You are here: Heydary Blog » Negligence

Archive for the ‘Negligence’ Category

Bank’s Potential Liability in Negligence for Its Customer’s Fraud

Wednesday, February 27th, 2013

In the recent decision Pardhan v. Bank of Montreal (2013 ONSC 355), the Ontario Divisional Court dismissed motions for leave to appeal orders of Madam Justice Horkins certifying two related class actions.  Among the many issues considered by the Divisional Court, Justice Lederer affirmed Justice Horkins’ determination that a bank may be potentially liable in negligence for its customer’s fraud based on constructive knowledge alone.

Salim Damji (“Damji”) perpetrated a fraud, defrauding his victims of more than $77 million through a fictitious investment scheme. Damji operated his fraud through a numbered Ontario company named “Cash Plus” and a series of BMO bank accounts. All of the money the proposed class members deposited into the corporate BMO account of Cash Plus and Damji’s personal BMO accounts were dispersed to offshore gambling establishments.

One of the victims of the fraud, Pardhan sued BMO and sought to certify his lawsuit as class action against BMO on behalf of the class individuals whose investments were flowed through Cash Plus and Damji’s personal BMO accounts.  Pardhan claimed that BMO was liable to the class in knowing assistance in breach of trust, knowing receipt of trust monies and in negligence.

Justice Horkins in 2012 certified the class action against BMO arising from the fraud perpetrated by Damji.  BMO brought motions for leave to appeal orders of Justice Horkins. The Divisional Court dismissed the defendants’ motions. Justice Lederer, writing for the Divisional Court affirmed Justice Horkins’ decision of certification on the grounds that: 1) the pleading discloses a cause of action; and 2) the claims of the class members raise common issues.

One of the issues considered by Justice Ledererm, which would have important implications for fraud litigation, is whether the claim disclosed a reasonable cause of action in negligence. Justice Lederer engaged in the two-part test of negligence established in Anns v. Merton London Borough Council. He found that the relationship between BMO and the plaintiffs in this situation did not fall within any category of cases where it had been established that a prima facie duty of care can or cannot exist. The question becomes whether this is a situation where a new duty of care should be recognized. Justice Lederer upheld Justice Horkins’ decision that the facts of the plaintiffs’ case were compelling enough to justify finding a prima facie duty of care based on BMO’s constructive knowledge. The court decided that it was not “plain and obvious” that the claim of negligence based on constructive knowledge will fail. The court concluded that the ultimate determination of the existence of a duty of care and any policy considerations that would negate any prima facie duty of care should be left to the trial judge.

For more information:

Justice Lederer’s decision can be read here.

Justice Horkins’ decisions in 2012 can be read here and here.

 

Echo Wu, Student-At-Law

Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

 

Posted in Civil Litigation, Class Actions, Disputes with Banks, Fraud, Negligence | Add Comment »

Defendant Gets Summary Judgment in a Motor Vehicle Accident Case

Thursday, August 25th, 2011

Guo v. Simpson seems like the classic car accident case in which vehicles collide in an intersection controlled by traffic lights.  If both drivers claim that they entered the intersection on a green light, liability issues will turn entirely on credibility, and such cases seem poorly suited to resolution on a motion for summary judgment.

The defendant Simpson did move for summary judgment, however, based on admissions he apparently received from the plaintiff on examinations for discovery and as a result of serving notices to admit.

Simpson’s co-defendant Pamplona, the other involved driver, did not defend the action, and his automobile insurer obtained an order adding it as a third party to the action under section 258(14) of the Insurance Act.  Although this insurer initially opposed Simpson’s motion, it eventually decided to take no position.  The plaintiff persevered, trying to keep Simpson in the action on the grounds that possible testimony from Pamplona would show that Simpson was contributorily negligent.

In her affidavit, she deposed that she’d spoken to Pamplona at a nursing home.  Through a Portuguese-speaking interpreter, she learned that Pamplona had suffered two strokes, had serious diabetes, had undergone an amputation, and had additional serious medical problems. She also indicated that Mr. Pamplona had no recollection of the accident.  There was no evidence to suggest that he would ever recover his memory.

Primarily, it appears that the plaintiff relied on information that her counsel had obtained from counsel for Pamplona’s insurer, indicating that Pamplona made statements at the accident scene which, if true, would mean that he had entered the intersection in obedience to the traffic lights.

On Simpson’s motion for summary judgment, the court stated that even if this evidence was admissible for the purposes of the motion, it was not sufficient to counter the moving party’s evidence demonstrating that there was no genuine issue requiring trial with respect to the potential liability of the defendant Simpson: “The plaintiff raises at best a faint possibility that Mr. Pamplona may be able to testify and recover his memory sufficiently to be able to provide further evidence on how the accident occurred.”

