Healthy Habits

The High Stakes Cost of Litigation

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$30,000 in damages and $151,045 in costs. $20,414.813 in damages and $237,017.50 in costs.

Litigation is expensive. We all know this to be a fact, but a couple of recent Ontario Superior Court decisions drive home the point. While at first blush one might think that awarding costs worth five and ten times the damages is outrageous, in both cases, the costs awards were fair and reasonable in the circumstances of each case. Had the trial judge awarded anything less, injustice would surely be the result.

The trial judges in both cases referred extensively to my case of Cobb v. Martin Estate, 2017 ONCA 717 — a case that I will never forget. I learned a lot in the 19 day jury trial and subsequent appeal. Many of the issues that were argued in the appeal are up for another hearing at the Court of Appeal, this time before a five-member panel in May 2018. In any event, I digress. Back to the two recent costs decisions. 

The first, Duncan v. Taylor, 2017 ONSC 7445, involved an assessment of costs after the plaintiff accepted a defence offer to settle. What makes this case particularly interesting is that the plaintiff was very seriously injured, but was more at fault. He had turned left in front of an oncoming vehicle. The plaintiff was charged and convicted under the Highway Traffic Act with making an unsafe left hand turn. However, there was evidence that the defendant was speeding and if he had not been speeding could have avoided the collision.

In the end, the plaintiff accepted the defence offer to settle of $30,000 for damages plus costs to be assessed by the trial judge. The plaintiff argued for legal fees of $81,278 and reimbursement for disbursements (cases expenses) of $121,045 for a total costs award of $202,232. The defendant argued for a total costs award inclusive of disbursements of $55,000. The judge assessing the costs felt that the legal fees needed to be proportionate to the amount the plaintiff recovered. In this case, considering that the plaintiff recovered $30,000, the trial judge decided that fees of $72,278 were outside what would be proportionate and awarded legal fees of $30,000. However, the judge did not find that the disbursements of $121,045 were at all unreasonable.

The judge recognized that the plaintiff had the onus of proving liability and this was a difficult case. Over $78,247 of the $121,045 in disbursements was for expert reports. These were all necessary for the plaintiff to prove his case. The judge found no reason to reduce the amount of disbursements and rightfully awarded the plaintiff $121,045 to reimburse plaintiff’s counsel for these costs.

The second case, Persampieri v. Hobbs, 2018 ONSC 368, involved a hotly contested trial. About five years ago, many automobile insurers, lead by Aviva, made a business decision to fight every case that it deemed “defensible”. This is scorched earth litigation at its worst. This case is an excellent example of the high cost of this tactic.

The plaintiff was 84 years old. On February 11, 2009, she was a passenger in a vehicle that was hit from behind by the defendant. The defendant admitted liability. But his insurance company, Aviva, took the position that the 84-year-old plaintiff ought to receiving nothing for her injuries. So, Aviva offered $0 to settle the case. The plaintiff tried to be reasonable, recognized the risks and offered to settle before trial for $10,000 plus costs. Aviva said no. The result a 2 ½ week jury trial. In the end, the jury awarded the injured plaintiff:

- $40,000 for pain and suffering damages

- $25,000 for loss of ability to perform housekeeping and home maintenance

- $2,000 for attendant care; and

- $500 for medical and rehabilitation expenses 

After applying the statutory deductible to pain and suffering damages and collateral benefits, the net judgment was $20,414.813 in damages. Recall that the plaintiff offered to settle for $10,000 in damages. The insurer ought to have settled this case. Instead of paying a reasonable settlement to an injured 84-year-old woman, Aviva forced a trial. As noted by Justice Sanderson, Aviva cannot claim proportionality to reduce costs where it was the reason for the costs of this trial, writing:

[99] Because it had framed its defence in the manner that it had, it knew that the resolution of the issues at a trial would involve the hearing of lengthy and costly evidence, including extensive medical evidence.

