The Law & You

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Limitations Periods: What You Should Know

1/28/2010 3:52:25 PM

Author: Adam R. Little

Most people are aware of the existence of something called a “statute of limitations”, but few understand the significance of these limitation periods to persons who have suffered injuries due to fault or neglect.

In Ontario, a provincial law called the “Limitations Act, 2002” determines most limitation periods. Generally, an injured person must commence a legal proceeding within two years of the date they knew or ought to have known that an injury, loss or damage has occurred. The question is, of course, when does an injured person gain this knowledge?

Consider some examples: If a victim suffers the immediate loss of her legs as a result of a car accident for which someone else was at fault, it is almost certain that the clock starts ticking on the limitation period immediately. However, many cases are not so clear. For example, what about the victim who thinks he has suffered only a mild bout of whiplash as a result of a car accident for which someone else was at fault – but who then goes on to require spinal surgery 18 months later? Those cases are much less clear-cut and usually require a more detailed analysis of the facts.

In addition, as a general rule, limitation periods do not apply to minors or persons who are not mentally capable of making their own decisions. In those instances, the limitation period will not begin to run until either the child reaches age 18, the incapable person regains capacity, or a special kind of legal guardian is appointed.

In the end, although limitation periods contain numerous exceptions, they can also act as a complete bar to recovery of damages by injured persons. As such, they must be taken very seriously. If you have any concerns about the applicability or possible expiry of a limitation period, it is imperative that you contact a lawyer immediately. At Oatley, Vigmond, we act exclusively for injured persons. If you or someone you know has suffered an injury, we may be able to help.

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Ontario's Proposed New Graduated Licensing Laws: What It Could Mean For Your Teen

1/28/2010 3:47:24 PM

Author: Ryan A. Murray

The Ontario government is currently debating a new law known as Bill 126, the Road Safety Act, 2008. This proposed law would amend the Highway Traffic Act to, among other things; impose a condition on the driver’s licence of all drivers under 22 years old that their blood alcohol concentration must be zero while driving. If a young driver were to contravene this condition the penalty would be a fine between $60 and $500 and a suspension of licence for up to 30 days.

If passed this new provision would be added to the existing graduated licensing system in Ontario. Currently a new driver must start by obtaining a Level 1 (Class G1) licence. While driving with a G1 Licence a novice driver must, among other things, have a zero blood alcohol level and drive only with a co-driver who has been licensed for at least 4 years and who holds a full Class G licence.

After driving for 12 months with a G1 licence the G1 driver can take a road test to get a level 2 (Class G2) licence. G2 licence holders are still required to have zero blood alcohol while driving. There are also restrictions on the number of passengers a G2 driver can carry between midnight and 5:00 a.m. After holding a G2 licence for 12 months the novice driver can take a second road test to get a full Class G driving licence.

The graduated licensing system in Ontario has reduced the amount of deaths and injury among novice drivers. Each year about 16,000 people are convicted of drinking and driving with a blood alcohol concentration above 0.08 in Ontario. This is about 2 people per hour. As we all know, young people are among the most likely to fall victim to peer pressure and to make poor decisions when it comes to alcohol and driving. Clearly the proposed restrictions on alcohol consumption by young or novice drivers will only further reduce the amount of deaths and injury on the road. Please talk with your teen driver about the proposed new laws and the importance of refraining from alcohol if they are planning to get behind the wheel.

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So, Your Teenager Wants To Borrow Your Car?

1/28/2010 3:44:30 PM

Author: Brian M. Cameron

Every parent is going to face this question sooner or later. Most people realize that having a teenager will increase insurance rates. How many give any consideration to their own liability if your son or daughter causes a crash and injures several others?

In Ontario, if you loan your car to someone, you are responsible as the owner of the vehicle for all of the damage they cause to the same extent as if you were driving the vehicle yourself. If your teenager causes a crash that injures several people you may be personally liable for millions of dollars in payments. In certain circumstances, if you loan your car to your teenager, who then loans the car to another teenager (without your knowledge), you may still be liable for the damage caused by this unknown teen.

There are a few steps you can take to protect yourself. First, when your children are old enough to drive, you should consider increasing your liability insurance. Even the most responsible teen can cause a terrible accident. You will find that increasing your liability limits from the normal $1,000,000.00 to $2,000,000.00 is inexpensive.

