What Can Ontarians Learn from Colorado’s Experience with Legalized Marijuana?

Marijuana in Ontario: Lessons from Colorado

On October 17, 2018, the use of recreational marijuana became legal throughout Canada. That makes Canada only the second country in the world to have legalized the drug nationwide, and the first member of the G7 countries to do so. As a pioneer in national marijuana legalization, many questions about the potential impact of that move remain unanswered.

Of course, most of those questions are of interest mainly to provincial and federal policymakers. But one question that is of interest to us as Ontario car accident lawyers is how legal marijuana in Ontario might impact traffic safety in the province. To help answer that question, we can look to the experience of the handful of U.S. states that have also legalized recreational marijuana.

In particular, we can focus on Colorado, where a law-enforcement agency recently released a report analyzing the impact of legalization on traffic fatalities and the frequency of drivers driving under the influence of marijuana. By considering that data, what lessons can we Ontarians draw from Colorado’s experience with legal cannabis?

Article at a Glance

  • Since recreational marijuana was legalized in Colorado, the number of marijuana-related traffic fatalities has increased.
  • Similarly, the number of drivers testing positive for marijuana in Colorado has also increased.
  • Ontarians should let Colorado’s experience with legal cannabis serve as a reminder of the need to consume the drug responsibly and not get behind the wheel of a car while high.

Colorado’s Experience with Legalized Marijuana

Voters in Colorado authorized a state constitutional amendment legalizing recreational marijuana in November 2012. Possession and use of marijuana became legal almost immediately, although sales of marijuana only became legal in January 2014. But even that later date means Colorado now has nearly five years of experience with how legalization has affected the state’s traffic safety.

One organization that has tracked the effects of legalized marijuana in Colorado is the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), a law enforcement organization that helps coordinate drug-enforcement activities between federal, state, and local authorities.

According to a September 2018 report from the RMHIDTA, marijuana-related traffic fatalities are up in Colorado since legalization and the number of drivers testing positive for marijuana is also increasing.

Post-Legalization Traffic Fatalities in Colorado

The RMHIDTA’s report begins by providing some statistics regarding the effect of marijuana legalization on Colorado’s traffic fatalities. According to the organization:

  • Marijuana-related traffic deaths are up. Whereas all traffic fatalities have increased 35% since 2013, those related to marijuana have increased by 151% in the same period.
  • Traffic fatalities involving drivers testing positive for marijuana have increased. In 2013, 55 people died on Colorado roads in a collision in which a driver tested positive for marijuana. By 2017, that figure had jumped to 138.
  • The percentage of traffic fatalities related to marijuana use is increasing.4% of all traffic fatalities were marijuana-related in 2013, compared with 21.3% in 2017.

However, the RMHIDTA’s data does have some weaknesses. For example, its definition of “marijuana-related” is very broad, including “any time marijuana shows up in the toxicology report.”

But, as one expert explained to the Denver Post, “[u]nlike alcohol, THC can remain detectable in the blood stream for days or weeks, when any impairment wears off in a matter of hours.” In other words, “marijuana-related” doesn’t always mean “caused by marijuana.”

Driver Drug Screening

According to the RMHIDTA’s report, more individuals arrested for impaired driving in Colorado are testing positive for marijuana since legalization. In 2013, roughly 2,500 arrestees tested positive, compared with around 3,700 last year. That amounts to a nearly 50% increase in marijuana-positive drug screenings in four years.

Similarly, the number of driving-under-the-influence citations issued for drug use (DUID) have also increased since legalization. In 2014, the number of DUID charges involving marijuana was 674. In 2016, that figure had reached as high as 780, although last year saw only 719.

These statistics suggest that more Coloradans may be driving while high, putting themselves and others on the road at greater risk of harm.

Legal Marijuana in Ontario: What Can We Learn from Coloradans’ Experience?

What does all this mean for Ontario drivers? For now, it’s tough to say. Ontario is not Colorado, and the U.S. jurisdictions that have legalized marijuana face several unique problems that Ontario won’t:

  • The possession and sale of marijuana remain illegal under U.S. federal law, which may be depressing the number of Coloradans currently consuming marijuana.
  • Because marijuana is still illegal under U.S. federal law, their federal bank regulators have made it difficult for many cannabis businesses to open bank accounts. Being forced to deal in cash may be depressing the number of businesses operating in the marijuana market.

Here in Ontario, we won’t face those issues, because marijuana is now legal throughout Canada. As a result, it isn’t clear how much we can expect Ontario’s experience in a post-legalization world to mirror Colorado’s.

Perhaps the cannabis market will be better-developed here, leading to even higher rates of traffic violations and marijuana-related traffic fatalities. Or maybe the fact that marijuana will be legal throughout Canada under federal law will produce a more responsible population of marijuana consumers here than in Colorado.

In either case, we in Ontario can still consider Colorado’s statistics as a reminder of facts we really should already know. For example, Colorado’s experience can serve to remind us that marijuana use can impair your ability to safely operate a motor vehicle. If you consume marijuana and then get behind the wheel, you’re putting yourself and other drivers at risk of death or serious injury.

Similarly, keep in mind that whatever precautions you may take to avoid driving high (such as by calling an Uber or Lyft instead of driving yourself somewhere), not everyone else will do the same. So, as always, be aware of those around you while driving.

Learn more: Marijuana Legalization and Accident Benefits: What You Need to Know

Recent Case Examines When an Employee’s Disability Frustrates an Employment Contract

Frustration of Contract Ontario

Can you be fired while on disability in Ontario? We explored that question in an article earlier this year. As we explained then, the answer to that question is that it depends—mostly on the reason you were fired. Because Ontario’s Human Rights Code (HRC) requires employers to accommodate workers’ disabilities to the point of undue hardship, if an employer fires an employee because he or she is disabled, it may have violated the law.

Aside from our discussion of the HRC, we also briefly alluded to the concept of frustration of contract. Even when an employer cannot accommodate an employee’s disability without undue hardship, it can still be liable for wrongful dismissal if the disability did not rise to the level of frustration of contract.

But what standard do Ontario courts use to determine whether an employment contract has been frustrated by an employee’s disability-related absence? A recent Ontario Superior Court decision provides the answer.

Article at a Glance

  • A worker’s absence as the result of a disability can amount to a frustration of contract if there is no reasonable likelihood that the worker would be able to return to work within a reasonable period of time.
  • Courts consider the totality of evidence available to determine whether a worker’s absence has frustrated his or her contract of employment.
  • Disabled Ontario workers should consult an experienced lawyer for help navigating the complex rules relating to disability benefits and frustration of contract.

Roskaft v. RONA: Disabled Employee’s Absence a Frustration of Contract

In September 2002, the plaintiff in this case (Roskaft) began working for the defendant (RONA). Ten years later, Roskaft began a leave of absence for a medical condition. He remained unable to work thereafter and received short-term disability and long-term disability benefits under a disability insurance policy provided by his employer.

