DSF is Recognized in Best Lawyers 2024 Edition Devry Smith Frank LLP (DSF) is proud to announce that we have been recognized by Best Lawyers in Canada for the 2024 Edition with 7 of our lawyers ranked across various practice areas. The lawyers being recognized are listed below: David Lavkulik – Personal Injury Litigation Diana L. Solomon – Family Law George O. Frank – Personal Injury Litigation Jennifer K. Howard – Family Law Marc G. Spivak – Personal Injury Litigation Marty Rabinovitch – Labour and Employment Law – Recognized for the first time in 2024 edition of Best Lawyers Todd E. Slonim – Family Law We are grateful for this recognition and will continue to strive to provide the best service for our clients. Best Lawyers is the legal profession’s oldest peer-review publication and garners immense respect as the recognition signifies peer approval. Lists of outstanding lawyers arise from thorough evaluations where legal experts confidentially evaluate their colleagues. For over 40 years, this top peer-review publication acknowledges leading attorneys across more than 100 practice areas, chosen for outstanding feedback. “Lawyer of the Year” is awarded to one attorney in each practice area and metropolitan area, further amplifying its significance. Please visit their website for more details: www.bestlawyers.com By AlyssaBlog, Employment Law, Family Law, Labour Law, Personal Injury, UncategorizedAugust 25, 2023August 25, 2023
Feelings of Anger and Frustration are Not Compensable Mental Injuries Bothwell v London Health Sciences Centre Mental injuries can be as devastating as physical injuries to the people who experience them, but they are not as easily recognized as injuries by the courts. By law, individuals need to meet a high threshold to prove a compensable mental injury, which includes demonstrating impairment of cognitive functions or daily life. In general, this means that feelings of anger and frustration are not compensable mental injuries. To put this in context, consider the following vignette: You are driving home from work and enter an intersection when the light is green. Out of nowhere, another car comes rushing through the red light and crashes into you. You survive, but receive a concussion, several broken bones, and spinal injuries. Each of these injuries severely impact your ability to work and live your life. You also feel extreme frustration and anger that this happened to you through no fault of your own and because of another person’s reckless actions. These feelings are overwhelming. For this reason, you have become short and irritable with many family and friends and have alienated some of them. You feel as though these feelings have had as much of an impact on you as your physical injuries because of their deleterious effects. You wonder, “can I be compensated for these types of injuries?” The question of whether a person can be compensated for mental injuries together with physical injuries was addressed in the recent Ontario Court of Appeal decision Bothwell v London Health Sciences Centre.[1] In Bothwell, the court clarified what is required for a compensable mental injury and whether persistent feelings of anger and frustration qualify. In essence, for a mental injury to be legally recognized as compensable, it needs to be serious and enduring, surpassing the common irritations, worries, and fears that are part of everyday life. Emotional reactions beneath this threshold — such as distress, aversion, anxiety, or agitation — are not legally recognized as compensable mental injuries. Facts of the Bothwell Case Mr. Craig Bothwell suffers from Crohn’s disease. In September 2011, Mr. Bothwell went to London Health Sciences Centre, Victoria Hospital to undergo a surgical procedure connected to his condition. Following the procedure, his doctor ordered that he be given a blood volumizer, but a nurse mistakenly administered an anticoagulant instead. As a consequence, Mr. Bothwell experienced internal bleeding and required emergency surgery. He would also undergo several more surgeries to repair further damage. In addition to his physical injuries, Mr. Bothwell felt frustrated and angry about his experience; i.e., that this serious injury happened to him through no fault of his own and because of another person’s carelessness. The Test for Compensable Mental Injuries Compensable mental injuries were first recognized in Mustapha v Culligan of Canada by the Supreme Court of Canada in 2008.[2] Here, the injury must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”[3] In contrast, “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”[4] Saadati v Moorhead reaffirmed this test and emphasized the difference between “mental injury” and “mere psychological upset.”[5] The Court laid out several factors to consider when assessing whether a claimant has demonstrated a mental injury and not simply psychological upset, including: the impairment on the claimant’s cognitive function and daily activities; the length of such impairment; the nature and effect of any treatment on the impairment; expert evidence or a psychiatric diagnosis; and any other evidence produced by the claimant which shows the presence of a mental injury on a balance of probabilities. In Saadati, Mr. Saadati was involved in five car accidents and the second caused him psychological injuries, including personality change and cognitive difficulties like slow speech. These changes led to a deterioration in Mr. Saadati’s relationship with his family and friends. As such, the Court found that these injuries constituted a “serious and prolonged disruption that transcended ordinary emotional upset or distress.”[6] Application in the Bothwell Case At trial,[7] Mr. Bothwell claimed that he experienced a number of psychological injuries in addition to worsening physical symptoms of his Crohn’s disease — including nightmares, emotional distress, anxiety, and depression. At trial, the court found that the error indeed caused Mr. Bothwell’s psychological upset and that Mr. Bothwell’s feelings of persistent anger and frustration met the standard for a compensable mental injury established by law. The Ontario Court of Appeal overturned the trial judge’s ruling. Here, the Court interpreted Saadati as laying out two steps to distinguish a mental injury from mere psychological upset: the claimant’s psychological upset; and the impairment of the claimant’s cognitive functions and daily life from that upset, the length of such impairment, and the nature and effect of any treatment sought. The Court found that the trial judge failed to consider the second element: …the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell’s continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.