Citizens are crying foul after the City of Hamilton posted signs at popular tobogganing spots warning that sledding was banned and violators would be fined up to $5,000. Cash strapped municipalities say they don’t want to be grinches, but they just can’t afford to expose themselves to potential lawsuits. The Agenda asks McLeish Orlando’s Patrick Brown if this is creating a liability chill, and if our court system has lost touch with reality.
Watch the segment on toboggan hills below:
By: Patrick Brown | Published in: The Lawyers Weekly February 6, 2015 Issue |
Extreme sports is a growing industry that is profiting from the human desire to experience the adrenaline rush associated with risk-laden activities. Whether it is racing down a ski hill on a mountain bike, falling from a white water raft, or climbing up a rock face, there is an increased appetite for such thrills. Continue reading
Deanna Zurek suffered soft tissue injuries in a rear-end collision. After a trial, a jury awarded her non-pecuniary general damages, damages for past loss of income, and damages for future care costs. However, it awarded her no damages for future loss of income. Ms. Zurek appealed, citing the trial judge’s erroneous charge to the jury as the reason for the jury’s failure to award damages for future income loss.
The Court of Appeal released its decision in Zurek v. Ferris on November 5, 2010. The Court agreed with Ms. Zurek that many of the trial judge’s comments to the jury were unnecessary and “not germane to the issues the jury had to decide.” It characterized the charge as “unorthodox.” Despite these comments, the Court held that the charge as a whole was fair. It cited the following examples of the trial judge’s attempts to have the jury resolve the issues using relevant evidence:
When a party to a lawsuit refreshes her memory with a privileged statement before examination for discovery, is the privileged waived? In other words, does she now have to produce a copy of the statement to the other side? That was the question that confronted Justice Peter Hockin in Knox v. Applebaum Holdings.
In the Knox case, the property manager at Applebaum Holdings prepared a statement for her insurance company for potential litigation after the plaintiff was injured in the Applebaum parking lot. Before her examination for discovery, the property manager reviewed the statement to refresh her memory. The plaintiff brought a motion to compel the property manager to produce the statement. The plaintiff argued that the property manager may have given evidence that was not a true memory, but rather an account based solely on the statement. Justice Hockin noted that previous cases had held that refreshing one’s memory to prepare for examination for discovery does not amount to a waiver of privilege. In addition, previous cases established that so long as the witness can provide the relevant information, the other party has access to the information and the production of the statement is unnecessary. Justice Hockin agreed with the reasoning of those cases and held that the property manager had not waived privilege. Therefore, the statement was not producible.
It is extremely rare for a judge in Ontario to overrule the decision of a jury.
However, that is precisely what happened in the recent case of Salter v. Hirst. Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.
In the Salter case, George Salter came to the hospital with severe abdominal pain. Over the course of 3 days in hospital, Salter began vomiting and passing blood. Finally, he began to lose feeling in his lower extremities. Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital. After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation. At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.
Salter sued Dr. Hirst for negligence. He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.
After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged. The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.
Dr. Hirst asked the trial judge to overrule the jury’s decision. Continue reading
In a novel decision, Newfoundland court has ruled that victims of moose-vehicle collisions may sue the government for negligently failing to manage the provincial moose population. Last year, there were an estimated 800 collisions or close calls involving moose.
The plaintiffs allege that the government introduced a non-native species of moose to Newfoundland in the early 1900s and since then has failed to manage the population.
The decision opens the door for the class of plaintiffs to move forward with the claim. However, the plaintiffs must still prove that the government has been negligent.
Regardless of the outcome of the lawsuit, we hope that the province can find effective ways to manage the moose population. Moose pose a significant danger to drivers and passengers. A bull moose can weigh over 1100 pounds. When a car hits its long, spindly legs, it crushes them and the top-heavy mass comes hurtling through the windscreen, killing or crushing those in the front seats.
The case has garnered attention from international publications such as The Economist.
This is the second of a series where Patrick Brown discusses the upcoming changes to auto insurance.
The Ontario Government has now stepped up and restored both dignity and respect to the senior community and those families that have lost a loved one at the hands of a bad driver.
The Minister of Finance announced that effective September 1, 20010, the deductible in auto related wrongful death cases will be eliminated. The right to a grandparent to receive compensation when they lose a grandchild will be restored. As well, grandchildren will also be able to advance meaningful claims for compensation when they lose a grandparent to a negligent driver.
One of the most common ways to settle a lawsuit is for the parties to attend a mediation. In Lynne Boulanger’s lawsuit against The Great-West Life Assurance Company, the parties did exactly that. At the end of the mediation, their lawyers drafted a “Settlement Agreement”.
As part of the Settlement Agreement, Ms. Boulanger agreed to sign a release “in a form reasonably satisfactory to counsel for both sides.” At the mediation, Ms. Boulanger read or had the Settlement Agreement read to her and understood its contents.
About a month after the mediation, Ms. Boulanger asked her lawyer to get Great-West Life to approve the release of settlement funds and the reinstatement of her long-term disability benefits, while the parties worked out other issues in the agreement. Great-West Life agreed.
