The Standard of Care in Parking Lots

The Divisional Court recently considered an appeal involving the standard of care in a parking lot.  The primary conclusion is that the Highway Traffic Act does not generally apply to parking lots.

In Bossio v. Ramsahoye, 2013 ONSC 6878 (Div. Ct.), the parties were in a motor vehicle accident in a GO Train station parking lot.  The plaintiff was driving northbound in the centre lane of the parking lot, and the defendant was westbound in one of several exit lanes.  The trial judge's charge referred to the location of the accident as "a completely neutral intersection". The jury dismissed the action and the plaintiff appealed.

The plaintiff alleged that the trial judge erred by failing to instruct the jury that the common law duties of drivers approaching an uncontrolled intersection set out in the Highway Traffic Act would apply.  The defendant submitted that:

47. The absence of any reference to the Highway Traffic Act at first instance was not inadvertent. The Highway Traffic Act generally has no application to private parking lots. While the Act and the rules of road therein have been found to apply to certain peculiar parking lot situations (i.e. where the parking lot has a dual function as a thoroughfare, or where the Act provision at issue does not use the word “highway” or any word that incorporates the word “highway in its definition), this was not the case at hand and there was never any dispute as between the parties on this point.

48. The authority cited by the Plaintiff does not support her assertion that there are duties at common law equivalent to those found in the Highway Traffic Act, applicable where the Act is silent. At most, the “rules of the road” are distillations of what amounts to reasonable care and offer guidance to situations not covered by the Act.

49. Had the Highway Traffic Act applied, this would have been to the benefit of the Defendant, not the Plaintiff. Under the rules of the road, and specifically subsection 135(3) of the Act, when two vehicles enter an uncontrolled intersection of highways at approximately the same time, the driver on the right (the Defendant in this case) has the right of way.

The Divisional Court agreed with the defendant's submissions and dismissed the appeal.  

 

Expert Evidence at Trial

The Divisional Court has released an important decision with respect to expert evidence.  In Westerhof v. Gee (Estate), 2013 ONSC 2093 (Div. Ct.), a jury awarded the plaintiff $22,000 in general damages and $13,000 for loss of income.  The trial judge, however, dismissed the claim on the basis that it did not meet threshold.  The plaintiff appealed, arguing that the trial judge erred by restricting the plaintiff's expert witnesses.  A number of treating practitioners were not permitted to give evidence about diagnosis or prognosis, two accident benefits assessors were not permitted to give opinion evidence, a neurologist was not permitted to give evidence regarding psychiatric or psychological issues, and opinions contained in MRI reports were redacted.

The appeal was dismissed.  The Court discussed a number of cases dealing with r. 53.03 and r. 4.1.01, which provide a framework for the duties of experts.  The key distinction is whether the evidence is factual or opinion evidence; if it is opinion evidence, compliance with r. 53.03 is required.  As a result, it was correct for the trial judge to exclude the evidence.  A treating physician could offer evidence with respect to observations of the plaintiff or the treatment provided, but once such a witness seeks to offer opinions on the cause of the injury, its pathology or prognosis, the evidence enters into the realm of opinion evidence requiring compliance with r. 53.03.

Westerhof provides much-needed guidance regarding expert witnesses.  It will be interesting to see whether the number of treating practitioners testifying decreases as a result of the ruling.  The plaintiff's treating practitioners will now be held to a higher standard, and there may be an opening to argue that a practitioner is an advocate rather than impartial witness.

Withdrawing Deemed Admissions

When will a party be permitted to withdraw deemed admissions arising from the failure to respond to a Request to Admit?

In Epstein Equestrian Enterprises Inc. v. Cyro Canada Inc., 2012 ONSC 4653 (S.C.J.), the plaintiff served a Request to Admit eleven days before trial was scheduled to begin in 2010.  Trial was adjourned initially for one week and then again until 2012.  One of the defendants, Jonkman, failed to respond to the Request to Admit.  Rule 51.02(1) provides that a party is deemed to admit the contents of a Request to Admit if it does not respond to it within 20 days after it is served.  Jonkman sought to either set aside the Request to Admit or to withdraw the admissions.

Justice Morgan held that even though the Request to Admit was not served 20 days before trial, once the trial was adjourned and did not start for 20 days, the deeming provision applied. The main issue therefore centred on whether Jonkman was entitled to withdraw its admissions. The court may grant leave to withdraw the admissions if the following conditions are met:

1. The proposed change raises a triable issue;
2. There is a reasonable explanation for the change of position; and
3. The withdrawal will not result in any prejudice that cannot be compensated for in costs. (citing Antipas v. Coroneos, 1988 CarswellOnt 358)

Justice Morgan permitted the admissions to be withdrawn. At the time the Request was served, Jonkman was basically without legal representation as its counsel was in the process of being removed from the record. It had instructed counsel not to respond to the Request to Admit.  It subsequently brought a coverage application and was now being defended by an insurer.  The plaintiff supported the coverage application and must have understood that if coverage was achieved, a defence would be pursued. Jonkman's new counsel and insurer were unaware of the Request Admit and it would be unable to defend itself if the admissions stood.  The coverage application had been settled, and Justice Morgan speculated that the insurer's position may have been different had it known that Jonkman had effectively deprived itself of a defence by failing to respond to a wide ranging Request to Admit.

Justice Morgan was of the view that any prejudice to the plaintiff would not be inordinate as a trial would have been needed to canvas issues with the co-defendant in any event. The plaintiff further argued it was prejudiced as it had entered into a Pierringer Agreement with the remaining defendants and was concerned Jonkman would attempt to pin liability on those parties at trial. Justice Morgan held that the plaintiff had previously assumed Jonkman was insolvent when it entered the settlement and so this factor was to the plaintiff's benefit not prejudice.  The admissions were withdrawn.

The Importance of Objecting to an Improper Jury Charge

Vokes Estate v. Palmer, 2012 ONCA 510 (C.A.)

This appeal decision illustrates the importance of objecting to a judge's charge to the jury, as well as the difficulty in overturning jury verdicts on appeal.

The case involved a fatal motor vehicle accident.  The defendant appealed the jury`s verdict, arguing that the trial judge failed to properly charge the jury with respect to s. 139(1) of the Highway Traffic Act (concerning the duty owed by the deceased on entering a highway) and failed to instruct the jury on the proper range of damages for loss of care, guidance and companionship.  The defendant also argued the jury award was gross and excessive.

The trial judge advised that he intended to charge the jury by omitting the words underlined below.

That section therefore imposes a very positive duty on Michelle Vokes in this case, breach of which would clearly constitute negligence. On the other hand, this positive duty on Ms. Vokes does not relieve Mr. Palmer who was operating his motor vehicle on the [through] highway from exercising ordinary care in the circumstances.

Counsel for the defendant did not object to the charge and in fact described the charge as an

“exercise in perfection”.  The Court of Appeal held that while the failure to object is not fatal, in most cases, an alleged misdirection or non-direction will not result in a new trial unless a substantial wrong or miscarriage of justice has occurred.

The remainder of the appeal was also dismissed, as under s. 118 of the Courts of Justice Act the judge may give a range of damages, but is not obligated to do so.  In addition, the threshold for overturning a jury`s award of damages is very high.  The assessment must be so inordinately high as to constitute a wholly erroneous assessment of the loss of care, guidance and companionship, which was not the case.