Monthly Archives: July 2020

Sprayed in the Face with a Fire Extinguisher at Wal-Mart

Posted on by

Wal-Mart gets involved in a lot of litigation in Ontario, usually not by choice.  The most recent lawsuit against Wal-Mart to make it through the courts is a doozy.

It was brought by a guy name Kim Manos who was accidentally sprayed with a fire extinguisher by an employee at the Waterdown Wal-Mart.  This is amazing to me for a few reasons.  First, how does a fire extinguisher go off accidentally anyway?  Second, what employee thinks it is a good idea to handle a fire extinguisher within spraying-distance of a customer?  And, of course, what are the chances you are going to hit the customer who already has respiratory problems?

I’m also fascinated by this case because I used to live in Waterdown and the Waterdown Wal-Mart is the Wal-Mart I have visited more than any other.  From a customer’s perspective, it was a really well-run store.  It was clean, safe, and well-organised.  My personal experience would be that it was one of the better-run Wal-Mart stores I have seen.  It is unlikely to make an appearance on the “People of Wal-Mart” blog.  (The Wal-Mart here in Stratford, on the other hand . . .)

Kim Manos sued Wal-Mart and the matter went to trial.  Wal-Mart retained medical experts who disputed the Plaintiff’s contention that he had developed a particular respiratory condition.  Wal-Mart’s experts also opined that, even if the Plaintiff did have that respiratory condition, it wasn’t caused by the fire extinguisher accidentally discharging in his face in the Waterdown Wal-Mart.  (It sounds more and more ridiculous each time I say it.)

The Plaintiff won at trial.  In addition to compensation for his actual monetary losses, the trial judge also awarded him $225,000.00 in general damages for his pain and suffering which, for sure, is on the high end for this kind of injury.

Insufficiency of Reasons

In giving his reasons, the trial judge accepted the evidence of the Plaintiff’s medical experts and did not accept the evidence of Wal-Mart’s medical experts.  The problem was that he never explained in his reasons why he was rejecting the evidence of Wal-Mart’s expert witnesses. 

Wal-Mart appealed.  The Court of Appeal granted the appeal and ordered a new trial.  The Court of Appeal’s rationale was that the trial judge failed to give adequate reasons for rejecting the expert evidence put forward by the Defendant.  The Court of Appeal confirmed that the trial judge was entitled to reject the Defendant’s expert evidence if he wanted to, but he had to give intelligible reasons for doing so.  By giving no reasons at all, he made it impossible for the Defendant to know why it had lost and made his decision incapable of meaningful appellate review. 

This is another reason why I find this case so fascinating because the very first appeal I ever argued, way back in my law school days, was successful for the very same reason.  In that case, we were appealing a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario.  The Committee had a report from an independent assessor which was critical of the doctor in question.  In its decision, the Committee did not accept the conclusions of the report, but neither did it give any reasons for rejecting the report’s conclusions.  In the appeal to the Health Professions Appeal and Review Board we argued that this was unreasonable, and the Board agreed.  The Board held, “The Committee is not bound to accept the report of an independent assessor, but it is incumbent on the Committee to offer cogent reasons if it chooses to reject or discount the opinion of an assessor.”

That case was sent back to the Committee for re-consideration, just like the Manos case was sent back for a new trial. 

Appeal to the Supreme Court of Canada?

So when will the Manos case be re-tried?  Not any time soon, because (plot twist!) Mr. Manos has sought leave to appeal to the Supreme Court of Canada.

The overwhelming majority of applications for leave to appeal to the Supreme Court of Canada are dismissed, and my money would be on this application for leave being dismissed as well. 

So why would the Plaintiff seek leave when the chance of getting it is so low?  Well, one reason might be because the pay-off would be very much worth it in the unlikely event that that leave (and the subsequent appeal) are granted.  Success at the Supreme Court could mean that the Plaintiff gets to keep his $225,000.00 general damages award and would not have to put in the time and expense of a re-trial (which he might not even win, and which could also be appealed . . .).  I suspect that the Plaintiff knows very well that, even if he wins the re-trial, his is not going to get anywhere near the $225,000.00 he got the first time, because that really is on the high end of damages for the type of injury which he allegedly suffered.  If he can get the Supreme Court to overturn the Court of Appeal’s ruling the $225,000.00 damages award will stand and he will almost certainly be better off than he would be after winning the re-trial. 

