Focus On
NEW In-House Counsel | Insurance | Intellectual Property | Immigration | Natural Resources | Real Estate | Tax

Personal Injury


Thursday, December 01, 2016 @ 7:00 PM

Damages - TYPES OF DAMAGES - For personal injuries - Loss of earning capacity - Non-pecuniary loss - Pain and suffering

Appeal by the defendant from damages of $100,000 for loss of future income earning capacity and $85,000 for non-pecuniary damages. The respondent suffered chronic back pain as a result of a 2010 motor vehicle accident. The respondent was 17 years old at the time of the accident and 23 years old at the time of trial. At the time of trial, the respondent was working in a law firm in an administrative support position earning $36,000 per annum. The doctors agreed and the trial judge found that the respondent might require multiple rhizotomy treatments and one medial block over her lifetime. The trial judge found that the temporary worsening of symptoms after rhizotomy treatment might limit her from working for four to six weeks each time the procedure was performed. The trial judge also accepted the medical evidence that the respondent might need extended maternity leave in the event she raised a family. The trial judge accepted the respondent’s evidence that she was bothered daily by lower back pain that came on during periods of prolonged sitting or standing and that interrupted her sleep every night. ... [read more]

Thursday, November 03, 2016 @ 8:00 PM

Danger on a plate

As we become more knowledgeable about allergies and food intolerances, their discovery is more accessible and therefore a greater part of society is found affected by it. Whether it is for health, religious or social reasons, we all know someone who cannot eat gluten, lactose, fish and seafood, nuts, legumin, eggs, meat or other animal byproducts.  ... [read more]

Thursday, November 03, 2016 @ 8:00 PM

Making chronic pain believable

In over 10 years of providing expert medical testimony in chronic pain cases and speaking to counsel, I’ve learned that the perceived believability of the plaintiff’s pain condition is the most important factor in settling a file or gaining the confidence of the court. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Car dealer's liability for injuries to teen who stole vehicle

The Court of Appeal for Ontario has confirmed that a car dealership owner owed a duty of care to a minor who was involved in stealing a car from his garage and dealership. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Proceedings - Appeals and judicial review

Appeal by the defendants in personal injury litigation from a judgment awarding damages to the plaintiff. The plaintiff suffered injuries in motor vehicle accidents that occurred in November 2009, March 2010, and October 2012. The plaintiff’s three actions arising from the accidents were tried together. The defendants were the owners and operators of the vehicles involved in each accident. Liability was admitted for the first two accidents and determined in the plaintiff’s favour in respect of the third accident. The plaintiff, age 52, developed chronic pain syndrome that rendered her unable to continue her employment with an industrial laundry company or carry on as her family homemaker and caregiver for her grandchildren. Her condition was unlikely to resolve. The plaintiff was awarded damages of $90,000 for non-pecuniary loss, $136,700 for past wage loss, $300,000 for lost earning capacity, $35,000 for past lost housekeeping capacity, $35,000 for future lost housekeeping capacity, $43,000 for costs of future care, and special damages of $1,465. The defendants appealed, arguing the amounts provided for loss of housekeeping capacity were excessive, and that aspects of the future costs of care award were not reasonable or medically justified. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Government Law - CROWN - Actions by and against Crown - Negligence by Crown - Practice and procedure - Discovery

Application by the plaintiff, Lindgren, for leave to appeal a chambers order regarding an examination for discovery. The underlying litigation arose from a 2008 motor vehicle accident. The plaintiff, now age eight, suffered devastating injuries. Parks Canada, a federal Crown agency, was one of the parties to the litigation. The plaintiff alleged Parks Canada was negligent for failure to ensure the reasonable safety of the highway, failure to salt, sand or plow the highway, and failure to properly maintain the highway and respond to dangerous road conditions. The plaintiff sought to examine Bergeron, one of the two snow plow operators on duty just prior to the accident. Parks Canada opposed the examination of Bergeron and instead designated DeMone, the associate director for highway service, as its representative. Under s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations, the Crown was entitled to designate its representative to be examined. The chambers judge found that Parks Canada’s proposed designate was not demonstrably unsatisfactory. The plaintiff sought leave to appeal. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Civil procedure - Parties - Class or representative actions - Certification - Common interests and issues - Members of class or sub-class - Procedure - Representative plaintiff

