BROWN & PARTNERS LLP TORT SUMMARIES FEBRUARY 2016

Transcription

1 Case Name Howell v. Jatheeskumar, 2016 ONSC 1381 Date March 7, 2016 Justice Lemay J. Issue(s) Motion by the plaintiff to add own her insurer TD General Insurance Company (TD) under the OPCF 44R. In addition, to extend the time for service of the Statement of Claim on the defendant Milan Auto (Milan), and for substituted service on Milan. Facts The limitation period expired on February 22, The plaintiff attempted to serve Milan on August 27, 2014, and was told Milan moved. The Plaintiff made no further attempts to find and serve Milan until after the limitation period expired, and outside the deadline for service of the claim. Five months later, counsel located Milan (not having tried earlier). Milan s employees refused to accept service, and the owner advised the process server by telephone that he would return the following week. Counsel made no further attempts to serve Milan and only delivered the motion record to Milan by regular mail. Counsel provided no evidence that Milan continued to operate at the same location at the time of the motion. The motion to add TD as a party is granted, subject to TD s right to rely on the Limitations Act. The motion to extend the time for service and substituted service as against Milan is dismissed. Reasons Adding TD: Under the Court of Appeal s decision in Schmitz v. Lombard, TD was added as a defendant. however, as the plaintiff never properly added Milan, TD may rely on the provisions in the OPCF 44R that require the plaintiff to sue all appropriate parties. Milan Auto: The Plaintiff led no evidence to rebut the presumption of prejudice. The earliest Milan knew of the claim was 18 months after the limitations period expired. This itself created prejudice. There was no explanation of the delay. The motions to extend the time for service of the claim and for substituted service failed. 1

2 Case Name Tuffnail v. Meekes, 2016 ONSC 710 Date February 23, 2016 Justice Rady J. Issue(s) Motion by the defendants, Optimist Club of Downie, The Township of Perth and Doug Hearn, for summary judgement dismissing the action and a crossclaim against them. Facts Single vehicle accident on September 13, 2009 in Oxford County, Ontario. The vehicle was driven by Meekes. Tuffnail and Petrie were passengers. The car left the road and struck a tree. Petrie was killed and Tuffnail was badly injured. Two actions were commenced, one by Tuffnail and his family, the other by Petrie s family. The plaintiffs allege that prior to the accident Tuffnail, Petrie and Meekes had attended a wedding reception hosted by Tom Bolton at the Downie Optimist Community Centre. It was alleged that Meekes consumed alcohol and was intoxicated at the time of the accident. Tom had rented the community centre and held a Special Occasion Liquor Licence Permit. The plaintiffs named the following defendants: Meekes (driver); Tom (host of wedding reception); The Township of Perth (owner of the hall); Downie Optimist Centre (non-profit club); and Hern (hall manager) The plaintiffs allege that the named defendants were occupiers of the community centre or they over-served alcohol to Meekes. Tom crossclaimed against the moving defendants for contribution and indemnity in negligence for breaching their duty under the Liquor License Act. Reasons The defendants are entitled to summary judgment dismissing Tom Bolton s crossclaim against them. According to section 1 of the Occupiers Liability Act an occupier includes someone who is in physical possession of premises. The evidence demonstrates that the township was neither in possession nor had a physical presence at the hall, so it cannot be an occupier. Similarly, neither the Optimist Club nor Hearn were in possession of the hall, in control over its condition or the activities carried on there. Section 3 of the OLA provides that a duty of care exists to those entering the premises to ensure their reasonable safety while there. In this case, the accident occurred off the hall premises and therefore, the Act does not apply. This is dispositive of any claim made under the OLA as against the township as well as the Optimist Club and Hearn. At common law, liability flows from the fact that the commercial host creates and controls the risk of harm to patrons and third parties. Liability is also imposed by statute, the Liquor License Act. If liability exists, it rests upon the person selling the alcohol, who in this case is Bolton (liquor license holder). There is no evidence that either the township, the Optimist Club or Hearn 2

3 sold alcohol to anyone. The evidence was clear that Hearn did not hold the liquor license for the hall, did not sell alcohol at the reception and acted within the scope of employment duties which did not require him to be responsible for the training of employees serving alcohol and for supervising guests at the reception. (Note This is a very limited definition of physical possession of the premises under the OLA) Because the moving defendants cannot be found liable under the OLA or for over-service of alcohol they are not joint tortfeasors vis-a-vis Tom, and any claims against them were dismissed. 3

