Civil vs. Criminal Bartender Liability in Drunk Driving Accidents

Drunk driving rates have plummeted for decades in Canada, but impairment continues to be a major risk factor on our roads, as car accident lawyers know. Considering the time, money, and effort stakeholders have put into anti-drunk driving campaigns, when impaired driving accidents dooccur there tends to be significant public outcry. Community members want to know who is responsible.

The question of responsibility for drunk driving accidents doesn’t always come with easy answers. Yes, the individual who chose to get behind the wheel bears significant liability – but did they act alone? Were they overserved at a friend or relative’s house? Did they visit a bar or restaurant before driving? What happens if the driver is under the legal drinking age?

Some of these questions were asked following a single-vehicle impaired driving accident in 2017 near Ottawa that left two teenagers dead and another two seriously injured. All four had been drinking at Shooters’ Bar and Grill in Calabogie, Ontario, before the crash.

In 2018, 62-year-old Ann Senack, who served the boys at the establishment, was charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. The trial began this spring.

According to legal experts who spoke to Canadian Underwriterin 2019, criminal charges against bartenders related to drunk driving accidents are notoriously hard to prove.

“To extend criminal liability in these circumstances is very, very uncommon,” said Michael Lacy, president of the Criminal Lawyers’ Association. “If someone were held criminally culpable in these circumstances, I’d say that would be a precedent-setting decision.”

Another criminal lawyer told the publication that prosecutors would have to prove that there was a “marked and substantial” departure from the standard of care that servers owe patrons.

‘Prosecutors would have to show a bartender knew the person they were serving was clearly underage, and knew the person was driving home and was impaired to such a degree that it would be a danger to them and to others,’ Canadian Underwriter reported. ‘The Crown would also have to show a direct link between the alcohol served to the person and the injuries caused.’

Sure enough, Crown attorney Jefferson Richardson announced last month that charges against Senack would be stayed after cell phone records showed that the driver of the vehicle was using his phone at the time of the accident. Instead of facing jailtime, the server agreed to a 10-year peace bond and will pay $10,000 and perform 300 hours of community work, according to CBC News Ottawa.

However, the CBC also reported that several civil cases against Senack are pending – and the threshold for proving civil negligence is much lower than in criminal cases.

In order to establish negligence in a civil case, plaintiff-side lawyers most only prove that it is more likely than not that the bartender breached their standard of care.

“Those two things – one being the higher standard for criminal negligence, and the higher burden of proof in a criminal case – means that the viability of this type of prosecution is often minimal, which is why most of these cases are dealt with in the civil courts,” the criminal defence lawyer told Canadian Underwriter.

How Can Will Davidson’s Car Accident Lawyers Help?

In Ontario, there are several ways to pursue compensation for car accident injuries. The first and simplest is via accident benefits through your insurance provider. When a driver is involved in an accident in our province, their auto insurance entitles them to predetermined benefits based on the severity of their injuries. These benefits are often sufficient to cover any expenses and damages that arise from your accident.

In some cases, though, accident benefits may not be enough to address the serious injuries you have sustained. If you were not at-fault for your accident, or if liability can reasonably be shared by another party, you may be able to pursue a civil claim for damages with the help of our car accident lawyers. Impaired driving injuries precipitated by negligent bar or restaurant service is an example of a situation where a civil claim might be appropriate.

If you or a member of your family have been involved in a motor vehicle accident involving an at-fault party, consider contacting Will Davidson LLP today to schedule a free, no-obligation consultation with our team of car accident lawyers. We will be happy to assess your claim and explain your legal options.

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Personal Injury Lawyers Endorse Measured Embrace of New Technology

In December, Ontario’s Attorney General, Doug Downey, addressed the Empire Club of Canada via video stream. The medium fit Mr. Downey’s message: that, after years of paralysis in the face of the gargantuan task, Ontario’s justice system was finally prepared to embrace the type of modernization that victims’ rights advocates, legal associations, personal injury lawyers, and many more had been calling for for years.

“The pandemic showed us in stark terms how far behind Ontario’s justice system had fallen,” Downey said. “New thinking and quick action put us on a path that can actually achieve what Ontarians have been crying out for for decades.”

Among the common-sense changes that Downey cited were the introduction of remote attendance at proceedings, the allowance of digital signatures, the electronic issuance and sharing of court documents, and the provision of service by email without consent or court order, according to Global News.

“These changes actually made our system stronger by making it more accessible to Ontarians and more resilient to whichever challenges the future might bring,” Downey said.

