Blog – Neinstein Personal Injury Lawyers
Facilitating Civil Reform in Toronto
Civil Reform: It invokes the kind of discourse our industry is quick to dismiss as rhetorical rather than pragmatic. At a recent trade conference in Toronto, however, both the bench and the bar spoke candidly about not only the need for reform, but the responsibility to facilitate it. To mitigate the rhetoric, the question remains: What are we talking about when we talk about civil reform?
Is the Ontario Workplace Safety and Insurance Board making it more difficult to access accident benefits?
Photo credit: Tomas Castelazo/Wikimedia Commons
In January 2016, a group of Ontario healthcare professionals, lawyers, and labour groups submitted a 200-page document to the province’s ombudsman, urging the watchdog to investigate the Workplace Safety and Insurance Board’s (WSIB) “systematic disregard” for assessments made by doctors. The submission – which included contributions from more than 20 medical professionals and evidence from 41 pertinent case studies – claims that the WSIB regularly ignores professional medical advice in favour of assessments made by “paper doctors,” who have not had contact with patients.
The opinions of these paper doctors have led to restrictions in patients’ accident benefits, which can have a devastating effect on families and leave injured workers in poverty.
“Injured workers and their advocates have been sounding the alarm for well over 20 years about workers’ compensation that ignores the advice of treating physicians and kicks desperate injured workers off their benefits,” said Ontario Federation of Labour president Chris Buckley on the day the complaint was filed.
On such injured worker is Marvin Mulder, a middle-aged former mover from Hamilton who the Toronto Star profiled for their coverage of the submission. In 2010, Mulder seriously injured his back on the job, and claims the WSIB ignored his doctor’s advice to them. Mulder was asked to participate in the WSIB’s work transition program almost directly following his accident, even as he struggled through a painful recovery that eventually included six spinal injections and two failed back surgeries. Unsurprisingly, Mulder’s injuries kept him from completing the program, and he was subsequently deemed “non-co-operative” by the WSIB. His benefits were slashed, and he was forced to turn to the Canada Pension Plan (CPP) for help. Despite the WSIB’s ruling, the CPP approved Mulder for accident benefits available to workers suffering “severe and prolonged disability.”
While injured workers bear the brunt of the WSIB’s disregard for medical advice, healthcare professionals have also been hurt. This April, the Star reported on a $3.2-million lawsuit being launched against the WSIB by Hamilton-area physician Dr. Brenda Steinnagel, who claims she was fired for not arriving at a medical opinion suited to the board.
According to the Star:
“Steinnagel is alleging that she was terminated last year after the WSIB repeatedly demanded that her employer, Vaughan-based WHCS [Workplace Health & Cost Solutions], change the medical opinion she wrote on hospital security guard Shawn McCabe, who was claiming benefits after suffering head injuries while trying to restrain a patient at Rouge Valley Centenary in Scarborough.”
McCabe claims he didn’t recognize himself after his injuries, and that he would cry for no reason. After examining him, Steinnagel concluded that McCabe’s emotional distress could indeed by related to his workplace injuries. The WSIB disagreed with her assessment, and according to her claim they “continued to resist her conclusion” and tried to force her “to participate in a fraud upon the public.” She refused to change her opinion, and was fired.
The WSIB denies Dr. Steinnagel’s allegations, and requested that the suit be thrown out and her statement of claim struck. This month, Superior Court Justice Elizabeth Stewart dismissed the WSIB’s request stating that “it is not plain and obvious that the causes of action pleaded have no chance of success such that they should be struck.”
The repercussions of both Dr. Steinnagel’s suit and the submission to Ontario’s ombudsman will not be known for some time, but it’s clear that the WSIB’s practices are having a negative effect on the injured workers having difficulty accessing their accident benefits, and healthcare professionals.
“The overall effect [of the WSIB’s actions] is that the injured workers are being re-victimized by the very system that was actually created to help them,” explained Aidan MacDonald of the Injured Workers’ Consultants legal clinic to the Toronto Star. “We’re hoping a systematic investigation and consequences from the ombudsman can start to shift the system back to an actual compensation system that treats injured workers with dignity and respect.”
