Tag Archives: mcleish orlando

Belton v Spencer, 2020 ONCA 623

Written By: Patrick Brown and Brandon Pedersen, Student-at-Law

Whether civil jury trials should stay or go is a question that has confronted the legal community for some time now. In the current legal landscape, where COVID-19 plays a significant factor in these decisions, this has garnered increased attention from civil litigators and courts alike.

The Ontario Court of Appeal recently discussed the striking of jury notices and proceeding by way of a judge-alone trial.

In Belton v Spencer, a personal injury action, the appellant moved under Rule 63.02(1)(b) of the Rules of Civil Procedure for an order staying the order of Justice Sheard that struck out the parties’ jury notices.

The action was originally placed on the trial list for November 2018. In November 2019, the trial adjourned to commence in October 2020. The COVID-19 pandemic hit Ontario in March 2020, at which time the Superior Court of Justice restricted the scope of its operations. In June 2020, the parties were advised that due to the pandemic, it was unlikely that civil jury trials would take place in 2020 and that the trial would likely be delayed by another 12 to 18 months.

The respondent then moved to strike out the jury notices and sought to proceed by way of a judge-alone trial. The motion judge agreed and struck out the jury notices. The appellant filed a notice of appeal with the Court of Appeal, to which the respondent filed a notice of motion with the Division Court to quash the appeal on the basis that the motion judge’s Order was interlocutory in nature. The parties were then advised that the judge-alone trial would begin in October 2020. The appellant served a notice of motion seeking to stay the Order pending the appeal to quash the order to strike out the jury notices.

The primary issue on the motion was whether the Order to strike the jury notices was interlocutory or final. Brown J.A. applied the test from RJR-MacDonald Inc v Canada (Attorney General), namely (1) is there a serious question to be tried (to justify the intervention of this appellate court); (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay?[1] Brown J.A. noted that the overriding question to be answered is whether the appellant has shown that it is in the interests of justice to grant a stay.

The Court worked through the RJR analysis beginning with the first aspect. In the reasons for the decision, Brown J.A. stated that the weight of the jurisprudence strongly suggested that the motion judge’s Order probably was interlocutory; however, the Court ultimately declined to definitely conclude that the Order was or was not interlocutory. Brown J.A. adopted the approach of Justice Simmons, where she stated in a recent Court of Appeal decision:

It is not for me, sitting as a single judge of this court, to determine whether this court has jurisdiction to entertain the appellants’ appeal. Nonetheless, if I were persuaded that the Order under appeal was interlocutory, or even probably interlocutory, that would militate against granting the requested stay.[2]

In regard to the second aspect of RJR, Brown J.A. was not persuaded that the appellant had demonstrated that she will suffer irreparable harm if a stay is not granted. Specifically, Brown J.A. stated:

Although the right to a civil jury trial is a substantive right, it is a qualified, not absolute, right, and is subject to removal where justice to the parties will be better served by the discharge of the jury. As this court stated in Cowles, at para. 38, neither party has an unfettered right to determine the mode of trial.[3]

The Court concluded that the balance of convenience overwhelmingly favours not granting a stay of the Order and allowing the trial of the action to proceed. Brown J.A. stated that the appellant’s submission ignores the impact that the COVID-19 pandemic has had on the ability of the courts to offer civil jury trials at this point in time.

In regard to the overriding consideration in deciding whether or not to grant the stay, the Court held that the very fact that this was a question at issue may affect the outcome made it less likely that the stay will be granted:

This action is long overdue for trial, concerning as it does events that took place 10 years ago. The parties are ready for trial and have been for some time. COVID-19 came out of left-field and upset the trial court’s scheduling … If not tried [now], the record shows that it will likely be over a year before the matter can return before a civil jury. That would be an unconscionable wait. The qualified right to a civil jury trial cannot dictate such a result, as it would be completely contrary to the interests of justice. Consequently, I dismiss the appellant’s motion for a stay of the Order.[4]

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

 

[1] RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311.

[2] Fontaine v Attorney General of Canada, 2020 CanLII 64770 (ON CA) at para 14.

[3] Belton v Spencer, 2020 ONCA 623 at para 54.

[4] Ibid at para 78.

