Blog Archive - Preszler Law

My Insurer Denied My Request for Statutory Accident Benefits: What Now?

Ontario Statutory Accident Benefits Denied

Ontario law requires all auto insurance companies to provide specific benefits to policyholders. These requirements are set forth in the Statutory Accident Benefits Schedule (SABS). Depending on the specific facts of your car accident, you are entitled to benefits such as medical treatment costs (beyond what your other insurance covers) and income replacement benefits if you are unable to return to work right away.

Unfortunately, insurers often try to get out of their duty to pay benefits in a timely manner following a car accident. When benefits are denied, policyholders may seek assistance from the Automobile Accident Benefits Service (AABS) of the License Appeal Tribunal.

The Tribunal has the authority to review and reverse a decision to deny statutory benefits. In addition, the Tribunal can make a “special award” equal to 50% of the benefit the applicant was entitled to by law if the insurance company acted “unreasonably” in withholding or denying payment on a valid claim.

***Applicant v. Aviva Insurance Canada*: Insurance Denial Rejected by License Appeal Tribunal**

Here is a recent illustration of how the License Appeal Tribunal functions in practice: The applicant in this case filed a claim for an income replacement benefit (IRB) from her auto insurance company following a car accident in November 2015. She was a passenger in the car at the time. The insurance company ultimately denied her claim.

Before the Tribunal, the applicant’s Ontario personal injury lawyer testified that she was employed at the time of the accident as a “general labourer” working 40 hours per week at a warehouse. Her position had substantial physical requirements, including standing and lifting boxes “non-stop” for upwards of nine hours per work-shift.

Following the accident, the applicant said she “could not return to her former job” due to extensive back pain, which limited her ability to stand continuously and carry boxes.

She also told the Tribunal that prior to the accident, she “was healthy and did not have any psychological or emotional problems.” But after hitting her head during the accident–sustaining a traumatic brain injury in the process–she started to experience serious headaches, which persist to the present. The applicant also described other symptoms of serious psychiatric trauma, including lack of sleep and recurring nightmares.

The Insurance Company Blames a Traumatic Childhood

The insurer did not dispute that the applicant was employed in the way she described. Rather, to defend its decision to deny income replacement benefits, the insurer argued that the applicant’s injuries did not arise from the car accident, but rather were the byproduct of “prior traumas in her life.”

The insurer pointed to the applicant’s childhood in Sierra Leone, where she “saw family members and neighbours get killed,” as well as to her parent’s divorce and the stress of dealing with a prior workplace accident involving her mother.

The Tribunal’s adjudicator rejected the insurance company’s attempt to deflect responsibility. The adjudicator noted that all of the available evidence showed the applicant “was healthy, worked full time and was relatively pain free” until the date of the car accident. Given that the applicant’s childhood “war experiences in Sierra Leone” were “many years ago,” the adjudicator concluded that the car accident was responsible for the applicant’s current medical impairments.

Proving IRB Eligibility

To qualify for an income replacement benefit, an applicant must suffer “from a substantial inability to perform the essential tasks of her or his employment.” In this case, the essential tasks of the applicant’s warehouse job included packing and lifting boxes, scanning and counting products, and shipping items.

The applicant presented medical testimony from multiple doctors, as well as a Disability Certificate from her chiropractor, to support her claim that she could no longer perform those tasks. According to the Disability Certificate, she suffered from “[s]prain & strain of cervical and thoracic spine, lumbar spine, [and] shoulder joint,” in addition to her headaches and insomnia.

Separately, the applicant’s psychologist diagnosed her with major depressive disorder, severe post-traumatic stress disorder, and related mental impairments. Finally, a chronic pain expert told the Tribunal that the applicant “will not be able to return to her pre-accident level of functioning at her employment” due to chronic pain syndrome.

Tribunal Underwhelmed by Insurer’s Medical Evidence

To rebut the applicant’s extensive medical evidence, the insurance company presented testimony from three experts of its own. All three argued that the applicant “does not suffer from a substantial inability to perform the essential tasks as a general labourer.”

The adjudicator did not find these experts as credible as the applicant’s doctors. For example, the insurer employed a family doctor to dispute the applicant’s claim that she suffered from chronic pain syndrome. But as the adjudicator noted, this doctor was not “an expert in the field of chronic pain.” Accordingly, the adjudicator gave only “limited weight” to his testimony.

The insurer also presented a psychologist who examined the applicant one time and concluded she did not “suffer a substantial psychological inability to perform the essential tasks of her pre-accident employment.” The problem with this testimony, the adjudicator said, was that the psychologist did not “do any kind of in depth analysis of what [the applicant] did for work.”

In fact, the psychologist admitted under cross-examination that he had no idea what the applicant’s job was before her accident.

Ultimately, the adjudicator held that the applicant was entitled to an income replacement benefit (with interest). He declined to make a special award because he said the insurer’s initial actions were not “so egregious” as to be considered unreasonable.

Were Your Ontario Statutory Accident Benefits Denied? We Can Help!

As the above case illustrates, competent medical evidence is often the key to successfully pursuing a claim for statutory accident benefits in Ontario. Insurance companies will never give you the benefit of the doubt when it comes to a medical diagnosis. When your insurer denies your SABS claim, you need an experienced Toronto personal injury lawyer by your side to help you challenge that denial before the License Appeals Tribunal.

If you are attempting to reverse your insurer’s denial of benefits following a car accident in Ontario, contact the Preszler Law Firm to schedule a free, no-obligation consultation with one of our experienced auto accident lawyers today.

What Happens if I Need to Sue a Negligent Driver and My Disability Insurer Following a Car Accident?

A serious motor vehicle accident can leave you unable to return to work and thus earn a living. In such cases you may be eligible for benefits under a long-term disability insurance policy, as well as damages from the negligent driver in a separate tort (personal injury) claim. Of course, either the negligent driver or your insurance carrier–or both–may dispute the extent of your injuries. If that happens, do you have to pursue duplicate litigation against both parties, or is it possible to consolidate matters into a single trial?

