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  • Writer's pictureAaron Rosenberg

Cyclists Beware: Spring (Danger) is Around the Corner

On a fateful day in the Fall of 2011, Mr. St. Marthe (the “plaintiff”) was riding his bicycle to work at 7:30 a.m.

As he was riding westbound on Dupont Street, he approached a gas station and saw the defendant’s car nearing the exit-way. He was not sure of the defendant’s next move. The plaintiff was wearing earbuds, which he removed from his ears as he treaded closer to the gas station. The evidence was that he was cycling at “cruising speed” and was not in a hurry to get to work. As he passed the exit, the defendant drove out of the exit-way onto the road, striking the plaintiff on the right side and knocking him to the ground.

Seven long years later, the matter proceeded to trial in St. Marthe v. O’Connor, 2019 ONSC 1585. Since the defendant admitted liability, the key issues at trial were

  • the apportionment of contributory negligence (if any) to the plaintiff cyclist;

  • the amount of damages;

  • whether the plaintiff met the threshold of establishing a permanent serious impairment of an important physical, mental or psychological function; and

  • whether the plaintiff’s claim was outside the limitation period.

The case is useful for injured parties, allegedly at-fault defendants, occupiers, owners of property and insurers alike, as it deals with issues that commonly arise in this type of litigation.

Below are some of the key takeaways from this case:

Contributory Negligence: The plaintiff was not found to have contributed to his injuries, even though he was not wearing a helmet at the time. The defence creatively suggested that the lack of a helmet caused the plaintiff to fall awkwardly because he was trying to protect his head. However, the trial judge did not accept the causal connection, though noted that if the plaintiff had sustained a head injury, that would be a different question.

General Damages: The plaintiff sustained a chronic back pain (primarily on the right side) that was aggravated with physical activity. He initially received physio and massage therapy. Due to his immigration status, he did not have access to OHIP and thus, limited attendances at doctors, hospitals and walk-in clinics. The judge found that he will probably experience pain on a daily basis because he is prepared to “pay the price for his family and his own sense of self-worth”. He and his wife shared a passion for soccer and he played at a competitive level. He can no longer do that. The judge assessed non-pecuniary damages at $70,000. Applying the statutory deductible, the net award was $32,016.67.

Loss of Income: The plaintiff was 33 years old prior to the collision and in good health. He had worked in a landscaping business and another business tarping houses, but did not file tax returns and had no records of employment. He voluntarily decided not to return to work for several years while his young children were at home because he did not have Permanent Resident status nor a Work Permit. He ultimately returned to various forms of physical labour over the years. He remained tired and in pain at the end of a heavy workday. The trial judge awarded him past loss of income of $80,990 and future loss of income of $47,040 for a total loss of a total of $128,030.

Loss of Housekeeping / Home Maintenance: The judge found as a fact that the plaintiff would likely continue doing many of the housekeeping and home maintenance tasks despite experiencing pain and discomfort when he does so. However, the plaintiff and his family moved to Canada and he therefore had additional chores so the judge ruled that he was entitled to future loss of home maintenance expenses in the amount of $45,615.56, consisting of the cost of the tractor and equipment ($25,140.56) and the heavy home maintenance expense ($20,475).

Threshold: The trial judge ruled that the plaintiff met the threshold of establishing a permanent serious impairment of an important physical, mental or psychological function. The judge found he was disabled from employment as a construction worker.

Experts: Lately courts have been highly critical of experts’ independence and impartiality. In this case, the trial judge – Justice Hurley –at the end of his reasoned decision complimented one of the experts in a manner that will ring loud in the industry and serve as a reminder that judges are playing very close attention to the crucial issue of expert independence. It is worthwhile reviewing the final paragraph of the decision in its entirety:

[137] I wish to make a final comment about Dr. Bednar. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 28 (CanLII), Cromwell, J., in reiterating the long standing concerns about the independence and impartiality of expert witnesses, cited the observation made by Sir George Jessell, M.R. in a case decided almost 150 years ago: “undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them”. Despite subrule 53.03 (2.1) of the Rules of Civil Procedure, this remains a common concern, particularly in personal injury lawsuits, and the Court of Appeal has emphasized that trial judges must be vigilant in exercising their gatekeeping role to ensure that experts comply with their duty to the court to give fair, objective and non-partisan evidence: Bruff-Murphy v. Gunawadena, 2017 ONCA 502 (CanLII), 2017 ONCA502 (CanLII) and R v. Natsis, 2018 ONCA 425 (CanLII). Both in his reports and his testimony, Dr. Bednar displayed an exemplary commitment to independence and impartiality which deserves special recognition.

This case is an interesting one, confirming the notion that walking into a courtroom is like walking (or cycling) into a casino. The plaintiff was seeking damages well in excess of what was awarded. On the other hand, the defence pegged the income loss claim at $0 and argued that the claim did not meet the threshold. It is interesting as well that the case was tried without a jury, which is uncommon in the insurance / personal injury industry.

To read the full decision, click HERE:


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