You must also set strict rules with respect to when your teenager can drive the car. Leaving the keys on a hook in the kitchen with the understanding that your child will take the car only under certain circumstances is a bad idea. It is far better to keep control of the situation by speaking to your teenager each time before they want to drive. That way, you will be able to have a far better understanding of the circumstances each time your teen will be driving the car.

Having rules and keeping control of the situation is your safest option, for your teen and for other users of the road.

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Accident Benefits Coverage: What Will My Insurance Company Pay For?

1/28/2010 3:43:10 PM

Author: Adam R. Little

Although most Ontario motorists have heard of “no-fault insurance”, very few understand what benefits are available to them following a car accident.

Basically, anyone injured in a car accident in Ontario (even pedestrians and cyclists) will be entitled to certain potentially significant benefits from their own insurance company, regardless of who is at fault for the accident. These benefits include:
•           Income replacement;
•          Medical and rehabilitation treatments and therapies not covered by OHIP, such as physiotherapy,     chiropractic     therapy, massage and other types of treatment;
•           Prescription medications;
•           Assistive devices, including wheelchairs, walkers, canes, grab bars, etc.;
•           Housekeeping and home maintenance help, including snow removal and lawn/garden care;
•           Home and vehicle modifications;
•           Services of a support worker or attendant, including payment to family members for care provided;
•           Expenses incurred by family members to visit an injured person, including air travel;
•           Child care expenses;
•           Funeral expenses; and
•           Lump sum payments for the death of a family member.

These benefits are available even if the accident was your own fault, and even if others involved in the accident are also injured. However, there are time limits, dozens of complicated forms to complete and numerous restrictions and limitations on coverage.

At Oatley, Vigmond, we specialize in ensuring that injured persons receive the benefits they need and are entitled to receive from their insurance company. We have former insurance adjusters on staff to make sure the needs of accident victims are met and their rights are protected. If you or someone you know has been the victim of a car accident, we may be able to help.

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The Civil Jury System in Ontario

1/28/2010 3:36:46 PM

Author: Troy H. Lehman

A jury trial begins with the assembly of a jury panel.   Dozens of members of the community are randomly chosen to gather in a courtroom.   The judge arrives.   The case is then called and a court official picks names from a drum to take their seats in the jury box.

Unlike the American system, lawyers do not ask questions of potential jurors in Ontario.   The only information provided to the lawyers about a potential juror is his or her name, age, address and occupation.    In civil cases a jury consists of six people.   Each party to the lawsuit can “challenge” four jurors.   When a juror is challenged, he or she is taken off the jury panel.

Many people dread receiving a jury notice.   It is a big sacrifice to sit on a jury.   You are taken from your daily routine.   You are burdened with the responsibility of making decisions that will affect people for the rest of their lives. Being on a jury can be stressful.

Being on a jury can also be interesting and rewarding. I am always astonished at the dedication, hard work and wisdom of people on juries.   It is impressive to see members of our community sit and attentively listen to evidence. It is extraordinary how, at the end of a trial, the jury decision is almost always fair and just.

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The Perils of Drunk Driving

1/28/2010 3:35:34 PM

Author: Ryan A. Murray

Having care and control of a motor vehicle with a blood alcohol content exceeding 0.08 is a crime. Having care and control of a vehicle while your ability to do so is impaired by alcohol or drugs is also a crime. In addition, Ontario has a zero tolerance policy with respect to alcohol consumption by novice drivers. In 2007 more than 31,000 Ontarians were charged with driving a motor vehicle while under the influence of alcohol.

In Canada prison sentences are handed out in more than ten percent of all drunk driving cases and a conviction can seriously affect a person’s ability to travel or obtain employment. In addition, convicted drunk drivers face a licence suspension, a minimum $1,000 fine, higher insurance premiums and difficulty obtaining car insurance in the future. Repeat offenders also face the prospect of ignition locks being placed on their vehicles.

It should also be noted that if you are injured while driving under the influence of alcohol you likely will not be eligible for certain no-fault benefits from your own car insurance company. These excluded benefits include important weekly income replacement benefits in the event your injury prevents you from working.

The most important statistic is that more than 60,000 Canadians are still killed or injured due to impaired driving every year.

