Blog – Neinstein Personal Injury Lawyers
Recent motor vehicle collisions emphasize Toronto’s need for road safety improvements
Photo credit: Hallgrimsson/Wikimedia Commons
On July 4, 2016 – the Monday following the Canada Day long weekend – eleven pedestrians and nine cyclists were struck in 18 separate motor vehicle collisions around the City of Toronto. One 73-year-old cyclists was killed near the intersection of Kipling Ave and Brookemere Rd, and a second cyclist in his seventies was killed the next day near Dupont and Christie.
The exceptionally dangerous day for Toronto’s pedestrians and cyclists came at a politically relevant moment: next week, City Council is set to debate a new road safety plan unveiled last month by Mayor John Tory and Ward 25 Don Valley West Councillor Jaye Robinson, who is also council’s public works chair.
Robinson told the Toronto Star that Monday’s motor vehicle collisions are “a clear indication that we have to get the (road safety plan) into action now. Clearly, the status quo is not effective in reducing collisions and improving safety for vulnerable road users, meaning pedestrians, cyclists and seniors.”
Unfortunately the number of motor vehicle collisions which occurred on July 4, though unusual, is not unprecedented. Twenty-two pedestrians and one cyclist have already been killed in Toronto this year, and the city is on pace to match the 40 pedestrians who died in 2013, the highest number in a decade. Since the end of May, 70 pedestrians have been hit by cars in Toronto, and 50 cyclists were struck during the month of June, alone.
“It’s hard to ignore numbers like these,” Kasia Briegmann-Samson, whose husband died after being struck by a car while riding his bike in 2012, told the Star. “It’s extremely sad if it takes 20 people being injured or killed in one day to make things happen. Every single one of these deaths are preventable. Every single one.”
Briegmann-Samson’s view is shared by Matts-Ake Belin, a traffic safety strategist with the Swedish Transport Administration and a principle architect of the “Vision Zero” road safety program that aims to eliminate road fatalities in different jurisdictions around the world. “You have to raise the needs of the unprotected road users,” Belin told the Globe and Mail. “You have to put them higher and their needs higher up in the discussion about how you want to plan your urban environment.”
Mayor Tory and Councillor Robinson’s road safety plan did not initially adhere to the “zero fatality” ideology, aiming instead to reduce serious injuries and deaths by 20 per cent over 10 years. In response to criticism, Robinson quickly amended the $68-million strategy to include a zero fatality goal. The plan has also been criticized as reactive for focusing specifically on identified danger spots – intersections and stretches of roads where vulnerable road users have already been killed – rather than addressing city-wide issues.
While the road safety plan is argued in city council, Toronto’s streets remain an unacceptably dangerous place for pedestrians, cyclists, and motorists alike. Serious motor vehicle collisions are a common occurrence, and can have a profound effect on peoples’ lives. If you or a member of your family has been injured in a car accident, contact Neinstein Personal Injury Lawyers for a free, no-obligation consultation.
Will Rowan’s Law help reduce concussions and brain injury in Ontario’s youth?
In April 2016, a panel of American judges affirmed a class action settlement worth approximately $1-billion between the National Football League (NFL) and more than 20,000 former NFL players who had suffered a brain injury – especially concussions – or other health issues related to repeated blows to the head.
Approximately a month earlier, NFL VP of health and safety Jeff Miller “acknowledged for the first time that football has been linked to degenerative brain disease” during a Capitol Hill discussion, according to NPR. The admittance came in response to research conducted by Dr. Ann McKee, a neuropathologist at Boston University, which found that 90 out of 94 former professional football players and 45 out of 55 former college players showed signs of chronic traumatic encephalopathy.
“Well certainly Dr. McKee’s research shows that a number of retired NFL players were diagnosed with CTE, so the answer to that question is certainly yes,” McKee said. “But there’s also a number of questions that come with that.”
Canadians have a tendency to think of themselves as more progressive than their American cousins, but on the issue of concussion and brain injury legislation, the Northern neighbours lag behind. The US-based National Hockey League (NHL) and National Basketball Association (NBA) have both instituted concussion-safety protocols, and all 50 states ‘have laws dictating the management of youth concussions,’ according to the National Post.
