The answer to this question is driven by factual circumstances.  Did you child fall during the winter? Spring? Summer? Fall? If it was winter, perhaps the answer to your question is yes, the homeowners should have taken better care of their driveway if it was icy.

In short, an occupier (if you want to know what an occupier is click here) owes a duty of care that is general to everyone visiting on his or her property.  This duty of care is mandated by the Occupiers Liability Act.  The Occupiers Liability Act is a statute which governs the laws of injury on premises in Ontario.

A specific section of the Occupiers Liability Act provides that the occupier of a premises owes a duty of care to take such care and all the circumstances of the case (meaning circumstances of your case – each case is different) is reasonable to see that people entering on the premises, and the property that those people bring on to the premises are reasonably safe while on the premises.  This is a provincial statute, in this section, simulates occupiers liability with the law of negligence.  The duty of negligence is “to take reasonable care to avoid acts or omissions which you can reasonably foresee will likely injure your neighbor”.  As a result the wording on section 3(1) of the Occupiers Liability Act owes this duty toward anyone entering onto a premises.

What is “foreseeable”?  The answer is simple and complicated.  Forseeable comes from the term foreseeability. In the past, foreseeability was part of a formula to determine liability within the context of negligence.  Sometimes, in certain context, liability for negligence requires a breach of duty of care rising from a reasonably foreseeable risk of harm to one person created by the act or omission of another.  It depends on what a reasonable person would anticipate, not a seriousness of your injuries or the depth of a defendant’s pockets.  Rather it is a test to determine liability – within the context of negligence. So what does all of this mean?  It means that the duty is to take reasonable care to avoid acts or omissions which one can “reasonably foresee” – i.e. is someone going to fall in your icy drive way if you don’t salt on a regular basis – will injure someone.

All facts in every case are different.  If it is a warm winter and there is no ice does one need to take preventative measures to combat the possible incident of injury in one’s drive way? Is there a reasonable duty owed to run and salt every single time the drive way freezes, 24 hours a day, during a warm winter?  Another important thing to understand is that an occupier is not an insurer.  It doesn’t mean that every time someone slips and falls liability will be imposed.  There is no standard in perfection that a home owner needs to take, rather the standard is one of reasonableness.  An occupier, or a home owner is in the context of this question, does not owe a duty to provide safety in all circumstances but rather a duty to use reasonable care to prevent injury in their drive way – which is known or ought to be known.

Has the winter been a tempestuous winter with incessant blizzards with consistent temperatures below zero? Then the home owner would maybe have to explain his failure in his duty to provide safety to people entering on to his drive way, as in your child delivering newspapers.  If it is a winter like this winter, with not a single incident of ice that I can remember, then it may not be foreseeable that someone would slip and fall in his drive way.

Another key to remember within the framework of the occupier’s liability act and negligence is “positive duty.”  There should always be some positive duty to ensure that people that enter your premises are reasonably safe.

It is always best to leave the duty of care, and the standard of that duty up to a lawyer to determine.  It is important that you consult a personal injury specialist to determine whether or not reasonable foreseeability exists and whether or not the Occupiers Liability Act may have been breached.  Only a qualified personal injury lawyer will be able to tell you if you have a case for damages against the home owner that caused your son or daughter’s injuries.

Contact us
If you or a loved one has suffered a serious injury in a slip and fall or by any other means, we are Hamilton personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.   To contact one of our Hamilton personal injury accident lawyers concerning ta slip and fall accident, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims
If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex.  We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario.  After a serious accident or collision, we have lawyers that will visit in home or in hospital.  Do not worry where you are located.  Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.

This is another wrongful dismissal case with a lot of interesting issues.   The case of Olivares v. Canac Kitchens  one of many reported wrongful dismissal cases against Canac Kitchens (There must be ten at this point…) since it shut the doors of its manufacturing department in 2008. The plaintiff, Mr. Olivares was terminated after 24 years of service with the Defendant Canac. He was paid 32 weeks as his basic termination pay and severance entitlement under the Employment Standards Act. They continued his benefits for 8 weeks.  When he was terminated he was 48 years old, a shipping supervisor and oversaw a team of loaders and coordinators in the shipping department making $93,000.00 a year.

The interesting part of the case is that Mr. Olivares communicated almost exclusively in Spanish over his 24 years of employment.  It was his first job upon his arrival from Chile 24 years ago. Counsel submits that these factors significantly disadvantaged the plaintiff in attempting to re-enter the job market.

The plaintiff referred to other decisions involving Canada, in particular Brito v. Canac Kitchens 2011 ONSC 1011 (CanLII), 2011 ONSC 1011 (S.C.J.) where the court found the appropriate notice to be 22 months for an employee who held the position of Team Leader which is acknowledged to be a position less than supervisor, with 23 years of experience and was 60 years old at the time of termination.

