Category: Duty of Care

Solak v. Brantford Police Services Board, 2022 ONSC 4025

The plaintiff was shot by two police officers while in an alleged mental crisis. The plaintiff and FLA claimants sued the two police officers, three police chiefs, and various John Doe police officers. The plaintiffs claimed damages, including punitive and aggravated damages. The defendants moved to strike the claims against the police chiefs and the John Doe officers, and moved to strike the claims for punitive and aggravated damages. Justice Gibson granted the relief sought, and struck the claims against the police chiefs and the John Doe officers. He also struck the claims for punitive and aggravate damages. He found the police chiefs did not owe a private law duty of care to every member of society who might be at risk. Their duty was to the public as a whole. The John Doe defendants were empty placeholders whose existence was hypothetical and undefined, and there was no indication of how the purported John Doe constables were involved or of what they did or failed to do. Finally, the claims for punitive and aggravated damages lacked facts pled in support of such damages.

Miller et al. v. Canadian National Railway et al., 2021 ONSC 4806

The plaintiff was injured when he fell 15 feet into a rocky creek bed while taking a shortcut over a railway trestle. He sustained serious injuries and sued Canadian National Railway (which owned the railway lands) and the City of Quinte West (which conducted certain lawn maintenance on adjacent land). The plaintiff sued the City on the basis that it ought to have made access to the railway lands more difficult. The plaintiff’s primary argument against the City turned on the City having mowed a large patch of grass that led to the rail lands.

The City brought motion for summary judgment, which CNR did not oppose. Justice MacLeod granted the City’s motion and dismissed the claim against it. He found that there could be no liability against the City as it did not occupy the land in question had no other duty of care with respect to the CN lands. Further, the City did nothing on adjoining lands which created a hazard of materially increased the risk of injury.

Boustany v. Singh, 2021 ONSC 3140

The plaintiff was injured at a municipal pool when the defendant Singh made physical contact with her. The defendant Singh is severely autistic and required supervision and medication. The plaintiff sued Singh, the school board, the municipality, and Singh’s caregiver (his grandmother).

he caregiver was not with Singh when the incident occurred, but it was alleged that she ignored medical advice to increase dosages of his medications. The caregiver brought a motion to strike the claim as against her on the basis that she did not owe a duty of care to the plaintiff when she was not with Singh and not actively supervising him. In dismissing the motion to strike, Justice Gibson affirmed that caregivers may owe a duty of care for negligent conduct of a vulnerable child in appropriate circumstances. Justice Gibson reasoned that the defendant caregiver’s conduct and supervision of Singh as his loco parentis and main caregiver raised a genuine issue for trial.

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35

The plaintiffs in this class action are Mr. Sub franchisees. At the material time they were bound through a chain of indirect contracts to purchase meat product exclusively from the defendant Maple Leaf Foods (although there was no contractual privity between Maple Leaf and the franchisees). After a recall of Maple Leaf meat products due to listeria, the plaintiffs sued Maple Leaf Foods for economic loss and reputational injury. Maple Leaf brought an unsuccessful motion for summary judgment dismissing the action. The motion judge held that Maple Leaf owed the franchisees a duty to supply a product fit for human consumption and that the contaminated products posed a real and substantial danger, which grounded a duty of care. The Court of Appeal allowed Maple Leaf’s appeal, and found that the motion judge’s decision to allow the claim to proceed could not stand in light of the SCC’s 2017 decision in Deloitte & Touche v Livent Inc. (which was decided following the disposition of the motion for summary judgment). The SCC upheld the Court of Appeal’s decision, holding that Maple Leaf did not owe a duty of care to the franchisees. It reasoned that while common law readily imposes liability for negligent interference with and injury to bodily integrity, mental health, and property, there is no general right in tort protecting against the negligent or intentional infliction of pure economic loss. The SCC applied the Anns/Cooper analysis for duty of care. After confirming that proximity remains the controlling concept, it found that proximity could not be established in this case by reference to a recognized category, nor by conducting a full proximity analysis. As such, no duty of care could be established.

Florence v. Benzaquen, 2020 ONSC 1534

The plaintiff gave birth to triplets prematurely, who were diagnosed with cerebral palsy. The plaintiff and the triplets sued her OBGYN in relation to prescription of a certain fertility drug prescribed prior to conception of the triplets. The defendant OBGYN brought a motion to strike the claims of the triplets, arguing that a person cannot owe a duty of care to a future child where the alleged negligence occurred prior to conception. The claim as framed in the pleading was that the OBGYN was negligent in prescribing the fertility drug to the plaintiff and that but for that negligence, the triplets would not have been born. Justice Wilson reviewed the Canadian and English jurisprudence on wrongful life / wrongful birth claims and held that Ontario law did not recognize such claims. While the claims of the plaintiff mother could proceed, the claims by the triplets were struck without leave to amend.

Stewart v. The Corporation of the Township of Douro-Dummer, 2018 ONSC 4009

Justice Ricchetti concluded that a taxi driver has no positive duty to ensure that adult passengers are or remain seat-belted.

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19

The minor Plaintiffs entered an unsecured garage property and stole a vehicle. The vehicle was subsequently involved in an accident and Plaintiff J suffered a catastrophic brain injury. At trial, it was found that the garage owed a duty of care to J. This finding was upheld by the Ontario Court of Appeal. However, the Supreme Court of Canada overturned the decision in a 7-2 split. The Supreme Court held that the risk of theft did not automatically include the risk of theft by minors and that there was insufficient evidence to suggest that it was foreseeable that minors would frequent the garage premises at night or be involved in vehicle theft. The Supreme Court also held that the garage did not have a positive duty to guard against the risk of theft by minors.