Time To Consider Buying “Optional” No-Fault Benefits

I often see how important accessing no-fault benefits can be for my clients so that they can achieve maximum medical recovery in the shortest period possible.  No one likes to pay for car insurance. carPeople like it less if they’ve been injured in a car accident and discover that they do not have enough insurance.  You owe it to yourself and your family to familiarize yourself with the reductions to the standard accident benefits and the amount and cost of the available optional benefits and buy the insurance benefits you need to protect yourself and your family members.

Did You Know: The standard no-fault accident benefits have been drastically reduced?

You may not know it but your automobile insurance benefits were substantially reduced on June 1, 2016. The reductions are significant but a survey conducted by the Insurance Brokers Association of Ontario revealed that only 42% of consumers had even heard about the changes and less than 20% could actually identify what those changes were. Everyone in Ontario who buys auto insurance needs to know the extent of the reductions and what optional benefits are available to maintain their current level of coverage.

What are the most significant reductions?

The following is a brief summary of the reductions to standard accident benefits:

Policies issued before June 1, 2016 provided $50,000 in Medical and Rehabilitation Benefits and an additional $36,000 for Attendant Care Benefits for non-catastrophic injuries. These two types of benefits have now been combined and reduced to a total of $65,000. For many injured people the reduced combined total will mean having to choose between receiving necessary healthcare and rehabilitation treatments or accessing attendant care. There will simply not be enough money to cover all of these expenses with only $65,000 available for both.

Prior to June 1, 2016, people who suffered the most serious “catastrophic” injuries could access $1 million for Medical and Rehabilitation Benefits and an additional $1 million for Attendant Care Benefits. These benefits have been effectively cut in half as there is now a new combined total of only $1 million. This means that the most seriously injured accident victims have lost $1 million in standard coverage.

How do you make sure you have the right coverage?

It is very important that you speak with your insurance company, broker or salesperson and familiarize yourself with the benefit reductions so that you can make an informed decision about the amount of coverage you need to protect yourself and your family. You can do this by purchasing “optional” benefits at an additional cost.

Optional Benefits

You should seriously consider purchasing optional benefits. The steady erosion of the standard no-fault benefits over the past 20 years means that the reduced limits are no longer adequate for most of us if we are seriously injured. This means that, when you renew your policy, you must investigate the available optional benefits and purchase the right options to meet your specific needs. If your renewal is several months away I suggest you contact your insurance intermediary and arrange a meeting to discuss your Optional Benefit needsnow and not wait for your renewal. We never know when we are going to be in an accident.

I expect that you will find that upgrading your protection by buying optional benefits is relatively inexpensive.

Based on available information, it seems that increasing the combined Medical/Rehabilitation and Attendant Care limit for non-catastrophic injuries from $65,000 to $130,000 may cost less than $50 a year. Increasing this coverage to the maximum available of $1 million may cost under $70 a year. Increasing coverage for catastrophic injury from $1 million to $2 million may only cost about $40 a year. You may find that for about $150 a year you can increase your coverage to the maximum now available.  And, believe me, if you or a member of your family is catastrophically injured in a car accident you will consider it $150 well spent.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

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Ten Mistakes People Make When Dealing With Doctors After an Injury

If you have experienced a traumatic injury as the result of a motor vehicle accident or slip and fall you will no doubt end up seeing one or more doctors perhaps on multiple occasions. Here are 10 mistakes people who have experienced a traumatic injury make when dealing with tDoctor Meeting With Mature Male Patient In Exam Roomheir doctors.

1.    Failing to Seek Immediate Medial Attention After a Traumatic Event

The victim is always responsible for proving that he or she was injured in a particular incident.  Insurance companies and juries often believe that if you aren’t hurt badly enough to seek immediate medical attention, you aren’t hurt badly enough to deserve compensation.  Don’t ignore signs of pain, even small ones.  See a doctor as soon as possible, as minor injuries can always get worse.  You don’t want the first words the insurance lawyer says to the jury to be, “she didn’t even see a doctor for two weeks.”

2.    Failing to Fully Disclose Your Health History and Habits to Your Doctor

A health care provider will usually ask if you had any injury or sickness before your current problem.  It is important to be honest when answering this type of question.  Doctors use past medical history to diagnose and treat you.  Providing incomplete information can have an impact on the quality of the medical care you receive.  Concealing prior injury or sickness from your doctor will also hurt your legal case.  If you provide your doctors with incomplete information, their medical opinions could be rejected by insurance companies and juries.  The same advice goes for describing the accident.  Don’t tell your doctor the car was “totalled” if it was only scratched.  The insurance company’s lawyer will attack your credibility with that contradiction.