Now, nearly six months after the Attorney General’s speech and with the pandemic still raging in the province, it has become increasingly apparent that there is no turning back from the above and similar changes. Already overloaded before the pandemic struck last March, Ontario’s criminal and civil justice systems must now confront an unprecedented backlog of cases. New technology and protocols are essential to addressing that challenge.

Perhaps more importantly, these innovations have the capacity to reduce costs, generate efficiencies, and improve access to justice for a broad spectrum of Ontarians in the long term.

In February, federal Justice Minister David Lametti introduced legislation to make permanent certain pandemic-time justice system solutions. Although the legislation applied solely to the criminal courts, the rational applies equally to the civil system.

“Canadians expect that their courts will deal with criminal matters in a timely fashion so that the rights of the accused are respected and victims see justice being done,” Lametti said, in a statement. “The legislative changes introduced will address challenges faced by Canada’s criminal justice system by allowing it to adapt to the unprecedented circumstances created by the COVID-19 pandemic.”

Under the proposed legislation, audio and video appearances would be permitted at preliminary inquiries, trials, and pleas and sentencing hearings, according to the National Post. The bill would also allow for jury selection by video in certain circumstances.

The changes would “help reduce the risks of further delays during the pandemic, provide for increased efficiency in the long term, and support access to justice,” Lametti said.

Support for innovation in the criminal and civil justice systems is almost unanimous. In February, the Canadian Bar Association released a report calling on legal professionals, including personal injury lawyers, to keep and build on innovations adopted during the first year of COVID. The same month, Supreme Court Chief Justice Richard Wagner told the Bar Association’s annual meeting: “This is a reckoning it is possible to modernize our justice system. And it would be irresponsible to not seize this opportunity.”

Of course, it would be equally irresponsible to embrace new technologies and forward-thinking protocols without considering the challenges they invite. In its report, the Bar Association warned that certain types of proceedings, especially those involving numerous witnesses and extensive expert testimony, would be simply too complex to carry out remotely.

Another commonly voiced concern involves access to justice. While remote access would make participating in legal proceedings easier for many Ontarians, a fully-remote system would preclude those without internet access, with limited access, or without access to internet accessible devices.

Remote proceedings also take place in less controlled environments than in-person proceedings. In the courtroom, the judge and jury don’t have to contend with shaky internet connections, faulty hardware, or other issues. As one lawyer put it in an article for Canadian Lawyer, ‘you can prepare a witness for a hearing or trial, but you cannot plan for a participant having construction at their home, or the impact of a poor internet connection on someone’s testimony.’

And then there are the omnipresent concerns over data security and privacy. While online communications and proceedings can be more efficient, they can also be more vulnerable to security breaches, particularly during the early stages of adoption.

None of these concerns should derail the push for technological innovation in Ontario’s court systems. It is only by adopting new technologies and embracing protocols like remote proceedings that the province will be able to address the massive backlog of cases that the pandemic caused. As personal injury lawyers, the team at Will Davidson LLP only hopes that necessary precautions will be taken to ensure that access to justice is applied universally.

Will Davidson LLP has provided legal representation to injured Ontarians for decades. If you or a member of your family has been injured, contact us today to learn how we can help.

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Mass Tort vs Class Action Lawsuits

A recent article in Canadian Lawyer magazine asked whether Canadian personal injury law firms should maintain ‘the traditional class action approach in Canada or … move towards more of an American model.’ At a time when our law firm is pursuing multiple class action lawsuits against long-term care owners, operators, and facilities that have been negligent amid COVID-19, this question appears particularly pertinent. In this article, we will review the differences between class action and mass tort lawsuits, the benefits of each, and the how the Canadian and American systems differ.

What are Class Action Lawsuits?

A class action lawsuit is one in which one or more plaintiffs – referred to as the class representative or representatives – bring a claim against a defendant in hopes of representing other plaintiffs who suffered similar damages at the hands of the same defendant.

This process is designed to create a level playing field between plaintiffs and large companies or corporations. It also lets individuals who may not be able to afford a lawyer pursue compensation, and creates a more streamlined process than if each individual plaintiff were to file their claims individually.

There are downsides to class action lawsuits, however. For example, proposed class actions must reach certain requirements in order to be certified by the courts. The commonality requirement, for example, mandates that the plaintiffs’ damages must be similar, so if a large group of prospective plaintiffs suffered a variety of injuries at the hands of a common defendant, they may not be able to pursue a class action claim. Recently, changes to Ontario’s Class Proceedings Act brought in the predominance and superiority requirements, as well; more on that a little later.

Once the requirements are met and the proceeding is certified, individual plaintiffs are lumped into a monolithic ‘class,’ meaning the compensation they receive will be divided equally, not according to who was most injured.

What are Mass Tort Lawsuits?

