Category Archives: Accidents

Accidents

What is Chronic Pain?

Have you ever woken up in the morning to find that you still have neck or back pain, even weeks after first getting hurt? Your doctor may advise you to seek help when pain is chronic, but just what makes your type of pain chronic to begin with? According to the National Institutes of Health, chronic pain refers to any pain that lasts longer than 12 weeks. This type of pain can be brought on by a medical condition, or after you’ve been injured at work or in a car accident.

Some symptoms that can occur with chronic pain include:
• Fatigue
• Lack of Sleep
• Depression
• Anxiety
• Loss of Appetite

It is important to track the progress of your pain, and note when symptoms occur, so that you can work with your medical professional to have it diagnosed and treated as soon as possible. The longer you wait to deal with chronic pain, the more burdensome it can be on your body. If the pain comes as the result of an accident, be sure to also seek legal counsel to explore your options.

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Slip and Fall Accidents

When you injure yourself in a slip and fall accident, you want to be able to get the help you need. With medical bills and job responsibilities looming over your head, it is essential that you get back on your feet as soon as you can. Falls are the leading cause of injury in Canada, and 50 percent of adolescents, 63 percent of seniors, and 35 percent of adults suffer an injury when a fall occurs.

Falls happen at home, in the workplace, and around town. They can result in broken bones, and lead to you or a loved one losing time at work and income that you depend on. If you are involved in or hurt in a fall, it is important to gather evidence at the scene. Take photos of the area where the fall took place and identify any witnesses that may have seen or heard the accident. Be sure to contact a slip and fall lawyer as well, to learn about your legal options moving forward.

slip and fall info graphic

 

What is Depression?

Depression is a condition that affects many people. This illness can cause many side effects, such as despondency and the lack of motivation to get through everyday life. Because of this, depression can affect both your personal life and your work life. Without a proper diagnosis and treatment plan, depression can have serious consequences in your life. Because depression can have such a major impact on a person’s life, you might want to know more about it. A number of things, such as genetics, abuse, and physical trauma, can cause depression. Something as “simple” as a car accident can lead to an injury, which could then result in debilitating depression, with long-term effects. The following infographic gives you more information on what depression is and how it can affect you. If you or someone you know has depression, it is important to seek help from a medical expert.     pag.13TXT

Slips, Trips and Falls

Fall prevention is an important topic that should be a priority to all businesses and companies. Unfortunately, only a portion of fall prevention is addressed by some companies. Many people tend to think fall prevention only has to do with safety on ladders or other high places, but these people don’t know that most falls happen at ground level. Slips, trips and falls cause thousands of injuries every year. These falls are the result of the physical condition of the area and can be caused by inclement weather, poor lighting, obstructions, or slippery surfaces. A company can often be held liable for any injuries that result from these factors. Due to the fact that a company can be held financially responsible for any injuries that occur on the premises, it’s important to make sure you’re covered. If you own your own business or company, be sure to make your property as safe as possible. Remove or reduce all fall hazards, and complete safety inspections on a regular basis. Taking these preventative measures can help keep your employees and customers safe and injury-free. Infographic_Wireframe_Epson_Legal_cc

What to do if You’ve Been in a Serious Motor Vehicle Accident

A car accident is a serious event that can cost the driver a lot of time and money. Car accidents usually result in damage to property and can even result in injury or death. Although car insurance can cover a portion of these costs, many times, you are left with additional costs and expenses that can be difficult to afford. This can include any medical bills down the road, loss of income due to medical treatment and replacing your car with a new one. Being prepared for an accident and the subsequent aftermath can help you decrease your chances of paying out of pocket expenses. Because car accidents are sudden and unexpected, it can be difficult to know what to do when you’ve been in a serious accident. Many times, your body is in shock. This can prevent you from responding to the accident properly and can even mask injuries inflicted during the accident. If possible, familiarize yourself with the necessary steps to take after an accident. If necessary, contact your lawyer and get advice on the next steps to take.

