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Municipal, Land Use and Development – Art Linton

The Supreme Court of Canada recently clarified the law of injurious affection where no land is taken in its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Unfortunately, the compound test set out by the Court has left many public sector professionals feeling uncomfortable about their ability to efficiently detect and assess potential claims without extensive legal assistance. Lawyers representing property owners in such cases often apply a simplified first pass test looking for construction that permanentlysubstantially, and disproportionately affects property values or causes personal or business damage. There is no reason that expropriating authorities can’t apply the same test to identify and mitigate the risk of unanticipated litigation expense.

The Expropriations Act (Ontario) requires an expropriating authority to compensate a landowner for reduction in market value as well as personal and business damages even where none of the owner’s land is taken. Before having an entitlement to compensation, claimants are required to prove any damage was caused by action taken under statutory authority, the damage would have given rise to liability in common law if not for the statutory authority, and the damage was caused by the construction, not the subsequent use of a public project. In most cases, it will be known whether the work was performed under statutory authority, and it will be reasonably clear whether a potential claim will arise from construction and not the use of a public work.

The legal test is complicated in practice because the Court requires that damage must be substantial and unreasonable. These terms are intentionally broad to permit consideration of the particular circumstances of each public project. The determination of what is substantial and unreasonable is subject to the moving target of Ontario Municipal Board and court decisions on various fact sets that come before them over time. Further, the legal test considers whether any damage to a property is, or is not, the kind of damage a property owner should be prepared to accept without compensation. An experienced expropriation lawyer is the best choice to conduct this legal analysis.

Public officials should diligently apply the simplified first pass test early in each project to identify potential claims and refer them for legal analysis. An experienced expropriation lawyer can then apply the full legal test set out by the Supreme Court to advise whether a potential claim is likely to materially affect the cost of a project. If serious potential claims are identified before construction begins, more time and options are available to mitigate liability and manage cost.

One illustration is a single business located on a short dead end side street off a main traffic artery. Vehicles travelling in either direction on the main road are able to reach the business using a left or right hand turn. Access to that business would clearly be affected by any permanent obstacle, such as a concrete safety barrier or a raised LRT service in the median of the main road. All customers who previously accessed that business by making a left hand turn off the main road would be prevented from doing so. An application of the simplified test would show likely permanent, substantial, and disproportionate affect from the construction, visited upon this single business. Early recognition of this problem might allow solutions like a left hand turn lane with permitted U-turns at the next intersection or opening a new access at the other end of the short dead end street.

The simplified first pass test is no replacement for a thorough strategic review of every project prior to construction. However, early detection of potential claims provides time to offer remedies that may not be available once a plan is approved and to make other reasonable efforts to reduce the impact of the project on affected property owners.

Art Linton is a lawyer with Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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A recent decision of the Ontario Superior Court of Justice has resulted in a woman injured in a slip and fall on property owned by the City of Toronto to pay more than $9,000 in legal fees to the City when her case was dismissed by the Court because she failed to notify the City within 10 days following her injury of her intention to seek compensation.

The City of Toronto Act (like the Municipal Act) requires individuals who have injured themselves on City property to notify the City within 10 days of the date of the accident.

The Plaintiff in this case injured herself on August 19, 2011 when she tripped on a City sidewalk as a result of a 2.5 cm gap between the concrete and the interlocking brick. Unfortunately, she fractured her left wrist.

It was not until some 4 months later that the plaintiff caused a notice letter to be delivered to the City. Although there is an exception to 10 day notice requirement where there is a reasonable explanation for the delay, the plaintiff in this case was unable to provide any reason to the Court why such notice was not delivered.  Additionally, there must be evidence that the City has not been prejudiced by the delay in the receipt of the statutory notice.

Importantly, ignorance of the requirement or the statutory limitations is not an excuse for non-compliance with the Act.

It was clear that, although the Plaintiff had suffered an injury, the injury did not hinder her actions or ability to give timely notice.

The Court was quick to empathize with the Plaintiff and explicitly commented on the unfairness of the 10 day notice requirement, however, ultimately found that it was bound to give effect to the legislation and rule in favour of the City’s motion to dismiss the action.

The take home message: contact SorbaraLaw immediately following an accident causing injury so that we can take the appropriate and necessary steps to preserve your rights.

