Legal Blog
Notice to the Crown
Tuesday, January 29, 2008
The Provincial Crown has very strict provisions for its notice periods. These provisions have caused much frustration to lawyers acting for a client who is pursing a claim against the Crown.
The notice provisions are onerous for both the lawyer and the client. In many cases, after the loss occurs clients will not have access to a lawyer within the specified period. This happens often with people who have been incarcerated.
Below find the link to the act.
http://www.canlii.org/on/laws/sta/p-27/20071217/whole.html
Key Information Summary:
- In claims arising from a breach of duty respecting property, the CROWN must be given notice within 10 days of the act occurring.
- If the claim involved circumstance that do not relate to property, there are additional notice provisions found in section 7(1). The CROWN must be given 60 days NOTICE before a claim is ISSUED or the claim maybe deemed a nullity. - Note: it's 60 days before issuing a claim. If you fail to meet this notice provision, notice will be deemed from the date the Claim was served upon the Crown. This may result in missing a limitation period.
- Section 10 requires that such a notice be served on the CROWN CIVIL OFFICE. The crown civil law office is located at 720 Bay Street, 8th Floor Toronto Ontario M5G 2K1.
For additional reading on this subject see the article Jailhouse Torts published in The Litigator, October 2007 article.
If you are a client and think you might have a claim against the Ontario government do not wait contact a member of our team immediately to ensure you meet the notice periods.
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Fibromyalgia is a real disease
Monday, January 14, 2008
The New York Times reported today that the well known drug manufacturer Pfizer, has developed a drug called Lyrica to treat fibromyalgia. The medication was approved by the F.D.A in June 2007 and since then Eli Lily and Forest Laboratories have also made requests to the F.D.A. for approval as well.
Fibromyalgia affects millions in North America. Many have argued, the disease is serious and real. In fact, the article states, the American College of Rheumatology, the Food and Drug Administration and insurers recognize fibromyalgia as a diagnosable disease.
Personal injury lawyers have been arguing for years that fibromyalgia is no different from any disease.
Every year millions are affected by fibromyalgia causing them to take time off work and in many cases they have to either leave work or are terminated. In Ontario, many employers and insurance companies continue to disregard fibromyalgia as a real disease.
Advocacy groups in the U.S. are hoping that Lyrica will do for fibromyalgia what Prozac did for depression. For years depression faced a similar fight as critics argued it was made up. Today, depression is widely recognized as a real disease that can affect anyone.
The entrance of the pharmaceutical giants into the race to treat fibromyalgia is good evidence that society is finally starting to recognize it.
If you are suffering from fibromyalgia and have been terminated from your employment and or been denied access to long term disability insurance contact our office for a free quote.
Dangerous Products and the Duty of a Merchant
Friday, January 04, 2008
The case of Walford v. Jacuzzi Canada Ltd., 2007 ONCA 729 is an interesting Ontario Court of Appeal case that sends a very strong message.
Summary:
Parents buy a pool slide from a store. They ask the store owner if it's safe in a four foot pool. Merchant assures her it's ok and does not tell Mother that four feet is minimal requirements. Doesn't tell mother that potential for catastrophic injuries.
The daughter who was 15 years old went down the slide knees first, hit her chin on the bottom of the pool and broke her neck - becoming a quadriplegic. Her mother had warned her to go down feet first only. Trial judge found merchant not liable and girl 100% contributory negligent.
C.A. overturned decision and found:
The duty to warn of potentially dangerous products applies only to dangers that are not obvious.
However, where the nature and extent of the danger of using a product is not obvious and a consumer seeks reassurance from a merchant concerning the safety or propriety of a product, the answer must not be misleading.
Although the TRIAL judge was satisfied that the respondent met the standard of care when its employees told Mrs. Walford, in response to her questions, that it was "okay" or "no problem" to install a 10-foot long slide with a 4-foot-deep aboveground pool the Court of Appeal did not agree.
The respondent held itself out as having expertise regarding pools and pool accessories. Mrs. Walford trusted the respondent.
Applying the correct standard of care, the respondent, Pioneer Pools, was negligent and breached its duty by failing to warn Mrs. Walford when she sought advice from its employees of the hidden danger of catastrophic injury from erecting a slide on a 4-foot-deep aboveground pool.
Although Mrs. Walford gave her children many instructions and rules about using the pool, including to only slide down "on their bums" or "feet first", she did not tell them why that was important or the extent of the danger if they were to deviate from that position. Mrs. Walford did not tell them because she had not been warned herself and was consequently unaware of the nature or degree of risk she had created by installing a slide on her shallow pool. Nor could Correena have reasonably known that her behaviour was as reckless as it turned out to be, as she was accustomed to using slides installed on deeper pools that did not require her to slide down feet first to ensure safety.
Daughter was 20% contributory negligence. Damages were $5 Million dollars
Success at the Superior Court of Justice
Wednesday, January 02, 2008
Mr. Harv Lewin, senior counsel at Neinstein & Associates was successful at trial in the case of Vointsev v. Irina International.
Back in September 2007 this trial was adjourned due to procedural difficulties. We reported the adjournment on our Legal Blog.
The trial proceeded on December 3, 2007 and Mr. Lewin secured a more than favourable settlement for his client. The trial judge found the Defendant to be negligent and accepted the Plaintiffs' evidence with respect to his injuries.