Law Times

Law Times • November 26, 2018 Page 13 www.lawtimesnews.com FOCUS © 2018 Thomson Reuters Canada Limited 00253GU-94346-NP The best tools to do your best work Assessing a slip and fall claim during icy conditions? See how WestlawNext Canada gives you all the answers you need in one place, now that it's fully integrated with Practical Law legal know-how and ProView eLooseleafs. Stop looking for answers. Start finding them. Watch the Use Case Video now thomsonreuters.ca/bestwork she "clearly found that together the sightlines and the absence of a stop line contribute to the non-repair of this particular in- tersection." "In my view, there is no ba- sis for interfering with the non- repair conclusion of the trial judge relating to this intersec- tion. It was hers to make," added Appeal Court Justice David Pa- ciocco for the unanimous panel. Even if a distinction can be drawn between the facts in the two cases, says Tom Macmillan, a lawyer with Rogers Partners LLP in Toronto, it's a "pretty thin" one that offers little help for those fac- ing similar situations in future. "It's hard to be certain about how a court would rule," he says. If the Supreme Court were to take the case, he says, it would also give the nation's top court an opportunity to look at the relationship between alcohol impairment, excess speed and causation. "These are things that are fought a lot about in our busi- ness," Macmillan says. George Wray, a partner in the Toronto office of Borden Ladner Gervais LLP, says the fact pat- terns of the cases, which each in- volved negligent drivers pulling into intersections with removed or faded stop lines in Hamilton, Ont., were strikingly similar. "I think the decisions are in- consistent, and given how simi- lar the underlying facts were, it's hard to understand how they could have come to opposite conclusions," says Wray, who was not involved in either case but who frequently defends pub- lic sector clients as part of his in- surance law practice. "I'm not sure what we're sup- posed to understand from their guidance, and it makes it very difficult to advise clients on what to expect from the appel- late court in the future," he adds. "This needs to be addressed further by the Supreme Court of Canada, particularly on the is- sue of a municipality's obligation to a negligent driver." The appeal panel in Safran- yos found the trial judge misap- prehended evidence about the alleged impairment of the driver who hit the plaintiffs' car and overturned the decision to find him partly liable. "Absent the trial judge's errors in the assessment of the evidence relating to Mr. McHugh, it can- not be said on the balance of probabilities that Mr. McHugh could have avoided the collision had he been driving prudently," the panel concluded. "It, there- fore, cannot be said that Mr. McHugh's negligence caused or contributed to the collision." LT concluded, later adding that in any case, it "could not reasonably form the basis for the court to take judicial notice of the pres- ence of a wide spread bias among the residents of Brampton." The Advocates' Society inter- vened at the hearing following a previous invitation from Daley to appear as a friend of the court because of its broad-reaching membership, encompassing law- yers on both sides of the personal injury bar. Peter Kryworuk, a partner in the London, Ont. office of Lern- ers LLP, who appeared for the society, says the invitation was extremely unusual. "Where we feel we can provide real assistance to the court, we are willing and ready to do so, and this case was right within our area of expertise," he explains. "We weren't advocating for one side or the other but tried to provide a balanced perspective on the im- portant issues before the court." He told the court that any substantive reform to the civil jury system that allowed for a general challenge for cause would be best done through leg- islative amendments. Buy Kryworuk also submit- ted that s. 3 (3) of the Juries Act, which makes anyone with "an interest in an action" ineligible to serve as a juror, could po- tentially support the plaintiff 's case. If "an interest" was found to include partiality, the society proposed a two-stage test for allowing a challenge for cause, in which the challenging party would first have to demonstrate a widespread bias in the com- munity and then show that ju- rors were incapable of setting the bias aside, despite judicial pre- screening and trial safeguards. However, Daley ruled that a review of the jurisprudence on point "makes it clear that the Juries Act does not permit a broad/general challenge for cause, and nor should one be read into the Act." "The absence of an express provision in the Juries Act or the Courts of Justice Act or any other related legislation or rules allowing for the exclusion of resi- dents from a jury panel who are insured under motor vehicle lia- bility insurance policies warrants dismissing the Plaintiff 's request for same. For the same reasons, removing all potential jurors who are ratepayers of automobile in- surance premiums from the jury itself would be similarly inappro- priate," the judge added. "Simi- larly, I have concluded that, in the absence of an express statutory provision allowing for a challenge for cause of prospective jurors on the basis that they pay premiums for motor vehicle liability insur- ance or have same paid on their behalf, the Plaintiff 's request for a challenge for cause process in the jury selection in this case must also be dismissed." Todd McCarthy, a partner in the Whitby, Ont. office of Fla- herty McCarthy LLP and coun- sel for one of the defendants in the case, says he and his client were "quite content" with the ruling. "It's important to note that jurors are presumed impartial," he adds. "Those of us who have done jury trials can see that ju- rors step up and do the job very well across the province." LT Continued from page 10 Continued from page 12 Jurors are presumed impartial Strikingly similar rulings Peter Kryworuk says that any substantive reform to the civil jury system that allows for a general challenge for cause would be best done through legislative amend- ments.

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