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Saturday, October 22, 2016


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Seven Greatest Fictional Lawyers

Seven Greatest Fictional Lawyers

1.Atticus Finch (Gregory Peck) – To Kill a Mockingbird

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2. Lt. Daniel Kaffee (Tom Cruise) – A Few Good Men

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3. Vincent “Vinny” Gambini (Joe Pesci) – My Cousin Vinny

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4. Perry Mason (Raymond Burr) – Perry Mason

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5. Elle Woods (Reese Witherspoon) – Legally Blonde

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6. Harvey Specter (Gabriel Macht) – Suits

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7. Arthur Kirkland (Al Pacino) – And Justice for All

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This is one of the articles from Smitiuch Injury Law’s Fall 2016 Newsletter. Click here to read the complete newsletter.

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

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

FSCO Decision Reinforces Viability of Retrospective Attendant Care Needs Assessments (Form 1’s)

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) affirms previous decisions that a retrospective attendant care needs assessment (commonly referred to as a “Form 1”) are viable.

In the decision Stephanie Kelly and Guarantee Company of North America [FSCO A12-006663], Arbitrator John Wilson affirmed that Ms. Kelly is entitled to payment for supplementary attendant care services, to be reimbursed for the cost for the Form 1 assessment, interest, and her expenses in the matter.

Ms. Kelly suffered catastrophic injuries and required one-to-one attendant care while in hospital.  Her family was, understandably, not in a position to know that a Form 1 was required to be completed to determine the amount of attendant care needs she required by use of a Form 1.  Once they were aware that one needed to be completed they retained an occupational therapist, who then completed a retrospective assessment.

In considering The Guarantee’s position that no attendant care benefit is payable prior to a Form 1 being submitted to an insurer, Arbitrator Wilson relied on a previous arbitration decision, T.N. and The Personal, wherein Arbitrator Bayefsky stated the following:

This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment.

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

Kelly and Guarantee

The Winter 2014 issue of disclosure is now available

Get the facts and the truth about some common Traffic Law Myths. Did you know that a traffic ticket cannot simply be dropped even if there was a mistake made on the ticket?Winter 2014 Newsletter Cover


Do you have a favourite lawyer joke? Is it in our list of PG rated jokes?


Although the annual number of impaired driving charges is down, it only takes one impaired driver to cause a traffic incident and destroy a family for life. Read about FAID and Smitiuch Injury Law’s support of the Freeze the Keys campaign.


These are just a few of the interesting articles in this issue.


The newsletter is available on our website or to request a hardcopy please call 1-866-621-1551 or email us at [email protected]

FSCO Arbitrator Recognizes 60-Day Timeline for Mediations

A recent decision by FSCO Arbitrator Jeffrey Rogers supports that a mediation can be deemed to have failed if it has not been mediated within the 60 day timeframe noted in both The Insurance Act as well as The Dispute Resolution Practice Code.

In the decision, Leone and State Farm, Arbitrator Rogers states the following:

Since the prescribed time for mediation had expired when Mr. Leone filed his Application for Arbitration, there was no jurisdictional barrier to his doing so. This conclusion is consistent with the scheme and intent of the Act, the Schedule and the Rules as they aim to promote prompt payment of benefits and speedy dispute resolution. The legislation and the Rules are all replete with fixed time limits intended to serve this purpose. Accepting State Farm’s position would mean that there is no fixed time for completing mediation. That would render meaningless the requirement in the Act and the Rules for the prompt appointment of a mediator.

Section 281.1 of the Act, section 51(1) of the Schedule and Rule 11 of the DRPC require that an Application for Mediation be filed no later than 2 years from the date the insurer provided written notice of refusal to pay an amount claimed. Accepting State Farm’s submission that the Application is not filed until a mediator is appointed would mean that an insured person does not know whether he or she has met this limitation when delivering an Application to the Commission. It would mean that the period differs from application to application and that close to 1 year of the permitted time was consumed by the delay in this case. Conceivably, if delays increase to the point where it takes 2 years to appoint a mediator, an insured person who attempts to file an Application immediately upon denial would see his or her rights extinguished, before the first step in the dispute resolution process has occurred. The Legislature could not have intended that absurd result.

FSCO Releases Cost of Goods Guidelines

The Financial Services Commission of Ontario (FSCO) has released guidelines on the costs of goods.  The Guideline was developed as a result of a recommendation by the Auto Insurance Anti-fraud Task Force in its interim report regarding measures that should be undertaken as soon as possible.

Pertinent sections are quoted below:

“For the purposes of this Guideline, the retail price is the lowest price, including delivery charges (if delivery is required), duties and taxes, that would be payable by or on behalf of an insured person to acquire an item of goods from a source that is available to a member of the general public in Ontario.

Where a retail price exists for an item of goods, a “reasonable” expense for that item for the purposes of sections 15 and 16 of the new SABS and sections 14 and 15 of the old SABS is that retail price, or the price actually paid or payable by or on behalf of the insured person to acquire the item, whichever is lower.

In the event of a dispute over whether an expense for an item is “reasonable”, the onus is on the insurer to provide reasonable evidence of the retail price of the item.

Reasonable evidence includes, but is not limited to: an advertisement; written confirmation from a vendor; or any other reliable form of proof of the retail price.”

The Guidelines can be read in their entirety by clicking here.



Are you in the MIG? Maybe not.

Claims Canada Magazine is reporting that more than 50 percent of all claims in Ontario are currently falling under the Minor Injury Group (MIG). The article acknowledges that insurance companies are “holding their breath” to see how arbitration and judicial decisions will interpret the new regulations as to what is and is not considered a “minor injury”.

Interestingly, the question still remains open as to whether or not individuals who were injured after September 1, 2010 but prior to their policy renewal date can be placed within the MIG category and, more importantly, the $3,500.00 limit for medical and rehabilitation benefits, as this is based on a bulletin from the Financial Services Commission of Ontario (FSCO). A bulletin is not law.

iPad or Playbook?

With a big head start in release dates, the iPad clearly has the lead over the Playbook. But does this mean it is the best choice for lawyers and legal firms? Which one will help your law practice? If looking around the office is any indication, the iPad is the winner. By the time the Playbook was released today the technology junkies had already bought their tablet and they are not going to purchase another one until there is a significant reason to do so.

There are so many good applications available for the iPad that will help your practice. Apple’s productivity suite ($), DropBox (free), LogMeIn Ignition ($) and a terrific new app, Moleskine (free).

Given the head start in sales and the countless apps I think the iPad is the best choice.

For more information on using your iPad in your law practice, check out the following blogs: Legal iPad (www.legal-ipad.com), Tablet Legal (www.tabletlegal.com), iPadLawyer (www.ipadlawyer.co.uk), iPad Notebook (www.ipadnotebook.wordpress.com)

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