Like class actions, mass tort lawsuits involve numerous plaintiffs taking legal action against a single defendant, generally a large company or organization. In mass torts, however, plaintiffs are treated as a group of individuals rather than as a class. Each individual must prove certain facts about their claim, and the compensation they receive will be based on the damages they incurred. 

The main downside to mass torts is that they are extremely complex. Whereas class action lawsuits seek compensation for identical or similar damages, resolving a mass tort lawsuit requires assigning compensation to each plaintiff depending on the severity of their injuries. Resolving a mass tort can take longer than resolving a class action, but the reward for the most seriously injured plaintiffs may be worth the wait.

Changes to the Class Proceedings Act

As mentioned above, Ontario recently added two new requirements – predominance and superiority – that proposed class actions must meet in order to be certified.

According to Law Times, the predominance requirement states that plaintiffs ‘will have to show that questions of fact or law common to the class predominate over questions affecting individual class members,’ and the superiority requirement means ‘plaintiffs must show that a class proceeding is superior to all other reasonably available options for solving the dispute.’

Both new requirements make it more difficult for a class action to be certified, which prompted the question posed in the Canadian Lawyer article.

Traditional Class Actions vs US-Style Mass Torts

While class actions have traditionally been the preferred vehicle for launching mass claims in Canada, Americans have more often relied on mass torts. According to Canadian Lawyer, this is due in part to the fact that American consumers are essentially not allowed to pursue claims against medical device makers or drug companies via class actions.

With the recent addition of the predominance and superiority requirements, however, some lawyers believe mass torts may gain prominence.

“It will be interesting to see what comes of that change and whether or not the class action will remain the preferred proceeding in Canada over some kind of mass tort proceeding,” one lawyer told Canadian Lawyer.

Contact Will Davidson LLP

The lawyers at Will Davidson LLP have represented clients in class action and mass tort proceedings for decades. The recent lawsuits we initiated against long-term care providers are excellent examples of large groups of plaintiffs coming together to pursue compensation for common complaints – most notably egregious negligence in the face of the COVID-19 pandemic.

To learn more about our long-term care class action lawsuits, or to schedule a consultation, contact us today.

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Will Ontario’s Civil Justice System Provide Better Service in the Wake of COVID-19?

Just as it touched every facet of our society, COVID-19 had devastating impacts on Ontario’s civil justice system, impacts which will be felt years into the future. However, the issues affecting the system during and in the wake of the pandemic are not new – even before the March 2020 lockdowns took effect, Ontario’s courts were dealing with a massive backlog of cases causing months- or years-long delays.  Now, there is hope among some personal injury lawyers that the courts will be forced to take drastic – or at least innovative – steps to address these challenges.

Last month, Law Times reported on Louis v Poitras. The case not only illustrates personal injury lawyers’ pre-2020 frustrations with the civil justice system, but may also predict a path forward.

Firma and Marcdere Louis were injured in a motor vehicle accident in Ottawa in 2013. They filed a claim against Jacques Poitras and two other defendants, but it would be years before a trial date was set. It was eventually confirmed for April 20, 2020, almost seven years after the accident. Then, COVID hit, and the trial date was lost. If ‘justice delayed is justice denied,’ – one of the legal industry’s favourite adages – then it’s very difficult to argue that the Louis’s received adequate access to justice.

In some ways, the impact of COVID-19 on Louis v Poitras serves as a reflection of the virus’s impact on society at large. Accident victims, especially seriously injured accident victims, are among the most vulnerable members of our society, and COVID has saved its most devastating impacts for the populations least able to weather them.

There is a silver lining to the Louis v Poitras story. According to Law Times, the Ontario Court of Appeal took unusual steps to ensure that the case would be heard, despite the lost trial date. After the court appearance was cancelled, the plaintiff’s personal injury lawyers asked that a jury notice, issued years earlier by the defendants, be cancelled. A jury notice is essentially a formal request that a case be heard by a jury rather than by a judge alone.

At the time of the plaintiff’s motion, jury trials were not being scheduled in Ontario. Judge only trials, though, were available within six months. The judge accepted the plaintiff’s motion, a decision that was successfully appealed in the divisional court before being reinstated in the Court of Appeal. The case was scheduled to proceed in three-week tranches beginning last month. Speaking to Law Times, one lawyer called the decision a “seismic shift” that signals to the lower courts in Ontario that “efficiency in delivering justice is the priority.”

When COVID-19 hit Ontario, the already overloaded court system was forced to confront two new challenges. The first was that existing delays would be exasperated by the necessary shutdown. The second is a massive wave of fresh litigation deriving from the pandemic, including class action lawsuits against allegedly negligent long-term care homes and long-term disability claims from COVID long-haulers, among others.