Article written by: Cynthia Davis
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* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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When the Ontario Human Rights Code (the “Code”) was amended in June 2008 to include section 46.1 which allows a court to order remedies for an infringement of a right under the Code, many observers in the employment bar expected to see claims for damages for breach of the Code to be joined with wrongful dismissal claims. It took five years from when that amendment was enacted before an Ontario Superior Court judge exercised this new judicial power in the context of a wrongful dismissal action.

In Wilson v. Solis Mexican Foods Inc., Justice A. Duncan Grace found that the employer discriminated against the employee in the termination of her employment and awarded $20,000 in general damages for the infringement of her rights under the Code in accordance with section 46.1. This decision is significant as it is the first time that a superior court judge has awarded damages for an infringement of the Code pursuant to section 46.1 and it provides a framework for the analysis and assessment of damages in such claims.

The Code was amended on June 30, 2008 to include, among other things, section 46.1 which provides as follows:

46.1  (1)  If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

46.1 (2)  Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

Prior to this amendment, the court did not have authority to award damages for breach of the Code. Therefore, if an employee wanted to pursue a claim for wrongful dismissal and also felt that she had been discriminated against in violation of the Code, she would have had to pursue a lawsuit for wrongful dismissal before the courts and a complaint or application under the Code.

Section 46.1 was designed to create efficiency and avoid multiplicity of proceedings. While it does not give a former employee the right to commence a civil action based solely on the alleged breach of the Code, section 46.1 does permit her to include a claim for discrimination under the Code in a claim for wrongful dismissal. If the court finds that there was an infringement of a right under the Code, it now has broad powers to award monetary compensation or order remedies other than monetary compensation, in order to remedy the violation.

In Wilson, the court was dealing with the termination of a relatively short-term employee that occurred in the middle of a medical leave of absence.

Wilson was employed by Solis for approximately 16 ½ months as a Business Analyst. Her employment was terminated without notice by way of a letter dated May 19, 2011. No cause for termination was alleged. The reason that Solis stated for the termination was that it was the result of organizational changes (specifically the sale of its New Orleans Pizza division) that made many of her job functions redundant. Wilson received two weeks’ pay in lieu of notice at the time of termination. She was 54 years old at the time of termination. She was successful in finding new employment within five months.

Wilson commenced an action for wrongful dismissal. She also alleged that her employment was terminated, at least in part, because of an ongoing back ailment and made a claim for damages pursuant to section 46.1 of the Code for an alleged violation of her rights under the Code.

The basis for the human rights claim was that Wilson had raised the issue of her back ailment with Solis in December 2010, had taken a leave of absence as a result of her back in March 2011 and was still on that leave of absence when her employment was terminated. During the leave, Solis had requested numerous medical notes from Wilson. When Wilson presented a note that indicated that she was capable of returning to work on a graduated basis, Solis indicated that this was not acceptable and required that Wilson be capable of returning to full-time hours and full duties before she could make the transition back to work. Solis required Wilson’s doctor to complete a Functional Abilities Form. When the doctor did so, Solis raised concern with it and requested a further Functional Abilities Form be completed. The last communication from Wilson’s doctor was delivered three weeks before her employment was terminated and indicated that Wilson was required to be off work for another six weeks. There was also evidence that Solis’ management had been discussing Wilson’s health condition dating back to December 2010 after she disclosed the same.

With respect to the wrongful dismissal claim, Solis conceded that it had not provided reasonable notice of termination or pay in lieu thereof. Solis maintained that a three month notice period was appropriate. Wilson sought damages based on a six month notice period. Considering all of the evidence, Justice Grace found that the reasonable notice period was three months and awarded damages accordingly.

With respect to the human rights claim, Solis maintained Wilson’s termination was unrelated to her back issues but was the result of the sale of the New Orleans Pizza division which eliminated a number of Wilson’s duties – Wilson in fact conceded that her work load would have been cut in half after the sale.

Justice Grace began his analysis by confirming that Wilson’s back ailment, while temporary, nevertheless constituted a “disability” under the Code. He then went on to consider the jurisprudence before the Human Rights Tribunal of Ontario (the “HRTO”) regarding discrimination in the context of termination of employment and accepted the proposition that “a decision to terminate an employee based in whole or in part on the fact that employee has a disability is discriminatory and contrary to the Code”.

Justice Grace found that Wilson’s ongoing back issue was a significant factor in the decision to terminate. In so doing, he relied on evidence that showed that Wilson had been assessed as performing at a satisfactory level weeks before advising Solis of her back issues in December 2010 and that, after her disclosure of this disability, Solis questioned for the first time whether Wilson was suited for her role. Justice Grace also found that Solis’ requests for documentation and its insistence that Wilson be ready for full-time hours and duties as a condition of her return to be evidence of it being disingenuous and failing to offer or even consider accommodation as required under the Code. He was also critical of Solis’ failure to notify Wilson at any time prior to the termination letter of the pending sale of the New Orleans Pizza division or the potential impact of the sale on her job.