Concussion Update for Legal Practitioners, Insurers, Judges and Clinicians: Keeping Your Case Moving Forward in a Virtual Environment

View this webcast-only program from your home or office computer

Previously considered a less serious medical issue, awareness of the importance of concussions as a sometimes serious or long-term health issue for Ontarians has grown in the past few years, and not just for high-level athletes. Our medical experts and legal practitioners offer you key insights on best practices in mediating concussion cases, how COVID-19 has impacted medical/legal professionals and their patients/clients relating to concussion syndromes, and provide a comprehensive overview of the new legislation on concussions. For those who work in personal injury, insurance, sports administration, workers’ compensation, health, education, and criminal law or related practice areas, this update is a must.

McLeish Orlando lawyer, Lindsay Charles, will be presenting at the event.

Register here!

Don’t CATch COVID, CATch up on CATastrophic Impairment

In-person or Virtual (subject to public health requirements)

9:00–9:05 AM
Opening Remarks

9:05–9:30 AM
Top 5 PURR-iceless CAT Cases of 2020,  Joseph Cescon, Partner, McLeish Orlando

9:30–10:15 AM
Don’t ‘pussyfoot’ Around with Assessments. Join us to learn about Virtual CAT Assessments!
Moderator: Philippa Samworth, Dutton Brock LLP
Panel:

  • Dr. Harold Becker, Medical Director, Omega Medical
  • Dr. Dory Becker, Psychologist
  • Dr. Lisa Becker, Physiatrist
  • Dr. Lara Davidson, Neuropsychologist
  • Dr. Michael Ross, Psychiatrist
  • Bani Ahuja, Occupational Therapist

10:15–10:30 AM
Paws (Break)

10:30–10:55 AM
Paw-sible Payment of CAT Assessments II: Behavioural Boogaloo, Sven Mascarenhas, Gilbert Kirby Stringer LLP

10:55–11:30 AM
Does Surveillance Really ‘Purr-suade’ Assessors?
Moderator: Andrea Lim, Dutton Brock LLP
Panel:

  • David Preszler, Preszler Law
  • Joanne Romas, OT
  • Dr. Bruce Paitich, Orthopaedic Surgeon
  • Dr. Brian Kirsch, Psychiatrist

11:30–12:20 PM
What Qualifies as a Medically Recognized ‘PAW-sitive’ Finding on Diagnostic Technology under Category 4?

Moderator: David MacDonald, partner, Thomson Rogers
Panel:

  • Dr. Yin-Hui Siow, Radiology and Nuclear Medicine
  • Dr. Manu Mehdiratta, Neurologist
  • Dr. Rob Tarzwell, Neuropsychiatrist and Nuclear Medicine Specialist.
  • Dr. John Thornton, Neuropsychiatrist

12:20-12:30 PM      Q&A | Closing Remarks

PROGRAM CO-CHAIRS: Philippa G. Samworth, Dutton Brock LLP & David Raposo, Dutton Brock LLP

This program is eligible for up to 3 Substantive Hours

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One to Watch: City of Nelson v Marchi, 2020 CanLII 57554 (SCC)

Written By: Michael Warfe and Ryan Marinacci, Student-at-Law

On August 20, 2020, the Supreme Court of Canada granted leave to appeal from the decision of the Court Appeal for British Columbia.  The Municipality sought leave when the BCCA ordered a new trial after setting aside the trial judge’s order dismissing Plaintiff’s action.

The Supreme Court of Canada will likely hear submissions sometime in 2021.  With winter just around the corner, this is definitely one to keep an eye on as the Court revisits the 30-year-old leading case on municipal liability and the operational-policy distinction that can give rise to Crown immunity from liability.

The Plaintiff was seriously injured after stepping onto and falling through a snowbank.  She argued that the City was liable for having created a hazard when it cleared snow by creating snowbanks (or windrows) on the edge of the street along the sidewalk.  Having parked her car in an angled spot on the street, the Plaintiff had no way of getting onto the sidewalk other than walking across the snowbank, which is when she seriously injured her leg after her foot fell through.

The trial judge concluded that the actions of the snow removal crew were the result of policy decisions and that as a result, the City owed no duty of care to the Plaintiff for the circumstances that led to her injury.

The Court of Appeal disagreed and found that the trial judge had erred in accepting the City’s submissions that every decision made in relation to snow removal was a policy decision.  The Court turned to the Supreme Court decision in Just v British Columbia, 1989 CanLII 16 (SCC), which held that not every governmental decision could be designated a policy decision, otherwise complete Crown immunity would result.

Rather, Cory J drew upon the High Court of Australia’s decision in Sutherland Shire Council v Heyman (1985), where policy decisions were properly characterized as involving or being governed by financial, economic, social, or political factors or constraints.  By contrast, operational decisions—which attracted no Crown immunity and could give rise to liability—were the product of administrative direction, expert or professional opinion, technical standards, or general standards of reasonableness.