According to the court, a summary judgment motion can’t be successfully resisted on the basis of suggestions or speculation as to evidence that might be obtained at a later date.  The court is required to make its decision based on the evidence actually adduced on the motion.  Simpson’s motion was therefore allowed, and the action against him dismissed.

Link: CanLII – 2011 ONSC 4960 (CanLII)

Richard Hayles, B.A., J.D.

Insurance and commercial litigation lawyer

 

Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, Insurance, Negligence, Personal Injury, Summary Judgment | Add Comment »

Summary Judgment – Claim for Trespass Struck, Claims for Conversion, Trespass to Chattels and Negligence to Proceed

Thursday, August 4th, 2011

In Aylmer Meat Packers Inc. v. Ontario, 2011 ONSC 4470 the Honourable Justice Chapnik granted partial summary judgment on the motion of Attorney General of Canada (“AGC”), one of two government defendants, striking out the claim for trespass from the plaintiff’s Statement of Claim, but otherwise holding that the plaintiff’s claims for losses suffered by meat spoiling during an investigation by the Ontario Ministry of Agriculture and Food described in the plaintiff’s action for conversion or trespass to chattels and negligence may proceed in the usual course. 

The AGC had argued that since the Canadian Food Inspection Agency (“CFIA”) carried out a lawful search, seizure, and detention and it was the Provincial authorities who prohibited the meat from being sold, it cannot be found liable in tort for trespass, conversion or trespass to chattels.

The motion judge held with respect to the claim for trespass, that whilst a person entering land with authority may become a trespassers ab initio if the authority is abused “the abuse must amount to a positive, wrongful act, as opposed to an omission or non-feasance and the abuse triggering the trespass ab initio must be related to and take away the entire reason of the entry”.  The motion jduge held that there was no genuine issue to be determined at trial regarding the abuse of authority, since the parties agreed that the CFIA had lawful justification to enter the plant by way of search warrant issued to the CFIA and given the complexity of the search and the lack of evidence showing that the CFIA was in the plant for any longer than a time period of just under a month.

However, with respect to the claims for conversion or trespass to chattels, the court held that the issue whether or not CFIA exceeded their jurisdiction in the manner of detention of meat products was a question that can be determined only after a trial. The motion judge reasoned that there were questions of fact as to who had care and control over meat products at certain points of the investigation, including responsibility for the freezer at the time of the alleged malfunction, or whether the handling of the meat was done wrongfully. Similarly, with respect to the negligence claim, there was a question as to what the duty consisted of and whether it was breached in the circumstances and the motion judge found that the allegations of certain actions by CFIA were disputed and require assessments of credibility and of the evidence.

David Alderson, LL.B, LL.M  

Heydary Hamilton PC has been involved in a substantial number of summary judgment motions, including a number of leading cases. Here is a sample of cases where we have acted for clients succeeding in motions for summary judgment: 

Bruno Appliance v. Cassels Brock & Blackwell LLP, 2010 ONSC 5490 

Harster Greenhouses v. Visser International, 2011 ONSC 2608 

 Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, Negligence, Summary Judgment | 1 Comment »

Home, Cottage and Recreational Property Litigation

Friday, July 22nd, 2011

For many people the most valuable asset they own is their home, cottage or other recreational property.

Heydary Hamilton PC can advise and represent homeowners, cottage owners and other property owners in connection with claims and disputes arising in connection with home, cottage or other residential or recreational property.

Whether such claim or dispute arises in connection with:

  • the design, construction, repair or demolition of property
  • damage to the property
  • fire, smoke, flood, mould or infestation
  • homeowners insurance claims
  • insurance coverage for third party claims
  • injuries occurring on the property, including slip and fall, dog bite and owner or family injuries sustained on the property
  • occupiers’ liability
  • warranty coverage
  • purchase and sale issues
  • alcohol liability and host issues
  • swimming pool claims
  • mortgage, foreclosure and other finance issues
  • easements and licenses
  • ownership disputes
  • partition and sale
  • condominium issues
  • maintenance fees, levies and the like
  • management and operation of the property
  • products liability
  • neighbours, other property owners or associations
  • utilities and suppliers of services
  • trespassers
  • use of the property
  • failure of insurers to defend owners
  • boundary disputes or adverse possession
  • restrictive covenants
  • leasing, sublet or assignment issues
  • tax assessment
  • valuations
  • timeshare issues
  • environmental issues
  • homeowner and cottage owner’s association issues
  • expropriation and eminent domain issues
  • dilapidation and demolition
  • wills and estates issues
  • disputes as to title
  • real estate agents or brokers

Heydary Hamilton PC can provide effective and efficient legal services in connection with home, cottage and recreational properties.