3.    Talking With Your Doctor About Lawsuits or a Lawyer’s Advice

A doctor’s job is to focus on your medical condition.  In order to do that job, a doctor does not have to know about your lawsuit or your lawyer.  Sharing your legal issues or concerns with a medicalcare provider should be unnecessary.  Many doctors do not want to be involved in a lawsuit.  If you tell a doctor he or she is treating an injury that is the subject of a lawsuit, it could affect their willingness to provide treatment.  Remember that whatever you say in confidence to a doctor is not confidential at all once you file a personal injury claim. The doctor’s notes will likely have to be shared with the insurance company’s lawyer and it help your case if they contain information you gave to your doctor about your lawsuit or your  lawyer’s advice.

4.    Missing or Showing up Late for Medical Appointments

Insurance companiesand juries get to see your medical records.  When you skip a medical appointment, your record just says “DNS”, which means “did not show”.  Excuses – no matter how valid – usually do not make it into the record.  More than one or two “DNS” entries could make it look like you were not committed to getting better.  Skipping medical appointments or showing up late could also irritate your doctor.  Irritated doctors do not make good witnesses for their patients.  If you need to cancel – call in advance and reschedule.  You don’t want the insurance company’s lawyer saying, “It must not have hurt that much, she didn’t even show up for her appointments.”

5.    Failing to Get Your Pain Accurately Documented in Medical Records

Insurance companies and juries may not believe that you are in pain just because you say so.  They need to read about your pain in your medical records.  When insurance companies and juries review your records, they will be looking to see how soon you reported pain after an injury and how long you continued to report that pain.  One effective way to help make sure your specific pain and limitations do make their way into a busy doctor’s chart is to write it out beforehand and give it to him at your office visit.  Again, don’t exaggerate. And keep a copy of your note to give to your lawyer.

6.    Failing to inform Your Doctor if Your Injury is Affecting Your Ability to Work

Insurance companies and juries may not believe that your injury affects your ability to work just because you say so.  If your injury is affecting your ability to work, it is important to mention such a problem to your health care provider.  Work problems caused by injury may be treatable and they should be noted in your medical records.  Again, keeping notes that you give to the doctor at your office visits is a good idea.

7.    Failing to Take Medications as Prescribed

There is a reason why doctors prescribe a particular type of medication for a particular time period.  You should follow your doctor’s recommendation until your doctor tells you something different.  If you think a medication is making your muscles ache or your stomach hurt, say so; side effects are not rare, and your doctor can usually switch you to another drug.  Don’t put yourself in the position where you have to admit that you chose not to follow your doctor’s advice.  This can be very harmful to your case.

8.    Stopping Medical Treatment Too Soon

Insurance companies and juries often believe if a person stops seeking medical treatment for an injury, the injury must be healed.  They also believe that significant gaps between treatments suggest that you healed from one injury and must have suffered a new one unrelated to the first.  If you have an injury that is affecting your ability to function, you should seek medical treatment until you are healed or until a doctor tells you that there is nothing more that can be done to improve your condition.  If you are still suffering and your doctor tells you to “come back as needed” or “call me if you have any problems”, you should ask how long you should wait to call if you continue to have the same level of pain and disability.

 9.    Failing to Follow Treatment recommendations Related to Depression or Anxiety

Often pain and/or disability trigger depression and/or anxiety.  Psychological conditions like depression and anxiety are just as real as broken bones.  They cannot be overcome without appropriate treatment.  A person who causes another person physical injury is also responsible for resulting psychological conditions.  Insurance companies and juries usually only compensate victims of injury-related depression and anxiety if those conditions are properly diagnosed and treated by medical professionals.

 10.    Failing to Keep a File

 It is important that your lawyer knows every medical care provider that you see after an injury.  It is also important that you keep track of all doctor orders, treatment referrals and/or work restrictions.  Keeping a file of all materials provided to you by health care providers and insurance companies will ensure that you can provide all necessary information to your lawyer at the appropriate time.

Conclusion

After a motor vehicle, accident or slip and fall it is important to consult a medical doctor if there is any chance that you have suffered an injury. Providing any doctors you see with complete and accurate information and following any treatment recommendations will not only increase your chances of maximum medical recovery it will also increase your  chances of maximizing your financial recovery in any subsequent law suit.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

You were injured in a car accident in the USA, what should you do?

