Well, it’s been almost two months since our beloved Wiarton Willy predicted an early end to winter. Regardless of the weather, it is now officially spring. Unofficially however, we are entering the much-dreaded season of roadwork.

2017’s mercurial weather fluctuations have turned cracks into craters and made driving a delicate and dangerous swerving game of tire preservation. Anyone who’s been commuting along the QEW in particular will be relieved to see fresh tar filling up the pesky potholes that have been adding a much-dreaded kathunk to our commutes. Potholes do a number on your car’s tires, wheels and suspension but they can also be dangerous to human life.

Auditor General’s View On Highway Maintenance

In 2015 the Auditor General put out a less than flattering report on winter highway maintenance in Ontario. In response, the Minister of Transportation assured Canadians that they were “taking swift action on the Auditor’s recommendations, with several to be in place by the start of next winter.” In a follow up report in 2016, the Auditor General confirmed that the Ministry had made “significant progress” on recommendations, but that it will take the Ministry until 2026 to fully implement all of the Auditor General’s recommendations.

In the meantime, we can only hope that Canadian Tire will start offering bulk suspension realignments at a discount.

Who is Liable for Rough Road Conditions?

Section 44 of the Municipal Act requires that municipalities keep their roadways “in a state of repair that is reasonable in the circumstances, including the character and location of the highway.” But what is a reasonable state of repair and what does the Act mean by a road’s character?

A pothole, for example, is technically considered in repair if it is less than 8 cm deep and 1000 square centimetres in surface area on a street that carries over 10,000 vehicles per day. So consider trying to safely avoid such sinkholes because if they damage your vehicle, chances are it won’t be the municipality paying your repair bill.

Municipalities set priorities for road repair according to the speed and traffic volume of the road or highway. This is the character of a road to which the Municipal Act is referring. Accordingly, a main, downtown artery like Brant St. in Burlington, or a major highway like the 403, will get priority over rural regional roads and quiet suburban cul-de-sacs.

Since the wording of the Act is intended to restrict liability claims against municipalities, what Section 44 means – for all intents and purposes – is that you better have insurance.

Car Damage From Poor Road Conditions – What to Do

If you or your car is damaged from poor road conditions, you will, regrettably, have a hard time getting compensation from the municipality in which the accident occurred. If your car is damaged from poor road maintenance, one option is, of course, to check with your insurance and see if the deductible is worth pursuing a claim.

Alternatively, you have the option to make a claim against the municipality responsible for the road’s maintenance. In order to successfully do so, you must prove that the municipality knew or should have known about the pothole and didn’t fix it within a reasonable period of time (which varies based on the street’s character). Unfortunately, municipalities aren’t known for footing the bill of pothole-damaged vehicles. A 2011 city ombudsman report found that the city denies over 95% of claims related to potholes.

Claims for Vehicle Damage

Having an experienced lawyer on your side will be essential if you wish to launch a successful lawsuit for damages caused to you or your vehicle from inadequately-maintained roads. Making a claim is time-sensitive (it must be submitted within 10 days of the accident) and complicated. Expert testimony and legal council can guide you through the morass of municipal litigation and KCY at LAW can help. Call us at (905) 639-0999 or contact us online now to book your consultation.

You’re a good driver. You would never want to cause a motor vehicle accident. You would never get behind the wheel after a couple glasses of wine. You would never pull out of your driveway without your glasses. So surely you wouldn’t check your cell phone while on the road. After all, like driving under the influence of drugs or alcohol, distracted driving is dangerous, not to mention illegal. Yet distracted driving is shockingly common.

What Is Distracted Driving?

According to the RCMP, distracted driving “is a form of impaired driving as a driver’s judgment is compromised when they are not fully focused on the road.” Distracted driving means not having your full attention to the road and traffic, even at a stoplight. This includes activities such as:

• using your phone to talk, text, changing podcasts, or check maps;
• eating, reading, doing your hair;
• changing GPS directions; and
• breaking up a fight between your kids in the backseat.

The Costs of Your Eyes Off the Road

According to the Province of Ontario’s website, drivers using a phone are four times more likely to cause an accident than a properly focused driver. The Province’s website also notes that deaths from distracted driving collisions have doubled in the last 16 years. Furthermore, according to the CAA, texting while driving makes you 23 times more likely to be involved or nearly involved in a collision. If you have been involved in a motor vehicle accident make sure you check out our Dos and Don’ts of Motor Vehicle Accidents.

Distracted Driving and the Law

While specific rules and penalties vary from province to province, it is illegal to use hand-held electronics while driving. This includes your mobile phone, GPS, E-reader and any other portable electronic device. Even holding a cellphone while driving is against the law. Hands-free and mounted devices like Bluetooths and GPS navigation systems, however, are permissible.

