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Personal Injury


Tuesday, April 18, 2017 @ 11:13 AM

B.C. residents can dial up free legal advice on April 22

The Canadian Bar Association, B.C. branch, is hosting a Dial-a-Lawyer Day on April 22 as part of Law Week celebrations. ... [read more]

Thursday, April 13, 2017 @ 10:25 AM

With parental waivers, due diligence is key

Parental waiver forms are intended to protect risky businesses from lawsuits when kids get injured. When accidents happen and tragedy strikes, however, the effectiveness of the waiver is often questioned. In Canada, there does not seem to be a consistent answer. Now a decision from the Court of Appeal of New Brunswick simultaneously suggests parental waivers are enforceable — and potentially not worth the paper they are written on. ... [read more]

Thursday, April 13, 2017 @ 8:14 AM

WORKERS’ COMPENSATION - Benefits - Entitlement to benefits - Claims - Claims procedure - Compensability of injuries - Permanent total disability - Constitutional issues

Appeal by a worker from the denial of his claim for an award of permanent physical impairment (PPI) resulting from work-related injuries. The worker was 58 years of age. He worked as a truck driver for 25 years before suffering work-related injuries in January 2004. He attempted to return to work on subsequent occasions, but was unsuccessful. He applied for loss of earning benefits under the Workers’ Compensation Act, but the Commission denied his claims. The Appeals Tribunal reversed the decision. It found that the worker was totally disabled and it ordered the Commission to process the claim for workers’ compensation and to pay his benefits retroactively to the date of the accident. In July 2013 and 2014, the worker applied for a PPI award. The Commission denied the application finding that he was not entitled to a permanent physical impairment assessment, which was a condition precedent to any such award, as there was no evidence of irreversible loss. The worker’s benefits under the Act were reduced by 10 per cent of his CPP disability payments. The worker requested that the Commission offset the legal fees he incurred in processing his application for CPP disability benefits and prosecuting his appeal from the initial denial. The Commission denied the request. The worker appealed to the Tribunal on the grounds that features of the workers’ compensation regime dealing with chronic pain were discriminatory. He also argued that the Commission erred in law in deducting the gross amount of CPP disability payments from his workers’ compensation benefits, as he incurred legal fees to obtain those payments. Shortly before the hearing of the appeal, the Tribunal referred the worker for a PPI assessment on the basis that it was a condition precedent to the sought-after award and therefore, a determination of the constitutional challenge was pre-mature. The worker appealed, arguing that the constitutional issue was ripe for determination and that the Tribunal erred in postponing its determination to a date after the PPI assessment. ... [read more]

Tuesday, April 11, 2017 @ 11:53 AM

Lenczner Slaght hires counsel, associate

Patrick Wright has joined Lenczner Slaght as counsel, while Jonathan Chen is the litigation firm’s newest associate. ... [read more]

Friday, April 07, 2017 @ 10:53 AM

Litigation funding for high-stakes commercial suits coming | Julius Melnitzer

In a sure sign of desperate times for general counsel and in-house law departments, litigation funding is coming into its own — although it is just starting make a dent in Canada. The desperate part is that cost constraints are failing. It’s not that GCs haven’t been trying. The legal press has been awash for some years now with self-congratulatory back-slapping so rampant it risks breaking the collarbone of the backslappers themselves.   ... [read more]

Thursday, April 06, 2017 @ 8:34 AM

PRACTICE AND PROCEDURE - Charge to jury - Jury's answers - Grounds for appeal

Appeal by the defendant from jury determinations in a personal injury action. The defendant traveled westbound on a two-lane road. The plaintiff traveled eastbound. The plaintiff's vehicle was struck from behind by another eastbound vehicle, causing it to spin, flip, and cross into the westbound lane, colliding with the defendant's vehicle. The plaintiff settled a claim against the driver who caused the first collision, and settled quantum of damages with all involved. The sole issue at trial was whether the defendant was negligent for the second collision with the plaintiff's vehicle. A jury determined that the defendant's negligence caused or contributed to the second collision. The defendant appealed. ... [read more]

