Tag Archives: Joseph A. Cescon

Scarring Meets the Threshold Under the Insurance Act | McLeish Orlando

Scarring Meets the Threshold Under the Insurance Act

Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Scarring Meets the Threshold Under the Insurance Act | McLeish Orlando Personal Injury Lawyers

Extensive scarring is often indicative of serious injuries that will meet the threshold under s. 267.5(5)(b) of the Insurance Act.  But can scarring be so extensive as to meet the threshold in and of itself under ss. (5)(a)?

Yes, according to LaForme J (as he then was) in Zelney v Zelney, 1996 CarswellOnt 3848, and Doyle J in Carroll v Gilbert, 1994 CarswellOnt 3685.  However, the leading case on this issue remains Meyer v Bright, 1993 CanLII 3389 (ON CA), which along with Dalgliesh v Green and Lento v Castaldo form the trilogy of decisions that first interpreted the then newly enacted “threshold” provision under s. 266(1) (now s. 267.1) of the Insurance Act.

Briefly, s. 266 was enacted at the same time as Ontario created the no-fault benefits regime.  The five-judge panel in Meyer found that the purpose of s. 266 was to significantly limit the right of motor vehicle collision victims to sue third parties in exchange for more generous first-party benefits regardless of fault.  For reference, the current provision states:

(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a)  permanent serious disfigurement; or

(b)  permanent serious impairment of an important physical, mental or psychological function.  1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).

The Meyer panel concluded that for an injury to meet the threshold under ss. (a), the disfigurement had to:

  • mar or detract from the appearance of the individual as a person, and
  • cause a change of style, clothes or lifestyle such that others are prevented from seeing the scarring.

In Dalgliesh, the 74-year old plaintiff’s 15-inch abdominal scar was found not to be serious although it was a disfigurement.  This was because the scarring did not cause any changes of clothing or lifestyle, and the Plaintiff maintained that it would never be seen by anyone.  Indeed, the panel wrote:

This scar has had little, if any, effect upon the life of Mrs. Dalgliesh. It is in a place where it would not normally be seen by others and in a part of her body which she had no intention of exposing to the view of any other person.

By contrast, the scarring met the threshold in Zelney and in Carroll.

In Zelney, the Plaintiff had scarring along both legs and her left elbow as well as minor scarring on her face.  LaForme J found that the arm and leg scarring met the test set out in Meyer because it would have a serious negative and harmful effect on her due to its location and extensive nature.  In describing the scarring, LaForme J wrote:

It is clear that the scars to the plaintiff’s arms and legs could be covered with very specific clothing but that they would be totally exposed and visible were the Plaintiff to wear shorts, a bathing suit or indeed, ordinary clothing which other women of her age and circumstance would freely wear. As I found, this woman is an active mother who is determined to continue on with her activities as before but I am convinced that she will always be self-conscious and embarrassed by the scars. In my view they will effect her ability to enjoy her life as she has been used to and it will require tremendous effort on her part to cope with the embarrassment and emotional stress that she must feel during those times of the year when warm weather attire will be worn, or when she is intimate with her husband.

In Carroll, the Plaintiff met the threshold on the basis of scarring to her left ear, right leg and left knee cap.  In concluding that the Plaintiff met the threshold, Doyle J wrote:

Melissa Carroll had a job as a lifeguard and taught others how to swim. Every single scar, except possibly the one on her right hip, could not be hidden if she puts on a bathing suit. She has already said she was embarrassed because of the scarring and this when she was barely sixteen years of age when the accident happened. Being so successful at swimming, she would probably be swimming for most of her life, that is, unless the embarrassment causes her to avoid swimming pools. There is a disfigurement, it is permanent and it is serious because of the effect on Melissa’s life.

Accordingly, scarring on its own can meet the threshold where others are likely to see the scars, resulting in a change of behaviour by the Plaintiff.

If you or a loved one have suffered a serious injury, contact the lawyers at McLeish Orlando for a free consultation.

Changes to the Rules of Civil Procedure for 2021 | McLeish Orlando Personal Injury Lawyers Toronto

Changes to the Rules of Civil Procedure for 2021

Written By: Joseph A. Cescon and Brandon Pedersen, Student-at-Law

Changes to the Rules of Civil Procedure for 2021 | McLeish Orlando Personal Injury Lawyers Toronto

On January 1, 2021, significant changes to the Rules of Civil Procedure will take effect, making permanent many of the temporary measures which the Court put in place to accommodate the issues and challenges associated with the COVID-19 pandemic. The amendments modernize the court system in Ontario and allow for a more convenient and accessible justice system. Essentially, these changes signal the Court’s willingness to embrace the virtual world and advance e-litigation by leaps and bounds.

Major Changes

Email

Changes to the Rules allow for the service of documents by email, other than originating processes, without the need for the parties’ consent or court order. The Rules will be amended to remove reference to service or delivery by “fax”, and lawyers will no longer be required to put their fax number on court documents.  Why fax has remained in common practice for this long we cannot say.

Further, all documents filed with the court must now contain the email addresses for parties or their representatives to ensure that hearing information (such as Zoom log-in details or CaseLines invitations) can be sent to the necessary parties. If filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.

Virtual Commissioning and Electronic Issuing of Documents

The Rules now permit the authentication of documents without the commissioner and deponent being in the physical presence of each other.

New subrules permit any document, including originating processes, to be issued electronically.

Virtual Hearings and CaseLines

Parties seeking a hearing are now provided the option to have it heard in person, by telephone conference, or by video conference. Objections are to be dealt with by case conference (via telephone), and unreasonable objections to a proposed method of hearing may be considered in awarding costs. This also applies to mandatory mediations and oral examinations for discovery.

The Rules have been amended to require the use of CaseLines, the new official electronic document sharing software authorized by the Ministry of the Attorney General.

Further, counsel can receive Orders and Judgments electronically, discontinuing the need to wait for a physical copy at the courthouse. The registrar must enter the issued order by saving a copy of it in electronic format. The new rule allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by good old fashion in-person pickup.

