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A recent decision of the Ontario Superior Court of Justice has resulted in a woman injured in a slip and fall on property owned by the City of Toronto to pay more than $9,000 in legal fees to the City when her case was dismissed by the Court because she failed to notify the City within 10 days following her injury of her intention to seek compensation.

The City of Toronto Act (like the Municipal Act) requires individuals who have injured themselves on City property to notify the City within 10 days of the date of the accident.

The Plaintiff in this case injured herself on August 19, 2011 when she tripped on a City sidewalk as a result of a 2.5 cm gap between the concrete and the interlocking brick. Unfortunately, she fractured her left wrist.

It was not until some 4 months later that the plaintiff caused a notice letter to be delivered to the City. Although there is an exception to 10 day notice requirement where there is a reasonable explanation for the delay, the plaintiff in this case was unable to provide any reason to the Court why such notice was not delivered.  Additionally, there must be evidence that the City has not been prejudiced by the delay in the receipt of the statutory notice.

Importantly, ignorance of the requirement or the statutory limitations is not an excuse for non-compliance with the Act.

It was clear that, although the Plaintiff had suffered an injury, the injury did not hinder her actions or ability to give timely notice.

The Court was quick to empathize with the Plaintiff and explicitly commented on the unfairness of the 10 day notice requirement, however, ultimately found that it was bound to give effect to the legislation and rule in favour of the City’s motion to dismiss the action.

The take home message: contact SorbaraLaw immediately following an accident causing injury so that we can take the appropriate and necessary steps to preserve your rights.

Article written by: Cynthia Davis
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* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

In October, 2013, the Supreme Court of Canada dismissed an appeal from a SorbaraLaw victory at the Court of Appeal of Ontario marking the successful end of a long process for our client’s family.

Back in February, 2011, Greg Murdoch, a partner in charge of Sorbara Law’s litigation Group, and Steve Kenney, counsel to the firm, obtained a significant Judgment in a medical malpractice action involving the misdiagnosis of an aortic dissection in a pregnant woman. The trial took place over five weeks in the fall of 2010. The Supreme Court’s decision affirmed the win at trial.

Our client, Christine Manary, was 28 years old and 32 weeks pregnant with her first child when she attended Grand River Hospital in August of 2003 with significant radiating chest pain. On admission, her symptoms in addition to the severe chest pain included an unusual heart murmur and were considered to be consistent with either a pulmonary embolism (blood clot) or an aortic dissection (a tearing of the inner lining of the artery). The doctors caring for Christine downplayed the possibility of a dissection because of her age. Christine died nine days later when the dissection ruptured on the day she was to be discharged. Fortunately, her daughter was delivered by caesarian section and survived without any adverse consequences.

During her admission, Christine had numerous diagnostic tests which suggested a pulmonary embolism was not the cause of her symptoms. Diagnostic imaging in fact disclosed that Christine had a dangerously large aortic aneurysm which is a bulging of an artery. The significance of this symptom and the danger it imposed and how it might relate to Christine’s symptoms was not acknowledged.

The Court reviewed Grand River Hospital’s policy of assigning a most responsible physician for each admitted patient.

For obstetrical patients, the obstetrician is the most responsible physician. The MRP is responsible for writing and clarifying orders, providing a plan of care, obtaining consultations as appropriate and coordinating the care of the patient.

The Court agreed with SorbaraLaw’s submissions that the obstetrician in this case failed to discharge his duties as most responsible physician because he focused only on Christine’s obstetrical issues and let other non-cardiac specialists deal with Christine’s cardiac issues. The obstetrician failed to exercise independent critical judgment when an alternative diagnosis to pulmonary embolism should have been pursued.

The Court preferred the evidence of the vascular surgeon called on behalf of Christine who testified that if Christine’s condition had been recognized for its seriousness, she could have had surgery within hours.

The obstetrician appealed the decision to the Ontario Court of Appeal which affirmed the trial Judge’s decision noting that an MRP must exercise independent critical judgment when assessing a patient and consulting with other specialists.

A motion seeking leave for a further appeal to the Supreme Court of Canada was denied.

Medical malpractice cases are extremely challenging and always hard fought battles. This is a significant achievement for our client. Congratulations to the SorbaraLaw litigation team!

Article written by
Cynthia Davis,
B.A. (Hons), LL.B. was called to the Bar in 2007 and is a member of SorbaraLaw’s litigation group. Cynthia works out of the Waterloo office.

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Litigation – Steven Kenney

Winter has arrived and with it, snow and ice.  Slips and falls as a result of snow and ice are common and caution should be taken to avoid taking such a spill.  However, should you find yourself injured from a slip and fall, it is important to know what to do.

We recommend the following important steps:

  1. Record the location of the fall, particularly whether it occurred on private or public property. There are specific notices and very short time frames that must be followed if public or municipal property is involved.
  2. Record and keep the footwear worn at the time of the incident. Do not clean the shoes or boots, but store them in a safe place.
  3. Record the weather and other conditions. For example, was the walkway icy or snow covered, muddy, broken or in need of repair, or is there a hidden step?
  4. Record how the fall occurred. What were you doing? Where were you going? What happened?
  5. Record the names and addresses of witnesses to the fall.
  6. At the time of the fall, did you talk to anyone who had some sort of control over the property? (i.e. property owner, store manager, parking lot attendant)
  7. Record the names of any hospitals or treatment centres attended.
  8. Record the types of injuries and any treatment received.
  9. If possible, take photographs of the location, and date the photos.
  10. Contact a lawyer promptly to convey this information and determine your rights.

Likewise, even where care is taken to clear ice and snow from driveways, sidewalks and walkways, the winter season also comes with the risk that someone will slip and fall on your property. If someone has notified you that they have slipped and fallen on your property, these steps are important to follow:

  1. Take photographs of the location, and date them.
  2. Record the person’s name and address. Do the same for any witnesses.
  3. Summarize any information provided to you concerning how the fall occurred. If you were a witness to the incident, write a detailed statement describing what happened, and where and how it happened. Be sure to include any important details. Was the person drinking or drunk? Was the person walking, running or using a digital device (phone)? Was the person paying attention? What was the person’s footwear?
  4. Record the state of the walkway. Had you salted or placed sand prior to the incident? Had you cleared snow/debris?
  5. Record any injuries.
  6. Notify your insurance broker or property insurance company of a potential claim. It is difficult to know whether an individual will commence a claim for compensation. Injuries may appear to be minor at the time of the incident, but circumstances may change the status to serious or severe later. Some insurance companies appreciate the early warning and will send an adjuster to investigate immediately. Others may wait until you are given notice of a lawsuit.
  7. Contact a lawyer promptly to convey this information and determine your potential liability.

Often, notice of a lawsuit does not occur for many months or more. Thus, it is important to record details promptly, as your memory may fade with time. Most importantly, don’t panic if you receive notice of a lawsuit, but do contact your insurance company quickly to ensure that a response to the claim is prepared in the required time period.

Should you have any questions about your rights or liabilities with respect to slips and falls, please feel free to contact a member of our litigation group.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Steven Kenney is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Steven may be reached at (519) 741-8010 or <skenney@sorbaralaw.com>.   

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