Canadians travel to the United States regularly and in the winter months “snowbirds” flock to the southern states in their cars. Seldom do these motorists consider what it would mean if they were injureMiami highwayd in a car accident during their trip. Each year, many Canadians are involved in car accidents while travelling in the US. Bringing a claim for compensation after a US car accident can involve complex issues such as where a civil action should be started and which jurisdiction’s laws will apply.

If you are from Ontario and are involved in an accident in the United States, you may be able to commence an action in Ontario, in the state in which the accident occurred, or both. Your right to do so will depend upon several factors, including what insurance is available to the parties involved and the particular facts of each case.

How Jurisdiction is Determined in Ontario

Determining whether an Ontario Court has jurisdiction to hear your action involves a two-part test. First, the Court will determine if there are any “presumptive connecting factors” linking the lawsuit to Ontario. If you wish to have your case heard in Ontario, it is your responsibility to demonstrate the existence of one or more of these connecting factors.

The Supreme Court of Canada established the following four presumptive connecting factors:

1.     The wrongful act was committed in the province;

2.     The defendant lives in or is a resident of the province;

3.     The defendant carries on business in the province; and,

4.     A contract connected with the dispute was made in the province.

If Ontario is found to have jurisdiction over an action, the second part of the test considers whether or not Ontario is the most convenient place for the lawsuit. This is referred to as “forum non conveniens” and is based on an understanding that courts have the power to decline to hear an action in appropriate circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The Court may consider issues such as the difficulty or inconvenience of having to pursue litigation outside of Ontario or if you require ongoing medical attention in Ontario. The opposing party will have the burden of showing that another forum is clearly more appropriate than Ontario.

Is My Case Worth Less in Other Jurisdictions?

We have all heard of the large jury awards handed out in the USA. Unfortunately, many States require only minimal auto insurance coverage for their drivers. Therefore, if you are injured in the U.S., your access to the other driver’ss insurance may be limited even if your damages are much higher. Fortunately, you may still be able to recover additional compensation under the Family Protection Endorsement (OCPF-44R) in your own auto insurance policy. This coverage may increase your protection against uninsured or underinsured US drivers. You may also be entitled to receive accident benefits through your own policy.

Be Aware of Limitation Periods

The law of the place where the accident occurred is the law which determines who is at fault for an accident. This law also determines the time within which you must bring your action (the “limitation period”) as against the at-fault driver. American limitation periods are often shorter than the periods that apply in Ontario. Therefore it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may not be able to bring an action in Ontario.

Assess Your Insurance Needs

It is also important to discuss your auto and travel insurance needs with your agent before travelling outside of Ontario. You may need travel insurance to cover any unexpected medical bills while in the US. You may want to increase your auto insurance limits and purchase optional accident benefits in order to protect yourself against the often in adequate insurance carried by US motorists.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

Drone Operators Risk Criminal Charges & Lawsuits

Did you get a drone for Christmas? Well before you start flying it around the neighbourhood or at the local park there are a few tdrone-1080844_960_720hings you need to know about the laws that govern drone operators.

I recommend that anyone intending to fly a drone in Ontario take a community college course to ensure that they are aware of and understand the regulations governing drone operations and the laws that protect privacy. “Ignorance of the law is no excuse” and the urge to get out and play with your new “toy” before you fully understand your potential legal liability could land you and your drone in court and possibly jail.

Drones can fly almost anywhere, often have cameras and video capability, and may be able to instantaneously transmit images back to the operator. There are criminal laws against stalking, mischief, criminal harassment and voyeurism that may apply to a drone operator taking images of another person without their consent.

In addition to criminal charges drone operators also face the risk of being sued for privacy breaches because of the tort of “intrusion upon seclusion”. Privacy breaches can make the operator personally liable if they meet four criteria established by the Ontario Court of Appeal in 2012 in the case of Jones v. Tsige.

Ms. Jones and Ms. Tsige worked at a bank. Jones was also a bank customer. Tsige accessed and reviewed Jones’ bank records. Jones sued Tsige and the Ontario Court of Appeal, in finding in favour of Jones, established personal liability for “intrusion upon seclusion”. The Court set out 4 criteria that have to be met in order for there to be liability for “intrusionon seclusion”:

First, the offending conduct must be “intentional”, which may include reckless actions.

