Tag Archives: Ontario

What is Catastrophic Impairment?

Written By: Dale Orlando and Emma Pedota, Summer Student

Catastrophic Injury Lawyers

No-fault auto insurance benefits in Ontario are set out in the Statutory Accident Benefits Schedule (“SABS”) which creates three categories of injuries that determine how much money will be available to an individual after being injured in an auto incident. The first category is the Minor Injury Guideline (MIG). An individual will be classified under MIG if they experience whiplash-related injuries, muscular strains/sprains, contusions, and/or lacerations.[1] Individuals who fall under MIG are entitled to $3,500 for their medical-rehabilitation needs.

An individual who does not fall into the MIG will be classified as non-catastrophic (non-CAT) which typically provides up to $65,000 of medical-rehabilitation and attendant care funding, for up to five years.

If an individual has sustained more serious injuries than those outlined under the MIG and non-CAT designation, they may meet the description of catastrophic impairment (CAT). To be found catastrophically impaired, an individual must meet one of the several criteria set out in the legislation. When classified as such by your insurer, the injured person has access to one million dollars over their lifetime for medical benefits, rehabilitation benefits, and attendant care benefits.

The SABS defines catastrophic impairment as one of the following:

  • Paraplegia or tetraplegia
  • Traumatic brain injury
  • Blindness or a loss of vision of both eyes
  • Amputation or severe impairment of the ability to move or use one arm or to walk independently
  • Physical impairment or a combination of physical impairment that results in 55 percent whole person impairment
  • Severe mental/behavioral disorder in three or more areas of function

It is important to note that the designation of a catastrophic injury is different for children than for adults with regard to brain injuries. This is because a brain injury in children may not be immediately apparent. For other injuries, including spinal injuries, blindness, loss of limbs, etc., children are evaluated for a catastrophic injury in the same way as adults.

Causes of Catastrophic Injuries

Catastrophic injuries can be caused by a variety of factors. Some of the most common causes of catastrophic injuries are:

Changes in Ontario Law

Recent changes to Ontario law have made it more difficult for individuals to recover compensation after suffering a catastrophic injury. For example, the previous regime allowed victims to receive up to $1 million in medical and rehabilitation benefits and up to $1 million in attendant care benefits. The current regime has reduced these benefits to allows individuals to receive up to $1 million for medical, rehabilitation, and attendant care benefits.

Tort Action Against a Negligent Party

In addition to receiving benefits from your own insurer, an individual who has been seriously injured as a result of a motor vehicle incident is entitled to sue the negligent party for damages. The tort system is designed to put the innocent injured party in the financial position that he or she would have been if the injury had not occurred. Some of the heads of damages in a tort action include:

  • Loss of past income
  • Loss of future income
  • Cost of attendant care and future care
  • Housekeeping and home maintenance
  • Special damages
  • General damages for pain and suffering and loss of enjoyment of life

In Ontario, there are caps on damage awards that may limit a catastrophically impaired individual’s recovery. For example, there is a limit on damages for pain and suffering, which is capped at about $370,000 as of 2020, subject to inflation each year. However, damages for income loss and future cost of care do not have a cap.

If you or a loved one have been catastrophically injured, or if your pursuit of catastrophic designation has been denied by your insurer, call McLeish Orlando for a free consultation.

 

[1] Najma Rashid, What is Catastrophic Impairment, online: Ontario Trial Lawyers Association Blog < https://otlablog.com/what-is-a-catastrophic-impairment/>.

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.

Traffic Calming: Art or Liability?

Written By: Michael Warfe and Cody Malloy, Summer Student

Traffic Calming: Art or Liability?

A Toronto man recently decided to turn his front yard into a work of art.  Are we talking Renaissance art?  Modern art?  Maybe more of a Picasso taste?  Not quite.  The former IT worker decided to decorate the trees in his front yard with CDs and old hard drives.

The result?  Slower traffic on his street.  Why?  Just like with collisions on the 401, people are slowing down to look!

This display is certainly catching the attention of passing motorists.  The homeowner used to have a spaceship on his front lawn, and that certainly caught people’s attention.  Lawn artwork is not an entirely unusual concept.  Although we are just entering summer, if we think ahead to December, Christmas light displays are common.

Traffic calming measures have certainly started to rise in recent years.  Kitchener, Albuquerque, and Rochester have all recently taken their turn at trying to slow drivers down with street murals.

Here’s one thing the Toronto man has perhaps not considered: what if his art display distracts a driver and a collision happens as a result?  It’s happened with Christmas light displays in the past, so it’s certainly not out of the realm of possibilities.  Does the homeowner in this hypothetical scenario bear any liability?

Envision the following scenario:

A driver passing through a neighborhood is looking at traffic calming artwork.  While looking, the driver strikes a cyclist crossing the road.  The cyclist will surely file suit against the driver.  Can the driver file a third-party claim against the homeowner?

The driver could certainly make the argument that the artwork was a danger.  A person putting artwork on display certainly intends on attracting attention.  Although the homeowner may intend to draw attention to slow a vehicle down, it doesn’t always work out that way.  The point is, the homeowner intended on drawing attention to the artwork.  If this artwork creates a dangerous condition for drivers, the homeowner could unknowingly open themselves up to liability.

