Legal Blog
Limitation for when you can sue
Tuesday, October 30, 2007
If you have been injured in Ontario you have two years from the date of the incident to commence a legal proceeding. This right is given by way of Ontario law, specifically, the Limitation Act.
If the two years expire an individual loses his or her right to sue.
However, the law does allow for some concession. This concession has been referred to as the Discoverability rule. For example, if Bill is involved in a motor vehicle accident on January 1, 2007 his limitation to sue ends on January 1, 2009. However, if Bill discovers on February 1, 2009 that he has suffered an injury directly related to the accident the limitation would start from February 1, 2009 and expire two years later.
While Ontario courts do allow for the Discoverability rule to kick in it is always safe to preserve the limitation. As a result, it is very important you seek legal representation immediately if you have been involved in an accident.
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Recall of popular baby seat
Thursday, October 25, 2007
The popular new baby seat the Bumbo has been recalled in the US due to injuries including skull fractures.
If your infant has been injured as result of the Bumbo call the law firm of Neinstein and Associates for a free consultation.
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08046.html
http://www.msnbc.msn.com/id/21472055/?GT1=10450
No costs awarded against an FLA Claimant
Tuesday, October 23, 2007
Boyuk v. Loblaws Supermarkets Ltd. (2007), 85 O.R. (3d) 614, 155 A.C.W.S. (3d) 526 (S.C.J.). In unsuccessful personal injury action, no costs awarded against family members asserting derivative Family Law Act claims, as automatic exposure to costs for such claims would discourage them.
Mosquito Bite Causing An Inury Deemed An Accident
Friday, October 19, 2007
Greg Neinstein was successful at the Ontario Court of Appeal in helping to expand the definition of accident for the purposes of entitlement to disability benefits.
In 2002, Mr. Kolbuc, a 52 year old plasterer, was one of the first reported cases to have been bitten by a mosquito which carried the West Nile virus. The virus rendered him a paraplegic and as a consequence he would never work again.
Mr. Kolbuc had an insurance policy which would provide payment if he was injured as a result of an accident. Mr. Kolbuc assumed that being infected with the West Nile Virus would qualify him under the policy. The Insurance Company refused to pay, stating the illness was due to natural causes, despite the fact there was no exclusions written into policy.
Mr. Neinstein challenged the insurers interpretation of the policy and denial of coverage. In January 2006, the trial judge ruled against Mr. Kolbuc and found that a mosquito bite is not an accident but caused by natural causes.
Greg Neinstein and Chris Paliare appealed the trial judge?s decision.
In Kolbuc v. ACE INA Insurance 2007 ONCA 364, the Ontario Court of Appeal determined that Mr. Kolbuc's illness was a result of an accident and ruled he was entitled to the benefits under the policy.
The Appeal Court stated becoming a paraplegic was an unforeseen, unexpected event that was caused by an external source - a mosquito - and falls within the ordinary definition of an accident. The cause of the illness was an accidental event. The appeal Court also ruled that an accident can cause a disease.
The decision is significant in that it expands the definition and coverage available under Accidental Death and Dismemberment polices and ensures that if an Insurance company wants to exclude coverage, they better write it into the policy.
Motor Vehicle Accident Claims Fund
Friday, October 19, 2007
Have you been involved in an accident and were surprised to find the other driver did not have any insurance? Or, were you the passenger of a vehicle operated by someone you knew that was involved in a motor vehicle accident and only discovered at the scene of the collision that your friend did not have insurance?
You can still seek compensation form the government administered Motor Vehicle Accident Claims Fund.
Call or email the law firm of Neinstein & Associates for a free consultation.
Infant Medication Recall
Thursday, October 11, 2007
There has been a recall of the following infant medications in the US:
Concentrated Infants' TYLENOL Drops Plus Cold
Concentrated Infants' TYLENOL Drops Plus Cold & Cough
PEDIACARE Infant Drops Decongestant (PSE)
PEDIACARE Infant Drops Decongestant & Cough (PSE)
PEDIACARE Infant Dropper Decongestant (PE)
PEDIACARE Infant Dropper Long-Acting Cough
PEDIACARE Infant Dropper Decongestant & Cough (PE) products
Dimetapp Decongestant Plus Cough Infant Drops
Demetapp Decongestant Infant Drops
Little Colds Decongestant Plus Cough
Little Colds Multi-Symptom Cold Formula
Robitussin Infant Cough DM Drops
Triaminic Infant & Toddler Thin Strips Decongestant
Triaminic Infant & Toddler Thin Strips Decongestant Plus Cough.
Although, Health Canada has not issued any similar warning, we recommend that anybody who might have had any adverse side effects or illness stemming from the use of such medication to contact the law firm of Neinstein & Associates for a free consultation.
Legal Action Against the Police
Tuesday, October 09, 2007
The Supreme Court of Canada (SCC) is the highest court in the land. The SCC is faced with the daunting challenge of examining and deciding on some of the most complex legal issues that our country faces. The legal issues typically have profound consequences for all the parties involved and the standard set by the SCC is used by all in the legal profession.
Getting to the SCC is not easy. For the lawyers involved, regardless of whether they win or lose, the opportunity to appear at the SCC is a prestigious achievement. Of course, their clients probably just want some cash in their pocket.
As was the case of Hill v. Hamilton-Wentworth Regional Police Services Board (2007) issued last week by the SCC.
This case examined the issue of Plaintiffs being able to bring law suits against the police.
The SCC split 6-3 and allowed individuals to sue the police for improper investigation and or negligence. This Decision was the first time the SCC has actually described what remedies are available to Plaintiffs in a case against the police and the applicable legal tests.
