Court Decision Puts Ontario Accident Victims in a Tough Spot

When the Government of Ontario enacted sweeping changes to the province’s auto insurance system in 2016, it did so with the aim of reducing premiums by streamlining and simplifying the claims and pushing through broad benefits cuts. According to most Ontario car accident lawyers, the changes to benefits and shifting injury definitions in Bill 15, the Fighting Fraud and Reducing Insurance Rates Act, have had a negative impact on injury victims while also failing to significantly reduce premiums.

Another stipulation of Bill 15 was that responsibility for resolving accident benefits disputes between injury victims and insurers moved from the Financial Services Commission of Ontario (FSCO), a regulatory agency of the Ministry of Finance, to the Licence Appeal Tribunal (LAT). The change was met with skepticism by Ontario car accident lawyers, who noted that the LAT had no history of managing conflicts between insurance companies and vulnerable insureds.

The shift from the FSCO to the LAT has not been catastrophic for accident victims, but a ruling by the Superior Court of Ontario, recently upheld by the provincial Court of Appeal, may spell trouble. The case, Stegenga v. Economical Mutual Insurance Company, involved an allegation of bad faith against the insurer. The ruling confirmed the LAT’s jurisdiction over most bad faith cases, which limits potential awards for plaintiffs.

The Case

Fifteen-year-old Morgan Stegenga was seriously injured in a car accident in 2011. In addition to broken ribs, she suffered a head injury that affected her cognitive ability and caused personality, behavioural, and psychological changes, according to Canadian Underwriter.

Morgan’s family applied for accident benefits in 2012. Their insurer, Economical Mutual Insurance Company, failed to advise them that Morgan’s injuries may qualify as catastrophically impairment. It also failed, according to Law Times, to ‘investigate Stegenga’s condition, have her medically assessed, assign a case manager for her care and rehabilitation or respond to their requests for authorization of a neurologic psychoeducational assessment.’ The Stegenga family opted to sue, alleging that the insurer had breached its duty of good faith.

The Decisions

Ontario’s Insurance Act states that the LAT is responsible for “the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.” Superior Court Justice James Ramsay decided that Stegenga’s claim fell into this category and dismissed it.

In its appeal, the Stegenga family argued that the insurer’s duty to act in good faith was separate from its duty to provide benefits and could thus be addressed in court. Court of Appeal Justice Benjamin Zarnett disagreed and upheld the Superior Court’s decision. He cited lawmakers’ intent in his explanation.

“The legislature made a choice as to what disputes would be within the exclusive jurisdiction of the LAT, and what remedial powers the LAT would have. That was a policy choice it was entitled to make,” Justice Zarnett wrote. “The Insurance Act and its regulations form a comprehensive scheme for the regulation of insurers and insurance. The legislature must be taken to have armed the LAT with the remedial powers it considered appropriate to deal with improper insurer behaviour, knowing those remedial powers were different from the court’s.”

The Implications

The decision of the Ontario Court of Appeal in Stegenga v. Economical Mutual Insurance Company will prevent accident victims from seeking damages outside the LAT from insurers acting in bad faith.

“This was an attempt by the personal injury plaintiff’s lawyers to try to preserve that bad faith cause of action and pursue it in court,” one lawyer told Law Times. “This just firmly shuts the door on the potential to recover for bad faith in a standalone action.”

It also limits the amount of compensation available to plaintiffs. In cases of bad faith, the LAT can make a special award of up to 50 per cent of the benefits that the injury is owed and can order the insurer to pay a higher interest rate, per Canadian Underwriter. But this is “much lower than the potential risk for a bad faith claim,” the lawyer who spoke to Law Times said.

Will the reduced maximum penalty for bad faith actions embolden insurance companies to act unethically? That is certainly a concern for many Ontario car accident lawyers. However, it is still far too early to know how the Stegenga v. Economical decision will affect insurer behaviour moving forward.

Contact an Experienced Personal Injury Lawyer

If you have been injured in a motor vehicle accident and are considering claiming accident benefits, contact Will Davidson LLP today to learn how our experienced team of Ontario car accident lawyers can help. We will be happy to schedule a free, no-obligation consultation to review your case and offer advice on how best to proceed. Contact us today for more information.

Are you covered by overland flood insurance?

In late April and early May, Quebec and southern Ontario were hit by a sustained period of heavy rain and wet weather. The system caused a handful of deaths, widespread flooding, and forced hundreds from their homes in Montreal, Ottawa, Toronto, and everywhere in between.

This type of event is becoming increasingly common in Canada. Insurance dispute lawyers remember the flash-floods caused by heavy rainfall wreaked havoc in Toronto in 2013, the same year that much of Calgary was submerged by overflowing rivers.

