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In the matter of Papamichalopoulos v. Greenwood 2018 ONSC, the defendant brought a motion seeking the production of the plaintiff’s private Facebook pictures. The plaintiff had alleged in his Statement of Claim that he had suffered permanent injuries in the accident. The plaintiff had also alleged that his ability to participate in all activities had been impaired.
Master Abrams noted that the plaintiff had posted pictures on his public Facebook account, post-accident, which depicted him engaging in physical activities without any visible signs of discomfort. The pictures posted included pictures of the plaintiff jet-skiing, bending over at pronounced angles while lifting his wife, driving, and lifting his young son. Master Abrams indicated that these pictures are relevant and open up inquiry as to the severity of the injuries sustained by the plaintiff. Master Abrams cited Justice D. M. Brown’s reasoning in Leduc v. Roman 2009 ONSC. Justice D. M. Brown indicated that it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.
Dan's practice areas of interest include accident benefit and bodily injury litigation, loss transfer and priority dispute arbitrations and subrogation litigation.
The Court of Appeal’s reasons in L-Jalco Holdings v. MacPhersonreminds us that the concept of subrogation extends beyond the realm of insurance and into the realm of mortgage priority claims. In L-Jalco, the plaintiff lender advanced funds to a property owner who discharged only one of two prior mortgages with the funds advanced, while registering a new mortgage in its favour. The prior (then undischarged) second mortgage moved into first position and the plaintiff’s mortgage fell into second position. When the property owner defaulted, the plaintiff sold the property under power of sale and sought an order that its mortgage had priority against the first mortgage and in so doing attempted to in effect cut the first mortgagee out of participation in the sale proceeds.
The plaintiff floated two arguments:
the ‘new’ first mortgagee had undertaken to discharge its mortgage and failed to do so and would be unjustly enriched if they maintained priority; and
the plaintiff could have preserved the priority by taking an assignment of the original first mortgage and therefore it would be equitable that the plaintiff receive priority through being subrogated to the discharged first mortgagees priority position
The court rejected both arguments.
Importantly there was a finding that the plaintiff was aware of the undischarged mortgage and seemed not to care at the time of the original closing. This knowledge was critical to the court’s finding because it took it out of the realm of cases where there was a mistake that lead to an unjust result. The Court of Appeal’s 1997 decision in Mutual Trust v. Creditviewwas referred to in the underlying reasons to juxtapose circumstances where a mortgagee has knowledge of prior encumbrance vs a circumstance where a mortgagee has no knowledge as a result of a mistake. Mutual Trust involved a mortgagee who was unaware of CPL’s registered on title when its mortgage was registered and when it discharged first mortgages held by Scotia. The court held that Mutual Trust was unaware of the CPL’s as a result of its solicitor’s mistake. They found that if Mutual Trust was not subrogated to Scotia’s interest as the prior first charge, the holder of the CPL would be unjustly enriched as a result of a solicitor’s error. The court also identified that the plaintiff could have taken an assignment of the discharged mortgagee’s interest. However, the lack of knowledge was critical to the court’s finding.
Subrogation in the context of mortgage priorities embraces the same underlying concept as traditional subrogation – one party standing in the shoes of another. However, there is no automatic statutory or common law right of subrogation for mortgagees. Rather it is available only if facts support the fairness of granting it.
Two teenagers, C.C. and J.J., who had been drinking and smoking marijuana decided to go out after midnight to steal valuables from unlocked cars. They ended up at the defendant’s unsecured garage and found an unlocked car with keys in the ashtray. C.C. and J.J. decided to steal the car and go for a joyride on the highway where the car crashed. J.J. suffered a catastrophic brain injury.
The central issue before the court was whether a commercial garage owner owed a duty of care to J.J., a minor who was injured while joyriding in a vehicle he helped steal from the defendant’s premises.
In a 7-2 ruling, the Supreme Court of Canada (S.C.C.) said ‘no’, overruling the Court of Appeal’s decision that a novel duty of care should be recognized in such circumstances.
The Court of Appeal, in its application of the Anns-Cooper test for establishing a novel duty of care, had held: (i) that it was foreseeable that minors might take a car from the defendant’s garage that was made easily available to them and may consequently injure themselves, and (ii) that there was sufficient proximity between the defendant and J.J because the defendant should have had minors like J.J. in mind when he considered security measures at his garage.
However, Justice Karakatsanis, speaking for the majority of the S.C.C., held that the foreseeability stage of the Anns-Cooper test had not been met, and declined to find a new duty of care in the circumstances. She concluded that while the risk of theft was a reasonably foreseeable consequence of leaving a garage and car on its premises unsecured, it was not reasonably foreseeable that the stolen vehicle would be operated in an unsafe manner, causing injury.
The S.C.C. ruling affirms that a duty of care requires that the risk of harm be reasonably foreseeable and not a mere possibility.
Notably, Justice Russel Brown (supported by Justice Clement Gascon) dissented, finding that there was sufficient evidence in the case to substantiate that physical injury to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligence in failing to secure the stolen car. Justice Brown also added that this case did not require the full application of the Anns-Cooper test to establish a novel duty of care because “it involves the unremarkable application of a category of relationships that has long been recognized as imposing a duty of care — namely, “where the defendant’s act foreseeably causes physical harm to the plaintiff.”
Finally, although Justice Karakatsanis did not find it necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care, she did comment that the Court has consistently rejected such notion.
It will be interesting to see what impact this decision has in tort law, and whether its effect will be to raise the generally low threshold of the objective reasonable foreseeability inquiry of the Anns-Cooper test.