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Torts - Negligence - Standard of Care (3). N.S. v. Ukraine International Airlines PJSC
In N.S. v. Ukraine International Airlines PJSC (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from the trial judge's finding that the defendant to a class proceeding (and to numerous individual proceedings) had "failed to prove, on a balance of probabilities, that it was not negligent", which dictated that they are not damage-limited by the Montreal Convention (for air travel).
Here the court considers the negligent 'standard of care':(1) The Standard of Care
[25] The trial judge used the Supreme Court’s decision in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, to guide and structure her legal analysis of the standard of care, which she set out at paras. 150-158. She did not err in so doing. She drew on para. 28 of Ryan, where Major J. stated:Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. [26] The trial judge examined various sources to determine the legal and industry standards that inform the standard of care and heard expert evidence on them, including: International Civil Aviation Organization (“ICAO”) documents, International Air Transport Association Operational Safety Audit (“IOSA”) documents, the laws of Ukraine, the regulations of the State Aviation Administration of Ukraine, and the policies, procedures, guidelines and manuals of UIA.
[27] The trial judge found that compliance with UIA’s manuals or the laws of Ukraine was not sufficient to meet UIA’s standard of care in deciding whether to permit the flight of PS752 on the morning of January 8, 2020. To meet the standard of care, UIA was required to follow the guidance provided by the ICAO with respect to security risk assessments, safety risk assessments, and flying over or near conflict zones.
[28] More particularly, the trial judge determined that ICAO Document 10084 (“ICAO 10084”), entitled “Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones”, was the most relevant document applicable in the context of a security risk assessment relating to flights over or near conflict zones involving SAMs.
[29] ICAO 10084 prescribes standards, practices, procedures and guidance for assessing whether to permit flights over or near conflict zones. Appendix A of ICAO 10084 sets out the five factors most likely to be associated with an elevated level of risk of an intentional SAM attack on a civilian aircraft: (1) the use of military aircraft in a combat role; (2) the use of military aircraft and aircraft to transport troops or military equipment; (3) poorly trained or inexperienced personnel operating SAMs; (4) the absence of robust command and control procedures and air traffic management over the airspace; and (5) routing flights over or close to locations of assets of high strategic importance that might be considered vulnerable to aerial attack in a conflict situation.
[30] UIA acknowledged that ICAO 10084 was a relevant document for it to consider when conducting its security assessment of PS752. UIA had a Directorate of Aviation Security with three employees qualified to undertake security assessments. All three employees worked on the January 6 security assessment. Mr. Martynenko alone conducted the January 8 security assessment, apparently because it was the morning after Ukrainian Orthodox Christmas, and he did not want to disturb other employees who had spent the holiday with their families. He did consider ICAO 10084. The essential role of ICAO 10084 was confirmed by other experts who testified: John Edwards and Jonathan Gillespie.[4]
[31] The trial judge’s task was to interpret ICAO 10084 in the specific context of flight PS752. The task of interpretation, which in my view applies to texts generally, requires the court to consider the text of ICAO 10084, the context within which it operates, and its purpose: Piekut v. Canada (National Revenue), 2025 SCC 13, 502 D.L.R. (4th) 1, at paras. 42-43, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 117-18.
[32] I will turn to the text of ICAO 10084 momentarily. Its context is clear from its title: “Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones”. Its general purpose is set out in Chapter 1 in s. 1.1.1:1.1.1 This manual contains advice to States, aircraft operators, (civil and military) air navigation service providers (ANSPs), and other entities deemed appropriate on the subject of risk assessments for civil aircraft operations over or near conflict zones. It contains consolidated guidance to support implementation of relevant ICAO Standards and Recommended Practices (SARPs), ICAO guidance material and industry best practices. It covers the risk from both deliberate acts and unintentional hazards to civil aircraft operations over or near conflict zones. [33] The purpose of the manual is to assist airlines like UIA to assess risk and thereby to ensure the safety of civilian aircraft flying over, through, or near conflict zones. It focuses “primarily on the risk posed by long-range surface-to-air missiles (“SAMs”) as these are currently considered to pose the most significant risk to civil aircraft operating over or near conflict zones”: at s.1.1.3.