Read some tips on what to do in a car accident

 

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The Effect of Social Media on Insurance Disability Claims

It is no longer a secret that insurance companies are searching for that “smoking gun” on social networking websites to refute injury and disability claims. Indeed, what better refutation is there than a photograph showing the insured engaging in an activity inconsistent with the injury or disability which they allege? However, what few know is that even if the insured’s social networking profile is supposedly private and accessible only to friends or persons in their network, an order for disclosure of the full social networking profile to the insurance company’s lawyers may sometimes be made. Unfortunately, case-law provides no clear guidance on when such an order will be made. In this regard, some cases have indicated that the mere discovery of a social networking profile may be sufficient evidence that relevant information exists for purposes of compelling discovery, while other cases take a much more restrictive approach and only order production where the public areas of the social networking profile provide “hints” that a more extensive search will reveal further evidence. The test in all matters appear to be relevance. Put differently, “there must be evidence that posted photographs are relevant in order to justify an order for production”. (Knox v. Applebaum Holdings Limited, 2013, ONSC 7895, 2013 ONSC 7895 (CanLII) at para 18). Some cases have suggested that social networking profiles are presumptively relevant to claims based on personal injury or disability. Thus, in Leduc v. Roman, 2009 CanLII 6838 (ON SC) at para 32 it was held by the Ontario Superior Court of Justice that: “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.” This approach was also followed in Murphy v. Perger, [2007] OJ No 5511 (SCJ): “It seems reasonable to conclude that there are likely to be relevant photographs on the site for two reasons. First, www.facebook.com is a social networking site where I understand a very large number of photographs are deposited by its audience. Second, given that the public site includes photographs, it seems reasonable to conclude the private site would as well.” In other cases, the courts have taken a “judicial peak” at the information on the social networking site to determine if they are relevant, without allowing the defense. Where the court’s own review revealed no relevant photographs, the court declined production on privacy grounds: • Stewart v. Kempster, 2012 ONSC 7236 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff claimed that she was unable to participate in recreational and social activities to extent that she had before accident. The court reviewed the images (without the defense being able to see them) and held that the photographs did not show the plaintiff engaging in any athletic activity beyond sightseeing. The court further held that a request for production of all content of a private portion of a Facebook account is shockingly intrusive, especially where the claim for production was based on nothing more than speculation. • Garacci v. Ross, 2013 ONSC 5627 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff alleged that she suffered injuries to her left leg and ankle including a fracture of her left ankle. The court conducted a random review of the pictures and determined they were not relevant as they did not reveal “any significant physical activity” by the plaintiff. The relevancy test appears to have also been adopted in cases before the Financial Services Commission of Ontario (FSCO) and no automatic right of access has been found to exist. In this regard, in Rakosi v. State Farm Mutual Automobile Insurance Co. (2012), 2012 CarswellOnt 7066 (F.S.C.O. App.) it was found that Facebook pictures were not prima facie producible, but the test was still one of relevance. In that case, production was ordered where the claimant had posted pictures of himself zip lining on a public Hi5 profile and these pictures were found to be relevant to the issues in dispute. It was found that, “I see no error in extending the inference from unrestricted access documents on one site to restricted access documents on a similar site”. The FSCO has also refused production on at least one (1) occasion. In this regard, in Prete v State Farm Mutual Automobile Co, 2011 CarswellOnt 1019 (WL Can) the FSCO found that the public profile of the claimant contained no relevant photographs and therefore a proper evidentiary basis did not exist to order disclosure of the private profile. It therefore appears that relevance is the guiding criteria in determining whether production will be ordered of social networking profiles in personal injury cases. In determining relevance, regard will be had to factors such as (a) the nature of the claim and alleged injury or disability, (b) the existence of evidence on the public profile which “hints” at relevant information existing on the private profile, and (c) the court or arbitrator’s own review of the private information to determine relevance.

