Avoiding paper judgments for clients

Duty of occupiers to prevent crime and damages caused by third parties a route to justice

Avoiding paper judgments for clients
Linda Wolanski, senior associate at Bogoroch & Associates LLP

This article was produced in partnership with Bogoroch & Associates LLP

Mallory Hendry of Canadian Lawyer sat down with Linda Wolanski, senior associate at Bogoroch & Associates to discuss how the firm finds ways to ensure clients’ damages are recovered.

As a law firm advocating for victims of crime, Bogoroch & Associates LLP often face a practical problem: the culpable person may not have the ability to compensate the victim for the damages they have caused. This becomes an access to justice issue, and as counsel for the injured party, the firm must find a way to ensure that the client’s damages are recovered.

“These are cases where criminal acts have occurred, and while we sue the person who committed the violent crime, it is unlikely that you will collect from the criminal – that’s the issue,” says Linda Wolanski, senior associate at Bogoroch & Associates LLP. “But, if the incident occurred on someone’s property, they have a duty to provide reasonably safe conditions, and if they are insured, there’s a route to justice there. Based on legal principles and the facts of the case, we can establish the statutory duty of care and the breach against the party with an insurance policy that is collectible.”

The Occupiers’ Liability Act (OLA) sets out in law the statutory responsibility of the occupier. Under the act, “an occupier owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises and property brought on the premises by those persons are reasonably safe while on the premises.”

Proving a breach of duty under the OLA is fact-driven: you’ve got to know what facts can be proven, and that begins with the Examination for Discovery of the occupier of the premises where the incident occurred. Depending on the nature of the incident, Bogoroch & Associates LLP will determine the threats specific to the property and the appropriateness of the security planning and operations of the occupier. The firm then retains a security expert to provide an opinion as to whether the criminal act was reasonably foreseeable and ought to have been guarded against.

“The target becomes the owner and/or occupier who knew, or ought to have known, that there was a potential for violence on their premises, and who failed to keep our client safe when they entered their premises,” Wolanski says. “Practically speaking, getting access to justice for clients who require treatment and care is paramount.”

Bogoroch & Associates LLPs’ win in Wong v. Coffee Time as an example of a time the firm was able to establish liability on commercial premises and achieve justice for their client. The firm acted on behalf of a young man who was assaulted late at night by several individuals inside a 24-hour Toronto Coffee Time Doughnuts franchise. He sustained life-threatening injuries that required him to undergo multiple surgeries, and he was left with permanent deficits in his hand and foot.

Though the firm sued the individuals responsible for the violent act ­– and they were convicted of varying degrees of assault and battery offences under the Criminal Code of Canada – the impecunious and now incarcerated co-defendants were “basically judgment proof,” Wolanski notes. So the firm also sued Coffee Time, both as franchisor and franchisee, arguing it breached its obligations under the OLA because the store did not have reasonable and adequate security measures in place to keep their client safe while on their premises. Had they implemented proper security measures, the attack on their client would, on a balance of probabilities, have been deterred and prevented. Finally, they argued that the attack was reasonably foreseeable and Coffee Time should have been aware of the risk to its customers.

The jury concluded that the Coffee Time franchisor breached its obligations to Bogoroch & Associates LLPs’ client under the OLA by failing to review and monitor the franchisee’s operation of the business; by failing to provide direction to the franchisee regarding security measures and equipment; and by failing to provide direction for upgrades to security measures regarding the safety of customers; and by failing to adapt to the changing business environment of the franchisee.

The jury found the franchisee liable for failing to provide an environment that would give customers a sense of authority and oversight of the premises; for failing to adhere to the requirements set out in the Operations Manual of the franchisor; and by failing to ensure that the person working behind the counter on the night of the assault be provided with adequate directions to identify and deal with emergency situations. Specifically, the jury found that “the staffing was not proportionate to the considerable risks inherent to a late night shift.”

Ultimately the jury found breach of the OLA by both the franchisor and the franchisee, with the former found to be 14% at fault and the latter 11% at fault, for a total of 25% fault against the Coffee Time defendants. The decision was an important victory because most people tend to think the only person responsible for a violent act is the criminal, and while it’s obvious if someone stabs you that they’re at fault for causing damages to you, and they’re responsible for paying for those damages, “it comes back to the fact that you’re not going to collect from them if they’re in jail and without assets,” Wolanski says.

“In terms of our analysis, we’re always looking to advance a strong and sound legal case for our clients – it’s one thing to sue, but if you get a paper judgment, it’s a waste of time for your client. Here, by finding responsibility and establishing liability on Coffee Time, our client was compensated by the insurers of Coffee Time: that’s the victory.”

Linda Wolanski has over 30 years of experience in all aspects of personal injury litigation. She has handled many complex cases involving disability claims, medical malpractice, solicitor’s negligence, dog bites, slips and falls, product liability, and car accidents. Linda has successfully represented her clients in trials, private arbitrations, arbitrations at the Financial Services Commission of Ontario, hearings before the Canada Pension Plan Review Tribunal and hearings before the Workplace Safety & Insurance Appeals Tribunal. She is a member of The Advocates’ Society, the Canadian Bar Association and the Toronto Lawyers Association. She also serves on the executive of the Women’s Law Association of Ontario. Linda has lectured and written on various aspects of personal injury litigation for the Continuing Legal Education Programs organized by the Law Society of Upper Canada. She has also been an instructor at the Intensive Trial Advocacy Workshop at Osgoode Hall Law School.

 

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