Second, the offender must have “invaded, without lawful justification, the (other party’s) private affairs or concerns”.

Third, “a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

Fourth, the claimant must have “suffered some anguish” because of the action.

The Court put a $20,000 cap on damages for “intrusion upon seclusion” and awarded Ms. Jones $10,000.

I have found 110 reported case decisions that include the phrase “intrusion upon seclusion” so it has gotten a lot of judicial attention since it was “created” by the Court of Appeal in 2012.

There have also been some cases involving property damage or personal injury caused by drones. In order for the party suffering the damage or injury to recover damages from the drone operator they must establish the 3 requirements of negligence:

First, there must be a duty of care owed by the drone operator to the aggrieved party. It is reasonable to assume the court will find that such a duty of care is owed to anyone who is at risk of injury by unsafe operation of the drone.

Second, it must be established that the standard of care that applies to drone operators was not met. An issue that is still undecided is what that “standard of care” is. Will the court apply the existing aviation regulations and Transport Canada publications that establish the knowledge requirement for aircraft pilots? Or will it be a lesser standard based on the drone operators courses offered at many community colleges?

Third, the claimant must show that the breach of the standard of care caused the personal injury or property damage. This should not difficult to establish if the drone has crash landed causing property damage or personal injury.

Drones are a popular “toy” but they come with the potential to invade the privacy of other people or to cause serious property damage and personal injuries. Everyone contemplating operating a drone needs to ensure that they know how to operate it safely and within the restrictions imposed by both the criminal law and the laws protecting privacy, property and persona well-being.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

 

Slip And Fall Injuries

Winter has arrived and that means walking can be treacherous when sidewalks, roadways, and stairs are covered in snow and ice. Slips and falls can occur at any time of the year due to wet surfaces, poorly constructed steps, uneven sidewalks, and improperly maintained floors, but winter inevitably sees a spike in these types of injuries.slips trips and falls.jpg

If you are injured in a slip and fall you may have the right to receive compensation from the “occupier” of the property where you fell.

Occupier’s Obligation

An occupier’s obligation for the maintenance of private or commercial property in Ontario is governed by section 3(1) of the Occupier’s Liability Act which states as follows:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Who is an occupier?

An “occupier” is defined by section 1 of the Occupier’s Liability Act as:

A person who is in physical possession of premises… or a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises.

This means that even though you may not own the property which you rent, you may be responsible for its maintenance and therefore may be liable in the event that someone is injured on those premises.

Under the Occupier’s Liability Act any entity that meets the definition of “Occupier”, (including municipalities, our work buildings, our friends’ and family’s homes, shopping malls, restaurants, and event venues) has a legal responsibility to make that sure that their premises are kept reasonably safe for visitors. Occupiers therefore need to be careful in keeping up their property. Liability in slip or trip cases turns on whether the occupier acted carefully so that slipping or tripping was not likely to happen. Another consideration is whether you were careless because you did not see or avoid the thing that caused you to fall.

Determining Liability

Here are some general rules to help determine whether an occupier was at fault for a slip and fall injury.

To be legally responsible for the injuries suffered from someone slipping or tripping and falling on their property, one of the following must be apply:

  1. The occupier or an employee must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item to be present.
  2. The occupier or an employee must have known of the dangerous surface condition but done nothing about it.
  3. The occupier or an employee should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered it and removed or repaired it.

The last situation is the most common. Unfortunately is also less black and white than the first two because of those troublesome words “should have known.” Liability in these cases is often decided by common sense. Judges and juries determine whether the occupier or occupier of property was careful by deciding if the steps the occupier or occupier took to keep the property safe were “reasonable” in their opinion.

What Is “Reasonable”?

Success in many claims based on negligence depends on whether or not the defendant acted reasonably. The law focusses on whether the occupier made regular and thorough efforts to keep the property safe and clean in determining whether an occupier acted reasonably. Here are some initial questions the court will ask in determining whether a property or business occupier may be liable for slip or trip and fall injuries:

  • Did the injured party tripped over a torn, broken, or bulging area of carpet, floor, or ground, or slipped on a wet, icy, or loose area? If so had the dangerous condition been there long enough that the occupier should have known about it and fixed it?
  • Did the property occupier have a regular procedure for examining, maintaining, cleaning or repairing the premises? If so, what proof does the occupier have of this regular maintenance? Maintenance logs can be important evidence on this issue.
  • If the fall was caused by the presence of an object on the floor was there a safer place the object could have been located, or could it have been placed in a safer manner, without much greater inconvenience or expense to the property occupier?
  • Could a simple barrier have been created or a warning been given to prevent people from entering the area where there was a risk of slipping or tripping?
  • Did poor or broken lighting contribute to the accident?

