Tag Archives: Rikin Morzaria

McLeish Orlando Partners Recognized in 2017 Canadian Legal Lexpert® Directory Rankings

Lawyers included in the Canadian Legal Lexpert® Directory are nominated and voted in by their peers based on their skill and expertise within the practice area of personal injury.  Four partners from McLeish Orlando have once again been chosen for inclusion in the list this year.

Congratulations to:

John McLeish

  • Most Frequently Recommended
    • Personal Injury – Represents Plaintiffs
  • Repeatedly Recommended
    • Medical Negligence – Represents Plaintiffs

Dale Orlando

  • Most Frequently Recommended
    • Personal Injury – Represents Plaintiffs
  • Repeatedly Recommended
    • Medical Negligence – Represents Plaintiffs

Patrick Brown

  • Most Frequently Recommended
    • Personal Injury – Represents Plaintiffs

Rikin Morzaria

  • Repeatedly Recommended
    • Personal Injury – Represents Plaintiffs

SCC Upholds Settlement Privilege in Pierringer Agreements

agreement

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

Researching a Google Reader replacement

As seen on AdvocateDaily.com

 

As Google Reader prepares to retire as of July 1, lawyers who use the service to track news in their practice areas are trying new tools, like Flipboard’s social news magazine, recently tested by Toronto critical injury lawyer Rikin Morzaria for a Law Times article on the topic.

“I loved it as a recreational reading tool. It’s somewhat limited using it as a tool to keep up to date with cases and other legal research,” Morzaria, partner with McLeish Orlando LLP, says in the article.

“The visual display is beautiful and it makes it a pleasant experience to read through decisions but it doesn’t let you see at a glance which decisions are new, which ones you’ve already started reading, and which ones you’ve already read.

“I’ve tried Netvibes, too, which is pretty comparable to Google Reader and you can use it offline.”

Google announced its decision to shut down the popular RSS feed reader in March, citing declining users, Law Times reports.

 

McLeish Orlando partners with Bike Month 2013

As seen on AdvocateDaily.com

Toronto critical injury lawyer Rikin Morzaria kicked off Bike Month 2013 this week, joining hundreds of cyclists in riding his bike to work and speaking on behalf of Bike Month lead partner McLeish Orlando at Nathan Phillips Square.

Morzaria, a partner at McLeish Orlando, rides his bike to work every day and spoke to the crowd about safe cycling and encouraging businesses to be smart commuters.

“As a law firm that represents seriously injured people, we often encounter cyclists who have been injured in road collisions,” Morzaria said during the kick-off. “Because we see the impact of these injuries up close, we feel that we have a responsibility to promote safe cycling.  Some of this involves advocating for safe solutions.  For example, Patrick Brown, was instrumental in prompting a coroner’s review of cycling safety.  We are also strong supporters of cycling advocacy organizations such as Cycle Toronto.

“We also believe that cycling is safer when more people are using it as a method of transportation,” he said.  ”This leads to greater awareness of cyclists by motorists, and to reduced hostility.

“We feel that we need to lead by example by encouraging our own employees to cycle to work,” Morzaria told the gathering.  ”We have taken some concrete steps to make this more practical and appealing.  For example, we have made our workplace more cycle friendly by providing secure bike parking and including shower facilities in our retrofitted office space.  We have also regularly participated in cycling events, and purchased memberships to Cycle Toronto for our employees.

“Perhaps most importantly, we lead by example; many of our lawyers, including several partners, regularly commute to work by bicycle.  ‘Helmet head’ won’t make you so self-conscious when you see your boss sporting it,” he said.

The firm also participate in a “Helmets on Kids” program every year, purchasing and handing out approximately 500 helmets each year to children who wouldn’t otherwise have them.

“I’m excited to be part of Bike Month, because I love cycling – I’ve cycled year-round as a commuter for over a decade –  and because I want to be part of the movement that makes cycling accessible to others who haven’t yet started using bikes as a method of transportation,” said Morzaria.

For more information or to see this month’s calendar of biking events, visit McLeish Orlando’s  website or www.bikemonth2013.ca

5 Personal Injury Cases You Should Know (From The Past Year) – con’t Case 5

Double Deductibles: Martin v. Fleming

Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming[1] that where a plaintiff has been involved in two accident and the actions are tried together to facilitate global assessment of damages, plaintiff is subject to one deductible for each claim.  The Court adopted the following reasons of the motion judge:

In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.

The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.

Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.

I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.

The court considered and rejected the “Charter values” approach to interpretation of legislation advanced by the Ontario Trial Lawyers Association on the basis that such an approach could only be adopted where the legislation was ambiguous.  In this case, language was clear and free of ambiguity.

