The Third Time Is A Charm; Or Is It?

The very recent decision in Lloyd v. Bush, 2020 ONSC 842, released on February 6, 2020, demonstrates some of the frailties in our legal system.

Lloyd v. Bush arose out of a motor vehicle accident that occurred on January 3, 2003, with the third trial decision being rendered just over 17 years after the accident.

The case involved two distinct aspects of liability. First, there was the issue of liability for the accident itself as between the two drivers. The plaintiff, Leslie Lloyd and the defendant, David Bush who was operating a fuel truck owned by MacDonald Propane were traversing an S curve corner at the same time in winter weather conditions. There was a dispute as to who crossed over the centre line causing the collision.

The second issue was whether the winter maintenance undertaken by the Town of Napanee met the standard of care in place at the time. The plaintiffs' damages were also in dispute.

The first trial proceeded in spring of 2009 before Justice Scott lasting 20 days. During the course of the trial, the defendants David Bush and MacDonald Propane entered into a Pierringer Agreement with the plaintiffs, with the trial against the municipalities proceeding.

Justice Scott dismissed the plaintiffs' case concluding that the plaintiffs had not established liability against either the motor vehicle defendants or the municipalities.

The precise amount of damages awarded was unclear as the trial judge did not make a quantified finding on many care costs, instead simply stating that he agreed with the defence calculations. He did award non-pecuniary general damages of $280,000.00 to Ms. Lloyd, $120,000.00 to her husband for his FLA claim, future loss of earnings of $930,694.00, past lost earnings of $2,449.00, home modifications of $129,129.00, and a finding that attendant care costs be provided in the sum of $31,200.00 per annum.

Justice Scott awarded the Municipal defendants over $400,000.00 in costs.

The case went to appeal. The Court of Appeal overturned the initial trial decision in its Judgment released in May 20121. A new trial was ordered on the basis that the trial judge had made comments during the course of the trial, which rose to the level of creating a reasonable apprehension of bias by the trial judge adverse to the plaintiffs.

The second trial proceeded before Justice Tausendfreund in October 2014, with Judgment rendered February 6, 20152. The second trial took 18 days. Many witnesses from the first trial testified at...