Extensive List

  • The new Rule 1.08 allows a party seeking a hearing or other step in a proceeding to specify the method of the hearing or step (in person, by telephone conference, or by video conference). This doesn’t apply with respect to proceedings in the Court of Appeal, which may be heard as directed by the court, and case conferences, which shall be held by telephone conference unless the court specifies otherwise. Rule 1.08 applies with modifications to mediations and oral examinations for discovery. Objections to a proposed method must be delivered within the earlier of i) 10 days of being served, or ii) 7 days before the hearing or step, and are dealt with through a case conference, where the court takes into consideration factors such as availability of telephone or video conference facilities, the ability to make findings of a witness’ credibility, and the balance of convenience between the parties. The new subrule 57.01 (1) provides that cost consequences may be incurred if a party unreasonably objects to a proceeding by telephone or video conference.
  • The new rule 4.01 indicates that the text and character standards for paper documents apply to electronic documents. The new rule 4.01.1 permits electronic signatures on documents to be signed by the court, a registrar, a judge, or an officer.
  • Clauses 4.02 (3) (f)-(h) are amended to remove any reference to fax numbers and substituting e-mail addresses.
  • The new subrule 4.03 (2) allows the registrar to provide a certified copy of court documents in electronic format.
  • The new subrule 4.05 (1.1) permits any document to be issued electronically, with the date of electronic issuance is the date indicated on the document by the registrar or authorized software.
  • The amended rule 4.05.3 adds specifications about submitting (not filing) documents to the court through CaseLines, the authorized case management software. Filing documents with the court is still required, albeit electronically. CaseLines will act as an electronic alternative to personally delivering materials to the court on the date of a hearing.
  • Clause 4.06 (1) (e) now allows for the electronic commissioning of affidavits in accordance with the Commissioners for Taking Affidavits Act.
  • Rule 4.09 is amended, adding that transcripts are to be provided in electronic format unless the court orders otherwise.
  • The Rule 4.12 allows the court or registrar to provide documents and to communicate by e-mail.
  • Subclause 16.01 (4) (b) (iv) and Clause 16.05 (1) (f) are amended to allow for the service of documents, other than originating processes, by e-mail without the need for the parties’ consent or court order.
  • Subrule 16.09 (6) is revoked and no longer requires parties to prove service by email with a certificate of service.
  • Rule 16.06.2 is amended by adding details on when service of a document by courier becomes effective, which is the second day following the day the courier was given the document, or, if the second day is a holiday, on the next day that is not a holiday.
  • Subrule 37.12.1 (4) is amended to allow a moving party to propose that a motion be heard in writing without the attendance of parties, even if the issues of fact and law are complex.
  • Subrule 51.01 (c) is amended no longer defining the authenticity of a document by reference to a copy of a telegram. The clause adds that a copy of an email is an authentic document.
  • Subrule 59.02 (2) is amended to provide that if an endorsement of an order is made on a separate document, that document may be in electronic format.
  • The new subrules in 59.03 make changes to the preparation, approval, and form of an order.
  • The new rule 59.04 allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by a pickup.
  • The new rule 59.05 makes changes to how orders are entered and filed, which requires the registrar to enter the issued order by saving a copy of it in electronic format.
  • The new subrules 61.03 (2.1) and 61.03 (3.1) require that if the filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.

Other changes:

  • Several subrules in rules 16, 37, and 38, which deal with service and delivery by fax, are amended or revoked.
  • Several subrules are amended to remove reference to the “place of hearing of motions” and substituting with “where motions to be brought”.
  • Several rules no longer assume that participation in person is required.

For a complete list of changes, please review Ontario Regulation 689/20 made under the Courts of Justice Act.

Jevco Insurance, 2020 CanLII 87987 (ON LAT) | McLeish Orlando Personal Injury Lawyers Toronto

J. J. v Jevco Insurance, 2020 CanLII 87987 (ON LAT)

Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Jevco Insurance, 2020 CanLII 87987 (ON LAT) | McLeish Orlando Personal Injury Lawyers Toronto

On October 7, 2020, the Licence Appeal Tribunal denied Jevco’s request for reconsideration from an earlier decision which confirmed that newly acquired vehicles are automatically covered under existing automobile policies for the first fourteen days after purchase.

At issue in this dispute was Jevco’s denial of income replacement benefits, visitor expenses, and housekeeping and home maintenance benefits on the basis that the Applicant knew or ought to have known his motorcycle was not insured.  The motorcycle crash in question had occurred on the eleventh day after purchase.

McLeish Orlando successfully disputed this denial at first instance by relying on the lower court and appellate decisions in Hunter Estate to say that the motorcycle was insured as a newly acquired vehicle under s. 2.2.1 of the Ontario Automobile Policy.

On reconsideration, Jevco argued that the Tribunal had committed three errors of law, none of which succeeded.

First, Jevco argued that the Tribunal erred in law by failing to consider the discussion of risk in Hunter Estate.  The Tribunal disagreed and found—as it did at first instance—that any discussion of risk did not displace the plain wording of s. 2.2.1 which extended coverage regardless of risk associated with vehicle type.

Second, Jevco argued that a coverage issue could override automatic coverage for newly acquired vehicles and relied on Rodriguez v Zhang, 2015 ONSC 5644.  The Tribunal disagreed and found the facts in Rodriguez to be distinguishable.  Unlike the case at bar, s. 2.2.1 did not apply because the collision, in that case, occurred outside the fourteen-day coverage period and the Applicant there owned several other vehicles that were not covered by the insurer.

Third, Jevco argued that the Tribunal erred in law by failing to consider the Applicant’s onus to prove knowledge and reliance on s. 2.2.1, and relied on M. F. v Belair Direct, 2017 CanLII 19200 (ON LAT).  The Tribunal again found the decision in M. F. not to apply and wrote, “As in the case of the Rodriquez, there appears to be a subtlety in this submission that escapes me.”

