Tag Archives: Patrick Brown

New Watermark for Loss of Care, Guidance, and Companionship Damages: Moore vs 7595611

Written By: Patrick Brown and Daniel Garas, Summer Student

In the recent decision of Moore v 7595611[1], the Ontario Court of Appeal upheld an award of $250,000 for loss of care, guidance, and companionship – a new watermark for damages of this kind.

PREVIOUS WATERMARK

The previous high-end for this head of damages was $100,000, established in To v. Toronto (City) Board of Education.[2] This 2001 decision involved a student that was killed during his physical education class when the handball net, on which he was doing pull-ups, fell on his head.[3] Under loss of care, guidance, and companionship, the parents were each awarded $100,000 – an award that would not be interfered with by the Ontario Court of Appeal.[4]

NEW WATERMARK

In the decision released on June 25, 2021, a unanimous Court dismissed the appeal by the numbered company. The Appellant, among other issues raised, challenged the jury award for loss of care, guidance, and companionship ($250,000 to each Plaintiff).

This case arose when the Plaintiffs’ daughter, as tenant, suffered serious injuries which she sustained during a house fire.[5] She was trapped, with no way of escape, and later died at Sunnybrook Hospital. [6] The Plaintiffs decided to commence an action against the Defendants for their negligent conduct.

The numbered company cited To v. Toronto (City) Board of Education, for the proposition that the award of $250,000 was too high.[7] The Appellants specifically quote paragraph 37 of the To decision, where the Court held that the $100,000 award represented the “high end of an accepted range of guidance, care, and companionship damages.”[8]

Despite this, the Court held that the threshold for interfering with a jury award is “extremely high”[9] and in the present case, agreed with the Plaintiffs’ that it should not interfere because the high standard had not been met.[10] The Court further noted that the decision in To stated that “each case must be given separate consideration.”[11]

The Court of Appeal states that ultimately “there is no neat mathematical formula that can be applied to determine the correct amount” when calculating this type of damages.[12]

In summary, Justice Fairburn writes that “while there is no question that the jury award for loss of care, guidance, and companionship, in this case, is high, in light of the factual backdrop of this case, it does not constitute an amount that ‘shocks the conscience of the court’…Nor does it represent an amount that is ‘so inordinately high’ that it is ‘wholly erroneous’ in nature.”[13] (Emphasis is my own)

WHAT THIS ALSO MEANS

Even though this case deals with the loss of a daughter, the amount and decision by the court of appeal should impact all awards relating to loss of care, guidance, and companionship (including loss of spouse, parent, grandparent) as well as adjusting the ranges given by judges at trial.

INJURED?

If you or a loved one has been injured, please contact the lawyers at McLeish Orlando LLP for a free consultation.

 

[1] Moore v. 7595611 Canada Corp., 2021 ONCA 459 [Moore].

[2] To v. Toronto (City) Board of Education, 150 O.A.C. 54, 204 D.L.R. (4th) 704 [Toronto Board].

[3] Ibid at para 3.

[4] Ibid at para 31.

[5] Moore, supra note 1 at para 1.

[6] Ibid at paras 2 and 3.

[7] Ibid at para 22.

[8] Ibid; Toronto Board, supra note 2 at para 37.

[9] Moore, supra note 1 at para 24.

[10] Ibid at para 26.

[11] Ibid at para 27; Toronto Board, supra note 2 at para 29.

[12] Moore, supra note 1 at para 27.

[13] Ibid at para 30.

10 Common Summer Time Accidents for Kids and How to Avoid Them

Written By: Patrick Brown and Cody Malloy, Summer Student

10 Common Summer Time Accidents for Kids and How to Avoid Them

Summer is officially here, and no one is more excited about the hot weather than our energetic children.  After months of being constantly stuck at home due to schools being closed due to COVID-19, children are finally ready to get outside and have some fun.

The number one thing we can all do to ensure our children are safe is to ensure we drive slowly and cautiously in our communities.  As well, we should also consider avoiding the use of the car for short distances in areas where children play.

Children are unpredictable at times and heightened awareness by adults is key to their safety.  As well, we should also consider some other tips that may help.

1) Biking

Although kids will be quick to whip out their bicycles, it’s important to first take the proper safety measures.  Under the law, children must wear a properly fitted and approved bicycle helmet.

Most local bylaws permit younger children to ride on the sidewalk. Again, the number one preventative measure to protect our children on bikes is to drive slowly and safely.

When driving in areas where children are, ensure that you will be able to stop your vehicle quickly.  Always be watching for children playing to ensure that if they make an unexpected move, you are ready to react.

All drivers must give at least one meter when passing cyclists.  Where young people are riding, slow down and proceed around the cyclist when you can ensure you can do it safely.  Otherwise, be patient and wait.

One of the greatest dangers to children is drivers who are distracted and look at their phones.  This is leading to drivers leaving the roadway and potentially striking children as they play.  Using your phone and other forms of distraction inside a car puts children at high risk.

Contact between a car and a child even at slow speeds has tragic consequences.  Always make sure before you reverse in your neighborhood to be hyper-vigilant for children on sidewalks, behind the car, or on the road.

By putting safety first, kids can enjoy their summer ride in the sun.

2) Playing on the street

Whether it’s hide and seek, road hockey, skateboarding, or any other fun activity, kids love to play on the street with their neighbourhood friends.  Unfortunately, an inattentive motorist can come by at any time and put your kids at risk.  Pedestrian accidents involving children playing outside are a very real danger.