Traumatic Brain Injuries – Assessing the Cost of Future Care

The last six years saw Ontario courts award record-breaking damages to plaintiffs for their traumatic brain injuries. For example, in Marcoccia v Gill [2008]¸ the plaintiff suffered a severe traumatic brain injury to the frontal lobe in a motor vehicle accident. Marcoccia, who was 20 years old at the time of the accident, was left with severe behavioural disabilities and was unable to control emotions or live independently. He required 24/7 care and was rendered incapable of working for the remainder of his natural life. The courts assessed his damages at $16.9 million. The 2008 cases of Gordon v Greig and Morrison v Greig saw two plaintiffs arising from the same accident involving a drunk driver. Gordon suffered a catastrophic brain injury was left without bladder and bowel control, sense of smell, taste and hunger and loss of temperature control and sexual function. Morrison’s spinal injury left him with paraplegia. The court awarded Gordon $11.5 million in damages and Morrison was awarded $12.3 million. More recent cases like Sandhu v Wellington Place Apartments [2008] and MacNeil v Bryan [2009] saw awards up to $18.5 million. Upon first glance of the multi-million dollar awards, it is hard to resist an assumption that we are entering a golden age of plaintiff-sided decision making and over inflated awards. However, none of these cases show a new legal principle, or a change from past reasoning. In this week’s blog entry, we examine the legal principles behind future cost quantifications and what factors you need to consider with your traumatic brain injury lawyer when making a claim. The Principle of Restitutio in Integrum “Full Compensation” The legal principles for the assessment for future care claims can be traced back to a trilogy of Supreme Court of Canada cases. In Andrews v Grand & Toy Alberta Ltd [1978] Dickson J. stated that “full compensation” is the main objective for courts deciding on cases of severe injury. In the context of assessing future care claims, the court in Andrews insisted that the plaintiff should be awarded the most advantageous care possible and could not be forced to mitigate his or her loss by accepting a lesser standard. McLachlin J. in the two subsequent cases of Watkins v Olafson [1989] and Ratych v Bloomer [1990] reaffirmed Dickson J.’s line of reasoning by stating that the plaintiff must be awarded “full and adequate compensation” and “given damages for the full measure of his loss, as best as can be calculated”. In addition, the courts have historically set a low standard of proof when awarding future care claims. In order for the court to conclude that there is a real and substantial risk of a future loss, the plaintiff need only establish that he or she is at risk of a future pecuniary loss. Justice does not require severely injured plaintiffs to just “get by” or “make do” with the cheapest possible care. The Court rejects this approach in support of awards meant to provide a high standard of care. Professor Cooper-Stephenson has described this as “a very high standard of post-accident care” which is meant to anticipate almost any expense that will facilitate physical and mental recovery. As such, the standard of future care for an injured Plaintiff is higher than that normally provided under statutory compensation and rehabilitation schemes. It is important to note that the Court was not prepared to have the level of past care dictate the level of future care. The sole consideration is to attain a level of care that would be most beneficial to promote the physical and mental well-being of the plaintiff. This was evident in Morrison v Greig where Ryan Morrison underwent stem cell surgery in Portugal followed by an intensive rehabilitation program in Michigan to increase his chances of being able to walk again. Glass J approved this alternative form of surgery as a reasonable medical procedure that was not available in Ontario which had a substantial possibility of success and therefore awarded Mr. Morrison the costs associated with the procedure. Factors to Consider when Quantifying Damages for Future Cost of Care 1. Medical Expenses As shown in Morrison v Greig the advancement and availability of new medical procedures is one of the factors that accounts for the rise in court awards. Over the years, both medical professionals and counsel have become more sophisticated in their understanding of serious brain and spinal cord injuries, and as such have developed life care plans to address these impairments. The biggest factor of most life care plans are costs of attendant care that an injured person will need. The availability of volunteer support from friends and family has been rejected as a factor that could diminish the quantum of award. The court had stated in Marcoccia that for the purposes of assessing future claims, the family must be taken out of the picture. As such, it must be assumed that the plaintiff may not continue to live with their parents and be allowed to live in an apartment with attendant care as needed. In other words, damages for future care should be quantified on the basis of what it costs to purchase care in the market place. Brennan v. Singh [1999] encompassed this idea by stressing that injured plaintiffs are entitled to compensation for the value of the services they require, regardless of whether or not services are rendered to them by member of the immediate family. With an emphasis no longer on time, but rather level of care, the value for such services on the market has considerably increased over the years. For example, in MacNeil, the court accepted that the plaintiff required 8 hours a day (ranging anywhere from $24.00/hour to $52.00/hour) of care from a rehabilitation support worker (RSW), who could facilitate her involvement in community and volunteer communities as a part of an ongoing brain injury treatment. This was in addition to the 16 hours a day ($15.00 hour) of basic supervisory care from a personal support worker (PSW). Compounded by an assessed life expectancy RSW fees accounted for almost $4.5 million out of the $15 million cost of future care awarded to MacNeil. 2. Guardianship and Management Fees In addition to cost of medical services, alternative treatments and general inflation, the courts have recognized the cost of guardianship and management fees. Usually, family members of an injured claimant who receives future care cost award in the millions of dollars do not have the expertise on how to properly invest this money for the benefit of the claimant. Therefore, the investment and management of these funds becomes the responsibility of a professional guardian, such as a trust company. This cost is to be calculated after a claimant is awarded a lump-sum at trial. Such sums can be considerable. In Gordon, the fee was more than $520,000 and in MacNeil it reached as high as $830,000. Such fees are intended to cover the fees that the injured person will incur to amend management plans, bring motions to the court for advice and direction, and pass accounts and professionally manage the funds. For example, in Sandhu, a case involving a child falling out of an apartment building window, the court estimated a lifetime of legal fees and management fees to be valued at $400,000. Conclusion With the continued increase in the cost of health care expenses at rates greater than the rate of inflation, we can expect a continuous rise in personal injury awards. To ensure adequate compensation for you and our loves ones it is of the utmost importance that you develop the necessary evidentiary foundation in order to cover future economic losses. At Edson Legal, we will provide the appropriate support through arranging assessments with expert physicians and other health practitioners for each item recommended by a life care planner, along with providing a solid evidentiary foundation to establish the need for management and guardianship fees. With over 30 years of experience, we are here to ensure that you and your loved ones get the best care possible and do not settle for a lesser standard.

