Tag Archives: Toronto

Traffic Calming: Art or Liability?

Written By: Michael Warfe and Cody Malloy, Summer Student

Traffic Calming: Art or Liability?

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

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

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

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

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

Envision the following scenario:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Photo by Fee Gunn

Uribe v Tsandelis, 2021 ONCA 277

Written By: Brandon Pedersen and Sonam Sapra, Summer Student

Uribe v Tsandelis, 2021 ONCA 277

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

ONTARIO SUPERIOR COURT OF JUSTICE

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

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

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

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

ONTARIO COURT OF APPEAL

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

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

The “But For” Test

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

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

[Emphasis added]

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

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

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

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

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

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

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

Conclusion

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

Overcoming the Municipal Limitation Period: Graham v. City of Toronto

Written By: Dale Orlando and Cody Malloy, Summer Student

Overcoming the Municipal Limitation Period:  Graham v. City of Toronto

Municipalities owe a duty of care to individuals to protect them against bodily harm and property damage.  Municipalities have to protect people and their property from a variety of hazards, such as potholes, tree or branch damage, floods, and various other types of hazards.

One of the most common claims against a municipality is negligent road repair.  The drastic change in temperate from cold winters to hot summers creates no shortage of potholes on Toronto roadways.

If I’m a victim of the City of Toronto’s negligent road repair, what’s my next step?  According to the City of Toronto Act section 42(6), in order to advance a claim against the City of Toronto for damages arising out of their negligent road repair, written notice must be given to the city clerk within ten days of the incident.  Failure to provide written notice is a complete bar to bringing an action unless the injured party dies or has a reasonable excuse for not providing notice and the City is not prejudiced in their defence by the failure to provide notice within the specified time.

The recent Superior Court of Ontario decision Graham v. City of Toronto, 2021 ONSC 2278 examines the exceptions to the mandatory 10 day notice period where.  Papageorgiou J. held that a plaintiff was able to file a claim against the City despite filing more than three months after the limitation period had expired. [1]  In Graham, the plaintiff suffered injuries after tripping on a large, deep pothole on a pedestrian crosswalk on January 2, 2018.  The plaintiff did not give the City notice of her claim until March 22, 2018.  The City filed a motion to dismiss the claim since the plaintiff failed to give proper notice under section 42(6) of the City of Toronto Act.

Plaintiff’s reasonable excuse for delay

Papageorgiou J. recognized different factors relevant to a plaintiff’s reasonable excuse, such as the seriousness of the injury and any treatment associated with it, whether the plaintiff was capable of forming the intention to sue the municipality, the length of the delay, and the explanation for the delay. [2]

The plaintiff’s explanation for her delay was given in her affidavit, which stated that she had “never been injured before, was dealing with work and treating my injuries, and had never dealt with anything like this before. I was also unaware of the ten-day notice period and remained undecided as to whether I wanted to make a claim until I realized that my injuries were not resolving.” [3]

Additionally, the plaintiff’s family doctor thought she would get better with physiotherapy, but after a couple of months, the plaintiff realized her injuries were more severe than her family doctor thought. [4] Papageorgiou J. also noted that it took time for the plaintiff to realize her injuries would affect her lifestyle in the form of being unable to ski or golf. [5]

Papageorgiou J. ultimately found the plaintiff’s excuse to be reasonable because she demonstrated that her uncertainty with regards to suing the City stemmed from waiting to see if her injuries would heal. [6]

Prejudice to the City

To overcome this prong of the test, the onus is on the plaintiff to show the City was not prejudiced by the delay. [7] Evidence that is relevant for the plaintiff might include the City investigating the scene despite no notice, the plaintiff taking timely photographs of the scene, and the plaintiff obtaining witness information from the scene of the incident. [8]

In Graham, the plaintiff produced evidence such as retaining a forensic engineer who measured the pothole dimensions from the photographs taken by the plaintiff and the City fixing the pothole shortly after her incident due to an unrelated complaint about the size of the pothole. [9] Additionally, the plaintiff’s three-month delay in providing notice was relatively short in comparison to previous cases that had been permitted to proceed despite significantly longer delays in giving notice.  For these reasons, Papageorgiou J. held that the City was not prejudiced by the plaintiff’s claim.