Justice Grace concluded without hesitation that the decision to terminate Wilson’s employment started in December 2010 when she raised issues about her back. Accordingly, he found that her right to equal treatment and to be free from discrimination under section 5(1) of the Code was violated by Solis.

In considering the appropriate award of damages, Justice Grace noted that the only evidence that he had with respect to Wilson’s loss relating to “feelings, dignity and self-respect” was limited to two statements she made in her affidavit about being shocked, dismayed and angered by one of Solis’ letters that pre-dated the termination. Justice Grace nevertheless relied on previous HRTO jurisprudence in concluding that compensation for breach of the Code was not limited to claims for a loss relating to “feelings, dignity and self-respect”. In this regard, he relied on ADGA Group Consultants Inc. v. Lane in which the Divisional Court upheld the HRTO’s award of $35,000 in general damages “to compensate for the intrinsic value of the infringement of rights under the Code” and a further $10,000 for mental anguish. Justice Grace also relied on previous case law for the proposition that employers are under a duty to act fairly and are required to be candid, reasonable, honest and forthright when dismissing employees. He found that Solis did not meet that standard when it claimed in one breath that Wilson was “valued” and then created obstacles for her return and ultimately terminated employment when the time was ripe.

Having considered those principles and all of the evidence, Justice Grace determined that the appropriate award of general damages under section 46.1 was $20,000.

This damage award was significant considering that it represented approximately 30% of the Wilson’s annual salary and it was greater than the amount that was awarded for wrongful dismissal damages.

Also, Justice Grace made this award while recognizing that there was limited evidence as to the effect that the violation had on Wilson. Presumably, if Solis’ conduct had been more serious and had Wilson presented medical or other evidence to demonstrate a more significant impact on her well-being, Justice Grace would have been inclined to award considerably more in damages. Indeed, given the minimal evidence of “loss” or “injury” that was presented in this case, this ruling can be expected to be relied upon by plaintiff counsel as a starting point for damages under section 46.1.

It is clear from the ruling in Wilson that the court will adopt the same principles that HRTO has established in assessing claims of discrimination, in particular the well-established principle that the disability (or other protected ground) need only be a factor (and not the only or a primary factor) in the decision to terminate, in order to constitute a violation of the Code. It is also clear that damage awards for breach of the Code are on the rise.

Accordingly, employers are well advised to take these issues seriously and to ensure that they are complying with their obligations under the Code. Those that do not may be exposed to significant damage awards and other remedies in court.

Article written by: Justin Heimpel
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* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Municipal, Land Use, and Development – David Sunday and Lynn Dramnitzki

Municipalities are finding it increasingly difficult to fund the growing cost of local services and other municipal operations. Financial support from other orders of government is limited, while increases in property taxes often face stiff resistance from the electorate. While certain municipalities have been given special powers to assess and collect tax other than just property taxes, most municipalities must rely on property taxes as their principal means of funding many of the services they provide. Read more…

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Originally published in Municipal WorldApril 2014.

In October, 2013, the Supreme Court of Canada dismissed an appeal from a SorbaraLaw victory at the Court of Appeal of Ontario marking the successful end of a long process for our client’s family.

Back in February, 2011, Greg Murdoch, a partner in charge of Sorbara Law’s litigation Group, and Steve Kenney, counsel to the firm, obtained a significant Judgment in a medical malpractice action involving the misdiagnosis of an aortic dissection in a pregnant woman. The trial took place over five weeks in the fall of 2010. The Supreme Court’s decision affirmed the win at trial.

Our client, Christine Manary, was 28 years old and 32 weeks pregnant with her first child when she attended Grand River Hospital in August of 2003 with significant radiating chest pain. On admission, her symptoms in addition to the severe chest pain included an unusual heart murmur and were considered to be consistent with either a pulmonary embolism (blood clot) or an aortic dissection (a tearing of the inner lining of the artery). The doctors caring for Christine downplayed the possibility of a dissection because of her age. Christine died nine days later when the dissection ruptured on the day she was to be discharged. Fortunately, her daughter was delivered by caesarian section and survived without any adverse consequences.