He also referred to Cardenas et al v. Canac Kitchens 2009 CanLII 17976 (ON SC), 2009, CanLII 17976 (Ont. S.C.J.) wherein one of the plaintiffs, Mr. Silva, who also held the position of Team Leader, was 43 years old, had 24 years of service, was awarded compensation based on 26 months’ notice.

The defendant submitted that that an employee holding a non-managerial position should generally be entitled to less notice than a senior manager or specialized employee holding a high rank in the organization.  Counsel for the defendant proposed that 18 to 24 months notice was generally reserved for very senior employees or executives. While on the one hand he proposed that 32 weeks for which the plaintiff received notice and severance constituted adequate pay in lieu of notice in the circumstances of this case.  In the alternative – if that was not suitable, the appropriate scope of reasonable notice should be 12-15 months.

Other Issues

In addition to the severance there were a lot of interesting issues in this case that we often get asked as lawyers:

1. Are damages should be calculated based on the plaintiff’s annual base pay, without reference to any overtime pay that he may have earned in past years?
2. Should damages should include the cost of lost employee benefits? and;
3. Should money earned during during the statutory notice period under the ESA should be deducted from damages awarded to the plaintiff above and beyond his ESA minimums?

How was reasonable notice determined? 

Based on the circumstances of the case, and comparable caselaw, Judge Lederman found that the appropriate notice period in the circumstances was 20 months.

Important to note was Justice Lederman’s statement referring to the Court of Appeal case of DiTomaso and Crown Metals.  Lederman J noted that:

 “It is clear from DiTomaso v. Crown Metal Packaging Canada LP 2011 ONCA 469 (CanLII), 2011 ONCA 469 at paras. 22-23 that there is no upper limit cap in respect of the notice period for non-managerial employees.”

 He decided reasonable notice in reference to all of the case’s particular facts and having regard to the factors set out in Bardal, in particular, the character of the employment in issue, the length of service of the employee, the age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee.

Lederman J. chose not to tinker with the Bardal factors and chose not to emphasize any importance of the character of the Mr. Olivares’ employment that would minimize the reasonable notice to which he was entitled to.

What do we take from this?

Since Keays more and more caselaw is obviously veering away from individualizing the specifics of the Bardal test. In Di Tomasso, the Court of Appeal referred to Keays case and noted that “[n]o one Bardal factor should be given disproportionate weight” – this is particularly in a case like ours, being that if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment.

In the case of Bramble, Judge Drapeau J.A. put it this way, “The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy”.

Other Issues

Judge Lederman noted that overtime pay is an integral part of the anticipated income of the terminated employee and should be considered as compensable damages and ordered that payment in lieu of notice be calculated based on total earnings inclusive of overtime.   He foudnd that Mr. Olivarez was entitled to an amount of $250 per month during the notice period for quantified benefits, except for 8 weeks that were covered by the defendant during the minimum notice period.  The Defendant Canac was also not allowed to deduct mitigation income during that notice period from other damages relating to the notice period beyond the ESA time frame.

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If you have an employment law issue or you need a severance package reviewed, we are Ontario employment law lawyers that can help.   We have 2 employment law offices to serve you better. We have employment law lawyers in Burlington and employment law lawyers in Milton.  To contact one of our wrongful dismissal  lawyers concerning an employment law issue, please fill in the contact form and a lawyer will try to reply to you within 5 hours during regular business hours. 

In Ontario, unless you’re injured on government or municipal property, the law surrounding slip and falls is mandated by statute called the Occupiers’ Liability Act.  For an injured person not involved in the law, the Occupiers’ Liability Act can be quite complicated.

From a legal perspective establishing liability against the place where you fell is absolutely subject to this Act.  So does it matter where you slipped and fell?  You bet. It matters because the Occupiers Liability Act defines what an occupier is.  For example section 1 of the Occupiers Liability Act states that an occupier is:

a)       Is in physical possession of the premises;
b)       Has a responsibility for and control over the condition of the premises;
c)       Has a responsibility for and control over the activities on the premises; or
d)       Control over people or persons allowed to enter the premises.

Could there be more than one occupier of a premises?  Absolutely.

 Think of a retail tenant in a mall.  Could the retail tenant and the landlord both be occupiers?  An owner of the property could an occupier, a superintendant, a manager, a tenant or a sub-tenant or a sub-lessee could be an occupier.  It could be a contractor in charge of the premises.  It could be anyone that had responsibility for and control of the condition or activities on the premises where you are injured.

 A seminal is Mortimer v. Cameron from 1992.  In that case the court found that both the landlord and the tenant of an apartment were occupiers under the Liability Act.  They found that both the tenant and the landlord had responsibility for and control over the conditions (there was a problem with the exterior stairwell that collapsed) and activities in the apartment, namely drinking alcohol and roughhousing outside the tenant’s apartment on the exterior stairwell.  If you slip and fall on your neighbor’s icy driveway, your neighbor will most likely be an occupier.  If you slip and fall in your neighbor’s driveway and your neighbor is renting the house from a landlord that has maintenance obligations under the Landlord and Tenant Act, the landlord may also considered an occupier of the premises, although he or she did not have physical possession of the premises.  If you are walking in front of a retail store at a mall and that retail store is under renovation and a temporary wall falls on you, the contractor, retail outfit and the mall could all be considered occupiers given they had control over the condition of the premises and activities of the premises.  If you are walking through a department store and a merchandise aisle falls on you because it was not properly erected, then that retail outfit will most likely be an occupier.

