Any individual may also start a court proceeding under Part IX of the Provincial Offenses Act (POA).  In these proceedings, an individual may seek a Court order related to a dog.  This order can provide for the destruction of a dog or require that the dog’s owner take certain measures in relation to the dog such as requiring that the do be muzzled or leashed. 

Also, it is important to note the legislation applicable to pit bulls.  Bill 132 was passed as the Public Safety Related to Dogs Statute Law Amendment Act (2005).  The legislation bans pit bulls in Ontario, places restrictions on existing pit bulls and toughens the penalties for owners of any dog that poses a danger to the public. 

Dog Owners’ Liability Act: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90d16_e.htm

Public Safety Related to Dogs Statute Law Amendment Act: http://www.e-laws.gov.on.ca/html/source/statutes/english/2005/elaws_src_s05002_e.htm

For the past seven years, the Brain Injury Society of Toronto (BIST) and the Ontario Brain Injury Association (OBIA) have co-hosted a special gathering to celebrate the members who work together for a very important and relevant cause: to support those in the community who are living with the effects of acquired brain injury (ABI), along with their families, friends and caregivers, through advocacy, education, and support.

Revenue generated from this event will support programs and services offered by OBIA and BIST including:

• Special seminars and workshops that support brain injury survivors and their families
• Community meetings and social events
• Caregiver support and mentorship programs

This year’s Mix & Mingle event will be held at the Steam Whistle Brewery in downtown Toronto from 5:00 pm – 8:00 pm on June 14, 2012. Tickets are already over 70% sold and can be purchased by phone (800-263-5404) or by email twilcox@obia.on.ca. Purchase before May 15st to get the early bird price of $90.00!

In the recent decision, Anderson v. 45859 Ontario Ltd.(2010) ONSC 6585, the court ordered preservation of a Facebook profile. In that case, Dana Anderson was kicked by a horse and sustained serious injuries to her face and head. As a teacher, Dana was insured under a group disability policy of insurance for long term disability benefits. Following her Examination for Discovery, the Defendant brought a motion to preserve and produce all documents contained on her Facebook site. The court ordered that all parts of her Facebook profile wall and postings, whether public or private, shall be preserved. Any portions of her profile and postings relevant to the litigation were also ordered to be produced.

In Frangione v. Vandongen (2010) ONSC 2823, Antonio Frangione was involved in two motor vehicle accidents between April 4, 2002 and August 11, 2003. He suffered a number of injuries including a traumatic brain injury, neck and back pain. Antonio gave evidence that he could spend no longer than 15 minutes at a time sitting on his computer. The Defendant brought a motion to access Antonio’s entire computer hard drive, including his Facebook site. The court found that information contained on Antonio’s computer, including information that could be contained on his Facebook, were relevant to assess Antonio’s damages.

Antonio’s lawyers argued that given the abundance of medical evidence, the computer and Facebook documents were unnecessary and irrelevant. The court found:

“[It would be unjust] to exclude a body of evidence such as computer documents including photographs and communications such as are typically found on a person’s Facebook site merely because there is another more credible body of evidence, such as medical reports”.

In this case, Antonio’s right to privacy was outweighed by the Defendant’s request for Facebook evidence.

At Neinstein and Associates LLP, we are often asked, “what if I limit my facebook profile and implement high security settings?” Unfortunately, potential plaintiffs should be aware that a court can infer the existence of relevant documents on a limited-access Facebook profile. Production and preservation may still be ordered on a limited profile.

Should you have any questions about your case please feel free to call our office for more information.

The Toronto Police Traffic Services reports that from November 2011 through February 2012 there were almost 5000 less motor vehicle collisions than the same period one year before. York region data shows a 21% decrease.

Various collision and auto repair centers in the Greater Toronto Area report similar numbers in decreased business. The writer’s source, Jorge Esteves, of Dupont Auto Collision reports that his body shop has lost 30% in revenue this winter.

Less potholes results in less vehicles suffering damage to tires, wheels, and suspensions. Insurance claims are reduced.

