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?

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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    When Poor Road Conditions Cause Car Accidents: What You Can Do

    Poor road conditions, potholes and prevention

    Have you been in a car accident caused by poor road conditions?

    Poor road conditions cause up to 10% of car accidents.

    Pothole Dufferin St Toronto
    Pothole on Dufferin Street, Toronto, Ontario

    While 90% of car accidents are caused by driver error, the other 10% are caused by poor road conditions such as potholes, erosion, shoulder drop-offs, missing guardrails, lack of maintenance and bad design. These accidents can cause car damage, serious personal injury and even death. In situations where poor road conditions led to a car accident, who is responsible?

    In Ontario, responsibility for road conditions is shared between municipalities and the province. Municipalities are responsible for maintaining city streets. The Province of Ontario is responsible for maintaining provincial highways, such as the 400-series highways (401, 400, QEW, etc.) and smaller numbered highways (11, 35, 169, etc.). Provinces and municipalities are permitted to hire agencies and contractors to maintain roads and deal with poor road conditions. If your car was damaged or you suffered personal injury as a result of poor road conditions, it may be possible to bring a claim again the entities the city or province hired to complete the maintenance as well.

    If you were involved in a car accident caused by poor road conditions a number of elements will have to be proven in order for liability to be found:

    1. First, it will be essential to show that the poor road conditions actually caused damage to the car and/or personal injury. In doing so, any arguments that the driver’s poor driving or other condition (such as weather) caused the accident will have to be dispelled.
    2. Second, it must be shown that the municipality or province (or the agency they hired) had a duty to maintain the road in question and keep it safe.
    3. Third, you must demonstrate that the municipality, province and/or agency were negligent in preventing and/or dealing with poor road conditions and maintaining the road. In some situations, it may also be incumbent on the plaintiff to show that the municipality, province and/or agency had a duty to warn drivers of poor road conditions where they presented a danger to drivers.

    If you are considering suing a municipality, province or agency for damages for personal injury or damage to your vehicle due to poor road conditions, is very important to remember that there is a two year limitation period within which you must bring your claim. The two year limitation period generally starts on the day the car accident occurred. After this two-year period is up, you will not be permitted to make a personal injury claim.

    One way we can all make the roads safer for everyone is to report poor road conditions to the municipality or province, as the case may be. Most municipalities have a 311 number people can call to report poor road conditions such as potholes, missing guard rails and road erosion. When calling about a pothole, be prepared to give the exact location of the pothole and a description of it. You can also report potholes to your local CAA branch or online at their website.

    If you or a loved one has suffered personal injury or damage to a vehicle in a car accident where poor road conditions are a factor, please contact our Oakville personal injury law firm for more information about personal injury sustained due to poor road conditions.

     If you’re curious, here are the Top 10 Worst Roads in Ontario (2014), according to a CAA poll:

    1. Dufferin Street (Toronto)
    2. Stanley Avenue (Niagara Falls)
    3. Kipling Avenue (Toronto)
    4. Finch Avenue West (Toronto)
    5. Burlington Street East (Hamilton)
    6. Bayview Avenue (Toronto)
    7. Carling Avenue (Ottawa)
    8. Markham Road (Toronto)
    9. Lawrence Avenue East (Toronto)
    10. Wilson Avenue (Toronto)

    Source: CAA


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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:

      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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          Halloween horrors-slip and falls and accidents that lead to frightening injuries

          Halloween accidents causing injury

          On Halloween, children and adults alike will be wandering about in frightening costumes looking to receive delicious treats and provide a few “scares”. You may expect to jump from an actor causing horror and to see lots of fake blood, but it is important to ensure that you stick to the fake stuff and not have to worry about real injuries and real blood that may occur from a slip and fall or other accident.