“We’re just looking at the tip of the iceberg when it comes to flooding because climate change is going to make the problem much worse in the future,” University of Waterloo assistant professor Jason Thistlethwaite told the Toronto Sun.

With the possibility of frequent flooding looming large in the foreseeable future, Canadian homeowners and their insurance dispute lawyers should be sure to take a close, careful look at their home insurance policies. According to Craig Stewart, vice-president of federal affairs at the Insurance Bureau of Canada (IBC), only 10 to 15 per cent of Canadian homeowners are insured for the sort of damage inflicted by the recent floods.

Many standard home insurance policies cover damages caused by broken water mains and other appliances, but not overland flooding from melting snow, heavy rain, or inundated rivers and lakes. Indeed, most insurance providers didn’t offer an optional overland flooding provision until after the 2013 floods in Toronto and Calgary.

“That was primarily because we did not have flood risk maps developed for the whole country,” Stewart told the Sun. “The insurance industry needs to be able to quantify the risks so they can assess which premiums to charge which people. Up until then there was simply no risk mapping done to be able to support such policies.”

Overland flooding provisions have been available since 2015, but the majority of homeowners remain unaware of them. Thistlethwaite surveyed 2,300 Canadians living in high flood risk regions, and found that around 70 per cent were not notified of the new option by either their insurance provider or the government.

Unfortunately, thanks to the changing realities of the Canadian climate, the option for homeowners to purchase overland flooding protection may be short-lived. If flooding becomes an annual event across the country, insurers will be hesitant to offer protection. Consult with insurance dispute lawyers today to determine how best to protect yourself from these events.

“Normally insurance is designed to cover you for unforeseen, unplanned circumstances,” IBC’s Pierre Babinsky told CTV News. “If you are flooded every year and it becomes a certainty, that’s not the objective of insurance. If you’re living right near the water, the insurer may deem your risk too high.”

If you are having difficulty filing a property damage claim as a result of flooding, contact the insurance dispute lawyers at Will Davidson LLP today for assistance. Our team can help you navigate the complicated home insurance system and receive compensation for your damages.

 

Spring Is Here, Look Out For Cyclists!

With spring weather upon us, we can expect to see many seasonal cyclists back out on the road. All users of the road need to exercise extra care as they share the road with others. Unfortunately, not all drivers take the caution they should around cyclists. As a result, the law requires that a motor vehicle operator who is involved in a collision with a cyclist prove that they were not negligent.

In 2013, four cyclists were killed in traffic accidents in the City of Toronto. That same year, the website BlogTO published a list of the 10 worst intersections for cyclists in Toronto. This list was compiled by Adrian Verster by crunching more than 25 years of GPS tagged statistics from the Toronto Traffic Safety Unit on injuries involving cyclists. The intersections where the most cyclists suffered personal injury are:

  1. Lake Shore Boulevard East & Carlaw Avenue;
  2. Queen Street West & Niagara Street;
  3. Queen Street East & River Street;
  4. Bathurst Street & Davenport Road;
  5. Avenue Road & Lonsdale Road;
  6. Bloor Street West & Brock Avenue;
  7. Bloor Street West & St. Thomas Street;
  8. Lake Shore Boulevard West & Jameson Avenue;
  9. Bloor Street East & Castle Frank Road; and,
  10. Bloor Street East & Parliament Street.

(source:

Another danger facing cyclists is poor road conditions. Roads may have eroded during the winter.  If you are involved in a cycling accident due to poor road conditions that results in personal injury and wish to bring a claim against a city, province or agency, you will have to prove the following elements:

  1. You must show that the poor road conditions actually caused the personal injury. In doing so, you will have to show that you were driving safely given the conditions of the road;
  2. You must show that the city, province or agency, or a contractor that they hired, had a duty to maintain the road in question and keep it safe; and,
  3. You must show that the city, province or agency was negligent in maintaining the road in a safe condition for cyclists.

So how can you protect yourself from personal injury as a cyclist? Here are our top safety tips for preventing personal injury as a cyclist:

  1. Wear a helmet – it could save your life;
  2. Stick to cyclist-friendly roads with wide shoulders or bike lanes;
  3. Approach parked vehicles with caution – cyclists have sustained personal injury and even perished due to drivers opening their car doors;
  4. Be visible – wear reflective materials, bright colours and use lights at night; and,
  5. Obey the rules of the road – treat other road users with respect, obey traffic signs and signal your intention to other road users.

If you are a loved one has suffered personal injury as a cyclist, please contact our Oakville personal injury law firm. At Will Davidson LLP, our expert personal injury lawyers have helped many cyclist personal injury victims receive compensation they deserve.