David Alderson, LL.B, LL.M 

Richard Hayles, B.A., J.D.

 

Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

 

Posted in Civil Litigation, Construction Disputes, Contract Disputes, Family Law, Insurance & Reinsurance, Marine & Maritime, Negligence, Personal Injury, Real Estate Law, Travel & Tour Operators | 1 Comment »

Injured on Vacation

Friday, July 22nd, 2011

Canadians love to travel. 

In particular, Statistics Canada recently reported that travel by Canadians to foreign countries included these top fifteen destinations: United States, United Kingdom, Mexico, France, Cuba, Dominican Republic, Italy, Germany, Netherlands, Spain, China, Hong Kong, Japan, Switzerland and Austria.

Travel to the USA included these top fifteen destinations: New York, Michigan, Washington, California, Ohio, Pennsylvania, Massachusetts, Minnesota, Illinois, Florida, Texas, New Jersey, Wisconsin, Maine and Oregon.

But accidents sometimes occur to Ontario residents while they are travelling to or from, visiting, working or vacationing in other provinces or countries. 

Examples of Vacation Accidents

Road, Rail and Air Accidents and Injuries
Bus Accidents and Injuries
Water Accidents and Injuries – Beach and Swimming Pool Accidents
Cruise Accidents, Injury and Illness
Maritime Accidents – Boat and Jet-Ski Injuries
Boating Accidents, including Small Craft and Sailing Accidents
Water Sports Injuries – Diving, Scuba and Snowboarding Injuries
Winter Sports Accidents – Snowmobile, Ski, Snowboard and Climbing Accidents
Equestrian Activities – Riding and Equestrian Sports
Spectator Injury 
Amusement Park Ride Accidents
Victim of Assault or other Criminal Activity
Food Poisoning and Illness

Suppose that during a vacation or while working outside Ontario or abroad, injury, harm or loss was caused to you or a member of your family by one or more of the following: tour operators, travel agents, ship and boat owners and operators and cruise lines, airlines, hotels, restaurants, sports venues, amusement and theme parks, entertainment venues, or ski and snowboard resort owners and operators.  Or you want to present a claim to your travel insurers for injury, death, harm or loss caused during a holiday or travel excursion.

Claims by Ontario residents from events arising in other provinces or other countries often involve complex issues of jurisdiction (where the lawsuit must be started) and questions as to which country’s laws should apply. We can provide an opinion as to whether or not the laws of Ontario apply to your situation, and whether or not the courts in Ontario have jurisdiction to hear your case or whether you must go to a court in a place other than Ontario to seek damages or other remedies. 

In cases where you are required to pursue your accident claim in a province other than Ontario or in the country where it occurred, we cannot provide legal advice or representation, but we can be retained to assist you in the choice and appointment of a lawyer to handle your case in the country where the accident occurred. 

Please note that it is important to seek and obtain legal advice of a competent lawyer in the appropriate jurisdiction as soon as possible, since time limitation periods to give notice of claims and to commence legal proceedings will vary across Canada and throughout the world and in some cases these time limits are very short.

Richard Hayles, B.A., J.D. 

David Alderson,  LL.B, LL.M 

Admitted in Ontario, Canada and New York, USA.
Also admitted (but not practicing) in Bermuda, England and Wales.
Practiced with Legal Consultants in Dubai.

 

Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

 

Posted in Civil Litigation, Construction Disputes, Enforcement of Foreign Judgments & Decrees, Insurance & Reinsurance, International & Cross-Border, Negligence, Passenger Claims, Personal Injury, Travel & Tour Operators, Uncategorized, Urgent Legal Assistance | 4 Comments »

Consent Dismissal of Injured Parties’ Claims Bars Derivative Family Law Act Claims

Thursday, June 9th, 2011

It is well established in the jurisprudence that claims for loss of care, guidance, and companionship under section 61 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) involve derivative rights.  These claims do not have a legal life on their own, and if the injured person is not entitled to maintain an action for damages, family members are not entitled to advance section 61 claims: Drummond Estate v. Reid Estate, 1993 CanLII 5482 (ONSC), at para. 17, Von Cramm v. Riverside Hospital of Ottawa et al, [1986] O.J. No. 999 at para. 11, and Smith et al v. College of Physicians and Surgeons, 1998 CanLII 1523 (ONCA), at para. 38.