M. F. did not apply, according to the Tribunal, because the collision there had occurred nearly one month after the Applicant had taken delivery of the all-terrain vehicle in question, well-beyond the fourteen-day coverage period. Nonetheless, the Applicant in M. F. might still have avoided a SABS s. 31 exclusion by establishing reliance on s. 2.2.1. By contrast, the Tribunal here found that the Applicant’s motorcycle was insured under s. 2.2.1—the accident having occurred within the fourteen coverage period—and so there was no need to demonstrate knowledge or reliance on the provision.

In the result, the Tribunal maintained its earlier decision that the motorcycle was covered.  Jevco has since filed a notice of appeal to the Divisional Court.  Stay tuned for what happens next!

Government Protection from COVID-Related Liability | McLeish Orlando

Government Protection from COVID-Related Liability—Three Critical Concerns

Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Government Protection from COVID-Related Liability | McLeish Orlando

Ontario is proposing to protect from COVID-related liability any individual that made good faith efforts to act in accordance with public health guidance in Supporting Ontario’s Recovery Act, 2020, which had its first reading on October 20, 2020.  If passed, this Act will immunize from liability anyone following public health directives in good faith and will extinguish nearly all causes of action against those individuals arising from COVID-19 exposure.  Where gross negligence or an employer-employee relationship is involved, a resulting cause of action will not be barred by this Act.

The Act raises three important legal and practical issues.  First, the Act defines good faith to include honest effort but expressly excludes from the inquiry whether those efforts were reasonable or not.  Without the objective reasonableness criterion, by what measure is the honest or good faith effort to be determined?  On a purely subjective basis?  Were that the case, there would in effect never be grounds to challenge the assertion of honest effort.  This is because that effort would be entirely dependent on the individual, untethered from any form of limiting objective characteristic.

This strikes at the very core of negligence law, which has long been founded on the principle of reasonableness.  Quoting from Glasgow Corporation v Muir et al, [1943] AC 448, Court of Appeal for Ontario in Arland v Taylor wrote:

The standard of foresight of the reasonable man is, in one sense, an impersonal test.  It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.

By contrast, the bar on actions in the Act is premised on the very “idiosyncrasies of the particular person whose conduct is in question” because the effort need only be honest regardless of whether it was also reasonable.  This means that individuals wronged by others who acted unreasonably in relation to COVID exposure will have no recourse so long as honest efforts were made to follow public health guidance.

Second, the definition of “public health guidance” is virtually unlimited.  It includes advice, recommendations, directives, guidance, or instructions given or made in respect of public health regardless of the form or manner of communication.

That is to say, honest efforts need not even be made in relation to the government’s own published directives, but can be made in relation to practically any form of communication.  Worse still, the list of government actors who can communicate this guidance includes any federal or provincial government agency or employee of that agency, and any municipality or employee of the municipality.

As a result, individuals could be protected from liability where they purport to have honestly followed the instructions of one of the countless employees of any number of municipalities or government agencies.  And all this regardless of whether the effort in issue was reasonable.

Finally, in barring causes of action arising from COVID, the Act may run afoul of s. 15 of the Charter for discriminating on the basis of physical disability.  The Act is facially neutral because it bars all COVID-related actions.  However, it will have an adverse impact on those individuals who are left permanently disabled as result of having COVID.  This is because the Act will preclude these individuals from suing wrongdoers in order to obtain damages that may be necessary to cover the cost of their future medical care needs.

A majority of the Supreme Court of Canada in Fraser v Canada recently clarified that

if claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact…

Here, it will not be the permanent disabilities resulting from COVID that will cause a disproportionate impact.  Rather, it will be the bar on suing for damages that will have a disproportionate impact on those individuals rendered permanently disabled by COVID.  And for that reason, the Act may well be found to unjustifiably infringe s. 15 of the Charter.

The Act is still in its early stages and may never receive Royal Assent.  However, much remains to be seen as to what unfolds if and when the government decides to protect individuals from COVID-related liability.

The guy riding his skateboard on the street | McLeish Orlando Personal Injury Lawyer Toronto

A Skateboard is a Vehicle? What the…that’s a total wipeout

Written By: Joseph A. Cescon and Endrita Isaj, Student-at-Law

The guy riding his skateboard on the street | McLeish Orlando Personal Injury Lawyer Toronto

Imagine the scenario: There you are doing kick-flips and other “fresh” tricks on your new 2020 Powell Peralta (it’s a skateboard), when a thought suddenly crosses your mind, “Am I insured if one of my rad moves goes horribly wrong”? “I don’t need a license to operate this thing, do I need insurance”?

The answer is enough to make you rethink dropping in for your next lipslide, list that brand new board on Kijiji, and head home to the safety of your favourite skate video game instead.   It seems absurd but believe it or not, if you’re a skater who doesn’t have access to auto insurance, its time to pick up the phone and see if your broker will ensure your skateboard, because in some jurisdictions your skateboard is a “vehicle”, and you’ll be treated as if you were driving a car instead of riding your board.  We know, that’s decidedly gnarly, in the worst way.  What’s that? You’re a laidback longboarder and think you have nothing to worry about?  Think again dude, read on.

The state of the law in relation to skateboarders being deemed operators of vehicles or pedestrians in Ontario has been the subject of various conflicting interpretations creating many uncertainties for both amateurs and enthusiasts of the beloved sport.

The Ontario Highway Traffic Act (HTA) does not include the word “skateboard” or “longboard” in the definition of motor vehicle or vehicle, yet skateboarders can still be charged for acts normally associated with the use of a motor vehicle such as careless driving and failing to stop at a stop sign.

Section 1(1) of the HTA defines a vehicle as follows:

“vehicle” includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle, and any vehicle drawn, propelled, or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a streetcar; (“véhicule”).[1]

The definition has a lot of grey areas, and the reason why skateboards seem to be captured by the definition of a vehicle is that they are propelled by muscular power. However, this leads to conflicting interpretations, as cases in Ontario have found persons on rollerblades to be pedestrians.[2] My last pair of rollerblades lacked an electronic motor, how about yours? Most roller blades, like skateboards, also aren’t equipped with a braking system.  Unlike bicycles, neither are specifically included in section 1(1). So why the different treatment under the law?

