Halifax Personal Injury Lawyer Blog

Warm weather warning for Canadian parents

Thu, 10 May 2012 09:28:22 -0400

As Spring slowly but surely turns to Summer here in Canada I thought it would be appropriate to post another reminder about the dangers of leaving children unattended in cars.

Toddlers and Hot Cars can be a Deadly Combination

What do you think?

Nova Scotia needs to do more to protect children from bullies

Wed, 09 May 2012 10:47:28 -0400

Nova Scotia’s Cyberbullying Task Force recently released its recommendations. The Report has some valuable information and makes a number of recommendations to curb bullying and help make our kids safer.

Unfortunately, the province's response to the Task Force recommendations has, to date, been underwhelming.

More Needs to Be Done in Nova Scotia to Protect Children Against Cyberbullying

APM Law Scholar Athlete winner - Mitchell Hanna

Wed, 29 Feb 2012 09:44:14 -0400

Mitchell Hanna – Riverview High School

APM Law is proud to announce that Mitchell Hanna is the latest winner of the APM Law Scholar Athlete award.

Mitchell is a straight A student at Riverview High School in Cape Breton. As captain of Riverview’s Division 1 soccer team he helped lead the team to win the NSSAF Highland Regional Championships and a silver medal at the NSSAF Provincial Championships. He is also a member of the Cape Breton High School’s soccer league’s all-star team.

Mitchell is a captain of the Riverview Redmen Hockey Team where he helped lead the Redmen to a gold medal in the Red Cup Hockey Showcase winning the Marty Chiasson Memorial Trophy for leadership.

In addition to his academic and sports prowess Mitchell volunteers Monday evenings at the YMCA coaching special Olympics basketball and floor hockey as well as volunteering coaching soccer for elementary students.

Mitchell is a great example of a student athlete and we are proud to name him as one of our APM Law Scholar Athletes.

Congratulations Mitchell!

More information about the APM Law Scholar Athlete Program

Potential Class Action for Breach of Privacy of Capital Health Records?

Wed, 15 Feb 2012 13:59:06 -0400

Capital Health in Halifax admitted this week that one of their former employees breached the privacy of more than 100 Capital Health patients by viewing their medical records without proper authorization.

Capital Health notified affected patients this week and apologized for the breach of privacy.

“We apologize to all of those people whose private information was viewed and to the community at large,” said Catherine Gaulton, a Vice President of Capital Health.

The news was timely because the Ontario Court of Appeal recently recognized that people have a right to privacy and that there is a potential cause of action for invasion of privacy.

In Jones v. Tsige, Ms. Tsige, an employee of The Bank of Montreal accessed the financial records of Ms. Jones (who is also an employee of the bank) over 170 times over a period of four years.

Although Ms. Tsige viewed Ms. Jones’ private personal information, Tsige did not publish, distribute or record the information in any way. Ms. Tsige was disciplined by The Bank of Montreal.

The Ontario Court of Appeal reviewed Canadian common law cases, various provincial statutes as well as case law from the United States and the United Kingdom.

The Court of Appeal came to the conclusion that it was appropriate: “...to confirm the existence of a right of action for intrusion upon seclusion”. In other words, a common law cause of action for breach of privacy.

The court did note claims for breach of privacy will only arise for “deliberate and significant” invasion of privacy.

The Court of Appeal specifically noted intrusion into the privacy of health records would constitute grounds for a breach of privacy claim.

While the Tsige decision of the Ontario Court of Appeal isn't binding on Nova Scotia courts, common law principles, and the statutory obligations would be the same in Ontario and Nova Scotia.

The Tsige decision means that not only do individual patients have a right to seek compensation for breach of the confidentiality of their health records, a potential class action on behalf of all of the patients who had their privacy rights breached could be launched against Capital Health.

Nova Scotia Announces Consumer Price Index Increase to Minor Injury Cap

Thu, 02 Feb 2012 11:04:48 -0400

This week the province of Nova Scotia announced the annual increase to Nova Scotia's new “minor injury” cap on non-pecuniary damages in auto accidents.

In 2010 the province of Nova Scotia changed the legislation governing automobile accidents in Nova Scotia. The cap on payments for non-pecuniary damages (“pain and suffering”) for injuries that were deemed to be “minor” was increased from $2,500.00 to $7,500.00.

The new legislation required that the cap increase every year to account for the cost of living.

According to calculations released by the Department of Finance this week, the cap for compensation for non-pecuniary damages for “minor injuries” for 2012 is now $7,956.00.