It is important that all communities monitor the road activity in their neighbourhoods and educate small children about the risks associated with drivers.  If drivers are driving at high rates of speed in your neighbourhood, contact your local councillors and road authorities to try to have measures implemented to reduce speed.  These can include speed reduction, bulb-outs, speed bumps, road diets, signage, etc.  A comprehensive list of recommendations local authorities can employ are listed in the Office of the Chief Coroner for Ontario Pedestrian Death Review.

3) Swimming

Whether it’s at a pool or a beach, children love swimming and all of the fun games that go along with it.  However, fun in the water comes with a very serious safety hazard.  The danger of children drowning is very real.

Swimming children should be supervised by an adult at all times.  If your child is swimming at a municipal pool or local beach, see if there’s a lifeguard on duty.

As swimmers ourselves, we can do our part to look out for the well-being of all children.  If you are swimming in a pool or local lake, take notice of children playing in the water nearby.  Be on the lookout for any child that may appear to be struggling to keep themselves afloat.

On average, about 400 people die from drowning every year in Canada.  By taking swimming safety seriously, we can lower this heartbreaking statistic.  If you see a child in distress in the water, immediately call 911.

4) Boating

On a nice cottage weekend, sometimes there’s nothing more fun than taking the family out on the boat to check out the local lake.  Unfortunately, boating accidents involving children are quite common during Ontario summer months.

Like driving, drinking and boating do not mix and can have deadly consequences to children and others on the lake.  If you and your family believe that this is an issue in the areas where you boat or swim, you can notify the local authorities of your concern.

If you want to tow the kids on a tube, ensure you have a spotter on the lookout for other watercraft and any fallen tubers.  Properly fitted lifejackets for children are a must to ensure the kids have a fun and safe cottage weekend on the water.

Always be on the lookout for children playing in the water.  If you’re driving your boat near a designated swimming area, be sure to slow down and watch out for any children.  Children may be too busy playing to notice nearby boats, so we must all do our part to put the safety of children first when driving close to shore.

See: boating safety tips from the Canadian Red Cross

5) Sports

Although the road to organized sports, such as baseball and soccer, still remains unclear as Ontario continues to reopen from social distancing restrictions, kids are sure to play unorganized sports for fun with their friends at local parks.

Always make sure that your kids are wearing the proper footwear and have the proper safety equipment for the sport.  Playing soccer in flip flops is most certainly going to result in a rolled ankle, or worse.

If your child is playing baseball, ensure they wear a properly fitted batting helmet to avoid serious brain injuries.  Concussions are a major risk in children’s sports.  If your child is injured and reports any concussion-related symptoms, take your child to a doctor.

If you’re throwing a ball around amongst your friends with children playing nearby, be sure to be vigilant in looking out for unsuspecting children that may wander close to you.  Whether it’s an errant throw or chasing down a ball in the air, the last thing anyone wants is a collision with a child.  By being aware of our surroundings, we can ensure fun at the park for all ages.

6) Left alone in a car

Leaving young children alone in a hot car is a very serious risk to your child’s health.  Despite the obvious risk, on average, one child in Canada dies from heatstroke in a hot car every year.

Never leave your children in a car alone.  If you can’t bring your child with you, arrange for daycare for your child.  A child’s life can be in danger even only after a few minutes inside a hot car.  No, cracking the window isn’t a good alternative either.

Surprisingly, most incidents related to children left unattended in hot cars are accidental.  As crazy as this may sound, always check the backseat when getting out of your car.  If you see a child in distress alone in a car during the summer months, call 911.

7) Playground climbing

Although playgrounds were previously closed by the provincial government, the summer is the perfect time for kids to utilize municipal playgrounds.  However, children should avoid climbing on areas that aren’t meant to be reached.  A supervising adult should ensure children aren’t trying to climb on anything that’s unsafe.  Games such as “Grounders”, which is an alternate game of “tag” where one person has their eyes closed, are extremely dangerous and should be avoided.

If you’re supervising your child at a playground, ensure they’re using the equipment in the way it’s designed to be used.  No one wants to take their child to the hospital for a broken arm after an unnecessary fall.

If you notice faulty or damaged playground equipment, be sure to contact your local municipality to get it repaired.  Whether it’s a broken chain on a swing or a sharp edge on a ladder, these issues should be brought to your municipality’s attention as soon as possible to avoid children getting injured.

8) Trampoline

Backyard trampolines are certainly a popular activity for children in the summer.  However, if used improperly, they are extremely dangerous for children.  Improper use of a trampoline can result in serious brain or spinal cord injuries, resulting in permanent disfigurement of the child.  Trampolines should be used under adult supervision, and stunts such as flips should not be attempted by children that have not had proper training.

9) Hiking

Ontario thankfully has a vast array of hiking trails for families to explore this summer.  Hiking is a great way to see the beautiful landscape of Ontario while getting physical exercise.

However, children are at risk of many hiking injuries and exercising safety while hiking is very important.  If you’re on a trail near a family, be sure to give children extra space.  Children may unexpectedly stop on a trail, resulting in a collision with another hiker.

If you’re taking your child out on a hike, make sure they’re wearing the proper footwear.  If any cliffs are nearby, ensure your child doesn’t wander too far from the edge.