Which area of the law do we look to in order to answer this question?

There’s no easy answer to that question.  Typically, homeowners in Ontario are liable under the Occupier’s Liability Act, which outlines an occupier’s (homeowner’s) duty of care.  Section 3(1) states:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Clearly, section 3(1) does not apply to our situation.  A driver driving on a public roadway is at no time on a homeowner’s premises.  Alright, where do we look next?

It’s still a tough question to answer.  One may think to venture down the road of public nuisance, but it is highly unlikely an individual driver would have the standing to bring such a claim in court.  Public nuisance claims are more for damage to the public and often arise from damage that occurred over a long period of time.

Although a stretch, a court could hold the homeowner strictly liable by determining the artwork to be a non-natural use of land, per Rylands v. Fletcher [1868] HL1.  Although Rylands is an old case, it is still highly relevant in Canadian tort law with regards to strict liability.  Rylands held that a landowner can be strictly liable from damages caused by non-natural land use.  Rylands established three elements that must be met to hold a landowner strictly liable: non-natural use of land, an escape of something likely to do mischief from the land, and damages.

The non-natural use of land is now defined as use that’s dangerous, extraordinary, special, and of no general benefit to the community. [1] Although the artwork could be considered dangerous, it definitely has the possibility to have some benefit to the community in the form of calming traffic.  It’s clearly debatable how a court would rule on this element specifically.

In terms of escape of something likely to do mischief from the land, a creative argument could certainly be made.  Although not a physical escape like the flood in Rylands, a driver could argue that the visual attraction is an intangible visual escape that is likely to cause mischief.

Lastly, damages would be met, suffered by the victim of the collision.

Crazy roadside artwork aside, distracted driving is a serious issue.  Most people certainly think of cellphone usage when distracted driving is mentioned.  According to the CAA, deaths caused by distracted driving exceed the deaths caused by impaired driving in certain parts of Canada.  Potentially distracting artwork may not be the answer, but the concern for safer driving is real.

If you are a victim of an injury from a distracted driver, McLeish Orlando is here to help.  Please contact us for a free consultation, and one of our lawyers will evaluate your claim.

 

[1] Phillip H. Osbourne, The Law of Torts, 6th Ed. (Irwin Law 2020) at 364.

Photo by Fee Gunn

Uribe v Tsandelis, 2021 ONCA 277

Written By: Brandon Pedersen and Sonam Sapra, Summer Student

Uribe v Tsandelis, 2021 ONCA 277

Uribe v Tsandelis, 2021 ONCA 277 is an Ontario Court of Appeal decision that arose out of a motion brought by the Defendant under Rule 52.08(1) of the Rules of Civil Procedure. The Defendant moved under Rule 52.08(1) of the Rules of Civil Procedure requesting that the trial judge not enter the judgment and either dismiss the action or order a new trial.

ONTARIO SUPERIOR COURT OF JUSTICE

At trial, the jury considered the following facts: On April 28, 2010, after an uneventful pregnancy, the Plaintiff was admitted to the hospital and administered Cervidil to induce labour and oxytocin to assist with cervical dilation. Although the Plaintiff’s pregnancy had been considered low-risk, complications arose. At 9:57 a.m., the fetal heart rate decelerated. Consequently, the nurse increased the Plaintiff’s intravenous fluid and turned her on her side to stabilize the fetal heart rate. Once stabilized, the nurse telephoned the Defendant doctor, who was in his office located approximately 5 minutes away from the hospital to inform him of the situation. The Defendant doctor remained in his office but requested that the nurse call him back if the fetal heart rate decelerated again.

Between 10:17 a.m. and 10:18 a.m., the fetal heart rate decelerated again and at 10:25 a.m., there was a total occlusion of the umbilical cord, which cut off the blood and oxygen supply to the fetus. At 10:27, the nurse telephoned the Defendant doctor, who was driving to the hospital, to inform him of the situation. At 10:48, the Defendant’s doctor began the Plaintiff’s caesarian procedure. The Defendant doctor was unable to begin the procedure sooner because one operating room was already occupied and the other had not been cleaned in preparation for the Plaintiff’s caesarian section. The baby was delivered at 10:49 a.m., one minute after the operation began. However, the baby had gone too long without receiving oxygen and suffered severe brain damage.

The jury was tasked with determining whether the Defendant doctor breached the standard of care and to determine causation and the apportionment of damages. The jury found that the Defendant doctor was negligent because he breached the standard of care and the breach was a cause of the baby’s brain damage. The jury apportioned 32% of the liability to the Defendant doctor.

After the jury’s verdict, the Defendant doctor moved under Rule 52.08(1) of the Rules of Civil Procedure requesting that the trial judge not enter the judgment and either dismiss the action or order a new trial. The trial judge dismissed the motion and entered a judgment in accordance with the jury’s verdict.