How Serious is Your Motor Vehicle Accident?

The effects of motor vehicle accident injuries range in a wide variety and can impact lives in many different ways. Sustained injuries can impair an individual’s ability to work, enjoy life or even perform basic day-to-day functions. The big question here, and one which is most concerning to courts and insurance companies is whether or not the injury suffered by the claimant is serious enough to meet the “threshold” as specified by the amended s.267.5(5) of the Insurance Act.

There has been much said about the implementation of Bill 198 in 2003 and the Ontario government’s mandate to ‘tighten up’ on the definitions of ‘serious and permanent’ injury. At its inception, Bill 198 was speculated to bring in an objective standard to threshold analysis, but as seen in the cases that followed, the court’s interpretation has remained very much a subjective one in line with previous authority. In this week’s blog entry we explore what constitutes a ‘serious impairment’ for victims of motor vehicle accidents and how it affects their ability to make a successful tort claim. “Threshold” and Bill 198 With the political issue of sky-rocketing premiums in the 1990s for motor vehicle insurance, Ontario Legislature has adopted a series of amendments of the Insurance Act to try and reduce the large amount of costly whiplash claims. The intention was to restrict tort claims by weeding out the smaller ones. The denial of compensation in tort accident victims with smaller claims was to be balanced with more generous first party benefits payable without fault. Those amendments gave birth in Ontario to what came to be known as the “no-fault motor vehicle insurance”. Bill 59, which applied to all accidents after November 1, 1996, amended that section to provide that an owner of an automobile is not liable in an action for damages for non-pecuniary loss unless the claimant had sustained “permanent, serious impairment of an important physical, mental or psychological function”.