The Alberta courts have been clearer about the ambiguities in the law when skateboarders are involved. The Alberta Court of Appeal held in R v Atchison, 2006 ABCA 258 that the word “pedestrian” in light of the object and scheme of the Traffic Safety Act, RSA 2000 c T-6, must include persons traveling on skateboards and similar devices. The Court identified a gap in the legislation, as the rules did not deal with yielding the right of way to a person on a skateboard or a similar device.[3] The Court considered the absurdity that a person on a skateboard would not be considered a pedestrian:

10      If persons on skateboards and similar devices are not considered pedestrians for purposes of the TSA, the driver of a vehicle striking such a person could never be charged with an offence; similarly, if two persons were struck, one walking and one traveling on a skateboard or similar device, the driver could only be charged with striking the person who was walking. As pointed out by the summary conviction appeal justice, this is an absurd result and cannot have been the intention of the Legislature.[4]

The Alberta Court of Appeal found that other courts in Canada had taken a similarly expanded view by finding that persons on skateboards or rollerblades were pedestrians in various contexts. The Court of Appeal referenced an Ontario case, R v Greer, 1995 OJ 3655, which held that a person on rollerblades is a pedestrian.

A few years later, a longboard was deemed not to be a vehicle in Ontario. In 2009, 4 teenagers in Owen Sound were stopped by police for longboarding on Grey Road 19 and were charged with Careless Driving under the HTA.[5] A justice of the peace at the Provincial Offences Court in Owen Sound dismissed these charges, citing that the longboard equipment was not considered a vehicle under the Highway Traffic Act.[6] This case exemplifies the discord in this particular area of the law that certainly seems to treat skaters, separately from the other 4-wheelers you might find in the skate park. Brutal Hang Up!

In response to this inconsistency, counties have created traffic bylaws that restrict skateboarding and longboarding on roadways or highways in their communities, a move that we have seen from the likes of Grey County, Guelph, Kitchener, Cambridge, Toronto, and Ottawa, amongst others.

Given the state of things, skaters should follow the local by-laws on the basis that they may be treated as operating a vehicle while skateboarding, wear protective equipment such as helmets, knee pads, elbow pads, wrist guards, closed-toed shoes with a good grip, and ensure your skateboard is in proper condition without any cracks.[7]  Shred hard and let us know what your broker says about insuring your latest “vehicle”.

If you or someone you know has suffered a serious injury due to a skateboarding incident, contact the lawyers at McLeish Orlando for a free consultation.

[1] Highway Traffic Act, RSO 1990, c H.8, section 1(1)

[2] R v Greer, 1995 OJ 3655 at para 1.

[3] R v Atchison, 2006 ABCA 258 at para 9.

[4] R v Atchison, 2006 ABCA 258 at para 10.

[5] Erika Engel, “County bans skateboards on roads,” Blue Mountains Courier-Herald, July 9, 2013, https://www.simcoe.com/news-story/3884690-county-bans-skateboards-on-roads/.

[6] Denis Langlois, “Skateboarding no longer allowed on County Roads,” Owen Sound The Sun Times, July 3, 2013, https://www.owensoundsuntimes.com/2013/07/03/skateboarding-no-longer-allowed-on-county-roads/wcm/c5539e30-b637-d637-7b4c-5c9e2deb8e1d.

[7] Skateboarding Safety, Hamilton Police Services, https://hamiltonpolice.on.ca/prevention/seasonal-recreational-activity/skateboarding-safety.

Purchasing a new home with benefits payable under the Statutory Accident Benefits Schedule | McLeish Orlando

Purchasing a new home with benefits payable under the Statutory Accident Benefits Schedule

Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Purchasing a new home with benefits payable under the Statutory Accident Benefits Schedule | McLeish Orlando

Where an individual seriously injured in a motor vehicle collision can no longer live in his or her rented living arrangements, may benefits payable under the Statutory Accident Benefits Schedule be used toward the purchase of a new home?

Yes.  Two recent decisions of the Licence Appeal Tribunal, several other arbitral decisions, and one judicial decision have cited the decision in MacMaster v Dominion of Canada General Insurance Co., 1994 CarswellOnt 4976, where the Ontario Insurance Commission concluded that SABS benefits could be put toward obtaining a new home.

In R.T. and The Economical Insurance Group, Re, 2019, the Licence Appeal Tribunal cited MacMaster for the housing issue and allowed some but not all housing modifications.

In 17-002592 v CUMIS General Insurance, 2018 CanLII 95555 (ON LAT), both parties cited MacMaster and the insurer was ultimately found to be responsible for the difference between the rent of the applicant’s current home, plus 50% of the utilities, less the average rent for a two-bedroom apartment where she was living pre-accident.

Several older decisions have also cited MacMaster on the housing issue, and specifically the cost of purchasing a new home.

In Vanden Berg-Rosenthal v MVAC, 2007 CarswellOnt 3254, the Financial Services Commission of Ontario adjudicator cited MacMaster and asked the parties to work out the issue of home purchase amongst themselves.

At a FSCO arbitration in Hill v Coseco Insurance Co/HB Group/Direct Protect, 2006 CarswellOnt 7377, MacMaster was cited and the insurer was found to be responsible for installing an elevator in the applicant’s house at a cost of $192k, or for purchasing a bungalow for that amount instead.

In Alfred v Allstate insurance Co. of Canada, 2004 CanLII 9410 (ON SC), Justice Himel cited MacMaster for its treatment of the housing issue and found the insurer to be responsible for the cost of home modifications.

Finally, at a FSCO arbitration in Saliba v Allstate Insurance Co. of Canada, 2001 CarswellOnt 5130, the insurer was found to be responsible for the cost of renovating a home per MacMaster, but not for the capital cost of purchasing that home, since the applicant did not convince the adjudicator that he required a house “because of the accident.”  Note, however, that MacMaster was not cited in the capital costs portion of this decision, only the part that dealt with renovations.