          A slip and fall can happen at any time or any place and injuries can be quite futile, but also extremely dangerous. Nobody wants to see a true Halloween horror occur, but it is important to understand what may happen if you slip and fall as you are roaming around to different neighbors’ houses collecting goodies. It is not only your neighbor, as an occupier of the property, that has responsibility (a duty of care) to reasonably ensure people on their property are kept safe from a slip and fall, but you the patron, visitor, pedestrian or even the trick-or-treater, have a responsibility to be careful too.  If you are injured in a slip and fall, you must prove that there was a dangerous condition and that dangerous condition caused you to slip and fall. You must also prove that the owner was aware of this dangerous condition and had the chance to reasonably fix the danger. Dangerous conditions can be many of a thing, but some include an uneven sidewalk, ice on the walkway that has not been attempted to be remedied or a dangerous object lying on the ground.

          Jack O LanternAnother Halloween horror, that has been an increasing problem, is the danger of haunted hay ride accidents. Whether a horse is spooked, or you are spooked and fall off the hayride, they can be a dangerous activity. Only a couple of weeks ago, 5 teenagers were injured in a hay ride accident in Alabama. There is always a risk of an accident when partaking in these types of rides; however, if there has been negligence on the part of the hay ride owners or drivers, as to the trail they use and the manner in which the ride is operated, there could be a case to be made. Currently, in Michigan, a lady who was operating the hay ride tractor had an accident, fell and became paralyzed. She has begun a law suit for compensation for her injuries from the accident. According to CBS Detroit, the claim may include that the trail the hay ride took was down a dangerous and steep hill with uneven grounds which caused the accident. If this case does not go through workers compensation, this is one of the factors that the Plaintiff will argue was an act of negligence on behalf of the Defendant.

          A final Halloween horror can happen as you are being terrified at a Haunted house. In the case of Deborah Mays v. Gretna Athletic Boosters Inc., the Plaintiff went to a haunted house for a fright, but ended up with an injury: a broken and bleeding nose. The Plaintiff got so spooked that she ran directly into a cinder block wall. In this case, the Defendant was not responsible for the Plaintiff’s injury. The haunted house was not unreasonably dangerous, nor was the Defendant’s actions unreasonable, since the Plaintiff presumably went to the haunted house for a good scare, which is what she got.

          Whether you are trick-or-treating on your neighbors’ properties, or taking part in Halloween adventures that cause you to have a slip and fall or other accident, it is important for you to take the proper precautions to ensure your own safety. However, if someone else has not taken the proper and reasonable precautions to ensure your safety and a slip and fall or accident occurs, you may have questions about what your legal options are. If you or a loved one has sustained personal injury from a slip and fall or another accident, do not hesitate to contact our personal injury law firm about your legal rights. Have a safe and happy Halloween!


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            Distracted Driving Accident taken to New Heights

            Texting while Driving interferes with driver multitasking

            The statistics on distracted driving car accidents throughout North America are quite horrendous.  In the United States it’s estimated that approximately 5,400 people lost their lives in distracted driving car accidents in 2009. It’s further estimated that nearly half a million others suffered injuries in car accidents involving distracted driving.   In a recently released statement by the Insurance Bureau of Canada (IBC) we learned that we are 23 times more likely to be involved in a car accident if we text while driving and four times more likely if we talk on a cellphone (hand-held or hands-free) while driving. The IBC also told us that distracted drivers experience the same level of impairment as someone man driving and using cell phonewith a blood-alcohol content of .08 and that distracted driving is estimated to be a contributing factor in eight out of 10 police-reported car accidents. Distracted driving could be described as any type of activity that takes your attention away as a driver which takes away from the responsibility of controlling your car – thereby causing a car accident.  Distracted driving can be caused by a hand held devices such as a cell phone, smart phone or iPod but also caused by hand held GPS’, eating or drinking, watching a video, reading a map on your iPhone or even something as simple as putting on makeup.

            In 2011 texting and driving was taken to new heights.  A recent NTSB investigation showed that a pilot that was flying a medic helicopter in Missouri was highly distracted from texting.  The NTSB documented 240 text messages sent and received by the pilot during his day shift leading up to the accident.   Right before the accident there was 20 recorded texts.  The distraction from texting prevented the pilot from taking off without enough fuel and without knowing he did not have enough fuel reserves.  The pilot also failed to properly perform a manoeuvre that could have possibly allowed a soft landing after the engine quit but he was not sufficiently trained to do so.  The NTSB found that the pilot had missed three opportunities or checks to discover that he did not have enough fuel and that he could have possibly made an emergency landing minutes before the crash.  The NTSB was unsure if he was texting during the flight or texting during the moments before the crash.  This unfortunate accident killed a patient that was being transported from one hospital to another as well as a paramedic and flight nurse.  This was the first time the NTSB had recorded a Smartphone device causing or contributing to a fatal commercial accident.