Also ensure children take the proper measures to prevent against bug bites, such as wearing long clothing and using bug spray, if you’re hiking in an area with ticks.  Lyme disease has recently become a growing concern in Ontario.  When you get back from a hike, you should change your clothes and check your child for ticks and any potential tick bites.

Always consider your child’s safety when venturing into the bug-filled woods in Ontario during the summer.

10) Sunburn

Last but not least, an overarching concern that applies to almost all summertime activities is too much exposure to our friendly, but no so friendly neighbour, the sun.  Ensure your child is wearing sunscreen with the appropriate SPF level.  Sunscreen with an SPF of at least 30 is recommended for children.  Make sure your kids stay properly hydrated and be aware of the symptoms of heatstroke.

Summer can be the most fun time of the year for families to spend time together, but sometimes there are others who don’t take the necessary precautions.

If your child suffered an injury due to someone else’s negligence, McLeish Orlando is here to help.  Do not hesitate to contact us for a free consultation.  One of our lawyers will evaluate your child’s case.

10 Tips to Help You Hire the Best Personal Injury Lawyer for Significant Cases

Written By: Patrick Brown and Daniel Garas, Summer Student

10 Tips to Help You Hire the Best Personal Injury Lawyer for Significant Cases

If you’ve been injured or lost a loved one due to a wrong caused by someone else you’re probably looking to hire a personal injury lawyer. Not all lawyers or law firms are the same. Nor are all cases. Minor injury cases are quite different from cases involving serious injuries or death. Here are some helpful tips and questions to ask when choosing the best personal injury lawyer or trauma lawyer for a significant case

1. Research the reputation of the personal injury lawyer and the firm

There is no sense in hiring someone just because they are on a big billboard or pay a lot to be on television. That has nothing to do with reputation. To have a winning case, reputation matters! If a firm does good work, they will have a good reputation in the rehab community and among lawyers and judges. Who better to ask than those who actually see the lawyer or firm and know how they perform.

A good reputation means a higher success rate. Insurance companies know this and are more apt to deal with your claim fairly and reasonably. This increases the value of your settlement and the ability to get the case done.

So where do you look for a good reputation? Firstly, paid advertisements saying “hire us,” says little about reputation. Most people would not select a surgeon to perform the surgery just because they saw them on a billboard. They would ask their family doctor, nurses, and other surgeons about their abilities and reputation. If you want to hire a good lawyer or law firm, you should do the same. Since many people do not have a list of lawyers at their disposal, you may choose to search legitimate peer review sites. These are sites where lawyers vote on other lawyers who they would recommend. As well, you can seek information from the Law Society. The Law Society oversees lawyers and certifies who is to be a specialist in their area based on a set of criteria. Good places to start researching a lawyer’s reputation are below.

  • Are they listed in LEXPERT(lawyer peer review), 
  • Are they listed in Best Lawyers in Canada for Personal Injury Litigation (lawyer peer review), 
  • Are they listed in the Law Society of Ontario as a Certified specialist in civil litigation 
  • Is the firm listed in Canadian Lawyer Magazine Top ten personal injury firms in Canada, 
  • Were they past presidents of a major legal organization such as the Ontario Trial Lawyers Association or Ontario Bar Association?
  • Are they rated in Martindale Hubbell with a preeminent rating?

2. How does the lawyer/firm get their cases?

Where lawyers get their cases is telling. Is it from referrals from former clients, other lawyers, and judges (who have seen them in action and know their results) or is it simply from advertising? Ask:

  • Where do your cases come from?
  • Why did they refer cases to you?

3. Are they leaders in the Legal Community?

Good firms are also leaders in the legal community. Leading lawyers are frequently called upon to teach other lawyers how to practice in an effective and result-based manner. One should always inquire if the firm or the lawyer are recognized as leaders in their field. This will not only give you an understanding of their reputation but will allow you to know they are respected players.

  • Do you teach other lawyers in the area of personal injury?
  • Do you chair or teach at legal conferences for the Law Society, The Ontario Bar Association, Trial Lawyers Association, Law Practice Program, The Advocates Society, or at Judges’ Conferences
  • Have your written and published articles in leading magazines?
  • Have you published law books in the area of personal injury?
  • Have you been asked to teach law students and articling students?
  • Have you been asked to consult the government in the area of personal injury ?
  • Have you received any awards from legal associations, health associations in personal injury? 

4. Is the lawyer and firm experienced?

You would not select a brain surgeon to do your surgery if you knew they had never done surgery on the brain before you. Nor would you ask your family doctor to do it. Selecting a personal injury lawyer to handle a serious injury case, whether it be a brain injury, spinal cord injury, or wrongful death should be no different. Too much is at stake. You want someone who has had actual experience doing such a case before. Experience matters.

Experienced law firms will know how to advance your claim in a timely and efficient manner, Not only will they have a proven track record in dealing with serious personal injury and wrongful death cases, they will have the experience and skillset throughout. You should always inquire about their experience going to trial. Although good lawyers will settle most cases without having to go to trial, having no or limited trial experience will mean they have no bullets in their gun. That makes negotiating and winning a case more difficult when the other side knows that you have nothing to back it up.

As well, why choose a firm or lawyer that does many areas of law as opposed to solely being specialized in the area of personal injury and wrongful death. As they say, “jack of all trades and master of none.” You should also inquire if they do most of their work on the other side of lawsuits. Doing plaintiff personal injury cases is very different than defending cases on behalf of insurance companies.