Ultimately, Graham is a great illustration of the exception to the ten-day notice requirement in the City of Toronto Act.  The Superior Court of Ontario has reaffirmed that victims of municipal non-repair are not strictly held to the notice requirement.

If you are a victim of an injury from a pothole or any other form of municipal non-repair, McLeish Orlando is here to help.  Please contact us for a free consultation, and one of our lawyers will evaluate your claim.

 

[1] Graham v. City of Toronto, 2021 ONSC 2278 at para 48.

[2] Ibid at para 18.

[3] Ibid at para 20.

[4] Ibid at para 22.

[5] Ibid at para 23.

[6] Ibid at paras 34.

[7] Ibid at para 38.

[8] Ibid at para 39.

[9] Ibid at para 43.

[10] Ibid at paras 35 and 44.

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

10 Common Mistakes to Avoid After a Car Accident

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

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

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

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

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

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

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

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

Background

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

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

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

Legal Principles

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

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

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

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

Position of the Parties

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

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

Disposition

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

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

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

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

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

Safety Concerns of Bulky Winter Coats and Seatbelts | McLeish Orlando Personal Injury Lawyers

Take off that bulky winter coat before buckling up! – serious safety concerns for you and your children

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

I recall as a young lawyer, a piece of advice I received from an accident reconstruction engineer that continues to stick in my mind to this day. His advice to me was whenever I was buckling in, to make sure that my winter jacket was not adding unnecessary risk to my commute. He explained a little known but serious danger of how bulky winter jackets prevent seatbelts from fitting snuggly around us, increasing the chances of serious injury.

It turns out the additional layers worn during the winter months prevent a seatbelt from cinching into place and holding us tightly against the seat.  The added bulk of the jacket has the effect of creating a pocket or areas where the seatbelt is actually loose against the body.  In the event of a collision, this added looseness in the seatbelt system can allow you – and especially children – to move around more easily and strike objects inside the car (i.e. a door frames or windows) or worse, escape the seatbelt restraint system altogether and be ejected.

Transport Canada spokesperson Barnary Baines explains that,

Unfortunately during a collision, because there is compressing material, the weight of the child and the force of the collision is going to push that suit down — which is going to make the harness loose … [which] is going make it possible for ejection.

A good rule of thumb, Ms. Baines suggests that the seatbelts should be tight enough that parents cannot fit more than one finger beneath the chest harness.

AAA spokesperson Lilla S. Mason echoed the concerns related to bulky winter jackets rendering seatbelts less effective for children,

Parents should buckle their kids in car seats and seat belts without jackets first, then either tuck a blanket around them or have kids lay their jackets on their laps or wear them backwards.  Seat belts need to be fitted to the passenger, not the jacket.

In order to determine whether a coat results in too loose a car seat harness, Emily A. Thomas of Consumer Reports, suggests adjusting the harness around the child with the jacket on, and again with the jacket off.  If the harness as adjusted for the jacket can be pinched between the thumb and forefinger when the jacket is off, the jacket is too big and should not be worn under the harness.

Seat belts are best worn close to the body and are proven to protect you from brain and spinal cord injuries in the event of a collision.  Consider the following alternatives which will help allow you and your children to ride comfortably, without the dangers posed by winter jackets or snowsuits when buckling up:

  • Take the time to warm up the car before the drive. If the car is fully warmed up, you and your passengers will be able to ride comfortably in the car with a properly tightened seatbelt without wearing a winter jacket.  This will avoid the danger of a loose-fitting seatbelt altogether.
  • For children, consider placing the coat on backwards. Here, the seatbelt is buckled against the child first and then the coat is put on backwards over the child to keep them warm.
  • Keep your coat open and buckle the seatbelt under the coat next to the body. This will allow the seatbelt and particularly the lap and chest belts to fit more snuggly against you or your child.
  • Since children love blankets, consider using a blanket as opposed to a thick jacket in the car. Tucking a blanket over a child, once they have been placed in their seatbelt harness, will help keep them warm while allowing the seatbelt to be properly tightened before heading out.

The next time you are fastening a seatbelt around yourself or a child, take a minute to check that the seatbelt is securely fastened close to the body.  It could save a life.