Conclusion

The cases reviewed in this paper are disparate and reflect the broad range of decisions handed down in the past year.  As such, it is not possible to isolate trends or draw any larger lessons from the cases.  They do, however, provide valuable guidance on topics that are frequently the subject of dispute.

To read the previous post click here.

About Rikin Morzaria, Partner, McLeish Orlando LLP

Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.

Rikin Morzaria devotes his practice to representing individuals who have suffered serious or catastrophic personal injuries and families who have lost a loved one in wrongful death cases.

Rikin has written and published more than twenty journal articles and chapters in leading textbooks in the field of civil litigation and personal injury law. He is regularly invited to give lectures to other lawyers and to health professionals about litigation and personal injury law.

Rikin was co-counsel at trial in McNeil v. Bryan, and achieved an $18.4 million judgment, the largest personal injury damages award in Canadian history. He has also represented clients in several precedent-setting cases, including a decision that prevented an insurer from obtaining defence medical examinations that would have delayed a trial of a multi-million dollar action.

Rikin is a member of The Law Society of Upper Canada, Ontario Trial Lawyers’ Association, Canadian Bar Association, Ontario Bar Association, and is currently a Director and the Secretary of the Board of Canadian Lawyers for International Human Rights (CLAIHR).

When not working Rikin enjoys cycling and spending time with his wife and son.

If you have any questions send an email to Rikin at rmorzaria@mcleishorlando.com.



[1] Martin v. Fleming, 2012 ONCA 750.

5 Personal Injury Cases You Should Know (From The Past Year) – con’t Case 4

Unreasonable Finding by Jury re Negligence: El Dali v. Panjalingam

In El Dali v. Panjalingam,[1] the defendant lost control of his car on an icy road, crossed the centre line, and struck the plaintiff, El Dali’s, stopped car.  Following a four-week trial, the jury answered “No” to the following question:

Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?

The plaintiff appealed, arguing that the jury’s verdict on liability was unreasonable and unsupported by evidence.  The plaintiff pointed out that the defendant Panjalingam had led no evidence about why he lost control of his vehicle.

The Court of Appeal allowed the appeal, set aside the jury’s verdict on liability and ordered a new trial on liability alone.  It noted that the defendant had provided no explanation for Panjalingam’s driving or why he had crossed the centre line and struck El Dali’s stopped car.  There was no evidence about his speed or any steps he may have taken to avoid the accident.  The Court, citing Gauthier & Co. v. The King,[2] noted that poor driving conditions alone did not permit the jury to infer that the accident was unavoidable and not caused by driver’s negligence.  Moreover, the fact that the plaintiff was able to maintain control over his own car was some evidence that the road conditions did not point to an unavoidable accident.  Finally, and perhaps most importantly for counsel, the Court found that he defence lawyer’s suggestion in closing argument that the defendant be found to be only 50 per cent at fault, while not binding, strongly suggested that the jury’s verdict was unreasonable.

The implication of the Court’s reference to the defence lawyer’s position in closing argument may be that defence lawyers will be more reticent to take softer positions at trial for fear that they will be held to those positions by appellate courts.

To read the previous post click here.



[1] 2013 ONCA 24

[2] [1945] S.C.R. 143

5 Personal Injury Cases You Should Know (From The Past Year) – con’t Case 3

Duty of Municipality to the “Ordinary” Driver: Fordham and Ferguson

Last year, I reviewed the decision of the Ontario Court of Appeal in Morsi v. Fermar Paving Limited.[1]   Morsi provided a reminder that in municipal road authority cases, it is not enough to establish negligence on the part of the road authority; a plaintiff must also establish that the negligence presents a risk to a driver exercising ordinary care.  In Morsi, the plaintiff drove recklessly at over twice the speed limit along the disputed stretch of road before losing control of his car.  The experts called at trial were in agreement that had Mr. Morsi operated his vehicle at or modestly above the posted speed limit, he would have been able to successfully negotiate the section of the road where he lost control.  Based on this finding, the Court of Appeal held that Mr. Morsi’s reckless conduct absolved the defendants of liability.

Two decisions of significance have been released following Morsi, which provide some guidance as to how trial judges will apply the causation analysis dictated by the Court of Appeal in Morsi.