To find out about the experience, ask the right questions:

  • Have they done jury and judge alone trials in personal injury?
  • Do they devote 100 percent of their time representing people who suffer serious injuries and trauma or do they or their firm do work for insurance companies or practice in other areas of the law like real estate, criminal, family, estates?
  • Have you dealt with injuries like mine (mild to severe traumatic brain injury, spinal cord, multi-trauma, orthopedic fractures, amputations, degloving, burns, scarring, internal organ injuries, etc.)
  • Have you dealt with a case like mine (cycling accidents/crashes, truck accident/crashes, recreational sports, daycare negligence, nursing home negligence, medical malpractice, boating crashes, city disrepair and negligence, hospital negligence, defective products,)

5. What do former clients and others say about them. 

Finding out what others have said about the firm is a good way to help you identify the top personal injury law and trauma law firms. Reviews are written by clients that were in the same position you are currently in. They have nothing to gain by submitting a review about the firm and their opinion will be unbiased. Make sure you make the right inquiry

  • What do their Google reviews say?
  • Do they have reviews on your site?
  • Can I contact a former client?
  • Are there any reviews on the peer review sites?

6. Does the firm have the resources to handle a serious personal injury or trauma case?

You should also research firms to find out how they conduct their work. Is it paperless? If so, then they may digitally update you sooner with documents that pertain to your matter. A paperless office means faster more efficient searches and sharing of documents. It means the legal team will have access to your file at all times so things can move quickly.

Updated time management software will also mean that the legal team handling your case is organized, efficient, and on the ball. Technology and resources allow good firms to deal with cases across the province.

As well, do they have a team working for you? Dealing with a serious personal injury case requires serious resources to succeed against large insurance companies. Ask the right questions

  • Do you have a paperless document system, and if so what is it?
  • Do you have a time management system, and if so what is it?
  • Can you or the team access my file online at any time?
  • Will you have a team helping you such as legal assistants, law clerks, accident benefit clerks, associate lawyers, articling students, and others helping on the case?

7. Do they only charge a fee at the end and only if they win?

Access to justice is a big problem in Canada. Many people try to represent themselves in complex legal matters because they cannot afford a lawyer.

Pursuing a personal injury claim is expensive. Most cases require expert evidence from doctors, accident reconstructionist, life care planners, and accountants. A good personal injury firm has the resources to hire and pay for the services of the experts that are required to match the insurance company defending the claim without asking their client to help foot the bill.

Likewise, going to a firm that does not make you pay any legal fees unless you win, means that you do not have to worry about how you will pay. You can focus all of your energy on your legal claim and on getting your life as close to where it was before the accident!

  • Do I only pay if I win?
  • Do I only pay at the end??
  • Will I need to pay any money to you to move the case forward or will you pay for it?
  • Do I have to give you a money retainer at any time?
  • Do you have the resources necessary to pay for the medical-legal reports, accounting reports, and engineering reports needed to win my case?

8. How big is their caseload and what are their results?

When dealing with serious personal injury and wrongful death cases, you should be wary of lawyers that work on a large volume of cases and seek to settle them early without putting the necessary resources or time to build them up. This approach may work on small minor injury cases, but it is not a wise approach for significant ones. Like any industry, different models are used by law firms. High volume, low return or low volume, high return. If your case is significant, you may wish to consider focusing on lawyers that deal with more significant cases.

A good firm that deals with a select number of larger cases will be prepared to put in the time to build your case and hire respected experts to achieve a meaningful and reasonable settlement.

  • Do they advertise and take a large volume of cases?
  • Do their results show they deal with more significant cases?
  • How will you work my cases up and what resources will you use?

9. Do they overpromise a quick resolution?

Quick settlements may be good for some people for small cases. But on more significant claims involving serious injuries, they are not. Be wary of firms that overpromise or tell you that they will reach a quick resolution on a significant case.

Good firms will do their best to move your case forward toward a timely settlement. They have the resources to do so. But they will also be reluctant to settle for a low, unreasonable, and unfair amount.

10. How does the firm give back to the community?

Working for innocent accident victims isn’t just about resolving cases and making money. A good personal injury law firm will be active in the community seeking to raise awareness of the rights of victims and promoting safety efforts to prevent others from being hurt or killed.

They will also contribute and sponsor programs that seek to help people who suffer from serious injuries like the brain, spinal cord, and other injuries.

They sponsor projects and organizations to try to prevent injury and protect victims. At times they will ask that laws or infrastructure be changed to prevent accidents and crashes.

  • Do members of your firm belong (or have you belonged) to boards, committees, or organizations that enhance the community and safety?
  • Do you sponsor hospitals or organizations that try to help people suffering from brain, spinal, and other injuries?
  • Do you give back to the community by educating and helping health professionals in regards to the legal system?

Still unsure or have a question ? Ask McLeish Orlando Lawyers over a free consultation, reach out to us at https://www.mcleishorlando.com or call us at +1-866-685-3311 

June is Bike Month! – Clips & Tips with Patrick Brown

McLeish Orlando and Bike Law Canada are kicking off Bike Month together and celebrating all things to do with bikes.