In October 2014, more than two years after he had stopped working, Roskaft completed a Return to Work form, stating that he was still unable to work because of his condition. In a section where Roskaft could list a return-to-work date, he instead wrote “N/A.”

In December 2014, the disability insurer informed RONA that Roskaft could not return to work and that he was totally disabled as to both his own occupation and any occupation (the usual standards for short-term and long-term disability benefits, respectively).

Finally, in September 2015, based on the 2014 correspondence RONA received from the disability insurer, the company notified Roskaft that he was being fired as a result of frustration of contract.

In response, Roskaft sued for wrongful dismissal.

Roskaft: RONA’s Failure to Inquire Regarding His Condition Meant It Could Not Fire Him

In his lawsuit, Roskaft pointed out that, “at the time of [the] termination of employment, RONA had not properly considered the possibility of his return to work.” As a result, he argued, RONA could not have known whether he would be returning to work within a reasonable timeframe.

RONA disagreed. It argued, instead, that what evidence it did have suggested that Roskaft was permanently totally disabled and would not be returning to work, and it had no obligation to contact Roskaft to further investigate that conclusion.

To be clear, Roskaft’s argument was not based around a claim that RONA had failed to accommodate him as required by the HRC. In fact, although he originally asserted such a claim when he sued RONA, he dropped that part of his lawsuit before the Superior Court could hear it.

Ontario Superior Court: Roskaft’s Contract Frustrated Because No Reasonable Likelihood of Return to Work

The Superior Court did not completely accept either party’s arguments, but ultimately sided with RONA.

First, the court explained the standard for frustration of contract. The issue it had to decide was “whether at the time of [Roskaft’s] termination of employment there was no reasonable likelihood that he would be able to return to work within a reasonable period of time.”

When it examined the evidence that RONA claimed justified the termination, it found it lacking. Contrary to RONA’s claims about what the insurance company had told it, the December 2014 correspondence from the insurance company did not say that Roskaft was “permanently” disabled, and so RONA could not rely on that alone to fire him.

However, when the court considered the “totality of the evidence,” it found that RONA’s decision was nonetheless supported. Specifically, the court referred to the following:

  • The insurance company’s determination that Roskaft qualified for long term disability benefits (meaning he was incapable of engaging in any occupation);
  • Roskaft’s ongoing representations that his medical condition had not improved and that he was totally disabled; and
  • Roskaft’s continued receipt of long-term disability benefits (suggesting that he agreed with the insurance company’s determination).

Based on that evidence, the court concluded, “it was reasonable for RONA to conclude at the time of termination of employment that there was no likelihood of Mr. Roskaft returning to work within a reasonable period of time.” As a result, Roskaft’s termination was not wrongful, and his lawsuit was dismissed.

Working with a Lawyer on Your Disability Claim

Roskaft’s situation wasn’t all bad. As RONA explained when it fired him, “he would continue to receive [long-term disability] benefits provided he remained totally disabled.” For many Ontarians, just receiving those benefits can entail a lengthy fight with the insurance company, which will try to increase its profits by minimizing payouts.

And notice how nuanced the court’s decision was. Although RONA had based its decision to fire Roskaft on a misreading of the insurance company’s communications, the fact that other evidence existed on which it could have legitimately based that decision was sufficient to support it.

Both of these facts serve to emphasize the need for disabled Ontarians to work with an experienced Ontario disability lawyer to protect their interests. A lawyer will help hold opportunistic insurance companies to their obligations and help the disabled worker evaluate and understand his or her right to continued employment.

Preszler Law Firm is an Ontario disability law firm with consultation offices throughout the province, including in Toronto, Barrie, Hamilton Kitchener, and Scarborough. Our lawyers have decades of experience helping disabled Ontarians protect their rights in and out of court. If you’ve become disabled and need help dealing with your disability insurer, contact us today for a free consultation.

Source: CanLII

Functional Capacity Evaluations in Ontario: What You Need to Know

Functional Capacity Evaluations in Ontario

When you’re injured in an Ontario automobile accident, Ontario law and your auto insurance policy entitle you to receive certain statutory accident benefits regardless of fault. If, as a result of your accident, you are unable to return to work for a period, those benefits include income-replacement benefits.

However, in some circumstances, your insurer can require you to undergo an independent medical examination to verify your continued eligibility for benefits. These examinations may involve any of several different types of evaluations, one of which is known as a functional capacity evaluation (FCE).

Functional capacity evaluations are intended to objectively test your ability to do certain routine tasks. The results are then used by your insurance company to determine whether you are still entitled to receive income-replacement benefits.

To help you understand what you can expect if your insurer asks you to undergo an FCE, we’ve compiled some basic information about your statutory rights regarding such requests and what you can expect from the evaluation itself.

Article at a Glance

  • If you’re receiving ongoing statutory accident benefits, your insurer can periodically require that you provide updated information or undergo an independent medical examination to prove your continued eligibility.
  • Functional capacity evaluations are a type of independent medical examination that insurers often require of those receiving income-replacement benefits.
  • Although functional capacity evaluations are meant to be objective, standardized tests, they are not the final word on your entitlement to statutory accident benefits.

Background: When Can Your Insurer Require an Independent Medical Examination?

When you’re receiving certain types of statutory accident benefits, your insurer is entitled to periodically review your ongoing eligibility for those benefits. For example, if you’re receiving income-replacement benefits or non-earner benefits, your insurance company can:

  • Request that you submit a new disability certificate within 15 days; or
  • Require that you undergo an independent medical examination, either in person or by submitting information and medical records to the professional chosen by the insurance company; or
  • Do both of the above.

If you refuse to comply with the insurance company’s request, the insurance company can stop paying your benefits until you do so.

Of course, the insurance company’s right to require either of these things (and, accordingly, its right to stop paying your benefits) is limited by the Statutory Accident Benefits Schedule (SABS). Specifically:

  • The insurance company cannot make such requests more often that is “reasonably necessary”; and
  • If the insurer notifies you of the need for an independent medical examination, it must tell you the medical and other reasons for the examination.

In addition, the insurance company is required to give you at least five business days’ advance notice if you will have to attend the medical examination in person. If your insurer makes a request that is not in compliance with these SABS rules, then you can challenge its subsequent denial of benefits.

Given the relative complexity of these requirements and the need to protect yourself against an insurer’s unreasonable demands, you should consult an experienced Ontario accident benefits lawyer if you have any questions or concerns about your insurance company’s conduct in this regard.

Where Do Functional Capacity Evaluations Fit In?

Functional capacity evaluations are a type of independent medical examination that your insurance company may require you to undergo. The evaluation is designed to test your ability to do routine tasks (like those you may be required to do at work) to objectively determine whether you can return to work or not.

Accordingly, during an FCE, you may be asked to perform tasks that test the following:

  • Your ability to stand, sit, or kneel;
  • Your capability to walk;
  • Your capacity to lift and carry objects;
  • Your pushing-and-pulling power;
  • Your grip strength;
  • Your range of motion and flexibility;
  • Your balance; and
  • Other functional capacities.

