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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More Ontarians than Ever are Using E-Bikes – But are they Safe?

The COVID-19 pandemic has forced people to reassess how they get from point A to point B. For many, public transit is no longer a viable option; the health risks are simply too great. Those without private transportation are left with limited choices. Bicycle usage has surged – and so has the popularity of electric bicycles. Unfortunately, as some personal injury lawyers have come to understand, e-bikes present their own safety and legal challenges.

What are E-Bikes?

Electric bicycles, or e-bikes, are bicycles with integrated electric motors that assist propulsion. There are several kinds of e-bikes. Some look very much like traditional bicycles but have small motors that supplement the rider’s pedalling power. These are sometimes referred to as pedelecs. Others more closely resemble mopeds and have ‘power-on-demand’ motors activated by a throttle.

All e-bikes are powered by rechargeable batteries. Their maximum speeds generally range from 25 to 45 km/h.

Are E-Bikes Legal in Ontario?

E-bikes that travel up to 32 km/h are legal in Ontario, and have long been promoted by mobility advocates.

“Crucially, it allows people to go further, easier, and expands their access to things in an efficient way, especially within a suburban area, where things are more spread out,” said Darnel Harris, an urban planner and executive director of Our Greenway, to the CBC in June.

“E-bikes have been around for a while now, but especially with the pandemic people are looking for new ways to get around,” Cycle Toronto’s Michael Longfield told CTV News Toronto.

This summer, with the launch of Bike Share Toronto’s e-bike pilot program, the City of Toronto officially confirmed that e-bikes have a place on the city’s streets.

“Today we are … officially launching [Bike Share Toronto’s] e-bike pilot program,” announced Mayor John Tory in a tweet on August 19. “The pedal-assist electric bikes will reach a maximum speed of 25 kilometers per hour and can travel up to 70 kilometers without requiring a charge.”

Are E-Bikes Safe?

Toronto’s acceptance of e-bikes is part of a larger, international trend. E-bike have sales doubled in the city during the pandemic.  They also increased 85 per cent in the United States in March, according to the New York Times. In the Netherlands, approximately 40 per cent of all bicycles sold in 2019 were electric. In China, e-bikes have steadily replaced motorcycles and mopeds for more than a decade.

But are they safe? That’s the question plaguing road safety advocates and personal injury lawyers amid the sudden upturn in e-bike usage. Our Greenway’s Darnel Harris told the CBC that federal safety standards around the vehicles are too lax.

Safety experts are particularly concerned about their appropriateness for novice bike riders. Should an untrained 16-year-old be permitted to operate a motorized vehicle that travels as quickly as a slow-moving car?

And then there’s the question of insurance. E-bikes, particularly the heavier, power-on-demand models that can exceed maximum permitted speeds, have the potential to do damage in collisions with pedestrians and other cyclists. According to CTV News’s report, collisions are already increasing. Without e-bike insurance, injury victims may not be able to access benefits.

“There could really be a case where a person who is hit by an e-bike cannot be properly compensated or the person on the e-bike themselves could suffer very bad injuries and not be able to work or receive compensation for their injuries,” one personal injury lawyer told CTV.

In order to reduce the likelihood of this occurrence, stakeholders including personal injury lawyers are calling for more comprehensive and better-defined regulations. E-bike operators should know what class of vehicle they are riding, what rules pertain specifically to that class, and whether insurance is required.

“When people are unclear … about the law and how it applies, then of course they run the risk of offending the law,” Vancouver lawyer David Hay, who specializes in bicycle accident cases, told the CBC. “Whenever you get any kind of technological innovation, the law struggles to keep up.”

I’ve Been Injured in an E-Bike Accident – Now What?

If you’ve been injured in an accident involving an e-bike, contact Will Davidson LLP as soon as possible to schedule a free, no-obligation consultation. Our team of personal injury lawyers has been helping seriously injured Ontarians access compensation for their injuries for decades. Reach out today to learn more about our services and experience.

Why Will Davidson LLP?

Will Davidson LLP has broad experience representing both plaintiffs and insurers in personal injury and accident lawsuit. This expertise gives us unique insights into both sides of these sometimes contentious and emotional disputes.