The Occupiers Liability Act does not apply to the Crown or any municipal corporation, where the entity is an occupier of a public highway or public roadway.  A highway includes a sidewalk.  A case against the Ontario Crown or municipality on a road or sidewalk is governed by the law of negligence.

 If you have suffered injuries in a slip and fall in Toronto, a slip and fall in Mississauga, a slip and fall in Oakville, a slip and fall in Milton, a slip and fall in Burlington or a slip and fall in Hamilton or the entire Halton Region and you wish to discuss who may be at fault for causing you injuries, please do not hesitate to contact our office at your convenience.  We will try to get back to you within two to five business hours during regular business days.  If you have suffered a very serious injury we are available seven days a week to consult with you.  If you have lost a loved one by wrongful death on someone else’s property then we are also available seven days a week to discuss your options with you.

 Contact us
If you or a loved one has suffered a serious injury in an slip and fall accident or by any other means, we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.  We have 4 Toronto Area law firm offices conveniently located in Burlington, Milton, Oakville and Mississauga.  To contact one of our personal injury accident lawyers concerning the injury to you or death of a loved one, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims
If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex.  We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario.  After a serious accident or collision, we have lawyers that will visit in home or in hospital.  Do not worry where you are located.  Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.

 Judge Gans, who was also the Judge in the Del Rio case, referred to the Defendant’s argument that that in order for a Plaintiff to succeed in a motion of this nature, the plaintiff has to establish that:

A) the impairment from which he suffered did not create a mere inconvenience to daily life and was something more than just tolerable;
B) the impairment substantially interfered with the ability of the injured person to perform his or her daily activities;
C) the seriousness of the impairment must be establish in relation to the particular person who sustained the impairment as well as to the condition and situation in life of the particular person; and
D) regards should not be limited to any particular aspect of the plaintiffs impairment but rather the totality of the circumstances in the cumulative effects that such has on her life.

Judge Gans states that he was not sure that a quantitative analysis, as might be suggested by the expression “substantial interference” with one’s enjoyment of life, was still the applicable standard in an analysis of this nature in light of the decisions of the Ontario Court of Appeal.

In referring to Brak v. Walsh he found that the statement of the Court of Appeal and its endorsement of Brak v. Walsh was the most instructive in respect to the matter before him.  That statement, as set out by the Court of Appeal, was as follows:

“The requirement that the impairment be serious may be satisfied even although the plaintiffs, through determination, resume the activities of employment and the responsibilities to the household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children and engage in recreational pursuits.”

Gans J. did not refer to the aspects of employment given that he was satisfied that Ms. Nicholas’ employer had accommodated her by eliminating certain job functions.  She was able to perform her assigned tasks without too much difficulty.  The judge therefore was left to determine whether the continuing pain alleged by Ms. Nicholas seriously affected her enjoyment of life.

 He was satisfied that on a balance of probabilities, the plaintiff Nicholas suffered from residual symptoms that created significant problems on a frequent basis caused by the car accident, particularly when she sits for periods of time and does not and cannot stretch.  He noted that he pain and demeanor from the car accident did not create an exaggeration of hyperactivity.  He also was satisfied that the plaintiff’s current pain and consequences were affected after two pre-accident “life joys” were affected, namely her ability to fully experience the intimacy of sleeping with her husband, day to day, and entertaining her extended family on a weekly basis, without the help from others.

Gans J. found that if one cannot enjoy the comfort and security of sharing ones bed with a life partner because of a car accident, then that would obviously constitute a loss of enjoyment of life.  Secondly, from a cultural and psychological standpoint, family was of great importance to her and weekly gatherings were at the very essence of her complaints.  To miss these weekly gatherings would impose, if only unconsciously, one’s own values in a situation for which one might not have sufficient understanding.

 On a balance of probabilities, Justice Gans found that the plaintiff’s injuries cause by the car accident crossed the threshold for these above reasons.

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If you or a loved one has suffered a serious injury in an accident or crash or by any other means, we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.  We have 4 Toronto Area personal injury law firm offices conveniently located in Burlington, Milton, Oakville and Mississauga.  To contact one of our personal injury accident lawyers concerning the injury to you or death of a loved one, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

]]> http://torontopersonalinjurylawyers.ca/2012/02/07/car-accident-threshold-case/feed/ 0 http://torontopersonalinjurylawyers.ca/2012/01/29/del-rio-v-lawrence-threshold-case-employment-issues-and-loss-of-enjoyment-of-life/?utm_source=rss&utm_medium=rss&utm_campaign=del-rio-v-lawrence-threshold-case-employment-issues-and-loss-of-enjoyment-of-life http://torontopersonalinjurylawyers.ca/2012/01/29/del-rio-v-lawrence-threshold-case-employment-issues-and-loss-of-enjoyment-of-life/#comments Mon, 30 Jan 2012 04:52:16 +0000 admin http://torontopersonalinjurylawyers.ca/?p=2385 Car Accident Compensation and the Insurance Threshold.