In concluding that all snow removal decisions were policy decisions, the trial judge had not engaged in the analysis mandated by Just, and this the BCCA found to be a reviewable error.  Indeed, the Court found that several of the decisions in question could properly be characterized as operational decisions.  These included the decision not to extend the hours of snow removal and the decision not to move snow into specific parking spots to provide access to the sidewalk.

In addition, the BCCA found that the trial judge had further erred by concluding that the Plaintiff’s decision to step into the windrow was the proximate cause of her injuries because the province’s Negligence Act precluded such a finding.

After the BCCA released its decision, the Municipality sought and was granted leave to appeal to the SCC.  This decision will provide an opportunity for the court to revisit Just, which has stood for over 30 years.  Stay tuned for how this one turns out!

Who is Considered a Plaintiff under a Section 61 Family Law Act Claim? | McLeish Orlando Personal Injury Lawyers Toronto

Who is Considered a Plaintiff under a Section 61 Family Law Act Claim? A Deeper Look into Who Qualifies

Written By: Dale Orlando and Endrita Isaj, Student-at-Law

Who is Considered a Plaintiff under a Section 61 Family Law Act Claim? | McLeish Orlando Personal Injury Lawyers Toronto

In personal injury claims, family members have the right to bring a tort action for damages as a result of the injury or death of their loved one that arose from the negligence of another party. Section 61(1) of the Family Law Act (FLA) states:

Right of dependants to sue in tort

61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.  R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).

Section 61 of the Family Law Act (FLA) allows for the recovery of damages and provides a right of action to certain family members of the person injured or killed due to the negligence of another, where the injured or deceased individual is or would have been entitled to recover damages. Family members can bring an FLA claim to recover damages for the following:

  • Actual expenses reasonably incurred for the benefit of the person injured or killed
  • Funeral expenses
  • Travel expenses to visit the injured family member during their treatment
  • The loss of value of services such as nursing or housekeeping and a reasonable allowance for loss of income
  • Compensation for the loss of guidance, care, and companionship that the claimant would have expected to receive from their family member had the injury or death not occurred.[1]

Therefore, as per s. 61(1), a plaintiff in an FLA claim can include the spouse, children, grandchildren, parents, grandparents, and brothers and sisters of the injured or deceased person. The definition of spouse is the broadest of the categories, and for that reason, the case law has developed over the years to define who is a “spouse” as it pertains to s. 61(1) of the FLA.

The definition of spouse for the purpose of s. 61 comes from Part III of the Family Law Act. The definition includes married couples and those who are not married, but who have cohabited for a period of not less than three years, or are in a relationship of some permanence if they are the parents of children as set out in s. 4 of the Children’s Law Reform Act.

The case of Brebic v Niksic, 2002 OJ 2974 [Brebic] dealt with the constitutionality of the definition of spouse in s. 29 of the Family Law Act (FLA), and its application to s. 61 of the FLA. In Brebic, the appellant, Krystyna Brebic, and her two sons commenced an action against the respondent, seeking damages for the wrongful death of Ante Alivojvodic, her boyfriend. The appellant and Mr. Alivojvodic had cohabited for a period of 18 months. They did not marry and they had no children born of the relationship. They cohabited and shared expenses, which included caring for the appellant’s two sons from a previous relationship. The appellant brought an FLA claim against the driver of the vehicle that killed Mr. Alivojvodic. In order to advance a s. 61 FLA claim, the appellant had to bring a constitutional challenge based on the assertion that the definition of spouse discriminates against persons who are in a relationship of some permanence but who have cohabited in a spousal relationship for less than three years.

The Court of Appeal dismissed her constitutional challenge, holding that “neither the definition of ‘spouse’ found in s. 29 of the Family Law Act nor its application to s. 61 [of the Family Law Act] infringes the Charter.”[2]

The Court of Appeal reasoned:

23      The definition of spouse in s. 29 of the Family Law Act is tied to the purpose of the legislation. Spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequences of the relationship. The right to sue in tort under s. 61 of the Act is premised on the right to claim support that would have been available if not for the death or injury of a spouse. Support obligations and the right to sue are not automatically imposed, but rather arise after three years of cohabitation. This three year “qualifying period” is an attempt to target only those relationships of sufficient duration and demonstrated permanence as to justify the imposition of ongoing private support obligations after the termination of a relationship.