Our team also works on a contingency basis, which means you will not be asked to pay up-front legal fees for our services. Instead, our team will accept a pre-decided percentage of the final settlement as payment. This arrangement allows us to offer access to justice to all Ontarians.

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Details Emerge from Orchard Villa’s Fight Against COVID-19 Outbreak

Dozens of nursing homes across the Province of Ontario experienced large COVID-19 outbreaks during the height of the pandemic. None were affected more severely than Orchard Villa Retirement Community in Pickering. On May 25, 2020, Will Davidson LLP announced a COVID-19 class action lawsuit against Orchard Villa and its owner, Southbridge Care Homes. On June 23, the Statement of Claim was amended to include Extendicare (Canada) Inc., the home’s operator.

“When COVID-19 hit both the owners and managers of Orchard Villa were woefully unprepared to deal with the crisis,” said Gary Will, the lead counsel on the case and a Will Davidson LLP partner, in a statement. “Orchard Villa has the very highest death rate in a long term care facility in Ontario with 85 deaths and a total of 269 infections. This home was grossly mismanaged. Extendicare and Southbridge must be held to account and there must be justice for the residents and their families.”

On June 11, the Durham Region medical officer of health declared the COVID-19 outbreak at Orchard Villa ended. In the following months, a clearer picture of the full scope of the outbreak has emerged, as well as a better understanding of what went wrong.

According to a recent report in the Toronto Star, ‘inspectors from the Ministry of Long-Term Care acting on a complaint found more than a dozen instances in which the home failed to comply with regulations’ in May and June. These failures included:

  • Not training staff on infection control and containment within a week of hiring, a regulation instituted by the Ministry in March in direct response to the pandemic,
  • Not providing an adequate skin assessment to a fallen resident, and,
  • Not preventing the administration of an unprescribed medication to a resident.

Additionally, when Lakeridge Health assumed temporary management of the facility at the medical officer’s request in June, it found that the home was “significantly understaffed.”

Speaking with the Star, Patricia Spindel, co-founder of the advocacy group Seniors For Social Action Ontario, said: “Clearly the oversight of that facility has been in my view negligent on the face of it because you see no director’s orders issues, you see no licence revocations, you see no ceases admissions. That speaks to oversight that is off the rails.”

Also speaking with the Star, Laura Tamblyn, CEO of national seniors’ advocacy group CanAge, said: “We know that when there’s consistent failure to comply and where the outcomes are dangerous to residents, that there needs to be not just appropriate support but appropriate response, which means there needs to be teeth in the inspection and legislation. What we’ve seen with COVID is not so much a surprise but just an illumination of the problems in the system that we always knew were there. The question is: will we now actually fix it?”

Orchard Villa’s failures were particularly egregious given their surrounding circumstances. The home’s owner, operator, and staff should have redoubled efforts to ensure residents’ safety with the knowledge that COVID-19 poses unique risks to the sick and elderly. However, as Laura Tamblyn alluded to, the failures were part of an established pattern of inadequate care at the home.

“Orchard Villa was investigated by the Ministry of Long Term Care on nineteen occasions from 2017 to 2019 in response to specific complaints concerning serious deficiencies in the level of care at Orchard Villa,” said Gary Will, in the same statement. “The Ministry spent over 43 days at Orchard Villa investigating the complaints. The Ministry issued 65 written warnings, 32 voluntary plans of correction, 12 compliance orders, and referred 3 matters to the Director.”

Family members of Orchard Villa residents are desperate for change and eager to the hold the facility to account. Sylvia Lyon is the representative plaintiff in our COVID-19 class action. Her mother, a resident at the facility, died from the illness in April.

“My mother was a good, decent individual who had overcome many obstacles in her life,” Lyon said in a statement. “We entrusted her care to the owners of Orchard Villa. In addition to the amounts many families paid to have their mothers and fathers looked after, Orchard Villa received over $11 million in funding each and every year from the Ontario government. Yet each year the care provided was less and less. There needs to be accountability to the taxpayers of the province and to the families of residents who passed away over the last two months.”

Speaking with the Star, June Morrison, whose father George was also a resident at Orchard Villa and also died of COVID-19, said: “I personally think they need their license revoked. They have proven time after time based on the inspection reports that they fail to live up to regulations and legislation.”

