In the case of McDonnell and Levie the insurance company lawyer that represented a driver that caused an accident asked a court whether the plaintiff should be compelled to produce pictures of herself engaged in activities as documented on her Facebook account.

The plaintiff McDonnell was involved in a car accident in 2007.  She argued that she sustained injuries as a result.  The plaintiff further testified on her discoveries that her activities were affected by her injuries.  She gave examples that she no longer golfed; she could not use a computer as long as she used to and had difficulty opening jars, door knobs and lifting.

During discoveries the plaintiff confirmed that she had a Facebook account Facebook that she posted pics to.  She didn’t know what the pictures would show other than her trips.  She stated she did not know “off hand” if the pictures would show her engaged in any activities subsequent to the accident.  The insurance company lawyer argued that he was entitled to the pictures of the plaintiff as being relevant and probative. It argues, quite correctly, that the test for production at discoveries is to show a “semblance of relevancy” – or relevant to the proceedings.

The plaintiff lawyer argued that the injured plaintiff was entitled to a degree of privacy regarding facebook that outweighs any probative value.

What did the Judge decide?

The Judge noted that our law appeared far from clear on the admissibility of postings found in the “private” sections of a litigant’s facebook account.

The plaintiff relied on a case called Schuster v Royal and Sun Alliance Insurance which was a motion by the defendant insurance company to preserve documents on a plaintiff’s Facebook webpage.  The plaintiff claimed injuries, as here, which compromised her ability to work and participate in social and recreational activities.  In that case the Judge dismissed the motion because the defence lawyer was seeking her password and user name which the learned judge felt went well beyond the scope of our laws. The court further ruled there was no evidence produced by the defence that Facebook contained any relevant information.

The Judge reviewed other Facebook cases to support his decision.

Leduc v. Roman Brown J. agreed the defendant bore the onus of demonstrating “that this Plaintiff had relevant materials on his Facebook website”.  The mere existence of a Facebook account was sufficient in that case to infer that the plaintiff’s

social networking site likely contained content relevant to show how he had led his life since the accident.

In the case of Murphy v. Perger the Judge concluded that if the publicly-accessible profile on Facebook showed relevant material then it was likely that the private Facebook profile would do likewise and would be evidence to show relevancy.

In our case the Judge noted that there was no such evidence here on this plaintiff’s publicly-accessible profile.

In the case of Parsniak v. Pendanather a case relied on by the insurance company, a plaintiff sued for compensation from a motor vehicle accident of 2006 as well as emotional trauma and loss of enjoyment of life.  At her discovery the plaintiff acknowledged having photographs of herself before and after on her webpage.

The learned judge followed Leduc, supra, where it was held that the “trial fairness” required the plaintiff to preserve and print posted material and deliver the pictures to the insurance company to be cross-examined if requested.   The Judge thought it reasonable that pictures from three years before the accident to the present was a reasonable request by the insurance company.

The Judge in this case noted that where a plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable because of her accident related injuries then pics of her social life and activities, before and after the accident are produceable as having some semblance of relevance and should be part of what she produces to the insurance company.

What about the privacy issue? The Judge shot it down. The plaintiff has put her social life in issue as well as her ability to do certain activities being negatively affected by her injuries from the accident – and was claiming compensation.  Her lawsuit was public domain, as was her Facebook photos that she displayed to others.

The privacy argument had little weight.

If you are or you are planning to claim compensation for your injuries be prepared to submit your Facebook photos three years prior to the accident and ongoing. This is certainly not an unreasonable request in my mind if you are asking to be compensated for injuries and for the loss of enjoyment of life you may have been caused because of an at-fault or careless driver. A lawsuit is not a tea party – it’s a dispute that is a long, expensive and arduous process. If you want someone to pay for changing your life – be prepared to show them your life. After all, it’s your case to prove – isn’t it?

Credibility and Transparency are what will help prove your case – always.  

On June 3, 2006 Wayne Tompkins was on his way to Chilliwack, BC to see his three month old grandson.  The weather was clear and there was little traffic.  Mr. Tompkins just pulled out of a Petro Canada station when he noticed a vehicle approaching him at high speed.  That car crossed the centre line, into Mr. Tompkins’ lane and collided with his vehicle head on.  There was absolutely nothing Mr. Tompkins could have done to avoid the crash.  The last recollection that he had before the crash was seeing a person with a ponytail slumped over the steering wheel of the oncoming car.  That person was Tawnya Bruce, who was then convicted of drinking and driving and dangerous driving. Bruce was found 100% liable for Mr. Tompkins’ injuries.

If you have been injured or if you have lost someone in a head-on car collision please contact us by filling out our confidential contact form. A lawyer will get back to you within 5 hours.

