Tag Archives: personal injury

Setting the Bar for Commercial Host Liability

Written By: Salvatore Shaw and Brandon Pedersen, Summer Student

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

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

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

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

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

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

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

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

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

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

[1] Widdowson v Rockwell, 2017 BCSC 385.

Top 5 Mistakes That Could Hurt Your Personal Injury Claim

Written By: William Harding and Christina El-Azzi, Summer Student

Personal Injury Lawyers

If you have suffered a serious injury through the negligence of others and are pursuing litigation, there are some important factors to keep in mind in order to ensure that your rights are protected and that you receive all the compensation to which you are entitled.  The following are the most common, and costly, mistakes in personal injury claims:

  1. Not Seeking Medical Attention.

After an accident, you are responsible for proving your injuries. Medical reports are vital in personal injury claims as they outline and document your injuries, their severity, and the likelihood of your full recovery.

It is important to see your doctor immediately after sustaining your injuries. Otherwise, insurance companies may rely on the fact that you waited to seek medical attention because your injuries were pre-existing, minor or caused by something else.

It is unlikely that you will be compensated for injuries that are not outlined in a medical report. Make it a priority to see your doctor as soon as possible and mention all of your symptoms and injuries. In speaking to your physician, it is important to be completely open and honest about all of your injuries.

  1. Being Dishonest About Your Injuries

Your personal injury claim centers on credibility. Lying or exaggerating your injuries can have horrible effects on your case and, consequently, on your compensation.

Insurance Companies have their best interest and bottom line in mind. They frequently obtain access to your medical records in order to verify your condition, hire private investigators to confirm the legitimacy of your injuries, and request surveillance to see whether or not you might be exaggerating or lying about the severity of your injuries.

Being dishonest can be very detrimental to your case. You should always be honest with your doctor and your lawyer about all of your injuries – both past and present.

  1. Divulging Details on Social Media

Everything that you post on social media leaves an online footprint. It is imperative that you use social media responsibly, especially when you are part of an ongoing lawsuit. Sensitive information related to your claim should not be posted online – even if you have your privacy settings turned on.

Insurance companies will meticulously comb through your social media looking for any information to hurt your case: updates, blog posts, pictures and comments. Even if you do not think that the information that you are posting is hurtful to your case, it is in your best interest to refrain from sharing any case-related information online.

  1. Failing to Keep Records

To support your case, you will need valid documentation for every part of your claim. It is vital to thoroughly document and keep records with regards to the accident and your damages.

At The Scene

At the scene of the incident, take pictures of your location from all angles. You should also thoroughly photograph, and preserve, any of your personal property that has been damaged.

Take note of the sequence of events which led to your injuries, as well as weather conditions, the lighting at the time of incident, and your initial symptoms and injuries.

You should also take down the name and contact information of any potential witnesses. Follow up with them as soon as you can. You should request that they provide you a written statement of what they saw.

After The Accident

It is important for your claim that you save your receipts every time that you incur a cost which is related to your accident. This can include out-of-pocket medical expenses, travel expenses, and the cost of replacing damaged property.

  1. Waiting Too Long to Seek Legal Advice

Insurance claims can be complicated and you may not always be aware of your rights. An experienced personal injury lawyer can help you navigate this, sometimes overwhelming, process. Furthermore, it is important to be aware of the applicable limitation periods that exist, something that a lawyer will have knowledge of.

Do not fight the battle alone and run the risk of compromising your rights or your compensation. If you or someone you know has been seriously injured as a result of someone else’s negligence, contact the team at McLeish Orlando LLP for more information and a free consultation.

A Reminder of the Importance of Reasonable Foreseeability in Negligence Claims

Written By: Joseph Cescon and Brandon Pedersen, Summer Student

Negligence Claims

Importance of Reasonable Foreseeability in Negligence Claims

At law, certain relationships are recognized to give rise to a prima facie duty of care. It is a well-known fact and well-established point of law that a driver of a car who is at-fault owes a duty of care to a person who was injured as a result of the driver’s negligence. The reason for this is that a risk of personal injury after a driver’s negligent conduct (for example, being intoxicated while driving) is reasonably foreseeable.

In what circumstances might a property owner owe a duty of care to a thief who steals from their business? On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from them seems illogical; however, last year, the Supreme Court of Canada revisited the question of foreseeability in establishing a duty of care.

In Rankin (Rankin’s Garage & Sales) v JJ,[1] two teenagers drank alcohol and smoked marijuana to the point of intoxication, and subsequently went to Rankin’s Garage in Paisley, Ontario.  At the time, Rankin’s was an unsecured car dealership and mechanic property, where the teens found an unlocked vehicle with the keys in the ashtray. The two teenagers decided to go for a joyride, though the driver did not have a driver’s license and was drunk and high. As most could anticipate, the driver got into a serious single-vehicle accident, and the passenger suffered a catastrophic brain injury as a result.

