Tag Archives: mcleish orlando

Setting the Bar for Commercial Host Liability

Written By: Salvatore Shaw and Brandon Pedersen, Summer Student

Three friends go to a bar one night, and drink to the point of intoxication. The bartender continuously serves them alcohol, even after noticing their intoxicated states. The three friends then leave the bar, and one of them gets behind the wheel of a car. Subsequently, the driver collides with a third party vehicle, leaving the driver of the car severely injured. Is the bar liable?

If a clearly drunken patron ends up leaving a bar after being served numerous drinks, the bar would likely bear a degree of liability for the damages suffered by the drunken patron. This duty of care relationship exists between the bar and the patron it overserved.

This relationship was first recognized in Jordan House Ltd. v Menow, a 1974 Supreme Court decision, which involved an overserved patron of a hotel bar who was kicked-out and later was struck by a vehicle. The Court held that the hotel had a duty to protect the patron once they had assisted the patron in becoming intoxicated.

The Courts have further expanded the responsibilities of commercial hosts to include owing a special duty not only to their own patrons, but also to third party users of the road who may become injured or killed as a result of conduct committed by their patrons. This duty was first recognized in Stewart v Pettie, a landmark Supreme Court decision, which established that there is a special relationship between commercial hosts and the public that could require such hosts to take affirmative steps to protect them.

What does this mean? In order to meet the standard of care, commercial hosts must take positive steps to protect third-parties from intoxicated patrons who decide to drive. Some factors the Courts may look to in assessing liability of commercial establishments may include whether there was a system or policy in place to control and monitor alcohol consumption; whether the commercial establishment arranged for transportation; and whether the staff is properly trained in accordance with regulatory policies.

In a recent British Columbia Supreme Court decision, the Court proposed a list of common sense commercial host practices that can act as a general guideline for bars to follow:

74      While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

    • ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
    • ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
    • ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
    • inquire if the patron is driving and identify any “designated driver” for groups of patrons;
    • know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;
    • display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
    • ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;
    • display posters advertising free ride-home services available in the neighbourhood; and
    • if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.[1]

Commercial hosts have an obligation to take positive steps to protect third-parties from intoxicated patrons who decide to drive. Meeting the standard of care requires the establishment to use common sense and take proactive steps to protect intoxicated patrons from causing harm to themselves or others. All commercial hosts should have protocols in place to ensure that all reasonable precautions are taken to prevent patrons who subsequently drive after becoming intoxicated.

If you or someone you know has been injured by a drunk driver, contact the team at McLeish Orlando LLP for more information about your rights, and receive a free consultation.

[1] Widdowson v Rockwell, 2017 BCSC 385.

Bikes, Bumps and Cookies – Teaching your children about bicycle safety

Written By: Salvatore Shaw and Brandon Pedersen, Summer Student

With another school year finished, children are now eager to get outside and enjoy the summer months. One of the many activities that children enjoy is riding their bicycle. There are few feats more rewarding for child than finally taking off the training wheels on their bicycle and being able to ride freely and feel the wind against their face. Sadly, however, cycling can be a dangerous activity without the right equipment or a good understanding of safe riding practices.

Tips and Safety Measures

There are a number of things that you and your child should keep in mind in order to reduce the chance of injury. Here are some top tips on bicycle equipment and safe practices you can review with your child before they ride:

Starting out – sizing your bike

It is important to ensure your children are riding a bike that fits properly. Children are continuously growing, and the growth over the course of one year can make a big difference in bike safety. A bike that is too big or too small can’t be properly controlled and can be dangerous for the cyclist and those around them. As a general rule, a cyclist should be able to stand flat-footed over their bike’s frame with two to five centimeters of clearance.

Always wear a helmet, it’s the law!

A helmet gives you and your child a real chance of walking away from a fall or collision with a car. Not only that, but Ontario law requires every cyclist under the age of 18 to wear an approved bicycle helmet while riding! The current fine for bicycle riders under 18 travelling on any public road without a helmet is $75.  Regardless of whether the law requires you to wear a helmet while cycling, a helmet can greatly reduce the risk of permanent injury.  We strongly recommended that all riders wear helmets.

In order to be the most effective, it is important to ensure that the helmet fits your child properly. The easiest way to ensure that a helmet fits right is to check that the edge of the helmet is 2 fingers above the eyebrows to protect the forehead and 1 finger should fit between the chin and the chin strap. It is also important to ensure that you only use a helmet that is in good condition, without any cracks or defects to the shell, protective foam, or chinstraps.  Also check to see that the expiry date for the helmet (normally located on a sticker inside the helmet) hasn’t passed.

