Author: admin

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].

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

An e-coli outbreak at a Vancouver zoo has left 13 ill including a toddler who remains in a hospital according to the Vancouver Sun . The Sun also reported that public health authorities may have known about the outbreak earlier but did not issue any advisory alert.

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.

In Indonesia the pilot of a crashed airliner that killed 21 people was found negligent by the court and sentenced to two years.

The BBC reported this was the first incident of a pilot being charged for negligence in an airline accident. I don’t think there has ever been a Canadian case of this kind at least, that I am aware of.

The BBC reported that, scientists say they are moving ever closer to being able to diagnose Post Traumatic Stress Disorder (PTSD) using a brain scanner.

http://news.bbc.co.uk/2/hi/health/7977144.stm

The U.S. Food and Drug Administration released the following recall:

Kroger Recalls Shelled Pistachios Due to Possible Health Risk (March 27)

The pistachios were sold in The Kroger Co.'s family of stores in the following states: Alaska, Alabama, Arizona, Arkansas, California, Colorado, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming.

Last week the Globe and Mail reported, “a jolt from a taser could trigger a seizure in certain circumstances, according to a new report by Canadian researchers.”

In Canada, law enforcement authorities are the only ones permitted to use tasers. However, the use of tasers is now being questioned seriously. Particularly, after the death of an unarmed Polish immigrant after being tasered multiple times by RCMP officers.

Just a short while ago a police officer in his thirties was accidentally struck by his colleague with a taser. The officer:

…fell to the ground and began foaming at the mouth with his eyes rolling back in his head. His movements and behaviour were consistent with a generalized seizure. He returned to work five days later.

If I were a police officer I would not feel comfortable using an item that could cause such harm to others or myself.  Adequate policy and safeguards must be implemented towards the use of tasers or a team should be assembled to examine whether the taser should be abolished.

Rest assured, that if the use of tasers continues and harm is inflicted a number of civil lawsuits will be commenced against the law enforcement agency, the police officers who committed the harm, the provincial government and federal government to name but a few.

In regards to the peanut outbreak in the US Yahoo News reported:

WASHINGTON – The food industry's private inspection system failed to catch filthy conditions at a peanut company blamed for a nationwide salmonella outbreak because the firm itself hired the inspectors, lawmakers said Thursday.

Of course this is an obvious conflict of interest.

The article describes how:

Last summer, Peanut Corp.'s private inspector, a company called AIB, awarded the peanut processer a certificate in 2008 for "superior" quality at its Plainview, Texas, plant.

Peanut Corp is the company in the US that has caused the biggest salmonella outbreak ever.

The article can be found here.

Sekhon v. RBC General Insurance Co. 93 O.R. (3d) 472, November 28, 2008

This is an interesting appeal decision by the Divisional Court of Ontario. Here the insured’s daughter was involved in a single vehicle accident where she went through a fence and struck a tree.

After the accident the daughter stated the accident happened because she wanted "to test her mortality" among other statements.

One of the issues at trial was whether her admission would preclude recovery for the insured based on the auto policy section:

7.1.1 Coverage for Loss of or Damage to Your Automobile We agree to pay for direct and accidental loss of, or damage to, a described automobile and its equipment caused by a peril such as fire, theft, or collision if the automobile is insured against these perils.

The trial judge found that it was an accident despite the daughters statements.

The Divisional Court upheld the trial judges decision and ruled:

"Accident" is a non-technical term that is to be understood in its popular and ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. There was evidence upon which the trial judge could conclude on a balance of probabilities that the insured's daughter had no conscious or deliberate physical control of the vehicle, despite her comments immediately following the event that she intended to test her mortality. It was open to the trial judge to conclude that the daughter did not understand the nature and consequences of her actions when she drifted off the road and that the collision was "accidental". In any event, the insured, as the innocent owner of the damaged vehicle, was entitled to coverage as the accident [page473] occurred without her foresight or expectation and was not a reasonably foreseeable consequence of any action or inaction on her part.

No surprises here, the Mississauga tattoo shop I discussed just a few days ago is being sued along with Peel Region in a $20 million dollar class action.

The lawyers representing the Plaintiff’s are the same ones who have brought suit against a Durham tattoo parlour.

The Toronto Star reported:

The suit alleges that Peel health officials failed in their duty to warn the public of any potential health risk. Peel maintains it doesn't have enough inspectors and blames the lack of provincial funding.

The Toronto Star article can be found here.