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Surveillance

Posted by Dark Knight on May 27, 2009   |   No Comments

In personal injury actions surveillance is often used by an insurance company to discredit a Plaintiff and to catch them engaging in certain activities they allege they are unable to perform.

During the litigation process the issue of surveillance often becomes contentious. While a Defendant might retain surveillance they don’t end up disclosing it. The Ontario Rules of Civil Procedure require that if you intend to rely on such surveillance you have to disclose it 90 days before trial.

All parties should be aware of the disclosure obligations regarding surveillance. A recent Ontario case, Marchese v Knowles 2009 CanLII 12116 (ON S.C.) lays out some of these obligations.

The principals from Marchese are essentially identical to Walker v. Woodstock District Chamber of Commerce (2001) by the Divisional Court.

According to these cases if a party has surveillance it should disclose:

  1. Dates, times and precise locations;
  2. particulars of the activities and observations made, and
  3. the names and address of the persons who conducted the surveillance.

Although, the surveillance itself does not need to be provided the particulars as referenced above does. In fact, Marchese, even states that particulars of the log notes should be produced as well.

Finally, the rules are slightly different when dealing with surveillance in the context of hearings before the Financial Services Commission of Ontario (FSCO). FSCO requires that if you intend to rely on surveillance you must deliver all the raw material generated by the investigators and their contact particulars. Failure to do so, could have grave consequences for the party who intends to rely on the surveillance.

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The Maple Leaf scandal continues

Posted by Dark Knight on April 23, 2009   |   No Comments

A new report by the union representing inspectors in the Maple Leaf food scandal places blame on the Canadian Food Inspection Agency.

The Toronto Star reported:

Inadequate resources, staff shortages and overtime bans on federal inspectors have prevented the mandatory annual safety audits from being completed, says the union, which has sent its briefing note to members of a federal subcommittee investigating the listeria outbreak.

The note by the union rep stated that to meet the requirements set by CIFA is, “mission impossible.”

Apparently, many overworked inspectors simply didn’t have the time to ensure adequate reviews and a great deal of the inspection was left to plant staff. The inspector responsible for Maple Leaf was also, “responsible for seven facilities at the time of the listeriosis outbreak.”

The Toronto Star also reported:

Cost-cutting measures at the food inspection agency included banning overtime for inspectors before last summer’s tragedy, the note says. “As a result, CFIA inspectors were unable to verify that pre-operation and sanitation inspections at ready-to-eat meat processing plants in Ontario and Quebec were properly conducted by plant employees, including at the Maple Leaf plant.”

In a civil action CIFA might also have to be named if not already done so in light of this new note by the union representative. While CIFA might set industry standards they are rendered useless if their own personnel are unable to comply.

This story will continue for sometime.

The Toronto Star article can be found here:

http://www.thestar.com/article/621085

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Passed Threshold

Posted by Dark Knight on April 22, 2009   |   No Comments

In Rio v. Lawrence a Bill 59 case the Plaintiff complained of:

Neck pain, intermittent occipital headaches, pain in the left shoulder, low back pain, depression, lack of sleep - while she can work and attend to her personal needs and grooming, she more often than not returns home from work effectively unable to do anything but lie down as a result of the pain – her usual activities of daily living outside of work, such as they were, have been curtailed markedly.

The Motion’s Judge found that the Plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function. Section 267.5(5) of the Insurance Act reads as follows:

[T]he owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss… from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,


(a) permanent serious disfigurement; or


(b) permanent serious impairment of an important physical, mental or psychological function.

Therefore, the Plaintiff passed threshold. Damages were assessed at $22, 500.

Rio v. Lawrence

http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6833/2009canlii6833.html

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Louise Russo

Posted by Dark Knight on April 20, 2009   |   No Comments

Many are familiar with the tragic case of Louise Russo who was shot in a parking lot in North York on April 21, 2004 and rendered a paraplegic. The assailants were tied to the mob and were eventually arrested and pled guilty.

The vehicle used by the assailants had no insurance. Therefore, Russo started a civil action against her own insurance company pursuant to a specific endorsement in Ontario policies that allows coverage for under/uninsured coverage in accidents.

However, the crux of the matter in this law suit was whether or not Russo’s injuries could be defined as being caused by the assailants use or operation of the motor vehicle.

The Defendant insurance company made a Motion before the court to decide this question of law i.e., whether this was the result of the use or operation of a motor vehicle accident.

The Insurance companies Motion was allowed. This meant that Russo’s own insurance company was not liable as per her insurance policy. The Motions Judge made this decision based on the recent precedent regarding the use or operation of a motor vehicle.

Russo’s case had caught the attention and sympathy of many in Toronto. Despite, finding the insurance company not liable the Motions Judge commented:

One can feel nothing but intense sadness and regret for an innocent person like Russo who was unsuspectingly in the wrong place at the wrong time and became the victim of a violent crime. It is certainly not through indifference that the Court arrives at its decision. The profound emotional, social and financial impact the injury has had on Russo’s life and health and on her family is not lost on the Court. The Court’s flexibility in these matters must be tempered by a consideration best expressed by the Ontario Court of Appeal: “As liberally as one may choose to interpret legislation which provides benefits to those who are injured, it must be remembered that this is automobile legislation. [Alchimowicz v. Continental Insurance Co. of Canada (1996), 36 C.C.L.I. (284) at para. 9].[1]

[1] Russo v. John Doe [2008] O.J. No. 2230 paragraph 38

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The Ontario Apology Act

Posted by Dark Knight on April 17, 2009   |   No Comments

Often in tort claims prior to the commencement of litigation the party who committed the wrong might make an apology. Sometimes, these apologies are verbal or formal by way of written correspondence.

For example, in the context of motor vehicle accidents the driver who committed the illegal act might, at the scene of the accident express regret or remorse. Or, in the context of a doctor who performed an improper medical procedure might offer a written apology to the patient.

The concern with the apology is that it can be inferred as an admission of guilt.

On March 11, 2009 Bill 108 The Apology Act passed with little media attention. Proponents of the Bill say that it allows parties to make an official apology without fear of legal consequences. They further state, that an apology is important in the healing process and might lead to expedient results in litigation cases.

Apology is defined as:

1. In this Act,

“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.

Providing an apology does not, void, impair or otherwise affect any insurance or indemnity coverage in connection with the matter pursuant to section 1(b).

Section 23.1(3) states:

Notwithstanding any other Act or law, evidence of an apology made by or on

behalf of a person in connection with any event or occurrence is not admissible in any action or matter in any court as evidence of the fault or liability of the person in connection with that event or occurrence.

However, there is a new section that has been inserted. Section 4 states:

However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.

This means that any apology made during the civil proceeding whether they be at examinations or out of court can be used.

The implications of section 23.1(3) are of most importance. That means that in an action where the Defendant is taking a particularly hard line with respect to liability or negligence the apology would not be admissible at trial. That means that the individual who gave the apology could not be cross examined on whether or not they offered an apology. At least that’s the way I read it.


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