While observing you in performing these tasks, the person conducting the FCE will ask you about your pain level. He or she will use this subjective information to supplement the objective data collected from his or her observations.

Are Functional Capacity Evaluations the Final Word on Your Ability to Work?

No. In fact, as a standardized examination in an artificial setting, the results of functional capacity evaluations can be misleading. For example, an FCE may only last a few hours. But just because you can perform certain tasks for purposes of a one-off evaluation doesn’t mean you would be able to repeatedly perform those tasks, day-in and day-out, at work.

In addition, you may experience pain or fatigue as a result of undergoing the FCE that does not manifest until after you complete it. If you have to spend days recovering after undergoing an FCE, then your performance during the FCE is not a good indicator for how well you would do on the job.

Fortunately, if your insurance company terminates your benefits on the basis of an FCE, your lawyer can help you challenge that decision if you believe the FCE’s findings are faulty. Your lawyer may provide further, contrary evidence to your insurer to persuade it to reinstate your benefits. Alternatively, your lawyer can help you challenge your loss of benefits before the Licence Appeal Tribunal and Ontario courts.

Contact an Experienced Accident Benefits Lawyer Today

As the above discussion makes clear, you have legal rights when dealing with your auto insurance company—rights that insurance companies aren’t always keen to respect. To help protect your rights to continue receiving statutory accident benefits, including income-replacement benefits, you should work with an experienced Ontario personal injury lawyer.

Preszler Law Firm is a personal injury firm in Ontario with decades of experience helping injured Ontarians navigate the complexities of the province’s accident benefits system. Our lawyers work diligently to review your insurer’s conduct and hold it to its legal obligations under your insurance policy.

Contact Preszler Law Firm today for a free consultation about your case.

7 Common Mistakes Following an Ontario Motor Vehicle Accident

Ontario Car Accident Mistakes

In 2014, the most recent year for which final statistics are available, Ontario roads were home to more than 200,000 motor vehicle accidents. Although that number seems high, it amounted to only 1.61 collisions for every million kilometres travelled in the province.

Put differently, for most Ontarians, being involved in a collision is a rare event. That is undeniably a good thing, but it means that when a person is involved in an accident, he or she is often unsure of what his or her next steps should be.

Worse still, many Ontarians make mistakes in the hours, days, and weeks after an accident that can frustrate their ability to obtain legal compensation or insurance benefits for their property damage and personal injuries.

We’ve discussed before what you should do after a motor vehicle collision in Ontario. Today, we want to explore a related topic—seven of the most common mistakes we see Ontarians make following an Ontario car accident.

Article at a Glance

  • Although a person injured in an Ontario car accident is generally entitled to statutory accident benefits and may be entitled to other compensation, he or she can lose the right to recover in any of several ways after the collision.
  • Common mistakes in Ontario accidents include admitting fault, failing to collect evidence, not seeking medical treatment, failing to report the accident, discussing it on social media, settling too quickly, and trying to resolve your claims on your own.
  • Consulting an experienced lawyer soon after being involved in an Ontario car accident can help you avoid these and other common mistakes and obtain the compensation you deserve.

1. Admitting Fault

When you’re in an accident, one of your first instincts may be to admit you caused the accident, whether you were really at fault or not. Despite that instinct, do not do so. Although you may think taking the blame will help defuse a potentially tense situation at the accident scene, in reality you’re only causing legal trouble for yourself in the future.

That’s because your admission of fault can be used against you if another person involved in the accident asserts a tort claim. And your own words right after the crash can easily outweigh your subsequent assessment of the cause of the accident or other evidence that might come to light.

2. Failing to Collect Evidence

The scene of an accident is full of evidence that can help prove fault and jog your own memory in the weeks, months, and years to come. Of course, your first concern should be your well-being and that of others involved. But, if possible, you or someone you know should take some time to collect some of the available evidence.

Naturally, the most basic evidence you should collect is identification and insurance information for the other drivers involved in the accident. Unfortunately, some people will try to give you false information, so ask to see their drivers’ licences’ and insurance cards for yourself.

But there’s more evidence that you should collect at the scene of the accident if you can. Take photos of the scene with your smartphone. Ask others present if they witnessed the accident and, if so, ask for their contact information so that you or your lawyer can get in touch later.

3. Not Seeking Medical Treatment

Relatedly, many Ontarians make another mistake in the aftermath of an Ontario automobile collision: They fail to seek medical care. They may do this because they don’t want to be a burden on others, consider going to a hospital an inconvenience, or don’t think their injuries justify seeking medical attention.

But failing to obtain diagnosis and treatment is a bad idea for at least three important reasons:

  • You’re not a doctor. Many of the injuries sustained in an Ontario car accident are initially invisible, like whiplash. Even injuries of which you are aware may prove to be worse than you think right after the accident. An experienced medical professional can help ensure that all your injuries are properly diagnosed.
  • Time doesn’t heal everything. You may think that you need only take some time off from work and rest to get better following an accident. In some cases, that may be true—but not all. You should let a trained medical professional determine how best to treat your injuries.
  • Your insurance company—and Ontario courts—will require evidence of your injuries. Finally, obtaining medical treatment creates a paper trail that you or your personal injury lawyer can rely on in proving the extent of your injuries to an insurance company or a court, if necessary.

4. Failing to Report the Accident

Ontario law requires that you notify the police immediately if anyone is injured in a car accident or the damage to all vehicles appears to be greater than $2,000. Otherwise, you have 24 hours to report a collision to a Collision Reporting Centre.

Similarly, to qualify for statutory accident benefits, you must generally report your accident to your insurance company within seven days. If you are unable to do so within that period, then you must do so as soon as possible. Otherwise, your benefits may be delayed or you may lose the right to receive them altogether.

5. Discussing Your Ontario Car Accident on Social Media

These days people like to talk about anything and everything on social media, like Facebook, Instagram, and Twitter. But when it comes to legal claims—including accident-benefit claims and tort claims following an Ontario car accident—it’s best to keep things to yourself.

Insurance companies and defence lawyers are becoming increasingly tech-savvy, turning to injured persons’ social-media accounts for evidence to use against them. That could include photos of the accident, admissions of fault taken from status updates, or photographs or descriptions of the injured person doing something he or she shouldn’t be able to do with the injuries claimed.

6. Settling Too Quickly

As we explained above, you won’t always know the full extent of your injuries right away. And, unless you’re a lawyer, you may not fully understand your legal rights following an accident. Insurance companies will often try to leverage your naiveté to pressure you into settling your claim quickly by signing a document that reduces the amount they have to pay you.

The bottom line: If you’re being asked to sign something by another driver or an insurance company, your best option is to have your claim and that document reviewed by a lawyer before doing so.