That's Not All

It is important for Nova Scotia car accident victims to understand that the cap is not all the compensation that they are entitled to receive. I get many calls from people who have been injured in car crashes who are left with the impression after talking to insurance adjusters that the only thing they are entitled to receive is a maximum of $7,500.00 in compensation for their injuries.

As I have indicxated above, if the claim is capped, the maximum compensation is now $7,956.00 not $7,500.00.

Not All Claims Capped

There is a real question as to whether an accident victims claim will be capped at all. The new minor injury definition has a lower threshold for accoident victims to meet. In other words, an experienced Nova Scotia Car Accident Lawyer may be able to prove, based on the available medical evidence, that your claim for pain and suffering is NOT a minor injuriy and your compensation is NOT capped by the legislation.

Income Loss Not Capped

Another thing many Nova Scotia accident victims don't know and aren't told is that income loss claims are not capped by the minor injury legislation. So if you have suffered any loss of income, you are entitled to full recovery for that loss. That includes any income loss you may suffer in the future as a result of your injuries from the accident.

Expenses Not Capped

Out of pocket expenses incurred as a result of your injuries is another claim that you are entitled to be reimbursed for, in full. So if you have had expenses for housekeeping because you can't clean your house, babysitting while you attend medical appointments and so on, you are entitled to make a claim for those expenses. Advice from an experienced car accident lawyer in Nova Scotia will help you understand which expenses are recoverable and which are not.

Want More Information About Car Accident Claims in Nova Scotia?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they can have a better chance of receiving full and fair compensation.

The book is for sale on Amazon.com. All sale proceeds are donated to charity.

But if you live in Atlantic Canada you can get a copy of my book, at no charge, by contacting me through this blog (put "Crash Course" in the subject line) or call me toll free at 1-877-423-2050.

Police Need More Education – Dangers of Kids and Cars

Tue, 24 Jan 2012 11:47:31 -0400

I saw an article recently where RCMP in Ladysmith British Columbia are reminding parents to teach their children to know when it is appropriate to call 911. The proper understanding in use of 911 is something that every parent needs to know.

However, what struck me as most important about the article is that the RCMP need some better education themselves about what constitutes a potential emergency.

The article describes an incident where a sleeping child woke up after being left alone in a car by his parent. The child was upset and used a cell phone to call 911.

The article gives the impression that the police were of the view that this was not an emergency and not a proper use of the 911 emergency service.

The child's parent has since explained what constitutes a real emergency, said the officer.

I beg to differ. The police spokesperson in this case obviously need some education about the dangers of leaving children alone in cars.

Hundreds of children die every year in non-collision incidents involving cars.

For example, children can be seriously injured or die as a result of hyperthermia (heat stroke), hypothermia (freezing to death), strangulation from electric windows, collisions after being struck by another car, among a host of other potential dangers.

KidsandCars.org has established its first international chapter in Canada to help educate the public about the potential dangers that cars can pose to children.

Kidsandcars.org reminds parents and guardians that children should never be left unattended in a car.

I think the child in this news story should be congratulated rather than chastised. If anyone should be receiving a talking to it is the parent who left their child alone and the police for not realizing how potentially serious this incident could have been.

Great Video for Parents and Children about Brain Injuries

Thu, 19 Jan 2012 14:08:03 -0400

As a brain injury lawyer I have heard many explanations from many different experts about how brain injuries happen and the functional problems brain injury can cause.

I wanted to share this video because I think it is a great educational resource. The doctor who created the video provides one of the best explainations I have seen about how concussions happen and the kind of consequences they can cause.

The video helps parents know what kind of symptoms to look for and what to do to help your child if they have suffered a brain injury.

The video is just 5 minutes. It is time well spent.

Halifax Regional School Board to Comply With Legislation to Make Children Safer on School Buses

Tue, 20 Dec 2011 16:58:39 -0400

Starting in January 2012 the Halifax Regional School Board will begin to comply with Provincial regulations requiring children under age nine or smaller than 4’9” and 40 pounds to be secured in a child restraint system while riding on school buses.

According to Doug Hadley, spokesman for the Halifax Regional School Board, HRSB is going to start weighing and measuring students who may fall under the provincial regulations.

The Seat Belt and Child Restraint System Regulations have been in place in Nova Scotia since 2007 and have been implemented in most school boards around the province. However, the Halifax Regional School Board uses a private contractor, Stock Transportation to run their school buses and HRSB has been late to introduce the changes.

Kids and Cars Canada is pleased to see that the Halifax Regional School Board is finally making changes to comply with provincial legislation which will help improve the safety of our children.

