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Tuesday, August 30, 2016

 
 
 

 
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Negligence by Restaurants – Can You Sue?

Recently in the news, we heard about a situation where a waiter served a man a meal which contained food he was allergic to even though the man had forewarned the waiter about this allergy. Simon-Pierre Canuel was in a coma for several days after being served salmon tartar to which he has a severe allergy.

This situation gives rise to the question as to whether the waiter (or anyone else) was civilly liable for the mishap – meaning, can Mr. Canuel successfully sue the waiter?

Any action or omission that is the subject of a civil claim (where one person sues another) will fall on a scale from accidental to intentional, with negligent (think of it as extreme carelessness) being near the middle. An intentional act would occur if a restaurant worker intended to act in a way that would clearly harm a person. It is more likely that being served food that you are allergic to would fall somewhere between an accident and negligence. To constitute an accident, it would have to be shown that the result of what the worker did couldn’t be easily expected nor easily prevented. Finally, negligence, which is neither intentional nor accidental, is when a person fails to provide the proper care that the law requires them to give.

This situation would likely be a case of negligence. Negligence occurs when someone acts in a way where they could have expected that harm would occur, or they could have easily prevented the harm. To establish that a defendant was negligent, the most common approach is to prove three things. (1) There is a duty of care (2) that was breached, (3) resulting in damage. This test is in its simplest form, and usually requires a much more detailed analysis, but for our purposes – this should be enough.

First, there must be a duty of care that is recognised by law. To show this, lawyers will look at past cases to see if restaurant workers are expected to act in a way that ensures that the customers they serve stay safe. If there is no such case, then the lawyers will have to establish a new duty of care. The lawyers would have to show that restaurant workers should be expected to make sure the customers don’t come to any harm.

Second, it is necessary to show that the restaurant worker acted or failed to act in the way they should have. The kinds of things that could be expected at a restaurant could include, for example, requiring that the waiter ask about allergies or for the restaurant to have a plan to ensure no contact with dangerous food.

Third, someone or something must have suffered harm or damage and this harm or damage must have occurred because of the restaurant worker’s actions. A severe allergic reaction, causing harm to your health would satisfy this part of the test.

If you should ever find yourself the victim of a severe allergic reaction to food after notifying the server or the restaurant of your allergy, it is always best to consult with a personal injury lawyer to see if your circumstances would give rise to legal action.

The Lawyers Weekly – Use of Video Evidence Increasing

Below is an article written by Michael Smitiuch, which was published in The Lawyers Weekly on June 24, 2016.

The Lawyers Weekly Article - Video Evidence

Peter Cho Named Outstanding New Lawyer by OTLA

Peter Cho

Smitiuch Injury Law’s very own Peter Cho has been named as the recipient of the Martin Wunder, Q.C. – Outstanding New Lawyer Award for 2016 by the Ontario Trial Lawyers Association (OTLA).

The Martin Wunder, Q.C. – Outstanding New Lawyer Award is awarded to an OTLA member in recognition of exceptional commitment to and promotion of the advancement of OTLA’s Mission:  To fearlessly champion through the pursuit of the highest standards of advocacy the cause of those who have suffered injury or injustice. 

The award will be presented to Peter on May 25, 2016.

Insurer Has Obligation to Ensure Graduated Return to Work is Possible: FSCO

A recent arbitration decision from the Financial Services Commission of Ontario (FSCO) has concluded that an accident benefits insurer has an obligation to ensure that a graduated return to work is possible before terminating income replacement benefits.

In the decision Nader and State Farm [FSCO A13-003230], Javed Tabey Nader was injured in a motor vehicle accident and was unable to return to his pre-accident job.  His accident benefits insurer, State Farm, sent him to insurer’s examinations and the assessors concluded that he could participate in a graduated return to work program.  State Farm then notified Mr. Nader that they were discontinuing his income replacement benefits after the period that the insurer’s assessors concluded that the graduated return to work would be completed.