7. Not Contacting an Experienced Ontario Personal Injury Lawyer

Ontario laws regarding compensation after an automobile accident are complicated. And whether you’re pursuing a DC-PD claim for property damage to your vehicle, a accident-benefits claim with your own insurer, or a tort claim with another driver’s insurer, the insurance company you’re dealing with will be represented by experienced lawyers to help them navigate those laws.

You should be, too.

Preszler Law Firm is an Ontario personal injury firm with offices throughout the province, including in Toronto, Ottawa, Barrie, Hamilton, Mississauga, and Whitby. Our lawyers are experienced at guiding injured Ontarians through the accident compensation process to obtain the benefits Ontario law entitles them to.

If you’ve been injured in an Ontario motor vehicle accident and would like help understanding your next steps and protecting your rights, contact us today for a free consultation.

Income Replacement vs. Non-Earner Benefits for Ontario Car Accident Victims

Non-Earner Benefits vs. Income Replacement

When you are injured in a car accident, Ontario law guarantees your right to certain benefits from your insurance carrier. These rights are spelled out in the Statutory Accident Benefits Schedule (SABS) and cover much more than your immediate medical expenses or the damage to your vehicle.

Ontario’s SABS also guarantees your right to income replacement benefits if you are unable to return to work following your accident. Income replacement does not actually provide 100% of your pre-accident wages. Rather, the SABS directs the insurer to pay a benefit of up to 70% of your prior gross weekly income, subject to a maximum benefit of $400 per week for the first 104 weeks (2 years) of your disability. You may also be eligible for benefits past 104 weeks under certain circumstances.

But what happens if you were unemployed or not working prior to your accident? In that scenario, you may receive what are known as non-earner benefits. This type of benefit applies when an accident victim “suffers a complete inability to carry on a normal life,” according to the SABS. If eligible, the victim is entitled to a fixed benefit of $185 per week for the first 104 weeks of disability, with the potential for a higher benefit amount after that time.

Article at a Glance

  • A person injured in an Ontario motor vehicle accident is entitled to statutory accident benefits regardless of fault.
  • Among the accident benefits a person may be eligible for are income replacement benefits and non-earner benefits.
  • If an individual is somehow entitled to both income replacement and non-earner benefits, he or she must choose which to receive. Otherwise, the insurance company may refuse to pay either.

Lefebvre v. Aviva Insurance Company of Canada: Accident Victim Hurts Her Own Cause by Failing to File Election

Unfortunately, you cannot receive both the income replacement and non-earner benefits. The SABS regulations require you to make an election–i.e., choose between the two–if you are somehow eligible for both.

Your insurance company is required to notify you within 10 days of receiving your application that an election is necessary. You then have 30 days from the date you receive that notice to inform the insurance company of your decision. Your election is considered “final” under the regulations, so you cannot change your mind and switch to the other benefit if you are unhappy with your choice.

Although the insurance regulations are fairly straightforward on this point, the Ontario Superior Court of Justice recently considered (and dismissed) an appeal on this subject. The case, Lefebvre v. Aviva Insurance Company of Canada, arises from a car accident that took place more than six years ago.

Injured Plaintiff Repeatedly Fails to Make an Election

Within two weeks of the accident, the victim’s insurance carrier sent her an Accident Benefits package. These documents essentially provide the necessary forms and contact information to file a claim for statutory benefits. Normally, the forms must be returned within 30 days of receipt.

For some reason, there was a dispute here as to whether the victim filed her forms in a timely manner. In fact, the insurance company claimed they were not filed until more than three years had passed.

In any event, both sides agree that the victim filed an application for benefits in January 2015. At the time of filing, the victim was unemployed. However, she was employed for 26 of the 52 weeks preceding the accident in 2012. Based on this information, the insurance company notified the victim on January 30, 2015, that she “may be entitled to an income replacement benefit and a non-earner benefit.” The insurer requested she make the necessary election within 30 days.

Once again, for some reason the victim never filed her election. Another year passed and the insurance company sent a second notice informing her that it could not adjust her claim until she decided whether to seek the income replacement or non-earner benefits, but the victim again declined to file an election.

Plaintiff Asks Licence Appeal Tribunal to Intervene

Instead, she filed an application with the Licence Appeal Tribunal (LAT), which handles disputes between insurance companies and their policyholders and other beneficiaries.

As framed by the LAT adjudicator, there was an initial question as to whether the victim “was barred from proceeding with her claim for an income replacement benefit or non-earner benefit because she failed to make an election between those benefits.” The adjudicator ruled in favour of the insurance company on this point.

Put simply, the adjudicator agreed with the insurer that the victim “potentially qualified for both an income replacement benefit and a non-earner benefit.” She was therefore required to make an election. Unless and until she did so, her “application for benefits was not complete.”

Superior Court: Failure to Choose Between Income Replacement and Non-Earner Benefits Doomed Plaintiff’s Claim

The victim appealed the LAT’s ruling to the Superior Court. Justice Wendy Matheson, however, was no more sympathetic to the victim’s case than the LAT. The victim argued the LAT incorrectly held that the law required her to make an election in order to complete her application for benefits. She also maintained that she filed a completed application back in 2012 and that she was entitled to a decision from the insurance company based on that application.

But as Justice Matheson explained, that is a factual issue that cannot be resolved on an appeal. In any case, the issue here was not when the victim filed her application–it was her failure to file the necessary election when asked to by the insurance company.

The victim claimed before Justice Matheson that such an election was unnecessary as she was “never eligible for the income replacement benefit.” But that conflicted with the information the victim provided in her benefits application. As mentioned above, the victim disclosed she worked 26 of the 52 weeks prior to the original car accident. That meant she was qualified for income replacement benefits, Justice Matheson noted.

Accordingly, the Court dismissed the victim’s appeal and ordered her to pay $6,000 in costs to the insurance company.

Preszler Law Help You Fight for Your Ontario Insurance Benefits

Many people find insurance forms confusing. But you should never allow ignorance or frustration to undermine your right to receive benefits. If you have questions or concerns about whether your insurance company is treating you fairly following a car accident, you should contact a qualified Toronto personal injury lawyer as soon as possible.

Do not try and deal with the insurer yourself, especially if you do not understand the law in this area. Instead, call Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers, who can review your case and advise you of the appropriate steps to take next.

Source:

CanLII

Is the Driver of the Rear Vehicle Always Responsible for A Rear-End Accident in Ontario?

Rear-End Accident in Ontario

When a rear-end car accident occurs, Ontario law starts with the presumption that the rear driver was responsible. This means that if a personal injury case goes to trial, the driver of the rear vehicle must prove he or she did not cause the rear-end accident.

Among other things, this includes proving the driver maintained a “reasonable distance” from the forward vehicle, that the driver kept control of the vehicle at all times, and that the driver was traveling at a speed that is “reasonable relative” to the forward vehicle, anticipating that said vehicle may need to stop for any reason.

This is actually quite a difficult burden for the rear driver to carry. Unless there is evidence that the driver of the front vehicle (or some third party) committed some unusual or unexpected negligent act, Ontario courts strongly favor holding the rear driver liable for an accident.

