Category: Civil Negligence

Moskowitz v. Detox, 2022 ONSC 4063

The plaintiff was injured in an exercise class while using a bouncing air-filled ball for a slam ball exercise. Following a trial, Justice Brown held that the defendant fitness club met the applicable standard of care. First, the slam ball exercise was not inherently dangerous or complicated. The use of an air-filled ball for the exercise fell within industry standard. Further, the instructor properly prepared the room for the exercise and gave appropriate instructions (including a demonstration) with respect to the exercise. The plaintiff had also done the exercise and received instruction on the exercise in the past. Finally, it was not negligent for the instructor to turn her back to the class briefly in order to start the timer for the exercise.

Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030

This personal injury action arose from a fall by the plaintiff on ice outside of the condo building where he lived. The trial proceeded on liability only, as damages had been agreed upon. The condo had retained a winter maintenance contractor, which was at the premises prior to the fall and was still plowing at the time of the fall. The contractor had not performed any salting before the fall. Justice Hackland held that the contractor was negligent and liable to the plaintiff. Justice Hackland was persuaded by the expert engineer called by the plaintiff regarding best practices for salting.

Schwientek v. LHSC et al., 2021 ONSC 5879

The plaintiff was injured in the process of being physically restrained by security guards at the London Hospital pursuant to a medical order. He sued the hospital and the security guards for damages, alleging that the restraint was unnecessary and the force used was excessive. He further alleged that the room that he was admitted to was not a safe and appropriate environment, and that his blood was taken without his consent. Following a trial, Justice Leitch dismissed the claim, holding that security used proper use of force protocols and that there was no blood taken without consent. With respect to security measures, the court accepted the evidence of the defendants’ expert as to the applicable standard in the circumstances.

Adler v. Promenade General Partner Inc., 2021 ONSC 5393

The plaintiff slipped and fell in a walkway of Promenade Mall near the food court. She alleged that she fell because her shoe became stuck on something sticky on the walkway. She suffered significant injuries, including fractures to her face, skull, and left kneecap. There were no photographs or other objective evidence showing any sticky substance on the ground. The defendants brought a summary judgment motion seeking dismissal of the action on the basis that the plaintiff failed to prove any breach of the Occupiers’ Liability Act. Justice Boswell dismissed the motion, holding that the defendants failed to prove there was no genuine issue requiring a trial. The plaintiff’s offering of her own direct observations of a sticky substance on the floor was admissible direct evidence that there was a sticky substance on the floor and that her foot stuck to it. Her ability to pinpoint a hazard raised a genuine issue for trial, as did the issue of whether the defendants had a reasonable system in place to detect and correct hazards.

Sorbam Investments Ltd. v. Litwack, 2021 ONSC 5226

The primary issue in this case was whether a property owner who was not the “spiller” of chemicals could be liable for the migration of the contaminants onto a neighbouring property where it had knowledge of and allowed the migration to continue. The plaintiff was the former owner of a commercial property in Ottawa. It argued that its former property was contaminated by the migration of chemicals from a dry cleaning business that historically operated on the neighbouring property. The defendant property owner purchased the property in 2007, long after the chemicals were deposited and began migrating. The defendant became aware of the existence of the chemicals in 2010 but took no steps to stop the migration.

Justice Ryan Bell found the defendant liable to the plaintiff in nuisance and negligence. She found that the defendant had knowledge of the contaminant migration issue, allowed the migration to continue, failed to take any steps to address the migration within a reasonable period of time, and that its conduct resulted in increased environmental contamination to the plaintiff’s property. The plaintiff was awarded $1.2 million for the diminution in the market value of the property.

Belton v. Spencer, 2021 ONSC 2029

The plaintiff was injured at his commercial horse stable. He alleged that his injuries were caused by the defendant’s horse, which he had been hired to stable and care for. The plaintiff had no memory of the incident and there were no witnesses to it. He was found on the ground with blood dripping from his head. He alleged that the defendant was strictly liable for her horse’s actions, and that the defendant was negligent with respect to the horse’s training. Following a trial, Justice Nightingale found that the plaintiff failed to prove how his injuries occurred, and dismissed the action.

Breen v. Lake of Bays (Township), 2021 ONSC 533

The plaintiffs purchased a cottage property in the Township of Lake of Bays in 1999. The previous owner/seller had built the cottage between 1989 and 1991. The Township performed inspections around the time of the build. The plaintiffs initiated renovations to the cottage in 2012. During the renovation process, several latent defects were discovered and the plaintiffs sued the Township for negligence regarding its performance of inspections under the Ontario Building Code, 1986. Following a trial, Justice Sutherland accepted the plaintiffs’ position and ordered the Township to pay damages totaling $360,000.00. In so doing, the court found that the Township owed duties of care not only to owners at the time of inspection, but also subsequent owners of the property.

Moushi v. Stephen, 2019 ONSC 3125

The plaintiff was injured as a result of a motor vehicle accident. The defendant driver was suffering psychiatric impairments at the time of the accident. He stole his mother’s vehicle and struck the plaintiff vehicle head-on. The defendant driver and his mother both moved for summary judgment. The defendant driver took the position that he was not civilly liable for his actions because of the psychological disorder he suffered at the time. The mother moved on the basis that the defendant driver did not have consent to possess her vehicle, nor was she responsible for his actions. Justice Sheard granted summary judgment. With regard to the mother, Justice Sheard held that the defendant driver did not have consent to possess the vehicle, and the mother did not have a duty of care to control her son’s actions. With regard to the defendant driver, Justice Sheard reviewed the case law defining mental illness in negligence law and concluded that he could not be held civilly liable for his actions.