Like always, the SCC Decision is long and complex. On the one hand the Decision is a breakthrough in allowing the tort of negligent investigation. On the other hand the Decision is unfortunate. At the end of the day Hill, the Plaintiff who had sued Hamilton-Wentworth Regional Police Services because he was wrongfully imprisoned for over 20 months got nothing and waited over 10 years for his day in court. By denying Hill any actually compensation, the SCC has set very high standards for when a Plaintiff can sue the police.
Chief Justice of the SCC described the events that led to the claim as an ?unfortunate series of events?.
It is likely that given the Decision of the SCC in Hill Plaintiffs will be reluctant to pursue legal action against the police.
Maximum on Pain and Suffering Damages
Tuesday, October 09, 2007
The Supreme Court of Canada, imposed a maximum amount one can be awarded for general damages.
These are damages for pain and suffering and loss of enjoyment of life.
http://www.canlii.org/en/ca/scc/doc/1978/1978canlii1/1978canlii1.html
Presently, with indexing, this maximum is approximately $318,284.00.
Success at the Court of Appeal
Friday, October 05, 2007
Mr. Greg Neinstein of Neinstein & Associates was recently successful at the Court of Appeal in increasing the amount of coverage available for his clients by one million dollars.
The case is available by clicking on the following link:
Why should a Defendant noted in default deserve notice?
Tuesday, October 02, 2007
Vointsev v. Irina International Tours Ltd.2007 O.J. No. 3626
Vointsev was injured on a tour bus in Toronto in July 2005. The Defendants, Irina were put on notice in September 2005 about the Plaintiffs intention to seek legal action. The Defendant insurer responded by way of correspondence indicating they were going to investigate the matter.
From there, a series of correspondence was exchanged between Plaintiffs counsel and the Defendants insurance company, Lombard. Eventually, the correspondent stopped for some unknown reason and Lombard never responded. Despite, Plaintiff counsels requests neither, Lombard or the Defendant, Irina International Tours ever responded.
The Plaintiff had no further option but to issue and serve a Statement of Claim in July 2006.
Again, neither Lombard or the Defendant Irina International Tours responded. Eventually, the Plaintiff after numerous indulgences noted the Defendant in default.
A trial was held on September 2007 and it was undefended. Justice Thorburn presided over the matter and refused to permit Plaintiffs counsel from filing any medical reports.
Justice Thorburn stated the Defendant was not served with a Notice of Intention indicating the medical reports would be relied on at trial.
Plaintiffs counsel objected and stated he did not have to serve the Notice of Intention since the Defendant was in default. At this point Justice Thorburn, requested authority to that effect.
Plaintiff counsel adjourned the trial returned a few days later and cited Rule 19.02(2)(3) of the Rules of Civil Procedure. This rule clearly sets out that when a Defendant is noted in default he or she is no longer entitled to notice of any steps in the action.
Justice Thorburn then stated, that Rule 19.02(2)(3) was in conflict with section 52 and 53 of the Evidence Act.
Plaintiffs counsel then, had the matter stood down for a few hours to search for additional information.
Plaintiff?s counsel returned and argued that in such situations the Rules of Civil Procedure should supplement the Act. Moreover, pursuant to 1.04 of the Rules of Civil Procedure, the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Justice Thorburn did not accept this view and ruled against the Plaintiff by not allowing the medical reports to be filed. The medical reports the Plaintiff was seeking to rely on were key pieces of evidence that document and support his claim for damages.
This is a very unfortunate ruling. In this case Plaintiffs counsel satisfied their due diligence and were still penalized for no other reason other than failing to notify a Defendant noted in default.
At the end of the day the trial judge did not construe the Rules in a just and expeditious and least expensive manner. In fact, exactly the opposite happened.
Now the injured Plaintiff is left again with no relief and still having to face legal obstacles.
Why does a Defendant who is noted in default deserve any notice? It was the Defendant?s intentional and conscience decision to not act. More importantly, those that drafted the Rules of Civil Procedure had considered this issue and for that reason make it absolutely clear that if you're noted in default you don?t deserve any further notice.
The obligation on a Plaintiff to continue to notify and serve a Defendant noted in default is onerous and quite frivolous.
The case of Vointsev v. Irina International Tours Ltd. was argued by Harv Lewin of Neinstein & Associates.
Extended Health Benefits Plans and Accident Benefits
Monday, October 01, 2007
Many people injured in automobile accidents are surprised to discover that their extended health benefit coverage is considered the primary payer. When you file an initial Application for Accident Benefits form you must disclose in Part 10 the name of the benefit carrier, the coverage type and your policy or certificate number.
In accordance with Section 60 of the Statutory Accident Benefits Schedule a party?s extended health benefit plan must be billed first when applying for a medical or rehabilitation benefit. After the specific coverage from this plan has been exhausted then Accident Benefits coverage will kick in.
The majority of people who have extended health benefits through their work or their spouse have coverage for dental services, medications and a per calendar year amount for such items as physiotherapy, massage therapy, chiropractic treatment etc. An example of the effect of this Section follows:
You have coverage through your workplace plan for $500.00 per year for physiotherapy services. You are involved in a motor vehicle accident and are recommended to start physiotherapy. The clinic you attend will have to submit invoices first to your extended health plan and when this is exhausted your Automobile Insurer will accept billing.
Many people find this system unfair as an extended health benefit plan is usually used on an as needed basis and the coverage disappears quickly after a traumatic event such as an automobile accident. This situation makes it impossible for someone who wants to use their coverage for regular maintenance to do so without paying out of pocket.