 

Uber car accidents: Are you covered?

With the increasing popularity of ridesharing services such as Uber, there may be a corresponding increase in car accidents

In October 2014, the Insurance Bureau of Canada warned wannabe ridesharing drivers that their personal car insurance won’t cover them if they are involved in an Uber car accident or a passenger is injured. If drivers want coverage, they will have to pay for commercial insurance coverage.

However, Uber released the following statement in response to the Insurance Bureau’s concerns, assuring potential customers it has a $5M USD policy for motor vehicle accidents:

“Every ride on the uberX platform in Canada is backed by US$5,000,000 of contingent auto liability insurance covering bodily injury and property damage. In the event of an accident during an uberX trip, passengers, pedestrians, other drivers, and the community at large can rest assured knowing that ridesharing partners are well covered by commercial auto insurance in addition to any insurance coverage maintained by the driver. This US$5,000,000 of coverage is more than two times the standard requirement for taxi and limo insurance in Toronto and is written by an insurance company rated A+ (Superior) by A.M. Best”

Also in October 2014, Luigi Dilorenzo, a private investigator and former Toronto police officer, posed as an interested UberX driver applicant. He was hired by the City of Toronto as part of their ongoing investigation into Uber’s driver-screening process. The City of Toronto is fighting to stop UberX in Toronto, arguing that they are flouting the City’s taxi licensing regulations.

Uber Logo
Uber is a popular ride sharing service

 

If a loved one has died in an Uber car accident, it is important that you contact a specialized lawyer immediately. The laws concerning fatalities due to Uber car accidents and auto insurance are quite complex.

There are also certain issues that a specialized lawyer will be able to assist you with. There may be certain financial benefits available to a person who was injured or killed in an Uber car accident to cover death and funeral costs. There is also the availability of a wrongful death claim which would seek compensation to all eligible surviving family members entitled to financial compensation and recovery for their loss. There may also be death and funeral benefits that a family may be entitled to, as well as financial income losses to help compensate the surviving spouse or child for financial losses they suffer due to increased family responsibilities or perhaps even the loss of a dual family income. Our Oakville Uber car accident lawyers can provide you the specialized representation you need to bring claims for fatalities and injuries due to Uber car accidents. Please contact us for a free consultation.

 

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To read another interesting article from our blog, click here.
If you have been injured in an Uber car accident, contact us for more information.

Nursing Home Negligence

Nursing Home Negligence

There comes a time in a person’s life, where they or their family members need to decide if a long-term facility, such as a nursing home, is the right move. One needs to be ensured that they will be taken care of in a nursing home and that no negligence will occur. Families worry about their loved ones just as much, and it is important for all that their mother, father, grandparents or any other relative is safe in a nursing home and does not fall victim to nursing home negligence. Although there are many fantastic nursing homes out there, there are many cases of nursing home negligence. In today’s era of aging baby boomers, nursing homes will only get busier, and thus more negligence cases may arise.

Nursing Home NegligenceNursing home negligence can be physical or emotionally caused. For example, in 2013, CTV news reported that an 85 year old woman was being mistreated in a nursing home in Peterborough Ontario. She was seen having a feces-covered rag waved in her face and also having her diaper changed with the door wide-open. There were also suspicious circumstances surrounding a black eye and bruises. Another example of nursing home negligence includes a growing concern regarding residents being given potentially lethal anti psychotic drugs, which can be used to help aggression and acting out. There are certain types of these drugs that can cause severe adverse reactions and many residents, who are not even prescribed these drugs, have been victim to this adverse reaction as they have been ingesting the drug. Other types of nursing home negligence include dropping residents, yelling at residents, neglecting residents and leaving residents unattended for hours upon hours, which can create bedsores. According to the Long-Term Care Homes Act, Nursing homes have a zero-tolerance policy for any time of negligence or abuse. Therefore,  if negligence occurs, those people injured, should be compensated.

Nursing homes are expected to provide a safe environment for those living there, and many are! A nursing home should be a clean, happy and pleasant place where people can live without worry of negligence. However, if you are a resident of a nursing home, or you are a loved one of a nursing home resident, that has been victim to nursing home negligence, do not hesitate to contact our personal injury law firm to find out what your legal rights are.

The Dreaded Pothole Situation

Car Accidents and Potholes

They seem to be everywhere. They cause bumps, delays and even car accidents. What are they? They are the dreaded potholes.

After the winter we have just had, it seems that the pothole situation is at an all-time high. They are causing damage to vehicles and causing car accidents if someone loses control when hitting a pothole.

