A personal injury action that arises before or during your marriage can cause confusion when going through a divorce. What will happen to the money you receive from an ongoing or settled personal injury claim?
While this question is fact specific and will depend on each person’s situation, here are three tips for guidance:
It is very important that you inform your personal injury lawyer of the likelihood of divorce. Take advantage of the expertise of your personal injury lawyer so that he/she can take care when drafting settlement documents to provide a breakdown of damages and make suggestions as to other precautions you should take as well as connect you with a reputable family law lawyer to provide you with specific advice.
Request that the settlement is paid into a separate account solely in your name rather than a joint account. Be cautious on what you use your settlement payment on. For example, using it to pay off the mortgage on your marital home is not smart considering the matrimonial home is split upon divorce. Consider signing a marriage contract, which clearly states the settlement is for your use and benefit, and is not included in the family’s net income.
In pay is also referred to as structured settlement (SS) annuity payment, which means a personal injury tort is resolved by receiving all or part of a settlement in periodic payments. In the recent case of Hunks v Hunks, the Court of Appeal decided that SS annuity payments should be considered income and did not fall within the meaning of “property” under the Family Law Act. “Property”, under Part 1 of the Act, is defined as any real or personal property acquired during marriage; and such property can be divided equally between spouses. Thus, this decision means that SS annuity payments, unlike other annuities, are not sharable with your spouse when the marriage breaks down. However, you can expect that your SS annuity payments will be included when assessing income for spousal support, analogous to disability benefits.
Virk Personal Injury Lawyers are here to help. If you have questions on how this information might relate to you, please contact us.
In order to obtain damages for non-pecuniary loss and past or future health care costs, the threshold provisions require not only that a plaintiff establish that the damages meet the “threshold” requirements of a “permanent” and “serious” impairment of an “important” physical, mental or psychological function, but also that the “damages for non-pecuniary loss” or “damages for expenses that have been incurred or will be incurred for health care” are damages “from bodily injury…arising directly or indirectly from the use or operation of the automobile”.
The Plaintiff, 58 year old Franklin Shaw, brought an action for damages as a result of a rear-end motor vehicle collision with minor property damage. Mr. Shaw suffered from pre-existing osteoarthritis in his left knee. He claimed the collision caused his asymptomatic left knee to become symptomatic. On January 30, 2017, the jury returned its verdict and ordered $54,500 for general damages; $0 for past income loss; $0 for pension loss; $22,500 for future health care costs and $3,000 for future housekeeping expenses.
The defendants submitted at trial that the injuries were caused by Mr. Shaw’s pre-existing osteoarthritis in his left knee. After the verdict, the defendants brought a “threshold motion” (Shaw v. Mkheyan, 2017 ONSC 851) for a declaration that Mr. Shaw’s claims for general damages and future care costs were barred on the basis that his injuries did not fall within the exceptions to the statutory immunity provided for in sections 267.5(3)(b) and 267.5(b) of the Insurance Act, RSO 1990, c. I.8 and the applicable regulations (the “threshold provisions”).
The evidence at trial and on the threshold motion showed that Mr. Shaw had two knee surgeries, walked with a limp and at a slower pace, could no longer do heavier household chores, was no longer active and outgoing, would likely require further left knee surgeries in the future, and it was not likely Mr. Shaw’s pain in his left knee will decrease. The issue on the threshold motion with respect to Mr. Shaw’s left knee injury (as it was before the jury for the assessment of damages) was whether that injury arose “directly or indirectly from the use or operation of the automobile”, i.e. whether the accident caused the left knee injury.
It should be noted that causation is established on a “but for” test (Clements v. Clements, 2012 SCC 32). Further, the trial judge is not bound by the verdict delivered by the jury. But, the verdict is a factor the judge may consider in deciding the threshold motion.
On this threshold motion, Justice Glustein highlighted the importance of trial evidence and went through the expert opinion evidence, medical documentation and lay witness evidence in great detail to reach a decision.
