“A firm can only be as good as the sum of all its parts — to be the best you need all hands on deck and everybody committed to a common goal…McLeish Orlando is known as one of the top, if not the top, personal injury firms, and I believe a lot of that can be attributed to our team mentality,” tells McLeish Orlando lawyer, Brandon Pedersen to Law Times in this piece written by Mallory Hendry.
Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law
OVERVIEW OF THE CASE
In Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719, the defendant moved for an Order compelling the plaintiff to attend a second medical examination pursuant to section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, and an adjournment of the pre-trial conference to allow for service of the subsequent expert report.
The plaintiff alleged that she had sustained both a neck and right arm fracture as a result of a slip and fall on the defendant’s premises in December 2016. Following the completion of the examinations for discovery, the defendant arranged a physiatry medical examination of the plaintiff; a report followed and was served.
In June 2021, 90 days prior to the pre-trial conference, the plaintiff served an expert report from an orthopedic surgeon. The report addressed the plaintiff’s recovery and functional limitations related to her fractured right proximal humerus. In response, the defendant scheduled a second medical examination for the plaintiff with a different orthopedic surgeon to obtain an opinion to counter the plaintiff’s report. The plaintiff refused to attend a further examination, resulting in the defendant’s motion.
THE TEST FOR FURTHER MEDICAL EXAMINATIONS
The Court cited Bonello v. Taylor, 2010 ONSC 5723 as the applicable test for determining when a further examination may be ordered. In Bonello, the overriding factor is trial fairness:
 Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
(iii) Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case.
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
THE COURT’S ANALYSIS
The defendant argued that an examination by a physiatrist was initially conducted because the plaintiff’s main concern was that of chronic pain. The defendant’s physiatry report focused on the plaintiff’s chronic pain and its impact on her day-to-day living. The plaintiff’s subsequent orthopaedic report ultimately focused on the plaintiff’s recovery and functional limitations as it related to her fractured right proximal humerus. The plaintiff argued that if she was required to attend a further examination, she would be prejudiced due to the further delay of the trial.
The Court considered the Bonello factors, stating that while there was no evidence that the defendant was attempting to delay the trial or cause prejudice to the plaintiff, it appeared that the defendant was trying to repair the expert opinion given by the physiatrist. The Court explained that there was nothing unfair in the circumstances in requiring the defendant to base its case on the physiatrist’s report. The Court agreed that there was no evidence that more assessments of the plaintiff’s condition was required for a fair trial.
The defendant’s motion for an Order to compel the plaintiff to attend a second medical examination was dismissed. The Court was satisfied that the defendant must be held to their choice to proceed with a first examination of the plaintiff by a physiatrist instead of an orthopedic surgeon. The defendant had the opportunity to wait until the plaintiff served their first report and make their decision based on the specialty of the plaintiff’s report that was served.
WHY THIS MATTERS
While the Court will consider each case on a case-by-case basis, this decision serves as a reminder that if the defence decides to obtain an expert medical opinion prior to the plaintiff doing so, it may be unable to obtain a further opinion to rebut or counter the findings of a subsequently served plaintiff report.
Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law
Overview of the Case
McKee v. Marroquin is a case arising from a motor vehicle collision that occurred on June 10, 2016, in which the plaintiff was seriously injured. The plaintiff issued a statement of claim on August 21, 2017, alleging that the accident and resulting injuries were due to the negligence of the defendants. In response, the defendant served a statement of defense and jury notice on December 14, 2017. Upon the completion of examinations for discovery of all parties, the plaintiff filed the trial record on April 20, 2018. The defendants objected, stating that numerous undertakings given by the plaintiff on discovery were still outstanding.
On November 15, 2019, the parties attended a pre-trial conference and were advised that they were ready to proceed to trial. The action was subsequently set down for trial for May 2020. Due to the disruption of the regular operation of the courts as a result of the COVID-19 pandemic, the trial was delayed. At a second pre-trial conference in June 2020, the parties once again advised that they were ready to proceed to trial. The trial was delayed once again and ultimately adjourned to the blitz sittings in January 2022 to be heard with a jury.
Leave under Rule 48.04(1)
The defendants objected to the plaintiff’s ability to bring a motion to strike the jury notice in violation of Rule 48.04(1). Under Rule 48.04(1) of the Rules of Civil Procedure, a party that has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.
The defendants maintained the position that the plaintiff should not have been able to bring a motion due to the fact that the action had already been set down for trial. The defendants’ further argued that the plaintiff had not answered all of the undertakings given on discovery.
Emery J., for the Court, outlined a three-step test to determine whether leave should be granted under Rule 48.04(1):
 First, the court must determine whether the change to the circumstances is substantial or unexpected. Second, the court goes on to decide whether it would be manifestly unjust if leave was refused, or if it is necessary in the interests of justice to grant leave, as the case may be. Third, the court should exercise its discretion whether to grant leave having regard to all of the circumstances.
In granting leave, Emery J. referenced recent decisions on motions to strike jury notices in actions from Central West Region, the majority of which found that the pandemic was a substantial or unexpected change in the circumstances such that leave to bring the motion to strike should be granted.
Motion to Strike
Emery J. reviewed the principles related to motions to strike the jury notice:
 The bedrock principles behind the right to a jury in a civil case, what is required to displace that right, and the discretion of a judge to strike a jury notice are well settled. Those principles were reviewed by Hourigan J.A. on the appeal in Louis v. Poitras, and by Trimble J. in Roszczka. Notably, they include the principle restated by the Court of Appeal in Cowles v. Balac 2006), 2006 CanLII 34916 that the right to a civil jury trial is a substantive right that must not be interfered with except for just cause or cogent reasons. The Court in Girao v. Cunningham, 2020 ONCA 260 also confirmed that, while the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality.
 Brown J.A. described the scope of this discretion in Belton v. Spencer, 2020 ONCA 623 as a qualified right. The judge hearing the motion has “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.” Brown J.A. went on to emphasize that the paramount objective of the civil justice system is to provide the means for the disputes of parties to be resolved in the manner most just between the parties.
 In Louis v. Poitras, Hourigan J.A. put a fine point on this discretion by stating that “motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.” This corresponds with the view expressed by Brown J.A. in Spencer that the discretion given by the law to the presiding judge is intended to better serve the justice between the parties. The question of whether a jury notice should be struck is case-specific, and best answered by the judge hearing the motion and likely most aware of local conditions.
 Similarly, the motions judge is most able to answer whether striking the jury notice will better serve the justice of the case between litigants in practical terms.
Having regard to all of the circumstances, Emery J. recognized that it would be necessary in the interests of justice for leave to be granted. Emery J. considered the significant backlog of cases requiring jury trials in the coming months and the undue delay that would prejudice the plaintiff’s case, stating that it justified the departure from the defendant’s right to a jury trial.
Jury Conditionally Struck
Emery J. ordered that the action shall remain on the Brampton trial list for the January 2022 sittings. But, if trials by jury are not provided for January 2022, the jury notice is struck, and the trial shall proceed before a judge alone. However, if the matter is not reached during the January 2022 sittings – whether by jury or judge-alone – it shall be set for a trial on the next earliest sittings by jury. If no jury trials are provided at that time, the jury notice is struck, and the trial is to proceed before a judge alone.