Distracted Driving Offences in Ontario

Penalties for distracted driving also vary from one province to the next and are dependent on a variety of other factors such as your licence and how long you have been driving. If you are convicted of a distracted driving offence in Ontario you could face:

• three demerit points;
• a fine of up to $490 if you settle the matter out of court;
• a fine of up to $1,000 if you contest your ticket in court and lose; or
• a 30 to 90-day licence suspension if you have a learner’s permit.

Avoiding Driving Distractions

Being prepared for your trip, however short or long, is the best way to stay focused when you are on the road. Plan your route and set up your GPS or other navigation device before you leave. Have your playlists or CDs cued and ready to go so you are not trying to find just the right tune when you should be checking your blind spot. Set up voice control on your mobile devices. Ask passengers to handle any incoming calls or texts. Better yet, take the opportunity to disconnect and turn your phone off altogether. Be present in the moment and devote your full attention to the road and your surroundings.

If you do need to use your phone, including in the case of an emergency, first safely pull your vehicle over to the side of the road and put on your hazard lights.

Distracted Driver Motor Vehicle Accident Experts

If you have been injured in a motor vehicle accident involving a distracted driver, call us at (905) 639-0999 today or contact us online to book your consultation. KCY at LAW are experienced personal injury lawyers with the expertise and compassion to help you get the settlement you deserve.

Winter is here and while cozying up with a hot chocolate is a great fireside activity, the best way to enjoy a snowy day is to be out in it. Winter sports like skiing and snowboarding are great ways to have fun and stay fit through our long Canadian winters. They can be, however, dangerous activities and personal injuries can be costly.

Winter Sports Injuries

According to the 2009 report The Economic Burden of Injury in Canada, winter activities are responsible for over 70,000 unintentional injuries in Canada annually. Nearly 1,400 of these winter injuries result in partial or permanent disability as well as $400 million in direct and indirect costs to Canadians.

The Alpine Responsibility Code

In the case of an accident with other recreationists (a fellow skier or snowboarder) there must be evidence that negligence on the part of the other party is responsible for your injury in order to successfully file a lawsuit. Alpine sports are inherently risky and so it is only if another person failed to act with reasonable care that they may be liable for damages. There are no specific laws for what constitutes reckless behaviour on the slopes but the Alpine Responsibility Code is a good starting point to determine if someone’s actions were acceptable.

The main tenants of the Code are:

• Always stay in control
• Always be able to stop
• People downhill have the right of way
• Do not obstruct paths
• Remain visible from uphill
• Yield uphill when merging onto a trail

Accordingly, in the event of a collision between two beginners colliding on a Green Circle run it is unlikely that the accident would be considered to have resulted from negligence. By contrast, an advanced skier who is barrelling down an icy Green Circle slope and causes an accident while weaving through beginners may be considered reckless and therefore liable for damages.

What To Do If Injured During Winter Sports

If you are injured in an accident with another skier or snowboarder it is important that you, or a friend or family member, get the name and contact information of the person with whom you collided. You should also try to get contact information from any witnesses to the accident. Lastly, be sure to take as many pictures of the accident site as possible.

Experts in Winter Sports Injury Cases

If you have been injured at a winter sports resort, KCY at LAW are here to advise you of your legal options. We are experienced in gathering the necessary evidence to get you the compensation you deserve. Call us today at (905) 639-0999 or contact us online for more info!

There is a cynical expression that states: No good deed goes unpunished. Fortunately, thanks to Good Samaritan laws, good deeds done in emergency situations are rarely punishable. In all Canadian provinces except Quebec, bystanders are not legally obligated to help in an emergency. However, if you do decide to step in and something goes wrong, you will not be held liable.

Ontario’s Good Samaritan Act

Ontario’s Good Samaritan Act protects a rescuer from any liability should they attempt to help a victim in distress. If you find yourself witnessing an emergency situation unfold, you might question your ability to help in the given circumstances and wonder if you will face punitive action should you make a mistake under stress. The Good Samaritan Act ensures that fear of legal repercussion never stops someone from trying to help in an emergency. Good Samaritan laws are intended to encourage individuals to try to help when they can.

Examples of The Good Samaritan Law

This act also applies to off-duty physicians. For example, if you are walking down the street and are involved in a motor vehicle accident and a passing doctor stops to help you, they cannot usually be sued for malpractice. A physician who voluntarily performs emergency treatment or first aid outside of a hospital is rarely accountable for damages as it is very rare for a doctor to fall below an expected standard of care in the event of an emergency without access to medical tools and resources.

Only if a physician’s act or omission in an emergency situation outside of a hospital causes further injury compared to another physician of typical experience in the given situation would it be possible to sue them for Gross Negligence.

