Posted by McLeish Orlando on May 16, 2012 under safety | 
The Insurance Bureau of Canada and McLeish Orlando have found common ground – on the prevention of collisions. Below are the IBC’s top ten road safety tips as we near long weekend driving:
- Avoid driver distractions. Distracted drivers can be just as impaired as drunk drivers.
- Ensure proper use of seat belts, child car seats and booster seats at all times.
- Obey the rules of the road, respect posted speed limits, the rights of other drivers and drive according to road conditions.
- Understand graduated licensing restrictions. Encourage yourself to learn more about being a safe road user at every age.
- Always have a designated driver. Impaired driving is a serious danger to public safety as alcohol and drugs can reduce a driver’s reaction times and attention to the road.
- If you’re experiencing driver fatigue pull off the road to a safe spot and have a nap as driving while drowsy can be just as fatal as impaired driving.
- Be alert to the presence of all vulnerable road users and operate your vehicle safely around them.
- If you are a medically-at-risk driver, protect yourself and consistently refresh your driving knowledge.
- Share the road with trucks. Be visible and be aware of a motor carrier’s capabilities and limitations.
- Spread the word to friends and family about safer road behaviour and road safety issues. Education starts with you.
(Source: IBC, Transport Canada, Ontario Ministry of Transportation and Canadian Association of Occupational Therapists)
Posted by Patrick Brown on March 21, 2012 under Our Firm |
A recent decision in Ontario will help injured cyclists obtain insurance benefits when they crash due to parked cars.
Marilena DiMarco was riding her bicycle in a town that had closed its main street for a festival. She was forced onto a sidewalk, which was partially blocked by a parked van. DiMarco tried to avoid the van, lost her balance and fell, hitting the van with her hand in the process. She was seeking auto insurance benefits to help her in her recovery. The auto insurer was denying entitlement because the crash was not connected to an automobile
In the decision DiMarco and Chubb Insurance Company, arbitrator Deborah Pressman accepted that the incident arose directly from the “use or operation” of an automobile as defined in the Insurance Act and Statutory Accident Benefits Schedule (SABS). This allowed Ms. Di Marco to claim benefits for her injuries.
Arbitrator Pressman stated “This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco.”
“Therefore, there was a direct and proximate cause between the ‘use or operation’ of the automobile and Ms. DiMarco’s injuries.”
Posted by McLeish Orlando on March 7, 2012 under Accident Benefits, Case Law, Insurance Companies |
There is good news to report to anyone who has unjustifiably been denied access to any statutory accident benefit that they have applied for or has had to deal with a dispute over the determination of catastrophic impairment.
Most people reading this blog will be familiar with the dispute resolution procedure under the Insurance Act. Most people will recognize tht the procedure is badly broken. Before a dispute can proceed to Court or to a binding Arbitration, a mediation must be held at the Financial Services Commission of Ontario. If the mediator is unable to resolve the dispute, only then are you able to proceed to a final determination of the issue. The difficulty is that mediations are being scheduled more than a year from the filing of an application in many instances.
Now for the good news. Justice Sloan ruled on February 8, 2012 in the case of Cornie v. Security National, that section 19 of the Dispute Resolution Practice Code requires FSCO to conduct a mediation within 60 days of the filing of the Application. If FSCO is unable to schedule a hearing within this time frame, the mediation is deemed to have failed and the claimant can proceed to a final determination.
In rejecting the defence arguments in the case, Justice Sloan says “The insurance companies take the position that the accident victims must simply wait. To entertain this argument could mean that an accident victim might have to wait 100, 300 or 500 days for mediation. I find that submission preposterous.”
Posted by Katherine Pattillo on January 30, 2012 under Charity, community, Our Firm |
During the month of December, the staff and lawyers at McLeish Orlando LLP banded together for the great cause of raising money and collecting food for the Daily Bread Food Bank. Every December, a number of Toronto law firms get together, led and organized by Blakes LLP, for the Holiday Law Firm Food Bank Challange to see who can be
raise the most money for the Daily Bread Food Bank.
The Daily Bread Food Bank’s mandate is to fight to end hunger. As Canada’s largest food bank the Daily Bread Food Bank provides food to thousands of individuals and families across Toronto. The annual law firm challenge raised $245,000.00 this year for the Daily Bread Food Bank. For every $500.00 that is raised, a truck is able to deliver 275,000 lbs of food. For every $25 that is raised, a hamper box containing 3 days worth of groceries is provided to a person in need.
This was our first year participating in the Holiday Law Firm Challange and we were out to win and show our strong support for this great cause. With the help of many very generous donors and the overwhleming enthusiasm of the McLeish Orlando staff and lawyers, we were able to raise $37,041.49. Not only was this the largest amount raised on a per capita basis, but this was also the largest amount raised by a Toronto law firm in the challange. We are proud to support such a great organization, and we are already looking forward to next year’s competition to help raise even more money than this year for the Daily Bread Food Bank.
Posted by Dale Orlando on January 18, 2012 under Our Firm |
In October of 2011, the Ontario Court of Appeal ruled in the case of Tut et al. v. RBC General Insurance Company, that s. 6(1) of O. Reg. 340/94 creates an offence of strict liability rather than absolute liability. Under this provision, a driver with a G2 licence is not permitted to drive with a blood alcohol concentration in excess of 0 per cent. The insurer of the vehicle denied coverage, relying on statutory condition 4(1), which provides that an insured shall not operate, or permit any other person to operate, a motor vehicle unless the person is authorized by law to operate it.