[8] The Court then examined whether Mr. Bothwell met this test and found that his evidence fell short. The Court saw no indication that Mr. Bothwell’s feelings of frustration and anger following the incident impaired his cognitive functions or daily life; i.e., he continued to work as a paramedic and participate in his family life as a husband and father. The Court also highlighted the importance of obtaining expert evidence — while the law does not require expert evidence to find a compensable mental injury, claimants run the risk of falling short of proving their evidentiary burden without it. The Court also clarified that while the gravity of the experience may be a relevant factor, the Saadati factors still must be considered and applied. As such, Mr. Bothwell’s persistent feelings of frustration and anger did not constitute a compensable mental injury. Summary and Conclusion Mental injuries can be equally, if not more, devastating than physical injuries. Moreover, unlike a wound or broken bone, mental injuries are not often readily apparent to the courts. As seen in Bothwell, there is a very high threshold that claimants must meet to prove a compensable mental injury. Even persistent feelings of anger and frustration will not meet the threshold unless claimants cannot also prove that these feelings impaired their cognitive functions or daily life and activities. Moreover, while not required, expert evidence of mental injury can be integral in establishing a valid claim. For more information regarding personal injury related topics, please contact David Heppenstall at Devry Smith Frank LLP at (416) 446-5834 or david.heppenstall@devrylaw.ca This blog was co-authored by Summer Law Student, Leslie Haddock “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Bothwell v London Health Sciences Centre, 2023 ONCA 323 [Bothwell, ONCA]. [2] 2008 SCC 27. [3] Ibid at para 9. [4] Ibid at para 9. [5] 2017 SCC 28 at para 37 [emphasis in original]. [6] Ibid, at para 40. [7] Bothwell v London Health Sciences Centre et al, 2021 ONSC 6755. [8] Bothwell ONCA at para 34. By Fauzan SiddiquiBlog, Personal InjuryJuly 4, 2023July 5, 2023
The Rebuttable Presumption of Implied Consent In Motor Vehicle Accidents When the Vehicle Was Taken by Someone Else Under Section 192(3) of the Highway Traffic Act, when you rent a motor vehicle, you are ultimately responsible if you lend that vehicle to someone else. If the other person took it without your permission, you are not liable for that person’s negligence. But what if you did not explicitly provide permission for the other person to take the vehicle but the evidence suggests that your consent was implied? The Naghash case is crucial in widening the scope of what “implied consent” is in determining whether an owner of a motor vehicle or a person who leased a vehicle is liable for damages caused by operating the vehicle. In brief, the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. Background On or about July 5, 2017, the defendant Mohammad Ganjikhany (“Mohammad”) parked his rented vehicle outside the mechanic shop and left the keys hanging on a board near the shop office.[1] The plaintiff Ali Mehraein (“Ali”), a friend of Mohammad, and the other defendant Vahid Pashahzahiri (“Vahid”) asked Mohammad if they could borrow the car that Mohammad rented.[2] Mohammad claimed that he said no.[3] Ali and Vahid drove away in the rented vehicle with Ali as the passenger.[4] A collision occurred while Vahid was driving Mohammad’s rented vehicle.[5] The issue for determination at the Ontario Superior Court of Justice was whether Ali had Mohammad’s express or implied consent to possess the vehicle at the time of the accident. If the Ontario Superior Court found that there was consent, then Mohammad would be vicariously liable for any loss or damage caused by Vahid. The Law In Ontario, the courts presume that an individual who has possession of a vehicle that is owned or leased by another person has that person’s consent to possess the vehicle. If that presumption is not refuted, then the owner of the vehicle or the person who leased the vehicle will also be liable for any loss or damage caused by any negligent operation of the vehicle.[6] Whether or not a vehicle is in the possession of some other person with the consent or implied consent of the lessee is a question of fact to be determined by the evidence of the case.[7] If a vehicle is in the possession of a person with the owner’s consent, the owner is liable regardless of whether the person operating the vehicle has the owner’s consent.[8] An owner cannot avoid liability simply because the operator breached conditions or restrictions placed upon him or her.[9] Implied consent requires a determination of whether the circumstances would demonstrate that the operator of the vehicle was in possession of the vehicle at the time of the accident with the owner’s implied consent.[10] Ontario Superior Court Decision The Ontario Superior Court found that Mohammad’s position that he did not provide either express or implied consent to Vahid and Ali to use the vehicle was untenable given the factual circumstances of surrounding the incident.[11] Justice McCarthy noted that Mohammad and Ali had been friends for several years, Ali was a frequent visitor in the shop, Mohammad knew of Ali’s criminal history which included stealing cars, and the keys to the vehicle were kept in a conspicuous location that would have been well-known to someone with familiarity with the shop.[12] Justice McCarthy also found Mohammad’s evidence highly problematic as Mohammad was unable to explain how Ali would have known the existence, make, and model of a leased vehicle that Mohammad had in his possession for a mere couple of days.[13] Justice McCarthy provided that the only reasonable inference to draw was that Mohammad provided a specific description of the vehicle sufficient to identify it in the parking lot because he had consented to his friend’s request to make use of it.[14] Lastly, Mohammad had assumed that Ali had taken the vehicle when he noted that it was missing from the parking lot.[15] Justice McCarthy noted that Ali did not report the vehicle to the police as he assumed that Ali would return the vehicle and did not report the missing vehicle to his wife because he did not want to upset her.[16] Justice McCarthy further rejected Mohammad’s evidence to the court that he refused the request made by Ali and Vahid to use his vehicle.