            Distracted Driving Accidents

            This is an extreme example of distracted driving although quite seminal for the fact that it  was the first recorded air crash which was caused or contributed to by being distracted by texting.  Texting was thought to have interfered with the pilot’s multitasking requirements to ensure flight safety.  Quite similarly distracted driving has become a major threat on Ontario’s roadways and a main contributor of car accidents.  Driving also requires multitasking and those who use hand-free devices, speech-to-text technology, texting while driving or emailing requires a technological “tunnel vision” level of concentration that prevents drivers from taking in the visual information of their surroundings.  Being distracted while driving with a Smartphone or any hand held device causes a fundamental constraint that limits ones ability to drive and cause deadly car accidents.  Unfortunately people are still disobeying the law in droves and car accidents keep happening.

            If you have been the victim injured in a car accident caused by a distracted driver you have legal rights.  Please contact our Oakville car accident law firm for more information.

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              High tech fishing expedition?

              Insurance Companies & Plaintiff Facebook Photos – an Argument that Never Ends.

              Car accident victims often face an uphill battle when seeking compensation for their injuries. As specialists representing car accident victims we try our best to place our clients injuries within a realistic range of compensation – and then advocate to get our clients into the higher end of the range. Contrarily, insurance companies advocate that the particular car accident victim’s injuries should be assessed in a lower range of compensation. Insurers often advocate that a plaintiff’s injuries may not seem as serious as the victim explains and that the victim does not suffer from a substantial  loss of enjoyment of life. One of the ways insurers do this is to try to often access (by direct access or by undertaking) a plaintiff’s Facebook profile or Facebook photos.

              dislike facebook stampIn the recent case of Garacci vs. Ross the insurance company sought production of approximately 1100 photos located on the private portion of a car accident victim’s facebook profile. The plaintiff, Christina, was hit by a car while walking in January 2008. As a result she claimed compensation for serious injuries she sustained her left leg and ankle including a fracture to the ankle.

              During her discovery (which is a questioning period under oath – but not in court) the car accident victim told the insurer for the driver that the accident had prevented her from enjoying her life and activities that she previously did before she was hurt. For example, after the accident she was unable to pursue activities such as soccer, waterskiing, competitive dancing and snowboarding. Her recreational and social life was affected. With this, she did not claim that she was totally disabled and did say that she went swimming at her cottage, she went to the gym, she traveled to Mexico and attended concerts.

              The insurance company requested photographs that they believe were relevant to the issue of Christina’s loss of enjoyment of life. They argued to the judge that there was about 12 photos of Christina found on her public Facebook profile which showed her socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and wrestling a friend to the ground. It was argued that if these pictures were available to the public that there must be other similar photographs depicting Christina doing some of these activities and the other 1100 pictures.

              The judge found that the public photographs really didn’t show the car accident victim engaging in any kind of significant physical activity. The judge said that for the most part, Christina appeared to be simply socializing with friends and having a good time. The photos were consistent with her evidence. The judge degree with the insurance company that there may be some relevance to any of Christina’s private photographs that she engaged in significant physical activity, especially of the nature she says she is unable to enjoy. However, the judge also noted that Christina’s law firm reviewed all 1100 photos and there was nothing showing any type of physical activity. In addition, the judge reviewed approximately 10% of the 1100 photographs sought by the insurance company and he also confirmed that none of those photographs depicted Christina engaging in any significant physical activity.  The judge noted that some photos showed Christina socializing with friends, sitting in chairs, fishing, pumping gas, having a beer at a party and other low impact activities. Most of the photos are from the waist up.

              It was found by the court that the request by the insurance company amounted to nothing more than a “high tech fishing expedition” and that in his view they simply wanted to rummage through 1100 personal photos to see if something turned up. This was not an appropriate or proportional form of discovery.


