U.S. Engineer’s Testimony in Ontario Trial Not “Practice of Professional Engineering” Under s. 12 of PEA

Posted on January 5, 2007 by Stephen Cavanagh

quattrocchi-v-chiquita

An interesting issue arose last month at a trial in which our office was involved. The action, Quattrocchi v. Chiquita et al. (link to decision appears above), was a subrogated claim arising out of a fire at a Smiths Falls warehouse. Damages had been agreed upon and the action proceeded to trial on the issue of liability for the fire.

Both sides had retained experts. Three of the plaintiff’s four experts were professional engineers, licensed to practise in Ontario. The main defence expert was an American engineer who has written a book on investigation of electrical fires. He was not licensed as an engineer in Ontario. The defence expert and several of the plaintiff’s experts had been retained to address origin and cause issues.

At trial, counsel for the plaintiff moved for an order preventing the American engineer from being qualified as an expert. The plaintiff contended that by testifying in an Ontario court, the defence expert would be engaging in the practice of professional engineering without being properly licensed under the Professional Engineers Act. Counsel for the plaintiff relied on section 12 of that statute, which reads:

No person shall engage in the practice of professional engineering or hold himself, herself or itself out as engaging in the practice of professional engineering unless the person is the holder of a licence, a temporary licence, a provisional licence or a limited licence.

The plaintiff also cited an unreported 2003 decision of Mr. Justice William J. Festeryga in Weslee Mann-Tattersall v. The Corporation of the City of Hamilton, in which this argument (that a professional engineer not licensed in Ontario was prohibited by s. 12 of the PEA from testifying as an expert at an Ontario trial) had succeeded.

In the Quattrocchi case, Mr. Justice A. deLotbinière Panet of the Ontario Superior Court dismissed the plaintiff’s motion and ruled that s. 12 of the PEA did not prevent the defence expert from testifying. A copy of His Honour’s reasons is attached at the top of this post as a PDF.

His Honour accepted some Illinois caselaw cited by the defence, in which it had been held that “licensing may be a factor to consider in determining whether an engineer is qualified to testify as a witness” but that an engineering licence was not required as a prerequisite to testifying.

Justice Panet also focused on the definition of “practice of professional engineering” which appears in s. 1 of the PEA:

“practice of professional engineering” means any act of designing, composing, evaluating, advising, reporting, directing or supervising wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles, but does not include practising as a natural scientist

His Honour held that “the obvious purpose is to protect the interests of the public in these areas” and that it was “doubtful” whether engineering evidence about the origin and cause of a fire that had taken place in 2002 “would involve the safeguarding of life, health, property or the public welfare”.

Still, Justice Panet did not say that ruling of Justice Festeryga in Weslee Mann-Tattersall was wrong. He merely distinguished it on its facts. Thus, an objection to testimony from a non-Ontario engineer, based on s. 12 of the PEA, might still be viable in an appropriate case.

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C.A. Allows Substitution of One Municipality for Another After Limitation Period

Posted on January 4, 2007 by Stephen Cavanagh

Addendum: The decision discussed in this post was reversed by the Court of Appeal on May 2, 2008. The Court of Appeal noted that the plaintiff’s solicitor had always intended to sue the municipality having jurisdiction over the road in question and that municipality knew at an early stage that it was the intended defendant.

Lloyd v. Clark is a recent decision that adds to the evolving jurisprudence interpreting the still relatively new Limitations Act, 2002. In particular, the decision of Mr. Justice Guy DiTomaso addresses the issues of discoverability and “misnomer”. It also suggests (although perhaps inadvertently), that the concept of “special circumstances” has survived in the present version of the Act.

The action arose out of an accident that took place in January, 2004, just a short time after the Limitations Act, 2002 came into force. The plaintiff commenced suit two years later, but named the wrong municipality as a defendant. In February, 2006, counsel for the plaintiff was advised by an adjuster that the road in question was under the jurisdiction of the Regional Municipality of Durham. The statement of claim had named as defendants the towns of Ajax and Whitby. Counsel for the plaintiff moved, several months later, for an order substituting Durham as a defendant. By that time, the two-year limitation period in the Limitations Act, 2002 had expired.

Misnomer

The plaintiff argued that the naming of Ajax and Whitby had been only a “misnomer”. This term has taken on increased importance under the Limitations Act, 2002, because of s. 21 of that Act, which provides as follows:

21(1)  If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2)  Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.The plaintiff argued that Whitby and Ajax had been “misnamed” or “misdescribed” and that Durham’s officials must have known, when they received the statement of claim and saw where the accident had occurred, that Durham had jurisdiction over that road.