Kaur v. Blue Cross: One Accident, Two Lawsuits

Recently, an Ontario Superior Court justice confronted this precise scenario. These cases involved a plaintiff who was injured in a 2012 car accident. As a result of her injuries, the plaintiff said she was medically unable to work, so she applied for long-term disability benefits under a policy issued her by Blue Cross Life Insurance Company of Canada. The plaintiff also filed a personal injury lawsuit against the other driver in the car accident, alleging his negligence was responsible for her injuries.

The personal injury defendant denied liability. Separately, Blue Cross denied the plaintiff’s disability benefits claim. This led the plaintiff to file a separate lawsuit against the insurer.

The plaintiff asked the Superior Court to consolidate both claims–that is, to hear them together. The personal injury defendant did not object to this. Blue Cross did.

Under the rules governing civil cases in Ontario courts, a judge may consolidate two or more pending cases under any of the following circumstances:

The cases share a common “question of law or fact”;
The relief sought by the plaintiff “arises out of the same transaction” or series of events; or
The judge determines there is “any other reason” to justify hearing the cases together.

If the Court grants consolidation, it may be in the form of conducting one trial for both cases simultaneously or “one immediately after the other.”

Here, the plaintiff argued that both her personal injury and disability claims arose from the same event–the 2012 car accident. Both cases involved a common “question of fact,” i.e., the nature and extent of her injuries. It would therefore impose an unnecessary cost and burden to present the same medical evidence twice in separate trials.

In response, Blue Cross denied there were any common factual or legal questions. For instance, whether or not the personal injury defendant was liable for the accident had no bearing on the issue of the insurance company’s liability under a disability policy. In any event, Blue Cross maintained a consolidated trial would “prejudice” its interests.

Blue Cross also cited another provision of the Ontario court rules that prohibits a party who has set a trial date in a case from “initiating or continuing” any motion without prior leave of the court. In this situation, both cases were previously set down for trial on separate dates, but they were removed from the court’s calendar after the plaintiff’s former lawyer failed to make a required court appearance.

Judge Cites Critical Factual Dispute, Potential Costs to Plaintiff of Litigating Twice

Justice Steve Coroza of the Ontario Superior Court of Justice ultimately granted the plaintiff’s motion to consolidate, overriding Blue Cross’ objections. In a May 28 order, Justice Coroza first disposed of Blue Cross’s argument regarding the timing of the plaintiff’s motion. The judge said he preferred a “flexible approach” to granting leave and would “consider all of the circumstances of the matter” before making a decision. While he said there was “merit” to Blue Cross pointing out the plaintiff’s delay in bringing her consolidation motion, as well as the “peculiar” circumstances of her other lawyer’s non-appearance, the delay was not “unreasonable,” particularly since neither case had been rescheduled for trial.

Regarding the merits of the plaintiff’s request for consolidation, Justice Coroza noted the purpose of the rule was to “avoid multiplicity of proceedings, promote expeditious and inexpensive determination of disputes, and avoid inconsistent judicial findings.” Here, it was clear that both the tort and insurance cases revolve around the “critical issue” of the plaintiff’s injuries in the car accident. While the burden of proof in each case may be different, the judge said, the plaintiff must essentially present the same evidence. That is sufficient to create a “question of fact in common.”

Consolidation also represents a significant cost savings to the plaintiff. For example, Justice Coroza pointed out that “[r]etaining medical doctors and experts is expensive,” and such witnesses are “notoriously difficult” to schedule for one trial, much less two. While it would cost the plaintiff significantly more to manage two trials as opposed to one, the costs for Blue Cross would be the same either way.

Finally, Justice Coroza firmly rejected Blue Cross’ argument that consolidated proceedings would be too “difficult for a judge to manage.” To the contrary, the judge said it would not be that difficult to “create a trial management schedule” that ensures things moved along smoothly. Indeed, “managing trials with different tests, different counsel, and different parties is standard fare for most trial judges,” so handling a pair of “standard civil actions related to a motor vehicle accident” should not pose much of a logistical challenge.

Speak With a Toronto Car Accident Lawyer Today

Remember, in Ontario courts an unsuccessful plaintiff is liable for the defendants’ legal costs in addition to their own expenses in connection with their case. This means that when you are faced with multiple defendants in related actions, it is often in your best interest to seek consolidation. As the opinion in the case above illustrates, judges are favourable to such requests when there are clearly common factual or legal questions involved.

If you have been in a car accident and now face a “two-front war” against the negligent driver and your own insurance company, you need to work with an experienced Toronto personal injury lawyer who can guide you through the complexities of the Ontario court system. Contact the Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers today.

Source:

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3303/2018onsc3303.html

Do I Have to Let a Jury Hear My Ontario Personal Injury Case?

In any Ontario personal injury claim, such as a lawsuit against a negligent driver who caused a car accident, either side has the right to request a jury trial. This is normally done by serving the other party with a jury notice. But while a jury trial is the norm, the other side may file a motion to strike the jury notice — that is to say, ask the judge to hear and decide the case alone.

Under Ontario law, the judge has the discretion to decide “issues of fact” or “damages assessed” without a jury. The Ontario Court of Appeal has explained, however, that all parties — plaintiffs and defendants alike — have a “substantive” right to a jury trial that “should not be interfered with without just cause.” Therefore, a judge will not normally strike a jury notice unless the party making the request can demonstrate there are certain legal or factual errors that are too complex for a jury to resolve.

MacLeod v. Canadian Road Management Company: Munchausen’s Complicates Already Tragic Accident Case

So, how does a judge go about deciding when to hear a personal injury claim without a jury? Here is an example taken from a recent decision by an Ontario Superior Court of Justice. This still-pending litigation arises from a 2010 car accident that involves a victim who was 12 years old at the time.

The victim is the child of an indigenous mother. Due to his mother’s mental health problems, as well as what the judge described as the victim’s own “complex medical and psychological history,” the victim was living in a group home. While under the home’s care, the victim was struck and seriously injured by a truck.

The victim filed two personal injury lawsuits — the first against the people who owned the truck, and the second against the group home for failing to properly supervise him on the day of the accident. The defendants served notice that they wished to proceed with a jury trial. The victim moved to strike the jury notice and have the case heard solely by the judge, Justice Frederick L. Myers of the Ontario Superior Court of Justice.