ONTARIO COURT OF APPEAL

The Defendant doctor (hereinafter “the Appellant”) appealed the trial judge’s decision to dismiss the motion brought under Rule 52.08(1) of the Rules of Civil Procedure to the Ontario Court of Appeal (“the Court”).

The Court considered the two grounds for the Appellant’s motion as the two issues on appeal. More specifically, the Court considered whether the jury applied the “but for” test for causation, rather than the material contribution test and whether the jury’s verdict was unreasonable because there was no evidence that the baby would have been delivered earlier.

The “But For” Test

To demonstrate that the jury applied the material contribution test, as opposed to the correct “but for” test, the Appellant drew the Court’s attention to the jury’s language in their answer to question 2(b). In their answer, the jury stated:

[30] The fact that Dr. Tsandelis didn’t follow the SOCG Guideline, “prepare for delivery”, contributed to [the baby’s] eventual brain damage”

[Emphasis added]

The Appellant submitted that the use of the language “contributed to” by the jury meant that the jury applied the material contribution test, rather than the correct “but for” test. The Court disagreed and found that the use of such language did not mean that the material contribution test was applied. The Court reasoned that in a situation where there are multiple potential tortfeasors and where the jury must consider contributory negligence, the use of such language might naturally arise – but the use of such language does not mean that the “but for” test was not applied.

The Court explained that it is clear that the jury applied the “but for” test:

[34] …The jury’s response continued to state that, if Dr. Tsandelis had met his duty by preparing for delivery after the first deceleration, “the O.R. would have been ready for Maria & [the baby] would have been delivered sooner avoiding the asphyxia altogether.” This response indicates that the jury concluded that, but for the appellant’s failure to meet the standard of care, the brain damage would not have happened.

The Court found that the jury’s verdict was not unreasonable. The Court reasoned that there was direct evidence from which the jury could conclude that had the Appellant not breached the standard of care, the caesarian section would have taken place prior to the baby’s brain damage occurring.

The evidence included testimony by two medical experts. The experts testified that had the Appellant returned to the hospital immediately after the first telephone call from the nurse, the delivery would have occurred much faster. In addition, the experts testified that the Appellant should have arrived at the hospital immediately after placing the Plaintiff on oxytocin and that if he had taken action earlier, he would have been able to access an operating room or, at the very least, could have instructed other obstetricians on call to conduct the procedure. Ultimately, both experts concluded that the procedure could have been done within 8-15 minutes of the total occlusion, which would have avoided the brain damage.

The Appellant submitted that the trial judge’s questions to the medical experts were improper because they introduced a new theory of liability. The alleged new theory of liability was that the Appellant failed to prepare for the baby’s delivery after the initial telephone call from the nurse informing him that the heart rate decelerated.

The Court found that the trial judge did not introduce a new theory of liability and that the Appellant’s failure to respond immediately after the initial phone call was in fact an issue at trial. Therefore, the Court found that the trial judge’s questions to the medical experts were not improper.

Conclusion

Ultimately, after finding that the jury applied the “but for” test and that their verdict was not unreasonable, the Court dismissed the appeal.

Cambridge Today – Brain injury association’s program delivers 416 free bike helmets to Cambridge kids

“Brain injury association’s program delivers 416 free bike helmets to Cambridge kids”, published by Doug Coxson for Cambridge Today, discusses the Cambridge Lidz on Kidz event held on June 19, 2021. Volunteers from the Brain Injury Association of Waterloo Wellington and McLeish Orlando handed out bike helmets to Cambridge families who registered for the free Lidz on Kidz program.

The pandemic has brought on a renewed interest in cycling – more kids on more bikes requires more advocacy, education, and awareness around bike helmet safety.

Read the full article here.

Armstrong v Ward, 2021 SCC 1

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

Armstrong v Ward, 2021 SCC 1

Is the plaintiff in a medical malpractice case required to disprove every possible theory or potential non-negligent cause of injury?

The Supreme Court of Canada (“SCC”) considered this issue when it heard Armstrong v Ward, 2021 SCC 1 on January 18, 2021.

In February 2010, the plaintiff underwent a colectomy (colon removal procedure). The surgery was conducted by the defendant, a general surgeon. The surgery was conducted laparoscopically, meaning it was performed in the abdomen by making small incisions and inserting a laparoscope which lets the surgical team view the affected area from a distance using cameras and screens in the operating room. The surgery appeared to go smoothly – there were no signs that the plaintiff had been injured during or immediately following the procedure. However, the plaintiff began experiencing continual pain after the surgery. Weeks later, it was discovered that her left ureter was blocked, which caused damage to her left kidney, requiring kidney removal in a subsequent operation. The plaintiff alleged that the defendant had caused the scarring of the left ureter by improperly using a cauterizing device known as a LigaSure during the colectomy.

The trial judge was faced with two issues:

  1. Did Dr. Ward breach the standard of care expected of a general surgeon in conducting Ms. Armstrong’s colectomy?
  2. If the standard of care was breached, did it cause damage to Ms. Armstrong’s left ureter, leading to her left kidney’s subsequent removal?

