Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek and Christie Dewar
Russell v Russell, 2024 ABKB 182
Motor Vehicle Accident | Trial
ATCO Energy Solutions Ltd v Energy Dynamics Ltd, 2024 ABKB 162
Product Liability | Defective Pistons | Inferences
Dunn v Condominium Corporation No. 042 0105, 2024 ABCA 103
Costs | Appeal
Russell v Russell, 2024 ABKB 182
This female Plaintiff was a passenger in a single vehicle rollover. She was not wearing a seatbelt and was apportioned 5% contributory negligence as a result.
The Court summarized her injuries:
[109] In sum, I find that Ms. Russell suffered from the following injuries caused by the Collision:
- Right wrist injury- severe and permanent;
- Right ankle injury – serious and debilitating with no significant improvement until surgery in 2022;
- Ongoing injury and pain in lumbar spine;
- Cervical spine predominantly resolved as a discrete injury in July 2017;
- Ongoing chronic pain;
- Ongoing depression and anxiety.
- Mild Traumatic Brain Injury which has resolved; and
- Headaches.
She had a right shoulder injury radiating into her right wrist, and a right ankle injury which she reported was the most serious physical injury. She had 3 surgeries on her wrist but continued to have constant pain, and was left with a nerve injury to her 5th finger. She also underwent ankle surgery in May of 2022. She had soft tissue injuries to her neck and back. The Court noted she was overweight before the accident, which put her at increased risk of osteoarthritis later in life. However, she gained a further 50-60 pounds post collision as a result of her accident related injuries. Her neck injury resolved in 2017 but she also had chronic residual neck, back and knee pain on her left side as a result of the collision. She was also diagnosed with depression and anxiety, headaches, and a mild traumatic brain injury (MTBI). The MTBI resolved by 2018.
General damages were assessed at $160,000, plus $7,500 for pain and suffering while carrying out light housekeeping.
The Plaintiff had a work history as a line cook and pastry chef, and just prior to the collision, had completed the pre-apprenticeship course towards becoming a journeyman carpenter. The Defendants argued that there were too many barriers for her to be successful in that trade, including “her obesity, age and lack of construction and labour experience.”
In addressing the income loss, the Court confirmed the following:
[178] Pre-trial loss is usually calculated on the balance of probabilities: McLaren Estate. Loss of future income, as discussed below, is determined by whether there is a real and substantial possibility of a future event: Athey at para 27. The distinction appears to arise because in most cases the plaintiff has had some sort of reasonably steady pre-accident employment which allows pre-trial loss of income to be easily determined. For example, if Ms. Russell had been working continuously as a cook prior to the Collision, it would be reasonable to apply the balance of probabilities test to assess pre-trial lost income based on the amount she had been earning before the Collision but was now unable to earn due to her injuries. However, because Ms. Russell was in the process of a career change, this becomes a more challenging exercise.
…
[186] As I read the foregoing case law, it seems to me that the determination of any award for loss of future income, in the circumstances before me, requires a two-step analysis. See also Vincent v Abu-Bakare, 2003 NBCA 42. First, the court must determine whether there is a real and substantial possibility of a future loss of income, though I note that some courts have considered this on the basis of whether there is a real and substantial possibility of a particular future event. If the plaintiff is able to establish that real and substantial possibility, there is an entitlement to an award for loss of future income, but that does not end the inquiry. The court then must assess the relative likelihood of that possibility in order to better quantify the loss. Specific factors may already have been included in a consideration of whether there is a “real and substantial possibility of a future loss of income”. However, in certain circumstances, these factors may also be considered as contingencies and applied at the second stage of the inquiry to reflect additional risk.
The Court concluded that there was a real and substantial possibility of her being employed as a carpenter, but applied a 20% reduction for the contingency that she would not have made it as a carpenter. When comparing this to her with-accident employment trajectory, the Court concluded that although she left an administrative position to train as an LPN, this was not a realistic plan given her limitations. As a result, income was attributed to her based on 27 hours per week at the salary she was receiving at her administrative position until trial (excluding time off for ankle surgery). Ultimately, the Court directed the experts to recalculate income loss based on direction provided by the Court in paragraph 226 of the decision.
Past housekeeping was awarded at 2 hours per month and $35 per hour, which was provided by family and friends. Future housekeeping was calculated at 2 hours per month for $60, up to life expectancy.
The award for future care included:
- 3 physiotherapy visits per year for life;
- 1 chiropractic or massage treatment per month for life;
- Cost of a chronic pain program less 50% of the cost for failure to mitigate;
- Psychological treatment every 2 weeks for the next year, and then monthly sessions for the next 2 years;
- Cost of a job coach;
- Pain medication for life;
- Heating pad, massage stick, wrist brace, shower grap bar, foam roller, resistance bands, exercise ball, supportive seating, mat and footrest.
ATCO Energy Solutions Ltd v Energy Dynamics Ltd, 2024 ABKB 162
This was a product liability case involving the manufacture of defective pistons. The Court ultimately found that the Plaintiff proved that the pistons were defective and negligently manufactured, but had not proven that the pistons caused an engine shut down or repair costs or damages. As a result, damages awarded reflected only the cost of replacement of the defective pistons.