Despite the anticipation of a much stricter regime by many, much of the Bill 59 amendments have been carried on into Bill 198 which applies to all accidents that have occurred since October 1, 2003. Those amendments did not change the language of the threshold of entitlement to recover non-pecuniary general damages. Rather, Bill 198 demanded a higher evidentiary burden as to whether or not a permanent injury did indeed occur. In order to do so, the Bill went into greater detail than its predecessor by defining which impairments are serious, what functions are important and the meaning of permanent. Thus, if one is to meet the threshold, the following must be demonstrated:

  1. The impairment must substantially interfere with usual activities of daily living, considering the person’s age.
  2. To be an important function, the function must be important to the usual activities of daily living, considering the persons age.
  3. For the impairment to be permanent, it must have been continuous since the incident, and must, based on the medical evidence, be expected not to substantially improve as well as continue to meet the criteria in paragraph 1, and the nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Ontario Court’s Interpretation of the Bill 198 Threshold Despite the amendments, the Court of Appeal case of Meyer v Bright (1993) (a Bill 59 ruling) still remains the lens by which courts gauge the threshold. It can be argued that Bill 198 was little more than a codification of the factors regarding permanency, impairment and its serious effect on bodily function expressed in Meyer. The changes that did occur came in the form of more framed definitions of the terms and prescription of the evidence required to meet the threshold. The investigation now required that an injured person prove to the court that the impairment complained of substantially interferes with his or her ability to continue with their former employment or training despite reasonable attempts at accommodation and that the impairment has been continuous since the accident. The Plaintiff is also required to convince the court that based on medical evidence, the impairment is expected to continue despite reasonable treatment, and that such an impairment would be expected for others in “similar circumstances.” It has been argued that this last part of the test introduces an objective component not present in Meyer, however, review of some of the Bill’s jurisprudence suggests that the Courts have been reluctant to import an objective analysis in considering this issue (see cases below). In terms of “importance” of the impairment to the individual, the Court of Appeal in Meyer directed that the term must be considered in the context of the Plaintiff as a whole.

For the impairment to be “important” it must play a major role in the health and well-being of that person. Bill 198 amendments added a functional component to the analysis and mandated that in order to satisfy the “important” requirement the Plaintiff must suffer an impairment of a function which is necessary for the Plaintiff in order to allow him or her to perform the “essential” tasks of regular employment, training, care or well being or important to the usual activities of daily life. With regards to “seriousness” the Ontario Court of Appeal held that the question to be considered is whether the impairment is serious to the person in issue, taking into account his or her unique characteristics and held that as a general proposition. Thus, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual daily activities or continue employment. Determining the seriousness of an injury is a subjective exercise to which the authority in Meyer still remains instrumental. In Meyer, the court made an illustration through a hypothetical example of two violinists who have lost their small left finger.

The first, an amateur violinist who plays for his own amusement, might not have his life seriously impaired, nor will the quality of his performance seriously suffer. On the other hand, for a highly skilled professional concert violinist, the impairment may detrimentally affect performance to such a degree that the person can no longer attain the level of competence necessary to the continuance of a professional career. In such cases, the court may find the impairment to be a serious one. Yet again if the impairment was sustained by the same person but only after he or she had retired and decided not to play the violin anymore, a court may consider the impairment not to be a serious one. Thus, what makes an injury serious is as unique as the victims of motor vehicle accidents. For further illustration we turn to some recent cases of injuries sustained after October 1, 2003. Guerrero v Fakuda (2008) Guerrero was the first case since the implementation of Bill 198 that successfully crossed the threshold. Here the plaintiff had suffered whiplash injuries which left her with pain in her upper and lower back. Her whiplash injury had persisted after the accident, consistent throughout the hearings. Consequently, she was unable to work full-time. In his decision, Justice Little wrote that ‘pain and its degree of severity are subjective and can exist without any objective finding – calling an expert to say that no objective finding equals no point is no longer acceptable…that same expert will often treat the pain that exists even though it is without objective finding’.

