COURT FILE NO.: CV-19-79024
DATE: 2021/12/06
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: Josée Labrosse, Plaintiff
AND:
Steven Jones and S&S Electrical Services Inc., Defendants
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jaime Wilson, for the Defendants, Moving Parties
Michael Switzer, for the Plaintiff, Responding Party
HEARD: September 21, 2021
DECISION AND REASONS
[1] This is a summary judgment motion. The defendants urge the court to find that this is an action that cannot succeed and to dismiss it outright. As with all such motions, the question is whether or not it is reasonable to make that determination on affidavit evidence at this preliminary stage of the litigation or whether there is a genuine issue requiring a trial.
[2] In my view the test for summary judgment is not met. This is a novel claim and it faces considerable hurdles, but for the reasons that follow, it is not a case that can be appropriately weeded out under Rule 20.
The nature of the action
[3] The claim arises from a motor vehicle accident that took place on September 12, 2014 near Hamilton, Ontario. The accident was a significant rear end collision in which the plaintiff’s daughter, Emma Mitchell, sustained physical injuries. The plaintiff, Dr. Josée Labrosse, is the owner of the vehicle her daughter was driving. She was not in the vehicle but was here in Ottawa.
[4] As the statement of claim and the affidavit evidence disclose, Ms. Mitchell was driving the plaintiff’s automobile and had stopped at a red light. She called her mother from the vehicle just before the collision and then again immediately afterwards. At the time of the second phone call, Ms. Mitchell was injured and was trapped in the vehicle because the driver’s door had been damaged. She was in a state of panic.
[5] Not only did Dr. Labrosse listen to her injured daughter incoherent and in distress attempting to deal with the aftermath of the accident, but according to the plaintiff the situation was exacerbated by the behaviour of Steven Jones who was the driver of the at fault vehicle. Allegedly Mr. Jones behaved in a threatening and belligerent fashion and attempted to prevent Ms. Mitchell from summoning aid or contacting the police.
[6] Dr. Labrosse listened on the phone while her daughter tried to exit the vehicle in a state of confusion and while she attempted to deal with Mr. Jones. As summarized in the factum, “Dr. Labrosse thus witnessed the immediate aftermath of the collision auditorily as she attempted to help Ms. Mitchell process and cope with the circumstances”. According to the pleading, Dr. Labrosse was “present at the scene of the accident in the aftermath of the accident by means of a mobile telephone and as a result of the catastrophic injuries inflicted upon Emma Mitchell in the accident, the plaintiff … has suffered psychological injuries.”
[7] In brief, this is an action for psychological pain, suffering and emotional anguish suffered by a parent who was phoned by her daughter from the scene of an accident in which the daughter was seriously injured. The plaintiff has been diagnosed with “other trauma and stressor related disorder”. She seeks to sue in her own right because the psychological injuries she sustained have now limited her employment capacity, effectiveness in social activities and performance of daily living activities.
The legal proceedings
[8] Ms. Mitchell apparently suffered catastrophic injuries. In September of 2016, just prior to the second anniversary of the accident, she launched a court proceeding (the first action). Dr. Labrosse is also a plaintiff in that action pursuant to her derivative rights under Part V of the Family Law Act.[^1]
[9] It appears that Dr. Labrosse was traumatized by what she heard on the telephone, by her inability to provide assistance to her daughter at the time and by the traumatic nature of her daughter’s injuries. She attests that she did not realize she had sustained a significant psychological trauma herself until much more recently.
[10] In the fall of 2018, she was diagnosed with a form of post traumatic stress manifesting in emotional and behavioural symptoms, sleep disruption, reduced organizational capacity, reduced mental focus, changes in mood and re-experiencing. According to her evidence and the affidavit of Dr. Reesor, this ultimately interfered with her capacity to work and to carry on normal activities of daily living.
[11] In January of 2019, over five years after the accident and more than two years after the first action in which she is an FLA claimant, the plaintiff launched this action (the second action). She claims damages in her own right for psychological injury consequent to the car accident suffered by her daughter as a result of the negligence of the defendants.