In a recent case the Ontario Superior Court of Justice considered the question of whether or not FLA claimants could continue their action after the litigation guardian for the physically injured plaintiffs had obtained an order on consent discontinuing the injured plaintiffs’ claims.  Is the derivative action of the FLA claimants barred by the consent order, or can the FLA claimants, who did not consent to the order, continue their action for section 61 damages? 

In May of 1994 Cathy McRitchie gave birth to premature twins, Jennifer and Heather.  Heather was born with severe disabilities, including blindness, deafness, and quadriplegia.  Jennifer’s disabilities were less severe; she had developmental challenges, but was able to function with assistance. 

The McRitchie family started an action against the hospital and the physicians and nurses involved in the twins’ birth.  The father, Robert McRitchie, initially acted as litigation guardian for the twin girls.  In 2007, however, the Office of the Children’s Lawyer (the “OCL”) reviewed the matter and agreed to the father’s request that the OCL take over as litigation guardian for the twins.

The OCL retained a lawyer to review the record and provide an opinion regarding the viability of the twins’ claim.  After conducting a thorough review of the already extensive investigations undertaken by the parents’ lawyer, and after consulting medical experts retained by the OCL, counsel provided the OCL with an opinion to the effect there was no reasonable prospect of establishing liability on behalf of the twins against any of the defendants.

The OCL then brought a motion for under rule 7.08 of the Rules of Civil Procedure seeking an order dismissing the claims of the twins without costs.  That order was granted on consent in June of 2009. 

The parents’ FLA claims came on for trial before Tausendfreund, J. in May of 2011.  Having concluded, based on the authorities cited above, that the FLA claims were entirely derivative in nature, the trial judge was called upon to determine whether or not the consent dismissal of the twins’ action operated as an estoppel by res judicata to the continuation of the parents’ action under the FLA. 

Tausendfreund, J. referred to the public policy principles upon which the doctrine of res judicata is founded: first, the state has an interest in ensuring that there is an end to litigation, and second, that no individual should be sued more than once for the same cause of action. 

The judge then referred to case law describing the obligation of the court on a motion under rule 7.08 seeking court approval of an infant settlement.  Under its parens patriae jurisdiction, the court has to ensure that the party seeking approval of the settlement has submitted sufficient evidence so that the court can make a meaningful assessment of the reliability of the proposed settlement, in this case a dismissal without costs.  This is a serious and substantial requirement, which requires full disclosure of the evidence regarding the material issues.  Although a full trial is not required, the party seeking court approval has to provide sufficient evidence to demonstrate that the order sought provides a real benefit to the infants and adequately addresses their long-term needs and interests. 

Once the infant settlement is approved by the Court, the decision represents a judicial determination on the merits and a final disposition of the claim.  The June, 2009 order approving the consent dismissal of the twins’ claim was therefore a final decision regarding the action brought by the injured plaintiffs. 

The trial judge also referred to authority indicating that a consent order is a judgment of the court rather than an agreement or contract between the parties to the proceeding.  It is regarded as equivalent to a judgment after a hearing on the merits, and therefore can be enforced in the same manner as if it had been issued by the court upon completion of a trial or hearing. 

Tausendfreund, J. therefore concluded that res judicata applied, and the derivative FLA claims of the parents could not proceed. 

Link: McRitchie et al v. Dr. Natale et al., CanLII – 2011 ONSC 3400 (CanLII)

Richard Hayles, B.A., J.D.

 

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, Medical Malpractice, Negligence | Add Comment »

City of Mississauga Not Responsible for Icy Sidewalk

Thursday, March 31st, 2011

Under section 44(9) of the Municipal Act, a municipality is not liable for personal injury caused by snow or ice on a sidewalk “…except in cases of gross negligence”.

Douglas Billings slipped on an icy sidewalk in Mississauga following a major snow and ice storm.  He sued the City of Mississauga.  In court, he alleged that the City had failed to follow its own snow removal policy, under which snow and ice is to be cleared within 36 hours of a storm.  He pointed to the fact that the sidewalk where the accident took place had been in a dangerous condition for over 100 hours, and that the City relied exclusively on unionized workers (as opposed to independent contractors), who were not required to work overtime and weekends.

Mr. Billings’s case was dismissed at trial, so he took it to the Ontario Court of Appeal.  The trial judge had found that the storm in April of 2003 was an extraordinary event.  That conclusion was supported by an Environment Canada survey, which ranked the storm second on its list of the top 10 Canadian weather stories of that year.

The trial judge had carefully reviewed the City’s systems, personnel, and policies for dealing snowstorms.  He concluded that the City’s response to the April, 2003 storm was “completely reasonable”.  The Court of Appeal agreed, and dismissed the appeal.

