COURT FILE NO.: CV-21-3343-00
DATE: 2023 10 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Daniel Bustin, Plaintiff
AND:
Vince Quaranto and Economical Mutual Insurance Company, Defendants
BEFORE: M.T. Doi J.
COUNSEL: Jeffrey R. LeRoy, for the Moving Defendant, Vince Quaranto
Piera A. Segreto, for the Plaintiff, Daniel Bustin
HEARD: August 15, 2023.
Endorsement
Overview
[1] On this motion, the Defendant, Vince Quaranto, seeks to strike the statement of claim for disclosing no reasonable cause of action.
[2] The Plaintiff, Daniel Bustin, is claiming personal injury damages after witnessing a fatal motor vehicle collision allegedly caused by the Defendant. As a bystander to the collision, the Plaintiff claims that he suffered injuries due to the Defendant’s negligence.
[3] In my view, it is not plain and obvious that the Plaintiff’s claim has no reasonable prospect of success. Accordingly, for the reasons that follow, the Defendant’s motion is dismissed.
Nature of the Action
[4] On October 13, 2019, a fatal motor vehicle collision occurred on King Vaughan Road in Vaughan, Ontario. Two vehicles were reportedly involved in the collision. The first vehicle was driven by the Defendant and had no passengers. The second vehicle had two occupants, both of whom were fatally injured in the collision.
[5] On September 17, 2021, the Plaintiff commenced this action. Among other things, his statement of claim alleges the following:
a. at the time of the fatal motor vehicle collision, the Plaintiff was attending a Thanksgiving gathering at his aunt’s home on King Vaughan Road;
b. while standing outdoors in front of the home, he, “heard the sounds of the initial catastrophic impact of the two vehicles, felt the ground shake, and observed the accident play out with the vehicles rolling and being torn apart in front of him”; and
c. as a result of witnessing the double-fatality motor vehicle collision, he suffered physical and mental injuries akin to or notionally equivalent to being struck by the Defendant’s vehicle in the collision.
[6] The Defendant delivered a statement of defence which pleads that the Plaintiff has no cause of action against him for the following reasons:
a. the Defendant did not owe a duty of care to the Plaintiff;
b. the injuries that the Plaintiff claims to have sustained were not a reasonably foreseeable consequence of the Defendant’s actions;
c. the Plaintiff was not involved in the motor vehicle collision; and
d. if a duty of care were to be recognized in this situation, it would lead to issues of claimant indeterminacy (i.e., by imposing liability to an indeterminate class).
[7] On September 29, 2021, family members of the deceased persons in the second vehicle started a separation action (CV-21-3338) for damages against the Defendant and another defendant in respect of the fatal motor vehicle collision that occurred on October 13, 2019.[^1]
Legal Principles for the Motion to Strike
[8] On this motion under Rule 21.01(1)(b) of the Rules of Civil Procedure, the Defendant seeks to strike the statement of claim for disclosing no reasonable cause of action.
[9] Rule 21.01(1) to (2) provides as follows:
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1) (a), except with leave of a judge or on consent of the parties;
(b) under clause (1) (b).
[10] On a motion to strike under Rule 21.01(1)(b), the burden on the moving party is a stringent one and the facts as pleaded are assumed to be true unless they are manifest incapable of being proven: Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 15; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 22, citing Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 SCR 441 at 455.
[11] The court will only strike a claim under Rule 21.01(1)(b) if it is “plain and obvious” that the claim has no reasonable prospect of success: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para 64; Imperial Tobacco at para 17; Odhavji at paras 14-15; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959 at 980. A claim with a reasonable prospect of success should proceed to trial despite the novelty of its cause of action: Hunt at 980; Imperial Tobacco at para 17.
[12] Although used with care, a motion to strike is a valuable housekeeping measure essential to effective and fair litigation by uncluttering a proceeding and weeding out hopeless claims while ensuring that those with some chance of success go to trial: Imperial Tobacco at paras 19-20.
[13] In addressing motions to strike novel claims, the Supreme Court in Imperial Tobacco at para 21 expressed the following cautionary note:
Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [Emphasis added, citations omitted]
[14] More recently, the Supreme Court referred to this passage in Imperial Tobacco with approval in refusing to strike a novel claim as the prevailing state of the law in that area remained “unsettled” and, therefore, left the defence unable to establish that the claim had no reasonable likelihood of success; Nevsun at para 69.
[15] Ultimately, neither the novelty of the claim, the length and complexity of the issues, nor the potential for a strong defence should prevent a claim from proceeding to trial: Hunt at 980; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 at para 15. Only where a claim is certain to fail due to a radical defect should it be struck for not disclosing a reasonable cause of action: Hunt at 980; Imperial Tobacco at para 17.
