Blog – Neinstein Personal Injury Lawyers
Should insurance coverage for minor injuries be optional?
June 2016 is a landmark month for every car accident lawyer in Ontario. At that time, the provincial government introduced significant cuts to mandatory accident benefits coverage, a change that sparked an outcry from victims’ advocates and left most drivers less protected. The policy was part of an ongoing effort to reduce sky-high auto insurance premiums in the province; today, Ontarians continue to pay some of the nation’s highest rates.
Under the new accident benefits schedule, maximum mandatory medical, rehabilitation, and attendant care benefits were reduced by more than $20,000 for non-catastrophic injury victims and by $1-million for victims of catastrophic injuries. For a clearer picture of the changes that came into effect, take a look at our complete accident benefits coverage chart: https://www.neinstein.com/wp-content/uploads/2018/06/accident-benefits-coverage.pdf.
With Ontario drivers still paying exorbitant insurance premiums, industry experts are looking for new ways to reduce costs. One suggestion is to offer “greater choice” to consumers by allowing them to opt out of benefits for minor injuries.
This solution was put forward by David Marshall in his influential report Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario. Though Marshall didn’t explicitly endorse the measure, he recommended that it be studied further.
“There are several drivers who, due to their youth or circumstances, would like to carry less insurance that the standard policy,” he wrote, according to Canadian Underwriter. “After protecting others through a minimum liability insurance, a sensible system of consumer choice whereby a person may consciously take less auto insurance and save money should be explored.”
This approach would, in fact, lower premiums for some insureds. Unfortunately, critics believe that the drivers who are most likely to waive optional benefits are also those least likely to be able to afford treatment for their injuries. The goal of accident benefits coverage, Marshall wrote, “is to provide a guaranteed safety net for those injured in auto accidents.” It’s unclear how optional coverage would contribute to that aim.
Every car accident lawyer in Ontario can agree that lowering auto insurance premiums is an important goal for the provincial government. However, restricting accident victims’ access to critical medical, rehabilitation, and attendant care will, in the long run, benefit nobody.
If you or a member of your family has been injured in an automobile accident, contact Neinstein Personal Injury Lawyers today to speak with an experienced car accident lawyer in Ontario. Our team can help you understand your legal options and provide access to some of the province’s best medical resources. Call now to set up your free, no-obligation consultation.
Summer Bike Accident? There is a reverse onus
Summer has finally begun! And with it, many cyclists are roaming the streets. Helmets are essential to protect you in the event of a collision with a pedestrian, another cyclist, or a motor vehicle. Helmets can prevent a concussion or other brain injuries that vulnerable road users experience frequently in accidents. In Ontario “reverse onus” laws are in place to govern accidents between cars and bicycles.
Reverse onus means that the driver of a vehicle who has injured a cyclist has the burden to prove that he/she (the motor vehicle driver) was not in the wrong. The plaintiff is only required to prove the collision occurred and that the collision caused damages. The onus is on the defendant to disprove negligence.
This reverse onus is important in for bicycle injury lawyers dealing with cases where cyclists are often alone when they are struck and there are no other witnesses. If you have been injured in a collision with another driver or a dooring incident, contact Neinstein Personal Injury Lawyers today to receive the compensation you deserve, call now 416-920-4242.
Will Rowan’s Law protect Ontario’s young athletes?
June is Brain Injury Awareness Month in Canada, a time when medical experts, safety advocates, and brain injury lawyers promote programs and support causes dedicated to brain injury research and education.
Few people in Ontario have done as much as Kathleen and Gordon Stringer to promote awareness of brain injuries and concussions, in particular. In 2013, their 17-year-old daughter, Rowan, died after sustaining multiple head injuries during a short stretch of her high school rugby season. Devastated by the loss, Kathleen and Gordon pushed the Ontario Government to enact legislative changes to protect young athletes from brain injuries. Their efforts resulted in Bill 193 – Rowan’s Law – which came into effect this March.
Rowan’s Law has been lauded by brain injury lawyers and medical experts as a potential blueprint for other provinces. It mandates strict remove-from-play and return-to-play protocols for youth sports leagues, as well as education programs for parents, teachers, and coaches. The goal of the law is to promote awareness, respect, and safety without discouraging young people from participating in sports.
“We don’t ever want the message to be one of having kids running around in bubbles and not doing anything, because there are so many benefits from sports and physical activity,” Gordon Stringer told the Toronto Star. “But when [concussion] does happen, you have to be vigilant and to take the time to ensure they get the care they need.”
