Tag Archives: Lindsay Charles

Safety Equipment Requirements while Paddle Boarding, Canoeing and Kayaking in Ontario

Written By: Lindsay Charles and Emma Pedota, Summer Student

Safety Equipment Requirements while Paddle Boarding, Canoeing and Kayaking in Ontario

Certain safety equipment is required while onboard a stand-up paddleboard (SUP boarding), canoe, and kayak as these human-powered boats are subject to the Small Vessel Regulations.[1] For example, if you’re operating a paddleboard, kayak, or canoe without a personal flotation device (PFD), you could be fined $200 plus $100 for each missing flotation device and be subject to provincial surcharges. The required equipment must be carried on board, be in good working order, maintained according to the manufacturer’s instructions, and available immediately in case of an emergency.[2]

MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR STAND UP PADDLEBOARDS (SUP)

If you are SUP boardings for non-navigational purposes, such as doing yoga or surfing, you do not need to bring any of the following equipment with you.

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
PFD Personal Lifesaving Appliance You are required to wear a Canadian-approved PFD. Inflatable PFDs are not legal for white-water paddling as they are not inherently buoyant.[3] For a PFD to meet safety regulations you have to be wearing it while you’re on the water.

 

Inflatable PFDs are prohibited for children under 16.

Sound Signalling Device Audio Signal A sound signaling device can be in the form of a whistle, pealess whistle, air horns, etc., and often come with an approved PFD.

 

Flashlight Visual Signal If your paddleboard is more than 6 meters long, as is the case with most paddle boards, you will need a watertight flashlight.

 

A flashlight is especially important when paddleboarding before sunrise, at sunset, or in any condition with reduced visibility.

 

OPTIONAL SAFTEY EQUIPTMENT

If you are wearing a PDF of appropriate size and paddling in a kayak or SUP board after sunset or before sunrise or in conditions of restricted visibility, you are only required to carry a sound-signaling device and a watertight flashlight. However, there are other safety devices that can increase your safety in an emergency situation when SUP boarding.

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
Ankle or Waist belt Leash

 

Personal Lifesaving Appliance This is a cord that attaches to the rear of your board and then connects to your ankle via ankle cuff.

 

If you fall off your paddleboard, your leash will ensure that the board does not drift away from you and remains attached.

 

Parks Canada recommends the use of an appropriate ankle or waistbelt leash. While Transport Canada has supported the use of a leash while paddleboarding, they have emphasized that it is not a replacement for PFDs.

 

Flares Visual Signal If you plan on paddling somewhere that’s more than 1.852km (one nautical mile) you are required to carry 6 flares.

 

Even if you’re exempt, it’s important to turn your mind to

where and when you will be paddling, and whether carrying flares may assist you in a foreseeable emergency situation.[4]

 

Radar Reflector Navigation Equipment A radar reflector is not required for boats under 20m, however small, non-metal boats such as paddleboards are not detected on the radar systems of larger boats.

 

In high traffic waters or in restricted visibility a GPS and a radio will advise bigger boats of your location and limit the potential of a collision.

 

Compass Navigation Equipment If your boat is less than 8m long and you’re paddling within sight of navigation marks, you’re not required to have a compass. However, a compass can be useful if you are paddleboarding in foggy conditions where navigation marks may be difficult to see.

 

MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR KAYAKS & CANOES

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
PFD Personal Lifesaving Appliance See description above
Sound Signalling Device Audio Signal See description above
Flashlight Visual Signal See description above

OPTIONAL SAFETY EQUIPMENT FOR KAYAKS & CANOES

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
(1) Reboarding device Personal Lifesaving Appliance Refers to a ladder, lifting harness, or other devices that do not include part of the vessel’s propulsion unit and assist a person to gain access to the vessel from the water.[5]

 

(1)  Buoyant Heaving Line at least 15 m Personal Lifesaving Appliance A buoyant heaving line is a floating rope that has a soft buoyant object on the end. The line can be thrown towards a person in the water for them to hold onto while you pull them alongside.[6]
Flares Visual Signal See description above
Radar Reflector Navigation Equipment See description above
Bailer Vessel Safety Equipment See description above
Compass Navigation Equipment See description above

 

Before heading out on the water it’s important to know what mandatory equipment is required on board to ensure that you are safe while enjoying the water.

 

[1] Government of Canada, Safety Equipment for Pleasure Craft (continued) (June 28, 2021), online: Justice Laws Website < https://laws-lois.justice.gc.ca/eng/regulations/sor-2010-91/page-6.html>.

[2] Mandatory Safety Equipment in Canada, online: Pat’s Boating in Canada < https://boating.ncf.ca/equipment.html>.

[3] MEC, On-Water Safety: Mandatory Gear, online: Mountain Equipment Coop, < https://www.mec.ca/en/explore/mandatory-paddling-gear>.

[4] Ibid.

[5] Transport Canada, Safety Equipment (April 14, 2014), online: Government of Canada < https://tc.canada.ca/en/marine-transportation/marine-safety/4-safety-equipment>.