This is another threshold case from 2009. For those of you that do not recall what the “threshold” is with respect to car accidents, please click here. In the case of Del Rio v. Laurence the plaintiff was involved in a car accident onOctober 5, 2001.  At the conclusion of the trial the defendant brought a Motion for an order dismissing the action on the grounds that the plaintiff failed to establish that she sustained a permanent and serious impairment of an important physical, mental or psychological function.

Judge Gans noted that the burden of proof was on the plaintiff to establish a balance of probabilities that she fell within one of the Bill 59 exceptions.  The accident happened in 2001 and hence the operative regime under which to consider the threshold was Bill 59.  The test to be applied was three fold:

A) has the injured person sustained a permanent impairment of a physical, mental or psychological function;

B) if yes, is the function which is permanently impaired an important one;

C) if yes, is the impairment of the important function serious. 

The judge made a few observations.  There was not a substantial interference with Ms. Del Rio’s ability to continue her regular employment inFlorida, particularly since it appeared that he employer was accommodating her, without penalty, her occasional absences from work.

• The plaintiff suffered from chronic pain syndrome which was acknowledged by both the plaintiff and defendant experts
• Judge Gans noted that the defendant’s lawyer acknowledged that chronic pain syndrome was an impairment however, he argued that the impairment was neither permanent nor serious and that the plaintiff had failed to establish a balance of probabilities that the chronic pain syndrome would continue for an indefinite period of time or that the chronic pain syndrome substantially interferes with her usual activities of daily living.

Judge Gans referred to the decisions of May v. Cosola and Brak v. Walsh and noted that it was beyond dispute that the motion court was obliged to consider whether or not the continuing pain seriously affected the plaintiff’s

• Enjoyment of life;
• Ability to socialize with others;
• Have intimate relations;
• Enjoy her children; or
• Engage in recreational pursuits

Importantly, Judge Gans noted that this analysis must be undertaken even if a motions judge concludes that the plaintiff can otherwise “function” at work and take care of him or herself.

How did Judge Gans look at this case? 

In applying the cases of Cosola and Walsh, Judge Gans was of the opinion that the plaintiff Del Rio’s activities of daily living outside of work were curtailed markedly.  This was supported by friends and family, with an account of her life pre and post accident.

Although her pre-accident routine was not nearly as active as the cases of Cosola and Walsh, Judge Gans noted that:

“I accept the plaintiff’s evidence that while she can work and attend to her personal needs and grooming, she more often than not returns home from work effectively unable to do anything but lie down as a result of the pain caused by her chronic pain syndrome.”

The conclusion was that her condition had substantially interfered with her quality of life and continued to do so.  The judge refuted the evidence of Dr. Sorac who noted that the plaintiff was still functional, but agreed in cross-examination that symptoms like neck pain, intermittent occipital headaches, pain in the left shoulder, low back pain, depression and lack of sleep would affect the plaintiff’s quality of life.

With respect to whether or not the impairment was permanent, the judge noted that permanency meant that the impairment continued since the accident and was expected to continue without substantial improvement, indefinitely.

The lawyer for the defendant argued that the plaintiff had failed to prove this constituent element on a balance of probabilities because there was no physiatrist or psychologist or psychiatrist that testified that her condition would continue indefinitely.  Several cases were provided to Judge Gans in support of his argument.

Judge Gans disagreed and noted that he was not persuaded that when one suffers from chronic pain syndrome, one is obliged to lead evidence of a physiatrist or a psychologist/psychiatrist in support of one’s claim in respect of the issue of permanence.  An orthopedic surgeon, such as the one that testified in this case, was more than well equipped to render an opinion on the issue.  Even more important was that the defendant chose not to cross-examine him on his report and that portion of his report remained unchallenged.

Judge Gans agreed that the plaintiff did suffer from a permanent and serious impairment of important physical, mental or psychological function.

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If you or a loved one has suffered a serious injury in an accident or crash or by any other means, we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.  We have 4 Toronto Area law firm offices conveniently located in Burlington, Milton, Oakville and Mississauga.  To contact one of our personal injury accident lawyers concerning the injury to you or death of a loved one, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims

If you have been injured or if a family member has been killed in Ontario by the fault of another, please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex.  We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario.  After a serious accident or collision, we have lawyers that will visit in home or in hospital.  Do not worry where you are located.  Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.

A very large part of our practice involves helping victims that have been injured in car accidents. Very common and re-occurring injuries that I see as an injury lawyer involve injuries to the rotator cuff muscles.