Why This Matters
Recent case law supports the view that the pandemic qualifies as a substantial and unexpected change in circumstances in the context of granting leave — this is especially significant for actions that were set down for trial prior to March 2020. As noted by Emery J., the trial list for May 2022 is currently closed in Brampton, and the earliest the parties in this action could expect a jury trial would be January 2023. The recent decisions of the Court overwhelmingly point to the fact that the delays caused by the COVID-19 pandemic will continue to have a significant impact on the regular operation of the courts for the foreseeable future. However, conditionally striking the jury is an attempt to balance the interests of both plaintiffs and defendants by utilizing a modified wait-and-see approach. Given the court’s willingness to favour conditionally striking the jury over an absolute striking, counsel will have to prepare for trial without knowing whether the action will be heard by a jury or by judge-alone.
Written By: Dale Orlando and Emma Pedota, Summer Student
No-fault auto insurance benefits in Ontario are set out in the Statutory Accident Benefits Schedule (“SABS”) which creates three categories of injuries that determine how much money will be available to an individual after being injured in an auto incident. The first category is the Minor Injury Guideline (MIG). An individual will be classified under MIG if they experience whiplash-related injuries, muscular strains/sprains, contusions, and/or lacerations. Individuals who fall under MIG are entitled to $3,500 for their medical-rehabilitation needs.
An individual who does not fall into the MIG will be classified as non-catastrophic (non-CAT) which typically provides up to $65,000 of medical-rehabilitation and attendant care funding, for up to five years.
If an individual has sustained more serious injuries than those outlined under the MIG and non-CAT designation, they may meet the description of catastrophic impairment (CAT). To be found catastrophically impaired, an individual must meet one of the several criteria set out in the legislation. When classified as such by your insurer, the injured person has access to one million dollars over their lifetime for medical benefits, rehabilitation benefits, and attendant care benefits.
The SABS defines catastrophic impairment as one of the following:
- Paraplegia or tetraplegia
- Traumatic brain injury
- Blindness or a loss of vision of both eyes
- Amputation or severe impairment of the ability to move or use one arm or to walk independently
- Physical impairment or a combination of physical impairment that results in 55 percent whole person impairment
- Severe mental/behavioral disorder in three or more areas of function
It is important to note that the designation of a catastrophic injury is different for children than for adults with regard to brain injuries. This is because a brain injury in children may not be immediately apparent. For other injuries, including spinal injuries, blindness, loss of limbs, etc., children are evaluated for a catastrophic injury in the same way as adults.
Catastrophic injuries can be caused by a variety of factors. Some of the most common causes of catastrophic injuries are:
Changes in Ontario Law
Recent changes to Ontario law have made it more difficult for individuals to recover compensation after suffering a catastrophic injury. For example, the previous regime allowed victims to receive up to $1 million in medical and rehabilitation benefits and up to $1 million in attendant care benefits. The current regime has reduced these benefits to allows individuals to receive up to $1 million for medical, rehabilitation, and attendant care benefits.
In addition to receiving benefits from your own insurer, an individual who has been seriously injured as a result of a motor vehicle incident is entitled to sue the negligent party for damages. The tort system is designed to put the innocent injured party in the financial position that he or she would have been if the injury had not occurred. Some of the heads of damages in a tort action include:
- Loss of past income
- Loss of future income
- Cost of attendant care and future care
- Housekeeping and home maintenance
- Special damages
- General damages for pain and suffering and loss of enjoyment of life
In Ontario, there are caps on damage awards that may limit a catastrophically impaired individual’s recovery. For example, there is a limit on damages for pain and suffering, which is capped at about $370,000 as of 2020, subject to inflation each year. However, damages for income loss and future cost of care do not have a cap.
 Najma Rashid, What is Catastrophic Impairment, online: Ontario Trial Lawyers Association Blog < https://otlablog.com/what-is-a-catastrophic-impairment/>.
Written By: Brandon Pedersen & Aidan Vining, Student-at-Law
Factual Background of the Case
A recent case from the Ontario Court of Appeal demonstrates the integral role experts play in medical malpractice litigation. In Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, a gynecologist was found to have negligently caused the death of his patient.
Ms. Hacopian-Armen died in 2011 from Stage IV uterine leiomyosarcoma (“uLMS”), an aggressive form of cancer that originates in the muscular outer layer of the uterus. Diagnosing uLMS is difficult as it has features similar to fibroids, which are fairly common benign, non-cancerous growths. Fibroids cannot be distinguished from uLMS by imaging. Instead, uLMS can be discovered by conducting an endometrial biopsy – a short and simple in-office procedure.
Ms. Hacopian-Armen’s health issues began when she was diagnosed with fibroids in 1999. In 2009, she was referred to the gynecologist for treatment.
Ms. Hacopian-Armen exhibited several risk factors for diseases of the uterus at her first meeting with the gynecologist in 2009. The risk factors included: being over 40 years old, experiencing abnormal uterine bleeding, and never having given birth. The gynecologist conducted a routine swab of Ms. Hacopian-Armen but did not perform an endometrial biopsy.
Unfortunately, Ms. Hacopian-Armen’s symptoms worsened. In April 2011, the gynecologist performed an endometrial biopsy, which revealed that Ms. Hacopian-Armen had a Stage IV cancerous tumour in her uterus. Ms. Hacopian-Armen had a hysterectomy and began chemotherapy, but it was too late. Ms. Hacopian-Armen died in August 2011, four months after the gynecologist discovered the cancerous tumour.
Ms. Hacopian-Armen’s family started a lawsuit against the gynecologist. They alleged that his failure to conduct an endometrial biopsy was negligent, in that conducting said procedure would have likely detected Ms. Hacopian-Armen’s cancer at a much earlier stage, making it likely that her death would have been prevented.
Expert witnesses played a significant role in the trial decision.
The trial judge accepted Ms. Hacopian-Armen’s expert’s opinion that Ms. Hacopian-Armen likely had the cancerous uLMS at the first meeting with the gynecologist, and that had an endometrial biopsy been performed on that date, the uLMS likely would have been detected. The trial judge also found that the Ms. Hacopian-Armen’s prognosis would have been substantially improved if the uLMS had been found and treated in 2009. The cancer could have been removed from her body at that time before it had a chance to spread. The trial judge concluded that but for the gynecologist’s failure to perform the biopsy in 2009, Ms. Hacopian-Armen would probably not have died of Stage IV uLMS. The risk of uLMS was real, and it was foreseeable that if uLMS went untreated, it would likely result in serious injury or death.
Ultimately, the trial judge concluded that:
- The gynecologist breached the standard of care that he owed to Ms. Hacopian-Armen by failing to perform an endometrial biopsy;
- A biopsy performed at the first appointment in 2009 would have detected the uLMS, which would have greatly improved Ms. Hacopian-Armen’s prognosis; and
- The harm that occurred to Ms. Hacopian-Armen and her family members was foreseeable and caused by the gynecologist’s failure to perform the biopsy.