[16] Rule 25.11 also governs the striking of pleadings by providing as follows:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court
Legal Principles for the Negligence Claim
[17] To succeed, a negligence claim requires proof of a duty of care, a breach of the standard of care, compensable damage, and causation: Cooper v. Hobart, 2001 SCC 79 at paras 30-39; Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para 96; Mustapha v. Culligan of Canada Ltd., 2008 SCC 28 at para 3; Case v. Pattison, 2023 ONCA 529 at para 10.
[18] It is well-established that the existence of a duty of care in tort is determined by applying a two-part test first enunciated by Lord Wilberforce in Anns v. Merton London Borough Council, [1978] AC 728 (HL) at 751-752:
a. Is there sufficient proximity between the parties that the defendant would reasonably contemplate that carelessness on his part may likely cause damage to the plaintiff? If yes, then a prima facie duty of care arises; and
b. If yes, are there any considerations which ought to negate or limit:
i. the scope of that duty;
ii. the class of persons to whom the duty is owed; or
iii. the damages to which a breach of the duty may give rise?
[Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii345/1997canlii345.html), [1997] 2 SCR 165 at para 20.
[19] The first part of the analysis turns on the relationship between the parties, and whether the relationship is so close that one may reasonably be said to owe the other a duty to take care not to injure the other. This part of the analysis turns on foreseeability, moderated by policy concerns: Mustapha at para 4; Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para 18; Nelson (City) v. Marchi, 2021 SCC 41 at para 17. The analysis places emphasis on the foreseeability of harm to the victim, and not on specific interceding events surrounding the harm: Case at para 11.
[20] Mere foreseeability of injury by shock or mental distress is not enough to implicate a duty of care. Jurisprudence limits the number of potential claimants by requiring a degree of proximity between the claimant and the accident in space and time, and in proximity of relationship between the person killed or injured and the claimant: Latimer v. Canadian National Railway Company, 2007 CanLII 5689 (ONSC) at para 12, citing Nespolon v. Alford (1998), 1998 CanLII 7127 (ON CA), 40 OR (3d) 355 (CA) at 368, leave to appeal denied [1998] SCCA No 452.
Key Issue for the Motion
[21] On this motion, the key issue is whether it is plain and obvious that the Plaintiff’s claim has no reasonable prospect of success and is certain to fail.
Analysis
[22] As set out below, I find that it is neither plain nor obvious that the Plaintiff’s claim has no reasonable prospect of success, or is otherwise certain to fail.
[23] In many cases, the relationship between parties is of a type that has already been judicially recognized implicating a duty of care, and need not be reviewed under the Anns test: Mustapha at para 5, citing Cooper at paras 35-36. In contrast, a case that raises a novel duty of care requires a full-fledged duty of care analysis under the Anns test where the court considers the impact of imposing the new duty and any overriding policy considerations to negate the duty; Mustapha at para 5; Cooper at paras 37-39. A full-fledged Anns analysis seldom arises as questions of liability are determined primarily by reference to established and analogous categories: Cooper at para 39.
[24] Based on the jurisprudence, I am satisfied that the Plaintiff has an arguable basis to claim that the Defendant owed him a duty of care. As MacLeod RSJ noted in Labrosse v. Jones, 2021 ONSC 8031 at para 20, Canadian courts frequently have cited the English case of Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5 in recognizing a duty of care towards bystanders and others physically present at an accident who suffer nervous shock: citing Cooper at para 36; see also Saadati v. Moorehead, 2017 SCC 28 at paras 16; Saez-Larrazabal v. Criminal Injuries Compensation Board, 2012 ONSC 3500 (Div Ct) at para 54; Latimer v. Canadian National Railway Company, 2007 CanLII 5689 (ONSC) at para 14; Beatty v. Waterloo (Regional Municipality), 2011 ONSC 3599 at para 41. The duty of care is grounded by a relationship and proximity analysis, as well as a robust application of the elements of the tort of negligence to weed out any unmeritorious claims: Saadati at para 34; Labrosse at para 20.
[25] In Alcock, the House of Lords adopted the reasoning of Lord Wilberforce in McLoughlin v. O’Brian, [1983] 1 AC 410 (HL) which left open the door to recognizing a duty of care to an ordinary bystander, unconnected with the victims of an accident, who suffers mental injury from directly witnessing the accident. To this end, Lord Keith in Alcock noted the following:
The case of a bystander unconnected with the victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my view, be within the range of reasonable foreseeability, but could not perhaps be entirely excluded from it if the circumstances of a catastrophe occurring very close to him were particularly horrific.
In the case of those within the sphere of reasonable foreseeability the proximity factors mentioned by Lord Wilberforce in McLoughlin v. O’Brian, must, however, be taken into account in judging whether a duty of care exists.
