Attendant Care Benefits Provided by Family Members

Section 2 of Ontario Regulation 347/13 came into force on February 1, 2014.  It provides that accident benefits for attendant care provided by a family member are limited to the family member's economic loss.  A recent case dealt with whether the provision should be applied retrospectively.  Justice Quinlan held that it should not.

In Davis v Wawanesa, 2015 ONSC 6624 (S.C.J.), the plaintiff was involved in a motor vehicle accident in November 2013, before the Regulation came into force , but the claim for attendant care services was made after the Regulation was enacted.  It was the plaintiff's position that since she was involved in the accident prior to the date that the Regulation came into force, there should not be a cap on the attendant care benefits.

The parties differed in their positions as to whether or not Regulation 347/13 should apply retrospectively or prospectively. The Regulation is silent on the issue of whether it applies to accidents that occurred before its enactment. The court held that since the presumption against retrospectivity was not rebutted by clear, legislative intent, the law that applied was the law that was in force at the time of the accident. Thus, Section 2 of Ontario Regulation 347/13 did not apply and the attendant care benefits were not capped at the economic losses suffered by the attending family member.

The court accepted that attendant care benefits are a contractual right to which an injured person is entitled and the plaintiff had a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident. Regulation 347/13 had a substantive impact on the plaintiff's right to attendant care benefits, so the court held that retrospectivity in this case would be undesirable. Since the Regulation interfered with the plaintiff's substantive rights, the court held that it should not apply retrospectively.  

The Importance of Clearly Drafted Waivers

The recent Superior Court of Justice decision of Levita v Crew, 2015 ONSC 5316 (S.C.J.) shows the value of a clearly-worded, comprehensive waiver in assisting the host and participants of an inherently risky activity to avoid liability.   

The plaintiff, Mr. Levita, and the defendant, Mr. Crew, were both players in a hockey league operated by the defendant, True North Hockey Canada. The league operated with a multi-tiered penalty system which penalized intentional contact and included sanctions up to and including ejection from the league.  Prior to the start of each season the league distributed a waiver which outlined the risks inherent in ice hockey, the potential consequences of these risks, and an acknowledgement that by signing this waiver a player was accepting these risks by stepping onto the ice and playing. This waiver was distributed in each team’s locker room before the first game of the season: no player was permitted on the ice until he had signed.

The plaintiff alleged Mr. Crew deliberately attempted to injure him after he had passed the puck.  Mr. Crew's version was of an accidental shove while trying to take the puck. Mr. Levita broke his tibia and fibula to the extent that it required multiple surgeries to repair.

The court held that the conflicting stories of the incident made it impossible to determine whether Mr. Crew deliberately or recklessly injured Mr. Levita, noting that testimony had indicated that ice conditions were such that even minor, non-penalty worthy contact could lead to this outcome. Mr. Crew was found not liable to the plaintiff.

The court also dismissed the action against the league.  Firestone J. held the waiver was clear and unambiguous as to the risks and dangers that a player was accepting by signing it and agreeing to play. The court did not give credence to the plaintiff’s claim to have not understood the waiver prior to signing it, noting that the plaintiff was a lawyer by trade who understood the “legal significance of signing a waiver document”. The court found that even if the league had been negligent in its duty to the plaintiff to provide a safe league in which to play hockey, the waiver provided it a complete defence to the claims against it.

 

Limitation Periods in Actions Against Police

The Court of Appeal recently upheld a motions court judge's decision granting summary judgment in an action against police based on an expired limitation period .

In Cassidy v. Belleville, 2015 ONCA 794, the plaintiff alleged she was stopped by police in August 2009, who informed her she was driving a stolen vehicle and confiscated the car, forcing her to walk home.  She alleged she was pregnant at the time and the incident caused medical complications. She wrote to a lawyer six days after the incident asking whether she should commence a civil action but did not pursue a lawsuit at that time.  Approximately one month later (September 2009), she made a complaint to the Belleville Police and received a reply in June 2011. The complaint was partially upheld in November 2012.  The plaintiff waited until October 2013 before commencing her action, four years after the incident.  She argued she did not discover her claim until after the complaint was upheld as she was unaware of the standard of care until that time.

The motions judge disagreed, as did the Court of Appeal.  Section 5(2) of the Limitations Act provides a presumption that the limitation period begins to run the date of the incident unless the contrary is proven and there was nothing to rebut the presumption.  Expert evidence was not needed to discover the claim; the plaintiff was aware of the offending conduct, the identity of the offender and the nature of her injuries from the time of the incident.  The results of the complaint investigation may have provided additional information but were not necessary to trigger the limitation period.

Cassidy is of assistance in police actions, but may also extend to other circumstances where plaintiffs have attempted to extend limitation periods by waiting on administrative decisions.

Instructing Letter Does Not Have to be Produced in Advance of Examination

One issue that arises periodically in personal injury cases is whether a party must produce counsel's letter of instruction to its expert.  In Nikolakakos v. Hoque, 2015 ONSC 4738 (S.C.J.), Master Graham considered whether the defendant was required to produce the letter of instruction to the plaintiff in advance of the plaintiff attending an independent medical examination.

Master Graham held that the instructing letter does not have to be produced until the party elects to call the expert at trial.  Even after the report is served, the instructing letter does not have to be produced pending the defendant's decision whether to call the expert at trial.  As a result, the defendant did not have to produce the letter of instruction in advance of the independent medical examination.