Mr. Tompkins suffered devastating injuries in this crash.  The judge found that he was initially knocked unconscious until the ambulance crew arrived.  At that point his Glasgow Coma Scale was 15/15.  Because of the severity of his injuries he was transferred from the local hospital to Vancouver General Hospital where X-Rays showed rib fractures, hip fractures, leg fractures and knee fractures.  He also had injuries to his sternum.  He had contusions to his face and head, his head was described as looking “like a football”, his testicles were swollen to the size of a grapefruit, he had jaw pain and all sources of other pain.  He was in the hospital for approximately thirty days.

 Near the end of his stay he was able to use a walker and was discharged in a wheelchair to the care of his son. His son’s bedroom became a “hospital room” for him and attendant care was provided to him 7 days a week.  He had a trapeze over his head to help him get out of bed.  The attendant care provider described it as an excruciating process if he had to get up.  He required attendant care for approximately 6 hours per day.  He eventually moved to using crutches and using morphine to manage his pain.  He had a lot of pain associated with the wiring in the right knee and hip fracture, as well as neck pain, jaw pain, right shoulder pain, vision problems and hearing problems.  Near the end of 2006, a meniscectomy was performed on his left knee.  Wires were removed from his right knee cap and plates were applied to his left hip joint.  In the spring of 2007 Mr. Tompkins was finally able to start walking again without crutches, at which point he began an extensive physiotherapy and rehabilitation program on a daily basis.  At the end of 2007 it was found that his left hip did not get appreciably better.  It ached constantly with sitting, driving or walking, he felt unable to put any weight on his leg and he encountered problems with pain and catching in his right knee.  He still had headaches, ringing in his ears, some memory loss, pain in his jaw, eye cataracts, a partial tear was found in one of his retinas, right sided neck and shoulder pain, low back pain if he was sitting and driving, pain in his right thigh with spasms, anterior knee pain and his left hip was sore all the time.  His doctors found him unable to go back to his previous employment and he was found unlikely to be employed in the near future and unable to do any of his previous vigorous activities such as skiing, hiking, tennis and playing baseball.

 Mr. Tompkins was assessed by a physiatrist who gave an opinion and evidence in the case.  The physiatrist gave the opinion that Mr. Tompkins suffered a brain injury and multiple orthopedic and musculoskeletal injuries which led to significant limitation to his physical capabilities.  A knee replacement was impending on probably both knees, he was at increased risk of falls because of the orthopedic injuries and brain injury.  It was also found that he would not likely be employable at the point of assessment or in the future.  The judge in the case reviewed the “upper limit cases” with this he found the sum of $200,000.00 a fair and reasonable amount for general damages for pain and suffering.  It is important to remember that in Canada the upper limit of pain and suffering damages payable are only $330,000.00.

The judge awarded $215,000.00 as loss of income from the accident to the date of judgment.  He awarded $425,000.00 for the loss of income that Mr. Tompkins could have made had he not been injured to the date of his retirement.  He awarded Mr. Tompkins $87,450.00 in future care and medical expenses.  He awarded the plaintiff Tompkins $35,771.00 for special damages (out of pocket expenses for rehabilitation, transportation, medication, yard care, dental care etc.). He awarded Mr. Tompkins’ daughter-in-law $7,500.00 and his live in girlfriend $10,000.00 for services provided for Mr. Tompkins.

There is no really type of auto accident that can result in more serious injuries than a head-on collision. Head-on collisions many times result in a catastrophic injury or death.  If you were injured in a head-on collision or lost a loved one in a fatal crash in Ontario, please talk to the one personal injury lawyers. We vigorously work to protect the rights of people injured in catastrophic car accidents throughout tall of Ontario.

If you have been terminated and mitigated your damages by finding alternate employment but you now make less  you may have a claim against your former employers. But – you have an absolute duty to mitigate your damages.  What does this mean?  This means you need to do everything that is reasonable to lessen the amount of losses (money) that you suffer because you were terminated. You will not be compensated by a Court  for financial losses which could have been avoided by you by taking certain reasonable steps. – i.e. finding another job.  To do this, I tell clients that should always keep a record of job search in an excel sheet that you can provide to me. When representing employers I expect this from terminated employees – if no reasonable search has been done, then unfortunately I cannot advise employer clients to pay.

In the Court of Appeal case of McGroarty v. Linita Designs, there was unique facts. The employee had a regular work week of 30 hours at $30 per hour and earned a weekly income of $900.  During the reasonable notice period, she obtained new employment at a rate of $20 per hour; however the requisite hours of work initially increased over five days, then eventually curtailed to four days a week, and then again went down to three days a week.  On these specific facts, the trial judge determined that it was not necessary to deduct all of the income she earned during the notice period because the employment she found required her to work more and differing hours at substantially less remuneration per hour.  Therefore, the trial judge determined that she was required to account only for mitigation income of up to a 30 hour work week at $20 per hour, or $600 per week, during the relevant time period and that the extra hours she was required to work weekly at the much lower hourly rate would not be deducted from her damages arising from her wrongful dismissal.

