Halifax Personal Injury Lawyer Blog

Darrel Dexter’s NDP Government pledged to remove the unfair $2,500.00 cap on compensation for motor vehicle accident victims who have suffered a “minor injury”.

Constitutional Challenge Unsuccessful

A constitutional challenge was filed against the legislation arguing that the cap of $2,500.00 for persons who have supposedly suffered a minor injury was contrary to the Charter of Rights and Freedoms. The constitutional challenge failed at both the trial level and the Nova Scotia Court of Appeal. Leave to appeal to the Supreme Court of Canada has been filed.

Requesting Public Feedback

Now the NDP Government has released a position paper requesting input from the public. The minor injury cap was introduced because insurance companies claimed they were losing money on automobile insurance claims.

However, evidence presented to the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal confirms the insurance industry was making record profits at the time the minor injury cap legislation was introduced.

Is the Cap Fair?

So what do you think? Is the cap of $2,500.00 for pain and suffering for persons who have suffered an injury in a motor vehicle accident fair?

Your comments can be sent to:

The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8

Submissions must be received by February 15, 2010.

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Continue reading "NDP Requests Public Input Regarding “Minor Injury” Compensation Cap" »

Defence Lawyers on Facebook

Everybody seems to be interested in Facebook, Twitter and all the other social media networks these days. That includes lawyers who represent insurance companies. There have been a series of cases across Canada where lawyers for insurance companies have demanded production of plaintiffs' Facebook pages in order to use the information against the plaintiff.

Depressed Victim Looked Too Happy

In a recent case in Quebec, Nathalie Blanchard was on disability for depression. She had her benefits terminated because her insurance company, Manulife found pictures on her Facebook page where she was smiling and looking like she was having a good time. In other words, she didn’t look depressed so the insurance company cut off her benefits.

Blanchard is now suing Manulife to reinstate her disability benefits.

In New Brunswick the Court of The Queens Bench recently ordered a plaintiff to produce the contents of her Facebook page to the lawyers representing the defendant’s insurance company.

Online Information Must be Disclosed?

Court rules in each province require the parties to disclose any information they have that may be relevant to the matters at issue in litigation. This now includes any electronic information in possession of the parties. While this commonly refers to things like e-mail or digital documents, the courts have been extending the reach of this disclosure obligation to include online information.

In Leduc v. Roman the Ontario Court required the plaintiff to produce information from a “private” Facebook account. The judge in that decision stated:

“It is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on a party’s facebook profile may be relevant to the allegations made in the pleading.”

Facebook May Be Used For Cross Examination

In a recent case in Newfoundland, Terry v. Mullowney, the lawyer for the defendants used excerpts from the plaintiff’s facebook page to cross examine the plaintiff about his social life.

The judge commented on the use of this information:

“While not getting into the details of the excepts, they convince me that Mr. Terry (at least in the few months prior to his testimony in court) recorded on facebook had a rather full and active social life…I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on facebook and that for the remainder of the time from 2001 to 2007 he essentially had little or no social life. Without this evidence I would have been left with a very different impression of Mr. Terry’s social life.”

Disclosure Obligations Extend Online

So in the future you can expect parties in litigation to demand complete disclosure of Facebook pages, Linkedin profiles, Twitter accounts and public Blogs. In short, any information that you post online can and may be used against you. Beware.

Continue reading "Facebook Being Used Against Personal Injury Victims" »

Lawyer Fees Generally

Usually lawyers are paid an hourly rate for the time they spend working on behalf of the claim. For the most part, the hourly rate changed by lawyers increases depending on the lawyer’s experience and, in particular, the lawyer’s experience in the particular field in which he is being retained.

Time = Money

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking a lawyer for his or her advice is no different than asking an accountant to do your taxes, or hiring an electrician to fix the wiring in your home.

However, some people are under the impression that calling a lawyer and asking a question is free. Most lawyers will answer preliminary questions regarding a legal matter at no charge, but when it is determined a lawyer is needed, a fee contract is required.

