The Manitoba Court of Appeal has recently released a case dealing with vicarious liability of an employer for sexual assault by one of its employees. The Court provides a useful summary of the principles used in determining vicarious liability, as well as a summary of case law involving employers.
In Robertson v. Manitoba Keewatinowi Okimakanak Inc., [2011] M.J. No. 24 (C.A), the plaintiff was an executive assistant who made plans at work with her supervisor (Hart) to socialize after work to celebrate her birthday. They went to a restaurant for dinner and then to Hart’s residence where he sexually assaulted the plaintiff. The plaintiff notified the employer about the assault, who investigated the incident and terminated the Hart’s employment. The plaintiff sued both the Hart and the employer. The employer was successful in a motion to strike the Statement of Claim and the plaintiff appealed.
The test for a finding of vicarious liability was set out by the Supreme Court in Bazley v. Curry, [1999] 2 S.C.R. 534, which the Manitoba Court of Appeal summarized as follows:
1. The test for vicarious liability should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm;
2. The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit a wrong, it must materially enhance the risk in the sense of significantly contributing to it;
3. The appropriate inquiry is whether the employee’s wrongful act was so closely connected to the employment relationship that the imposition of vicarious liability is justified in policy and principle;
4. In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and wrong complained of, subsidiary factors will be considered such as a) the opportunity that the enterprise afforded the employee to abuse his/her power; b) the extent to which the wrongful act may have furthered the employer’s aims; c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; d) the extent of power; and e) the vulnerability of potential victims to wrongful exercise of the employee’s power.
5. An incidental attack by an employee that merely happens to take place on the employer’s premises during working hours will scarcely justify holding the employer liable because such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do, and, hence, to any risk that was created.
The court held that the facts did not support a finding that the employment went beyond providing a bare opportunity, noting that the assault did not occur in the workplace or during work hours, there was no allegation of inappropriate behaviour on prior occasions, there was no allegation that Hart exercised any power in relation to the plaintiff beyond that which is required in every supervisory position, and there was no allegation that the plaintiff was particularly vulnerable to the wrongful exercise of the Hart’s power.
Rabu, 20 April 2011
Rabu, 13 April 2011
Motion to add defendants after limitation period dismissed
Higgins v. Barrie (City of), 2011 O.N.S.C. 2233 (S.C.J.)
This was a motion by the plaintiff to amend the Statement of Claim to add additional defendants after the expiry of the limitation period on the basis of discoverability.
The plaintiff slipped and fell on March 13, 2006 and alleged that the City of Barrie was negligent in failing to maintain the site of the slip and fall. Barrie’s defence was filed May 13, 2008. Examinations for Discovery took place August 5, 2010 and September 13, 2010. At the examination for discovery of the City representative, counsel advised that the proposed defendant had been contracted by the City to remove snow from the area where the plaintiff fell. The contractor had in turn subcontracted to the second proposed defendant. On November 25, 2010, Barrie’s counsel advised of the name of the subcontractor. Plaintiff’s counsel performed a corporate search on November 30, 2010 and brought a motion to add the proposed defendants December 14, 2010.
Justice DiTomaso dismissed the plaintiff’s motion. The court noted that the passing of the limitation period gives rise to a presumption of prejudice. There is a reverse onus and evidentiary burden on the plaintiff. In the circumstances, the plaintiff’s motion materials failed to disclose any evidence of pre-discovery diligence on the part of the plaintiff or his counsel to determine the identity of the proposed defendants. The motion materials failed to disclose any evidence of any reason why the plaintiff could not have taken any steps to discover the identity of the proposed defendants prior to the examination for discovery. Justice DiTomaso held that waiting 4 ½ years until the examination for discovery of a City representative to make inquiries about potential additional defendants did not amount to due diligent or reasonable efforts. The affidavit of the plaintiff’s legal assistant was totally deficient in providing evidence of due diligence or reasonable efforts made to ascertain the involvement of the proposed defendants or any other defendants. The plaintiff therefore had not met his onus and the motion was dismissed.
Justice DiTomaso’s decision is extremely useful for proposed defendants responding to a plaintiff’s motion to amend. There is a very helpful summary of the case law with respect to adding defendants and the due diligence requirement.
Thank you to Ted Key for bringing this case to our attention.
This was a motion by the plaintiff to amend the Statement of Claim to add additional defendants after the expiry of the limitation period on the basis of discoverability.