In order to confront these challenges, the courts will have to embrace the sort of creative, efficiency-minded thinking to which conservative organizations are typically averse. Reducing the number of jury trials and converting scheduled jury trials to judge only, where appropriate, is a good start.


The courts must also embrace new technologies that allow for more remote and online proceedings. This shift has already occurred at most law firms, including at Will Davidson LLP. Our personal injury lawyers now conduct a great deal of their business remotely, with no effect on productivity or efficacy.

It’s easy when discussing the wide-ranging effects of the COVID-19 pandemic to overlook the very real and devastating impact it has had on thousands of families across Canada. People have lost their lives and lost loved ones – that reality should not be forgotten. Many thousands more have seen their livelihoods destroyed with little help from any level of government.

When discussing topics like COVID-inflicted court delays, it’s important to remember who the civil justice system was set up to serve: the public. Whenever decisions are being made about how to address the challenges facing the courts, the end-user must remain top-of-mind. 

If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of Oakville personal injury lawyers will review your case and explain your legal options.

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Social Host Liability in the Pandemic Era

Public health regulations designed to limit the spread of COVID-19 meant that Ontarians hosted far fewer social gatherings in 2020 than in years past. Even during the holidays, when more people saw friends and family than health officials would have liked, gatherings were fewer and smaller than is customary.

For personal injury lawyers handling social host liability cases, this safely antisocial behaviour meant less work than in previous years. However, social host liability suits are far from a thing of the past – some lawyers believe that claims may arise from the few Super Bowl LV gatherings that did occur, and others expect a surge in cases when (and if) the pandemic subsides.

What is Social Host Liability?

Social host liability refers to the legal responsibility held by hosts of private social gatherings to ensure their guests do not experience harm after leaving the premises. This is a nuanced and evolving area of personal injury law; our understanding of it stems from a handful of precedent-setting cases:

Childs v Desormeaux

The question at the centre of this 2006 case was whether Julie Zimmerman and Dwight Courrier, the hosts of a New Year’s potluck, were responsible for injuries incurred by Desmond Desormeaux after he left the party. On the night of his accident, Desormeaux attended the gathering and drank roughly 12 beers in over two and a half hours. The hosts did not monitor his intake any more closely than other guests. Desormeaux eventually left the party and was involved in a two-vehicle crash on the way home. One passenger in the other vehicle, Zoe Childs, was paralyzed and another, Derek Dupre, was killed.

The Supreme Court of Canada found that Zimmerman and Courrier did not owe Childs a duty of care because their relationship with Desormeaux was not ‘proximate’ enough. In other words, the couple did not serve Desormeaux alcohol and did not realize the extent of his intoxication.

Wardak v Froom

Wardak v Froom, a 2017 case, arose from a 19th birthday party the defendants hosted for their son at their home. The plaintiff was an 18-year-old neighbour who brought his own alcohol to the event and became intoxicated. After leaving the party on foot, he got in his car and was involved in a serious single-vehicle accident.

Unlike in Childs v Desormeaux, the defendants were found liable for the plaintiff’s injuries. This was due to the fact that the injuries occurred to a guest, not a third party, and due to the ‘paternalistic relationship’ between the host and the plaintiff.

McCormick v Plambeck

In this recently decided case from British Columbia, the plaintiff was injured in a single vehicle crash after leaving a party hosted by the parents of a friend. The plaintiff, who was a passenger in the vehicle, was intoxicated; the driver, who was killed, was not.

The court ultimately ruled that the hosts were not liable for the plaintiff’s injuries. Not only had the hosts taken steps to prevent impaired driving – demanding that guests place their keys in a bowl; offering rides home to those who were too intoxicated to drive – but they were not even aware that the plaintiff and the driver had access to a vehicle. In fact, the pair stole the vehicle from a nearby lot after leaving the party.

The Future of Social Host Liability

A recent Law Times article posited that personal injury lawyers may see a sudden increase in social host liability claims if and when public health regulations are lifted.

“The COVID-19 pandemic forced the cancellation of many festive occasions usually marked by parties or get-togethers, and by the time things return to normal people could be making up for missing multiple St. Patrick’s Days, May 24s, birthdays and the like – and may be tempted to party even harder than usual,” it read. “In light of this likelihood, it’s pertinent to be up to date on the present state of social host liability.”

More urgently, some lawyers interviewed by CTV’s Your Morning suggested that social host liability cases could arise from holiday gatherings in December; although there is no precedent, hosts may theoretically be liable for spreading COVID-19.