The Court held that although the three-year minimum cohabitation period does not capture all relationships, its deleterious effects are outweighed by the importance of having an objective standard by which individuals and the courts can know when state-imposed support obligations and rights of action can arise.

This three-year minimum cohabitation period to be deemed a “spouse” for unmarried couples has also been seen in other aspects of a personal injury claim, including Ontario’s Statutory Accident Benefits Schedule (SABS) when claiming statutory accident benefits or the spousal death benefit.

Ing Insurance Company of Canada v. Co-Operators Insurance Company, 2013 ONSC 4885 dealt with an appeal by the insurer from an arbitral award finding that an unmarried couple were deemed to be “spouses” under the Insurance Act. The individual, Jason Orr, was injured in a motor vehicle accident. The arbitrator held that Mr. Orr and his girlfriend, Amy Gordon were “spouses,” making the insurer, Ing Insurance Co., liable to pay statutory accident benefits to the injured Mr. Orr. The Insurance Act defines a spouse as either of two persons who have lived together continuously in a conjugal relationship outside of marriage for a period of not less than three years.[3] The arbitrator found that Mr. Orr and Ms. Gordon had been in a conjugal relationship from when they were 15 years old up until the subject accident when both parties were 20 years old and were considered “spouses” under the Insurance Act. The arbitrator had conducted their analysis using the characteristics of a conjugal relationship from the Supreme Court of Canada’s decision in M v H, 1999 2 SCR 3.

The court held that the arbitrator used the correct law in determining what a conjugal relationship is, but had applied the law incorrectly. The court held that the arbitrator failed to determine when Mr. Orr and Ms. Gordon had been engaged in a continuous conjugal relationship and that there was a lack of evidence to show they had been living together since they were 15 or were engaged in a marriage-like relationship in the three year period before the accident.[4] The court found it difficult to accept that the couple had been “living together” for the purpose of the spousal definition for the 3-year period before the accident. They did not spend that time continuously together, but split the time between Ms. Gordon’s parents’ house and Mr. Orr’s parents’ home. These factors were imperative to the court’s finding that they were not “spouses” within the meaning of the Insurance Act. The insurer, Ing Insurance Co., was not liable to pay statutory accident benefits to Mr. Orr arising from the injuries he sustained in a motor vehicle accident.

Contact the lawyers at McLeish Orlando to find out how we can help you with your case and to assess your Family Law Act claim.

[1] Family Law Act, R.S.O. 1990, c. F.3, s. 61(2).

[2] Brebic v Niksic, 2002 OJ 2974 at para 2.

[3] Ing Insurance Company of Canada v. Co-Operators Insurance Company, 2013 ONSC 4885 at para 7 citing s. 224(1) of the Insurance Act, RSO 1990 c I.8.

[4] Ibid at para 49.

The Corroborative Evidence Requirement Under the OPCF 44R

Written By: Nick Todorovic and Brandon Pedersen, Student-at-Law

Under Ontario automobile policies, the OPCF 44R Family Protection Coverage is optional auto insurance coverage Ontario drivers may purchase. If you are injured in an accident, this endorsement is meant to make up any difference between the third-party liability limit of an at-fault driver and your own coverage. The OPCF 44R coverage also protects you in the event you are injured in an accident caused by an unidentified driver.

There are barriers to accessing coverage for an accident caused by an unidentified driver. Under section 1.5(D) of the OPCF 44R, where an insured alleges that the accident was caused by an unidentified driver, the insured must provide “other material evidence” that corroborates that of the insured. This is defined to mean i) independent witness evidence, other than evidence of a married spouse or common-law partner of more than three continuous years of cohabitation or have cohabited in a relationship of some permanence if they are the parents of a child, or ii) physical evidence indicating the involvement of an unidentified vehicle. The corroborative evidence requirement seeks to ensure that there exists evidence from a source extraneous to the insured that tends to show that the insured is telling the truth.

Independent witness evidence

Pepe v State Farm is a seminal Court of Appeal decision relating to what constitutes independent witness evidence. In Pepe, the insured was injured in a single-vehicle accident which he claimed occurred when he swerved to avoid an unidentified driver. His girlfriend was in the car and was also injured. As a result of the accident, the insured sued his own insurer, State Farm, claiming coverage for his injuries caused by the negligence of the unidentified driver. State Farm denied coverage under the OPCF 44R, saying that the insured’s girlfriend could not satisfy the independent witness evidence requirement under section 1.5(D)(i) of the OPCF 44R. The motion judge ruled in the insured’s favour. State Farm appealed.

