Using the OHSA in discovery

An elderly woman is shopping in a department store when she suddenly stumbles, falls and breaks her leg. Staff and fellow shoppers rush to her aid, medical assistance is summoned and she is taken to hospital by ambulance to be treated for the fracture.

        End of story?  Far from it.  Apart from the woman’s own path to recovery, an internal investigation into her fall will ensue and a lawsuit may result.  In this case, plaintiff’s counsel would inquire about any incident report prepared by the store, photographs taken and witness statements obtained by the store employees and any written reports to the liability insurer.  There is also another layer of documentation under the Occupational Health and Safety Act (OHSA) that might come into play.

        All deaths and critical injuries at a workplace must be reported to the Ministry of Labour, even when the incident does not involve an employee.  In Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), 2011 ONSC 3057, the Divisional Court upheld a decision of the Ontario Labour Relations Board, which found the OHSA, and in particular the requirement to report a death or critical injury, applied to an incident involving a guest of the resort who drowned in a pool.

        For the Divisional Court, it appears that the critical factor was that the swimming pool was also a place where resort employees worked – i.e., the hazard affecting the guest could (at least in theory) also affect a worker.  In December, the Ontario Court of Appeal granted leave to appeal but it has not yet been heard.

        The OHSA provides a somewhat vague definition of “critical injury”.  Under Regulation 834, an injury is considered “of a serious nature” if it:  places life in jeopardy; produces unconsciousness; results in substantial loss of blood; involves the fracture of a leg or arm but not a finger or toe; involves the amputation of a leg, arm, hand or foot but not a finger or toe; consists of burns to a major portion of the body; or causes the loss of sight in an eye.

        Under s.51(1), the OHSA requires all deaths or critical injuries to “persons” to be reported to the labour ministry within 48 hours while a verbal report is required immediately.  All other injuries involving disability or medical attention must be reported in writing to the employer’s health and safety committee or representative within four days.

        The injury involving the elderly woman, therefore, should have been reported, both verbally and in writing, to the Ministry of Labour by the store.  Arguably, all reports and investigation documents, internal or external, would be producible at the discovery stage.

        Employers are required to have a health and safety policy in place that is reviewed annually under s.25(2)(j).  In discovery, that policy should be requested and questions relating to compliance should be answered by the defendant.

        Section 9 of the OHSA is really the minefield for personal injury lawyers at discovery:

• An employer with 20 or more workers is required to have a joint health and safety committee (JHSC) and a list of its members should be requested at discoveries.
• The JHSC is required to have regular formal meetings; minutes must be taken and maintained and be available to labour ministry inspectors upon request.
• Monthly inspections of the workplace (or portions thereof) must be undertaken by the JHSC in accordance with a schedule.
• The JHSC is required to be advised of and consider any situations that may be a source of danger or hazard to workers.
• Where a death or critical injury occurs at the workplace, at least one member of the JHSC is required to investigate and report to the Ministry of Labour and the JHSC.

        In the example of the elderly woman who was injured in the store, I would expect significant documentation to be generated as required by the OHSA immediately following the incident.  I would also expect that this incident, which would be characterized as a “critical injury”, to be the subject of discussion at the committee level with some consideration of the hazard and its rectification being undertaken.  In my opinion, any documents generated should be requested and produced.

        Plaintiff lawyers will no doubt face the argument by the defence that such documents are privileged.  However, keeping in mind the “dominant purpose” test that is applied to such claims for privilege, the employer (defendant) will have great difficulty in meeting its onus to establish privilege when the requirement to create those documents is legislated.

        When preparing for your next examination for discovery in a personal injury matter, consider whether the OHSA might apply to the situation and whether the OHSA obligations imposed on employers should be incorporated into your discovery plan.

Ferguson Barristers would like to remind both pedestrians and motorists to take a moment and remember that there are steps they can each take to help avoid accidents. Collisions with pedestrians can often have tragic consequences and may include injuries to the head, neck and spine.

Avoiding pedestrian accidents

Here are some tips from the Ministry of Transportation of Ontario regarding pedestrian and motorist safety:

Pedestrians:

• Cross at marked crosswalks or traffic lights – not in the middle of the block or between parked cars;
• Be sure drivers see you before you cross;
• At a traffic light, only cross when you have the walk sign, not when the “Don’t Walk” sign is flashing or the light is yellow or red;
• Watch for turning traffic at intersections or entering and leaving driveways;
• Wear bright or reflective clothing when walking at dusk or in darkness.

Motorists:

• Be patient, especially with older pedestrians;
• Always watch for pedestrians, especially when turning;
• Slow down on residential streets and through school zones.

Who is liable?

Despite taking precautions, accidents can and do still happen. If you are an injured pedestrian, you are entitled to apply for no-fault Accident Benefits. As well, depending on the severity of your injuries, you may also be entitled to recover damages in a civil lawsuit (a tort action) against the driver of the vehicle.

