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Toronto Personal Injury Blog

Injury at Private Motocross Competition an "Accident": LAT

motor-accident.jpgThe Licence Appeal Tribunal has determined that an injury at a privately-organized motocross competition is an "accident" and that the injured party is, therefore, entitled to accident benefits from his insurer.

In the Reconsideration Decision Michael Beaudin v. Travelers insurance Company of Canada [17-006174/AABS], Associate Chair Jonathan Batty agreed with Michael Beaudin, who was rendered with paraplegia as a result of an injury at a motocross event, that the adjudicator of the original decision had erred in the interpretation of the relevant statues and regulations. Mr. Beaudin was represented by Peter Cho, assisted by Chris Jackson, of Smitiuch Injury Law.

Car Accidents and Insurance

Summer road trips can be fun, exciting, and create amazing memories for family and friends. However, getting into a car accident on a vacation can ruin those memories for everyone involved. Some injuries, like bumps and scraps, can be treated with minimal damage to your physical health. More severe injuries, such a concussions or spinal cord injuries and broken bones, can be more devastating to a person, as well as his or her support network.

If you have been involved in a car accident, it’s important to know what compensation you may be owed from your auto insurance provider.

Dog Bites: Who Is Responsible?

A recent article published by CBC.ca describes a family in Winnipeg whose five-year-old daughter was attacked by two dogs belonging to a neighbour. While that situation is governed by the laws of Manitoba, it illustrates that a dog bite can occur in even the simplest of circumstances.

In Ontario, the Dog Owners' Liability Act says that the liability of any dog bites rests on the owners of the dog. However, what this means exactly, and how it may apply to your situation can be better described by a legal professional.

MIG is Unconstitutional: FSCO

A recent arbitration decision by the Financial Services Commission of Ontario (FSCO) has ruled that the Minor Injury Guidelines within the Statutory Accident Benefits Schedule (SABS) are unconstitutional. In the decision, Abyan and Sovereign General [FSCO A16-002657], Arbitrator Benjamin Drory was asked to consider whether Sections 3 and 18 of the SABS unjustifiably infringe upon Sections 7 and/or 15 of the Canadian Charter of Rights and Freedoms. Arbitrator Drory noted that the Applicant has to first demonstrate that a Charter right has been infringed, and then it is up to the government to justify the infringement under Section 1 of the Charter. It was noted that it was unfortunate that no one from the government attended the hearing. In this particular case the Applicant suffered from chronic pain. The insurer, Sovereign General, had taken the position that, since the chronic pain was an "associated sequelae" from a minor injury, the MIG applied and the insured was, therefore, limited to a maximum of $3,500.00 in medical and rehabilitation benefits. The arbitrator decided that Section 7 of the Charter was not violated by the MIG, as it does not threaten his security of person, without accordance to the principles of fundamental justice. With respect to Section 15 of the Charter, Arbitrator Drory stated the following:

Federal government explores lowering the legal limit to 0.05%

As most Canadians know, the legal blood-alcohol content (BAC) limit for drivers is 80 milligrams of alcohol for every 100 millilitres of blood, or 0.08%. However, as the Toronto Star reports, that may change in the not-so-distant future as the federal government explores whether to lower the legal limit to 50 milligrams per 100 millilitres (or 0.05% BAC). While the proposal has caused some controversy, its supporters say that recent research has revealed that driving with a BAC of 0.05% can double the risk of a car accident and that other countries, including Ireland and Germany, have successfully lowered their legal limits to 0.05% and have seen a resultant dip in fatal accidents.

The New Dispute System for Accident Benefits Claims: You Lose Before You Even Begin

It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner's costs, which can include legal fees and disbursements. This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid. They are not hindered in advancing a claim because they cannot afford to do so. On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules. One of the most concerning is Rule 19, which deals with costs.  A recent LAT decision with respect to this rule deemed that costs can only be claimed if a party has acted unreasonably, frivolously, vexatiously or in bad faith within the dispute resolution process.  In other words, as long as both parties have acted well within the dispute resolution process, costs will not be awarded, no matter how egregious an insurer might have been in denying benefits. In our view, this is totally unjust and unfair. At Smitiuch Injury Law we fully intend on appealing any adverse decisions on costs and will raise the access to justice principle in order to declare the current Rule 19 void.

Neuropsychological Assessments and the $2,000 AB Cap

In September of 2010, the Statutory Accident Benefits Schedule (SABS) were amended with respect to Costs of Examinations.  A cap of $2,000.00 was placed on each assessment completed, either for the insured or the insurer. This cap has proven difficult for some more complex assessments, including neuropsychological assessments.  In order to obtain a reliable assessment the cost is well beyond $2,000.00. Many in the accident benefits community (plaintiff lawyers acting on behalf of injured victims, as well as insurers) have been getting around this cap by dividing up the assessment into two distinct assessments; normally a "psychological" assessment and a "neuropsychological" assessment.  For the most part this has been widely accepted as a way to comply with the statutory limit while getting a fairly reliable assessment report.  There have been a few insurers who have not agreed with this approach. A recent FSCO arbitration decision, Breadner and Co-operators [FSCO A15-005120] has challenged this approach. A Treatment and Assessment Plan (OCF-18) was submitted on behalf of Ms. Breadner with the following breakdown of costs:

The New Dispute System for Accident Benefits Claims: You Lose Before You Even Begin

On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules on the dispute resolution process. One of the most concerning is Rule 19, which deals with costs. It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner's costs, which can include legal fees and disbursements (things that have been paid to third parties to advance the matter). This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid.

Chiocchio v. City of Hamilton et al.

On December 7, 2016, the Honourable Mr. Justice Skarica released his Reasons for Judgment after a trial before him in Hamilton. This action arose from a tragic motor vehicle accident which resulted in the Plaintiff (our client) being rendered a quadriplegic. The losses and damages suffered by the Plaintiff were considerable. The trial proceeded before Justice Skarica on the issue of liability only. While one of the Defendants admitted some fault for the accident, the main issue was whether the City of Hamilton was liable also. The evidence during the trial established that the intersection in question had a history of accidents and that the City failed to paint the stop line at the intersection despite the recommendation to do so. The visibility at the intersection also became poor the further back that a motorist stopped. In the end, Justice Skarica found the City of Hamilton liable and apportioned fault at 50% against the City and 50% against the Defendant driver. In finding liability against the City, Justice Skarica concluded as follows: "In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair." Click here to read the full Judgment on CanLII. (Chiocchio v Ellis, 2016 ONSC 7570 (CanLII)) Peter Cho and Michael Smitiuch were trial counsel for the Plaintiffs.

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