In support of his motion to strike, the victim pointed to his substantial and complex medical record. As mentioned above, the victim was residing in the co-defendant’s group home due to his medical history. This presents a substantial complication with respect to his personal injury claim, as the defendants may only be held liable for any physical or mental injuries arising from the accident itself. The defendants deny the victim suffered any such injuries, and that any “material deterioration” in his condition is the result of his preexisting conditions.

Those conditions are quite significant. According to Justice Myers, the victim has been diagnosed in the past with “seizure disorder, tic disorder, autism disorder, Tourette’s syndrome, ADHD, rage disorder, intermittent explosive disorder, articulation disorder, and obsessive compulsive disorder,” as well as learning disabilities and developmental delays. Some of these conditions, the judge noted, appear to be the result of the victim’s mother, who may have suffered from Munchausen syndrome by proxy — a mental condition that causes a parent to make their child “sick or appear sick in order for the [parent] to be seen as heroic or to garner sympathy and approval.”

On top of all this, the victim suffered a catastrophic brain injury in the truck accident. Given all this, the victim argued that the court must make highly “specific findings” about his pre- and post-accident medical state, which is simply too much for a lay jury to sort out.

In response, the defence argued that Ontario juries commonly handle cases involving catastrophic and traumatic brain injuries without difficulty. Justice Myers asked defence counsel how the potential Munchausen’s complication — which is certainly atypical of personal injury claims — would affect a jury’s ability to determine causation. None of the lawyers provided a satisfactory answer, according to the judge, who noted, “If counsel cannot even articulate a principled approach to assessing an issue, how is the jury supposed to assess it?”

Addressing the ‘Systemic Issues’ in Ontario Trial Courts

That said, Justice Myers still denied the victim’s motion to strike the jury–at least at this stage of the litigation. Instead, the court said it would adopt a “wait and see” approach. Justice Myers pointed to the continuing uncertainty over whether or not the victim would actually present evidence at trial regarding his mother’s condition and its effect on him. “Without the overlay of Munchausen syndrome by proxy the case remains complex to be sure,” Justice Myers said, “but in a more straightforward paradigm. Without the additional factor of the mother’s Munchausen syndrome by proxy the but for assessment will not be made impenetrably complex.”

The judge also explained that deciding to strike a jury is not just a matter of assessing the potential factual complexity of a case. Ultimately, it comes down to whether dispensing with a jury will make justice more “efficient, affordable, and proportional.” Put another way, a judge should only strike a jury notice when there is reason to believe that the excessive cost or potential delay in adjudicating the case so warrants. While acknowledging there are “systemic issues” that affect the ability of Ontario courts “to provide long civil trials” in a cost-effective manner to the parties, here Justice Myers said he felt it was still possible this case could be successfully tried before a jury.

Speak with Our Toronto Personal Injury Lawyers Today

The question of whether to seek or strike a jury trial is often critical to the success of an Ontario personal injury claim. This is why it is important to work with an experienced Toronto car accident lawyer who understands the law and the provincial court system. If you have sustained serious, life-altering injuries due to someone else’s negligence, the Preszler Law Firm can assist you in seeking compensation. Call us or contact us online to schedule a free, no-obligation consultation today.

Sources:

https://www.ontario.ca/laws/statute/90c43#BK150

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2186/2018onsc2186.html

Why is Representing Yourself in an Ontario Personal Injury Case a Bad Idea?

Representing Yourself Ontario Personal Injury

There are a surprisingly large number of Canadians who think they can represent themselves in court without the assistance of a qualified lawyer. Self-represented litigants are quite common these days in family court matters like divorce, but they are increasingly seen in other kinds of civil matters, as well, such as slip and fall accident claims. Although self-represented litigants may feel it is cheaper to handle their own case, the reality is that you are far less likely to prevail — especially against a well-represented defendant–in such cases. You may even find yourself on the hook for a large cost award to the successful defendant.

Montague v. Toronto Transit Commission: Woman in Her 70s Struggles to Represent Herself in Jury Trial

For example, the Divisional Court of the Ontario Superior Court of Justice recently rejected a self-represented litigant’s attempt to overturn a jury verdict that went against her. The plaintiff, a woman in her 70s, sued the Toronto Transit Commission (TTC) after allegedly suffering an accident while riding a city bus. According to her initial lawsuit, the plaintiff was riding the bus, together with a shopping cart, and as she moved to exit via the rear of the vehicle, the door “closed on [her] left hand with the shopping cart and [her] left foot.” The plaintiff maintained that the negligence of the bus driver — and by extension the TTC — caused her serious injury.

The plaintiff represented herself at trial, which was held before a jury in May 2017. She asked for $150,000 in damages. The defendant (the TTC) denied liability. Indeed, the TTC maintained there was insufficient evidence to prove that an accident had even taken place.

The trial proved to be a struggle for the self-represented plaintiff. At the outset, she attempted to summon three witnesses in support of her case. The trial judge quashes these summonses, however, in part because they were not served in accordance with the Court’s rules. In any event, the judge said the witnesses’ testimony was irrelevant to the issues raised in the plaintiff’s complaint.

As for the evidence that was admitted at trial, the TTC introduced medical records describing the plaintiff’s condition prior to the accident. The plaintiff argued this was irrelevant. But to the contrary, the judge said it was relevant to the question of assessing what injuries the plaintiff suffered as a result of the accident, as the defendant would only be liable for damages to the extent necessary to restore the plaintiff to her pre-accident condition.

The defence presented further evidence illustrating the plaintiff’s extensive history of filing personal injury claims, dating back to at least 1991. This included at least one prior lawsuit against the TTC for a separate incident that allegedly occurred in 2009, about three years before the events giving rise to the present case. Defence counsel raised this prior history during its closing address to the jury, effectively implying that the plaintiff was fabricating her current allegations.

Ultimately, the jury found the TTC was not negligent in causing or contributing to any injury sustained by the plaintiff. More precisely, the jury said the plaintiff “put herself in a potentially hazardous situation” by choosing to exit the bus through the rear door. Even if the TTC was somehow negligent, the jury calculated the plaintiff’s actual damages at $0. In addition, the trial judge awarded approximately $34,000 in costs to the TTC.