If you or a member of your family believes they are entitled to accident benefits, contact Neinstein Personal Injury Lawyers today for a free, no-obligation consultation. We can determine the viability of your claim and help you on your road to recovery.
Choking hazards and product liability in children’s toys
Canadian consumers are owed a standard of care by the manufacturers, distributors, designers, and retailers of the products they purchase. That is to say, when a person buys a product, they have a right to expect that the product will not cause them harm. When a product fails to meet reasonable safety expectations, the owner may have grounds for a claim under a specific subset of personal injury law: product liability.
Product liability claims can stem from a wide range of products, from automobiles to electronics. For simplicity’s sake, though, let’s look at a particularly common source of product liability claims: children’s products.
Late last year, Loblaw Companies Ltd. recalled a baby’s jacket sold by Joe Fresh which was deemed a choking hazard.
“One instance of a child removing a button and putting it in their mouth has come to our attention,” the company said in a statement. While no injuries were recorded, the event shows just how seriously companies take product liability lawsuits. When the customer base is particularly vulnerable, companies must go to great lengths to ensure that their products are safe.
Each year in the run-up to Christmas, watchdog group W.A.T.C.H. (World Against Toys Causing Harm) releases a list of dangerous toys on the market. The 2015 list included products like dinosaur claws that children wear on their hands, which can cause facial or eye injuries; toys with pull strings which pose a strangulation threat; and a foldable trampoline, which can result in broken limbs. But the most common risk, as illustrated by Joe Fresh’s recall of the children’s jacket, is choking. Choking hazard claims are common enough that they are considered a distinct sub-set of product liability lawsuits.
In an effort to both reduce injury risk and avoid lawsuits, toy manufacturers put their products through a rigorous series of tests and quality checks, some of which Yahoo Finance examined in an article from November 2015. Safety and quality standards are decided based on the materials used in a product and how they are assembled. For instance, the fabrics contained in a toy doll will help to determine the standards around the toy, explained San Francisco-based failure analysis consultant Karen Raymet in the Yahoo article.
“If it is a toy with a wheel and axel that a child rolls along the floor, there’s a whole set of mechanical standards that say pieces can’t fly off – that’s a choking hazard – and it must be measured by dropping it from a prescribed height onto a concrete floor, and if it breaks, no small pieces can be small enough to be ingested,” Rayment explained.
Other standardization factors include where the toy is expected to be sold and what age group it is intended for. Testing is carried out by independent, third-party labs, and can include such procedures as impact tests, tension tests, textile tests, and compression tests.
Regardless of the testing a product is subjected to, though, there is always the potential for accidents and injuries, which is where product liability lawsuits enter the equation. Consumers have the right to expect a safe product when they make their purchase, and may be entitled to compensation if their expectation is not met.
If you or a member of your family has suffered an injury from a dangerous product, contact the product liability lawyers at Neinstein Personal Injury Lawyers. They can help you understand your circumstances and assess the potential for a claim.
Equitable Remedies and Long Term Disability Policies
Most people obtain Long-Term disability policies as part of their compensation package at work. Typically, every pay check includes partial payment toward a Long Term Disability policy, which is a first party contract. As a result, there is a positive obligation on an insurer to adjudicate Long Term Disability claims in good faith.
The court upheld this obligation in the case of Dube v. RBC Life Insurance Company. (2015 ONCA 641)
In that case, Mr. Dube was injured in a motor vehicle accident and was unable to return to work. His employer provided him with an insurance policy with RBC. Following the accident, Mr. Dube was denied disability benefits for failing to provide notice of his claim to RBC within 30 days of the accident and within the time prescribed by the policy. Mr. Dube commenced a civil action, and RBC brought a motion to dismiss the action. The question for the court was whether Mr. Dube was entitled to relief from forfeiture – an equitable and discretionary remedy that would allow Mr. Dube to continue his claim.
To determine whether Mr. Dube could pursue his claim against RBC, the court considered: 1) the conduct of Mr. Dube and 2) the gravity of the breach.