[100] Sanctioning insurers’ litigation strategies involving:  

(1) discouraging Plaintiffs from pursuing legitimate but modest claims by refusing to make any meaningful offer to pay damages and forcing those Plaintiffs to trial in circumstances  where, because of defences the insurers have asserted, they cannot possibly be successful unless they call expensive medical and other evidence;

(2) then, raising the spectre of very serious adverse cost consequences of such trials;     

(3) then, even after Plaintiffs have chosen to take the serious adverse costs risks of such trials, and even after they have been successful at trial and have received costs awards under Rule 49.01(1) on a substantial indemnity scale; 

(4) attempting to unduly minimize the quantum of otherwise usual amounts of costs including substantial indemnity costs on the basis of proportionality, would be, in my view, to sanction under compensation of Plaintiffs for costs legitimately incurred to make many lawsuits uneconomic and could generally discourage Plaintiffs with modest claims, even if valid from pursuing them.

[101] If pursuing such an approach or strategy were to have the effect of generally discouraging Plaintiffs from bringing and pursuing modest sized claims, [even in cases such as here where liability has been admitted] the  benefits to insurers could  be significant and wide-ranging.

[102] If insurers were incentivized to pursue such a strategy and to generally resist settlement of such cases, in order to generally discourage such Plaintiffs from pursuing such actions, that could seriously jeopardize overall access to justice.

[103] Insurers can, of course, pursue whatever strategy options they deem fit, but especially where such strategies may have wide-ranging and adverse implications involving widespread denial of access to justice, the use such strategies should not be encouraged by the giving of cost breaks on foreseeable costs consequences.

I applaud Justice Sanderson for his principled reasons and judgment. As the saying goes, “…live by the sword and die by the sword”. There is no question that Aviva is entitled to take cases to trial, but if it gambles on a trial and loses, it must pay the costs.

The odds are stacked against injured plaintiffs in Ontario. We need to keep fighting for those innocently injured, to ensure that they receive fair and just compensation. Awarding fair and reasonable costs is necessary to make this happen.

 

Originally Published: June 25, 2018

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Kris Bonn, Contributor and Personal Injury, Insurance Disputes & Criminal Defence Lawyer

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Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges.

Kris was born and raised in Trenton and has strong roots in the local community. Kris graduated from St. Paul’s Secondary School in Trenton. He attended Queen’s University where he obtained an Honours Commerce degree. He went to the big city to the University of Toronto for law school, graduating in 2000. Kris stayed in Toronto after graduation learning the ropes with the national law firm of Fasken Martineau DuMoulin before returning home.

Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges. In 2005, Kris successfully obtained his designation as a qualified breath technician. Kris has successfully argued cases before juries, judges and the Court of Appeal in Toronto. He works with his clients to obtain the best possible results. If that means going to trial, he has the experience and know how to get the job done.

Kris is active in the community as a Director of the Ontario Trial Lawyers Association and the local Brain Injury Association Quinte District. He is a member of the Hastings County Law Association and the Advocates Society. He supports local charities, including the Trenton and Belleville Hospital Foundations.

Outside of the office he tries to make time in the early morning before work to run, bike and swim.



The #1 cause of aging and what to do about it

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What do you think could age you faster? Poor nutrition, lack of exercise, or not enough sleep?

If you picked sleep, you would be right.

Sleep is such an important building block for our health yet in today's modern world it is often considered an inconvenience. How often do hear people get praised for "burning the midnight oil" or consider it a badge of honour to pull an "all-nighter"?

In Tom Rath's book, Eat Move Sleep, he likens the number of hours of sleep deprivation to the number of beers you might drink. Many people wouldn't want their child's teacher to have a few beers before coming to class, but missing a few hours sleep is not even considered, it might even be expected.

If you truly want excellent health, making sleep a priority is essential.