Establishing liability in such a case would be difficult. A plaintiff would likely have to prove that the host knew they were putting guests at risk of exposure. If such a case were successful, though, it is unlikely that homeowners’ insurance would cover the costs – many policies have exemptions for communicable diseases and for acts outside public health regulations.

Contact Will Davidson LLP

If you have questions about social host liability, or if you or a member of your family have been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers will provide all the answers you need.

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Are Municipalities Liable for Tobogganing Injuries?

winter of 2021 will be like no other in Ontario. Many of our favourite gathering places, including ski hills and local hockey rinks, have been indefinitely shuttered to combat the spread of COVID-19. Gathering indoors with family and friends has also been banned. As a result, Ontarians are turning to alternative activities: skating at outdoor rinks; cross country skiing and snowshoeing; and tobogganing.

As personal injury lawyers well know, tobogganing is the most dangerous of these activities. According to Parachute, a national Canadian charity dedicated to injury prevention, tobogganing has the fourth highest rate of injury of all activities in Canada, behind only ATVing, snowmobiling, and driving. The charity has cited research showing that 37.7 of every 100,000 tobogganers are catastrophically injured, with 50 per cent of victims suffering head injuries and 22.5 per cent suffering injuries to the spine.

There have been at least two serious sledding accidents in southern Ontario in the past 30 days. The first occurred in Bradford West Gwillimbury on December 26. A woman sledding on ‘Deadman’s Hill,’ a popular tobogganing location in the region, lost control of her vessel and smashed into a hydro pole. She suffered broken ribs, fractured vertebrae, and a collapsed lung, and was eventually transferred to the trauma unit at Toronto’s St. Michael’s Hospital.

The second occurred on New Year’s Day in Barrie. A boy sledding at Sunnidale Park was knocked unconscious in a crash. A witness told CTV News Barrie that most children on the slope, including the accident victim, were not wearing helmets.

Personal injury lawyers in Ontario, like the rest of the province’s citizens, are bracing for an unusual winter season. An influx of tobogganing injury inquiries could be part of the change. But what are the legal options for tobogganing injury victims? Does it make sense to pursue compensation for the damages they have incurred?

Ontario’s Occupiers’ Liability Act states in section 3(1) that “an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises.” In other words, landowners are at least somewhat responsible for the safety of visitors to their property.

However, section 4(1) of the Act states that when a person willingly assumes risks on a landowner’s property, “the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage and to not act with reckless. In other words, when a tobogganer enters public land with the intent of participating in a risky activity, that tobogganer assumes most of the liability for their actions.

This stipulation makes it difficult to bring tobogganing injury claims against a municipality. In 2009, for example, a woman was seriously injured in a tobogganing accident in Seacliff Park in Leamington, Ontario. The woman filed a $1-million lawsuit against the municipality, but the court rejected her claim, writing in its decision that “while there was a duty of care, that duty was limited to not creating a danger with the deliberate intent of doing harm or damage to the person and to not act with reckless disregard. In this case, the risks were willingly assumed by the plaintiff.”

“The defendant,” the judge wrote, “says that the hill had been used for years with no complaints and no injuries and that the plaintiff was aware of the condition of the hill after many years of use. The defendant says there is no evidence that this hill was dangerous or that there was a hidden trap or obstacle that cause the plaintiff to fall of her sled.”

In some cases, however, tobogganing injury claims against a municipality are very much justified. In 2004, Hamilton Lawyer Bruno Uggenti suffered a fractured vertebra when his sled hit a hidden, snow-covered drainage ditch at the bottom of a tobogganing hill. The City of Hamilton was aware of the ditch but failed to warn potential users of the hill of its existence. An arbitrator, and later the court, ruled that while Uggenti and his family had assumed certain risks in deciding to use the hill, they had not assumed the risk of the hidden ditch. Uggenti was awarded $900,000 in damages.

“In order for someone to voluntarily assume risk,” the court found, “that person must be aware of the existence of the risk.”

If you or a member of your family has been seriously injured in a tobogganing accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers will review your case, explain your legal options, and provide the support you need during the legal process.

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What To Do If Your Child Has Been Injured

This month, in Ireland, a woman brought a personal injury claim before the country’s High Court on behalf of her child, who was catastrophically injured in a motor vehicle accident in February 2016. The child was just three and a half months old at the time of the collision and suffered ‘multiple skull fractures,’ according to the Irish Times. She spent many months in hospitals and rehabilitation facilities before being released. She will require significant long-term care.

In the following article, we will examine what happens when a child is injured in an accident in Ontario, what legal option the child and its parents have, and how an experienced personal injury lawyer can help.

Who Qualifies As A Minor In Ontario And What Are Their Legal Options?