At trial, Mr. Shaw led evidence from Dr. David Backstein, recognized as one of the leading orthopaedic surgeons in North America with surgical and research expertise in arthritis. Dr. Backstein’s opinion was that the force of the accident converted Mr. Shaw’s asymptomatic arthritis in his left knee into symptomatic arthritis causing Mr. Shaw’s left knee pain and two left knee surgeries.
The defendants led expert evidence from Dr. Hugh Cameron, also a leading orthopaedic surgeon with expertise in arthritis. Dr. Cameron’s opinion was that Mr. Shaw’s left knee injury arose as a result of Mr. Shaw’s pre-existing osteoarthritis and was not caused by the accident.
Justice Glustein preferred the evidence of Dr. Backstein to that of Dr. Cameron. Dr. Backstein’s opinion was that many people with osteoarthritis have no pain, let alone necessarily require total knee replacement surgery as Mr. Shaw did. Dr. Cameron provided no basis to support his conclusion that once a patient is diagnosed with arthritis, the condition would necessarily get worse, let alone be “relentless” as he described it. On the other hand, Dr. Backstein gave detailed evidence about his expertise as an orthopaedic surgeon. His evidence was that people can have osteoarthritis and not be aware of it since it does not necessarily become symptomatic.
Most interestingly, Dr. Backstein’s evidence was that a direct impact to the knee was not required to convert asymptomatic arthritis to symptomatic arthritis. He discussed his experience as an orthopaedic surgeon in which patients with asymptomatic arthritis would then have symptomatic arthritis as a result of a minor force which did not require a direct impact, such as twisting a knee. A high speed accident, striking the knee, or serious property damage would not be required for the accident to cause the injury. The force of even a minor accident could be sufficient. Dr. Cameron provided no evidence on the issue of force required to convert asymptomatic arthritis to symptomatic arthritis.
Justice Glustein also did not accept the defendants’ submission that the lack of a note in the emergency department records meant that Mr. Shaw did not have pain in his left knee after the accident. Mr. Shaw’s evidence at trial was consistent with the circumstances surrounding the accident and Justice Glustein accepted Mr. Shaw’s evidence that he did not mention his left knee pain as it was a dull pain which he thought would go away in an hour or two. Ultimately, the defendants’ motion was dismissed.
A good takeaway from this decision is that plaintiff’s counsel should not underestimate the importance of the evidence that is led at trial on “permanent” and “serious” impairment.
Freda Vanopoulos is co-chairing and moderating this not to be missed Hamilton Law Association CPD Roundtable “Branding, Marketing, Referrals & Retainers” on May 9th.
Details can be found at the link below:
The Hamilton Chamber of Commerce has put together an exciting panel of leading women in Hamilton to bring attention to some diverse issues that affect us all.
YEP Chair and Hamilton personal injury lawyer at Virk Law, Freda Vanopoulos, will be moderating this panel of 4 leading women. You don’t want to miss it. And it’s free. Register today! Details can be found at the link below.
As of April 1, 2016, the way accident benefit disputes will be handled has changed. The License Appeals Tribunal (LAT) will handle arbitration applications instead of FSCO. On November 29, 2016, the LAT heard one of the first decisions on the catastrophic impairment designation. The decision, P.L.F.R. and Intact Insurance Company (Tribunal File #16-000145/AABS) is about an applicant who suffered serious life-threatening injuries in a multi-vehicle accident on October 2, 2015 that required her to be airlifted to a trauma centre for emergency surgery. The issue to be determined was whether the applicant, P.L.F.R., suffered a catastrophic impairment as a result of brain impairment sustained in the car accident.
The evidence was clear that the applicant suffered a brain impairment as a result of the accident. She had a large laceration of her scalp that exposed the skull, and subsequent investigation showed a subarachnoid haemorrhage (bleeding of the lining of the brain).