But lawmakers in Ontario took an important step towards protecting student-athletes against the dangers of brain injury when they passed “Rowan’s Law” earlier this month. The legislation is named for Rowan Stringer, a 17-year-old high school rugby player from Ottawa who passed away on Mother’s Day 2013 after suffering successive concussions within a week.
Per the National Post, the passing of Rowan’s Law “mandates the creation of a committee to determine how best to act on the 49 recommendations laid out by the coroner’s inquest” into Rowan’s death, meaning that fully formed concussion regulations are a long way off.
“It will still be a matter of the legislature process deciding what to do,” explained Dr. Charles Tator, a neurosurgeon at Toronto Western Hospital, in the Post article. “This is not the actual thing. A lot of people think that it is, but it is an important step to try to achieve legislation – which I think should be done.”
Formal concussion management strategies have proved as important as helmet use in preventing brain damage, and studies have suggested that official protocols have increased the likelihood of concussions being effectively identified. In Rowan Stringer’s case, a formal concussion strategy might have detected her first injury and helped her to avoid the second, fatal one.
“We need to have everything we can in place to prevent this from happening to another child,” said Rowan’s father, Gordon Stringer. “We don’t want anyone else to have to go through it.”
To effectively accomplish Mr. Stringer’s goal, legislation similar to Rowan’s Law would have to be implemented across the country. Today, Ontario is the only Canadian province to have taken concrete steps toward brain injury legislation.
“We have known for a long time about effective ways of preventing concussions and preventing them from getting worse,” Dr. Tator said. “So the knowledge is there, but the knowledge has not been translated into action. And in spite of lots of good intentions, there are still serious gaps in what people know about concussion and what is being done.”
Concussions are an incredibly common form of brain injury in Canada, especially among young, active people. If you or a member of your family has suffered a concussion in an accident, consider contacting Neinstein Personal Injury Lawyers to learn about how a personal injury case can improve your recovery.
June is National Brain Injury Awareness Month in Canada
Photo credit: James Heilman, MD/Wikimedia Commons
June is National Brain Injury Awareness Month in Canada, and organizations across the country are doing their part to contribute to the cause.
In a release, the Ontario Brain Injury Association (OBIA) explained just how common – and devastating – acquired brain injuries (ABI) are in our society: “Brain injury is the leading cause of death and disability for people under the age of 44, and kills more people under the age 20 than any other causes combined.” Indeed, Brain Injury Canada has described ABI as a “silent epidemic,” one which can result in “a diminished or altered state of consciousness, and result in impaired cognitive, physical, emotional and/or behavioural functioning.”
As mentioned in the OBIA release, brain injuries are discouragingly common in young people. In an effort to protect the province’s young people, Ontario is expected to pass Rowan’s Law, a youth-oriented concussion safety bill intended to raise awareness of brain injury and protect young athletes from the dangers of concussion, later this week. The bill was introduced at Queen’s Park by Progressive Conservative MPP Lisa MacLeod in September 2015, and was co-sponsored by Liberal MPP John Fraser and NDP MPP Catherine Fife. According to the Ottawa Sun, the legislation “would set the stage for coordinating youth concussion protocols among four provincial ministries and other groups.”
The law is named for Rowan Stringer, a 17-year-old from Ottawa who passed away in 2013 after sustaining two concussions in quick succession while playing for her high school rugby team.
“It’s great news for us,” said Rowan’s father, Gordon, in reference to the bill’s expected passing. “Her death was preventable. A lot of prevention initiatives involve education and awareness. It’s part of a cultural change that needs to happen, like anti-bullying and anti-smoking education.”
Along with ensuring that young athletes are removed from play after sustaining head injuries, education and awareness are central to Rowan’s Law’s policies. But awareness alone is unlikely to improve the standard of living for Canadians already living with brain injuries.
“Brain injuries can range from mild to catastrophic, but all brain injuries can have lasting effects,” said OBIA Executive Director Ruth Wilcock. “Sadly, a traumatic brain injury is a lifelong condition with varying degrees of disability ranging from minor to 24/7 care. Individuals who have sustained a traumatic brain injury often require immediate care at a trauma centre, acute care in the hospital, intensive rehabilitation and long term extensive care by family members.”
