Ins-and-outs of e-bikes

The Regulation of E-bikes in Ontario

E-bikes (electric bicycles) are an increasingly common sight on Ontario roads and sidewalks. They can be the cause of significant personal injury.

Many people wonder – are e-bikes regulated the same as motor vehicles?

e-bike
An E-bike

For all regulatory purposes, e-bikes are treated the same as non-motorized bicycles. Riders must be 16 years of age or older, wear an approved bicycle or motorcycle helmet and follow the rules of the road applicable to cyclists. Fines for riding an e-bike without an approved helmet range from $60 to $500. E-bike riders are subject to the same laws and penalties under the Highway Traffic Act and other legislation applicable to cyclists.

E-bikes are required to have pedals are not permitted to travel faster than 32 kilometres per hour. It is also an offence to modify an e-bike to operate at speeds faster than 32 kilometres per hour. It is up to each individual city or town to decide where e-bikes can be operated – whether it is on municipal streets, bicycle lanes or walking trails. In Toronto, e-bikes are not permitted to ride on bicycle paths or in bicycle lanes if they are making use of the motorized. E-bikes with over 24 inch wheels are not permitted to ride on Toronto sidewalks. E-bikes are not permitted on any 400-series highways or expressways anywhere in Ontario.

What is concerning about e-bikes is the fact that e-bike owners and operators do not need to hold a valid drivers license or insurance. E-bikes are frequently seen weaving in and out of vehicular traffic on busy city streets. Many owners remove the pedals from their e-bikes. However, removing the pedals will classify the e-bike as a motor vehicle, and riders of such modified e-bikes will then run the risk of being convicted under the Highway Traffic Act for driving without a license or driving without insurance.

If you or a loved one has suffered personal injury due to an accident with an e-bike, please contact our Oakville personal injury law firm for more information about personal injury sustained due to e-bikes.

 

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Ontario considers tougher distracted driving sanctions for cell phone use

Distracted driving penalties will likely toughen up this fall

 

texting cell by steering wheel

We’ve all seen it multiple times – a driver fiddling with their cell phone while behind the wheel. Distracted driving (specifically cell phone use while driving) has become a huge issue in recent years and is responsible for many car accidents and deaths across the country. According to Alberta Transportation, distracted drivers are three times more likely to get into an accident than their focused counterparts.

Distracted driving has become the number one killer of people in car accidents

The Ontario Provincial Police report that in 2013, 78 people died in car accidents where distracted driving was a factor. Compare that to 57 deaths in impaired driving-related car accidents and 44 deaths in speeding-related car accidents. In 2013, the Ontario Provincial Police laid 19,000 distracted driving charges. This is an increase of 3,000 from 2012. Toronto Police laid a whopping 55,000 distracted driving charges between 2010 and 2012 and cite cell phone use while driving as a factor in at least three car accident deaths.

The current penalty structure is not discouraging drivers from using their cell phones while driving. According to the 2013 Ontario Student Drug Use and Health Survey, 46% of grade 12 students admitted to texting while driving on at least one occasion.  While public awareness campaigns have brought attention to the cell phone use while driving issue, it has not decreased this dangerous and potentially fatal behaviour.

The current penalty for cell phone use while driving is a $280 fine and no demerit points. This came into effect in February 2013 after a judicial order of the Chief Justice of the Ontario Court of Justice Annemarie Bonkalo, who recognized that distracted driving is responsible for many car accidents. The previous fine was merely $155.

Distracted driving fines set to increase

This week, Ontario Transportation Minister Steven Del Duca announced that a bill to change the law regarding distracted driving will be tabled this fall. This bill would significantly stiffen penalties for distracted driving. The proposed bill would increase fines to range between $300 and $1,000 and add three demerit points per infraction. This is specifically to target cell phone use while driving behind the wheel. With the addition of demerit points, perhaps a reduction in cell phone use while driving will be achieved.

If you or a loved one has been the victim injured in a car accident where distracted driving or cell phone use was a factor, you have legal rights.  Please contact our Oakville car accident law firm for more information about personal injury sustained due to distracted driving.

 

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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.

Taking on big companies in big ways!

Class actions vs. Mass Tort Litigation

judge gavelThere are many reasons why class actions may commence. The basic reason is that a group of people have all been harmed in a similar way. This could be, but not necessarily,  as a result of product, company, or environmental issues. All of these may require a class action or mass tort litigation for those impacted to receive compensation.