After the Ontario Court of Appeal upheld the trial court’s decision that Rankin’s Garage was negligent, the Supreme Court of Canada was forced to conduct a thorough analysis to determine if a duty of care existed.  In a split decision, 7-2, the majority for the Court determined that “this case [could] be resolved based on a straightforward application of existing tort law principles” by applying the Anns-Cooper test.[2] Based on the application of the test, the Court affirmed that what needs to be “reasonably foreseeable” is not only the risk of theft, but that the type of harm suffered – in this case, devastating personal injuries – was reasonably foreseeable to someone in the position of the thief, when considering the security of the vehicles stored at the garage. The Supreme Court of Canada ruled that a commercial car garage did not owe a duty of care to a person who was injured following the theft of a vehicle from its premises.

Implications for Tort Law

  • The decision in Rankin’s demonstrates that risk needs to be assessed on a case-by-case basis, and a duty of care must be based on the reasonably foreseeable risk of harm rather than just a mere possibility of such harm. The outcome of Rankin’s is likely to result in greater attention being paid to the foreseeability inquiry in future negligence cases.
  • While the majority’s decision clarified that a business will only be liable in this kind of situation where both the theft and the unsafe operation of the stolen vehicle should have been foreseen, it indicated that a defendant may still owe a duty of care even if a plaintiff participates in criminal activity.
  • The question that remains is whether or not individual automobile owners owe a duty of care to those injured as a result of the theft of their car. The Rankin’s decision illustrates that cars are not inherently dangerous, and storing them (whether for commercial or personal reasons) will only create a reasonably foreseeable risk in certain circumstances.

Contact the lawyers at McLeish Orlando LLP for more information about your rights, and the options available to you.

[1] Rankin (Rankin’s Garage & Sales) v JJ , [2018] 1 SCR 587, 2018 SCC 19 (CanLII)

[2] Cooper v Hobart, [2001] 3 SCR 537, 2001 SCC 79

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

Citizens are crying foul after the City of Hamilton posted signs at popular tobogganing spots warning that sledding was banned and violators would be fined up to $5,000. Cash strapped municipalities say they don’t want to be grinches, but they just can’t afford to expose themselves to potential lawsuits. The Agenda asks McLeish Orlando’s Patrick Brown if this is creating a liability chill, and if our court system has lost touch with reality.

Watch the segment on toboggan hills below:

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

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

By: Patrick Brown | Published in: The Lawyers Weekly February 6, 2015 Issue |

Extreme sports is a growing industry that is profiting from the human desire to experience the adrenaline rush associated with risk-laden activities. Whether it is racing down a ski hill on a mountain bike, falling from a white water raft, or climbing up a rock face, there is an increased appetite for such thrills. Continue reading

PIA Firms nominated for Canada’s Top Personal Injury Law Firms for 2015 by Canadian Lawyer Magazine

VOTE FOR CANADA’S TOP PERSONAL INJURY LAW FIRMS | We are pleased to announce that once again the 3 law firms of PIA Law, McLeish Orlando, Oatley Vigmond and Thomson Rogers, have been nominated by Canadian Lawyer Magazine in the category of Canada’s top personal injury law firms for 2015.

sealThe magazine is conducting a survey that invites all legal and healthcare professionals, as well as clients and others, to weigh in and vote on the 2015 rankings.

As you know, the member firms of PIA Law have been consistently selected as three of Canada’s top personal injury law firms.

If you feel that our three firms are worthy of this recognition, please vote for each one of the firms. Thank you

Voting is open until March 2nd.

Canadian Lawyer Magazine – Click here to Vote

Designating Traumatic Brain Injuries

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

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

Negligent drivers can still pursue claims against a road authority, says decision

As seen on AdvocateDaily.com

 

A recent case points out very clearly that there is not an absolute bar when it comes to whether a negligent driver can still pursue a negligence claim against a road authority, Toronto critical injury lawyer Dale Orlando says in Law Times.

Deering v. Scugog (Township), says the article, involves a 2004 motor vehicle accident that left two teenage sisters quadriplegics, with the trial judge finding the defendant municipality to be two-thirds liable with the drive responsible for the remainder. The Ontario Court of Appeal dismissed an appeal last year, and the Supreme Court of Canada denied leave to appeal in December.

As all avenues of appeal have now been exhausted in the case, says Law Times, the Superior Court’s decision is the latest word on the duty of municipalities to keep roads in a reasonable state of repair and the “expected driving capability of the ordinary driver.”

Whether a negligent driver can still pursue a negligence claim, says Orlando, partner with McLeish Orlando LLP who represented the younger sister, “is a question of apportionment after objective analysis of the state of non-repair of the road.”

“Shannon Deering was admittedly negligent. She was over the speed limit on an unfamiliar, hilly road and, accordingly, contributed to the happening of the accident. But that is the second question. The first is: On an objective analysis of the test, did the road represent an unreasonable risk of harm to an ordinary, average user, not to a negligent driver? This includes drivers who are not super drivers,” he says.