Appeal by the plaintiff, Warner, from refusal of certification of her proposed class action against the defendant, Smith & Nephew. The defendant was the manufacturer of the Birmingham Hip Resurfacing System (Birmingham System). The plaintiff had the Birmingham System implanted in her hip joint in a 2005 surgery. Three months later, the plaintiff noticed clicking and popping in the joint. A blood test showed elevated levels of cobalt. By 2012, the ion levels in the plaintiff’s blood were toxic. She consequently underwent further surgery to remove the Birmingham System in favour of a total hip replacement and bone graft. In 2013, the plaintiff commenced an action against the defendant for damages and applied for certification as a class action. Proposed class members were individuals in Canada who had the Birmingham system implanted and all qualifying dependants. The certification judge concluded that although the pleadings disclosed a cause of action, the other criteria for certification were not met. There was not an identifiable class of two or more persons, the claims did not raise a common issue, a class proceeding was not a preferable method for resolving the common issue, and the plaintiff was not a proper representative plaintiff. The plaintiff appealed. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Negligence - Duty and standard of care - Standard of care - Causation - Causal connection

Appeal by Ketler from decision dismissing Ketler’s action for damages for personal injuries. Ketler drove his vehicle through the side of a wooden bridge after swerving to avoid hitting a deer. In 2007, the Province of Nova Scotia implemented a new standard for timber bridges in the province (PR5076). The bridge was scheduled to be upgraded in 2014. Ketler commenced an action against the Province and alleged that the Department of Transportation and Infrastructure Renewal was negligent in the monitoring, maintenance, and failure to upgrade the structure. The trial judge found that the Province was not obligated prior to the accident to bring the bridge in line with the new standard, but rather than the Province’s obligation was to maintain the bridge to its original condition. The trial judge found that less than 50 percent of the barrier posts required replacement. In accordance with PR5076, this finding called for the barrier to be reinstated to the standard which applied to the original construction. The trial judge ultimately concluded that the Province failed to maintain the bridge to the standard of its original construction, and as such, breached its duty of care to Ketler. The trial judge further found that Ketler failed to establish causation on the basis that had the bridge been in its original condition, the vehicle would have likely broken through anyway. Ketler submitted that the trial judge erred by wrongly applying the legal test for causation, and erred in determining the standard of care to be met by the Province. ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Causation not proved, court back dismissal of case

Not applicable ... [read more]

Thursday, September 15, 2016 @ 8:00 PM

Health Law - Public health - Animals

Motion by Szalas to quash an appeal by Chirico, Medical Health Officer for the North Bay Parry Sound District Health Unit, from the dismissal of Chirico’s motion for a contempt finding against Szalas. Szalas owned a dog that bit people on four occasions. Chirico ordered him to relinquish the dog to the Humane Society to be euthanized. Szalas appealed from the order and, on conditions which included having the dog leashed and muzzled, obtained the return of the dog to him pending his appeal. Szalas was alleged to have breached the more serious of the conditions designed to keep the public safe from the dog pending the appeal, and was required to turn the dog over to the Humane Society. Szalas refused. A further order was issued with a deadline for Szalas to turn over the dog, failing which would result in the dismissal of Szalas’ appeal. Szalas failed to comply with the deadline and his appeal from the euthanasia order was dismissed. Szalas refused to relinquish the dog to an SPCA member who attended his residence to retrieve it. Chirico moved for a finding the Szalas was in contempt of the euthanasia order. The judge held that while Szalas deliberately sent his dog to the United States to avoid complying with the order, he did not fail to comply with the order to turn over the dog to the Humane Society, as it was the SPCA that attended to pick up the dog. Chirico argued on appeal that the judge erred in taking a formalistic approach to the issue of whether Szalas complied with the terms of the euthanasia order. ... [read more]