The Appellant Employer replied on  the Supreme Court of Canada case of Michaels v Red Deer College, {1976] 2 S.C.R. 324, the Supreme Court of Canada outlined the following general principles:

“It is, of course, for a wronged plaintiff to prove his damages, and there is therefore a burden upon him to establish on a balance of probabilities what his loss is. The parameters of loss are gov­erned by legal principle. The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff. The reference in the case law to a “duty” to mitigate should be understood in this sense…In short, a wronged plaintiff is entitled to recov­er damages for the losses he has suffered but the extent of those losses may depend on whether he has taken reasonable steps to avoid their unreasonable accumulation… 

In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismis­sal. He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages. He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence on avoidable consequences…

The rule of avoidable consequences here finds fre­quent application. The consequence of this injury is the failure of the employee to receive the pay which he was promised but, on the other hand, his time is left at his own disposal. If the employee unavoidably remains idle, the loss of his pay is actually suffered without deduction. If, however, the employee can obtain other employment, he can avoid part at least of these damages. Therefore, in an action by the employee against the employer for a wrongful discharge, a deduction of the net amount of what the employee earned, or what he might reasonably have earned in other employment of like nature, from what he would have received had there been no breach, furnishes the ordinary measure of damages.

It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract…But the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame.”

What if the Defendant does not lead evidence to show you are working somewhere else?
The Court of Appeal noted that the employer no doubt bears the burden of showing with evidence that a wrongfully dismissed employee has failed to mitigate her damages.  In the absence of proof by the employer that an employee obtained other employment of “approximately similar kind”, the employee should in fairness be entitled to recover the former salary owing arising from that number of hours required to be worked.

In this case the Court refused to deduct the award by 1/3. In particular, the Court stated that “certainly, it cannot fairly be said that this reduction in the hourly wage, by a full one-third, is “employment of like nature”. This was clearly an inferior employment position to that which she had previously enjoyed with the appellant. Recognizing this fact, and looking “at the entire picture”, the trial judge took into account and gave proper allowance for the “extra time and trouble” expended for the respondent to mitigate, and that at the substantially lower rate of hourly pay.”

What about the issue of making less money?
The Court further stated  a review of the case law presented by the parties in this appeal confirms that the assessment of damages by a trial judge where an employee obtains new employment within the notice period at a substantially lower rate of pay, and with differing hours of work, remained quite unsettled in law.

Having regard to the breadth of possible re-employment fact situations, our law is not so inflexible such that any and every benefit derived from complying with the duty to mitigate must in every circumstance require a deduction from the resulting damages. On the unique facts of this case, the trial judge correctly applied the law. It was the Court of Appeal’s view that the evidence that was presented by the employee, and properly considered by the trial judge, was sufficient to justify such an award of damages.  The employer did not satisfied its burden of proving with evidence that there was such a failure to mitigate as to require a diminution of these damages. Therefore, the Court did not disturb the assessment of her damages in these specific circumstances. 

A month a year is a rule of thumb that I have never believed in and should never be used.  The purpose of the determination of reasonable notice is to compensate an employee for the amount of time that he or she would reasonably be expected to need to find alternate employment. I also counsel HR personnel and employer clients to try and get it out of their minds and focus on each particular fact of what’s happening with the termination.

In Wallace v. United Grain Growers Ltd. 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, the Supreme Court of Canada confirmed the following: “In determining what constitutes reasonable notice of termination, the courts have generally applied the principles articulated by McRuer C.J.H.C. in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145:

 ”There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.  The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

A rough “rule of thumb” or approach to facilitate the determination of reasonable notice has been informally developed throughout the past ten years to provide “one month for each year of employment service”.  According to the Ontario Court of Appeal in Minott v. O’Shanter Development Company Ltd.1999 CanLII 3686 (ON CA), (1999) 42 O.R. (3d) 321, this “rule of thumb” should not be used as “a starting point”.

The month of year severance is no more than a very rough guideline. The period of notice should be determined by considering the four Bardal factors in the context of each particular case presented.

 One of the virtues of the Bardal test is its great flexibility.  Courts have told us that to adopt the “rule of thumb” approach risks overemphasising only one of the Bardal factors, “length of service”, at the expense of the others in determining “a range of reasonableness” – meaning that if the guideline is applied without thought we would only be overly-focusing on 1/4 Bardal factors and not all of them. What if the employee is 64 and has been employed for 10 years? What if the employee started working when she was 18 and is coming off of maternity leave at 32? Is it all about length of service?  I always try and give careful and balanced consideration to all of the relevant factors in the Bardal criteria in assessing the reasonable notice period.