Divisional Court Unsympathetic to Plaintiff’s Legal Struggles

The plaintiff appealed to the Divisional Court. Once again, the plaintiff represented herself. Before the three-judge appellate panel, the plaintiff principally challenged the trial judge’s numerous procedural and evidentiary decisions. But in a May 18 judgment, the Divisional Court found all of the plaintiff’s arguments lacked merit.

Among other issues, the plaintiff argued that the trial judge falsely told the jury that it would be asked questions prepared “in consultation with both parties.” It is common practice in Ontario courts for both sides to submit proposed questions to be used in screening jurors. The plaintiff’s complaint was that the judge only used the questions proposed by the defence.

As the Divisional Court explained, the trial judge had good reason to do this. The plaintiff’s proposed questions “were not in conformity with the Rules” of the Court. For example, the plaintiff’s document used an “incorrect title of proceedings” and did not properly identify the parties to the case. In contrast, the defence relied on model forms commonly used in Ontario civil trials. For that reason, the Divisional Court said it was proper for the trial judge to use “questions in the appropriate form.”

At the end of the day, the Divisional Court said there was “sufficient evidence for the Jury to conclude that there was no damages” to the plaintiff and “no negligence on the part of the TTC.” Its verdict in favour of the defence was therefore not unreasonable. Nor was the trial judge’s award of costs to the defence unreasonable, especially considering the TTC actually offered to settle the plaintiff’s claims for $5,000 prior to trial. The plaintiff refused to enter into any kind of settlement talks. So not only was she left on the hook for the $34,000 in trial court costs, but the Divisional Court assessed an additional $10,000 in costs related to the appeal.

Speak to Preszler Law Before Rushing into Court on Your Own

One of the key reasons you should always speak to a lawyer following an accident is to obtain an honest assessment of your potential claim. Many accident victims are understandably motivated by their own sense of anger and loss. This can lead to a lack of perspective, especially when you are unfamiliar with how the legal system in Ontario actually works. The law in Ontario relating to motor vehicle accidents is complex and is often skewed in favour of the defendant, and more specifically, the insurance industry.

At Preszler Law Firm, our Toronto accident lawyers do not tell our clients what they want to hear. We tell them what they need to know about the realistic chances for recovering damages. Litigation is not a simple matter, and handling your own case will, more often than not, end badly for you.

If you have been injured in any kind of accident and suspect third-party negligence is to blame, call us or contact us online today to schedule a free initial consultation.

Source:

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3067/2018onsc3067.html

Herniated Discs: What You Need to Know

Herniated Disc Injury Compensation Ontario

Herniated discs are no laughing matter. They’re a type of back injury that may be caused by a slip and fall injury or car accident — and you may not notice the pain right away. A herniated disc may even cause pain or discomfort to radiate down to your feet, making it difficult to enjoy everyday life and even go back to work.

Because it can take a few days to notice a herniated disc injury, you may not immediately realize where it came from. But if you have been involved in an accident, most commonly a slip and fall or motor vehicle accident in Ontario, you should contact an experienced personal injury lawyer right away to discuss your options.

What is a herniated disc?

A herniated disc is also called a spinal disc herniation, slipped disc, or ruptured disc, and it refers to problems with one of the rubbery cushions that help keep our spines together. When herniated, the rubbery “jelly” pushes through the exterior of the spine.

Sometimes, a herniated disc causes no symptoms at all. Other times, the herniated disc may irritate nearby nerves and result in pain, numbness, or weakness of the arm or leg — depending on its location along the spine, though most occur in the lower back as it bears most of our weight and physical stress. Your muscles near the injury also may weaken, which can cause you to fall or make it difficult to carry items.

You also may have a herniated disc and not even know it. But for others, the pain is unbearable.

Herniated Disc Causes

Many cases of herniated discs are caused by age. As we get older, the wear and tear on our bodies and loss of water content in our spinal discs can result in what’s known as disc degeneration. However, some herniated discs are due to back injuries. Other types of back injuries that can occur during a motor vehicle accident or slip and fall accident include a back sprain or strain, spinal cord damage, or fractures, so it’s important to receive a proper diagnosis if you are experiencing symptoms.

Physical trauma — such as a blow to the back during a high-impact sport or the impact of a car accident — sometimes is unavoidable. But when your injury was caused by someone else, you may be entitled to compensation for your pain and suffering, time lost from work, medical bills, and more through filing a tort claim. A herniated disc can even cause a long-term disability, leaving the injured patient unable to earn an income and support their family. In some cases, you may be able to collect long-term disability benefits if you pay for them through your employer, or Accident Benefits if you were injured in a motor vehicle or other accident. A qualified Toronto personal injury lawyer can help you determine which benefits you may qualify for and other ways to seek compensation.

Herniated Disc Treatment

It is important to contact a doctor as soon as possible if you are experiencing pain, numbness, or tingling in your spine or body parts near the site of an injury. He or she can give a proper diagnosis of a herniated disc, which may be followed by preliminary treatment methods including anti-inflammatories, chiropractor visits, acupuncture, or steroids.

While herniated discs can improve over time with exercise and physical therapy, some injured patients opt for surgery. In fact, herniated disc surgery is the most common surgery performed for leg and back pain in the U.S. In some cases, doctors find these surgeries to be unnecessary, and fewer are performed in Canada because of long wait times and limited resources.

That said, Dr. Michael Goyten, head of the spine program at Winnipeg’s Health Sciences Centre, told CBC News that patients should make a decision on their treatment plan based on how much pain they can live with, essentially. In a study comparing surgical and non-operative treatment plans for 1,200 people with herniated discs over four years, both groups saw improved symptoms after two years; however, those choosing surgery generally said they felt better relief for sciatica and other pain than physical therapy alone.

“Although the outcomes might be the same at two years, well, two years is a lot of time to take off in terms of inability to work, or if you’re caring for children at home or maintaining a household,” Goyten said.

We couldn’t agree more.