The Plaintiff was only able to perform part-time work and suffered lifestyle restrictions, which detrimentally altered her ability to work and her enjoyment of life, and as such met the threshold. Sherman v Guckelsberger (2008) Plaintiff sustained soft tissue injuries, and complained of headaches, and neck pain, as well as numbness and tingling in the little and ring fingers of her right hand. She worked as an office administrator for a family physician, working eight hours per day. Within weeks of the accident, she returned to work on a part-time basis, followed by full-time soon after. After two years of full-time work the plaintiff had reduced her hours of work, still feeling the effects of her injuries. However, she still remained active outside of work, regularly going to the gym and enjoyed camping. Justice Milanetti, taking in the full context of the effects of the injuries on the Plaintiff’s life determined that the ongoing pain and discomfort was not sufficient to get her over the threshold, given that the “increasing specificity of the no fault legislation”. Sabourin v Dominion of Canada General Insurance Company (2009) In Sabourin another case of whiplash injury, soft tissue damage was caused and limited the range of motion in the plaintiff’s neck and shoulders.

The Plaintiff claimed that she had difficulty taking care of herself and maintaining hygiene, communication in terms of speaking, reading or writing and physical activities such as standing, sitting, walking, driving/riding in a vehicle. The court examined injuries from two points of view. First by asking the question whether or not the plaintiff was able to prove on the balance of probabilities as per s.4.2(1)1(iii) of Bill 198 that she was experiencing pain that substantially interfered with most of her activities of daily living. Second, was the impact of the pain and discomfort significantly reducing her quality of life? With regards to the former, the plaintiff failed to satisfy the court that most of her life was hindered by the injuries, but was successful in earning $40,000 in general damages with respect to the latter. Conclusion While Bill 198 has specified some additional evidentiary hurdles when it comes to assessing the injury threshold, the current and past case law maintains a subjective approach. Furthermore, unless there is a decision that goes past the appellate level, Meyer will likely continue to hold weight in court’s interpretation of facts. The type of injury, current physical capacity, work status, age and lifestyle can all factor in when embarking on a tort claim. If you are unsure whether or not your injuries meet the threshold, consult our motor vehicle injury experts at Edson Legal.