If you have been terminated and you would like to discuss your particular situation in confident please contact me. Also, if you are an employer and you require termination information please email or call our office directly.

 We have employment law lawyers in three offices in Southern Ontario Region.  To contact one of our wrongful dismissal  lawyers concerning an employment law issue, please fill in the contact form and a lawyer will try to reply to you within 5 hours during regular business hours. 

Although the majority of my job as a lawyer is advocating on behalf of injured victims, I find employment law fascinating but also somewhat schizophrenic. It’s the one area of law that contains many cases of similar fact circumstances but Court decisions that are of such diverse range, but they all seem to make so much sense. In the recent case of McGroarty v. Linita Design a woman was employment for nearly 17 years, was terminated and the case went to Court. The employer was ordered to pay 17  months severance (payment in lieu of notice to people in HR and employment law…). They were obviously not happy with the decision and appealed it to the Divisional Court Ontario.  The employer submitted that the Trial Judge erred in determining that 17 months was reasonable having regard to all the factors submitted to him in the case. The Divisional Court was essentially asked if 17 months notice was reasonable to compensate the employee for the amount of time it would have taken her to have found alternate employment.

The employer took issue with the trial judges consideration of the character of employment in the availability of similar employment – meeting that they did not believe it would take the employee 17 months to find similar employment based on her character employment or what her job functions were. The suggestion or argument on behalf of the employer was that the trial judge failed to recognize the evidence of her employment duties and her employment history.

“Have you been terminated? Please fill in the contact form below and a Hamilton Employment Lawyer will get try to back to you within 5 hours.”

Within their assessment, the Divisional Court referred to the seminal decision of Bardal v. Globe and Mail where the Court stated that “There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

The Divisional Court noted that the great benefit of the Bardal test is its flexibility. The Appellant obviously took issue with the fact that the employee had 17 years of service and she was awarded 17 months notice. The suggestion was that a rule of thumb might have been used, that being a “month a year”  which is commonly used within the realm of employment law. The court noted that to approach a case with a “rule of thumb”risks over-emphasizing one of the Bardal factors (in particular the length of service) at the expense of the other factors in determining what is a reasonable notice period.

The Divisional Court disagreed with the employer and noted that the Judge gave balanced and careful consideration with detail reasons to all the Bardal factors in assessing the reasonable notice awarded to the employee. The Divisional Court found that 17 months was not outside the exceptional range for an employee in similar circumstances. In fact, the divisional Court stated that all the Bardal factors and criteria within context were rightly reasoned by the Judge and that the Judge did not even refer to a “rule of thumb” in the reasons.  The Divisional Court found no palpable or overriding error (there which is required by the court with questions involving determinations of fact or a mix of fact and law) that are clearly wrong, unreasonable and not supported by evidence.

The Divisional Court did not interfere with the judge’s decision and the employees award of 17 months severance  remained.

Quite a few of our clients that are injured in car accidents suffer “herniated disks”. We are often asked what this is.  In order to understand what a herniated disk is you first need to understand the basic anatomy and bio-mechanics of the human vertebrae. If you need more information, we would also encourage you to speak to your family doctor or orthopedic specialist. What you will read in this article comes from medical orthopedic text books that you can find and read at any medical school library. This is not medical information related to anyone’s condition, nor is it medical advice or diagnosis based on anyone’s symptomotolgy. Please talk to your doctor about ANY concerns you may have.

What is the Vertebral Column (Spine)?

The vertebral column extends from your skull to your pelvis.  It consists of a series of separate bones, the vertebrae, which are separated by “pads” of fibrocartilage called the intervertebral disks. The skull rests on the top of the vertebral column, which also supports the rib cage and serves as a point of attachment for the pelvic girdle. The vertebral column also protects your spinal cord, which passes through a vertebral canal formed by your vertebrae.

The vertebrae are named according to their location: you have seven cervical (neck) vertebrae, twelve thoracic (chest) vertebrae, five lumbar (lower back) vertebrae, five sacral vertebrae, and three to five coccygeal vertebrae fused into the tailbone. 

When viewed from the side, the vertebral column has four normal curvatures, named for their location. The cervical, thoracic, lumbar and sacral curvatures.  These curves of the vertebral column provide more support than a straight column would, and they also provide the balance needed to walk upright.

The Herniated Disks

The oval shape disks located between the vertebrae act as a “cushion”. They prevent the vertebrae from grinding against one another and absorb shock caused by such movements as running, jumping, and even walking. The disks also allow motion between the vertebrae so that a person can bend forward, backward, and from side to side. The discs comprise approximately 20% to 30% of the entire vertebral column.