 

When a person purchases something, whether for medical reasons or simply “just because”, there is a certain trust we as consumers have that the product will not be defective. On many occasions, a defective product is not the end of the world. One may simply need to call the company and request a new product. On the other hand, there are times when a defective product can cause serious health, economic and psychological issues, in which the consumer deserves compensation accordingly, which is when a class action or mass tort litigation action may be necessary. A class action or mass tort litigation action can arise when it is not only one consumer that has been impacted by the defective product.

One of Will Davidson’s defective product experiences is with allegedly defective pelvic mesh devices, where hundreds of plaintiffs have come forward with claims. Will Davidson had to decide the best way to proceed for their clients and the claimants of this action. Therefore, the following is an important question: What is the difference between a class action and mass tort litigation?

In class actions, the plaintiffs involved need to fall under a strict “commonality” requirement, amongst other things. Remember that class actions are tried together-as one. An example of the consequences of this, is the following: When a settlement is paid out, it is split between the parties. Therefore, you may not get as much as you feel fair in class actions. In class actions, all plaintiffs are in it together and there are many restrictions and court proceedings that need to be followed to ensure a proper class action. Despite the complications, certification, which is the ability to begin a class action, is a lot less difficult in Canada than it is in the States. This is a positive reason to proceed under this umbrella.

Mass Tort Litigation: Mass tort litigation allows for individuality. The commonality requirement is not there as it is in class actions. Defective products, although they might injure many people, may not cause the exact injury and therefore, a commonality requirement is difficult to satisfy. This is one of the positive reasons why one should proceed under mass tort litigation.

In the end, individual circumstances are the deciding factor as to whether a case proceeds in a class action or individually with mass tort litigation. As courts get more and more comfortable with these types of cases, either the class action route or the mass tort litigation route, may come out as the winner. Despite the “newness” of these types of class action legal proceedings in Canada, do not be afraid to take on who you need to, to get the compensation you deserve! If you have sustained personal injury from a defective product, do not hesitate to contact our personal injury law firm to find out about your legal rights.

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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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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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Accident Benefits Denials 101

Accident benefits being denied? You can do something about it!

Denied DocumentIf you have been in a car accident you may apply for and receive accident benefits. Accident benefits can be in the form of income replacement benefits or a caregiver benefit, but accident benefits also can help with medical costs, treatments and attendant care costs. The insurance company will pay these accident benefits to the person injured in the car accident once the appropriate Auto Insurance Claim Forms are filled out.

However, accident benefits are not necessarily a long-lasting payment and it is important to understand what happens if you receive a letter denying your claims.  Take the following example: When you submit a form to the insurance company for a treatment plan, the insurer will often set up a medical examination to confirm the necessity and reasonableness of the proposed treatment plan. Depending on what the insurer’s medical examiner determines, you may be denied accident benefits for that treatment plan.

What happens next? It is important that you understand that this does not always mean accident benefits are no longer possible for you. You must apply to the Financial Services Commission of Ontario (FSCO). If your medical treatment benefit, or other benefit, has been denied  it is important you take action and contact FSCO for mediation. FSCO will then schedule a mediation, supposedly within 60 days of receiving the application for mediation, but this might take longer. At mediation, negotiations around your disputed accident benefits will take place. You can negotiate for yourself, or through your lawyer. These negotiations will ideally come to a resolution of the disputed accident benefit that pleases both parties.

If mediation fails, your plight is not necessarily over with. You may either file a Statement of Claim through the Courts, which will begin a court action, or you can apply for arbitration through FSCO. With both of these, a decision-maker will decide what, if anything, you receive. Like any court action, there are deadlines to submit a Statement of Claim or an application for arbitration. Make sure to educate yourself on these deadlines so you are not prevented from getting what you deserve! This is basic information regarding the process you can do if and when your accident benefits are denied. An important website you can check out for information/instructions and important forms is:

http://www.fsco.ca/en/forms/Pages/default.aspx

If you or a loved one has sustained personal injury from a car accident and wish to gain more information on accident benefits, accident benefit denials, and tort claims and legal options, do not hesitate to contact our personal injury law firm about your legal rights!

 

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Personal Injuries Can Impact The Entire Family

Family Law Claims

When you sustain a personal injury from a car accident, slip and fall or other accident, your injury can be detrimental to your normal lifestyle. However, those close to you may also be gravely impacted due to an injury that you sustained, despite them not being physically injured. It is because of this, that close family members have the option to bring forth a claim under the Family Law Act (FLA) to receive compensation for what they too have been put through because of their loved one’s injury from a car accident, slip and fall or other accident.