The amount of time that a lawyer will spend on any particular case will vary by lawyer and by case. Just as no two cases are the same, the work habits, productivity or the approach deemed best to a particular case, are not going to be the same from one lawyer to another.

What's a Contingency Fee?

In some cases, a lawyer may accept a case on the basis of what is generally known as a contingency fee agreement. Given the tremendous cost of litigation, most of my clients are simply not in a position to be able to financially afford to pay my hourly rate on a month by month basis.

Contingency Fees Allow Access to Justice

A contingency fee contract has been referred to as the "poor man's key to the courthouse" because many persons who are in need of a lawyer cannot afford the significant costs of litigation at the lawyers normal hourly rate.

At Arnold Pizzo McKiggan we are pleased to be able to offer our client’s the option of contingency fee contracts in appropriate cases. However, we go one step further.

Client Choice Legal Fee Program

There are some cases where a percentage fee may not be appropriate. For example, in a case where the insurance company has already made you an offer, you may want to pay the lawyer on an hourly rate basis and perhaps save tens of thousands of dollars in the process!

This is why we developed the innovative Client Choice Legal Fee Program for personal injury claims.

If you live in Atlantic Canada and have a serious personal injury claim and you think you require the services of a lawyer, you can call us for more details of our Client Choice Legal Fee Program

Continue reading "Lawyer Fees: How To Hire a Personal Injury Lawyer" »

Direct Liability

The term vicarious liability comes up in personal injury claims frequently. In most cases, your claim will be against the person who directly caused your injuries. For example, if you are run over by a car while walking in a cross walk, you can sue the driver of the car who may be found directly liable (at fault) for your injuries.

Vicarious Liability

On the other hand, in some cases someone else may be liable (responsible) for compensating you for your injuries. This issue typically comes up in cases of employees who do something wrong during the course of their employment.

In the Course of Employment

The law has generally held that the employer will be vicariously liable (responsible) for any wrongful acts committed by an employee while the employee was acting in the general course of their duties.

So to take our care accident example, if you were run over by someone driving a car you might sue the driver who could be found directly liable. However, if the person is driving a delivery truck you may also sue the delivery company that owned the truck and employed the driver.

Vicarious Liability Important to Ensure Justice

The ability to hold an employer vicariously liable for the wrongful acts of employees is important because it encourages employers to properly supervise their employees to ensure that are performing their job duties in a safe and careful fashion. It is also important in the case of catastrophic personal injury claims where an individual defendant may not have sufficient insurance or assets to fully compensate the injured person. Being able to pursue the defendant’s employer means that there is another source of funds available to help pay the plaintiff’s personal injury claim.

Continue reading "What is “Vicarious Liability”? Halifax Personal Injury Lawyer Explains" »

I noticed an interesting story in the latest newsletter from the Brain Injury Association of Canada

Hockey Helmets Mandatory for All Skaters

Dalhousie's Memorial Arena is introducing a new rule that comes into effect January 1, 2010 that will require all skaters to wear CSA-approved hockey helmets during all skating sessions held at Dalhousie.

Skating More Dangerous than Bicycling or Skateboarding

Under Nova Scotia's Motor Vehicle Act, wearing a helmet is mandatory for biclists, skateboarders and in-line skaters. But there is no law that requires skaters to wear helmets.

But studies have shown that ice skating produces three times more head injuries than cycling, skateboarding or inline skating.

Ice skating is particularly dangerous because when a person loses his or her balance on ice, there is often impact of the head directly on the hard surface.

Helmets Just "Common Sense"

Dr. David B. Clarke, is a Dalhousie professor and one of the leading neurosurgeons in the province. he was quoted as saying:

“Wearing a helmet while skating in order to protect your brain is supported by research and also just makes common sense. We want people to enjoy this wonderful activity and, at the same time, we want people to protect their brains. I am delighted that Dalhousie is taking a leadership role on this issue...”