No one from State Farm ever checked to see if Mr. Nader’s employer was able to accommodate a graduated return to work, which it could not.  Moreover, when State Farm was advised that Mr. Nader did not return to work, State Farm did not find out why this did not happen and simply maintained their denial.

Arbitrator Bujold concluded that Mr. Nader was entitled to income replacement benefits for the first two years of his accident benefits claim and made the following comments with respect to a special award of $5,000.00:

Dr. Armitage’s opinion that Mr. Nader could return to work was premised on the availability of a graduated return to work program, and the provision of active rehabilitation and other supports as may be reasonably required to facilitate the attempt. However, neither Dr. Armitage nor State Farm knew whether graduated work was available, and the OCF-9 provided no guidance or direction to Mr. Nader with respect to what was expected of him in terms of investigating, arranging or participating in a graduated work return. More importantly, when advised that Mr. Nader had not returned to work, State Farm took no steps to ascertain the reasons for his non-return to work, help determine the availability of graduated work, and either help facilitate a graduated return to work (if available) or proceed with a vocational assessment to explore other employment options, including possible upgrading. Instead, State Farm simply maintained its denial. In these ways, State Farm acted unreasonably, and its withholding of income replacement benefits from this point became subject to a special award.

This decision is an important lesson to insurers of their obligation to keep an open mind and to continue consideration of entitlement to accident benefits even after the benefit has been denied.

The decision can be read in its entirety by clicking on the link below.

Nader and State Farm – Special Award

 

Important Changes are Coming to Your Car Insurance Policy

While no one likes to pay car insurance premiums, these are meant to provide you with peace of mind in the event that you are ever injured in a motor vehicle accident. It is very important that you plan for the worst-case scenario so that you will have the funds that you need to cover your medical, rehabilitation, attendant care, and other expenses if you are seriously or catastrophically injured.

As of June 1, 2016, all new or renewed automobile insurance policies written in Ontario will significantly lower the standard amount of accident benefits available to an individual who is injured in a motor vehicle accident.

Accident Benefits are available to anyone in Ontario injured in a motor vehicle accident, regardless of fault.

The most significant changes to the standard policy will be as follows:

Benefit Current Policy New Policy You can choose1
Medical and Rehabilitation for non-catastrophic injuries $50,000 These benefits have been combined and reduced to $65,0000 total Increase the benefit to $130,0002 total
Attendant Care for non-catastrophic injuries $36,000
Medical and Rehabilitation for catastrophic injuries $1,000,000 These benefits have been combined and reduced to $1,000,000 total An addition $1,000,000 for a total of $2,000,0002 for catastrophic injuries
Attendant Care for catastrophic injuries $1,000,000
Medical, Rehabilitation and Attendant Care, all injuries Not applicable Not applicable Increase the combined non-catastrophic benefit to $1,000,000 and the combined catastrophic benefit total to $2,000,0002 3
  1. If you have previously chosen to purchase these optional benefits check your policy – they may have changed to reflect amounts available in new options.
  2. Medical, Rehabilitation and Attendant Care benefits for minor injuries are fixed at a maximum limit of $3,500.
  3. If you purchase both the additional Medical, Rehabilitation and Attendant Care benefit for catastrophic injuries and for all injuries, the total eligible benefit amount for a catastrophic impairment would be $3,000,000. There are additional optional coverages available to increase your income replacement benefit from the basic maximum of $400.00 per week, in case you are unable to work. You can also get coverage for caregiver and housekeeping and home maintenance benefits for non-catastrophic injuries.We strongly advise you to discuss your policy with your insurance broker or agent before your policy is renewed after June 1, 2016, to ensure that your needs are met. While no one wishes the worst, it is good to have the coverage if it is ever needed. Many of our clients will attest to this.

There are additional optional coverages available to increase your income replacement benefit from the basic maximum of $400.00 per week, in case you are unable to work. You can also get coverage for caregiver and housekeeping and home maintenance benefits for non-catastrophic injuries.