The Court discussed the use of inferences in negligent manufacture claims, noting that direct evidence is often not available in these cases as the product is often damaged or destroyed. As a result, negligence must be established from inferences from circumstantial evidence. At paragraph 128 the Court noted that an inference cannot be made where there are competing conclusions that are equally probable and fair. The Court then gave examples of inferences:
[134] For example, a court may be asked to infer that the specific product at issue was defective (or not defective) because other similarly-manufactured products are proven to be defective (or not defective) …
[135] A court may also infer that the specific product at issue was defective because it finds that the product failed in its ordinary and intended use …
[136] A related scenario involves an inference that a product is defective because the product is found to have caused the accident, injury or damages suffered by the plaintiff …
[137] Further, if a product is defective, courts may infer negligent conduct by the manufacturer. For example, if the plaintiff establishes a defect in the product that existed at the time the product left the manufacturing plant, where there was no reasonable probability of an effective intermediate examination at the time the product was released, the court may draw an inference that the manufacturer has negligently breached the standard of care without proof of industry practices, benchmarks, or exactly how the defect arose or accident occurred: Klar …
The Court went on to confirm that inferences can be weakened by intervention of other parties and prolonged use of the product (para 139).
However, the Court specifically rejected the assertion by the manufacturer that a Plaintiff, in relying on presumptive or circumstantial evidence, must “exclude the possibility of the accident having been occasioned by any other cause than those relied upon by the plaintiff.” The Court said the following:
[142] In my view, these cases do not stand for the proposition that a plaintiff’s case must fail if there is any other possible explanation for the accident, injury or damages. Other cases and authorities more clearly state that each case turns upon whether the evidence excludes, on the balance of probabilities, other probable or likely causes or fair inferences: …
[143] Proposed causes or theories that are merely conjecture, speculation, or guesses, or based on imagination, are insufficient to avoid liability – instead, proposed causes must arise fairly out of the actual circumstances established in evidence: Klar …
[144] In my view, none of these cases create binding or hard-and-fast rules, since whether an inference is possible or negated will depend on the specific facts of each case: see e.g. Johansson CA at para 83; Hans at para 329. Rather, the cases relied on by EnDyn, and noted in the previous paragraphs, are best considered to be illustrations of the general point made by the Supreme Court of Canada in Fontaine, at para 27,namelywhether the defendant has produced a “reasonable explanation that is as consistent with no negligence” that will effectively neutralize an inference of negligence.
[145] Ultimately, even if potentially available, whether to draw an inference is up to the trier of fact and is not mandatory: Grafikom at para 21; Westinghouse Canada Inc at paras 5-6 and 21; Metropolitan Toronto Condominium Corporation at paras 17-19.
The Court also commented on post incident conduct, and said the following:
[190] Post-incident conduct is admissible if it is logically probative, but is rarely properly considered an admission of a defect or negligence, or enough to prove a defect on its own. For example, recall notices, service bulletins, or warning letters, while not determinative, can provide some basis in fact that a defect exists across a class of products: … Evidence of repairs, improvements, removal, substitution or the like done after the occurrence of an accident may be admissible as logically relevant even if it is not an admission of negligence: …
[191] I do not treat EnDyn’s post-Incident LOCTITE application process changes as an admission that their pistons were previously defective. It is, at best, weak evidence that EnDyn produced defective pistons that did not have LOCTITE on the Plugs. EnDyn’s explanation for the reason they made the change is equally plausible. For example, marking the Plug with LOCTITE under the new process would help eliminate the potential problem of not knowing whether an installed Plug had LOCTITE on it without physically removing the Plugs – the precise problem that has arisen with respect to the other 11 Plugs in the 2012 Pistons.
Dunn v Condominium Corporation No. 042 0105, 2024 ABCA 103
The Court of Appeal discussed costs on appeal and affirmed that on appeal, the Court of Appeal can revisit trial costs even where there is no error on the costs award:
[5] When the result at trial is reversed on appeal, the basis for the costs award at trial disappears and this Court can revisit the matter of trial costs, even if there was no error as to trial costs: MacPhail v Karasek, 2006 ABCA 354 at para 8 citing FFM Holdings Ltd v Lilydale Co-operative Limited, 2002 ABCA 113. The presumption in r 10.29 that the party who enjoys substantial success at trial will be entitled to costs against the unsuccessful party continues to apply and successful appellants usually are also entitled to trial costs: Vallieres v Vozniak, 2014 ABCA 384 at para 6, cited in Turner v Bell Mobility, 2016 ABCA 188 at para 8.
In this case the Plaintiff was successful at Trial and awarded enhanced costs of $65,000 on a claim for $39,000 because the Plaintiff was reqluried to proceed in King’s Bench on a small matter, had to respond to meritless defences, and the Defendant refused to attend ADR. On appeal the appellant was successful on only 1 of 10 defences raised, and it was a novel point of law. The Court of Appeal noted litigation misconduct on the part of the Defendant notwithstanding their successful appeal, and directed that each party would bear their own costs.