Legislation banning drivers from talking or texting while driving further reduces accidents, and insurance claims.

No snow and ice, has resulted in somewhere between 23% and 30% less collisions, property damage claims, and personal injury claims, both motor vehicle and slip and fall.

All of the above consequences of this year’s mild winter conditions, benefit the insurance industry… the same pillar of corporate America, which has seen fit to increase insurance premiums annually, and reduce benefits regularly, since the Ontario motorists protection plan came into force in the province of Ontario in 1990. What will they do now?

Assuming that the insurance companies have saved between 20% and 30% in their recent Toronto area experience, will they continue to lobby our government for reduction of benefits, increase in thresholds, deductibles, and premiums? Or, on the other hand, will they do the right thing and divert their windfall profit back to our personal injury clients by way of increased treatment, allowing more treatment plans, paying more benefits, and actually helping injured victims on the road to recovery?

Statistics obtained from:
1) Toronto Star fifth of March 2012
2) Toronto Star ninth of March 2012

In the same token, no parent ever wants to be sued by an injured person for their child’s negligence regardless if the child has his/her own vehicle and insurance. In a recent decision, Atilho v. Malaviya, 2010 CarswellOnt 11050, the Ontario Superior Court affirmed that negligent supervision of a child is a distinct tort from the negligent driving of the child and as the Plaintiffs’ case against the parents had some merit, the parents’ home insurer had a duty to defend them.

Don’t know where your child is with his/her car? It might be a good time to find out.

In this case, Kingsway had appointed counsel to defend the Arbitration proceeding who had a clear conflict of interest: the lawyer for Kingsway worked at the same firm as the lawyer who was representing Mr. Hotchkiss in the related matter.  Although Kingsway was aware of the conflict, they took no steps to rectify the problem before the hearing.  After first ordering that the Insurer must appoint new counsel because of this conflict, Arbitrator Wilson ordered immediate and ongoing payment of Non-Earner Benefits and Attendant Care Benefits as well as the expenses for the adjournment on the grounds that the insurer’s conduct constituted a blatant disregard of the SABS.

This case helps protect the rights of the insured so that they will not be prejudiced with an unjustified delay in their hearing by the Insurer.

The decision is available on the FSCO website.  

www.fsco.gov.on.ca

Bradon’s story is one of an alarming number of catastrophic diving accidents which have occurred in Ontario this past summer. This summer alone, St. Michael’s Hospital has treated seven young people in their 20s and 30s, with spinal cord injuries caused by diving. These injuries have left formerly, healthy people quadriplegics and changed their lives drastically. While this may not seem alarming at first glance, it becomes clear how serious it is when you consider that in the past nine years, the hospital has averaged one catastrophic diving accident per year.

At Neinstein & Associates we handle a large volume of cases involving clients who have suffered from catastrophic injuries. As a result, we are familiar with its meaning and its importance in properly handling a claim.

It is important to know that the majority of diving injuries are preventable. Parents should take the time to educate their children of the risks involved in diving and swimming. Water safety is the key. The majority of the victims of diving accidents are young people and too often alcohol is involved. What this means is that a blatant disregard for water safety is involved. Many of these catastrophic accidents are easily preventable through proper education and supervision.

While it is nice to enjoy the warm summer months, we must keep in mind that there are risks involved and take the necessary precautions to prevent against them. The tragic events of this past summer should serve as a warning that there are risks that come with seasonal pleasure. With the winter around the corner, we encourage everyone to be safe in their activities, whether it be skiing or snowmobiling.

For example, actress Natasha Richardson, after she fell during a beginner ski lesson at a Canadian resort, was laughing and joking. Not long after she complained of pain in her head and died within 48 hours.

On the other hand N.F.L. football players, who played in the decades of the 80s and 90s, are now suing the league for acting with callous indifference for failing to warn players about the consequences of head injuries. Many players claim that they sustained multiple concussions that were improperly diagnosed by team physicians. They suffered short-term memory loss, headaches, and vision problems. They continued to play ball, retired, and some of them are now suffering from serious depression or dementia.