[17] If Mohammad truly did not intend to have Ali and Vahid to use his vehicle, Mohammad would have taken steps to prevent them from possessing the vehicle including safeguarding his keys or take steps to facilitate the vehicle’s return including contacting the police.[18] As such, Justice McCarthy found that the evidence was inadequate to discharge the onus to prove on a balance of probabilities that express or implied consent was not provided.[19] Analysis and Conclusion The Ontario Superior Court makes it clear that the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. The courts will determine whether a vehicle is in the possession of some other person with the consent or implied consent of the owner of the vehicle or the person leasing the vehicle based on the circumstances and evidence of the case. In doing so, the courts have broadened the concept of implied consent to include interpreting the parties’ relationships, past conduct, inconsistencies, and reasonable expectations to determine whether implied consent was given. This blog was co-authored by student-at-law, Abby Leung This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs. [1] 2023 ONSC 609 at para 6 [Naghash]. [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid. [6] Highway Traffic Act, R.S.O. 1990, c. H.8 s.192(3). [7] Argante v. Munro, 2014 ONSC 3626 at para 27. [8] Henwood v. Coburn, 2007 ONCA 882 at para 14. [9] Parkinson v. MacDonnell, 1995 CarswellOnt 1402 at para 52. [10] Sparks v. Cushnie et al., 2021 ONSC 213 at para 10. [11] Naghash, supra note 1 at para 14. [12] Ibid at para 15. [13] Ibid at para 16. [14] Ibid. [15] Ibid at para 17. [16] Ibid at para 20. [17] Ibid at para 19. [18] Ibid at paras 17 and 21. [19] Ibid at para 23. By Fauzan SiddiquiBlog, Personal InjuryJune 26, 2023June 21, 2023
Health and Medical Practitioners Not Liable for Failing to Disclose Unusual Risks to Medical Treatments if a Properly Informed Person Would Have Consented Anyway Warlow v Sadeghi[1] In 2010, Elaine Warlow began experiencing a painful toothache. It was a gum infection—probably due to some impacted food. Dr. Ali Sadeghi, an oral surgeon, recommended the removal of an impacted wisdom tooth where the infection was concentrated. Ms. Warlow consented. During the surgery, Dr. Sadeghi struck a nerve. As a direct consequence, Ms. Warlow was injured and left with chronic pain. Ms. Warlow’s life was devastated. Prior to the surgery, she was in good health, athletic, maintained an active social life and was about to begin a promising new career. Following her injury, her new career was finished before it could start, her earning ability decreased, she stopped exercising, and she became socially isolated. Ms. Warlow brought an action for damages against Dr. Sadeghi. At the Supreme Court of British Columbia, the core issue was whether Dr. Sadeghi properly informed Ms. Warlow about the risks of the procedure to remove the wisdom tooth. Although Dr. Sadeghi warned of the risk that she may experience “pins and needles” or “numbness,” there was no mention of the potential for permanent nerve damage. By this omission, Ms. Warlow’s consent was not informed. However, the trial judge concluded that a reasonable person in Ms. Warlow’s shoes with full knowledge of that risk would have proceeded with the surgery. Consequentially, the action against Dr. Sadeghi was dismissed. The Court of Appeal for British Columbia upheld that dismissal. The importance of health and medical practitioners providing sufficient information for patients to make informed choices about their care is paramount. But, if they fail to do so, they may not face legal liability if a properly informed person would have consented anyway. Background The fundamental first step of any medical treatment is to ensure that the patient consents.[2] Under the Ontario Health Care Consent Act, 1996, unless it is an emergency, no treatment may be performed unless consent is given by a patient who has the capacity to consent.[3] Where the patient lacks capacity, their substitute decision-maker must give the consent. Consent must be voluntary, without misrepresentation, and it must relate to the nature of the proposed treatment.[4] Consent may be either express or implied, and it may be withdrawn at any time.[5] Consent must also be informed. For a patient to be properly informed, they must be advised of the nature and expected benefits of the treatment, but also the material risks and side effects.[6] The properly informed patient would also be advised of alternative courses of action and the possible consequences of not undergoing the treatment. Lastly, the patient must have the opportunity to ask questions, and their questions must be answered. In sum, the patient must be given all of the information “that a reasonable person in the same circumstances would require in order to make a decision.”[7] Practitioners could be liable if they fail to provide this informed consent—even if they were otherwise performing within the appropriate standard of care.[8] Failing to provide the proper information is a distinct cause of action from an action in negligence. The Case of Warlow v Sadeghi In the case against Dr. Sadeghi, the trial judge found that he failed to properly inform Ms. Warlow of the risk that temporary or permanent nerve pain could result from the procedure to extract her wisdom tooth.[9] Dr. Sadeghi testified that he did indeed describe to Ms. Warlow the alternatives, the risks of the treatment, and the risks of not undergoing the treatment—all in a conversation which lasted only a few minutes.[10] In particular, Dr. Sadeghi informed Ms. Warlow that doing nothing could lead to hospitalization or death due if infection were to recur. Dr. Sadeghi conceded that he did not specifically articulate the risk of “permanent nerve pain” or “permanent neuropathic pain.”[11] Although he did state that there was a ~2% chance of injuring a nerve, he described the possible outcome as limited to “pins and needles” or “tingling.”[12] The trial judge described this somewhat benign characterization as quite different from the risk of permanent pain.[13] Dr. Sadeghi made the conscious choice not to inform Ms. Warlow of the risk of permanent pain because he felt that it was very remote. He had never seen any study or encountered a single case of permanent pain from this type of nerve injury.[14] In this respect, the risk was “unusual.” Nonetheless, the court held that Dr. Sadeghi should have disclosed the risk of permanent pain. As he did not, Ms. Warlow’s consent to the treatment was not properly informed. Lacking informed consent, the question then shifted to what would have been decided if Dr. Sadeghi did properly inform his patient. Establishing Liability Under the Modified Objective Test To establish liability for the health or medical practitioner where consent is not informed, the Supreme Court articulated the “modified objective test,” as stated in Reibl v Hughes and affirmed in Arndt v Smith.