Anyone under the age of 18 is considered a minor in Ontario. Minors who have been injured as a result of the negligence of another party are not able to personally launch an injury claim. However, they are able to seek financial compensation for their damages with the help of a “litigation guardian.”

A litigation guardian is an adult who represents a minor during personal injury litigation. Most often, this role is filled by an injured minor’s parent. In situations where neither parent is able or available to fill this role, another adult may step in. In order to be confirmed as a litigation guardian, the adult must file an affidavit stating that they consent to make decisions on the child’s behalf, that they carry no adverse interest to the child, and that they are willing to personally pay any costs awarded against them or the child.

If, during the course of the litigation, the child turns 18, they will be able to request to continue the litigation without the guidance of their litigation guardian.

Once a litigation guardian has been assigned, the child has equal rights to any other plaintiff in Ontario, with additional protections. For example, most personal injury victims have two years from the time of their accident to file a claim; for injured children, the two-year limitation period doesn’t start until the moment they turn 18.

Additionally, the Ontario courts must approve any and all settlement offers entered into on a child’s behalf; until the courts have certified that the offer is in the child’s best interest, it will not be legally binding.

Also, compensation awarded to a child in a personal injury lawsuit receives certain legal protections. Funds payable to a child are sometimes “paid into the Court” and held by the accountant of the Superior Court of Justice, to be paid out when the child turns 18. In some cases, such as when the child requires funding for ongoing rehabilitation treatment, the settlement money may be released earlier.

What Are Some Common Causes Of Childhood Injuries?

Many of the main causes of childhood injuries also affect adults. Hundreds of children are injured each year in car accidents, for example. Many are also injured in snowmobile, ATV, and boating mishaps.

Others are more child specific. Injuries incurred in organized sports leagues, for example, fall into this category, as do playground injuries, schoolyard injuries, and injuries caused by childcare negligence. When a school or other establishment agrees to assume responsibility for your child, they are expected to provide a certain standard of care. When this standard is breached through negligence or omission, a personal injury lawyer may be able to help your child recover compensation.

What Should I Do If My Child Is Injured?

If your child is injured, the first thing you should do is check on their condition and, if necessary, contact emergency responders. Your next steps will depend on the specific circumstances of the injury. If it occurred during a car accident, for example, you should seek out the insurance and contact information of all other individuals involved and get the names and numbers of all witnesses.

If your child has been injured at a community swimming pool, you should also secure contact information from as many witnesses as possible – this is a sound practice in any circumstance.

Once you have checked your child’s wellbeing and collected witness contact information, your next step might be to contact an experienced personal injury lawyer, preferably with experience helping families access compensation for children’s injuries.

Contact Will Davidson LLP

If any member of your family, including your child, has been injured in an accident caused by the negligence or omission of another party, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced personal injury lawyer. Our team will review your claim, outline your legal options, and explain as thoroughly as possible what to expect on the road to medical and legal recovery. At Will Davidson LLP, we have represented seriously injured accident victims from across Ontario for decades. Reach out today to learn how we can help.

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Why Bill 218 to Protect Nursing Homes from COVID Liability is a Mistake

It’s no secret that residents of long-term care facilities have borne the brunt of the impact of the COVID-19 pandemic in Ontario. The nursing home negligence lawyers at Will Davidson LLP have been on front lines of this devastating event, representing nursing home residents and the families of nursing home residents who have been affected by the disease. Our team has initiated several class action proceedings which could be at risk if proposed provincial legislation passes.

On October 20, Ontario Attorney General Doug Downey announced Bill 218 to provide liability protection for workers and businesses in several front-line sectors, including healthcare and long-term care. The proposed bill would be retroactive to March 17, 2020, the date when Ontario first introduced emergency measures.

The bill is unpopular with personal injury and nursing home negligence lawyers. Our Managing Partner Gary Will told the Toronto Sun that its “the worst thing [the government] can do.” In a separate article, also from the Sun, he predicted that the situation in Ontario’s long-term care facilities would deteriorate as a result of the legislation.

“There will be more infections, more deaths and less care for residents,” he said.

While the bill does not protect against gross negligence, it offers protection for workers and businesses that make an “honest effort” to abide by public health guidelines. Members of the long-term care community think this is sufficient. The CEO of the Ontario Long-Term Care Association said in a statement that the liability protection would provide stability and renewal to the sector. She also insisted that without it, insurance companies would cease providing coverage.

However, the bill has been criticized by a large and diverse coalition of voices, including nursing home negligence lawyers and other advocates. A release from the Ontario Health Coalition states that the bill raises the bar for individuals suing long-term care facilities while making claims easier to defend against.