Get Help with a Herniated Disc Injury

If your herniated disc or other back injury was caused by someone else’s negligence in any type of accident, you shouldn’t have to foot the bill. The experienced back injury lawyers of Preszler Law Firm can help you gather evidence and fight for a fair settlement. Call 1-800-JUSTICE or fill out our online case evaluator form to get started with a free consultation today.

Photo by Michael Dorausch (License)

How Ontario Juries Address Questions of Contributory Negligence

One of the more complex issues that often need to be addressed following a Toronto car accident is determining fault when two or more parties are involved. Take a simple, two-vehicle collision in which each driver insists the other caused the accident. What happens if a judge or jury decides both sides were liable to some degree?

Under the Ontario Negligence Act, the court is expected to determine “if fault or negligence is found on the part of the plaintiff that contributed to the damage.” Any damage award is then apportioned accordingly. So, taking our simple two-car accident example, if the jury decides the plaintiff was 20% at-fault, the defendant would only be liable for 80% of the plaintiff’s total damages. (In cases in which it is impossible to determine relative fault, the Negligence Act declares each side is equally responsible.)

Patterson v. Peladeau: Beware of Jurors Conducting ‘Internet Research’

A plaintiff is more likely to be found contributorily negligent if he or she committed a traffic violation prior to the accident. For example, an Ontario jury recently determined that the plaintiff in a pedestrian accident lawsuit was 73% at-fault after he was struck by a motorist. The plaintiff objected to the verdict because he alleged that the jury improperly relied on outside information in reaching its decision, but the presiding judge denied a mistrial on those grounds.

The accident itself occurred in the early morning hours during a period of “full darkness,” according to court records. The plaintiff had been driving his van when it became stuck in a snowbank. The plaintiff then walked to his home, drove back to the van’s location in his truck, and used the truck to pull the van out.

The plaintiff parked his truck in the roadway itself. He was standing next to the truck when the defendant, traveling down the road in his own vehicle, came upon the scene. The defendant swerved to avoid a collision, but in doing so he still managed to “clip” the plaintiff’s truck and strike the plaintiff himself. As a result of this impact, the plaintiff suffered a fractured pelvis and other serious injuries.

The plaintiff subsequently filed a personal injury lawsuit against the defendant. At trial, the main issue was the relative liability of the parties. The defence argued the plaintiff had created a “dangerous condition” in violation of the Ontario Highway Traffic Act. Specifically, the Highway Traffic Act states that “no person shall park or stand a vehicle on a highway in such a manner as to interfere with the movement of traffic.” Here, the defendant pointed to the fact the plaintiff had parked his truck in the roadway, thereby blocking the defendant’s vehicle, and was in fact standing on the road when he was struck.

The presiding judge, Justice Charles T. Hackland of the Ontario Superior Court of Justice, instructed the jury that it was “manifestly obvious” the plaintiff had “parked his truck on a highway in such a manner as to interfere with the movement of traffic,” in violation of the Highway Traffic Act. Under the circumstances, the plaintiff’s actions were negligence as a matter of law unless he was “parking on the road to deal with an emergency,” which was not the case here.

There was no question that the plaintiff committed contributory negligence, and the judge left it to the jury to decide the actual percentages. Based on Justice Hackland’s instructions, the jury proceeded to deliberate for five days before returning the verdict noted above.

Judge Satisfied Jury Followed His Instructions, Denies Mistrial

Shortly after deliberations began, one of the jurors took it upon his own initiative to conduct “some legal research,” according to Justice Hackland. The juror identified a regulation that he believed was relevant to the determination of fault in the case. The juror proceeded to discuss this regulation with the other jurors, which in turn led the jury to ask Justice Hackland about the issue.

Justice Hackland replied the regulation was “irrelevant” and should not be considered at all by the jury moving forward with its deliberations. He also reminded the jury it was not allowed to conduct “any further internet research pertaining to the trial.” But after the jury returned its verdict holding the plaintiff mostly at-fault, he moved for a mistrial “on the basis of trial unfairness resulting from the jury’s exposure to the internet information.”

As the judge explained, a mistrial is only granted “as a last resort” in civil cases. Here, the judge said he issued the jury an appropriate “correcting charge” to ignore the stray juror’s outside research. The judge was satisfied this was sufficient to avoid any prejudice to the plaintiff, especially since the jury “promptly disclosed” its wayward discovery to the Court and actively sought instruction.

The plaintiff still pushed back, pointing to the use of language in the jury’s verdict that appeared to mimic a term used in the irrelevant regulation discovered by the jury. The judge was not concerned about this. To the contrary, he said the jury properly relied on the Highway Traffic Act. Indeed, the regulation cited by the juror would have actually required apportioning 100% liability to the plaintiff, as opposed to the 73% liability actually found by the jury.

Working with a Toronto Pedestrian Accident Lawyer is Critical

Apportioning fault for an auto accident is highly dependent on the facts of each individual case. As you can imagine, there is no precise manner to decide whether a party is 73% liable versus, say, 70% or 55% liable. Jurors draw these somewhat arbitrary lines based on the relative strengths of each party’s presentations at trial.

This is why it is critical to work with a qualified Toronto motor vehicle accident lawyer if you have been in injured in any kind of crash and need to seek damages against a negligent driver. The defence will do everything in its power to shift the blame to you. You have the right to stand up for yourself. Contact Preszler Law if you need assistance in building your personal injury case today.

Sources:

https://www.ontario.ca/laws/statute/90n01

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2625/2018onsc2625.html

Are Income-Replacement Benefits Taxable?

Ontario Income Replacement Benefits Taxable

Recently, we addressed the question whether long-term disability benefits are taxable in Canada. As we saw, the answer to that question is complicated — some types of benefits are always taxable, some are never taxable, and some are only sometimes taxed. Today, we want to consider a similar question that has a much simpler answer: Are income-replacement benefits taxable?

As we’ll see, the answer is no. And that fits in with a broader pattern in how Canadian tax law treats personal-injury recoveries: Normally, no income tax is due on an award of damages or settlement amounts in a personal-injury case. In this regard, income-replacement benefits are analogous to damages for lost wages in an Ontario personal-injury lawsuit.