As regards the means by which the shock is suffered, Lord Wilberforce said in McLoughlin v. O’Brian that it must come through sight or hearing of the event on or of its immediate aftermath.
[26] In the statement of claim, the Plaintiff claims that he saw and heard the fatal motor vehicle collision as it unfolded before him. By accepting these allegations as true, as required for a motion under Rule 21.01(1)(b), I am satisfied that the required physical proximity has been established by the Plaintiff to implicate a duty of care owed by the Defendant to him.
[27] As the Plaintiff has not claimed to have a relationship with anyone involved in the collision, nor claimed that he tried to rescue anyone in the incident, the Defendant submits that the Plaintiff cannot establish the required relational proximity to establish a duty of care.[^2] However, I accept that the Plaintiff has established a duty of care under the bystander category in Alcock, which Canadian courts have recognized: Cooper at para 36. To the extent that the Defendant has raised genuine factual uncertainty or legal novelty as to the merits of this duty of care, I would not strike the action as a trial may well be needed to properly consider the duty which makes it inappropriate to strike the claim based on artificial distinctions that the courts now reject: Labrosse at para 23, Saadati at paras 19-22; Snowball v. Ornge, 2017 ONSC 4601 at paras 19 and 21. In addition, the foreseeability analysis, either at the duty of care stage or at the remoteness of damages stage, may require nuanced findings that are best made at trial with the benefit of a fulsome record: Labrosse at para 25; Cooper at paras 37-39. Furthermore, any uncertainty or novelty arising from unsettled jurisprudence should not cause the claim to be struck. On a motion to strike, the court should adopt a generous approach that errs on the side of allowing a novel but arguable claim to proceed to trial: Imperial Tobacco at para 21; Nevsun at para 69.
[28] Taking everything into consideration, I am satisfied that the Plaintiff has established a sufficient basis that could result in a finding of liability by the Defendant. In my view, it is not plain and obvious that a successful outcome for the action is impossible, or that the claim has no reasonable prospect of success.
Outcome
[29] Based on the foregoing, the motion is dismissed.
[30] If the parties cannot resolve the issue of costs for this motion, the Plaintiff may deliver written costs submissions of up to 2 pages (excluding any costs outline or offer(s) to settle) within 15 days, and the Defendant may respond with submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Doi J.
Date: October 12, 2023
COURT FILE NO.: CV-21-3343-00
DATE: 2023 10 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Daniel Bustin, Plaintiff
AND:
Vince Quaranto and Economical Mutual Insurance Company, Defendants
BEFORE: M.T. Doi J.
COUNSEL: Jeffrey R. LeRoy, for the Moving Defendant, Vince Quaranto
Piera A. Segreto, for the Plaintiff, Daniel Bustin
ENDORSEMENT
M.T. Doi J.
DATE: October 12, 2023
[^1]: The CV-21-3338 action is being defended.
[^2]: The court recognizes that a duty of care is owed to rescuers and to family members who witness the aftermath of a motor vehicle collision. In the “rescuer” cases, the court has found that if a person, by his fault, creates a situation of peril, then he must answer to any person who tries to rescue the person placed in danger: Sigurdson v. Norbord Inc., 2021 ONSC 5193 at para 42, citing Corothers v. Slobodian, 1974 CanLII 187 (SCC), [1975] 2 SCR 633 at 640-641. This duty is grounded in foreseeability, as it is reasonably foreseeable that someone may respond to save or rescue a stranger in danger: Ibid. The “family member” cases involved claimants who witnessed either the bodily injury or death of another family member, or from seeing the aftermath of an accident involving a family member: Snowball v. Ornge, 2017 ONSC 4601 at para 16, citing Logan v. Lovesy, [1983] OJ No. 262 (HC); McCartney v. Andrews, [1987] OJ No 1092 (HC); McLoughlin v. O’Brian, [1983] 1 AC 410 (HL). In addition, the court has found a duty of care where a claimant witnessed the injury or death of a stranger that the claimant tried to save after an accident: Snowball at para 16, citing Bechard v. Haliburton Estate (1991), 1991 CanLII 7362 (ON CA), 5 OR (3d) 512 (CA). That said, the courts have declined to award damages for mental injury to a person who is merely informed of an accident: Snowball at para 16, citing Abramzik et al. v. Brenner et al. (1967), 1967 CanLII 415 (SK CA), 65 DLR (2d) 651 (Sask CA); Rhodes Estate v. C.N.R. (1990), 1990 CanLII 5401 (BC CA), 50 BCLR (2d) 273 (CA), leave to appeal refused, [1991] SCCA No. 1; Latimer at paras 12 and 14.