Medical research now shows that whether a person is hit multiple times in football, hockey, or as result of two or more motor vehicle accidents, the long-term consequences are serious and severe.

It seems that American sports franchises, and Canadian insurance companies have something in common. In the interest of profit, they diminish and do not respect minor head injuries to be real, tangible, or serious.

But it is now known that you cannot be hit in the head on multiple occasions without causing a problem. When a person is hit multiple times very subtle injuries pile up and manifest themselves in the future in the form of depression, dementia, and ultimately change the life of the victim and their family forever.

In 1994 the National Football League published a steady string of studies claiming that concussions had no long term effect on professional ballplayers. In 2007 the league began distributing a pamphlet for the players quoting the research commissioned by the league:

”current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems……”

In 2009 a Congressional committee in Washington compared the league’s handling of concussions to the willful, egregious, and reckless conduct of the tobacco industry.

Although it will not always be the case, there are times when a seemingly minor personal injury, can turn out to be very serious.

The changes prevent accident benefit claims by passengers who are injured in a public transit vehicle accident unless that vehicle has collided with another vehicle or object. In addition, the owner and/or driver of a public transit vehicle is no longer considered a “protected defendant” under the Act. As a result, injured passengers who commence a tort claim are not required to establish a threshold and the deductible does not apply to their claim.   

In other words, when passengers are injured on public transit due to a collision, it is treated as a typical motor vehicle accident. Now, because of the legislation, if a passenger is injured while on a bus (by falling during an abrupt stop, for example) it is treated like an Occupiers Liability action.

These changes are clearly made to prevent public transit passengers from making applications for accident benefits in situations where there is sudden breaking but no collision.

The new scheme will likely save transit authorities and insurers a significant amount of money each year by preventing insurance companies from being forced to pay out accident benefits in circumstances that do not involve a collision.

Hence: “No Crash, No Cash”

By: Erik Joffe

Neinstein & Associates, independently of recent published articles, has experienced in many of our own files that this is the case. Perhaps some of our personal injury clients had some pre-existing issues prior to their motor vehicle accident. Perhaps some of our personal injury clients acquired, due to head injury, or the stress of pain and suffering, inability to work, loss of interpersonal relationships, psychological and mental issues as a result of their accident, slip and fall, or other traumatic personal injury.

In addition, we often handle wrongful dismissal cases. Sometimes these cases arise, after a client suffers a personal injury, is then unable to perform their duties in the workplace, and is terminated. Sometimes these accident victims are not terminated but need to file a disability claim, because they cannot cope in the workplace and are required to take time off work.

It is unfortunate that from time to time, what might have been a fairly routine case to recover damages for an innocent victim turns into an action for damages for the personal injury, an action against the employer for wrongful dismissal, and a third action against an insurance company for refusing to pay a disability claim. Now the client is involved in complex litigation with multiple issues and numerous parties, which, in turn exacerbates the client’s anxiety and mental anguish.

A recent case study was reported on both City TV and CNN outlining the case of Susan, a nursing supervisor with a long history in managing human resources, who was slow to seek help when cancer treatment and a suicide in her family combined to send her spiralling into depression.

Susan, of all people, might reasonably have been expected to recognize and act on the signs of mental illness.

She did not.

She regressed from a highly competent professional, at the top of her game, to a life turned upside down. She became increasingly disorganized, unable to concentrate, short tempered, couldn’t sleep, lost her appetite, and started believing that she was incompetent. It took her the better part of a year to come to terms with her mental illness and accept treatment. Even after her time off work on a disability claim, upon her return to work, she felt isolated and ignored by colleagues, a reception that increased feelings of shame and embarrassment.

Research shows, and CAMH has statistics proving that 2 out of 5 five Canadian families are affected by mental illness. People do not want to talk about it, employers do not want to deal with it, and insurance companies do not want to pay for it. Insurance companies fight long and hard to avoid paying compensation to people making disability claims who suffer from physical illnesses and disabilities.

Insurance companies seem to fight longer and harder when the victim suffers from a mental disorder.