The court found that Mr. Dube’s conduct was “not unreasonable”. Mr. Dube’s employer had incorrectly advised that he did not have a long-term disability policy. Most importantly, the court found that RBC was not significantly prejudiced by Mr. Dube’s failure to report his claim. RBC argued that it was unable to conduct medical examinations at an early date; however, the court ruled that at 43 years old, Mr. Dube’s long term disability benefits were payable to age 65, thus the harm to Mr. Dube outweighed any prejudice to RBC.
Mr. Dube was entitled to continue his claim against RBC for Long Term Disability benefits.
Gardiner v. MacDonald: Municipality found partially responsible for accident where public transit bus had right of way
This January 26, 2016, decision in the Ontario Courts highlights the dangers of assuming that other drivers will obey the applicable traffic signs and signals. Despite having the right of way, all drivers must still exercise proper care and determine whether it is safe to proceed.
Gardiner is a case arising from a collision between a public transit bus and an SUV, which sadly resulted three of the SUV occupants dying. The sole question at trial was what apportionment of fault the bus driver had, despite the driver of the SUV having been drinking and the bus having entered the intersection of the crash on a green light.
The Honourable Madame Justice Roccamo provided her reasons for judgment. Justice Roccamo concluded that the bus operator had been negligent in his operation of the bus and apportioned 20% of the liability for the accident to the municipality. The following principles were provided in the decision:
- Speeding does not, in itself, constitute negligence as the question of whether a vehicle’s speed is reasonable turns on the factual circumstances, including the traffic and road conditions.
- Although drivers may assume that other drivers will obey the applicable traffic signs and signals, drivers with the right of way must still exercise proper care and determine whether it is safe to proceed.
- Professional drivers may be held to a higher standard of care than the general public which, in the case of bus drivers, is that of a “reasonable bus driver in like circumstances.”
Justice Roccamo concluded that the bus was speeding along its route and the operator should have driven more slowly given poor weather and road conditions. Consequently, although it was found that the bus operator had the right of way upon entering the intersection, his speed prevented him from reacting in time to the SUV, and was thus unreasonable. The Municipality was apportioned 20% at fault for the accident.
This case affirms that even drivers who are carrying on with the undeniable right of way may be found partially at fault for a car accident, and that the reasonableness of each drivers’ actions in all the circumstances must be considered.
Toronto Police will no longer investigate minor motor vehicle accidents
Photo credit: CennoxX/Wikimedia Commons
On March 24, Toronto Police issued a release announcing they will no longer respond to reports of motor vehicle accidents involving minor personal injuries or property damage only. The new policy, which took effect March 29, was implemented in reaction to rising collision rates and shifting police priorities.
“Our current model right now is not sustainable,” Constable Caroline de Kloet told the CBC. “Officers highly trained are investigating what we call fender benders and it’s much more practical to send these people to … the collision reporting centre.” read more…
Progression of Prosthetics
Prosthetics have vastly improved in the past several decades for individuals who have unfortunately lost a limb due to disease or injury. However, what happens to individuals who are so profoundly and catastrophically injured such as quadriplegics or have suffered debilitating illness? The answer now is round the clock care, numerous assistive devices, and long term hospitalization or significant home modification. The health care costs and insurance funding required for individuals who require such 24 hour attendant care for most activities of daily living is vast.
Pedestrian fatalities in motor vehicle accidents in Toronto rose sixty per cent from 2011 to 2015
Photo credit: LincolnGroup11/Wikimedia Commons
In the early morning of March 14, a 47-year old pedestrian was struck by a car and killed near Heartland Town Centre in Mississauga. Less than 12 hours later, a man in his 50s was seriously injured in a hit and run motor vehicle accident in the Danforth neighbourhood on Toronto’s downtown east side.
On the same day, Toronto police launched an awareness campaign with a goal of reducing fatal motor vehicle accidents involving pedestrians. Named the “March break, March Safe Campaign,” the program runs from March 14 to March 20, coinciding with GTA students’ week off school.
According to a Toronto Police release, collision analysis shows that an average of 50 to 60 per cent of all traffic fatalities involve pedestrians.