That SABS benefits may be put toward the purchase of a home is bolstered by the fact that the home purchases are included in the new SABS.  This permits a fairly standard legislative intent argument based on changes to the wording of the provision.  Unlike the current SABS, MacMaster dealt with the pre-1994 SABS, which lacked an explicit provision dealing with the purchase of a new home.  At the time, the relevant provisions related to housing read,

6(1) The insurer will pay with respect to each insured person who sustains physical, psychological, or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

Still, the Applicant in MacMaster was entitled to purchase a new home with the benefits payable under this provision.

By contrast, the current SABS read,

16(1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

16(3) The activities and measures referred to in subsection (1) are,

(i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home;

Given the inclusion of the words “or the purchase of a new home,” there is little doubt that a new home may be purchased with the benefits payable under this provision.

If you or someone you know has suffered a serious injurycontact the lawyers at McLeish Orlando for a free consultation.

THE LAWYER’S DAILY – Courts still searching for ‘something more’ to hold social hosts responsible

THE LAWYER’S DAILY | McLeish Orlando Personal Injury Lawyers

McLeish Orlando Partner, Joseph Cescon, and Student-at-Law, Brandon Pedersen, wrote this piece for The Lawyer’s Daily.

In the aftermath of Childs v. Desormeaux 2006 SCC 18, courts noted that potential liability on hosts could be found if there existed “something more” than serving alcohol to guests at a private social gathering.

The interpretation of something more has typically centred on the host’s knowledge of a guest’s intoxication and/or plans to engage in a potentially dangerous activity

The “something more” could be facts that suggest the host was inviting the guest to an inherently risky environment or facts that suggest a paternalistic relationship exists between the parties. This is a proximity analysis.

In McCormick v. Plambeck 2020 BCSC 881, the defendant adult homeowners allowed their daughter to have a party of around 65 minors and young adults. The parent supplied some alcohol at the party and two of the partygoers eventually left, stole a neighbour’s car, and subsequently drove the car off the road, resulting in the death of the driver and serious injuries to the passenger plaintiff. The trial judge noted that the hosts met the requisite standard of care, as they continuously monitored the party, collected car keys of those guests the hosts knew had driven to the party, and provided rides home for some.

Still, no conclusive authority exists in Canada with respect to social host liability. It remains open that depending on the circumstances, a social host may be implicated in the creation of the risk to third parties.

We will continue to closely monitor what amounts to the “something more” that creates an “inherent and obvious risk” at a private social gathering.

Click here for the full article.

Limitation Periods Resume on September 14, 2020 | McLeish Orlando Personal Injury Lawyers

Limitation Periods Resume on September 14, 2020

Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Limitation Periods Resume on September 14, 2020 | McLeish Orlando Personal Injury Lawyers

In less than one week, limitations start to run again after a six-month suspension.  On August 20, 2020, the Ontario Government announced that the suspension of limitation periods would end on September 14, 2020.

All limitation periods by the Government of Ontario had been suspended by emergency order effective March 16, 2020.  The suspension of court operations in light of the ongoing COVID-19 pandemic required this extraordinary legislative reaction in order to ensure that litigants would not be time-barred from prosecuting their claims due to a limitation issue.

The suspension and ultimate resumption of limitation periods raises important questions and is sure to be at the heart of much litigation in the years to come.

In total, the emergency order regarding limitation periods will have been in effect for nearly six months, or 182 days to be precise.  This means that the standard two-year limit to commence claims will have been extended by nearly 25%.

For claims with limitation periods that would have ended if not for the suspension, it will be critical for litigants to be ready when limitations begin to run again on September 14.  Carefully calculating each day under the limitation period and the suspension will be necessary to ensure that plaintiffs are not barred from bringing their action. When limitations being to run on September 14, litigants will have the number of days, weeks or months between the day limitations were suspended and the day the two-year limit would have expired is not for the suspension, to issue their claims.

In addition, incidents that occurred during the pandemic while limitation periods were suspended will also be affected.  In practical terms, the two-year limit will begin to run on September 14 and the number of days, weeks, or months remaining in the suspension at the time the claim arose will be tacked onto the end of the two years.

For those litigants who find themselves in the future having to argue discoverability, how the suspended limitation period factors into the court’s analysis—if it indeed does—remains to be seen.

Countless other types of limitation disputes may also arise because the suspension applied not only to limitation periods under any statute, regulation, rule, by-law, or order but also to any step to be taken in any Ontario proceeding.  Time limits for requests for reconsideration, applications for judicial review, and appeals will all be subject to the legal issues that will be decided based on the suspension.

WHY THIS MATTERS

Limitations disputes can effectively extinguish an action and are often entirely divorced from the merits of a claim.  They can be highly technical in nature.  It is critical that all limitations issues be canvassed in the early stages of litigation, and this is particularly true now given the new legal issues that will arise due to the suspension limitations under COVID-19 emergency orders.

The lawyers at McLeish Orlando understand the importance of limitations and have developed a well-recognized ability to overcome these issues, including in the recent decision of the Ontario Court of Appeal in Tomec v Economical Mutual Insurance Company, 2019 ONCA 882.  There is no charge for initial consultations.  Contact one of the personal injury lawyers at McLeish Orlando for an assessment of your case.

Mandatory Masks and Potential Liability for COVID-19 Transmission

Written By: Joseph A. Cescon and Aidan Vining, Summer Student

As more businesses and public spaces open and people expand their social contact, many Ontario cities are making masks or face coverings mandatory in public spaces to reduce the risk of transmission of COVID-19.

As of July 7, 2020, there is a bylaw in Toronto that provides guidelines for businesses as well as the public. The guidelines for the public are as follows:

  • You must wear a mask or face covering when you are in indoor public spaces.
  • The mask or face covering should cover your nose, mouth, and chin, without gaping.
  • Follow the mask policy of the business you are visiting.
  • Exemptions are allowed. You do not need to bring proof of your exemption.
  • Be respectful as businesses adopt new policies to protect all of us from COVID-19.

