In a previous blog, we discussed how increasingly, social media impacts personal injury claims. Both plaintiffs and defendants sometimes rely on social media posts as evidence pertaining to a plaintiff’s alleged injury and associated change in life style, resulting from their accident. However, more often than not, it is the defendant in a personal injury claim who points to Facebook posts and other social media updates that suggest that the plaintiff is engaged in active and fun activities, and therefore their injuries are not as serious as alleged.
Author Archives: Admin4
Ontario to introduce zero-tolerance drug impaired driving legislation
The Government of Ontario has announced its plans to introduce new legislation regarding drug impaired driving. In an announcement on Monday, Premier Kathleen Wynne and Minister of Transportation Steve Del Duca said the legislation will arrive in the fall and operate on a zero-tolerance policy.
New laws will cover several classes of licenses, and will “increase the consequences and costs for those who drive under the influence of drugs, including cannabis.”
Ceiling on damages payable by U.S. state makes it an ‘inadequately insured motorist’ under Ontario family protection endorsement: Court
A U.S. state, with a cap on compensatory damages payable to accident victims suing the state, can be considered an “inadequately insured motorist” for the purpose of an Ontario auto family protection endorsement, the Court of Appeal for Ontario recently ruled.
Fibromyalgia: the chronic pain that thwarted Lady Gaga’s tour
On Monday it was announced that Lady Gaga has cancelled her European tour, due to begin next week, because of “severe physical pain that has impacted her ability to perform”. She has fibromyalgia, and has made a Netflix documentary, Gaga: Five Foot Two, to raise awareness about this long-term condition. A statement says: “She plans to spend the next seven weeks proactively working with her doctors to heal from this and past traumas that still affect her daily life and result in severe physical pain in her body. She wants to give her fans the best version of the show she built for them when the tour resumes.”
El-Khodr v. Lackie, 2017 ONCA 716 DATE: 20170919 DOCKET: C60918
[31] In her final decision, the trial judge did not allow an assignment of the future medication benefits and future professional services benefits. She noted that the parties had not adopted the language that she had proposed for the jury verdict sheet. Accordingly, the verdict sheet did not require the jury to specify awards for future care costs under the sub-headings that she had proposed, such as separate headings for each of physiotherapy, psychology, etc., instead of a single one for “Future Professional Services”, and separate headings for medications and for assistive devices instead of a single one for “Future Medication & Assistive Devices”. At paras. 5 and 6 of her reasons, she concluded:
[5] As a result of the jury’s global awards of $424,550 for Future Professional Services, and $82,429 for Future Medication and Assistive Devices, the Defendants are now unable to meet their onus to demonstrate that the jury award compensated the Plaintiff for the same loss in respect of which the Defendants now claim an assignment of benefits.
[6] The case law concerning the trust and assignment provisions of the Insurance Act requires me to ensure the prevention of double recovery by a plaintiff. This requirement must be balanced against a plaintiff’s entitlement to receive full compensation; that is, by not being subjected unfairly to deductions based on uncertainty and speculation. I adopt the reasoning of Leach, J. in Gilbert v. South, 2014 ONSC 3485, 120 O.R. (3d) 703, at para. 9 where she found herself similarly bound by the very strict onus of proof applied to defendants in these cases:
However, concern to ensure mandated prevention of such double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he or she is entitled; i.e., by being subjected unfairly to deductions based on collateral benefit entitlements that are in doubt and/or which may not truly overlap with sums recovered in a tort judgment. Statutory provisions of this nature therefore are strictly interpreted and applied. In particular: deductions from a plaintiff’s damage award to prevent double recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, andthat the plaintiff received compensation for the same benefits in the tort judgment, (as “apples should be deducted from apples, and oranges from oranges”). Evidence of “likelihood” and “probability” in that regard is not enough to warrant a deduction. Rather, a “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established. If there is uncertainty as to a plaintiff’s receipt of such benefits, the value of the benefits entitlement, and/or the extent (if any) to which recovered tort damages relate to the same type of expense covered by the benefits received, matters are not “beyond dispute” in the sense required for a deduction, and no deduction should be made. See Chrappa v. Ohm (1998), 38 O.R. (3d) 651 (C.A.), at p.657; Bannon v. Hagerman Estate (1998), 38 O.R. (3d) 659 (C.A.), at p.679; Cowles v. Balac, [2005] O.J. No. 229 (S.C.J.), at paragraph 205, affirmed [2006] O.J. No. 4177 (C.A.); Moore v. Cote, [2008] O.J. No. 3541 (S.C.J.), at paragraph 9; and Hoang v. Vicentini, supra, at paragraphs 27-28, 36 and 45. [Emphasis in original.]