The issue
[12] The question is whether psychological injury sustained by the plaintiff as a consequence of being involved in the accident by telephone is actionable against the defendants and, if so, whether the action is barred by the Limitations Act.[^2]
[13] The defendants assert that the plaintiff has no cause of action, that any cause of action is statute barred either pursuant to the Insurance Act[^3] or the Limitations Act and that the plaintiff has no prospect of success even if the allegations are proven true.
[14] As this is a defendant’s summary judgment motion, the onus is on the defendant to show that summary judgment is appropriate. Pursuant to Rule 20.02 the plaintiff “may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. The plaintiff need not show that she will win the case, but only that there is a genuine issue. The pertinent question is whether the action can survive the motion. If, as the defendant argues, the action has no reasonable prospect of success then justice is best served by summary dismissal.
[15] As I will discuss, the question of whether the defendants can be liable to the plaintiff in these circumstances turns firstly on whether or not the plaintiff is a person to whom the defendants owed a duty of care. A second question is whether the action is statute barred. Third, is the question of whether the damages suffered by the plaintiff are recoverable or are too remote. While these are not the only impediments to success at trial, if any one of them can be answered decisively in favour of the defendants, they constitute a complete defence and the action must fail.
If those questions cannot be answered without a trial or if the answers favour the plaintiff, then the motion should be dismissed. This is not a motion in which the parties seek to resolve questions of causation, damages or credibility. It would not be assisted by a mini trial.
Analysis
Principles of Negligence
[16] In any negligence case, plaintiffs must establish that they fall within a class of individuals to whom the defendant owes a duty of care. If that is established, the court will consider whether or not plaintiffs can prove damages that are causally connected to a negligent act or omission and are not too remote. In Mustapha v. Culligan, the Supreme Court of Canada framed the test as follows:
" A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant's breach."[^4]
[17] In Mustapha, the plaintiff had purchased bottled water in which there were dead flies and he came within the class of persons to whom the manufacturer owed a duty of care. It was readily apparent that the defendant had breached the standard of care and the medical evidence demonstrated the plaintiff had suffered a debilitating psychological injury as a consequence of his reaction to seeing the flies in the water bottle. The Supreme Court accepted that there was no useful distinction to be made between psychological and physical injury and that both are actionable. The court also affirmed the “thin skull principle” which holds that once liability has been established the defendant is liable for the damage actually suffered. But Mr. Mustapha’s action failed because it was not reasonably foreseeable that a “person of reasonable fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install”. Because it was not foreseeable, the damage was not caused in law and there was no liability for negligence.
[18] The Mustapha decision also affirms the framework for considering duties of care. Duties of care that have been previously recognized in jurisprudence or are closely analogous to recognized duties are readily established but a novel duty requires a “full fledged duty of care analysis” and the application of the “Anns formula”.[^5] The latter includes policy considerations and the court must consider the impact of imposing a new duty.[^6]
39 The second step of Anns generally arises only in cases where the duty of care asserted does not fall within a recognized category of recovery. Where it does, we may be satisfied that there are no overriding policy considerations that would negative the duty of care. In this sense, I agree with the Privy Council in Yuen Kun Yeu that the second stage of Anns will seldom arise and that questions of liability will be determined primarily by reference to established and analogous categories of recovery. However, where a duty of care in a novel situation is alleged, as here, we believe it necessary to consider both steps of the Anns test as discussed above. This ensures that before a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are no broader considerations that would make imposition of a duty of care unwise.
[19] Counsel for the plaintiff argues that the law already recognizes a duty of care towards bystanders and others that are physically present at an accident and suffer nervous shock. He argues that persons who are present at the scene by use of modern electronic technology are virtual bystanders. In that case, the duty of care is analogous to the duty owed to bystanders who are physically present so the policy considerations at the second stage of the Anns test should not apply. The question, however, is whether the duty of care to a bystander can extend to a family member who the accident victim calls for assistance? Such a claim could founder on the duty of care analysis or on a remoteness analysis as in Mustapha.
