It was also noted that Dr. Marks had commented extensively on chronic pain in his report. Justice Jolley noted that there was no evidence of any limitations on Dr. Marks’ ability to opine on the issues raised by Dr. Mailis. It was noted that Dr. Marks provided extensive rebuttal to the Mailis report. Justice Jolley indicated that there was insufficient evidence to conclude that the defendant has not had an adequate opportunity to meet the plaintiff’s case or that his further examination is required for the defendant to receive a fair trial.
The case is a good example of the court rejecting a ‘tit for tat’ approach to litigation that would see each report requiring a response from an expert with similar qualification. It is also a good reminder that absent consent of the other party, an order is required to compel a plaintiff to attend a defence medical. In this case, Justice Jolley concluded that 3 defence medicals were enough to allow the defendant to meet the plaintiff’s case.
What happens when two insurers cover the same risk and each declare themselves excess to other available insurance? Ontario’s Court of Appeal addressed that issue in the recent case of TD General Insurance v. Intact Insurance, which involved a claim for bodily injury advanced by a passenger in a boat driven by the insured.
The TD policy covered the specific boat involved in the accident and the driver was covered as he was operating the boat with the owner’s consent. The driver was also covered under his homeowner’s policy with Intact, which provided liability coverage for claims arising out of the insured’s use or operation of any type of watercraft. Each policy declared itself excess to other available insurance.
Because the TD policy specifically covered the boat in question, the application judge held that the TD policy provided primary insurance for the watercraft in question and dismissed TD’s application that the two policies share equally in the defence and indemnity of the driver. In doing so he relied on the ‘closeness to the risk approach’ in which courts consider:
- Which policy specifically described the accident causing instrumentality?
- Which premium reflect the greater contemplated exposure?
- Is coverage of the risk primary in one policy and incidental to the other?
Unfortunately the Supreme Court of Canada expressly rejected this approach to overlapping coverage in the Family Insurance Corp. v. Lombard Canada Ltd. Case. Instead, the Supreme Court preferred to focus on “whether the insurers intended to limit their obligation to contribute, by what method, and in what circumstances vis-à-vis the insured”. Because the contest, as here was between two insurers, the court held that there was no need to look to surrounding circumstance and instead relies strictly on the policy wording. If there are no limiting intentions or limiting intentions that cannot be reconciled, the burden is shared equally between the insurers. The Court of Appeal considered the identical ‘other insurance clauses’ to be limiting intentions. Because each policy was declared excess to the other, the court concluded that they were irreconcilable. As a result, the policies had to contribute equally. The reasons of the Court of Appeal in this case are nuanced and underscore the importance of a close reading of policy wording when faced with a circumstance of overlapping coverages.
The case of O’Brien v. O’Brien, 2018 ONSC 4665, is a tort threshold motion brought by some of the defendants after a jury trial where damages was the only issue. The damages quanta were found to be closer to the defendants’ position thereupon. The motion was heard by Justice McKelvey of the Superior Court with reasons, dated July 31, 2018. Regulation 461/96 was referenced, which sets out criteria to be considered upon such a motion. In deciding the motion, it was noted the jury’s verdict was not binding upon His Honour but the findings of fact implicit thereto worthy of serious consideration. It was the plaintiff’s burden, on balance, to prove the threshold was met.
Barry O’Brien was a passenger in a pickup truck piloted by his uncle, James O’Brien, which collided head on with a transport. Among other things, he sustained an ankle fracture in the accident. In respect of other injuries sustained, he had significant pre-existing health issues. Credibility at the motion was not contested and the Judge, in fact, found the plaintiff to underestimate the impact of his injuries. The plaintiff’s orthopod was preferred due to recency of assessment and area of subspecialty. The evidence of the various health practitioners was reviewed in coming to a determination about the various alleged impairments. The left ankle was found to be permanently impaired. Ankle function was found to be ‘important’ to the plaintiff. The ‘seriousness’ criterion was found to be met despite the plaintiff making significant strides to overcome many of the effects of his impairment. Despite the Judge’s review required to consider the plaintiff’s condition ‘at the time of trial’, a likely future inability to work could be considered if a proper evidentiary foundation had been laid. The concern for the Judge on motion was that the jury awarded nothing for future income loss or vocational retraining. Despite the verdict, his Honour found the ankle impairment seriously affecting the ability to continue regular employment. In conclusion, the ankle impairment was found permanent, important and serious in relation to employment but not to his usual daily activities; as the interference with hunting was not ‘most’ of his usual activities.
