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Expanding the Historical Scope of the “Remedial Measures” Doctrine

In cases involving negligence claims against institutions in respect of historical wrongdoing –  such as cases under ss. 16(1)(h)-(h.2) of the Limitations Act SO 2002 c. 24 Sch. B – is  evidence as to contemporary institutional policies and practices within the scope of relevance, and thus compellable? In other words, can facts about what an institution does differently today than historically make the existence of a problem with what it did historically more or less probable? The answer to this question – which I propose should be “yes” – lies between two well established legal premises encompassing over a century of common law authority:

(i) Evidence of subsequent remedial measures cannot be construed as an admission of liability; but,

(ii) Such evidence is, as a rule, prima facie admissible because it is logically relevant.

If the existing jurisprudence falls short of providing a clear answer specifically responsive to the institutional and historical parameters of the question framed, it is nevertheless likely to develop such an answer soon. Given the profusion of claims arising, and reasonably anticipable pursuant to the 2016 amendment of the Limitations Act, to remove limitation periods for sexual assault and certain other sexual misconduct and assault claims, it is only a matter of limited time before this point of law is jurisprudentially settled.

Development of the Remedial Measures Doctrine: The Accident Jurisprudence

The analysis of institutional policies and practices across the scope of historical time gaps in “no limitation period” claims under s. 16(1), Limitations Act may productively set forth from where the accident jurisprudence has left off. The leading authority, Sandhu v Wellington Place Apartments 2008 ONCA 215 [“Sandhu“], has definitively established the admissibility of evidence of “subsequent repair.” Sandhu was an appeal on grounds that included the trial judge’s alleged error “in admitting evidence of subsequent remedial measures,” which, in that case, were the installation of window screens and child safety latches after an infant’s fall out of a fifth-floor apartment window (at paras 3, 9 and 52).

The Court in Sandhu restated the admissibility of the “evidence of subsequent remedial measures,” as a rule subject only to the trial judge’s general exclusionary discretion (at para 60):

“Where a plaintiff offers evidence of subsequent remedial measures, the trial judge must balance the probative value of that evidence against its prejudicial effect.”

In Sandhu, the probative value of such evidence was indicated in terms of its relevance as “evidence from which the jury could infer…a failure to take reasonable care,” (at para 56), its prejudicial effect “includes considerations such as whether the evidence will unduly lengthen the trial or may be misused by the jury,” as well as “the policy argument for exclusion,” (at para 60) namely that “defendants would avoid taking corrective measures for fear that their actions would be taken as an admission of fault,” (at para 54). It was, however, pointedly noted that “Courts have tended to discount this policy argument,” (at para 58).

In restating the “remedial measures” doctrine, the Court in Sandhu explained its approach to relevance as fact based and case specific, citing R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC) [“Seaboyer“] for the principle that “the relevance of any piece of evidence depends upon the particular circumstances of each case,” (at para 55).

In Seaboyer (at p. 389-92), the Supreme Court of Canada provided the germ of the prevailing theory of relevance since taken up in Ontario pursuant to Justice Docherty’s restatement in R. v. Watson (1996), 1996 CanLII 4008 (ON CA) as follows:

Relevance… requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

Accordingly, the relevance of subsequent repairs to the premises whose condition was at issue in Sandhu followed from the proposition that the fact of such repairs (“Fact A”) makes the existence of a standard of reasonable care requiring such measures (“Fact B”) “more probable than it would be without the existence of “Fact A,” (qua Watson, supra).

Or, as the most venerable Canadian authority on the “remedial measures” doctrine put it: “evidence of repairs, improvements… or the like done after the occurrence of an injury… is admissible because it is logically relevant.”

See: Toll v. Canadian Pacific Railway Company, 1908 CanLII 362 (AB KB) [“Toll“] op. cit. James v. River East School Division No. 9, 1975 CanLII 932 (MB CA) op. cit. Sandhu, supra, at para 57.

