The Most Important Cases For Personal Injury Lawyers

• Published date: 05 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Libel & Defamation
• Law Firm: Blaney McMurtry LLP
• Author: Mr Stephen Moore

Blaneys' Partner, Stephen Moore, spoke at the 16th Annual Update: Personal Injury Law and Practice conference hosted by Osgoode Hall Law School Professional Development Program on April 29th, 2021. His session entitled "The Most Important Cases for Personal Injury Lawyers over the Preceding 12 Months", highlighted and reviewed the key cases decided in the last year and assessed their likely impact on personal injury law practice.

The content of Stephen's presentation is captured in the article below. For ease of reference, we have included a digital table of contents. The full article starts here.

Table of Contents

Introduction. 1

SLAPP Suits. 2

Limitation Periods. 8

Spoliation. 11

Damages for Improper Psychiatric Care to Involuntary Patients. 15

Failure To Clear Snow on Adjoining Municipal Sidewalk. 15

The Crown Liability and Proceedings Act, 2019. 16

Hockey Injuries. 19

Duty of One Joint Occupier to Another. 20

Liability for Injuries Caused by Domesticated Animals. 21

Weighing the Evidence of Experts. 22

Mitigation. 23

Liability for Stolen Vehicles. 24

Appointment of an Expert by the Pre-Trial Judge. 25

Re-litigating Criminal Convictions and Apologies. 26

Defective Motion for Summary Judgment. 27

The New Tort of Harassment. 27

Introduction

The last year has been the most unusual one I have ever experienced. Notwithstanding the almost complete paralysis of the civil justice system in the months following the start of the pandemic, a number of important decisions were released by the Courts throughout the country in 2020 and the first few months of 2021. Frankly, there have not been as many decisions as usual and of those that have been published, only a small number address the bread and butter issues this audience is concerned with.

I have interpreted the phrase "personal injury" broadly and have included cases that have addressed less traditional personal injury claims. In particular, I have included two Supreme Court of Canada ("SCC") decisions which interpret the anti-SLAPP legislation in Ontario and a more recent decision of Mr. Justice Belobaba which dealt with a claim against Ontario's Premier, Doug Ford. I have also dealt briefly with Justice Corbett's seminal decision on the tort of harassment on the internet.

Generally, this paper is not intended to be comprehensive analysis of the cases but rather provides a brief precis of each case simply to ensure that you are aware of it. Those cases which are the most germane to personal claims cases arising from accidents and professional negligence are dealt with in more detail. I have also avoided discussions of cases on most topics that will be covered in more depth by speakers later in the day.

Although I am supposed to focus on decisions handed down in the last 12 months, I have expanded the scope of this paper to cover cases from January 1, 2020 to date.

SLAPP Suits

A number of provinces, including Ontario, have enacted anti-SLAPP legislation (Strategic Lawsuits Against Public Participation) and the SCC handed down two decisions on this subject in the fall of last year. Both decisions were delivered on the same day.¹ In addition, the Ontario Superior Court recently decided another very interesting case on the anti-SLAPP provisions involving Premier Ford.²

I have included a discussion of these decisions because anti-SLAPP claims usually sound in defamation where personal injury is the gist of the complaint. While the personal injury bar most often addresses claims arising from accidents and professional negligence, we are often approached by potential plaintiffs and defendants about defamation claims. Second, the anti-SLAPP legislation ushers in a completely new regime for dealing with lawsuits that arise from any expression on a matter of public interest. Members of the personal injury bar should be aware of this new regime which has the potential to impact lawsuits which are not fundamentally about defamation at all.

Before discussing either case, a word about anti-SLAPP legislation is in order. C'té J., speaking for a unanimous Court in the Pointes case, explained the purpose of such legislation as follows:

2 Strategic lawsuits against public participation ("SLAPPs") are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party's speech

3 In light of the increased proliferation of SLAPPs, provincial legislatures (in Ontario, British Columbia, and Quebec) have enacted laws to mitigate their harmful effects. These laws are occasionally referred to as "anti-SLAPP" legislation (2018 ONCA 685, 142 O.R. (3d) 161 (Ont. C.A.); Galloway v. A.B., 2019 BCCA 385, 30 B.C.L.R. (6th) 245 (B.C. C.A.); Klepper v. Lulham, 2017 QCCA 2069 (C.A. Que.) (CanLII); B. Sheldrick, Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression (2014)).³

Pointes contains a detailed analysis of Ontario's anti-SLAPP legislation. The result of this legislation was the enactment of sections 137.1. through 137.5 of the Courts of Justice Act ("CJA")⁴. Section 137.1 is a purpose clause which outlines the intent of the legislation. The SCC has indicated that this clause commands considerable interpretative authority. It provides:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Reviewing the legislative debates, C'té J. commented that the legislation will allow the court to quickly identify strategic lawsuits, minimizing the emotional and financial strain on defendants, as well as the waste of court resources. Her Honour went on to note that the legislation is about preventing strategic lawsuits and that anyone who has a legitimate claim of libel or slander should not be discouraged by this legislation.

The Court indicated that the legislative framework is engaged if the expression is causally related to the proceeding. Accordingly, not just lawsuits directly concerned with the impugned expression are caught by this framework. The Pointes case was a good example of a non-defamation suit that was caught by the legislation.

In this case, the plaintiff, a developer, obtained approval from a regional conservation authority for a development. The defendant, a not-for-profit association, applied for judicial review of the conservation authority's decision. That application was resolved, in part, by the defendant agreeing in minutes of settlement that it would not advance the position that the conservation authority's resolutions were contrary to relevant environmental legislation. The plaintiff's application to the city for an official plan amendment was denied and the plaintiff appealed. The president of the defendant testified before the OMB that development would result in significant environmental damage. The plaintiff's application for development approval was denied. In this action, the plaintiff sued the defendant for an alleged breach of contract and damages because of the defendant's testimony before the OMB. It alleged the president's testimony breached the minutes of settlement. This claim was not a defamation case but rather a breach of contract case which arose from an expression that relates to a public matter.

Just how far this legislation can extend is unclear. Suppose a constituent were to make evidence-supported public utterances about a politician's alleged misuse of public funds. And let us further suppose that this politician and constituent get into an argument about the merits of the constituent's allegations that leads to a fight where the constituent suffers minor personal injuries. If the constituent sued the politician for assault could the politician seek to use the anti-SLAPP provisions to end the assault lawsuit?

This paper will not set out a detailed analysis of these cases but, rather, provide only an overview. However, these three cases should be read by anyone who encounters a situation where someone is contemplating suing or has been sued and the suit arises from an expression on a public matter. If it does, then the plaintiff runs the risk of having the action dismissed very early on and potentially at great cost to the plaintiff. This legislation provides defendants with a mechanism that may allow them to stop the lawsuit in its tracks in advance of discoveries. Even the threat of motion under this legislation may be sufficient to convince the plaintiff to drop their action or never start it.

The Court concluded that the initial burden on the plaintiff to demonstrate that the expression relates to a matter of public interest is not an onerous one.

Once the Court has concluded that the lawsuit arises from the expression made by the moving party that relates to a public interest, the onus shifts to the plaintiff to satisfy the judge that there are grounds to believe that the plaintiff's proceeding has substantial merit 'and that the moving party has no valid defence to the proceeding and that the harm to the responding party is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. A failure to demonstrate...