Gary Will told CBC News Toronto the following:

“For those individuals that are unable to prove gross negligence, there is no accountability, no responsibility. The Conservative government is more concerned with their friends in the long-term care industry … than they are about residents and the elderly in long-term care.”

The bill also received scathing criticism from the provincial NDP and Green parties. In response to the backlash, the Attorney General released an additional statement, saying that the bill was narrow, targeted, and intended to protect honest, hard-working health professionals.

As nursing home negligence lawyers, the team at Will Davidson LLP is fully aware of the vitally essential role long-term care facilities and nursing homes play in our communities. We are also aware that their role will only grow in the coming years as Ontario’s population ages. We are sensitive to the concerns of the long-term care industry regarding the availability of insurance coverage in the near and distant future.

However, we also assert that residents and the families of residents who have been affected by COVID-19 deserve compensation and deserve to see negligent facilities held to account. As such, we oppose Bill 218 and remain committed to our class action clients.

If you or a member of your family has been injured or become ill as a result of negligence at a long-term care facility, contact us today to schedule a free, no-obligation consultation. Our team of experienced nursing home negligence lawyers will ensure you receive the representation you deserve.

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Should Ontario Eliminate Juries for Civil Trials?

Civil jury trials were temporarily suspended at the onset of the COVID-19 pandemic in Ontario. In-person civil juries were considered a health risk, and technology gaps prevented a widespread shift to virtual civil jury trials. Now, with no end in sight to the pandemic and an enormous backlog of cases on the civil justice system’s docket, personal injury lawyers and other stakeholders are considering how best to move into the future. Is COVID-19 the end of civil jury trials in Ontario?

The Case for Eliminating Civil Jury Trials

In early June, Ontario Attorney General Doug Downey requested feedback from key stakeholders on the possibility of eliminating juries from civil trials in the province. At the heart of the proposed initiative was the concept that ‘justice delayed is justice denied.’

As all Ontario personal injury lawyers, the province faced a massive trial backlog caused by limited court resources even before the pandemic struck. Social distancing measures necessitated by the virus’s spread significantly exacerbated the issue. In order to address the backlog as efficiently as possible, the Attorney General’s office considered moving to judge-only trials for most civil cases, with exemptions for matters that “engage community values and a person’s character, such as defamation, false imprisonment and malicious prosecution,” according to Downey’s request for input.

“The needs of the justice sector have changed during this outbreak, and the demands on the system will continue to evolve as we begin to see the province reopening in stages,” read Downey’s request, per Canadian Lawyer. “To address these changes, we will continue to act on the guidance of public health experts, and we will continue to work together to develop new ways of conducting matters.”

There has been some support for Downey’s proposal. The Ontario Trial Lawyers Association (OTLA) supported temporarily suspending jury trials, and one past president told Canadian Lawyer that the proposed initiative had his full support.

“I think it’s bold, I think it’s appropriate,” Steve Rastin told the magazine. “I think what the attorney general is doing is giving some thought to how are we going to deal with the massive backlog that’s in the system right now.”

The Case Against Eliminating Civil Jury Trials

While the Attorney General’s proposal garnered some support, many personal injury lawyers also came out against it. The Toronto Lawyers Association (TLA), for example, stated that jury trials should continue. It argued that judges already have license to wave juries on a case-by-case basis and suggested that perhaps judges should have even more discretion over this issue given COVID-19’s unique impacts on the justice system.

TLA President Brett Harrison also pointed out in his response to Downey that jury trials are particularly important in diverse jurisdictions like Ontario.

“Against this social backdrop,” he wrote, “civil juries provide a vast array of life experiences including different socioeconomic, racial, cultural, and gender-based perspectives.

Harrison also called into question the theory that judge-only trials would guarantee speedier access to justice. While it is more expensive to gather a jury, and although jury cases often take longer to argue, decisions are delivered quickly and efficiently once final arguments have bene heard. In judge-only trials, the presiding justice may take weeks or even months to come to a decision.

“Further, while a jury trial may take up more court time, it does provide speedier access to justice in that the decision will be delivered promptly by the jury, and not held on reserve by a trial judge for sometimes months while the judge labours over his or her reasons for judgement,” Harrison wrote, according to Law Times.

How Will Decision Affect Personal Injury Plaintiffs?

The dispute over the future of jury trials in Ontario civil law is rooted in a single, simple question: ‘What is best for plaintiffs and defendants in civil cases?’

Every Ontarian deserves access to justice, and that access has been significantly hindered by the COVID-19 pandemic. The Attorney General’s instinct to suspend jury trials in order to provide speedier access to justice comes from a good place; however, valid concerns have been raised about its effectiveness. Will judge-only trials really be more efficient? Can Ontarians count on fair treatment at the hands of judges? Are judges’ existing discretionary powers not sufficient?

