Litigation Strategy and Claims Destined for Trial Despite the Risk Presented by Aron M. Bookman and Caroline Alexander January 2017 CLAIMS DESTINED FOR TRIAL AND WHEN TO RUN THEM 1. Claims that do not disclose a cause of action 2. Significant Liability Risk – All or Nothing Cases With No Established Precedent 3. Multiple Parties, Multiple Issues, No Defence Unity and a Key Issue Prevents Settlement LITIGATION OPTIONS 1. Application to Strike Pleadings – Rule 9-5 2. Summary Judgment – Rule 9-6 3. Summary Trial – Rule 9-7 4. Severance of Liability from Quantum Rule 12- 5(67) 5. Full Trial of All Issues IS A FULL TRIAL NEEDED TO RESOLVE THE CLAIM? EVIDENCE or ADVOCACY Evidence cases have clear legal framework and the court just needs the information to find the answer – ex. cost of future care or criminal cases Advocacy cases are ones where regardless of any dispute about what happened the real question is “Why does it matter if the allegations are true?” BAD FACTS DON’T ALWAYS MAKE BAD LAW • Pleaded facts don’t always give rise to a cause of action • Insured entities often face claims by self- represented litigants • Case Study: Bulwer v. CMHA (2016) – The key facts were not in dispute – How to defend a novel claim when the plaintiff should have pursued other avenues THE FACTS... • Canadian Mental Health Association offers apartment rental units at subsidized rates to persons suffering from mental health challenges • Plaintiff disruptive to neighbors issued eviction notice by defendant • Residential Tenancy Proceedings Commenced by Plaintiff. Plaintiff won. THE CLAIM • The claim: psychiatric harm caused by wrongful issuance of the eviction notice • Potential risk: technically a residential tenancy issue/human rights issue • Plaintiff attempted to frame his case in negligence for failure to properly investigate complaints against him STRATEGY • This was an Advocacy case because the question was: do the pleadings disclose a reasonable cause of action? • The critical task was framing the claim as one that could not survive, even assuming the facts in the pleadings as true • An application to strike does not allow the judge to weigh evidence OUTCOME Case dismissed: – Adequacy of a landlord’s grounds for serving an eviction notice jurisdiction of RTB – Landlord tenant relationships governed by contract/RTA – CMHA breached no duty and committed no negligence by pursuing its lawful rights under the RTA – Policy reasons for not finding a duty of care – philanthropic organizations may stop providing affordable housing if they are burdened with duties/liabilities not shared by other landlords TAKE AWAYS…. • Litigation Cost • Application for dismissal at early stage to avoid litigation cost associated with document production, examinations for discovery, applications, etc. • Risk: Potential Appeals – filed then abandoned by plaintiff in this case – Some plaintiffs pursue appeals, sometimes all the way to the SCC UNREASONABLE RISK • When Does Play Create An Unreasonable Risk Of Harm? • When is play too dangerous? INTERSECTION OF LAW AND PLAY • What constitutes unreasonable Risk? • Case Study: Thompson v Saanich (2015) – How do lawyers defend a claim that a child was hurt because the play was too dangerous? – The key facts were not in dispute! BASIC FACTS • Rebecca Thompson was 11 years old and registered in a day camp • During a break the kids from the day camp played a game called Grounders on the playground equipment • She fell from a 3 foot high platform and injured herself when she struck her head • Injuries were not insignificant WHAT IS GROUNDERS? • Essentially it is tag, where the child who is “it” is on the ground and tries to tag other children on the playground equipment • The children who are not “it” have their eyes open • If the child who is “it” goes onto the playground equipment they have to close their eyes WHERE WAS GROUNDERS PLAYED? WHERE DID REBECCA FALL? THE CLAIM • Grounders is inherently unsafe and should not be permitted • If Grounders is not inherently unsafe it was unsafe because of where it was played GENERAL LITIGATION STRATEGY – ADVOCACY CASE • This was an Advocacy case because the question was: Why does it matter that Rebecca was allowed to play Grounders? • The critical task was framing the case to provide a more coherent analysis of the law than the opposing party GENERAL LITIGATION STRATEGY – ADVOCACY CASE • It was not an Evidence case because although there are cases dealing with similar situations none of them are similar enough. As examples, there are cases about: – Gymnastics; – Piggy-back races; – Snowball fights; – Capture the flag; and – Tug of war GENERAL LITIGATION STRATEGY – ADVOCACY CASE A summary trial is the most effective way to argue an Advocacy case because