Resurfice Vs Hanke Case Analysis
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Ultramar Ltd. In Donleavy v. It requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one or more of the defendants, the injury would not have occurred. A defendant will be liable for all injuries caused or contributed to by his or her negligence, even if other non-tortious causes are present: Athey v. Indeed, there are usually a number of background factors that cause an injury and not only a single cause. As McLachlin C.
Material contribution is not a test of causation but a policy-oriented rule that imposes liability on the basis of tortious risk creation. Jefferies, Tort Law, 6th ed. Toronto: Thomson Reuters, , at p. Exceptional cases include where there are negligent acts by multiple actors and it is established that one or more of them in fact caused the injuries or losses, but the plaintiff is unable to determine which of a number of negligent acts caused the injuries or losses. McLachlin C. She stated, at para.
Degrees of fault are reflected in calculations made under contributory negligence legislation. Rather, he states, at pp. That is a damages question, not causation, and left for later on in the negligence analysis along with joint and several liability issues about responsibility to pay for the harm. The fact that the injury is indivisible does not affect the workability of the causation test. The Chief Justice stated, at para. The rules of damages then consider what the original position of the plaintiff would have been.
This is a potential source of confusion. As Lauwers J. As Paciocco J. Sack v Ross In Sack v Ross Ont CA, , a complex medical malpractice case, which bears reading in full , the Court of Appeal engages in an extensive consideration of principles applicable to causation in negligence, and the sometimes difficulty of applying the standard 'but for' causation test when dealing with some situations. These situations are: an omission rather than an action, several alleged tortfeasors, and delayed diagnosis and treatment: E. Issue One: Did the trial proceed on a correct understanding of causation in negligence cases? A carefully formulated legal proposition that works justice in a specific case might later be found, in the light of different facts, to be over-inclusive or under-inclusive, or as otherwise flawed or inadequate.
The paradoxical genius of the common law is that, on principle, the process of refinement and adaptation is interminable. The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred. Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence.
This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. Consider the cases in which the defendant accidently shoots the plaintiff in a hunting mishap, or where the defendant runs a red light and collides with the plaintiff who suffers physical trauma. Causation is not usually a live issue in such cases because the causal inferences are so easy to draw. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care.
The third step is to allocate fault among the negligent defendants. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation. It is important to reaffirm that in the usual case of multiple agents or actors, the traditional "but for" test still applies.
The trial judge concluded that had Kilpatrick conducted a proper inspection, the fuel oil tank would have been replaced and that if Ultramar had fulfilled its regulatory obligations, the spill could have been avoided. This was an inference which was open to her to make even in the absence of evidence suggesting a new tank would be less susceptible to corrosion in the absence of evidence to the contrary. The trial judge was also entitled to find that the tank was labelled for indoor use, that the subcontractor failed to identify this, and that Ultramar was liable for the negligence of its subcontractor.
While all parties took issue with the apportionment of liability, such decisions are entitled to considerable deference and accordingly, interference requires a demonstrated error Ingles v Tutkaluk Construction Ltd,  1 SCR It would have been more appropriate to have allocated liability directly to Kilpatrick or to have found the appellants jointly and severally liable but the end result would have been the same. The trial judge noted that no copy of any contract relied on by the respondents was introduced in evidence and she was therefore not prepared to make findings on the terms as a result.
The case was more about negligence, and the trial judge reasonably refused to consider breach of contract claims. The respondents had the onus of satisfying the court that they suffered damages in the form of lost rental income. The trial judge was not satisfied on the evidence that the claim was made out. She found a number of factors might have contributed to a decision to cease being landlords, and that the respondents had only rented their home for six months at the time of the spill. There was no evidence of mitigation. Kilpatrick argued that it was prevented from testing the claims that the respondents were forced to relocate and accordingly, that the trial judge erred in awarding general damages.
Matthew Fleming and Chloe Snider, for the appellant No one appearing for the respondents Michael Panacci for the proposed interveners. The expert testified that, in her opinion, the painting was a forgery. None of these works were in evidence, and the expert had not been provided an opportunity to respond to them. Likewise, in rejecting expert evidence in favour of a contrary theory that was not put to the expert, the trial judge stepped out of his position as an impartial decision maker, and into the role of an art expert posed against the qualified expert witness, which was inappropriate Phillips v Ford Motor Co of Canada,  2 OR The evidence at trial was that the appellant had been provided with two different provenance statements, which reflected two different ownership lineages; that several of the noted previous owners could not be found or would not confirm that they had owned the painting; and that the expert was of the view that the provenance statement was suspect.