Justice Brown summarized her conclusion as follows:
 Based on all of the evidence adduced at trial, including the medical records, the opinions and testimony of the medical experts adduced on behalf of both parties, the submissions of counsel and the case law, I find that Dr. Haider Mahmoud fell below the standard of care by failing to perform an endometrial biopsy on May 25, 2009. His notetaking fell below the standard expected of a reasonably skilled specialist in his professional field. Further, in failing to perform an endometrial biopsy on May 25, 2009, this allowed the plaintiff’s LMS to progress to the point that the course of the disease was unable to be altered by the time it was finally diagnosed. It was foreseeable, and not too remote, that the negligence would result in the plaintiff’s final loss. I am satisfied that causation, both factual and legal, have been established.
The gynecologist challenged the trial decision based on alleged errors in the trial judge’s conclusions on legal and factual causation.
The gynecologist argued that the trial judge relied on retrospective reasoning and the benefit of hindsight in determining causation. It was argued that the trial judge erred by asking whether it was foreseeable that the presence of uLMS, if untreated, would lead to serious injury or harm. Rather, the gynecologist argued that the proper questions to be asked were whether it was foreseeable to a reasonable gynecologist that (a) Ms. Hacopian-Armen had uLMS in 2009; (b) an endometrial biopsy would have diagnosed the uLMS; and (c) not performing an endometrial biopsy could lead to a delayed diagnosis of uLMS. This is because, the gynecologist argued, uLMS is a rare form of cancer and the harm was too remote and unforeseeable.
The gynecologist argued that the trial judge’s retrospective approach to causation would create a dangerous precedent and force physicians to order unnecessary tests to avoid the risk of missing unforeseeable diseases.
The unanimous panel at the Court of Appeal agreed that the trial judge inappropriately blended her factual and legal analysis with hindsight. However, the Court held that it did not matter that the gynecologist did not know that Ms. Hacopian-Armen had uLMS in 2009. What mattered was the combination of risk factors being presented by Ms. Hacopian-Armen at the time. Due to her age, the fact that she had not had a child, and the symptoms she was having, an endometrial biopsy was required and it was reasonably foreseeable that the failure to conduct one would preclude detection of uterine diseases which would cause serious harm if left untreated.
The Court stated that it is sufficient that the harm suffered is of a kind, type or class that was reasonably foreseeable as a result of the gynecologist’s negligence. By failing to conduct a biopsy that would have detected cancers of the same class or kind as uLMS (including uLMS itself), it was foreseeable that uLMS or other cancers of that kind would go undetected, resulting in injury to Ms. Hacopian-Armen.
The Court also rejected the argument that this case would result in doctors ordering unneeded tests. In this case, due to Ms. Hacopian-Armen’ symptoms and risk factors, a biopsy was actually necessary and ought to have been performed by a competent gynecologist.
The Court therefore rejected this ground of the gynecologist’s appeal and upheld legal causation.
The gynecologist also argued that the judge erred in finding that but for his negligence, the injury would not have occurred. Specifically, the gynecologist argued that the trial judge erred in (a) finding that uLMS was likely present at the first meeting in 2009, and (b) in finding that an endometrial biopsy would have likely detected uLMS in 2009.
The Court determined that the standard of review applicable to this case was one of palpable and overriding error, as negligence matters involve questions of mixed law and fact. The trial judge’s treatment of expert evidence was therefore given deference.
The trial judge explicitly found Ms. Hacopian-Armen’s experts to be more reliable than those of the gynecologist. Two experts testified on behalf of Ms. Hacopian-Armen that uLMS was likely present in 2009 when Ms. Hacopian-Armen was first examined by the gynecologist. The trial judge accepted this evidence and rejected the gynecologist expert’s opinion that there was no proof of uLMS being present in 2009. The Court of Appeal found no error with the trial judge’s acceptance and rejection of expert evidence.
The Court of Appeal also found no error with the trial judge’s acceptance of Ms. Hacopian-Armen’s expert opinion that uLMS likely would have been detected had a biopsy been conducted in 2009. When there are conflicting expert opinions presented by the parties, a trial judge is entitled to accept one side’s expert opinion over the other. The trial judge found Ms. Hacopian-Armen’s experts to be “forthright, impartial and consistent” whereas the gynecologist’s experts were described as “less than forthright” and “argumentative.” The trial judge found Ms. Hacopian-Armen’s experts to be more credible and thus accepted their evidence over the gynecologist’s experts.
The appeal was ultimately dismissed, and the trial judge’s finding of liability on the gynecologist was upheld.
Why This Matters
This case demonstrates the significant role experts play in medical malpractice litigation. Due to the technical and complex nature of these cases, judges rely heavily on expert evidence to inform their opinion and ultimate decision of a case. For this reason, it is important that you obtain an experienced personal injury lawyer that is familiar with dealing with experts and complicated cases. Obtaining the right expert for your case and obtaining the best evidence from that expert can be the difference between winning and losing a case.
If you or a loved one have been injured, please contact McLeish Orlando Lawyers LLP.
Written By: Nick Todorovic and Daniel Garas, Summer Student
Can plaintiffs request a mediation to take place even before things, such as discoveries, have occurred? Section 258.6(1) of the Insurance Act, a provision that is not well known, actually provides for mandatory mediations. The provision states the following:
258.6 (1) A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect of the claim on behalf of an insured or that receives a notice under clause 258.3 (1) (b) in respect of the claim shall, on the request of either of them, participate in a mediation of the claim in accordance with the procedures prescribed by the regulations.
Failure to comply
(2) In an action in respect of the claim, a person’s failure to comply with this section shall be considered by the court in awarding costs.
DECISION BY JUSTICE FIRESTONE
In the 2018 decision of Thomson v Portelance, Plaintiff wished to schedule a mediation prior to examination for discoveries so that the “action [could] be set down for trial as soon as possible in order to advance the litigation expeditiously.” Not surprisingly, the Defendants, in this case, refused to schedule the mediation before the discoveries.
Justice Firestone held that “once a party requests that mediation be scheduled, the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process. The appointment of a mediator and scheduling of mediation is in no way contingent on the completion of discovery.”
When a plaintiff requests that mediation be scheduled under section 258.6(1), the defendant has a “positive obligation to appoint, schedule and conduct such mediation within the timeframes and procedures set forth” under 258.6(1) of the Insurance Act.
What this means is that if mediation is requested under the relevant provision of the Insurance Act, the parties must proceed to prepare for that mediation – through the appointment of a mutually agreed-upon mediator. A defendant cannot refuse mediation simply because different procedures within the litigation process which typically occur before mediation, have yet to take place.
Requesting mediation under section 258.6(1) will help plaintiffs get over the currently mandatory mediation hurdle much faster and allow claims to be resolved expeditiously, which in turn has the potential of relieving the backlogged court system.
 Thomson v Portelance, 2018 ONSC 1278.
 Ibid at para 1.