The Court of Appeal held that there was no doubt that under the common law requirements or Ontario’s Evidence Act, the evidence of the insured’s girlfriend was capable of corroborating the insured’s evidence. The Court further noted that nothing in the language of the section could justify extending the categories of persons who cannot give corroboration to the much broader group of persons having a close personal relationship with the claimant. Extending the categories of those persons who cannot provide corroborative evidence would significantly reduce the circumstances that coverage would be available. Therefore, the Court found that since the insured’s girlfriend’s evidence was corroborative, the insured’s claim for coverage under OPCF 44R could proceed.

Physical evidence

In Azzopardi v John Doe and The Personal Insurance Company, the insured was involved in a single-vehicle accident which he claimed occurred when an unidentified vehicle cut him off while he was riding his motorcycle. In his discovery and affidavit evidence, the insured deposed that following the collision, two men approached him and told him they had witnessed the collision but did not get the license plate number of the unidentified vehicle. No identifying information was obtained from these witnesses. The police did not attend the scene on the day of the collision. The motor vehicle accident report indicated the involvement of an unidentified vehicle. The Court held that the physical evidence requirement of section 1.5(D)(ii) is not limited to those situations where there is physical evidence at the scene which may be consistent with the plaintiff’s version of events, such as skid marks or contact between the vehicles. The Court went on to say:

[27] To limit the section in this way would… create an unintended and unfair restriction in coverage, and preclude potential recovery in those situations where there is no contact between vehicles and no skid marks or other physical evidence at the scene. The section does not by its wording place such limit or restriction on what can constitute “physical evidence.”

[28] OPCF 44R coverage is remedial. As a result, it is to be interpreted broadly and liberally… If such restriction was intended, the section would say so.

The Court found that the consultation report of the doctor, stating the injuries that were unique to the case and confirmed by way of x-ray, could corroborate the insured’s version of events. Such evidence would qualify as “physical evidence indicating the involvement of an unidentified vehicle” for the purposes of section 1.5(D)(ii).

In Mazinani v John Doe, the insured was riding his motorcycle with his friend as a passenger when he allegedly collided with an unidentified vehicle after it ran a stop sign. The Court held that the notes of the attending police officer and a photograph of the damage to the bicycle were sufficient physical evidence to satisfy section 1.5.

[22] It is important to note that the section uses the word “indicate,” not “prove.” Clearly, the tire marks could not, on their own, prove that the plaintiff’s vehicle was run off the road by another vehicle. Without a doubt, the tire marks are capable of many interpretations. The plaintiff could have taken evasive action because a dog or a deer ran out in front of her, or she could have entered the curve on the left side of the roadway and driven off the road due to inattentiveness. However, just because alternate possibilities can be postulated, does not render the physical evidence valueless as corroboration. Circumstantial evidence, on its own, frequently leads to many possible inferences. The question here is whether it serves to indicate that another vehicle was involved, which caused the plaintiff to take evasive action. In my view, it does.

Azzorpardi and Mazinani establish a seemingly low threshold for meeting the physical evidence requirement of section 1.5(D). The case law is constantly evolving, but for now, drivers involved in an accident caused by an unidentified vehicle can take some solace in knowing that the burden for meeting the corroborative evidence requirement is not a particularly high one.

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

Guardianship Fees and SABS | McLeish Orlando Personal Injury Lawyers

Guardianship Fees and SABS

Written By: Dale Orlando and Brandon Pedersen, Student-at-Law

Guardianship Fees and SABS | McLeish Orlando Personal Injury Lawyers

All auto insurance policies sold in the Province of Ontario include statutory accident benefits coverage. These are benefits that a policyholder is entitled to claim from their own insurer in the event that they are injured in a motor vehicle accident.

The statutory accident benefits schedule (SABS) includes coverage for medical, rehabilitation, and attendant care expenses. Medical/rehabilitative expenses are intended to cover reasonable and necessary expenses incurred by the injured person as a result of the motor vehicle accident for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

What is a Guardianship Order?

Many of our clients suffer moderate to severe brain injuries as a result of being involved in a motor vehicle collision.  Often, these individuals do not recover sufficiently to be capable of instructing their lawyer during the process of applying for and dealing with disputes over entitlement to statutory accident benefits.  People who are “mentally incapable” of making decisions about their property or personal care are classified as “people under disability.” The definition of “mentally incapable” is found in the Substitute Decisions Act, and says that a person is “mentally incapable” where he or she is not able to understand information relevant to making a decision about the management of his or her property or personal care, or he or she is not able to appreciate reasonably foreseeable consequences of a decision or lack of decision about the management of his or her property or personal care.