Here are some quick tips to take advantage of sleep as a potent anti-cancer, anti-inflammatory, anti-aging, and cost effective (actually it's totally free!) tool for longevity:

  • Best bedtime is 10 pm. Try to get as close to this as possible, even if it's in small 10 -15 min increments
  • Best time to wake up is 6 - 8am.
  • Set an alarm to go to bed.
  • Expose your eyes to bright light as soon as you can
  • Have protein for breakfast.
  • Make mid-morning your last call for caffeine.
  • Shut off all screens 30 -60 minutes before bed.
  • Take melatonin if you are a shift-worker.
  • Exercise regularly.
  • Make early evening your last call for alcohol. The closer to bed you drink, the more likely your will have disturbed sleep.
  • Keep your bedroom cool and dark.
  • Have a bedtime routine.
  • Dim the lights as evening falls.
  • Try guided meditation to help you fall asleep.
  • Check your blood sugar if you are having trouble staying asleep.
Early to bed, early to rise, makes a man healthy, wealthy, and wise.
— Unknown

 

Originally Published: June 18, 2018

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Dr. Michelle Durkin, BSC(H), ND, Contributor and Bowen Practitioner at Quinte Naturopathic Centre

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Dr. Michelle Durkin attended the University of Guelph and obtained a Bachelor of Science with honours in Biomedical Science. With this medical background, she went on to study at the Canadian College of Naturopathic Medicine in Toronto and graduated as a licensed doctor of naturopathic medicine in 2003. Dr. Durkin founded her clinic, the Quinte Naturopathic Centre. As a Naturopathic Doctor she is very committed to providing excellent individualized health care in a warm and professional environment. Michelle is also a professional Bowenwork® practitioner. In addition, Dr. Durkin holds professional memberships with the Ontario Association of Naturopathic Doctors (OAND), the Canadian Association of Naturopathic Doctors (CAND), and the Association of Perinatal Naturopathic Doctors (APND).



Driverless Cars: Beneficial or Harmful to Ontarians?

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Ontario allows testing of driverless cars on provincial roads, but there still needs to be a human operator with a valid driver’s licence who can take over in case of problems.

Driverless vehicles on the road will also need to carry $5 million in liability insurance. These vehicles will be allowed on all public roads in the province, including the 400-series highways.

Whether this is good or bad is up for debate.

Some of the reported benefits include:
Reduced collisions: Almost every car crash is the result of driver error — speeding, driving while drunk, distracted driving, and so on. A driverless car eliminates driver error and will almost certainly lead to fewer collisions.

Eases traffic congestions: Anyone driving around Toronto will appreciate the reduced congestion that will come with driverless cars. No more erratic driving, unexplained stopping or slowing. Further, with fewer or no collisions, no need for “rubber necking” by vehicles passing a crash scene.

Reduced need for parking: Once driverless cars are allowed to operate without a human operator, the cars could drop a person off at a destination and return to the starting place. Or, if the stop is short, continue driving around until the person needs to be picked up.

Increased productivity: In Ontario, the average person spends about 60 minutes commuting to work each day. A driverless car would not only likely reduce the overall commuting time but would also allow the person to be productive during the commute.

There are some potential drawbacks and concerns with the driverless car:
Potential for technology to go wrong: Everyone has experienced IT woes, when your computer should work but for some unexplained reason all you see is the “blue screen of death”. The consequences of a technology failure of a driverless car could be catastrophic, resulting in serious injury or death.

Difficult transition: If the driverless car catches on in Ontario, there will be a transition period with driverless cars sharing the road with human operators. Human drivers have established certain patterns that many of us rely on when driving. For example, very few vehicles drive at the 100 km/hr speed limit on the 400-series highways. The mix of driverless cars and human drivers could potentially lead to more problems.

Loss of privacy: Using a driverless car means a third party would have the opportunity to track all of your movements in the car. Because your driverless car would be receiving or communicating with data centres, your location would be potentially accessible to people or organizations who could hack into the network.

