Court Declines to Recognize Novel Duty of Care between Employer and Family Members of a Deceased Employee
In Sigurdson et al v. Norboard Inc. et al, 2021 ONSC 5193,the Superior Court of Justice declined to recognize a duty of care between the employer of a deceased individual and his family members. The Court stated that negligence alone should not open the gates to liability to those who could not have been reasonably foreseen as suffering harm.
Facts
The plaintiffs were the mother, father and sister of a man who died while working in a remote forested area for the defendant, Norbord Inc. The defendant, Resolute FP Canada Inc., was alleged to have held an overlapping sustainable forest license with Norbord in the location where the deceased died.
As part of Norbord’s internal policies, employees were required to check-in with Norbord using a GPS system at several times during the day. However, Norbord failed to notice that the deceased did not check in as required. As the deceased did not return home and could not be contacted, the deceased’s father eventually drove into the forest himself, and found that his son who had already died alone. The cause of death was determined to be hypothermia.
The claim sought damages in negligence and under the Family Law Act (”FLA”) in addition to punitive damages. The negligence claims arose from Norbord’s failure to respond to the check-in, failure to dispatch proper search and rescue teams, and mental injury that was suffered by the family.
The defendants brought a motion to strike the negligence claims and the punitive damages claims arguing that there is no recognized duty of care owed by them to the plaintiffs, and that no novel duty of care should be recognized in the circumstances. The defendants did not seek to strike the FLA claims on the motion.
Issues
The main issue before the Court was whether the negligence claims should be permitted to proceed. The Court also examined whether the motion should be dismissed for delay as the claim had not advanced following the close of pleadings, and whether the Statement of Claim in its entirety ought to be struck as it contained evidence, case law and argument.
Analysis
Madam Justice Nieckarz acknowledged that there was no direct relationship between the plaintiffs and the defendants, and that there is no recognized duty of care that has been established governing the relationship between family members of an employee and an employer. Further, she noted that there is no recognized duty of care governing the relationship between an occupier of land where an employee works and that employee’s family members.
Justice Nieckarz applied the Anns/Cooper analysis to determine whether a new duty of care should be recognized. The test involves analyzing whether the harm that occurred was a reasonably foreseeable consequence of the defendant’s act, and involves a proximity analysis between the plaintiffs and defendants.
Justice Nieckarz noted that a duty of care owed to a family member or rescuer who witnesses the aftermath of an accident has been recognized by the law in lesser circumstances. While simply witnessing the death of a family member does not itself give rise to a duty of care, Justice Nieckarz concluded that there was sufficient proximity between the deceased’s father and the defendants to conclude that the defendants did not satisfy their onus of demonstrating that there was no reasonable prospect of success for the deceased’s father to establish a duty of care.
Justice Nieckarz went on stating that if she was incorrect in her conclusion, she would find that a duty of care should be recognized in light of the deceased’s father’s position as responder and rescuer, as it was reasonably foreseeable that because the defendants failed to send a rescue team, that someone else would respond in the circumstances such that there was sufficient locational proximity to give rise to a duty of care.
In regards to the mother’s and sister’s negligence claims however, Justice Nieckarz stated that simply because they are family members of someone who suffered harm as a result of negligence, this was not sufficient to ground a duty of care. The relationships were not close enough to give rise to an obligation by the defendants to be mindful of the deceased’s mother’s and sister’s interests.
Further, even if sufficient proximity were established for these claims, public policy considerations militated against recognizing a duty of care in these circumstances. Justice Nieckarz agreed with the defendants that to find otherwise would lead to issues of indeterminate liability, and particularly, claimant indeterminacy.
It was evident that if Norbord owed a duty of care to every sufficiently close family member of its employees, it would lose meaningful control over the class of potential plaintiffs, and it would be impossible for Norbord to know who it owed a duty to. Accordingly, Justice Nieckarz declined to recognize a novel duty of care in the circumstances of the mother’s and sister’s claims.
Conclusion
The motion was granted in part. No duty of care was owed by the defendants to the deceased’s mother and sister, as it was plain and obvious that they had no reasonable prospect of success. The duty of care owed by the defendants to the deceased’s father was a triable issue and was allowed to proceed.
Justice Nieckarz declined to exercise her discretion to dismiss the motion for delay in light of the global pandemic, and in consideration that the parties were awaiting a hearing of a WSIB application that was made by the defendants regarding the plaintiffs’ right to sue for damages pursuant to s.61 of the FLA.
Finally, as the Statement of Claim was problematic and could not be salvaged, Justice Nieckarz struck the claim in its entirety with leave to amend to plead the father’s negligence claims and the FLA claims.
While Justice Nieckarz recognized that the family had undoubtedly suffered, the potential for liability in these circumstances would be unwieldy. While negligence may be evident, the proximity analysis requires a close and direct relationship such that it would be just and fair having regard to that relationship to impose a duty of care in law. As such, despite a family’s request for answers and accountability, the public policy implications may be far too great to recognize a novel duty of care.