Do Commercial General Liability Policies Cover Injuries to Employees? Sam’s Auto Wrecking and Lombard General Insurance

Tue, 15 Nov 2011 09:59:48 -0400

The Ontario Superior Court of Justice recently released reasons in Sam’s Auto Wrecking and Lombard General Insurance The case is interesting because it involves the relationship between worker’s compensation coverage, employee disability insurance policies and commercial general liability policies.

The Facts

John Ferber was employed by Sam’s Auto Wrecking Co. Limited. While helping other employees of Sam’s Auto Wrecking load a flatbed truck Ferber was seriously injured.

Unfortunately for Mr. Ferber, the owners of the business, Ken and Lorne Rochwerg had opted out of the provincially run Worker’s Compensation Insurance program. The owners had obtained disability insurance through a private insurer. But the disability policy didn't cover claims for personal injury, only temporary disability.

The Company's commercial general liability policy limited the liability of Sam’s Auto Wrecking for any claim brought by an employee for an injury incurred in the course of their employment.

Motion for Directions

The employer and the commercial liability insurer sought direction from the court as to whether or not the CGL policy covered Mr. Ferber’s injuries.

The court stated, at paragraph 12:

The central issue is whether or not the personal injury experienced by Mr. Ferber, indirectly at the hands of an employee at Sam’s operating within the scope of his employment, was or should have been covered by the commercial general liability policy which was part of the comprehensive business policy provided by Lombard.

The court indicated that there was a gap in coverage in the companies various insurance policies. At paragraph 65:

...in the section that describes “who is an insured”, there is no ambiguity. It cannot be said that it flies in the face of what is commercially reasonable. There is a WSIB scheme that provides disability insurance to its participants. The management team has its own private disability insurance. Yes there is a lacuna with respect to coverage for personal injury beyond disability insurance, but that was neither requested nor contemplated by the Rochwergs. That gap was equally not contemplated by Mr. McCarter, the broker. He did not request an employer’s liability endorsement.

The court concluded:

There was not coverage for the personal injury to Mr. Ferber either as an employee or an executive officer. The distinction between the two terms is academic. If it were not, the court would be inclined to say that Mr. Ferber was within the classic definition of an “employee”. He was not an independent contractor.

Why is it Important?

I am contacted by people who have been injured, in a variety of ways, on a regular basis. Often they assume because they have “insurance” either through work or otherwise that they are entitled to receive compensation for their injuries.

The Sam’s Auto Wrecking case points out that in some cases there may be a gap in the insurance coverage that can leave innocent accident victims with no recourse to insurance benefits.

Employees who think they are covered by group disability policies or private disability insurance should take the time to carefully read the terms of their policies and the exclusions contained in those policies. It may be that you are not as protected as you think.

In Remembrance

Fri, 11 Nov 2011 00:40:30 -0400

Nova Scotia Introduces New Insurance Reforms: Halifax Personal Injury Lawyer Explains

Wed, 09 Nov 2011 14:48:34 -0400

Today Graham Steele, the Minister responsible for Nova Scotia's Insurance Act announced new legislation to improve automobile insurance coverage in Nova Scotia. The Fair Automobile Insurance (2011) Act, will be introduced in the legislature today.

I was part of the Review Committe that provided advice to the province regarding what improvements needed to be made to Nova Scotia's Insurance system: McKiggan Appointed to Provincial Insurance Review Committee

Highlights of Changes

Overall the changes improve the insurance coverage avaialable to consumers in Nova Scotia.

Repair Claims Will Be Covered By Drivers Own Policy

Persons involved in a collision caused by another party can deal with their own insurance company to get repairs done or get compensation for property damage. This was change was implemented in order to simplify and speed up the process that car owners have to go through so that they can get their car back on the road as fast as possible.

No Claim - No Premium Increase

It has become commonplace for parties involved in an accident to pay for claims themselves rather than being hit with massive premium increases after an accident. Even if the accident wasn't there fault. The changes to the Insurance Act prevent auto insurers from increasing premiums for collisions where no claim was made and the driver paid for the damage, even if the driver was at fault.

Speed Access to Treatment

The legislation proposes to introduce treatment protocals that are designed to help injured victims get proper treatment faster.

Increase Medical Benefits

The legislation increases the minimum mandatory Section B Accident Benefits for things like medical and rehabilitation expenses, funeral costs, death benefits and income loss covereage for injured drives and passengers.

The changes increase the level of "no-fault" benefits to the same level as New Brunswick.