The parties called two medical experts each, all agreeing that the LigaSure could cause damage through heat transfer. Further, the experts agreed that colectomies are a common procedure and ureteral injuries during such procedures are extremely rare. In the decision, Justice Mulligan concluded:

[113] In a colectomy procedure, identification and protection of the ureter is paramount. Using a LigaSure can cause damage by heat transmission if it touches the ureter or comes within one to two millimetres. I am satisfied that on the facts of this case, the plaintiff has established that Dr. Ward breached the standard of care.  Further, the breach caused damage to the ureter leading to a stricture of the ureter. This damage required the removal of Armstrong’s left kidney.

Ontario Court of Appeal

The defendant appealed the trial judge’s decision. A majority of the Ontario Court of Appeal set aside the trial judge’s finding of negligence, stating that the trial judge had erred in imposing a standard of perfection on the defendant, rather than one of reasonable care. The majority held that a trial judge cannot conclude that only negligence could have caused an injury without first ruling out potential non-negligent causes. The majority at the Court of Appeal effectively held that a plaintiff must prove that non-negligent causes did not cause or contribute to the damage sustained.

Supreme Court of Canada

The Court ruled on this case from the bench, allowing the appeal for the reasons of Justice van Rensburg – the dissent – at the Court of the Appeal. In giving weight to the expert evidence proffered at trial and the reasons of Justice Mulligan, Justice van Rensburg stated during a colectomy, it is important to identify and protect the ureter. If a surgeon took these steps to identify and protect the ureter during a laparoscopic colectomy, an injury to the ureter would simply not occur. With respect to the standard of care, Justice van Rensburg stated:

[164] … The trial judge’s conclusion that a reasonably competent surgeon would have stayed two millimetres away from the ureter is fully supported by the evidence. It is not a statement of result or a “goal”, but an essential step that was not taken in this case. ON the evidence, this was a breach of the standard of care.

Justice van Rensburg also commented on the burden of proof of a plaintiff in medical malpractice cases:

[134] The burden of proof was on Ms. Armstrong to establish that Dr. Ward failed to meet the standard of care of a reasonably competent surgeon when her ureter was injured in the course of the laparoscopic removal of her colon. A trial judge is not obliged to consider potential non-negligent causes when there is no evidentiary foundation to do so: see, for example, Hassen v. Anvari, 2003 CarswellOnt 3436 (C.A.), at para. 9, leave to appeal refused: 2004 CarswellOnt 1768 (S.C.C.).

[135] In this case, the trial judge considered and explicitly rejected the nonnegligent causes put forward by the appellant’s expert witnesses. As I have explained, there was no evidence in this trial to suggest that a reasonably competent surgeon, “trying” to stay at least two millimetres away, might accidentally have injured the ureter during this particular operation. The expert evidence detailed earlier was to the contrary. The trier of fact is required to determine the standard of care and its breach based on the evidence and not on speculation. The onus on a plaintiff in a medical malpractice case is not to disprove every possible theory that might be put forward by a defendant, let alone theories that are not raised at trial, but only on appeal.

This decision reinforces previous jurisprudence that the plaintiff in a medical negligence case is not required to disprove every possible theory that might be advanced by the defendant. While the plaintiff in a medical negligence case has the burden to prove all elements on a balance of probabilities, expecting a patient to specify how a doctor was negligent may create an imbalance since the patient usually cannot know exactly what happened during surgery.

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 Dangers of Wildlife on Our Roads – How to Avoid a Collision This Spring and What to do if a Collision is Inevitable

Written By: Salvatore Shaw and Ryan Marinacci, Student-at-Law

As spring approaches, drivers must be especially vigilant for increased wildlife, like moose and deer, on rural roads.

While humans know that the road can be a dangerous place, wildlife may actually be attracted to the wide-open spaces roads provide. Roadside plants and road salt attract wildlife. In the winter, plowed roads offer easier movement. In the summer, increased wind provides relief from biting insects.

There are two peak times during the year when the risk of a collision with wildlife is highest: May and June and from October to January.[1]

According to the Ontario Road Safety Annual Report and Government of Canada Statistics, the number of animals struck on Ontario roads has increased by 47% from 1999 to 2014.[2]  There are approximately 14,000 wildlife-vehicle collisions happening every year in Ontario.[3]

When driving, always be on the lookout for any wildlife attempting to cross the road, especially around sunset or nighttime. The peak time of day for wild animal-vehicle collisions is between 7 p.m. and midnight.

The vast majority (89%) of wildlife-vehicle collisions occur on rural, two-lane roads and 86% occur in good weather.[4] Dry road conditions and clear nights also increase risk.

The majority of wild animal-motor vehicle collisions occur on stretches of road where:

  • There is an abundance of good habitat and forage near the roadside.
  • There is a nearby water source.
  • There is an intersection of drainages and creeks with roads.
  • There are straight, long, and wide stretches of road.

Expect the unexpected.

There is a certain amount of space in which an animal feels safe, but once that boundary is violated, the animal’s reaction is unpredictable. Even if an animal sees you, it may still jump in front of your vehicle. Some animals travel together, for example, deer, bears, and mother-offspring pairs. If one animal crosses the road, others may follow. If an animal has crossed the road, it may turn and cross again. Animals standing calmly at the side of the road may bolt unexpectedly.

