Interesting Judgments (Civil Law Cases)

Defamation Law Cases

Uppal v Diler, [2012] O. J. No. 2713

Facts:

  • A dentist’s former patient had sent defamatory emails to that dentist.  The former patient also uploaded postings onto YouTube and made (negative) statements about the dentist on the website for the Association of Dentists.

Issue:

  • Does the former patient have to pay money to the dentist (for making the negative remarks about the dentist)?

Decision:

  • The Ontario Superior Court of Justice (Small Claims Court) awarded $22,000 for a plaintiff dentist against the dentist’s former patient.
  • The Court held that the former patient was deliberately campaigning to harass the dentist and smear his reputation.
  • Interestingly, the Court said that it would have awarded $45,000.00, but the dentist did not seek this amount in his claim.

Health Law Cases

Halkyard v. Mathew, 2001 ABCA 67

Facts:

  • A woman died following a hysterectomy performed by the defendant physician, who had epilepsy.
  • After the woman’s death, the husband sued the doctor and claimed that his wife had not given informed consent.  In other words, the husband was arguing that his wife would not have consented to the surgery had she known about the doctor’s epileptic condition.
  • The doctor did NOT suffer an epileptic seizure during the operation; his condition did not impact the surgery (at all).

Issue:

  • Should the doctor have disclosed his epileptic health condition?

Decision:

  • The Court decided that the doctor did not have to disclose the epileptic condition as the condition was controlled by medication.

Hopp v. Lepp, [1980] 2 S.C.R. 192

Facts:

  • A patient underwent a disc operation with an orthopedic surgeon.  The surgery was unsuccessful and the patient sued the surgeon.
  • It was the surgeon’s first operating after obtaining his specialist licence.
  • The patient sued the surgeon, alleging that he hadn’t given full, informed consent to the surgery (as he didn’t know that it was the surgeon’s first surgery).

Issue:

  • Did the surgeon have to disclose to the patient that it was his first operation since being certified?

Decision:

  • The Court found that the surgeon was under no obligation to disclose that it was his first such surgery after becoming certified.

Insurance Law Cases

Audet v. Industrielle-Alliance, Cie d’Assurance Sur la Vie, [1990] R.R.A. 500-502 (C.S.)

Facts:

  • In this Quebec case, the insured individual failed to disclose that he carried a genetic mutation associated with myotonic dystrophy, a degenerative disease, which is not always disabling (i.e. which is asymptomatic).
  • The insurance company argued that the genetic information should have been disclosed.

Issue:

  • Should the insured individual have disclosed that he carried a genetic mutation to the insurance company?

Decision:

  • The Court found that the insured individual should have disclosed the genetic mutation.
  • The life-insurance contract was annulled, even though the cause of the insured’s death, an automobile accident, was unrelated to the genetic mutation.
  • In effect, the insurance company was permitted to make distinctions based on genetic information.

Personal Injury Law Cases

Mustapha v. Culligan of Canada Ltd., 2008 SCC 17

Facts:

  • Mr. Mustapha saw a dead fly in an unopened jug of water supplied by Culligan.
  • Mr. Mustapha and his family had consumed Culligan’s water for the past 15 years (but did not drink the “fly water”).
  • Mr. Mustapha became obsessed about what he had seen and was concerned about the health implications on his family (for drinking the water in the past). Mr. Mustapha was later diagnosed with major depressive disorder with associated phobia and anxiety.

Issues:

  • Can Mr. Mustapha receive compensation for his injuries/damages as a result of seeing the dead fly in Culligan’s water?

Decision:

  • Mr. Mustapha’s claim failed because his reaction to the dead fly was very unusual (and a typical person would not have reacted the same way).

Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122

Facts:

  • In August, 2007, two women went on a zip-line tour operated by Cougar Mountain Adventures Ltd., located at Whistler, BC.
  • The zip-lining rides at Whistler were over 1,500 feet long, 200 feet high, and boasted a 200 foot vertical drop. Customers could reach speeds of 100 km/hour.
  • One of the women was told to go down the line (by the guide). However, the other woman was still suspended on the line (and had not yet cleared the way). The women then collided with each other on the line, causing injury to both women.
  • The mid-air collision was entirely caused by a miscommunication between the tour guides and the only defence to Cougar Mountain was that both women, prior to riding the zip-line, signed a waiver releasing Cougar Mountain from liability.

Issue:

  • Does the fact that the two women signed a waiver allow Cougar Mountain to escape (financial) responsibility for the injuries/losses suffered by the two women (with Cougar Mountain being completely negligent)?

Decision:

  • The waiver was found to be a complete defence and, despite the negligence of the guides/company, the women were not entitled to any money from Cougar Mountain.

Commentary:

  • This is a contentious (and disappointing) area of the law in British Columbia.
  • Under the current status of the law, B.C. sports providers/companies are able to escape liability when they completely ‘screw up’ in keeping their customers safe.
  • By comparison, in the United Kingdom and in some states in America, the law doesn’t allow people/companies to rely on waivers when they cause death or injury resulting from their negligence.

Liebeck v. McDonald’s Restaurants, P.T.S. Inc., 1995 WL 360309 (N.M. Dist.))