What matters now is that the stakeholders with influence over the civil justice system – personal injury lawyers, politicians, judges, etc. – come to a decision that ensures injured plaintiffs can access the compensation they need during their recoveries.

Contact Will Davidson LLP

If you’ve been injured as a result of the negligence or avoidable error of another person, business, or government, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers has represented seriously injured Ontarians for decades. We have the expertise, experience, and understanding to provide guidance and support throughout the recovery process.

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Are Canadian Nursing Homes Prepared for a Second Wave of COVID-19?

The first wave of COVID-19 in Canada devastated the country’s long-term care and nursing homes. Nationwide, Canadians older than 60 accounted for 96 per cent of all COVID-19 deaths; 80 per cent of all deaths occurred in long-term care facilities. The tragic numbers laid bare that nursing homes in many provinces, including Ontario, are ill-equipped to face serious health emergencies. Family members of deceased and seriously ill residents have sought compensation through class action nursing home negligence lawsuits.

As the first wave subsided and society returned to a semblance of normalcy, Ontario stakeholders examined what went wrong at hard hit facilities like Orchard Villa in Pickering and Lundy Manor in Niagara Falls.

“That is one of the most damning failures that’s taken place through the pandemic,” said Dr. Andrew Boozary, executive director of health and social policy at the University Health Network, to CBC News about the springtime failures of Ontario’s long-term care system. “If we were going to be judged by how we protected our most susceptible and people who are structurally vulnerable – we failed them.”

Experts carried out post-mortems and delivered recommendations for responding to future outbreaks. There was mild hope that the disaster would serve as a warning against future negligence. Numerous stakeholders called for the implementation of national care standards, including the Prime Minister.

“We will be working with the provinces and territories to set new national standards on long-term care,” Justin Trudeau announced at a news conference. “The systems we had were inadequate all across the country. They were not up to the task of protecting our seniors appropriately.”

In July, a report from the Royal Society of Canada, an association of leading scholars and scientists, called on the federal government to “immediately” enact national care standards. That call was echoed by Toronto physician and health-justice advocate Dr. Naheed Dosani in a CBC interview.

“They already suffered in the first wave,” Dr. Dosani said. “My hope is that they don’t have to suffer and less people have to die in the second wave. Why would we allow this to happen in the second wave? The federal government has the ability to set that bar where it needs to be so that standard of care is met so that doesn’t have to happen again.”

In addition to calls for a national care standard, various infection control and long-term care experts submitted to the Government of Ontario recommendations for avoiding a deadly second wave in the province’s long-term care homes. One group delivered those recommendations in a 60-page letter to Premier Doug Ford, which read: “In the absence of these measures and support from the government, Ontario’s long-term care homes are not currently ready to manage a second wave of COVID-19.”

“We don’t want to see the same kind of disasters that we were seeing in the spring where we had all these people dying and the people that were living were basically living in squalor,” infectious disease expert Dr. Anna Banerji told the CBC. “If that occurs again, it’s a real failure.

By the end of September, a second wave of infections had taken hold in Ontario. The province recorded a new single-day infection record on September 28, and analysts predicted new infections would peak at more than 1,000 per day by mid- to late-October. Any hope that long-term care facilities would be better prepared for the second wave quickly disappeared. At least 20 nursing homes reported outbreaks by September 21, including West End Villa, in Ottawa, where at least 15 residents have died.

The Province failed to implement many of the recommendations delivered following the first wave. In Quebec, 8,000 long-term care workers were hired in preparation for a new wave of infections; 7,000 were hired in British Columbia. Ontario did not conduct a similar hiring blitz.

“British Columbia has about half of the long-term care residents as compared to Ontario but only had one-tenth of the deaths,” Dr. Amit Arya told CTV News. “We have yet to see a similar response in Ontario.”

Even beyond the province’s failure to enact emergency infection control measures, and beyond the federal government’s failure to deliver national care guidelines, Ontario’s long-term care system has for years faced a litany of challenges, including understaffing and overcrowding, which compounded its COVID-19 failures. These challenges are also the source of numerous nursing home negligence lawsuits over the years.

“Even before the pandemic we had one nurse looking after you know, 32 residents in the day and over 60 at night and that’s not feasible, and obviously, as we can imagine, those staffing ratios are even worse since the pandemic started,” Arya said.

If you or a member of your family has been affected by a COVID-19 outbreak in an Ontario nursing home, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced nursing home negligence lawyer. Our team has already initiated several class proceedings against long-term care facilities who failed to provide a reasonable standard of care during the first wave of the pandemic. We would be happy to review your claim and provide guidance on how to move forward.

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