As the spring and summer rides are starting, cyclists and ride organizers should be aware of the recently released (April 05, 2013) Ontario Superior Court case, Kempf v. Nguyen.
Madam Justice D.A. Wilson found a cyclist liable for injuries sustained by another cyclist when a crash occurred at the Becel Ride for Heart on the closed off Don Valley Parkway. The Defendant cyclist was found responsible for the crash when he made a sudden and erratic move without signaling, causing a rear approaching rider to lose control and crash. Both were experienced cyclists. In finding the Defendant liable, Justice Wilson stated,
I find that Nguyen was negligent, that his negligence consisted of making a sudden movement while riding in a group, failing to maintain a straight line, failing to signal his intention to move and moving directly into the path of the Plaintiff when he could have moved out to the right.
The case is significant since their has been few civil actions where a cyclist has been held liable for the injuries of another cyclist. As many aware, most cycling claims arise when the cyclist is struck down by a car or truck. The Court held that their is a duty to take care amoung cyclists and went on to find,
the participants … in a group ride had to ensure they did nothing to put the safety of the other riders in peril. There is an element of trust between cyclists who ride in a group because of the proximity to others and the fact that any sudden or unexpected movement can have a disastrous effect on the safety of the other rider
The Defendant cyclist had argued that there was an “inherent risk” associated with the sport and the ride and therefore there ought not to be a duty of care. In dismissing this defence, the Court stated that the fact that cycling carries with it some inherent risks does not mean the duty of care of Nguyen is negatived.
As to what standard will a cyclist be put to in regards to their fellow riders, the Court concluded,
reasonable care depends on what the participant agreed to reasonably expect given the nature of the sporting event, in a case involving cycling, there is no reason to impose a higher onus on the Plaintiff, to prove that the Defendant conducted himself in a reckless fashion. By its nature cycling is not a contact sport or one that involves physical encounters with opponents such as football or rugby
Although the injured cyclist had signed a waiver, it was held that it did not release a claim for negligence against another rider. The lawyer for the injured cyclist did not pursue any case against the Heart and Stroke Foundation.
For those ride organizers, a review of the case and the commentary regarding the waiver is essential. When dealing with the issue of the waiver, Justice Wilson noted,
The waiver is poorly drafted and confusing … While there is reference to the “participants”, the waiver does not release other participants, but rather the various organizations from claims against them, including damages occasioned by the negligence of a participant or other competitor. It clearly does not release other riders from claims arising from their negligence during the ride.
As seen on AdvocateDaily.com – April 5, 2013
Ontario’s personal injury bar is concerned that a recent Court of Appeal decision could lead to an increase in unnecessary claims against underinsured insurers, Toronto critical injury lawyers Rikin Morzaria and John McLeish write in Lawyers Weekly. Read Lawyers Weekly
In Roque v. Pilot Insurance Co. , the court held that a plaintiff ’s limitation period against an underinsured insurer 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 of $200,000, the article says.
“This is a departure from some previous cases — Hampton v. Traders General Insurance Co.  O.J. No. 41, most notably — 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 coverage. While the language of OPCF 44 endorsement in question — the “family protection” endorsement that extends to the policyholder the same rights provided to third parties — arguably left the appeal court little choice, the resulting situation cries out for legislative intervention,” explain Morzaria and McLeish, partners with McLeish Orlando LLP.
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Toronto Critical Injury Lawyer John McLeish, partner with McLeish Orlando LLP, has some important advice for parents of children involved in a traumatic event.
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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McLeish Orlando LLP congratulates Ian Perry, along with the rest of his team from Osgoode Hall Law School, for their recent victory at the 40th annual Gale Cup Moot. Ian summered with the firm in 2012 and will be returning as an articling student for 2013/2014.
The Gale Cup, one of Canada’s oldest moot competitions, takes place in Toronto at the Ontario Court of Appeal and is meant to simulate a fictional appeal from a recent decision of the Supreme Court of Canada. Judging panels are made up of presiding judges drawn from various jurisdictions across Canada. This year’s final panel included the recently appointed Justice Richard Wagner of the Supreme Court of Canada.
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As seen on AdvocateDaily.com:
The driver behind the wheel of a City of Toronto garbage truck that struck and killed a five-year-old girl, and injured others, may be civilly responsible to the families even if he isn’t ever formally charged, says Toronto critical injury lawyer John McLeish.