Justice DiTomaso applied a well-estabished test in misnomer cases (often referred to in the cases as “the litigating finger” test, although that phrase was not used here):

The test applicable to cases of misnomer is “would [sic; the actual quotation should read, “what”] a reasonable man reading the document would understand it to mean” and that is the test which ought to be applied as a general rule in cases of misnomer…the test must be “how would a reasonable person receiving the document take it?  If, in all the circumstances of the case and looking at the document as a whole, he would say to himself “of course it must mean me, but they have got my name wrong”, then there is a case of mere misnomer”.

[The passages quoted above by Justice DiTomaso have been taken from Davis v. Elsby Bros. Ltd., a 1960 decision of the House of Lords. The reasons of Lord Justice Devlin in Davis went on to say, in a passage not quoted in Lloyd:

If, on the other hand, he would say:

‘I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries’, then it seems to me that one is getting beyond the realm of misnomer.

  Continue reading →

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Uninsured Coverage Available to Unnamed Insured but Not to Named Insured

Posted on January 2, 2007 by Stephen Cavanagh

In an interesting decision, Mr. Justice David Brown has ruled that a fleet policy issued by Royal & SunAlliance provided uninsured motorist coverage to an employee of Royal’s named insured. The employee had been injured while pouring gasoline into the carburetor of a Jeep owned by the named insured. At the time, the Jeep was unplated and not insured under Royal’s policy.

In Wing v. 1198281 Ontario Ltd., Royal argued that the injured plaintiff could not look to it for uninsured motorist coverage because of an exclusion contained in the definition of “uninsured automobile” in s. 265(2) of the Insurance Act:

…an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse. [Emphasis added by Brown J.]

Royal argued that since the Jeep in question was one which was owned by its named insured, Rick Amyotte, the case fell within the italicized portion of s. 265(2) and therefore, the Jeep was not an “uninsured automobile”.

However, Justice Brown drew a distinction between an insured and the insured. He held that if it had been the named insured who had been injured, the italicized exclusion in s. 265(2) would apply and there would have been no coverage. But because the plaintiff Wing was not the insured but only an insured, His Honour concluded that the section did not apply to him and the uninsured coverage was in force:

To interpret ‘the insured’ as referring only to the plaintiff and not to Mr. Amyotte in the circumstances of this case in my view produces a fair result. If Mr. Amyotte had suffered the injury instead of the plaintiff, one could understand Royal pointing to the exclusion clause and saying, “You had the chance to insure all of your vehicles with us; you cannot expect to look to us when you deliberately chose not to insure the vehicle that caused the injury.” It is quite another matter for Royal to deny coverage to the plaintiff when he had no ability to insure the Jeep owned by Mr. Amyotte.

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Walker v. Ritchie Judge Holds that Costs Premiums Not Recoverable Even Under Current Wording of Rule 57

Posted on January 2, 2007 by Stephen Cavanagh

Mr. Justice John H. Brockenshire, who was the judge at first instance in Walker v. Ritchie, has released another decision dealing with costs premiums.

The Walker case went to the Supreme Court of Canada (sub nom. Ritchie v. Walker). That Court ruled in October, that costs premiums were not recoverable from opposing parties under the version of the Rules of Civil Procedure that then existed. However, the Court left open the possibility that subsequent amendments to the Rules might lead to a different result.

In Authorson Estate v. The Attorney-General of Canada, Justice Brockenshire had awarded a substantial costs premium (as he had originally done in the Walker case). The premium in Authorson was $1 million. After the Supreme Court released its ruling, Brockenshire J. revisited his decision and concluded that it was no longer open to him, in the wake of the Supreme Court’s decision, to award a premium payable to a plaintiff by a defendant. So, he revised his decision and deleted the $1 million costs premium.

Justice Brockenshire rejected the argument, that amendments to Rule 57 which have taken effect since the original decision in Walker v. Ritchie, make the Supreme Court’s ruling distinguishable:

Rothstein J. finished off his decision with the caveat that amendments to the Ontario costs scheme since the cost award in Walker may have changed the applicability of the reasoning in his judgment. I fail to see how the abandonment of the cost grid, or the specific importation in to Rule 57 of the principle of indemnity or the requirement that the reasonable expectations of the unsuccessful party be taken into account, both long established in case law, would have any effect on the principles of which he spoke in his decision. The specific proviso that full indemnity costs could be awarded, as has been done in this case, simply provides a further possible reason for not also having a risk premium awarded.