 Ibid at para 11.
Written By: Patrick Brown and Daniel Garas, Summer Student
In the recent decision of Moore v 7595611, the Ontario Court of Appeal upheld an award of $250,000 for loss of care, guidance, and companionship – a new watermark for damages of this kind.
The previous high-end for this head of damages was $100,000, established in To v. Toronto (City) Board of Education. This 2001 decision involved a student that was killed during his physical education class when the handball net, on which he was doing pull-ups, fell on his head. Under loss of care, guidance, and companionship, the parents were each awarded $100,000 – an award that would not be interfered with by the Ontario Court of Appeal.
In the decision released on June 25, 2021, a unanimous Court dismissed the appeal by the numbered company. The Appellant, among other issues raised, challenged the jury award for loss of care, guidance, and companionship ($250,000 to each Plaintiff).
This case arose when the Plaintiffs’ daughter, as tenant, suffered serious injuries which she sustained during a house fire. She was trapped, with no way of escape, and later died at Sunnybrook Hospital.  The Plaintiffs decided to commence an action against the Defendants for their negligent conduct.
The numbered company cited To v. Toronto (City) Board of Education, for the proposition that the award of $250,000 was too high. The Appellants specifically quote paragraph 37 of the To decision, where the Court held that the $100,000 award represented the “high end of an accepted range of guidance, care, and companionship damages.”
Despite this, the Court held that the threshold for interfering with a jury award is “extremely high” and in the present case, agreed with the Plaintiffs’ that it should not interfere because the high standard had not been met. The Court further noted that the decision in To stated that “each case must be given separate consideration.”
The Court of Appeal states that ultimately “there is no neat mathematical formula that can be applied to determine the correct amount” when calculating this type of damages.
In summary, Justice Fairburn writes that “while there is no question that the jury award for loss of care, guidance, and companionship, in this case, is high, in light of the factual backdrop of this case, it does not constitute an amount that ‘shocks the conscience of the court’…Nor does it represent an amount that is ‘so inordinately high’ that it is ‘wholly erroneous’ in nature.” (Emphasis is my own)
WHAT THIS ALSO MEANS
Even though this case deals with the loss of a daughter, the amount and decision by the court of appeal should impact all awards relating to loss of care, guidance, and companionship (including loss of spouse, parent, grandparent) as well as adjusting the ranges given by judges at trial.
If you or a loved one has been injured, please contact the lawyers at McLeish Orlando LLP for a free consultation.
 Moore v. 7595611 Canada Corp., 2021 ONCA 459 [Moore].
 To v. Toronto (City) Board of Education, 150 O.A.C. 54, 204 D.L.R. (4th) 704 [Toronto Board].
 Ibid at para 3.
 Ibid at para 31.
 Moore, supra note 1 at para 1.
 Ibid at paras 2 and 3.
 Ibid at para 22.
 Ibid; Toronto Board, supra note 2 at para 37.
 Moore, supra note 1 at para 24.
 Ibid at para 26.
 Ibid at para 27; Toronto Board, supra note 2 at para 29.
 Moore, supra note 1 at para 27.
 Ibid at para 30.
Written By: Salvatore Shaw and Emma Pedota, Summer Student
McLeish Orlando celebrates its achievement in the recent decision Haines v. Aviva Insurance Company of Canada, where Salvatore Shaw and articling student, Ryan Marinacci, were successful at the Licence Appeal Tribunal (LAT) in defeating the insurance company’s claim that our client’s right to claim accident benefits was statute-barred.
The Applicant was injured in a motor vehicle accident in February of 2016 and applied for attendant care benefits (ACBs). The Applicant was initially afforded ACBs from March to November of 2016, however, his insurer later terminated these benefits on the basis that they were neither reasonable nor necessary. On taking over the file from a previous lawyer in 2019, McLeish Orlando was successful in January of 2020 in having the Applicant deemed catastrophically impaired (CAT).
Following the CAT determination, our office submitted an Assessment of Attendant Care Needs (“Form-1) seeking post-104 week ACBs on behalf of the Applicant. This benefit was denied, and the insurer relied on its refusal letter from 2016 that terminated attendant care benefits to the previous lawyer to refuse payment of the benefits and claimed that the time to dispute the denial was now statute-barred. McLeish Orlando applied to the Licence Appeal Tribunal (LAT) on behalf of our client seeking payment of these denied benefits. The parties agreed to have the issue of whether the Applicant’s claim was statute-barred as a result of the previous denial determined as a preliminary issue.
The Respondent’s Submissions
In their submissions, the Respondent maintained that the widely cited case of Tomec v. Economical Mutual Insurance Company can be distinguished from the current case as Tomec involved a claim for ACBs and housekeeping benefits which were “pre-emptively” denied, whereas the Applicant’s denial of ACBs, in this case, was not pre-emptive but after payment of the benefit and therefore the earlier denial should stand and the limitation period to dispute the denial now expired.
The insurance company raised this novel argument which they believed took this case outside the scope of Tomec. The Respondent’s relied on the case of R.M v. Certas Home and Auto Insurance which stands for the proposition that when a benefit is not pre-emptively denied, discoverability does not apply, and the date of the denial is fixed. The Respondent’s argued that the Applicant’s catastrophic determination did not alter the decision to deny the benefit as it is inconsequential to the decision.
In attempting to further distinguish Tomec from the case at bar the Respondent’s claimed that unlike in Tomec, the Applicant’s condition in the present matter did not worsen, even though a catastrophic determination was made. They relied on the reduced ACB rate from 2016 to 2020 to suggest that there was an improvement in the Applicant’s injuries and needs, and therefore a claim cannot be said to have been “discovered” when the Applicant is doing better than he was at the time of the denial.
The Applicant’s Submissions
McLeish Orlando maintained that the Applicant was not statute-barred from proceeding with his claim for post-104 week ACBs on account of the fact that he was not eligible for these benefits until he was declared catastrophically impaired. The Schedule provides that only individuals who have been deemed catastrophically impaired are eligible for ACBs past the 104-week mark. Like in Tomec, without the designation of catastrophic impairment, the applicant would not have been entitled to post-104-week ACBs.
McLeish Orlando further submitted that the Applicant was not eligible for post-104 week ACBs at any point before his post-CAT Form 1 was submitted to his insurer on February 13, 2020. Thus, the Respondent’s refusal to pay post-104-week ACBs on the basis of its pre-104-week denial, at which time the Applicant was not deemed catastrophically impaired, is inconsistent with Tomec and incorrect.
Adjudicator Jesse A. Boyce held that the Applicant was not statute-barred from proceeding with his claim for post-104-week ACBs as he was not qualified for this benefit until he was declared CAT. In keeping with the binding direction provided by the Court of Appeal in Tomec, the Adjudicator found that the rule of discoverability did apply to the Applicant’s claim and should therefore be allowed to proceed.