[6] Boat-Ed, Buoyant Heaving Lines and Lifebuoys, online: Kalkomey < https://www.boat-ed.com/canada/studyGuide/Buoyant-Heaving-Lines-and-Lifebuoys/101199_115754/#:~:text=Buoyant%20heaving%20lines%20and%20lifebuoys%20are%20personal%20lifesaving%20appliances%20that,a%20person%20in%20the%20water.>

How to Prevent Traumatic Brain Injuries in Sports

Written By: Lindsay Charles and Cody Malloy, Summer Student

How to Prevent Traumatic Brain Injuries in Sports

Let the kids play, as they say, but put safety first.  The risk of brain injuries in sports is very real.  The following statistics published by the Government of Canada illustrate the realities of brain injuries in youth sports in Canada:

  • For children and youth ages 5-19, brain injuries from this age group were about 80% of emergency department visits out of all head injuries from sports and recreation
  • For boys, brain injuries were most common in hockey for ages 10-14 and rugby for ages 15-19
  • For girls, brain injuries were most common in ringette for ages 10-19

According to the Canadian Institute for Health Information, concussions from hockey almost double the concussions from each of cycling, football/rugby, and ski/snowboard.  The Government of Ontario reports that concussions are the most common form of head injury in Ontario.

The Ontario government has taken action to reduce concussions in athletes moving forward.  In 2013, Rowan Stringer, a high school rugby player from Ottawa, passed away from Second Impact Syndrome as a result of suffering multiple concussions in a short period of time.  In response, the Ontario legislature unanimously passed Rowan’s Law in 2016, which put the recommendations from a coroner’s inquest into her death into action.  The objective of the bill was to prevent a similar tragedy from happening in the future.  Rowan’s Law makes it mandatory for sports organizations to adhere to the guidelines set out by Ontario’s Concussion Awareness Resources with regards to removal from sport and return to play.

Chronic traumatic encephalopathy (CTE), a less common brain injury from sports, is a degenerative brain condition caused by repeated blows to the head.  Athletes that play high-impact sports, such as hockey, football, and rugby, are especially susceptible to CTE.  According to the Cleveland Clinic, CTE causes changes in a person’s thinking, personality, mood, and behavior.

The Center for Disease Control and Prevention (CDC) has a comprehensive page breaking down the brain injury risks in a variety of sports.  As an athlete or a parent of an athlete, it’s important how to prevent you or your child from suffering from a traumatic brain injury in sports.

Wear the proper safety equipment

Sports such as baseball, field hockey, skiing, hockey, lacrosse, softball, wrestling, and cycling all require the use of a helmet.  Athletes need to ensure is that their helmet fits properly.  For example, a batting helmet in baseball that is too big can shift, causing part of the forehead to be exposed.  If a ball strikes you, or your child, while your helmet rises up above your forehead, you risk suffering a serious brain injury from the impact of the ball.  Hockey helmets that are sold in Canada must meet the safety standards set out by the Canadian Standards Association (CSA).  Check out this informative webpage from the Government of Canada regarding wearing the proper safety gear in sporting activities.

Mouthguards are another form of athletic safety equipment.  Not only do mouthguards protect against dental damage, but they also protect against brain injuries.  According to the Government of Canada, in most cases when an athlete suffers a blow to the head, the force of their teeth biting together redistributes the force to the soft tissue in the brain.  A properly fitted mouthguard prevents an athlete’s teeth from biting together after an impact to the head, cushioning the blow, and reducing the exposure to a traumatic brain injury.

Also consider that non-contact sports, such as basketball and volleyball, where athletes don’t wear safety equipment, also present risks for athletes to suffer brain injuries.  Collisions between multiple players are common in basketball.  In volleyball, players at times have to dive.  Both instances open athletes to serious brain injuries.  As a result, some basketball players choose to wear mouthguards to reduce their exposure to brain injuries.  Volleyball players should be taught how to properly dive to ensure their safety.  It’s important to remember that just because you don’t wear a helmet, it doesn’t mean you’re playing a sport immune from brain injuries.

Practice safe play

Although safety equipment can prevent serious injury in sport, it’s still important to play safely, even in contact sports.  Hockey Canada urges coaches to instruct players on the dangers of hitting from behind.  In basketball, players should not strike other players on the head in an attempt to take the ball off the opposing player.  In football, helmet-on-helmet collisions should be avoided at all times.  In baseball, intentionally throwing a ball at another player’s head is extremely dangerous.  Safety equipment can reduce injury, but there’s no excuse for reckless behaviour in sport that subjects others to unnecessary bodily harm.

Be aware of the signs of a brain injury

According to the CDC, a blow to the head “causes the head and brain to move rapidly back and forth. This sudden movement can cause the brain to bounce around or twist in the skull, creating chemical changes in the brain and sometimes stretching and damaging brain cells.”

It’s very important to be aware of the signs of a brain injury.  By recognizing the existence of a possible brain injury, you prevent yourself or your child from worsening the injury.  The CDC outlines the following as examples of concussion symptoms:

  • Concussion symptoms observed by a bystander of the injured person:
    • Dazed or stunned
    • Forgetful when engaged in conversation
    • Clumsy movements
    • Speaks slowly
  • Concussion symptoms reported by the injured person:
    • Headache
    • Nausea
    • Dizziness
    • Irritation to light or noise
    • Confusion

Concussion symptoms can be present right away, but sometimes they take days to set in.  If any of these symptoms are present and worsen over a few hours or days, take yourself or your child to see a doctor right away.  By getting the proper treatment early, you can prevent the brain injury from worsening.

Proper return to play

After recovering from a brain injury, it’s imperative that you or your child eases back into playing.  By rushing back into playing, you or your child’s brain injury can worsen, potentially leading to serious health issues down the road.