If your car has been damaged in an accident caused by a pothole, or simply by the pothole itself, what are your avenues to seek compensation for such damage from the accident? Can you hold the municipality responsible for any damage that was caused to your vehicle due to a pothole? It is important to understand the standard of care for a municipality as it relates to potholes and any damage to vehicles or accidents potholes may cause.

Justice Leach of the Ontario Superior Court of Justice spoke to this issue in the recent decision of McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. This case was about a young woman who was driving her vehicle on a country gravel road when she lost control of her vehicle and had a car accident due to potholes on the road. She sustained serious and life-threatening injuries as a result of the car accident. The young woman began an action against the rural municipality.

Justice Leach determined that the action should be dismissed. This means that the municipality would not be held responsible for the accident caused by the potholes. For the municipality to be responsible, certain things must transpire. They are the following:

Potholes

  1. Official Complaints to the Municipality should be made.

This does not mean complaining around your city or town, but actually submitting formal complaints to the municipality about the potholes.

  1. The condition of the road must be in a state of disrepair.

A road that is in a reasonable condition, does not count! For instance, a gravel road is expected to have bumps and holes and thus it is not in a state of disrepair.

Additionally, these two points have to coincide. What this means is, even if the road is in disrepair, the municipality can rely on the defence that it had no knowledge of the defect and thus it is not held responsible for any accident.  The municipality has the responsibility to take reasonable steps to prevent the defect from arising by having regular systems of grading and it must meet the minimum standards of inspection and pothole repair. If it does these things, it may not be held responsible for any accident and/or damage that may occur as a result of potholes.

Potholes are going to continue to be the bane of many peoples’ existence. They are something that we all have to live with, however they should be fixed as soon as reasonably possible by the municipality. You have the responsibility to avoid dangerous accident-causing situations, if possible and you must make formal and detailed complaints about potholes, so that if any damage occurs because that pothole has not been reasonably fixed, you will have avenues of recourse!

If you have sustained personal injury from an accident or car accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Watch out for that Tree: Personal Injury and Property Damage

Falling trees causing personal injury and property damage

Fallen Tree on roadIt has been an icy winter to say the least. Personal injury and property damage have been sustained due to icy trees falling on cars, houses and people. However, trees do not only fall in the winter and falling trees can cause personal injury and property damage at any point during the year. What responsibility do you, as a property owner, have if a tree has fallen onto a neighbor or a neighbor’s property causing personal or property damage? On the other hand, what avenues of recourse do you have as a personally injured person or a person who has sustained property damage, against your neighbor?

If your neighbor’s tree falls on your house, or your car, the following should be taken into account: Many times, a tree falling on your property will be covered by insurance. There are times, when this is not the case and therefore neighbors begin law suits for personal injury and property damage against other neighbors. A 1996 Ontario Superior Court Decision, ruled that a neighbor, whose tree fell onto Mr. and Mrs. Parent’s property causing damage to their home and snowmobile, was not responsible for the damage. The judge reasoned that growing a tree is a natural use of the land and the owner of that land is under no obligation to his or her neighbor with respect to what is growing on his or her land. The neighbor has a responsibility to protect him or herself from personal injury or property damage. However, if an owner knows of, or can plainly see, warning signs that the tree is, for instance, decaying, they must take steps to ensure the tree is not hazardous to others.

There is also a British Columbia Court of Appeal case that involves a tree falling onto a woman’s property after a wind storm. The owners of the tree were found responsible for the damage, because the neighbor had warned them about the condition of the tree, and despite that, they did nothing to avoid the hazard. Therefore, to avoid property damage, and at times personal injury, it is important for everyone involved to be responsible property owners.

If you sustain personal injury due to a tree falling on you and it is a fluke accident, do you have any means of compensation? In some cases, personal injury from a tree falling can even result in death, which was the case of a Port Colborne woman. She was driving by in her car this winter when a tree, due to natural phenomenon, fell upon her car, crushing it and causing her fatal injuries. Again, insurance routes are available to most. As well, if the tree was not owned by a civilian, the City (or Town) has responsibility to ensure the safety of their property-this is true of trees, and even pot holes. If these avenues are unable to be used, or if they have been exhausted, legal action may need to be pursued.

Know your legal options and if you have experienced personal injury, do no hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Are you a Victim of a Hit and Run Accident?

Victim of a Hit and Run Accident? You Have Legal Options!