Justice Brockenshire concluded:

In my view, the decision of Rothstein J. quite simply removed the basis in the case law upon which I had founded my decision to award a risk premium payable to class counsel by the Crown. I take the decision of Rothstein J. as enunciating that on broad policy grounds, successful plaintiff’s counsel should be able to seek compensation for undertaking the financing of litigation, and the acceptance of the risks involved in the litigation, but that such compensation is to come from their own clients, rather than the losing parties, even though such compensation (unless coming from some special assistance fund) may well be funded from the damage award to the plaintiffs.

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C.A. Refuses Discovery Before Action

Posted on January 2, 2007 by Stephen Cavanagh

In Meuwissen v. Strathroy Middlesex General Hospital, the Court of Appeal ruled that a lower court judge had erred in ordering a hospital and a physician to produce certain documents in connection with a lawsuit that had not yet been commenced.

The Court said that “there is no authority for the proposition cited by the motion judge…that ‘the intended plaintiffs in this case should be entitled at this time to disclosure of anything to which they would eventually be entitled’. In our view, this proposition cannot be supported in law.”

The Court did say that “pre-pleading post-commencement of action” production of documents can be ordered, in exceptional circumstances, to enable a party to plead, but that would still require that an action have already been commenced.

The Court of Appeal went further and observed that even pre-action discovery can be ordered in certain circumstances and referred to a 2001 decision of the Court of Appeal in Straka v. Humber River Regional Hospital.

In Meuwissen, the Court said that the plaintiffs should have applied for “a Straka order”. In the Straka case, the plaintiff had proceeded by way of application for an order, requiring a hospital to produce certain documents to him. Thus, the discovery being sought in that case was after litigation had been commenced. The Court of Appeal held in Straka that “an action for discovery lies in this jurisdiction. The proceeding may be brought by way of application, if there are no material facts in dispute.” [para. 32] Presumably therefore, that is what is meant by “a Straka order”.

The Court in Straka did suggest that pre-action discovery might be ordered, in “rare” cases, in order to enable the plaintiff to ascertain the name of the person against whom suit should be brought.

In any event, on the facts of Meuwissen, the Court of Appeal was satisfied that the plaintiffs already had “ample information to formulate and plead their case” and that there was no basis for a Straka order.

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C.A. Holds that SABS Hourly Rates for Attendant Care Are Mandatory

Posted on December 21, 2006 by Stephen Cavanagh

In Daly v. ING Halifax Insurance Company,  the Court of Appeal held that hourly rates for attendant care are set by the Statutory Accident Benefits Schedule and cannot be challenged.

The Court accepted the insurer’s argument, that section 50(10) of the SABS allows an insured person to argue for a greater number of hours of attendant care, or that the person is entitled to care at a higher level. However, the Court held but that the prescribed hourly rates for each of the three levels of attendant care ($8.75 per hour for Level 1, current minimum hourly wage for Level 2 and $14.00 per hour for Level 3) cannot be disputed by the insured person.

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Court of Appeal Re-states Test for “Nervous Shock”

Posted on December 19, 2006 by Stephen Cavanagh

Last week, the Court of Appeal released an important decision, dealing with tort liability for “nervous shock”. In Mustapha v. Culligan of Canada Ltd., the Court allowed an appeal from the trial decision of Justice John H. Brockenshire, dated April 7, 2005, in which the defendant Culligan had been found liable for damages of $341,775 because one of the plaintiffs had seen a dead fly in an unopened bottle of Culligan water. A unanimous panel of the Court of Appeal (Justices Eleanor A. Cronk, Robert A. Blair and Justice Edward F. Then) reversed the trial judge’s decision and dismissed the plaintiff’s claim, on the basis that it was not reasonably foreseeable to the defendant Culligan, that the plaintiff would have such an extreme reaction (vomiting, nightmares, etc.) to the sight of a fly in the bottle of water.

Facts 

Waddah Mustapha had come to Canada from Lebanon in 1976, at the age of 16. When the incident giving rise to the litigation occurred, he owned and operated two successful hairdressing salons in Windsor. His wife Lynn was described in the trial judge’s reasons as “a stay at home mother, with two little girls, Amanda age seven and Martina age three”. The Mustaphas were fastidious about cleanliness and hygiene. Back in the 1980’s, Mr. Mustapha had been visited by a representative of Culligan Canada Ltd., who had told him of the purity of Culligan water and its superiority to city water. As a result, Mr. Mustapha had been using Culligan water in both his business and in his home for a number of years. On November 21, 2001, while Mr. Mustapha was replacing a bottle of Culligan water in the couple’s home, he and his wife noticed something dark inside the bottle and, on closer inspection, recognized it as a dead fly. Lynn Mustapha vomited immediately; her husband did so later that night.