During her admission, Christine had numerous diagnostic tests which suggested a pulmonary embolism was not the cause of her symptoms. Diagnostic imaging in fact disclosed that Christine had a dangerously large aortic aneurysm which is a bulging of an artery. The significance of this symptom and the danger it imposed and how it might relate to Christine’s symptoms was not acknowledged.

The Court reviewed Grand River Hospital’s policy of assigning a most responsible physician for each admitted patient.

For obstetrical patients, the obstetrician is the most responsible physician. The MRP is responsible for writing and clarifying orders, providing a plan of care, obtaining consultations as appropriate and coordinating the care of the patient.

The Court agreed with SorbaraLaw’s submissions that the obstetrician in this case failed to discharge his duties as most responsible physician because he focused only on Christine’s obstetrical issues and let other non-cardiac specialists deal with Christine’s cardiac issues. The obstetrician failed to exercise independent critical judgment when an alternative diagnosis to pulmonary embolism should have been pursued.

The Court preferred the evidence of the vascular surgeon called on behalf of Christine who testified that if Christine’s condition had been recognized for its seriousness, she could have had surgery within hours.

The obstetrician appealed the decision to the Ontario Court of Appeal which affirmed the trial Judge’s decision noting that an MRP must exercise independent critical judgment when assessing a patient and consulting with other specialists.

A motion seeking leave for a further appeal to the Supreme Court of Canada was denied.

Medical malpractice cases are extremely challenging and always hard fought battles. This is a significant achievement for our client. Congratulations to the SorbaraLaw litigation team!

Article written by
Cynthia Davis,
B.A. (Hons), LL.B. was called to the Bar in 2007 and is a member of SorbaraLaw’s litigation group. Cynthia works out of the Waterloo office.

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Litigation – Steven Kenney

Winter has arrived and with it, snow and ice.  Slips and falls as a result of snow and ice are common and caution should be taken to avoid taking such a spill.  However, should you find yourself injured from a slip and fall, it is important to know what to do.

We recommend the following important steps:

  1. Record the location of the fall, particularly whether it occurred on private or public property. There are specific notices and very short time frames that must be followed if public or municipal property is involved.
  2. Record and keep the footwear worn at the time of the incident. Do not clean the shoes or boots, but store them in a safe place.
  3. Record the weather and other conditions. For example, was the walkway icy or snow covered, muddy, broken or in need of repair, or is there a hidden step?
  4. Record how the fall occurred. What were you doing? Where were you going? What happened?
  5. Record the names and addresses of witnesses to the fall.
  6. At the time of the fall, did you talk to anyone who had some sort of control over the property? (i.e. property owner, store manager, parking lot attendant)
  7. Record the names of any hospitals or treatment centres attended.
  8. Record the types of injuries and any treatment received.
  9. If possible, take photographs of the location, and date the photos.
  10. Contact a lawyer promptly to convey this information and determine your rights.

Likewise, even where care is taken to clear ice and snow from driveways, sidewalks and walkways, the winter season also comes with the risk that someone will slip and fall on your property. If someone has notified you that they have slipped and fallen on your property, these steps are important to follow:

  1. Take photographs of the location, and date them.
  2. Record the person’s name and address. Do the same for any witnesses.
  3. Summarize any information provided to you concerning how the fall occurred. If you were a witness to the incident, write a detailed statement describing what happened, and where and how it happened. Be sure to include any important details. Was the person drinking or drunk? Was the person walking, running or using a digital device (phone)? Was the person paying attention? What was the person’s footwear?
  4. Record the state of the walkway. Had you salted or placed sand prior to the incident? Had you cleared snow/debris?
  5. Record any injuries.
  6. Notify your insurance broker or property insurance company of a potential claim. It is difficult to know whether an individual will commence a claim for compensation. Injuries may appear to be minor at the time of the incident, but circumstances may change the status to serious or severe later. Some insurance companies appreciate the early warning and will send an adjuster to investigate immediately. Others may wait until you are given notice of a lawsuit.
  7. Contact a lawyer promptly to convey this information and determine your potential liability.

Often, notice of a lawsuit does not occur for many months or more. Thus, it is important to record details promptly, as your memory may fade with time. Most importantly, don’t panic if you receive notice of a lawsuit, but do contact your insurance company quickly to ensure that a response to the claim is prepared in the required time period.

Should you have any questions about your rights or liabilities with respect to slips and falls, please feel free to contact a member of our litigation group.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Steven Kenney is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Steven may be reached at (519) 741-8010 or <skenney@sorbaralaw.com>.   

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