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1
Nov

What is the duty of a bar owner to provide security for its patrons?

An owner of a bar or club has an obligation to make sure it is safe for its patrons to use.  This means, for example, ensuring that enough security guards are present, they are properly trained and that they do not use more force than reasonably necessary.  An owner only has to take reasonable steps to keep patrons reasonably safe from reasonably foreseeable harm or danger.  But, is it reasonably foreseeable that a patron would cause harm to a third party on leaving the premises of a bar?  This was the central issue in the summary judgment motion, Schiavone v. Woods, 2018 ONSC 4789.

In this summary judgment motion, the material facts on the evidence are that the Ceeps-Barneys Limited (“Ceeps”) is a pub/sports bar in London, Ontario.  On October 24, 2009, it had eight bartenders, nine security guards wearing shirts with the words “Security” on them, and one manager.  All security staff had taken a 40 hour course and a one-day training course.

The defendant, Sean Woods, went to the Ceeps with his brother, the defendant, Brenden Woods, after consuming some alcohol.  While at the Ceeps, Sean Woods consumed more alcohol and because of his intoxicated state and improper behavior, was asked to leave and was escorted out by staff of the Ceeps.  A taxi was not offered as Sean Woods was with his girlfriend and Brenden Woods did not appear to be intoxicated.

In the parking lot of the Ceeps, the plaintiff, Kyle Schiavone, was walking/stumbling in an intoxicated manner trying to get into a cab which the driver refused.  Sean Woods then indicated he would take the cab and slapped the plaintiff on the back which the plaintiff took out of context and a fight ensued.  Scott Dunlop (the Ceeps’ supervisor of security) was initially talking to Brenden Woods as he was leaving the bar when the fight broke out.  Scott Dunlop was focused on calming down the plaintiff and after the initial fight was over, Brenden Woods then came over and threw an unexpected punch over the shoulder of Scott Dunlop striking the plaintiff in the face causing him to fall to the ground resulting in significant injuries.

The Honourable Justice Nightingale did a careful review of the principles of a summary judgment motion:

  • The onus is on the defendant to establish on a balance of probabilities that there is no genuine issue requiring a trial with respect to the plaintiff’s claims against it.
  • The Court is entitled to assume that the parties have provided all of the relevant evidence that will be presented at the trial and that there will be no further evidence.
  • The Court must first determine if there is a genuine issue requiring at trial based on the evidence before the court without using the fact-finding powers under Rule 20.04 (2.1).
  • There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
  • If the moving party has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution, the burden shifts to the responding party to prove that their claims have a real chance of success, i.e. there is a genuine issue requiring a trial.

The plaintiff tendered expert reports from Professor Solomon and Mr. Stephen Summerville (who has extensive experience in matters relating to security including training) to support their allegations that the defendant, Ceeps, is liable for the plaintiff’s injuries. Mr. Summerville’s expert opinion was that the assault was avoidable and could have been prevented by:

  • complying with industry standards for licensed commercial premises including the Smart Serve program regarding the service of alcohol;
  • using industry standards of bars, nightclubs and taverns to escort ejected patrons to taxis and buses which if done in this case would have prevented the plaintiff’s injuries;
  • having adequate security staff present outside the Ceeps to prevent an altercation between Sean Woods and the plaintiff; and
  • deploying sufficient security staff/having sufficient security measures in place to prevent third parties including Brenden Woods from getting involved in the altercation and assaulting the plaintiff.

The defendants did not provide any responding expert opinion evidence to rebut the plaintiff’s expert evidence.

Justice Nightingale was not satisfied that the defendant, Ceeps, had established that the plaintiff’s proposed expert evidence should be ruled inadmissible because of their assuming the role as an advocate for the plaintiff.  Justice Nightingale found that this was not a very clear case in which the experts had been proven by the defendant to be unable or unwilling to provide the Court with their objective and nonpartisan evidence.

After a careful analysis, Justice Nightingale concluded that the issue of causation and foreseeability of the plaintiff’s injuries, i.e. was it reasonably or objectively foreseeable that Sean Woods and/or Brenden Woods would cause harm to others on leaving the premises, would be for the Court to decide based on all the evidence before it including what weight it would attach to the expert evidence.

Where or not something is “reasonably foreseeable” is an objective test. The analysis is focused on whether someone in the defendant’s position ought reasonably to have foreseen the harm prior to the incident occurring rather than whether the specific defendant did.  Justice Nightingale concluded it is because of these circumstances that could warrant the imposition of a positive obligation to act by the Ceeps security staff which it did not do that results in the defendant, Ceeps, not being able to establish that there is no genuine issue requiring a trial on the issue of foreseeability.

Furthermore, there were some issues of liability and the credibility and reliability of the parties’ evidence and in particular with respect to the level of intoxication of Brenden Woods, his actions and the presence and actions of Ceeps’ security staff shortly before and at the assault and, therefore, this was not an appropriate case for exercising discretion under Rule 20.04(2.1) including hearing further oral evidence or conducting a mini trial.

9
Jul

Can I make a Family Law Act claim?

When a loved one is injured in a motor vehicle accident, the individual is not the only person affected by the losses suffered.  Family members are also affected, whether it be because their loved one is no longer the same person, or the family members have take on new roles and support the accident victim both emotionally and physically. It is not uncommon for accident victims to express a change in their personality and feel depressed. These changes can be especially difficult on their spouse and can cause their relationship to become strained or break down completely.

So, what can be done in these situations?

