Law Times

LaW TIMeS • SePTeMBeR 14, 2015 Page 7 www.lawtimesnews.com COMMENT Elevator-related injuries a growing concern, source of legal risk BY SHANE O'HERLIHY For Law Times s Canada's demographics get increasingly older and more urbanized, coupled with the growing portion of employees working in high-rise office towers, it is important that ele- vator owners be aware of their obligations when learning of a personal injury incident involving an elevator. Trip and fall incidents are the most common types of these accidents, although elevator entrapments and door closures can also cause serious injury. Accord- ing to s. 36 of Ontario Regulation 209/01, if a building owner becomes aware of an elevator-related incident that causes death or serious bodily injury, it must notify the Technical Standards and Safety Authority immediately. A building representative must also immediately notify its elevator service and maintenance contractor so it can perform an investigation and issue a subsequent report to the authority within 24 hours of the incident. Unfortunately, most personal injury incidents go un- reported. In my experience with elevator personal injury litigation, the majority of the time, neither the elevator service contractor nor the authority ever learns about them until several weeks or months later. In addition, Regulation 209/01 obliges an owner to keep an elevator out of service until the servicing con- tractor has identified the cause of the personal injury incident, the safety of the device has been restored, and an inspector gives permission to return the device to service. However, elevator owners usually do not report personal injury incidents to their contractors nor do they take their elevating devices out of service for preservation and inspection. Elevator owners often appear unaware of these obligations. That is definitely a problem. The law is not yet settled as to whether the non-report- ing of an elevator-related personal injury incident allows for an adverse inference regarding the wilful destruction of evidence. To my knowledge, the courts have not adju- dicated that particular issue. Regardless, it may be diffi- cult for a court to aver that a building's lax or ignorant ap- proach to its reporting obligations constitutes anything wilful or devious. Spoliation is still a somewhat nebu- lously defined legal doctrine with unclear repercussions. However, when the doctrine is part of the conversation given the facts at hand, it still resonates strongly within the realm of optics that, in the costly litigation world, is often what matters most. First, keeping the proper parties in the dark about a personal injury on an owner's premises should lead to the preliminary inference that these authorities were precluded from performing an appropriate investigation about what exactly happened to cause an injury. If the proper reporting does not take place, owners must then concede that they were ignorant of the law or negligent in respect of their obligations. Second, if an owner allows for a purportedly malfunc- tioning elevator to remain in service, either by not shut- ting it down itself or not requesting that its contractor do so, that means a sophisticated yet potentially f lawed piece of machinery continued to operate at potential risk to the public. Moreover, and perhaps more importantly, evi- dence of the elevator's purported malfunctioning at the time of the incident will have been lost. Preservation is es- pecially crucial in trip and fall cases. Such an incident, if properly reported, allows for an elevator mechanic to per- form same-day levelling measurements and calibration testing as contemporaneously as possible and without the shadow of litigation hovering over any subsequent in- vestigation that may serve to undermine the appearance of its candidness. Spoliation is a key issue in most elevator personal injury cases. The Alberta Court of Appeal attempted a comprehensive look at the law of spoliation back in 2009 in McDougall v. Black & Decker Canada Inc. The court affirmed that historically in Canada, courts have had the discretion to rule that any intentionally unpreserved evidence, had it been preserved, would have been unfavourable to the spoliator. Applying this court's framework to elevator cases, any evidence of a normally functioning device that becomes lost due to non-preservation may be found not to have assisted the elevator owner in the first place and, in fact, such evi- dence can be ruled to be detrimental to its case. Even if a court were not to implement such strong measures against an elevator owner and considered the conduct not to be deliberate, other remedies are avail- able under McDougall for unintentionally destroyed evidence, such as costs sanctions and exclusion of ex- pert reports. Although there is no strict duty under the common law or Ontario statute to preserve evidence for the purposes of the law of negligence, elevator owners must preserve evidence immediately upon learning of a personal injury event. If a court were to learn that an elevator owner had systemically failed in its obligations to implement mandatory measures to preserve eleva- tors in their original state and report personal injury events, it could offend it sufficiently to inspire more punitive sanctions under the McDougall framework. In the elevator owner scenario specifically, there does ap- pear to be a duty of care when preserving evidence for a potential personal injury lawsuit even if Canadian law does not hold such a standard generally under the doctrine of spoliation. Courts in the future may need to clarify when the duty to preserve evidence commences in an el- evator case. Persuasive arguments could suggest that a reasonable anticipation of litigation commences when the owner first learns that someone fell or in some other way became injured in an elevator. Conventional think- ing would suggest that something abnormal must have happened to cause such an injury to occur. In Osepchuk v. Tim Hortons 1645, the Alberta Court of Queen's Bench also defined spoliation as a failure to preserve property for another's use