The facts as accepted by the court were as follows.  The plaintiff was a gas station attendant who followed the defendant as she was slowly driving away without paying for gas.   The plaintiff was under the impression that the defendant simply forgot to pay.  The plaintiff put himself in front of the defendant’s vehicle with his palms out.  The defendant began revving the engine of her vehicle and inching it towards the plaintiff.  The plaintiff then proceeded to place his hands on the hood of the defendant’s vehicle.  The defendant accelerated, hitting the plaintiff in knee.

The court acknowledged that the plaintiff was reckless in placing himself in front of the defendant’s vehicle and putting his hands on the hood.   However, the court found that the defendant was entirely to blame for the incident

At paragraph 33 the court found that:

[The defendant] was there to be seen, as was the plaintiff. It was not reasonably foreseeable   that [the defendant] would drive into [the plaintiff].

It follows that the plaintiff may not be found contributory negligent applies even if the plaintiff puts his hands on the defendant’s vehicle and even if the defendant acts in a matter that indicates that she will accelerate.

The plaintiff Guiliani and his friends were driving past the defendant when the defendant “gave them the finger”.  An invitation to fight ensued and the defendant escaped by getting into his vehicle and speeding off.  The plaintiff proceeded to stand in the roadway waiting for the defendant to return.  The court accepted that the plaintiff was standing in the roadway in order to identify the defendant when he returns and to take down the defendant’s license plate number.

When the defendant finally returned, he was approaching the plaintiff at an accelerated speed.  The plaintiff continued to stand in the roadway despite having ample opportunity to get out of the way of the defendant’s vehicle.  The trial judge accepted the evidence that the plaintiff did not move until the car was virtually upon him and it was too late to get out of the way.

The trial judge found that the plaintiff was 30% responsible for his injuries.  The court of appeal reversed the finding of contributory negligence. At paragraph 10, it held that the trial judge reached her conclusion:

 “without regard for the flagrant and almost unforeseeable   conduct of the defendants and without regard for the fact that the defendant had ample room to steer clear of the plaintiff.”

The court rejected the submission that having regard to the previous altercation between the parties the plaintiff should have known that standing in the path of the defendant’s vehicle was particularly dangerous.

At paragraph 11, the court stated that:

the plaintiff could see the defendant coming but it was not reasonably foreseeable   that the defendant, who could see him equally well, would continue to drive towards him at an accelerated speed.

In Carr, the plaintiff was operating his vehicle directly in front of the defendant’s vehicle.  Suddenly, the plaintiff stopped his vehicle and got out.[1]  The plaintiff approached the defendant’s vehicle with a six-inch combat knife.  The plaintiff punctured the front left wheel of the defendant’s vehicle and proceeded (knife-in-hand) towards the defendant’s driver door. The defendant escaped the situation by sharply accelerating around the plaintiff’s parked vehicle and away from the plaintiff.   In the process of driving around the plaintiff’s vehicle, the defendant’s vehicle made contact with the plaintiff, causing a severe tibia-fibula fracture.

At paragraph 22, the court found that the defendant had not discharged the onus to prove that the plaintiff’s damages were sustained without any negligence on the defendant’s part.

The court accepted that the plaintiff’s conduct put the defendant in a justifiably perceived situation of emergency.   However, the court concluded that the defendant did not need to accelerate sharply from a stopped position and a lower rate of speed would have permitted the plaintiff to avoid contact.

The court found the defendant negligent and the plaintiff contributory negligent.   In accordance with Section 4 of the Negligence Act the court apportioned the liability 50/50.

Facts

Ms. Toussaint had come from Grenada in 1999 on a visitor’s visa and never left. She worked until 2006 when her health began to deteriorate and she could no longer work. In order to receive medical benefits, she needed to legitimize her immigration status. In 2008, she attempted to apply for permanent or temporary residency status. She also applied to have the application fees waived but was denied, and so the applications were never processed. In 2009, she applied for benefits under the Interim Federal Health program, in which Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada under an Order in Council. She was denied coverage because of her illegal immigration status.