The plaintiff slipped and fell on March 13, 2006 and alleged that the City of Barrie was negligent in failing to maintain the site of the slip and fall. Barrie’s defence was filed May 13, 2008. Examinations for Discovery took place August 5, 2010 and September 13, 2010. At the examination for discovery of the City representative, counsel advised that the proposed defendant had been contracted by the City to remove snow from the area where the plaintiff fell. The contractor had in turn subcontracted to the second proposed defendant. On November 25, 2010, Barrie’s counsel advised of the name of the subcontractor. Plaintiff’s counsel performed a corporate search on November 30, 2010 and brought a motion to add the proposed defendants December 14, 2010.
Justice DiTomaso dismissed the plaintiff’s motion. The court noted that the passing of the limitation period gives rise to a presumption of prejudice. There is a reverse onus and evidentiary burden on the plaintiff. In the circumstances, the plaintiff’s motion materials failed to disclose any evidence of pre-discovery diligence on the part of the plaintiff or his counsel to determine the identity of the proposed defendants. The motion materials failed to disclose any evidence of any reason why the plaintiff could not have taken any steps to discover the identity of the proposed defendants prior to the examination for discovery. Justice DiTomaso held that waiting 4 ½ years until the examination for discovery of a City representative to make inquiries about potential additional defendants did not amount to due diligent or reasonable efforts. The affidavit of the plaintiff’s legal assistant was totally deficient in providing evidence of due diligence or reasonable efforts made to ascertain the involvement of the proposed defendants or any other defendants. The plaintiff therefore had not met his onus and the motion was dismissed.
Justice DiTomaso’s decision is extremely useful for proposed defendants responding to a plaintiff’s motion to amend. There is a very helpful summary of the case law with respect to adding defendants and the due diligence requirement.
Thank you to Ted Key for bringing this case to our attention.
Rabu, 06 April 2011
Gross Negligence
The Court of Appeal for Ontario has upheld a decision which found that the City of Mississauga’s response to a winter storm event was reasonable, Billings v. Mississauga (City), 2011 ONCA 247, [2011] O.J. No. 1449 (C.A.).
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
Rabu, 30 Maret 2011
Action dismissed due to failure to comply with Municipal Act notice provision
Zogjani v. Toronto (City), [2011] O.J. No. 1002 (S.C.J.)
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
Rabu, 23 Maret 2011
The test for compensable psychological injury
Thank you to Jennifer Stirton for this week's contribution.
The Ontario Court of Appeal has recently confirmed that plaintiffs seeking damages for psychological injury independent of any claim for physical injury are required to show that they suffer from a “recognizable psychiatric illness”.
In Healey v. Lakeridge Health Corp., [2011] O.J. No. 231 (C.A.), the plaintiffs received notices to be tested for tuberculosis as a result of exposure to two infected patients at the defendants’ facility. The plaintiffs alleged that these notices caused them mental anxiety, depression, fear, shock, anger, distress and sleeplessness. They feared for the health and safety of friends and family and temporarily disrupted their social and family lives.
The plaintiffs admitted that the harm suffered fell short of a “recognizable psychiatric illness”. Rather, the plaintiffs alleged that the 2008 Supreme Court of Canada decision in Mustapha v. Culligan, in which the plaintiff found dead flies in an unopened bottle of water and was very upset by the idea that his family had been consuming tainted water, lowered the threshold for compensable psychological injury.
The Court of Appeal concluded that although there were some academic and judicial opinions to the contrary, there is a strong line of authority that to recover damages for psychological injury independent of physical injury, plaintiffs are required to show that they suffer from a recognizable psychiatric illness. The Court of Appeal concluded:
“As has been repeatedly stated in the case law, there are strong policy reasons for imposing some sort of threshold. It seems to me quite appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society and to decline to open the door to recovery for all manner of psychological insult or injury. Given the frequency with which everyday experiences cause transient distress, the multi-factorial causes of psychological upset, and the highly subjective nature of an individual’s reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour. The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the injury is serious and prolonged.”
The Court of Appeal acknowledged that the threshold for compensable psychological injury is the subject of debate and that it could be revisited on a proper factual foundation. For the moment, however, the test for compensable psychological injury remains unchanged.
The Ontario Court of Appeal has recently confirmed that plaintiffs seeking damages for psychological injury independent of any claim for physical injury are required to show that they suffer from a “recognizable psychiatric illness”.