[15] After the plaintiff proves that a “material, special, or unusual” risk was not disclosed which ought to have been, the plaintiff must prove that a reasonable person in that position would not have agreed to the treatment even if adequately advised of the risks.[16] This next issue is a question asked in two stages, as per the Ontario Court of Appeal decision of Bollman v Soenen.[17] At the first stage, the question is: what would the patient themselves have done? At the second stage, the question is: what would a reasonable person in the shoes of the patient have done? At both stages, the answer must be that informed consent would not have been given in light of the new information. In Ms. Warlow’s case, the trial judge could make no determination as to what she would have done if she was properly informed. Ms. Warlow had the burden to testify as to what she would have done, but she did not.[18] Although she stated that she would not have given consent if she knew that she would “end up like this,” this was not helpful.[19] No one would consent to treatment if they knew they would be worse off. The issue was: if she was aware of the risk, would she have consented? Ultimately, the first stage could not be answered; Ms. Warlow’s informed choice could not be inferred. At the second stage, the trial judge reviewed the relevant circumstances to determine what an adequately informed reasonable person would have done in Ms. Warlow’s position. To answer this question, the trial judge considered how Dr. Sadeghi outlined that extraction of the wisdom tooth was the best option under the circumstances and that it was a common procedure.[20] The trial judge ultimately concluded that a reasonable person in Ms. Warlow’s position would have consented to the treatment even where properly informed of the consequences of nerve injury and the risk of permanent pain.[21] Given the fact that Ms. Warlow’s informed choice could not be inferred and that an adequately informed reasonable person would have consented to the treatment, Dr. Sadeghi was found not liable for any damages to Ms. Warlow. On appeal, the Court of Appeal for British Columbia upheld the lower court’s decision.[22] Conclusion The notion of informed consent is enshrined as critically significant by the legislature and by the judiciary. Absent circumstances of emergency, health and medical practitioners must provide their patients with all of the requisite information necessary for them to make informed choices about medical treatments. This information includes the benefits, risks, side effects, alternatives, and possible consequences of not undergoing the treatment. Where a health or medical practitioner fails to provide information about a risk to their patient which ought to have been disclosed—even if that risk is “unusual”—they may face liability for the damages which may result. However, even if informed consent is not given, practitioners will not face any liability if the properly informed patient and a properly informed reasonable person would have consented to the treatment nonetheless. If you have any questions related to medical malpractice, please contact David Derfel to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” Sources [1] Warlow v. Sadeghi, 2021 BCCA 46 (CanLII) [Warlow]. [2] Male v Hopmans et al, 1967 CanLII 146 (ON CA). [3] SO 1996, c 2, Sched A, ss 10, 18(4), 25(1). British Columbia has a similar statutory regime for medical consent; see: Health Care (Consent) And Care Facility (Admission) Act, RSBC 1996, c 181, s 5. [4] Ibid, s 11(1). [5] Ibid, ss 11(4), 14. [6] Ibid, ss 11(2)-(3). [7] Ibid. [8] Watson v Dr Shawn Soon, 2018 ONSC 3809 (CanLII) at paras 81-82. [9] Warlow, supra note 1 at para 3. [10] Ibid at paras 21-22. [11] Ibid at para 23. [12] Ibid at para 20. [13] Ibid at para 25. [14] Ibid at para 23. [15] Reibl v Hughes, 1980 CanLII 23 (SCC) cited by Arndt v Smith, 1997 CanLII 360 (SCC) cited by ibid at para 18. [16] Warlow, supra note 1 at para 33. [17] Bollman v Soenen, 2014 ONCA 36 (CanLII) at para 21. [18] Warlow, supra note 1 at para 39. [19] Ibid at para 38. [20] Ibid at para 41. [21] Ibid at para 27. [22] Ibid at para 42. By Fauzan SiddiquiBlog, Commercial Litigation, Personal InjuryAugust 4, 2022June 10, 2023
“No Mulligans”- Challenges Faced By Insurers Requesting Multiple Medical Examinations In Personal Injury Cases Where the physical or mental condition of a party to a proceeding is at issue, a medical examination may be granted by a court of competent jurisdiction. This examination is generally regarded as a defendant’s right in personal injury cases. However, there are a number of considerations which affect the availability of multiple examinations for any given case. Where multiple examinations are requested, the primary consideration will be fairness, and it will be critical to establishing the necessary evidentiary basis supporting the defendant’s argument that fairness requires a second or further examination. Notably, a recent decision of Justice Nicholson of the Ontario Superior Court[1] has highlighted the conflicting considerations applicable to this right and cautioned legal practitioners against seeking “a second kick at the can.” General Rule: One Examination per Specialty per Defendant Typically, in a personal injury matter, an examination will be permitted for each specialty applicable to the plaintiff’s injuries. For example, an orthopaedic examination is appropriate where there are orthopaedic injuries; a psychiatric examination is appropriate where there are psychiatric complaints. Examinations by other specialists are appropriate where there are complaints within the area of expertise of those experts. The defendant’s right to a medical examination of the plaintiff in a personal injury matter arises under section 105 (2) of the Courts of Justice Act:[2] “where the physical or mental condition of a party … is in question, the court … may order the party to undergo a physical or mental examination by one or more health practitioners.” “Health practitioner” is defined as a person licenced to practice medicine, dentistry, or psychology. While the language of the statute is discretionary (i.e., “may order”), a first medical examination has been generally established by the courts as a right. Beyond the first exam, section 105 (4) of the Act permits “further physical or mental examinations.” The procedure is set out in Rule 33 of the Rules of Civil Procedure. Specifically, the order for the examination “shall name the health practitioner or practitioners by whom the examination is to be conducted.”