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                Car Accident Victim nets 140K in compensation.

                Nurse nets 140k in damages for car accident related injuries

                Ms. Guzman was a licensed practical nurse when she was involved in a car accident on April 26, 2011. She was t-boned by a driver that ran a red light. She was alone in her car and wearing her seatbelt at the time of her car accident. She was taken by the ambulance to the hospital and released a few hours later.  car accident emergency crewMs. Guzman testified at her trial that she suffered injuries to her neck, left upper shoulder, left elbow, right forearm, and both of her lower legs in the car accident. What was primarily in dispute was the accuracy ever complained of ongoing pain and discomfort and the extent to which the injuries have affected her ability to work.

                At the time of the accident Ms. Guzman was 53 years old, single ended not have any dependents. She lived with her younger sister who is employed as a care worker. She enjoyed cooking, working, socializing with friends and various other social activities. She described that the car accident has had interfered with her work and personal life. She was off work after the car accident for approximately 10 months. She then returned on a gradual return to work program and resume full-time employment. She testified that although she return to full-time work she found that the work was much more difficult than it was prior to her car accident. She no longer had the energy to do many of the things she used to do both at and away from work. She attended rehabilitation therapy for several years until she reached the plateau. She remained anxious about driving and being involved in other car accidents.

                Various of friends, coworkers and doctors testified in this case. Most testified that Ms. Guzman no longer display the same energy and enthusiasm for work and happiness for life as she did prior to the car accident.

                Various doctors testified that there was a risk that Ms. Guzman would not be a will to continue in her capacity as a nurse for the balance of her work life. Some physicians agreed that it was too early to say definitely as the remained a chance of further improvement.

                Recommendations were made that included ongoing physiotherapy, massage therapy, and acupuncture. Psychological counseling was also recommended.

                Car Accident Injury Award

                The court explained the purpose of non-pecuniary general damages in it’s decision. These damages are intended to compensate the plaintiff’s pain, suffering, and loss of enjoyment of life as a result of the car accident. The award, as the court explained, was to compensate the plaintiff for the damages they suffered up to the date of trial and for the damages will suffer into the future. There are factors to be considered when awarding non-pecuniary general damages such as (no-nexhaustively) the age of the plaintiff, the nature of the injury, severity and duration of the pain, the degree of disability, the impairment family, marital, and social relationships and loss of lifestyle. It is also influenced by the individual plaintiff’s personal experiences in dealing with injuries and their consequence. The judge in this case found that a fair and reasonable award of compensation for pain and suffering in this car accident case was $50,000.

                The court also explored a past economic loss. Past economic loss is to compensate the plaintiff for what he or she actually lost as a result of the car accident. In this case, Ms.Guzman had to use time from her sick bank. The judge found that to only compensate her for the net amount of her sick bank time would result in deductions being taken from her twice – now and then later when she used them in the future. This is because when she does use replenish sick bank time, she will have income tax and other deductions taken from her by her employer and would only receive the net income amount. The judge awarded past wage loss in the amount of nearly $46,000.

                The court also considered future wage loss and the loss of future earning capacity. A claim for future loss of earning capacity, as the court explained, raised two key questions. Number one, whether or not the  plaintiff’s earning capacity had been impaired by his or her injuries caused in the car accident and number two, what compensation should be awarded for the financial harm that will accrue over time as a result. The essential task of the court is to compare the likelihood that the plaintiff’s future working life (that she would have had, had the accident not occurred) to the working life and losses that she may reasonably sustain as a result of the car accident. This is a matter of judgment based on the evidence and is not a pure mathematical calculation. The court noted that the appropriate means of assessment will vary from case to case.  The judge found that the plaintiff had proven on a real and substantial possibility basis that her income capacity was impaired by the car accident and awarded her $20,000 in past losses.

                The court also explored a claim for future care costs as a result of the car accident. Future care is compensation for the cost of care that somebody would incur in the future as a result of their car accident injuries. The court found that a fair and reasonable award for future care for rehabilitation as well as some counseling was $16,000.