In this post, we’re going to take a closer look at income-replacement benefits and how Canada’s tax law treats them. But first, a quick reminder: We’re not tax lawyers. If you have questions about your particular financial circumstances or about how the following tax discussion applies to you, you should contact a knowledgeable Ontario tax professional.

What are income-replacement benefits?

Income-replacement benefits are payments made to a person who, as the result of an automobile accident, becomes unable to work. The benefits are offered as part of Ontario’s Statutory Accident Benefits (SABs), which every auto insurance policy in Ontario must provide.

In general, income-replacement benefits will be equal to 70% of your gross weekly income before the accident provided you were employed and not self employed. Gross weekly income is determined by dividing one of the following amounts by 52:

Your gross income for the 52 weeks before the accident; or
13 multiplied by your gross income for the four weeks before the accident.

However, income-replacement benefits are limited to $400 per week (or a higher amount if you purchased an optional add-on for your automobile insurance policy). In addition, your benefits will be reduced based on any collateral benefits you receive, such as disability benefits under the Canada Pension Plan or a private disability insurance policy.

The Tax Treatment of Damages, Settlements, and Similar Receipts

We’ve noted before that the Income Tax Act excludes from taxable income “the income . . . from any property acquired . . . as an award of, or pursuant to an action for, damages in respect of physical or mental injury.”

In 1987, the Canada Revenue Agency (CRA) issued an interpretation bulletin in which it expanded on that exclusion. There, the CRA explained that the exclusion extends to both general and special damages, including the following:

Out-of-pocket medical expenses
Accrued and future lost earnings
Pain and suffering
Loss of amenities of life
Lost earning capacity
Shortened life expectation.

The CRA made clear that “[a]ll amounts . . . that qualify as special or general damages for personal injury or death will be excluded from income regardless of the fact that the amount of such damages may have been determined with reference to the loss of earnings” (emphasis added).

In short, a damage award or settlement amount in a personal-injury lawsuit will normally not be taxed, even though part of it (lost wages) is effectively a replacement for what would have been taxable income.

Income-Replacement Benefits and Taxes in Canada

Given how the Income Tax Act treats personal-injury damages, it should come as no surprise that income-replacement benefits are also not taxed. However, although this is a real advantage, remember that these benefits will always be 30% less than your pre-injury income (which, for many Canadians, will mimic the effect of income taxes), and may be reduced still further if you receive similar benefits from other sources.

A Quick Note on Wage-Loss Replacement Plans

To help clear up some confusion we’ve noticed online, we should say a few words about the difference between income-replacement benefits under auto insurance policies and what the CRA calls “wage-loss replacement plans.” Although “wage-loss replacement” sounds very similar to “income replacement,” income-replacement benefits are not part of a wage-loss replacement plan.

As the CRA has explained, a wage-loss replacement plan “is any arrangement . . . between an employer and employees” under which an employee will receive benefits if he or she “suffers a loss of employment income as a consequence of sickness, maternity or accident.” Obviously, an individual’s automobile insurance policy doesn’t match that description.

The difference here matters, because proceeds from wage-loss replacement plans are generally subject to tax if your employer made any contributions to them and should be reported on line 104 of your T1. But as we’ve just seen, income-replacement benefits are received tax-free.

Conclusion

Thankfully, the Income Tax Act’s treatment of income-replacement benefits is not as convoluted as its treatment of long-term disability benefits. When you receive income-replacement benefits, you do not pay tax on them, just like you don’t pay tax on a damage award resulting from personal injury.

But as easy as that principle is to understand, qualifying for income-replacement benefits can be more complicated. In the first place, not everyone is eligible for income-replacement benefits in Ontario. In addition, insurance companies are notorious for how much they resist any application for benefits, even when their liability is clear.

To help ensure a smooth application process, or for help holding a recalcitrant insurance company to its word, contact one of the experienced Toronto personal-injury lawyers of Preszler Law Firm today.

How Much Time Do I Have to File My Birth Injury Claim?

Ontario Birth Injury Statute of Limitations

The birth of a child is one of the most joyous events in any person’s life. Seeing your newborn son or daughter for the first time after nine long months of the physical and emotional burdens of pregnancy is an experience like no other.

But when a pregnancy or birth is marred by negligent medical care, leaving a newborn child suffering from a birth injury like cerebral palsy, brain damage, fractures, or paralysis, what should have been a happy celebration can quickly turn into a lengthy period of physical, emotional, and financial hardships.

Birth injury claims in Ontario are among the most complex types of medical malpractice cases, thanks both to the substantive and procedural aspects of such claims. We’ve discussed some of those substantive aspects in the past. Today, we’re going to focus on one of the procedural aspects that makes this area of law so complex: the statute of limitations for birth injury claims.

What are statutes of limitations?

A statute of limitations is a time limit on how long a person has after being injured to file a lawsuit. If you fail to file a lawsuit during the period established by a statute of limitations, then you will normally lose the right to have a court adjudicate your claim — meaning you lose your case before you can even file it.

In Ontario, limitation periods are generally set by the Limitations Act. The basic limitation period is two years after the date on which a legal claim is discovered, which is the earlier of:

The day when the injured person first knew (1) that the injury had occurred, (2) that it was caused (at least in part) by the act or omission of the person against whom a claim is made, and (3) that a legal proceeding would be an appropriate means to seek a remedy; or
The day on which a reasonable person ought to have known those things.

Initially, an Ontario court would presume that the injured person discovered his or her injury on the date of the act or omission that caused it, but the injured person will have an opportunity to prove that that was not the case.

What statute of limitations applies to birth injury claims in Ontario?

Understanding the statute of limitations in birth injury claims requires understanding a handful of special principles. Here’s a quick overview:

The basic limitation period applies. To begin with, the two-year basic limitation period in the Limitations Act applies to birth injury claims. But things get more complicated from here.
A child’s minority delays the start of the limitation period. Section 6 of the Limitations Act delays the beginning of the limitation period for minors (i.e., children younger than 18). To be precise, the limitation period does not begin until one of the following occurs: The child reaches the age of majority (i.e., 18 years old) or a litigation guardian is appointed in relation to the claim.