[3] Similarly, Rule 33.02 (2) empowers the court to order a “second examination or further examinations.” Where there are two or more defendants, each defendant is entitled to a separate defence medical examination of the plaintiff by their own experts.[4] “Overlapping” Examinations A court will typically not permit multiple “overlapping” examinations to assess the same type of injury. For example, examinations by an orthopaedic specialist and by a physiatrist regarding the same orthopaedic injuries or an examination by a psychologist and a psychiatrist with respect to the same psychiatric complaints would not generally be permitted. However, grey areas arise where there are injuries or complaints that are partially within the expertise of one specialty and partially within the expertise of another. For example, where a plaintiff claims to have suffered a traumatic brain injury (TBI) as well as psychiatric complaints following an accident, an examination by a neuropsychologist with respect to the TBI complaints might be appropriate and an examination by a psychiatrist with respect to the psychiatric complaints might also be appropriate. The court will look at the degree of overlap between the complaints and may restrict the examination to either a neuropsychologist or a psychiatrist. In one case where examinations had been conducted by a psychiatrist and a neurologist, the court refused to order further examinations with a neuropsychologist, an orthopaedic surgeon, and a second psychiatrist.[5] In another example, an examination by a psychiatrist was refused where an examination had been conducted by a psychologist, on the basis that there was an inadequate evidentiary basis for the psychiatric examination and the examination could delay the trial.[6] In determining whether a further or “overlapping” examination will be ordered, the court considers whether the defendant will be prejudiced if no examination is permitted, and this will be weighed against any risk of prejudice to the plaintiff.[7] A key factor in determining prejudice is any possible delay in the trial. The decision will be based upon the evidentiary record, and the defendant has the onus to provide evidence supporting the need for a second or further examination and addressing the issues of fairness and prejudice.[8] Examinations by Accident Benefits Insurers A defendant in a tort action will be entitled to conduct defence medical examinations notwithstanding that the plaintiff may have been examined by the defendant’s Statutory Accident Benefits Schedule (SABS) insurer where the initial examination did not address all the issues and there was no abuse of process.[9] An examination under an insurance contract is separate and distinct from a medical examination under section 105. An examination under contract prior to litigation commencing does not pre-empt the defendant’s right to an examination under section 105.[10] The Test for Fairness (Bonello) The applicable test for further examinations was addressed by Justice Brown in Bonello v Taylor.[11] Justice Brown stated that the overriding consideration was trial fairness. In brief, the factors are: the assessment would be for a legitimate purpose (i.e., not to delay or cause prejudice); the party’s medical condition has changed or there is new information; a report by the defendant is needed to “match” the expert evidence from a specialist’s report from the plaintiff—although this is not automatic; the proposed examination would be necessary as a diagnostic aid, if conducted by a person who is not a health practitioner (e.g., a rehabilitation expert); there is sufficient persuasive evidence to demonstrate the need; evidence of unfairness is also taken into account; and whether the further examination would impose an undue burden on the plaintiff. Read a full summary of the factors in Bonello. When Is Further Examination Denied (Mitsis ) The recent decision of Justice Nicholson in Mitsis v Holy Trinity addressed many of these factors.[12] The plaintiff was pursuing a slip and fall claim and alleged that she suffered injuries including a fractured right shoulder and arm. Following examinations for discovery, the defendant arranged to have the plaintiff examined by a physiatrist (at that point, the plaintiff had not served any experts’ reports). Subsequently, the plaintiff served a report from an orthopaedic surgeon. In response, the defendant sought their own examination by an orthopaedic specialist. The defendant claimed that it would be prejudiced if a defence orthopaedic assessment were not permitted. Justice Nicholson stated that there had been no material change in the plaintiff’s condition and the defendant knew that the plaintiff’s injuries were primarily orthopaedic in nature when it elected to commission a physiatry exam. Justice Nicholson felt that there was no procedural unfairness to holding the defendant to its choice of experts, and denied the request for a defence orthopaedic examination. As an aside, Justice Nicholson commented that perhaps the defendant’s physiatry report was not as favourable as the defendant might have hoped: “One cannot help but be suspicious that the Defendant had hoped for a report more favourable to its position in the litigation from Dr. Perera [the defence physiatrist] and is now seeking a ‘mulligan.’” Conclusion The importance of establishing the necessary evidentiary basis for a second or further medical examination of the plaintiff cannot be overstated. An affidavit from the prospective medical expert setting out why a further examination is necessary is generally preferable to an affidavit based on information and belief from defence counsel’s clerk. The affidavit material must address the factors set out in Bonello. Establishing that fairness favours permitting the examination and that the plaintiff will suffer no undue prejudice will be key. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Mitsis v Holy Trinity Greek Orthodox Community of London and Vicinity, 2021 ONSC 5719 [Mitsis]. [2] Courts of Justice Act, RSO 1990, c C.43, as amended. [3] Rules of Civil Procedure, RRO 1990, Reg 194, as amended [emphasis added]. [4] Maniram v Jagmohan, [1988] OJ No 2877. [5] Jones v Spencer, [2005] OJ No 1539. [6] Clarfield v Crown Life Insurance, [2000] OJ No 960. [7] Lawrence v Primmum Insurance Co, 77 CPC (6th) 388; see also Suwary (Litigation Guardian of) v Women’s College Hospital, 2008 CarswellOnt 887. [8] Abergel v Hyundai Auto Canada, [2002] OJ No 4387. [9] Jeyanthiran v Ratnam, [2009] OJ No 469. [10] Paul Revere Life Insurance Co v Sucharov, [1983] 2 SCR 541. [11] Bonello v Taylor, 2010 ONSC 5723. [12] Mitsis, supra note 1. By Fauzan SiddiquiBlog, Insurance Defence, Personal InjuryDecember 14, 2021December 14, 2021