A Primer on Long Term Disability Claims—Three Important Considerations | McLeish Orlando Personal Injury Lawyers

A Primer on Long Term Disability Claims—Three Important Considerations

Written By: Lindsay Charles and Ryan Marinacci, Student-at-Law

A Primer on Long Term Disability Claims—Three Important Considerations | McLeish Orlando Personal Injury Lawyers

Denials of long-term disability benefits are an important area of personal injury law.  When reading a long term disability insurance policy, it is not always clear that civil actions may be initiated against an insurance company that refuses to pay benefits.  Rather than being a tort claim, this is a contract claim where the plaintiff sues the insurer in order to have the policy enforced.  Here are three important considerations.

Am I entitled to long term disability benefits?

LTD benefits typically are payable after an insured suffers a “total disability.”  A majority of the Supreme Court of Canada held in Paul Revere Life Insurance Co v Sucharov, 1983 CanLII 168 that this test is met when an individual is unable to substantially perform all the duties of his or her employment.  Total physical disability is not required.

Many long term disability policies have a temporal element that modifies the definition of total disability depending on the date of the disability.  Policies will often for the first 24 months define total disability by referring to the inability to perform the essential duties of the insured’s “own occupation.”  After the first 24 months, the language might change and require an inability to perform the essential duties of “any occupation.”  This more stringent test is not as easily met because the individual must be unable to substantially perform all the duties of any employment, not just their actual employment.

How long do I have to start a lawsuit?

In most cases, you will have two years to start a civil action based on an LTD denial.  This is because limitation periods in Ontario are governed by the Limitations Act, 2002, which under s. 4 states that a proceeding shall not be commenced after the second anniversary of the day on which the claim is discovered.

In the LTD context, the claim is “discovered” when the insurer refuses to pay the benefits according to the Divisional Court decision in Western Life Assurance Company v Penttila, 2019 ONSC 14.  In that case, the Court upheld the motion judge’s decision that the claim was not statute-barred because it had not been discovered for the purposes of the Limitations Act until the insurer’s internal appeal mechanism had been exhausted.  The insurer had attempted unsuccessfully to argue that the limitation began to run on the date of the 2013 initial denial letter.  The Court disagreed and found that a reasonable person standing in the plaintiff’s shoes would not have concluded that a legal proceeding would be an appropriate means to seek a remedy—as is required under s. 5(1)(a)(iv) of the Limitations Act—until the internal appeal had concluded in 2015.

What if I was wrongfully denied?

Depending on the insurer’s conduct in adjudicating the claim, further damages may be available in addition to the benefits in arrears.  This stems from the duty of good faith of insurers that is an implied term of insurance contracts (see e.g. Kardaras v Sun Life Assurance Company of Canada, 2020 ONSC 3925 at para 80).  A breach of this duty—where for instance the insurer does not believe the insured or does not acknowledge the seriousness of a medical condition—can lead to damages for mental distress if the degree of suffering is sufficient to warrant compensation.  Aggravated damages may be awarded as an additional head of damages where there is evidence of an independent actionable wrong, per Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30 at para 57.  Finally, punitive damages may be available in exceptional cases where the insurer’s conduct is “malicious, oppressive and high-handed,” and “offends the court’s sense of decency” (Fidler at para 36, citing Hill v Church of Scientology of Toronto, 1995 CanLII 59 (SCC) at para 196).

With these considerations in mind, speaking to an experienced lawyer is critical when long term disability benefits are denied.  Whether benefits are in fact payable and other damages are available is not always clear on the face of the policy.

Lump Sum Settlements from Long-Term Disability Benefits Insurers | McLeish Orlando Personal Injury Lawyers

The State of the Law in Lump Sum Settlements from Long Term Disability Benefits Insurers

Written By: Dale Orlando and Endrita Isaj, Student-at-Law

Lump Sum Settlements from Long-Term Disability Benefits Insurers | McLeish Orlando Personal Injury Lawyers

We are often consulted by people who have either made a claim for long-term disability (LTD) benefits and had their claim denied or who applied for and received LTD benefits for a period of time but have been told by their insurer that they no longer meet the test for entitlement to LTD benefits.

