The mother of all slip-and-falls


From Tuesday’s Globe and Mail
Published Tuesday, Nov. 02, 2010 6:07PM EDT
Last updated Tuesday, Nov. 02, 2010 6:08PM EDT

An ice storm turned Montreal’s downtown streets into a skating rink in early December, 2004. But crews distributing salt or sand to keep the roads and sidewalks safe were few and far between.

The city’s notoriously militant workers’ union had staged an illegal walkout to protest a new dispatch system brought in by the city. The union, defying an essential services order, even mixed up the keys to the salt trucks to ensure any effort to make the streets safe were hobbled.

Grace Biondi, 53, who answers customer service calls for Royal Bank of Canada, was on her way to a doctor’s appointment at Royal Victoria Hospital when she fell hard, smashing her face on the ice.

“A passerby helped me out and brought me [to the emergency room] … I felt really knocked out,” said Ms. Biondi, who suffered a concussion.

The vivid bruises on her face eventually faded. But she had severe headaches for months afterward, forcing her to miss work. So she sued.

Ms. Biondi became the lead plaintiff in a class action that recently resulted in an extraordinary judgment in the Quebec Superior Court. In September, a judge ordered the union to pay $2-million in punitive damages, and ordered both the city and the union to compensate anyone who suffered a serious fall during the week of the storm. At least 70 people have joined the suit so far.

The ruling is being appealed. But the case disproves the old adage that you can’t fight city hall. Some observers say the ruling, if it stands, could be used in other class actions – in Quebec but possibly elsewhere in Canada – as a precedent that would make it easier for plaintiffs to prove damages in such cases.

Ms. Biondi’s lawyer, class-action veteran Bruce Johnston of the Montreal firm Trudel & Johnston, said the idea for the suit came to him after he, too, slipped during the storm: “It was completely otherworldly. It was like a skating rink everywhere, and people falling left, right and centre.”

He said the argument he used of presuming cause on a “collective basis” could be used as a road map in other class actions. It also forms the basis of another long-standing case he has launched against the tobacco companies.

“The only thing that’s really surprising is that it hasn’t been done before,” Mr. Johnston said.

Essentially, Madam Justice Danielle Grenier agreed that any one who fell during the days of that ice storm and can prove damages will be entitled to compensation – with the cause of the damages in the vast majority of cases automatically presumed to have been the lack of salt or sand. Each claim will still have to be individually vetted by the court, Mr. Johnston said.

While the rules on presumption and causation are different under Quebec’s civil law than in the rest of the country’s common-law jurisdictions, he said the principle could be used anywhere.

That is what worries Donald Bisson, a lawyer with McCarthy Tétrault LLP in Montreal who defends against class actions and has faced off with Mr. Johnston in other cases. (Mr. Bisson did not work on the ice-clearing case.)

Mr. Bisson said the ruling has “huge implications” because it automatically presumes that anyone who fell in downtown Montreal during the week of the strike fell because of the lack of ice-clearing, and does not allow for other factors. For example, those who fell might have been impaired, or wearing slippers.

“What’s disastrous for the defence … is that this could be transferred to other cases. Just think about a drug case, a drug that is supposedly not working or has side effects,” Mr. Bisson said, arguing that other factors, such as taking too high a medication dose or not following the instructions, could be pushed aside if the logic of the ice-clearing ruling were applied to such cases.

Mr. Bisson believes that if it stands, the ruling’s impact as a precedent would mainly be limited to Quebec. But he said it could be used as a guide by class-action counsel representing plaintiffs outside Quebec.

David Stolow, a class-action defence lawyer in Montreal with Davies Ward Phillips and Vineberg LLP, isn’t persuaded that the Quebec decision’s presumption of causation will have a dramatic impact, saying that similar notions have surfaced in other cases: “I don’t necessarily find that to be a shocking principle.”

He said more interesting will be how the $2-million is distributed, especially if relatively few claims are approved.

After the ruling came out, both the City of Montreal and the union said they disagreed with its conclusions. In an e-mail, city spokesman Gonzalo Nunez said the city does not believe it should have to cover the costs of the claims: “We believe that it is not up to the citizens of Montreal to pay for the consequences of the illegal pressure tactics that took place in 2004.”

Ms. Biondi is disappointed, but not surprised, that the city and the union chose to appeal the ruling. She noted that others who fell on the ice that week had an even tougher time than she did; one woman has since had seven knee surgeries, and lost her job after missing too much work. And a pharmacist who fell had to learn to write with the other hand, after needing three wrist surgeries.

Other victims who missed work slipped into depressions, Mr. Johnston said. “Your life takes a turn for the worse when something like this happens.”

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