Orlando also says he believes that the Deering decision doesn’t create any new tests but reinforces previous decisions. “Municipalities are not held to a standard to make the road safe for negligent drivers. That’s not what the case means,” he explains.

Helmets on Kids Campaign Aims to Head Off Dangerous Trend

As seen on AdvocateDaily.com

Toronto (June 11, 2013) – Hundreds of young cyclists will be safer on Toronto streets, thanks to this year’s Helmets on Kids campaign launched at Blake Street Junior Public School. Helmets have been donated to 500 students, as part of a campaign aimed at stopping a dangerous trend.

 “The reality is that too many kids injured in cycling collisions in Toronto, are not wearing helmets,” said Patrick Brown, critical injury lawyer at McLeish Orlando LLP, organizer of the Toronto Helmets on Kids Campaign, and director of Cycle Toronto. “Studies show that helmets reduce the severity of head injuries, and it just makes sense to have kids wearing helmets.”

  • In 2012, 51 cyclists between the ages of five and 14 were injured in cycling collisions in Toronto. Of those, only 13 were wearing helmets;
  • Between 2006 and 2011, an average of 80 cyclists, between the ages of five and 14, were injured each year in cycling collisions in Toronto;

Toronto’s Helmets on Kids campaign was launched in 2009 by McLeish Orlando LLP. Over the past four years, the campaign has donated helmets to more than 1,500 public school students across Toronto. The Ontario Safety League, Toronto Police, Eastview Boys & Girls Club, Cycle Toronto, the Brain Injury Society of Toronto, the Ontario Trial Lawyers Association and Ward 30 Councillor Paula Fletcher support this year’s campaign. Cycle Solutions has also generously donated its time and services, to provide free bike tune-ups at the event.

“The simple fact is that helmets save lives,” said Brian Patterson, President of the Ontario Safety League. “We’re very proud to support a campaign that helps improve cycling safety for so many young people. We’re urging parents to make sure their kids are wearing helmets.”

Ontario passed a law in 1995, requiring cyclists under the age of 18 to wear a helmet. Parents can also be charged if they knowingly allow their children, who are under 16, to ride without a helmet on a roadway or sidewalk.

 

During this year’s campaign launch, Patrick Brown provided students with safe cycling tips that included the following:

  • Obey traffic signals and the rules of the road;
  • Ensure your bicycle has a bell, as well as reflectors and lights for night use;
  • Always yield to pedestrians, and use your hand signal for lane changes.

 

Watch City News

 

 

McLeish Orlando’s Toronto Helmets on Kids campaign is part of a province-wide Bike Helmets on Kids program started by members of the Ontario Trial Lawyers Association (OTLA) in 2002. Since its first event, held in London, Ontario, more than 19,000 helmets have been distributed to elementary school students. All helmets are purchased with funds donated by OTLA lawyers, their firms and other community sponsors.

In 2013, OTLA Bike Helmets on Kids events have taken place throughout May and June in Ottawa, Toronto, Aurora, Halton Region (Burlington), Peel Region, Barrie, Quinte West (Belleville and Trenton), Sudbury, Windsor, Simcoe County (Midland), and Thunder Bay. These events will help distribute an estimated 4,000 bicycle helmets this year to children in cities and regions across Ontario. For more information, visit www.otla.com.

Keep safety in mind this Victoria Day Weekend

While many Ontarians look forward to Victoria Day weekend as an official summer kick-off, it is also the beginning of trauma season; the time when getting to and from the cottage can be a killer, Toronto critical injury lawyer Dale Orlando writes on Huffington Post.

“The Ontario Ministry of Transportation’s latest statistics show that in 2010, seven people died and more than 300 were hurt in over 1,300 collisions on Ontario roads on the Victoria Day long weekend,” the article says.

“A check with the City of Toronto’s traffic safety unit confirms that in Toronto alone, more than 130 people were hurt in over 400 collisions on this holiday weekend last year.”

Orlando, partner with McLeish Orlando LLP, says impaired driving is a major issue on holiday weekends, and notes it’s worth making the time to take safety precautions.  Watch Video

“If you can avoid the rush-hour cottage country drive, do so; you won’t be sharing the road with those who, no matter how many aggressive lane changes they make, will only arrive about 15 minutes ahead of everyone else who is keeping their cool,” he writes.

“And it may seem obvious, but step away from the cellphone. Put it in your briefcase or trunk and out of your hands so you won’t be tempted to check just one last email.”

When it comes to boating safety, take extra caution on the first time out, advises Orlando.

“Wear a life jacket, and while it’s obvious, leave the alcohol on the dock because it’s just as dangerous as drinking and driving,” he says.

Source: AdvocateDaily.com

Client Testimonial: Meet Dan

In his own words “McLeish Orlando really gave me an independent lifestyle”. Before Dan’s accident he was an athlete, a top student and a musician in school. Listen to Dan as he tells us how the McLeish Orlando team helped him regain his life and independence after his accident.

[youtube]http://www.youtube.com/watch?v=XrTzlXBbL4s[/youtube]