as evidence in litigation that is pending or reasonably foreseeable. Reasonable foreseeability is an open-ended talisman that any clever lawyer can use to portray a lax elevator owner as irresponsible and deserv- ing sanction. As things currently stand, that would con- stitute most elevator owners in Ontario today. It would serve elevator owners well to implement measures to ensure consistent compliance with Regu- lation 209/01. The Technical Standards and Safety Au- thority relies on information from elevator owners and maintenance contractors to inform the provincial gov- ernment about ongoing safety issues and to perform comprehensive safety audits. Property managers should ensure that their security contractors are fully aware of these protocols and have proactive contingency plans in place when incidents do occur. Condominium lawyers should also be cognizant about this area of law as should insurance agents. And those in Ontario who choose to continue operating increasingly antiquated elevating systems ought to be subject to an even greater obligation to educate themselves about their reporting and preser- vation obligations given that personal injury events are more likely to take place on these devices than on more modern equipment. As Canada becomes more elderly and litigious, it is imperative that condominium corporations and build- ing property managers exercise sufficient safeguards and reporting protocols to ensure compliance with Regulation 209/01. Security guards, property manage- ment personnel, and other building representatives ap- pear almost universally ignorant about their reporting and preservation obligations once they become aware of a passenger becoming injured while riding, being entrapped in or tripping while exiting or entering an elevator. It is a growing problem both in terms of un- necessary litigation exposure and public safety. LT Shane O'Herlihy practises civil litigation in Toronto with a particular specialization in elevator-related personal in- jury litigation. He's available at shane_herl@hotmail.com. u SPEAKER'S CORNER Judge makes worthy but failed attempt at behaviour modification ne of the first lessons in litiga- tion is the principle that costs follow the event. We quickly realize, however, that costs are within the discretion of the court and judges can tailor orders in an attempt at behaviour modification. The costs decision of Superior Court Jus- tice Fred Myers in Saleh v. Nebel is a worthy but failed attempt at behaviour modifica- tion. The plaintiff commenced litigation in respect of injuries suffered during a motor vehicle accident. In finding that the plaintiff had failed to satisfy the threshold of a seri- ous and permanent disfigurement or im- pairment, the judge concluded the plaintiff "will break the law and lie for money" and had "grossly exaggerated his pain." The jury was equally unimpressed with the plaintiff 's case, awarding a mere $30,000 in general damages. Of course, the jury was unaware of the $30,000 deductible, which reduced the potential award to nil. The action was accordingly dismissed and the judge sought costs submissions. The defendant was deemed to have been successful in the action based on the failure of the plaintiff to meet the threshold. Normally, the court would have granted costs to the defendant, but that's where the judge's behaviour modification came into play. Based on the actions of de- fence counsel, the judge decided to deprive the defendant of what he said would have been an award of $100,000 in costs. The judge was clearly un- happy with defence counsel repeatedly ignoring court or failing to deal with mandated scheduling orders and deadlines. But that isn't why the judge withheld $100,000 in costs. What moved the judge was the conduct of de- fence counsel in "playing uncivil, tactical, inappropriate, old-school, trial by ambush games." The judge described those games as "threatening to require proof of obvi- ously valid records, holding back important documents until the last second, failing to fulfil undertakings until the eve of trial, delivering new expert's reports during the trial, saying untrue things to counsel oppo- site (whether knowingly or not), failing to prepare examinations in advance to 'wing it' at trial, refusing to agree to the admis- sibility of relevant documents while requiring changes to be made to irrelevant ones, refus- ing to share costs of joint ex- penses, refusing to cooperate on court ordered process matters." That such tactics and un- civil conduct still occur in 2015 betrays a lack of understanding of or perhaps not caring about the Law Society of Upper Canada's Rules of Professional Conduct. Worse, it's a dis- service to clients and the public. Defence counsel advised the court that his client was happy with the trial result and didn't require any reduction in its le- gal fees. Indeed, there was evidence that even if the court ordered defence coun- sel to refund any costs to his client, it wouldn't require him to do so. In other words , the client, an insur- ance company, approved of the conduct of its counsel. And why not? The conduct engaged in by defence counsel was effec- tive. It also made the litigation more chal- lenging and expensive for the plaintiff. My first impression is that Myers' or- der was just and proper. But upon fur- ther ref lection, I believe Myers' order will serve no real purpose. Defence counsel didn't receive any adverse consequence. It was his client that appears to have suf- fered the adverse financial consequence. But who was the real client? It wasn't the named defendant; it was an insurance com- pany. And who ultimately pays the defence costs? That would be the public through the payment of insurance premiums. While Myers attempted to engage in be- haviour modification, it's doubtful his order will have much practical impact. Something more is necessary. If courts really want to discourage ambush games, they'll have to come up with more creative solutions. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. A O Social Justice Alan Shanoff

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