No good deed goes unpunished, or so the saying goes. Unfortunately, this cliché may be a reality when trying to improve safety. After an accident, it seems logical and even laudable to try to make sure the mishap won’t happen again. But if a negligence lawsuit arises out of that incident, can those subsequent remedial measures—important improvements, some might say—be used as evidence against the defendant?
Historically, evidence of subsequent remedial measures was not allowed in lawsuits for two reasons: first, the relevance of such evidence was questionable, since liability is assessed based on the circumstances at the time of the incident, not the situation enhanced with hindsight. And second, using this kind of evidence might deter remedial measures in the future. If improvements can be used against defendants, they have reason to hold off until the threat of liability is gone.
Since 1988, the courts have challenged the traditional reasons for excluding remedial measures as evidence. In Algoma Central Railway v. Herb Fraser and Associates Ltd, the judges questioned the “deterrent” rationale, noting that a reasonable citizen would not be influenced by potential liability when deciding whether or not to make repairs or improvements to their property.
More recently, in Sandhu v. Wellington Place Apartments, the Ontario Court of Appeal found that evidence of subsequent remedial measures actually can be relevant and admissible. Their caveat was that this evidence cannot be used on its own to prove liability. Just because a defendant made their site safer after an incident, there was not necessarily a problem with the site earlier. Teglas v. City of Brantford et al. in 2020 and Moffit v. TD Canada Trust in 2021 followed this approach: the evidence is admissible but must be accompanied by a statement that the evidence is not, on its own, proof of negligence. However, in Moffit v. TD Canada Trust, Justice Lemay pointed out that while subsequent remedial measures may not be taken as the only evidence, that info can certainly help gauge whether the same steps should have been taken sooner—that is, prior to the incident.
In the medical malpractice context, two 2022 decisions have continued to reject questions on remedial measures at the discovery phase. In Algarawi v. Berger and Gurprasad v. Kim, the defendants had refused questions about the quality of care post-incident. When considering motions to compel answers to those questions, the judges upheld the defendants’ refusals.
The doctors did not have to discuss remedial actions in part because the questions were about potential measures, not steps they actually took after the incident. And reaffirming the original rationale for excluding remedial measures as evidence, the judge also upheld the doctors’ refusals because a physician’s conduct must be assessed based on the circumstances at the time of the alleged negligence, not in retrospect.
It’s fair to be concerned about the use of subsequent remedial measures as evidence, especially for anyone responding to incidents on a site in their control. However, all these recent cases have noted the limits of when “coulda” and “woulda” will determine what you “shoulda” done, and hopefully, this comforts do-gooders who want to improve safety without an expensive penalty.
Just because a defendant made their site safer after an incident, there was not necessarily a problem with the site earlier.