The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
While many Ontarians look forward to Victoria Day weekend as an official summer kick-off, it is also the beginning of trauma season; the time when getting to and from the cottage can be a killer, Toronto critical injury lawyer Dale Orlando writes on Huffington Post.
“The Ontario Ministry of Transportation’s latest statistics show that in 2010, seven people died and more than 300 were hurt in over 1,300 collisions on Ontario roads on the Victoria Day long weekend,” the article says.
“A check with the City of Toronto’s traffic safety unit confirms that in Toronto alone, more than 130 people were hurt in over 400 collisions on this holiday weekend last year.”
Orlando, partner with McLeish Orlando LLP, says impaired driving is a major issue on holiday weekends, and notes it’s worth making the time to take safety precautions. Watch Video
“If you can avoid the rush-hour cottage country drive, do so; you won’t be sharing the road with those who, no matter how many aggressive lane changes they make, will only arrive about 15 minutes ahead of everyone else who is keeping their cool,” he writes.
“And it may seem obvious, but step away from the cellphone. Put it in your briefcase or trunk and out of your hands so you won’t be tempted to check just one last email.”
When it comes to boating safety, take extra caution on the first time out, advises Orlando.
“Wear a life jacket, and while it’s obvious, leave the alcohol on the dock because it’s just as dangerous as drinking and driving,” he says.
Double Deductibles: Martin v. Fleming
Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming that where a plaintiff has been involved in two accident and the actions are tried together to facilitate global assessment of damages, plaintiff is subject to one deductible for each claim. The Court adopted the following reasons of the motion judge:
In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
The court considered and rejected the “Charter values” approach to interpretation of legislation advanced by the Ontario Trial Lawyers Association on the basis that such an approach could only be adopted where the legislation was ambiguous. In this case, language was clear and free of ambiguity.
The cases reviewed in this paper are disparate and reflect the broad range of decisions handed down in the past year. As such, it is not possible to isolate trends or draw any larger lessons from the cases. They do, however, provide valuable guidance on topics that are frequently the subject of dispute.
To read the previous post click here.
About Rikin Morzaria, Partner, McLeish Orlando LLP
Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.
Rikin Morzaria devotes his practice to representing individuals who have suffered serious or catastrophic personal injuries and families who have lost a loved one in wrongful death cases.
Rikin has written and published more than twenty journal articles and chapters in leading textbooks in the field of civil litigation and personal injury law. He is regularly invited to give lectures to other lawyers and to health professionals about litigation and personal injury law.
Rikin was co-counsel at trial in McNeil v. Bryan, and achieved an $18.4 million judgment, the largest personal injury damages award in Canadian history. He has also represented clients in several precedent-setting cases, including a decision that prevented an insurer from obtaining defence medical examinations that would have delayed a trial of a multi-million dollar action.
Rikin is a member of The Law Society of Upper Canada, Ontario Trial Lawyers’ Association, Canadian Bar Association, Ontario Bar Association, and is currently a Director and the Secretary of the Board of Canadian Lawyers for International Human Rights (CLAIHR).
When not working Rikin enjoys cycling and spending time with his wife and son.
If you have any questions send an email to Rikin at firstname.lastname@example.org.
 Martin v. Fleming, 2012 ONCA 750.
Unreasonable Finding by Jury re Negligence: El Dali v. Panjalingam
In El Dali v. Panjalingam, the defendant lost control of his car on an icy road, crossed the centre line, and struck the plaintiff, El Dali’s, stopped car. Following a four-week trial, the jury answered “No” to the following question:
Was there any negligence on the part of the defendant, Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident on December 11, 2005?
The plaintiff appealed, arguing that the jury’s verdict on liability was unreasonable and unsupported by evidence. The plaintiff pointed out that the defendant Panjalingam had led no evidence about why he lost control of his vehicle.
The Court of Appeal allowed the appeal, set aside the jury’s verdict on liability and ordered a new trial on liability alone. It noted that the defendant had provided no explanation for Panjalingam’s driving or why he had crossed the centre line and struck El Dali’s stopped car. There was no evidence about his speed or any steps he may have taken to avoid the accident. The Court, citing Gauthier & Co. v. The King, noted that poor driving conditions alone did not permit the jury to infer that the accident was unavoidable and not caused by driver’s negligence. Moreover, the fact that the plaintiff was able to maintain control over his own car was some evidence that the road conditions did not point to an unavoidable accident. Finally, and perhaps most importantly for counsel, the Court found that he defence lawyer’s suggestion in closing argument that the defendant be found to be only 50 per cent at fault, while not binding, strongly suggested that the jury’s verdict was unreasonable.
The implication of the Court’s reference to the defence lawyer’s position in closing argument may be that defence lawyers will be more reticent to take softer positions at trial for fear that they will be held to those positions by appellate courts.