Fordham v. DuttonDunwich

 Fordham v. Dutton Dunwich[2] arose from a single vehicle collision.  The plaintiff, Andrew Fordham, was 16 years old and held a G2 driver’s licence.  He ran a stop sign on a rural, gravel road at an intersection where yield signs had recently been replaced by 4-way stop signs.  The intersection involved a sharp 8.9 metre offset that a driver would need to prepare for 2.5 to 3 seconds ahead of time.  Because Mr. Fordham did not stop at the intersection, he lost control of his vehicle while attempting to manoeuver through it.  He had a blood alcohol concentration of between 29.6 and 53.6 mg/100 mL at the time of the collision and later pleaded guilty to failing to stop at a stop sign.  Mr. Fordham sued the municipality for failing to warn of the change in road alignment, based on the requirement in the Ontario Traffic Manual that a checkerboard sign be in place if the intersection is considered an offset.  The defendant argued that, (1) the intersection was not an offset and (2) even if it was, it did not pose an unreasonable risk of harm to an ordinary motorist approaching the intersection because of the stop signs; there was no dispute that, had Mr. Fordham stopped at the stop sign, he would have been able to manoeuver safely through the intersection.

Evidence was presented that indicated that it was normal practice for rural drivers to proceed through intersections without stopping when they could see clearly that there was no traffic coming.    The defendant relied heavily on Morsi and argued that Mr. Fordham’s driving was “reckless.”   Madam Justice           Morissette disagreed.  In doing so, she cited the following factors:

  • He was not driving at an excessive speed
  • He had never driven on the road before and had no warning that the alignment of the road was about to change.
  • He  had a visible stop sign but likely saw that there was no oncoming traffic and drove through, not suspecting a change in the alignment of the road.
  • Ordinary rural drivers do not always stop at stop signs.

Justice Morissette also pointed to the following facts regarding the defendant’s conduct and the state of the intersection:

  • The actions of rural drivers who regularly failed to observe regulatory signs was a significant enough issue that it caused numerous complaints to Council and prompted it to replace all yield signs with stop signs.
  • The defendant knew that ordinary rural drivers do not always stop at stop signs.
  • Proper checkerboard signage was inexpensive at $800
  • The defendant’s practice at other similar intersections was to place checkerboard signs in conjunction with stop signs.  This was to protect people from going through the stop sign.
  • The hidden and unknown change in road alignment was obscured from view and constituted a “hidden hazard.”

Justice Morissette concluded that the circumstances of the intersection required more than a simple stop sign to give ordinary rural motorists reasonable notice of a potentially catastrophic hazard ahead.  She accepted the plaintiff’s submission that it was reasonable to infer that Mr. Fordham would have reduced his speed if he had been informed of the change in alignment at the intersection.  She apportioned liability 50/50 between the plaintiff and the defendant.

Ferguson v. Brant (County)

On April 2, 2005, 17 year-old Jesse Ferguson was driving westbound on Scenic Drive in Brant County.  There was snow and slush on the road.  At some point, Scenic Drive curved sharply to Mr. Ferguson’s right.  He failed to navigate that curve.  The road did not have a “sharp curve” sign which was called for by the Ontario Traffic Manual.  Experts for the plaintiff and the defendant disagreed on whether the existing signs warning of a “winding road” and a “y intersection” were sufficient.

Mr. Justice Kent reviewed the applicable authorities, including Morsi and concluded that a municipality owes a duty to keep the roadway in a reasonable standard of repair so that users exercising ordinary care may travel on it safely.  The municipality does not owe such a duty to a negligent driver.  He quoted the following applicable provision from the Ontario Traffic Manual:

In situations where a speed reduction is required to negotiate a curve, it is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.

He held that the signage on the relevant stretch of Scenic Drive was insufficient for the following reasons:

  • It allows drivers to conclude that Scenic Drive and its curves could be safely negotiated the posted speed limit of 60 km/h;
  • they allow drivers to conclude that the accident curve with something less severe than a sharp curve; and
  • it prevented drivers from knowing that a safe speed to navigate the accident was 20 km/h less than the posted speed limit.

Based on the evidence of a forensic engineer and the police officers, Justice Kent concluded that Mr. Ferguson was driving at or slightly above the posted speed limit of 60 km/h.  Given the road conditions, and in particular the fact that the roads were snow-covered, it was incumbent on Mr. Ferguson to drive at a lower speed.  Justice Kent found that Mr. Ferguson was contributorily negligent.  He fixed the defendant’s liability at 55% and the plaintiff’s degree of contributory negligence at 45%.

Both Fordham and Ferguson suggest that trial judges will not expect a driver to strictly comply with the rules of the road in order to find that the driver was exercising ordinary care.  Instead, if plaintiffs can show that they were driving in a manner consistent with the driving habits of other motorists along the same stretch of road, they will be entitled to recover damages if the municipality in question has not met the requisite standard of care.  Indeed, in both cases the plaintiffs were negligent in their operation of their vehicles, but the trial judges nonetheless found that the degree of negligence was in keeping with what one would expect of a driver exercising ordinary care.