In order to recover any type of damages in a civil lawsuit arising from a motor vehicle accident, a person must first prove that the other party was negligent.  In the case of an injured pedestrian, there is what is known as the “reverse onus provision” to help establish fault or liability on the part of the driver. This provision of the Highway Traffic Act states that if a pedestrian is struck and injured  by a motorist, the driver is presumed to be negligent unless he or she can prove otherwise. This is a very helpful provision for any pedestrian trying to recover damages against the driver of the car.

If you have been involved in a car accident involving a pedestrian, one of our experienced  Ontario personal injury lawyers would be happy to speak with you regarding your rights and potential remedies. Contact Ferguson Barristers by filling out our contact form or call toll free 1-800-563-6348.

Personal Injury Claim

No matter where you slip or trip and fall, you may have the right to pursue a claim for personal injury damages.   All occupiers have a responsibility to maintain their premises in a reasonably safe condition. Ice, water, debris, uneven surfaces and poorly maintained walkways or stairs are often the cause of slip and fall accidents.  These accidents may result in muscle tears, broken bones, head traumas and other injuries that can lead to long term job loss or an inability to go about your daily life as your normally would have before the accident.  There may also be additional expenses associated with your medical recovery.

Highlighted below are just a few of the differences which arise in any potential personal injury claim, depending on where the fall occurred.

Fall At Work

If you fall at work, your ability to sue depends on your individual set of circumstances, as your injury may be covered by WSIB.  You cannot receive WSIA benefits and also sue in court for personal injury damages. For falls at work, you will either be barred from suing and have to proceed under the WSIB scheme or you will have the right to sue.

On Private Property – Business

According to the Insurance Bureau of Canada  the following are some of the criteria used to determine whether or not the appropriate standard of care was followed:

• Whether the danger was foreseeable.
• Whether the occupier’s conduct was in accordance with acceptable standards of practice.
• Whether there was an adequate system of inspection in place (considering the risks involved) and whether it was followed.
• Whether the danger was allowed to exist for an unreasonable amount of time.
• The ease with which the danger could have been prevented.

On Municipal Property

If your fall occurred on a municipal roadway, you must act quickly.  In general, notice of your intention to commence an action must be given to the Municipality within 10 days  of the accident.  As well, your action must be commenced in court within 2 years of the date of the accident (just like most other personal injury claims).

How we can help

Whether or not you are eligible for compensation for your slip and fall accident depends on the circumstances of your accident and the extent of your injuries. A personal injury lawyer can take the time to listen to the details of your accident, what expenses you may have incurred and how your injuries have impacted your day to day life.

If you are injured in a slip/trip and fall accident, our team of experienced personal injury lawyers can help answer your questions and ensure your rights are protected. Contact us toll free at 1-800-563-6348.

Sandra Proulx is a senior law clerk at Ferguson Barristers with over 25 years of experience exclusively in the field of personal injury litigation.  She is a licensed paralegal having successfully completed the LSUC Paralegal Examination in March of 2008.  

Ferguson Barristers is pleased to share the news that Sandra will be a presenter at the upcoming Ontario Trial Lawyers Association (OTLA) Law Clerks Conference scheduled for April 13, 2012 in Toronto. The theme of the conference, which is sold out, is “New Decade – New SABS”.  Sandra’s presentation will focus on Section 44 Assessments, explaining what they are and how they work.

For more information on OTLA, visit: Ontario Trial Lawyers Association.

Motorcycle Accident Statistics on Ontario Roads

Taking proper precautions such as wearing appropriate safety gear and a helmet can help reduce the extent of injuries in any accident.  Motorcycle riders should also remember that staying visible, riding in control and within posted speed limits are key to staying safe and avoiding accidents.

According to the 2008 Ontario Road Safety Annual Report from the Ontario Ministry of Transportation, the following  factors are relevant in fatal motorcycle collisions :

• 51% involve speeding and loss of control
• 7.8% involve motorcycle drivers under 25 years of age
• 71% occurred during the day
• 9.8% of the motorcycle drivers were not wearing a helmet

No Fault Insurance Coverage for Motorcycle Accidents

As a result of a motorcycle accident, you may suffer serious brain trauma, spinal cord injuries, or broken bones that could significantly interfere with your daily routines.  In many cases, you may be entitled to no fault insurance benefits .Your accident benefits are calculated based on a number of factors, including:

• the severity of your injuries
• your pre-accident income
• any extra accident benefits you may qualify for

If you are injured in a motorcycle collision or any other type of motor vehicle accident, you must apply for accident benefits before you can sue the responsible driver for damages.
Our team of experienced Ontario personal injury lawyers have the expertise to ensure you are accessing all the benefits available to you in the event of a serious motorcycle accident and would be pleased to sit down with you for a free initial consultation.

You can speak to an experienced Ontario Injury Lawyer by calling 1-800-563-6348 or contacting us to receive more information about motorcycle accident claims by email.

The Honourable Doug Lewis, Q.C., is a founding partner of the law firm Lewis Downey Tornosky Lassaline & Timpano in Orilla, where he practices corporate/commercial, estates and immigration law. Over his extensive career, The Honourable Doug Lewis, Q.C. has practiced law, represented his constituents as a Member of Parliament for Simcoe North and served as a bencher of the Law Society of Upper Canada. As an active community member, he was twice named Orillia’s Citizen of the Year.