Contact Will Davidson LLP to Learn More About our COVID-19 Class Action

If your family has been affected by the COVID-19 outbreak at Orchard Villa or any other long-term care facility in Ontario, contact Will Davidson LLP today to schedule a free, no-obligation consultation. In addition to our COVID-19 class action against Orchard Villa, our team is investigating or actively pursuing claims against several other facilities. Learn more here.

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Are Canada’s Drunk Driving Rules Strict Enough?

As car accident lawyers, the Will Davidson LLP legal team receives inquiries from clients who have been injured in a car accident and are seeking legal advice. Through drunk driving has declined in Canada (in the mid-1990s, well over 1,000 Canadians per year were killed in impaired driving accidents; by the mid-2010s, the number was less than 500) it remains far too common.

The dangers of drunk driving are clear: alcohol intoxication slows reaction time, reduces coordination, makes it difficult to concentrate, impairs vision, and inhibits judgement, all of which contribute to unsafe driving. For years, the federal and provincial governments, in partnership with advocacy groups like Mothers Against Drunk Driving (MADD) Canada, have sought to spread this message through aggressive public education campaigns. Schoolchildren are taught that drunk driving is unacceptable from a young age; MADD commercials run regularly during high-viewership television events.

In late 2018, new federal laws came into effect with the aim of further discouraging drunk driving. Previously, first-time offenders faced a minimum fine of $1,000; second-time offenders faced a minimum penalty of 30 days in prison; and repeat offenders faced a minimum of 120 days in prison.

Under the new laws, first-time offenders with a blood alcohol content (BAC) of between 80 and 119 mg per mL face a minimum fine of $1,000; first-time offenders with a BAC between 120 and 159 mg face a minimum fine of $1,500; and first-time offenders with a BAC over 160 mg face a minimum fine of $2,500. First-time offenders who refuse to be tested face a minimum fine of $2,000.

The penalty for second- and third-time offenders remains a minimum of 30 and 120 days in jail, respectively. Impaired drivers who cause an accident causing no bodily harm face up to 10 years in prison. Those who cause an accident causing bodily harm face up to 14 years, and those who cause an accident resulting in death can face life in prison.

The new penalties were generally accepted by road safety advocates and car accident lawyers. However, some still question whether they are sufficient. A recent Toronto Stararticle suggests that some drunk drivers in Ontario are treated too leniently.

On June 21, 2020, 27-year-old Darya Selinevich of Richmond Hill was arrested while driving dangerously on Highway 400 south of Barrie. According to an agreed statement of facts, as reported by the Star, Selinevich was “swerving from side to side” in heavy traffic and repeatedly almost struck the median. A breathalyzer showed she had a BAC of over 160 mg. A dozen empty beer containers were reportedly found in her vehicle.

Shockingly, this was Selinevich’s third arrest for impaired driving. In 2015, she received a one-year ban for speeding with a BAC of twice the legal limit. Just a month later, she struck and killed a cyclist on Finch Ave West, fled the scene, and led police on a chase through a residential neighbourhood. She had been drinking heavily and was travelling at twice the speed limit when the collision occurred, according to the Star.

Selinevich received a seven-year sentence for her role in the death, which was reduced to 4 ½ years for time served. She was granted day parole in early 2018, and later granted full parole on the condition that she did not drink and did not drive.

Following her most recent arrest, Selinevich pleaded guilty to impaired driving and driving while suspended. The Crown is seeking a prison sentence of two years less a day; her defence is seeking a sentence of no more than 15 months. For many observers, including some car accident lawyers, both proposals are too low. Selinevich has a history of impaired driving and apparently learned nothing from her role in a man’s death. Previous jail time and existing driving bans did nothing to discourage her from getting back behind the wheel while intoxicated.

As MADD Canada CEO Andrew Murie told the Star: “Families who have been impacted by impaired driving will think this is outrageous.”

As car accident lawyers, the team at Will Davidson LLP can help victims of drunk driving find closure where the criminal justice system cannot. Our team has helped numerous accident victims access compensation to mitigate the costs of recovery.