If the answers to one or more of these questions favours the injured person then they may have a good claim for compensation. However, the court must still consider whether their own carelessness contributed in any significant way to the accident.

Preventing Liability

Whether an occupier took reasonable care in the circumstances can vary on a case by case basis. For example, the standard of care required can be different for occupiers of residential property and occupiers of commercial property. Since the standard of care of occupiers is that of reasonableness and not perfection not every case of a slip and fall causing injury will necessarily give rise to a successful lawsuit. Where an occupier can show that it took reasonable steps to prevent the harm, it may be absolved of all liability and will not be required to pay any damages.

Home Occupiers

A home occupier should take the following steps to reduce the risk that they will be held liable if someone falls on their property:

  • quickly clean up spills
  • fix damaged railings and steps
  • ensure proper lighting is in place
  • clear snow and ice from sidewalks and areas leading to entrance of the premises
  • remove icicles
  • sand or salt icy or snowy areas as frequently as necessary
  • ensure you have sufficient policy limits in your home owner’s policy (speak to your broker)

Commercial Property Occupiers

In addition to the measures outlined above for home owners, commercial occupiers should also do the following:

  • erect ‘wet floor’ signs and other notices to warn patrons of potential hazards
  • close off sections of your premises if they pose a potential threat to patrons
  • implement inspection protocols
  • keep maintenance records
  • hire and train maintenance staff
  • alternatively hire an independent contractor and specifically outline the terms of the contractor’s responsibilities (although this does not necessarily discharge an occupier/occupier from its responsibilities – consult a lawyer to determine what should be in this contract)

Injured Parties Carelessness

In almost every slip or trip and fall case, the court must decide whether the injured party’s carelessness contributed to the accident. The rules of “comparative negligence” help measure their reasonableness (or lack thereof) in going where they did, in the way they did, just before the accident happened. There are some questions the court will ask the injured party about their conduct:

  • Did they have a legitimate reason for being where the dangerous area was?
  • Were they doing anything that distracted them from paying attention to where they were going?
  • Were they running, jumping, or fooling around in a way that made falling more likely?
  • Would a careful person have noticed the dangerous spot and avoided it, or walked carefully enough not to slip or trip?
  • Were there any warnings that the spot might be dangerous?If it is found that the injured party’s careless conduct contributed to the cause of their slip and fall the amount of compensation they are entitled to receive will be reduced according the their share of fault or liability. Courts have reduced a plaintiff’s damages if they were not wearing their prescription glasses, were in a rush, were intoxicated, had their hands full or were otherwise distracted when the incident occurred.

In order to reduce the risk of a fall or having you damages reduced you should do the following:

  • wear footwear that is suitable for the prevailing conditions (i.e. snow boots in winter)
  • follow any posted signage regarding unsafe areas or areas to avoid
  • use handrails and other safety devices that are available
  • take the safest route and avoid areas marked as slippery or wet
  • pay attention to your surroundings (don’t text and walk, etc.)

Prepare A Summary Of The Occurrence

If you have been injured in a slip and fall you should record the following information as soon as possible and keep a record of the following information in order for your lawyer to be in the best position to determine your chances of success and the amount of your potential damages:

  1. Prepare a general summary of the event including the time, date, cause and precise location of incident
  2. Take photographs of the general location of your fall and the hazard that caused you to trip or slip as well as of your injuries – a picture is worth a thousand words!
  3. Preserve the footwear you were wearing –take photos of the footwear including the soles
  4. If weather was a factor, such as a slip and fall on ice, note the weather conditions leading up to and at the time of the fall
  5. Report the incident to the property owner or property management immediately
  6. Get the name of the owner of the premises and if possible the name of any contractors hired to maintain the property
  7. Submit an incident report, leave a copy with the owner and keep a copy
  8. Get the names and contact information of any witnesses
  9. Make a list of the injuries you suffered as a result of the fall
  10. Keep a record of the treatment(s) you have received and are receiving for your injuries
  11. Keep a record of the name(s) of health care providers you are seeing for your injuries
  12. Keep a record of any out-of-pocket expenses associated with your injury such as mileage and parking costs for medical appointments, medication costs, physiotherapy, massage therapy costs, etc. and keep the receipts
  13. Keep a record of missed work or income opportunities

Consult A Lawyer ASAP

It is important that you consult a lawyer as soon as possible after an incident resulting in injuries from a slip or fall.