Unfortunately, these disks become weakened with age, and can slip or even rupture by the forces of trauma caused in a car accidents and other types of accidents.  This is what you would refer to as a herniated disk.

Wikipedia describes a disc herniation “in which a tear in the outer, fibrous ring (annulus fibrosus) of an intervertebral disc (discus intervertebralis) allows the soft, central portion (nucleus pulposus) to bulge out beyond the damaged outer rings”

We often see clients that have suffered herniated disks because of the abnormal forces that are subjected to the vertebral column during an impact. We have clients that have suffered herniated disks in slip and falls, car accidents, motorcycle accidents and many other types of trauma type accidents which cause shock and disturbance to the spine.   The technical explanation for a herniated disc is the “different degrees of disc material displaced beyond the inter-vertebral disc space. The herniated disks can extend beyond the normal boundaries of the interspace towards the front, sides or to the back behind the spinal canal.

A damaged disk pressing against the spinal cord or the spinal nerves causes pain. Such a disk may need to be removed surgically. If a disk is removed, the vertebrae are fused together, limiting the body’s flexibility.

 The symptoms of a herniated disc normally vary quite substantially. Some people have horrid, never-ending and unrelenting pain symptoms that therapy simply can’t fix – and they might require surgery. Some disk herniations sometimes repair themselves within weeks. Some herniations cause neural “impingement” (pressing on nerves) that cause a host of problems. Everyone is different.  Some people may fees changes in their limbs like tingling or numbness, sciatica, muscle spasm, or pain that is usually continuous or at least is continuous in a specific position of the body such as sitting down or standing up. I recently represented a client that could not sit down – and in other positions he was fine. He could sit, stand, run, workout, lift his children but he experience excruciating pain in the left side of his upper back area when he sat down.

The diagnosis of a herniated disk is normally done by MRI. Depending on the diagnosis and severity, treatment for a herniated disc is usually conservative with non-operative treatment such as rest, steroid injections, a prescription of anti-inflammatory medication and perhaps rehabilitation. The greater part of disc herniations (as what we have been told) respond agreeably to conservative treatment. In cases which conservative treatments is not successful and the victim still experiences pain is still severe or muscle weakness is increasing, surgery may be the next option.

Is this different than a bulging disk?

Yes, a bulging disc, or a disk bulge is a disc injury in which the presence of disc material normally goes past the normal margins (around at least 50 percent) of the disc’s circumference. Quite the opposite, a herniated disc is defined as displacement of disc material beyond the limits of the disc space that extends (normally less than 50 percent) around the perimeter circumference of the disc.  Physicians have told us in the past that a bulging disc may impinge nerve roots or the spinal cord more significantly than a herniated disc.

If you have been in an accident and have suffered a herniated disc please do not hesitate to contact our personal injury law firm for a free no obligation consultation. We have been assisting accident victims that have suffered personal injuries for over 38 years.

In the case of Jarmson v. Jacobson out of British Columbia, the plaintiff Jarmson, a few days short of his 56th birthday, was involved in an extremely horrible motorcycle accident in which the defendant was found  100% at fault. The plaintiff sustained a traumatic brain injury, fractures to his right femur, fractures to his left wrist, fractures to his right foot, chest, with a collapsed lung, contusions to the left eye, facial lacerations, lacerations to his great toe in right elbow. He underwent surgery because of the fractures he sustained in the motorcycle collision. He was in the hospital for approximately 35 days. While in hospital diagnostic imaging revealed left-sided disc herniation at the C-4 and C-5 levels.

Later diagnosis involved problems stemming from his right foot including complex regional pain syndrome, heterotopic bone formation in the right thigh muscle, stiffness of the right knee, tears of tendons and cartilage throughout the right shoulder, post-traumatic stress disorder  and ongoing depression.

Prior to the motorcycle accident the plaintiff was extremely fit individual for his age, he exercised regularly and was in good physical condition. He traveled a lot with his family and the school at which he worked. These trips often involved rigorous physical activity. Prior to the motorcycle accident he had never requested any sick days off that can be noted. He never had any visits to his family doctor for any type of mood disorder or any pain or disability. The plaintiff, before his motorcycle collision, was a happy and well-adjusted individual, living life to the fullest. More testimony revealed that the plaintiff was socially outgoing, humorous, lighthearted and a family oriented man with a passion for pursuing his artistic talents in teaching art. He often worked out at the gym with weights and jogged to keep in shape.

How the motorcycle crash happened?

Liability for the accident was contested and went to trial. Judge Meiklem noted that there was very little evidence as to exactly how the collision happened between the defendant vehicle and the plaintiff motorcycle. Both vehicles were traveling in the westbound lane in clear daylight hours, on a straight and level dry stretch of highway. The plaintiff argued that the only reasonable conclusion as to the cause of the accident was that the defendant made an unsafe U-turn immediately into his path and is 100% at fault. The defendant submitted that the plaintiff simply failed to prove any negligent act or omission by the defendant and as such the case should have been tossed. The judge, after hearing testimony that with respect to liability from the plaintiff, defendant and experts, determined that on the whole of the evidence, this accident most likely occurred in the manner claimed by the plaintiff. He found the defendant 100% fault.

