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Moving the Law forward In the areas of personal injury and employment law, getting the best result for our clients often means reaching a satisfactory settlement as soon as possible without the delay and expense involved in a trial or a hearing. However, when necessary to achieve just |
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compensation, or when |
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an important point of law is involved, Carranza lawyers have a positive record of obtaining success before arbitrators and judges. Here are a few of the important cases argued by our firm.
Threshold – the right to sue for pain & suffering Branco v. Allianz, Branco v. Ephstein (Appeal) In Ontario since 1996, a person injured in a car accident cannot sue for non-pecuniary damages (“pain and suffering) unless she proves that she has sustained a “permanent serious impairment of an important physical, mental or psychological function.” This is known as the “threshold”. Ms. Branco was injured in a car accident, and as a result, had severe pain in her right shoulder and hand from a pinched nerve in her neck and tendonitis in the shoulder. She had a long history working as a dental assistant. Because of her arm difficulties, she did not return to that job, but started working as a supply teacher and lunch room assistant for the school board, earning substantially less than before. The issue turned on whether her impairment was “serious”. Kevin Doan successfully argued, and the judge agreed, that if “the impairment has so compromised the person’s ability to function in his or her chosen occupation that his or her career path has been frustrated”, it is a serious impairment. Ms. Branco met the threshold and was able to recover pain and suffering damages.
Nevertheless, the jury awarded low damages for lost wages after defendant suggested that she could have earned more money after the accident if she had tried harder. Ms. Branco appealed. The Divisional Court held that the trial judge had not properly informed the jury of the fact that it is the defendant's responsibility to prove that damages should be reduced because the injured victim did not take reasonable steps to minimize the effects of the accident on her life, and particularly her income. The defendant must give evidence about what the plaintiff ought to have done, and how that would have changed her income. In this case, the defendant did not present any evidence concerning what Ms. Branco could have done to bring her earnings up to their pre-accident levels. Kevin Doan won the appeal and the case was sent back to a new trial on the right amount of damages.
Discoverability – the right to sue after a car accident Ms. Clark was involved in an accident, and when she came to our office the two-year limitation period for filing a lawsuit for the accident had already expired. Usually, this would result in a complete loss of her right to recover compensation from the person at fault for the accident. However, Kelley Campbell successfully convinced the judge that an exception to the rule applied to this case, because Ms. Clark did not know that her injuries were permanent and serious immediately after the accident, and since this is a prerequisite to filing a lawsuit, she could not be expected to file within the deadline. This decision helps preserve injured peoples' rights to compensation in the face of legislation that limits those rights.
Civil Procedure - Amendment of Pleadings Atwal v. Erb Ms. Atwal was injured in a car accident, and sued the driver of the car and the company that owned the car. A year and a half after issuing the lawsuit we found out that the driver of the car was working at the time of the accident. Almost six months after that, the Court of Appeal confirmed that employers are vicariously liable for the actions of their employees during work, and are unprotected defendants under the Insurance Act. This means that compensation is available from them for certain categories of damages that are not usually available in car accidents. The insurer for the company tried to prevent us from making a usually routine amendment adding the allegation of vicarious liability to the claim. Geoffroy Pavillet successfully convinced the court that the allegations were not a substantive, new, claim and Ms. Atwal was allowed to make the changes. This decision supports injured peoples' rights to have the full gamut of legal issues arising out of their accident and injuries heard by the courts.
Civil Procedure - Defence Medical Examinations Beete v. Banipal Kelley Campbell was able to protect Mr. Beete from further invasive medical examinations, arguing that after the defendant certified its readiness for trial and asked for a trial date, the Rules prohibit it from forcing Mr. Beete to attend further medical examinations unless it could demonstrate a substantial change in circumstances since the case was set down for trial - which it did not. This ruling will encourage insurance companies to obtain the information they need early on in the process, thus improving the chances generally of earlier settlements for injured people.
Accident Benefits - Insurer Examinations Kingsway tried to force Mr. Nirwan to be assessed by one of their doctors shortly before an arbitration hearing about his entitlement to Income Replacement Benefits. Joseph Campisi successfully argued that Mr. Nirwan did not have to attend the medical assessments because the insurance company did not follow the procedures required by the law, and protected Mr. Nirwan from this invasive tactic.
Ms. Borja was injured getting off a TTC bus. Later, she did not attend several medical assessments set up by the TTC. Because the law says that refusal to attend an assessment of this type precludes an insured person from arbitrating any dispute with the insurer, the TTC attempted to prevent her from proceeding to an hearing to determine whether she was disabled and entitled to benefits. Ms. Campbell successfully argued that Ms. Borja was not precluded from proceeding to arbitration because the TTC did not follow the procedures required by the law, thus Ms. Borja had no obligation to attend the assessments. The Arbitrator agreed with Ms. Campbell and ruled that Ms. Borja could proceed with the arbitration - the result of which was that the TTC was ordered to pay all the benefits Ms. Borja claimed, including interest and expenses.