The standard of gross negligence that has to be met in order to succeed in a claim of this kind is extremely high.  The case illustrates the difficulty that plaintiffs and their lawyers face in pursuing this kind of claim against a municipality.

The case is also interesting in that the court accepted the defendant’s assertion that a big snowstorm is an extraordinary event.  Municipalities often design their snow removal and storm water systems to handle a “100 year storm”, meaning that the systems are capable of dealing with precipitation that equals the volume and intensity of the biggest storm to hit the area in the last 100 years, based on historical weather records.  The writer, who has been practicing law for less than 100 years, has personally been involved in several lawsuits which involved “100 year” storms.  Record setting storms seem to have become the new normal, perhaps as a result of changes in weather patterns resulting from global warming.  Will the courts eventually hold that municipalities ought to take note of these changing conditions, and plan for storms that exceed the 100 year standard?

Richard Hayles, B.A., J.D.

Link: Billings v. Mississauga (City), 2011 ONCA 247

 

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, Insurance & Reinsurance, Negligence, Personal Injury | Add Comment »

International, Transnational and Cross-Border Litigation – Four Jurisdiction Cases in the Supreme Court of Canada

Friday, March 4th, 2011

There are scheduled for hearing this month in  the Supreme Court of Canada four cases involving the issue whether the courts in Ontario should take jurisdiction over out-of-province defendants, namely:

  1. In proceedings in Ontario arising as a result of  accidents suffered by Canadian tourists in Cuba (Van Breda v. Village Resorts Limited, 2010 ONCA 84, which included Charron v Club Resorts Ltd.)  
  2. In defamation actions commenced in Ontario (Banro Corporation v. Les Éditions Écosociété Inc., 2010 ONCA 416 and Black v. Breeden, 2010 ONCA 547) 

David Alderson LL.B, LL.M (Lond.)

 

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, International & Cross-Border, International Trade, Negligence, Sale of Goods, Travel & Tour Operators | 1 Comment »

Appeal Court Enforces Two Year Limitation Period in Environmental Claim

Wednesday, February 9th, 2011

The Ontario Court of Appeal has determined that a claim arising out of an oil spill is barred by the Limitations Act, 2002 two years after the plaintiff learned of the involvement of the potential defendant.

Audrey Sloan sued Ultramar Limited and Sauve Heating Limited as a result of an oil spill that took place on February 23, 2004.  That action was commenced February 22, 2006, one day prior to the expiry of the two year limitation period.  Ultramar delivered its statement of defence on August 9, 2006, and although the statement of defence clearly indicated that the fuel had been delivered by an independent contractor, it appears that the contractor and the truck driver were not named in Ultramar’s pleading.

The examination for discovery of a representative of Ultramar was held some eight months after the delivery of the statement of defence.  On discovery, counsel for the plaintiff asked questions about the identity of the truck driver and the company that had delivered the fuel.  Ultramar provided a name for the independent contractor, but that name turned out to be erroneous.

Ultramar gave several undertakings on discovery related to the identity of the independent contractor and the driver.  These undertakings remained outstanding until April 30, 2009.  Based on information provided in the answers to the undertakings, the plaintiff brought a motion on November 13, 2009 seeking to add the independent contractor and the truck driver as defendants to the action.  This motion was brought more than three years after the involvement of the independent contractor was disclosed in the Ultramar statement of defence.

The Master granted the order sought by the plaintiff, adding the driver and the contractor as defendants.

The Court of Appeal identified the delivery of the statement of defence on August 9, 2006 as the “…triggering event in terms of the discovery of a potential claim against the proposed defendants”.  The court took note of the fact that, in the two years following the triggering event, the only step taken by the plaintiff to follow up on the information disclosed in the Ultramar statement of defence was to question the Ultramar representative on discovery about the truck driver and the independent contractor.

While the Court of Appeal allowed that the threshold on a motion to add a party is low, it concluded that the plaintiff had failed to provide a reasonable explanation as to why the proposed defendants were not identified and added as parties prior to the expiry of the two year limitation period.  On the evidence available, it was not open to the Master to grant the order adding the proposed defendants.

Plaintiffs in environmental claims often do not know the names of all of the individuals and companies involved in the incident at the time the statement of claim is issued.  Thus the situation in which this kind of information comes to light by means of a statement of defence filed by an opposing party, or through the discovery process, is fairly common.

It appears that a plaintiff who has learned of the possible involvement of a potential defendant must take prompt steps to identify and add that party as a defendant to the pending action, even if the information provided is incorrect or incomplete.

Link: Sloan v. Ultramar Limited, 2011 ONCA 91

Richard Hayles, B.A., J.D.


Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Civil Litigation, Negligence | Add Comment »