Here are five tips to avoid moose and deer collisions and what to do if a collision is unavoidable.

  1. Slow down

Animal collisions often occur at night when visibility is reduced and animals are more active due to lower traffic volume.  Driving slower at night is important because drivers have a reduced ability to see animals already on the road beyond the headlights and to scan the sides of the road for animals about to jump across the road.  Driving slower also reduces the distance required to come to a full stop and makes it safer to take evasive action if an animal unexpectedly darts across the road.

  1. Pay attention

As always, pay attention to the road signs around you. In particular, watch for Wildlife Warning Signs, which are yellow diamond-shaped signs which, in Ontario, typically have an image of a deer on them. These signs are a reminder to remain alert and cautious and to keep an eye out for wandering wildlife.  The signs are located in high wildlife use areas.  Keeping an eye out for glowing or shining animal eyes ahead and on the side of the road at night can also help to avoid collisions.  Drivers and passengers should actively watch for wildlife – on the road, in the ditch, on the shoulder, and in the right of way; watch for any movement along the sides of the road. Shining eyes mean your headlights are reflecting off the animal’s eyes. If you notice flickering in the headlights of oncoming cars or in the tail lights of the vehicles in front of you, it could be an animal crossing the road. Roadside reflectors that suddenly disappear or reappear may indicate an animal crossing in front of them. Don’t forget to pay equal attention to both the right and left-hand sides of the road, animals may cross from either side. Lastly, think about the landscape that you are driving through, is it a good habitat for wildlife?

  1. Use high beams, wash windshields frequently and consider lane choice

Safe use of high beams and frequent windshield washing also helps to increase visibility at night.  Using high beams allows drivers to see further and wider than when using regular beams.  It can also help to spot animals that would otherwise be beyond what is illuminated by the regular beams.  Having a clean and clear windshield free of any obstructions or debris further increases visibility.  This is important because the dark outline of an animal can blend into the backdrop when driving at night and be difficult to notice.  Ensuring the windshield is clean and clear is a simple way to make it easier to pick out animals at night.  Also, consider driving in the lane farthest away from the ditch if available.

  1. Do not slam the brakes

If an animal unexpectedly comes across the roadway, it is important not to slam on the brakes or to quickly swerve.  Slamming on the brakes can cause a vehicle to lose control and leave the roadway, and can pose a danger to other vehicles on the road.  Consider honking your horn or flashing your lights to scare animals off the road – however it does not usually work for moose. If necessary, firmly but safely apply the brakes and come to a gradual stop.  This will help avoid putting other vehicles at risk and reduce the chances of losing control and leaving the roadway.

  1. If hitting the animal is unavoidable, consider your options

If smaller animals are in your way – think carefully – is it safe to swerve? Do not take unsafe evasive actions. Serious incidents can occur when drivers lose control of their vehicles trying to avoid an animal. Particularly in the case of larger animals, the biggest threat to drivers is the body coming through the windshield after impact. As such, if a collision with a large animal is completely unavoidable, aim for the spot where the animal is coming from rather than where it is going. Keep your eyes on where you want your vehicle to go, not on the animal. You tend to drive where you look – if you are looking at the animal, that is where the vehicle tends to go.  Break quickly and firmly.  If you have to choose between swerving or striking a moose, consider swerving. A collision with a moose, which can weigh up to 1200 lbs, carries significant risk. If a crash with a moose is inevitable, try for a glancing blow rather than a head-on hit. Crouch as low as possible in your seat, or under the dash.

The first thing you should do after a collision with wildlife is pull off the road and turn on your hazard lights. If you feel comfortable, you can carefully approach the animal – if it is injured, stay away, as an injured animal can be very dangerous. If the animal has been fatally hit, you may remove it from the road if you feel comfortable doing so and are able to.

Before getting back behind the wheel, inspect your vehicle to make sure it is safe to drive. If there has been an injury to you or a passenger or vehicle damage over $1,000, call the police. It’s a good idea to report the location of your collision even if your car hasn’t been damaged, as this helps officials monitor any injured animals or recover animals that have been fatally hit, as well as alerting them to areas of concern for road safety.

While we can’t predict when a wild animal may unexpectedly run out onto the road, by following the safety tips above, we can work together to help keep our roads safer.

If you or someone you know has been in a motor vehicle accident, contact the experienced lawyers at McLeish Orlando LLP to assist with your claim.

 

[1] https://www.wildlifecollisions.ca/when.htm

[2] https://www.wildlifecollisions.ca/when.htm; http://www.mto.gov.on.ca/english/publications/pdfs/ontario-road-safety-annual-report-2014.pdf#page=49

[3] https://news.ontario.ca/en/release/1467/watch-for-wildlife-when-youre-behind-the-wheel

[4] https://www.workplacesafetynorth.ca/news/news-post/oh-deer-avoiding-wildlife-highway

10 Common Mistakes to Avoid After a Car Accident | McLeish Orlando

10 Common Mistakes to Avoid After a Car Accident

Written By: William Harding and Ryan Marinacci, Student-at-Law

10 Common Mistakes to Avoid After a Car Accident | McLeish Orlando

Car accidents regularly have devastating consequences on the lives of those involved.  Significant injuries coupled with navigating the complexities of the legal system in order to seek redress can be stressful and onerous.  Here are 10 common mistakes to avoid after a car accident.

