Legal Blog
Huge award for loss of competitive advantage
Thursday, February 28, 2008
In the case of St.Prix-Alexander v. Home Depot of Canada Inc. Justice Manton awarded $400,000 for loss of competitive advantage. This is an extremely favourable sum for the Plaintiff. She was injured at a Home Depot in 1999 and sustained injuries.
Although, she subsequently did return to work in August 2000 at four days a week as Executive Assistant to Marcel Nouvet, an associate Deputy Minister who was the Chief of the Human Resources office at Treasury Board of Canada she eventually left in 2006 and started to receive long term disability benefits.
At the trial in 2007 she stated that she could no longer work because of the injuries she sustained.
Despite, the fact the trial judge stated, “I agree with the solicitor for the defence who said in his argument that it seems that at every opportunity, the plaintiff exaggerated her medical condition. I find that on several occasions, she was not entirely truthful in her answers” he still awarded her $400,000.
Even more interesting, when considering the income loss and loss of competitive advantage he stated:
It is clear that the Plaintiff was injured in the accident at Home Depot and that the injury sustained by her caused her a lot of inconvenience and suffering however, I do not believe that she will be unable to work in the future. Her doctor did not recommend that she cease working. It was a decision she made on her own and the doctors were faced with a “fait accompli” because she felt that she could not go back to work. She is now on long-term disability and receiving 70% of her salary but there was no evidence introduced at the trial to indicate the medical reason why she is on long-term disability. I have no doubt she has a loss of competitive advantage because of the injuries sustained by her and she will suffer economic loss because of the fact that she can no longer work 60 hours per week and her ability to compete for employment has been impaired. She can no longer accept jobs that demand a lot of concentration and as stressful as an Executive Assistant. She will therefore be less attractive to her employer than a comparable individual not impaired in any way. The fact that she is now unable to work at the Executive 1 or 2 levels in the Public Service is compensable in damages.
Therefore, even though he did not believe she would never be able to work again he did buy the loss of competitive advantage argument. This is an excellent ruling for Plaintiff counsel.
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Employers being sued for employee cellphone use
Friday, February 22, 2008
The National Post reported today that employers who provide company cellphones to their employees who end up getting into motor vehicle accidents can be held liable. The story can be found by clicking here.
Essentially, if the employee was on the job at the time, driving and using his or her company cellphone the employer could be held liable for personal injury damages. The Post reported that while there are no such cases in Canada there have been in the United States. Moreover, the Plaintiffs were successful. The American cases cited by the article resulted in extremely large settlements.
This is certainly a very interesting perspective regarding motor vehicle litigation. The trend in the United States could very well carry over into Canada. However, in Canada we won’t be getting the large settlements as in the United States. But at least this will allow a Plaintiff access to a new pocket that is often deep.
Employers who expect their employees to be on call all the time for the purposes of business owe a duty of care to an injured party when that employee is negligent.
Social Assistance and ODSP recipients
Wednesday, February 20, 2008
Accidents happen to everyone. However, if you were receiving social assistance or disability payments you must be aware of some important factors.
Generally, the government of Ontario has a right to "claw back" any money a person received from a legal settlement for a wrongful act. This can come into effect if you were receiving payments before or after the accident.
As a recipient you are obliged to notify the government about any possible monies you might receive from a legal settlement for a wrongful act. Typically, the government will require one to sign an assignment which basically gives the government the right to take their portion of monies paid to you from your settlement. Failure to execute the assignment can result in a suspension of payments to the recipients.
Thankfully, there are some exemptions that do apply with respect to what the government can't touch. In an award for damages from a wrongful act under the Ontario Disability Support Program, $100,000 can be exempt. In the case of an award for damages under the Ontario Works Act $25,000 can be exempt. Both exemptions apply to awards for damages that deal with pain and suffering only.
For more information with respect to the exemptions its best to talk to an Ontario personal injury lawyer.
At the law firm of Neinstein & Associates we have a dedicated and knowledgeable team of lawyers who have considerable expertise about legal settlements and the exemptions.
A great day for injured Albertans
Tuesday, February 19, 2008
A court in Alberta has found the general cap on minor pain and suffering damages being $4000 unconstitutional as it violates section 15(1) of the Canadian Charter of Rights and Freedom.