Passage of Rowan’s Law was an important first step towards improving safety for Ontario’s young athletes. Now, teachers, parents, coaches, referees, and athletes must work together to ensure the law’s directions are followed. Rowan’s Law made Ontario a national leader in brain injury policy – its effective implementation can make it a leader in brain injury reduction.
“When kids sign up for a sport at the beginning of the year, there will be pre-season meetings,” Dr. Charles Tator, a brain surgeon and director of Toronto Wester Hospital’s Canadian Concussion Centre told the Star. “They will have to sign off that they know something about concussions and that the players are willing to abide by the code of conduct of that sport.”
If you or your child has been injured in an accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our experienced team of brain injury lawyers can help you understand your legal situation and advise you of your options for recovery.
Photo credit: Staff Sgt. Siuta B. Ika/U.S. Air Force
Proposed impaired driving bill hits roadblock in Senate
The federal government’s bid to enact strict new impaired driving rules alongside its marijuana legalization bill hit a major snag last month when the Senate’s legal and constitutional affairs committee voted to remove a key provision in the legislation. The move divided lawmakers, legal experts, road safety advocates, and Ontario personal injury lawyers.
Bill C-46 was introduced as a companion to Bill C-45, the bill to legalize the use of recreational marijuana in Canada. In addition to addressing issues around marijuana-impaired driving, Bill C-46 proposes allowing police officers to conduct random roadside breathalyzer tests without probable suspicion of impairment.
The provision is controversial, as Ontario personal injury lawyers can understand. Some legal experts believe it violates Canada’s Charter of Rights and “would lead to a decade of Charter challenge litigation,” according to Sen. Denise Batters, who proposed eliminating the provision. Activists have also suggested it would enable police to unfairly target minority communities.
Supporters of the bill see it as essential to ensuring safety on Canadian roads following the legalization of recreational cannabis. According to the National Post, more than 40 countries have enacted random roadside testing programs and experienced reductions in impaired driving fatalities of up to 36 per cent. When Conservative MP Steven Blaney proposed similar legislation in 2016, it received near-unanimous support in the House of Commons and praise from Mother Against Drunk Driving (MADD). Many personal injury lawyers in Ontario believe the policy could significantly improve road safety in the province.
Some of the bill’s supporters believe that politics, not constitutional concerns, inspired the committee’s decision. The Conservative Party of Canada has emphatically opposed the Liberals’ efforts to legalize marijuana, and it was Conservative senators who spearheaded the committee’s vote. Indeed, Sen. Jean-Guy Dagenais, who voted to eliminate the roadside testing provision, was an early and vocal proponent of Steven Blaney’s bill just two years ago.
“It appears as though obstruction of the policy agenda of the government of Canada is of higher priority than consistency of policy position,” said Sen. Peter Harder, the government’s representative in the Senate.
“This is shocking,” added MADD CEO Andrew Murie, according to the Post. “You kind of wonder if this is based on what they say is legal concerns or is this politics being played out?”
After much debate, the Senate voted in June not to reinstate mandatory roadside testing. The amended bill will now move to the House of Commons, where it will likely be rejected and returned to the Senate. This cumbersome process may delay the bill’s passage, meaning Bill C-45 could be passed without accompanying impaired driving legislation, which puts road users at risk.
If you’ve been injured in an impaired driving accident, contact Neinstein Personal Injury Lawyers’ team of Ontario personal injury lawyers to arrange a free, no-obligation consultation. We can help you understand your legal situation and provide guidance as you pursue fair and reasonable compensation for your injuries.
Image credit: Coolcaesar at the English language Wikipedia
Who is responsible for rising pedestrian fatalities?
Almost every Toronto personal injury lawyer has, at some point, fielded an inquiry relating to a vulnerable road user being struck by a vehicle. In Canada’s biggest city, cyclists, pedestrians, and motor vehicles all share limited space on the roads. As the city has grown, this arrangement has led to tensions and, unfortunately, a rising number of serious injuries and fatalities.
City planners, local politicians, and victims’ advocates have all proposed solutions to Toronto’s road safety woes, including increased funding for public transit programs, infrastructure updates, harsher penalties for dangerous driving, and stricter enforcement of existing traffic laws. Several months ago, Liberal MPP Yvan Baker even proposed the “Phones Down, Heads Up Act,” a so-called ‘zombie law’ targeting pedestrians who use their smartphones in crosswalks.