To read the previous post click here.


[1] 2011 ONCA 577 (“Morsi”)

[2] 2012 CarswellOnt 150242 (S.C.J.)

5 Personal Injury Cases You Should Know (From The Past Year) – con’t Case 2

OPCF 44R Limitation Period: Roque and Schmitz

Roque v. Pilot Insurance Company

In May of 2012, the Ontario Court of Appeal released its decision in Roque v. Pilot Insurance Company.[1]  In Roque, the Court held that a plaintiff’s limitation period against an underinsured insurer pursuant to an OPCF 44R endorsement begins to run when the plaintiff has enough evidence to give him a “reasonable chance” of persuading a judge that his claims would exceed the minimum limits $200,000.  The Court’s decision was a departure from some previous cases[2] that held that the limitation period only begins to run from the time when the plaintiff knows that the available insurance coverage under a defendant’s policy is less than that available under his or her own policy.

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5 Personal Injury Cases You Should Know (From The Past Year) – 5 Part Blog Series

Everyday this week we will highlight  one of the top 5 Personal Injury Cases you should know about. For personal injury practitioners, many of the most significant decisions of the past year arose in the accident benefits context.  However, there have been a number of negligence decisions that will also have significant implications for personal injury practitioners.  The decisions I have selected for review in this paper deal with diverse aspects of personal injury practice, from limitation periods to minimum maintenance standards to the applicability of statutory conditions to underinsured motorist coverage.  In some instances, the cases will dictate dramatic changes to the approach that both plaintiffs’ counsel and defence counsel should take in applicable circumstances.  In others, the cases provide useful reminders of small steps that counsel must take to successfully advance claims, and ensure they will be upheld on appeal.

Broker’s Negligence: Zefferino v. Meloche Monnex

Following the September 1, 2010 Insurance Act amendments that reduced accident benefits coverage, many plaintiffs’ lawyers considered the possibility of suing brokers who did not advise their clients of the possibility of buying optional benefits to increase coverage.  Zefferino v. Meloche Monnex Insurance Co.[1] is a reminder that in such actions, it is not enough for an insured to prove that an insurance broker breached the applicable standard of care to be successful in an action against that broker.  Rather, plaintiffs must also establish that they likely would have exercised the option to purchase those benefits.

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Decision could lead to increase in unnecessary claims

As seen on AdvocateDaily.com – April 5, 2013

Ontario’s personal injury bar is concerned that a recent Court of Appeal decision could lead to an increase in unnecessary claims against underinsured insurers, Toronto critical injury lawyers Rikin Morzaria and John McLeish write in Lawyers Weekly. Read Lawyers Weekly

In Roque v. Pilot Insurance Co. [2012], the court held that a plaintiff ’s limitation period against an underinsured insurer begins to run when the plaintiff has enough evidence to give him a “reasonable chance” of persuading a judge that his claims would exceed the minimum limits of $200,000, the article says.

“This is a departure from some previous cases — Hampton v. Traders General Insurance Co. [1996] O.J. No. 41, most notably — that held that the limitation period only begins to run from the time when the plaintiff knows that the available insurance coverage under a defendant’s policy is less than that available under his or her own coverage. While the language of OPCF 44 endorsement in question — the “family protection” endorsement that extends to the policyholder the same rights provided to third parties —  arguably left the appeal court little choice, the resulting situation cries out for legislative intervention,” explain Morzaria and McLeish, partners with McLeish Orlando LLP.

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Ontario Court of Appeal Confirms: One Assessment of Damages, Multiple Deductibles

The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week.  The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.

In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:

The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.

Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.

I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.

While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.

Court of Appeal: Trial Judge’s “Unorthodox” Charge to Jury “Got the Job Done”

Deanna Zurek suffered soft tissue injuries in a rear-end collision.  After a trial, a jury awarded her non-pecuniary general damages, damages for past loss of income, and damages for future care costs.  However, it awarded her no damages for future loss of income.  Ms. Zurek appealed, citing the trial judge’s erroneous charge to the jury as the reason for the jury’s failure to award damages for future income loss.

The Court of Appeal released its decision in Zurek v. Ferris on November 5, 2010.  The Court agreed with Ms. Zurek that  many of the trial judge’s comments to the jury  were unnecessary and “not germane to the issues the jury had to decide.”  It characterized the charge as “unorthodox.”  Despite these comments, the Court held that the charge as a whole was fair.  It cited the following examples of the trial judge’s attempts to have the jury resolve the issues using relevant evidence:

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