Optional "Full Tort" Coverage

The proposed legislation will allow drivers to buy optional (additional) insurance coverage that will give consumers the right to receive full compensation over and above Nova Scotia's New "Minor Injury" Cap (2010 to date)

Regular Review

Finally the legislation commits the province to conducting a review of automobile insurance laws in Nova Scotia every seven years.

Chinese Toddler Dies and Creates Storm of Controversy

Wed, 26 Oct 2011 11:37:59 -0400

Last week staff at Guangzhou Military District Hospital announced that Wang Yue had died of the injuries she suffered when she was run down in a hit and run collision in China.

The collision, which was caught on video by a security camera, has raised a storm of controversy around the world because while she lay bleeding in the street almost 20 people walk or drive by the little girl and ignore her.

The video has raised questions about cultural differences between China and North America, legal issues about so-called Good Samaritan laws and moral questions about personal autonomy and our obligations to others.

I have discussed these issues in detail in an article published on my Atlantic Canada Personal Injury Lawyer blog. Please take a look and tell me what you think.

Product Recalls are not Proof of Negligence: Johansson v General Motors of Canada Limited

Thu, 29 Sep 2011 16:27:19 -0400

Defective Products and Negligence

If a defective product is recalled does that prove that the product was negligently manufactured? That was one of the issues that Justice Murphy of the Nova Scotia Supreme Court had to decide in the recent case of Johansson et al v. General Motors of Canada Limited.

Driver Injured in Car Accident

The Plaintiff driver was seriously injured in a single vehicle accident when her car went off the road while she was trying to negotiate a left hand turn.

Several years after the accident the car she was driving, a Chevrolet Lumina, was recalled because of a defect in the pinion bearing in the power steering.

The case was set down for a trial before a jury. After the Plaintiff finished leading their evidence, the Defendants made a motion for non-suit. Essentially, the Defendants claimed that there was no evidence on which the jury could find that the Plaintiff’s Claim could succeed.

Defect Caused Crash

Justice Murphy found that the evidence of the product recall was prima facie evidence that the vehicle was defective. Justice Murphy also found that there was evidence that the defect had caused the accident.

Crash Caused Injuries

Finally, Justice Murphy concluded that the Plaintiff’s injuries were caused by the accident. Had the Plaintiff filed a claim in contract alleging that the Defendants had sold her a defective product then it appears that her claim would have been successful.

However, Justice Murphy noted that the Claim was pleaded in negligence.

In a negligence case the Plaintiff must prove that the Defendants breached the relevant standard of care. In other words, did the Defendant do something a reasonable person (or in this case a reasonable company) would not have done? Or did the company fail to do something a reasonable company would have done. In any negligence claim, the plaintiff bears the burden of proof.

Failed to Prove Standard

Justice Murphy found that a product recall does not, by itself, establish the applicable standard of care or that the standard was breached.

In commenting on the standard of proof for product liability claims, Justice Murphy stated:

“In the context of product liability, it is clear that the trial judge is responsible for informing the trier of fact that the applicable legal standard of care on the defendant was "to use reasonable care in the circumstances and nothing more" (Phillips at para. 49). In my view, it is irrelevant whether the translation or application of that standard to the facts is characterized during trial as a question of mixed fact and law or as a question of fact, because in either case, the responsibility for this translation falls on the trier of fact. The trial judge may instruct the trier of fact on the appropriate factors that may be considered—for example, the defendant's expertise, the riskiness of the product, the defendant's knowledge of that risk, industry standards, et cetera—but it is ultimately for the trier of fact to apply the standard of care in the circumstances and determine whether the defendant's conduct breached that standard. … In this case, the plaintiff presented no evidence addressing the standard industry practice of an automobile manufacturer, assembler or distributor with respect to parts supplied by other parties. Such evidence might include answers to the following questions: Is it industry practice for a manufacturer, assembler or distributor to test such parts? If so, what kind of testing is normally performed? Does the testing depend on the type of part and the level of risk posed by a failure of the part? Would a standard manufacturer, assembler or distributor be expected to discover an improperly crimped lower pinion bearing, such as the alleged defect in this case?”

What does it mean?

The plaintiff always has the burden of proving their claim at trial. So it goes without saying that the plaintiff (or their lawyer) must know exactly what facts they will need to prove to establish prove each element of the pleaded causes of action.

When filing a lawsuit involving a claim that a product is defective, it is important to examine all the facts to determine whether there are different types of claims that can be pleaded (for example breach of contract as well as negligence).