Practicing good safety habits

So, your child is ready to go, now what? It is essential to teach your child the fundamentals of cycling and road safety before letting them loose in the neighborhood.   It is important to start developing these good habits at a young age. For a checklist of road safety tips for young cyclists, see our fun Guide to Bike Safety for Kids!

And parents don’t forget to always remember to practice what you preach!  Children most often do what they see, rather than what they are told.

If you or someone you know has been injured in a cycling incident, contact the team at McLeish Orlando for more information about your rights, and receive a free consultation.

Snowball v Ornge, 2017 ONSC 4601

Written By: Michael Warfe and Endrita Isaj, Summer Student

The ability for families to claim damages for their loss of guidance, care, and companionship from the injury or death of a loved one is well-established by section 61 of the Family Law Act (FLA). However, the ability for families to claim damages for their mental distress arising from the loss or injury of a family member has always been relatively restricted. Typically, a claimant would not be able to advance a claim for damages for mental distress unless they witnessed the death or bodily injury of their family member, were involved in its aftermath, or tried to help save the injured person.

The case of Snowball v Ornge, 2017 ONSC 4601, has opened the door for family members to bring an action in negligence to claim damages for mental distress that resulted from the death or injury of their family member, without having been there to witness the incident.

In Snowball v Ornge, Christopher Snowball was a paramedic who lost his life aboard an air ambulance helicopter operated by Ornge in Moosonee, Ontario. The helicopter crashed and burned, killing all four on board, including Christopher, two pilots, and another flight paramedic.

Christopher’s then 16 year old daughter and his parents brought an action in negligence against Ornge for damages for their mental distress and for damages under s. 61 of the FLA. In their Statement of Claim, the Snowball family outlined the particulars of their mental distress stemming from Christopher’s loss. These mental injuries included “intense and prolonged physical distress at exposure to cues that [reminded] them of Christopher, dissociative reactions, persistent negative emotional states, recurring ruminations over the horrible manner in which the late Christopher Snowball met his death, and the terrible agony he endured before perishing,” among other symptoms.[1]

The defendant, Ornge, brought a motion to strike the plaintiffs’ claim for damages for mental distress pursuant to Rule 21 of the Rules of Civil Procedure. Ornge submitted to the court that on the facts of the case there was no right of action for mental distress damages arising from a negligently caused death. Ornge maintained that the only way to meet this threshold was if the plaintiffs witnessed the incident or its aftermath.

Justice Faieta of the Ontario Superior Court of Justice dismissed Ornge’s Rule 21 motion to strike out the plaintiffs’ claim for mental distress damages. Justice Faieta relied on the Supreme Court of Canada’s ruling in Saadati v Moorhead, 2017 SCC 28, to come to the conclusion that the plaintiffs’ claims for mental distress following Christopher’s death might succeed, even though they were secondary victims who did not witness the traumatic event. Justice Faieta relied on the principles the Supreme Court of Canada drew in Saadati, observing:

[G]iven that the court in Saadati rejected the “primary/secondary victim” distinction, as well as the view that there are geographic, temporal and relational proximity restrictions that are an absolute limitation on the duty to take reasonable care to avoid causing foreseeable mental injury, it is my view that the plaintiffs’ claims for mental distress following Snowball’s death might succeed even though they are secondary victims who did not witness this sudden, traumatic event.[2]

In line with Saadati, Justice Faieta held that the outcome of the plaintiffs’ action should be assessed through a “robust application of the elements of an action in negligence by the trier of fact,”[3] rather than an analysis which focused on the temporal, geographic, and relational factors or the distinction placed between primary and secondary victims.[4] The Supreme Court of Canada in Saadati confirmed that the analysis must be “sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the ‘close and direct’ relationship which is the hallmark of the common law duty of care.”[5] The Saadati ruling led Faieta J. in Snowball to recognize that the plaintiffs could have a successful claim in negligence for the mental distress they suffered, despite the fact that they were not there temporally to witness the helicopter crash.

This case is important as it provides another avenue for aggrieved family members to claim damages in negligence for the psychological injuries they have suffered following a family member’s injury or death, without witnessing the actual event. The court has recognized that following a traumatic event, a person’s mental health has to be compensated for in negligence law as it plays an integral part in how a person chooses to live their life and pursue their goals.[6]

If you or a loved one have suffered from mental distress from a family member being injured or killed, please do not hesitate to contact the critical injury lawyers at McLeish Orlando LLP for a free consultation.