In some cases, this presumption of fault leads judges to award summary judgment to plaintiffs on the question of liability, deciding the case as a matter of law without going to trial.

Article at a Glance

  • Once a plaintiff in a motor vehicle accident case has proven that a rear-end accident occurred, the burden of proof shifts to the defendant (the rear driver) to prove he or she was not negligent.
  • As always, the parties’ credibility in rear-end accidents in Ontario is critical when a court or jury attempts to determine who was at fault for the accident.
  • If an expert’s testimony is based on a witness’s non-credible claims, the expert’s conclusions will be discounted.

Ozimkowski v. Raymond: Judge Does Not Find Defendant’s Testimony Credible in Rear-End Accident Case

This is precisely what happened in a case currently before the Ontario Superior Court of Justice, Ozimkowski v. Raymond. The plaintiff and the defendant were involved in a rear-end accident in Ontario that took place in January 2012. The parties were both traveling on a rural road in Lanark County.

On the day of the accident, the plaintiff left her job to go home. It was around 5:15 in the afternoon, the weather was “dark and raining heavily,” and the roads were “very slippery.” The plaintiff’s route took her over a hill. As she went over the hill and began to descend, she saw flashing emergency lights at the bottom of the hill (which turned out to be emergency personnel responding to another car accident).

The plaintiff then quickly applied her brakes because, as she later testified, “the roads were slippery and I couldn’t see what was in front of me.”

At the same time, the defendant was travelling behind the plaintiff. He saw the plaintiff stopping in front of him and moved to apply his own brakes. Unfortunately, his vehicle collided with the plaintiff’s Jeep. When the plaintiff exited her vehicle immediately following the collision, she slipped and fell on the icy road.

The plaintiff subsequently filed a personal injury lawsuit against the defendant. The defendant filed a third-party action against Lanark County, alleging its actions contributed to the accident. On the main issue of the defendant’s liability, the plaintiff moved for summary judgment, asking the court to resolve the issue without requiring a full trial.

Court Grants Front Driver’s Motion for Summary Judgment

Following a two-day hearing, Justice Ryan Bell of Ontario Superior Court granted the plaintiff’s motion in a September 28, 2018, order. In his Reasons for Decision, Justice Bell explained that there was no “genuine issue requiring a trial” as to the defendant’s liability.

Noting the defendant bears the burden under Ontario law of “disproving his own negligence,” Justice Bell summarized the evidence as follows:

  • On the evening of the accident, the road where the plaintiff and defendant were travelling was “icy,” dark, and subject to freezing rain.
  • The distance from the top of the hill to where the accident occurred was about 140 metres.
  • The plaintiff saw the emergency lights and brought her vehicle to a “controlled stop.” She did not engage in “aggressive braking” or take other unreasonable or unsafe actions.
  • The defendant, in contrast, did not see the emergency lights flashing from the top of the hill. He did not react until he saw the plaintiff’s brake lights come on. At that point, he was travelling at a speed of between 40 and 50 kilometres per hour.
  • Critically, the defendant offered conflicting testimony regarding his following distance–i.e., how far he was following behind the plaintiff when he started his own braking procedure.

On this last point, Justice Bell said there was “no air of reality” as to the defendant’s testimony. In fact, the defendant changed his story three times:

  • During a 2014 examination for discovery, the defendant estimated he applied his brakes “no more than 150 metres away and no less than 100 [metres].”
  • In a follow-up examination in 2016, the defendant said his following distance was only about “20 metres.”
  • A year after that, the defendant revised that figure again to “maybe six car lengths.”

Regardless of what the truth was, Justice Bell reiterated that the burden of proof was on the defendant, and he had simply failed to meet it.

Defendant’s Expert Testimony Insufficient

Much of the defendant’s case was built on expert testimony. Indeed, it was expert reports that led the defendant to continually revise his story with respect to following distance, as he conceded before the trial court he was “not good with estimating distances after an event has occurred.”

But even the defendant’s expert testimony did not help him, Justice Bell concluded. The judge actually went so far as to suggest the expert evidence would not be admissible at a jury trial.

The main problem was that the defence experts based their analysis on the “unsubstantiated assumption” that the plaintiff was “braking aggressively” and did not give the defendant sufficient time to respond. Given the defendant himself was an “unreliable and not credible” witness as to what happened, the judge said the expert’s analysis contributed nothing to an assessment of liability.

Finally, Justice Bell rejected the defendant’s view that summary judgment “would not fully resolve the issue of liability” because of his third-party action against the County. As the Court noted, the County was not a party to the plaintiff’s lawsuit. Instead, the defendant brought a third-party action which, if successful, would force the County “pay the defendant some of the damages the defendant is required to pay to the plaintiff.”

That raises separate legal issues that would not–indeed, could not–be tried by a jury. Justice Bell therefore granted summary judgment on liability and ordered the plaintiff’s case to proceed to jury trial on damages.

Preszler Law can Help if You Have Been Hurt in a Rear-End Accident

As this case illustrates, Ontario courts impose a high bar for rear drivers to avoid liability for a rear-end accident. But you can never take anything for granted. If you were injured in a rear-end accident and need advice from a qualified Toronto personal injury lawyer, contact Preszler Law Firm to schedule a free, no-obligation consultation today.

Source: CanLII

Ontario Increasing Penalties for Careless Drivers

Careless Driving Ontario

According to Ontario traffic statistics, on average one person is injured in a distracted-driving collision every 30 minutes, and a driver using a phone is four times more likely to be involved in an accident than a driver paying full attention to the road. In 2014, distracted driving was responsible for one in every five traffic fatalities in Ontario.

Ontario’s Highway Traffic Act (HTA) makes distracted driving illegal. It also penalizes drivers who drive carelessly, whether or not they do so because of a distraction.

Last year, the HTA was amended to impose higher penalties on drivers convicted of distracted or careless driving. For careless driving, those higher penalties took effect September 1 of this year. The increased penalties for distracted driving will become effective on January 1 of next year.

Drivers should keep these penalties in mind while driving as motivation to drive safely. But the more important issue for drivers to consider is not is not the legal consequence of unsafe driving, but the heavy physical, emotional, and financial cost of causing a motor vehicle accident because of inattentiveness or carelessness.

Article at a Glance

  • The Ontario Highway Traffic Act has been amended to provide higher penalties for careless driving causing bodily harm or death and failing to yield to pedestrians. Those changes took effect September 1, 2018.
  • The Highway Traffic Act will also impose higher penalties on drivers convicted of distracted driving starting January 1, 2019.
  • These penalties play an important role by dissuading unsafe driving habits, but drivers should also be mindful of the human cost that careless or distracted driving imposes on others.

New Penalties Effective September 1, 2018

Some of the changes to penalties that Ontario has enacted became effective September 1, 2018, including penalties for careless driving causing bodily harm or death and failing to yield to pedestrians in certain circumstances.