Just because a product has been recalled for safety reasons does not automatically mean that a person who has been injured by the product is entitled to compensation. Consumers should consult with a lawyer to learn what their rights are, whether they may be entitled to compensation, and what they need to prove in order to establish their right to be compensated.

Whiplash Injuries and Nova Scotia's "Minor Injury" Compensation Cap

Thu, 08 Sep 2011 09:36:50 -0400

Since 2003 Nova Scotia has had some form of a cap on the amount of compensation innocent accident victims are entitled to receive for their non-pecunaiary damages (what most people refer to as "pain and suffering"). For more information you can read:

Nova Scotia's Cap on Compensation for 'Minor Injuries' in Car Crashes (2003 - 2010)

Although the cap has been in place now for eight years there are few reported decisions where the courts have interpreted what the definitions in the legislation actually mean. As a result, there is still debate between lawyers and insurance adjusters and defence lawyers about what injuries are "capped".

Case in point. Today I received an email from Tom Stanley, a physiotherapist who has treated, and helped, a great many of my clients over the years. He was reading some of the information on my website that we provide to help educate the public about personal injury claims. He was reading our page about the latest changes to the minor injury compensation cap: Nova Scotia's New "Minor Injury" Cap (2010 - 2011)

I had indicated that some of the signs of a WAD 3 injury included tingling or numbness. Tom pointed out that, strictly speaking, tingling and numbness is actually a symptom, rather than a sign.

I have included Tom's helpful explantion of the difference between signs and symptoms below:

What is the difference between a sign and a symptom?

Essentially, a symptom is what the patient tells you that he or she is feeling. For example, back pain is symptom that a patient reports. Nobody can independently verify the presence of this pain, thus we look at this as a reported symptom.

A sign is an actual physical manifestation of an illness. For example, a high temperature, a lost reflex, an irregular heart rate, are all physical signs of potential illness. An examiner can assess and find these signs of illness.

Neurological symptoms include:

Reported feelings of numbness
Reported feelings of pins and needles (paraesthesia)
Reports of pain radiation, associated with paraesthesia

Neurological signs include:

Lost or reduced reflexes
Lost or reduced sensation feeling in a region (sensory impairment)
Lost or reduced movement (motor impairment)

I have corrected the information on our website. Thanks Tom!

APM Law - Scholar Athlete Program

Tue, 06 Sep 2011 06:39:55 -0400

It's the first day of the school year here in Nova Scotia and we are very excited to announce our new Scholarship program for outstanding high school student - athletes.

All of the lawyers at APM Law know the dedication, discipline and sacrifice it takes to be both a good student and a competitive athlete. We know how these traits can help lead young persons to success later in life. So we started our Scholar Athlete Program to acknowledge grade 12 student-athletes who exceed expectations in class and in athletic competition.

How Does it Work?

Each week from September to the end of May, a grade 12 student in Nova Scotia will be selected as the APM Law: Scholar-Athlete of the Week and awarded a $100 scholarship to recognize their dedication.

In June, APM Law will host a banquet for all our scholar-athletes and their parents-guardians. One female and one male student–athlete will be selected as the APM Law: Scholar-Athletes of the Year.

Each winner will be awarded a $1,000 scholarship and receive a commemorative trophy to honour their achievement.

Who Can Nominate?

Anyone can nominate a Scholar-Athlete; fellow students or athletes, parents, coaches, teammates, teachers, or school administration.

Selection Criteria

In order to be honoured as the APM Law: Scholar-Athlete of the Week, the student must attend grade 12 at a high school in Nova Scotia, have a minimum of an 80% (B) average, and provide details of their outstanding accomplishments in his or her sport(s).

Persistence Pays Off

Just like in sports and the rest of life, persistence can pay off. If a nominee isn’t selected the week they are nominated, we keep their nomination form for re-consideration during the rest of the school year. It doesn’t hurt to re-nominate a candidate and let us know about further accomplishments.

"Where Can I Find More Information?"

You can get more details and download a registration form our web page at apmscholarathlete.ca or you can check out our fan page on Facebook.

Please circulate this notice to anyone you think may be interested and help us recognize Nova Scotia's outstanding student athletes!

Can You Give Us Some Feedback?

This is a new program for us at APM Law so please give us some feedback by leaving a comment to tell us what you think, and what we can do to improve the program.

APM Law: Scholar- Athlete Program
Arnold Pizzo McKiggan
306-5670 Spring Garden Road
Halifax, Nova Scotia B3J 1H6
Website: www.apmscholarathlete.ca
Email: scholarathlete@apmlaw.ca