Most areas of the GTA have instituted similar rules, along with other Ontario cities like Kitchener-Waterloo, Sault Ste. Marie, Ottawa, and Kingston. While many Ontarians recognize the importance of these procedures and have been willingly wearing masks already, some people refuse to wear masks and view the mandatory policies impinging against their freedoms. For example, protestors rode the TTC without masks in defiance of Toronto’s new bylaw. One of the protestors involved gained media attention only a few days earlier when she refused to wear a mask in Toronto’s St. Joseph’s Hospital and was denied assistance because she would not wear a mask.

As we have seen, pockets of concentrated outbreaks can occur when protocols are not strictly followed, as in the case of 14 staff members of a Home Depot tested positive for the virus in an outbreak in Richmond Hill, Ontario. In Kingston, 16 cases were tied to just one nail salon. These cases offer an example of the importance of taking extra measures in public spaces and demonstrate how not following guidelines can lead to many people being infected.

These new policies and the refusal by what is currently a fringe minority of anti-maskers to abide by them, raise interesting questions of potential liability. What liability, if any, exists where a person refuses to wear a mask in a public space and people become infected with COVID-19 as a result?

Duty of Care

To be found liable in negligence, there needs to be a duty of care owed by the anti-masker to the person infected. The general test to determine whether there is a duty of care is to analyze whether there is a sufficient relationship of proximity between the anti-masker and the infected person such that it is reasonably foreseeable in the circumstances that carelessness on the part of the anti-masker could create a risk of injury or harm to the infected person.

Determining whether a duty of care exists is fact-specific and turns on a number of factors. However, due to the close proximity of many public spaces now re-opening and the limiting of the number of people in these areas, a strong argument could be made that people within indoor public spaces owe a duty of care not to cause harm to other people in indoor public spaces.

Breach of the Standard of Care

A breach of the standard of care also needs to be established. The standard of care that one must meet is that of a reasonable person in the circumstances. Elements of this analysis are considerations such as: what was the probability of harm, what is the severity of the harm, what was the cost of avoidance of the harm, and social utility. Overall, the question is how a reasonable person would have acted at the relevant time, in the particular circumstances.

Choosing not to wear a mask at a time when it is mandated through a bylaw for the purpose of preventing transmission of a potentially fatal virus would likely be found to be a breach of the standard of care. We know the risk of transmission is high when someone is COVID positive, and the severity of the harm can be devastating, fatal, and if not, long-lasting. News surrounding the COVID pandemic and the mandating of masks have been widespread. Further, the cost of wearing a mask or face covering is minimal, with many businesses and NGO’s distributing masks free of charge.

It should also be noted that most of the bylaws mandating face coverings have recognized exceptions for young children and those who are unable. This is a factor to consider in determining the standard of care applicable for certain individuals.

Causation

To be liable, it needs to be established that the careless non-mask-wearer actually caused harm to the infected person. Difficulties arise as it is impossible in most cases to know how a person contracted COVID.  Depending on the circumstances, it may be possible to establish causation. This may be easier where the individuals were in close, prolonged contact, or where other individuals became infected as a result of contact with the anti-masker.

Damages

The infected person would also need to demonstrate that they suffered damages as a result of contracting the virus. Damages in these cases might include medical expenses, pain and suffering, loss of income, and/or wrongful death.

Conclusion

While the legal ramifications of the current pandemic have not been fully realized, it is likely that many of these issues will be litigated to some extent in the future. Choosing to not wear a mask when it is mandatory could potentially leave you liable. More importantly, not wearing a mask puts others and yourself at an increased risk of harm and transmission. It is crucial to follow health guidelines, procedures, and bylaws in order to ensure public safety.

Road Safety: Steps Everyone Can Take to Prevent Pedestrian Accidents

Written By: Joseph A. Cescon and Nicole Kiselyov, Summer Student

Steps To Prevent Pedestrian Accidents | McLeish Orlando Personal Injury Lawyers

Pedestrians are amongst the most vulnerable road users- six people are hit by a car every day in Toronto [1]. Unfortunately, when a 3,000-pound object comes into contact with a person, the results are predictable and bleak for the pedestrian.

It is important that individuals remain safe on our roadways. As the weather warms and summer dawns, more and more people are enjoying their time throughout the cities where they reside, as a stay at home measures are reduced.

Last week, a young 17-year-old girl and her 19-year-old sister were struck by a left-turning vehicle in a hit-and-run, as they crossed the road. The 17-year-old was pronounced dead at the scene while her sister suffered non-life-threatening injuries [2].

Pedestrians rarely expect such tragedies, especially when they’re following the rules of the road. Unfortunately, as we all know, mistakes can happen in an instant and can result in serious injury or death. Particularly now, as COVID restrictions are loosened, and road users are back en masse, it is important for pedestrians and drivers alike to be vigilant.

Advice for Drivers:

  • Be Attentive! – Drivers must be aware of their surroundings. It is important to be aware of other drivers, pedestrians, cyclists, and other road users.
  • Don’t Rush! – We know that everyone leads busy lives but it is important to exercise caution and care. When turning, for example, drivers should wait until the pedestrian has crossed over to the other side of the street before proceeding. At crosswalks, the law requires drivers, including cyclists to stop and yield the whole roadway.
  • Drive Accordingly! – When driving near schools, playgrounds, residential neighbourhoods, and other locations where children are present, reduce your speed, kids can be unpredictable.
  • It Can Wait! – No matter what, never use your phone while driving. It takes a split second to hit someone, your attention should be on the road at all time. No text is worth a life – use your Do not Disturb While Driving feature on your mobile device, here’s How: iPhone users https://support.apple.com/en-ca/guide/iphone/iphae754533b/ios  Android users:  https://support.google.com/pixelphone/answer/9140827?hl=en

Advice for Pedestrians:

  • Look Both Ways! – We are taught from a young age to look both ways before crossing the road. It is important to always do this, no matter how familiar you are with the area or how calm the road may appear.
  • Make Eye Contact! – When crossing the street always be aware of drivers. If cars are waiting to turn right, for example, making eye contact with the driver before crossing can be helpful. This way, you know they see you and acknowledge that you’re going to cross.
  • Use the Sidewalk! – You are safer on the sidewalk. If there is a sidewalk, use it. If you absolutely need to walk on the road, walk against the direction of traffic so you can see oncoming traffic at all times.
  • Be Seen! – If you’re walking at night, avoid dark clothing. Wear bright or reflective clothing to ensure you are visible to drivers.

