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Tuesday Morning Case Bites for May 21, 2019

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

Edited by Amanda Kostek & Christie Dewar

Dirk v Toews, 2019 ABQB 176
Motorcycle Accident | Trial

Wythe v Grande Prairie Regional Agricultural and Exhibition Society, 2019 ABQB 358
Summary Judgment | Occupiers’ Liability

Blicharz v Alberta Motor Association Insurance Company, 2019 ABPC 112
Test for Summary Judgment | Applications by Self Represented Litigants

Dirk v Toews, 2019 ABQB 176

This case was a trial decision for personal injuries arising out of a motor vehicle accident, in which liability was in dispute, and all heads of damage are discussed in detail.

The Plaintiff, who was riding a motorcycle with a friend on a secondary highway, suffered personal injuries when the motorcycle in front of her pulled a U turn. The Plaintiff took evasive action, but her bike fell on its side and she slid on the pavement into the Defendant’s motorcycle. The Court considered liability, including the evidence of two accident reconstructionist experts. The Court noted that there are three different analyses regarding onus, including the onus on the Plaintiff to prove negligence and causation, the reverse onus in the TSA, and the common law onus between dominant and servient drivers.

The Defendant breached the Use of the Highway and Rules of the Road Regulation by failing to signal his intention to make a U turn, and by making a U turn over a double line. His conduct also breached the standard of care when he failed to shoulder check.

The Court then considered the reverse onus under Section 185 of the Traffic Safety Act. It found that the Plaintiff did not breach the TSA, so the reverse onus did not apply.  The Plaintiff was the dominant driver and the Defendant was the servient driver, so the dominant/servient driver analyses did not displace the reverse onus. The Court concluded that the lead motorcycle was entirely liable for the collision and the Plaintiff was not contributorily negligent.

The 44 year old Plaintiff’s injuries included several fractures of the tibia and fibula of the left leg, including an open fracture that left her susceptible to infection. These fractures required surgery. Her left leg was in two different casts from foot to thigh for about three months. She was in a fiberglass cast for a further month. She used a wheelchair, walker, crutches, and cane throughout her recovery, and had post traumatic osteoarthritis in the left leg. She had a partial ligament tear in her right thumb, chronic bilateral hip pain, and a mild traumatic brain injury. She also suffered an adjustment disorder. General damages were assessed at $185,000, which was inclusive of $15,000 for housekeeping. However, the Court also allowed a pecuniary calculation for loss of housekeeping in addition to the capacity portion.

The Plaintiff was a long term Canada Post employee, and was off work for 22 months until July 2011. She then returned part time and increased her hours, until she was working full time from January of 2012 to May of 2014. She then again reduced her hours to part time so that she delivered mail two hours a day and sorted mail two hours per day. She eventually increased this to delivering mail four hours per day and sorting for two hours per day.

The Court considered several psychological/psychiatric experts regarding Somatic Symptom Disorder and Adjustment Disorder. All the experts agreed that the Plaintiff was suffering from Adjustment Disorder, although there was some dispute over Somatic Symptom Disorder. The Court accepted that an Adjustment Disorder is a “real” disorder, characterized by an abnormal reaction to a stressor. Somatic Symptom Disorder is an unconscious amplification of symptoms or pain to a greater extent expected from the physical injury. This is different than exaggerating or malingering, which is a conscious deception.

The Court found that the Plaintiff’s strong history of employment and social interaction, her continued efforts to return and remain at work, and her psychological and vocational testing all support the finding that she is not malingering.

The Court commented that the Plaintiff’s ongoing cognitive inefficiency was no longer caused by the mild traumatic brain injury, but were related to other effects of the collision.

The Court considered the Plaintiff’s past income loss claim, and noted that in the first couple years after the accident she actually earned more after collecting Section B benefits and Sun Life disability. The Court found that both of these should be deducted from the past income loss claim, including accounting for the net positive income in the first couple years. The Court considered the capacity claim, and concluded that the Plaintiff would likely be forced to reduce her hours in half, and then retire early.