This month, we hope to encourage you to get out and ride, learn a new skill,  or have fun with your family and explore your cycling communities.  Of course, no matter where or how you ride, we want to make sure you are protected and know your rights to the road.  That is why we have teamed up with Bike Law Canada, and enlisted the help of McLeish Orlando Partner, Patrick Brown, to tell you everything you need to know about cycling and the law.

Over the next 30 days, we will be releasing helpful “clips and tips” on some of our most commonly asked cycling safety and legal questions – everything from how to fit a helmet to steps to take if you have a crash – McLeish Orlando and Bike Law have got you covered with everything you need to know.  Do you have a specific cycling legal question?  Don’t hesitate to contact us and we would be happy to speak with you.  We hope everyone has a great Bike Month, follow along with us on this page and on our social media channels, and as always, ride safe and ride proud.

Helmets:

Taking the Lane:

Side Guards:

Click here for the Coroner’s review

Click here to find your MPP to write to them

Alcohol & Bikes:

Rider Cards:

Riding Side-by-Side & Tandem:

Municipal Liability:

Pedestrian-Cyclist Collisions:

How to Repair a Damaged Bike:

Language Matters:

Protecting the Cyclist Through Insurance:

Getting a Ticket: 

Bias:

Idaho Stop:

Video Cam Footage: 

Dooring:

Bike on Bike Crashes:

Vulnerable Road User Laws:

Book Club:

When You Need a Lawyer:

Cyclist Accident Benefits:

Tips for a Good Lawsuit:

Blog Resources:

What Should I Do if I Get Into a Collision While Cycling?

Call for Change – The Need for Mandatory Education of Truckers with Respect to Cyclist Safety

Contributory Negligence and Helmet Use: Recent Updates to the Law in Ontario

Cyclists, Pedestrians, and Their Rights to Accident Benefits

Obtaining the Name of the Person who Doored You

Drivers or Cyclists: Who Has the Right of Way?

Six Things You Should Do After a Motorcycle Crash | McLeish Orlando

Six Things You Should Do After a Motorcycle Crash

Written By: Patrick Brown and Ryan Marinacci, Student-at-Law

Six Things You Should Do After a Motorcycle Crash | McLeish Orlando

Summer is around the corner and motorcycles are coming out of storage.  Safety should always be the number one priority but crashes do occur, most of the time completely out of a rider’s control.  A rider can be doing everything right: wearing up-to-date safety equipment, obeying the rules of the road, and driving cautiously.  Yet, the rider is still involved in a collision through no fault of his or her own.  The same can be said about driving a car but the difference lies in the seriousness of injuries that an exposed motorcyclist can sustain.

The lawyers at McLeish Orlando understand that motorcyclists face considerably higher risks and are much more vulnerable than individuals driving cars.  Here are six things you should do if you have been in a motorcycle crash:

  1. Call 9-11 and request officers at the scene.
  2. Do not touch your motorcycle and take pictures.
  3. Demand the other driver’s information.
  4. Obtain witness names and contact information.
  5. Seek medical attention.
  6. Consult a lawyer.

First, call 9-11.  Request officers at the scene.  When officers attend the scene, witness statements are taken and more details are recorded.  Ask for the officers’ business cards.  This ensures that the motor vehicle collision report and investigative field notes accurately detail what happened and are easy to obtain.

Second, do not touch your motorcycle.  Take pictures of everything: injuries, property damage, vehicles involved, street signs, road conditions, weather, and lighting.  There is no such thing as too many pictures.  The better the documented property damage and injuries, the better the case.

Third, demand the other driver’s information, including insurance slip, driver’s license, and license plate number.  Do not negotiate.  Information easily gets lost and slips through the cracks in the mayhem after a crash.  Having your own easy access to the other parties’ information will avoid having to rely on the police or the insurance companies to initiate legal action.  This saves time and legal resources.

Fourth, obtain the names and contact information of any witnesses at the scene.  Witnesses with critical information regularly leave the scene before police officers arrive to investigate the crash, often assuming someone else will report what they saw to police.  Obtaining witness names and contact information yourself might avoid losing crucial evidence regarding the circumstances of the collision when individuals who saw the crash leave the scene without speaking to police.

Fifth, seek medical attention as soon as possible after the crash.  Report every single injury and symptom you experience to doctors and nurses.  Be detailed.  Most injuries and symptoms present in the first 48 hours after a collision.  Ensuring that the medical records document all of your injuries and symptoms early on will make it easier to link them to the crash, track your prognosis, and claim compensation.

Sixth, consult a lawyer before talking to insurance companies.  Do not give a recorded statement.  Do not sign anything.  What seems like a harmless detail could seriously hurt a claim down the line.

The importance of hiring the right lawyer after being injured in a motorcycle crash cannot be overstated.  An experienced lawyer will be able to maximize results by combining accident reconstruction with a detailed investigation into the long-term consequences of the injuries, and a robust analysis of economic losses, including lost income and future cost of care.  Grappling with the nuances and paying attention to every single detail are necessary assets.  Being able to persuade an insurance company of the amount it should pay to secure an injured motorcyclist’s future is of critical importance.

Through years of experience in representing injured motorcyclists, the lawyers at McLeish Orlando have developed a well-recognized ability to obtain outstanding results for clients who have been injured in a motorcycle crash.  There is no charge for initial consultations.  Feel free to contact one of the lawyers at McLeish Orlando for an assessment of your case.

 

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.

Dangerous Drivers | Can UV Light Disinfecting Devices Kill Viruses? | McLeish Orlando Personal Injury Lawyers

CBC News: Dangerous drivers; Can UV light disinfecting devices kill viruses?