Shortly afterward, Ms. Boulanger had a falling out with her lawyer, and went on to represent herself. She took the position that the claim had not been entirely resolved and did not sign the release. Specifically, she alleged that the issues of punitive damages and damages for mental distress still needed to be resolved.
Great-West Life brought a motion for an Order dismissing the lawsuit.
An occupier of land that opens the land up for recreational use free of charge owes a lesser duty of care than other occupiers of land. That was the judgment of the Ontario Court of Appeal in Schneider v. St. Clair Region Conservation Authority.
Angela Schneider was cross-country skiing with her family on a trail at Coldstream Park. At some point, she left the trail and followed an alternate set of ski tracks. Along that path, she struck her ski on a six inch concrete wall hidden below the snow. The impact caused Ms. Schneider to fall and fracture three bones in her right ankle.
Ms. Schneider sued the St. Clair Region Conservation Authority. At trial, the judge concluded that the Authority fell below the standard of reasonable care required by the Occupiers’ Liability Act. However the Court of Appeal held that the trial judge applied the wrong standard of care. The correct standard to which a recreational trail owner is held is “to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.” Continue reading
Under the Statutory Accident Benefits Schedule (SABS), a person injured in a car accident in Ontario is entitled to receive a weekly income replacement benefit for two years if he or she is unable to perform his or her own occupation. after two years, the injured person is only entitled to receive an ongoing income replacement benefit if the injured person is completely unable “to engage in any employment for which he or she is reasonably suited by education, training or experience.”
In the recent decision of Burtch v. Aviva Insurance Company of Canada, the Ontario Court of Appeal was asked to articulate the proper test for income replacement benefits more than two years after an accident. Specifically, it was asked to consider whether an injured person is considered able to engage in employment if there is a job that the injured person is not currently qualified for but is capable of qualifying for.
The Court of Appeal held that it is not necessary for the injured person to the formally qualified and able to begin work immediately for alternative employment to be considered a reasonably suitable alternative. A job for which the injured person is not already qualified may be a suitable alternative so long as “substantial” upgrading or retraining is not required.
Since the defining regulation for the Bill 198 threshold was passed in October 2003, it has been the subject of a much debate. There have been surprisingly few decisions to provide guidance and new decisions are always welcome.
Only six days into the new year, Madame Justice Milanetti released a new decision that sheds further light on the interpretation of the threshold under Bill 198. It suggests that courts are not interpreting the Bill 198 threshold as a substantial departure from the previous threshold under Bill 59.
Valdez v. Clarke involved a threshold motion brought by a defendant at the end of a three-week jury trial. Mr. Valdez had been involved in three motor vehicle collisions and brought a lawsuit against the defendant driver in the second collision. The jury awarded Mr. Valadez $25,000 in general damages for pain and suffering and loss of enjoyment of life. Because the deductible on general damages is $30,000 under Bill 198, Mr. Valdez would not end up receiving any compensation.
Despite the absence of any financial recovery for Mr. Valdez, Justice Milanetti agreed to hear the defendant’s threshold motion “given the paucity of Bill 198 law on threshold thus far.”
The case of Fernandes v. RBC Life Insurance Company is a reminder of the need to be completely honest and thorough when completing applications for insurance coverage. Where an insured is anything less than completely honest, the consequences can be severe.
Avelino Fernandes worked as a rough carpenter. Mr. Fernandes bought a policy of long-term disability insurance with RBC Life Insurance Company in November 2000. In approximately January 2001, he became disabled from acute meningitis and was unable to return to his work as a rough carpenter. He applied for disability benefits and RBC denied his claim. RBC stated that Mr. Fernandes’ policy of insurance was void because he had made misrepresentations and failed to disclose important medical information on his application. Mr. Fernandes sued RBC for payment of his benefits. At trial, Madame Justice Susan Chapnik found that the application required Mr. Fernandes to disclose the identity of his attending physician, his consulation with that physician four or five months before the date of the application for lumbar pain, and his attendances and treatment from an orthopaedic surgeon on several occasions from 1998 to 2000. Justice Chapnik concluded that Mr. Fernandes failed to disclose and, in some instances, misrepresented facts relating to each of those matters. He dismissed Mr. Fernandes’ claim against RBC.
Mr. Fernandes appealed to the Ontario Court of Appeal. Continue reading
“When is an expert not treated as an expert?” That was the question Ontario Superior Court judge Thomas Lederer asked in the case of Babakar v. Brown .
The Babakars were involved in a motor vehicle collision and were insured by State Farm. They applied to State Farm for accident benefits. At some point, State Farm required the Babakars to attend insurer examinations under section 42 of the Statutory Accident Benefits Schedule with psychologist Dr. Hoath, orthopaedic surgeon Dr. Kadish, and physiotherapist Mr. Diaz. Based on the reports of Dr. Hoath, Dr. Kadish and Mr. Diaz, State Farm terminated the Babakars’ accident benefits.
at the examination for discovery of State Farm’s representative, the Babakars’ lawyer askedState Farm to make the following inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz:
1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.