Careless Driving Causing Bodily Harm or Death

A person is guilty of the offence of careless driving if he or she drives a vehicle on a highway without due care and attention or without reasonable consideration for others highway users.

Since 2010, section 130 of the Highway Traffic Act has provided that drivers convicted of careless driving face the following penalties:

  • A fine of between $400 and $2,000;
  • Imprisonment for up to six months; and
  • Suspension of driver’s licence or permit for up to two years.

These penalties remain in force for careless driving that does not result in bodily harm or death.

However, in 2017 the HTA was amended to include higher penalties in cases where careless driving does cause bodily harm or death. Those new penalties, which became effective September 1, 2018, include:

  • A fine of between $2,000 and $50,000;
  • Imprisonment for a term of up to two years; and
  • Suspension of driver’s licence or permit for up to five years.

In addition, when determining what penalties to impose on a person convicted of careless driving that causes bodily harm or death, courts are required to consider evidence that the person injured or killed was particularly vulnerable to injury by careless driving—for example, because he or she was a pedestrian or cyclist.

Failure to Yield to Pedestrians

In addition to the new penalties for careless driving that results in bodily harm or death, the penalties for failing to yield to pedestrians at crosswalks, school crossings, and crossovers are also increasing. Before September 1 of this year, such offences were punished by a fine of up to $500. Starting September 1, that fine increased to up to $1,000.

Further Penalties: Demerit Points in Ontario

In addition to the penalties described above for careless driving and failing to yield to pedestrians, Ontario law also penalizes drivers with demerit points for such behaviours. A driver will receive six demerit points for careless driving and four (up from three before September 1) for failure to yield.

The Ontario Ministry of Transportation uses the demerit point system to further penalize drivers who commit repeated traffic law violations. Demerit points remain on your driving record for two years after you earn them, and if you earn too many, you will be penalized. For a new driver (a driver with a G1, G2, M1, M2, M1-L, or M2-L licence), the penalties are:

  • 2 to 5 points: You will receive a warning letter.
  • 6 to 8 points: Your licence may be suspended, or you may be required to attend an interview to give reasons why it should not be. There is a $50 fee for demerit point interviews, and if you fail to pay the fee, your licence will be cancelled.
  • 9 or more points: Your licence will be suspended for 60 days.

For a driver with a full licence, the penalties are:

  • 2 to 8 points: You will receive a warning letter.
  • 9 to 14 points: Your licence may be suspended, or you may be required to attend an interview to give reasons why it should not be. There is a $50 fee for demerit point interviews, and if you fail to pay the fee, your licence will be cancelled.
  • 15 or more points: Your licence will be suspended for 30 days.

If your licence is suspended, you must surrender it. If you fail to do so, you can lose it for up to two years.

Changes to Distracted Driving Penalties Effective January 1, 2019

One of the most common causes of motor vehicle accidents in Ontario is distracted driving. To combat this problem, the province since 2010 has prohibited the use of handheld devices or display screens visible to the driver while a car is being driven.

Currently, the penalties for violating those prohibitions are a fine of between $300 and $1,000 and 3 demerit points.

But starting January 1, 2019, the penalties will increase as follows:

  • First offence: A fine between $500 and $1,000 and licence suspension for three days.
  • Second offence: A fine between $500 and $2,000 and suspension for seven days.
  • Third or subsequent offence: A fine between $500 and $3,000 and suspension for 30 days.

The Real Problem with Distracted or Careless Driving

Ontario’s increased focus on preventing distracted or careless driving is a welcome change. But it’s important to look beyond the legal penalties that the province attaches to such behaviour to understand the real risks posed—and the real reason why every Ontario driver should pay attention to the road and drive carefully.

Careless or distracted driving often results in accidents that seriously injure or kill the driver, his or her passengers, or other users of the road. This human cost is so much worse than the fines, demerit points, suspensions, and even imprisonment that the province imposes on careless drivers.

If you’ve been injured in an automobile accident in Ontario as the result of another driver’s carelessness or distraction, you should contact an Ontario personal injury lawyer for help obtaining the compensation that Ontario law entitles you to. Contact Preszler Law Firm today for a free consultation to help you understand your rights.

Wrongful Death Claims in Ontario: What You Need to Know

Ontario wrongful death

According to preliminary statistics from the Ontario Ministry of Transportation, almost 500 Ontarians died as the result of 439 fatal traffic collisions during 2016. Though thankfully relatively rare, such cases are among the most tragic for everyone involved. Family and friends confront the unexpected loss of a loved one and the daunting prospect of living on without his or her love and companionship.

Although there is no way to replace a person’s life, and no amount of money can ever truly compensate for the death of a loved one, Ontario law does provide family members of a person killed by another’s wrongful act with legal recourse in the form of a wrongful death claim.

Wrongful death claims are brought under the Family Law Act, a statute that entitles close family members to compensation when a person is injured or killed through the fault of another. To help Ontarians grieving the death of a family member understand their legal rights following their loss, this article provides a summary of wrongful death claims in the province.

Article at a Glance

  • Wrongful death claims are a type of tort claim under the Family Law Act brought by close family members following a loved one’s death.
  • Wrongful death occurs when a person is killed because of the neglect or other fault of another person.
  • Family members can recover both pecuniary and non-pecuniary damages in a wrongful death claim, but must file their claim in court within two years after the death of their loved one.

Elements of Ontario Wrongful Death Claims

As with all tort claims, the plaintiffs in a wrongful death claim must prove their entitlement to compensation under the law. To prevail in an Ontario wrongful death claim, the plaintiffs must prove that:

  • They are related to the deceased person in one of the ways described in Part V of the Family Law Act (spouse, children, grandchildren, parents, grandparents, and siblings);
  • The deceased person was killed by the fault or neglect of another;
  • The decedent’s death was under circumstances where he or she would have been entitled to recover damages if he or she had not died; and
  • The family-member plaintiffs suffered damages of their own as a result of the death.

As the breadth of the second and third elements make clear, wrongful death claims do not only arise in the context of car accidents. In fact, a person may have such a claim anytime a family member’s death was caused by another’s negligent, reckless, or intentional acts.

Damages for Wrongful Death

In a wrongful death action, the deceased person’s family members can recover for their own damages resulting from the person’s death. These can include both pecuniary and non-pecuniary damages, such as:

  • The costs of caring for the deceased person after his or her injury but before death;
  • A reasonable allowance for traveling to visit the deceased person during treatment before his or her death;
  • Lost income caused by the need to care for the deceased person before death, or the loss of income the deceased person would have provided the family;
  • Increased expenses occasioned by the deceased person’s death—for example, the cost of home maintenance and repairs if the deceased person had performed such services previously;
  • An amount to compensate for the loss of guidance, care, and companionship; and
  • Actual funeral expenses.

For wrongful death claims in a car accident case, note that although Family Law Act claims in car accident cases are normally subject to a statutory deductible that reduces the amount family members receive as non-pecuniary damages, that deductible does not apply in wrongful death cases.