The Court accepted that the driver had a reasonable belief that his blood alcohol content was zero on the morning of the accident and this was supported by a witness who saw no evidence that he had alcohol in his system, and by the fact that he had slept for a number of hours before driving. In the case of the owner of the vehicle, the test under statutory condition 4(1) was whether she knew or ought to have known under all the circumstances that her son was not authorized to operate her car because he had a blood alcohol content greater than zero. The insurer had the onus of establishing that that test was met and the C.A. ruled that there was no basis on which to conclude that the insurer did not discharge its onus.
Posted by Rikin Morzaria on December 23, 2011 under Accident Benefits, Case Law |
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.
Read more of this article »
Tags: 55%, Accident Benefits, automobile insurance, CAT impairment, catastrophic impairment, Ontario, Ontario Court of Appeal, personal injury claims, Rikin Morzaria, Statutory Accident Benefits, Whole Person Impairment
Posted by Patrick Brown on November 7, 2011 under Cycling, Our Firm, safety |
On July 1, 1998 W.J. Lucas, Regional Coroner for Toronto, July 1, 1998 recommended Transport Canada investigate the feasibility of requiring “side guards” for large trucks, trailers and buses operated in urban areas to prevent pedestrians and cyclists being run over by the rear wheels in collisions with these large vehicles.
Side guards are a legal requirement in the UK and in Europe to reduce injuries to pedestrians and cyclists. The mechanism of injuries for cyclists and pedestrians involved in slow speed collisions to be a dragging down motion of the victim caused by the large tire’s slow rotation. Side guards are designed to reduce the risk of a cyclist or pedestrian being dragged down under the rear wheels. The lack of side guards has been a contributing factor to multiple deaths to cyclists over the years including two deaths within the core in 1996 (which gave rise to the 1998 recommendation) and the death of Ryan Carriere in 2005.
The Federal Government (Transport Canada) sets vehicle standards for all new vehicles which are manufactured in or imported into Canada. The responsibility for mandating truck or bus safety equipment, including retrofitting, would therefore fall under the jurisdiction of Transport Canada. The responsibility of the Province would include prescribing that side guard protection remain in place and maintained if they were prescribed by the Federal Agency. Read more of this article »
Posted by Rikin Morzaria on October 18, 2011 under Case Law |
It is extremely rare for a judge in Ontario to overrule the decision of a jury.
However, that is precisely what happened in the recent case of Salter v. Hirst. Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.
In the Salter case, George Salter came to the hospital with severe abdominal pain. Over the course of 3 days in hospital, Salter began vomiting and passing blood. Finally, he began to lose feeling in his lower extremities. Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital. After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation. At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.
Salter sued Dr. Hirst for negligence. He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.
After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged. The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.
Dr. Hirst asked the trial judge to overrule the jury’s decision. Read more of this article »
Posted by John McLeish on October 14, 2011 under automobile insurance, Case Law, Insurance Companies |
Since 1968 the Courts have recognized that passengers in a car are under a legal obligation to wear a seatbelt. And if they do not, there are consequences. Take the example of a passenger who was not wearing a seatbelt and is injured in a motor vehicle collision and advances a claim. If the defendant can prove that the injuries would not be as severe if the passenger had been wearing a seatbelt, then the injured passenger will be found to be contributory negligent and the person’s damages will be reduced by the percentage amount of contributory negligence. This is the so-called ‘seatbelt defence’. This defence is used frequently by defence lawyers when circumstances warrant its use. The amount of the unbelted passenger’s contributory negligence is determined by how much worse the passenger’s injuries were because of the failure to buckle up. In the past, Courts have deducted 5% to 25% from an injured passenger’s damages for failure to wear a seatbelt.
How can a lawyer representing an injured passenger who was not belted, reduce or eliminate altogether negative consequences of the seatbelt defence? Read more of this article »
Posted by Patrick Brown on September 29, 2011 under community, News, Our Firm, safety |
Halloween is coming fast. To ensure children are safe while still having fun, Halloween safety tips include:
Safe Costumes
Before buying or making your childs’ costumes, consider the following:
- Avoid Trips and Falls. The UL Safety Guide advises that Halloween costumes should “allow full movement for your kids. Costumes that drag, constrict or drape pose a dangerous hazard, especially at night. Check to ensure that costumes don’t restrict your children’s vision, and instruct them to watch out for tripping hazards, such as cords”.
- Flame Resistant Material: Also check to see if the costume is made of flame-resistant materials. During Halloween many jack o lanterns are lit by candles located near the trick or treat areas.
- Be Seen, Be Safe: Attaching reflective materials to costumes also ensures greater visibility. Make sure each child has a flashlight to help them see and be seen.
- See more at the Under Writers Laboratories Halloween Safety Guide
Jack O Lanterns:
Battery lit lanterns are the best option to keep children safe. If candles are used, the pumpkin should be placed well out of reach of all children.
Candy:
Make sure the kids do not eat the candy until you have had an opportunity of inspecting it at home under the light. Suspicious or open packages should be thrown away.
Road Safety Tips:
A quick reminder of road safety tips should be given to the kids going out on their own or in a group. The Ontario Safety League posts Elmer’s 7 Safety Rules which include looking all ways before you cross the street and when “leaving a curb, don’t run.”
For those driving, reduce your speed and keep a look out!