The CDC published a six-step plan for return to play, including getting cleared to return from a doctor:

  • Back to regular non-sporting activities (school, work)
  • Light aerobic activity
  • Moderate activity
  • Heavy, non-contact activity
  • Practice and full contact
  • Full competition

By safely returning to play, you or your child can get back to playing your favorite sports!

Although brain injuries from sports are usually an accident, sometimes it’s due to the negligence of others.  If you or your child has suffered a sports or recreation injury due to someone else’s negligence, McLeish Orlando is here to help.  Do not hesitate to contact the lawyers at McLeish Orlando for a free consultation.  One of our lawyers will evaluate your child’s case.

Collisions at Intersections

Written By: Lindsay Charles and Sonam Sapra, Summer Student

Collisions at Intersections

In Canada, about 30% of traffic fatalities and 40% of serious personal injuries occur at intersections. These alarming statistics clearly illustrate why intersections are regarded as one of the most dangerous locations on a roadway.

Why are Intersections Dangerous?

In Ontario, there are two main types of intersections: controlled and uncontrolled. Controlled intersections generally have traffic lights, yield signs or stop signs that work to control traffic. Controlled intersections are usually found in urban areas. On the other hand, uncontrolled intersections do not have signs or traffic lights and are usually found in areas where there is no traffic, such as rural areas. While different, both types of intersections are equally as dangerous.

Controlled intersections are considered dangerous locations on the roadway because they are high conflict zones. More specifically, controlled intersections usually have multiple roads that cross over each other, right-turning lanes, left-turning lanes, bicycle lanes, and pedestrians in the same area – all of which give rise to the possibility of conflicts that can result in collisions. Uncontrolled intersections might be less busy than controlled intersections as they are located in more rural areas, however, at these intersections, collisions occur at high speeds making them particularly severe.

There are four main types of collisions that occur at an intersection: side-impact collisions, also known as T-bone collisions, head-on collisions, left-turn collisions, and rear-end collisions. Further, at intersections, both cyclists and pedestrians can be struck by motor vehicles. Side-impact, or T-Bone, and head-on collisions can have very serious consequences and often result in fatalities, especially when the vehicles involved are traveling at high speeds.

With the high rate of collisions occurring at intersections, the National Highway Traffic Safety Administration (“NHTSA”), run by the United States Department of Transportation sought to identify the leading causes of intersections collisions by conducting an on-scene study.

The Leading Cause of Intersection Collisions

The study by the NHTSA identified six critical driver-attributed causes of intersection crashes. The NHTSA observed 756,570 intersection-related collisions and concluded that inadequate surveillance by drivers was the leading cause of intersection collisions, accounting for 44.1% of the crashes. The remaining causes identified by the study include: the false assumption of the other’s actions, turned with an obstructed view, illegal maneuver, internal distraction, and finally, misjudgment of gap or other’s speed.

How We Can Help

Ultimately, collisions at intersections can result in serious personal injuries, and determining who is at fault can be a complicated and arduous process. The lawyers at McLeish Orlando can help navigate the process and alleviate the stress that arises from such a collision.

Please contact the lawyers at McLeish Orlando for more information and to schedule a free assessment of your case.

Fratarcangeli v. North Blenheim Mutual Insurance Company: the LAT Can Extend the SABS Two-year Limitation Period

Written By: Lindsay Charles and Cody Malloy, Summer Student

Fratarcangeli v. North Blenheim Mutual Insurance Company: the LAT Can Extend the SABS Two-year Limitation Period

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’ “ [1]

The main issues of this case surrounded the Court’s statutory interpretation of the LAT Act:

[22]      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” [2]
  • 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 [3]
  • 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 [4]

The Court said the first argument was not persuasive because regulation is made “under an Act”, which in this case is the Insurance Act. [5] 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. [6]

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. [7] 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.” [8]

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. [9] The Court also noted that the Legislature knew about section 7 when they authorized the transfer to the LAT. [10] 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.” [11]

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”. [12]

The Court dismissed the insurer’s argument because the insurer submitted no evidence distinguishing between an “application” and “notice of hearing”. [13] Further, the Court noted how the “LAT treats SABS applications as the ‘commencing document’ for a proceeding which entitles an applicant to a hearing”. [14] 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.” [15]

 

[1] Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 7.

[2] Ibid at para 31.

[3] Ibid at para 35.

[4] Ibid at para 36.

[5] Ibid at para 41.

[6] Ibid at para 42.

[7] Ibid at para 49.

[8] Ibid.

[9] Ibid at para 52.

[10] Ibid at para 53.

[11] Ibid at para 54.

[12] Ibid at para 56.

[13] Ibid at para 59.

[14] Ibid.

[15] Ibid at para 60.

The Jury’s Out: De Dieu v. Taylor, 2021 ONSC 3654

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

De Dieu v. Taylor

De Dieu v. Taylor, 2021 ONSC 3654 is a Brampton decision arising out of a May 2021 motion to strike the jury notice.

The action arises from a motor vehicle collision from September 2013. The statement of claim was issued in April 2015 and the matter was set down for trial in May 2018. The action was put on the January 2021 trial sittings list and later adjourned to the May 2021 blitz list. Due to the ongoing pandemic, jury matters will still not be proceeding during the May 2021 blitz.

The defendant argued that the matter should be adjourned to the January 2022 sittings so that it may be heard by a jury. However, matters not reached in the January 2022 sittings will be traversed to the January 2023 sittings because the May 2022 sittings are full. If it is adjourned, the chances of this matter being heard in January 2022 are unknown. In urging the wait and see approach, the defendant argued that if the matter is not reached at the January 2022 sittings, the plaintiffs should be permitted to renew their motion to strike to avoid a further delay to January 2023.

