Can I Claim Compensation from a Distracted Driver and How Will The New Distracted Driving Laws in Ontario Affect Road Users? In a recent blog post, we discussed the legalities surrounding the operation of motor vehicles while impaired by alcohol or drugs, under the Criminal Code of Canada. Accompanying the fairly new Cannabis legislation, are further stringencies concerning Ontario drivers, which are expected to come into effect on January 1st, 2019. Any driver convicted of distracted driving will now be sanctioned with demerit points and have their driving licence suspended for up to a maximum of thirty days. However, the period given is determined by the number of times the culprit has been apprehended and convicted for the prohibited act. Drivers who are caught conversing on their mobile phones, texting, dialling or emailing from any electronic handheld device can also be fined up to $3000 in addition to the suspension of their driving licence. – Evidently, the initiative is to encourage safer driving and to dissuade drivers from driving carelessly. However, while it will be interesting to observe whether the rollout of stricter laws that impose harsher penalties are successful, it would be advisable for drivers to put away their devices before they start their journey. Does this mean that drivers aren’t getting the message? Arguably, this could very well be the case. However, once implemented, Ontario will undoubtedly have the toughest penalties for drivers that repeatedly disobey road rules and find themselves convicted of distracted driving. That said if you find yourself less worried about the prospect of having to pay a fine. Keep in mind that you may be subjected to what may seem an excessively increased car insurance premium also. Moreover, distracted driving is more than just using your handheld devices while at the wheel of the car. For instance, according to the official Government of Ontario website, there are a number of activities that are deemed distracting driving, stating ‘when you aren’t focused on the roads, things happen fast’. Activities such as: – Eating or smoking – Reading (books, maps, newspapers) – Playing extremely loud music – Personal grooming Just to name a few. Nevertheless, it is always important to stay abreast of driving laws within your province, as enhanced restrictions may actually be on the horizon and as one can imagine having a suspended licence can really interfere with everyday life. Distracted driving accidents are often preventable. Drivers have a responsibility to drive responsibly and with others in mind. If you or a loved one has suffered an injury as a result of a distracted driver, contact experienced personal injury lawyer, Marc Spivak, of Devry Smith Frank LLP, directly at (416) 446-5855. Lawyers will work diligently to secure the compensation you deserve. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryDecember 27, 2018June 15, 2020
I Have Been Assaulted, Can I Claim Compensation for Personal Injury Arising From This Assault? In Canada, reasonable expectation of personal safety is enforced criminally and civilly and in a previous post we already described the implications associated with dishonest sexual assault accusations, defamation of character and the damages in which one might be able to claim should they become such a victim. Perhaps slightly more complicated is understanding the differences between a criminal and civil case and how, particularly where a criminal prosecution is concerned, a personal injury claim can be affected. That said, it is important to also acknowledge that legal action taken as a result of an assault can be heard in both criminal court and a civil court. An assault by definition occurs when the defendant has demonstrated some sort of intended threat that in turn has instilled an element of apprehension or fear in the would-be claimant. This explanation typically pertains to cases that would be considered to be of a criminal nature. Although the lines are often blurred, there are significant distinctions between assault and battery and it is not uncommon for an assault to be mistaken for the latter. One clear differentiation is that with an assault there is no requirement for any physical contact to have occurred and the claimant does not need to have suffered any physical injuries. Thus, a claimant who can prove that the defendant intended to commit the act that could be seen to reasonably cause apprehension on part of the claimant, may be successful in obtaining compensation in a civil assault injury case. A personal injury lawsuit may be the most effective way for the victim to not only get reimbursement for possible medical bills and out of pocket expenses that may include reimbursement for housekeeping assistance and personal care, but also compensation for any pain and suffering experienced by the victim. This can be recovered from the person or persons who are legally liable for the incident that occurred. This can extend beyond those accused of committing the assault and can include employers, institutions such as schools and camps, governmental organizations, and in addition, parents. The Ontario Limitations Act s.4 limits the time in which a claimant can bring a claim to two years from the day the claim is discovered. Typically, the civil case proceeds after any criminal proceedings are held but one has to be certain not to possibly lose the opportunity of bringing a civil claim by waiting too long to initiate the claim. Civil proceedings are usually complex and require an experienced personal injury lawyer who can evaluate and advise you throughout the process. At Devry Smith Frank LLP we can navigate you or your loved ones through the seemingly overwhelming laws pertaining to personal injury. Although every case is different, we continuously strive to achieve the best possible results. For more information on how we can assist, please e-mail me directly at Marc Spivak or call me at (416) 446-5855 and schedule a free consultation today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryDecember 13, 2018June 15, 2020
