Canadian Lawyer

November 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 4 NEWS BRIEFS Ontario Court of Appeal affirms Toronto's liability in eye injury case In Becker v. Toronto (City), 2020 ONCA 607, the plaintiff was blinded in her left eye when the glass portion of an office door shattered and struck her in a city-operated community centre. Toronto's appeal contended that a breach of the duty of care would constitute not only the absence of the tempered safety glass but also the city's failure to take reasonable care to attempt to have that type of glass installed. The Court of Appeal stood by the trial judge's decision that the city breached its duty of care under the Occupiers' Liability Act. Divisional court upholds restrictions for nephrologist In Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, the Medical Advisory Committee of the Windsor Regional Hospital suspended the hospital privileges of the applicant, a nephrologist. The Divisional Court has upheld an investigatory committee's decision to restrict the physician from treating patients at very high risk of developing end-stage kidney disease. An independent investigator concluded that, in 17 of 28 cases reviewed, the applicant's clinical practice and conduct were likely to expose patients to harm or injury. She identified major communication gaps that could potentially lead to patient confusion and risk of patient harm. Slip-and-fall case asks if bus drivers have duty to mop the floor The Ontario Superior Court of Justice has rejected a request for summary judgment in a case involving an alleged slip-and-fall injury. In Hassan v. Greyhound Canada Transportation Corp., 2020 ONSC 5946, the plaintiff broke her ankle stepping off a Greyhound bus from New York City to Toronto. The defendant, Greyhound Canada, filed a motion for summary judgment, which the Ontario Superior Court of Justice dismissed. The court said that the evidence regarding the mechanics of the plaintiff's fall and regarding the transportation company's cleaning policy was inadequate to fairly and justly decide upon the matter. Damages awarded to ICBC over staged collisions In Insurance Corporation of British Columbia v. Singh, 2020 BCSC 1320, three rear-end motor vehicle collisions took place in Surrey within the span of three months and with no independent witnesses present. Two of the collisions occurred in roughly the same area, which was close to Pro Choice, an auto body repair business in Surrey. The owner of Pro Choice was involved in the collisions. The Supreme Court of British Columbia found that the defendants had staged the motor vehicle collisions to make fraudulent insurance claims and personal injury claims. Proposed law could permit Manitoba to join opioid clas action The Opioid Damages and Health Care Costs Recovery Act, introduced in the spring, will enable Manitoba to take part in the class action filed in August 2018 by B.C. against companies manufacturing, wholesaling and distributing opioids in the country. The province will also be allowed to pursue claims in the bankruptcy of Purdue Pharma. PERSONAL INJURY UPDATE Decisions have shown how juries can be dismissed during COVID PI lawyer says decisions have put Ontario on a trajectory toward reduced roles for juries A SPATE OF recent Ontario civil court deci- sions has addressed the dismissal of juries in light of the COVID-19 pandemic. Three of the four decisions have helped set Ontario civil trials on a trajectory that ends with a reduced role for juries in the civil litigation process, says one leading personal injury lawyer. Stacey Stevens, a partner at Thomson Rogers Lawyers, says the decisions to strike juries in Belton v. Spencer 2020 ONSC 5327, Higashi v. Chiarot, 2020 ONSC 5523 and Louis v. Poitras, 2020 ONSC 5301 represent a body of precedent wherein judges may strike juries to avoid further COVID-19-related delay and ensure access to justice in the most timely manner possible. Stevens says the rulings also give some guidance to personal injury lawyers about how to structure their motions to have the greatest likelihood of success getting the jury dismissed. "What I thought was interesting to take out of them is that we've got case law that shows the right to a jury trial in a civil case is not a fundamental right, [it] is a substantive one," Stevens says. "Judges can use their discretion to set aside the jury if they feel that it's reasonable to do so." Stevens says that, according to the Court of Appeal ruling in Cowles v. Balac, 2006 CanLII 34916 (ON CA), a decision to dismiss the jury must take into account the legal factual issue of resolving evidence of the trial, the conduct of the trial and whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.

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