Cleary v. Hansen – Standards for Rescuers

The 1981 case Cleary v. Hansen provides a good definition of the standard to which rescuers must adhere:

“Even during an attempt to assist someone in an emergency, the law expects reasonable care to be exercised, even though the standard is relaxed to a certain extent. The court does not expect perfection, but rescuers must be sensible. They, like anyone else, must weigh the advantages and the risks of their conduct. Their conduct, too, however laudable, must measure up to the standard of the reasonable person in similar circumstances.”

That is, breaking a rib while performing CPR is fine, improvising a surgery is probably not. Additionally, injuring someone else in the process of providing help could possibly be seen as grossly negligent. The Good Samaritan Act is not a carte blanche for reckless behaviour.

Medical Malpractice Experts

Medical malpractice suits can be the most difficult and costly claims to pursue and emergency circumstances can further complicate these claims.

If you or someone you know have received negligent medical treatment, we at KCY at LAW have the knowledge and experience to help you make an informed decision and pursue necessary justice. Contact us at (905) 639-0999 or write us online to book your consultation.

Social media, whether its Facebook, Instagram or Twitter, has and continues to become increasingly prevalent all over the world and used by people of all ages and walks of life.

Impact of Social Media on Lawsuits

The impact social media can have on an individual’s personal injury lawsuit, however, can be extremely detrimental. The problem lies in the fact that, by and large, individuals tend to only post updates or photos depicting positive life events. Rarely do we post about negative aspects of our life, such as the pain an individual experiences on a daily basis due to chronic pain stemming from a motor vehicle accident, or the fact that as a result of sustaining a concussion after tripping and falling over a crumbling sidewalk an individual is constantly suffering from impaired short-term memory. After all, who wants to visit a Facebook profile or Instagram page that only contains negativity?

Cyber Searches & Audits

By only posting the positive, an illusion is created that one’s life is only full of happiness, humour, and joy. Right or wrong, this illusion may raise questions on behalf of defence counsel and their clients as to the legitimacy of an individual’s claim and the credibility of that individual’s statements regarding their condition. Also consider the fact that defence counsel and their clients are increasingly conducting surveillance, not only via video footage but also through cyber searches and audits.

The risk is that a judge or a jury takes these positive updates or photographs at face value and draw a conclusion that an individual’s injuries cannot be that bad and/or that the compensation the individual is looking for is excessive in light of their seemingly enjoyable life. It is important to realize that this information can become very relevant for the purposes of your case and its chance of success.

Personal Injury Expert Lawyers

If you or someone you know has been seriously injured as a result of a motor vehicle accident or slip or trip and fall and have questions surrounding the use of social media evidence, we at KCY at LAW have the experience required to ensure your case has the best chance of success and that you receive the compensation you deserve. Give us a call at (905) 639-0999 or contact us online right now to book your FREE consultation!

Many negligence lawsuits involve the well-known legal test of “but for”. “But for” the negligence of another individual the accident would not have happened. “But for” the negligence of another individual I would not have been injured. However, in the context of a car accident the defence of “inevitable accident” or “Act of God” may be used by the lawyer representing the alleged negligent individual. Inevitable accidents are not caused by the negligence of any one person but rather are accidents that could not be prevented by reasonable care or caution. They are accidents that are caused by factors beyond the control of anyone. As a result, no one is at fault for the accident.

Defence of “Inevitable Accident”

An example of a defence of “inevitable accident” that has succeeded in the past involves a situation where an individual experiences a medical episode, such as a heart attack, that leads to a motor vehicle accident. If it can be proven that the individual who suffered from the heart attack had no forewarning of its onset, that the individual had zero past history involving similar medical episodes, and/or that the individual had no reason to believe that he or she may be at risk of having a heart attack, a successful “inevitable accident” defence may be made out. This essentially results in the injured party being unable to recover any damages from that individual or his or her insurance company, despite there being potentially very serious injuries.

High Threshold for “Inevitable Accident” Defence

Given the potential impact a defence like this may have on the lawsuit of someone who is otherwise seriously injured following an accident, the threshold that the alleged negligent person or his or her lawyer needs to meet is very high. Cases involving the defence of “inevitable accident” or “Act of God” can be very complicated and many of them often involve the hiring experts to opine on the inevitability aspect of the defence. In the case of a medical episode for example, this may mean combing through countless medical records of the alleged negligent party to determine whether there was any indicator that said episode could result.

“Inevitable Accident” Defence Experts

If you are or someone you know is dealing with a case that involves “inevitable accident” as part of the defence then contact KCY at LAW today to make sure your claim and case is properly handled. Call us today on (905) 639-0999 or contact us online for a FREE consultation!