Disputing an insurer’s determination that you do not qualify for LTD benefits is typically accomplished by suing the insurer.  Most people hope to have their LTD dispute resolved by way of full and final payment of past, present, and future payments under the policy.  They want the insurer out of their life once and for all!  Unfortunately, this outcome has traditionally been outside of the ability of the Court to award.   It is for this reason that the vast majority of claims against LTD insurers are settled by way of a lump sum settlement of all past and future entitlement to LTD benefits as opposed to receiving a Judgment at the end of a trial.  Insurers know that claimants prefer a lump sum award as opposed to receiving payments in dribs and drabs over years and, as a result, demand a significant discount off of the present value of the future stream of payments in order to be enticed to make a lump sum payment.  They are in a position to demand a significant discount since, if an agreement can’t be reached for an appropriate lump sum amount, the insurer has two options.  They can choose to simply pay what they should have paid under the policy and reinstate the claimant or they can proceed to trial where their worst-case scenario is a declaration of disability coupled with an Order to pay arrears and interest.  Once the claimant has been voluntarily reinstated or has been declared disabled by a Court, they are entitled to continue to receive LTD payments from the insurer for such period of time that the insurer is satisfied that they continue to meet the definition for disability.  The insurer has an obligation to continue to adjust the file and may well determine at some point in the near future that the claimant no longer meets the test for disability and cuts them off once again.

To date, there is only one case in which a Court ordered a payment of future entitlement to LTD benefits.  In Brito v Canac Kitchens, [2011] ONSC 1011, after 24 years of employment with Canac Kitchens, the plaintiff, Mr. Luis Romero Olguin was dismissed without cause due to restructuring. On dismissal, Mr. Olguin received the statutory minimum of 8 weeks’ notice and 8 weeks of benefits coverage. Mr. Olguin secured alternate employment, but was paid less and was not entitled to long-term disability benefits. Mr. Olguin was diagnosed with cancer 16 months after his dismissal from Canac Kitchens. He underwent several surgeries for his cancer and was deemed disabled on November 6, 2004. He sued Canac Kitchens for wrongful dismissal. The court held that reasonable notice was 22 months and that Mr. Olguin would have been entitled to his benefits during this 22 month notice period. The court concluded that Canac Kitchens would have to pay the full value of the long-term disability benefits that Mr. Olguin would have received to the age of 65, which was valued at close to $200,000, in a lump sum payment. The case went to the Court of Appeal, which upheld the decision of the trial judge to award a lump sum amount for future LTD benefits but set aside the trial judge’s $15,000 award for punitive damages.

Should you have any questions about your LTD claim, contact the experienced lawyers at McLeish Orlando LLP who have the trusted expertise and knowledge to get you the disability benefits you are entitled to.

Changes to the Rules of Civil Procedure for 2021 | McLeish Orlando Personal Injury Lawyers Toronto

Changes to the Rules of Civil Procedure for 2021

Written By: Joseph A. Cescon and Brandon Pedersen, Student-at-Law

Changes to the Rules of Civil Procedure for 2021 | McLeish Orlando Personal Injury Lawyers Toronto

On January 1, 2021, significant changes to the Rules of Civil Procedure will take effect, making permanent many of the temporary measures which the Court put in place to accommodate the issues and challenges associated with the COVID-19 pandemic. The amendments modernize the court system in Ontario and allow for a more convenient and accessible justice system. Essentially, these changes signal the Court’s willingness to embrace the virtual world and advance e-litigation by leaps and bounds.

Major Changes

Email

Changes to the Rules allow for the service of documents by email, other than originating processes, without the need for the parties’ consent or court order. The Rules will be amended to remove reference to service or delivery by “fax”, and lawyers will no longer be required to put their fax number on court documents.  Why fax has remained in common practice for this long we cannot say.

Further, all documents filed with the court must now contain the email addresses for parties or their representatives to ensure that hearing information (such as Zoom log-in details or CaseLines invitations) can be sent to the necessary parties. If filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.

Virtual Commissioning and Electronic Issuing of Documents

The Rules now permit the authentication of documents without the commissioner and deponent being in the physical presence of each other.