She brought an application for judicial review and made the case that a denial of coverage infringed her rights under ss. 7 and 15 of the Charter. The Federal Court dismissed her application, as did the Federal Court of Appeal. As mentioned, the Supreme Court of Canada refused leave to appeal. The crux of the decision in both courts was summarized by Stratas JA. in the FCA decision.

If the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.

This is a summary of the FCA decision.

Order in Council Interpretation

The Order in Council (OIC PC 1957–11/848) reads:

The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of:

(a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and

(b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer,

in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare.

The Director, Program Management and Control, Health Management Branch decided Ms. Toussaint’s initial application for medical coverage. In his decision, he stated:

The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients:

• Refugee claimants;
• Resettled Refugees;
• Persons detained under the Immigration and Refugee Protection Act (IRPA); and,
• Victims of Trafficking in Persons (VTIPs).

As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved.

Ms. Toussaint argued, first, that “immigrant” in paragraph (a) of the ought to mean "a person who seeks admission to Canada for permanent residence” and that she was in the process of apply for permanent residence. Stratas JA did not accept this interpretation, and instead relied on the definition of an immigrant as set out in the Immigration Act, where

(i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or

(ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.”

Ms. Toussaint did not fulfill this definition. Stratas JA stressed that the OIC was focused on providing coverage for those who were entering Canada for the first time. The applicant was a visitor who had decided to remain in Canada contrary to immigration laws.

Paragraph (b) of the OIC refers to any “person”, rather than immigrant. Stratas JA again agreed with the Federal Court’s decision in interpreting this paragraph.

However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.

The FCA thus agreed with the interpretation of the OIC as excluding Ms. Toussaint from coverage.

Charter Challenges

s. 7 Right to Life and Security of the Person

Ms. Toussaint argued that her exclusion from medical coverage infringed on her right to life and security of the person under s. 7 of the Charter. The court agreed that, despite receiving emergency surgery and life-saving medication without having to pay, Ms. Toussaint was exposed to serious health risks. However, the court did not accept that the Order in Council was the operative cause of the injury to her rights to life and security of the person. (See TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114) Rather, the court suggested that the applicant’s own conduct endangered her life, and that had she acted legally and obtained proper immigration status, she would have been entitled to coverage.

Principles of Fundamental Justice

Ms. Toussaint also argued that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.” Stratas JA rejected this argument as well. In doing so, he cited the broad finding in Chaoulli by McLachlin CJC that the Charter does not confer a freestanding constitutional right to health care (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para. 104). Also,

The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 169 at para. 36.)

The court also did not accept an argument that the Order in Council’s exclusion was arbitrary. (at para. 83) Stratas JA took these findings as support that there is no recognized principle to fundamental justice under s. 7 that the applicant receive medical care.

s. 15 Discrimination Under Enumerated and Analogous Grounds

Stratas JA rejected the argument that the applicant had been denied coverage was contrary to s. 15. With regards to discrimination on analogous grounds, he commented

“Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. (at para. 99)

A final policy comment was made by the court.

If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.

The Plaintiff took the position that new facts may have come to light as a result of the report and that the Plaintiff was entitled to examine the Defendant with respect to these facts.  Pennell J. agreed with the Plaintiff.  He found that:

The court has jurisdiction to order further discovery where the examination already had has [sic] failed to give the party seeking it the discovery to which he is entitled. To the making of that appraisal one can do little more than offer suggestion of example. Justification for such an order includes the following: “[Where] special grounds are shown”: Martin v. Deutch et al., [1943] O.W.N. 774, [1943] 4 D.L.R. 798; “[Where] it is in the interest of justice”: Standard Trading Co. v. Seybold (1904), 7 O.L.R. 39; “Where justice so requires”: Hellofs v. Royal Bank of Canada, [1940] 1 W.W.R. 6.

Pennell J. did not specify whether a second ED was granted in accordance with special grounds or in the interests of justice.

Callaghan J. allowed the appeal.  He found that the information was significant to the issues at trial and that the Defendants were entitled to a second ED.  He offered no further elaboration.   Presumably, the evidence of alcohol in the blood of the deceased created a substantial new issue which the Defendant was entitled to address in an ED.