[1] Snowball v Ornge, 2017 ONSC 4601 at para 7 [Snowball].

[2] Ibid at para 21.

[3] Ibid.

[4] Ibid.

[5] Saadati v Moorhead, 2017 SCC 28 at para 24.

[6] Ibid at para 23.

Photo from Canadian Press.

Going Beyond Money for a Job Well Done

In an article with Lawyers Weekly, Dale Orlando discusses the strategies McLeish Orlando employs to reward our most important resource – our staff. Whether it is through monetary compensation, assuring that everyone’s ideas are heard and appreciated, or through team-building outside of the office, Dale explains that recognizing the consistent effort of our employees is the firm’s principal goal.

You can read the full article here, or Advocate Daily’s coverage here.

Patrick Brown on The Agenda With Steve Paikin: Toboggan Hills & Lawsuits

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:

[youtube]https://www.youtube.com/watch?v=_hFchJl9YPA[/youtube]

Risky Business – Unregulated extreme sports are on the rise, along with lawsuits

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 →

Designating Traumatic Brain Injuries

As the phrase implies, “Traumatic Brain Injury” (“TBI”) refers to damage to a person’s brain as a result of trauma. TBIs have become a pervasive feature of the Canadian social landscape. Where, 30 years ago, certain kinds of trauma to a person’s head would have been fatal, medical advancements now result in more people surviving. This, in turn, means that an increased number of Canadians live with the ongoing effects of a TBI.

The symptoms of TBIs present on a spectrum – anywhere from mild and short-lasting on one end to severe and permanent on the other end. Continue reading →

Non-lawyers in the ownership mix

Alternative business structures could result in fewer, more well-funded firms

By: Dale Orlando, McLeish Orlando LLP

Published in: The Lawyers Weekly, June 27, 2014 issue

On Dec. 9, 2011, Law Society of Upper Canada members identified as a priority for the coming year the examination of alternative business structures (ABS) as a means of delivering legal services in Ontario. Based on the contents of the first report to convocation of the ABS working group (last June) and numerous comments at the society’s ABS symposium in October of last year, some form of ABS is likely to be approved in Ontario in the coming months and that will likely have implications for the personal-injury bar. Continue reading →

SCC Upholds Settlement Privilege in Pierringer Agreements

agreement

Settlement privilege is a long-standing concept that wraps a protective veil around the efforts that litigants make to settle their disputes.  It does so by ensuring that communications made to negotiate a settlement are confidential and inadmissible at trial.  With these assurances, parties can negotiate freely without worrying that the negotiations will later come back to haunt them. Continue reading →

Preparing an expert witness for trial

By: Dale Orlando, McLeish Orlando LLP

Published in: Insurance Lawyer Magazine

on October 13, 2013

In a court action for damages arising out of an injury, judges and juries will rely upon the opinions of health professionals in order to understand and interpret the facts of a plaintiff’s claim. However, many health professionals are understandably hesitant to express their opinions within this context. This article is intended to assist health professionals in this regard, through a discussion of what a health professional may expect and how best to prepare, if called to appear as a witness at trial.

The scope of the expert’s testimony

When an expert takes the stand at trial, he or she will not be narrowly confined and limited to the precise content of his or her report, which would have been delivered pursuant to theEvidence Act. A medical expert has a right to explain, amplify and expand on what is latent in the medical report – so long as they are not opening a new field. The purpose of the rule is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Continue reading →

A Weekend of Giving Back

McLeish Orlando Supports BIST 5k Run, Walk and Roll and SCIO Wheelchair Relay Challenge

This past weekend, McLeish Orlando staff, family and friends came out to support two very important causes in our community. In spite of the rain on Saturday, there were close to 300 participants who finished the race for the 3rd Annual BIST 5K Run.

McLeish Orlando participated as part of The Personal Injury Alliance with a team of close to a hundred staff and supporters.

Through sponsorship, fundraising and registration, BIST generated over $50,000 that will go a long way in supporting programs, services and efforts to raise brain injury awareness.

The Brain Injury Society of Toronto supports brain injury survivors and family members. BIST aims to enhance the quality of life for people in the City of Toronto, living with the effects of brain injury through education, awareness, support and advocacy.

Photos from bist.ca- Click the photo to enlarge

BIST5K2013

As part of our weekend of giving back, on Sunday we participated in Spinal Cord Injury Ontario’s Wheelchair Relay Challenge held at Ontario Place.  Continue reading →