[20] The English case of Alcock v. Chief Constable of Yorkshire Police has often been cited in Canadian courts. [^7] It stands for the proposition that there is a duty of care not to inflict nervous shock on persons within sight and hearing of an accident. It also stands for the proposition that such a duty cannot extend to individuals who view the accident on television. But the differentiation between primary and secondary victims has been rejected as arbitrary in Saadati v. Moorehead.[^8] In that decision, the Supreme Court held that duty of care depends upon a relationship and proximity analysis and that the robust application of the elements of the tort of negligence as articulated in Mustapha are sufficient to weed out unmeritorious claims:
19 This Court has not, however, adopted either the primary/secondary victim distinction, or McLoughlin v. O'Brian 's disaggregated proximity analysis. Rather, in Mustapha, recoverability of mental injury was viewed (at para. 3) as depending upon the claimant satisfying the criteria applicable to any successful action in negligence — that is, upon the claimant proving a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Each of these elements can pose a significant hurdle: not all claimants alleging mental injury will be in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct resulting in mental harm will breach the standard of care; not all mental disturbances will amount to true "damage" qualifying as mental injury, which is "serious and prolonged" and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury (Mustapha, at para. 9); and not all mental injury is caused, in fact or in law, by the defendant's negligent conduct.
20 Indeed, the claim in Mustapha failed on that last element: the claimant's damage was not caused in law by (that is, it was too remote from) the defendant's breach. Mustapha thus serves as a salutary reminder that, even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness — that is, whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant's negligent conduct (Mustapha, at paras. 14-16). And, just as recovery for physical injury will not be possible where injury of that kind was not the foreseeable result of the defendant's negligence, so too will claimants be denied recovery (as the claimant in Mustapha was denied recovery) where mental injury could not have been foreseen to result from the defendant's negligence.
21 It follows that this Court sees the elements of the cause of action of negligence as furnishing principled and sufficient barriers to unmeritorious or trivial claims for negligently caused mental injury. The view that courts should require something more is founded not on legal principle, but on policy — more particularly, on a collection of concerns regarding claims for mental injury (including those advanced in this appeal by the intervener Insurance Bureau of Canada) founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is "subjective" or otherwise easily feigned or exaggerated; and that the law should not provide compensation for "trivial matters" but should foster the growth of "tough hides not easily pierced by emotional responses" (A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 449; R. Mulheron, "Rewriting the Requirement for a 'Recognized Psychiatric Injury' in Negligence Claims" (2012), 32 Oxford J. Leg. Stud. 77, at p. 82). The stigma faced by people with mental illness, including that caused by mental injury, is notorious (J. E. Gray, M. Shone and P. F. Liddle, Canadian Mental Health Law and Policy (2nd ed. 2008), at pp. 139 and 300-301), often unjustly and unnecessarily impeding their participation, so far as possible, in civil society. While tort law does not exist to abolish misguided prejudices, it should not seek to perpetuate them.
22 Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about "subjective" symptoms or about feigned or exaggerated claims of mental injury are — like most matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by "a vigorous search for the truth, not the abdication of judicial responsibility" (Linden and Feldthusen, at p. 449; see also Toronto Railway v. Toms (1911), 1911 3 (SCC), 44 S.C.R. 268 (S.C.C.), at p. 276; Stevens, at p. 56).
23 I add this. As to that first necessary element for recovery (establishing that the defendant owed the claimant a duty of care), it is implicit in the Court's decision in Mustapha that Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one's mental health. That right is grounded in the simple truth that a person's mental health — like a person's physical integrity or property, injury to which is also compensable in negligence law — is an essential means by which that person chooses to live life and pursue goals (A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53). And, where mental injury is negligently inflicted, a person's autonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury (Hay v. Young (1942), [1943] A.C. 92 (U.K. H.L.), at p. 103; Toronto Railway, at p. 276). To put the point more starkly, "[t]he loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger" (Stevens, at p. 55).
24 It is also implicit in Mustapha that the ordinary duty of care analysis is to be applied to claims for negligently caused mental injury. With great respect to courts that have expressed contrary views, it is in my view unnecessary and indeed futile to re-structure that analysis so as to mandate formal, separate consideration of certain dimensions of proximity, as was done in McLoughlin v. O'Brian. Certainly, "temporal", "geographic" and "relational" considerations might well inform the proximity analysis to be performed in some cases. But the proximity analysis as formulated by this Court is, and is intended to be, sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the "close and direct" relationship which is the hallmark of the common law duty of care (Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 (S.C.C.), at para. 32, citing McAlister (Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (U.K. H.L.), at pp. 580-81). As the Court has said, that analysis
focuses on factors arising from the relationship between the plaintiff and the defendant. ...
