Bike paths in Ottawa are popular and busy destinations for cyclists and pedestrians alike, but they can also be dangerous. In late July, two young children were struck and injured by a cyclist who hit them along the Rideau Canal pathway. 

According to the Ottawa Citizen, the children “were hit so hard by the bike that they flew into a metal  railing.” Their mother, Sonia Elliott, said “it was chaos. My heart was just in my throat...I just didn’t know what to do. I was panicking. I thought they were dead.” 

Both her sons were taken to CHEO and one sustained what may have been a serious head injury.

The accident location reportedly falls within the federal jurisdiction of Parks Canada. Other parts of the bike
paths in the vicinity are likely within the jurisdiction of the National Capital Commission (the NCC). However, the Citizen went on to report that when Ms. Elliott contacted the Ottawa Police, she was advised they had no jurisdiction over that pathway.

Curiously, speed bumps and new signage to reduce bike speed were installed not long after the accident made local news headlines. Fortunately, it seems the authorities are taking the issue of bicycle collisions more seriously, at least at that location. There may be concerns about legal liability too.

Injuries that occur on government owned or managed lands can expose the government to claims in negligence. These claims must be brought in a timely manner, and retaining a good personal injury lawyer early on is always advisable to help navigate potential pitfalls. 

Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of personal injury matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.

A few days ago, several media outlets reported about a pill or capsule being found in a Tim Hortons Timbit at a location close to our law firm. Ottawa Public Health is apparently investigating.

Generally speaking, if a customer ingests a dangerous substance found in a food item and suffers medical injury from it, a personal injury claim could be brought. 

What if they did not ingest it or the substance was harmless to that person? Certainly, finding insects or pills or a foreign substance or object of any kind in a meal would cause upset and a certain level of distress to the average person. However, without proof that one has suffered provable psychological or psychiatric injury (assuming there is no physical injury as in the first scenario), a negligence claim cannot succeed. If there was such injury, another hurdle must be overcome to justify compensation – the harm must be found to be reasonably forseeable to the average person.

These requirements were laid out in Mustapha v. Culligan Canada Ltd., a 2008 Supreme Court of Canada decision. In that case, Mr. Mustapha discovered a fly in a water bottle. As a result, he developed a psychiatric illness - major depressive disorder with associated phobia and anxiety. 
 
The Court upheld the trial judge’s finding of psychiatric injury, but dismissed the claim on the basis that Mr. Mustapha was not able to show that “it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install.”

Essentially, the harm Mr. Mustapha had suffered was found to be too remote from the defendant’s conduct to hold it legally liable. 
 
The principles in Mustapha v. Culligan Canada Ltd. may well apply to the situation that allegedly occurred at the Tim Horton’s, but as with all injury claims, you should consult an experienced personal injury lawyer to evaluate your case without delay.

Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of personal injury matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.

A lot of attention has been given to the Supreme Court’s decision in Hryniak v. Mauldin dealing with motions for summary judgment under Rule 20 of the Ontario Rules of Civil Procedure. The Court discarded the “full appreciation” test embraced by the Ontario Court of Appeal’s Combined Air Mechanical, and adopted a lower threshold for determining whether the evidence could support summary judgment. Underpinning the decision were principles of proportionality, expeditiousness, and cost-effectiveness, to achieve a just result without going to trial where the circumstances warrant. 

Motions for summary judgment using the analytical framework under Rule 20 are still not permitted in the Ontario Small Claims Court. The Court of Appeal in Van de Vrande v. Butkowsky held that jurisprudence emanating from Rule 20 in the Superior Court was inapplicable for small claims because the omission of a similar rule in the Rules of the Small Claims Court was deliberate, and it was not the Court’s role to import it.

However, significant relief can be found in Rule 12.02(1) of the Rules of the Small Claims Court which provides as follows:

The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence;
(b) may delay or make it difficult to have a fair trial; or
(c) is inflammatory, a waste of time, a nuisance or an abuse of the court's process.

Under 12.02(2), the Court may stay or dismiss an action, strike out the defence and grant judgment, in the case of a motion, order that the motion be stayed or dismissed, or in all cases impose such terms as are just. 

Amendments to the Rule which took effect July 1, 2014 provided the Court authority to stay an action on its own initiative where it appears to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

In contrast, the threshold to strike out a pleading in the Superior Court is higher. There, a party can move to strike out a pleading under Rule 21.01(1)(b) on the ground that it discloses no reasonable cause of action or defence but no evidence is allowed. A defendant may also move to stay or dismiss an action under Rule 21.01(3)(d) on the grounds that it is frivolous, vexatious or an abuse of process.

Justice Rouleau in Van de Vrande described the interplay between the rules:

[19] Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his "best foot forward". It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its
continuation would be "inflammatory", a "waste of time" or a "nuisance". 
 
[20] In my view, the references to actions that are inflammatory, a waste of time or a nuisance was intended to lower the very high threshold set by rule 21.01(3)9(d)'s reference to actions that are frivolous, vexatious or an abuse of process. 
 
Practically, this suggests that while motions for summary judgment are unavailable in the Small Claims Court, the power to strike out any document on very broad grounds can lead to the same result before a trial is held.

RN
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of small claims matters. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.