What is the rotator cuff?
The rotator cuff is a group of four muscles that surround the shoulder joint. The muscles are called the infraspinatus, supraspinatus, subscapularis, and the teres minor. Each of the rotator cuff muscles insert at the scapula (the big shoulder bone) and has a tendon that attaches at the humerus (the big upper arm bone).  The rotator cuff muscles function to help you raise your arm up and down from the front, up and down from to the side and rotate your arm outward and inward. Basically, the rotator cuff muscle aid the shoulder’s ability to have a wide range of motion –especially when compared to other joints in the body.

So why are the rotator cuff muscles often injured in car accidents?
99% of the rotator cuff injuries that I see in car accidents are when victims are aware that the accident is inevitably going to occur. You have heard about accident victims “tensing up” when they see an approaching vehicle. They may look in their rear view mirror an instant before impact in response to the sound of tires skidding on the pavement. Because they are expecting the crash to occur they tense up their bodies and often times brace their hands on the wheel and straighten out their arms.  The rotator cuff muscles are no longer in a relaxed state, but rather in an active, tense and apprehensive state.  Because of this they absorb a large amount of the force of collision impact – especially with rear end collisions.

How are the rotator cuff muscles often injured in car accidents?
Rotator cuff injuries normally, if not all of the time, involve tears of one or more of the rotator cuff tendons/muscles as a result of trauma. These tears are called “acute tears” (as opposed to chronic tears.) The tears are normally documented as partial tears or full thickness tears.   Full thickness tears, as I have learned, can also be defined clinically as the total detachment of the tendon from the bone, such as the humeral head.  Most acute tears caused in car accidents are tears of the supraspinatus tendon.   The following is still picture taken from an animation video that depicts a partial rotator cuff tear.

The symptoms that I see among accident victims are always quite similar. There is a normally a tremendous amount of pain with movement – especially abduction with external rotation or elevation with internal rotation. The entire condition is very discomforting and uncomfortable for victims.

What normally happens?
I am not a doctor, and I am not providing medical advice.  From what I am told by doctors that we have worked with in the past is the prognosis varies depending on the severity of the tears, but  normally it is not good. Treatment is categorized as non-operative and operative. With non-operative treatment patients are normally prescribed medication for pain relief such as anti-inflammatories.  Steroid injections are also common. A physical therapy treatment program can be recommended for strengthening.

Operative treatment, or surgery, is sometimes recommended depending on the age of the victim and the severity of tear and victims who’s non-operative treatment is simply not working. Operative treatment can be arthroscopic vs an open repair, depending on the factors assessed by your orthopedic surgeon.

Like any other medical treatment offered in this country, neither option carries guarantee of success. Some rotator cuff tears may simply not fully heal. Stiffness, weakness, and chronic pain may still be present.

If you have been in an accident, and you feel pain in your should please go see your family doctor immediately and get a proper diagnosis of your possible injury. Don’t think of anything else.

If the injury was caused by the negligence of another party, person or organization then please inform yourself of your rights. A rotator cuff injury is a very serious injury that can  interfere with your employment, self-care and daily activities.  Please inform yourself of your rights.

Contact us
If you or a loved one has suffered a serious rotator cuff  injury in a car accident or crash or by any other means, we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week. We have 4 Toronto Area law firm offices with lawyers that are conveniently located in Burlington, Milton, Oakville and Mississauga. To contact one of our personal injury accident lawyers concerning the injury to you, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims
If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex. We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario. After a serious accident or collision, we have lawyers that will visit in home or in hospital. Do not worry where you are located. Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.

**The above is not to be constituted as medical or legal advice. We are not doctors and we do not provide legal advice over the internet, or by phone. The above is case commentary on injury.

An interesting case came out of the Court of Appeal last year which dealt with injuries that a person sustained while visiting a residential rental property.

In the case of Taylor v. Allen, the Plaintiff, Lorne Taylor, attended a party held by Bobby Allard and Joyce Allen at their residence which they rented from Joyce’s son Robert.  Robert did not live at the property but rather owned it and was the landlord by law.  He had constructed a fire pit in the backyard which had a diameter of approximately eight and a half feet.  It was surrounded by cinder blocks that were approximately five and a half inches wide, fifteen and three eighths inches long and seven and a half inches in depth.

Lorne arrived at the party a bit later and was impaired.  He joined the guests around the bonfire and approximately half an hour after his arrival two women started fighting, which in turn caused him to start backing up.  He then tripped over the cinder block, fell into the fire pit and was very badly burned.  The case went to court and his compensation for damages was the assessed at $265,000.00.

The judge found that the cinder blocks around the fire pit did constitute a danger.  He found fault by the tenants, as occupiers of the premises.  He held them liable for fifty percent of the damages suffered by Lorne Taylor.  The judge also found Lorne fifty percent at fault for his own injuries.  The issue was, for the Court of Appeal, was that the judge that heard the case did not find the respondent landlord at fault, and that he owed no duty of care to the plaintiff for his injuries.  This is what was at issue in this case.