Find more pedestrian tips HERE and check out some myths that pertain to pedestrian safety HERE.

[1]  https://torontolife.com/city/six-people-are-hit-by-a-car-each-day-in-toronto-we-know-how-to-fix-it-so-why-dont-we/

[2] https://www.thestar.com/news/gta/2020/06/07/one-teen-dead-another-pedestrian-in-hospital-after-hit-and-run-in-north-york.html 

Tomec v Economical Mutual Insurance Company, 2019 ONCA 882 (CanLII), leave to appeal to the SCC ref’d 2020 CanLII 37601 (SCC)

Written By: Joseph A. Cescon and Ryan Marinacci, Law Student

*UPDATE* On June 4, 2020, the Supreme Court of Canada dismissed with costs the insurer’s application for leave to appeal the Ontario Court of Appeal’s decision in this matter.

What happens when the Court of Appeal labels the decisions below Kafkaesque?  In Tomec, the insurer, Economical, doubles down on the absurdity.

In Tomec v Economical Mutual Insurance Company, 2019 ONCA 882, the Ontario Court of Appeal allowed an insured’s appeal from an application for judicial review of a decision of the Licence and Appeal Tribunal to deny enhanced housekeeping and attendant care benefits.  The unanimous panel concluded that the rule of discoverability applied to s. 281.1(1) of the Insurance Act and to s. 51(1) of the old Statutory Accident Benefits Schedule such that the two-year limitation period to dispute benefits could not run before an insured was determined to be catastrophically impaired (CAT).

The Appellant sustained serious injuries when as a pedestrian she was struck by a motor vehicle on September 12, 2008.  She applied for and received housekeeping and attendant care benefits.  These benefits were subject to the 104-week limit because at the time the Appellant was not CAT.  Indeed, in August 2010 Economical wrote the Appellant to advise her that she would no longer qualify for the benefits effective September 12, 2010.

Unfortunately, the Appellant’s condition deteriorated.  Significantly.  Economical accepted that she was CAT on November 4, 2015 but nonetheless refused to pay enhanced housekeeping and attendant care benefits.  Although these benefits were no longer subject to the 104-week limit—the Appellant having been determined CAT—Economical took the position that the two-year limit to dispute benefits had been triggered by its letter dated August 2010 and had therefore expired.

At the LAT, the Vice-Chair agreed with Economical.  An application for judicial review was also dismissed by a panel of the Divisional Court.

The Court of Appeal disagreed and allowed the appeal.  The applicable standard of review was reasonableness and the decision of the LAT attracted deference.  However, the Supreme Court of Canada in British Columbia (Securities Commission) v McLean, 2013 SCC 67 left open the possibility that where “the ordinary tools of statutory interpretation” led to a single reasonable result, all other interpretations would necessarily be unreasonable.  In this case, the decision of the LAT to impose a hard limitation was unreasonable.

Writing for a unanimous panel, Justice Hourigan found that discoverability applied such that the limitation period could not run without the denial of a benefit.  This was a relatively straightforward application of the recent Supreme Court case of Pioneer Corp v Godfrey, 2019 SCC 42, where Justice Brown stated that discoverability would apply where the limitation was born out of a cause of action.  Here, that cause of action was the denial of a benefit.  And for there to be a denial, the insured had to be eligible for the benefit.  The Appellant, having not yet been determined CAT, was not eligible for the enhanced benefits at the time of the August 2010 letter, hence the limitation could not run.

Justice Hourigan also found that adopting discoverability was consistent with the SABS’ consumer protection purposes, whereas imposing a hard limitation was not.  Where the SABS were intended to maximize benefits for individuals determined to be catastrophically impaired, this intention would be undermined by a hard limitation that could be triggered even before an individual qualified for those benefits.

Indeed, Justice Hourigan found a hard limitation would lead to an absurd result.  In addition to barring an insured from claiming benefits before he or she was even eligible, a hard limitation would be inapplicable to someone who applied for no benefits before attaining CAT status, or who coincidentally became CAT within the two-year period.  Since there was no principled basis to distinguish between these scenarios, a hard limitation could not stand.

In the result, the Court of Appeal allowed the appeal, set aside the decisions of the LAT and the Divisional Court, and declared that the limitation period with respect to attendant care and housekeeping benefits had not expired.

Why does this matter?

Tomec is now a leading case on limitation periods at the LAT.  It is the first to say that the two year limitation period to dispute accident benefits does not start until there is a denial of a benefit and that there can be no denial until there is entitlement to that benefit.  To date, Tomec has already been cited in eight reported decisions of the LAT:

Under s. 46(2) of the old SABS, interest on overdue payments is compounded at 2% monthly.  At this rate, interest can quickly exceed the principal, the total amount reaching the millions.

With this much money at stake, it is essential to hire a lawyer who understands limitation periods and the obligations imposed on insurance companies.  Just because an individual is not catastrophically impaired today does not mean he or she won’t become CAT years later.  Even though an insurance company says an individual is out of time to claim benefits or dispute a denial, it may not necessarily be the case.  Tomec is a case in point.

The lawyers at McLeish Orlando played critical roles in every stage of the Tomec decisions and understand the nuances of limitation periods and how they can affect the interest on overdue benefits.  Now that the Supreme Court of Canada has decided it will not hear from Economical on this issue, the lawyers at McLeish Orlando will continue to represent our client to ensure she receives the full compensation she deserves.