The victim’s injuries

Upon his discharge from the hospital, the plaintiff and his wife returned to Dubai. His wife described his condition consisting of exercise, napping, visiting medical doctors regularly and occasionally going to work with her in the afternoons. Approximately a year later he tried to return to his teaching job but he was unable to cope with the demands. The superintendent of the school testified that the plaintiff was unable to do the necessary aspects of the job and. He also testified that the plaintiff had lost his composure at times, displayed anger and observed that the plaintiff’s brain injury had a severe effect on his life in his relationships. Before his injuries he was known to be an axle and hands-on teacher that was loved by his students and loved by their parents and now he was a changed man for the worse.

Mr. Jarmson returned to Canada and underwent more neuropsychological testing which revealed personality disorder due to traumatic brain injury and adjustment disorder with mixed features of anxiety and depressed mood. Based on the neurological indices of severity, the judge found that the plaintiff suffered a severe track brain injury. It was agreed that the plaintiff’s readiness to fatigue was also a consequence of his brain injury because of the motorcycle accident and was likely to be a permanent problem for him.

The plaintiff also had long-lasting problems with his left elbow and left wrist. His shoulder also suffered torn two rotator cuffs and rotator cuff impingement. In addition, the way a thigh fracture healed caused a bone to push into his muscle which had to be surgically removed. He also had ongoing problems with his knee and right foot. His doctors testified that he would have continued limitations in functional use of his right foot and leg indefinitely and that it is probable that he would develop increased arthritic changes. It was also possible that he would develop  or pain in the mid-foot that may require surgical fusions.

What kind of damages was the plaintiff awarded?

The plaintiff argued for a substantial award given that his cognitive and physical injuries had a negative aspect on this life, socially, physically, emotionally and behaviorally. He chose his life as an international teacher and this was taken from them. He had been forced into early retirement. He had plan to build a home upon retirement but was forced to bear the cost sooner than expected. He was no longer able to participate in physical activities that he previously enjoyed with his family. Before this accident it was noted that the plaintiff was charismatic humorous and happy. Now he had an adjustment disorder, he was depressed and he hasn’t altered body image. He suffered chronic pain in his right foot, right shoulder and right knee. He was also impacted on a near daily basis by fatigue and both physical and mental meltdowns. The judge found that a fair, reasonable and appropriate award to compensate the plaintiff for his pain and suffering was $230,000.00

The judge noted that the parties agreed on a loss of US$55,000, inclusive of interest, for lost wages from teaching employment. The judge further awarded US$30,000 for past wage lost on the account of his photography word, which he did freelance, part-time. The total past wage loss was awarded at US$85,000.

The court also addressed the future wage loss. It was argued that it was not realistic for the plaintiff to return to work as a teacher even on a part-time or on-call basis. Also, it was argued by the plaintiff that formal educational training programs or apprenticeship training would not provide realistic vocational land for the plaintiff in light of his age, and considering his physical limitations. The judge imputed a residual annual income of $10,000. The judge further awarded the plaintiff $US400.000.00 for the loss of future earning capacity which he believed was fair and reasonable to both parties.

The cost of future care was also contentious. The plaintiff claimed approximately US$859,000 on the basis of recommendations for care and equipment and services, with the assistance of a life care planner. The judge is that unfortunately the plaintiff’s life care plan was not a Cadillac, but a gold plated Cadillac which goes far beyond what was reasonable. The defendant produced a functional capacity evaluation and cost of future care report which should differed significantly. Taking into account what was reasonable and necessary, the judge assessed the future cost of care of the plaintiff at $110,000.

Something called and “in-trust claim” was awarded the plaintiff’s wife. This could be equivalent to this the value of services rendered by a spouse for pecuniary losses under the Family Law Act. The court detailed the constant care of the plaintiff’s wife to her husband for the three years post-accident up to the date of the trial. It was noted that she cared for him like a nurse or caregiver on a full-time basis from his discharge to the hospital until August of 2008. She had spent every day trying to keep them organized and supervising his rehabilitation. The judge awarded $110,000.00 for this claim combined with the claim advanced for Ms.Jarmson’s interrupted outside earnings (her work). Housekeeping and home maintenance was viewed as a double recovery and was, as the judge put it, dealt with, within the relevant general damages.

Special damages were awarded at US$128,555.00 plus $16,310 Canadian dollars this cover the cost of a housing claim, rental costs, other incidentals and the cost of traveling back-and-forth from the Victoria to supervise the construction of their house.