Kathie Wheadon-Hore, Senior Manager, Facility Operations for Dalhousie’s Department of Athletics and Recreational Services said:

“We have to do this. Even if this helps save one person, if it helps save one of our students, then it’s worth it in my opinion.”

I suspect the rule change may be unpopular with the students and public that use Memorial Arena. But as a Brain Injury Lawyer, I have seen first hand the devastating effects that brain injuries can have and I applaud Dalhousie for it's progressive approach to head injury prevention.

So what do you think? Is the helmet rule a good idea?

Continue reading "Mandatory Helmets for Recreational Ice Skaters: Brain Injury Prevention" »

Whirlwind Week for Auto Accident Victims

It’s been quite a week for anyone interested in Nova Scotia’s automobile insurance minor injury cap.

Court of Appeal Decision

On Tuesday Chief Justice MacDonald released the Court of Appeal’s decision in Hartling v. Nova Scotia.

The Plaintiffs filed a constitutional challenge against Nova Scotia’s automobile insurance law which places a monetary cap of $2,500.00 on the compensation that injured car accident victims are entitled to receive for their pain and suffering.

Recap

During the original hearing, Justice Walter Goodfellow ruled that the legislation was not discriminatory and did not violate the Charter of Rights and Freedoms.

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Justice Goodfellow released a second part to his decision where he determined that, if the legislation was discriminatory, the benefits of the legislation were not sufficient to justify the discrimination.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Hope For Accident Victims

The decision offered hope to accident victims who felt that the Court of Appeal might give greater weight to the evidence of the adverse effects of the cap legislation.

Court of Appeal Dismisses Accident Victim’s Appeal

This week the Court of Appeal dashed the hopes of accident victims who have been told that the injuries they have suffered are minor and that compensation for pain is caped at $2500.00

Court of Appeal Agrees Legislation is Discriminatory

Chief Justice Smith agreed with the appellants on several issues:

Injured victims whose claims are capped by the legislation are treated differently from other automobile accident victims. Justice MacDonald ruled that this meets the distinction required by Section 15 of the Charter of Rights and Freedoms to establish discrimination.

The distinction is based on one of the prohibited ground of discrimination listed in the Charter. In this particular case accident victims were being discriminated against on the grounds of physical disability.

Chief Justice MacDonald acknowledged that minor injury victims are disadvantaged by the minor injury cap legislation.

Finally, Chief Justice MacDonald agreed that the court had to consider any evidence of prejudice or stereotype regardless of how limited it might be, in considering whether the legislation violates the Charter.

However, after conducting an analysis of the evidence for each of these points Chief Justice MacDonald determined that the court had to consider whether the legislation’s purpose (controlling increasing auto insurance premiums) out-weighed the discriminatory effects of the legislation.

Minor Injury Cap Doesn't Eliminate All Right to Recovery

Chief Justice MacDonald distinguished the Supreme Court of Canada’s decision in Martin v. Nova Scotia (Workers Compensation Board) which found that the way in which Nova Scotia’s workers compensation legislation treated victims of chronic pain was discriminatory. Chief Justice MacDonald stated that, in Martin, claimants were denied all right of recovery whereas under the automobile insurance “minor injury” cap, victims’ right to recover compensation was limited rather than eliminated.

Legislation Doesn't Discriminate Against Women

Chief Justice MacDonald also dismissed the appellant’s arguments that the legislation unduly discriminates against female accident victims. While acknowledging that women have been historically disadvantaged in the work place Chief Justice MacDonald feels that the root problem of the discrimination and reduction in women’s wages were caused by unrelated social issues, not the minor injury insurance cap.

Minor Injury Cap Upheld

The Court of Appeal has decided that the minor injury cap legislation is discriminatory. However the discrimination is not sufficient to trigger the equality provisions of Section 15 of The Charter of Rights and Freedoms. In other words, the legislation discriminates. It just doesn’t discriminate enough to violate Canada’s constitution.

So there you have it, in Nova Scotia the minor injury compensation cap is constitutional and all of the limits and restrictions that the legislation places on innocent automobile accident victims are justified in pursuit of lower automobile insurance rates.

