PUBLICATIONS

This article is our latest update in our swimming pool liability series, following our 2013 paper. 

This year's approach will focus on public pools encompassing not only municipally funded facilities but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act, we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act (“HPPA”) then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.
 

On April 11, 2017, David Marshall, Special Advisor to the Minister of Finance, released his final 103-page report regarding Ontario's auto insurance system. The report was entitled: Fair Benefits Fairly Delivered (the “Report”).

The Report's introduction outlines the purpose of David Marshall's role as Special Advisor and the purpose of his appointment, by Order in Council, to review and make recommendations for improvements in the auto insurance system in Ontario. Marshall explains that Ontario is often criticized as having the most expensive auto insurance in Canada.

On March 6, 2018, Bill 193: Rowan’s Law (Concussion Safety), 2018(“Rowan’s Law”) passed its third reading. The Bill will next go before the Lieutenant Governor to receive Royal Assent.

Rowan’s Law is named for Rowan Stringer, a 17-year-old rugby player who died after sustaining a traumatic brain injury in a rugby game. The Bill will come into force on the day it receives Royal Assent, although this day has not been announced (section 9(1)).

Overall, Rowan’s Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. 

A “sport organization” will be required to:

Over the years, Canadian courts have spent considerable time answering the question: “whether an insured's negligence while using or operating a motor vehicle has ‘caused' – in its recognized legal sense – the injuries sustained by the victim.”1 Now that Uber has revolutionized the way we transport passengers to their chosen destinations, this will inevitably add to the number of vehicle-for-hire on the road. Given this increase, we can expect an escalation of lawsuits involving the liability for vehicles-for-hire. Some of these lawsuits will involve Uber driver's liability. When these circumstances arise, the Courts will have to decide what principles to apply. The cases discussed will provide some guidance as to how the courts may deal with these issues in the future.

A recent decision emerging from the Ontario Superior Court of Justice will likely have a significant impact on the viability of waivers in the defence of personal injury actions in Ontario.

Although the ruling in Schnarr v Blue Mountain Resorts is under appeal, the effect of the decision in Schnarr on the enforceability of waivers in Ontario is profound.
 

On Monday, March 28, 2017, the Ontario Court of Appeal released their decision, Lloyd v. Bush, 2017 ONCA 252. This case was an appeal by the County of Lennox and Addington (the "County") and the Corporation of the Town of Greater Napanee ("the Town") from a trial level decision that found the respective municipalities liable for damages arising out of a motor vehicle accident.

Those who have watched or participated in a hockey game will know that rough play is an inherent risk of the sport. What constitutes an inherent risk in hockey if not an illegal check from behind? Are all illegal manoeuvres that violate the rules of the league tortious? What mental element must be present for liability to attach? How do these factors determine the availability of insurance coverage? Each of these questions will be addressed.

Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations. 

With the commencement of the annual winter ski season, the legal exposure to ski hill and resort operators arising from injuries suffered by skiers and resort guests alike consequently increases. One of the most common forms of protection from this increase in risk is through the use of waivers.

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario's history.

Although the courts are sceptical of “dubious science”, the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

With the increased frequency of travel outside province and country, comes a corresponding increase in activity-related injuries. These can result in lawsuits for injuries sustained abroad. Managing where lawsuits may be commenced becomes a source of concern for those involved in the travel industry, such as resort and tour operators and their insurers. Ontario hotel and resort operators may therefore unknowingly find themselves being named as defendants in actions commenced outside of Ontario. This will cover, how it happens, how to challenge it, and managing location in the future.

Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.

In a decision Uber is calling a "victory for common sense", the UK High Court ruled that Uber was not in contravention of existing London regulations with respect to taxicab meters...

Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury? 

This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.

This paper addresses two important questions that are integral to determining whether a negligence action arises from the use and operation of a motor vehicle. Firstly, this paper seeks to determine whether a particular vehicle involved in an accident actually constitutes a motor vehicle.

Secondly, this paper seeks to determine what constitutes the use and operation of a motor vehicle.

This article explores the recent trend of general damages awards in chronic pain cases in Ontario. It breaks down the groundbreaking case of Degennaro, which remains the high watermark in these cases. It then looks to the recent case law to contextualize Degennaro andestablish a framework for understanding how courts arrive at these awards.

This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.

Sports have long been a part of everyday life for many people, both as spectators and participants. With modern advances in science the true inherent dangers of many of these sports are finally being examined, specifically with regard to concussions. Recent studies have revealed an alarming prevalence of concussions and other head injuries suffered by athletes in contact sports that are played all over the world, such as football, hockey, rugby and soccer. The results of these studies have brought much attention to the laws, rules, and regulations governing the conduct of athletes, coaches, trainers and other key personnel when a potential concussion has been experienced. Due to the possibility of serious and permanent injuries occurring on the field, diamond, rink or other, the potential for high value litigation is ever present.

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan15 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

Exposure for occupiers’ liability is not a novel topic of discussion in the world of tort and insurance law. However, the application of occupiers’ liability to minor plaintiffs is an area of law that has been evolving in recent years. The most dynamic change has been that Courts are more readily finding that occupiers whose premises are geared towards children should expect minors who enter their property to be, to a certain extent, reckless and unpredictable by virtue of their youth and inexperience, and accordingly, ensure their premises are that much safer.