In Anand, the plaintiff suffered injuries as a result of an MVA.  In the ensuing action, the plaintiff was seeking damages for future income loss.  She submitted evidence to the effect that she was going to work at least until the age of 65.  The defence tendered two expert reports.  One of the reports was conducted by Mr. Pesando. It employed statistics to examine the retirement pattern of Canadian females and the relationship between disability and age (Pesando evidence).  The Pesando evidence did not specifically address the plaintiff and offered no opinion on her retirement prospects.

The plaintiff took the position that she was the best instrument with which to judge the date of her projected retirement and the statistics were not sufficiently relevant to be admitted.

The trial judge found that the statistics should not be given much weight and that the jury should be instructed accordingly.  However, he also found that the probative value of statistical evidence outweighed its prejudicial effect.  Both reports had been accepted as evidence.

The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be prejudicial to the opposite side that any probative values overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence … The matter is always one which is difficult for the trial judge and in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.

Draper did not offer a framework in which to weigh the probative value and the prejudicial effect of the tendered evidence.

Carteris was the lead female actor for the television series “Past Tense.” During a fight scene with actor Adrian Hughes on February 7, 2006 in Langley, B.C.,  Carteris claims to have suffered damages to her nerves as a result of prolonged choke positions over several hours.

An interview with ET where Carteris describes the injuries can be found here. The Statement of Claim, issued July 9, 2008, is available from TMZ.

A provisional application for workers’ compensation benefits was submitted on May 4, 2006, but was suspended when she did not elect to claim compensation. The employer’s report stated that Carteris was employed on a contractual basis.

Counsel for the applicants brought an application before the Workers’ Compensation Appeal Tribunal (WCAT) pursuant to s. 257 of the Workers Compensation Act,

Certification to court

257  (1) Where an action is commenced based on

(a) a disability caused by occupational disease,

(b) a personal injury, or

(c) death,

the court or a party to the action may request the appeal tribunal to make a determination under subsection (2) and to certify that determination to the court.

(2) For the purposes of subsection (1), the appeal tribunal may determine any matter that is relevant to the action and within the Board’s jurisdiction under this Act, including determining whether

(a) a person was, at the time the cause of action arose, a worker,

(b) the injury, disability or death of a worker arose out of, and in the course of, the worker’s employment,

(c) an employer or the employer’s servant or agent was, at the time the cause of action arose, employed by another employer, or

(d) an employer was, at the time the cause of action arose, engaged in an industry within the meaning of Part 1.

(3) This Part, except section 253 (4), applies to proceedings under this section as if the proceedings were an appeal under this Part.

WCAT has sole jurisdiction to determine whether a personal injury is work-related, and in B.C. the Workers Compensation Board, WorkSafeBC, has sole jurisdiction over injuries arising in the course of employment. More on the purpose of these determinations are described by WCAT here.

Carteris was employed by Gabco, her own loan-out company which she fully owned and directed.  All of Gabco’s income was generated by Carteris’ acting services, and all of its expenses were associated with these same services. Neither Carteris or Gabco had private insurance or had registered for Workers’ Compensation.

The Board referenced the Assessment Manual, which states,

(c) Principals of corporations or similar entities
As the incorporated entity is considered the employer, a director,  shareholder or other principal of the company who is active in the  operation of the company is generally considered to be a worker under  the Act….
If a sole, active principal of a limited company is injured at a time when the  company was not registered as an employer with the Board, the principal  will not be considered a worker at that time and a claim by the principal or  his or her dependents will be denied.

The Board also looked at Practice Directive 1-1-3 (A), which provides a hierarchical analytical framework in distinguishing a worker and an independent operator. Carteris would often do work for multiple films simultaneously, meeting the definition of a “labour contractor.”

The Board determined that because Carteris had not registered with the Board she was acting as an independent operator rather than a worker and did not fall within Part 1 of the Act. Because her injuries arose outside the course of the employment within the scope of Part 1, she will now be able to proceed in her tort claim before the courts.

Gabrielle Carteris v. Central Myth Pictures Ltd. Et Al

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.