the trial is basically argument – There is no distraction and drama of viva voce testimony – The law can be argued prior to the evidence – Evidence can be tailored to the analysis of the law – The “everything but the kitchen-sink” approach to evidence is less effective – Written submissions can be provided at the start of trial and include excerpts from the affidavits GENERAL LITIGATION STRATEGY – HOW DO WE MANAGE THE BIGGEST RISKS • Risk #1 - Sympathetic plaintiff – Severed liability from quantum – Emphasized legal principle: Evidence that an injury resulted is not evidence of an unusual risk of harm – Gathered evidence and made submissions about why it is important to let kids participate in physical activity and the risk of “bubble-wrapping” – Suggested a possible result of finding liability against Saanich would be the widespread banning of games similar to Grounders GENERAL LITIGATION STRATEGY – HOW DO WE MANAGE THE BIGGEST RISKS • Risk #2 – Common sense says kids should not be permitted to chase each other around on a playground with their eyes closed – The kid with their eyes closed was not the kid injured – Grounders is widely and frequently played with very few significant injuries OUTCOME: CLAIM DISMISSED “There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.” “… what occurred in this case was a most unfortunate accident for which no fault can be attributed to the District” CONCLUSIONS • Courts are deferential to historical records related to injury (“statistics”) • Although an injured child elicits sympathy it is important to put the specific situation in a broader context • Summary trial resolved the main barrier to resolution – liability. TAKE-AWAYS Litigation Points • It is important to frame a case in a manner that looks past a single incident and considers the wider context of what is best for society • Going to trial in situations that have clear facts when the law is uncertain provides an opportunity to manage the risk for future activities MAIN ISSUE STUMBLING BLOCK • Claims with multiple defendants, insurance issues in the background, and defendants unable to attempt settlement based on widely diverging liability opinions • Case Study: Boyes v. Wong et al. (2016) – How to defend a claim where defendants’ views on liability are irreconcilable BASIC FACTS • 10 month old infant suffered severe electrical shock and burns by putting an energized cord in her mouth resulting in life altering injuries. • The cord which caused the shock is known as a ‘suicide cord’ as it is a cord where the female end is spliced off and replaced with male end. • Typical use is where a ‘do it yourselfer’ makes an error putting up Christmas lights. THE CORD THE CABINET • The cord was under the base of a built in cabinet originally constructed in the mid- 1980’s as an entertainment center. • Whoever built the cabinet provided power to it by dropping the receptacle box which was on the wall (which was removed) into the base of the cabinet. • The cabinet was photographed before the incident and after. THE CABINET (PRE-INCIDENT) THE CABINET (POST INCIDENT) THE CLAIM • The infant plaintiff sued the owners and landlord on the basis of the Residential Tenancy Act and Occupiers Liability Act alleging negligence. • The main argument made was that the owners and landlord did not conduct reasonable inspections of the premises whereby the Cord would have been discovered. THE CLAIM • The Plaintiff and the owners/landlord sued the former owner of the home (our client) on the basis that the Cabinet with the Cord were constructed and installed when she owned and occupied the home. • The claim was framed in negligence and duty to warn. The only viable cause of action was a duty to warn. THE DEFENCES (OWNERS/LANDLORD) • The owners were absentee owners. • The landlord did not know there was a hazard though she dealt with move in/move out of tenants and necessary repairs. • The owners and landlord argued the Cord was a hidden hazard that they could not be reasonably expected to discover. THE DEFENCES (OWNERS/LANDLORD) • They presented expert testimony as to the standard of care of a property manager. • They argued that even if a reasonable inspection uncovered the male end of a cord and the receptacles in the Cabinet, a male end of a cord is usually innocuous and would not lead to further inspection. • In the alternative, they blamed the former owner. THE DEFENCES (FORMER OWNER) • The former owner admitted the Cabinet was constructed and used for over 10 years while she lived there and would have included the hidden main receptacle (not to Code). • The former owner denied that the Cord was installed in the Cabinet and argued that someone must have modified the Cabinet and installed the Cord after she sold the home.