Showing posts with label negligence. Show all posts
Showing posts with label negligence. Show all posts

Thursday, October 20, 2011

This Week at the Ontario Court of Appeal: 11-10-14

Each Week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Ireland v. Ireland


This case involved a mother's resistance to the enforcement of a foreign custody order. The Superior Court of Fulton Country in the State of Georgia granted sole legal custody of the parties' children to the respondent father. The appellant failed to attend the Georgia Court but she was given an opportunity to participate via Skype. However, Tuscon J. stated that the appellant neglected to locate a computer to access Skype.  As a result,  she failed to present any evidence establishing that awarding her sole legal and physical custody of her children would be in their best interests.

The following month, the appellant filed an application in the Ontario Superior Court of Justice for custody of the parties' children, child support and a restraining order.  Her position was that the children would suffer serious harm if they were returned to the respondent because they had allegedly previously been subject to physical and emotional abuse during the parties' relationship. The respondent moved to have the order of Tuscon J. of the Georgia Court recognized and enforced in Ontario pursuant to s.41 of the Children's Law Reform Act. The appellant applied for and was granted an adjournment on March 24, 2011 until April 7, 2011, to the motion in order to give her time to retain counsel. During the intervening period, the appellant applied to the Superior Court for another adjournment on the basis that she wanted to change the venue of the hearing from Oshawa to Toronto, which was rejected by the court. 

The motion proceeded on April 7, 2011 and Ferguson J. enforced the Georgia Court's order. The mother was ordered to surrender the parties' children to the father. The mother subsequently appealed Ferguson J.'s enforcement of the Georgia Court's order and her decision not to allow her to present viva voce evidence during the aforementioned motion.

The Court denied the appellant's request for an order that she be permitted to request various organizations to provide her with copies of all documents relating to her, the respondent, or their children. The Court noted that the appellant failed to request the documents at the appropriate stage in the proceeding and her litigation tactics unnecessarily expanded and slowed the proceedings. Moreover, if the Court permitted the documents, the appellant would have to make a fresh evidence application to have them admitted on the appeal.  The Court held that the documents would not meet the test for the introduction of fresh evidence on appeal, set out in R v Palmer.

The Court granted the respondent's motion for security of costs and ordered the appellant to pay the respondent $10,000.00 in costs, holding that her appeal was devoid of any merit and noting her pattern of delaying and expanding litigation.


The Canadian Broadcasting Corporation ("CBC") had applied to the Superior Court for an order granting it access to a video that was entered as an exhibit at the 2008 bail hearing of the appellant Ishak Omar.  The Ontario Court of Justice had custody of the video. The application judge granted CBC access to the video on the condition that it would obscure Mr. Omar's identity in any subsequent use of the video. Mr. Omar appealed the order.

The CBC moved to quash the appeal on the basis that the Court had no jurisdiction and that Mr. Omar's appeal is to the Supreme Court of Canada with leave from that court pursuant to the Supreme Court Act. The appellant submitted that the appropriate forum for this appeal was the Ontario Court of appeal under s.6(1) of the Courts of Justice Act.

The Court dismissed the respondent's motion to quash the appeal. The Court's jurisdiction to hear the appeal turned on the characterization of the proceedings before the application judge. If the appeal was civil in nature then the Court of Appeal has proper jurisdiction.  However, if the proceeding was characterized as criminal, the appellant's only route is to the Supreme Court of Canada with leave of that court. Counsel for the respondents argued that the video came into possession of the Ontario Court of Justice in the course of a criminal proceeding and that this application was treated as a criminal matter in the Superior Court.  The appellant characterized the proceedings as civil, as the CBC sought access to his property. In rejecting the respondent's arguments, the Court noted that that the order under appeal was not made in the course of a criminal proceeding and had no effect on any ongoing criminal proceeding. Moreover, the Court stated that the appellant's fair trial rights were no longer at play and that the order under appeal did not rescind or vary any order made in the appellant's criminal proceedings which concluded in 2009.  Therefore, the Court concluded that the appeal was properly brought to the Court of Appeal pursuant to s. 6(1) of the Courts Justice Act.


The appellants, Canril Corporation, appealed a judgment of the Superior Court of Justice holding it liable in negligence and nuisance for water damage caused to the neighbouring basement of the respondent Donley Investments Limited.  The appellants submitted that the trial judge erred both law and in fact.  The Court agreed with the appellant's position and set aside the trial judgment and ordered a new trial.