The Threshold Test & Statutory Deductible in Motor Vehicle Accident Claims Defining General Damages In every motor vehicle accident, an individual may claim general damages. General damages is commonly referred to as non-pecuniary losses, non-economic damages, or quite simply damages for pain and suffering. These are damages that are not economic in nature, yet still, affect a person’s lifestyle and quality of life. They cannot be calculated or quantified like lost income or medical bills, rather they compensate for things like pain and suffering, loss of quality of life, and emotional or psychological distress. The Threshold In Ontario, in order for an individual to recover general damages (i.e. damages for pain and suffering, also known as non-pecuniary losses) in a motor vehicle accident lawsuit, the individual must first satisfy the “Threshold Test” 1 by proving on a balance of probabilities that their injuries are both permanent and serious: As denoted in section 267.5(5) of the Insurance Act– the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss from bodily injury or death arising directly or indirectly from the use or operation of the automobile, UNLESS as a result of the use or operation of the automobile the injured person has died or has sustained: (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).2 The Deductible In addition to satisfying the threshold test, an individual must also prove that their general damages exceed the statutory deductible in order to recover any amounts under this head of damages. The current statutory deductible for 2021 is $39,754.31 and increases each year.3 What this means is – if an individual is involved in a motor vehicle accident and their claim for pain and suffering is valued at an amount equal to or less than the current statutory deductible, they will receive nothing under this head of damages.[1] It is important to note that this statutory deductible applies only to general damages – so if an individual has losses relating to housekeeping or income loss, for example, this deductible does not apply for those damages. The rationale for this deductible is to discourage smaller or frivolous tort claims, and operates to save insurance companies from paying out on smaller claims. For example: An elderly and retired individual was on their way to the local grocery store, and while driving to their destination, was rear-ended by another motorist. As a result of the accident, the elderly individual sustained various injuries, and now has difficulty doing housekeeping tasks at home and can no longer enjoy the things they used to do like taking long walks, exercising or travelling with their family. The elderly individual sues the other motorist, and the two sides are unable to come to a fair settlement at mediation, so the case proceeds to trial. At trial, after hearing the evidence and considering the facts of the case, the jury deliberates and agrees that the claim satisfies the threshold test, concluding the injuries sustained are both permanent and serious, and as a result awards damages. The jury arrives at a number for general damages which they think is fair to compensate the elderly individual for their injuries. In addition to an award of $10,000 of damages for housekeeping, the elderly person is awarded $60,000 for general damages relating to pain and suffering. From this amount, the statutory deductible of nearly $40,000.00 is subtracted, leaving the insurance company liable to pay out a little over $20,000.00 to the elderly individual for the general damages. All in all, the elderly individual takes home $10,000 in damages for housekeeping and a little over $20,000 for general damages. If you have more questions related to motor vehicle accident claims, please visit our website or contact Cindy Leung at Devry Smith Frank LLP and Derfel Injury Law to discuss any questions regarding your rights and options. This blog was co-authored by Student-At-Law Amar Gill. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] https://www.ontario.ca/laws/statute/90i08 [2] Ibid. [2] https://www.fsrao.ca/industry/auto-insurance/regulatory-framework/guidance/2021-automobile-insurance-indexation-amounts-guidance-updated-december-18-2020 [1] As of 2021, the deductible of $39,754.31 is waived if an individual’s claim is above the monetary threshold of $132,513.28. This monetary threshold is also subject to increase each year. By Fauzan SiddiquiBlog, Personal InjuryNovember 25, 2021November 25, 2021
DSF is recognized in ‘Best Lawyers’ for 2022! Devry Smith Frank LLP (‘DSF’) is proud to announce that we have been recognized by Best Lawyers in Canada 2022 with 8 of our lawyers ranked across multiple practice areas. The lawyers in the list are highlighted below: George Frank – Personal Injury Litigation Jennifer Howard – Family Law David Lavkulik – Personal Injury Litigation Todd Slonim – Family Law Diana Solomon – Family Law Marc Spivak – Personal Injury Litigation Ashley Doidge – Trusts and Estates Nicholas Reinkeluers – Corporate and Commercial Litigation DSF is pleased by the nominations and awards from our peers and we look forward to providing services by these nominable standards. Best Lawyers is a leading peer-review publication in the legal profession, recognizing the top attorneys in over 100 practice areas. These individuals have been selected for this distinction after receiving the highest overall peer-feedback within their geographic region and specialty practice area. Only a single lawyer in each practice area and designated metropolitan area is honoured as the “Lawyer of the Year,” making this accolade particularly significant. Please visit their website for more details: https://www.bestlawyers.com/ By Fauzan SiddiquiBlog, Commercial Litigation, Family Law, Personal InjurySeptember 20, 2021July 5, 2023
