The Agony of the Collision

A recent motion decision dealt with the standard of care in emergency situations.

In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn.  An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident.  Unfortunately, the other driver also swerved and they collided.

Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle.  Justice Spence reviewed three formulations of the test for negligence in an emergency:

1.  Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2.  Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision.  He is not negligent for failing to adopt the best course of action in the light of hindsight;
3.  Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.

Justice Spence concluded:

[39]  The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.

Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.

Causation and Insurance Broker Negligence

The Ontario Court of Appeal recently commented on one of the leading cases pertaining to insurance broker negligence, Fletcher v. Manitoba Public Insurance Company, [1990] 3 S.C.R. 191.  

In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage. 

The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation.  There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.   

In rear end collisions, liability is often considered to be automatic. But the Court of Appeal has reminded us that there is no such fixed rule.

In Martin-Vandenhende v. Myslik, 2012 ONCA 53 (C.A.), the plaintiff alleged the defendant rear-ended her vehicle as she slowed to make a left turn. She testified she activated her left turn signal prior to slowing down and commencing the turn. The defendant’s version of events was that the plaintiff activated her right turn signal and pulled to the right, which he interpreted to mean she was pulling over to allow him to pass. As he pulled around her vehicle, she turned left into him.

The trial judge found in favour of the plaintiff. He held that “taken at its highest”, the signal was “perhaps confusing” and the plaintiff was “perhaps giving [the defendant] inconsistent signals”. The Court held that this was not taking the defendant’s evidence at its highest, as his evidence was unequivocal: he was not confused or being given inconsistent signals, as he testified the plaintiff indicated she was going right, not left.

Justice Blair cited Beaumont v. Ruddy , [1932] O.R. 441 (C.A.) for the proposition that generally speaking, where one car runs into another from behind, the fault lies with the driver of the rear car, and he must satisfy the Court that the collision did not occur as a result of his negligence. Since the trial judge did not make factual findings to resolve the conflicting testimony between the parties, it could not be said one way or another whether Beaumont had been satisfied. Justice Blair held:

31 In addition, the trial judge's approach was wrong in law, in my view. The common law principle enunciated in Beaumont v. Ruddy does not prescribe that a following driver is always at fault if he or she runs into another from behind. It simply states that generally speaking this will be the case, and shifts the onus to the following driver to show otherwise. There is no principle of law of which I am aware that automatically fixes a following driver who runs into another vehicle from the rear with liability "no matter what [the lead driver] chooses to do, within [his or] her own lane." Subject to the law's general bias in favour of fault on the part of the following driver and the "following too closely" jurisprudence, liability - as in any negligence case - depends upon whether the following driver was acting reasonably in the circumstances and, conversely, whether the lead driver was as well.

The Court allowed the appeal and ordered a new trial.

- Tara Pollitt

Gross Negligence Standard for Municipal Sidewalks

In Richer v. Elliot Lake [2001] ONSC the plaintiff slipped and fell on ice on a sidewalk. In accordance with s. 44(9) of the Municipal Act, the standard of care is lowered from ordinary negligence to gross negligence.



Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.



In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.



Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.



The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.

The Hills Are Alive... With Danger

Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.).
Howden, J. discussed the duty that road authorities owe to motorists in the case of Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), a case involving a motor vehicle accident that occurred on August 10, 2004, which left two teenage sisters severely injured.

Shannon Deering, the older sister who was 19 years old at the time, was driving her 2002 Pontiac Grand AM up a hill on Coates Road West in Oshawa, when the headlights of an eastbound vehicle appeared over the crest of the hill. The vehicle moved to the right, then arced left, and finally veered to the right over the shoulder of the road.

Justice Howden ultimately found that the segment of Coates Rd. West was in a state of non-repair because in his view, the hill where the accident happened “represented a virtually unique source of danger to ordinary drivers, particularly at night due to its combination of features likely to create an emergency situation with little or no preview time for westbound drivers to deal safely with it”.

At the time of the accident, Coates Road West was paved and flat for close to two kilometers, after which it climbed and fell away over three hills. The third hill was the most significant, and in August 2004, the road had no lane markings, no signage, and an un-posted speed limit of 80 km/hr.

In July 2004, the road was involved in a rehabilitation project to improve the road’s base and surface. The aim of the rehabilitation project was to provide an adequate sub-structure and surface treatment. By July 20, 2004, a dark-coloured sealant or emulsion was applied to the road as the final phase of the project. Immediately afterwards the road was re-opened in its otherwise previous state which was unsigned, unlit and unlined.

After a review of the relevant case law, Justice Howden determined that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to certain defences.

Howden, J. stated that “The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”

He further declared that “the duty to repair under section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects”.

This blog contribution by articling student Alex Lacko.

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.