Mr. Smith suffered serious injuries in a single vehicle collision involving a rental car owned by Enterprise Rent-A-Car. Mr. Smith was a passenger in the car and the driver of Mr. Smith’s vehicle held her own insurance policy with liability limits of $1 million. Enterprise brought a summary judgment seeking to be released from the action, because Enterprise could not be liable for any amount over $1 million.
McLeish Orlando’s associate lawyer, Josh Nisker, successfully defended the motion on behalf of Mr. Smith.
On October 16, 2012, Justice McCarthy of the Ontario Superior Court of Justice ruled that Enterprise was required to remain a party to the action. Justice McCarthy agreed with the plaintiff’s position that the 2006 amendments did not modify the applicable principles of vicarious liability or joint and several liability. Specifically, his honour made the following findings:
- Legal liability for the accident and legal liability to pay the claim are “distinct considerations.”
- Section 267.12 of the Insurance Act clearly contemplates the “continuing legal exposure” of a lessor for vicarious liability.
- The plaintiff clearly had a right of action in vicarious liability against Enterprise and that right of action was not displaced by the operation of section 267.12.
- The provisions of the Insurance Act did not prevent the plaintiff from maintaining an action against Enterprise.
The Smith decision is significant in that it establishes that rental companies must remain parties to an action despite the availability of other insurance. This is especially important to plaintiffs as there will still be an owner’s insurance policy available if the driver’s insurer denies coverage during the litigation. This ensures that the plaintiff will not be left without an insurance company to satisfy a judgment.
The full text of the decision may be found online at CanLii Smith v. Smith, 2012 ONSC 5872 (CanLII).
The Ontario Trial Lawyers Association has recently sent out a newsletter to every MPP in Ontario regarding the Insurance Bureau of Canada misinforming officials about insurance premiums, claims cost and profits.
McLeish Orlando stands behind OTLA in ensuring that MPP officials are well informed. See below for the newsletter sent out by OTLA.
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The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.
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 »
On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep. He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas. When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep. The men began hitting Mr. Downer while pulling him out of the vehicle. Mr. Downer put the Jeep into reverse to get away from the men. One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off. A short time later, he became aware that he had suffered injuries in the incident.
Mr. Downer’s insurance company brought a motion to dismiss Mr. Downer’s claim for benefits on the basis that he had not suffered his injuries in an accident.
Was the carjacking an accident?
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The Financial Services Commission of Ontario (FSCO) Panel selected to review the definition of Catastrophic Injuries has released their report.
To those consumers not familiar with this, see my previous blog “Catastrophic Impairment under a Microscope.” It was anticipated that the review of the definition would give rise to maintaining or granting greater access to medical and rehabilitation benefits to those suffering catastrophic injuries. The last set of changes made by the Ontario Government in September 2010 saw many accident benefits slashed in half or eliminated for the less seriously injured. These cuts were made in order to ensure that the system was financially able to protect those suffering from the more disabling catastrophic injuries. Therefore it was extremely alarming to see that the FSCO Review Panel has recommended new changes which will make it more restrictive for the seriously injured victims to meet the catastrophic definition.
If implemented, a large portion of these victims will be denied the designation and suffer greatly with the reduced benefits. The changes prevent the injured person from having psychological injuries combined with physical injuries when conducting the assessment. As well, they propose to get rid of the GCS score as a designator for those suffering brain injuries. The brain injury victim will no longer be able to qualify based on the early GCS score, but would rather be subject to a longer and more detailed assessment. An assessment which will delay benefits from flowing and costs significantly more.
This means that many people who suffer serious brain impairments, psychological injuries and physical injuries will be denied access to meaningful benefits in the future. The funds normally spent to get the seriously injured victims better or allow them to live with dignity will simply remain within the insurance companies. Of course, this will in turn increase the profitability of the insurance industry and put higher demands on the public health system.
However, the panel is only the first step in the review. The recommendations are not yet law. FSCO and the Government also requested submissions from the legal and medical communities. The deadline of May 13, 2011 has now passed. The response by these communities has been loud and clear. The recommendations are premature, flawed and ought not to be implemented.