The Phones Down, Heads Up Act was an outlier; safety measures designed to protect vulnerable road users rarely target pedestrian behaviours. But in a recent Toronto Star editorial, contributor Royson James suggested that maybe they should.
Pedestrians in the Greater Toronto Area (GTA) “exhibit a wanton disregard and disrespect of the car as a killing machine,” Royson writes. He posits that a healthy fear of automobiles and a sense of responsibility for one’s own safety would contribute to a decrease in pedestrian injuries in Toronto.
“Narrow sidewalks. Poor street design. Lack of safe cycling space. Insufficient speed controls. Inattentive drivers. These are some of the frequently cited reasons for the carnage on our streets when pedestrians, cyclists and motor vehicles converge,” Royson says. “We should loudly, boldly resolutely address another, less politically correct reason – the culture of pedestrian disrespect of the car as an agent of danger and death.”
However, in a separate Star editorial, Edward Keenan points out that the stats don’t back up claims that pedestrians are ultimately to blame for their injuries. He cites a May 2018 report from the Insurance Institute for Highway Safety, an American organization, that found that problematic road design and an increase in large passenger vehicles were primarily to blame for spiking pedestrian fatalities in that country.
If you were to ask a Toronto personal injury lawyer, they might tell you that the best solution to surging pedestrian fatalities is a mix of infrastructure updates, changes to the rules of the road, and public messaging campaigns that promote awareness among pedestrians. Blaming vulnerable road users for the dangers they face may be irresponsible, but asking them to take reasonable precautions is not.
If you have been injured in a road accident in Toronto, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation with an experienced Toronto personal injury lawyer. Our team can help you understand your legal options and put you in touch with leading medical and rehabilitative care providers. At Neinstein, your recovery comes first.
Rural driving presents unique dangers
The perils of driving in busy city centres are well known to car accident lawyers – traffic congestion, distraction, intoxication, and the intermingling of multiple types of road users create a slew of potential dangers.
However, driving on rural routes poses its own risks, including speeding, careless driving by locals who know the area like the back of their hands, a lack of traffic signs and lighting infrastructure, and small roads struggling to accommodate increasing traffic.
According to a recent report from the St. Catherines Standard, speeding is an especially common risk factor. The article references numerous serious injuries and fatalities along ‘accident alleys’ in southern Ontario with direct links to excess speed.
Niagara Region is acting to address the issue. In the Hamlet of Caistor Centre, it added digital “Slow Dow” signs that show drivers’ speeds along Regional Road 65. New lighting is likely to be added along Moyer Road outside the City of Welland. And a four-way stop sign has been approved for the intersection of Four Mile Creek Road and Line 3 Road near Niagara-on-the-Lake.
Other municipalities are lobbying the region for similar changes. In West Lincoln, Mayor Doug Joyner is advocating for four-way stops where Regional Road 65 intersects with Port Davidson Road and Regional Road 14.
“For years I have been saying I want a four-way stop at both those intersections because of the high fatality rate,” Mayor Joyner told the Standard. “The Region says that four-way stops aren’t the answer…. There will be confusion about who has to stop and who doesn’t; but, at the end of the day, a four-way stop sign is the best solution. You have to stop. You have to follow the Highway Traffic Act.”
Niagara Regional Police, like car accident lawyers, are aware of the dangers posed by rural speeders and have launched targeted enforcement operations along routes they know to be problematic. However, it will take a combination of awareness, infrastructure changes, and law enforcement to create meaningful behavioural change.
The City of Toronto, facing another year of elevated fatality numbers among vulnerable road users, is currently ground zero for road safety advocacy in Ontario. Significant changes are undoubtedly needed in the provincial capital, but governments also have an opportunity to implement modest changes that have meaningful impacts on the safety of rural drivers. Four-way stop signs along country roads are the perfect example.
If you or someone you know has been injured in an accident in rural Ontario, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our experienced team of car accident lawyers can help you access the compensation you need to fund your recovery.
Image credit: Nicholas A. Tonelli/Wikimedia Commons
Supreme Court rules on longstanding liability dispute
On May 11, the Supreme Court of Canada found Chad Rankin, the owner of a garage in the Southwestern Ontario town of Paisley, not liable for injuries sustained in an accident involving a stolen vehicle. The finding – which attracted the attention of more than one curious car accident and personal injury lawyer – overturned an earlier Ontario Court of Appeal decision.