Drunk driving remains a real and serious concern in our society. As the holiday season approaches there will be the usual increase in festive occasions that may include alcoholic beverages. Please remember to use alternate forms of transportation if you are planning to consume alcohol over the holidays, and never drink and drive.

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What Happens if Someone Slips and Falls on My Walkway?

1/28/2010 3:34:36 PM

Author: Brian M. Cameron

One of the most frequent questions I get from friends and family is some variation of “If someone slips and fall on my walkway, can they sue me?” Given the current weather, the question seems particularly relevant.

The Occupiers’ Liability Act sets out the responsibilities that people have with respect to the condition (which includes ice and snow) of their premises. The Act does two things. First, it defines who has responsibility for the premises. Second, it sets out in general terms what a person must do with respect to the premises.

The people who have responsibility for the premises under the Act are “occupiers”. “Occupiers” include people who have possession of the premises or people who have care and control of the premises. This could include different people, depending on the circumstances. Generally speaking, if you have to shovel your sidewalk and driveway you are likely the “occupier” of the premises.

So, what does the law require you to do? The law requires that you take such care as is reasonable to see that persons entering the premises are reasonably safe. While there may be many other considerations, at minimum, it is reasonable to remove snow from areas where you know people walk. Salting and sanding ice is also a good idea.

Snow and ice present some risk, and they are a fact of life in Ontario. You are not required to completely remove the risk. You only have to do what is reasonable to make people safe.

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The Abdallah Case: How Far is too Far?

1/28/2010 3:33:48 PM

Author: Adam R. Little

“A jury trial is a fight and not an afternoon tea.” That observation from a 1915 decision remains as true today as when it was first written. However, jury trials have rules – and the boundaries of what a trial lawyer can say in front of the jury are restricted to ensure fairness and to avoid miscarriages of justice. Earlier this year, I argued an appeal from a trial decision that dealt directly with those boundaries.

In 2000, Nezam Abdallah and his family immigrated to Hamilton, Ontario from the West Bank, in search of new opportunities away from the political unrest of their home land. In August of 2001, Abdallah was injured in a car accident. He sued the driver of the vehicle that struck him. The driver’s insurer admitted that it was responsible for the accident, but took Abdallah to trial on the issue of whether or not he had sustained any injuries.

At the end of Abdallah’s civil jury trial in May of 2006, the insurer’s lawyer asked the jury to find that Abdallah had not been injured. His closing remarks included statements such as “Canada wasn’t built by people who try to take advantage of a car accident to write their ticket”, and “the courts of Ontario are not an ATM machine”.

Following the improper closing argument, the jury decided to award Abdallah nothing for his injuries. We took the case over from a Hamilton lawyer and appealed the jury’s finding. The insurer argued the comments were harmless and taken out of context. In a lengthy decision, the court decided the comments were highly inappropriate, reversed the jury’s decision and ordered a new trial.

As a result of this decision, lawyers can now be confident there is no place for such inappropriate comments in Ontario’s courts. A jury trial may be a fight, but it still has rules to ensure the fight is fair.

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Insure Your Off-Road Vehicles

1/28/2010 3:26:32 PM

Author: Troy H. Lehman

The law in Ontario requires that off-road vehicles be insured. It is an offence to drive an uninsured off-road vehicle. It is also an offence to allow someone else to drive your uninsured off-road vehicle. People convicted of these offences are subject to hefty fines.

If your uninsured off-road vehicle is involved in a crash in which someone is injured, paying a fine may be the least of your worries. A person who is injured because the driver of an off-road vehicle was negligent can sue both the driver and the owner of the off-road vehicle. If you do not have adequate insurance, a lawsuit can result in financial ruin.

Insuring your off-road vehicle will also protect you in the event that you are seriously injured while driving the vehicle. Policies of insurance covering off-road vehicles provide for “no fault” benefits that pay for medical, rehabilitation and other expenses.

Most people wouldn’t think about driving their car or truck without insurance. The risks are simply too great. However, many people do not obtain insurance for their dirt-bikes, ATVs and snowmobiles. This can be a terribly costly mistake.

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Liability for Defective Products

12/16/2009 10:33:48 AM

Author: Adam R. Little

The average person relies on thousands of manufactured products every day, usually without even realizing it. From the smallest screw in the engine on your car, to the cookie you ate for a snack, we rarely think twice about the safety of the products we consume, drive, fly, wear, or switch on and off. But what happens when products fail, through defective design or sloppy manufacturing? Who is responsible?