Trial Decision

At trial, Brockenshire J. dismissed the wife’s claim, finding that her reaction did not rise to the level of nervous shock or psychiatric illness that was compensable in tort. However, the evidence at trial established, to the satisfaction of Justice Brockenshire, that Waddah Mustapha was entitled to damages of $341,775, made up of general damages of $80,000, $237,600 for loss of income, plus some miscellaneous expenses. He found that Mr. Mustapha had become obsessed with the image of the dead fly in the bottle. The plaintiff pictured flies walking on animal feces and then contaminating his family’s drinking water. He experienced nightmares and personality changes that affected his ability to work. As well, Mr. Mustapha experienced some physical symptoms, such as nausea and abdominal pain. The trial judge found that as a result of the fly in the bottle, Mr. Mustapha had suffered “a major depressive disorder, with associated phobia and anxiety”. This finding was not challenged on appeal. Rather, the issue was whether the plaintiffs were required to show that it had been reasonably foreseeable to Culligan, that Waddah Mustapha would sustain a psychiatric illness as a result of seeing the fly in the bottle and if so, whether that requirement had been met.

Appeal Decision

The decision of the Court was written by Justice Blair. He reviewed the jurisprudence in Canada and England, dealing with liability for “nervous shock” or “psychiatric injury”. He discussed at some length the distinction that has been drawn in the English caselaw, between “primary victims” (persons who are involved in some way as participants) and “secondary victims” (those whose involvement is limited to being a witness of injury to others). Ultimately, the Court concluded that the “primary victims” vs. “secondary victims” distinction should not be employed in Ontario. However, the panel did accept that claims based on psychiatric harm involve “a consideration of policy issues in addition to reasonable foreseeability alone”. Justice Blair did not consider it necessary to articulate fully a general approach for these policy factors. He concluded that the policy objectives could be achieved by factoring into the “reasonable foreseeability” equation an objective criterion: what harm would a person of “normal fortitude and robustness” suffer? This led the Court to formulate the applicable test in the following terms:

Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care—and, therefore, for liability–in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless conduct. That is what foreseeability means. This test, which is the foreseeability test enunciated in Vanek, applies regardless of the distinction between “primary victim” and “secondary victim” cases.

Applying the test to this case, the Court of Appeal ruled that the trial judge had erred by focusing excessively on the effect that the sight of a dead fly had had on this particular plaintiff. What should, instead, have been considered is the effect that the experience would have had on a person of normal fortitude and robustness. Mr. Mustapha’s extraordinary reaction was, the Court said, “abnormal” and thus, damages were not recoverable.

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Two Significant Costs Decisions: Indemnity or Reasonableness?

Posted on December 10, 2006 by Stephen Cavanagh

Schouten v. Rideau.pdf

Two members of the Superior Court bench in Ottawa have released reasons, both dated December 1, 2006, in which they have commented in detail on how costs should be fixed under Rule 57.03. There are some interesting differences in their approaches, that we discuss in this (somewhat lengthy) post. The reasons for judgment in the Schouten case are attached above as a PDF, since they are not yet available online.

Mr. Justice Charles T. Hackland decided Schouten v. Rideau (Township) (link to PDF of decision appears above), while Mr. Justice Denis J. Power decided Rodriguez Holding Corp. v. Vaughan (City). Justice Hackland, while he found that the rate allowed for partial indemnity costs “should reflect an appropriate proportionality with the substantial indemnity rate”, also held that the ratio between the two scales of costs need not be 1.5, as provided for by Rule 1.03(1). He viewed Rule 1.03(1) as a guideline only. Justice Hackland expressly agreed with Justice Corbett in Mantella v. Mantella, that so long as partial indemnity costs do not exceed the actual rates charged to the client, they can be anything up to 100% of the actual rates, so long as partial indemnity costs are fixed in accordance with the factors set out in Rule 57. He allowed partial indemnity costs that were 75% of the actual rate charged by defence counsel, even though that rate, when multiplied by 1.5, would yield a substantial indemnity rate that exceeded the actual rate.

Justice Power, in Rodriguez, said that there are now three costs scales–partial, substantial and full indemnity– and that a substantial indemnity rate must be 1.5 times the partial indemnity rate.

These two decisions highlight the tension that exists, in the law of costs, between the principles of indemnity and reasonableness.