Supreme Court Denies Alberta Leave to Appeal

Accident victims in Alberta have been waiting for leave (permission) from the Supreme Court of Canada to appeal the decision of Morrow v. Zhang which upheld to constitutionality of Alberta’s minor injury automobile cap.

Minor Injury Cap Reinstated in Alberta

On Thursday morning the Supreme Court of Canada denied the accident victims’ leave to appeal. In other words, the Court wouldn’t even hear the victim’s appeal, let alone consider their arguments.

That means an appeal from Nova Scotia over the Hartling decision is also likely to be denied leave, since the Supreme Court only hears matters that have a national interest.

NDP to Repeal Minor Injury Cap

But not all hope is lost for accident victims.

Yesterday afternoon Premier Darrell Dexter confirmed the NDP government’s commitment to “scrap” the minor injury cap.

Premier Dexter was quoted as saying:

"The $2,500 cap is not fair to people who have suffered serious injury," he said.>"Insurance is a product designed to protect people. If you exclude people from protection through a $2,500 cap, then by definition you're not delivering the product that has been paid for."

Contact the Premier

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

My colleague David Brannen has posted a more thorough analysis of the hartling decision on his Nova Scotia Car Accident Law Blog. Take a look.

Continue reading "Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law" »

Head Injury Seminar

Hockey Canada is conducting its 2009 concussion seminar in Regina this week. The seminar, being staged jointly by Hockey Canada and the Dr. Tom Pashby Sports Safety Fund invites hockey player, parents, team managers, therapists, coaches and trainers, physicians and other medical professionals to receive up to date information on the diagnosis, treatment and return to play protocol for players who suffer from a concussion.

Concussions a Problem in Hockey

Former NHL defenseman Jammie Heward was attending the seminar. Heward estimates that he may have had more than 20 concussions during his amateur and professional hockey career.

But:

“The pressure to get back on the ice as quick as you possibly can is so incredible. I don’t mean its pressure from management and trainers; I mean its pressure from the players themselves.”

Players Lie to Play

Heward actually admits that some players will even lie to their trainers and team physicians because they don’t want to be taken out of the lineup.

NFL Acknowleges Brain Injury a Problem

The National Football League is also beginning to recognize the huge problems that concussions pose to professional football players.

Pittsburg Stealers receiver, Hines Ward created a uproar recently when he slagged quarterback, Ben Roethlisberger, for sitting out after suffering a concussion which resulted in Pittsburg loosing in overtime to the Ravens.

Public Service Announcements

My colleague Bruce Stern has posted on the Traumatic Brain Injury Law blog that the NFL in now conducting public service announcements on the danger of concussions and how to recognize the signs and symptoms of concussion.

Dangers in Amateur Sport
I have posted before about the dangers of a concussion in amateur sports.

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL, Parents Need to be Aware of Brain Injury from Concussion

In Canada hockey is our national sport, in the United States football carries the same tradition.

More Education Needed

But it is clear that athletes, both amateur and professional, are not being properly educated about the dangers of brain injury caused by repeated concussion.

For more information about concussion and brain injury you can check out my website or contact me to receive a free copy of my book, The Survivor’s Guide to Brain Injury Claims.

The Discovery Process

One of the most important steps in any personally injury claim is the oral discovery. If you file a lawsuit for compensation for personal injuries you will be required to testify about your knowledge of the event that lead to the lawsuit and your knowledge of the injuries that you have suffered.

In other words; what happened? How badly were you injured? How have the injuries effected your life?

A discovery is basically a question and answer session where you swear (or affirm) to tell the truth. The question and answer session is recorded by a court reporter who will type up a transcript of all the questions and answers. That transcript can be used later in court.

Since more than 90% of civil lawsuits settle before trial, the oral discovery is probably the most important step in the litigation process. As the name implies, the discovery process allows each side to “discover” all there is to know about the other side’s case. Each side gets a better understanding of the strengths and weaknesses of their claim and their opponents claim. They are able to judge how the plaintiff and defendant will appear if they have to testify in court.