The limitation period’s start may be delayed still further. If, when the injured child turns 18, he or she remains incapable of commencing a proceeding for the claim because of his or her physical, mental, or psychological condition, then Section 7 may continue to delay the start of the limitation period until: That incapacity is removed; or

A litigation guardian is appointed in relation to the claim.
A potential defendant can trigger the start of the limitation period by asking a court to appoint a litigation guardian.

Notice the second type of circumstance that can trigger the beginning of the limitation period under the above two principles: the appointment of a litigation guardian. A litigation guardian is a person who steps into the shoes of an injured individual who lacks the legal capacity to commence a proceeding for him- or herself (e.g., a minor).

Section 9 allows a potential defendant — someone against whom the injured person may have a claim — to apply to a court for the appointment of a litigation guardian for the injured person. That appointment will trigger the start of the limitation period as to the injured person, even though he or she is still a minor or still incapacitated.

To summarize, a minor with a birth injury claim will normally have until two years after he or she turns 18 to file a lawsuit for that claim. He or she may have longer to file suit if, upon turning 18, he or she is otherwise legally incapable of commencing a lawsuit. But a potential defendant can trigger the start of the two-year limitation period by asking a court to appoint a litigation guardian.

The Importance of Hiring a Lawyer for Birth Injury Claims

The unique set of principles that affect the limitation period in a birth injury claim highlight the complexity inherent in such claims. As we’ve noted in the past, good legal strategy may require waiting to file a lawsuit over a birth injury claim to take advantage of the delayed limitation period. On the other hand, such a strategy may come up against a potential defendant’s attempt to have a litigation guardian appointed.

In short, dealing with limitations issues in birth injury cases can be just as complex as the substantive law involved in those cases. A knowledgeable Ontario birth injury lawyer can help you understand the issues involved, provide comprehensive advice regarding the timing of a lawsuit, and pursue your or your child’s claim to a successful resolution.

If you or your child has suffered a birth injury as a result of medical malpractice, contact the experienced Ontario medical malpractice lawyers of Preszler Law Firm for a free consultation today.

How Will Ontario Courts Compensate My Child After a Birth Injury?

A catastrophic birth injury can rob your child of his or her future even before your child take a breath in this world. Parents who planned to celebrate the arrival of their new baby instead must face the question of how to pay for a lifetime of medical care for a severely injured child. In many cases, such questions also include assessing the potential liability of the doctor or hospital that oversaw the delivery. Medical malpractice is a leading cause of birth injuries, and when parents can prove that was the case, they are entitled to recover significant economic damages from the responsible parties.

Butler v. Royal Victoria Hospital: Child Suffers Cerebral Palsy Following Birth Nurse’s Errors

Birth injury cases are never straightforward. Even when a medical provider admits liability, they may still challenge the nature and extent of the available damages. This is further complicated by the fact it is often difficult to quantify the exact impact of a lifelong injury.

Recently, the Court of Appeal for Ontario addressed a tragic case involving a now-11-year-old girl who was born with cerebral palsy. The girl was born in 2007 together with her twin brother. The brother was delivered vaginally without apparent incident. But the girl was delivered by Cesarean section after nurses at the hospital artificially ruptured her membranes. The rupturing “resulted in a compression of the umbilical cord for some 25 minutes,” according to court records.

Within half an hour of birth, the girl suffered “seizure-like activity.” She was also unable to move her limbs spontaneously for approximately three hours. Subsequent tests revealed the girl experienced “perinatal asphyxia” — that is to say, deprivation of oxygen — that was diagnosed as “very severe” by her paediatric neurologist. About a year after birth, the girl was formally diagnosed with cerebral palsy.

In effect, the girl suffered severe brain damage at birth. As a result, according to her parents’ subsequent medical malpractice lawsuit, the girl sustained “serious and permanent” damage to her “gross and fine motor skills, speech, cognition, learning and behaviour.” She will never be in a position to live independently without 24-hour care. It also goes without saying the girl will never be able to attend normal schools or university, or to be employed in the job market.

Hospital Tries to Blame Victim’s Learning Disability on “Genetic” ADHD

At trial before Justice John R. McCarthy of the Ontario Superior Court of Justice, the defendants — the hospital and medical staff who delivered the girl — admitted that they erred in rupturing the membranes during delivery. They denied the parents could establish this mistake was the “but for” cause of their daughter’s asphyxia or the development of her cerebral palsy, however.

The defense further attempted to shift blame to the parents. They pointed to the parents’ “refusal to have [their daughter] participate in behavioural therapy” or undergo genetic testing that might have revealed she suffered from an inherited condition, such as attention deficit hyperactivity disorder (ADHD), that was the real cause of her present learning disabilities. The defendants further stipulated that even if damages were justified as a consequence of their negligence, the parents “greatly exaggerated” their daughter’s limitations and “gross and fine motor skills, speech, cognition, learning and behaviour.”

Justice McCarthy largely rejected the defence’s arguments. In a May 5, 2017 judgement, he concluded that the “balance of the evidence points to the hypoxic-ischemic brain injury suffered by [the girl] at birth being the sole cause of her cerebral palsy, behavioural and cognitive deficits.” The Court expressly rejected the defense’s suggestion that the girl had simply inherited ADHD. To the contrary, no doctor ever diagnosed the girl with ADHD, and in any event, Justice McCarthy said the medical evidence showed the probability of someone genetically inheriting such a condition was “less than 30%.”

Determining “Future Loss of Income”

Ultimately, the judge awarded total damages of nearly $5.6 million. Of that figure, about $1.9 million was for the girl’s “future loss of income.” The defence did not contest Justice McCarthy’s findings that the girl “will not be employable” at any point during her lifetime. But they nevertheless maintained the evidence failed to show that the girl “would have completed college” but-for her birth injury. Accordingly, they sought a reduction in the damages for future loss of income.

At trial, Justice McCarthy said that based on the parents’ own “education history” and “work ethic,” it was more likely than not that their daughter “would have been able to attain a college diploma and enter into the work force at age 21.” The Court of Appeal said this conclusion was “reasonable” and supported by “ample evidence.”