The Court of Appeal held that the trial judge made three significant legal errors. The first  occurred when the trial judge erroneously shifted the burden of proof onto the plaintiffs to rebut the presumption of negligence when in fact there was no scientific confirmation of causation that water flowed from the appellants' building to the respondent's premises.

The Court found that the  trial judge made a further, substantial legal error when she held that the appellants had owed a duty to the respondents to join them in their claim against the City for the water infiltration that occurred in February 2003. Both the appellants and respondents' buildings were infiltrated with water as a result of an open city water main. The appellants made a claim against the City for the damage to their basement and suggested that the respondent follow suit.  The respondent failed to adhere to the appellant's request.  The Court stated that they did not see any legal basis for the trial judge's imposition of a duty to assert its claim.

Additionally, the appeal court ruled that  the trial judge erred in her causation analysis. There was no scientific evidence establishing a causal link between the damage to the respondent's building and any wrong committed by the appellants.  The trial judge made no reference to the "but for" test for causation in her reasons for judgment. Instead, the trial judge applied a more lenient test for causation applied in Athey v. Leonati. The Court asserted that the trial judge's omission in applying the standard "but for" test for causation was not justified.

- Alim Ramji, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Thursday, October 14, 2010

Tennessee Diner Sued For Hot Sauce Injury

On Point serves up the scalding details on a Tennessee boy's close encounter with Mega Death, a hot sauce that was allegedly way too hot to handle.
- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Wednesday, May 21, 2008

Supreme Court to Rule on Tort of Pure Psychological Injury

The Supreme Court of Canada is expected to rule this week on an important and increasingly common tort claim, the tort of pure mental distress/ nervous shock.

The facts giving rise to the case are that Waddah Mustapha, a Windsor, Ontario man, saw a dead fly in the fresh, unopened, replacement water bottle supplied by Culligan Canada, who regularly supplied bottled water at his home and salon.

Neither Mr. Mustapha nor any member of his family drank from the bottle. However, he became obsessed with thoughts about the dead fly in the water and about the potential implications for his family’s health of their having possibly been drinking unpurified water supplied in the past.

The trial judge accepted the medical evidence that Mr. Mustapha suffers from a major depressive disorder, with associated phobia and anxiety – all triggered by the fly-in-the-bottle incident.

The trial judge held:

“I find that Mr. Mustapha has suffered a recognizable psychological injury as a result of seeing the fly in the Culligan bottle, that the bottle was contaminated during the bottling process, and before sealing at the company’s premises, that it continued to be sealed until and after the viewing of the fly by Mr. and Mrs. Mustapha, that the contamination of Culligan water bottles by flies was known to be possible, that the occurrence of this type of contamination was a breach of a duty of care imposed by statute and the common law on the producers of products like drinking water, that the possibility of damage, including psychological damage occurring as a result of suchcontamination was foreseeable in all of the circumstances, and that accordingly Mr. Mustapha was entitled to damages, which damages are assessed as general damages of $80,000, past and future special damages of $24,174.58, and past and future economic damages of $237,600. The claim for aggravated damages is denied.”

Culligan of Canada Ltd. appealed the trial judge’s finding of liability, and in its judgement dated 15th December 2006 the Ontario Court of Appeal set aside the trial judge’s finding.

The Appeal Court held as under:

Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care – and, therefore, for liability – in cases of psychiatric harm is whether it is
reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless conduct.

I am satisfied that the trial judge erred in considering whether there was a foreseeable “possibility of damage, including psychological damage” arising as a result of seeing the dead fly in the bottle of water, rather than considering whether there was a foreseeable “probability” of such damage.

Mr. Mustapha took the matter to the nation’s top court, which is expected to hand down its judgment this week.

We will report on the Supreme Court’s decision, once it is released. We will also write about the distinction between “possibility of damage” and “probability of damage” used by the Court of Appeal to set aside the trial judge’s finding of liability.


- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Tuesday, March 18, 2008

Supreme Court of Canada - Flies in The Water Bottle

The Supreme Court of Canada heard argument today in the case of Wadda Mustapha, an Ontario man who sued a home drinking water supplier for damages, after finding dead flies at the bottom of a water bottle in his home.

Mr. Mustapha claimed damages for emotional distress, depression, phobia and anxiety.

A 2005 Ontario trial court's ruling that granted him damages of $341,775.00 was overturned by the Court of Appeal for Ontario in 2006.

The Plaintiff then appealed to the Supreme Court of Canada. A decision is expected in approximately six months.

More reading:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net