Monday, April 03, 2017 @ 11:42 AM

CIVIL PROCEDURE - Actions - Availability - Right of action

Appeal by Godbout from a judgment of the Quebec Court of Appeal setting aside a decision concluding that her civil action against the medical staff who treated the injuries she had suffered in an automobile accident was admissible and appeal by Gargantiel from a judgment of the Quebec Court of Appeal affirming a decision that dismissed his claim against Sûreté du Québec officers who were allegedly negligent in searching for the crashed vehicle he was in. Godbout and Gargantiel were both seriously injured in automobile accidents and were compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (SAAQ) under the Automobile Insurance Act (Act). In separate actions, they sought reparation for the injuries caused by the alleged subsequent faults of third parties. Godbout was involved in a serious automobile accident in January 1999. She was treated by Pagé, an orthopaedic surgeon, and the other respondents. After suffering from advanced compartment syndrome and muscle compartment necrosis that led to amputations following the surgery, Godbout filed a motion to institute proceedings against them for failing to act in accordance with good practice in treating her and causing separate injuries that had not been suffered in the automobile accident. The trial judge concluded that s. 83.57 of the Act did not preclude her action, but the Quebec Court of Appeal allowed the appeal and set aside the trial judge’s decision. In October 2009, Gargantiel lost control of his automobile. Even though the OnStar company, having located Gargantiel’s vehicle by satellite, contacted the Sûreté du Québec’s call management centre and provided it with the GPS coordinates of the vehicle, officers were unable to locate it and decided to give up the search. Gargantiel was found by a passerby 40 hours after the accident with severe hypothermia and other serious bodily injuries that led to the partial amputation of his leg. He claimed damages from the Attorney General of Quebec (AGQ) for injuries linked to the negligence of the officers who had participated in the search for his car. The trial judge granted the AGQ’s motion to dismiss, and the Court of Appeal dismissed Gargantiel’s appeal. The Supreme Court of Canada considered whether a person injured in an automobile accident who was eligible to receive compensation under the Act but whose condition was aggravated as a result of a fault committed by a third party could bring a civil action against the third party to seek compensation for bodily injury resulting from that subsequent fault. ... [read more]

Monday, April 03, 2017 @ 8:55 AM

Don’t ignore theory of damages in class actions

Although theories of liability such as a government’s negligence, a bank’s breach of contract or an insurance company’s bad faith usually get the legal headlines, sometimes the theory of damages will be the most important issue in a class action for the following four reasons:  ... [read more]

Friday, March 31, 2017 @ 9:01 AM

Auto dealers now have a duty of care to thieving minors

A recent decision from the Ontario Court of Appeal affirmed that when it comes to tort law, “sentiment is not principle.” The duty of care operates independently of the illegal or immoral conduct of the injured party. ... [read more]

Thursday, March 30, 2017 @ 8:33 AM

DISCRIMINATION - Types of discrimination - Constructive or adverse effect

Application by Peart for judicial review of a decision of the Human Rights Tribunal that dismissed his discrimination application. The applicant filed his complaint after the Office of the Chief Coroner declined a request to conduct a discretionary inquest into the workplace death of his brother, a migrant farm worker from Jamaica who was employed under the Seasonal Agricultural Workers Program (SAWP). Police had investigated the death and found the brother had not followed the safety training he had received. The Tribunal found s. 10(5) of the Coroners Act did not discriminate against migrant farm workers by denying them the benefit of mandatory inquests into preventable workplace fatalities. It found that s. 10(5) of the Act had a disproportionate impact on migrant workers. It concluded the purposes underlying the requirement for mandatory inquests in accidental workplace deaths in mining and construction, but not in agriculture, were non-discriminatory. ... [read more]