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Torts - Negligence - Standard of Care (3)

. Moran v. Fabrizi

In Moran v. Fabrizi (Ont CA, 2023) the Court of Appeal considered an aspect of standard of care in negligence, here the "agony of the moment" 'defence':
[22] The doctrine of “agony of the moment” can provide a defence that goes to the standard of care element of negligence. The defendant can use it as a shield against responsibility for conduct in a situation of emergency or panic. The doctrine is referred to as “agony of the moment”, or “agony of collision”, or “emergency”, and it can be used to excuse a defendant’s conduct that might otherwise be considered negligent: Erika Chamberlain & Stephen Pitel, eds, Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022), at p. 589. The doctrine was considered in this Court’s decision in Isaac Estate v. Matuszynska, 2018 ONCA 177, 23 M.V.R. (7th) 173, particularly at paras. 27-28, although there it is referred to as the “doctrine of emergency”. The motion judge in Isaac Estate referred to the “agony of the moment” doctrine at para. 102 of her decision, citing from Fleming in the Law of Torts, 6th ed. (Sydney: Law Book Co., 1983).
. Aylmer Meat Packers Inc. v. Ontario

In Aylmer Meat Packers Inc. v. Ontario (Ont CA, 2022) the Court of Appeal considered a lawsuit by an abattoir against the province:
[63] The standard of care in negligence is set by what a reasonable person would do in similar circumstances: Hill, at para. 69, Nelson, at para. 91. This rule applies to both private and governmental actors: Nelson, at para. 92, citing Just, at p. 1243. Perfection is not required. In Hill, for example, the applicable standard was that of a reasonable police officer. The standard of care accommodates the exercise of professional discretion, but this must “stay within the bounds of reasonableness” or “within the range of reasonableness”. This is the margin of manoeuvre afforded to regulators. The standard of care also permits “minor errors or errors in judgment”: Hill, at para. 73.

[64] The elements to be taken into account in determining the standard of care include “the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to prevent the injury, external indicators of reasonable conduct (including professional standards) and statutory standards”: Hill, at para. 70.

[65] Put simply, the standard of care applicable to the Ministry and its officials is that of a reasonable health and food safety regulator. Ordinarily, expert evidence is required to prove a professional standard of care and any breach, but not always. Sometimes, as in this case, the plain facts are enough to meet the test of common sense: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, per Brown J., at para. 2.
. Chuang v. Fogler Rubinoff LLP

In Chuang v. Fogler Rubinoff LLP (Ont CA, 2022) the Court of Appeal considered and rejected a lame defence to a solicitor negligence claim:
[24] The motion judge was right to reject the appellants’ position that, despite the professional advice they consistently received from the appellants, the respondents ought to have figured out for themselves that they had a claim against the very lawyers who were advising them. In essence, the appellants purport to rely on this misplaced trust to establish earlier knowledge of a potential claim.

[25] In Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, Epstein J.A. (in dissent, but not on this point) recognized the “perversity” of such a position. As she explained, at para. 44:
To tell the appellants that they made the mistake of relying on their own lawyers and then allow these lawyers to use this erroneous reliance to support their position that the action was commenced out of time would reward a particularly pernicious violation of solicitor-client trust.
. Farej v. Fellows

In Farej v. Fellows (Ont CA, 2022) the Court of Appeal considered standard of care in a medical malpractice negligence case:
[98] The trial judge correctly identified the applicable standard of care (paras. 230-38) – did Dr. Fellows exercise the degree of skill and knowledge expected of an average competent obstetrician in the circumstances: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 46. ....


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