Patrick Brown was interviewed by CBC News: The Marketplace, where he discussed the insufficient consequences for dangerous drivers.

If you or someone you know has been seriously injured in a pedestrian or motor vehicle collision, contact one of the personal injury lawyers at McLeish Orlando.

Call for Change – The Need for Mandatory Education of Truckers with Respect to Cyclist Safety

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

Mandatory Education of Truckers with Respect to Cyclist Safety | McLeish Orlando

Yet another cyclist is killed after being struck by a heavy truck. On Friday, November 20, 2020, a man in his 40s was pronounced dead on the scene when he was struck by a cement truck while riding his bike in the area of Royal York Road and Judson Street. Early reports suggest the truck was making a right-hand turn and failed to yield to the cyclist who had the right of way. Much like most of Toronto, this area of Royal York Road has a bicycle lane for cyclists to be afforded a safer means of travelling on the road, as they have the right to do. However, not even bike lanes can prevent truckers from striking and killing cyclists.

In June of 2018, a cyclist riding in the bike lane at St. George Street and Bloor Street was struck by a flatbed truck that attempted to make a right-hand turn and failed to yield to the cyclist. Unfortunately, this was fatal for the cyclist.

Recently, McLeish Orlando lawyers successfully completed a case involving a young lady who lost her leg when a dump truck made an illegal right turn across a bike lane to enter a street where no trucks were allowed.

In Canada, from 2006 to 2017, an average of 74 cyclists (bicyclists) were killed in crashes each year. 73% of cyclist fatalities were caused by collisions with a motor vehicle. Of those cyclist fatalities, 19% of cyclists were killed after being struck by a heavy truck.[1]

There is a clear void that needs to be rectified. Time after time, cyclists are struck by large trucks who fail to see or fail to yield to cyclists. The government has attempted to improve cyclist safety by installing bike lanes throughout the GTA, which help in providing a specific portion of the road where only cyclists are permitted to travel. There has been widespread support for mandated side guards on trucks, which are particularly effective when both the truck and the bike are involved in a sideswipe collision. However, the only way to effectively reduce, and hopefully eliminate, the number of cyclists struck and killed by heavy trucks, especially right-turning ones, is to improve the education of truckers with respect to cyclists and bike lanes.

How can this be achieved? While there are mandatory training courses for those drivers seeking heavy-vehicle licenses, there needs to be more focus on cyclist-safety. There are many ways of raising cyclist-safety awareness, including:

  • Mandatory training specific to cyclist safety – companies in the UK and Australia offer training programs that require commercial truck drivers to “ride a mile in the shoes of cyclists” by having them spend 3+ hours riding bicycles on the road. Evidence from the UK program has shown a 47% reduction in casualty rate after implementing the training program.
  • Improved visibility tools, such as better use of side mirrors, including but not limited to, blind-spot mirrors;
  • Alarming systems that alert truck drivers when there are cyclists or pedestrians in a potentially dangerous area of a truck;
  • Knowing bicyclist’s rights – it is time that all users of the road are made aware of the rights cyclists have on the road. Bicycles on the roadway are considered vehicles and should be afforded the same level of safety and caution that one motor vehicle user exercises in relation to another motor vehicle driver. It is essential that motor vehicles look carefully for bicyclists before turning left or right, merging into bicycle lanes, and ultimately, respecting the right of way of bicyclists because they are entitled to share the road.

As vulnerable users of the road, more attention and awareness surrounding cyclist safety is required in order to prevent the continuation of fatal collisions involving motor vehicles and bicycles. As the amount of people opting for bicycles instead of motor vehicles continues to increase, safety measures are required to address the ongoing problem and hazards that cyclists face. All users of the road need to accept that bicyclists are here to stay, and they need to make the appropriate changes to their driving practices in order to ensure cyclist safety.

If you or a loved one have suffered a serious injurycontact the lawyers at McLeish Orlando for a free consultation.

[1] Source: https://tests.ca/driving-statistics/

“Accident” under SABs revisited in CKD v Wawanesa Mutual Insurance | McLeish Orlando

“Accident” under SABs revisited in CKD v Wawanesa Mutual Insurance, 2020 ON LAT

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

C.K.D v Wawanesa Mutual Insurance, 2020 ON LAT

In December 2017, a man left his house and drove to a nearby gas station to purchase a lottery ticket. He was wearing snow boots due to the wet and somewhat snowy conditions at the time. He parked his vehicle adjacent to the station’s store, got out of his car, and walked into the store where he purchased a lottery ticket. He then left the store and walked back toward his car. He reached out to open the car door with his hand, but he slipped and fell before he could open the door, suffering injuries that required extensive hospitalization and rehabilitation.

The man applied for accident benefits through his automobile insurer for compensation due to being injured in an automobile accident. His insurer denied coverage, saying that the incident was a slip and fall, one unrelated to a vehicle. The applicant took the position that because he was in the process of getting into his vehicle, the incident was an “automobile accident.”