Since what is required to meet the standard of reasonableness will depend on the circumstances of each case it is best if you contact a lawyer promptly so that they can carry out the necessary investigation to determine whether the occupier failed to meet its standard of care in your particular situation. In addition you will want to retain your right to sue the occupier(s) and there are strict notice deadlines that apply in some situations. Your lawyer can insure that any deadline that applies to your case is met.

Conclusion

Slips and falls can cause serious injuries such as broken bones and head trauma that may prevent you from returning to work and require medical treatment. Compensation for pain and suffering and loss of income as well as other heads of damages may be available to you if you have suffered serious injuries as a result of a slip and fall incident. A prompt and thorough investigation of the circumstances of your fall will increase your chances of being successful in seeking compensation.

Ines Jelic is a personal injury lawyer in Ottawa and can be contacted by her direct phone number, 613-566-2055, or by email at ines.jelic@mannlawyers.com.

 

 

 

Social Host Liability

With the holiday season in full swing, many of us will be hosting our friends and family for dinners and other social gatherings where alcohol will be consumed.   It is important not only from a social responschampagne-glasses-original-370x229ibility perspective, but from a legal perspective, to take measures to avoid having your guests drive home while impaired.

“Social host liability” is the legal theory of whether a host of a party (or owner of the home) can be held responsible for injuries caused by a guest who drives away drunk.    If your guest drives drunk and subsequently causes a car crash, injuring innocent parties, in some cases you as the “social host” could have a “duty of care” and be held responsible for the injuries caused by the drunk driver.

Some steps to take to avoid being held liable for an accident caused by your drunk guest include:

  • If you are sending invitations, suggest on the invitation that guests take taxis, a legal ride sharing service, or public transportation, if they do not have a designated driver.   This gives your guests notice that you take this issue seriously.
  • Be prepared to take a firm and unequivocal stance with guests that they will not be allowed to drive away from your house if they are impaired.   Consider whether taking their keys is an option.
  • Verify who the designated drivers are and keep an eye out to make sure that designated drivers are not drinking.
  • Consider having taxi chits available for your guests.
  • Call cabs for guests yourself and give the cab driver the fare up front.
  • If available in your community, call a service such as Operation Red Nose.
  • Invite impaired guests to spend the night in a spare bedroom or on your couch.

Canadian Law

The leading Canadian Case on social host liability is the Supreme Court of Canada case Childs v. Desormeaux [2006] 1 SCR 643.

The defendant had attended a bring-your-own-alcohol party.   He consumed alcohol, left the party, and was subsequently involved in a serious accident with the plaintiff, Childs.  Childs was left a quadriplegic.   The Court was asked to decide if social hosts of parties where alcohol is consumed have a duty of care to public users of the road.

In Childs, the Court found that the host did not owe a duty of care to other users of the road who were harmed by the host’s intoxicated guests.  However, the absence of a duty of care was found only on the very specific facts of the case, notably that the intoxicated driver had brought and consumed his own alcohol at the party.   He had not been drinking supplied by the host.

Although simply hosting a party where guests are drinking is not enough to demonstrate the host’s liability, the court emphasized the facts of the case and indicated that social host liability could possibly be found in a scenario where the host provided the alcohol and knew the guest had become income and would be driving.

There is a positive duty of care in paternalistic relations of supervision and control, as noted by the Court.  Homeowners should be careful if there is a party in their home and they know (or should know) that young people are consuming alcohol.  Since Childs, there have been several cases that touch on these issues directly, including several summary judgment motions in Ontario (where a party asks for a decision to be made on an issue before trial).

In Hamilton v. Kember, 2008 CarswellOnt 1012, 165 A.C.W.S. (3d) 246, the plaintiffs were at a party hosted by a 17 year old.   Her parents had given the teenager permission to hold a party, subject to certain rules, including no alcohol consumption, and their liquor cabinet was locked up.    The parents left to go camping for the weekend.  The defendant motor vehicle operator attended the party, and drove impaired, resulting in catastrophic injuries to his passengers, the plaintiffs.    The teenager, her parents, and the driver were all sued.   The teenager and her parents brought a motion for summary judgement, arguing they were not liable because they had not served alcohol.   The judge stated “In my view the fact that [the host] did not serve alcohol is not sufficient to negate potential liability by the parents in these circumstances; therefore it cannot be said that the defendants owed no duty of care to the plaintiffs and this results in a genuine issue for the trial judge to consider.”

