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 Devon McIntyre
Bustin v. Quaranto, 2023 ONSC 5732
The plaintiff in this matter brought a personal injury action against the defendant seeking damages which the plaintiff claimed resulted from having witnessed a fatal motor vehicle accident involving two vehicles, one of which was driven by the defendant. The plaintiff was not involved in the accident other than being present as a bystander. The other vehicle had two occupants, both of whom were killed in the collision.
In his Statement of Claim, the plaintiff alleged he was standing in front of a family member’s house when he “heard the sounds of the initial catastrophic impact of the two vehicles, felt the ground shake, and observed the accident play out with the vehicles rolling and being torn apart in front of him.” The plaintiff further claimed that by witnessing this accident he had suffered physical and mental injuries that were “akin to or notionally equivalent to being struck by the Defendant’s vehicle in the collision.”
The defendant brought a motion to strike the plaintiff’s action under Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it did not disclose any reasonable cause of action. The defendant argued that there was no viable claim against him because he did not owe a duty of care to the plaintiff and that the plaintiff’s injuries were not a reasonably foreseeable consequence of the defendants’ actions.
The motion was heard by the Honorable Justice Doi on August 15, 2023. In reaching a decision, Justice Doi relied upon and restated a number of principles for motions to strike, including:
- For motions to strike a pleading for failing to disclose a reasonable cause of action, no evidence is admissible. The motion proceeds on the basis that all facts pleaded in a claim are true, unless they are manifestly incapable of being proven.
- An action will be allowed to proceed unless a Court determines that it is “plain and obvious” that the claim has no reasonable prospect of success.
- If an action raises novel cause of action or raises issues in an unsettled area of law, Courts must err on the side of letting it proceed, as the defence will be inherently unable to show that the claim has no reasonable likelihood of success.
In this case, the Court determined that the relationship between the plaintiff and the defendant, which is to say that of a bystander who witness an accident and claims to have suffered mental injury as a result, was of a type that Canadian courts have accepted as potentially giving rise to a duty of care, including most recently in Labrosse v. Jones, 2021 ONSC 8031.[1] The recognition of this duty of care was originally adopted from an English decision in Alcock v. Chief Constable of Yorkshire Police, [1991] UKHL 5, which was cited by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79.[2]
On this basis the Court accepted that if the allegations in the plaintiff’s claim were accepted as true, his claim established a sufficient basis that could result in a finding of liability against the defendant, and the action was allowed to proceed.
[1] Para 20.
[2] Paras 30-39.