I will keep a close eye on this fascinating case and provide an update once the application for leave to appeal is decided by the Supreme Court.

The UK’s Legal Ombudsman

Posted on by

I practise civil litigation in Ontario, but a little while ago I had the opportunity to be involved in a dispute resolution process in another jurisdiction, which was an enriching learning experience.  While I deal with Ontario’s processes and procedures every single day, it was great to get some exposure to how things are done elsewhere.

Background

The situation involved a relative of mine who lives in the United Kingdom and was looking to purchase a flat.  He found a flat for sale and entered into negotiations with the owner.  The negotiations were so advanced that both parties retained solicitors in anticipation of the sale.  However, after the solicitors took over the negotiations the seller decided not to sell after all and walked away from the deal.

What made this bad situation worse was the fact that my relative’s solicitor did not tell him that the seller had walked away.  Even though he knew that the deal was off, he acted for weeks as though the deal was still going to go through: he even asked my relative to forward the purchase funds.  When the closing date came, he reported that the deal had not gone through and returned the purchase funds to my relative, less the amount of his fee. 

To be scrupulously fair to the solicitor, the retainer agreement my relative signed with the solicitor stated that he would be entitled to a fee for his work even if the deal did not go through.  But what the agreement stipulated was that, in the case of an aborted transaction, he would get a lesser fee for his preparatory work, not the full fee for the transaction (which would have been a percentage of the purchase price).  This solicitor retained the full fee, which was a few thousand pounds more than the lesser fee the agreement stipulated. 

I assisted my relative to bring a complaint against this solicitor to the Legal Ombudsman, which was a new experience for me, because we do not have anything like the Legal Ombudsman in Ontario. 

Comparisons with Ontario Procedure

In Ontario, if you have a problem with your lawyer, you can report them to the Law Society.  But the Law Society can only discipline the lawyer: they cannot order the lawyer to repay any disputed fees or pay any monetary damages.  In Ontario, any dispute about a lawyer’s fees has to be lodged with the court.  The Legal Ombudsman differs from what we are used to here in Ontario in that the Legal Ombudsman, which is not an office or a branch of the court, can nevertheless order a solicitor to repay fees to a client or even order a solicitor to pay compensation to a client. 

Also noteworthy is the fact that the process with the Legal Ombudsman is based entirely on written submissions.  In a dispute about fees heard in Ontario there will virtually always be an opportunity for both sides to appear before a decision-maker to state their case.  By contrast, the Legal Ombudsman makes a decision on the basis of written submissions only, without ever hearing from the disputants in person.

In our case we were satisfied with the result, since the Legal Ombudsman ruled strongly in our favour.  The solicitor was ordered to repay the difference between the lesser fee and the full fee, and was also ordered to pay some modest compensation on account of some unnecessary expenses my relative had incurred when the deal did not go through.

Another interesting contrast from Ontario procedures is that in cases where the Legal Ombudsman has ruled in favour of the client, the Ombudsman will also take enforcement steps.  The Ombudsman will demand payment from the solicitor and even register their decision as a Judgment at the court (which the Legal Services Act permits them to do) if necessary.  Our case did not get to court, as the solicitor did pay the amount ordered after receiving demand from the Ombudsman.  But this is a totally different paradigm from what we have in Ontario: while we do have specialised decision-making bodies whose decisions can be registered with the court and incorporated into a judgment, the decision-making body itself will never take that step.  For example, an order of the Landlord and Tenant Board (“LTB”) can be registered at court, but that has to be done by the landlord or tenant themself, and at their own expense: that is not a step which the LTB will take on its own. 

Another major difference is that that the service the Legal Ombudsman provides is free.  Its office is funded by levies from the legal practitioners.  Again, this is different from Ontario, where every adjudicative body—be it the Small Claims Court, the Superior Court, or an administrative tribunal—charges fees.

Taking a case through the process with the Legal Ombudsman was a unique learning experience.  Because it was a forum with so many differences from what I am used to in Ontario, it left me with a lot of food for thought.  Just because things are done differently in another country does not automatically mean that we should change the way we do things here, but the UK’s Legal Ombudsman can provide a useful example if we do consider any changes in the future.