The OBIA and the Brain Injury Society of Toronto (BIST) mark each Brain Injury Awareness Month with the annual BIST/OBIA Mix and Mingle, which brings together hundreds of professionals who work with brain injury survivors in Ontario. Over the past several years, the Mix and Mingle event has raised more than $600,000.
“Mix and Mingle does one of two things,” explained Ruth Wilcock. “It raises awareness of brain injuries in Ontario and it enables each organization to continue to support individuals who are living with brain injuries.”
Neinstein Personal Injury Lawyers is proud to play a central role in the annual Mix and Mingle event, which took place June 8 at the Steamwhistle Brewery in downtown Toronto.
If you or a member of your family has suffered from an acquired brain injury, contact Neinstein Personal Injury Lawyers today. Our team of injury lawyers understand the impact a serious brain injury can have on your life and the lives of your loved ones. Contact us now for a free, no-obligation consultation.
2016 BIST/OBIA Mix & Mingle Raises Close to $157,000
Photo courtesy Kevin Hewitt Photography Inc.
On June 8, the Ontario Brain Injury Association (OBIA) and the Brain Injury Society of Toronto (BIST) hosted the 12th annual BIST/OBIA Mix & Mingle at the Steamwhistle Brewery in downtown Toronto. The event attracted hundreds of professionals who work with survivors of acquired brain injury and raised approximately $157,000.
The OBIA took the opportunity to raise awareness of their Concussion Hits Home campaign, which brings to light the serious issue of concussions and brain injuries linked to domestic violence.
During her presentation, OBIA Executive Director Ruth Wilcock directed attendees’ attention to a number of troubling statistics, including the fact that 67 per cent of women who suffered domestic abuse reported residual problems that were potentially head-injury related.
“The goal of the Concussion Hits Home campaign is to increase awareness and education about brain injury related to domestic violence in hopes that victims will be able to receive the appropriate treatment and support,” Wilcock said.
Neinstein Personal Injury Lawyers’ Managing Partner Greg Neinstein has acted as chair of the event for the past seven years, during which time the Mix & Mingle has raised well over $500,000.
“I’m proud to be involved in such a successful event and I hope to continue giving back to such a noteworthy cause,” Neinstein said.
Through education, awareness, support and advocacy, both the OBIA and BIST work to enhance the lives of Torontonians and Ontarians living with the effects of ABI.
Thanks to all of this year’s attendees, and see you next year!
Clarifying the Onus of Proof for Rear-End Collisions
IANNARELLA v CORBETT[1]
Factual Background
The case involved a rear-end collision occurring on Highway 427 at night, in a snowstorm. The Defendant was driving in a snow squall which led to “whiteout” conditions. The Defendant lost visibility and slammed on the brakes but did not have time to avoid a collision with the Plaintiff, who was directly in front of him.
Following the conclusion of a 15 day trial, the jury found that the Defendant had not been driving negligently and the action was dismissed on the ground of liability.
The Plaintiff appealed on a number of grounds including that the trial judge failed to properly instruct the jury on the onus of proof in a rear-end collision.
The Onus for Liability
The Court of Appeal stated that the trial judge erred in his charge to the jury with respect to the onus of proof. Where a rear-end collision has occurred and the Plaintiff proves the occurrence happened, the onus is on the defendant to prove that he or she could not have avoided the accident through the exercise of reasonable care. This analysis applies even in an emergency situation, or in the context of an “inevitable accident.”
The Court confirmed that once the plaintiff has proven that a rear-end collision has occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent. This is applicable in all rear-end collision cases, including an emergency situation, as was alleged in this case.
In the context of weather related emergency situations, it will be very difficult for a defendant to succeed in proving he or she was not negligent. Emergency situations are inherently foreseeable during inclement weather and require motorists to drive accordingly.
