Filing a Wrongful Death Lawsuit in Oakville

Losing a family member is very distressing, particularly if your loved one passes away because of the wrongful conduct of a person or group of people.  Of course, no remedy can fully compensate for your resulting loss, but if someone else’s negligence or intentional action is responsible for the death, you may want to hold that person legally responsible. Keep in mind that a “wrongful death” claim is strictly a civil claim for compensation. It is separate and apart from a criminal case, if any, and neither proceeding has an impact on the other.

Thresholds for Establishing a Wrongful Death Claim

The threshold for establishing a wrongful death claim requires proof that the death resulted from the negligence or deliberate action of another party. It is also necessary to establish that the death caused measurable damages to the dependents. Contributory negligence or failure to mitigate does not preclude a successful claim from occurring, though it can reduce the total amount of recovery available.

How do I File a Wrongful Death Lawsuit in Ontario?

The ability to sue for loss due to death is not a traditional right in common law as the deceased cannot bring forth a claim. However; the Ontario Family Law Act, 1990 (the “FLA”) makes it possible for dependents to make a claim. Hence, damage compensation can be claimed directly from the wrongdoer or their insurer. A personal injury lawyer in Oakville can determine which laws apply to your case and if there is insurance applicable to cover the claim.

Who Can Bring a Claim?

Section 61(1) of the FLA, states that spouses, children, grandchildren, parents, grandparents, brothers and sisters of the deceased, can be awarded damages pursuant to a FLA claim. In Miron v. Trudel, these limitations were further broadened to include unmarried life-partners.

What Losses Can Be Recovered?

As identified under s.61(1) of the FLA, family members are entitled to recover damages if a family member has passed away as a result of the accident or succumbed to their injuries. Such damages include future loss of shared family income, future loss of family work, and future loss of wealth, such as the deceased’s inheritance or estate. Evidence from family members who lived with the individual is highly important to support the FLA claim.

Under s.62(2) of the FLA, the same family members may also make a claim for actual expenses reasonably incurred for the benefit of the person killed, actual funeral expenses reasonably incurred, and a reasonable allowance for travel expenses. Most significantly, he or she may claim non-pecuniary losses, assessed based on the “loss of guidance, care, and companionship” that the claimant might have reasonably expected to receive from the person had the death not occurred.

In determining non-pecuniary damages, the court will consider the age, mental and physical condition of the claimant, and whether or not the deceased lived with the claimant. In the cases where a deceased did not reside with the claimant, the court will consider the frequency of the visits. Additionally, the court will also consider the intimacy and quality of the claimant’s relationship with the deceased, the claimant’s emotional self-sufficiency, if the decedent’s spouse remarried, and the life expectancy of both the deceased and the claimant or the probable length of time the relationship would have lasted.

In addition to the particular nature of the family relationship involved in the claim, the total amount of damages awarded will depend on the specific facts and circumstances of the incident which caused the death. A wrongful death claim often occurs in the context of a medical malpractice action or an automobile accident, though any variety of claim types are possible including negligence in failing to enclose a swimming pool which results in a child’s death.

A wrongful death lawyer in Oakville will meet with you to understand your situation and investigate the circumstances of your claim. We will pursue fair compensation on your behalf and assist so that you don’t have to navigate the complex legal system on your own.

Wrongful Claims for Children

A wrongful death claim for children is differentiated from other wrongful death claims, as children are entitled to a relatively higher threshold of damages. In the motor vehicle accident case of Vana v Tosta, the Supreme Court of Canada determined that two children, aged 9 and 12, could recover a loss of their mother’s guidance, care and companionship.

For the other recoverable categories under the FLA, the Ontario courts have assessed damages across a wide spectrum.

Is There a Time Limit for Filing a Claim?

A wrongful death claim needs to be filed within two years of the death according to the Ontario Limitations Act, 2002.

Speak to a Wrongful Death Lawyer in Oakville at Will Davidson LLP

If a loved one has died and you suspect that the death was someone else’s fault, contact us at Will Davidson LLP so that we can review the details and circumstances surrounding the incident and assess whether we can file a wrongful death claim for you and your family. Our personal injury lawyers in Oakville are experienced in wrongful death claims and can provide a complementary, no-obligation consultation on your potential case.

Our fees are recovered only if and when the damages are recovered. Your loss may be traumatic, but you owe it to yourself and your family to find out if you are eligible for compensation. Contact us at Will Davidson LLP at 1-866-503-8757 today.

Holiday Season Brings More Car Accidents

Holiday Season Brings More Car Accidents

A study done by All State Insurance shows that in the past 20 years, most car accidents have happened on three days: December 21, 22 and 23. The study counted insurance claims for car accidents in 50 separate communities in Ontario, Alberta, Quebec and New Brunswick.

 A separate Global News study showed that December 23 is the worst day for car accidents in Toronto. An interesting chart showing the average amount of car accidents each day for 2001-2011 can be found here.

 

police at car accident scene
In Toronto, pedestrians accounted for almost 2/3 of all car accident fatalities in 2013.

Data for car accidents occurring on December 23 in Toronto shows that the top locations for car accidents were Scarborough Town Centre and Dufferin Mall. If you include the rest of the week, the top locations for car accidents also include Yorkdale Mall, Sherway Gardens and Fairview Mall.

Why the spike in car accidents? Clearly there is a link between last minute holiday shopping, rushing and car accidents. Other possible reasons include more people on the roads visiting friends and family, as well as poor weather conditions typical of the winter months.

In 2013, there were 63 total car accident fatalities in Toronto. Of those car accident fatalities, 40 were pedestrians, 7 were drivers, 7 were motorcyclists, 5 were passengers and 4 were cyclists. On a positive note, only 3 car accidents were attributable to drinking and driving.

The car accident fatality rate for Toronto is 2.26 deaths per 100,000 people, which is lower than Edmonton (3.30), Winnipeg (3.12), Ottawa (3.10), Calgary (2.86), Vancouver (2.85), Hamilton (2.62) and Montreal (1.76).

A large part of our practice is representing the families of loved ones that have been killed in car accidents while walking, jogging, running or cycling. More people have died on Canada’s roadways due to car accidents in the past 50 years than the number of Canadian soldiers killed in both world wars.

If a loved one has been died in a pedestrian or bicycle car accident, it is important that you contact a specialized lawyer immediately. The laws concerning pedestrian and cyclist fatalities due to car accidents and auto insurance are quite complex. For example, the Highway Traffic Act tells us the rules of the road and how to obey those rules, however, they do not mandate for or against pedestrians crossing at uncontrolled intersections. Also, when a pedestrian is hit by a car, the law imposes a reverse onus, meaning the driver must prove that he or she was not at all negligent – at all. Every motorist has a duty to be observant of the conditions surrounding them while operating their vehicle and this duty includes keeping a lookout for pedestrians. When the driver of a car ignores safety, there is negligence.

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 hit or killed in a 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 car accident lawyers can provide you the specialized representation you need to bring claims for pedestrian or cyclist fatalities due to car accidents. Please contact us for a free consultation.

To see an old post about car accident statistics in Toronto, please click HERE.

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Please contact our law firm for representation in car accidents.

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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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.

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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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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