The Adjudicator subsequently held that, contrary to Aviva’s submissions, its 2016 denial of pre-104- week ACBs clearly pre-dates the applicant’s eligibility, so its acceptance of the applicant’s CAT impairment was consequential to the denial as the applicant was not eligible for the benefit he is now claiming. Lastly, the Adjudicator rejected Aviva`s assertion that the Applicant`s condition improved following the 2016 denial as he was deemed catastrophically impaired in January of 2020.
The Adjudicator further noted that had the rule of discovery not applied in this case, he would have exercised the discretion afforded by s. 7 of the License Appeal Tribunal Act to extend the limitation period. S. 7 allows the Tribunal to extend a limitation period if it is satisfied that there are reasonable grounds for granting such relief, based on four factors: a bona fide intention to appeal; the overall delay; prejudice to the parties; and, the merits of the claim. On the first factor, the Adjudicator found that it was impossible for the Applicant to have had the intention to appeal the denial of a benefit he was not yet eligible for. With regards to the overall delay, the Adjudicator rejected Aviva`s argument that the delay was a total of four years as the Applicant applied to the Tribunal within a month of receiving his denial. Finally, the Adjudicator Boyce held that there would be limited prejudice to Aviva if the limitation period was extended, and the merits of the Applicant`s claim were obvious on account of the Applicant`s CAT designation.
The Applicant was not statute-barred by s.56 of the Schedule to advance his claim for ACBs. The parties were asked to contact the Tribunal to arrange a case conference on how to proceed with this matter.
The lawyers at McLeish Orlando played a critical role in this decision and understand the nuances of limitation periods and how they can affect the availability of benefits. By confirming that the Respondent insurer was incorrect in its interpretation of the law, our lawyers will continue to represent our client to ensure he receives the full compensation he deserves.
 Haines v. Aviva Insurance Company of Canada, 2021 ON LAT 20-003388/AABS.
 R.M v. Certas Home and Auto Insurance, 2020 CanLII 87925.
Written By: Nick Todorovic and Cody Malloy, Summer Student
In a June 14, 2021, Superior Court decision, Master Graham held that the defendant was responsible for the costs of cancelled defence medical examinations of the plaintiffs after the plaintiffs refused to sign the medical consent forms.
After the plaintiffs suffered injuries from a motor vehicle collision, the defendant arranged for the plaintiffs to undergo defence medical examinations by Dr. Erin Boynton, an orthopaedic surgeon. Before arriving at the doctor’s office, plaintiffs’ counsel had advised them not to sign any documentation. Upon arrival at the examining doctor’s office, the plaintiffs were asked to sign medical consent forms. The plaintiffs attempted to contact their counsel but were unable to do so, and the plaintiffs were asked to leave. Defence counsel later received invoices for the cancelled appointments, and the defendant brought a motion to recover these costs from the plaintiff.
The defendant argued that the plaintiffs should not have been surprised by having to sign medical consent forms for the examination.  The defendant further argued that the plaintiffs had previously signed consent forms for accident benefits psychological examinations, the doctor’s form was straightforward, the doctor was required to sign an Acknowledgment of Expert’s Duty (Form 53), and the plaintiffs’ counsel should have advised the plaintiffs they would be required to sign a medical consent form. 
The plaintiffs argued that they had never attended defence medical examinations before, and they thought the examinations were being done for the benefit of the defendant, and they wanted legal advice before signing the medical consent forms.  The plaintiffs felt that the brevity of the doctor’s medical consent form was irrelevant because of their unfamiliarity with the adversarial litigation process, and the examining doctor could have forwarded the consent forms to the plaintiffs’ counsel for review beforehand. 
Master Graham pointed to the relevant section of the Courts of Justice Act for the case:
 The relevant Courts of Justice Act provisions with respect to defence medical examinations are s. 105 (2) and (5):
105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
Master Graham referred to Coll v. Robertson, 2020 ONSC 383, which stated that it is appropriate, for the purposes of a defence medical examination, to require a plaintiff to sign a consent form before the examination because the examination is “intrusive” and it is essential that the consent is reduced to writing. 
Master Graham dismissed the defendant’s argument regarding the plaintiffs previously signing consent forms for accident benefits psychological examinations because the psychological examination would determine “what if any psychological treatment the plaintiffs’ first-party insurer should pay for”, whereas the defence medical examinations were “in the context of an adversarial claim for damages”. 
Master Graham also dismissed the defendant’s claim that the consent form was straightforward due to its brief nature because the consent form contained language that was not clear, and therefore not reasonable to expect the plaintiffs to sign the forms without consulting with their counsel.  The Court also dismissed the defendant’s argument that the examining doctor would be required to sign a Form 53 because the plaintiffs would not have understood the content of the form. 
Importantly, Master Graham placed the onus on the defendant to address the requirement for consent for their medical examinations.  Master Graham stated that the defendant should not “simply assume that the plaintiffs, on arriving at the defence medical appointment, will sign a document prepared by the opposing expert that they have never seen before.” 
Master Graham summarized his conclusion as follows:
 I accept that the plaintiffs’ concerns about being asked to sign documents at the defence physician’s office immediately before their examinations were reasonable. This is not to say that there was anything sinister in Dr. Boynton’s request that the plaintiffs sign the forms, but rather that the plaintiffs should have been given the opportunity to seek the guidance of their lawyer before doing so. If the defence expert was going to require the plaintiffs to sign documents prior to conducting the defence medical examinations, it was incumbent on the defendants’ counsel to give the plaintiffs an opportunity to review those documents with their counsel before signing them.
Master Graham ultimately dismissed the defendant’s motion, holding that the plaintiffs “acted reasonably in refusing to sign Dr. Boynton’s consent forms without the opportunity to consult counsel prior to doing so.” 
 Jajjo and Danno v. Singh, 2021 ONSC 4269 (CanLII) at para 9.
 Ibid at paras 12-15.
 Ibid at para 17.
 Ibid at paras 20-21.
 Ibid at para 27.
 Ibid at para 30.
 Ibid at para 31.
 Ibid at para 32.
 Ibid at para 33.
 Ibid at para 37.
Written By: Lindsay Charles and Cody Malloy, Summer Student
In the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997, released on June 15, 2021, the Court held that the LAT has the power, under section 7 of the LAT Act, to extend the two-year limitation period under section 56 of SABS. This decision grants the LAT broad power in allowing for claimants to bring disputes before the tribunal outside of the two-year limitation period.
For reference, section 7 from the LAT Act reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
Section 56 of the SABS reads:
An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
The Court noted that the LAT “has exclusive jurisdiction under s. 280 of the Insurance Act to resolve any disputes ‘in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled’ “ 
The main issues of this case surrounded the Court’s statutory interpretation of the LAT Act:
 There are two issues regarding whether s. 7 of the LAT Act confers jurisdiction to extend the two-year limitation period in s. 56 of the SABS:
(1) whether s.7 has no application to disputes concerning the denial of benefits under the SABS because the limitation period is fixed under regulation and not “by or under any Act” within the meaning of s. 7; and,
(2) whether s. 7 does not apply because an application to the LAT for the resolution of a dispute under the SABS is not a “notice requiring a hearing” within the meaning of s. 7.