  1. Do not leave the scene of the collision. Failing to stop at the scene of a collision is an offence under s. 320.16 of the Criminal Code punishable by a term of imprisonment.  In addition to attracting criminal sanction, fleeing the scene can also have legal consequences in the civil context by hampering the investigation into the circumstances of the collision.
  2. Do not forget to call 9-11. Recordings of 9-11 phone calls often provide important details regarding the immediate reactions and impressions of individuals involved in a collision.  Those early reactions and impressions can be lost without the contemporaneous recordings offered by calling 9-11 from the scene.
  3. Do not move your vehicle unless doing so is necessary for safety reasons. The post-collision resting positions of vehicles can be key to determining the mechanics of a collision and how fault might be apportioned between the drivers, especially in the event of a serious collision.  Moving the vehicles can prevent investigating officers from making these important determinations.
  4. Do not leave the scene without the other driver’s information. Do not negotiate.  Demand the insurance slip and driver’s licence of the other driver and note their licence plate number.  Information easily gets lost and slips through the cracks in the mayhem after a crash.  Having your own easy access to the information of other parties involved will avoid having to rely on the police or the insurance company to pursue legal action.  This saves time and legal resources.
  5. Do not withhold details from the police. Describe in as much detail as you can the collision and everything leading up to it.  Describe everything you saw, felt and heard.  This will help ensure that these details make it into the police records, which is often one of the first places legal counsel will look in order to determine liability for a collision.
  6. Similarly, do not withhold details about any of your injuries to paramedics attending the scene. Report every ache and pain that you have and use descriptive words.  Is it sharp, is it dull, does it burn or does it tingle?  What body parts?  Use rating scales too, and say whether the pain is at 1, 5 or 10 out of 10.  Creating a paper trail of your injuries and impairments is important in personal injury lawsuits, and that paper trail often starts with the ambulance call records where the first responders will note your initial symptoms.
  7. Do not speak to insurance companies before talking to a lawyer. Do not give a recorded statement.  Do not sign anything.  What seems like a harmless detail could seriously hurt a claim down the line.
  8. Do not hire the first lawyer that comes knocking. Research potential lawyers to make sure you hire a lawyer from a firm with a proven track record of obtaining outstanding results for clients.  Here are things you should do before calling a personal injury lawyer, five questions to ask a personal injury lawyer and how to choose a personal injury lawyer.
  9. Do not miss a limitation. For most actions, the Limitations Act, 2002, SO 2002, c 24, Sch B, imposes a two-year limitation to start a lawsuit from the date of loss.  In the case of car accidents, the date of loss is the date of the accident so the limitation usually starts to run on that day.  That means you will have two years to take legal action and seek compensation for your injuries from the date of the car accident.  A claim started after the two-year mark is susceptible to being struck for missing the limitation so it is best to avoid that altogether by issuing the statement of claim and starting the lawsuit within two years of the accident.
  10. Do not give up. Legal proceedings can wear a person down by taking years to resolve.  Do not become defeated by this process and settle for a result that is less than what you deserve.
Another Jury Conditionally Struck – MacKenzie v. Pallister, 2021 ONSC 1840 | McLeish Orlando Personal Injury Lawyers Toronto

The Jury’s Out: Another Jury Conditionally Struck – MacKenzie v Pallister, 2021 ONSC 1840

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

Another Jury Conditionally Struck – MacKenzie v. Pallister, 2021 ONSC 1840 | McLeish Orlando Personal Injury Lawyers Toronto

The Superior Court of Justice released another decision earlier this month where the jury notice was conditionally struck.

Background

This motion was first heard in October 2020 by Boswell J. At that time, Boswell J. dismissed the motion but left it open to the plaintiff to re-initiate the motion in the event that the court suspended in-person hearings in the Simcoe-Muskoka courthouses or if the action had not been scheduled for trial prior to April 1, 2021.

In January 2021, the Superior Court suspended jury selection until at least May 2021. More recently, the Regional Senior Justice for the Central East region noted that in all likelihood, there will be no civil jury trials in the Central East region for the rest of 2021.

The plaintiff, therefore, renewed her motion to have the jury notice struck.

Legal Principles

McCarthy J. reviewed the legal principles underpinning jury strike motions in the age of the COVID-19 pandemic.

[6] Although the right to trial by jury is an important one, it is far from absolute. It is not a constitutional or quasi-constitutional right.  It must yield to practicality.  The overriding test is whether it has been demonstrated that justice to the parties will be better served by the discharge of the jury.  When applying that test, context is important: see Girao v. Cunningham2020 ONCA 260, at para. 171.

McCarthy J. emphasized the importance of hearing these motions in the context of local conditions in referencing the Court of Appeal decision in Louis v Poitras, 2021 ONCA 49, in which Hourigan J.A. stated as follows:

[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case.  Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt2020 ONSC 6384, at para. 49.  That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances:  Belton v. Spencer2020 ONCA 623, at para. 75.