The Court made an award for future cost of care, but declined to award the cost of a chronic pain program on the basis that a chronic pain program is available at no cost, and that there is limited evidence regarding the programs and their effectiveness in relation to this Plaintiff.

[404] Mr. Kuyltjes also indicated that the Calgary Health Region offers a chronic pain program through the Calgary Chronic Pain Center at no cost, although there is a long waiting list for the program.

[405] As there was limited evidence with respect to both programs and their effectiveness in relation to Ms. Dirk, I am not allowing this cost. The no cost Calgary Chronic Pain Center, however, remains an option for Ms. Dirk provided of course she meets their prerequisites for attendance.

Wythe v Grande Prairie Regional Agricultural and Exhibition Society, 2019 ABQB 358

June 28, 2013 the Plaintiff drove his ATV off a cliff at night on land occupied by the County of Grande Prairie.   He sued the County of Grand Prairie in negligence and under the Occupiers’ Liability Act.    The Court noted that the County could not manage is exposure on claims for such large areas of land, unless they enjoyed a lower standard of care:

[19]           What bears emphasis is that this is not like a yard or an urban park. The County land is not of inconsiderable size. There are at least five quarter sections depicted in the documents. I expect this is only a part, perhaps a small part, of a much larger picture.

[20]           Owners of this type of land could not manage their potential exposure to claims unless they enjoyed the benefit of a lower standard of care. Otherwise they would have to shut their doors to users like the Plaintiff. This lower standard of care is what the Act endorses.

The Court accepted that the County had no system of inspection for the land, but the County did not know there was a cliff on its land:

[23]           I acknowledge the County had been on the land some time before the accident (in 2012) to do pine beetle remediation. It had no regular system of inspections and no apparent need for them. It had no notice of any excavation or activity that would create a danger to the public. It conducted no inspection other than land patrols by peace officers, or the fire department, which had to do with fires or law enforcement. The County lands were not maintained in any ordinary sense.

[24]           I acknowledge that there were County representatives on the Society board. There is no evidence of how long the excavation had existed on County land. I might speculate that it was there for some time but there is no evidence of how long it would take to excavate thirty meters, or so, onto adjoining property. The excavation appears to have been significant. The pictures suggest more of a cliff than a canal dug into the sand dunes.

[25]           Even if the County does not enjoy the protection of the higher standard created by Sections 6.1 and 12 of the Occupiers’ Liability Act, the question in negligence is whether the County reasonably could have been expected to foresee that the Society might have rendered the premises less safe, or whether the County reasonably might have been aware that the Society had created this danger. The evidence all suggests that the County did know that a trail led to an excavation either on Society land or its own land. There is no evidence, and, in fact, evidence to the contrary that the County had knowledge of a trail that led over a cliff on its own property or on adjoining property

The claim against the County was dismissed on the basis that there was no evidence the County was aware of the hazard, or that it was negligent:

[26]           In Christensen v Calgary (at para 17) the Court of Appeal said (referring to Hanke v Resurfice Corp., 2007 SCC 7 (CanLII), 2007 1 SCR 333 at paras 21-25) that the onus is on the Plaintiff to establish on a balance of probabilities that but for the wrongful actions of the County the Plaintiff’s injuries would not have occurred. In that case there was a known hazard and knowledge of the use that led to the accident. Here, admittedly, there was knowledge of the use, or the type of use, to which the Plaintiff put the land but no evidence of any knowledge of the hazard, no evidence that the County was willfully, or even negligently unseeing of the danger and no real evidence that would allow the Court to impute knowledge. The County’s land would have not have been inherently unsafe but for the activities of the Society. I’m obliged to presume that this is the best evidence.

Blicharz v Alberta Motor Association Insurance Company, 2019 ABPC 112

The self represented Plaintiff’s application for Summary Judgment was dismissed on the basis that there were genuine issues for Trial.