If a person is “under disability” by means of being “mentally incapable,” a guardianship order must be obtained in order for counsel to represent the interests of the incapable individual. In these situations, the Court will typically appoint a family member to act as the guardian of property and personal care for the incapable person.  However, there are significant costs associated with the application process to the Court.  The question is whether the costs associated with obtaining a guardianship order are required to be paid under the statutory accident benefits schedule.

In Stukic v Personal, the Court found that an insurer is liable under s. 16 of SABS to pay the expense of obtaining a guardianship order for an insured who is catastrophically impaired and not able to deal with his person or property. The Court stated:

[O]ne of the purpose tests in s. 15(2) the obtaining of the guardianship order was a measure undertaken “to reduce or eliminate the effects of any disability resulting from the impairment.” It is conceded, and established as a condition of obtaining the guardianship order, that the insured is not able to make decisions. Obviously, he cannot communicate a decision he is unable to make. The guardianship order gives him a voice and mind by or through which he can legally authorize or request other rehabilitation goods and services, instruct counsel, deal with the government, deal with the insurer and commit to expenses such as transportation and accommodation.

As per the alternative test in the same subsection, the obtaining of a guardianship order was a measure undertaken “to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.” Through his guardian, he can request visitors, arrange to visit others, go to a multitude of places and do a multitude of things he could not do if it were not for his guardian ascertaining his wishes and best interests and making the arrangements.[1]

However, as is required for all medical and rehabilitation benefits, the legal fees associated with the application for appointment of a guardian or property are only payable by the auto insurer if the applicant first submits a treatment plan in advance of incurring the expense and the insurer approves the treatment plan.

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

 

[1] Stukic (Litigation Guardian of) v Personal Insurance Co. of Canada, 2005 CarswellOnt 3476 at paras 25–26.

OTLA – The Litigator September 2020 Issue – Justice Delayed is Justice Denied

Reprinted with permission of the Ontario Trial Lawyers Association. First printed in The Litigator, September 2020.

McLeish Orlando Partner, Patrick Brown, and Student-at-Law, Ryan Marinacci, wrote this piece for The Litigator September 2020 Issue.

Well before the pandemic, the years-long delay to obtain a jury trial had been frustrating access to justice.  Indeed, deficiencies inherent in the civil jury system have long justified eliminating juries altogether.  This is because insurers drive up the exceptionally high rate of civil juries in Ontario, which comes at a heavy cost to plaintiffs.

Juries are not informed of policy limits, nor told the defendant is insured and defended by the insurer.  Juries are also not told about the statutory deductible and that insurers often keep the first $40,000 of the damages awarded.  Appellate courts routinely revisit high jury awards yet defer to juries on low awards.  And finally, there is no real way to prevent jurors from using smartphones to access external information that would be inadmissible at trial.

Ontario must eliminate civil jury trials to remedy the systemic issues that disproportionately impact plaintiffs particularly in light of the access to justice crisis in relation to the ongoing pandemic.

Click here for the full article.

Things you should do before you call a personal injury lawyer

Written By: Michael Warfe and Brandon Pedersen, Student-at-Law

When hiring a real estate agent to help you pick the perfect house, you may ask yourself: what do I need to do to ensure I get the best outcome and best representation possible?

Hiring a personal injury lawyer is no different. You want to ensure that you are hiring a professional that will work tirelessly to achieve your desired result.

Like most important decisions, there are a number of things you should do before calling a personal injury lawyer.

Firstly, you should do your research. There are countless personal injury firms and lawyers out there, but you should do your due diligence to find the one that’s right for you. Use the internet and look for testimonials and peer-reviewed rankings that can help you make an informed decision regarding your representation. If you know somebody who is a lawyer, whether or not they practice personal injury law, there is a good chance that they will know of the most reputable personal injury lawyers and firms in your area.

Once you’ve decided on who you will meet with, start gathering your documents. Lawyers like to see records in order to provide you with an accurate assessment of your case. Organizing the medical documents you have, preparing a list of prescriptions and bills incurred as a result of your injuries, and providing pictures of your injuries will help inform the lawyer of the circumstances of your case. Further, having these documents prepared and ready for your meeting will help to speed up the sometimes lengthy litigation process.

You should also write down any questions you may have. The law is not an easily understood concept, and that is why lawyers exist. There are many topics that will be complicated. It is essential that you ask the questions you want to be answered and to do so, it is recommended that you come prepared with a list of questions. A good lawyer will always welcome questions and provide you with thoughtful, well-informed answers.