Family members along with their loved ones have rights to pursue a claim for their losses.  Section 61(1) of the FLA states that spouses, siblings, children, grandchildren, parents and grandparents may be entitled to recover damages as a result of their family member’s injuries or death due to another person’s negligence. Those damages are claimable under five heads, including:

  1. expenses incurred for the benefit of the person injured or killed;
  2. funeral expenses;
  3. allowance for travel expenses incurred in visiting the injured person during their treatment or recovery;
  4. reasonable allowance for loss of income or the value of the services such as, nursing, housekeeping; and
  5. an amount to compensate for the loss of guidance, care and companionship.

When considering making a FLA claim, you should bear in mind that there is a deductible of $18,692.59 as of 2018 which is subject to annual inflationary increases. During your initial free consultation, the lawyer you meet with can help to determine the value of your claim so you can decide if pursuing your FLA claim is worthwhile.

If you have questions regarding the above, the lawyers at Virk Personal Injury Law would be happy to speak with you.

22
Jan

7 key aspects of the new Ontario’s Fair Insurance Plan

On Tuesday December 5 2017, Ontario’s Minister of Finance with the Attorney General announced their Fair Auto Insurance Plan. These reforms were recommended by David Marshall, whom back in April of 2017 released a report, urging that transformative changes need to be made.

Regardless of Ontario having the lowest collision rate in the country, we are paying the highest premiums.  The Ontario government has indicated they intend to remedy this and achieve the following objectives with the Ontario’s Fair Auto Insurance Plan which is composed of thirty-five measures. Here are 7 highlights:

  1. Standard Treatment Plans for common collision injuries to standardize treatment and shift the emphasis from cash payouts to treatment costs.
  2. Independent Examination Centers will be instituted to attempt to provide credible, neutral assessment. The object is to prevent predetermined result, ghost writing and delays caused by diagnosis and treatment disputes between insurance companies and people injured in collisions.
  3. Launching Ontario’s first Serious Fraud Office (SFO) to combat systemic fraud. This office will be composed of representatives from the OPP and Ministry of the AG.
  4. Financial Services Commission of Ontario will conduct a review of risk factors to ensure drivers are not subject to unfairly high premium rates.
  5. Giving Financial Services Regulatory of Ontario greater teeth by allowing them rule making authority. This can only be through amendments to the Insurance Act, which the Minister of Finance confirmed has already been tabled.
  6. In collaboration with the Law Society of Upper Canada (LSUC), the government wants contingency fees that are reasonable and transparent so victims know ahead what they will be paying. The LSUC has approved the following, among others:
    • Mandatory standard contingency fee agreement
    • Legal professionals are required to publically disclose the maximum contingency fee percent they charge
    • Lawyers and paralegals are required to annually report on their contingency practises.
  1. A panel of up to five experts will be established to provide the government with guidance on reforms and engage with drivers, insurers, heath and legal service providers.

 

The Minister of Finance assures that the cost of implementation is not an issue.  Many of the reforms can begin right away, however we will need to wait until Spring 2018 for the standard treatment plans to be developed, the Fraud office to be up and running, and the Financial Service Commission of Ontario to complete their review of risk factors.

11
Dec

Will my personal injury settlement be considered in my divorce?

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:

  1. Seek advice from your personal injury lawyer and a family lawyer.

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.

 

  1. Take precautions.

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.

 

  1. Keep a settlement as “in pay” rather than lump sum.

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.

8
Dec

Read the press release for the auto reforms from Marshall’s report here:

 

https://news.ontario.ca/mof/en/2017/12/ontarios-fair-auto-insurance-plan.html

8
May

Does your injury meet the threshold?

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.

20
Apr

Not too late to register!

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:

http://newsletters.cubiclefugitive.com/t/y-C32BC186153FC677

20
Apr

Come join Freda Vanopoulos who is moderating this fabulous Women in Leadership Panel

 

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.

Women in Leadership Panel with YEP

13
Mar

Is your brain impairment enough to render a catastrophic impairment designation?

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.

13
Mar

Were you injured on your landlord’s property?

One of the most critical decisions involving limitation periods in recent history is the decision Letestu v. Rityln Investments Ltd., [2016] 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:

  • The nature of the dispute involves allegations arising from disrepair, which is within the exclusive jurisdiction of the Board, regardless of how the allegations are pleaded.
  • Claims such as the plaintiff’s must be brought within one year and after the one-year period expires, the Board no longer has jurisdiction.
  • The powers of the Board are extended to the Superior Court for claims exceeding $25,000, but only where the claimant would otherwise have been entitled to apply to the Board, if the damages claimed were equal to or less than $25,000.
  • The statement of claim was issued more than one year after the alleged incident.
  • The Limitations Act does not apply to administrative tribunals such as the Board.
  • The decision Mackie v. Toronto (City) 2010 ONSC 3801 is identical to the plaintiff’s case wherein the court held that the Board had exclusive jurisdiction to resolve the tenants’ repair claims.
  • It is not the label or title that one attaches to a claim that decides the jurisdiction issue. To say that the plaintiff advances a tort claim or a claim in negligence, merely identifies a particular cause of action. It does not provide any insight into the essential character of the dispute: Efrach v. Cherishome Living 2015 ONSC 472.

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:

  • Nowhere in the RTA does it limit the landlord responsibilities under any other act, including the Occupiers’ Liability Act.
  • The limitation period in the RTA should be void in this court, as it does not allow for any discoverability principle.
  • Even if the one-year limitation period applies, the condition of non-repair continued to exist until the plaintiff’s death on May 14, 2011 and accordingly was an ongoing default and the action was commenced within the one-year time.
  • By their involvement in this action, the defendants have attorned to the jurisdiction of the Superior Court.
  • The defendants have not brought this motion promptly.

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.

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