As this Court stated in Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, at para. 24, per La Forest J.:
The label "proximity", as it was used by Lord Wilberforce in [Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)], was clearly intended to connote that the circumstances of the relationship inhering between the plaintiff and the defendant are of such nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting his or her affairs.
(Cooper, at paras. 30 and 33 (emphasis in original))
[21] As the analysis in Saadati makes clear, the imposition of a duty of care depends on a relationship of proximity between the tortfeasor and the injured party. It is necessary to establish a basis for such a relationship in fact and in law. Here, the touchstone is foreseeability.[^9] The question the law of negligence asks is whether it is reasonably foreseeable that persons in a certain category are at risk such that the tortfeasor should have a duty to avoid harm or, as quoted above from Cooper, “an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs”.
[22] It appears far fetched to include a person phoned by an accident victim in the same class as a person who is present at an accident. In fact, there is a significant body of law in which courts have refused to award damages for mental injury to a family member who is simply informed of an accident.[^10] Counsel for the plaintiff was unable to point to any decision in which the court has recognized a duty of care to a person who is an “auditory witness” to an accident by virtue of receiving a phone call. I do not accept that there is an established duty of care for users of public highways that would create liability to individuals contacted by accident victims during or after the accident. In my view, creation of a duty of care in these circumstances would require a robust evidentiary basis and a full application of the Anns/Cooper test.[^11]
[23] On the other hand, just because a duty has not been recognized, it may not be appropriate to strike out the action on a summary judgment motion and to rule out the possibility of liability. In Snowball v. Ornge, this court declined to strike out a claim for mental distress suffered by family members on being advised of the death of their family member killed in an air crash. The court relied heavily on paragraph 22 of the Saadati decision in which the Supreme Court stated that where “genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms”. Those words strongly suggest that post-Saadati a trial may be necessary to establish such a duty of care and it would be inappropriate to strike the action based on artificial distinctions which Saadati rejected.[^12]
[24] Sigurdson v. Norbord Inc. is a more recent decision. In that case, conducting a similar analysis, the court refused to strike the claim of a father who had found his son deceased when he tried to rescue him in circumstances where the defendant employer had been negligent. The father had searched for his son and found his body. The court did strike the claim of family members who sued simply for the mental anguish they suffered merely due to the loss of their family member.[^13] The court held that while there is no claim for mental anguish from the death itself, there could well be a claim for nervous shock arising from more direct impact such as finding and viewing the body of the plaintiff’s deceased son.
[25] Both of these cases were motions under Rule 21 rather than Rule 20 and they involved fatal accidents rather than injuries. Nevertheless, in light of the omnipresence of digital communication and the rejection of arbitrary proximity factors in Saadati, it is difficult to justify a distinction between a plaintiff who was present at an accident and saw or heard it and a plaintiff that was able to hear the accident while connected by a car phone. The foreseeability analysis at either the duty of care stage or at the remoteness of damages stage in a novel case may require nuanced findings of fact that are genuine issues best resolved at trial.
[26] The evidence before me on this motion is sufficient to establish that there are facts which could lead to a finding of liability. The plaintiff did experience the aftermath of the accident over the phone. She did attempt to assist her daughter at the time. She did deal with the aftermath of the significant injuries and it appears she has a diagnosis of significant post traumatic psychological injury. Success on this action is not guaranteed, but it is not impossible and as I have remarked previously, the test on a summary judgment motion is not judicial scepticism.[^14]
[Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)
[27] There is statutory liability to family members of injured plaintiffs. This is found in Part V of the Family Law Act. The statutory claim for dependents includes claims by parents of injured children. While the availability of FLA claims does not displace any direct liability to the family member if the family member sustains an injury in an accident, the existence of the statutory remedy would be a factor to be considered in deciding whether to recognize a new duty of care.
[28] S. 61 (2) (e) of the Act includes a right to compensation for loss of guidance, care and companionship and subsection (d) includes compensation for loss of income sustained due to the family member providing nursing, housekeeping or other services to the injured person.[^15] As noted earlier, the plaintiff is already an FLA claimant and therefore a plaintiff in the original action launched on behalf of Emma Mitchell.
