Tag Archives: damages

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

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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.

In this case, the Plumage DOES Enter into it

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Mr. Davy purchased a parrot from Mr. Kidwai.  It was not a Norwegian Blue; it was an Eclectus.  Named Tiberius.  And he wasn’t pining for the fjords, but he was residing on the equally picturesque Salt Spring Island.

And in this case, the plumage DOES enter into it.

You see, this parrot started losing its feathers. Worried about its thinning plumage, Mr. Davy took it to a vet who informed him that the parrot had PBFD—Psittacine Beak and Feature Disease—and as a result now has a vastly reduced lifespan.  Tiberius is not yet an ex-parrot, but because of his PBFD he will run down the curtain and join the choir invisible much sooner than he otherwise would have. 

So Mr. Davy took Mr. Kidwai to the British Columbia Civil Resolutions Tribunal for having sold him a defective parrot.  Once we get past the irresistible similarities with the Monty Python sketch, the ruling in favour of Mr. Davy is quite interesting, and quite concerning for anyone who sells animals in Canada.

It is interesting, because the Member who decided the case found that Mr. Kidwai did not know, when he sold the parrot to Mr. Davy, that the parrot was sick.  So Mr. Davy’s action for fraudulent misrepresentation was dismissed. 

However, the Member went on to rule that BC’s Sale of Goods Act applied to the sale of this parrot.  The BC Sale of Goods Act specifies that goods sold in British Columbia must “be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale”.  Relying on a previous case from the Civil Resolutions Tribunal which involved a puppy that developed seizures, the Member held that for the parrot to be “durable” within the meaning of the Act meant that the parrot had to remain healthy for six months after the sale. 

Because the parrot got sick less than six months after he was sold to Mr. Davy, the implied warranty of durability prescribed by the Sale of Goods Act had been breached and Mr. Kidwai had to repay 75% of the purchase price (only 75%, because Mr. Davy apparently got some value from having Tiberius as a pet) and also had to reimburse Mr. Davy for the veterinary fees he incurred. 

This case is not binding on other courts in Canada, but it nevertheless sets a very worrying precedent for anyone involved in breeding or animal husbandry.  I think very many kennel owners or breeders of domestic pets would be surprised to learn that when they sell an animal they are guaranteeing the animal’s health for six months after it leaves their premises.  Especially because most, if not all, of the factors which affect the animal’s health are out of the control of the breeder at that point. Equally concerning is the potential liability: not just for the price of the animal, but also for the cost of the owner’s veterinary bills, which the seller has no input on or control over.  This quirky case stands as a warning of the potential downside risk when selling pets.

Two Inconsistent Hockey Cases from Ontario

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Does it help to have the right lawyer argue your case in court? We would like to think that it doesn’t matter: that the justice of the case will prevail, regardless of how persuasive your lawyer is.

Well, try telling that to Robbie Levita. He lost his personal injury lawsuit in 2015 in which he sued the guy who hit him from behind during the dying minutes of a rec-league hockey game. He has to be scratching his head at the more recently-released case of Casterton v MacIsaac, where Drew Casterton sued the guy who hit him during the dying the minutes of a rec-league hockey game and won a judgment for more than $700,000.00.

To find any substantial difference between Mr. Levita’s case and Mr. Casterton’s case is an exercise in splitting hairs very, very finely. Any difference between the cases is minor, while the similarities are striking:

LevitaCasterton
Playing in a “non-contact” recreational hockey league in OntarioPlaying in a “non-contact” recreational hockey league in Ontario
Signed a liability waiver in favour of the leagueSigned a liability waiver in favour of the league
Incident happened in the last minute of play, with his team trailingIncident happened in the last minute of play, with his team trailing
Hit by an opposing player while not in possession of the puckHit by an opposing player while not in possession of the puck
Suffered serious injuries, including a broken tibia and fibulaSuffered serious injuries, including long-term brain damage

To find any differences between these two incidents requires a fair degree of creative thinking. What tipped the results in either direction were the factual findings by the respective Judges. Mr. Justice Firestone found that that the guy who hit Mr. Levita did not do so with an intent to injure, while Madam Justice Gomery found that the guy who hit Mr. Casterton deliberately attempted to injure him, or was reckless about the possibility that he would do so. It was on these findings of fact that the respective cases turned.

The Casterton case shows that the Levita case could have easily turned out differently, and vice versa. One has to question how much of a role the advocacy of the respective lawyers played in these cases.

  • Did Mr. Casterton have more effective advocates than Mr. Levita?
  • Or, did the Defendant in the first case have more effective advocates than the Defendant in the second case?
  • Perhaps it was a combination of both?

At the same time, it may have been some other reason or reasons, completely unrelated to the effectiveness of counsel. Perhaps the Defendant in the Levita case came across as sympathetic and remorseful in a way that the Defendant in the Casterton case did not: we can only speculate. All the same, we cannot rule out the strong possibility that the effectiveness of counsel played some role in these two very similar cases ending up with very, very different results.