Lastly, be open to the lawyer’s recommendations and advice. You may have a pre-determined idea of what your claim is worth or what you think should happen. However, it is essential that you remain open to the lawyer’s advice and recommendations because after all, they are a professional dedicated to ensuring you obtain the best result possible.

If you do the above, you’ll get better legal information and a better evaluation of your claim.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anywhere But Your Rearview Mirror: Why hanging your mask from your rearview mirror is a bad idea

Written By: Salvatore Shaw and Endrita Isaj, Student-at-Law

Distracted driving

COVID-19 has changed many aspects of our lives, but one change that has been the most visible has been the use of masks. Masks are now mandatory in grocery stores, malls, coffee shops, restaurants, and indoor spaces that can be accessed by the public.

Having to have a mask with you at all times means it will inevitably end up in your car. A common (and dangerous) trend we see on our roadways is motorists hanging their masks from the rearview mirror of their car when not in use. This seemingly trivial act can have dangerous implications for all road users and should be avoided.

Hanging Masks Create an Additional (and Unnecessary) Blind Spot

We’ve all heard of or have been taught to be aware of blind spots when driving a car. In fact, they are a big reason why we hit things with our cars.  Below is an image showing the common blind spots motorists experience while driving their vehicle.

The trend of hanging a mask from your rearview mirror actually blocks your forward view of the roadway, creating a new blind spot out of the front windshield. This is especially dangerous because anything that obstructs a driver’s view out of their windshield could mean that a driver won’t see a traffic signal, pedestrian, cyclist, or another vehicle. It could also result in the hazard not becoming visible until it is too late to react and avoid a collision.

A recent AAA release states “in a typical city, a motorist encounters as many as 200 different situations per mile. The eyes provide nearly all of the information needed to respond to road conditions, traffic patterns, signals, and signs.” The AAA release continues, “Obstructing this field of vision, even partially, can cause you to miss things that should be seen, such as signs, pedestrians, wildlife, motorcycles, bikes, or other vehicles.”

In fact, section 73(1)(b) of the Highway Traffic Act makes it an offence to drive a vehicle with any object placed in, hung on, or attached to the motor vehicle, in a manner that will obstruct the driver’s view of the highway or any intersecting highway.

Leaving aside the chances of a ticket (and fine), it just makes sense not to block your view of the road by hanging a mask from your rearview mirror.

Masks are another Distraction for Drivers

When drivers hang their masks from their rearview mirror, the result is that the mask becomes a visual distraction when driving. Visual distractions have been proven by studies to create a slower reaction time in drivers to sudden and critical events.[1]

With a mask constantly dangling, the driver becomes accustomed to this constant movement at the edge of their field of vision, so they notice movements outside the vehicle much later, say the experts at DEKRA Accident Research, a global vehicle inspection company.[2] The consequence is that drivers are less likely to notice the movement of cyclists and pedestrians, potentially causing serious collisions.

The Canadian Automobile Association (CAA) warns that distracted driving is a threat to everyone on the road because “distracted drivers are 3 times more likely to be in a crash than attentive drivers.”[3] Reducing all distractions when driving, especially hanging masks, is an important way to ensure the driver’s focus is on the road and on their driving.

In Ontario, deaths from collisions caused by distracted driving have doubled since 2000. Ontario data on collisions show one person is injured in a distracted-driving collision every half hour.

Visual distractions are actually one of the more common types of distractions for most drivers. These are distractions that take the driver’s eyes and focus off the road, even for mere seconds. Any type of visual distraction will keep the driver from focusing straight ahead where they’re supposed to be looking to drive safely.

Visual driving distractions, whether they’re intended or not, can disrupt perception, recognition, and other cognitive behaviors.

There are three main types of visual distractions while driving:

The first type is where the visual field of the driver is blocked.

The second is when the driver doesn’t look at these areas and focuses instead for a certain period of time on a different visual object, creating an issue with safe driving.

The third is where the driver’s attention wanders from being distracted from their driving.

Placing a mask on your rearview mirror can result in any one or all of these three types of visual distractions and impede safe driving.

How to Safely Store your Mask when Driving

Drivers should take care to minimize all risks and distractions when driving, and removing their masks from their rearview mirrors is a simple way to improve their safety and the safety of others on the road.

There are many places to store your masks which don’t impede your vision while driving. Place your mask in any one of the storage compartments, cup holders, or empty seats in your car. Place it in your purse, bag, or jacket. Just don’t hang it from your rearview mirror where it blocks your vision.