An auto insurance industry review of catastrophic impairment provisions is unnecessary at this time, Toronto critical injury lawyer Dale Orlando says in Law Times.
The provincial government has reopened renewed consideration of the provisions by starting stakeholder consultations not restricted to medical experts as was the case with last year’s review by the Financial Services Commission of Ontario, the article says.
“Where’s the fire?” Orlando, partner with McLeish Orlando LLP, asks in the report.
“They’re searching for a solution to a problem that simply doesn’t exist. Around one per cent of claims are deemed catastrophic. On a claim-by-claim basis, it’s a lot of money, but in the scheme of things, there’s no evidence that there’s been an upswing in costs.”
The Law Times article also discusses an Ontario Trial Lawyers Association advisory sent out in March that alleged the Insurance Bureau of Canada is misinforming officials about insurance premiums, claims costs, and profits.
The Insurance Bureau of Canada responded by publishing an actuarial analysis from JF Cheng and Partners on March 28, and then a KPMG LLP-authored analysis of Ontario private passenger automobile insurance results for 2008-12, the article says.
Duty of Municipality to the “Ordinary” Driver: Fordham and Ferguson
Last year, I reviewed the decision of the Ontario Court of Appeal in Morsi v. Fermar Paving Limited. Morsi provided a reminder that in municipal road authority cases, it is not enough to establish negligence on the part of the road authority; a plaintiff must also establish that the negligence presents a risk to a driver exercising ordinary care. In Morsi, the plaintiff drove recklessly at over twice the speed limit along the disputed stretch of road before losing control of his car. The experts called at trial were in agreement that had Mr. Morsi operated his vehicle at or modestly above the posted speed limit, he would have been able to successfully negotiate the section of the road where he lost control. Based on this finding, the Court of Appeal held that Mr. Morsi’s reckless conduct absolved the defendants of liability.
Two decisions of significance have been released following Morsi, which provide some guidance as to how trial judges will apply the causation analysis dictated by the Court of Appeal in Morsi.
Fordham v. Dutton-Dunwich
Fordham v. Dutton Dunwich arose from a single vehicle collision. The plaintiff, Andrew Fordham, was 16 years old and held a G2 driver’s licence. He ran a stop sign on a rural, gravel road at an intersection where yield signs had recently been replaced by 4-way stop signs. The intersection involved a sharp 8.9 metre offset that a driver would need to prepare for 2.5 to 3 seconds ahead of time. Because Mr. Fordham did not stop at the intersection, he lost control of his vehicle while attempting to manoeuver through it. He had a blood alcohol concentration of between 29.6 and 53.6 mg/100 mL at the time of the collision and later pleaded guilty to failing to stop at a stop sign. Mr. Fordham sued the municipality for failing to warn of the change in road alignment, based on the requirement in the Ontario Traffic Manual that a checkerboard sign be in place if the intersection is considered an offset. The defendant argued that, (1) the intersection was not an offset and (2) even if it was, it did not pose an unreasonable risk of harm to an ordinary motorist approaching the intersection because of the stop signs; there was no dispute that, had Mr. Fordham stopped at the stop sign, he would have been able to manoeuver safely through the intersection.
Evidence was presented that indicated that it was normal practice for rural drivers to proceed through intersections without stopping when they could see clearly that there was no traffic coming. The defendant relied heavily on Morsi and argued that Mr. Fordham’s driving was “reckless.” Madam Justice Morissette disagreed. In doing so, she cited the following factors:
- He was not driving at an excessive speed
- He had never driven on the road before and had no warning that the alignment of the road was about to change.
- He had a visible stop sign but likely saw that there was no oncoming traffic and drove through, not suspecting a change in the alignment of the road.
- Ordinary rural drivers do not always stop at stop signs.
Justice Morissette also pointed to the following facts regarding the defendant’s conduct and the state of the intersection:
- The actions of rural drivers who regularly failed to observe regulatory signs was a significant enough issue that it caused numerous complaints to Council and prompted it to replace all yield signs with stop signs.
- The defendant knew that ordinary rural drivers do not always stop at stop signs.
- Proper checkerboard signage was inexpensive at $800
- The defendant’s practice at other similar intersections was to place checkerboard signs in conjunction with stop signs. This was to protect people from going through the stop sign.
- The hidden and unknown change in road alignment was obscured from view and constituted a “hidden hazard.”
Justice Morissette concluded that the circumstances of the intersection required more than a simple stop sign to give ordinary rural motorists reasonable notice of a potentially catastrophic hazard ahead. She accepted the plaintiff’s submission that it was reasonable to infer that Mr. Fordham would have reduced his speed if he had been informed of the change in alignment at the intersection. She apportioned liability 50/50 between the plaintiff and the defendant.