J.J. v Jevco Insurance, 2020 CanLII 30393 (ON LAT)

Written By: Joseph A. Cescon and Ryan Marinacci, Law Student

motorcycle accidents lawyers

The Licence Appeal Tribunal has re-affirmed that newly acquired vehicles are automatically covered under existing automobile policies for the first fourteen days after purchase.  This in spite of the insurer’s objections that the applicant subjectively believed his motorcycle not to be insured at the time of the accident and the fact that the insurer did not offer insurance coverage for motorcycles.

In J.J. v Jevco Insurance, 2020 CanLII 30393 (ON LAT), Vice-Chair Flude concluded that the applicant was insured to drive his motorcycle at the time of the accident and not precluded from receiving income replacement benefits, visitor expenses, and housekeeping and home maintenance benefits.  Jevco Insurance had sought to deny these benefits on the basis that the applicant was driving his motorcycle when he knew or ought to have known it was not insured at the time of the accident, relying on s. 31(1)(a) of the Statutory Accident Benefits Schedule, O Reg 34/10.

The applicant’s pick-up truck was insured under a policy with Jevco.  On July 4, 2016, the applicant contacted his broker to inquire about adding coverage for a Harley Davidson.  He acquired the Harley on  July 5, 2016 and continued to follow up with the broker to secure coverage.

On July 16, 2016, the applicant was seriously injured when he was ejected from his motorcycle.  He was later declared catastrophically impaired.

Adjudicator Flude found that the applicant had not advised Jevco that he had purchased the motorcycle, nor did he believe the motorcycle to be insured at the time of the accident.  But that did not matter in the result –the motorcycle was covered under s. 2.2.1 of the Ontario Automobile Policy Owner’s Policy.  Under this Newly Acquired Vehicle provision, coverage under existing policies extends to newly acquired vehicles where the policy covers all automobiles owned by the insured and the insurer is notified of the new vehicle within the first fourteen days after purchase.

Here, the crash had occurred on the eleventh day and there had been no notice to the insurer.

The applicant relied on the lower court and appellate decisions in Hunter Estate v Thomson for the proposition that coverage was automatic for the first fourteen days regardless of notice, and Vice-Chair Flude agreed.

Jevco was unsuccessful in its attempt to distinguish the case based on, among other things, vehicle-type and risk to the insurer.  In essence, Jevco argued, coverage could only extend where the newly acquired vehicle was of a similar type to the one already insured – which it argued the motorcycle was not.  Vice-Chair Flude disagreed, and found that there was no such limitation to the definition of newly acquired vehicles on a plain reading of s. 2.2.1,

[24]        …Section 2.2.1. speaks to newly acquired automobiles.  It does not limit itself to like automobiles or automobiles intended for a similar use.  Had that been the intention of the drafters of the policy, it would have been explicitly stated.  The policy defines the coverage.  Jevco must be understood to have known the risk it was covering and that a newly acquired vehicle might be a motorcycle, notwithstanding that it does not cover motorcycles.

Vice-Chair Flude concluded that the applicant had insurance coverage on the day of the crash and hence was not precluded from receiving the benefits in dispute.

Why does this matter?

Even though an insurance company says a vehicle is not insured under an existing policy when an accident happens, that does not necessarily mean that is the case.

The lawyers at McLeish Orlando have extensive experience obtaining Statutory Accident Benefits for clients and litigating those claims.  J.J. v Jevco Insurance is yet another example of a successful disputed denial where an insurer tried to withhold benefits based on what it said was a lack of coverage.  On October 7, 2020, the Licence Appeal Tribunal dismissed Jevco’s application for a reconsideration of Vice-Chair Flude’s decision.  Jevco has since filed a notice of appeal to the Divisional Court.  Stay tuned for what happens next!

Anatomy of a Trial: Successful Trial Strategy

Don’t miss out on the third year of this premier program! Join us for a comprehensive examination of the best techniques for conducting a jury trial. This year we take it one step further and focus on high level trial strategy, providing you with the necessary skills and best practices required for success in the courtroom. Lawyers of all levels from the new litigator who has never conducted a trial, to the seasoned veteran, will benefit from this incredibly practical and valuable program.

You will learn how to think strategically when mapping out the course of your trial, manage documents, open and close to a jury, examine and cross-examine witnesses, and much more. A stellar faculty of trial judges from the Superior Court of Justice and experienced trial advocates will demonstrate these skills, and help you understand the tactical and strategic considerations that go into a trial. From demonstrations to debriefs, this program is a must for litigators of all levels, and trial experience. Join us to observe trial advocacy in action.

Don’t miss out on this incredibly popular program to gain valuable knowledge, insight, and skills to navigate a trial from start to finish.

McLeish Orlando lawyer, Lindsay Charles, will be co-chairing the two-day event.

McLeish Orlando lawyer, Nicole Fielding, will be acting as the witness for the Direct Examination of Plaintiff’s Wife and Cross-Examination of Plaintiff’s Wife at 11:05am and 11:25am on April 23, 2020.

At 1:25pm on April 23, 2020, McLeish Orlando Partner, Joseph A. Cescon will be the demonstrator during the Examination of the Family Physician.

Click here to see the full agenda.

Program Details: 

Thursday, April 23, 2020
8:00am Registration
8:30am-4:30pm Program (reception to follow)

Friday, April 24, 2020
8:00am Registration
8:30am-1:30pm Program

Location: OBA Conference Centre, 20 Toronto Street, 2nd Floor, Toronto, ON M5C 2B8

Program Price: 

CBA Member: $650* | CBA Student Member: $360* | Non-Member: $850*

Additional charge for hard copy materials:  CBA Member: $120* | Non-Member: $250*

Group discounts are available.  Please see details on the right.

(includes e-materials access) *plus applicable taxes

Don’t miss out on this incredibly popular program to gain valuable knowledge, insight, and skills to navigate a trial from start to finish.

Register Now!