LAW Law: “Duty of care” (Negligence)

• Defined as the “legal obligation which is imposed on an individual

requiring adherence to a standard or reasonable care while
performing any acts that could foreseeably harm others”
• Duty of care is the first element that must be proven to exist between
two parties in order to prove negligent conduct
→ requires a standard of care that must be adhered to by one
or both parties that if breached, forms the second element of
negligent conduct
• Common law duty of care: a reasonable standard of care that must
be exercised with regards to known or foreseeable harm
• Statutory duty of care: a duty of care imposed by written laws

For Issue 1 (York Region’s appeal) specifically:

Law: The Municipal Act, 2001
• Imposes a statutory duty of care on municipalities to “keep [a
highway or bridge] in a state of repair that is reasonable in the
circumstances”.

Law: Precedent regarding the standard of care imposed in The

Municipal Act, 2001
• Summarized test: the road must be kept in such a reasonable state
of repair that those requiring to use it may, exercising ordinary care,
travel upon it with safety

For Issue 2 (Fermar’s appeal) specifically:

Law: Ryan v Victoria (City, [1999] 1 S.C.R 201
• States that to “avoid liability, a person must exercise the standard
care that would be expected of an ordinary, reasonable, and prudent
person in the same circumstances”
• The test of reasonableness depends on facts, likelihood of harm,
gravity of the harm, cost incurred to prevent injury industry practices,
and enacted standards

APPLICATION For Issue 1 (York Region’s appeal):

• The trial judge stated that he found that that Mr. Morsi “operated his
vehicle at a speed well in excess of the posed and advisory speed
limit” and that “if Morsi had operated his vehicle at the posted
speed...he would have been able to successfully negotiate the
transition area”
o Mr. Morsi passed by three speed advisory or limit signs, two
construction warnings, and could have seen the curvature
and conditions of the road, but chose to double the speed
limit and triple the advised speed.
• This can be intercepted that if Morsi had exercised “ordinary care”,
there would have been no accident.
 → this lack of ordinary care by Mr. Morsi would absolve York Region
of liability, which the trial judge erred by failing to address.
Conclusion: Mr. Morsi exhibited reckless driving and a lack of ordinary case,
thus absolving York Region from liability as per the test enunciated in
precedent set by the Supreme Court of Canada.

For Issue 2 (Fermar’s appeal):

• The trial judge stated that Fermar had breached the standard of care
by not properly inspecting the road surface at the transition point and
that “the risk was heightened for motorists...travelling in excess of the
posted speed limit, a likelihood which the employees of Fermar and
York knew or should have known as a matter of common sense”
• The appeal judge disagreed and stated that Fermar should not be
deemed to know that a driver would be so reckless on a curvy road
that is undergoing construction.
• On the other hand, Mr. Morsi should have known through common
sense not to be travelling at such excessive speed during a
construction zone
• In addition, a detective constable, Gord Herbert, who has
investigated about 30 fatal or life threatening accidents a year since
1994 testified that:
o He did not identify any dangerous road conditions after his
examination of the road, and re-opened the road after Mr.
Morsi’s accident
Conclusion: The cause of the accident was Mr. Morsi’s reckless driving, and
not any negligent conduct or omission by Fermar, thus absolving Fermar
from liability (no duty of care)

CONCLUSION Allow both York and Fermar’s appeals, set aside the judgement of the trial
judge, and dismiss the Morsi’s family (plaintiff) action against both
defendants.

Note important for the case but: The appellants (York and Fermar) are
entitled to their costs of the appeal ($15,000).