The trial court also acted reasonably in accepting the testimony of the parents’ expert witness, an economist, who estimated the total loss of their daughter’s future earnings based on a number of factors. The mere fact the defence presented their own expert whose contrary conclusions the judge afforded less weight to does not, in and of itself, constitute reversible error. At the end of the day, the Court of Appeal noted, “Calculation of the future loss of income of any child, let alone one born profoundly disabled is not an exact science.”

Speak with a Toronto Serious Birth Injury Attorney Today

Birth injuries are among the most emotionally and legally complicated kinds of medical malpractice claims. One issue that often arises is that it may take a few months or years before the injured child starts to manifest symptoms of a brain injury or developmental delay. As the above case illustrates, even once the effects are known, the hospital or doctors who performed the original birth will go out of their way to shift the blame to some other phantom cause.

This is why it is essential for parents to contact an experienced Toronto birth injury lawyer if they have any reason to suspect their child has sustained permanent damage due to medical negligence. Hiring a lawyer does not mean you plan to go charging into court. In fact, at Preszler Law Firm we usually take a more cautious approach. It is more important to make sure your child undergoes proper testing and evaluation before presenting a claim to a judge. If you need legal advice or assistance on how to deal with your child’s condition, call us today to schedule a free consultation.

Sources:

http://www.ontariocourts.ca/decisions/2018/2018ONCA0409.htm

https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2792/2017onsc2792.html

Can You Be Fired While on Disability in Ontario?

According to a Statistics Canada survey conducted in 2012, nearly 4 million Canadians had a disability that limited their daily activities, including more than 15% of Ontarians. We’ve discussed before some of the benefits available to Ontarians when a disability prevents them from earning an income through work, including:

Private disability insurance purchased by the individual or her or his employer.
Workers’ compensation benefits if the disability results from a work-related injury. (Note that workers’ compensation benefits are subject to a special sets of rules, so we won’t be discussing them in more detail in this article.)
Canadian Pension Plan (CPP) disability benefits, which are monthly payments to Ontario workers who have a severe and prolonged disability, are younger than 65, and have contributed the required minimum amount to the CPP program.
Ontario Disability Support Program benefits, which provides an array of income-support benefits to Ontarians who are substantially disabled and financially needy.

Today, we want to discuss a related question that we often hear: Can an employee be fired while on disability in Ontario?

The short answer to that question is it depends — mostly on the reason that the employee was fired. Nothing in the law protects an employee from being fired while on disability for reasons unrelated to his or her disability. But the law does protect Ontarians against discrimination in employment on the basis of disability. If an employer fires a disabled employee, and the employee’s disability was a factor in that decision, then the employer may have violated the Ontario Human Rights Code.

Let’s explore those two points in more detail.

The Ontario Human Rights Code: Disabilities and Employment

In Ontario, the Human Rights Code protects Ontarians against discrimination and harassment in employment and other areas on the basis of disability or certain other grounds. Section 5 of the HRC states that “[e]very person has a right to equal treatment with respect to employment without discrimination because of . . . disability.”

In section 10, the HRC defines disability broadly. The term includes:

Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect, or illness;
A condition of mental impairment or a developmental disability;
A learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;
A mental disorder; or
An injury or disability for which workers’ compensation benefits were claimed or received.

In addition to prohibiting discrimination, the HRC requires employers to accommodate disabled employees to the point of undue hardship. Accommodation requires the employer to investigate the employee’s needs and how he or she may be accommodated. It also requires that any accommodation offered by the employer must be substantively reasonable.

(Note that, even if an employee’s disability cannot be accommodated without undue hardship, the employer may still be liable for wrongful dismissal if the employee’s disability does not rise to the level of frustration of contract. That’s a separate question that goes beyond the scope of this article, but you should discuss it with your lawyer if you’ve been fired for a disability.)

The HRC and Disability Benefits

So, let’s return to the two parts of the answer we gave to our question in the introduction in light of the HRC:

The HRC does not render a person on disability immune from firing.

The HRC doesn’t specifically protect an employee against being fired while the employee is on disability. Instead, the law only protects the employee from discrimination because of his or her disability. That’s not nothing, but it is a somewhat different protection than some people expect.

In other words, being on disability does not make an employee immune from being fired for other reasons, such as bad behaviour or if the entire business shuts down.

The HRC prohibits discrimination and requires accommodation.

Remember that, under the HRC, (1) An employer cannot discriminate on the basis of disability; and (2) the employer must accommodate a disabled employee (3) to the point of undue hardship.

Given those three provisions, an employer may violate the HRC’s prohibition on discrimination in employment on the basis of disability if the employer fires a disabled employee, and the employee’s disability was a factor in that decision. Firing an employee because he or she is absent as the result of a disability means that disability was a factor in the firing.

Instead of simply firing an employee absent because of a disability, the employer has a legal obligation to ascertain the employee’s needs and determine how it can accommodate the employee so that he or she can return to work.

Note that the employee’s disability need not have been the only factor or even the dominant factor — if it was a factor at all, the employee may have a claim under the HRC. Whether the employer intended to discriminate is also irrelevant. Workers rights under the HRC do not depend on the secret goings-on in employer’s minds.

How Preszler Law Firm Helps Disabled Ontarians

Just as Ontario law protects disabled Ontarians against unscrupulous employers, it also protects them against unscrupulous insurers. Disability-insurance companies often try to use highly technical or confusing language in their policies to avoid keeping their promises to those covered by the policies.

Preszler Law Firm in Toronto helps protect Ontarians who are or become disabled against such behaviour by insurance companies. We guide our clients through the process of qualifying for, obtaining, and appealing denials of short-term and long-term disability benefits offered by insurance companies, the Canadian Pension Plan, and the Ontario Disability Support Program.

If you or a loved one’s disability benefits have been denied, or if you need assistance in applying for the benefits you are entitled to, our experienced Ontario disability lawyers are ready to help you. We represent clients on a contingency basis, which means you don’t pay us anything unless and until we recover benefits for you.

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Applicant v. Aviva Insurance Canada: Insurance Denial Rejected by License Appeal Tribunal