Chown J. recognized the significant delays inherent in the Central West region which has been exacerbated by the pandemic:

[15]      Before the pandemic, the delays litigants experienced in civil matters in this jurisdiction were significant and should not be normalized or considered acceptable. The pandemic is not the fault of either party or the court, but it has compounded the problem of delayed justice. The right to a jury must be weighed against the injustice inherent in a delayed trial, in a case that has already involved a lengthy delay, and which faces uncertain and potentially inordinate further delay if not reached in the upcoming sittings.

Chown J. ordered that the matter is to remain on the list for the May 2022 sittings and if the matter is reached, the jury notice shall be struck and it shall proceed as a judge-alone trial. In doing so, Chown J. stated:

[14]      It is anticipated that the court will be inundated once pandemic restrictions are relaxed. Criminal jury trials will take precedence. The circumstances do not permit a jury trial currently and may not permit a jury trial for some time. Once jury trials are possible, the backlog in the system may result in considerable further delay. In contrast, the court can likely accommodate and hear this matter by videoconference during June if it proceeds as a judge-alone trial.

Ultimately, the hybrid “wait and see” approach utilized by Chown J. seems to best address the current issues that the pandemic has created with respect to the backlog of trials, both jury and non-jury. This approach effectively avoids locking the parties into a jury or non-jury trial and permits the matter to proceed based on the court conditions at the time the matter is called to trial.

Escaping the MIG with Chronic Pain

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Escaping the MIG with Chronic Pain

Is a formal diagnosis of ‘chronic pain’ necessary to escape the Minor Injury Guideline (“MIG”)? A recent LAT decision suggests no, provided there is medical evidence documenting persistent pain for greater than 3 to 6 months.

In C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT), the applicant was involved in a motor vehicle accident in 2004 and then a subsequent accident in 2009. She suffered physical and psychological injuries as a result of these previous accidents and was deemed catastrophically impaired as a result of the 2004 accident.

The applicant was in a third automobile accident on February 20, 2015, when she was a passenger in a vehicle that was rear-ended. She sustained injuries to her back and right elbow and suffered post-accident headaches, as well as an exacerbation to her pre-existing injuries. As a result, she sought benefits pursuant to the Statutory Accident Benefits Schedule.

The applicant applied for medical benefits and was denied by the insurer because she was placed into the MIG. The applicant disagreed with the insurer’s decision and submitted an application to the LAT for dispute resolution.

MIG Determination

A minor injury, for the purposes of the MIG, means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, and any clinically associated sequelae. Someone with minor injuries only has access to a maximum of $3,500 for medical and rehabilitation benefits, whereas someone with more severe injuries has access to up to $50,000 in benefits.

Adjudicator Johal agreed with the reconsideration decisions in T.S. and Aviva Insurance Canada, 2018 CanLII 83520 (ON LAT) and the decision in P.L. and Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT), which found that chronic pain is not a minor injury and does not fall within the definition of the MIG. In P.L. and Aviva, Vice-Chair Trojek stated the following:

[12] I find that an actual diagnosis of CPS [chronic pain syndrome] is not required to remove an applicant from the MIG.  My finding is based on the reconsideration decision of Executive Chair, Linda Lamoureux, in T.S. v. Aviva General Insurance Company.  The Executive Chair in that decision found that chronic pain is by definition a condition that persists for three to six months, and that a diagnosis of CPS is not required to remove an applicant from the MIG.

In C.G., the clinical notes and records of the applicant’s family doctor showed a diagnosis of a right elbow contusion and back strain following the 2015 accident, and referenced ongoing right elbow pain for more than two and half years post-accident. However, the applicant never received a formal diagnosis of chronic pain. The insurer’s position was that the lack of a formal diagnosis should prevent the applicant from escaping the MIG.

Adjudicator Johal stated that “Chronic pain is a condition that persists for three to six months and a formal diagnosis of chronic pain is not required to remove an applicant from the MIG.” Adjudicator Johal found that the applicant escaped the MIG due to her chronic pain:

[34] In my view, the medical evidence establishes that she suffers from chronic pain.  She has visited her family doctor and other medical practitioners with respect to her elbow pain as discussed above repeatedly since the subject accident.  Furthermore, the applicant’s treating physician, Dr.  Hadcock, notes in an OCF-3 dated November 5, 2017, which is more than two and a half years post-accident that the anticipated duration of pain will be more than 12 weeks “due to severity of injuries (sic) & current chronicity, poor prognosis for return to significant activities.

The applicant was found to be outside the definition of the MIG and entitled to treatment beyond the monetary limits of $3,500.

The Jury’s Out: Doran v. Huls, 2021 ONSC 3291

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

The Jury's Out: Doran v. Huls, 2021 ONSC 3291| Mcleish Orlando

The defendant’s jury notice was struck in the recent Thunder Bay decision in Doran v. Huls, 2021 ONSC 3291.

Background

This action arose as a result of a motor vehicle collision that occurred in December 2013 in Thunder Bay. At the pre-trial conference in October 2019, the matter was placed on the civil jury sittings running list commencing January 2021 for a 10-12 day trial. Civil jury trials were suspended in March 2020 and continue to be suspended for the indefinite future.