In a similar case (Kleitch and Miller), a teenager held a party at the family cottage and allowed guests to drive home despite the parents and the party-holder knowing that they were intoxicated.  The plaintiff passenger was injured in a crash.  On a motion for summary judgement, the judge refused to determine that the parents were not liable, because the plaintiff, being under the age of 19, was particularly vulnerable.

However, in a similar case,  Ferrier v. Hubbert, 2015 ONSC 5286 (Ont. S.C.J.) where the person holding the party was an adult, the parents of that person, the property owners, were found not liable, where the parents did not supply food or alcohol to guests.  There was found to be no duty of care given the host was an adult.

The homeowner parent in Sabourin (Litigation guardian of) v. McKeddie, 2016 CarswellOnt 5956, 2016 ONSC 2540, 265 A.C.W.S. (3d) 538 was also found not to be liable because there was an “absence of evidence” that the homeowner parent provided alcohol to the underage parties or even knew that there was underage drinking occurring.    However, a single additional piece of evidence could have changed this result, particularly given there were differences in the witness’ evidence.

Despite the homeowner defendant’s success in Ferrier and Sabourin, a high level of vigilance is the only safe approach when hosting a party where alcohol is consumed, regardless of the guest’s ages.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.

 

 

Leaving The Country This Winter? Do You Have Travel Insurance?

Did you know that, if you are travelling outside of Canada, you will not be covered by OHIP in the case of a medical emergency?  Even if you manage to get some OHIP coverage it will be limited and you should not expect that it will pay for your medical bills in another country.  If you want coverage for medical emergencies or illnesses while travelling abroad, you will need to buy travel insurance.  This type of insurance is available to cover unexpected expenses, such as an emergency hospital visit or medical treatment while you are travelling.

The coverage available through travel insurance may differ from policy to policy depending on the company that issues it. One thing that all insurance policies have in common is exclusions.  There are several exclusions that travel insurers typically include in their policies.  The main exclusion found in virtually all travel insurance is for “pre-existing conditions”.  A pre‑existing condition will be defined differently in different policies.  You will need to read the policy wording carefully to determine what it defines as a pre‑existing condition.  A common definition is “a medical condition that exists before your effective date of insurance”.  Pre‑existing conditions can include disease, illness, injury, complications due to pregnancy and mental or emotional disorders.

While some policies will exclude all coverage for pre-existing conditions, others will only offer limited coverage if a pre‑existing condition requires treatment. It is important to read the fine print very carefully before selecting a travel insurance policy so that you know what is considered a “pre‑existing condition” and what coverage is available should you experience medical problems because of a pre‑existing condition.

Other common exclusions found in travel insurance are:

  • “High risk” activities such as skydiving, bungee jumping, scuba diving, etc.;
  • Self-inflicted injuries or suicide;
  • Treatment for substance abuse such as drug or alcohol dependency;
  • Excluded destinations, especially those under travel advisories;
  • Maximum payments; these vary from policy to policy. There may be a financial “cap” for individual fees or total coverage. There may be “co‑insurance” which only pays for a percentage of the total cost;
  • Time limits may be set out in the policy so if you end up staying longer than anticipated you may need to extend your travel insurance or buy a new policy.

You may already have some form of travel insurance through your group health plan at work, a credit card, or a professional association. You should review your policy carefully before you leave Canada to ensure that you are aware of any exclusions it contains.  You may wish to buy additional travel insurance.

Finding yourself in a foreign country after an injury or illness without sufficient travel insurance can make a bad situation worse. It may be worthwhile consulting a lawyer to review the fine print of a travel insurance policy.  If you have already purchased the policy, or if you have travel insurance through a group health plan, it may also be worthwhile having a lawyer review the exclusions in it so that you are fully informed of the coverage that you have or, more importantly, do not have.

Edward (Ted) Masters is a personal injury lawyer in Ottawa with over 35 years of experience representing those seriously injured in car accidents. He can be contacted by his direct phone number, 613-566-2064, or by email at ted.masters@mannlawyers.com.