Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.
This week’s case reports are written by Brett Webster.
Case v. Pattinson 2023 ONCA 529
On August 8, 2023, the Court of Appeal released the decision of Case v. Pattinson. The case comments on the duty of care and causation analysis.
The appeal arose out of a personal injury action in Milton, ON. In January 2015, the plaintiff was injured when he was struck by a vehicle driven by one of the Defendants while crossing the road. It was alleged that the Town of Milton was negligent for having inadequate street lighting because of a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that Milton Hydro negligently removed the luminaire. Milton Hydro defended this claim.
Both the Town and Hydro company brought motions for summary judgment. The motion judge stated that she was unable to determine responsibility for the removal of the luminaire. The judge went on to state “[t]he real issue is whether four years later Milton Hydro can be held liable for any damages that may be awarded to the plaintiff.” She concluded that Milton Hydro did not owe an ongoing duty of care to the plaintiffs or town, and that responsibility was left to the town. She further noted that the town could not demonstrate the accident was reasonably foreseeable when the luminaire was removed, and that there were opportunities for the town to fix the issue. It was found that the town allowing the luminaire to remain in a state of disrepair for an extended period broke any proximity between Milton Hydro and the damages suffered by Plaintiff.
Milton Hydro’s motion was granted and the third party claim was dismissed.
The court of appeal were asked to answer two questions:
- Did the motion judge err in granting summary judgment?
- Did the motion judge err in her analysis of the issues of duty of care and causation?
The court answered both questions in the affirmative. The appeal was allowed and the third-party claim was remitted for trial with the main action.
The Court noted that the motion judge carried out an improper legal analysis. Firstly it was determined that the motion judge conflated the duty of care with the legal causation analysis. Her analysis of the chain of custody, that is, whether the Town of Milton’s negligence in inspection completely broke chain of causation from Milton Hydro’s removal of the luminaire was flawed. She assumed the Town’s actions were the sole cause of the plaintiff’s injuries because it was responsible for inspections over a four-year period. She also erroneously assumed the Town’s alleged statutory duties necessarily meant that Milton Hydro also could not owe a common law duty of care.
The motion judge also did not consider the questions of reasonable foreseeability in her duty of care analysis. Rather, these were done from a causation perspective. “The motion judge’s duty of care analysis should have been focused on whether someone in Milton Hydro’s position ought reasonably to have foreseen at the time of the assumed removal of the luminaire the type of harm it caused, rather than on whether the assumed removal of the luminaire caused in fact and in law the harm in issue.”
Further, it was noted that the passage of time does not necessarily determine foreseeability or proximity under either analysis. The motion judge reasoned that liability was removed from Milton Hydro as the injury occurred four years after the removal of the luminaire. This was an error, and the court of appeal restated that the established law that “The time to determine foreseeability is at the time of the allegedly tortious act.”
The court makes clear the tests for both duty of care and causation. It serves as a reminder of the tests for both, and principles of tort law.
The duty of care analysis first requires consideration as to whether a prima facie duty of care exists, and if so whether there are any policy concerns that should negate this duty, citing the Supreme Court’s decision in Rankin. If satisfied there is a duty of care, and the standard of care is breached, causation then should be considered. In this regard, the analysis is on whether the tortious action was a factual and legal cause of the harm suffered by the plaintiff. The analysis for factual cause is the “but-for” test. If the harm the plaintiff suffered was not the reasonably foreseeable result of the defendant’s negligent conduct, then the harm would be too remote for the defendant’s negligence to have legally caused it. This remoteness inquiry can be distinguished from the foreseeability analysis within the duty of care “because it focuses on the actual injury suffered by the plaintiff, whereas the duty of care analysis focuses on the type of injury”.