If you or a member of your family has been injured in a car accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced car accident lawyer. Although our team has experience with claims involving impaired driving, we also provide representation in accident benefits claims, insurance disputes, and more.

Reach out today to learn more about our services and experience. Will Davidson LLP offers representation on a contingency basis, meaning you won’t be charge up-front or hourly legal fees. Instead, our team will accept a pre-arranged percentage of the final legal settlement as payment. This approach is used by most personal injury law firms in Ontario to ensure access to justice for all Ontarians.

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Court of Appeal Upholds Decision in Will Davidson LLP Birthing Injury Case

Last month, the Ontario Court of Appeal upheld a 2019 jury decision in favour of Bernice Booth, Michael Woods, and their daughter Kelsey in a suit against obstetrician Dr. Allan Jackiewicz. The family alleged that a birthing injury caused by Dr. Jackiewicz’s negligence resulted in serious brain damage at birth, which caused Kelsey to experience catastrophic cerebral palsy. They were represented by Will Davidson LLP personal injury lawyer Paul Cahill.

Medical malpractice lawsuits in Ontario are notoriously challenging for plaintiffs; this case took nearly a decade to resolve and resulted in an award of more than $11-million for Kelsey and her family.

“It was an emotional verdict. Two of the jurors were in tears when the verdict was read. Everyone was emotional,” Cahill told the St. Catharines Standard following the initial jury decision in 2019. “You can imagine a lifetime of caring for a disabled child and finally getting the recognition that it was the fault of someone else. It was a very powerful moment.”

The jury heard expert testimony from both sides of the dispute. Jackiewicz’s legal team argued that the evidence provided no proof of substandard care or lack of due diligence. He denied all wrongdoing.

What Happened?

Kelsey was born in July 1991. In May of that year, Booth underwent an ultrasound that determined she was pregnant with twins. No abnormalities were detected. In the following weeks, Booth experienced growing discomfort and began to quickly gain weight. She visited Dr. Jackiewicz in early July. Following an exam, the doctor instructed her to return home, lie on her side and watch TV; he believed it would be more than a month before she entered labour.

Just days later, on July 7, Booth entered labour and Kelsey was born with serious developmental impairments. Her twin sister, Karli, experienced significant hearing loss; she was also named in the claim.

Booth was diagnosed with twin-to-twin transfusion syndrome, a condition where one of the twins in the womb receives reduced blood flow. The plaintiff’s expert witness testified that with a timely diagnosis and proper treatment, Booth’s labour could have been delayed and the pregnancy would have resulted in a “normal outcome.”

How Were Kelsey and her Family’s Lives Affected?

Kelsey’s life has been severely impacted by her condition. As Cahill told the Standard, “Kelsey is a quadriplegic. She is completely dependent on her parents for care. She can’t walk. She can’t do anything for herself. They have to bathe her and change her diapers”

“When we first brought the children home it was utter chaos,” added Booth. “There was still a lot of medical care. They were on oxygen, so we had these two babies with little oxygen tanks. Just taking them to the doctor’s office was an ordeal. They hadn’t learned to feed properly. They didn’t have it in them yet. I had to take a tube and put it right down their throat into their stomach and fill up the syringe They ate that way for a couple of months.”

“I was sort of a caregiver-nurse, which sometimes interfered with me being a mum,” she continued. “There was the constant worry about them getting enough oxygen. It was quite a struggle.”

The Appeals Process

Because Dr. Jackiewicz appealed the lower court’s decision, Kelsey’s parents did not receive any of the compensation they were awarded.

“Bernice and Kelsey haven’t received any money yet,” personal injury lawyer Paul Cahill told the Standard in an interview last month. “The doctor can still try to seek leave from the Supreme Court of Canada for another appeal, so this isn’t necessarily over. It’s more like Round 2 of a pretty tough fight, but when you read the appeal decision it doesn’t really appear Dr. Jackiewicz had the strongest position.”

Indeed, the Court of Appeal wrote in its decision that it was “not persuaded that there was any material misdirection or non-direction by the trial judge that warrants appellate intervention.”

Despite the threat of another appeal from the defendant, Kelsey’s family was reportedly pleased with the appellate court’s decision in the birthing injury case.