Positions of the Parties

The plaintiffs submitted that it is unknown when civil jury trials will resume in Thunder Bay. The trial coordinator advised that no civil jury trials be scheduled in 2021. If the jury notice is not struck, it would be nine months (at the very earliest) before this matter is adjudicated. This delay will prejudice the plaintiffs in terms of the annually-increasing deductible under the Insurance Act, the continued erosion of the plaintiff’s loss of income claim, and the ongoing burden of the inability to pay for medical treatment.

The defendant argued that the potential prejudice caused by the delay does not outweigh the defendant’s right to a jury trial. The defendant argued that the increased efforts to vaccinate the population gives reason to be optimistic that the pandemic will be curbed by July 2021, and therefore this is an appropriate case to adopt the “wait and see” approach.

Analysis & Disposition

In reviewing the prevailing legal principles, the Court stated:

[12]      The right to have an action tried by a jury is a fundamental right that should not be interfered with without just cause or cogent reason. It is not absolute and must sometimes yield to practicality. The right is qualified as it is subject to the power of the court to determine that the action proceeds without a jury. (Louis v. Poitras, 2021 ONCA 49 at para. 17)

The onus is on a moving party to prove that the Jury Notice ought to be struck and the court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury. The courts must balance competing interests to determine whether in the interests of justice a jury notice ought to be struck or whether it is more appropriate to take a “wait and see” approach. (Cowles v. Balac, (2006) 2006 CanLii 34916 (ONCA), at para. 37)

In weighing the right to a jury trial and yielding to practicality, the Court found that the most compelling piece of evidence was the fact that the Regional Senior Justice for the Northwest Region has directed that no civil jury cases will be scheduled for 2021. The Court, therefore, found that there will be no civil jury trials in Thunder Bay in 2021, with no indication of when they would resume in the region. In ruling to strike the defendant’s jury notice, the Court stated:

[28]      Justice delayed is Justice denied. The delay in this matter to me is patently prejudicial if the jury notice is not struck.

[29]      As legitimate and workable as the “wait and see” approach may have been in the pre-COVID times, the defendant has provided no good reason why this matter must proceed with a jury other than “it is my right”.  In my view, the overarching right available to the plaintiffs and the defendant is one of a timely adjudication of their dispute by a neutral. One such neutral could be a jury panel of six fellow citizens of the parties. Another neutral could be a Superior Court judge. One is available in the foreseeable future and one is not.

The Jury’s Out: Miller v. Panahi, 2021 ONSC 2693

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Ontario is in the midst of a third wave of the COVID-19 pandemic. The Ontario government declared a third state of emergency on April 7, 2021, followed by a province-wide Stay-at-Home order and stricter lockdown measures.

As an essential service, courts remain open; however, only the most serious matters (child protection, urgent family, and critical criminal) are to be held in-person. Jury trials remain suspended.

Miller v. Panahi, 2021 ONSC 2693 is the latest decision out of Barrie where a plaintiff was successful in striking the defendant’s jury notice.

Background

The plaintiff was injured in a June 2017 motor vehicle collision in which he was struck while driving his motorcycle. The action was commenced by way of statement of claim in December 2017 and all intermediate procedural steps were concluded by October 2018. The plaintiff delivered a trial record in October 2018 and a pre-trial was held in September 2019. The action was placed on the May 2020 sittings, but jury trials were suspended in 2020 with COVID-19 looming large.

Positions of the Parties

The plaintiff submitted that this action could be five years or older by the time it is heard if it were to proceed by way of jury. This, the plaintiff argued, was a real and substantial prejudice inherent in waiting for a jury trial. The plaintiff also submitted that:

  • The cost of obtaining nine updated expert reports would be expensive;
  • Funding for treatment had depleted;
  • Being unable to work, his future income loss is converted to past income loss, which is subject to a 30% reduction pursuant to ss. 5(1)2 and 267.5(1)3 of the Insurance Act, R.S.O. 1990, c. I.8. Therefore each passing day continues to erode his claim for loss of income;

The defendant submitted that there was no evidence that striking the jury will advance the trial date and it would be inappropriate to interfere with the substantive right to a trial by jury. The defendant had prepared its case to challenge the plaintiff`s credibility before a panel of jurors. The “wait and see approach” would be most appropriate at this stage, given the increased vaccination rollouts and reduction in public health risks which should curtail the COVID-19 crisis and allow for jury trials by the end of 2021.

Disposition

The Court reviewed the prevailing authorities on striking a jury in stating:

[23]      The right to a jury trial is a substantive one that has long been recognized.  A party moving to strike a jury notice bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury.  In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 37.

[24]      Judges considering motions to strike have broad discretion to determine how the trial will proceed: Cowles, at para. 38.

[26]      In Louis v. Poitras2021 ONCA 49, the Court of Appeal provided guidance to judges hearing motions to strike jury notices.  In particular, at para. 3, the panel found that there is no “one size fits all” provincial solution as to when jury notices should be struck:

[l]ocal conditions will necessarily impact the choice of effective solutions.  However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.

In ruling to strike the jury notice, the Court held:

[30]      There may once have been cause for the optimism advanced by the defendant, but no longer.  COVID-19 continues to fester and mutate, killing some unfortunate enough to contract the virus or its variants.  Matters go from bad to worse in a matter of days.  For example, just two days ago, when I released Treiers v. Kmith2021 ONSC 2605, the province was subject to an “emergency brake.”  Less than 48 hours later the province was placed in a full lockdown.