Loss of individuality: A car is more than just a means of transportation. Many people choose vehicles to express their individuality. The Google Car is plain and boring. If driverless cars become mandatory, we would lose the thrill of driving. I for one still choose to drive a manual stick shift even though an automatic is more convenient. A driverless car is one more step in giving up more control.

Overall, I welcome the initiative. I can see the massive benefits, particularly with reducing the number of injuries and deaths on our roads. But there is a lot of work that needs to be done before driverless cars will become mainstream.

 

Originally Published: January 4, 2018

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Kris Bonn, Contributor and Personal Injury Lawyer



When Accident Benefits Covers a Hot Coffee Spill

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Hot coffee from McDonald’s is again the subject matter of a legal case.

I’m sure everyone has heard of the case in the United States where McDonald’s served scalding hot coffee to an elderly lady. The coffee spilled on the lady’s legs, causing severe third-degree burns. Unfortunately, that case made headlines for the wrong reasons and was wrongly ridiculed as being frivolous. Nothing could have been further from the truth.

McDonald’s purposely served coffee at a temperature that it knew would cause severe burns – it made the conscious decision not to lower the temperature to save money. I urge everyone to see the documentary “Hot Coffee”.

Now we have our own “hot coffee” case in Ontario. In 2014, Erin Dittmann ordered a coffee from McDonald’s drive thru. She pulled over and was transferring the coffee to her cup holder when the lid came loose spilling hot coffee over her legs. She suffered severe burns.

Ms. Dittmann applied to her automobile insurance company, Aviva, for accident benefits. You might be thinking, why would her automobile insurance benefits cover her for burns caused by hot coffee when her car was parked and not moving?

As the judge ruled, the use and operation of the automobile was integral to her suffering the injuries. She used her automobile to purchase the coffee from the drive thru, she was in her automobile when the coffee spilled and importantly, as the judge found, her seatbelt likely prevented her from taking evasive action to avoid the coffee hitting her legs.

Keep this case in mind whenever you are injured and an automobile is involved. You may have coverage for accident benefits under your auto insurance policy. Other cases where accident benefits have been paid for atypical situations include:

  • A person standing in the back of a pickup truck loading a piece of equipment is injured when the equipment is dropped on his arm
  • A woman who walks into a pole sticking out the back of a vehicle
  • A person who slips on ice while getting out of her parked car and is injured when she hits the ground

If you are injured and a vehicle was involved, even if there wasn’t an accident or collision, you should still apply for accident benefits. You may be covered.

Originally Published: November 23, 2017

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Kris Bonn, Contributor and Personal Injury Lawyer


Road Trip Planned? Use these five tips to prevent pain

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Written by Dana Goodfellow, RMT, D.Ac. Owner – Quinte Mind & Body

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Now that fall is upon us and the beautiful colours of nature are everywhere in sight, this usually calls for frequent excursions and

road trips. Most of us hop in the car and take advantage of visiting the cities, cottages, trails and beautiful wine country we live so close to. Whether it’s just for the day or for an extended period of time, you want to avoid those aches and pains that come with driving long distances.

Here are my top five tips for preventing driving stiffness and pain:

1. Properly adjust your seat and headrest. You should continue the rule of 90 degrees with each joint when you are seated. This means your hips and elbows should be as close to 90 degrees of flexion as you can get them. Your head should be straight forward, creating that 90 degree angle at your chin, not angled up or down. Make sure your head is actually in line with your shoulders and resting against your headrest. We often extend our neck and head forward when driving, this creates strain and bad posture, which turns into pain and headaches.

2. Perform easy and safe stretches when possible. When you are at a stop light is a good time to do simple neck stretches and re-correct your posture.

3. Take frequent breaks to get out of the car and stretch your lower body and walk around. This promotes blood flow and loosens joints that will become stiff.

4. If you have heated seats, use them for lower body pain. Even in the hot weather having the heat on our muscles in our low back and glutes will prevent and ease any stiffness and tension in muscles.