A panel of prominent medical specialists in field of traumatic injuries have taken objection to the recommendations. This panels’ review was endorsed by the Alliance of Community Medical and Rehabilitation Providers of Ontario. The medical outcry is of no surprise, since the recommendations now being made are at complete odds with a 2001 Medical Panel Review. The September 2001 Review was supported by the insurance, legal and medical communities.
The major legal organizations have also stood up and indicated that these recent recommendations ought not to be implemented. They include the Ontario Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.
Based on the resounding objection, one can not imagine the Government giving any weight to the proposed recommendations. What is interesting is that in the submission made by the Alliance, they understand that over half of the panel making these recommendations had been at one time consultants with the Insurance Bureau of Canada.
What is really driving these recommendations?
Voice your Opposition to the Panel’s Recommendation and put people before profits. Send an email to your local MPP today before it is too late!
It’s that time of year again. The time when hard-core cyclists say to themselves, “Do I really have to share the bike lane with those scooter-like things?” Like them or not, e-bikes are back on the roads after their annual winter migration to storage. If last year was any indication, the number of e-bikes on the road this spring can be expected to increase yet again.
While the year-round cycling purist may look over the dropped handlebars of his retro fixed-gear bicycle at the e-biker with disdain, e-bikes look like they are here to stay. E-bikes represent a viable commuting option for “suits” who can’t show up to work sweaty and who, unlike me, don’t have the luxury of keeping a wardrobe at the office. They are also a more feasible option for people with physical limitations or who just need a bit of help on steep hills.
To encourage the use of e-bikes, the government allows riders to operate them without a driver’s licence and without the need to purchase insurance. For people who want a cheap, green, and non-sweaty mode of travel there aren’t any apparent drawbacks to using an e-bike – unless your e-bike is not really an e-bike. How do you know if what you are riding is in fact an e-bike? The government certainly hasn’t made it easy. Finding the complete definition means you have to look at the provincial Highway Traffic Act and the federal Motor Vehicle Safety Regulations. That’s a pretty heavy onus to place on someone who just wants to ride a bike with a bit of a power boost.
More importantly, why should you care whether your e-bike fits the definition? As long as you’re riding a machine that suits your needs, who cares if it’s technically an “e-bike” or not, right? Wrong. If your machine turns out not to be an e-bike, you could be operating a motor vehicle without insurance. And the consequences of operating a motor vehicle without insurance are significant.
The first obvious consequence of riding a motor vehicle insurance is a ticket under the Highway Traffic Act or the Compulsory Automobile Insurance Act. This could lead to substantial penalties. But a ticket and its accompanying penalty pales in comparison to what could happen if you are involved in a collision while operating an uninsured motor vehicle. Most significantly, you lose the right to sue. You might think that you aren’t looking to get rich off a lawsuit. But, suing for injuries in Ontario is not about getting rich. If you are severely injured, you could be looking at hundreds of thousands of dollars in health care expenses that are not covered by OHIP. You might also be unable to continue working, or only be able to work in a part-time or reduced capacity – for the rest of your career. If you lose the right to sue, you alone will bear the responsibility for these losses. Even if the driver of the other vehicle is 100% at fault.
That’s why it is so important to know what an e-bike is. Here are the key points you need to know to ensure that what you are riding is really an e-bike:
•It cannot be capable of going faster than 32 km an hour on level ground;
•It must have operable pedals affixed to it;
•You must be able to operate it “solely by muscular power”;
•The power output of the motor must be 500W or less; and
•It must have a label stating (in both official languages) that the vehicle is a power-assisted bicycle.
Take a look around the streets of Toronto and you will see many bikes that match this description, with the exception of the pedals. Because so many e-bike users never actually use pedals to operate the e-bike, they remove the pedals and store them under their seats. If you are considering doing this, don’t. The moment you remove your pedals, they are inoperable. That means that you are no longer riding an e-bike. You’re just operating a motor vehicle without insurance.
There are good arguments for removing the pedal requirement from the definition of an e-bike altogether. If the goal is to encourage people to use small, green vehicles, why should it matter if they have pedals? It’s not as if you are ever required to actually use the pedals on your e-bike. But regardless of the validity of arguments for changing the definition, the fact is that the law as it stands requires pedals. So, until the legislation is changed, keep those pedals on your e-bike. That way, I can avoid painful discussions with prospective clients who have lost their right to obtain badly-needed compensation for health care expenses and lost income. And riders of e-bikes and pedal-powered bikes can turn their attention back to the endless debate about whether e-bikes belong in bike lanes with the fixies.