In 1932, the English House of Lords (also Canada’s highest court at the time) laid the groundwork for our current product liability laws. A Scottish woman had consumed part of her ginger beer when she noticed the remains of a snail in the bottle, following which she became ill. She sued the manufacturer of the ginger beer for her losses. In finding the defendant responsible, the House of Lords concluded that a manufacturer of products owed a duty of reasonable care to persons who ultimately consumed or relied on the product. In other words, a manufacturer must take care to ensure that the products it makes are both safe and reasonably fit for their intended purpose. For example, cars must be fitted with brakes that operate in all the usual driving conditions, prescription medications must not cause unexpected harm or death, and food products must not make us sick or cause injury.

In Canada, each of the provinces has also legislated a “Sale of Goods Act” which makes sellers or retailers of products responsible for, among other things, hidden defects which are not obvious upon inspection. For example, your grocery store may be responsible if the cookies you bought were laced with hidden salmonella bacteria.

Long gone are the days of “buyer beware”. Today, consumers can rest assured the thousands of products they rely on will be safe and fit for their intended purpose. And when products fail, manufacturers and retailers will be held responsible for the damages they cause.

If you have suffered injury as a result of a product failure, you should contact a lawyer immediately.

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Driving with an Expired Driver's Licence: What it could it mean to you

12/16/2009 10:19:00 AM
Author: Ryan A. Murray

Not many people are aware that every auto insurance policy in Ontario is identical or that every auto policy in Ontario contains within it a section known as the Statutory Conditions. These Conditions are important. Failure to comply with them can have serious consequences. Statutory Condition No. 4 (1) Authority to Drive, reads as follows:

The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

In other words, if you operate your vehicle while you have an expired driver’s licence or lend your vehicle to someone who has an expired driver’s licence there is no insurance coverage on that vehicle. Having no coverage has numerous consequences. If an accident occurred while someone was driving your vehicle without a valid driver’s licence:
- You would be responsible for repairing or replacing your vehicle even if your vehicle was not at fault for the accident;
- If your vehicle injured someone in the accident your insurance company would not be obliged to provide you with a lawyer or a defence to any lawsuit;
- If the court was to enter a judgment against you in a lawsuit the insurance company would not be responsible for paying any portion of that judgment; and,
- If you were injured in that accident your own insurance company would not have to pay you certain important no-fault accident benefits including an income replacement benefit.
The courts have interpreted this Statutory Condition rather strictly. A recent case held that even if you were not aware that your driver’s licence was expired at the time of the crash you still do not have access to any insurance coverage unless you can prove that you exercised all reasonable care by establishing a proper system to ensure compliance with the Statutory Condition. In other words, you have to prove that you took some positive steps to ensure that you were licensed and did not just rely on the Ontario government to notify you before your driver’s licence expired. Given the serious consequences of driving without a valid driver’s licence it is important that we all make note of the date that our driver’s licence is set to expire and ensure that we renew it well in advance of the expiry date.
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Optional Automobile Insurance

12/16/2009 10:00:47 AM

Author: Brian M. Cameron

No one would consider buying a car without knowing the color, the available options or how many seats the car has, yet people buy auto insurance on a daily basis without knowing any of the options. Most people renew their auto insurance without giving any thought to the coverage that they have, or more importantly, what is available.

There are several options available for Ontario consumers. Auto insurance in Ontario starts with a basic package. This package will usually include third party liability coverage of $1,000,000.00. This coverage protects your assets if you cause an accident. Increasing this coverage to $2,000,000.00 is inexpensive. Increasing the coverage is a prudent step to ensure that you do not lose your life-savings if you seriously injure someone.

The basic coverage also includes accident benefits and, in most cases, a Family Protection Endorsement. Accident benefits provide coverage for things such as income replacement, medical and rehabilitation expenses and attendant care expenses. The Family Protection Endorsement protects you if an uninsured or underinsured driver injures you or a member of your family. You can purchase increased accident benefits and Family Protection coverage.

Increasing your accident benefits and Family Protection coverage is inexpensive. The next time you renew your auto insurance, ask your broker or insurer about the cost and availability of these increased benefits. Although you hope never to use insurance, if something happens, you will be glad that you did.

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