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OCA rules on emergency doctrine

|Written By Alex Robinson
OCA rules on emergency doctrine
Russell Hatch says insurers have shied away from bringing summary judgment motions in recent years as the costs can be quite prohibitive.

An Ontario Court of Appeal justice has warned against “summary judgment at all costs” in her dissent of a ruling on the application of the doctrine of emergency in a personal injury case.

In Isaac Estate v. Matuszynska, a 2-1 decision upheld a ruling through summary judgment dismissing a claim brought by the estate and mother of a man, Glen Isaac, who died after hitting his head on a curb during an altercation in 2009.

During a drug deal in a parking lot, an argument broke out between Isaac and another man, who was sitting in the driver’s seat of a car owned by one of the defendants, the decision said.

After Isaac broke one of the car’s front windows, the driver drove off, swerving and trying to kick Isaac, who was holding on to the car until he fell and hit the curb.

The police determined Isaac’s death was accidental and his mother started proceedings against various defendants, including the owner of the vehicle and a statutory third party — State Farm Mutual Automobile Insurance Company.

The motion judge granted summary judgment to the defendants finding that the doctrine of emergency applied and that, therefore, the driver could not be faulted for his reaction to Isaac’s actions.

The plaintiffs appealed the motion judge’s decision, arguing she had erred by granting summary judgment and by applying the doctrine of emergency.

The Court of Appeal, however, found the judge had made no error, that there was no genuine issue requiring a trial and that the appellant was asking the court to “reweigh the evidence” that was considered by the motion judge to reach a different conclusion.

Insurance defence lawyers say the decision demonstrates the promise of the Supreme Court of Canada’s 2014 decision in Hryniak v. Mauldin to improve the summary judgment process, particularly in the insurance context.

Russell Hatch, a partner with Blaney McMurtry LLP, who was not involved in the case, says he thinks Hryniak has had mixed results since it was released and that a culture shift for which the Supreme Court called in the decision has yet to come to pass.

He says insurers have shied away from bringing summary judgment motions in recent years as the costs can be quite prohibitive and judges have been hesitant to rule in favour of insurers on such motions when there is a sympathetic plaintiff.

“This case, I think, is a win for insurers and demonstrates that the cultural shift advocated by Hyrniak is possible in the insurance context,” he says.

In her dissent, Justice Sarah Pepall said the matter should go to trial as the summary judgment finding was “anchored on minimal first hand evidence” and unresolved contradictions and inconsistencies.

She noted that while judges have taken up the new approach ushered in by the Hryniak decision with “a huge degree of professional commitment and diligence,” not all cases are appropriate for summary judgment.

“A major goal of summary judgment is costs savings,” she wrote in her dissent. “However, the goal is not summary judgment at all costs. There will still be some cases that ought to go to trial. Some caution must be used. This is particularly so in a case such as this that involves a largely unexplored area of the law and which would benefit from the full record that a trial provides.”

Lawyer Kevin Egan, who represented Judith Isaac, says one of the problems with this particular case is that he never had the opportunity to cross-examine any of the witnesses.

“I have a real concern that so much evidence was considered and not cross-examined,” he says.

Pepall also found that the motion judge had failed in her treatment of the doctrine of emergence, saying the judge did not consider the elements of the doctrine.

Pepall said the motion judge did not consider the record as she should have.

“It is not enough to simply reproduce all of the evidence and then say it has been considered; there has to be some analysis,” she wrote. 

Lawyer Ged Tillmann, who represented one of the defendants in the appeal, says he does not agree with the dissent as he thinks the motion judge was very comprehensive in her reasons.

“She looked at all of the evidence that was available not only for the summary judgment but that would have been available at trial,” he says. “There was no indication from anyone that there was any other additional evidence that would be available at trial.”

He says the majority decision shows that summary judgment motions can be the better way to go, as judges are taking their time and going through such motions carefully.

He adds that he thinks the decision will cause counsel to give more thought to proceeding with summary judgment motions.

Egan says the majority decision is an interesting view of the doctrine of emergency.

He says there was little consideration to the antecedent of negligence and that the reasonableness of reacting to the emergency seems to have been given broad consideration so that “anything goes once there’s an emergency.”

He says this is a departure from the previous case law.

“It’s a problem for plaintiffs who may find themselves without a remedy for events that the defendant might otherwise be liable,” he says.

Tillmann says the decision confirms that the doctrine of emergency is still available but that it will always be fact-driven.

Egan could not say whether his client intends to seek leave to appeal the decision to the Supreme Court of Canada, as he had not yet met with them to discuss it.

Sonia Fabiani, who represented State Farm, did not provide comment before deadline.

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