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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

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.

Image: Shutterstock

Request a free consultation

COPYRIGHT 2021 © WILL DAVIDSON LLP