New subrules permit any document, including originating processes, to be issued electronically.

Virtual Hearings and CaseLines

Parties seeking a hearing are now provided the option to have it heard in person, by telephone conference, or by video conference. Objections are to be dealt with by case conference (via telephone), and unreasonable objections to a proposed method of hearing may be considered in awarding costs. This also applies to mandatory mediations and oral examinations for discovery.

The Rules have been amended to require the use of CaseLines, the new official electronic document sharing software authorized by the Ministry of the Attorney General.

Further, counsel can receive Orders and Judgments electronically, discontinuing the need to wait for a physical copy at the courthouse. The registrar must enter the issued order by saving a copy of it in electronic format. The new rule allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by good old fashion in-person pickup.

Extensive List

  • The new Rule 1.08 allows a party seeking a hearing or other step in a proceeding to specify the method of the hearing or step (in person, by telephone conference, or by video conference). This doesn’t apply with respect to proceedings in the Court of Appeal, which may be heard as directed by the court, and case conferences, which shall be held by telephone conference unless the court specifies otherwise. Rule 1.08 applies with modifications to mediations and oral examinations for discovery. Objections to a proposed method must be delivered within the earlier of i) 10 days of being served, or ii) 7 days before the hearing or step, and are dealt with through a case conference, where the court takes into consideration factors such as availability of telephone or video conference facilities, the ability to make findings of a witness’ credibility, and the balance of convenience between the parties. The new subrule 57.01 (1) provides that cost consequences may be incurred if a party unreasonably objects to a proceeding by telephone or video conference.
  • The new rule 4.01 indicates that the text and character standards for paper documents apply to electronic documents. The new rule 4.01.1 permits electronic signatures on documents to be signed by the court, a registrar, a judge, or an officer.
  • Clauses 4.02 (3) (f)-(h) are amended to remove any reference to fax numbers and substituting e-mail addresses.
  • The new subrule 4.03 (2) allows the registrar to provide a certified copy of court documents in electronic format.
  • The new subrule 4.05 (1.1) permits any document to be issued electronically, with the date of electronic issuance is the date indicated on the document by the registrar or authorized software.
  • The amended rule 4.05.3 adds specifications about submitting (not filing) documents to the court through CaseLines, the authorized case management software. Filing documents with the court is still required, albeit electronically. CaseLines will act as an electronic alternative to personally delivering materials to the court on the date of a hearing.
  • Clause 4.06 (1) (e) now allows for the electronic commissioning of affidavits in accordance with the Commissioners for Taking Affidavits Act.
  • Rule 4.09 is amended, adding that transcripts are to be provided in electronic format unless the court orders otherwise.
  • The Rule 4.12 allows the court or registrar to provide documents and to communicate by e-mail.
  • Subclause 16.01 (4) (b) (iv) and Clause 16.05 (1) (f) are amended to allow for the service of documents, other than originating processes, by e-mail without the need for the parties’ consent or court order.
  • Subrule 16.09 (6) is revoked and no longer requires parties to prove service by email with a certificate of service.
  • Rule 16.06.2 is amended by adding details on when service of a document by courier becomes effective, which is the second day following the day the courier was given the document, or, if the second day is a holiday, on the next day that is not a holiday.
  • Subrule 37.12.1 (4) is amended to allow a moving party to propose that a motion be heard in writing without the attendance of parties, even if the issues of fact and law are complex.
  • Subrule 51.01 (c) is amended no longer defining the authenticity of a document by reference to a copy of a telegram. The clause adds that a copy of an email is an authentic document.
  • Subrule 59.02 (2) is amended to provide that if an endorsement of an order is made on a separate document, that document may be in electronic format.
  • The new subrules in 59.03 make changes to the preparation, approval, and form of an order.
  • The new rule 59.04 allows for the electronic issuance of orders. An issued order can be provided by email, through CaseLines, or by a pickup.
  • The new rule 59.05 makes changes to how orders are entered and filed, which requires the registrar to enter the issued order by saving a copy of it in electronic format.
  • The new subrules 61.03 (2.1) and 61.03 (3.1) require that if the filing is done electronically, only one copy of a motion record, factum, or transcript needs to be filed.

