McLeish Orlando LLP is proud to have three of its lawyers recognized in the 2013 edition of Best Lawyers in Canada for Personal Injury Litigation. Best Lawyers is the oldest and most respected international peer-review publication in the legal profession. Congratulations to John McLeish, Dale Orlando and Patrick Brown!
John McLeish received the additional honour of being named as Toronto’s 2013 Lawyer of the Year in Personal Injury Litigation.
McLeish Orlando, Best Lawyers in Canada
This is a reproduction of an article published by Rikin Morzaria and John McLeish in the Lawyers Weekly. For a link to the original, click here.
A number of cases decided in the past five years illustrate Ontario courts’ willingness to give multimillion-dollar damages awards to seriously injured plaintiffs. In each case, the plaintiff suffered a catastrophic injury. While these injuries are not a new phenomenon, the amounts of the awards are unprecedented and appear to be increasing.
In the 2007 case of Marcoccia v. Gill, Robert Marcoccia suffered a severe traumatic brain injury in a motor vehicle accident. At the time of the collision, he was 20 years old and had just finished grade 12. The injuries to the frontal and temporal lobes of his brain left him with severe behavioural disabilities, as well as left-sided hemiparesis. Because Marcoccia was unable to effectively manage his emotions and impulses, he was unable to live independently. The jury accepted that he required care 24 hours a day, seven days a week, and would never be able to work. It assessed his damages at $16.9 million.
In the 2008 case of Gordon v. Greig and Morrison v. Greig, Derek Gordon and Ryan Morrison were passengers in a pickup truck that swerved to avoid an oncoming car, and then rolled over. Gordon suffered a catastrophic brain injury that left him without bladder and bowel control, senses of smell, taste and hunger, and loss of temperature control and sexual function. Morrison suffered a spinal cord injury that left him with paraplegia. Justice Bruce Glass awarded Gordon damages of $11.5 million and Morrison damages of $12.3 million.
Most recently, in MacNeil v. Bryan, Justice Peter Howden awarded $18.4 million in what is believed to be the largest personal injury award in Canadian history. Katherine-Paige MacNeil suffered a catastrophic brain injury, including the loss of some frontal lobe brain mass and severe hemorrhaging in her brain. She also suffered several lumbar spine fractures and other orthopedic injuries. Justice Howden accepted that the injuries left MacNeil, who was 15 years old at the time of her injury, unemployable and dependant on around-the-clock supervision.
None of these cases articulated new legal principles for the quantification of damages. So what accounts for the increased value of the damages awards? A review of the decisions reveals that there are at least two factors at play.
Read more of this article »
Halloween is coming fast. To ensure children are safe while still having fun, Halloween safety tips include:
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.
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!
Recent research on concussions in children now indicates that even the mildest concussions need to be treated with “brain rest” to avoid injuries that can possibly have long-lasting effects on children.
Dr. Ellemberg, a neuropsychologist at the Université de Montréal is conducting the world’s first large-scale study of the effects of concussions on children. His five-year study will research concussions in more than 200 children.
Dr. Ellemberg states “The traditional view has been that children’s developing brains would recover faster from injury than adults’ brains. But we’re finding evidence that a child’s brain could actually be more sensitive to the effects of concussion”.
Dr. Ellemberg cautions that his results aren’t a call for kids to avoid sports and other activities. Rather, he says, it’s time for parents and coaches to be aware of concussion symptoms and give young brains a chance to heal.
“If we take the proper precautions after a concussion we can significantly reduce the impact of the concussion on the brain,” says Dr. Ellemberg.
Any blow to the head, face or neck, or somewhere else on the body that causes a sudden jarring of the head may cause a concussion, such as being hit in the head with a ball, falling off a bike or being checked into the boards in hockey.
The symptoms of a concussion may include:
• Dizzy or disoriented
• Headaches, nausea or vomiting
• Ding or buzzing sounds immediately after injury’
• Seeing stars on impact and later double or blurry vision
If you suspect that your child has sustained a concussion, your child should stop playing the sport right away. The most important treatment for a concussion is rest. Like any physical recovery, the invisible mental recovery must also occur and this takes time. That means not exercising, bike riding, playing video games or working on the computer. Children may have to stay home from school because schoolwork may make their symptoms worse. Children who go back to school or resume activities before they are completely better are more likely to get worse and to have symptoms longer.
