Statutory Duty of Care

Morsi v. Femer Paving Ltd. [2011] O.J. No. 3960

This is an appeal from a trial decision that held York Region and Femer Paving Ltd each 25 % liable for a single car motor vehicle accident. The deceased was driving in excess of the speed limit, ignoring speed and construction signs and lost control of his vehicle when the road surface changed from fresh pavement to gravel.

The trial judge held that the plaintiff was 50% to blame for the accident, leaving the defendants with the other 50%.

York Region and Femer Paving appealed the decision.

York Region’s main submission was that after the trial Judge correctly stated the main issue and the test for resolving the issue …

“Whether at the material time Major Mackenzie drive was in a state of repair that was reasonable in the circumstances such that users of the road, exercising ordinary care, could travel upon it safely.”

… that he did not apply the test to the facts of the case.

“The evidence of Detective Stock and the Varicom tests as well as the evidence of Constable Herbert and the various engineering experts establishes that if Mark Morsi had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area.”

The Ontario Court of Appeal found the driver to be reckless having accelerated to 117 km/h through a long curve and straightaway and ignoring two 60km/h speed signs, a reverse curve sign, a 40 km/h advisory sign and two construction signs. This was not a driver exercising ordinary care.

The appeal was allowed and the action by the driver’s family was dismissed.

- Alison McBurney

The Importance of Causation

In Lancaster (Litigation Guardian of) v. Santos, [2011] O.J. No. 3706, the County of Dufferin was added as a third party in an action arising out of a MVA on November 21, 2001 involving a fully-loaded pickup truck being driven by Mr. Santos and the plaintiff’s vehicle.

The transport had tipped over when coming around a curve and slid into oncoming traffic. It was alleged that but for the County’s failure to properly sign the portion of the road in issue, Mr. Santos would have been aware of the hazardous road condition and would have reduced his speed such that he could have managed the curve.

Lemon J., found the cause of the accident, on a balance of probabilities, to be the shifting of the truck’s load as a result of it not being properly secured. Mr. Santos had testified that the signs which existed provided some warning and he reacted to it by slowing down. As a result of this testimony, the road conditions and signage were not found to be the cause.

Lemon J., went on to determine whether the County could have been liable had there been causation. The plaintiff argued that when the County breached the Manual of Uniform Traffic Control Devices (MUTCD) by not properly signing the road, it breached its duty of care.

Lemon J., stated: “while I agree that this sign did not meet the standard set by the MUTCD, and that other drivers in other circumstances might have been mislead, that was not the case for Mr. Santos…The sign as posted was doing its job”.

This case is significant in that that court confirms an obvious yet often overlooked principle – If there is a breach of the duty of care, it must have contributed to or caused the MVA. Municipalities should keep in mind that although they perhaps made a mistake at some point in time, it must be considered whether this mistake caused or contributed to the MVA.

Thanks to our articling student, Kristen Dearlove, for this post.

Supreme Court comments on motions to strike

The Supreme Court recently commented on motions to strike on the basis there is no reasonable cause of action. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Imperial Tobacco is a defendant in two cases in British Columbia: one where the government seeks to recover the cost of medical treatment provided to smokers, and the second a class action pertaining to class members who purchased “light” or “mild” cigarettes. Imperial Tobacco issued third party claims against the federal government, alleging negligent misrepresentation, negligent design and failure to warn. In addition, Imperial alleges Canada was a “manufacturer” or “supplier” of cigarettes.



The Supreme Court held that all of the third party claims failed to disclose a reasonable cause of action and struck them. The Court confirmed that the test remains whether the claim has no reasonable chance of success. The purpose of the test is described as follows:



[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.

[21] Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.



Imperial argued that the motion to strike should be dismissed on the basis that future evidence might reveal more evidence against the government. The Court rejected this argument; the focus is on the pleadings, not the evidence and a judge cannot consider what future evidence might or might not show.



In addition to a useful summary of the test on a motion to strike, the Court goes through the Anns duty of care analysis. The decision is a good synopsis of these important principles.

Negligent Supervision of Children

Can parents or grandparents be liable for negligently supervising children in their care?

In Connolly (Litigation guardian of) v. Riopelle, [2010] O.J. No. 5798 (S.C.J.), the eight year old plaintiff was injured in an automobile accident. The defendant driver brought a third party claim against the boy’s grandfather, alleging that the grandfather was negligent in his supervision of the child and this caused or contributed to the accident. The child was visiting his grandparents’ home and was left outside to play alone when the accident occurred.

The grandfather brought a motion to strike the claim. He alleged that the child had been taught appropriate safety rules, was generally well behaved and did not require a greater level of vigilance than other children his age.

The motion was dismissed.

The Court held that is was open to the trier of fact to conclude that the grandfather ought to have looked out from time to time to ensure the child was adhering to the rules that were set, and there was an absence of evidence as to the accepted standard of care of other caregivers in the neighbourhood where the accident occurred.

Justice James concluded that the question of negligent supervision was better assessed in a trial setting.

If a City is going to fix a sidewalk, it has to do a good job

The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.

The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.

The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.

According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.

I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?

SCC: good review on law of negligence

The Supreme Court of Canada has recently released unanimous reasons for judgment written by Cromwell J., Fullowka and Pinkerton’s of Canada Limited, 2010 SCC 5.

I bring this case to your attention as a helpful overview on the law of negligence in Canada.

A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.

The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.

The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.

All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.