Issue 1 – “by or under any Act”
The insurers made three main arguments that the LAT can’t extend the two-year limitation period under SABS:
- SABS is a regulation, not an “Act” 
- The “paramountcy” argument: the specific language of section 56 of SABS conflicts with and is intended to prevail over the broad language of section 7 of the LAT Act 
- The transfer of SABS disputes from the FSCO to the LAT was to promote efficiency, and extending the two-year limitation period under section 56 of SABS would be contradictory 
The Court said the first argument was not persuasive because regulation is made “under an Act”, which in this case is the Insurance Act.  Further, if the Legislature had intended for section 7 of the LAT Act to not apply to the Insurance Act, they would have explicitly said so. 
The insurers’ second “paramountcy” argument failed because paramountcy applies to conflicts between federal and provincial statutes, whereas here the Court is assessing two provincial statutes or statutory schemes.  Further, there is no conflict between SABS and the LAT Act because:
“The Insurance Act sets up a framework for benefits and confers the power to make regulations implementing that framework. The regulations (the SABS) set out the details for the benefits, including the resolution of disputes about those benefits, which in turn include a two-year limitation after benefits are denied. The LAT Act sets out additional rules about proceedings before the LAT, including s. 7, which permits the LAT to extend any limitation imposed by or under any Act. Thus, the LAT Act expressly contemplates a circumstance in which, despite any limitation in another Act, such as the Insurance Act, the limitation may be extended by the LAT.” 
Lastly, the Court found the insurers’ inefficiency argument to not be persuasive. The transfer of cases to the LAT was more about fairness and accessibility to dispute resolution, rather than efficiency.  The Court also noted that the Legislature knew about section 7 when they authorized the transfer to the LAT.  The Court also reasoned that the insurers put forward no evidence that allowing the LAT to extend the section 56 limitation “impairs timely and efficient resolution of disputes. This is simply a conclusory assertion put forward by the insurers without any empirical support.” 
Issue 2 – “notice requiring a hearing”
One of the insurers argued that “the Insurance Act and the SABS refer to an ‘application’ to resolve disputes between insurers and insureds with respect to an insured person’s entitlement to statutory accident benefits” whereas section 7 of the LAT Act refers to a “notice of hearing”. 
The Court dismissed the insurer’s argument because the insurer submitted no evidence distinguishing between an “application” and “notice of hearing”.  Further, the Court noted how the “LAT treats SABS applications as the ‘commencing document’ for a proceeding which entitles an applicant to a hearing”.  Lastly, the Court explained how the LAT hears appeals under other legislative schemes that use “notice requiring a hearing”, “appeal”, and other languages that do not refer to an “application.” 
 Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 7.
 Ibid at para 31.
 Ibid at para 35.
 Ibid at para 36.
 Ibid at para 41.
 Ibid at para 42.
 Ibid at para 49.
 Ibid at para 52.
 Ibid at para 53.
 Ibid at para 54.
 Ibid at para 56.
 Ibid at para 59.
 Ibid at para 60.
Written By: William Harding and Daniel Garas, Summer Student
If you were involved in a collision, it is extremely beneficial to your case if the collision happened in the presence of available witnesses. People that saw the collision take place and can testify that the other driver was at fault for reasons “X, Y, and Z.”
However, there are not always witnesses present at the time of a collision. Further, sometimes there are witnesses present but they cannot be located afterward.
Consider the following scenario: Let’s say you’re on a one-way street or highway and it is very difficult to pull over to the shoulder or to come to a complete stop. You’re involved in a collision. Someone drives by you and says: “I saw that guy in the blue car hit you!” Unfortunately, this potential witness continues driving and cannot be located after the fact. Well, if you want to admit this evidence to support your case, this statement is considered hearsay.
CONCERNS WITH HEARSAY STATEMENTS?
The concerns with hearsay statements surround the inability to cross-examine the person that made the statement – the declarant. If someone is available for cross-examination, then that means that their evidence can be tested. This is not the case with hearsay statements, as the declarant is unavailable for examination.
IS THAT HEARSAY STATEMENT ADMISSIBLE?
There are two ways to admit a hearsay statement, to strengthen your case. 1) Through a traditional exception to the rule against admitting hearsay; OR 2) through the principled approach to hearsay, found in the Supreme Court decision in Khelawon.
If the statement fits a traditional exception, then it is admissible. If the statement does not fit a traditional exception BUT meets the requirements under the principled approach, then it is also admissible. In rare situations, statements that fit within a traditional exception may still be excluded if found to be unnecessary or unreliable.
THE TRADITIONAL EXCEPTION – RES GESTAE (SPONTANEOUS UTTERANCE)
The courts have created a handful of traditional exceptions to the rule against admitting a hearsay statement.
For our purposes, the only one of interest is the res gestae exception. This refers to statements that are made spontaneously in circumstances of emotional intensity. To fall within this exception, the statement must have a tight temporal connection or be sufficiently contemporaneous to the event in question. In R v Khan, Madam Justice McLachlin held that the criteria for a tight temporal connection was not met, since ten to fifteen minutes had passed from the event to the time the statement was made.
APPLICATION – “I SAW THAT GUY HIT YOU!”
This statement will fall under the res gestae traditional exception since the person that made it, did so at the moment the event occurred. There’s a certain level of emotional intensity that is met, along with a tight temporal connection between the statement and the event (the collision).
THE PRINCIPLED APPROACH
Let’s assume that the statement, somehow, was not admissible under the traditional res gestae exception. Our analysis then shifts to the principled approach.
In order for a hearsay statement to be admissible under the principled approach, it must be found to be both necessary and reliable.
A statement is necessary where A) the witness is unavailable because they have disappeared/died or B) they are withholding evidence and refusing to testify.
A statement meets the required level of threshold reliability, to be admitted, if it has substantive reliability (in other words, there are sufficient circumstantial or evidentiary guarantees in place, that make the statement inherently trustworthy) or if there is procedural reliability: meaning there are procedural substitutes in place, for the fact that we cannot cross-examine the person that made the statement.
Since the declarant is not present, 1) we cannot witness them take an Oath before testifying, 2) they are not present for us to observe their demeanor, and 3) they are not available for cross-examination. So, in order for procedural reliability to be met, we need to have substitutes for these three things, such as having the previous statement videotaped after the declarant takes an oath on camera.
A statement that does not have procedural reliability can still be reliable if it is found to have substantive reliability. The question here is whether something in the circumstances makes the statement reliable – whether there are “indicia of trustworthiness”.
The trier of fact will look at: the presence or absence of a motive to lie; the declarant’s general reputation or their likeliness of truthfulness; the presence of corroborating/supporting or conflicting evidence; the timing and spontaneity of the statement (how soon after the event); the content of the statement; and whether the statement was made under circumstances of suspicion.
APPLICATION – “I SAW THAT GUY HIT YOU!”
*Assuming this statement was not admissible under the traditional exception.* The statement made by the unavailable potential witness, would be admissible under the principled approach.
The statement meets the requirement of necessity because the witness has disappeared – we don’t know where he is and we have no way of determining!