4 Case name Trepkov v. Jaworski, 2016 ONSC 1267 Date February 19, 2016 Date of Loss October 28, 2009 Jutice Issue A.M. Mullins Are collateral benefits received from the plaintiff s own insurer when she settled her AB claim to be deducted from the jury s award? The jury award is to be reduced by the AB contribution. Facts A jury trial of the plaintiff s claims concluded in June 2014 The jury awarded $3,510 for future costs of health care All other damages including out of pocket expenses to date were assessed at $0 The plaintiff settled her AB claim on August 26, 2011, with $13,550 allotted to past and future medical benefits The plaintiff argued that AB medical benefits are only payable for 10 years following the accident and if the jury included any portion of its award for a period after 10 years, the court could not make the deduction. Reasons Although there was evidence from the plaintiff s future care cost expert that some of the costs extended beyond the 10 year mark, there was no evidence that some or any of the costs would first arise beyond the 10 year mark. The jury award ought to be reduced by the sum received by the AB insurer pursuant to s of the Insurance Act. Thus, the plaintiff was not entitled to judgment of $3,510 nor postjudgment interest. 4

5 Case name Foniciello et al. v. Bendall and Acculine, et al., 2016 ONSC 111 Date February 17, 2016 Date of Loss August 19, 2006 Jutice J. R. Henderson Issue What quantum of damages were the plaintiff and FLA claimants entitled to? The plaintiff, Joe (age 44 at time of accident) was awarded: General Damages $275, Future Loss of Income $524, Past Medical/Rehabilitation Expenses $51, (net of collateral benefits) Future Medical/Rehabilitation Expenses $1,899, Attendant Care Expenses $765, (the decision was silent regarding any ATC available under the AB claim) Management Fee (5% of above amounts) $3,515, x 5% = $175, The plaintiff s sister, Mary was awarded: Non-Pecuniary FLA Damages $50, Future Counseling Expenses $10, Value of Services Provided $122, The mother was awarded FLA damages of $25,000 and the 2 daughters, $40,000 each. Facts Joe s motorcycle was struck by a van causing him to suffer a traumatic brain injury that left him in a semi-conscious state for approximately five months Although he had no significant ongoing physical impairments, he will have permanent cognitive, intellectual, and behavioural impairments He had been a welder at Ford for 8 years at the time of the accident Joseph s sister, Mary is a trained RN and had played a significant role in Joseph s rehabilitation and acted as his power of attorney 60% of liability was on the defendant driver and 40% was on the company making pavement markings at the time the injuries were not disputed, just the amount of damages Reasons General damages: the witnesses were credible and reliable. Joe required cues and repetitive routines to complete daily activities. Neuropsychological testing by the plaintiff and defendant s expert agreed on his limited functioning abilities. His brain injury had not improved and he was four times more likely to develop dementia. Case law had a range of $200,000 to $300,000 for generals. Loss of income: there was no past loss after all collateral deductions. In fact, there was a balance of $76,703, which was to be deducted from his future loss of income claim. The judge accepted that he would have continued working at Ford until it closed in 2011 then been recalled by Ford in January 2013 and worked there until retirement. The judge reduced Joe s future loss by 10% in order to adjust for the contingency that he seemed less likely than the average worker to participate in work as he aged as that was not his 5

6 primary focus in life. Future Med/Rehab: surveillance showed Joe could independently drive his vehicle, attend the gym, buy food and groceries, go to the movies and Tim Hortons. As Joe had learned routines, he would require less therapy in the future than in the past, with a goal to maintaining his current level of function. The award included neuropsychological counselling, OT services, rehabilitation therapy services (less frequently than requested by Joe), case management, gym membership, medications, brain injury support group costs, and GPS, for the rest of his life. 2 years of speech language pathology was also awarded. Golf fees, internet, travel expenses, office equipment costs were denied as a person would have those even if they were not in an accident. 50% of the costs for a data plan, iphone upgrade and laptop was accepted as he needed better software and was heavily reliant on the items. Attendant Care: Given the surveillance evidence, he only needed 2 hours/day with a PSW to get his day organized, to the age of 60. Given his chances of developing dementia, he would need 16 hours/day from age 60 to end of life, which was reduced by 75% for negative contingencies regarding the rate of dementia, what age he would get it at and if he would get it even with no accident. FLA Claims: factors considered included how good their relationship was pre-accident, how much Joe did for them i.e. take to appointments, and if the claimants had to take care of Joe postaccident. Mary was awarded some reimbursement of caregiver services, discounted by 60%, as she had been on call for Joe but he had other full-time professional help. 6