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
The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.
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:
The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
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.
When an insurance company denies accident benefits to an insured person, the insurer must advise the insured person of his or her right to dispute the denial and of the most important points in the process. A recent court decision has confirmed that if an insurer falls short of this requirement, it will not be able to rely on the limitation period that begins with that denial.
In Yifru v. Certas Direct Insurance Company, Certas Insurance denied Ms. Yifru’s claim for non-earner benefits on June 23, 2003. Certas advised Ms. Yifru that she could dispute the decision by applying for mediation within two years of the denial. However, it did not advise her that she had any further options if she and Certas failed to settle her claim at mediation.
An award of $200,000 to a mother for the loss of care, guidance and companionship of her daughter who was killed in a car accident was “grossly excessive” according to the Ontario Court of Appeal. In the recent decision of Fiddler v. Chiavetti et al., the Court overturned the jury’s award of $200,000 to Debbie Fiddler and substituted an awarded of $125,000 instead. However, it left open a small window for future awards to exceed the $125,000 award:
Indeed, there was no evidence that would take this case out of the general range of guidance, care and companionship
damages that have been awarded in cases involving the death of someone in circumstances similar to those of Amanda Fiddler. Appellate intervention, therefore, is appropriate.
Presumably, with appropriate evidence to take a case out of the “general range” a plaintiff could obtain – and keep – a higher award. It remains to be seen just what evidence will be required to satisfy the court that a particular relationship warrants a more significant award of damages.
The Court also noted that it would have been “helpful” for the trial judge to instruct the jury on the upper limit of awards for loss of guidance, care and companionship.
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.