In Healey v. Lakeridge Health Corp., [2011] O.J. No. 231 (C.A.), the plaintiffs received notices to be tested for tuberculosis as a result of exposure to two infected patients at the defendants’ facility. The plaintiffs alleged that these notices caused them mental anxiety, depression, fear, shock, anger, distress and sleeplessness. They feared for the health and safety of friends and family and temporarily disrupted their social and family lives.
The plaintiffs admitted that the harm suffered fell short of a “recognizable psychiatric illness”. Rather, the plaintiffs alleged that the 2008 Supreme Court of Canada decision in Mustapha v. Culligan, in which the plaintiff found dead flies in an unopened bottle of water and was very upset by the idea that his family had been consuming tainted water, lowered the threshold for compensable psychological injury.
The Court of Appeal concluded that although there were some academic and judicial opinions to the contrary, there is a strong line of authority that to recover damages for psychological injury independent of physical injury, plaintiffs are required to show that they suffer from a recognizable psychiatric illness. The Court of Appeal concluded:
“As has been repeatedly stated in the case law, there are strong policy reasons for imposing some sort of threshold. It seems to me quite appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society and to decline to open the door to recovery for all manner of psychological insult or injury. Given the frequency with which everyday experiences cause transient distress, the multi-factorial causes of psychological upset, and the highly subjective nature of an individual’s reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour. The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the injury is serious and prolonged.”
The Court of Appeal acknowledged that the threshold for compensable psychological injury is the subject of debate and that it could be revisited on a proper factual foundation. For the moment, however, the test for compensable psychological injury remains unchanged.
Rabu, 16 Maret 2011
The Appraisal Process in s. 128 of the Insurance Act
Letts v. Aviva Canada Inc., [2010] O.J. No. 5801 (S.C.J.)
This case deals with the appraisal process in s. 128 of the Insurance Act.
The plaintiffs made a fire loss claim and prepared a 56 page Request to Admit which contained an inventory of items they allege were destroyed or damage by the fire. They argued the insurer was required to specify the items took issue with as a condition precedent to the appraisal process.
Justice James disagreed:
While this may make sense in an appropriate case, I do not agree with the insureds that the insurer must provide a detailed response to the claim of the insureds before being able to invoke the appraisal mechanism contemplated by Section 128 of the Insurance Act.
Section 148 of the Act sets out what needs to be done prior to the appraisal process: a specific demand must be made and proof of loss delivered. Nothing else is required.
This case deals with the appraisal process in s. 128 of the Insurance Act.
The plaintiffs made a fire loss claim and prepared a 56 page Request to Admit which contained an inventory of items they allege were destroyed or damage by the fire. They argued the insurer was required to specify the items took issue with as a condition precedent to the appraisal process.
Justice James disagreed:
While this may make sense in an appropriate case, I do not agree with the insureds that the insurer must provide a detailed response to the claim of the insureds before being able to invoke the appraisal mechanism contemplated by Section 128 of the Insurance Act.
Section 148 of the Act sets out what needs to be done prior to the appraisal process: a specific demand must be made and proof of loss delivered. Nothing else is required.
Rabu, 09 Maret 2011
Proportionality in Discovery
Master Short recently conducted an exhaustive review of the principles of proportionality in discovery. In Warman v. National Post (2011), 103 O.R. (3d) 174 (S.C.J.), the defendant brought a motion seeking production of a mirror copy of the plaintiff’s computer hard drive. The action was a libel action brought under the Simplified Procedure.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
Master Short held that the new rules changing the test from “relating to” to “relevant to” a matter in issue signal a shift away from the broad and liberal discovery practice that has existed in Ontario. The default rule should start with proportionality and a recognition that not all conceivably relevant facts are discoverable in every case. Master Short adopts an eight factor proportionality test for e-discovery used in an American case (Rowe Entertainment v. William Morris):
1. The specificity of the discovery requests;
2. The likelihood of discovering critical information;
3. The availability of such information from other sources;
4. The purposes for which the responding party maintains the requested data;
5. The relative benefit to the parties of obtaining the information;
6. The total cost associated with production;
7. The relative ability of each party to control costs and its incentive to do so;
8. The resources available to each party.
Master Short held that although relevancy should remain a threshold requirement, proportionality should replace relevancy as the most important principle guiding discovery.
This decision will no doubt garner attention as a guideline for discovery. It will be interesting to see if the eight factors become the new standard for discovery in general or limited to e-discovery.
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