Following the accident, emergency personnel recorded a series of Glasgow Coma Scale (GCS) scores ranging from 12 to below 9. The Tribunal explained that the GCS score is a clinical tool used by first responders and clinicians to assess the consciousness of patients. The respondent, Intact Insurance Company (Intact), argued that all recorded scores below 9 did not result from the brain impairment. They resulted from endotracheal intubation and sedation in the emergency room.
Section 3.1(d)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule), sets out a four point test: i. Did the applicant suffer a brain impairment as a result of the accident; ii. Did the brain impairment result in a GCS score of 9 or less; iii. Was the GCS test administered within a reasonable time following the accident; and iv. Was the GCS test administered by a person qualified to do so?
This subsection then goes on to define a catastrophic impairment as a score of 9 or less on the GCS. The subsection sets a threshold that once crossed, earns the designation of catastrophic impairment which makes higher policy limits available should treatment be necessary (e.g. post June 1, 2016, a new combined medical, rehabilitation and attendant care benefit of $1,000,000 available for life).
The applicant had a reduced GSC score of 12 in the ambulance on her way to the emergency room. When she arrived at the emergency room her GCS fluctuated between 13 and 10. Following intubation and sedation, subsequent GCS scores are denoted with a “T” to indicate that, as a result of intubation, the voice component could not be tested. Her scores ranged from 7T to 2T during the air ambulance trip and in the emergency department at the trauma centre.
Intact relied on the opinion of Dr. Garry Moddel, a Neurologist, who attributed the GCS score of 7T to sedation and noted there was no evidence of neurological deficit. The Tribunal held, however, that section 3.1(2)(d)(i) does not require an ongoing neurological deficit to qualify for catastrophic impairment designation.
The appellant relied on the opinion of Dr. Harold Becker, a General Practitioner, who concluded that a GCS score from an intubated patient is reliable. The Tribunal accepted that the GCS scores below 9 were valid and then turned to the question of causation.
Dr. Becker noted that the applicant was hypovolemic from loss of blood and that her blood pressure was dropping which will result in decreased brain function and a lower GCS score. Hospital records indicated that she was given massive blood transfusions at the trauma centre; however, her GCS continued to drop as she left the trauma centre for the operating room. Indeed, the Tribunal noted that the applicant’s GCS scores fluctuated between 13 to 19 prior to her transfer to the trauma centre, which supported Dr. Becker’s opinion on the effects of the blood loss.
Therefore, in light of all the evidence, the Tribunal found the applicant’s brain impairment and lowered GCS scores were caused by her brain injury and hypovolaemia directly resulting from the accident.
Under the new LAT regime, the Tribunal’s ability to award costs has been severely restrained. The Tribunal could find nothing unreasonable, frivolous, vexatious or bad faith about the manner in which the matter proceeded, nor was any such behaviour drawn to the Tribunal’s attention. Accordingly no costs were ordered.
One of the most critical decisions involving limitation periods in recent history is the decision Letestu v. Rityln Investments Ltd.,  O.J. No. 5422 because the Court held that a personal injury claim involving a tenant and landlord is subject to the one year limitation period in the Residential Tenancies Act, 2006 (RTA) and not the basic two year limitation period in the Limitations Act, 2002 (Limitations Act) for starting an action.
Section 2 of the Limitations Act applies to “claims pursued in court proceedings”. The Limitations Act does not state that it applies to claims brought before administrative tribunals, such as the Landlord and Tenant Board (Board), which is an administrative tribunal established under the RTA.
On January 11, 2010, the plaintiff, Mr. Letestu allegedly tripped over some “worn, torn and unsecured carpet” in his living room and fell, sustaining physical injuries. The plaintiff alleged he made prior complaints about the condition of the carpet to the defendant landlord, which took no steps to fix the carpet. Therefore, on December 15, 2011, the plaintiff commenced an action against his landlord in the Superior Court of Justice for negligence and for failure to follow its duties under the Occupier’s Liability Act.