Ferguson v. Brant (County)
On April 2, 2005, 17 year-old Jesse Ferguson was driving westbound on Scenic Drive in Brant County. There was snow and slush on the road. At some point, Scenic Drive curved sharply to Mr. Ferguson’s right. He failed to navigate that curve. The road did not have a “sharp curve” sign which was called for by the Ontario Traffic Manual. Experts for the plaintiff and the defendant disagreed on whether the existing signs warning of a “winding road” and a “y intersection” were sufficient.
Mr. Justice Kent reviewed the applicable authorities, including Morsi and concluded that a municipality owes a duty to keep the roadway in a reasonable standard of repair so that users exercising ordinary care may travel on it safely. The municipality does not owe such a duty to a negligent driver. He quoted the following applicable provision from the Ontario Traffic Manual:
In situations where a speed reduction is required to negotiate a curve, it is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.
He held that the signage on the relevant stretch of Scenic Drive was insufficient for the following reasons:
- It allows drivers to conclude that Scenic Drive and its curves could be safely negotiated the posted speed limit of 60 km/h;
- they allow drivers to conclude that the accident curve with something less severe than a sharp curve; and
- it prevented drivers from knowing that a safe speed to navigate the accident was 20 km/h less than the posted speed limit.
Based on the evidence of a forensic engineer and the police officers, Justice Kent concluded that Mr. Ferguson was driving at or slightly above the posted speed limit of 60 km/h. Given the road conditions, and in particular the fact that the roads were snow-covered, it was incumbent on Mr. Ferguson to drive at a lower speed. Justice Kent found that Mr. Ferguson was contributorily negligent. He fixed the defendant’s liability at 55% and the plaintiff’s degree of contributory negligence at 45%.
Both Fordham and Ferguson suggest that trial judges will not expect a driver to strictly comply with the rules of the road in order to find that the driver was exercising ordinary care. Instead, if plaintiffs can show that they were driving in a manner consistent with the driving habits of other motorists along the same stretch of road, they will be entitled to recover damages if the municipality in question has not met the requisite standard of care. Indeed, in both cases the plaintiffs were negligent in their operation of their vehicles, but the trial judges nonetheless found that the degree of negligence was in keeping with what one would expect of a driver exercising ordinary care.
 2011 ONCA 577 (“Morsi”)
 2012 CarswellOnt 150242 (S.C.J.)
OPCF 44R Limitation Period: Roque and Schmitz
Roque v. Pilot Insurance Company
In May of 2012, the Ontario Court of Appeal released its decision in Roque v. Pilot Insurance Company. In Roque, the Court held that a plaintiff’s limitation period against an underinsured insurer pursuant to an OPCF 44R endorsement begins to run when the plaintiff has enough evidence to give him a “reasonable chance” of persuading a judge that his claims would exceed the minimum limits $200,000. The Court’s decision was a departure from some previous cases that held that the limitation period only begins to run from the time when the plaintiff knows that the available insurance coverage under a defendant’s policy is less than that available under his or her own policy.
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Everyday this week we will highlight one of the top 5 Personal Injury Cases you should know about. For personal injury practitioners, many of the most significant decisions of the past year arose in the accident benefits context. However, there have been a number of negligence decisions that will also have significant implications for personal injury practitioners. The decisions I have selected for review in this paper deal with diverse aspects of personal injury practice, from limitation periods to minimum maintenance standards to the applicability of statutory conditions to underinsured motorist coverage. In some instances, the cases will dictate dramatic changes to the approach that both plaintiffs’ counsel and defence counsel should take in applicable circumstances. In others, the cases provide useful reminders of small steps that counsel must take to successfully advance claims, and ensure they will be upheld on appeal.
Broker’s Negligence: Zefferino v. Meloche Monnex
Following the September 1, 2010 Insurance Act amendments that reduced accident benefits coverage, many plaintiffs’ lawyers considered the possibility of suing brokers who did not advise their clients of the possibility of buying optional benefits to increase coverage. Zefferino v. Meloche Monnex Insurance Co. is a reminder that in such actions, it is not enough for an insured to prove that an insurance broker breached the applicable standard of care to be successful in an action against that broker. Rather, plaintiffs must also establish that they likely would have exercised the option to purchase those benefits.
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In his own words “McLeish Orlando really gave me an independent lifestyle”. Before Dan’s accident he was an athlete, a top student and a musician in school. Listen to Dan as he tells us how the McLeish Orlando team helped him regain his life and independence after his accident.
Toronto critical injury lawyer Dale Orlando says the Victoria Day long weekend is the beginning of trauma season and has some important safety tips to avoid serious injuries.