“I would say the family is overjoyed with the result from the court and the decision to dismiss the physician’s appeal,” said Cahill. “They are very much looking forward to focusing on using the funds they will hopefully now receive to make Kelsey’s life better.”

Contact a Will Davidson LLP Personal Injury Lawyer

If you or a member of your family has been affected by a birthing injury as a result of medical negligence, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced personal injury lawyer. Our team has a wealth of experience in every area of personal injury law, including serious medical and birthing errors.

Will Davidson LLP offers its services on a contingency basis, meaning our clients are not asked to pay hourly, up-front legal fees. Instead, our team will accept a percentage of the final settlement as payment. This approach allows us to offer access to justice for all Ontarians.

LAT Rejects Benefits Claim Involving Spilled Beverage

When does an injury suffered in a motor vehicle not count as a motor vehicle accident? That was the question at the centre of M.P. vs. Allstate Insurance Company of Canada, a recently resolved accident benefits dispute. The case provides additional context for car accident lawyers involved in non-traditional accident benefits claims.

The Facts of the Case

According to a June report from Law Times, the applicant in the case purchased a cup of hot tea at a fast food drive through window. She left the restaurant, stopped at a red light, and noticed that the lid wasn’t secured. She picked up the tea from its tray on the passenger’s seat, attempted to secure the lid, and then spilled the tea as she attempted to place it in the automobile’s cup holder. She filed for benefits under Ontario’s Statutory Accident Benefits Schedule (SABS).

The plaintiff’s insurance provider, Allstate Insurance Company of Canada, argued that the plaintiff was not eligible for accident benefits as her injuries were unrelated to the normal use of an automobile. Instead, Allstate suggested the fast food employee who handed the plaintiff the tea may have been negligent. The plaintiff herself may also have contributed to her injuries.

Background: What are Statutory Accident Benefits?

Most auto insurance policies in Ontario guarantee benefits for injuries in motor vehicle accidents, regardless of who is at fault. The amount of benefits depends on the severity of the injuries and are applied based on the province’s SABS.

Some of the benefits available under the SABS include income replacement benefits, non-earner benefits, benefits to cover the costs of attendant care, medical care, and rehabilitation, death and funeral benefits, and more.

When an insurance policy holder and an insurance provider do not agree on the amount of benefits being provided, they may seek a resolution from Ontario’s Licence Appeals Tribunal.

Background: What is the Licence Appeals Tribunal?

According to its website, the Licence Appeals Tribunal (LAT) is “an independent, quasi-judicial agency and is one of five tribunals in the Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO) cluster.”

The LAT contains two divisions: General Service and Automobile Accident Benefits Service (AABS). The latter’s mandate is to “resolve disputes about an insured person’s entitlement to, or amount of, statutory motor vehicle accident benefits.”

What Did the LAT Decide?

The LAT agreed with Allstate’s assertion that the plaintiff’s injuries were unrelated to the normal operation of a motor vehicle, and decided that the plaintiff was not entitled to accident benefits.

“Nothing about the vehicle caused her to spill the tea,” wrote tribunal adjudicator Therese Reilly. “The fact that she was in a vehicle was simply incidental.”

In coming to this decision, the LAT examined Dittmann v Aviva Insurance Company of Canada, a 2016 case that also involved a spilled beverage and a drive through window. In that case, the plaintiff was injured when a hot coffee was spilled as it was passed from the window into the automobile. The LAT decided in the plaintiff’s favour, reasoning that she would not have been at the drive through window if she had not been in an automobile, and she would not have been injured if she were not wearing a seatbelt. Importantly, no intervening events took place between accepting the drink and the injury.

The LAT also applied two tests to determine the automobile’s involvement in M.P.’s injuries. The first was the ‘purpose test,’ which asks whether the injury resulted from the ordinary use of the vehicle. The second, the ‘direct causation test,’ asked whether use or operation of the vehicle caused the injuries.

While the LAT’s decision was not in favour of the plaintiff in M.P. vs. Allstate Insurance Company of Canada, it also helps to clarify the ruling in Dittmann v Aviva Insurance Company of Canada and provide added context for car accident lawyers interested in pursuing similar cases.

