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Monday Morning Case Bites for March 9, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Sack v Lange, 2020 ABCA 95
Negligence | Appeal of a Trial | Inherent Risk

Reyes v Dyck, 2020 ABQB 154
Extending Time for Service of Claim | Lulling by Correspondence

Sack v Lange, 2020 ABCA 95

This was an appeal arising out of the dismissal of a personal injury claim.  The Plaintiff was a back catcher in a baseball game.  The bat slipped out of the Defendant’s hand as he was swinging.  Both participants were experienced players.  The Plaintiff was not wearing any protective gear.  The Court summarized the Trial decision as follows:

[4]               The trial judge found that for experienced participants in this sport it could not be the case that the possibility of a bat being thrown or released was beyond imagination. She concluded she could not find the respondent was obviously negligent merely because the appellant had been injured. She found that a reasonable competitor would learn how to swing a bat safely and practice that form, learn how to safely dispose of his bat after hitting a ball, take some notice of where people were positioned around him, use proper and well-maintained equipment, ensure that his bat had a good grip to avoid slippage, and wear a batting glove. She concluded the respondent had not failed to do any of those things and the fact of the accident itself did not mean the respondent was negligent. She could find nothing in the respondent’s conduct upon which a finding of negligence could be made. The respondent did nothing different than he had on other occasions. In the result she found the respondent did not do or fail to do anything reasonably expected of a prudent person taking reasonable care not to injure his fellow competitors. She made a provisional finding of 20% contributory negligence against the appellant.

The Court directed that Trial findings should not be interfered with lightly:

[5]               The appellant raises many grounds of appeal. She says the trial judge failed to consider whether the circumstances were such as to give rise to an inference of prima facie negligence which had to be rebutted by the respondent. She says the trial judge erred in stating that the test for inherent risk was what was within the imagination rather than what might be reasonably expected and in finding that the respondent did nothing different on this occasion. She also argues that the result is contrary to public policy. For the most part, the grounds of appeal invite us to re-weigh the evidence, make different findings of fact and draw different inferences. An appeal is not an opportunity to re-argue the case. An appellate court is not a second-level trial court. Rather, the role of an appellate court is to review for errors of law, factual misapprehensions, errors in reasoning and clearly wrong outcomes. Findings relating to negligence are largely findings of mixed fact and law. Absent an extricable error in law, a trial judge’s finding of no negligence should not be overturned absent palpable and overriding error.

The Appeal was dismissed:

[6]               The trial judge made no extricable errors of law. She found that an inference of negligence did not arise from the circumstances of the injury. She correctly articulated and applied the standard of care. Her finding that the standard was met was available on the evidence. She correctly stated the test for inherent risk as that which could be reasonably expected, and applied the test reasonably to the facts as she found them. The inferences that she drew or declined to draw were also reasonable. There is no element of public policy that needs to be addressed on the straightforward facts of this case. The appeal is dismissed.

Reyes v Dyck, 2020 ABQB 154

This was an appeal of a Master’s decision extending the time for Plaintiff counsel to serve a Statement of Claim on the basis that he understood liability would not be disputed.   The Court accepted the following background facts:

[3]               Ms. Reyes was injured in a single vehicle roll over accident on February 14, 2016.  Mr. Dyck was the driver and owner of the vehicle.  Ms. Reyes was a passenger.  She retained Mr. Hoosein, a lawyer with James H. Brown and Associates.  He advised Mr. Dyck’s insurer, Wawanesa, of his involvement on August 18, 2017, and in the letter by which he did so, he said that in his opinion “liability rests with your insured”.

[4]               Thereafter communications between Mr. Hoosein and Wawanesa followed the normal course employed by lawyers and insurance adjustors for the quantification and settlement of Ms. Reyes’ injury claim. There was never an express acknowledgment of liability by Wawanesa.

[5]               On January 3, 2018, Mr. Hoosein issued the Statement of Claim commencing these proceedings and sent a copy to Wawanesa.

[6]               The communications between Mr. Hoosein and Wawanesa continued thereafter.  They involved the provision by Mr. Hoosein of many medical records and reports to Wawanesa and, on December 8, 2018, a settlement proposal.

[7]               On January 23, 2019, Wawanesa responded to the settlement proposal.  Wawanesa responded that, given the amount of the proposed settlement (it was over the insurance policy limits), it would be necessary for Wawanesa to involve legal counsel.  At the same time, Wawanesa asked if the Statement of Claim had been served on Mr. Dyck.  The one-year deadline for serving the Statement of Claim had expired 8 days earlier.

The Court accepted that discussions leading up to the deadline for service focused on quantum, and at no time was there a discussion of liability aside from the following, but the Court concluded that these weigh lightly, and confirmed the extension:

[17]           There are two potentially contrary indications in the correspondence:

  1. On January 4, 2018, after Mr. Hoosein had sent a “courtesy copy” of the Statement of Claim, issued the day before, to Wawanesa, the Wawanesa adjuster responded, confirming receipt and in the letter said, “This correspondence is not to be considered an admission of liability on the part of our Insured.”  In the same letter the adjuster confirmed that Mr. Dyck was insured with Wawanesa and stated the policy limit.  She indicated she did so, “[i]n compliance with the Fair Practices Regulation of Alberta”, and
  2. On October 4, 2018, the Wawanesa adjuster asked Mr. Hoosein by email, “Do you have a police report for this file that you would be able to provide.”  Mr. Hoosein provided it.

[18]           In my view, both of these potentially contrary indications weigh very lightly against the other features of the correspondence previously described.  The first was clearly a standard pro-forma letter.  The second was a routine request by an adjuster, somewhat late in the day, for a record that would be required for Wawanesa’s file.  It is understandable that Mr. Hoosein apparently did not read either of these elements of the correspondence as suggesting that Wawanesa was contesting liability.

[19]           One other feature of the circumstances that speaks mainly to reliance is that Mr. Hoosein did not give appropriate attention to ensuring that the Statement of Claim had been served on Mr. Dyck.  He testified that he instructed his assistant to have it served (the evidence does not establish when) and assumed that had occurred.  In my view, this indicates that he attached little importance to whether this step had been accomplished.  I assume that was because he did not believe that liability was in issue, which belief, as noted, arose from the reaction and non-reaction of Wawanesa to his observation at the start that Mr. Dyck was liable.  Alternatively, it might be because Wawanesa’s response to receipt of the Statement of Claim was to ask whether a defence was required – a response which implies that Wawanesa considered the Statement of Claim served.

[20]           In my view, the evidence establishes the required elements of the Rule.  The extension granted by Master Schulz was appropriate.

[21]           I note that the Rule does not require that Wawanesa’s actions be shown to have been deliberately directed to causing Mr. Hoosein’s belief and reliance.  Intention does not come into it.  As Master Schulz observed, Wawanesa’s responses “lulled” Mr. Hoosein into believing that liability was not in issue.  I agree.  And, in my view, “lulling”, even where unintentional, is “causing”.