Statutory Accident Benefits in Car Accident Cases

In car accident cases, in addition to the amounts that family members may be able to recover through a wrongful death claim, they may also be entitled to recover death and funeral benefits under Ontario’s Statutory Accident Benefits Schedule (SABS) in car accident cases. Death and funeral benefits include the following:

  • Spouse’s benefit: A payment to the deceased’s spouse in the amount of $25,000 (or $50,000 if optional coverage was purchased);
  • Dependants’ benefits: A payment to each of the deceased’s dependants in the amount of $10,000 (or $20,000 if optional coverage was purchased). Also, if no spouse’s benefit is required (e.g., because the deceased person was not married), then the $25,000 that would have gone to the spouse is split equally among the deceased’s dependants; and
  • Funeral benefit: A funeral benefit to pay for funeral expenses up to $6,000 (or $8,000 if optional coverage was purchased).

Like all SABS benefits, death and funeral benefits are available regardless of who was at fault in causing the motor vehicle accident. That is, even if no one was at fault for the accident, and even if the deceased family member was at fault, these accident benefits will still be available.

Limitation Period for Wrongful Death Claims

A limitation period is the amount of time a person has to file a lawsuit. If a person tries to file a lawsuit outside of the limitation period, then the defendant can ask the court to dismiss it, and the court will normally do so—regardless of the merits of the underlying claim.

In Ontario, the Limitations Act establishes the limitation period for personal injury claims, including those for wrongful death. Under the Act, a person generally has two years after a family member’s death to file a wrongful death lawsuit, but this period is shortened when the defendant is an Ontario municipality (e.g., the City of London or Kitchener).

Consequently, family members should consult a wrongful death lawyer as soon as possible after losing their loved one to ensure that their rights are protected.

How a Wrongful Death Lawyer Can Help You Recover After Losing a Loved One

The death of a loved one is always a traumatic event, and an unexpected death caused by another’s wrongdoing is even more so. Truly recovering requires time, the love and affection of other family members and friends, and the guidance of spiritual advisers or other counselors.

Ontario law can also play a role by providing financial compensation when a family member’s death is caused by the negligence or fault of another person. An Ontario wrongful death lawyer can help gather evidence and build a strong case to assist in obtaining the justice that family members deserve in such circumstances.

Preszler Law Firm is a wrongful death firm with decades of experience helping grieving Ontarians through one of the darkest periods in life. Our lawyers work with diligence, sensitivity, and compassion to pursue our clients’ wrongful death claims to a successful resolution. If you’ve lost a loved one because of another person’s wrongful actions, contact our lawyers today for a free consultation.

How is Fault Determined in an Ontario Auto Accident?

fault in Ontario auto accidents

One of the first questions on many drivers’ minds following a motor vehicle accident is, “Am I at fault for the collision?” That question is important for several reasons. Who was at fault in Ontario auto accidents affects how much each person involved can recover for property damage and personal injuries. An at-fault driver can also see his or her insurance premiums rise as a result of the accident.

But how fault is determined following an Ontario auto accident isn’t always clear to the drivers involved. In fact, the method used to determine fault varies based on the type of claim being made—and some aspects of recovery don’t rely on a fault determination at all.

To help drivers understand how their conduct affects determinations of fault in Ontario auto accidents, this post explores that issue in more detail.

Article at a Glance

  • Insurance companies, parties to litigation, and courts use determinations of fault to allocate liability for damages caused by an automobile accident.
  • How fault is determined varies depending on the type of claim being made. It is irrelevant to statutory accident benefits; based on pre-defined hypothetical scenarios for DC-PD claims; and based on the common law of negligence for tort claims.
  • Establishing a defendant’s fault and defeating claims that the injured plaintiff was also at fault are critical steps in obtaining legal recovery following a car accident.

Fault in Ontario Auto Accidents: Why it Matters

The concept of fault in Ontario auto accidents is what insurers, parties to litigation, and courts use to allocate liability for damages caused by the accident. To understand how they do this, first recall that Ontario insurance policies generally have three distinct components:

  • Statutory Accident Benefits Coverage. This coverage provides certain benefits to insured individuals regardless of fault.
  • Direct Compensation-Property Damage (DC-PD) Coverage. DC-PD coverage compensates an insured person for damage to his or her own vehicle to the extent that another driver is found to be at fault for the accident.
  • Third-Party Liability Coverage. This coverage pays for damages in a tort claim by another driver (or cyclist, pedestrian, or other person) when the insured driver is at fault for the accident.

An injured person can only recover under his or her own DC-PD coverage, or under another’s third-party liability coverage, to the extent that he or she was not at fault in causing the accident. If the injured person was partially at fault, then his or her recovery will be reduced according to his or her degree of fault (e.g., 25% or 50%).

Additionally, a driver found to be at fault in causing an accident may also see his or her insurance premiums rise when the policy renews.

Ontario Statutory Accident Benefits: When Fault Doesn’t Matter

Before we move on, we should note one important respect in which fault does not matter in Ontario motor vehicle collisions: recovery of statutory accident benefits.

As mentioned above, statutory accident benefits are the no-fault portion of every Ontario auto insurance policy. That means that a person is entitled to them regardless of who was at fault in causing the accident. A driver will apply to his or her own insurer for accident benefits even if the other driver was entirely at fault, and can recover accident benefits even if the driver him- or herself was entirely at fault for the accident.

Statutory accident benefits include:

  • Medical and rehabilitation benefits;
  • Income replacement benefits of up to 70% of gross income; and
  • Attendant care benefits.

Recovery for damages beyond these benefits requires making a DC-PD or tort claim, both of which are based on fault.

How Fault is Determined in DC-PD Claims: Follow the Rules

To help facilitate the process of handling property-damage claims in Ontario, the province has enacted the Fault Determination Rules under the Insurance Act. The Rules describe more than 40 common accident scenarios and assign fault in Ontario auto accidents involving property damage to one or more of the drivers involved.

The Rules include scenarios like the following:

  • Automobile “A” is struck from the rear by automobile “B” when both are travelling in the same direction and the same lane. If “A” is stopped or in forward motion, or if “A” is turning to enter a side road, private road, or driveway, the driver of “A” is not at fault and the driver of “B” is 100% at fault.
  • Automobile “A” collides with automobile “B” when both are traveling in the same direction in adjacent lanes. If “A” is turning left at an intersection, and “B” is overtaking “A” to pass it, the driver of “A” is 25% at fault and the driver of “B” is 75% at fault. But if “A” was turning left at a private road or driveway, each is 50% at fault.
  • Automobile “A” is struck from the rear by automobile “B,” which is struck from the rear by automobile “C” when all three are travelling in the same direction and lane. If all three vehicles are in motion, “A” is not at fault; “B” is 50% at fault in its collision with “A,” but not at fault in its collision with “C”; and “C” is 100% at fault in its collision with “B.”

