Ontario Trial Lawyers Association Case Summaries – September 4, 2015
Singer Kwinter’s Veronica Marson highlights important facts and outcomes in the Ontario Courts.
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Case summaries originally distributed in OTLA September 4, 2015 newsletter.
Released August 20, 2015 | CanLII
This Superior Court decision involved a motion brought by a defendant for an order requiring the plaintiff to attend defence orthopaedic and psychiatric examinations. The plaintiff was involved in two motor vehicle accidents in 2006 and 2009. The pleadings and the available medical evidence indicated that the plaintiff’s physical and psychological impairments were matters at issue in the proceeding. A trial record was filed by the plaintiff. At assignment court in January 2014, counsel for the defendant agreed to a fixed trial date without reserving the defendant’s right to conduct an independent medical examination of the plaintiff. A trial date was set for February 2016. It was not until March 2015 that the defendant advised plaintiff’s counsel of its intention to schedule two defence medical examinations. At issue was the interpretation of Rule 48.04(1) and whether the defendant required leave to bring its motion after agreeing to a trial date.
After reviewing the applicable case law, the court concluded that consenting to a fixed trial date is not the same as consenting to an action being placed on a trial list. The court found that the wording of Rule 48.04(1) is clear and specific and requires a party who has set an action down for trial or consented to an action being placed on a trial list to seek leave to initiate a motion or conduct further discovery. The court found that if the drafters of the Rules intended to extend the leave requirement to any party who agreed to a fixed trial date, they could have easily incorporated that language into the Rules. The court further noted that parties to an action in Toronto are required to complete the Toronto Certification Form and potentially appear at trial scheduling court regardless of whether they set down the action for trial. The court further asserted that the Rules should not be interpreted in a manner that discourages parties from cooperating in the trial scheduling process out of a fear of losing substantive rights. The court ultimately concluded that the defendant did not need to seek leave in order to bring its motion for defence medical examinations and ordered that the plaintiff attend same.
Read the full decision on CanLII.
Released August 24, 2015 | CanLII
This Superior Court decision involves two summary judgment motions brought by two defendants to dismiss the action against them on the basis of liability. The action arose from injuries the plaintiff sustained to his left ankle while operating a tractor on a steep embankment of a cottage property. While the plaintiff was moving rocks on the property, the tractor flipped over and crushed his ankle. At the time of the accident, the plaintiff was working for a father and son landscaping company. The cottage property was owned by another defendant in the action. An investigation into the accident resulted in the son landscaper being convicted of various offences by the Ministry of Labour. The Ministry of Labour’s investigation concluded that the significant slope on the property combined with driving the tractor forward up the slope compromised the stability of the tractor, resulting in the accident. The father landscaper was not investigated nor convicted of any offense by the Ministry of Labour with respect to the accident. The discovery evidence of the parties regarding the accident was very contradictory. The only points on which the defendants agreed upon was that the tractor’s wheels started spinning and that the son landscaper was inside the cottage and the father landscaper was asleep outside on the deck when the accident happened.
The father landscaper and the owner of the property each brought a motion for summary judgment on the basis that there was no genuine issue requiring a trial with respect to liability. The owner of the property argued that she maintained her property, had contracted with an experienced contractor for general maintenance, and had no reason to expect that the work performed was unusually dangerous or would not be properly supervised. The father landscaper argued that his son alone was responsible for contracting for and performing the work on the cottage property and that he did not have any knowledge or responsibility over supervising the plaintiff in the performance of his duties.
After reviewing the law on summary judgment and the evidence submitted by the parties, the court concluded that the summary judgment process did not allow the court to make the necessary findings of fact and apply the law to the facts. The court found that it was necessary for a jury to hear evidence of the relationship between the cottage owner, the plaintiff, and the father and son landscapers. With respect to the cottage owner, the court noted that findings of fact regarding what constitutes reasonable care are specific to each fact scenario and are important to the issue of liability. The court found that there were issues for trial relating to the owner based on her defence of hiring an independent contractor and the doctrine of volenti. The court concluded that the necessary factual findings to determine what constituted reasonable care of the owner given the circumstances of the case could not be made out on the motion.
With respect to the landscaper father, the court found that it was necessary to look into the facts surrounding his involvement in his son’s business and in supervising and directing the plaintiff. With respect to both defendants, the court found that it was not appropriate for the court to decide significant and contentious issues requiring an assessment of witness credibility and reliability through the use of affidavits and transcripts. The court also declined to use its discretionary powers to weigh evidence, evaluate credibility, and draw inferences on the basis that a trial would still be necessary to fully determine the matters at issue. The court ultimately concluded that summary judgment was not the most expeditious and least expensive means of proceeding and dismissed both motions for summary judgment on that basis.
Read the full decision on CanLII.
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