Did You Sign On The Dotted Line? Before participating in an activity that could lead to injury or death, a person may be required to sign a waiver as a form of expressed consent to the risks that exist, due to the inherent nature of the activity. By signing on the dotted line, the waiver could prevent an injured person or their family from advancing a claim against those responsible for permitting/facilitating the activity. Phrases such as “payment of this is confirmation of agreement to the following terms of usage” may also be equivalent to signing on the dotted line and agreeing not to advance a claim for personal injuries suffered while participating in the activity. In Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 (CanLII), the plaintiff joined the defendant’s gym on a one-year membership agreement. Upon joining, she was presented with a contract which contained an exclusion clause. The exclusion clause provided that: “The Member releases the Club… from any claim whatsoever hereafter arising by reason of the Member suffering disease, deterioration of health, illness, or aggravation of condition or of ill health as a result of participation in the programs, acceptance of advice or use of the facilities provided by the Club or any claim for personal injury sustained by the Member in, on or about the facilities of the Club and its related companies, including and without limitation any claims for personal injuries resulting from and/or arising out of the negligence of the Club…and acknowledges that he/she is using the said facilities at his/her own risk.” After signing the release, the Plaintiff was injured while participating in an exercise class operated by the defendant. During the exercise class, the plaintiff was instructed to step off the step to her right. The plaintiff stepped on a circular metal dumbbell immediately to her right which caused her to lose her balance and fall on her back. The plaintiff took the position that she did not have an opportunity to actually read the Agreement and that no one brought the exclusion of liability clause to her attention when she signed the Agreement. The defendant argued that the plaintiff was solely responsible for her injuries and that she was able to read and understand the Exclusion Clause. The defendant brought a motion for summary judgment against the plaintiff. The Court relied on Section 5(3) of the Occupiers’ Liability Act which required that a gym must take reasonable steps to bring the provisions of the waiver to the attention of the member when she signed the agreement. In the current case, the Court found that the document itself did not take reasonable steps to bring the exclusion clause to the member’s attention as the provision was on the reverse side of the Agreement under the general heading “Membership Agreement – Terms and Conditions” and in tightly printed “fine print”. There was no place on the agreement for the member to sign or initial the provision which would have demonstrated that the gym made reasonable efforts to bring the provision to the member’s attention. As such, the defendant could not rely on the exclusion clause contained in the membership agreement (although the waiver was set aside, the Court found that the plaintiff could not establish that the defendant was negligent in any manner and held that the defendant gym was not liable to the plaintiff). The walk away from this case is that a waiver is meant by at least one party to prevent someone from making a claim. The validity of the waiver will depend on the wording of the waiver applying to what happened and whether the waiver was properly brought to the attention of the person. There has to be an agreement or deemed agreement between the parties for the waiver to be binding. The validity of sporting events and ski hill waivers are much less obvious than gym contracts signed and initialed with a person allegedly explaining details of the waiver. More recently your ski hill ticket is purchased online. You have to tick off that you read the conditions under which the ticket is being sold. In the conditions, you have to agree to not make any claim against the hill or its employees even if an accident occurs as a result of the negligence of the hill. You get to the hill and there are usually some signs at the lift about riding the lift at your own risk and there are signs warning you will ski at your own risk. The back of the ticket you are wearing usually has a waiver written in small print. You didn’t necessarily sign on the dotted line and you didn’t have someone explain to you the details of the waiver. Despite this, waivers are typically binding on foreseeable and usual risks, but perhaps not where unexpected things happen that are outside of the norm. Your best bet if you or your family are involved in an accident and a waiver may be applicable is to consult with an experienced personal injury lawyer as soon as possible. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryAugust 20, 2021August 20, 2021
Surveillance, Social Media, and Personal Injury Disputes The rapid technological advancements of our time can create implications when the laws surrounding their use are unclear or have yet to be addressed. Our judicial system is often left playing catch-up to legal questions surrounding technology and interaction with people’s rights and other issues of public policy. On the one hand, technology can greatly benefit people’s access to information, but on the other hand, it is important that people’s privacy is respected when such information becomes much more easily accessible by way of technological development. Our judicial and parliamentary system is always changing and enacting laws to help adequately address the delicate balance between these two competing interests. For this reason, it is a good idea to ensure you are always aware of how your information can be gathered and used against you in court. For example, the development of Google Earth cameras has raised the issue of invasive surveillance, and whether and how this surveillance can be used for evidence in a car accident lawsuit. Is Google Earth the next “Big Brother”? Of all the means by which our daily lives can be monitored, Google Earth is not at the top of this list. As it currently stands, evidence gathered by Google Earth cameras is not something to be concerned about; footage of the accident taken from these cameras is not often used in car accident cases. One of the reasons for this is because the pictures that are taken by a Google Earth camera are updated every one to three years. This makes the chance of your appearance on Google Earth extremely unlikely. This is good news considering that the average Canadian is caught on camera an average of 70 times every day. If an image is captured by Google Earth, can it be used in Court? If so, how? There are still a small number of instances where footage taken by Google Earth cameras is used in court as evidence against opposing parties in personal injury disputes. They are used to supplement the otherwise commonly-used maps and 3D models to illustrate to a judge or jury about the true nature of the accident. Though its use is technically possible, it would mean that an image would have to be captured at the