In short, the discovery process provides a “dry run” for how the witness will testify at trial.

Before your discovery your lawyer will meet with you to prepare you for the discovery. I have prepared a report for all of my clients who are getting ready for discovery so that they can read it at their leisure and we can discuss any questions that they have. If you would like a copy, feel free to contact me through this blog.

Continue reading "What is a “Discovery”? Halifax Personal Injury Lawyer Explains" »

A new study out of Boston Children’s Hospital published in the December issue of the journal Neuron shows that injured nerve fibers (axons) can regenerate when certain genes are deleted.

Brain and Spinal Cord Injury Usually Permanent

Victims of brain injury and spinal cord injury often suffer permanent and catastrophic injuries because their damaged nerve axons cannot regenerate. However, a team from the neurobiology centre at the Children’s Hospital of Boston indicates that axon regeneration is inhibited by certain genes.

The research team was able to use genetic techniques to delete the genes in mice.

One of the co-authors, Fage Sun PhD. said that:

“We are very excited by these finding…we are testing whether these manipulations prove functional recovery after optic nerve injury and spinal cord injury.”

Hope For Spinal Cord Injury and Brain Injury Survivors
While the research is a long way from human trials there is hope that the study may lead to progress in rehabilitation of persons who have suffered brain injury or spinal cord injury.

Continue reading "Research May Show How to Heal Brain Injuries" »

Parental Waivers Not Worth the Paper They Are Printed On?

In what appears to be the first ruling of its kind in Canada, the British Columbia Supreme Court has ruled that parents cannot waive their children's rights to sue for negligence when the child is injured as a result of participating in recreational or sports activities.

In Wong v. Lock's Martial Arts Centre Inc, Justice Willcock held that British Columbia's Infants Act:

"Does not permit a parent or guardian to bind an infant to an agreement waiving the infant's right to bring an action in damages in tort"

The plaintiff, Victor Wong was 16 years old when he broke his arm participating in a martial arts sparing match organized by the defendant martial arts club.

Parent Waivers are Commonplace

Any parent who has had a child participate in minor hockey, basketball, football, martial arts, gymnastics and so on has probably signed a parental waiver. Typically the waivers are broadly worded and release the defendants from any cause of action whatsoever.

Recreational and Sports Organizations Will Have to Be Careful

I am not aware of any equivalent case law in Nova Scotia and this case appears to be the first of its kind in Canada. What it means for the future is that organizations that hold recreational or sports activities will need to be more vigilant to ensure that they are not negligent in the way they organize their activities.

What do you think? Have you ever signed one of those waivers? Ever read it? Perhaps you should next time.

On Saturday November 14, 2009, I was honoured to be elected as the Vice President of the Atlantic Provinces Trial Lawyers Association (APTLA).

APTLA is an organization dedicated to obtaining legal redress for those who have suffered injury or injustice.

APTLA was founded 10 years ago to help protect the rights of innocent citizens. In these challenging times of tort reform, the rights of innocent victims are being ripped away to increase the profits of insurance companies, and the need for a strong clear voice to speak up for the vulnerable is greater than ever.

I have been asked to speak at the Atlantic Province's Trial Lawyers Association conference tomorrow about certification of class actions.

The goals of class action legislation have been stated again and again in various decisions from other provinces across the country. They are:

(a) Access to justice;
(b) Judicial economy ; and,
(c) Deterrence or behaviour modification.

It is not necessary that all of these goals be present in any particular action in order for the claim to be certified as a class proceeding. However, to the extent that these goals are realized, there is a greater likelihood that the matter will be certified.

Access to Justice

Of the three goals of class actions I think the first, access to justice, is the most important.

Unfortunately claimants can't pick up a hot line and call The Justice League for help when they have a legal problem. For a variety of reasons, access to justice through the courts is something that is not available to many claimants.

That is where class actions can help level the playing field. They allow claimants who do not have the money, time, strength, courage, or resources to gain access to justice through the courts.