The Issue of Latent Risk

The “remedial measures” doctrine conceptualizes relevance in terms of “the consequent disclosure of the more or less latent condition” of risk which occasioned the harm at issue (Toll, supra).

In Toll, this reference to “the more or less latent condition” at issue went to the hazardousness of a railway post from which wrongful death resulted. In Sandhu, “the more or less latent condition” of risk pertained to the minimal cost of effective steps to mitigate the hazard that caused the injury. In any given case, the relevance of subsequent remedial measures – regardless  of how historically removed from the harm – turns on the latency of the risk they address.

Latent risk is the “logical foundation” (ibid.) for subsequent remedial measures; the sufficiency of prior risk management practices, going to the applicable standard of care, may turn on the extent to which those remedial measures effect “the consequent disclosure of the more or less latent condition” of risk.

The relevance of subsequent remedial measures – whether physical repair or policy reform – subsists in the relation between the sufficiency of risk management practices and the formulation of the applicable standard of care.

Same Theory, New Subject

The convergence of the “remedial measures” doctrine as developed in accident cases, with the jurisprudence dealing with institutional liability for historical abuse, first emerged a decade after Sandhu in Telford v School District 42 (Maple Ridge & Pitt Meadows) 2018 BCSC 2165 [“Telford“].

Telford was a case where the Plaintiff (unsuccessfully) sued a school district for negligence, claiming that he was sexually abused while in the care of the school from the years 1991 through 1994. The Plaintiff called evidence from witnesses who had attended at the school “several years later,” (at para 73). This was objected to “on account of that evidence being irrelevant because of the different time frames in which the events the Plaintiff described took place,” (ibid.).

Significantly, the Court in Telford chose to admit the evidence at issue “on the basis that the evidence of these witnesses might shed light on whether the practices of the Defendant… had changed in the years after,” (at para 74). The Court explained that “[s]uch evidence, though not an admission of liability, can be used to address the steps that a defendant has taken to reduce risk,” (ibid.) i.e. “in the years after,” when “the events the Plaintiff described took place,” (at para 73). Citing Sandhu, the Court in Telford emphasized its view that this evidence “might also be a factor in considering whether the school’s practices from 1991 to 1993 were sufficient to keep the school’s property reasonably safe for its students,” (at para 74).

Telford has created a precedent establishing that institutional practices post-dating the temporal scope of historical abuse claims are relevant to the sufficiency of risk management at the historic time such claims arose.

This ratio follows logically from the theory of relevance formulated in Seaboyer and applied in Sandhu. According to the Seaboyer framework articulated in Watson, “Fact A,” (namely, risk management practices post-dating the alleged wrongdoing) will make more probable the existence or non-existence of “Fact B” (namely,the sufficiency or insufficiency of the risk management practices at the material time) in terms of the standard of reasonable care.

Forward Looking Statements

Telford represents a significant conceptual broadening of the “remedial measures” doctrine restated in Sandhu, emphatically focused on substantiating “the nature of steps that could have been taken to reduce the risk,” (at para 61). The origin of this doctrine in accident law should not limit its applicability to other scenarios where the sufficiency of institutional risk management is in issue.

Courts need a means of upholding institutional accountability in historical cases where there are evidentiary gaps that contemporary policies and practices may help probe, if not – as a matter of liability – conclusively fill.

While it is axiomatic that “the standards of the day” apply to the historical determination of duties of care (see: KLB v British Columbia 2003 SCC 51 at para 14), those standards are seldom clear. Rather, insofar as the Supreme Court has clarified that reasonable foreseeability is an objective test – a question of “whether someone in the defendant’s position ought reasonably to have foreseen the harm, rather than whether the specific defendant did,” (Rankin v JJ 2018 SCC 19 at para 53, emphasis added) – the “ought” in this formulation “logically” (as per Toll, supra)  turns on “evidence of repairs, improvements…or the like done after the occurrence of an injury,” (ibid.).

The law has yet to test these propositions in full, but future jurisprudence will doubtless bear out their utility in service of litigation’s truth-seeking function.

This article was written by Aron Zaltz

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