                The court also looked at special damages. In this case these were mainly out-of-pocket expenses. The court awarded $6500 to reimburse her for physiotherapy and massage paid out-of-pocket. In total, this car accident victim was awarded $130,000.

                If you have been in a car accident you have rights. Unfortunately our Ontario car accident laws place strict timelines on various applications and processes that an injured victim can make. Please talk to one of our lawyers and learn what your rights of recovery may be if you or a loved one has been seriously injured in a car accident. We specialize in complex and critical personal injury law and would be pleased to explain your rights to you at no obligation.

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                  I am injured and I keep hearing the term “general damages.” What the heck is this?

                  Pain and Suffering Compensation Simply Defined by Oakville Lawyers

                  Heard your lawyer throw around this term? Read it online? General Damages sounds pretty boring – or general but it’s actually the money paid to you as compensation. Damages by definition is essentially the same as compensation. A leading legal dictionary defines “damages” as “every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called “damages.”

                  Non-pecuniary simply means an imprecise assessment of how much money is appropriate to compensate. Unlike your loss of income that can be calculated to the lost dollar, or your out-of-pocket expenses – that can be calculated precisely,non-pecuniary general damages cannot.

                  Non-pecuniary damages are essentially intended to compensate you for your pain, suffering and loss of enjoyment of life and of amenities experienced as a result of the defendant’s negligence.  They are meant to compensate for such damages suffered to the date of trial and those that you will suffer into the future.

                  How are these General Damages calculated?

                  injured man on coastIn calculating general damages our courts have told us that an award should be fair and reasonable for both parties as those concepts are measured against the adverse impact of the particular injuries on the particular plaintiff: Hunt v. Ugre.  While fairness is assessed by reference to awards made in comparable cases, because each case is decided on its own unique facts and calls for an individualized assessment, it is neither possible nor desirable to develop a “tariff”.  The process is one of assessment and is not amenable to mathematical precision.

                  The Judge in the case of  Stapley v. Hejslet set out a non-exhaustive list of factors to be considered in awarding damages under this head.

                  They include: the plaintiff’s age; the nature of the injury; the severity and duration of the pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff’s stoicism.

                  For more questions please do not hesitate to contact us.

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                    What happens if you or a loved one is injured and can’t work?

                    The family breadwinner is injured and cannot work because of injuries caused in accident– what happens?

                    frustrated and sad female
                    Injuries and Job Loss – Oakville Lawyers can help.

                    An accident happens – be it a slip and fall, a car accident, a motorcycle accident or whatever kind of accident – and the breadwinner of the family is critically injured and cannot work. Cash flow stops coming in every two weeks.  Money tightens.  There is a family to support.  There are kids to feed, car leases and a mortgage to pay.  What do you do?

                    This is the first question that we are often asked by family members of injured victims. Loss of income is a grave concern. We are bread to work, to contribute to society, to make money and to support ourselves and our family. When the cycle is stopped – anxiety often sets into the surviving or non-injured family members.

                    The first and most important thing to do is to obviously turn to any disability policies that may be available. Contact your loved one’s HR department and get the appropriate forms filled out and submitted as soon as possible. Second – look for any top ups, such as income replacement benefits or a private disability policy that stacks.  If you or your loved one is injured in a car accident then he/she has the right to loss of income through your own insurer regardless of fault (There are some criteria such as your loved one must be at least 16 years old, was self-employed or employed at the time of the accident and must suffer a substantial inability to perform the essential tasks of that employment, was employed for at least 26 weeks during the 52 weeks before the accident –  you can read more here)  The amount you can receive is normally 70% of you or your loved one’s gross weekly income, up to $400.00 unless optional benefits were purchased.

                    How is loss of income dealt with during your lawsuit against an at-fault driver?

                    Your or your loved one’s inability to work and make money is normally addressed within a section or head of “damages”  called pecuniary losses.  Pecuniary means relating to, or consisting of money  and pecuniary damages are losses which can be quantified in monetary terms. Our Supreme Court of Canada said this:

                     But where pecuniary damages are at issue, it is the actual pecuniary loss sustained by the plaintiff which governs the amount of the award. (Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 962-963).