The defendant brought a motion to strike the plaintiff’s claim on the basis that the Superior Court had no jurisdiction to hear the case and the plaintiff should have brought his matter before the Board.
In support of its position, the defendant made the following arguments:
In response, the plaintiff argued that the RTA only provides the Board with jurisdiction to hear matters up to the limit of the Small Claims Court; otherwise, the Superior Court has the power to make any order that the Board could make. Further, any action in the Superior Court is governed by the Limitations Act which provides for a two-year limitation period. The plaintiff framed his action under the Occupiers’ Liability Act and, therefore, the one year limitation period set out in the RTA does not apply.
In the alternative, the plaintiff argued:
In the end, the Court found that the specific nature of the complaint in this action is for “want of repair”. Based on the reasoning in the Mackie decision, the Court held that the Board has exclusive jurisdiction over the subject matter of the plaintiff’s claim. Further, sections 168 and 174 of the RTA give the Board exclusive jurisdiction over matters set out in the RTA. In addition, section 2 of the Limitations Act makes it clear that the Act applies to “claims pursued in court proceedings”. Accordingly, the Board has exclusive jurisdiction over the subject matter and, therefore, the action must be commenced within the one-year limitation period before the Superior Court can assume jurisdiction for claims exceeding $25,000. Since the Board has exclusive jurisdiction over the subject-matter of the case, the Occupiers’ Liability Act does not apply. Finally, a party cannot attorn to the jurisdiction of a court if that court does not have jurisdiction in the first place.
This decision is currently under appeal. In the meantime, personal injury counsel would be wise to review their case load and ensure their tickler systems reflect the one year limitation period with respect to their tenant-landlord disputes.
In Ontario, the basic limitation period for when a legal action needs to be started is two years from the day on which the claim was discovered (Section 4 of the Limitations Act, 2002). A claim can be discovered in a number of ways. Section 5(1) and (2) of the Limitations Act, 2002 states:
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause
(1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Personal injury plaintiffs commonly rely on Section 5 of the Limitations Act, 2002 in response to an allegation that their action is statute-barred as it was started after the basic 2 year limitation period.
In the Ontario Court of Appeal decision, Brown v. Baum 2016 ONCA 325, a medical malpractice case, the Plaintiff (Respondent), Diana Brown, suffered severe complications following a breast reduction surgery which was performed by the Defendant (Appellant), Dr. Joseph Baum, on March 25, 2009. Ms. Brown brought an action against Dr. Baum alleging lack of informed consent on June 4, 2012, over 3 years after the initial surgery but within 2 years of when Dr. Baum last treated her to correct the original problems.
Dr. Baum was unsuccessful on his summary judgement motion to dismiss the action as statute-barred under the Limitations Act, 2002. The motion judge found that as of July 2009, Ms. Brown knew she had suffered an injury that was caused or contributed to by an act or omission of Dr. Baum and therefore she satisfied sections 5(1)(a)(i-iii).
But, because Dr. Baum continued to treat Ms. Brown to correct the original problems, the motion judge found that s. 5(1)(a)(iv) had not been met because Ms. Brown did not know that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage she had suffered. The Court of Appeal agreed with the motion judge that the fourth condition of discoverability under the Limitations Act, 2002 is met at the point when the claimant not only knows the factual circumstances of the loss she has suffered, but also knows that “having regard to the nature of the injury, loss or damage”, an action is an appropriate remedy. Once she knows that, she has two years to initiate that action.
Because Dr. Baum was continuing to treat Ms. Brown to try to fix the problems from the initial surgery, it would not have been appropriate for Ms. Brown to sue the doctor then, because he might have been successful in correcting the problems and improving the outcome of the original surgery. The Court of Appeal found that a reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting and reduce her damage. Therefore, the limitation period did not commence until June 16, 2010, the date of Ms. Brown’s last corrective surgery by Dr. Baum, and Ms. Brown’s Statement of Claim was issued within the limitation period.