For instance, if you are in a car accident and suffer an injury which results in chronic pain, you may not have the same abilities as you once had.  In this example, your spouse may be required to take on extra responsibilities within the home. Additionally, your relationship may suffer or change due to the injuries you sustained in the car accident. If this is the case, your spouse would be able to make a claim under section 61 of the FLA, which can be summarized as follows: This section allows a spouse, children, grandchildren, parents, grandparents, brothers and sisters of the person injured to recover damages for expenses incurred by them for their loved one’s injury, travel expenses, housekeeping and nursing services and compensation for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person with the injury, if the injury from the accident had not occurred.

In the recent case of Lee v. Toronto District School Board, et al. 2013 ONSC 3085 (CanLII), a little boy was severely injured in a school ground accident by another child. The boy’s parents and sister claimed under the family law act for an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury from the accident had not occurred. The judge fixed the damages for the claimants at $50,000.00 for each parent and $30,000.00 for the sister.

Another example of an FLA claim occurs in the 2009 case of Degenarro v. Oakville Trafalgar Memorial Hospital. The plaintiff suffered an injury after an accident in a hospital was caused by a faulty bed. Her condition caused stressed in her marriage and relationships with her children which were unlikely to improve. The plaintiff’s husband was awarded $65,000.00 and her two sons were awarded $25,000.00 each for loss of guidance, care and companionship

Loss of guidance, care and companionship can mean the loss of contribution that the loved one that sustained the injury in an accident can no longer provide. It could also mean that the loved one’s relationships with his or her spouse and children have been negatively impacted. Perhaps a spouse can no longer be intimate with their partner, or a mother can no longer be attentive to their child; these are both examples of circumstances that may warrant an FLA claim. If you have questions about what your options are due to a personal injury that has befallen you or a loved one from an accident, do not hesitate to contact our personal injury law firm about your legal rights and your family members’ legal rights.

 

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Is parking your car, getting out of it and tripping over a curb a “car accident”?

If you are injured in a car accident you are entitled to certain “benefits.”  The question in this case is whether or not the driver of a car was entitled to those benefits.

automobile accidentBefore answering this question it’s important to note that when you get into a car accident you are entitled to receive certain “benefits” to help reintegrate you into society. If you are in a car accident you can receive car accident benefits like “attendant care” benefits which pays for people to attend to your care if your injuries prevent you from taking care of your needs at home. You can also receive income replacement benefits which helps replaces some of your income. You can also receive medical and rehabilitation benefits to pay for your therapy, medication ect.  These benefits – which are quite numerous – are quite vital to a person’s well being after a car accident.  In this care Mr. Prest was asking a Court weather or not he had “an accident” that would allow him to access these benefits…

What happened – was this a technically a car accident?

In the early afternoon of April 13th 2012 Mr. Prest parked his car in a parking spot in the garage of his apartment building so that he could wash it.  He got out of his car, walked around it and tripped over a concrete curb that “stuck out” from the wall of the parking garage.  He stated his right hand was touching the car when he tripped.  The Court said that there was no issue he suffered an impairment as a result of the incident.

What does the insurance laws say about this – is this a car accident?

Subsection 3(1) of the Schedule defines “accident” as meaning “an incident in which the use or operation of an automobile directly causes an impairment … .”

The Court looked at two Court of Appeal cases in the past –  (from 2002 and 2004) that asked the question a two-part test that involves a consideration of the following questions:

(a)  Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

(b)  Did such use or operation of an automobile directly cause the impairment (the “causation test”).

 What did the Court say? Is tripping over a curb while going to wash your car an accident?

In examining the purpose test, the Court must determine whether the incident or accident resulted from the “ordinary and well known activities to which automobiles are put”. They found that it did not. At the time of the incident the vehicle was being neither used nor operated.  They noted that the car was parked in it’s regular parking spot for the purpose of washing it.  A parking spot at one’s residence is typically where a car is put when there is no intent to use it.

Here the only role played by the car was that Mr. Prest drove it to the general location of where the incident occurred.  The use of the car had ended without injury being suffered.

Mr. Prest got out of his car and then was subsequently injured by a new intervening act, namely when he tripped over the curb that in his words “stuck out”.  He parked the car in its usual spot and that did not create any special risk beyond the risk faced by Mr. Prest every time he parked his car in his parking spot.  If that curb is in a bad location or is otherwise dangerous, that is an occupier’s liability issue.

The answer was no – this was not a car accident. Poor Mr. Prest was not injured in a car accident or by the use or operation of his car and unfortunately he was not entitled to car accident benefits to help him get better. In this instance he had to rely elsewhere for payment of his rehabilitation.

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