Other changes:

  • Several subrules in rules 16, 37, and 38, which deal with service and delivery by fax, are amended or revoked.
  • Several subrules are amended to remove reference to the “place of hearing of motions” and substituting with “where motions to be brought”.
  • Several rules no longer assume that participation in person is required.

For a complete list of changes, please review Ontario Regulation 689/20 made under the Courts of Justice Act.

How to Keep Your Dog Safe and Properly Secured in Your Car

Written By: Dale Orlando and Endrita Isaj, Student-at-Law

Keep Your Dog Safe and Properly Secured in Your Car | McLeish Orlando Personal Injury Lawyers

This year, dog ownership was on the rise in Canada as a result of the COVID-19 lockdowns and the transition of many people to working from home who sought the companionship of a furry friend.[1] There are important safety tips for dog owners to keep in mind to ensure a secured car ride for everyone.

The number one concern when travelling with a dog in the car is the safety of the dog, the passengers, and the driver. Car safety features are designed for humans, not pets. This puts dogs at risk of serious head, neck, and back trauma in the event of a high-speed crash, rollover, or collision.[2] A car’s airbags can even be deadly to a pet.[3] Dog seat belts, dog crates, or dog car seats are necessary when travelling with a dog to ensure their protection.

A dog that is not properly restrained can also pose a danger to its owners in the car if there is a sudden stop, swerve, or collision.[4] If a collision occurs at 50 miles per hour, a 10-pound unrestrained dog can generate 500 pounds of projectile force, putting both the dog and its owners at serious risk.[5]

Riding in the car with your German Shepherd unrestrained? Keep in mind that in a 30 mile per hour crash, an 80-pound dog becomes a 2,400-pound flying projectile.[6] It is in everyone’s interest to secure your dog with a pet restraint when driving.

An unrestrained dog can also become the cause of an accident by allowing the driver of the car to be distracted.[7] A survey found that 65% of dog owners engaged in distracted driving behaviours due to their dog roaming free in the car.[8] Distracted drivers are more likely to get into a collision than drivers whose focus is on the road.

Case law has put a duty on dog owners to exercise reasonable skill or care to properly secure their dog in the car if it is foreseeable that the unrestrained dog could create the risk of an accident. In Graham v Hodgkinson, the defendant dog owner was driving in heavy traffic when she described her 16-month old Siberian husky dog jumping forward and hitting her in the back of her head.[9] This caused the driver to hit her head on the steering wheel and rear-end the car in front of her. The Court of Appeal held:

Whether or not the actions of a dog may excuse the actions of the driver of the rear car in situations such as this will depend upon a number of factors including the size, weight, age, temperament and past behaviour of the dog, the degree of control exercised over the dog, the route to be followed by the driver, the speeds at which the driver is expected to drive, the conditions under which the driver would be expected to drive and the amount of traffic he may be expected to encounter. A large, exuberant dog, inadequately controlled, travelling in a car on a busy highway, creates a risk of tragic consequences that are readily foreseeable.[10]

The Court of Appeal ultimately held the defendant dog owner was liable for the accident. The dog owner had failed to take adequate steps to ensure that a large, young, and playful dog was properly secured so as to not interfere with her driving.[11]

What Options do I have for Keeping my Pet Safe and Properly Secured?

  • Dog Harness Seat Belt
  • Dog Car Seats/Booster Seat
  • Kennel/Crates that are securely attached in the car
  • Dog Barriers that are installed between the front and back seats

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

 

[1] Dianna Buckner, CBC News, “COVID-19 has doggy demand soaring and scammers taking advantage

Social Sharing,” October 3, 2020, https://www.cbc.ca/news/business/covid-19-pandemic-pet-demand-1.5748403

[2] John Gilpatrick, PetMD, “Dog Car Seats and Seat Belts: Can They Keep Your Pup Safe?,” January 26, 2018, https://www.petmd.com/dog/care/dog-car-seats-and-seat-belts-can-they-keep-your-pup-safe.

[3] American Automobile Association (AAA), “Pet Passenger Safety,” https://exchange.aaa.com/safety/driving-advice/pet-passenger-safety/#.X8-NVM1KiUl.