“A total of 75% of all fatalities reported this year have involved senior-age pedestrians,” the release reads. “Last year, 39 pedestrians lost their lives, representing approximately 60% of all traffic fatalities in Toronto.”
These numbers look even worse when compared to 2011, when just 18 pedestrians were killed in the city, 59 per cent less than in 2015, a year in which more than 1,500 pedestrians were involved in motor vehicle accidents.
Perhaps realizing that action needed to be taken, the Province announced new legislation last summer to reduce collisions, injuries, and fatalities on Ontario roads. The Making Ontario’s Roads Safer Act came into effect at the beginning of 2016.
“Ontario’s roads are among the safest in North America and this new legislation is intended to keep it that way,” said Transportation Minister Steven Del Duca in a release. “I look forward to continued collaboration with our law enforcement and other dedicated road safety partners to implement these measures.”
The act includes not only harsher penalties for road infractions like distracted driving and drug impairment, but also stiffer punishments for activities endangering cyclists and pedestrians. In particular, the act requires “drivers to wait until pedestrians have completely crossed the road before proceeding at school crossings and pedestrian crossovers.”
It’s too early to know what effect the Making Ontario’s Roads Safer Act will have on pedestrian fatality numbers, but so far the City of Toronto seems to be on pace for a slightly safer year. According to a Metro News initiative which maps pedestrian deaths throughout the year, nine people have been killed in Toronto so far in 2016.
Regardless of the effects of the act’s new laws, there are measures both pedestrians and drivers can take to improve road safety for all. The Ministry of Transportation has some pointers on their website:
For pedestrians
- Cross only at marked crosswalks or traffic lights. Don’t cross in the middle of the block or between parked cars.
- Make sure drivers see you before you cross. If the driver is stopped, make eye contact before you step into the road.
- Wear bright or light-coloured clothing or reflective strips, especially at dusk or when it’s dark.
- At a traffic light:
- Cross when traffic has come to a complete stop.
- Begin to cross at the start of the green light or “Walk” signal, where provided.
- Do not start to cross if you see a flashing “Do Not Walk” symbol or the light turns yellow. If you’ve already started to cross, complete your crossing in safety.
- Never cross on a red light.
- Watch for traffic turning at intersections or turning into and leaving driveways.
For drivers
Pay special attention to pedestrians as you drive. Here are some tips to follow:
- Always look for pedestrians, especially when turning.
- Watch for children – drive slowly and cautiously through school zones, residential areas, or any other area where children could be walking or playing.
- Watch out for Community Safety Zone signs that indicate areas where public safety is a special concern, including the possibility of encountering pedestrians.
- Be patient, especially with seniors or pedestrians with disabilities who need more time to cross the road.
- Drive carefully near streetcar stops with islands or zones for passengers getting on and off. Pass them at reasonable speeds, and always be ready in case pedestrians make sudden or unexpected moves.
If you have been injured in a motor vehicle accident, either as a pedestrian, driver, or passenger in an automobile, call Neinstein Personal Injury Lawyers today. You may be entitled to compensation for your injuries.
Metadata evidence presents challenge for personal injury lawyers
Photo credit: Kelvinsong/Wikimedia Commons
Maia Bent, President of the Ontario Trial Lawyers Association (OTLA), recently authored an interesting column for the Huffington Post outlining the growing role metadata – especially relating to email and social media – plays in personal injury cases in Canada.
“Over the last few years,” Bent writes, “as sharing of personal information on social media has become more ubiquitous, many personal injury cases in Ontario are being decided on evidence gathered from plaintiffs’ social media accounts, which provide ‘metadata’ creating a time and location stamp of a user’s online activity.”
Why you should discuss “optional benefits” with your insurance broker
“I just need the basic coverage”. This is what insurance brokers hear on a daily basis. Sound familiar? Of course, this mandate makes the broker’s job easy: find the cheapest premiums for the client and sell an automobile insurance policy. Rarely are the terms “optional benefits” discussed, even though they should be.
No one pictures themselves or family members actually getting into a car accident when premiums are purchased. However, when our clients are injured in a car accident, inevitably they are shocked at how little they are covered. read more…
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