For readers that are not aware, injuries which occur on property in Ontario are governed by a statute called the Occupiers’ Liability Act.  In this case, the Judge found that the occupiers were the tenants, and not the landlord.

Also important is that they had an agreement with the landlord, Robert, that they “would reside on the property and pay all the costs therein in lieu of rent.,” the Court of Appeal noted that the trial judge appeared to have meant that the rental agreement unburdened the landlord of any maintenance obligations.

What is an Occupier?

An occupier of a premises can be defined as a person who is in physical possession of a premises or a person who had responsibility for and control over the condition of a premises or the activities carried on the premises, or control over persons allowed to enter the premises.

If a Court finds that a defendant is an occupier of a premises, then there is a duty of care that is then mandated by the Occupiers Liability Act.  The duty of care is that an occupier is to take such care as in all circumstances of the case (meaning  in particular your case – cases are decided on a by case basis) to see that anyone entering on the premises or property brought on the premises by those people are reasonably safe while on the premises.  This does not mean that an occupier is an insurer of the safety of everyone that comes on the premises – the question is “what is reasonably safe?”

There are also provisions dealing with landlords under the Occupier Liability Act.  In particular, section 8(1) of the Occupier Liability Act imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property.  This section applies whether or not the landlord is found to be an occupier.  Section 8(2) as a second requirement, namely, that only if the landlord’s default is such to be actionable at the suit of the tenant will the landlord’s default constitutes a breach.  In other words, the tenant must have a valid actionable suit against a landlord in order to constitute a breach of the landlord’s duty under the Occupiers Liability Act.  Remember the judge that heard the case appeared to rest his decision on the finding that there was a rental agreement that relieved the landlord of all maintenance obligations.  The reason he seemed to be at the rental agreement rendered the landlord jot responsible for the maintenance of the property.  Further, the rental agreement would render the landlord default not actionable by tenants because it gave them complete responsibility for maintenance of the premises.

The Court of Appeal found otherwise.

They disagreed with this and found that the landlord did have a duty of care to the plaintiff.

Firstly they found that the landlord originally admitted that he was an occupier in his defence.

Secondly, even though the tenants permitted the danger constituted by the cinder blocks surrounding the fire to continue, the land lord created this danger, and for this, the same reasoning renders him in breach of the duty that he had to the plaintiff under the Occupiers Liability Act.

Thirdly, the Court found that even if there was a contract with respect to maintenance obligations between him and the tenants, the Court of Appeal found that a landlord can’t escape his duty.  Section 94(1) and 80(1) of the Landlord and Tenant Act state that a landlord is responsible for provided and maintaining a rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.

This section of the Landlord and Tenant Act imposes a duty, which is statutory on the landlord of residential properties, to maintain and repair the premises.  Section 80(1) of the Landlord and Tenant Act provides that this responsibility prevails despite any agreement or waiver to the contrary.

The court found that since this was a residential property the statutory duty to the respondent landlord cannot be removed by any type of rental agreement between them and the tenants.  The combined effect of the provisions of the Landlord and Tenant Act was therefore, that for the purposes of 8(1) of the Occupiers Liability Act that the premises were occupied under a tenancy in which the landlord was responsible for the maintenance and repair of.

In other words, section 8(1) imposed a duty on the landlord, the same duty of care to the plaintiff as an occupier under the Occupier Liability Act.  There was a breach of duty of care as the landlord with the responsibility to repair and maintain the premises.

What does this case tell us?

If you’re a landlord you probably contract out of the maintenance of your property and if a person in injured on your premise you have exposure. Certainly with all the injured victims that I represent we pursue the landlord of all residential properties where injuries occur and not only the tenants.

Contact us
If you or a loved one has suffered a serious injury in an accident , we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.  We have 4 Toronto Area law firm offices conveniently located in Burlington, Milton, Oakville and Mississauga.  To contact one of our personal injury accident lawyers concerning the injury to you or death of a loved one, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims
If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex.  We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario.  After a serious accident or collision, we have lawyers that will visit in home or in hospital.  Do not worry where you are located.  Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.

The Court of Appeal recently examined the issue of an insured person being mental distressed because their insurance company was not acting in good faith with their accident benefits.

The Supreme Court of Canada told us a few years ago in the case of Fidler v. Sun Life Assurance Co. Ltd. that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress – something which the Court ruled that Echelon Insurance unfortunately did to this lady.

In the case of McQueen v. Echelon General Insurance Company the plaintiff (“Ms. McQueen”) was injured in a rollover motor vehicle accident on January 31, 2004.  Her vehicle was destroyed in the accident. She suffered from a significant number of physical and psychological problems, including chronic pain, difficulty walking and lifting, jaw pain, anxiety related to driving, and memory loss. She saw a number of physicians in the years following the accident. The Court of Appeal dealt with housekeeping and transportation benefits that were denied.  