[35]      The right to a jury trial is not sacrosanct.  As the Court of Appeal held in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171:

While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.

[36]           The practical reality in Central East is that the plaintiff faces a wait of at least one year, and possibly two, if the jury notice is not struck.  Conversely, if the jury notice is struck, his matter can be tried appreciably sooner than 2022.

The Jury’s Out: Losty v. Reesor., 2021 ONSC 2622

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Losty v Reesor., 2021 ONSC 2622 is an early April 2021 decision out of Toronto where a plaintiff was unsuccessful in striking the defendant’s jury notice.

Background

The plaintiffs seek damages for injuries allegedly suffered as a result of a motor vehicle accident that occurred in August 2014. The Statement of Claim was issued in August 2016. Settlement negotiations began prior to the issuance of the Claim and continued until late 2017. All intermediate procedural steps were taken and the action was set down for trial and scheduled to commence during the May 2021 sittings.

Jury trials in Toronto have essentially been suspended since the beginning of the COVID-19 pandemic in Ontario, briefly resuming for a few weeks in late September and early October 2020. This suspension remains in place with July 5, 2021, as the earliest possible date for the resumption of jury trials in Toronto.

Positions of the Parties

The plaintiffs submitted that as of May 2021, seven years will have passed since the date of the accident. Any further delay will further prejudice the plaintiff’s claim, particularly because of the continued erosion of their loss of income claim and the necessity to incur additional expenses by updating their expert reports.

The defendants conceded that at best, it is currently unknown whether jury trials will proceed during the July 2021 Toronto sittings. However, the defendants submitted that they had approached and prepared this case for a jury trial.

Disposition

Diamond J. referenced Girao v. Cunningham, 2020 ONCA 260 which held that the right to a jury trial in a civil action is important and fundamental, but not absolute, and must sometimes yield to practicality. The onus is on the moving party to show that striking the jury notice would be in the interests of justice. Diamond J. stated:

[24]           In my view, and despite the able submissions of the counsel for the plaintiffs, on the record before me, I do not find that the plaintiffs have discharged their onus.  Striking the jury notice is not a just or necessary result in the circumstances of this case.  I cannot find at the present time that justice to the parties will be better served by the discharge of the jury.  As put by the defendants, it is not in the interest of justice to rush a case to trial before a judge only based upon speculation of the length of any potential delay.

The motion was dismissed without prejudice to the plaintiffs’ right to renew in the event circumstances change and the Court remains unable to offer the parties a jury trial at the time of the rescheduled trial date.

Jury Striking Series: Evans v. Chiarello, 2021 ONSC 2677 | McLeish Orlando

The Jury’s Out: Evans v Chiarello, 2021 ONSC 2677

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Jury Striking Series: Evans v. Chiarello, 2021 ONSC 2677 | McLeish Orlando

The defendants’ jury notice was struck in the recent Sault Ste. Marie decision in Evans v. Chiarello, 2021 ONSC 2677.

Background

This action arose as a result of a motor vehicle collision that occurred in January 2015 in Sault Ste. Marie. The matter was set down for trial in June 2019.

There is a rolling trial list in Sault Ste. Marie, meaning jury sittings and trials are placed upon the list and given priority according to a number of factors including the age of the action.

The local trial coordinator was in attendance at the hearing of the jury-strike motion. The trial coordinator advised the court that:

  • All jury trials will be spoken to in the fall of 2021 to determine whether or not they can proceed;
  • The only civil jury sittings currently scheduled are in January 2022;
  • If scheduling, backlog, and other factors permit, an additional jury sitting could be booked in 2022;
  • The subject action currently sits 12th out of 24 matters in terms of priority, meaning there is no guarantee that the matter will be heard in January 2022; and
  • If the jury notice in the subject action were to be struck, a judge-alone trial could be set in the first half of 2022.

Positions of the Parties

The plaintiffs are approximately 70 years old. The plaintiffs submitted that the jury notice ought to be struck because a jury trial delay will be significant, their age requires prompt adjudication, and they will suffer prejudice by the delay due to the annually increasing deductible, the continued erosion of their loss of income claim, and the necessity to obtain updated expert reports.

On the other hand, the defendants argued that they have a right to a jury trial and that right should not be interfered with lightly. Further, the defendants prepared their case for a jury trial and a change would be prejudicial and there is no guarantee that the case would be heard expeditiously if it was to proceed without a jury.

Analysis

The Court reviewed the Rules of Civil Procedure and the principles from the relevant legal authority in Louis v. Poitras, 2021 ONCA 49:

[17] It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceeds without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.

[25] There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted.

Disposition

In granting the plaintiffs motion to strike the defendants’ jury notice, the Court held that the certainty in knowing that this action would be heard in the first half of 2022 was more favourable than waiting to see whether or not it could proceed by way of jury trial in January 2022 at best:

[15] … It is true that the right to a jury trial is important, but as noted in Louis, it ought not to override the larger concerns about “justice delayed is justice denied” where the delay in justice can cause real prejudice.  In this situation, an older litigant will quite possibly have his legal affairs put on hold for several years pending the availability of a jury trial.  Hryniak v. Mauldin 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87 speaks to the prejudice associated with delayed justice and, as a result, I need not repeat the damage that happens when litigants cannot get timely adjudication.  It goes without saying that this phenomenon is exacerbated when older litigants are involved.  Had the plaintiffs been younger, I may have considered this motion in a different light.