[1] 2015 ONCA 110
Limitation Periods for Uninsured, Underinsured & Unidentified Claims
For many years lawyers on both sides of the personal injury bar debated the applicable limitation period, and when it begins to run, for claims made by a Plaintiff against their own insurer arising from car accidents involving either uninsured, unidentified or underinsured defendants. In the past, insurers have sought to rely on the twelve month limitation period contained in an insured’s personal automobile policy, found in paragraph 17 of the OPCF-44R of that policy. In contrast, Plaintiff counsel has long argued that s. 4 and 5 of the Limitations Act, 2002, should apply and override this provision. The Limitations Act imposes a basic two-year limitation period on all claims arising in the Province of Ontario, beginning on the date at which a claim is said to have been ‘discovered’. read more…
Does The New Statutory Deductible Apply to Current Actions?
When a Plaintiff is involved in a motor vehicle accident, the damages received for pain and suffering are subject to a statutory deductible. The deductible was put in place to ensure that only the most serious cases are litigated, given the influx of personal injury matters on limited court resources.
On August 1, 2015, the Ontario government implemented a new regulation to increase the deductible from $30,000 to $36,540 until December 31, 2015. Thereafter, the deductible amount is to be revised annually according to a prescribed formula, indexed for inflation. However, the regulation and statute are silent on whether the increased deductible should be applied retrospectively, meaning for accidents occurring after August 1, 2015.
To determine this important question, the courts have queried whether the change is considered substantive or procedural in nature. If the law is deemed substantive, the change is not retrospective and the new deductible applies for motor vehicle accidents occurring after August 1, 2015. Should the courts deem the new legislation as a procedural change, then the new deductible will be invoked for all accidents occurring prior to August 1, 2015.
In November 2015, the court in Cobb v. Long Estate held that the statutory change was a matter of substantive law and therefore cannot be applied retrospectively. However, following the Cobb decision, in March 2016, the court in Corbett v. Odorico held that the legislative increase was procedural and as such, deemed to apply retrospectively.
Given the conflicting case law on this matter, it is currently unclear whether the new deductible applies retrospectively. We look forward to comments from the Court of Appeal to settle this matter moving forward.
Can “hot tubbing” improve Ontario’s broken auto insurance system?
Photo credit: NYPhotographic.com
In an article published this April, Canadian Lawyer Magazine’s editor-in-chief Gail J. Cohen harshly criticized Ontario’s auto insurance industry, saying that it “increasingly doesn’t work for individuals seeking accident benefits, and it is tipped in favour of insurance companies looking to reduce payouts whenever they can.”
Central to Cohen’s argument was the behaviour of “medico-legal expert witnesses” who have helped to create “an uneven playing field between insurers and their clients.”
She is far from alone in voicing her concerns: the Ontario Trial Lawyers Association (OTLA) has called for an inquiry into the expert witness system; a review of alternative dispute resolution systems by Justice Douglas Cunningham found that “stakeholders he spoke to brought up the issue of skewed experts”; and Cohen reports that April’s personal injury legal report showed “numerous” instances of medical experts acting with insufficient impartiality.
“There are claims that a system of medico-legal experts distorts evidence, including court reports, to satisfy insurance companies,” Cohen writes. She also states that assessment clinics have allegedly altered doctors’ reports in insurers’ favour.
Insurance companies bear much of the blame for this issue, as experts who side with claimants are unlikely to be retained by insurers in the future. However, the system by which benefit disputes are resolved may also be partially at fault.
Solutions to the auto insurance system’s many problems are hard to come by, but one proposed improvement is the practice of “hot tubbing.” Also known as “concurrent evidence,” hot tubbing brings expert witnesses together to “testify in court … on a panel, rather than one-by-one in the witness box,” according to a Globe and Mail article from 2011.
The practice, which has been employed in Australia for years, is currently used in some Canadian legal settings where judges and juries don’t have the necessary expertise to reliably weigh technical evidence. It has mixed support from different members of the legal profession: judges like it; lawyers seem divided.
There are many arguments in favour of the practice, especially in situations where expert testimony could be biased. For one, panel members would be agreed upon by both sides of the dispute, which should ostensibly promote impartiality.
A panel scenario also allows experts to contradict one another and argue points of contention. This, in theory, would ensure that expert witnesses don’t act as advocates for any side of the dispute.
“The courts are really trying to emphasize the importance of experts not being just paid talking heads but people who are assisting the court arriving at the truth of the case,” WeirFoulds litigator John O’Sullivan told the Globe.