Conclusion

Motorcyclists in Ontario have as much right to use our roads as drivers of cars and other vehicles. Everyone on the road in Ontario is responsible for being aware of their surroundings to ensure the safety of others. When a negligent driver fails to drive responsibly, as was found in this case, it can lead to serious injuries, especially when the victim is on a motorcycle.  This case was is a perfect example of how one mistake can change a person’s high quality of life to incessant daily problems and struggles. Motorcycle accidents unfortunately usually involve some of the worst head injuries and sadly, many fatalities. Seeking the proper medical treatment for your injuries and a successful Hamilton motorcycle accident lawyer to protect your rights may be necessary for you or for your loved ones.

If you have been injured in a Hamilton motorcycle crash, motorcycle accident or motorcycle collision, please fill out a contact form and one of our lawyers will try to get back to you within 5 hours.

If you have termination provisions built-in your employment contract you may have a big problem.  We call it “turning your floor into a ceiling.”

The Court Of Appeal dealt with this in 2008. In the case of Clarke v. Insight Components the Ontario of Appeal dismissed a lawsuit by a former executive for severance entitlements. The main issue that the Court had to determine was whether or not the original Judge that heard the case made a mistake in upholding the termination provisions in the executive’s employment contract that limited his termination entitlements to the minimum statutory entitlement as provided by the Employment Standards Act of Ontario.

The plaintiff had worked for Insight since 1995. He was promoted on several occasions until he became managing director following the company’s reorganization in 2001. He never negotiated the severance provisions within his employment contracts. The termination provision in his contracts did not change since he was hired, despite several promotions.

He was terminated in 2004. He was 47 years old earning a base salary of $200,000. Upon his termination he was offered an enhanced separation offer that extended a substantial lump sum payment of approximately $150,000 in addition to the various lump some amounts to which he was entitled to under his contract.

What exactly did his contract say?

“Termination of Employment- your employment may be terminated for cause at any time in which event you shall be entitled to only the amount of your salary and vacation pay earned up to the effective date of termination. Your employment may be terminated without cause for any reason upon the provision of reasonable notice equal to the requirements of the applicable employment or labor standards legislation. By signing below, you agree that upon the receipt of your entitlements in accordance with the legislation, no further amounts shall be due and payable to you whether other statute or common law.”

When Clarke was fired he sued his employer for wrongful dismissal. He argued that the termination provisions were unenforceable on the grounds that no consideration had been given for it and that the language of the provision was ambiguous – among other issues.

Contract law tells us that if policy or statute is ambiguous it will normally be determined as to the person’s understanding and not the policy makers or lawmakers. The trial Judge referred to the seminal case of Machtinger v. H.O.J. Industries decided by the Supreme Court of Canada. In that case the Court considered the principals dealing with contractual provisions that limited termination entitlements to those provided by the applicable statute in relation to the “rebuttal presumption” of termination only upon reasonable notice. The Court determined that if the termination provision fails to comply with the minimum notice standards of the Employment Standards Act the presumption of reasonable notice would not be rebutted. Otherwise in the absence of unconscionability, an employer can readily enter into contracts with employees which referentially incorporate the minimum notice periods set out in the applicable Act.  The Supreme Court also stated that an employer who wishes to guard against being called upon to give anymore notice or severance pay then legislation demands can readily draw a contractual clause which, in effect, converts the statutory floor into a ceiling.

The trial Judge therefore applied those principles and held that the employer, Insight, had successfully drawn a contractual termination provision which complied with the Employment Standards Act and had in fact converted a floor into the ceiling. The termination provision in Clarke’s contract was therefore found binding and enforceable against him and his termination was limited to the statutory minimums set out in the Employment Standards Act.

The employee, Clarke, appealed to the Court of Appeal on several grounds and unfortunately for Clarke, the Court rejected all submissions and upheld the termination provision contained in the employment contract.  Clarke’s arguments were very interesting and in fact very good arguments. However in the end, the Court of Appeal upheld the trial Judges decision and dismiss his case.

What does this decision tell us?

This case tells us that in the absence of any duress or unconscionability “a deal is a deal”and employees will be held to the terms of the contract entered into for valid consideration.

This case also tells us that  - although I did not get into it within the context of this quick post – employers need to be very careful with the precise language of termination provisions in order to set the statutory floor into a ceiling with respect of notice of termination.

Employees should also have contracts of employment reviewed by lawyers, no matter if the job offered is at the blue-collar or executive level. All contracts of employment are important to review no matter what the job.

Our law firm routinely reviews contracts of employment for employees and drafts contracts of employment for employers on a very regular basis. Please contact us for more information by filling out the contact form below and a lawyer should get back to you very shortly.