[34] The trial judge looked at the distinction between security assessments and safety assessments, at para. 221:When conducting risk assessments for flying over or near conflict zones, para. 4.1.2 of ICAO 10084 provides that “the characteristics of armed conflicts require a risk assessment process that should appropriately consider both security and safety elements”. Although security and safety assessments are different in nature, “they need to be complementary”:
Security deals with the intentional act to commit an act of unlawful interference, whereas safety is concerned with the management of hazards stemming from unintentional negative impact on the performance of the systems related to the operation. A comprehensive risk assessment process will address all potential actions involving implications for civil aircraft operations over or near conflict zones.
[Emphasis added.] [35] She concluded that, under ICAO 10084, a safety and a security assessment were both required in assessing the risk to PS752 when in or near a conflict zone: at para. 229. This conclusion was supported by Mr. Gillespie’s evidence, and also the IOSA Standards Manual. At paras 39-70 the court walks through the facts of the case respecting standard of care.
. Morales v. Laguardia
In Morales v. Laguardia (Ont CA, 2024) the Ontario Court of Appeal noted this in relation to sudden auto accidents:[12] We begin by noting, as did the motion judge, that in Gill v. Canadian Pacific Railway, 1973 CanLII 2 (SCC), [1973] S.C.R. 654, the Supreme Court of Canada stated, at p. 665:It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course. . Desrochers v. McGinnis
In Desrochers v. McGinnis (Ont CA, 2023) the Court of Appeal considered the negligence 'standard of care', here in a serious ATV accident:B. Breach of the standard of care and causation
The trial judge’s reasons
[23] The trial judge applied the correct approach to determining the appropriate standard of care as set out in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28:Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. . Musa v. Carleton Condominium Corporation No. 255
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court considered the contractual duties of the defendant as a factor in standard of care:[40] Finally, the appellant alleges that its decision to not salt the roadway until the entire condominium had been plowed was consistent with its winter maintenance contract with Carleton.
[41] It is trite law since Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.), that the duty to take reasonable care exists independently of any contractual obligation. In this case, the appellant’s liability is grounded in tort and the statutory provisions of the OLA.
[42] While a contractual provision may inform the assessment of, and in some circumstances modify, the standard of care, it is not determinative: see generally Mabe Canada Inc. v United Floor Ltd., 2017 ONCA 879, 74 C.L.R. (4th) 1, at para. 4. In this case, even if the winter maintenance contract were relevant, its plain language did not preclude the appellant from salting the roads concurrently with or immediately after plowing the snow. . Musa v. Carleton Condominium Corporation No. 255
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court considered the use of 'industry best practice' guidelines in establishing standard of care in a slip and fall case:[37] Relying on this court’s decision in Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302, the appellant complains that the trial judge erred in relying on the industry best practices from the Canadian Parking Association and the Transportation Association of Canada in setting the standard of care, since these guidelines are not mandatory. I see no merit in this submission.
[38] The respondent’s expert’s opinion relied on the guidelines and the trial judge was entitled to accept the opinion of the expert. In Fordham, this court concluded that the best practices guidelines did not establish a legally enforceable standard of care for civil liability regarding the installation of a traffic sign; however, the court’s conclusion turned on the particular facts of that case. In this case, the trial judge expressly acknowledged that “best practices guidelines are not strict rules or requirements mandated for all snow removal contractors in all situations.” This is consistent with this court’s treatment in Fordham at para. 53 that “the guidelines … are just that, guidelines. They do not establish a legally enforceable standard of care for civil liability.”
[39] The trial judge was nevertheless entitled to consider and accept these guidelines. Indeed, he found them to be of “great assistance” and relevance, as they spoke directly to the issues arising in the case before him, being the proper application of road salt to prevent ice formation in a slip and fall context. Those guidelines supported the expert’s opinion that Exact Post could have made sure that road salt was spread concurrently with or immediately after plowing. . Musa v. Carleton Condominium Corporation No. 255
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court considers the standard of review (SOR) for negligence 'standard of care' and 'duty of care':[25] ... In the negligence context, the determination of the duty of care is a question of law, and the application of the standard of care and the determination of the issue of causation are questions of mixed fact and law: Walters v. Ontario, 2017 ONCA 53, 136 O.R. (3d) 53, at para. 31. . 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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