The Globe article also cited a paper composed by Supreme Court of Canada Justice Ian Binnie, who wrote that “experts testifying in the presence of one another are likely to be more measured and complete in their pronouncements, knowing that exaggeration or errors will be pounced upon instantly by a learned colleague, as opposed to being argued about days later, perhaps by unlearned opposing counsel.”
While hot tubbing could in theory improve the impartiality of auto insurance disputes, Ontario’s motor vehicle accident victims are likely to see the auto insurance system worsen before it improves. Upcoming changes, which will be implemented June 1, will significantly reduce the benefits available to accident victims.
If you or a member of your family has been injured in a motor vehicle accident, contact Neinstein Personal Injury Lawyers today for a free, no-obligation consultation. Accessing the accident benefits you need to aid your recovery can be an arduous task; Neinstein Personal Injury Lawyers will represent you in court and fight for your rights.
Railway accidents on the decline in Ontario, but work still to be done
Photo credit: FlyingPenguins/Wikimedia Commons
At a recent event in Toronto, Canadian transport minister Marc Garneau emphasized the importance of Canada’s railway system, reminding the audience that approximately 40,000 kilometres of tracks crisscross our country. “The network,” Garneau added, “is important to our communities and our economy. Our trains take hundreds of billions of dollars or products across the country and into foreign markets.”
Indeed, the national railway system has long played a vital role in Canadian society. However, with the emergence of faster and more convenient means of transportation, the railway’s glory days are behind it, and elements of the system have fallen into disrepair. Railway crossings across Canada have been neglected, leading to a surprising volume of collisions between trains and pedestrians or cars.
Though instances of railway accidents are far less common than car wrecks or bicycle collisions, the injuries resultant from them can be extremely severe, and in many cases may lead to death. In September 2013, for instance, a double-decker OC Transpo bus collided with a Via Rail train in suburban Ottawa, leaving six dead. Although a Transportation Safety Board investigation found the bus’s driver was at fault in the accident, the tragedy brought railroad crossing safety into the national spotlight.
This April, CBC Investigates looked into “wide-spread design flaws” found at the 25 crossings across Canada most prone to railway accidents since 2000. The investigation found that many lacked automated gate arms and protective pedestrian gates; advance warning signs, flashing lights, and bells; and often featured poor driver sightlines, overgrown bush, and confusing road signs.
Although railway accidents in eastern Canada have dropped 40 per cent in the past 16 years (the Western half of the country does not fare as well), more than 463 people have been killed at railway crossings in the time frame examined.
One of those fatalities occurred in London, Ontario in 2012. Kendra Cameron was just eleven years when she ran onto the tracks and was struck and killed by a train moving at about 50 km/h.
“She ran across the roadway and on to this pedestrian sidewalk where there was no barrier,” said Kendra’s mother Robyn Cameron. “It should be blocked off in some ways so the innocent don’t get hurt.”
In addition to the crossing where Kendra lost her life, London is also home to Canada’s “most crash-prone crossing” near the intersection of St. George St. and Piccadilly St. in the city’s downtown core. It is one of four Ontario crossings on the CBC’s list.
In an effort to reduce railway accidents, new changes to the federal Railway Safety Act were instituted in 2014. According to the CBC, the new regulations “were designed to provide consistent safety standards across the country, clarify the roles and responsibilities of railway companies and road authorities, improve safety features at crossings and mandate information sharing.”
While these new standards will make new crossings safer and will apply to crossings currently undergoing major renovations, they won’t apply to existing crossings until early next decade. Still, the government believes the changes will decrease railway accidents by about 1,000 and fatalities by about 250 over the next two decades.
If you or a member of your family has been involved and injured in a railway accident or collision, contact Neinstein Personal Injury Lawyers today. We can help you assess your claim through a free, no-obligation consultation.
Do I Have a Case?
Deciding whether to sue an at-fault driver is a difficult decision. Litigation is long and often quite contentious. The right to sue is limited in Ontario by the Insurance Act, which requires an injured party to have suffered a permanent and serious impairment of an important physical, mental or psychological function. This requirement has been considered the “threshold” by lawyers acting for the insurers and plaintiffs and is largely driven by facts and medical opinions.
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