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.
Kamis, 25 November 2010
Rabu, 10 November 2010
Filing Expert Reports as Exhibits at Trial - Part 2
In our last post, we discussed the Clark v. Zigrossi decision, where Justice Brown held that whether a party can file an expert’s report and call viva voce evidence from that expert is a matter of the court’s discretion.
In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters, [1970] 3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.
In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:
1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.
The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters, [1970] 3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.
In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:
1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.
The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
Rabu, 03 November 2010
Filing Expert Reports as Exhibits at Trial - Part 1
Does Expert Testimony Preclude the Expert’s Report as an Exhibit?
In Clark v. Zigrossi, [2010] O.J. No. 3954 (Ont. Sup. Ct.), Justice Brown made a mid-trial ruling on whether an expert report can be filed as an exhibit even though the expert will be testifying at trial.
The plaintiff was seeking damages for injuries he alleged to have suffered in a July 2003 collision with the car driven by the defendant. The defendant had admitted liability and the jury was to assess damages. The plaintiff retained as an expert, Dr. Joseph Kwok, an orthopaedic surgeon who had prepared an expert report based on his examination of the plaintiff. The plaintiff served Dr. Kwok’s report on the defendant and gave the defendant notice pursuant to s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23. The plaintiff indicated his intention to adduce expert evidence “by either calling them to testify or by filing their reports.” At trial, plaintiff’s counsel sought leave both to call Dr. Kwok to give viva voce evidence and to mark his expert report as an exhibit, with copies of the report being provided to the jury so that they could follow the doctor’s evidence. Defendant’s counsel objected and submitted that the plaintiff must elect either to file the report or elicit viva voce evidence from the doctor. Defendant’s counsel acknowledged that if Dr. Kwok’s report was to be filed instead of him giving oral evidence at trial, she would require his presence to cross-examine him on his report, so Dr. Kwok’s attendance at trial would be necessary regardless of which path was taken.
Justice Brown held that the court possessed the discretion to permit an expert’s report to be filed where the expert intended to give viva voce evidence at trial. The needs of jurors to follow and understand the evidence should inform the exercise of judicial discretion.
Ultimately, in the circumstances of the case, Justice Brown did not think that the jury would encounter much difficulty in following Dr. Kwok’s evidence without having copies of his report and so it was not filed as an exhibit.
Justice Brown’s analysis affirms that there is no hard and fast rule that exists as to whether a party must elect either to file an expert’s report or call the expert to give viva voce evidence. In a jury trial, whether a party may call a health care expert to testify and also file his report as an exhibit remains a matter of discretion for the trial judge to determine.
The decision contains a good summary of the case law regarding filing expert reports and calling viva voce evidence. In our next post we will summarize those decisions.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
In Clark v. Zigrossi, [2010] O.J. No. 3954 (Ont. Sup. Ct.), Justice Brown made a mid-trial ruling on whether an expert report can be filed as an exhibit even though the expert will be testifying at trial.
The plaintiff was seeking damages for injuries he alleged to have suffered in a July 2003 collision with the car driven by the defendant. The defendant had admitted liability and the jury was to assess damages. The plaintiff retained as an expert, Dr. Joseph Kwok, an orthopaedic surgeon who had prepared an expert report based on his examination of the plaintiff. The plaintiff served Dr. Kwok’s report on the defendant and gave the defendant notice pursuant to s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23. The plaintiff indicated his intention to adduce expert evidence “by either calling them to testify or by filing their reports.” At trial, plaintiff’s counsel sought leave both to call Dr. Kwok to give viva voce evidence and to mark his expert report as an exhibit, with copies of the report being provided to the jury so that they could follow the doctor’s evidence. Defendant’s counsel objected and submitted that the plaintiff must elect either to file the report or elicit viva voce evidence from the doctor. Defendant’s counsel acknowledged that if Dr. Kwok’s report was to be filed instead of him giving oral evidence at trial, she would require his presence to cross-examine him on his report, so Dr. Kwok’s attendance at trial would be necessary regardless of which path was taken.
Justice Brown held that the court possessed the discretion to permit an expert’s report to be filed where the expert intended to give viva voce evidence at trial. The needs of jurors to follow and understand the evidence should inform the exercise of judicial discretion.
Ultimately, in the circumstances of the case, Justice Brown did not think that the jury would encounter much difficulty in following Dr. Kwok’s evidence without having copies of his report and so it was not filed as an exhibit.
Justice Brown’s analysis affirms that there is no hard and fast rule that exists as to whether a party must elect either to file an expert’s report or call the expert to give viva voce evidence. In a jury trial, whether a party may call a health care expert to testify and also file his report as an exhibit remains a matter of discretion for the trial judge to determine.
The decision contains a good summary of the case law regarding filing expert reports and calling viva voce evidence. In our next post we will summarize those decisions.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
Kamis, 28 Oktober 2010
Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors
Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
Rabu, 27 Oktober 2010
Before hiring a lawyer...
The GlobeandMail.com has an interesting article entitled Before hiring a lawyer, be sure to do your homework, by Tony Wilson.
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/
Kamis, 21 Oktober 2010
The Supreme Court of Canada on a Duty to Defend - part 3
Justice Rothstein, for the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33., helpfully affirmed that CGL insurance policies are most typically written in three sections, being (i) coverage, (ii) exclusions and (iii) exceptions to the exclusions.
Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.
The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.
The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.
This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.
Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.
The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.
The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.
This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.
Jumat, 15 Oktober 2010
The Supreme Court of Canada on a Duty to Defend - part 2
“Leaky condominiums” have become notorious in British Columbia
The policies requireLombard to defend and indemnify Progressive Homes when Progressive is legally obligated to pay damages because of property damage caused by an occurrence or accident. Lombard refused to defend the claims and Progressive brought an application for a declaration that Lombard is under a duty to defend.
Justice Rothstein went on to declare that an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured to the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that the claim falls within the insurance policy. In examining the pleadings to determine whether the claim falls within the scope of coverage, the parties to the insurance contract should not be bound by the labels selected by the plaintiff but by the true nature or substance of the claim.
Justice Rothstein, for the Supreme Court of Canada, reiterated some significant principles of insurance policy interpretation, including that when the language of the policy in unambiguous, the court should give effect to the clear language and should read the contract as a whole. Where the language of the insurance policy is ambiguous, courts should prefer interpretations that are consistent with the reasonable expectations of the parties and courts should avoid interpretations that would give rise to an unrealistic result. Where these rules of construction failed to resolve an ambiguity, courts will construe the policy contra proferentem. Subsumed by the contra proferentem rule is that coverage provisions should be interpreted broadly and exclusion clauses narrowly.
Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.
The policies require
Justice Rothstein went on to declare that an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured to the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that the claim falls within the insurance policy. In examining the pleadings to determine whether the claim falls within the scope of coverage, the parties to the insurance contract should not be bound by the labels selected by the plaintiff but by the true nature or substance of the claim.
Justice Rothstein, for the Supreme Court of Canada, reiterated some significant principles of insurance policy interpretation, including that when the language of the policy in unambiguous, the court should give effect to the clear language and should read the contract as a whole. Where the language of the insurance policy is ambiguous, courts should prefer interpretations that are consistent with the reasonable expectations of the parties and courts should avoid interpretations that would give rise to an unrealistic result. Where these rules of construction failed to resolve an ambiguity, courts will construe the policy contra proferentem. Subsumed by the contra proferentem rule is that coverage provisions should be interpreted broadly and exclusion clauses narrowly.
Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.
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