                    When we represent an injured victim, how do we recover income loss, or wage loss for that injured person and their family?

                    There are two things we start with – one is called pre-trial or past income loss and the other is called future income loss.  The trial or settlement date is the divider between your past and future income loss. Future losses need not correspond with pre-trial losses. The two heads of damages measure different kinds of loss and are based on different considerations. The assessment of future loss of earning capacity relies on predictions of the future which might or might not bear any relation to those disabilities that led to past loss of earnings.   This was explained in the case  of Cipriano v. Cipriano (1996), 22 B.C.L.R. (3d) 148 when a plaintiff’s fibromyalgia did not causing any pre-trial loss of wages but threatened a plaintiff’s future ability to work.

                    Future Income Loss because of injures – how is it figured out?

                    Depending on the jurisdiction future income loss can be further subdivided or sub-categorized  into claims for  “loss of competitive advantage”, “future diminution of income”, “future income loss”, “loss of earning capacity” “loss of economic opportunity” (you can be entitled to damages for a related loss of opportunity, such as a delay in graduating from university) or “loss of earnings”. All of theses describe ways in which to calculate the amount needed to restore the injured party to his or her position had the injuries not occurred.

                    Sometimes claims for loss of competitive advantage may be in addition, may include or be made instead of a loss of future income claim.For example, in the case of Branch v. Martini, [1998] O.J. No. 2474 (G.D.) (QL)  a plaintiff truck driver/labourer was awarded $65,000 for loss of competitive advantage for having to accept less physically demanding employment in the future and was now more marginalized than before the accident. In the case of Bezusko v. Waterfall, [1997], O.J. No. 4693 (G.D.)(QL) a business owner plaintiff was separately awarded loss of competitive advantage for his loss of ability to create value carrying out construction work of its business or improve assets to its property.

                    What are some basic rules in formulating a claim for you or your loved one’s future income loss?

                    The first is understanding what you need to prove in a lawsuit. In a criminal case a prosecutor to establish a case beyond a reasonable doubt. In a civil case or a lawsuit you need to prove your case on a balance of probabilities i.e. “more likely than not.” But there are exceptions to this in certain circumstances.  When proving income loss one only needs to prove that there is a reasonable, as distinct from speculative, possibility of such a loss. Even if no basis has been presented for computing loss of future earning capacity, an award must be calculated which is considered fair and reasonable to an injured party. 

                    When estimating income following an injury we must look at things such as the post-injury career path of the person, the selection of the appropriate earning data to “forecast” a post-injury career path, the assessment of appropriate positive and negative labour market contingencies (i.e. the  likelihood of promotion, obtaining more remunerative work, unemployment, illness, early retirement and on-the-job accidents) the retirement age and the impact of the injury on earnings and labour force statistics.  It is also important to know that in proving the loss you are not required to cover every possible occupation that might be available: you need only present occupations for which you are reasonably suited by background, age and experience and for which you might reasonably be retrained.

                    Once these factors are taken into an account a proper loss of income claim can be formulated to support your claim.

                    What about specific or special income loss situations?

                    Each case is obviously different and there is an enormous body of law that deals with many different specific situations. For example an injured plaintiff is entitled to damages for loss of earning capacity whether that capacity involves wages or unconventional earnings – such as doing the work of a bartender or exotic dancer.

                    What about an injured child? The process of quantifying a child’s lost earning capacity is quite speculative. Statistical evidence of an adult’s average earnings( like a parent) may be used to assess a child’s lost earning capacity. The court may infer from the plaintiff child’s  family background what level of education he or she would have attained apart from the injury. If a plaintiff is a bit older, such as a teenager or student, then he or she must must establish a reasonable possibility of pursuing a particular career path if damages are to be assessed on that basis. Where the court considers that such evidence is not sufficient, only nominal damages will be awarded. One can’t create a fictional or unattainable opportunity in an effort to build a claim.

                    As you can see there are many variables in assessing how to replace an injured one’s lost income. If you or a loved one has been injured then you should consult an Oakville lawyer to discuss your particular situation.

                    We are injury and employment lawyers in Oakville Ontario and services from Toronto to the Niagara areas.

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