In contrast, the Plaintiffs in the more recent decision, Fontanilla v. Thermo Cool Mechanical 2016 ONSC 7023, were not as successful arguing discoverability. The Plaintiffs brought a motion for an order granting leave to add additional defendants to the action. It is just as important to determine whether the ability to bring an action has expired under Section 4 of the Limitations Act, 2002 when adding defendants as it is for bringing a separate action against those parties.
On January 31, 2011, the late Felisa Santo Fontanilla, a resident of Living Waters Residence Inc. (a retirement home), while in the bathtub turned on the hot and cold water taps for bathwater when the chrome diverter spout of the faucet burst, spraying scalding water over her body. She suffered severe burns to sensitive parts of her body. She passed away on October 6, 2011.
Mrs. Fontanilla’s family issued a Statement of Claim on January 25, 2013 (6 days before the expiry of the limitation period) against Thermo Cool Mechanical (the contractor hired by the retirement home to replace certain plumbing for the building in March 2010) and Living Waters Residence Inc.
Thermo Cool Mechanical delivered their Statement of Defence on June 11, 2014 and issued a Third Party claim naming a variety of parties on June 18, 2014. The Third Party Claim alleged that it was an anti-scalding/mixing valve in the faucet that failed on January 31, 2011; the valve had been manufactured by Watts Water Technologies (Canada) Inc. (“Watts”) and had been supplied by Gayton Systems Development Inc. (“Gayton”)
Plaintiffs’ counsel swore in her affidavit of June 3, 2015 in support of the motion that she spoke with the insurer for the defendant, Thermo Cool on April 1, 2014 and learned for the first time of other potential parties, but the insurer did not provide her with any specific names, or contact information for those names or companies at that time. Plaintiffs’ counsel swore in her affidavit that the Third Party Claim was the first time additional parties had been identified to the Plaintiffs by name.
The Court stated that the main issue when determining if a limitation period has expired to bar the Plaintiffs from joining Watts and Gayton as Defendants is whether there is evidence before the court that the Plaintiffs or their lawyer exercised reasonable diligence to identify Watts and Gayton as Defendants within the limitation period. Reasonable diligence, however, is only one factor to take into consideration. The Court considered the other factors (which are fact driven and particular to the circumstances of each case) set out in Galota v. Festival Hall Developments 2016 ONCA 585 as follows:
Accordingly, the Court found that Watts and Gayton would suffer non-compensable prejudice if they were added as Defendants to the action. Even though they were already Third Parties, they were protected in that the Plaintiffs first had to establish liability against the Defendants in order for the Defendants to have a claim against the Third Parties. The Plaintiffs’ motion was dismissed.
All owners of vehicles in Ontario must purchase a standard auto insurance policy. If you or your loved ones are seriously injured in a car accident, then you are entitled to receive “No Fault” Statutory Accident Benefits. However, on June 1, 2016 the benefits and coverage in the standard auto insurance policy changed. These changes will impact car accident victims in a significant way. It is critical that you speak to your insurance representative about these important changes.
The changes apply to policies issued or renewed on or after June 1, 2016. Existing policies remain subject to the current limits until the policy is terminated or renewed.
The following is a summary of the key changes every insured should be aware of:
In addition, as of April 1, 2016, the way accident benefit disputes will be handled has changed. The License Appeals Tribunal (LAT) will handle arbitration applications instead of FSCO. There will be no more mandatory mediations in advance of arbitration. Instead, an applicant will be able to apply for arbitration immediately upon his or her benefit being denied or terminated. If the matter does not settle at the case conference (similar to FSCO’s pre-arbitration hearing), then the hearing will proceed by written format or expedited, electronic format. In-person hearings will be reserved for the most serious cases such as catastrophic impairment claims.
It is essential that you speak to your insurance representative and ask questions before you renew your policy. Finding an insurance policy that will offer you and your family the most protection should be a priority. Make sure you know what options are available to increase or purchase other benefits to ensure you and your family are protected.
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