[4] John Gilpatrick, PetMD, “Dog Car Seats and Seat Belts: Can They Keep Your Pup Safe?,” January 26, 2018, https://www.petmd.com/dog/care/dog-car-seats-and-seat-belts-can-they-keep-your-pup-safe.

[5] Ibid.

[6] Ibid.

[7] “Keeping Your Dogs Safe in the Car,” https://www.petfriendly.ca/articles/car-safety-for-dogs.php

[8] American Automobile Association (AAA), “Pet Passenger Safety,” https://exchange.aaa.com/safety/driving-advice/pet-passenger-safety/#.X8-NVM1KiUl.

[9]  Graham v Hodgkinson, 1983 CarswellOnt 1350, 40 OR (2d) 697, at para 23.

[10] Ibid at para 26.

[11] Ibid at para 24.

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/

The Importance of Installing Winter Tires | McLeish Orlando Injury Lawyers

The Importance of Installing Winter Tires

Written By: Salvatore Shaw and Endrita Isaj, Student-at-Law

The Importance of Installing Winter Tires | McLeish Orlando Injury Lawyers

As the signs of the familiar Canadian winter start to set in, one of the most important ways to maximize safety on the roads is to install winter tires on your car. Compared to all-season tires, winter tires consistently outperform all-season tires in terms of traction, cornering, and braking in winter conditions.[1] Having winter tires on your car will reduce your chances of a collision, keep you safe in unpredictable weather, and even save some money on your auto insurance policy.

The best time to install winter tires is before the temperature drops below 7 degrees Celsius or before the first snowfall of the season.[2] In Ontario, this means that the best time to put on your winter tires is in October or November. The 7-degree rule also applies when the time comes to remove your winter tires. When the temperature rises above 7 degrees in the springtime, it means that it’s time to put on your all-season or regular tires.[3]

There are numerous benefits of winter tires, as compared to all-season or regular tires. Winter tires are better equipped to handle snow, slush, and low temperatures by their improved traction. The rubber compounds in winter tires stay softer to minus 40 degrees Celsius, which leads to better grip on road surfaces.[4] This is compared to the rubber compounds in all-season tires, which tend to harden in colder temperatures and lose their grip on the road. The materials and technology used in winter tires are better equipped for winter conditions when compared to all-season tires.

Winter tires are lead to increased safety on the roads because they are designed with tread patterns that are designed to push water away.[5] This means that the tires stay in better contact with the road’s surface.

Having winter tires on your car are essential when braking in icy and slippery roads. Winter tires can shorten braking distances up to 25%.[6] In a breaking test done by Tire Rack, a car with winter tires took 18 metres to stop, whereas the car with all-season tires took 27.1 metres to come to a stop.[7] When braking in winter conditions, having winter tires can mean all the difference between coming to a safe stop and getting into a collision.

However, it is always important to keep in mind that you must install matching sets of four winter tires, according to Transport Canada.[8] Failure to put on a set of four winter tires on your car can lead to loss of control of the vehicle and can create a dangerous situation on the road. You should never mix different types of tires on your vehicle.[9]

Beyond the increased safety that winter tires provide, they can also save you a few bucks. Certain insurance companies offer to drivers who install winter tires up to 5% off their auto insurance premium.[10]

Keep these important tips in mind as you get your car ready for the winter and prepare for the trickier conditions of winter driving.

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

 

[1] Traffic Injury Research Foundation, “Winter Tires: A Review of Research on Effectiveness and Use,” https://tirf.ca/wp-content/uploads/2017/01/2012_Winter_Tire_Report_7.pdf at page 31.

[2] Bob Redinger, “Winter tires: when is the best time to get them on your vehicle?” https://www.thestar.com/autos/2016/10/22/winter-tires-when-is-the-best-time-to-get-them-on-your-vehicle.html

[3] Canada Drives, “The Ultimate Guide to Winter Tires in Canada,” https://www.canadadrives.ca/blog/maintenance/are-winter-tires-worth-the-money

[4] Cliff Lafreniere, “The many benefits of installing winter tires” https://www.thestar.com/autos/opinion/2019/10/11/the-many-benefits-of-installing-winter-tires.html

[5] Canada Drives, “The Ultimate Guide to Winter Tires in Canada,” https://www.canadadrives.ca/blog/maintenance/are-winter-tires-worth-the-money

[6] Government of Ontario, “Winter Driving – Learn how to get ready for winter and stay safe of the road,” https://www.ontario.ca/page/winter-driving

[7] Traffic Injury Research Foundation, “Winter Tires: A Review of Research on Effectiveness and Use,” https://tirf.ca/wp-content/uploads/2017/01/2012_Winter_Tire_Report_7.pdf at page 10.

