Cumming by her Litigation Guardian Cumming et al. v. DeSouza et al.

[Indexed as: Cumming (Litigation Guardian of) v. DeSouza]

74 O.R. (3d) 197

[2005] O.J. No. 71

Court File No. 417/04

Ontario Superior Court of Justice

Divisional Court

Lane J.

January 13, 2005

Torts -- Negligence -- Duty of care -- Plaintiff was passenger in a car which swerved off road and struck large mailbox owned by Canada Post -- Plaintiff sustaining serious injuries when mailbox dislodged from its anchor and fell onto car -- Plaintiff bringing motion to add Canada Post as defendant and to amend statement of claim to plead that Canada Post knew mailbox was unsafely anchored and that it breached duty of care to users of roadway -- Master erring in dismissing motion on basis that proposed amendments did not disclose tenable cause of action against Canada Post -- It was not plain and obvious that Canada Post had no duty to consider danger posed to users of road by unsafe structure near road.

The driver of the car in which the plaintiff was a passenger lost control of the car, which swerved off the road and struck a large "super mailbox" owned by Canada Post. The super mailbox was dislodged from the cement pad upon which it was anchored and fell onto the car, crushing the roof down on the plaintiff's head and seriously injuring her. The plaintiff brought a motion to amend the statement of claim to add Canada Post as a defendant and to add allegations to the statement of claim that the mailbox was unsafely anchored and that Canada Post was negligent in placing the super mailbox in a position that was unsafe, when it knew or ought to have known that the placement of the super mailbox posed a danger to users of the roadway. The motion was dismissed. The Master accepted that the facts as alleged could lead to a finding of a breach of duty of care to persons using the sidewalk adjacent to the mailbox, but could find no basis for the existence of any duty of care to persons using the road whose vehicle leaves the road, enters an area not intended for travel and strikes an object placed there by the defendant. He also determined that, for police reasons, a duty of care should not be recognized. He concluded that the proposed amendments did not disclose a tenable cause of action against Canada Post. The plaintiff appealed.

Held, the appeal should be allowed. [page198]

Given the facts alleged by the plaintiff and accepted by the Master, it was far from plain and obvious that Canada Post had no duty to consider the danger posed to those using the road that, if for any reason their vehicle left the road, the unsafe anchorage of the mailbox could exacerbate the damage to be suffered. The pleading asserted not only that Canada Post ought to have been aware of those dangers, but that it actually was aware of them, including the unsafe anchorage. It was not legally impossible to find that the act of knowingly erecting, or leaving in place, an unsafe structure within ten feet or less of a roadway was a breach of duty to the users of the roadway. There was, on these facts, sufficient proximity to found a cause of action in tort. At the very least, it was not possible to rule out the existence of the necessary degree of proximity. The Master also erred in finding that the imposition of a duty of care would raise the spectre of unlimited liability to an indefinite class of people.

APPEAL from an order dismissing a motion to amend a statement of claim.

Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.); Kennedy v. Waterloo (County) Board of Education (1999), 1999 3746 (ON CA), 45 O.R. (3d) 1, [1999] O.J. No. 2273, 175 D.L.R. (4th) 106, 45 C.C.L.T. (2d) 169, 46 M.V.R. (3d) 282, 6 M.P.L.R. (3d) 1 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 399, 254 N.R. 199n], consd Other cases referred to Applewood Place Inc. v. Peel Condominium Corp., No. 516, [2003] O.J. No. 2537 (S.C.J.); Cameron v. Medical Society (Prince Edward Island), [2002] P.E.I.J. No. 41, 215 Nfld. & P.E.I.R. 233, 644 A.P.R. 233, 2002 PESCTD 31 (S.C.); Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Coriale (Litigation Guardian of) v. Sisters of St. Joseph of Sault Ste. Marie (1998), 1998 14695 (ON SC), 41 O.R. (3d) 347, [1998] O.J. No. 3735, 27 C.P.C. (4th) 328 (Gen. Div.); Davis v. Radcliffe, [1990] 2 All E.R. 536 (P.C.); Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 48 T.L.R. 494 (H.L.); Ferrier v. Trepannier (1895), 1895 67 (SCC), 24 S.C.R. 86; Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771, 224 D.L.R. (4th) 419, 15 C.C.L.T. (3d) 194 (C.A.), supp. reasons [2003] O.J. No. 1214 (C.A.); Hercules Management Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. No. 51, 115 Man. R. (2d) 241, 146 D.L.R. (4th) 577, 211 N.R. 352, 139 W.A.C. 241, [1997] 8 W.W.R. 80, 31 B.L.R. (2d) 147, 35 C.C.L.T. (2d) 115; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Simsa v. Anti-Aging International Inc., [2001] O.J. No. 5154 (S.C.J.); Trilea Centres Inc. v. Cumming Cockburn Ltd. (1991), 1991 7066 (ON SC), 5 O.R. (3d) 598, [1991] O.J. No. 1812 (Gen. Div.) Statutes referred to Municipal Act, 2001, S.O. 2001, c. 25, s. 44(8) Occupiers' Liability Act, R.S.O. 1990, c. O.2 Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, s. 33(3)