The emphasis on holistic learning has led to an increase in field trips and physical activities that are both further from students’ schools and are inherently more dangerous than traditional school activities. This has greatly increased the potential for student accidents and injuries. Many schools attempt to shield themselves from liability by forcing students, and students’ parents, to sign permission forms and/or waivers of liability. However, the content of these forms, and the difference in their purposes, has a tremendous impact on whether or not the Courts will accept these documents as a barrier to potential liability.

The general test for determining whether one person has acted negligently towards another in Canada is contained in the dual concepts of duty of care and standard of care – that is, the hurt party has to show that the party they think is responsible for their harm was under a legal obligation to protect them from or prevent that harm. The Supreme Court of Canada recently looked at the different categories of duty of care in its decision Childs v Desormeaux. The language the court used to describe duty of care is as follows: “A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.”1 Once that link has been established, the standard of care kicks in, dictating how much the individual is required to step in and prevent an injury from occurring.

Where does this leave adult supervisors when the children they are overseeing hurt themselves? This paper will focus on the liability different types of supervisors – teachers, coaches, referees, even parents – may face when supervising children, and how they can effectively protect themselves and the children they are caring for from liability and harm.

Unintentional injuries are the leading cause of death among Canadian minors. Between 1990 and 2007, over 1.6 million children and youth received emergency room treatment for unintentional injuries at hospitals across Canada. Sports and other recreational activities are common precipitating events of serious injury among minors. The ramifications of these injuries to a child can be profound, particularly in cases involving even “mild” trauma to the brain. In the context of litigation, the costs associated with the loss of future earnings and future care can be significant, with damages in some cases being assessed in the millions.

While the spectre of eight figure exposure may seem daunting enough, several factors conspire to make cases involving injuries to minors particularly difficult to navigate from the defence perspective. With this in mind, the following paper will address common legal and strategic elements to be considered when attempting to settle cases involving injuries to minors.

The inherent risks of active sports and recreational activities give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of sports resorts, camps, and other recreational facilities. Sports facilities have adapted tools, such as signed releases and waivers, and more recently, ski resorts have printed limitations provisions on lift tickets, in order to further reduce their exposure to liability, particularly deriving from the acts of staff. 

Swimming pools and gym facilities are a very attractive feature of recreational resorts and hotels. The ‘resort gym’ may be appealing to those seeking to maintain a fitness regimen while travelling and vacationing, particularly to those patrons who might be drawn to recreational resorts and are keen on maintaining an active lifestyle. In the context of ski resorts, specifically, a quick dip in the pool or a lengthy soak in a warm spa are often welcome après-ski. However, the unique nature of recreational resorts raises a number of inherent liability risks for recreational resort owners.

Fans attend sporting events every day across Canada and throughout the world. Many fans are there to cheer on their favourite teams, witness a historical game between long-standing rivals, and simply enjoy the traditions associated with attending such an event. These games may attract large crowds and stir emotions, particularly as there is a culture of alcohol often associated with professional sports. While one may reasonably expect to witness a player hurt themselves on the field or on the ice, spectators do not often expect that they themselves will be injured.

This paper examines a range of situations in which liability may attach to sports and entertainment facility owners and operators when spectators are injured during sporting events, as well as how such liability may be avoided. Attention is given to the courts’ interpretation of the legislative provisions in Ontario’s Occupiers’ Liability Act. This area of law serves as an abundant source of Canadian sports law jurisprudence. The discussion proceeds with an outline of categories of available defences to spectator claims, followed by an examination of select issues of significance to Canadian sports facility owners and operators. Finally, new frontiers in spectator liability are explored, as well as risk management strategies for avoiding spectator claims.

The British Columbia Court of Appeal recently released a decision on the case "Loychuk v Cougar Mountain Adventures" which has significant implications for the law regarding the enforceability of liability waivers. 

At the trial level, the plaintiffs sought damages for personal injuries sustained in a zip-lining accident. The tour involved strapping a person into a harness, which would then be sent down a line, reaching speeds of up to 100 km an hour over a distance, on some lines, greater than 1,500 feet. 

This article reviews many aspects of the case including the two elements that must be established before a contract can be set aside on the grounds of unconscionability; and a three stage analysis which must be applied in order to determine whether a signed release of liability is valid.

The prevalence of concussions and other head injuries suffered by athletes in contact sports, such as football, hockey and soccer, has garnered significant attention in Canada and the United States of America (USA). An athlete’s decision to return to play following an injury typically involves multiple parties, such as the coach, team, sports organization or school board, thus, exposing these parties to potential legal liability.

Therefore the question that emerges is which of these parties, or a combination thereof, bears the legal responsibility for the injuries suffered by these athletes?

Since 2010, the Beasley case has been considered and distinguished by further caselaw, including the cases of Grigoroff v. Wawanesa Mutual Insurance Co. 1 and McNeill v. Filthaut 2.  Those cases provide alternate means by which a defendant can rely on the evidence of doctors retained by the no-fault insurers. 

The inherent risks of active sports such as skiing give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of ski resorts. Ski resorts have developed a number of important and evolving legal strategies to limit their exposure to such claims. These strategies have evolved with the changes in the law over time and continue to grow with it. 

The case of Beasley and Scott v. Barrand,1 decided by Moore J.of the Ontario Superior Court, appears at first blush to be a bar to the use at trial by a tort defendant of expert reports commissioned by a no-fault insurer. However, rather than barring the use of such reports by tort defendants, a careful review of this case reveals that it provides guidance on the proper practice to be followed by defence counsel when they seek to do so.