[16] Put another way, it would be unfair to the plaintiffs to let this matter languish on the jury list since there is no guarantee that they will have this matter heard before 2023 whereas I have reasonable confidence that the matter can be tried in the first half of 2022 without a jury.

Jury Striking Series: Sauve v Steele, 2021 ONSC 1557 | McLeish Orlando Personal Injury Lawyers

The Jury’s Out: Sauve v Steele, 2021 ONSC 1557 – Jury Struck in Milton Action

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Jury Striking Series: Sauve v Steele, 2021 ONSC 1557 | McLeish Orlando Personal Injury Lawyers

Civil jury trials continue to be disrupted in Ontario as a result of the ongoing COVID-19 pandemic.

Background

This Milton action arose out of a January 2014 incident, in which the blade to the Defendants’ snow plow allegedly became entangled in overhanging hydro wires, tearing them from the hydro pole and falling into the path of the Plaintiff vehicle which proceeded to run into or over the wiring.

The Plaintiffs brought their claim in January 2016 and discoveries were completed by March 2017. Mediation was held in February 2019 and a pre-trial in August 2019. At the pre-trial, the action was placed on the March 2021 trial list in Milton. The Plaintiffs began preparing for trial – obtaining reports and readying their experts.

When the COVID-19 pandemic hit Ontario, Morawetz C.J. announced the suspension of regular court operations and civil jury selection and trials were suspended until September 2020. Jury trials continued to be suspended and most recently, the court suspended all jury trials until May 2021 at the earliest.

This action would therefore proceed in October 2021 during the next civil trial blitz in Milton, a delay of seven months from the originally scheduled start date.

Positions of the Parties

The Plaintiffs argued that a March 2021 judge-alone trial would be more practical than waiting until the Fall of 2021 in the hope that a jury trial may begin then or at some later undetermined date.

The Plaintiffs argued that the longer the delay, the more likely it will become that they will need to incur the added cost of updating their expert reports, and the more likely the loss of income claim will continue to erode.

The Defendants, on the contrary, asked the court to adopt a “wait and see” approach, specifically because, as the Defendants submitted, the Plaintiffs did not provide any evidence to show that their reports would have to be updated. Further, the income loss had not yet been proven and any projections based on income loss merely reflected the opinions of the Plaintiffs’ income loss expert.

Disposition

Given the age of the action and the uncertainty of when a civil trial may be heard was sufficient reasoning to strike the jury notice, Doi J. held that this was not an appropriate case to adopt the “wait and see” approach.

In reaching his decision to strike the jury notice and order a judge-alone trial, Doi J. stated that the prejudice to the Plaintiffs from the indeterminate delay to obtain a jury trial outweighed the right of the Defendants to have the action tried by a jury. Doi J. noted that a party’s right to a jury trial is not absolute and may give way to the overriding interests of the administration of justice and issues of practicality.

Mental Distress Damages in a Long-Term Disability Claim | McLeish Orlando Pesonal Injury Lawyers

Mental Distress Damages in a Long-Term Disability Claim – Kardaras v. Sun Life Assurance Company of Canada, 2020 ONSC 3925

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Mental Distress Damages in a Long-Term Disability Claim | McLeish Orlando Pesonal Injury Lawyers

Long-term disability benefits, generally

Long-term disability insurance is intended to provide a level of income support should an employee become disabled and unable to work. The definition of a disability can vary between insurance companies and plans, but most plans will provide 60% to 70% of a disabled person’s normal income.

A claim to long-term disability benefits arises when a person becomes disabled. If an insurer denies a legitimate claim, the disabled person (“the insured”) may pursue legal action to receive compensation for the lost long-term disability benefits since long-term disability insurance is a contractual agreement between an insured and an insurer – denying a legitimate claim is a breach of contract and the insured has a right to pursue compensation for the insurer’s wrongdoing.

Damages for Mental Distress

In addition to compensation, it is also possible to claim damages for mental distress from an insurer who denies a legitimate claim. Insurers have an implied duty of good faith, and a breach of this duty – for example, when an insurer denies a legitimate claim – can lead to damages for mental distress. The law regarding damages for mental distress was articulated by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30. In essence, Fidler provided that damages are awarded based on the expectation of the parties at the time the contract was made.[1] Where the parties contemplated that psychological distress could result from a breach of contract, and the mental distress caused by the breach was sufficient to warrant an award for damages, the courts would make such an award.[2]

This was the case in Kardaras v. Sun Life Assurance Company of Canada, 2020 ONSC 3925.

Kardaras v. Sun Life

In September 2014, the plaintiff was diagnosed with major depressive disorder with anxious features. The plaintiff took a medical leave from work and received disability benefits from the defendant. The plaintiff attempted a gradual return to work in December 2015 and was set to return to full-time hours by the end of January 2016. However, by the time the plaintiff got up to working four days per week, her psychiatrist advised that she should return to three days per week due to worsening of her depressive disorder. The defendant then terminated the plaintiff’s benefits as of the date originally scheduled for her return to full-time work.[3]

“Total disability”

The defendant’s policy required a person to “totally disabled” in order for benefits to be paid. The Court reviewed the legal test for total disability:

An insured is considered to be totally disabled from performing her own occupation where she is unable to perform “substantially all of the duties of that position.” Total disability does not mean absolute physical disability, but rather that the insured’s injuries are such that common care and prudence require her to desist from her occupation in order to effectuate a cure: Paul Revere Life Insurance v. Sucharov1983 CanLII 168 (SCC), [1983] 2 S.C.R. 541, at p. 546.[4]