David M. Golden and Lisa Corrente, for appellants. Martin Sclisizzi and Laura Pottie, for respondents. [page199]

[1] Endorsement of LANE J: -- The appellants appeal from the Order of Master Dash dated June 18, 2004 dismissing their motion for leave to amend the Statement of Claim to add Canada Post Corporation ("Canada Post") as a defendant to this action, along with the appropriate amendments to the allegations as set out in the proposed Amended Statement of Claim.

[2] This action arises as a result of catastrophic brain and other injuries suffered by the minor appellant, Corinne Cumming ("Cory"), in a motor vehicle accident. On January 24, 2002, during a break at school, Cory went for a drive in a BMW driven by a fellow student, the defendant, Sheldon DeSouza ("Sheldon"). After leaving the school premises, Sheldon lost control of the car, which swerved off the road and struck a large "super mailbox" owned by Canada Post. It was built upon legs anchored to a cement pad located on a strip of lawn adjacent to, and no more than ten feet from the roadway at a point where the roadway curved. The super mailbox was dislodged from the cement pad upon which it was anchored, and fell onto the car, crushing the roof down on Cory's head. Cory's injuries have rendered her a spastic quadriplegic.

[3] The Master determined that the proposed amendments to the Statement of Claim did not disclose a tenable cause of action against Canada Post. He found that Canada Post owed no duty of care to users of the roadway, either at common law or pursuant to the Occupiers' Liability Act, R.S.O. 1990, c. O.2 for placing a structure adjacent to a roadway in circumstances where a vehicle leaves the travelled portion of the roadway, mounts the curb and collides with the structure. This was so, even though the Master accepted as true the pleaded allegations that, inter alia, the super mailbox was unsafely anchored. The learned Master refused to add Canada Post as a defendant on the basis that "it will clearly be impossible for the plaintiffs to successfully establish a duty of care at law on the part of Canada Post". He also determined that for policy reasons, a duty of care should not be recognized.

[4] The appellants submit that the proposed amendments to the Statement of Claim do disclose a viable cause of action against Canada Post. Therefore, the determination of the issue of liability ought to have been left to a trial judge to be resolved on the basis of a full evidentiary record.

[5] The Master was required to permit the amendments to be made and the respondent to be added as a party if the proposed amendments pleaded facts which, if proved, could (not would) lead to judgment for the plaintiff. The court assumes the truth of what is pleaded. Unless it is plain and obvious, "beyond all [page200] doubt" [See Note 1 at the end of the document], that the plaintiff cannot succeed on the facts alleged, such that the claim is beyond the bounds of legal possibility, the amendments must be allowed. The pleadings are thus the starting point.

[6] As against Canada Post, the appellants alleged that:

(a) Canada Post is a Crown corporation which, at all materials times, owned the super mailbox with which the BMW collided (para. 9D);

(b) the multiple catastrophic injuries suffered by Cory were caused or contributed to by Canada Post's negligence (para. 28);

(c) Canada Post was negligent in that it placed, or allowed the placement of, the super mailbox in a position that was unsafe (para. 28(rr));

(d) Canada Post knew or ought to have known that placement of the super mailbox posed a danger to users of the roadway (para. 28(ss));

(e) Canada Post considered the removal, redesign or relocation of the super mailbox, and other super mailboxes posing similar danger, but failed to take appropriate action (para. 28(tt));