The License and Appeal Tribunal (the “LAT”) was tasked with making the determination of whether this incident qualified as an automobile accident under the Statutory Accident Benefits Schedule (the “Schedule”). The LAT stated:

For the incident to be considered an “accident,” the applicant must prove on a balance of probabilities that it meets the definition according to s. 3(1) of the Schedule, which defines an “accident” as “an impairment in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”[1]

The Court of Appeal in Greenhalgh v ING Halifax Insurance found that the language of this provision sets out the test as involving a consideration of the following two questions:

  1. Did the incident arise out of the use or operation of an automobile? – The Purpose Test
  2. Did such use or operation of an automobile directly cause the impairment? – The Causation Test

Satisfying this two-part test is fact-dependent and determined in light of the particular circumstances, such as: what the applicant was doing at the time of the incident and whether he was operating his vehicle; the timing of the events that led to the injuries, and whether the vehicle was involved; the location of the applicant in relation to the vehicle; and whether the injuries he suffered were directly caused by his operation of the vehicle.

The Purpose Test

The LAT reviewed the applicant’s examination under oath and determined that the fall resulted from the act of unlocking the vehicle and reaching for the door handle as part of the applicant’s attempt to re-enter the vehicle. The LAT found that the act of entering a vehicle is an ordinary use of a vehicle, and therefore, this incident satisfied the purpose test.

The Causation Test

In referencing Greenhalgh, the LAT asked whether the use or operation of the vehicle was a direct cause of the injuries, or was there an intervening act(s) that was not part of the ordinary course of things? The LAT found that the applicant would not have been injured “but for” being in the process of re-entering his vehicle. The slip and fall was not considered an intervening act that would disqualify the incident from being an “accident.” The applicant was not simply walking in the parking lot or walking in any direction other than toward his vehicle or engaged in any activity other than getting into his vehicle when he slipped and fell. The LAT found that a direct cause of the accident was a result of the use and operation of the vehicle that was parked in that gas station under those conditions. The LAT stated that:

[T]he dominant feature of the incident is the applicant’s attempt to get into his vehicle, which confirms direct causation. While there is no dispute that the slip and fall caused the injuries, this was secondary to the fact that the applicant was getting into the vehicle, the very act that initiated the incident.[2]

The LAT concluded that the applicant was indeed operating his vehicle when he fell and was injured and that his injuries were directly caused by the operation of his vehicle. As a result, the applicant was involved in an “accident” as defined by the Schedule.

What does this mean?

The Purpose Test is meant to capture a broad range of uses and is not intended to prevent insured drivers from accessing accident benefits simply because they were not involved in a standard automobile accident. The “use or operation of an automobile” may include a wide variety of automobile-related incidents, and the analysis should be guided by the particular circumstances of the incident in question.

The Causation Test seeks to determine whether the ordinary use or operation of a vehicle caused the injuries sustained. Despite the presence of slippery conditions, the fact that someone attempts to enter their vehicle and falls in the process may meet the causation branch of the test.

If you or a loved one have suffered a serious injurycontact the lawyers at McLeish Orlando for a free consultation.

[1] CKD v Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT) at para 10.

[2] Ibid at para 34.

Belton v Spencer, 2020 ONCA 623

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

Belton v Spencer, 2020 ONCA 623 | McLeish Orlando Personal Injury Lawyers

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.

5 Reasons You Should Hire a Personal Injury Lawyer

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

Mcleish orlando Personal Injury Lawyers

When an accident occurs, those involved are often injured or affected in one way or another. Whether it be a motor vehicle collision or the loss of a loved one due to negligence, the steps to take to recover and try to become whole again can be complicated and exhausting. You may feel overwhelmed by emotional trauma, medical bills, and dealing with insurance claims. Further, you want to make sure that you are able to be put in the position you were before the accident. It is therefore essential to hire a personal injury lawyer to help guide you through this process.

Personal injury lawyers are solely dedicated to personal injury law

Often, lawyers practice in more than one area of the law. For this reason, it is important that you identify a law firm that specializes in personal injury law – that is, the lawyers at the firm focus solely on personal injury law. Personal injury lawyers specialize in helping their clients who have been hurt through the negligence of others. While personal injury law has many components to it, a lawyer that focuses solely on personal injury law is more likely to be very experienced in comparison to a lawyer that focuses on various areas of law at the same time.

Your recovery is our #1 priority

If you need a personal injury lawyer, it’s likely because you’ve been injured. You will likely be dealing with doctor’s visits and therapy treatments to help return to your previous self. Because of this, you will likely be too busy to handle the legal side of things. Further, settling a claim can be a time-consuming process. Personal injury lawyers work tirelessly to ensure that accident victims are financially compensated, and more importantly, that recovery occurs as smoothly and quickly as possible. Hiring a personal injury lawyer will allow you to access their vast network of connections to treatment centres and health practitioners to help speed up the recovery process. While you’re recovering, your personal injury lawyer will investigate, advocate, and litigate to ensure that you are made whole again.

Insurance is complex and confusing

Although insurance is something that almost everyone has, not everyone understands it. Insurance can be confusing for even experienced lawyers. Hiring a personal injury lawyer will ensure that you receive a high-level of guidance through the insurance claim process. Further, insurance companies are a multi-million-dollar business that will often try to settle a claim for less than it is worth. It is important to have an experienced personal injury lawyer advocating for your rights and guaranteeing your access to insurance coverage.

Familiarity with the court system and tribunals

If you’ve ever been in a courtroom, you probably know those courtroom proceedings can be confusing and formal. Luckily, if you hire an experienced lawyer, they will manage the entire litigation process for you. If for some reason, you are required to appear in court as a witness, your personal injury lawyer will make sure you are well-prepared for your appearance.