[29] There is no legitimate argument to be made that the Family Law Act occupies the field and precludes the claim the plaintiff is now advancing. In Snowball v. Ornge, cited above, Justice Faieta reviews the original remedial purpose of Part V of the Act and its predecessor which was to remedy the harshness of the common law in cases of death. Since the common law held that no right to recover in tort survived the death of a family member, fatal accident legislation was enacted to provide such a remedy. The FLA is not limited to fatal accidents. It provides a right of recovery to family members who suffer economic losses due to the need to care for injured accident victims. Here again, the Act provides a remedy where the common law did not, but the FLA does not preclude family members from suing for injuries they themselves sustain.[^16]
[30] Tort law does not permit double recovery. To the extent that any FLA damages claimed in the first action offset or mitigate any loss claimed in the second action, those damages would be deductible, but the existence of the FLA claim does not preclude a direct claim.
The [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)
[31] Because this is a motor vehicle accident, it is also subject to the complex restrictions under the Insurance Act designed to limit liability of defendants who are insured under policies of motor vehicle insurance. S. 267.5 (5) of the Insurance Act provides that no protected defendant is liable for damages for non-pecuniary loss (i.e. general damages) unless the injured person has sustained an injury which crosses the statutory threshold. In this case the applicable statutory test will be met if the plaintiff can prove that she has sustained “permanent serious impairment of an important … mental or psychological function.”
[32] The plaintiff has submitted an expert report from Dr. Reesor, supported by his affidavit. Dr. Reesor opines that the plaintiff’s clinical status constitutes “a permanent and serious impairment of important physical, mental and psychological functions.” Even if Dr. Labrosse can manage some of her chronic symptoms, Dr. Reesor is of the view that in all likelihood, the plaintiff will be left with ongoing permanent psychological vulnerabilities that will limit her employment capacity and her daily activities. This evidence may not be accepted at trial and it may prove vulnerable to robust cross examination or to future events, but it is sufficient to survive a summary judgment motion based on the threshold.
[33] In addition, part of the plaintiff’s claim is for loss of income. S. 267.5 (5) does not apply to economic loss.
The limitation defence
[34] This leaves the question of the limitation defence. Pursuant to s. 4 of the Act, a proceeding may not be commenced more than two years after the date on which the claim was discovered. Pursuant to s. 5 (2), the claim is deemed to have been discovered on the date when the negligent act or omission took place unless the contrary is proved. Consequently, the plaintiff must prove at trial that the claim was not discovered until a date that is no more than two years before the claim was started. In this case, the action was started on January 18, 2019, so the date of discovery must not be earlier than January 18, 2017 or the action is statute barred.
[35] The expiry of a limitation period may sometimes be established by affidavit evidence and is amenable to summary judgment. While the onus is on the plaintiff to prove that the claim was not discovered earlier - and could not have been discovered earlier with the application of reasonable diligence - the onus remains on the defendant to demonstrate that summary judgment is appropriate.
[36] S. 5(1) of the Act defines the day on which the claim was discovered as the day on which the plaintiff first knew four factors or the day on which a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known of those factors. The factors include knowledge that the injury, loss or damage had occurred and knowledge that having regard to the nature of the injury, loss or damage, a court proceeding would be appropriate.
[37] There is no doubt that this action may be susceptible to a limitation defence. Certainly, the plaintiff knew the date of the accident, knew who was responsible for the accident and knew that a court proceeding had been commenced on behalf of her daughter and for her own FLA damages. The question will be when she knew (or ought to have known) that she had also sustained damages, and those damages were sufficiently serious to justify litigation despite the threshold in the Insurance Act.
[38] In her affidavit, the plaintiff deposes that she now knows that her immediate involvement in the accident as a type of first responder and mother caused her initial psychological trauma. She deposes however that she suppressed and repressed her reaction and focused on trying to help her daughter and her family cope with the impact of the accident. She deposes that it was only in mid February of 2017 that she first began to recognize her own psychological injury and began to consult with counsel about seeking no fault accident benefits. She completed an OCF-1 to obtain funding for psychological treatment. Even at that point, however, she states that she believed the treatment was necessary to help her to cope with the strain of helping her daughter rather than trauma she had personally suffered as a direct result of her involvement in the aftermath of the automobile accident.