This is a very significant win for Plaintiff lawyers and their clients in Alberta. The $4000 cap has been the focus of much debate.
The government of course is appealing the decision. If the government is unsuccessful in their appeal Alberta will have to revamp their entire structure with respect to the damages cap.
For additional information click here.
Insurance Scam in Toronto
Tuesday, February 12, 2008
The Toronto Star reported yesterday, Car crashes staged for insurance scam Toronto Police have arrested 14 people related to $650,000 in accident claims. It has been alleged that wrecked vehicles were purchased, repaired and insured for far more than the vehicles were worth and then placed in staged accidents. In total, the Toronto Star reported that 7 accidents were staged.
Among some of the groups arrested and still under investigation are auto-dealers, auto-body shops and tow truck drivers. Some individuals made claims to the insurance company and were never even involved in the accident.
This is very unfortunate and the repercussions of fraudulent activities such as this hurt everyone not just the insurance company. This type of fraud has the potential to really injure people. As it did in March 2003 when an innocent women was killed in a staged accident. It can cause ambulance, fire and police services to become tied up and not attend to serious accidents which is particularly important during these icy, cold and snowy days. Finally, insurance fraud causes the insurance company to become even more vigilant in their investigation of a claim. The Insurance Bureau of Canada reports on its website that over 26% of personal injury claims contain some elements of fraud.
Hopefully, the insurance companies will not let the actions of a few bad apples ruin it for those who are actually involved and injured in motor vehicle accidents.
It is imperative that people are honest with their insurance companies when they first purchase insurance and that they are aware of what they are going to receive. Also, the insured should be forthright at all times in their dealings with the insurer. The last thing you want is to raise eyebrows that prompt unnecessary investigations that will only delay a claim.
For more information on insurance fraud refer to the paper entitled, Insurance Impact Statement-Personal Injury Fraud published by The Insurance Bureau of Canada. The Insurance Bureau of Canada has a very strong and effective lobby. An increase of insurance fraud schemes such as the one mentioned above have the potential to hurt all especially you!
No PJI for Loss of Competitive Advantage
Monday, February 11, 2008
The Court of Appeal in Cerilli v. The City of Ottawa accepted the Defendant/Appellants view on appeal that pre-judgment interest would not apply to loss of competitive advantage.
The C.A., made reference to section 128(4) of the Courts of Justice Act that deals with pecuniary losses that occur after the date of the Order. The court stated, "the award for loss of competitive advantage looked entirely to the future." As a result, the award of $19,500 was set aside.
It wasn’t my fault
Thursday, February 07, 2008
Traditionally, the common law has not been sympathetic to solicitors who miss a limitation period for starting a legal action. While the discoverability principle developed by the courts provides some relief it is largely discretionary and the law is still not crystal clear. Moreover, to proceed with a claim by relying on the discoverability principle has the potential to have dire consequences later.
Thankfully, the case of Joseph v. Paramount Canada’s Wonderland provides some additional assistance to Plaintiff's counsel.
In Joseph v. Paramount the Plaintiff was injured in an accident in September 2004. Within weeks, the Defendant was notified of the Plaintiff’s intention to advance a claim for damages. The Defendant obtained a written statement from the Plaintiff and was provided with medical documentation of the Plaintiff’s injures well within the limitation period. The Plaintiff’s solicitor was aware of the applicable two-year limitation period. He dictated a Statement of Claim and instructed his assistant to have it issued before the expiry of the limitation period. Due to the assistant’s inadvertence, the claim was not issued within the limitation period. It was issued in October 2006 and was formally served upon the Defendant in January 2007. The Defendant brought a motion to dismiss the action as statue barred.
The court held:
The motion was dismissed. The limitation period was not missed due to bad faith or negligence, and the Defendant would not be prejudiced if the action was permitted to go forward. The inadvertence of the solicitor’s assistant should not be visited on the Plaintiff.
This is a blockbuster ruling. The fundamental principle to take away is that the limitation was not missed due to bad faith. How many prudent solicitors in good standing would deliberately and willfully decide to miss a limitation period? Likely, none. In fact, it’s just the opposite. Most solicitors fret over missing a limitation, by diarizing it, tickling it and then getting their assistants to perform back up tickling to ensure everybody has a reminder not to miss the limitation.