The Court noted that here was ample evidence in the record that Ms. McQueen was substantially unable to perform the housekeeping and home maintenance services that she had performed prior to her accident. After the accident she was bedridden for two months and her husband had to leave his employment to take care of her, their teenaged daughter and the household generally. Prior to the accident, Ms. McQueen did the cooking, house cleaning, shopping and the like.  After the accident, she could no longer cook meals, clean bathrooms, change bedding or do any heavy cleaning - her husband and daughter had to do virtually all of the housekeeping.  The Court of Appeal found no basis on which to interfere with the trial judge’s finding that $100 per week for an additional 78 weeks was reasonable.

The Court also saw no reason to interfere with the trial judge’s implicit finding that Ms. McQueen proved entitlement to “transportation benefits” under the accident benefits schedule.  They reviewed the evidence that was open to the trial Judge which included the nature of Ms. McQueen’s health problems, her lack of access to a car, the opinion of Echelon’s occupational therapist that Ms. McQueen needed such transportation, Ms. McQueen’s attempts to use transportation for disabled persons, and the distance from her home to the nearest bus stop. The Court allowed the appeal but reduced the amount for the transportation benefit from $7,500 to $2,280.  They decided that it did not serve the interests of justice to remit this matter for a second trial because the amount in question is small and the plaintiff is of limited means and fragile health.

Mental Distress

In reviewing issues of mental distress the Court’s view was that the Supreme Court’s decision in Fidler v. Sun Life Assurance Co. Ltd. supported the conclusion that damages for mental distress may be awarded to a person who is insured under a standard automobile policy, whether that person is the named party to the insurance contract or not (it was her husband’s policy).  Mental distress to anyone insured under the policy upon breach would have been within the reasonable contemplation of the insurer and the insured and, thus, damages are recoverable pursuant to the basic principle of compensatory damages for breach of contract.

Continuing, the Court reviewed Fidler, which tells us that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress. With this they further noted that one of the objects of the insurance contract was to secure the plaintiff’s peace of mind and that it was within the reasonable contemplation of the parties that breach of the peace of mind promise would bring about mental distress.

The Court of Appeal confirmed that the reasoning in Fidler applied to the present case.  People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity.  An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made (Fidler).  As an insured person entitled to call on the policy, Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.

With this, the Court confirmed that this case was not one in which Echelon simply denied benefits.   They noted that the trial judge canvassed the “extensive medical evidence” during the relevant period before concluding that Echelon created an “adversarial relationship” with Ms. McQueen that was likely to create mental distress and that, in fact, it did cause such mental distress.  At one point they ignored their own expert, and failed to supply a full medical file to another. Her distress was palpable and her evidence that the change in her emotional and psychological conduct was the result of her relationship with her insurance company was accepted by both the trial Court and the Court of Appeal.

Have a read of Matt’s most recent monthly contribution to the popular HR site FirstReference.com

http://blog.firstreference.com/2012/01/11/employees-that-wish-to-withdraw-resignations-what-to-do/

This is another threshold case from 2010. For those of you that do not recall what the “threshold” is with respect to car accidents, please click here.

The case of Valdez v. Clarke is a 2010 case that went to trial in Hamilton. The Plaintiff Valdez was involved three separate car accidents. He was awarded $25,000 in general damages. Despite the award being under deductible counsel and Judge Milanetti agreed on threshold ruling.

The plaintiff put forward evidence of being still employed at the time of trial, losing a cleaning business that he and his wife owned as a result of his injuries and a convincing loss of enjoyment of life argument.

Injuries

Medical witnesses evinced that Mr. Valdez had been left with chronic pain.  This was described as a “chronic pain syndrome” by various experts and there was no evidence led to the contrary.

He suffered soft tissue injuries to his neck & back, he suffered from headaches, as well as numbness and tingling sensation in his right thumb and fingers.  The neurologists that testified spoke of nerve root injuries to C6/C8 and T1 on the right and to a lesser extent to C8 on the left side.

Pre-Existing Injuries

Prior to the accidents, the plaintiff had visited doctors and chiropractors for low back pain and an old history of sciatica. There were also past neurological complaints similar to those of which he currently complains – numbness and tingling in the right fingers and thumb.  In 1998 he was diagnosed with a mild carpal tunnel syndrome.

Credibility

The Judge found the plaintiff to be a credible individual. She also did not find that the doctors that testified to lack any objectivity.  The Judge also noted that Mr. Valdez tended to play down his issues rather than exaggerate them.  Although the jury did not sympathize with him – inferred obviously by the award – the Judge found him to be credible and accepted that he suffered a chronic pain syndrome as a result of car accidents.