This statement would not meet procedural reliability, because it was not videotaped.
However, the statement would likely be found to have substantive reliability.
For the purpose of this illustration, let’s assume that there is corroborative evidence that supports that the other driver was to blame. Maybe a forensics expert tested the crash using the same variables. Maybe the maintenance of both vehicles was reviewed and your vehicle was the only one with proper working brakes.
In addition to this corroborative evidence, there would likely be sufficient circumstantial or evidentiary guarantees in place, which make the statement inherently trustworthy. There was an absence of a motive to lie (what motive would this witness have to lie – he does not know either party and his day will resume as planned), the statement was not made in circumstances of suspicion (again his day will continue as planned), and the statement was spontaneous (the timing of the statement was immediately after the incident had happened).
Considering all of these, the statement is admissible under the principled approach because it is both necessary and has indications of it being reliable.
THE GENERAL EXCLUSIONARY DISCRETION
The Court can still exclude evidence that makes it this far, by using their GED function. If it is determined that the probative value of admitting the statement, is outweighed by its prejudicial effects, then the statement can still be excluded. However, it is very unlikely that a statement that falls under a traditional exception or meets the requirement of the principled approach is otherwise excluded.
In conclusion, if after you’ve been involved in a collision, someone (now unavailable) yells “I saw that guy hit you!”, their evidence is likely going to be admissible.
While that statement is a hearsay statement, we’ve just discussed how it may be admissible and if admissible, it will strengthen your case!
 R v Khelawon, 2006 SCC 57.
 R v Starr, 2000 SCC 40 at para 48.
 R v Khan,  2 S.C.R. 531,  S.C.J. No. 81.
 R v Bradshaw, 2017 SCC 35; R v KGB,  1 S.C.R. 740,  S.C.J. No. 22.
 R v Blackman, 2008 SCC 37 at para 38.
 Khelawon, supra note 1 at para 53.; Khan, supra note 3 at para 36. The Court in Blackman held that this factor is not determinative: R v Blackman, supra note 5.
 Khelawon, supra note 1 at paras 51 and 93. Contrary to Starr which initially held that the declarant’s general veracity or reputation for truthfulness should not be considered.
 Khelawon, supra note 1 at para 4. Corroborating evidence is subject to the test laid out in Bradshaw, supra note 4.
 Khan, supra note 3 at para 32.
 In other words, within the statement itself, is there something against the declarant’s interest?; Like in Khan, is the content something that a child would be unlikely to know about, unless the statement is likely true?
 Starr, supra note 2 at para 209.
Written By: Salvatore Shaw and Danny Garas, Summer Student
As the weather in Toronto begins to warm up, we begin to see more and more motorcycles on our roads and highways.
In 2013, the Globe and Mail reported that motorcyclists are “at least 15 times more likely to be involved in a crash than automobile drivers.”
In November of 2017, the Toronto Sun also reported a frightening statistic – “motorcycles account for about 10% of motor vehicle deaths while making up only 2% of traffic on the roads.” Even more worrisome is that injuries from motorcycle collisions are “10 times as severe as those resulting from collisions involving cars.”
TIPS FOR RIDERS
In Ontario, helmets are mandatory. The reason is that helmets lower the likelihood of a rider suffering a concussion or critical head or neck injury.
Riders want to make sure that they wear a proper-fitted helmet at all times when riding.
Sizing of your helmet will vary depending on the brand. After measuring your head for a properly-sized helmet, you will notice that the first time you wear your helmet it will be slightly tight. This is normal, as long as it is not causing you any pain. After wearing the helmet for 30 minutes and experiencing no issues, you’re ready to ride!
Helmet lifespan: most people recommend that used helmets be replaced every five years (or seven years from production), assuming the helmet has not degraded in the sunlight. Of course, if the helmet has either been dropped or impacted in a previous fall/accident, the lifespan of the helmet will be shorter.
Helmet requirements can be found under regulation 610 of the HTA. There are very limited exceptions.
Riders must equip their motorcycle with at least two lights – a white light on the front and a red light on the back of the motorcycle. Motorcycles with a sidecar must carry three lights: two on the front and one on the back.
When riding, it is recommended that you wear “light and bright colored outerwear.” Riders should refrain from wearing darker colours such as dark purple, grey, and black.
It’s not just about what you’re wearing, the colour of the motorcycle is also important! Researchers from the University of Kentucky, for example, determined that of all collisions where a driver collided with a rider due to failure to observe the motorcyclist, 36% of those motorcycles were black.
In addition, the Ministry of Transportation recommends improving visibility by adding reflective tape to your helmet, clothing, and motorcycle. This is especially helpful if riding at night!
Other Tips for Riders
- Check the weather before going out.
- On roads where there are more than two lanes, it is always recommended to pass motorists on the left side. The Ontario Ministry of Transportation warns that “passing on the right can be more dangerous.”Part of the reason is that when passing on the left side, you are on the driver’s side (meaning a higher chance that they see you in their blind spot).
- When riding a motorcycle, “lane sharing, splitting and filtering are prohibited”…because it’s dangerous.
· When riding in groups, maintain a good amount of distance between each rider.
- Avoid riding too close to motorists or riding in their blind spots.
- Avoid riding on gravel roads or roads that are in poor conditions and bumpy. Drivers can more easily stabilize their vehicle after hitting a bump in the road, the same cannot be said for riders!
TIPS FOR DRIVERS: HOW MOTORISTS CAN HELP AVOID COLLISIONS WITH MOTORCYCLISTS
Share the Road
For some reason, motorists seem to get nervous when they spot a motorcyclist. Drivers need to remember that if a collision takes place between them and a motorcyclist, the rider is more likely to be injured. For this reason, extra caution must be displayed when driving around motorcyclists.
Dooring: Be careful when opening the door on the driver’s side. It won’t be fun for a rider if they unexpectedly come into contact with your vehicle door.
Don’t drive while distracted. Since motorcycles are much smaller than other vehicles, they are much harder to see. Don’t be glancing down at your phone or driving distracted, because this will decrease your likelihood of seeing a motorcyclist and impair your ability to react.
Check your blind spots whenever you are changing lanes or completing a turn.
INJURED IN A MOTORCYCLE COLLISION?
Sometimes, even the most cautious riders may be involved in a collision.
 Fatal Two-Vehicle Motorcycle Crashes, U.S. Department of Transportation, National Highway Traffic Safety Administration, September 2007, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/810834 [PDF].
 Why I don’t ride motorcycles – as much – any more, the Globe and Mail, June 27, 2013, https://www.theglobeandmail.com/globe-drive/culture/commuting/why-i-dont-ride-motorcycles-as-much-any-more/article12834643/.
 Motorcycles are more dangerous than ever: Ontario study, Toronto Sun, November 20, 2017, https://torontosun.com/news/provincial/motorcycles-are-more-dangerous-than-ever-ontario-study.
 Highway Traffic Act, RSO 1990 c H.8, at section 104 [HTA].
 How to Choose the Safest Motorcycle Helmet 2020, supra note 8.