exact moment of your accident – a very unlikely occurrence. Are there other means by which a video of my car accident may be recorded? While there will not be footage of your accident taken by Google Earth, it does not mean that an image or footage of your accident does not exist. In fact, if the accident occurred in a major city, it is more likely than not that it was captured by some nearby street or building camera. Getting access to such footage before they are taped over is difficult and an immediate follow-up investigation would have to be done. This is not often seen other than when police authorities conduct this investigation due to a serious injury or fatality and possible criminal charges being laid. In personal injury disputes, your own social media presence will be immediately investigated for information about you and your lifestyle. For this reason, your lawyer will warn you about the dangers of being on social media and the impact that it can have on your case. Though you might think that a post is innocuous, opposing parties can be very creative in using that post against your claims. It is usually best to stay away from social media altogether during the duration of your case. In addition, it is recommended that you seek a lawyer’s services if you are involved in a personal injury dispute. This is perhaps the best way for you to protect yourself and your interests since the stakes in a serious car accident can be high. In addition, your lawyer can help you get the highest possible amount of compensation to which you are entitled. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryAugust 6, 2021January 10, 2024
Be Prepared for In-Person Medical Examinations – Personal Injury: Mierzejewski v Brook, 2021 ONSC 2295 During the COVID-19 pandemic, many in the legal profession began transitioning their practice online with the widespread use of Zoom for hearings, trials, examinations for discovery, etc. However, the courts may require plaintiffs to attend in-person medical examinations in personal injury cases despite public health concerns. In Mierzejewski, the defendant brought a motion seeking an order compelling the plaintiff to attend a neuropsychology defence medical examination and a physiatry defence medical examination, both of which would be conducted in person. The plaintiff did not agree to attend a neuropsychological examination on the basis that she did not place any brain injury or head trauma at issue. While the plaintiff agreed to the physiatry examination, the main issue was the form that the examination will take. The plaintiff argued against attending an in-person medical examination, citing the ongoing COVID-19 pandemic and her compromised health situation which included a heart attack and subsequent heart surgery in 2016, breast cancer in 2017, and a lumpectomy in 2018. The plaintiff does not leave her home unless necessary. The Ontario Superior Court was asked to consider whether the plaintiff must attend the neuropsychological medical examination and if so, whether the plaintiff must attend both medical examinations in person. Physiatry Examination The plaintiff argued that her numerous health conditions placed her in the high end risk category to contract COVID-19 and suffer serious health consequences. One of the plaintiff’s doctors advised that physiatry examinations could not be completed virtually and it would be irresponsible for the plaintiff to attend an in-person medical examination given the plaintiff’s numerous health concerns. He cited public health recommendations to those with chronic conditions to limit physical contact with others outside of their residence. The Court noted that since the trial was scheduled for June 2021, the examination could not be postponed until the pandemic improved. Citing Severin v Barker, 2020 ONSC 7784, the Court stated that a plaintiff who is required to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the plaintiff where the examination is to be conducted with COVID-19 safety protocols in place. The plaintiff had attended numerous necessary medical and legal appointments in person during the pandemic. The Court further noted that the medical assessment centre had extensive COVID-19 protocols in place including COVID-19 screenings, temperature checks, socially distanced waiting rooms, and the use of PPE. Given the presence of extensive COVID-19 safety protocols at the assessment centre, the Court ordered that the plaintiff must attend the physiatry examination in person. Neuropsychological Examination The plaintiff submitted that a neuropsychological examination would not be relevant as she did not put her neurocognitive state at issue on the basis that she did not complain of any head injuries, neurocognitive problems, post concussion symptoms, or psychological problems. The Court referenced the plaintiff’s statement of claim which stated that the plaintiff suffered serious and permanent impairment of important mental and psychological functions, including but not limited to headaches, dizziness, depression, and memory difficulties. The Court also noted several medical reports from the plaintiff’s doctors which indicated that the plaintiff suffered from psychological problems, pain disorder with psychological factors, and chronic pain as a result of the accident. In assessing the plaintiff’s pleadings, the Court concluded that the plaintiff had put her cognitive state in issue and ordered a neuropsychological examination. Citing Severin and the neuropsychologist’s statement that he could not conduct a virtual neuropsychological assessment, the Court ordered the plaintiff to attend an in-person neuropsychological examination. Conclusion The Ontario Superior Court’s decision is concerning given the significant health and safety concerns for at-risk individuals during the COVID-19 pandemic. Studies from the Guidelines for Best Practices in Psychological Remote Assessments from the OPA/CAPDA indicate that remote psychometric testing is just as effective as in-person testing. The reports also note that psychological services and assessments can be conducted effectively through online platforms with some modifications or alternatives for fully remote procedures. Plaintiffs should consider alternative assessment models when faced with an insistence that the plaintiff attends an in-person examination during the COVID-19 pandemic. If you have a specific question related to your personal injury matter contact Marc G. Spivak, managing partner of the personal injury group at marc.spivak@devrylaw.ca or 416-446-5855. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Personal InjuryMay 19, 2021May 19, 2021