(f) alternatively, Canada Post failed to consider the removal, redesign or relocation of the super mailbox, despite knowledge of the potential danger of it (para. 28(uu));

(g) Canada Post's failure to remove, redesign or relocate the super mailbox amounted to a breach of its duty to Cory and caused or contributed to the severity of her injuries (para. 28(vv));

(h) Canada Post was an occupier of the boulevard and breached its statutory duty (para. 28(ww)); and

(i) Canada Post caused or allowed its super mailbox to be anchored to the ground in a manner which it knew or ought to have known was inherently unsafe and created a situation of danger (para. 28(xx)). [page201]

[7] In addition to the above text, the Master, being properly reluctant to decide the motion on a technical point, assumed, at para. 20 of the reasons, that the pleading would also allege:

[T]hat Canada Post ought reasonably to have contemplated that in placing their mailbox off the roadway, they were under an obligation to be mindful of the interests of persons using the roadway who may veer off the roadway and strike the mailbox.

[8] The Master accepted that the facts as alleged could lead to a finding of a breach of a duty of care to persons using the sidewalk adjacent to the mailbox and accessing the box to retrieve their mail. However, he could find no basis for the existence of any duty of care to persons using the road whose vehicle leaves the road, enters an area not intended for travel and strikes an object placed there by the defendant. Neither party had been able to produce Canadian authority deciding that persons affixing an object adjacent to, but not interfering with, the roadway could owe a duty of care to the users of the roadway. He rejected as determinative the case of Ferrier [See Note 2 at the end of the document] where the Supreme Court held the owner of a property abutting on a highway was under a positive duty to keep it from being a danger to the public, because the facts involved a window falling from the upper story and striking a pedestrian on the sidewalk. In his opinion, this could not be equated with the present case.

[9] Finding no relevant Canadian authority, the Master looked to first principles: the Anns [See Note 3 at the end of the document] principle, as adopted by the Supreme Court in Cooper [See Note 4 at the end of the document]. He summarized the principles in para. 11 of his reasons as follows:

The court must first determine if the harm that occurred was the reasonably foreseeable consequence of the defendant's act and that there was a sufficient degree of proximity between the parties that a prima facie duty of care is established. The closeness of the relationship between the plaintiff and defendant is evaluated to "determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant." [See Note 5 at the end of the document] The court must then ask if there are policy considerations, bearing in mind the effect of recognizing a duty of care on other legal obligations, the legal system and society generally, that mitigate [militate] against a finding of tort liability notwithstanding any proximity. [page202]

[10] The parties accepted this as an accurate summary of the law, as do I. The Master found that the physical proximity of the mailbox to the road was insufficient to create the legal proximity required to establish a duty of care. He referred to the dangers posed by any structure in the vicinity of a highway, a tree, a house, etc., and stated that the possibility of injury caused by the presence of such objects, whether or not negligently placed or affixed, was not the test of proximity. He concluded that it was unreasonable for occupants of motor vehicles to expect that those erecting such structures in areas not intended for automobile use would owe them a duty of care. The relationship between Canada Post and the plaintiff did not have the degree of closeness that would put Canada Post under the obligation to be mindful of the plaintiff's interests in the placement of the mailbox.

[11] The appellants submitted that the learned Master erred in this finding. They referred in particular to Lord Atkin's description of "who is my neighbour" and submitted that proximity is established where persons are so closely and directly affected by an act of another that that other ought reasonably to have those persons in contemplation as being so affected when directing his or her mind to the acts or omissions which are called into question [See Note 6 at the end of the document]. It was said in Cooper, supra, that proximity is the term used to describe the "close and direct" relationship that Lord Atkin described as necessary to grounding a duty of care. The court referred to Hercules [See Note 7 at the end of the document], where this proposition was put forward. Also in Cooper, the Supreme Court adopted the view of Lord Goff [See Note 8 at the end of the document] that it was not desirable to attempt to state in broad general propositions the circumstances in which such proximity may or may not be held to exist. The law on the subject should develop incrementally.

