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.
This is the last post of the series Developing and Funding a Plaintiff’s Personal Injury Practice. The last challenge in starting your own firm is ensuring you have the best resources available. People.
When John McLeish and I started our firm in 1999 we had one other lawyer who worked with us and 7 staff members. We have made a point of not growing the firm simply for the sake of growth. Despite this approach, we now have a firm of 11 lawyers, 3 articling students and 50 support staff. We currently employ an excellent office manager and receptionist, in addition to a host of excellent accident benefit clerks, law clerks and legal assistants. All of these people are absolutely essential to the success of our law practice, but this growth hasn’t come without its share of problems. There is truth to the saying “good people are hard to find” and we have had our share of mistakes.
It is important that the people that work for me are dedicated, hard working, intelligent and honest, but this is only a starting point. For me, one of the most important aspects of our firm is the atmosphere. It isn’t for everyone, but it is for me. For almost everyone in the workforce, you spend the majority of your waking hours with the people that you work with. You can pay people well and they will show up for work, but if you want them to go the extra mile, work has to be a place that they enjoy going. They have to like the people that they work with and they have to like you. If your employees like and respect you, they will put their hearts and souls into the success of your operation. You can’t force people to like and respect you, but if you respect them, treat them fairly and take an honest interest in their well being, you will find that they can’t help but reciprocate. I’m not suggesting that you should be afraid to point out peoples mistakes or take appropriate action to correct behaviour that is detrimental to the office so long as it is done the right way. However, once you realize that you have made a bad hiring decision, you should move as quickly as you can to undue the mistake by letting the person go. It doesn’t take long for one person’s bad attitude to fester and create division within an office. You will spend a great deal of time and money fostering goodwill with your employees. You don’t want to let your efforts be undone by a bad apple. Read more of this article »
In part 5 of our series we discuss Funding Your Practice.
There are significant financial demands to running a successful personal injury practice. These demands are greatly increased when you are in the process of setting up and establishing a new personal injury practice. As stated above, you will have virtually no choice but to offer your services on a contingent fee basis which means you will collect fees some number of months or years after you begin working on a file and you will carry most of the disbursements associated with the file for this period of time as well. At the start of your practice, you can expect a significant delay in the inflow of cash. Conversely, the outflow of cash will begin before you even open your doors for business. Starting in the planning stages of opening your firm, you will begin to incur the typical overhead expenses of a law firm, such as rent, salaries, law society fees, insurance, equipment purchase, etc.
Before setting out on your own or in partnership, you must ensure that you have enough money in the bank or access to adequate credit to ensure that you can continue to pay your overhead costs when cases are pending. You don’t want to find yourself in a situation where your judgment about the value of a case is effected by your need to meet your financial obligations. In my experience, banks will be reluctant to lend to anyone who does not have significant collateral that they can pledge as security for their loan or a long and proven track record of success in their law practice. Banks have difficulty recognizing the value retained in a personal injury law practice by way of work in progress (WIP) and paid disbursements. On complex cases, the paid disbursements can easily run into the hundreds of thousands of dollars. In a large practice, paid disbursements can amount to millions of dollars. Read more of this article »
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.
Read more of this article »
So far in this blog series on Developing and Funding a Plaintiff’s Practice we’ve discussed marketing your practice, through building relationships and advertising and developing systems for document gathering. We continue our series with the importance of gathering damages reports for file development and progression.
It goes without saying that you will want to obtain as many records as you can about your client’s pre and post injury health and employment before the discovery. In this way, you will have a clearer picture of your client’s case and you will be well positioned to educate your client about issues raised in their pre-injury health records.
Obtaining records from non-parties can take time, so it is important to start this process early. You do not want to be in a position where key documents about your client’s health are not available before discovery.
A good defence lawyer will often try to inject the Plaintiff’s credibility into the equation by seizing upon small inconsistencies or omissions in reports of pre-accident health history and extrapolating to the conclusion that the Plaintiff was trying to conceal past problems or blame the car crash for a pre-existing condition. It is for this reason that a comprehensive review of the OHIP summary and family doctors clinical notes and records must be completely reviewed for any pre-accident problems that may have some bearing on the case. This includes reviewing, to the extent that they are legible, the family doctors hand written notes.
Loss of income information in the file should be obtained and reviewed, including the resume the Plaintiff has completed for the purposes of the litigation, the pre-accident income tax returns, school records and current and previous employment files. Special consideration should be given whenever requesting school records. Read more of this article »
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).
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 third part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.
File Development and Progression
In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development. If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation. This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded. In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury. You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery.
The document gathering process in motor vehicle litigation is essential. The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion. Read more of this article »
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.
Read more of this article »
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.
Read more of this article »