Paramedic Who Had His Mother Die In His Arms Denied Workers’ Compensation By: Katelyn Bell, Summer Law Student It is common practice for Paramedics to arrive for their shifts up to a half an hour prior to their scheduled start time. This is done in an effort to prevent the crew they are relieving from possibly working overtime hours, which would be the case if a call were to come in within the last moments of their shift. When Paramedics arrive at the station, they check their vehicles and equipment at the start of their shirt. Equipment preparation includes, amongst numerous other things, checking the radios. Often times, emergency calls may come in during this time, and when this happens, first responders who are not “technically” on the clock will respond to the call. One Paramedic, Mr. Mireault, did exactly that. Mireault is a Paramedic in Rawdon, Quebec and when he was preparing his equipment before the start of his shift, a call came in for a cardiac arrest. And the address? Mireault’s mother’s home. Mireault and his partner made the decision to respond to the call several minutes before their shift was scheduled to begin, because they were the closest to the scene. The two workers left the garage at 8:00:13, having been only officially “on the clock” for 13 seconds. When Mireault arrived at the scene, his mother passed away in his arms. As a result of this happening, Mireault has been diagnosed with post-traumatic stress disorder (PTSD). Mireault has taken a leave of absence from work as a result of his PTSD. Mireault submitted a claim for compensation while on leave to the Quebec workplace health and safety board (CNESST), and his claim was denied. Reason being, Mireault wasn’t technically on the clock when he responded to the call over the radio. For the CNESST to compensate a worker for paid leave, the workplace incident must have happened during a work shift, and it must also be unexpected and sudden. Arguably, the “incident” – that is, the death of Mireault’s mother – did happen during a work shift, and unquestionably, her death was unexpected and sudden. So why won’t CNESST honor the compensation request? According to Daniel Chouinard, president of the Fédération des employés du préhospitalier du Québec, which represents ambulance workers in the Province, the CNESST often refuses claims involving paramedics and PTSD because the pretext is that it is part of their jobs. The denial of Mireault’s claim is unquestionably upsetting and actually quite worrisome. After becoming aware of this story, many Canadians, most notably, first responders, may be asking the question, “Could this happen in Ontario?” In Ontario, there is specific law surrounding PTSD and First Responders. Bill 163, Supporting Ontario’s First Responders Act, came into force in April, 2016. Section 14(3) of the Workplace Safety and Insurance Act reads “…a worker is entitled to benefits under the insurance plan for posttraumatic stress disorder arising out of and in the course of the worker’s employment…” The legislation creates a presumption that PTSD diagnosed in first responders is work-related. Therefore, an employee doesn’t necessarily have to be “on the clock” in order to be entitled to WSIB benefits. Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for WSIB benefits is expedited, and there is no need for the first responder to prove a causal link between PTSD and a workplace event. For employers of first responders, Bill 163 has significant consequences in terms of both the additional costs arising from expanded benefit entitlements, and the onus of rebutting the statutory presumption of entitlement, if the PTSD is not work-related. In some cases, this may be an heavy onus for employers to meet, especially when one considers the statistics: first responders are at least twice as likely as members of the general population to suffer from PTSD. Ultimately, the legislation in Ontario provides far more protection to first responders than does the legislation in Quebec. But would Bill 163 protect a worker such as Mireault, who responded to a call before he was on the clock? Is an individual considered to be working “in the course of employment” when setting up equipment, even before their scheduled shift? In one decision heard at the Ontario Workplace Safety and Insurance Appeals Tribunal, the panel rationed that when performing an action related to one’s work, they are working in the course and scope of their employment: “The general rule in cases of travelling to and from work is that injuries sustained by an employee travelling to or from work off the premises of the employer are considered to have arisen outside the course of employment. Those cases in which travel to or from work is considered to be within the course of employment are exceptions to the general rule. The guiding principal in deciding whether a case presents facts which justify departure from the general rule is whether, due to the factual circumstances of the case, the worker has essentially entered the sphere of employment.” Where the worker is using equipment or material supplied by the employer but receives no benefit beyond the use of the employer-owned equipment, (i.e. pay), and when there is evidence that there is no requirement for the employer to provide such equipment or transportation, no obligation on the worker to use it and no remuneration such as wage or salary for travel time, the only possible criterion that could place the worker in the course and scope of employment would be the use of the equipment itself. Whether or not the employer is exercising control over the worker, and/or whether the worker is performing any work for the employer at the time of injury, are additional factors that the Tribunal must consider when determining whether or not the worker was “in the course of employment.” Based on the above line of reasoning, because Mireault was using equipment supplied by the employer (the radio) at the time he responded to the call, it is likely that he would receive WSIB benefits. However, if the Board finds that an employee is entitled to benefits under the insurance plan for PTSD, the employer has the opportunity to appeal the decision. If the employer were to be successful, then compensation on leave would not be provided to the employee. Devry Smith Frank LLP proudly supports First Responders. Our First Responders Group provides a full range of legal support from family law, employment, insurance claims, to business and corporate services. If you require representation or would like to speak with one of our lawyers, contact Devry Smith Frank LLP‘s First Responders lawyers today, or contact our firm directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlogJuly 13, 2017June 25, 2020