[12] The appellants further submitted that, if the super mailbox was positioned unsafely in an area directly adjacent to the roadway, and it was reasonably foreseeable to Canada Post that the super mailbox could pose a danger to users of the roadway whose vehicles might veer off the roadway (which facts were accepted as true by Master Dash for the purposes of the motion), Canada Post ought reasonably to have had the safety of Cory and other users of the roadway in mind when it failed to remove, [page203] redesign or relocate the super mailbox despite knowledge of its potential danger. Therefore, it was submitted that there was sufficient proximity to establish a duty of care in the circumstances at issue.

[13] I agree with the appellants' position. Given the facts alleged by the plaintiffs and accepted by the Master, it is far from plain and obvious that Canada Post had no duty to consider the danger posed to those using the road that, if for any reason, their vehicle left the road, the unsafe anchorage of the mailbox could exacerbate the damage to be suffered. The pleading asserts not only that Canada Post ought to have been aware of these dangers, but that it actually was aware of them, including the unsafe anchorage. In my view, it is not legally impossible to find that the act of knowingly erecting, or leaving in place, an unsafe structure within 10 feet or less of a roadway is a breach of duty to the users of that roadway. In my view, the Anns analysis leads to the conclusion that there is, on these facts, sufficient proximity to found a cause of action in tort. At the very least, the analysis leads to the conclusion that it is not now possible to rule out the existence of the necessary degree of proximity.

[14] Additionally, the appellants submitted that the Master was in error in holding that there was no relevant Canadian authority establishing a duty of care in comparable circumstances. They referred to the case of Kennedy [See Note 9 at the end of the document] decided in the Court of Appeal in 1999, but not brought to the attention of the learned Master.

[15] In Kennedy, a student drove his motorcycle too fast out of a schoolyard, hit a curb and lost control. He flew off the motorcycle and struck his head on a bollard on the school property. The collision with the bollard turned a serious incident into a catastrophic one. The bollard was one of a series, which, until 1986, were connected by chains to form a barrier to the entry of vehicles into a playing field area. When the chains were removed, due to an injury occurring because of a student swinging on one, the bollards were left in place. The issue was whether their retention in place was a breach of duty to those using the adjacent roadway. The trial judge found that there was no breach because there was "no reasonable apprehension of any danger to users of the highway if they followed the contours of the roadway as emphasized by the contours of the bollards". In other words, there was no danger if the users stayed on the roadway. [page204]

[16] The Court of Appeal reversed on the point. At p. 24 O.R., Feldman J.A. wrote:

Furthermore, once the chains were removed so that there was no longer any physical barrier across the playing field, it could be anticipated that the problem of vehicles attempting to go onto the field might recur. In that event, it is not sufficient to conclude that the bollards posed no danger because they were not on the roadway, and that as long as vehicles stayed on the road where they were supposed to be there was no danger.

[17] The court considered the various relevant factors, including the gravity of the potential injury, the curve in the roadway, the use of the area by school pupils with limited driving experience, and the history of the use of the area by vehicles before the chain barrier was put up. Despite these factors, the Board had not contemplated an accident such as the one that occurred, largely because it had not happened. The risk was, however, a foreseeable one and the Board ought to have acted to remove the danger. The fact that other potentially dangerous objects such as hydrants, trees and poles were in place, did not remove the obligation to remove the added danger, which was under the Board's control.

[18] The court also found liability under the Occupiers' Liability Act, a statute on which the present appellants also rely.

[19] Some important factors present in Kennedy have counterparts in the present case, while others do not. The object was adjacent to the road in each case, at a place where the road curved. Our road was not on a school yard, but there was a school in the immediate vicinity and inexperienced drivers were likely to be found. Every road, however straight, has the possibility that vehicles may leave the travelled portion for a variety of reasons, particularly those related to snow and ice, or to excessive speed.

[20] In my view, while Kennedy is not factually on all fours with the present case, it illustrates that it is not legally impossible for there to be liability to users of a roadway for maintaining a dangerous object adjacent to that roadway. It is not enough to say that there is no risk so long as the vehicles remain where they ought to be. The line of liability cannot be drawn "at the curb" as the Master did.

[21] Turning to the second part of the Anns test, whether there are policy reasons to limit the proposed duty of care, the Master held that the imposition of a duty of care in this case would raise the "spectre of unlimited liability".