Theory of Loss of Income

The judge noted that the plaintiff missed 6 months from this job and returned to full-time unmodified duties. He maintained his employment until he was laid off indefinitely and was given 13 weeks’ payment in lieu of notice.  He did not lose this job was because he was injured.  Before his severance ran out he found full-time work as a truck driver and maintained it the date of trial.  Cross examination of the plaintiff showed that the position as a truck driver was more physical in nature than the previous one had been.  The plaintiff agreed…

With this, Judge noted that “This pattern of consistent full time work may well mitigate against a threshold claim, but it is clear to me that Mr. Valdez’s quality of life has been significantly affected by his injuries.  It is clear that he has continued to work, but at the end of the day, it seems he is able to do little else.  I heard from his wife, daughter and Mr. Gargallo about the many differences in Mr. Valdez as a result of his injuries, and the difficulties he had with his activities of daily living.  Moreover, the loss of the part time cleaning business he had the time of this accident is another factor for my consideration in this threshold decision.”

At the time of this accident, the Plaintiff and his wife were also operating a part-time cleaning company at the time of the accident, which they eventually gave up. It was noted that there were complaints about their work post the accident as Mrs. Valdez alone had been trying on her own to do the work that she and her husband had done previously. The Judge found they may have been able to maintain this business but for Mr. Valdez’s accidents and injuries. There were too many complaints, Mr. Valdez was not doing it; Mrs. Valdez simply could not keep up on her own.

Threshold Decision

1. Employment

By law the impairments must substantially interfere with the plaintiff’s ability to continue his regular or usual employment.

The defendant argued that the Plaintiff did not satisfy the threshold primarily as he has managed to maintain full time work as a truck driver, which was of a more physical nature than his previous position. There were also no modifications sought as a result of the car accidents.

The Judge noted that if this was the only aspect of Mr. Valdez’ case to be considered in connection with the threshold decision to be made, he would not, in her view, have met the threshold, regardless of whether or not he suffered from chronic back pain.

But – there was also the fact that he could not resume his part time work operating the cleaning business he and his wife had started up about 1 ½ to 2 years before the accident.

This had clearly been secondary employment for him and his wife. They had completed the required jobs previously as a team – and since his accident and subsequent injuries he was unable to help her and as a result they lost one contract and had to turn down another.  His wife also had to be taught how to handle the books for this business, something Mr. Valdez had taken care of previously.  As I understand it, he never returned to that responsibility.

The Judge noted that the cleaning company was part of Mr. Valdez’s usual and regular employment at the time of this accident.  His ability to continue and maintain the cleaning business was substantially interfered with as a result of his accident related injuries.

As a result, the alleged injuries substantially interfere with his ability to continue his regular or usual employment.

2. Daily Activities

The injuries must have interfered with most of the usual activities of daily living, considering his age.

The Judge noted that she heard significant evidence about the affect his injuries had on his usual activities of daily living. His activities of daily living and his enjoyment of life have been severely compromised. The Judge referred to the Court of Appeal decision in Brak v. Walsh (2008) ONCA 221 (CanLII) which adopted the definition of ‘serious’ set by the same court in  May v. Casola (1998) O.J. No. 2475 (CA) are of relevance.

The problems that he suffered from:

• He had given up two of his former passions – cooking and photography;    
• He previously been quite socially active – he did virtually nothing anymore aside from his job;
• Julio, his family friend of 25 years said they previously socialized up to 20 times a year. Julio had to convince him to go to his daughter’s wedding. The Judge found that this example painted a dramatic picture of Mr. Valdez’s current approach to socializing; an approach which she accepted is much different than the man who regularly socialized with friends and family prior to the accident.
• He used to be active in sports with his son Stephen; he was not any longer. 
• He no longer went for walks, dancing or on outings to such places as Algonquin Park. 
• His daughters testified that is no longer the “fun loving” dad he used to be – he used to play with her children and swing them around.  All he can do now is sit and talk with them.
•  His wife testified that she will sometimes ask her to put his socks on.  He no longer does grocery shopping with his wife as the stopping and starting have become difficult for him. 
• The lay witnesses and family doctor spoke of Mr. Valdez’s irritability, impatience, and short temper that had not existed prior to the accident. 
• The plaintiff also spoke with sadness about the difficulty his son Stephen had understanding why his dad no longer participated actively with him after the accident.
• His relationship suffered with his young son because of his restrictions

Decision

The Judge accepted that as in Brak, the plaintiff’s pain seriously affected his “enjoyment of life, ability to socialize with others….enjoy their children and engage in recreational pursuits”.

When considering both the ongoing loss of Mr. Valdez’s secondary employment and his diminished level of social and recreational activity, the Judge found that that he had successfully established that his injuries satisfy the Bill 198 threshold.

Contact us
If you or a loved one has suffered a serious injury in an accident or crash or by any other means, we are Ontario personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week. We have 4 Toronto Area personal injury law firm offices conveniently located in Burlington, Milton, Oakville and Mississauga. To contact one of our personal injury accident lawyers concerning the injury to you or death of a loved one, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

Nearly 40 years of representing injured victims
If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex. We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario. After a serious accident or collision, we have lawyers that will visit in home or in hospital. Do not worry where you are located. Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.