Contact Will Davidson LLP to discuss your claim

If you’ve been injured in an automobile accident, contact Will Davidson LLP’s car accident lawyers to schedule a free, no-obligation consultation. Our experienced team can help you access the fair and reasonable compensation you deserve.

Will Davidson LLP’s car accident lawyers work on a contingency basis, meaning we will not charge hourly or up-front legal fees for our services. Instead, our team will accept a percentage of the final settlement as payment. This approach allows us to offer access to justice to every Ontarian in need, regardless of their financial circumstances.

With decades of experience in every manner of personal injury claim, Will Davidson LLP is a strong, reputable ally for injured Ontarians. Contact us today to learn more about how our experienced team can help.

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Ontario Grapples with Growing Trial Backlog Amid COVID-19

As the country gradually rolls back COVID-19 lockdown measures, court systems across Canada are considering how to safely reopen their doors. In Ontario, where courts already faced a significant backlog, there have been no jury trials and limited judge-only trials since a state of emergency was declared in March. As a result, numerous personal injury lawyers and their clients are facing delays on the road to compensation.

The province is considering a number of options to alleviate the backlog, including the suspension or elimination of jury trials for certain civil proceedings. In early June, Ontario Attorney General Doug Downey sought input from legal stakeholders on this matter.

“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,” the Attorney General wrote in a letter to stakeholders. “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.”

Assembling a jury is one of the most time-consuming aspects of any civil trial. The ongoing COVID-19 pandemic will make the process even more difficult. Proponents of eliminating or suspending jury trials say it would allow Ontario to work through its backlog more quickly and provide greater access to justice for a larger number of claimants.

The proposal has support among some personal injury lawyers. One Windsor-based law firm issued a statement reading:

“Although we truly value our clients’ right to have a jury of peers decide their case, the realities of COVID-19 mean that our clients will suffer many more years of delay to get their cases to court. COVID-19 has closed our courts to jury trials. Eliminating juries will avoid more delay because we can immediately try cases ‘online/remotely’ before a single judge.”

In his letter, the Attorney General proposed keeping juries for matters that “engage community values and person’s character, such as defamation false imprisonment, and malicious prosecution.”

The Ontario Trial Lawyers Association (OTLA) also supports a temporary jury trial suspension. In an open letter to the Attorney General’s office, it stated that “the biggest hurdle for many of the postponed and upcoming trials will be constituting juries.”

Steve Rastin, a former president of the OTLA, spoke glowingly of Downey’s letter to Canadian Lawyer.

“I think it’s bold, I think it’s appropriate,” he said. “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 attorney general is showing inspired leadership. What he’s doing is looking at a fundamental change in our system to help maybe put Ontario back together and back on track in terms of access to justice.”

Rastin’s enthusiasm isn’t shared by all. The Toronto Lawyers Association (TLA) stated in a submission to the Attorney General that jury trials are essential in Ontario due to the province’s unique social makeup.

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

There is also concern that eliminating jury trials is an inappropriate solution to an issue that could be solved through modernization and investment. As one Toronto personal injury lawyer asked CTV News: “People keep talking about how it’s too slow and it’s an access to justice issue, but what about devoting the resources they should have done in the first place?”

“There should have been more resources thrown at the judicial system well before this, and I think it’s just convenient now to use the pandemic as an excuse to eliminate or get rid of juries,” they continued.  

Even Steve Rastin agrees that Ontario’s court system is falling behind on implementing new technology.

“[What] we’ve realized is that our jurisdiction has not gone nearly as far down the road to modernization as some other jurisdictions in the world,” he said. “In the United States, they’re doing virtual motions, virtual trials, virtual appeals, they have widespread access to court records electronically and things like that.”

The province has several options to address its growing trial backlog. It can eliminate civil jury trials altogether, it can reduce or suspend jury trials, it can bring in new technology to allow trials to proceed remotely, or it can choose another path. Regardless of the decision, it must be made quickly: the province’s backlog is growing every day and preventing seriously injured accident victims from accessing the compensation they need.

If you’ve 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 assess your case and lay out your options for pursuing a claim. Contact us today to learn more.

How Has COVID-19 Affected Road Safety?