Facts:

  • In 1992, Ms. Stella Liebeck, a 79-year-old woman, ordered a cup of coffee from the drive-through window of a McDonald’s restaurant located in Albuquerque, New Mexico.
  • Ms. Liebeck was a passenger in a vehicle driven by her grandson.
  • After receiving the coffee, her grandson drove forward and parked, allowing Ms. Liebeck to add sugar and cream.  She placed the coffee between her knees and, in the process, she spilled the entire coffee on her lap.
  • Ms. Liebeck scalded her thighs, buttocks, and genital and groin area.
  • She was taken to the hospital and suffered third degree burns to six percent of her skin.
  • She reportedly stayed in the hospital for over one week, underwent skin grafting, lost nearly 20% of her body weight, and suffered from two further years of medical treatment.
  • At home, coffee is often served at approximately 140°F (60°C). At trial, it was found that McDonald’s restaurants were serving coffee at 185°F (85°C), plus or minus 5°F, capable of causing serious, third-degree burns in under ten seconds.
  • McDonald’s cited the following two reasons for serving its hot coffee:
    • Coffee purchased through the drive-through window was typically sold to commuters who drove a distance with the coffee. As a result, the higher temperature would keep the coffee hot during the trip.
    • Keeping the coffee at the high temperature promoted optimal taste.
  • Some speculate that the higher temperature was intended for a profit motive, such as slowing consumption, thereby reducing the demand for free refills.

Issue:

  • Is McDonald’s liable to Ms. Liebeck for causing the injuries, even though Ms. Liebeck spilt the coffee on herself?

Decision:

  • A jury, who was composed of community members and who heard from medical experts, awarded $200,000.00 in compensatory damages, compensating Ms. Liebeck for her medical expenses and the significant impact/limitations that she had to endure. However, this amount was reduced to $160,000.00 in recognition that she was also responsible for her injuries.
  • In addition, the jury awarded $2.7 million in punitive damages. Punitive damages are NOT intended to compensate an injured person; instead, they are intended to punish the defendant and deter it (and other potential defendants) from committing similar wrongful acts in the future. McDonald’s put consumer safety at risk; the judge called its conduct willful, callous, and reckless.
  • The jury’s intention behind the particular amount was reportedly to penalize McDonald’s for one or two days’ worth of coffee revenues, which, at the time, was approximately $1.35 million per day. However, in the end, the punitive damages award didn’t stick; the trial judge reduced the amount to $480,000.00, three times the compensatory award.
  • In total, at the end of the trial, Ms. Liebeck was awarded $640,000.00.

Commentary:

  • McDonald’s appealed the decision and, before the appeal was decided, the parties settled for an undisclosed amount, reportedly much less than the trial award.
  • At trial, it was found that, between 1982 and 1992, McDonald’s received more than 700 claims of coffee burns, many similar to Ms. Liebeck’s, and McDonald’s reportedly paid out large dollars to settle these claims.
  • McDonald’s now serves its coffee at lower temperatures.

Political-Related Cases

Askin v. Law Society of B.C. and Attorney General of B.C.

Facts:

  • The British Columbia provincial government appointed a non-lawyer, the Hon. Ms. Shirley Bond, as the province’s Attorney General, which is arguably the “top legal” position in the province.
  • A courageous citizen from Burnaby, Ms. Lesslie Askin, made a complaint to the Law Society of BC, arguing that the Hon. Ms. Bond lacks education and training to hold the Attorney General’s office.
  • The Law Society took the issue seriously; but, decided that it did not have jurisdiction to say that the appointment was improper.
  • Ms. Askin took the matter to B.C. Supreme Court. Among other things, she requested an order from the Court that the appointment of the Hon. Shirley Bond was improper.

Issue:

  • Can a non-lawyer be the Attorney General, the “top legal” position in British Columbia?

Decision:

  • The Court, Madam Justice Stromberg-Stein, dismissed Ms. Askin’s complaint, indicating that the government CAN appoint a non-lawyer as the Attorney General.
  • The Court said that neither it nor the Law Society can tell the government who to appoint as the Attorney General; to do otherwise would interfere with government’s power to appoint its ministers.

Real Estate Law Cases

Gronau v. Schlamp Investments Ltd., [1974] M.J. No. 223

Facts:

  • In this Manitoba case, the seller of a home actively concealed a significant crack in a wall, knowing that the defect was serious.
  • After the sale of the home completed, the purchaser discovered the issue and sued the seller.

Issue:

  • Is the seller responsible to the purchaser for the defect?  Put another way, should the seller have told the purchaser about the crack in the wall?

Decision:

  • The seller should have disclosed the crack in the wall.
  • The Court ordered that the contract be rescinded (i.e. undone).

Sevidal v. Chopra, [1987] O.J. No. 732

Facts:

  • In this Ontario case, the sellers of a property concealed that radioactive material was found in the neighbourhood and that there was a “hot spot” across the street from the property.
  • After the sale completed, the purchasers discovered the problem and sued the sellers.

Issue:

  • Should the seller have disclosed that radioactive material was found in the neighbourhood?

Decision:

  • The Court found the sellers liable for damages.

Stambovsky_v._Ackley, 169 A.D. 2d 254 (NY App. Div. 1991)

Facts:

  • In this New York case, neither the seller nor the seller’s realtor revealed to the purchaser that the subject home was allegedly haunted, as reported in newspapers, as well as in Reader’s Digest.
  • After the sale completed, the purchaser discovered the rumours/publicity and sued the seller (for not disclosing the alleged hauntings).

Issue:

  • Should the seller have disclosed the alleged hauntings to the purchaser, even though the hauntings are very improbable?

Decision:

  • The sellers should have disclosed the alleged hauntings and, as a result, the Court rescinded (i.e. repealed) the contract for selling the house.
  • It was irrelevant whether the house was actually haunted. It was, however, relevant that there was publicity regarding the haunting, which impacted its value. It was also relevant that the purchaser could not have discovered poltergeists from inspection.
  • Put simply, the purchaser did not get what he paid for.

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