Said The Prince to Portia in The Merchant of Venice, “all that glitters is not gold”. The defence motion was dismissed.
Kevin is a Partner of Samis+Reeves. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters.
That is of course a subjective question and one that you won’t find an explicit answer for in the case of Konopka v. Traders. However, you will read about what is not considered to be reasonable conduct in the context of an OAP 1 policy breach. In Konopka, the elderly insured fell ill while driving to her cottage and permitted her unlicensed husband to drive her vehicle to a nearby parking lot where they intended to stop and rest until she felt better. Shortly after taking the wheel, the unlicensed husband caused an accident. There was no dispute that the insured was aware that her husband was unlicensed and as a result on the face of it she was in breach of the ‘authorized by law to drive’ provision in section 4(1) of the policy. The insurer denied coverage as a result.
The court noted that a breach of this nature was subject to a strict liability standard which required that the insured to establish that she took all reasonable steps to avoid the particular event. The reasonableness standard requires a consideration of the nature of the breach, what caused it and all of the surrounding circumstances that explain the act or omission. The court ultimately determined that it was not reasonable for the insured to allow her husband to drive. It is worth noting that the court relied in large part on the discovery transcript of the husband which betrayed a level of confusion and an inability to focus. The court ultimately concluded that the husband was someone ‘who simply cannot get his bearings’ and as a result it was not reasonable to allow him to drive, regardless of the circumstances.
This case is fact driven but provides a good counterpoint to the decision of Ontario’s Court of Appeal in Kozel v. Personal. In that case, the insured was also in breach of section 4(1) for driving while she was not authorized by law to drive. However, in that case the license suspension was the result of a failure to respond to a license renewal notice which was considered to be a ‘relatively minor breach’. In contrast, allowing an elderly individual who had an ‘inability to get his bearings’ and who had not driven in more than 20 years was something quite different and ultimately, not reasonable. https://bit.ly/2KoWLxQ
In this Shakespeareanesque drama respecting three related motor vehicle tort actions, Aviva, as third party, successfully motioned under Rule 31.10, at what appears to be the outset of the trials, to discover three “non-parties”. All three plaintiffs were in the same vehicle and represented by the same lawyer but each (more likely their lawyer) elected to sue the defendant, Backs, in three different actions. Despite an earlier order to be tried together or one after the other, the actions remained separate proceedings.
The non-parties to be discovered were actually the three plaintiffs; each a technical stranger to the others’ cases. Aviva wanted testimony from the two ‘strangers’ in each case as to the effects of the accident upon each plaintiff going both to credibility and damages. The questions were refused in discoveries about two years prior as not being relevant to the action in which they were being asked.
Mr. Justice de Sa in his April 4, 2018 reasons held that use of the Rule was an exception but not meant as a means to limit access to a witness with relevant evidence. Technically, considering the order for trial together there was a right to ask the impugned questions which were clearly relevant and not collateral. The decision to sue in three actions and take a narrow view of relevance was felt to frustrate the discovery process. The plaintiffs’ positions added costs and delay to the proceedings and contravened various principles, not the least of which was their determination on the merits. Some might say that concept has suffered for some time now.
The motion was granted for discovery of each of the non-parties. Aviva was awarded $7,000.00 in costs. Rosencrantz and Guildenstern should have been so lucky. Creative use of the Rules, yes. Ultimately in the best interest of the plaintiffs, no. See Kissoon v. Aviva 2018 ONSC 2167.
Under Ontario’s threshold provision, persons injured in a car accident can sue for damages for non-pecuniary loss only if they have sustained “a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement.”
Beginning in October 2003, s. 4.3(5) of Ontario Regulation 461/96 (Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996) injured persons have also had to meet evidentiary requirements prescribed by regulation. They must lead evidence of their impairment from a qualified physician and, in addition to that evidence, they must “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”
This appeal to the Ontario Court of Appeal raises a single question: can the injured person – the plaintiff – provide the corroborating evidence? The answer – “yes”.
The words of s. 4.3(5) do not expressly preclude the plaintiff or the injured person from being the corroborating witness. Section 4.3 requires the evidence of at least one physician and some other evidence of change in function. The physician’s evidence alone is not enough and the other evidence alone is not enough. That other evidence may come from the plaintiff, a family member, an employer or co-worker, another lay person, or even from surveillance or medical records. Section 4.3(5) does not exclude anyone or anything. Indeed, undoubtedly there are cases where a plaintiff cannot provide corroborating evidence – for example, if the plaintiff is a minor or was severely brain damaged in the accident – otherwise the plaintiff may corroborate the evidence from the doctor about the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.