Kayleigh Callaghan-Belanger was steps away from her Scarborough school Thursday afternoon when the truck struck her, the Toronto Sun reports. She was one of four children crossing the street – two others suffered injures, the report continues. Read more of this article »
As the Provincial Government grapples with a new cycling strategy, anyone engaged in the debate understands that there are no simple solutions or quick fixes. An old infrastructure designed for cars, clogged roadways with users competing for space, and a limited amount of funding make meaningful change at all levels seem next to impossible. Where do we begin? A one meter passing rule. That’s a good start, but not a long term solution. Riding paths that circle the City, although valuable do not get you safely to the store to buy bread, work or go to the local café. The implementation of bike lanes seems to be like trench warfare. Gains and losses are determined street by street, ward by ward, city by city. Exhausting, slow and for the most part disjointed.
However there is hope! It emerges from the forward thinking of our Chief Coroners’ Office. It is not based on specifics, but on how decision makers are to look at things. A new culture perhaps. Its called “Complete Streets”. Words, that to date, are not mentioned in any provincial policy statement, legislation, or standard. An approach that is growing in US. One that has been advocated for the last few years by active transportation advocates like TCAT and Cycle Toronto.
One that now has some wheels. In 2012 the Office of the Chief Coroner for Ontario released the Cycling Death Review. During the course of the review, various stakeholders including the Coroner’s Office, medical professionals, law enforcement, Toronto Transit Commission, Ministry of Transportation of Ontario (MTO), Ontario Medical Association, City of Toronto, and various cycling and road associations participated.
Following the review the Dr. Dan Cass, Deputy Chief Coroner made his number one recommendation to be “Complete Streets”. The words were clear. “To the Ministry of Transportation and Ministry of Municipal Affairs and Housing a complete streets approach should be adopted to guide the redevelopment of existing communities and the creation of new communities throughout Ontario.”
Shortly after that, the Coroners office released the Pedestrian Death Review. Again, the very first recommendation was “Complete Streets”. “The complete streets approach should be adopted to guide the development of new communities and the redevelopment of existing communities in Ontario. Complete streets should be designed to be safe, convenient and comfortable for every user, regardless of transportation mode, physical ability, or age.”
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The Supreme Court of Canada has held that motorists ought to be held liable for injuries when they fail to slow down and drive carefully in areas where there is a possibility there may be children, including playgrounds, schools and built up residential areas.
In the case, Anapolis County District School Board v. Marshall, a 4 years old suffered “catastrophic” injuries when struck by a school bus. The Supreme Court upheld the trial judges direction to the jury that recited the law, as it applied to children, is as follows:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.
The ruling is consistent with the recent Ontario Coroners’ Review on Pedestrian Deaths that calls for reduced speed limits in areas with children. Simply going the speed limit may not be enough. The actions of a child are clearly different than adults. When drivers are entering areas where there is a possibility of children running out, they ought to slow down and keep a keen eye out. The ruling adds to a long list of authorities that require extra care must be taken when children are involved.
On Friday, October 12th, 5 year old Victoria Dehan was playing with Rottweiler puppies in her family’s barn in Pelham, Ontario when she was suddenly attacked by three adult Rottweilers. Victoria is now in critical condition at Sick Children’s Hospital in Toronto.
Victoria has undergone two surgeries since the attack. Her condition is reported to be improving. We wish Victoria a fast and full recovery. Our thoughts are with the Dehan family.
In Ontario, dog owners are responsible for keeping dogs under proper control and if they do not, the owner may be responsible for any harm caused by the dog. Every year there are over 300 reported dog bite incidents in the City of Toronto alone.
The impact of a dog bite can cause significant physical and psychological injury to an individual who is attacked.
What many people do not know is that the insurance policy a dog owner has on his home or apartment will, in many cases, pay for claims arising out of injuries their dog causes.
The Chief Coroner for Ontario has just released the Office of the Chief Coroner’s Pedestrian Death Review.
In 2010 there had been a rash of pedestrian deaths. The review was initiated after Patrick Brown of McLeish Orlando LLP and enviromental lawyer, Albert Koehl gathered a coalition of interested groups and requested a review of cycling and pedestrian deaths within the province. Last summer, the Toronto Star posted Patrick and Albert’s request and later that fall, after several meetings, the review was launched. The purpose of the review was to examine the circumstances of the deaths that occurred from January 1, 2010 to December 31, 2010 and make various recommendations. The report itself was dedicated to the 95 Ontarians who lost their lives in preventable pedestrian collisions in 2010.
The review resulted in 26 recommendations covering many areas and includes:
• Reduced speed limits in residential areas and amendments to the Highway Traffic Act
• Adopting ‘Complete Streets’ aprroach to ensure the roadways are designed and maintained for all users including pedestrians and cyclists
• Installing side guards on heavy trucks
• Creating more pedestrian crossings, longer times to cross, and developing a “walking stratedgy for Ontarians”
• Educating drivers on the scenarios that can lead to a pedestrian collision
• Increasing enforcement
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