The trial judge afforded these facts little weight, and thus misapprehended the contract between the appellant and the defendant. The fact that both of the provenance statements were false means that the appellant did not get what he bargained for, and that he was entitled to a remedy under the Sale of Goods Act, RSO , c S1. The transaction was a sale by description within the meaning of the Sale of Goods Act, and the appellant was entitled to damages in the amount of the estimated loss directly and naturally resulting in the ordinary course from the breach of warranty Sale of Goods Act, s The appellant was also entitled to expectation damages in the amount that the market established would be the value of a similar genuine Morrisseau painting Langille v Keneric Tractor Sales Limited,  2 SCR A secondary issue was whether civil fraud or misconduct on the part of the defendant occurred to warrant a punitive damages award.
The appellant approached the defendant after the Art Gallery of Ontario asserted that the painting was a forgery, and asked for his money back. The defendant refused. The appellant suggested the two work together to investigate the forgery allegation, which the defendant also refused. The defendant was deliberately elusive in demonstrating that the painting was genuine. Gordon S. The moving party, the father, moves for a stay pending appeal of the judgment of Doyle, J. This was a high conflict custody dispute. The parties had difficulty managing the exchanges of the children to the point that the exchange had to be supervised. Each party blamed the other for this tension, and the children were adversely affected by the hostility between the parents.
In his Notice of Appeal, the father requested an order for joint or shared custody, and an order prohibiting the mother from moving the residence of the children. The father also set out that the trial judge erred by not adopting the recommendations of an assessor and failed to consider the advantages to the children of maintaining a link to their Inuit heritage, through their father. An appeal court must not retry a custody case. The father did not give any concrete instances of how the access granted by the trial judge will lessen his ability to transmit his Inuit culture to his daughters, compared to the access he had before trial. The father will not suffer irreparable harm if the move is not enjoined before the appeal can be heard.
The father can have as much, if not more, time with the children than he had before trial. Travel from Ottawa to Montreal takes two hours by train, which is not a particular hardship for either the parents or the children. Importantly, the frequency of exchanges marked by high levels of tension—which has been hard on the children—will be reduced. The balance of convenience favours allowing the move to take place.
The mother had the substantial responsibility for caring for the children and managing their activities and education. This continues with the trial judgment. The mother has enrolled the children in a new school, while the former school is no longer available. The mother has moved into an apartment in the same building as occupied by her mother. She also has the certain prospect of employment as a property manager if she resides in Montreal. The children have spent a great deal of time in Montreal and a move there is likely to enhance their experience of the French language culture, which is also part of their heritage.
In July , the appellant sued R. Tomlinson Ltd. In June , the appellant brought a motion for a status hearing under Rule He sought to extend the time to set the matter down for trial beyond its fifth anniversary, at which point the registrar would generally be required to dismiss the action for delay pursuant to Rule On January 17, , after the status hearing, the motion judge dismissed the action pursuant to Rule The motion judge correctly applied the applicable test from Kara v Arnold that requires the moving party to show cause why the action should not be dismissed for delay by i providing an acceptable explanation for delay; and ii demonstrating that allowing the action to proceed would not cause the defendant s to suffer non-compensable prejudice.
The motion judge found that the summary judgment motion was not an adequate explanation for the delay because the appellant could still have set the action down for trial. First, the motion judge considered the slow pace of the summary judgment motion and declined to give the factor much weight. Second, this was not a determination of law but a fact-specific determination of whether the appellant had met his onus of explaining the delay. However, unlike Stokker, and the decisions it cites, the order made on September 19, neither addressed the overall delay in the action, nor was it a consent order from which it can be inferred that the parties were content with the pace of the litigation.
The motion judge was therefore not required to focus only on delay that occurred after this order was made. While a timetable that implicitly allows for an extension signed by all parties can provide relief from dismissal for delay when the requirements of Rule