Stephanie Doucet

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The plaintiffs sought court approval of a Pierringer agreement with the City of Ottawa and leave to amend their statement of claim.

The non-settling defendant, United Petroleum, opposed the agreement, arguing it would suffer prejudice by potentially bearing the insolvent co-defendant's share of damages due to joint and several liability.

The court approved the Pierringer agreement, finding the alleged prejudice speculative and emphasizing the policy objective of promoting settlements.

The court also granted leave to amend the pleading but required the City of Ottawa to remain in the style of cause with its original allegations for apportionment of fault.

The plaintiff, who had pre-existing disabilities including hydrocephalus and kyphoscoliosis, suffered paraparesis after the defendant radiologists punctured his heart during a filter removal procedure.

Liability was admitted, and the trial proceeded as an assessment of damages.

The defendants argued the 'crumbling skull' doctrine applied, suggesting the plaintiff would have become wheelchair-bound regardless of their negligence.

The court rejected this argument, finding no cogent evidence to support it.

The court awarded substantial damages, including $250,000 in general damages for the plaintiff, $90,000 each to his parents for loss of care, guidance, and companionship, over $1.5 million for past attendant care, and over $5.7 million for future care costs, subject to a 15% negative contingency.

The plaintiffs brought a motion during a damages trial to exclude the evidence of the defendants' expert physiatrist, Dr. Anthony Burns.

The plaintiffs argued the expert's evidence was unreliable, biased, and failed to meet the requirements of the Rules of Civil Procedure and the White Burgess test.

The court found that the expert relied heavily on a chronology prepared by defence counsel rather than source documents, failed to review the complete medical file, and altered his opinion without proper notice.

The court concluded the expert failed in his duty to provide fair, objective, and non-partisan evidence, and excluded his testimony in its entirety.

The National Gallery of Canada retained Lafleur de la Capitale Inc. for landscaping and maintenance services and required Lafleur to add it as a named insured under its comprehensive general liability policy with Intact Insurance Company.

The Gallery was added as an additional insured only insofar as its legal liability arose vicariously out of Lafleur's operations.

When a Lafleur employee died while performing maintenance work at the Gallery's premises, two actions were commenced against the Gallery by the employee's spouse and family members.

The Gallery applied for a declaration that Intact had a duty to defend.

The application judge granted the application in brief reasons that failed to address exclusion clauses or the nature of the allegations in the statements of claim.

The Court of Appeal found the application judge's reasons inadequate and did not permit meaningful appellate review, allowing the appeal and remitting the application for a new hearing.

The Corporation of the Town of Petawawa appealed a decision holding it responsible for the cost of thawing a frozen waterline on a property owner's side of the property line.

The Superior Court dismissed the appeal, affirming the municipality's due diligence obligation to bear such costs, consistent with its past practice and its failure to enact a by-law to alter this obligation.

The court also suggested that contractual principles and estoppel could apply to the relationship between a municipality and its water users.

The plaintiffs moved to amend their statement of claim in a motor vehicle accident action.

While most proposed amendments were unopposed, the City of Ottawa objected to specific allegations of negligence against it, arguing they were prolix, repetitive, pleaded evidence, and constituted inappropriate boilerplate, especially given the advanced stage of litigation.

The court granted leave to amend in principle but required the plaintiffs to revise the contested paragraph to remove repetitive subparagraphs, specific pleading of evidence (such as the exact number of previous accidents), and inconsistent allegations unless clearly pleaded in the alternative.

The Master emphasized the need for certainty, precision, and sufficient particulars in pleadings.

Costs were awarded to the City of Ottawa.

Following a trial on liability for a motor vehicle accident where the deceased driver was found 80% responsible and the City of Ottawa and its bus driver 20% responsible, the court determined the costs payable to the successful plaintiffs.

The plaintiffs sought over $811,000 in costs and disbursements.

The court reviewed the factors under Rule 57.01, including proportionality, the complexity of the case, and the results achieved.

The court reduced the plaintiffs' claimed costs due to excessive hourly rates for students/paralegals, duplication of effort, and excessive time spent on certain stages.

The court awarded the plaintiffs $527,065.25 in fees and $143,531.25 in disbursements.

Additionally, the court granted a Sanderson Order requiring the unsuccessful defendants to pay the costs of the successful defendant insurer directly.

The plaintiffs were injured when the SUV they were passengers in ran a red light and was struck by an OC Transpo bus.

The driver of the SUV was killed and admitted to be primarily at fault.

The plaintiffs sued the bus driver and the City of Ottawa, alleging the bus driver was also negligent.

The court found that the bus driver, despite having the right of way, owed a duty of care to avoid the collision.

The court held that the bus driver breached the standard of care of a professional driver by speeding, failing to adjust his driving for the snowy and slushy road conditions, and momentary inattention.

Relying on expert accident reconstruction evidence, the court concluded that but for the bus driver's negligence, the accident could have been avoided.

Liability was apportioned 80% to the SUV driver and 20% to the bus driver.