[22] The Court of Appeal has warned against dismissal of novel cases at an early stage: [See Note 10 at the end of the document] [page205]

A court should be reluctant to dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motions stage before there is a record on which a court can analyze the strengths and weaknesses of the policy arguments.

[23] Furthermore, the recognition of such a duty of care would not raise the "spectre of unlimited liability" to an indefinite class of people. As the appellant submitted, most structures adjacent to the roadway are erected by the Crown or municipal corporations who have been given a special statutory exemption, where otherwise they could have liability [See Note 11 at the end of the document]. It is also the case that many structures, surely most, will be erected in a safe manner. The allegation here is that the structure was unsafe to the knowledge of Canada Post, or that Canada Post ought reasonably to have known of the danger.

[24] I also agree with the appellant's submission that, while their claim against Canada Post may be novel, it is not beyond all doubt clearly impossible of success. It has been held [See Note 12 at the end of the document] that:

A party seeking to dismiss a claim at the pleading stage as disclosing no cause of action faces a heavy burden. If new and emerging causes of action were subject to dismissal at early stages of an action merely because there was no precedent for their application, then our legal system would stagnate, incapable of change. Such an approach, fortunately, is not part of our legal tradition. Our law is clear that a pleading can only be struck in plain and obvious cases, where it is beyond doubt that the claim is untenable. Neither the novelty of a cause of action, nor the potential for the defendants to raise a strong defence should prevent a plaintiff from proceeding to trial. It is only where the action is certain to fail that the claim should be struck at a preliminary stage ... Where the law is unclear courts should be loath to make pronouncements on important legal points at a preliminary stage and in the absence of evidence. It is far preferable to develop legal precedent within the factual context which emerges at a trial.

[25] In summary, both the Anns analysis and the Kennedy judgment lead to the conclusion that it is not plain and obvious that there can be no liability where the dangerous object is not actually on the roadway. With great respect, the Master ought to have allowed the amendments and added the respondent Canada Post as a defendant. [page206]

[26] The appeal is allowed. Paragraphs 1 and 4 and that portion of para. 3 following the words "motion record" in the order of the Master are set aside, and in their place an order will go that the amendments are allowed and Canada Post is added as a defendant. Costs here and below to the appellants on the partial indemnity basis, to be agreed or fixed by me on the basis of submissions in writing within 30 days.

Appeal allowed.

Notes

Note 1: Simsa v. Anti-Aging International Inc., [2001] O.J. No. 5154 (S.C.J.)

Note 2: Ferrier v. Trepannier (1895), 1895 67 (SCC), 24 S.C.R. 86.

Note 3: Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.).

Note 4: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 206 D.L.R. (4th) 193.

Note 5: Cooper, at p. 552 S.C.R., p. 204 D.L.R.

Note 6: Cooper v. Hobart, supra, citing Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 48 T.L.R. 494 (H.L.).

Note 7: Hercules Management Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. No. 51, at para. 24.

Note 8: In Davis v. Radcliffe, [1990] 2 All E.R. 536 (P.C.).

Note 9: Kennedy v. Waterloo (County) Board of Education (1999), 1999 3746 (ON CA), 45 O.R. (3d) 1, [1999] O.J. No. 2273 (C.A.), leave to appeal refused [1999] S.C.C.A. No. 399.

Note 10: Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771 (C.A.), at p. 595 O.R.

Note 11: See: Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, s. 33(3); Municipal Act, 2001, S.O. 2001, c. 25, s. 44(8).

Note 12: Coriale (Litigation Guardian of) v. Sisters of St. Joseph of Sault Ste. Marie (1998), 1998 14695 (ON SC), 41 O.R. (3d) 347, [1998] O.J. No. 3735 (Gen. Div.), at pp. 358-590 O.R. See also: Applewood Place Inc. v. Peel Condominium Corp., No. 516, [2003] O.J. No. 2537 (S.C.J.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321; Cameron v. Medical Society (Prince Edward Island), [2002] P.E.I.J. No. 41, 2002 PESCTD 31 (S.C.); Trilea Centres Inc. v. Cumming Cockburn Ltd. (1991), 1991 7066 (ON SC), 5 O.R. (3d) 598, [1991] O.J. No. 1812 (Gen. Div.).