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

[1] Elke Muhrer and Mark Vollrath, “The effect of visual and cognitive distraction on driver’s anticipation in a simulated car following scenario,” (2011) Transportation Research Part F: Traffic Psychology and Behaviour – Special Issue: Driving Simulation in Traffic Psychology, Vol 16, Issue 6, pages 555-566, https://doi.org/10.1016/j.trf.2011.06.003.

[2] “DEKRA experts warn against hanging face masks in your field of vision: Rear-View Mirror is Not a Clothes Hook,” July 1, 2020, https://www.dekra.com/en/rear-view-mirror-is-not-a-clothes-hook/

[3] “Distraction behind the wheel is killing more Canadians than impaired driving,” https://caaniagara.ca/community/distracted-driving.

Merino v ING Insurance Company of Canada, 2019 ONCA 326

Written By: Nick Todorovic and Ryan Marinacci, Student-at-Law

personal Injury Lawyers

Is an insurer entitled to unilaterally terminate an automobile insurance contract without providing notice on the basis of material misrepresentations in the application?

No, according to the Court of Appeal for Ontario’s decision in Merino v ING Insurance Company of Canada, 2019 ONCA 326, where Justice Feldman wrote,

An automobile insurer in Ontario cannot rescind an automobile insurance contract at common law ab initio, and the respondent’s letter purporting to do that was not effective.

What happened?

Mr. Klue struck Ms. Merino with his car and caused a catastrophic injury.  Ms. Merino obtained a $2,000,000 judgment against Mr. Klue and sought to recover $200,000 in uninsured coverage from his insurer, ING.  However, ING took the position that it had rescinded the insurance policy based on material misrepresentations in the application.  Indeed, three months before the accident, ING had sent Mr. Klue a registered letter advising him that his insurance coverage was “void from the inception date” because of the failure to disclose his wife’s previous driving record in the policy application.

The undisclosed information included an at-fault accident, convictions for speeding and careless driving, a license suspension for unpaid fines, and the cancellation of a previous policy for non-payment of premiums.  The motion judge found that this constituted a material misrepresentation entitling ING to rescind the contract, which Justice Verbeem found it had done via the registered letter.

Justice Feldman disagreed.  Writing for a unanimous panel, Justice Feldman held that regardless of misrepresentations, insurers had to comply with s. 11 of Statutory Conditions – Automobile Insurance in order to validly rescind or terminate an automobile insurance contract.  This provision required all insurers to provide 15 days’ notice by registered mail, or five days’ notice by personal delivery if they intended to rescind or terminate an insurance contract.  Insurers could not simply treat an insurance contract as void at common law even when the application contained material misrepresentations.

In the court’s view, mandatory notice periods such as these provided the necessary time and opportunity to obtain alternate coverage when insurance policies were going to be terminated by the insurer.  In turn, such notice periods helped ensure that anyone driving a car was always able to bridge any impending gaps in coverage.

The court found that that ING was subject to the notice provisions even in the case of misrepresentation and that it could not retroactively rescind the contract.  Indeed, allowing it to do so would effectively grant the insurer the power to unilaterally place a person in automatic contravention of the Compulsory Automobile Insurance Act s. 2 even when he or she believed the vehicle was insured, thereby frustrating the legislative purpose of mandatory automobile insurance.

In the court’s view, the legislative intent behind requiring all vehicles that operate on Ontario highways to be insured was to protect innocent victims of automobile accidents and to provide some statutory accident benefits to anyone involved in an accident.  Sections 233 and 258 of the Insurance Act provided protection to innocent third parties and certain statutory accident benefits to every person with an insurance policy, even when obtained by misrepresentation.  Insurers were bound by this statutory scheme and could not rescind insurance contracts at common law.  The rights and obligations of insurers, insureds, and injured third parties were governed by these provisions, which included mandatory notice periods for rescission.

ING had therefore not validly rescinded the contract because it had attempted to rescind the contract “from the inception date,” had not provided notice, and had failed to satisfy the statutory conditions for voiding the contract under s. 11.  Ms. Merino was thus entitled to recover judgment from ING up to the policy limits.

Why does this matter?

Insurers have obligations even in the case of misrepresentation, and cannot act as though an insurance contract is terminated without providing notice.  This helps ensure there are no gaps in coverage when individuals withhold or misrepresent information on their insurance applications, whether intentional or not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By contrast, the current SABS read,

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

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

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

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

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