The Event
The case centered on an event that occurred in July 2006. Late one night, two teenagers illegally entered Mr. Rankin’s property. Both had been drinking alcohol, some of which was provided by one of the teens’ mothers, and both had smoked marijuana. The intoxicated teens decided to steal a car and drive to nearby Walkerton, Ontario. They discovered a vehicle with an unlocked door and found the keys in the ashtray.
Tragically, the teens crashed en route to Walkerton. The passenger in the vehicle suffered a catastrophic brain injury.
The Case
The victim’s litigation guardian, with the help of a personal injury lawyer, sought compensation from the driver of the vehicle, the driver’s mother, and Mr. Rankin.
At trial, the court ruled that Mr. Rankin should have realized his garage was vulnerable to theft. He was found 37 per cent liable for the teen’s injuries; the driver of the vehicle was found 23 per cent liable, the driver’s mother 30 per cent liable, and the injured teen 10 per cent liable. This ruling was upheld at the Court of Appeal.
The Supreme Court disagreed in a 7-2 split decision. While the majority agreed that Mr. Rankin should have understood the risk of theft, they also found that “the fact that something is possible does not mean that it is reasonably foreseeable.”
“It does not automatically flow from evidence of the risk of theft in general that a garage owner should have considered the risk of physical injury,” wrote Justice Andromache Karakatsanis on behalf of the majority. “I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far.”
The dissenting justices found no ‘overriding error in the lower court findings,’ and thus chose not to overturn the decision, according to the National Post.
Call Neinstein Personal Injury Lawyers
If you have been injured in a car accident, contact a personal injury lawyer from Neinstein Personal Injury Lawyers today to learn how we can help. Our experienced, understanding team can guide you along your road to recovery.
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OTLA report finds that Ontarians pay too much for auto insurance
An updated report suggests that insurance companies have overcharged Ontario motorists for auto insurance by billions of dollars since 2011. For every Ontario car accident lawyer, the report is a sad reminder of the difficulties facing the province’s injury victims.
The report was commissioned by the Ontario Trial Lawyers Association (OTLA) and authored by Fred Lazar, an economics professor at York University’s Schulich School of Business. He estimates that between 2011 and 2016, insurers’ profits rose 60 per cent.
“Given the levels of excessive profitability, consumers almost certainly have paid too much for their insurance coverage,” the report reads.
“I estimate that in the last five years alone, overpayments may have totaled $5 billion,” Lazar added in an OTLA release. “This represents 9.5 per cent of total premiums paid during the same amount of time.”
It also represents annual overpayments of about $143 for each insurance policy in Ontario.
Claire Wilkinson, OTLA’s President, called the results of the report “just another example of how Ontario’s auto insurance system is in need of a complete rethink,” in the release.
“It underscores the extent to which our system is completely dysfunctional,” she added.
OTLA is calling for the insurance industry to be more transparent when reporting profits, a suggestion that any Ontario car accident lawyer would support.
“By increasing transparency and reporting the government and consumers would have a better understanding of just how much profit is currently enjoyed by auto insurance companies in Ontario,” said President-Elect Rob Bohm. “These are the first steps in restoring balance to ensure justice for accident victims and fairness for drivers.”
The political response to the report has also been emphatic. During question period at Queen’s Park, NDP MPP Wayne Gates asked: “why did the premier deliver a 60 per cent increase in the profits to insurance companies, instead of delivering 15 per cent in savings for Ontario families?”
Finance Minister Charles Sousa acknowledged the “alarming costs” Ontarians faced in relation to auto insurance, and pledged to “increase consumer protection, combat fraud and ensure those injured in an accident get the care they need when they need it,” CTV News reports.
However, members of the insurance industry refuted the report’s findings.
“OTLA falsely claims insurers are making excessive profits. Let me be clear – this is not true,” Steve Kee, a spokesperson of the Insurance Bureau of Canada, told Canadian Underwriter. “GISA [the General Insurance Statistical Agency], the Financial Services Commission of Ontario (FSCO), and the government’s independent auto insurance expert David Marshall have all reviewed insurer operations and agree that profits are not significant.”
One thing all stakeholders can agree upon is the need for change within Ontario’s auto insurance system. Ontario’s motorists pay some of Canada’s highest premiums despite nation-leading motor vehicle collision rates, and government initiatives to improve the situation have reduced benefits without reducing costs.