The position of the parties

The plaintiff’s psychiatrist noted that, although the plaintiff was physically capable of working more than three days per week, it was expected that her depressive order would worsen if she worked beyond three days per week. The psychiatrist noted that the plaintiff experienced increased distress during her gradual return to work and testified that in order to avoid having to pull the plaintiff out of work altogether, it was important to decrease her rate of return to work.[5]

The defendant took the position that the plaintiff’s failure to return to work full-time was due to her desire to maintain a work/ life balance, dismissing the plaintiff’s legitimate concerns for her health. After initially reaching the decision to deny the plaintiff the continuation of her benefits, the defendant maintained its position through several levels of appeal, despite more detailed reports from the plaintiff’s psychiatrist outlining the plaintiff’s disability.

Breach of the duty of good faith – the plaintiff’s entitlement to damages for mental distress

The Court found that the plaintiff was entitled to long-term disability benefits beyond the date they were terminated by the defendant.

Further, the Court concluded that the defendant did not approach the issue of the plaintiff’s health condition in an even-handed manner. Despite the compelling medical evidence in the plaintiff’s favour, the defendant continued to characterize the plaintiff as having a “sense of entitlement” in seeking payment of her benefits. The Court noted that the defendant discontinued the plaintiff’s benefits when the only medical evidence it had was that the plaintiff was not able to work more than three days per week and maintained its position despite never receiving any differing opinion from any doctor. Further, the defendant discontinued the plaintiff’s benefits when she, in good faith, was participating in a gradual return to work program.

The Court held that the defendant’s breach of the duty of good faith caused the plaintiff mental distress that was in the reasonable contemplation of the parties. In awarding damages for mental distress, the Court held that the plaintiff, in a time in which she was highly vulnerable, experienced an increase in stress, a loss of dignity, and a feeling of not being heard and acknowledged.[6]

If you or someone you know has been wrongfully denied a benefit by your insurer, contact the experienced lawyers at McLeish Orlando LLP to assist with your claim.

 

[1] Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30 at paras 42–44 [Fidler].

[2] Fidler at para 47.

[3] Kardaras v Sun Life Assurance Company of Canada, 2020 ONSC 3925 at para 1 [Kardaras].

[4] Kardaras at para 12.

[5] Kardaras at para 27.

[6] Kardaras at para 83.

Gagnier v Burns, 2021 ONSC 1971 – Jury Strike | McLeish Orlando Personal Injury Lawyers Toronto

The Jury’s Out: Gagnier v Burns, 2021 ONSC 1971 – Jury Strike

Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law

Gagnier v Burns, 2021 ONSC 1971 – Jury Strike | McLeish Orlando Personal Injury Lawyers Toronto

In the most recent decision of the jury-striking era, the plaintiff in Gagnier v Burns, 2021 ONSC 1971 was successful in striking the defendant’s jury notice in the Southwest Region.

Background

The action arose as a result of a 2013 motor vehicle collision in which the plaintiff was riding his motorcycle with his wife as a passenger. Both husband and wife have been unable to return to their employment since the collision.

The action was set down for trial in November 2017 and was set to be tried by a jury over eight weeks commencing February 2021.

The original December 2020 motion date was adjourned to allow for a more accurate assessment regarding the effects and progress of the COVID-19 pandemic.

On January 13, 2021, Chief Justice Morawetz extended the suspension of jury trials until May 3, 2021, and the trial of this action was therefore adjourned from February 2021 and would be assigned for a jury trial date in 2022.

Positions of the Parties

The plaintiffs argued that if the jury notice was struck, it would allow the trial to commence at some point in the Fall of 2021. The Fall of 2021 would be eight years since the events giving rise to the litigation took place. Trial happening in the Fall of 2021 would help limit the erosion of the loss of income claims and the plaintiffs would likely not need to update experts’ reports which they otherwise would have to do if the trial was to be adjourned to 2022.

The defendant submitted that the court adopts the “wait and see” approach. In doing so, the defendant argued that the right to trial by jury in a civil case is a substantive right that should not be interfered with:

[19] The historic test is succinctly captured at para. 37 of Cowles:

[37] A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merits the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Grahamsupra.

The defendant further submitted that the court applies the proportionality principle in making a decision. The defendant highlighted the seminal decision of Hryniak v Mauldin, 2014 SCC 7, in which Karakatsanis J. noted:

[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely, and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[29] There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

The defendant suggested that given the claim here was significant ($6,000,000), the defendant should be entitled to a jury. Further, the defendant submitted that there is no certainty a non-jury trial would finish sooner than one tried with a jury, especially given the potential for a segmented trial and a reserved decision.

Disposition

Regional Senior Justice Thomas referenced the Court of Appeal’s decision in Louis v Poitras, 2021 ONCA 49, with particular emphasis on the local conditions of the Superior Court in Windsor. At the time, there were 11 criminal jury matters awaiting trials that were estimated to take 30 weeks, and it was, therefore, reasonable to assume that civil jury trials would be quite delayed. As noted in Louis v Poitras, delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking a jury notice.

In deciding to strike the jury notice, Regional Senior Justice Thomas concluded that the plaintiffs had pointed to other examples of their actual prejudice occasioned by delays in the trial. Taken together, striking the jury notice was the most effective resolution of this litigation in the most just manner possible.