Schouten v. Rideau

In this case, the defendant had successfully resisted at trial a claim that a volunteer fire department had been negligent in fighting a fire that had destroyed property belonging to the plaintiff. There were no Rule 49 offers, so Hackland J. ruled that the defendant was entitled to costs on a partial indemnity basis.

Continue reading →

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Negligent Placement of Ladder on Roof of Truck Excluded Under CGL

Posted on November 30, 2006 by Stephen Cavanagh

In Cumis General Insurance Company v. 1319273 Ontario Ltd., Mr. Justice David Brown dealt with an interesting coverage dispute.

Cumis had applied for a ruling on whether it owed a duty to defend its insured, the numbered company, in an underlying claim for personal injuries. The insured was a roofing repair company. In the underlying action, it was alleged that upon leaving a job site, the insured’s employees negligently loaded a ladder on the insured’s truck. While driving along a county road, the ladder flew off and struck a motorcyclist, causing serious injury.

The numbered company held a CGL policy with Cumis and sought a defence against the claim by the motorcyclist. Cumis took the position that the claim was not covered and that therefore, it owed no duty to defend.

Cumis relied on two exclusions. The first said that “this insurance does not apply to bodily injury or property damage arising out of the ownership, use or operation by or on behalf of any Insured of (i) any automobile…” The second provided that “this insurance does not apply to bodily injury or property damage with respect to which any motor vehicle liability policy (i) is in effect, or…(iii) is required by law to be in effect.”

Concurrent Causation

Not surprisingly, counsel for the insured argued that this was a case of “concurrent causation” and that even if some of the allegations against the insured in the underlying lawsuit fell within the exclusions, the claim involved allegations of other causes that were covered. In the wake of the Supreme Court of Canada’s decision in Derksen v. 539938 Ontario Ltd., [2001] 3 S.C.R. 398, the issue of “concurrent causation” often arises in coverage disputes.

Citing the Court of Appeal’s decision in Unger (Litigation Guardian of) v. Unger (2003), 68 O.R. (3d) 257 (C.A.), Justice Brown apprehended his task to be, to find the “substance and true nature” of the claim being made against the insured. He held that allegations of vicarious liability or negligent training and supervision did not give rise to separate causes of action for purposes of coverage.

His Honour also accepted the submission on behalf of Cumis, that a “reasonable reading of the claim” led to the conclusion that the “Work Site Claims” [these were allegations in the statement of claim, that the insured’s employees had negligently cleaned up their site] all related back to the loading of the ladder and that this was within the exclusion. Counsel for the insured had likened the facts in this case to those in Derksen, but Justice Brown did not agree that this was a “failure to load” case. Thus, he held that “the ‘substance and true nature’ of the claim involves the allegations of negligently loading and storing the ladder on the truck.”

Continue reading →

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Montebello Post-Mortem

Posted on November 26, 2006 by Stephen Cavanagh

Montebello.jpg     Another successful Civil Litigation Update concluded at Chateau Montebello yesterday. The conference, now in its 26th year, was acclaimed by numerous visiting Superior Court and Court of Appeal judges as Ontario’s premiere continuing legal education program. We are proud that Heather Williams is a co-chair of the conference.

One of the most popular parts of the program each year involves a panel of Superior Court judges giving their assessments of damages in hypothetical fact situations. Some interesting issues were addressed by this year’s panel, made up of the following Justices: Giovanna Toscano Roccamo, Randall Echlin, Charles Hackland, Denis Power and Daniel Ferguson. They were joined by Justice Lynne Leitch, Regional Senior Justice for the Southwest Region. Bill Simpson, Q.C., LSM,  acted as moderator.

(In conversation with Justice Leitch, Her Honour mentioned that it seemed to her that there were quite a few decisions from the East Region on our blawg. This might be true, but it is not intentional. Our objective is to comment on cases from anywhere in the province that we think might be of interest to our readers. Perhaps we give slightly more prominence to important decisions rendered by our local judges, but we’re only human!)

Justice Leitch also mentioned that the bench and bar in the southwest region have begun holding their own version of the CCLA’s Civil Litigation Update. Our best wishes to them.

Costs

One issue that the Montebello panel discussed at some length was the proper approach to fixing costs. Justice Denis Power (who another panel member said is acknowledged by other Superior Court judges to be an “expert” on costs) described the procedure that he follows. (Normally, we do not attribute comments made at the conference to particular judges. However, we felt that Justice Power’s remarks on costs were noteworthy, in part because of his acknowledged expertise in this area.)

Continue reading →

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