[39] It is the plaintiff’s evidence that she only came to realize that she had a direct claim for personal injury when Mr. Switzer referred her to Dr. Reesor, and she received Dr. Reesor’s report in September of 2018. In that report she read for the first time a diagnosis, a summary of her impairments resulting from the accident and Dr. Reesor’s opinion that the injuries were likely to be permanent. Only at that time did she receive legal advice that she may have sustained an injury which would “pierce the verbal threshold under the Insurance Act”.
[40] There is a distinct possibility, in my view, that a court might conclude that if this claim by the plaintiff is a legitimate claim and is causally connected with the accident, she should have recognized it earlier. But the defendant cannot prove this conclusively at this stage and has not been able to cast sufficient doubt on the plaintiff’s evidence or that of Dr. Reesor that I am entitled to reject that evidence. Based on the evidentiary record before the court at this time, the date of discovery is a genuine issue which will have to be determined at a trial.
Conclusion
[41] In conclusion, this is not a case that can be dismissed at this stage on a summary judgment motion. It is conceivable that a trial judge could find that the plaintiff falls within a class of individuals to whom the defendant owed a duty of care. It is possible that the plaintiff’s injuries could be found to be factually and legally caused by the accident. It is plausible that the date when the claim was discovered was the date on which she received the psychological and legal opinions referred to in her affidavit. She is a long way from establishing the foregoing, but she has tendered sufficient evidence to show that she has a chance of doing so.
[42] As a consequence, the test in Rule 20 is not met. There are several genuine issues to be adjudicated and they cannot appropriately be resolved on the material now available. The motion is dismissed.
[43] This does not preclude a subsequent motion to dismiss the action closer to trial if the evidentiary basis is further developed. It certainly does not preclude either party seeking orders pursuant to Rule 20.05 to streamline the issues and the mode of trial.
Costs
[44] I encourage the parties to resolve the issue of costs, but if they are not able to do so within 30 days and wish me to fix the costs of the motion, I may be spoken to.
Mr. Justice C. MacLeod
Date: December 6, 2021
COURT FILE NO.: CV-19-79024
DATE: 2021/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Josée Labrosse, Plaintiff
AND:
Steven Jones and S&S Electrical Services Inc., Defendants
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jaime Wilson, for the Defendants, Moving Parties
Michael Switzer, for the Plaintiff, Responding Party
DECISION AND REASONS
Regional Senior Justice Calum MacLeod
Released: December 6, 2021
[^1]: Family Law Act, RSO 1990, c. F-3, as amended to October18, 2021
[^2]: Limitations Act, 2002, S.O. 2002, c. 24, Sched B, as amended to October 19, 2021
[^3]: Insurance Act, RSO 1990, c. I.8 as amended to June 3, 2021
[^4]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 @ para 3
[^5]: Mustapha, supra @ para. 5
[^6]: Cooper v. Hobart, 2001 SCC 79, [2001] 3 SCR 537 @ paras. 37 - 39
[^7]: Alcock v. Chief Constable of South Yorkshire Police, [1991] 4 All E.R. 907 (HL) referred to in para. 36 of Cooper v. Hobart, supra.
[^8]: Saadati v. Moorehead, 2017 SCC 28, [2017] 1 SCR 543 @ paras. 14 - 24 – although the court rejects the primary and secondary victim analysis, the court does not comment on the actual result in Alcock and the refusal of the House of Lords to extend the duty of care to individuals watching television.
[^9]: See Sigurdson v. Norbord Inc., 2021 ONSC 5193 @ para. 31
[^10]: See Rhodes Estate v. CNR, 1990 5401 (BC CA), 1990 CarswellBC 238, 50 BCLR (2d) 273, 75 DLR (4th) 248 (BCCA); leave to appeal refused, [1991] 1 SCR xiii, 79 DLR (4th) vii (note) cited in Snowball v. Ornge, 2017 ONSC 4601 @ para. 16
[^11]: See Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 SCR 587
[^12]: See Snowball v. Ornge, supra @ para. 21.
[^13]: Supra @ note 9.
[^14]: See Mapletoft v. Service, 2021 ONSC 6959 @ para. 29
[^15]: Family Law Act., RSO 1990, c. F.3, as amended
[^16]: See Malik v Nikbakht, 2021 ONCA 176