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We have employment law lawyers in Burlington and employment law lawyers in Milton to service you better. To contact one of our wrongful dismissal lawyers concerning an employment law issue, please fill in the contact form and a lawyer will try to reply to you within 5 hours during regular business hours.

The answer to this question is driven by factual circumstances.  Did you child fall during the winter? Spring? Summer? Fall? If it was winter, perhaps the answer to your question is yes, the homeowners should have taken better care of their driveway if it was icy.

In short, an occupier (if you want to know what an occupier is click here) owes a duty of care that is general to everyone visiting on his or her property.  This duty of care is mandated by the Occupiers Liability Act.  The Occupiers Liability Act is a statute which governs the laws of injury on premises in Ontario.

A specific section of the Occupiers Liability Act provides that the occupier of a premises owes a duty of care to take such care and all the circumstances of the case (meaning circumstances of your case – each case is different) is reasonable to see that people entering on the premises, and the property that those people bring on to the premises are reasonably safe while on the premises.  This is a provincial statute, in this section, simulates occupiers liability with the law of negligence.  The duty of negligence is “to take reasonable care to avoid acts or omissions which you can reasonably foresee will likely injure your neighbor”.  As a result the wording on section 3(1) of the Occupiers Liability Act owes this duty toward anyone entering onto a premises.

What is “foreseeable”?  The answer is simple and complicated.  Forseeable comes from the term foreseeability. In the past, foreseeability was part of a formula to determine liability within the context of negligence.  Sometimes, in certain context, liability for negligence requires a breach of duty of care rising from a reasonably foreseeable risk of harm to one person created by the act or omission of another.  It depends on what a reasonable person would anticipate, not a seriousness of your injuries or the depth of a defendant’s pockets.  Rather it is a test to determine liability – within the context of negligence. So what does all of this mean?  It means that the duty is to take reasonable care to avoid acts or omissions which one can “reasonably foresee” – i.e. is someone going to fall in your icy drive way if you don’t salt on a regular basis – will injure someone.

All facts in every case are different.  If it is a warm winter and there is no ice does one need to take preventative measures to combat the possible incident of injury in one’s drive way? Is there a reasonable duty owed to run and salt every single time the drive way freezes, 24 hours a day, during a warm winter?  Another important thing to understand is that an occupier is not an insurer.  It doesn’t mean that every time someone slips and falls liability will be imposed.  There is no standard in perfection that a home owner needs to take, rather the standard is one of reasonableness.  An occupier, or a home owner is in the context of this question, does not owe a duty to provide safety in all circumstances but rather a duty to use reasonable care to prevent injury in their drive way – which is known or ought to be known.

Has the winter been a tempestuous winter with incessant blizzards with consistent temperatures below zero? Then the home owner would maybe have to explain his failure in his duty to provide safety to people entering on to his drive way, as in your child delivering newspapers.  If it is a winter like this winter, with not a single incident of ice that I can remember, then it may not be foreseeable that someone would slip and fall in his drive way.

Another key to remember within the framework of the occupier’s liability act and negligence is “positive duty.”  There should always be some positive duty to ensure that people that enter your premises are reasonably safe.

It is always best to leave the duty of care, and the standard of that duty up to a lawyer to determine.  It is important that you consult a personal injury specialist to determine whether or not reasonable foreseeability exists and whether or not the Occupiers Liability Act may have been breached.  Only a qualified personal injury lawyer will be able to tell you if you have a case for damages against the home owner that caused your son or daughter’s injuries.

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If you or a loved one has suffered a serious injury in a slip and fall or by any other means, we are Hamilton personal injury lawyers that are available to provide free initial consultations and are available 24 hours a day, 7 days a week.   To contact one of our Hamilton personal injury accident lawyers concerning ta slip and fall accident, please fill in the contact form and a lawyer will try to reply to you within 2 hours during regular business hours.

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If you have been injured or if a family member has been killed in Ontario by the fault of another,please contact us. We are Toronto area accident lawyers that focus on Ontario car accidents (auto injury) and other complex personal injury. This includes car collisions that involve crashes or accidents with another car, bus, truck, bicycle, pedestrian, or motorcycle. The law in Ontario is very complex.  We have dedicated nearly four decades to representing hurt and injured clients across the province of Ontario.  After a serious accident or collision, we have lawyers that will visit in home or in hospital.  Do not worry where you are located.  Our personal injury and automobile accident lawyers in Hamilton, Burlington, Milton, Oakville and Mississauga are ready to visit and assist car crash or injury accident victims all over Ontario. Although we represent clients through the entire Province, our lawyers focus on Toronto area personal injury, Burlington personal injury, Milton personal injury, Mississauga and Oakville personal injury. Fill out a Free Online Consultation Form and a lawyer will try to get back to you within 2 hours during regular business hours, unless we are unavailable.