Position of the Parties

The plaintiff submitted that having the case tried by a jury is such that her justice would be denied or significantly delayed. Further, the plaintiff was concerned about her declining health, which would make her attendance at a jury trial uncertain, and that there was a high level of uncertainty regarding when civil jury trials would resume in the Central East Region.

McCarthy J. noted that the vast majority of jury notices in motor vehicle accident litigation are filed by defendants who are automobile insurers who argue that any notion of “justice” in these claims necessarily includes the right to trial by jury.

Disposition

In reaching his decision, McCarthy J. noted that the circumstances were prejudicial to the plaintiff whose case was ready to proceed to trial. With respect to motor vehicle accident litigation, McCarthy J. stated at para. 12 that, “as with many motor vehicle accident cases, the passage of time serves to irredeemably prejudice the Plaintiff’s position and compromise her chances for a successful outcome.”

Given this, McCarthy J. took judicial notice of the annually-increasing statutory deductible, the plaintiff’s eroding loss of income claim, the necessity of having to update expert reports, and the parties’ availability and readiness for trial during the spring of 2021 sittings in conditionally striking the jury notice.

Similar to recent decisions where jury notices were conditionally struck [link to Barikara v Kyei, 2021 ONSC 1636 blog post], McCarthy J. stated:

[16] I am persuaded that I must strike the jury notice, but only provisionally.  If the matter can be reached, tried, and completed during the spring 2021 sittings then justice will have been done to the parties in a fair, proportionate, and timely fashion.  To expect Plaintiff to wait a year or more for a jury trial is not reasonable or just if alternative access to justice is available. The matter has been set down for trial; it has been pre-tried and deemed procedurally ready for trial; the RSJ for the Central East region has notified the profession that spring 2021 civil sittings will be held for non-jury cases only; the parties have assured me that the matter is ready to proceed when called; even though there is a priority scheme in place for civil matters to be heard,  the court has knowledge that the trial list is currently manageable and that there is an excellent chance for this matter to be reached this spring.

[17] On balance I find this to be the just and fair result.

Two Recent Medical Malpractice Decisions From the Court of Appeal | McLeish Orlando Personal Injury Lawyers

Two Recent Medical Malpractice Decisions From the Court of Appeal

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

Two Recent Medical Malpractice Decisions From the Court of Appeal | McLeish Orlando Personal Injury Lawyers

The Court of Appeal for Ontario recently released two medical malpractice decisions favourable to Plaintiffs.

The Court in Beaudoin Estate v Campbellford Memorial Hospital,[1] allowed the Plaintiffs’ appeal from an R21 motion dismissing their claims as statute-barred under s. 38(3) of the Trustee Act.  The motion judge concluded that the plea of fraudulent concealment even if accepted as true did not suspend the limitation under s. 38(3) because the concealment of a CT scan was not causally connected to the failure to sue within the limitation.  The motion judge had also struck the claim of fraudulent concealment because it was “patently ridiculous or manifestly incapable of proof.”

The Court of Appeal disagreed on both issues.  First, the Court found that the trial judge had erred in deciding the question of fraudulent concealment as a question of law on the motion.  The Court found that R21 motions were not the appropriate forum for making determinations of fact based on weighing evidence.

Indeed, the Court drew on the recent authority from Kaynes v. BP p.l.c.,[2] and confirmed that R21 motions were not to be used to determine limitations issues unless very narrow circumstances arose where the pleadings were closed and the relevant facts were not in issue.

Accordingly, a factual dispute as to the date of discoverability made impossible an R21 motion which was limited to determining questions of law raised in the pleading.  The Court noted that this same rationale applied to fraudulent concealment.  Where the pleadings raised a factual dispute as to fraudulent concealment, an R21 motion could not succeed.

Here, at issue was whether the fraudulent concealment bore a causal connection to the failure to sue within the limitation period.  The Plaintiffs argued there was, whereas the Defendants argued there was not.  The motion judge ruled in favour of the Defendants even though causation was a question of fact on the authority of Clements v Clements.[3]  The Court wrote, “Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a).”

Second, the Court concluded that the plea of fraudulent concealment was not patently ridiculous or manifestly incapable of proof on the facts taken as true in the pleading.  At its core, the Plaintiffs’ submission was that they would have sued within the two years had they received when they requested it the CT scan that was ultimately withheld.

The Court found that this factual dispute was of the type regularly decided by the courts.  Accordingly, the Court found that the Plaintiffs should have the chance to support that allegation with evidence and reversed the motion judge’s decision.

The Court in Champoux v Jefremova,[4] likewise allowed the Plaintiff’s appeal and reversed based on two issues the trial judge’s decision that the Defendant had met the standard of care.  On appeal, the Plaintiff argued that the trial judge had erred in issuing insufficient reasons incapable of appellate review and in relation to a Response to Request to Admit delivered by the Defendant.