A child who has been diagnosed with a concussion should see a doctor immediately if symptoms get worse, such as:
• being more confused;
• worsening of a headache;
• vomiting more than once;
• not waking up;
• having trouble walking;
• experiencing a seizure; or
• behaving strangely.
Problems caused by a head injury can get worse later that day or night. A child should not be left alone and should be checked on through the night. If there are any concerns about a child’s breathing or sleep, wake her up. Otherwise, let her sleep. If she seems to be getting worse, see a doctor immediately.
For more information visit the Canadian Paediatric Society website at http://www.cps.ca/english/statements/HAL/HAL06-01.htm
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.
From today’s Toronto Star:
Moved by the stories of Canada’s wounded soldiers who’ve come home only to be forced to fight the federal government for benefits, Ontario’s trial lawyers say they’ll represent injured veterans for free.
And in Ottawa, sources tell the Star that the Liberals will present legislation Tuesday that, if passed, would elevate the Office of the Veterans’ Ombudsman so that it reports to Parliament, and not the minister of national defence, as is currently the case.
A recent Star series entitled Our Wounded Warriors exposed the fight Canada’s 1,500 injured soldiers — many disabled and traumatized after serving in Afghanistan — face when they return home.
The 1,100-member Ontario Trial Lawyers Association told the Star it is astounded by the “hurdles, the runarounds and the hardships” Canada’s veterans face when they try to collect federal military service and disability benefits.
“These veterans fight for our country and they really should not have to fight for these benefits,” said lawyer Patrick Brown, chair of the new initiative called Trial Lawyers for Veterans.
“If we can help out, we will,” said Brown. “The commitment from our volunteers is to offer free services. It is all pro bono.”
After suffering devastating injuries from roadside or suicide bombers, missile attacks, vehicle rollovers or gunshot wounds, the veterans are often stunned when they find themselves battling Ottawa for money, for a job and for respect.
The Star series, plus a suggestion from lawyer and mediator Paul Torrie, prompted the executive of the association to ask its members if they would consider helping the injured soldiers. Trial lawyers specialize in disability claims, injuries and fatalities.
Association president Dale Orlando said the response from the province’s lawyers was “remarkable.”
“We had all read the stories in the Star, so we had a little bit of background, and we did a little bit of investigating and we did find that Canadian veterans — to whom we all owe a debt of gratitude — were having to navigate a maze of government red tape in order to receive compensation,” Orlando said.
“We heard some horror stories about the road blocks they were facing.
“We thought, that is what we do in our day-to-day jobs — fight for victims so they do receive fair compensation. There was a natural fit for our organization.”
Read more of this article »
16 Toronto pedestrians were struck by cars in a 48-hour period, according to a Toronto Star report.
According to Sgt. Tim Burrows, the spike in pedestrian injuries is due to a number of factors, including darker skies during rush hour, high winds, wet weather, and pedestrians keeping their heads down to brave the weather.
This spike in pedestrian injuries provides us an opportunity to remind both drivers and pedestrians of safety tips, courtesy of the Highway Safety Research Centre.
Tips For Drivers
- You can encounter pedestrians anytime and anywhere – even in places where they are not supposed to be found.
- Pedestrians can be very hard to see – especially in bad weather or at night. You must keep a lookout and slow down if you can’t see clearly.
- When entering a crosswalk area, drive slowly and be prepared to stop.
Read more of this article »
This Halloween will be the fifth anniversary of the death of Ryan Carriere. Ryan was killed when struck down by a truck making an improper right turn at Queen and Gladstone. Ryan was a loving husband and a devoted father to his children. He was an artist, a cyclist and an integral part of his community. Ryan was a remarkable individual and his death was preventable. He was an innocent victim. He was simply riding his bike home from work.
A new City Government will be in place within weeks. They will be empowered to decide how infrastructure money will be spent. It is hoped that each councillor will take the time to review what happened to Ryan and the many other cyclists that have been either killed or injured on Toronto streets. The human factor should never be forgotten when policy decisions are made. Injuries and deaths on the streets are preventable.
In 1975 City Council adopted a statement that “it is the policy of council to implement programs that will promote and facilitate greater and safer use of the bicycle.”
Read more of this article »
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.
After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals. A daunting process is ahead. The insurance system in Ontario is one of the most complicated systems in North America.
Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have. After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.
The new basic auto policy being sold contains far less benefits than what existed before September 1. With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums.
Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price. Like shopping in a supermarket, each item ought to have a price tag. Read more of this article »