Cobb v. Long Estate, 2017 ONCA 717 DATE: 20170919 DOCKET: C61467, C61471, M47419
http://www.ontariocourt
[154] The trial judge’s assessment of costs, in any event, at approximately $409,000 on a judgment of $22,136.60, (or $34,000, as the trial judge found) is out of all proportion and cannot stand. This was a chronic pain case. These sorts of cases are never a sure thing from the plaintiff’s perspective. The defence will, as here, put the plaintiff to the strict proof of his case. There was nothing “wrong” with the defence expert giving evidence that he found signs suggestive of malingering in the plaintiff’s test scores.
[155] A defendant is not expected to sit back and simply take a plaintiff’s evidence at face value. This plaintiff had, between the time of the accident and the time of trial, managed to earn a black belt in martial arts. Given that fact, it is not surprising that the defence argued that the plaintiff was not as disabled as the plaintiff had suggested in his evidence, nor was it inappropriate for the defence to lead psychiatric evidence to suggest that the plaintiff was a “malingerer”. This defence evidence did not waste court time, as the plaintiff argues. Indeed, it is apparent from the verdict that the jury preferred and accepted the defence version of the case.
[156] The plaintiffs’ lowest offer to settle was for $500,000 plus costs. These parties were very far apart in terms of their view of the worth of the case.
[157] Although the case took some 19 days to try, any costs award must reflect the reality that the final judgment, after this court’s correction of legal errors, was for only $22,136.60. The costs ordered by this trial judge are in an amount that might have been expected had the plaintiffs achieved a judgment closer to the range of value that they had placed on their case. Of course, the amount of the jury’s verdict was $220,000, but the amount remaining from that verdict after all relevant deductions is the relevant one for costs assessment because a plaintiff’s right to tort compensation is to an amount net of any collateral benefits and statutory deductions: Pilon v. Janveaux (2006), 211 OAC 19 (C.A.), at paras 15-17.
[158] As I already have mentioned, in his reasons on costs, the trial judge noted that, if he was wrong on the application of the statutory deductible, he would have ordered both parties to bear their own costs. The defendant indicated to this court that it would be content with the trial judge’s alternative order. In my view, the conclusion that each party should bear its own costs is a reasonable one.
[159] On any proportional basis, the plaintiff’s costs, even taking the defence offer out of the equation for the moment, could not have been expected to exceed approximately $200,000, given the results achieved.
[160] When the defendant’s offer comes into play, the costs payable to the defendant are approximately equal to or more than the plaintiff could hope to recover. In the circumstances, in my view, the fairest result to both sides is that each party bears its own costs.
G. DISPOSITION
[161] In the result, I would dismiss the plaintiffs’ appeal and allow the defendant’s appeal, including its appeal from the trial judge’s costs award. For the reasons that I have provided, I would reduce the amount of the judgment to $22,136.60 and I would order each party to bear its own costs of the proceedings below.
[162] I would allow the parties to file written submissions on the costs of these appeals to the panel, the defendant within two weeks of the release of these reasons and the plaintiff within two weeks thereafter, with submissions by each party not to exceed ten pages in length.
Drivers need education on extra car insurance
Insurance providers and brokers should do more to educate drivers about the benefits of optional extra coverage, says Kitchener litigation lawyer Graham Bennett.
Since June last year, Ontario drivers have been able to upgrade their auto insurance to boost coverage for medical bills, lost income and liability. Yet some studies have shown that uptake has been very low so far, with fewer than 10 per cent taking advantage.
http://www.advocatedaily.com/g
Accident occurred – motive behind staged crash not relevant
Mr. Emmanuel Ikponmwonba was injured in a car accident on August 29, 2010 and sought accident benefits from Intact, but when the parties were unable to resolve their disputes through mediation Mr. Ikponmwonba applied for arbitration at the FSCO.
https://www.deutschmannlaw.com
Giving Legal Effect to Emails – Can Emails Satisfy the Requirements to Extend Limitation Periods Under The Limitations Act?
E-mail conversations are often relatively informal and the participants, especially when they are not lawyers, can take prior discussions as a “given” rather than fully and expressly repeating them to ensure they have legal effect.
Recently, in I.D.H. Diamonds NV v Embee Diamond Technologies Inc., 2017 SKQB 79, the Saskatchewan Court of Queen’s Bench considered the legal effect of such informal e-mail discussions and whether they could be relied upon to be an acknowledgment of a debt so as to extend a limitations period under Saskatchewan’s The Limitations Act (the “Act”).
From Horror to Hope, Surviving a Traumatic Motorcycle Accident
When she was just 22 years old, Elizabeth Banks was living the life of many people that age – moving away from home, spending time with friends and enjoying a bit of a party lifestyle.
That is, until a devastating motorycyle accident changed everything.
She had relocated to Gainesville, Florida, from Nova Scotia, Canada, and was working full time as a server in a restaurant. Like many young people on their own for the first time, she would go out drinking with her friends, occasionally excessively.
https://www.enjuris.com/blog/m