On the first ground, the Court found that the trial judge’s reasons were such that “the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues.”  Yet the Court also noted that insufficiency of reasons was raised so often as to become a “boilerplate ground of appeal.”  The Court found that the decision at the bar was no such case, and instead concluded that that the trial judge did not sufficiently explain his preference for the Defendant’s expert over the Plaintiff’s.

The Court also found that the trial judge also had not addressed several points of contention regarding the standard of care as between the opinions of both experts which the Plaintiff argued was “the crux of the case before him.”  The Court agreed and concluded that it was “also left in the dark about how the trial judge dealt with these critical issues” by the trial judge’s reasons.

On the second ground, the Court concluded that the trial judge’s analysis of a Response to Request to Admit “resulted in an unfair trial” for the Plaintiff.  Before trial, the Plaintiff had delivered a request to admit that the Plaintiff had presented at the emergency room with a perianal abscess.  The Defendant refused to make that admission and stated as its reason for the refusal that the Plaintiff presented with an absence/swollen nodule in the general perianal area.

The Defendant brought a motion to withdraw the Response to Request to Admit after the Plaintiff refused to consent to the withdrawal.  The Defendant argued that the Response had left its office by inadvertence.  The trial judge dismissed the motion because the admission was tendered as proof of a fact (the location of the abscess) and hence imposed a more stringent standard for withdrawal than an admission of pure law or mixed fact and law.  The trial judge further held that the interpretation of the admission was better left for the close of final submissions.

However, in the written decision the trial judge concluded that the Defendant’s admission could not be accepted as proof of anything more than an abscess on the buttocks.  The trial judge did not address in his reasons the specific Response whereby the Defendant admitted the abscess was in the general perianal area.

The Court found that the ruling on the motion to withdraw and the final judgment were contradictory: on the motion, there was no triable issues regarding the truth of the admission while the judgment contained an analysis of whether the admission was true and a conclusion that is was not.  Such contradictory rulings were not permitted in the context of formal admissions, which the Court distinguished from other forms of evidence:

A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission…

The trial judge had in effect treated the Response to Request to Admit as withdrawn in his written reasons despite dismissing the Defendant’s earlier motion for withdrawal.  As such, the Court found that the trial judge’s reasons “effectively bypassed the rigorous test for the withdrawal of an admission and resulted in an unfair trial for Ms. Champoux.”

Whether on a motion to strike or a full trial on the merits, the decisions in Beaudoin Estate and Champoux are a reminder that medical malpractice cases raise difficult legal issues in addition to complex evidentiary and factual issues.

[1] 2021 ONCA 57.

[2] 2021 ONCA 36.

[3] 2012 SCC 32.

[4] 2021 ONCA 92.

Cargo e-Bikes Pilot Program | McLeish Orlando Personal Injury Lawyers

Ontario Cargo e-Bike Pilot Program

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

Ontario Cargo e-Bikes Pilot Program | McLeish Orlando Injury Lawyers

Ontario has implemented a five-year pilot framework for permitting the use of larger cargo power-assisted bicycles (“cargo e-bikes”) on Ontario roads, should municipalities choose to allow their use within their boundaries.

What are cargo e-bikes?

Cargo e-bikes are a type of electric-powered bike with a platform or box to carry larger items like packages and boxes for deliveries. These bikes are used for a number of purposes, namely, as an alternative or in addition to larger delivery trucks.

Cargo e-bikes can help reduce the carbon footprint that is currently left by the use of large delivery trucks. It may also help reduce delivery times for companies as it affords another method of ensuring a product is delivered to a consumer.

Cargo e-Bikes Pilot Program in Ontario | McLeish Orlando Injury Lawyers

The Pilot Program

The pilot program will run from March 2021 to March 2026 and sets out requirements for helmets, age minimums for operators, and size and speed restrictions.

Municipalities that want to allow cargo e-bikes to operate on their roads must pass by-laws to permit their use and may set out specific requirements based on what is best for their communities. This includes determining:

  • Where cargo e-bikes can be used (on roads and bike paths, in parks and on trails);
  • Where they can park;
  • Whether insurance is required;
  • Any other consideration relevant to the municipality.

It is the responsibility of the municipalities that choose to allow cargo e-bikes to manage their use within their communities.

Under the pilot program, cargo e-bikes must meet a number of requirements. The bike must, among other things:

  • Have a traditional bicycle design;
  • Be electric-powered with a maximum power output of 1000 watts;
  • Have a maximum power-assisted speed of 32 km/h;
  • Have pedals to propel the bicycle at all times.

In order to operate a cargo e-bike, the rider must be at least 16 years of age and must wear a helmet. Similar to bicycles, Highway Traffic Act rules of the road apply to the operation of cargo e-bikes in Ontario. Penalties under section 228(8) of the Act – which contains fines ranging from $250 to $2,500 – also apply to violations of the pilot regulation (O. Reg. 141/21: Pilot Project – Cargo Power-Assisted Bicycles).

Following the five-year pilot, the Ministry of Transportation will consider whether cargo e-bikes will be allowed permanently in Ontario and what the rules will be.

Please consult the Ministry of Transportation pamphlet and the MTO website for more information.