At the onset of the COVID-19 pandemic, road safety experts, including personal injury lawyers, attempted to predict how shelter-at-home measures would impact motor vehicle accident rates and driver behaviour. It was assumed, for example, that wide lockdowns would limit the use of personal automobiles, and that that would in turn reduce the number of serious accidents.

Around the time that the pandemic took hold in North America, the Global Alliance of NGOs for Road Safety compiled a list of factors that might affect road safety during and after the lockdowns. Below, we’ll look at a few key predictions and assess their accuracy.

There Will Be Fewer People on the Roads

The Global Alliance was correct in predicting that personal automobile use would decline amid the lockdowns. This effect has been noted around the world.

Unfortunately, the Alliance – and many personal injury lawyers – also guessed that fewer journeys would lead to fewer crashes. New data suggest this has not been the case. In the United States, a report from the National Safety Council (NSC) showed a 14 per cent year-over-year increase in fatality rates per distance driven in March. While overall traffic deaths – a figure that includes fatalities among drivers, passengers, pedestrians, and cyclists – were down 8 per cent, the overall number of miles driven was down 18 per cent, meaning road users are actually more likely to be killed than during the same period last year.

The numbers are equally discouraging in Ontario, where the OPP reported 71 deaths on patrolled roads as of May 4, up from 61 deaths during the same period in 2019. In both the United States and Ontario, speed appears to be a key factor.

“Disturbingly, we have open lanes of traffic and an apparent open season on reckless driving,” said NSC President Lorraine M Martin, according to the BBC. “Right now, in the midst of a global pandemic and crisis, we should take it as our civic duty to drive safely.”

“If we don’t do it for ourselves,” she added, “we should do it for our first responders, our law enforcement and our healthcare workers, who are rightly focused on coronavirus patients and should not be overwhelmed by preventable car crashes.”

Of the 71 deaths in Ontario, 17 were linked to speeding.

“We aren’t invincible,” said Lewis Smith, Canada Safety Council’s coordinator of communications, to Global News. “Speed may seem like a good idea because the roads are open, and you think you’re not putting anyone at risk, but the truth is risk can come in a hurry. Speed incenses the likelihood of something happening you don’t have time to react too.”

Even before it became apparent that lighter traffic would not lead to fewer deaths, safety experts were concerned about cars eventually returning to the roads.

“Some radio programs and news reels are showing empty streets and realizing that it’s true that there are no road crashes because of this, but what will happen when we all go out again?” asked Viviam Perrone of Argentina’s Asociación Civil Madres del Dolor in a Global Alliance article. “… we should learn to live with our foot off the accelerator when we return to the streets.”

Fewer People Will Use Public Transit

It was expected at the onset of the pandemic that mass transit ridership would plummet – this has played out as expected. It is unlikely that riders will return to public transit in the near future.

From a road safety perspective, this is a problem. Traveling via mass transit is in general much safer than travelling in a personal automobile. If fewer people choose to take mass transit in the near future, that will mean more automobiles on the road and, in all likelihood, more accidents.

If cities want to avoid a major spike in traffic accidents as their lockdowns are lifted, they must encourage commuters to travel on foot or by bicycle as much as possible. They must also develop strategies for effectively sanitizing public transit vehicles and restoring public trust.

Road Safety Strategies Will be Put on Hold

The City of Toronto is already familiar with the challenges of implementing a comprehensive road safety strategy; even before the pandemic, it struggled to make progress with its Vision Zero approach. As public resources are reallocated to deal with COVID-19, personal injury lawyers fear that road safety measures will tumble down the list of priorities. There is also concern that public messaging and awareness campaigns around road safety will be drowned out by the deserved focus on the virus.

“In general, it would seem that most of the public will be distracted, from road safety messages and that perhaps some of what we road safety advocates might usually be doing might need to wait until COVID comes under control,” said University of Washington Global Health professor Carlie Mock in the Global Alliance article.

Contact an Experienced Personal Injury Lawyer

If you or a member of your family has been injured in a traffic accident amid COVID-19, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our team of personal injury lawyers is continuing to accept new clients throughout the lockdown. Don’t hesitate to be in touch with any questions or concerns.

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