Knowing Who To Make A Slip and Fall Injury Claim Against

With three major snowstorms already ­this winter and perhaps even more to come, Torontonians know all too well the kind of hazards that melting snow and dropping temperatures can bring. A night out at the restaurant, or a walk to the grocery store can lead to a slip and fall incident and unforeseen lasting injuries. However, knowing who to make a claim against for your injuries is not always an obvious exercise and requires a thorough analysis of the current statutory provisions and common law precedents. Depending on where one sustains their injury, there exist various thresholds of liability that we must consider if a claim is to be successful. In this blog entry, we explore the facts and law as to when a duty of care can arise within the context of private property owners, municipal property, or mixed public and private spaces. Liability of Private Property Owners According to section 3(1) of the Occupiers Liability Act “an occupier of premises owes 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“. This view was reinforced in Waldick v Malcom [1991] when the Supreme Court of Canada expressed that the clear intention of the Act was to “replace, refine and harmonize the common law duty of care owed by occupiers to visitors on those premises”. The court went on to say that the occupier had to make the premises reasonably safe, even if the plaintiff had knowledge of the hazard and its potential dangers. But what exactly entails ‘reasonably safe’ precautions? While circumstances often vary from case to case, Ontario courts have opted for the objective standard with the phrase “system of maintenance” to interpret the facts. In Fragomeni v 108048 Ontario Corp [2006], an elderly man slipped and fell in the parking lot of a funeral home after attending a funeral. The snow from the morning along with the cold conditions created a hazard on the funeral home’s property. While the funeral home contracted its snow removal, the court was quick to find that in spite of their intentions, there was no clear procedure in place between the funeral home and the snow removal company to determine who was responsible for deciding to salt the parking lot. Fragomeni tells us that there must be a ‘system of maintenance’ present if the occupier is to avoid liability, however as Flentje v Nichols [2006] goes on to show us, the mere presence of a system is not enough. In Flentje, a 24-year-old woman slipped and fell in the restaurant parking lot of the defendant’s premises, suffering a broken leg that required two surgeries. The parking lot was snow-covered and slippery at the time of the accident and as the plaintiff alleged, the restaurant was found negligent in their failure to implement a reasonable system of snow and ice removal to ensure reasonably safe premises. The Court allowed the plaintiff’s action, and eventually came to the decision that while the restaurant owner had normally been diligent and conscientious in maintaining the parking lot on his own, his system of maintenance was haphazard and not reasonable for a commercial establishment at the time of the plaintiff’s accident. The Court went on to add that even if the restaurant owner had a reasonable maintenance system in place at the time of the slip and fall, it was not functioning appropriately on the evening of the plaintiff’s accident. The issue of reasonable safety with regards to private property owners tells us that in order for liability to occur, there must first be a ‘system of maintenance’ and second, it has to have been working at the time of the accident. Contacting your Toronto slip and fall lawyer will give you further insight into whether or not you may have a successful claim with regards to this. However, sometimes the failure of a system of maintenance does not necessarily help us determine who stands to be liable. Walkways, storefronts, access points from public to private property often muddy the lines between municipal and private property. Liability for Mixed Private Property and Municipal Sidewalks Bongiardina v York (Regional Municipality) [2000] is the leading case on the issue of the duty of care of owners of private property for slip and fall accidents taking place on adjacent municipal sidewalks. In this case, the Ontario Court of Appeal determined that there is normally no duty of care on a private property owner for a slip and fall accident taking place on adjacent municipal property. Even if, as were the facts of this case, there is a by-law placing an onus on the home owner to clear the path, no breach of duty can be found and will amount to little more than a fine. However, there are two major exceptions found in section 1 of Occupiers Liability Act and in the common law tort of nuisance. The Occupiers Liability Act section 1 stipulates that a party will be found to be an occupier where the person has “physical possession of the premises”; “responsibility for and control over the condition of the premises”; “responsibility for control over the activities carried on in the premises”; or “control over persons allowed to enter the premises”. This means, that in order to be identified as an occupier of municipal property, one must go out of their way to exercise control over the sidewalk in question (typically retail storefronts) or must assume exclusive (or near exclusive control) over the people entering on or off the sidewalk (clubs, bars, sport arenas). First, the case of Bogoroch v Toronto (City) (1991) is a classic example of how private property owner may be deemed to have physical possession of neighboring municipal property so as to make themselves an occupier for the purposes of the statute. The facts of the case describe a retailer that had readily placed signs and materials on the sidewalk to induce people to come in as they walked along. The store had even obtained a permit to use a certain portion of the sidewalk for such a purpose. The main issue of the case was whether the store was an occupier with respect to the entire sidewalk, or whether its duty was limited to the area under the permit. The Court decided that store liability applied to the entire sidewalk as the sidewalk was often used as an extension of the store itself, thus fulfilling the requirement of physical possession, as per section 1 of the Occupiers Liability Act. The permit was also instrumental in the Court reaching its decision, but it alone is not indicative of an intent to control. Some active exploitation of the sidewalk beyond mere incidental use is typically needed. Second, the case of Moody v. Toronto (City) (1996) facts included a municipal sidewalk used exclusively by patrons entering the Rogers Centre for sporting events. Based on this near-exclusive use, the fact that a number of Rogers Centre patrons had no alternative but to use the walkway and the fact that the number of people at the beginning and end of an event would make it impossible for a patron to watch for hazards on the walkway. Here, the court held that the Rogers Centre had “sufficient control over patrons allowed to enter the walkway” to be classified as an occupier. To differentiate with Bogoroch here the issue was not that the defendant had physical possession of the sidewalk, but rather that it exercised “control over patrons” and as such fell under the fourth definition of occupier as stipulated by the Occupiers Liability Act. Whether a case falls under the Bogoroch or Moody type fact pattern, the key ingredient to finding that a private property owner is an occupier of the neighboring municipal property would appear to be the purpose for which the property-owner uses the sidewalks. If it is more than just a route used for commuting, then it is unlikely that a duty can be established, but if it can be considered an extension, through owner’s exploitation of municipal property, and almost exclusively for the benefit of the owner, then liability can follow. Lastly, if neither of the fact patterns are present and a duty cannot be established under the Occupiers Liability Act, it may be prudent to turn to the common law tort of nuisance as first established in Rylands v. Fletcher (1868). The principles in this English case have been used and applied with some imagination by the courts of Canada. In Brazzoni v. Timmins (City) (1992) the neighboring TD Bank was found liable for a slip and fall accident on a sidewalk touching its property on the basis that water runoff from melting now on its roof and parking lot ran across the sidewalk creating a dangerous situation that the court concluded it knew or ought to have known was a hazard to pedestrians using the sidewalk. Applying an almost strict liability approach to the matter, the Ontario Court of Appeal found that negligence is not a pre-requisite for finding liability based on a nuisance of this type. However, issues of knowledge and foreseeability in cases that followed such as Simmons v. Etobicoke (City) (2002) have challenged the Ontario Court of Appeals strict liability approach in Brazzoni, and as such has caused a bit of a stir when it comes to attributing liability to runoff water. It’s best to consult your expert slip and fall Toronto lawyer to see where your case stands. Municipal Property Pursuant to section 44(9) of the Municipal Act 2001, the hurdle for a plaintiff trying to sue a municipality is quite high. Generally, the municipality is not liable for a personal injury caused by snow or ice on a sidewalk unless it was through gross negligence. The test for gross negligence can be found in the case of Cerilli v Ottawa [2006], where the court asks three things.

