Unfortunately, thousands of people are injured in Ontario in car and truck accidents every year. Negligent driving can cause injuries, sometimes with long-term implications. These can be physical, such as a fracture or broken bone, or psychological, for example anxiety, post-traumatic stress disorder or difficulty concentrating. Recovery and taking time off work can lead to significant financial losses.

The recent case of Labrosse v Jones is unusual in that the plaintiff is the car accident victim’s mother and she was not physically present at the scene of the accident. She claims to have been an auditory witness and to have suffered psychological injury.

The defendant applied to the Superior Court of Justice of Ontario to have the case thrown out, arguing that there was no genuine issue requiring a trial. Justice MacLeod disagreed, finding that while this was “a novel claim” that “faces considerable hurdles”, there were several genuine issues to be adjudicated. 

Plaintiff’s daughter suffers injuries in a car accident

In 2014, the plaintiff’s daughter sustained physical injuries as a result of a significant rear-end motor vehicle accident near Hamilton, Ontario. The daughter phoned the plaintiff, who was in Ottawa, immediately after the accident. She was injured, trapped in the vehicle because the driver’s door was damaged and in a state of panic.

The plaintiff listened to her daughter in distress attempting to deal with the situation, which was exacerbated by the behaviour of the defendant, the driver of the at fault vehicle, who allegedly behaved in a threatening manner. In 2018, the plaintiff was diagnosed with other trauma and stressor-related disorder, which has limited her employment capacity, effectiveness in social activities and the performance of daily living activities.

In her case, the plaintiff claims to have been:

present at the scene of the accident in the aftermath of the accident by means of a mobile telephone and as a result of the catastrophic injuries inflicted upon [her daughter] in the accident, the plaintiff … has suffered psychological injuries.

What is summary judgment?

The defendant claimed that the plaintiff had no cause of action and that even if she did, it would be statute-barred for exceeding the limitation period. As such, he sought summary judgment.

According to rule 20.04(2)(a) of Ontario’s Rules of Civil Procedure, a summary judgment may be granted by the court where “there is no genuine issue requiring a trial with respect to a claim or defence”. This allows the court to dispose of some cases, without the need for a formal trial.

Is the plaintiff’s injury from being involved in the accident by telephone actionable against the defendant?

In any negligence case, the plaintiff must establish that they fall within a class of individuals to whom the defendant owes a duty of care. If that is established, the court will consider whether the plaintiff can prove damages that are causally connected to a negligent act or omission and are not too remote.

The plaintiff argued that the law recognizes a duty of care towards bystanders that are physically present at an accident and suffer psychological injury. The relevant question was whether the duty of care to a bystander extends to a family member called by the victim for assistance?

Justice MacLeod said that it appears far-fetched to include a person phoned by an accident victim in the same class of person who is present at an accident. The plaintiff’s lawyer could not point to any cases where such a duty of care was found, leading his Honour to the finding that there was no established duty of care for highway users that would create liability for individuals contacted by victims during or after an accident. 

However, Justice MacLeod refused to rule out the possibility of liability and held that the evidence was sufficient to establish that there were facts that could lead to a finding of liability. His Honour said:

it is difficult to justify a distinction between a plaintiff who was present at an accident and saw or heard it and a plaintiff that was able to hear the accident while connected by a car phone. The foreseeability analysis at either the duty of care stage or at the remoteness of damages stage in a novel case may require nuanced findings of fact that are genuine issues best resolved at trial. 

Is the action time-barred? 

According to section 4 of the Limitations Act 2002 and subject to exceptions, a proceeding must be commenced by the second anniversary of the day on which the “claim was discovered”. Section 5(1) sets out a complex test for determining this day. A claim is discovered on the day that the plaintiff first knew, or ought to have known, of four matters: (i) that the injury, loss or damage occurred, (ii) that it was contributed to by an act or omission, (iii) that the act or omission was that of the defendant, and (iv) that a proceeding would be an appropriate means to seek to remedy it. There is a statutory presumption in section 5(2), which provides that the claim is deemed to be discovered on the date that the negligent act or omission took place unless the contrary is proved.

Justice MacLeod held that the date of discovery was a genuine issue that needed to be determined at trial. The plaintiff claimed that she only recognized her own injury in 2017 and only knew that a proceeding would be appropriate in 2018 after receiving a doctor’s report which contained a diagnosis and opinion that the injuries were likely to be permanent. Whether she should have recognized this earlier would need to be determined at trial. As such, the Court dismissed the defendant’s application for summary judgment.  

At Tierney Stauffer LLP, we understand that car and motor vehicle accidents are extremely stressful, especially when they result in injury. Finding a personal injury lawyer to help you seek compensation will help streamline the process and ensure your legal rights are protected. 

We represent clients in Ottawa, Arnprior, Kingston, Cornwall, and North Bay. To find out how we can help you move forward with your life after a car accident injury, call us at 1-888-799-8057 or reach out online to set up a consultation today. 


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