[8] Cliff Lafreniere, “The many benefits of installing winter tires” https://www.thestar.com/autos/opinion/2019/10/11/the-many-benefits-of-installing-winter-tires.html

[9] Government of Ontario, “Winter Driving – Learn how to get ready for winter and stay safe of the road,” https://www.ontario.ca/page/winter-driving

[10] Morrison Insurance, “Ontario Winter Tire Insurance Discount: Drive Safe and Save!” https://www.morisoninsurance.ca/news/winter-tire-insurance-discount/

Fall Prevention Month #BeReadyBeSteady | McLeish Orlando Lawyers

Fall Prevention Month #BeReadyBeSteady

Written By: Nick Todorovic and Endrita Isaj, Student-at-Law

Fall Prevention Month #BeReadyBeSteady | McLeish Orlando Lawyers

This November, McLeish Orlando is proud to support and highlight the important work of Fall Prevention Month. Every year falls are the leading cause of injury among older adults. Approximately 20-30% of Canadian older adults experience at least one fall each year.

Falls also frequently lead to hospitalizations. They account for 85% of injury-related hospitalizations among older adults. It is reported that the average older Canadian adult stays in the hospital for 10 days longer for falls than for any other cause. This can affect the independence of older adults and their ability to return back to normalcy after a fall.

It is not just older adults who are vulnerable to falls – children are also at a risk. Did you know that falls are the most frequent reason for traumatic brain injury in Canadian children under the age of 5? Falls are widespread and prevalent, evidenced by the fact that they are the leading cause for hospital admissions from injuries in children ages 0 to 9.

As the days get shorter and darker, the cold sets in, and we spend more time indoors, it is important to keep in mind some important tips to maximize your safety!

Safety Tips to Prevent Falls

  • Improve lighting around areas where there are stairs, landings or paths
  • Hold on to the handrails at all times or have at least one hand within easy reach of the handrail
  • Install functional handrails on both sides of the stairs and be sure to repair loose or broken handrails
  • Remove loose rugs around your home or fasten them with a slip-resistant backing
  • Do not place loose rugs on steps or at the top or bottom of stairways
  • Don’t rush when using the stairs – take your time when going up and downstairs. Rushing is one of the major cause of falls
  • Remove your reading glasses when using the stairs
  • Avoid carrying objects on stairs such as large laundry baskets that may obstruct your view and require both hands to carry
  • Check prescription medications for side effects such as dizziness, drowsiness, fluctuations in blood pressure, loss of coordination or balance
  • Declutter your home and remove obstructions from walkways, hallways, and stairs
  • Use well-fitting footwear at all times

Safety Tips to Prevent Falls in Children

  • Keep floors clear of clutter and loose carpeting and remove any obstructions around your home
  • Check and inspect toys and play equipment for potential hazards or broken safety features
  • Immediately clean up spills to reduce the risk of your child suffering a fall
  • Use child-lock gates and locks to prevent access to staircases, ledges, and open windows

Keep these important tips in mind for Fall Prevention Month and in the months going forward to reduce the risk of a fall.

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

Sources: Fall Prevention Month Website

https://www.fallpreventionmonth.ca/uploads/2020%20toolkit/promotional%20materials/ReadytoShareposts_2020_EN.pdf

https://www.fallpreventionmonth.ca/uploads/2020%20toolkit/promotional%20materials/fact%20bank/FPM%20Fact%20Bank%202020.pdf

“Preventing Falls on Stairs”, Website: https://assets.cmhc-schl.gc.ca/sf/project/cmhc/pubsandreports/pdf/63637.pdf?rev=3f8a11e5-f56b-4347-aa16-5aa90f5b064e