We strongly advise you to discuss your policy with your insurance broker or agent before your policy is renewed after June 1, 2016, to ensure that your needs are met. While no one wishes the worst, it is good to have the coverage if it is ever needed.  Many of our clients will attest to this.

New Decision Clarifies Insurer’s Examination Requirements

In the decision, Larry Ward and State Farm Mutual Automobile Insurance Company [FSCO A14-010161], Arbitrator Chuck Matheson decided on a preliminary issue as to whether an insured, Mr. Larry Ward, was precluded from proceeding to arbitration on a number of issues due to his non-attendance for insurer’s examinations, which are required under Section 44 of the Statutory Accident Benefits Schedule (SABS).

One of the factors considered by Arbitrator Matheson was whether or not State Farm provided medical or other reasons for the insurer’s examinations.  The arbitrator interpreted the requirement to be that, “…the medical reasons test must tell the Applicant, in an unsophisticated way, why the tests [insurer’s examinations] are reasonable and necessary.”  The words “reasonable and necessary” are new to the consideration of what is required for a medical reason required by an insurer.

The decision also confirms that, just because an insurer has not approved particular treatment or an assessment (for instance, if it is funded by OHIP), does not mean that they are not required to pay for transportation to and from them.  It also confirms that an OCF-18 Treatment and Assessment Plan is not required for goods or services under $250.00, as well as for medications prescribed by a regulated health professional.

Arbitrator Matheson also concluded that case management services, while subject to submission on a treatment plan, are not subject to an insurer’s examination.  He notes that,

I accept the Applicant’s interpretation of section 14 that the “virtual account” called medical and rehabilitation benefits shall pay for the specified benefits listed in sections 15, 16 and 17. It does not mean, however, that section 17’s case manager benefit is in fact a Medical or Rehabilitation Benefit, per se. The legislature severed the case manager because it is not a specified Medical or Rehabilitation Benefit. The case manager’s function is to coordinate the specified benefits of sections 15 and 16 in order help the insured person to attend and claim said specified Medical/Rehabilitation and/or Attendant Care Benefits for a catastrophically impaired person.

This decision can be read in its entirety by clicking on the link below.

Ward and State Farm – Medical Reason, Transportation

Proposed Amendments to Ontario Automobile Insurance Dispute Resolution System

The Ontario Government has released its proposed amendments to the Insurance Act regulations regarding the Ontario Automobile Insurance Dispute Resolution System (AIDRS).

Effective April 1, 2016, an individual who wishes to dispute a denial by an insurance company for statutory accident benefits will go through the Ministry of the Attorney General’s License Appeal Tribunal (LAT) and not the Financial Services Commission of Ontario (FSCO).

The proposed amendments include the following:

  • Applications for mediation, neutral evaluation, or the appointment of an arbitrator for arbitration will not be accepted by FSCO after March 31, 2016.
  • Applications to the Director of Arbitrations for appeals may only be made where the application for the appointment of an arbitrator was received by FSCO on or before March 31, 2016.
  • Applications to the Director of Arbitrations for variation or revocation may only be made where the application for the appointment of an arbitrator was received by FSCO on or before March 31, 2016.
  • The Office of the Director of Arbitrations shall be continued until the date on which all notices of appeal and all applications for variation or revocation have been finally determined.
  • Statutory Accident Benefits Schedule (SABS) provisions that apply to the dispute resolution process at FSCO will continue to apply, as they read on March 31, 2016, to all applications that were received by FSCO before the transition date but are not finally determined before that date. The SABS will also be amended, where necessary, to apply to applications filed at the LAT on or after April 1, 2016.

Comments on the proposal are due by January 23, 2016.

The posting can be read in its entirety by clicking on the link below:

http://www.ontariocanada.com/registry/view.do?postingId=20442&language=en

Change to Economic Loss Payment Not Retroactive: Court

A judge of the Ontario Superior Court of Justice has ruled that a change to the Statutory Accident Benefits Schedule (SABS) which became effective on February 1, 2014, does not apply to accidents prior to this date.