The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident. The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment. This is not akin to a lottery ticket. A catastrophically injured person must still prove that the benefits are reasonable and necessary. All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need. Last week, an expert medical panel completed a review of the definition of catastrophic impairment. The recommendations are based on a technical review. In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.
The text of the article is reproduced below:
‘Catastrophic impairment’: What’s at stake
Published On Sun Apr 17 2011
President of the Ontario Trial Lawyers Association
“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”
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The Financial Services Commission of Ontario (www.fsco.gov.on.ca) has now commenced a review of the “Catastrophic Definition”. The outcome of this review will have a dramatic impact on the victims who suffer severe disabilities in car crashes. For those deemed to be “catastrophic”, it can mean the ability to access essential services to live independently and with dignity. For those that are not, it can mean a life of limited help, despair and a stalled recovery. The stakes are very high!
The FSCO has now appointed an Expert Medical Panel to make recommendations regarding the definition and the assessment process. Careful attention will be made on people suffering traumatic brain injuries, paralysis, spinal cord injuries, severe mental and psychological disorders, and those suffering from multiple broken bones.
Many lawyers, doctors, rehabilitation professionals and treating providers are looking forward to the review. It is hoped that it will finally address the many holes that are within the system. Holes that have resulted in many seriously disabled victims being left out in the cold when it comes to basic care services and rehabilitation treatment. Treatment that will help them get better and integrated back into society and the workforce.
The last changes made by the Ontario Government to the insurance system was in September of 2010. These changes saw a drastic reduction in benefits to those suffering less severe injuries. The intent was to eliminate and drastically reduce benefits flowing to people suffering minor injuries. By cutting the flow, it would mean insurance companies would not have to raise auto insurance premiums to the driving public. It was also seen as a way of making sure greater benefits could flow to the more seriously disabled victims. As some would say, soft tissue injuries would have to take a back seat to the seriously injured.
Although the review process is to look at ways of making the present system better and more efficient, some fear that it will be used as a vehicle by the insurance industry to make it harder for people to be deemed “catastrophic”. This of course would mean people who otherwise would have up to two million in benefits available to meet their needs, would be reduced down to a bare bones package that is exhausted normally with one to two years. This of course cannot be the intent of the review. The review ought to ensure greater access is given to the seriously injured. Substantial savings have already been afforded to the insurance industry as cited in my previous blogs. To now go after the seriously injured and seek to reduce their benefits is just wrong.
Many are confident that the medical panel, FSCO and the Ministry will ensure these seriously injured persons are protected. An expansive approach with the definition must be done. A definition that recognizes all serious injuries. A definition that takes into consideration the collective impact of all injuries on the disabled. It should never be forgotten that there are no windfalls that happen when one is deemed “catastrophic.” Even if someone is found to suffer a catastrophic injury, they still must prove the need for benefits. It simply does not mean money falls on to their lap and they keep it. The money goes to rehabilitation, home modifications, mobility aids, and attendant care. The disabled person still must prove they need the services ( the wheelchair ramp, the wheel chair lift, the helper to get dressed etc.). If they don’t prove it, they don’t get it. If the definition is expanded, it simply means those who need it can access it beyond the temporal and monetary caps of $3,500 or $50,000 as set out in my previous blogs.
If the panel or FSCO or the Ministry seek to tighten up the definition, which would be contrary to the intent of the review, then many severely disabled individuals will be shut out from accessing the rehabilitation and medical help needed to live with dignity and independence. Of course further restriction would simply mean greater savings to the insurance industry. This time however, it will be on the backs of the severely disabled.
In an earlier post, we criticized a Toronto Star column for biased coverage of recent auto insurance changes. The column, which was written by a Joel Cohen, a representative of the auto industry, presented misleading and unsupported facts about accident victims. We printed Dale Orlando’s response to the column on our blog and urged the Star to do the same. To its credit, the Toronto Star did publish Dale Orlando’s response. A link to his response can be found here (Mr. Orlando’s letter appears below the first letter).
We applaud the Toronto Star for presenting an alternate viewpoint on this important issue.