If you or a member of your family have been injured in an automotive collision, contact Neinstein Personal Injury Lawyers today to speak with an experienced Ontario car accident lawyer. Our team can start you on your path to recovery.
Image credit: Clashmaker/Wikimedia Commons
Autonomous vehicles will present tricky liability, insurance issues
In the near future, Ontario’s drivers will share the road with autonomous and semi-autonomous vehicles. Their presence will present new challenges for personal injury lawyers: Who is to blame for collisions involving autonomous vehicles? From whom can injury victims pursue compensation in civil court?
The auto insurance industry is confronting similar questions:
“We all know the automated vehicle revolution is coming with major ramifications for auto insurance,” said David McGown, the Insurance Bureau of Canada’s (IBC) senior vice president of strategic initiatives at an April event. “In the new paradigm, product failure rather than human error will become the key factor for liability coverage. And we must prepare for a messy transition during a time when fully automated vehicles will share the road with less automated ones.”
In order to address potential complications arising from collisions involving autonomous vehicles, Canadian insurers are developing a framework to ensure claims can be processed quickly and efficiently, Canadian Underwriter reports. Members of the industry say their share a common goal with personal injury lawyers: to ensure that injured Canadians have timely access to the compensation they need.
“Product liability claims are more complex and take longer to settle than typical vehicle collisions liability claims,” IBC director of policy Ryan Stein told Canadian Underwriter. “Do you want a person who is injured in a collision caused by an automated vehicle to go through a protracted period of uncertainty during the claims process?”
The framework is modeled in part after the United Kingdom’s Automated and Electric Vehicles Bill, which stipulates that injury victims be compensated by their insurance provider for damages caused by faulty autonomous vehicle technology. The insurer may then seek liability payments from the manufacturer of the vehicle, effectively removing from the injury victim the burden of pursuing a product liability claim.
Once autonomous vehicles make up the majority of vehicles on the road, it is reasonable to assume that accident rates will fall significantly. Until that time, however, drivers, insurers, and personal injury lawyers will have to navigate a murky transitional period that places AI and human drivers alongside each other on Canadian roads, an arrangement that will surely lead to complex, precedent-setting legal disputes.
If you’ve been injured in a car accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our experienced team can help you understand your legal situation, assess the validity of your claim, and guide you on your first steps toward recovery.
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Court of Appeal decision strikes blow to consumer protection laws in Ontario
In a recent decision, the Ontario Court of Appeal struck a damaging blow to the province’s Consumer Protection Act. The three-judge panel ruled in favour of the defendant in Schnarr v. Blue Mountain Resorts Limited, a case involving two skiers who were injured after signing liability waivers. Personal injury lawyers have criticized the decision.
At question in the case was whether provisions included in Ontario’s Occupiers’ Liability Act (OLA) trumped provisions in the more recent Consumer Protection Act (CPA).
The decision, which personal injury lawyers believe will have implications across the province, essentially affirms that liability waivers are valid and that they are an effective defence against these types of civil actions.
“Waivers are designed to explain the risk to the participant and insulate to some degree the facility from being sued because you can’t have a recreational facility being sued every time everybody gets injured,” a defence lawyer told Law Times.
Under the OLA, which was adopted in 1980, occupiers – in this case Blue Mountain Resorts – have the right to obtain waivers that exempt them from injury liability from individuals who use their premises. The act stipulates that occupiers’ duty of care is suspended in respect of “risks willingly assumed by the person who enters on the premises.”
When the CPA came into force in 2002, it was intended to bolster protections for consumers in the Province of Ontario. It states that suppliers must provide a warranty of quality of service which cannot be waived; the Court of Appeal’s decision weakens this provision.
“The OLA permits an occupier to obtain a waiver of liability,” wrote Justice Ian Nordheimer on behalf of the panel. “The CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPA prohibits.”
Justice Nordheimer goes on to write that it would be “absurd” if businesses were held liable for “something that they though they had lawfully protected themselves against.”
It is not known whether the plaintiffs will take their case to the Supreme Court. In the meantime, personal injury lawyers will have to operate under more limited consumer protection laws.
If you, a friend, or a member of your family have been injured in an accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation. Our experienced team can help you understand your legal position, assess the viability of your claim, and guide you on your road to recovery.
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