No upfront legal fees until the successful conclusion of your case

Unlike most lawyers, an experienced personal injury lawyer bills clients in a manner known as a “contingency fee.” Put plainly, this means that the lawyer only gets paid if the client does. If the lawyer is unsuccessful in obtaining a judgment or settlement in favour of the client, the lawyer does not get paid. This is yet another reason why experienced personal injury lawyers work tirelessly to ensure your case is best represented and is ultimately successful.

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

Contributory Negligence and Helmet Use | McLeish Orlando Personal Injury Lawyers

Contributory Negligence and Helmet Use: Recent Updates to the Law in Ontario

Written By: Patrick Brown and Endrita Isaj, Student-at-Law

Contributory Negligence and Helmet Use | McLeish Orlando Personal Injury Lawyers

Although it is agreed that a properly fitted bicycle helmet may reduce the impact of head injuries, the helmet is considered to be the last line of defence available to a vulnerable road user when being struck down by drivers who navigate a two-ton high-speed machine. The first and foremost focus of road safety should always be to ensure contact is avoided and that drivers follow the rules of the road, reduce speed and avoid distractions. Municipalities should also build safe infrastructure that allows safe riding and driving for all. Despite the fact that the primary cause of road violence falls in many cases with drivers and governments, it does not mean that when they cause serious injury or death, they will not seek to try to limit their responsibility by asserting what is called the “helmet defence” against the injured or killed cyclist.  In Ontario, the defence has very little success and is difficult to prove. That being said, it is something that all riders should be aware of.

First, it is necessary to understand what contributory negligence is. It is the principle that is used by defendants to limit liability if they can establish that the plaintiff caused or contributed in any way to their injuries or damages.

The seminal case of Snushall v Fulsang, 2005, OJ 4069 [Snushall] dealt with contributory negligence in the context of seat belts, but has established the legal groundwork for contributory negligence in the absence of helmet use. Snushall was an important case for setting the limit for contributory negligence at 25% for the failure to wear a seatbelt.

Recent Case Law:

In the case of Labanowicz v Fort Erie (Town), 2017 ONSC 630 [Labanowicz], the plaintiff was injured when she was biking on a municipal trail and her bicycle’s wheel struck the metal bracket of an empty housing that would have contained a bollard. The plaintiff flew off of her bike and suffered serious injuries from the fall, including a concussion. She was not wearing her helmet when the accident occurred.

In its decision, the court did an analysis of causation and the contributory negligence of the plaintiff. When considering contributory negligence, the court considered how the absence of a helmet when biking contributed to any of the plaintiff’s injuries.

The defendant attempted to lead evidence of literature that a bicycle helmet prevents up to 88% of brain injuries. The court took issue with the reliance on statistical generalizations that the defendant put forward, stating that the court would be erring if they accepted the “bald assertion” advanced by the defendant’s counsel. The court was not persuaded that the plaintiff would have belonged to the 88% group, as evidence of the injuries she sustained that were recorded in the ER records were inconclusive at best.

The defendant had presented no expert evidence or biomechanical evidence to allow the court to draw a conclusion that the lack of a helmet had any impact on the severity of the plaintiff’s injuries. There was no admissible evidence presented that allowed the court to assign contributory negligence to the plaintiff for her failure to wear a helmet when biking. The defendant was held fully responsible for the accident.

The court’s decision in St. Marthe v O’Connor, 2019 ONSC 1585, followed much of the same reasoning as in Labanowicz. In St. Marthe v O’Connor, the cyclist was biking to work in the morning when the defendant drove out of a gas station roadway, striking the plaintiff on his bike and knocking him to the ground. The plaintiff was not wearing a helmet when he was struck by the car. The plaintiff was found not to be contributorily negligent, even though he was not wearing a helmet because the defendant did not establish the necessary causal link between the alleged contributory negligence and the plaintiff’s injuries. The court was clear in its reasoning that expert evidence must be led to establish this important causal link, in order to prove that the plaintiff was responsible for a certain part of their injuries.

In Repic v Hamilton (City), 2009 OJ 4657, the plaintiff was 14 years old when he was struck by a car when he was riding his bike across an on-ramp. The plaintiff was not wearing a helmet when he was struck by the car. When deciding on the issue of contributory negligence, the court did not find the plaintiff contributory negligent on the specific issue of helmet wear. The defendant did not lead evidence before the court that the head injury the plaintiff sustained would not have occurred if the plaintiff had been wearing a helmet. The defendant’s counsel led evidence of literature that helmets reduced the risk of head injuries by 60-75%. The court was not swayed by this statistical generalization either, holding that the extent that the helmet would have reduced the plaintiff’s head injuries was still unknown. The plaintiff was found not to be contributorily negligent for his failure to wear a helmet, but was contributorily negligent for other reasons.

These cases are important in demonstrating that the defendant must lead expert evidence in order to establish the plaintiff’s contributory negligence when failing to wear a helmet. Even when a negligent defendant is able to prove with medical and engineering evidence that the brain injury would have been reduced by helmet use, any percentage that will apply will be nominal in light of the Court of Appeal’s ruling in Snushall and the fact that helmet use, unlike seatbelts, is not mandatory for adults.

If you or someone you know has been injured in a cycling incident, please do not hesitate to contact the lawyers at McLeish Orlando for a free consultation.