Note that the Fault Determination Rules do not factor in the particular circumstances in which an accident occurs, such as weather conditions, road conditions, or visibility. Although those issues are important in determining fault in a tort claim, the Rules tell insurance companies to ignore them for DC-PD purposes.

Instead, insurance companies simply compare the facts of an automobile accident to the scenarios outlined in the Rules to find the closest match. If there is no match, or if there is insufficient information about a collision to determine what happened, fault is assigned “in accordance with the ordinary rules of law”—i.e., in the same way as with tort claims.

How Fault is Determined in Tort Claims: Negligence

In tort claims arising out of an automobile accident, fault is determined by evidence showing that one or more persons was negligent, and that that negligence caused the accident. A person is negligent when he or she fails to use such care as a reasonable person would have under the same or similar circumstances.

Examples of negligence in a car accident include:

  • Speeding;
  • Running a red light;
  • Failing to keep a proper lookout (e.g., because of distracted driving);
  • Driving while under the influence of drugs or alcohol; and
  • Not using headlights when driving at night.

A person whose negligent behaviour causes an accident is at fault for that accident in a tort claim. If both an injured plaintiff and the defendant who injured him or her are found to be at fault in causing an accident, then the plaintiff’s recovery will be reduced according to his degree of contributory negligence.

Determining Fault in Ontario Auto Accidents is Key

Because of the impact of a fault determination on what amounts a person can recover under his or her insurance or through a tort claim, and the effect of a fault finding on insurance rates, proving that another driver was at fault, and you were not, is critical to recovering for the full amount of your property damage and personal injuries.

Proving those facts often requires the assistance of a personal injury lawyer. A lawyer will help you gather evidence establishing fault and rebutting claims that you, too, bear some responsibility for the accident.

Preszler Law Firm is a personal injury firm with locations throughout Ontario. Our lawyers have decades of experience helping Ontario drivers obtain the compensation they deserve following a motor vehicle accident in the province. If you’ve been injured in an accident through the fault of another person, contact us today for a free consultation.

What are Family Law Act Damages and When Are You Entitled to Them?

Family Law Act Damages

Personal injuries don’t just affect the person who’s injured. If you or a loved one has ever been injured in a motor vehicle accident, slip and fall, or other incident, you know the emotional and financial toll that injury takes on the injured person’s family.

Ontario law recognizes the impact that injuries to a person have on his or her close family members and provides a remedy when those injuries are caused by the fault or negligence of another person.

The Family Law Act (FLA) is an Ontario statute that mostly concerns itself with family law matters—marriage and divorce, spousal and child support, and so on. But Part V of the Act concerns personal injury law: It permits certain close family members of an injured person to sue another whose intentional or negligent acts caused the injuries.

Many tort claims in Ontario include not only the claims of the injured person him- or herself, but also claims for Family Law Act damages by members of his or her family. Understanding what those damages are and when they can be pursued is critical to ensuring that the entire family can obtain justice following a personal injury.

Article at a Glance

  • The Family Law Act authorizes compensation for the family members of a person injured or killed by the fault of another.
  • The family members who qualify for Family Law Act damages include a person’s spouse, children and grandchildren, parents and grandparents, and brothers and sisters.
  • Family members can recover for both pecuniary and non-pecuniary damages, but certain limitations apply to the latter.

Family Law Act Damages in Tort Claims

Part V of the FLA defines the circumstances in which an injured person’s family members can recover their own damages resulting from the person’s injuries. Specifically, a family member can recover such damages if the following elements are all satisfied:

  • The person was injured or killed
  • By the fault or neglect of another person
  • Under circumstances where the injured person is entitled to recover damages, or would have been entitled if not killed; and

In addition, the family member bringing the claim must be one of those described below.

What Family Members Qualify for Family Law Act Damages?

The close family members entitled to recover under the FLA are the injured person’s:

  • Spouse;
  • Children and grandchildren;
  • Parents and grandparents; and
  • Brothers and sisters.

The FLA provides a broad definition of spouse, child, and parent. “Child” includes a person whom a parent has demonstrated a settled intention to treat as his or her own child, except for foster children. Likewise, “parent” includes a person who has demonstrated such an intention with respect to a child. A formal adoption is not necessarily required.

A “spouse” is either of two persons who:

  • Are married to each other;
  • Have entered into a marriage that is voidable or void, in good faith on the part of the person relying on this definition;
  • Are unmarried but have cohabited continuously for a period of at least three years; or
  • Are unmarried but have cohabited in a relationship of some permanence, if they are the parents of a child as determined by the Children’s Law Reform Act, which uses a different definition of “parent” than the FLA’s.

This broad definition of spouse recognizes the ways in which the Canadian family is changing.

What Damages Are Available Under the Family Law Act?

The FLA contains a non-exhaustive list of damages that an injured person’s family members can recover. Those damages include:

  • Actual expenses reasonably incurred for the injured person’s benefit;
  • Actual funeral expenses reasonably incurred (i.e., in a wrongful death case);
  • A reasonable allowance for travel expenses actually incurred in visiting the injured person during his or her treatment or recovery;
  • A reasonable allowance for lost income or the value of services if the family member provides nursing, housekeeping, or other services for an injured person as a result of the injury; and
  • An amount to compensate for the loss of guidance, care, and companionship caused by the person’s injuries or death.

However, some limitations apply to FLA damages. First, any damage award under the FLA will be reduced to the extent the injured person was at fault in causing his or her own injuries—that is, the extent of his or her contributory negligence.

Second, just as the Supreme Court of Canada has placed a cap on non-pecuniary damages generally, the Ontario Court of Appeal has capped non-pecuniary damages in FLA claims. That cap was $100,000 in 2001, but it is subject to inflation.

Finally, in cases involving motor vehicle accidents, the Insurance Act imposes a deductible on non-pecuniary damages in some circumstances. In general, any non-pecuniary damages awarded under the FLA will be reduced by the statutory deductible, which is $18,991.67 for 2018. But this deductible will not apply if:

  • The non-pecuniary damages awarded to a family member under the FLA exceed $63,304.51; or
  • The injured person was not only injured, but died as a result of the accident.

In other words, in cases involving particularly serious injuries, the statutory deductible is waived.

Getting Help with Family Law Act Claims

Making a Family Law Act claim requires adding one or more family members as plaintiffs in a personal injury lawsuit. That opens those family members to the entire litigation process. If the case cannot be settled out of court, that means they may have to go through the discovery process, including an examination for discovery, and testify at trial.

In some circumstances, the benefit of obtaining Family Law Act damages may be outweighed by the inconvenience of that process or other considerations. A personal injury lawyer can help an injured person and his or her family members think through those issues and decide on the best legal strategy for their claims.

Preszler Law Firm is an Ontario personal injury firm committed to helping families recover for injuries to their members. Our lawyers have decades of experience helping injured plaintiffs and their loved ones obtain compensation for their damages. If you or a family member has been injured by another person’s wrongful act, contact us today for a free consultation to understand how Ontario law, including the FLA, can help you recover.