  1. Did the city have actual knowledge of the unsafe conditions?
  2. Can knowledge of the unsafe condition reasonably be imputed to the city?
  3. Did the city have a reasonable opportunity to remedy the unsafe condition?

This means that the determination of gross negligence is in fact highly sensitive and easily countered by good faith and effort to enforce a system of maintenance. Cases that were successful in finding gross negligence share a fact pattern in which the city has become aware of a danger (over a period of several days) and did nothing to remedy it. Particularly where there has been a blatant disregard for maintenance standards/programs and will be exacerbated where the area of ice/snow accumulation is located in a high traffic pedestrian area, such as in a city’s downtown core. With such a high threshold to meet, plaintiffs and defendants turn to co-defendants (typically private owners) or nuisance torts to seek compensation for their injuries. Consulting your expert Toronto slip and fall lawyer for the appropriate strategy in municipal cases is key to a successful claim.

Car Accidents Can Be Costly–And Deadly

Car accidents can cause severe damage to both automobiles and people. Beyond medical expenses that can begin piling up for someone who has been seriously injured in an accident, other expenses including lost wages from missed work or care expenses for someone to watch children while their parents are in the hospital can add up quickly. In the case of fatal accidents, funeral expenses and court fees to settle the estate can deeply impact relatives who are grieving, adding to the already-terrible situation. Massive pileups like the one experienced recently in Detroit demonstrate how catastrophic these accidents can be, and how complicated things can become. Two Ontario children, a 7-year-old boy and a 9-year-old girl, were killed on January 31st in a chain reaction that involved more than 24 vehicles in total. The children’s parents were among the many who were injured. In the case of the accident in Michigan, bad weather conditions were possibly the largest contributor. Regardless of the reason, these children’s parents will have many expenses and heartaches to face in the coming days. This large accident may not be traceable to one single driver, but many crashes involving large numbers of vehicles are. Our readers here at Edson Legal may be wondering what can be done to help ease their financial pain after being seriously injured. In situations such as serious motor vehicle accidents, individuals who are facing unsurmountable expenses may have avenues they can pursue to receive reimbursement so they can continue living their lives without going too deeply into debt. Benefits for things including lost income, funeral costs, attendant care charges, and other expenses may be available. The best course of action people who have been injured can take is to get informed as early as possible after the accident. Being informed can help individuals understand how to navigate the investigation process to make sure the at-fault party is determined quickly. Learning about the different types of benefits available, and what is needed to receive compensation in their situations can help them get on track to leading as normal a life as possible, as quickly as possible. Read More:

http://edsonlegal.com/our-expertise/serious-motor-vehicle-injury/

http://www.torontosun.com/2013/01/31/2-ontario-kids-killed-in-detroit-pileu