 Motorcycle Helmet Size Guide – How to Measure & Fit the Right Helmet, Motosport, June 2, 2021, https://www.motosport.com/blog/motorcycle-helmet-size-guide-how-to-measure-fit-the-right-helmet.
 How to size and buy a motorcycle helmet, RevZilla, May 25, 2019, Andy Greaser, https://www.revzilla.com/common-tread/how-to-buy-and-size-a-motorcycle-helmet.
 Do Motorcycle Helmets Have an Expiry Date?, New Touring Rider, May 30, 2021, https://newtouringrider.com/do-motorcycle-helmets-have-an-expiry-date/; Lifespan of a Motorcycle Helmet, Crampbuster, May 1, 2017, https://www.crampbuster.com/motorcycle-helmet-lifespan/#:~:text=The%20industry%20standard%20states%20that,it%2C%20time%20to%20trash%20it; How to Choose the Safest Motorcycle Helmet 2020, Motorcycle Legal Foundation, March 24, 2020, https://www.motorcyclelegalfoundation.com/the-safest-motorcycle-helmet-you-can-buy/ [How to Choose the Safest Motorcycle Helmet 2020].
 Safety Helmets, RRO 1990, Regulation 610 (under HTA, RSO 1990 c H 8).
 HTA, supra note 5 at section 62(2).
 Ibid at section 62(3).
 Six ways of being visible when riding a motorcycle, KimpexNews, June 1, 2018, https://blog.kimpex.com/six-ways-of-being-visible-when-riding-a-motorcycle.
 Causes and Countermeasures Related to Motorcycle Crashes, University of Kentucky: College of Engineering, Kentucky Transportation Centre, March 2011, https://uknowledge.uky.edu/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1028&context=ktc_researchreports [PDF].
 Motorcycle Safety, Ministry of Transportation, Ontario, http://www.mto.gov.on.ca/english/safety/motorcycle-safety.shtml [Motorcycle Safety].
 The Official Ministry of Transportation (MTO) Driver’s Handbook: Changing Positions, Updated on May 8, 2019, https://www.ontario.ca/document/official-mto-drivers-handbook/changing-positions.
 Motorcycle Safety, supra note 15.
 Picture taken from Motorcycle Lane Splitting, Motorcycle Legal Foundation, September 30, 2019, https://www.motorcyclelegalfoundation.com/motorcycle-lane-splitting-guidelines/.
 Motorcycle Safety, supra note 15.
 Picture taken from Group Riding Best Practices, Rider Magazine, Jenny Smith, October 31, 2019, https://ridermagazine.com/2019/10/31/group-riding-best-practices/.
 Picture taken from Motorcycle Safety, supra note 15.
 Sharing the road with other users, Sharing the road with motorcycles and limited-speed motorcycles, Ministry of Transportation Ontario, Updated on March 20, 2020 https://www.ontario.ca/document/official-mto-drivers-handbook/sharing-road-other-road-users#section-1.
 Do Motorcycles Brake Faster Than Cars?, Brake Experts, https://brakeexperts.com/do-motorcycles-brake-faster-than-cars/.
Written By: Dale Orlando and Cody Malloy, Summer Student
Municipalities owe a duty of care to individuals to protect them against bodily harm and property damage. Municipalities have to protect people and their property from a variety of hazards, such as potholes, tree or branch damage, floods, and various other types of hazards.
One of the most common claims against a municipality is negligent road repair. The drastic change in temperate from cold winters to hot summers creates no shortage of potholes on Toronto roadways.
If I’m a victim of the City of Toronto’s negligent road repair, what’s my next step? According to the City of Toronto Act section 42(6), in order to advance a claim against the City of Toronto for damages arising out of their negligent road repair, written notice must be given to the city clerk within ten days of the incident. Failure to provide written notice is a complete bar to bringing an action unless the injured party dies or has a reasonable excuse for not providing notice and the City is not prejudiced in their defence by the failure to provide notice within the specified time.
The recent Superior Court of Ontario decision Graham v. City of Toronto, 2021 ONSC 2278 examines the exceptions to the mandatory 10 day notice period where. Papageorgiou J. held that a plaintiff was able to file a claim against the City despite filing more than three months after the limitation period had expired.  In Graham, the plaintiff suffered injuries after tripping on a large, deep pothole on a pedestrian crosswalk on January 2, 2018. The plaintiff did not give the City notice of her claim until March 22, 2018. The City filed a motion to dismiss the claim since the plaintiff failed to give proper notice under section 42(6) of the City of Toronto Act.
Plaintiff’s reasonable excuse for delay
Papageorgiou J. recognized different factors relevant to a plaintiff’s reasonable excuse, such as the seriousness of the injury and any treatment associated with it, whether the plaintiff was capable of forming the intention to sue the municipality, the length of the delay, and the explanation for the delay. 
The plaintiff’s explanation for her delay was given in her affidavit, which stated that she had “never been injured before, was dealing with work and treating my injuries, and had never dealt with anything like this before. I was also unaware of the ten-day notice period and remained undecided as to whether I wanted to make a claim until I realized that my injuries were not resolving.” 
Additionally, the plaintiff’s family doctor thought she would get better with physiotherapy, but after a couple of months, the plaintiff realized her injuries were more severe than her family doctor thought.  Papageorgiou J. also noted that it took time for the plaintiff to realize her injuries would affect her lifestyle in the form of being unable to ski or golf. 
Papageorgiou J. ultimately found the plaintiff’s excuse to be reasonable because she demonstrated that her uncertainty with regards to suing the City stemmed from waiting to see if her injuries would heal. 
Prejudice to the City
To overcome this prong of the test, the onus is on the plaintiff to show the City was not prejudiced by the delay.  Evidence that is relevant for the plaintiff might include the City investigating the scene despite no notice, the plaintiff taking timely photographs of the scene, and the plaintiff obtaining witness information from the scene of the incident. 
In Graham, the plaintiff produced evidence such as retaining a forensic engineer who measured the pothole dimensions from the photographs taken by the plaintiff and the City fixing the pothole shortly after her incident due to an unrelated complaint about the size of the pothole.  Additionally, the plaintiff’s three-month delay in providing notice was relatively short in comparison to previous cases that had been permitted to proceed despite significantly longer delays in giving notice. For these reasons, Papageorgiou J. held that the City was not prejudiced by the plaintiff’s claim.
Ultimately, Graham is a great illustration of the exception to the ten-day notice requirement in the City of Toronto Act. The Superior Court of Ontario has reaffirmed that victims of municipal non-repair are not strictly held to the notice requirement.
If you are a victim of an injury from a pothole or any other form of municipal non-repair, McLeish Orlando is here to help. Please contact us for a free consultation, and one of our lawyers will evaluate your claim.
 Graham v. City of Toronto, 2021 ONSC 2278 at para 48.
 Ibid at para 18.
 Ibid at para 20.
 Ibid at para 22.
 Ibid at para 23.
 Ibid at paras 34.
 Ibid at para 38.
 Ibid at para 39.
 Ibid at para 43.
 Ibid at paras 35 and 44.