In the decision David v Wawanesa Mutal Insurance Company [2015 ONSC 6624], Quinlan J. considered whether Section 2 of Ontario Regulation 347/13 applies to accidents prior to February 1, 2014, when this regulation came into force.

In September of 2010 a change to the SABS allowed for non-professionals (e.g., family or friends) to be compensated for the attendant care that was provided to a person injured in a motor vehicle accident only if that non-professional suffered an “economic loss”.  The term “economic loss” was not defined.  The Ontario Court of Appeal later ruled, in its decision on Henry v Gore Mutual Insurance, that if a non-professional suffered an economic loss, they were entitled to the full amount of the monthly attendant care needs (Form 1) and that reimbursement was not limited to the actual amount of the economic loss.  In other words, once a non-professional established that an economic loss had been demonstrated, the full amount of attendant care benefit was payable as assessed.

In December of 2013 the Government of Ontario filed Ontario Regulation 347/13 to limit the amount of compensation for a non-professional to the actual amount of the economic loss sustained.  This regulation went into effect on February 1, 2014.  The regulation is silent on whether or not it is retroactive.

Quinlan J. states as follows:

[31]           Therefore, I accept the plaintiff’s position that attendant care benefits are a contractual right to which an injured person is entitled.  The contract of insurance between an insured and insurer creates rights and obligations, including the right to attendant care benefits.  As such, despite the fact that SABS are a government-legislated scheme, the treatment of other benefits bestowed by legislation and cases dealing with those benefits do not assist in deciding the issue before me.

[34]           The fact that legislation is remedial does not necessarily mean that it is intended to apply retrospectively (R. v. Evans, 2015 BCCA 46 (CanLII), 321 C.C.C. (3d) 130 at para. 33).  As the Court of Appeal held at para. 60 of R. v. Bengy, 2015 ONCA 397 (CanLII), 325 C.C.C. (3d) 22, if the need for immediate reform of the law were so pressing, why would the legislature not have explicitly made the law retrospective?  There is nothing in the record, including the explanatory notes, that demonstrates a clear legislative intent that the amendment is to apply retrospectively.

[35]           Accordingly, the presumption has not been rebutted and therefore applies.  I find that the plaintiff has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident.

The decision can be read in its entirety by clicking on the link below:

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6624/2015onsc6624.html

FSCO Announces Changes to SABS, Attendant Care Hourly Rates

The Financial Services Commission of Ontario (FSCO) has announced major changes to the Statutory Accident Benefits Schedule (SABS), effective June 1, 2016.

These changes include the following:

  • Medical and Rehabilitation Benefits, as well as Attendant Care Benefits, will be combined with respect to limits
    • For non-catastrophic claims, the maximum will be $65,000.00 for up to five years from the date of accident
    • For catastrophic claims, the maximum is $1,000,000.00, over a lifetime
  • Non-Earner Benefit – $185.00 per week, payable after four weeks but only to a maximum of two years following the accident
  • Catastrophic Impairment Designation – a whole new criteria for determining catastrophic impairment will be in force

FSCO has provided a new Attendant Care Hourly Rate Guideline, reflecting an increase to $11.25 per hour, effective October 1, 2015.

The Professional Services Guideline fees for 2015 remain unchanged from the previous year.

The bulletin can be read in its entirety by clicking on the link below:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2015a/Pages/a-06-15.aspx

Dockets Not Necessarily Required for Costs

A recent judicial decision determined that a law firm’s dockets are not normally required to be produced in order for a court to fix costs under the Rules of Civil Procedure.

In Bhatt v William Beasley Enterprises Limited [2015 ONSC 4941 (CanLII)], Justice Faieta stated that the mere size of the amount of costs being claimed is not a sufficient reason to require a party to undertake the expense of preparing and vetting their dockets.

Peter Cho and Luke Hamer, both of Smitiuch Injury Law, represented the Bhatt family in this matter.

The decision can be read in its entirety by clicking on the link below.

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4941/2015onsc4941.html

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