Picture this: You are driving your bicycle along the street carefully and prudently. You are using your hand signals and watching your surroundings. Despite this, a car comes behind you and strikes your bike causing you to have an accident. Even if the car only clips you, your balance is thrown off and you fall from your bicycle. An accident has happened.  Now picture another scenario: You are driving your car down the street carefully and prudently. You are using proper signals and watching your surroundings. Despite this, another vehicle strikes your car causing you to spin out of control and have an accident. These two accident scenarios I am putting forth have something in common: The vehicle that struck the cyclist and other motorist causing an accident, has fled the scene. Not only has the vehicle fled the scene, but the driver is never heard from again. This is not an uncommon situation, especially in busy cities such as Toronto.

As the victim in situations such as these, what are you to do? How are you expected to get compensation for any injuries that were sustained due to the hit and run accident?

When the other vehicle sticks around, usually it would be the driver of the vehicle that caused the accident that would be brought to court. However, if it is impossible for this to occur, the victim of the accident is forced to bring a claim forward against their own insurance company. The problem is, just because they are your own insurance company, it does not mean that they will easily compensate you for your injuries that you sustained in the accident. They become the Defendant in the case and you are the Plaintiff, thus you are put into an adversarial relationship with one another.

One of the major issues in cases such as these comes when there is a question of liability. Liability concentrates on who was at fault for the accident and how did it occur. A real situation occurred when a woman was driving her bicycle in Toronto and was struck by a car before it fled the scene, a witness also saw this accident happen. Despite the eye-witness, it would maybe be difficult to prove that she was indeed struck by a car causing the accident or if her wheels got caught in the streetcar tracks causing the accident. This issue with liability, does not necessarily mean you will not be compensated for your injuries, and you certainly always have the right to proceed to trial, but it may impact how much you’re awarded. It brings a risk factor, that would not necessarily be there if the unknown vehicle driver stayed at the scene and admitted to striking the cyclist.

It is for these reasons, that is important to have your lawyer bring forth all of the evidence, including your expertise as a cyclist and the eye-witness report, forward so that a settlement can be made in your favor or a judge or  jury will understand what really happened and you can be compensated for your injuries and other damages caused as a result  of the accident. When  hit and run occurs, cases can become difficult. However, do not think that just because there is no individual that you can bring a claim against, that you have no legal options to pursue…You do.

hit and run accidentIf you or a loved one has sustained personal injury from a hit and run accident, or other type of accident, not hesitate to contact our personal injury law firm about your legal rights.

 

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When the Doctor Gets it Wrong: Misdiagnosis and Medical Malpractice

Medical Misdiagnosis

Doctors are human and mistakes can happen. There are times when these mistakes, despite being perhaps detrimental to the patient, would not result in a successful medical malpractice case. However, the malpractice of a doctor and/or hospital can be brought to the courts, so the patient can receive compensation, when the doctor or hospital has been negligent.  An interesting area in medical malpractice law is when there is a lack of diagnosis, an incorrect diagnosis or a failure to relay a diagnosis. If these issues are as a result of a doctor’s negligent behavior, a medical practice claim may be brought against them.

gavel and stethoscopeA leading case on this area of medical malpractice and doctor negligence is that of Lawson v. Laferrière, where a woman had a biopsy in 1971, which revealed she had cancer. She was never told this and it was not until 1975 that she realized she had cancer. The court found that this failure to diagnose the patient did not ultimately cause her death in 1978, but they still awarded damages to the Plaintiff side for the psychological stress she must have felt by wondering what would have happened if she had been diagnosed in 1971  ̶̶  the “what if” type of questions. Even with an absence of trauma, a patient can still recover damages in a medical malpractice case for misdiagnosis or lack of diagnosis if mental distress exists (Anderson v. Wilson).

An American case that was recently in the California courts also delved into the topic of doctors’ and hospitals’ negligence and medical malpractice claims for problems surrounding the diagnoses of a patient. In this case, Myrick v. Hansa, a young man of 19 years old was brought to the hospital after being unable to sit or speak at work. There was a possible stroke diagnosis, but despite this more examinations were not completed and a doctor did not even see the young man until the following morning. It was not until the next day, when his condition deteriorated, that he was diagnosed as having an ischemic stroke resulting in significant brain damage. The hospital, emergency room physician were diagnosed for failing to diagnose and thus treat his impending stroke. After some settlements, the medical malpractice case against one of the defendants went to trial and the jury awarded 36.61 million to the young man.

 It is not just a wrong cut in a surgery or a bad cast-job that can result in doctor’s negligence. Misdiagnosis, as seen above, can also bear with it extremely detrimental consequences. Even if a condition did not worsen because of a misdiagnosis or lack of diagnosis, one may still be able to recover compensation from the doctor or hospital in a medical malpractice claim.

If you or a loved one has sustained personal injury due to the actions of a hospital or doctor, do not hesitate to contact us about your legal rights.

 

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