Accident Benefits - Entitlement to Income Replacement Benefits / Interest on Accident Benefits. Sivananthan v. State Farm, Sivananthan v. State Farm II Ms. Sivananthan suffered from claustrophobia and extreme anxiety attacks after a car accident. These problems prevented her from taking the elevator out of her apartment by herself, using public transit and getting to job interviews. State Farm argued that she was capable of sitting, typing, talking on the phone, filing, and other physical aspects of an office job and therefore not entitled to further benefits. The Arbitrator agreed with Moira Gracey that in examining a person's ability to work, factors the ability to arrive reliably, be punctual, concentrate on her job tasks, such as respond competently to stressful situations, deal appropriately with co-workers and customers and other basic requirements of any job must be considered. Thus, Ms. Sivananthan was entitled to continued Income Replacement Benefits.
State Farm then refused to pay interest on the Income Replacement Benefits. It had stopped paying Ms Sivananthan Income Replacement Benefits after a Designated Assessment Centre report said that she could return to work, and argued that since was allowed to stop payment after a DAC report in its favour, the benefits were not 'overdue' until the Arbitrator ordered them paid. Joseph Campisi and Moira Gracey successfully argued that the insurer is responsible for paying interest on any benefits paid for a period when the injured person met the test of entitlement.
Insurance companies have recognized that because of our success on appeal in this case, they will have to carefully evaluate the strength and quality of doctors' reports before relying on them to terminate benefits - something we feel has always been their duty to their injured customers.
Accident Benefits - Special Award The adjuster for Aviva Insurance Company had suspended Ms. Valle’s benefits and refused to reinstate them unless the Applicant attended medical examinations. The adjuster wrote that Aviva “will not schedule any more insurer’s examinations until the insured provides us a letter signed by her stating that she agrees to attend any further insurer’s examinations.” The arbitrator found that by requiring such a commitment, Aviva abandoned the proper process contemplated by the law. The arbitrator agreed with Joseph Campisi that Aviva unreasonably withheld or delayed the payment of benefits to which the Applicant was entitled, and therefore the Applicant was granted a special award.
Immigration - inhumane apprehension Lizano Sossa Family One of our immigration cases was reported in the Globe and Mail, CTV, and the Canadian Press wire service in the summer of 2006. This case, and the community mobilization surrounding it led by No One is Illegal, resulted in the Toronto District School Board approving a "Don't ask, Don't tell" policy preventing Immigration officers from apprehending students at school, and ensuring that all children in Toronto, regardless of their status, are able to get an education.
Indigenous Rights - Land and Resource Rights Maya villages of Conejo and Santa Cruz v. A.G. (Belize) For over a decade, the indigenous Mopan and Q’eqchi’ speaking Maya peoples of southern Belize have been seeking legal recognition of their customary land rights. Moira Gracey was part of the core legal team representing two Maya villages in a test case before the Belizean courts, with Belizean attorney Antoinette Moore, and Prof. S. James Anaya and Maia Campbell of the Indigenous Peoples Law and Policy Program in Arizona. In a landmark judgment, the Chief Justice of the Supreme Court of Belize affirmed that the Maya villages do hold collective title to their lands based on their own customary land tenure system, and ordered the government to demarcate and issue titles to the communities. He also prohibited the government from leasing, selling, or issuing concessions over those lands. In his decision, the judge also invoked international law, including the recently passed United Nations Declaration on the Rights of Indigenous Peoples.
This decision has been called “an important precedent. This is the first case in any domestic court, any court in the world, that’s gone into the level of analysis on the international obligations of the country in regards to the rights of indigenous people. This is the first decision in which a court cites the United Nations Declaration on the Rights of Indigenous People which was just adopted in September, on the 13th of September. And so it is a decision that will be looked at as an example of how the international obligations of a country feed into its obligations under its own law.” For more information on the case, click here.
Jury Trial Award Lopez v. Nguyen and Mr. Twister The case concerned an 8 year old boy who ran from in front of an ice cream truck towards his house and was hit by a driver going the speed limit of 40km/h. A police reconstructionist at the scene had concluded that the accident was "unavoidable due to the actions of the child." The boy sustained multiple fractures and a severe head injury, was in a coma for nine days, and hospitalized for over three months. He has, thankfully, recovered well from his physical injuries, but has frontal lobe impairments and will need lifelong therapy and support.
At trial, the insurance company for the driver of the car adopted the opinion of the police investigator and took the position that the boy was primarily responsible, with some fault attached to the ice cream truck and the parents. Juan Carranza and Moira Gracey argued that the car and the truck were equally negligent. The jury held that the car driver was 50% at fault, the ice cream truck 46%, and the parents 4%. The boy’s behaviour was not judged to be outside the actions of a typical young boy in his circumstances. He was awarded over three million dollars in damages. |