Congratulations once again – a well deserved honour for a most distinguished and respected colleague.

Common Cycling and Car Accidents

Research from the University of Toronto reported that the three most common accidents in Toronto involving cyclists and motor vehicles, were 1) a motorist entering an intersection and either failing to stop properly or proceeding before it was safe to do so; 2) a motorist overtaking a cyclist unsafely; and 3) a motorist opening a door onto an oncoming cyclist.

Claim for Accident Benefits

If you, as a cyclist, are involved in an accident with a motor vehicle, you are entitled to make a claim for accident benefits, regardless of who is at fault for the collision!  Depending on the extent of your injuries, you may be entitled to receive income replacement benefits, medical and rehabilitation benefits and attendant care benefits.

In order to receive benefits, you must submit an Application for Accident Benefits.

Where do I Send the Accident Claim Forms?

You may be surprised to learn that, in most cases, even if you do not own a car, you can still submit a claim for accident benefits.  Where you send your application form depends on your particular circumstances.  For example, if you own an automobile, you would send your application form to the insurance company that insures your vehicle – even though you were not in your car at the time of the accident.  However, in general, if neither you or your spouse owns or leases a car and you are not listed as a driver on somebody’s insurance policy, you would send your forms to the insurance company of the car that hit you.  All of the details about where to send your forms are outlined in the accident claim form itself.

In addition to making a claim for accident benefits, you may also be entitled to sue the at-fault driver for additional damages, including pain and suffering.  If you have been injured in a bicycle accident or have any questions about bicycle accident insurance claims, contact one of our experienced Ontario personal injury lawyers by calling 1-800-563-6348.

Don’t Share details on Facebook

After a serious accident involving personal injury or a car accident, the best course of action is to avoid discussing your condition, treatment or details of your accident online. This includes posting any images or photos relating to your accident or condition. The reason is that once you have posted this information, you have waived any claim to privilege that may have existed. This means that if the postings on Facebook (or any other social media site) are relevant to your lawsuit, they will likely need to be provided to the other side in the lawsuit.

Privileged Information

What is privileged information?  In general, once you’ve hired an Ontario injury lawyer for the purposes of listening to your case and offering advice, no one, not even the courts can require your lawyer to share the details of what you have discussed. The discussions you have with your lawyer are subject to lawyer-client privilege.

Who is Responsible for Keeping Information Privileged?

The only person capable of  breaking or waiving lawyer-client privilege is you! Therefore, you must always keep the conversations between yourself and your lawyer confidential. By sharing information or details through social networks such as Facebook, you voluntarily give up your right to keep that information privileged. This means these details and information, if relevant, will need to be produced in the lawsuit.

If you have questions about how to start a claim for compensation for personal injury, or would like to discuss the details of your car accident confidentially, contact one of our experienced personal injury lawyers in Ontario or call 1-800-563-6348 to speak to a lawyer for a free no-obligation consultation.

Whether your accident is a straightforward fender bender or a more serious accident, there are some important steps you can take in the immediate aftermath of the accident which may assist your case should you need to consult with a personal injury lawyer at some later date:

• Report the accident to the Police
• Obtain the other driver’s insurance information
• Record details of the Accident
• Obtain any witness names and contact information
• Report the accident to your own Insurance Company
• Do not give a statement to the other driver or the other driver’s insurance company until you have consulted with a personal injury lawyer
• Do not share the details of the car accident on social media platforms such as Facebook or Twitter.

If you have been involved in a car accident and are struggling with some basic daily tasks, there is a good chance you are entitled to receive Accident Benefits and may be entitled to recover other damages from the at-fault party.

Our team of experienced personal injury lawyers have the expertise to ensure you are accessing all the benefits available to you and would be pleased to sit down with you for a free initial consultation.  Contact us toll free at 1-800-563-6348.

Skiing Injuries

Skiers and snowboarders can take a number of steps to help reduce the risk of suffering injuries like sprains, broken bones, back or neck injuries, spinal cord injuries and head injuries.  Ferguson Barristers encourages you to follow these tips which are based on the Alpine Responsibility Code  and the Canadian Ski Council website to help keep safe:

• wear a helmet specifically designed for skiing or snowboarding
• always stay in control on the slopes
• never sit or stand in the middle of a trail
• obey signs regarding closed trails
• if unfamiliar with ski lifts, ask an operator for assistance

Ski Lift Safety

It is particularly important to ensure you are using proper procedures when loading and unloading from chair lifts.  The Technical Standards and Safety Authority (TSSA), which is responsible for regulating the safety of chair lifts in Ontario, reports that user behaviour  is the major cause of falls from chair lifts.  Consequently, it is imperative that you ask an operator for assistance if you are unfamiliar with, or have any questions about, using the chair lift.   

Whether or not you take to the slopes this weekend, Ferguson Barristers personal injury lawyers wish everyone a safe and enjoyable Family Day Weekend.