5. Always plan! If you are driving for a long period of time, make sure you stretch your body well before you get in the car. This will help in the long run and prevent pain from occurring.

If you feel numbness and tingles in any of your extremities, shoulders, glutes or low back while driving, make sure you schedule an appointment with a health care provider. This is usually due to a nerve compression and is easily treatable if caught early. If you are feeling these symptoms or any other that concern you, feel free to contact our office. We would be happy to take care of you.

Dana can be reached at quintemindandbody.com


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How to Engineer a Perfect Night’s Sleep

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Written by Carolyn Coffin

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Imagine a drug that could help you burn fat, boost immunity, regulate blood glucose, end sugar cravings, brighten your mood, think clearly, and prevent chronic disease.

That drug exists. It’s called a good night’s sleep.

If sleep were made into pill form and marketed to us, we’d realize that it improves all markers of health, finances, happiness, and relationships ... without side effects. No doubt, it would fly off the shelves regardless of cost. So why aren’t we addicted to this drug?

Over the past two hundred years – first with the industrial revolution and then with the invention of the light bulb – time became money. Some speculate that our quest to become more productive has caused us to become blind to the fact that we can’t work around the clock. When our natural circadian rhythms – which used to be governed by the rising and setting of the sun – are disrupted by artificial light and digital stimulation after dark, it comes at a cost.

The stats don’t lie:

Forty percent of Canadians suffer from some form of sleep disorder, and sleep deprivation is estimated to cost $21.4 billion a year due to decreased productivity in our country alone. When combined with other developed economies like the United States, Japan, and the U.K., the losses skyrocket to a whopping $680 billion per year.

Perhaps the most troubling part is that we don’t believe we are suffering from lack of sleep because we “feel fine,” which is why it’s said to be a silent killer. But it doesn’t have to be that way. There are simple steps you can take right now to sleep more soundly tonight.

Five Tips to Engineer a Perfect Night’s Sleep
1. Catch some rays in the days – Get outdoors in the morning sunlight for about 15 minutes (e.g. walk, bike, yard work) to anchor your circadian rhythm and let your body know it’s daytime.

2. Give yourself a tech curfew – Blue light from screens interferes with our body’s natural production of melatonin, the sleepy hormone. This can lead to the familiar “tired but wired” feeling that makes it so difficult to wind down. Consider setting a tech curfew about 2 hrs before bed. If a screen curfew is not an option, consider installing Flux (justgetflux.com) on your computer, a free software program to pull the hormone disrupting blue light out of your screens.

3. Set a bedtime alarm – We usually set an alarm to wake up, so why not use one to get to bed? Program your phone to go off about half an hour before you want to fall asleep to remind you to start the bedtime process. For example, if you normally wake up at 6:30a.m. and you want eight hours of shut-eye, set your bedtime alarm for 10 p.m. for a 10:30 p.m. lights out. It’s also important to have relatively consistent bed and wake times.

4. Mellow out in the evenings – Trade in the screens for reading, socializing, or enjoying an evening stroll. A cup of herbal tea is also a great pre-sleep ritual.

5. Create a sleep sanctuary – Sleep in a quiet, tidy, cool (16 to 20 degrees Celsius), dark room. Remove all electronics, including computers and televisions, as well as work materials and excess clutter. Consider adding a houseplant, which naturally purifies the air by removing toxins.

Bottom line: Do whatever you can do to live in closer alignment with your natural circadian rhythm each day and you will find yourself sleeping like a baby again.

Carolyn can be reached at eatrealfoodacademy.com

Originally Published: August 21, 2017


Adults Need to Play Too

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Written by Carolyn Coffin

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Did you know that self-care includes having fun and playing, just like you did when you were a kid? Is there room for play in your schedule or are you booked to the minute?

Be honest, when is the last time you really lost yourself in a joyful activity that had you completely absorbed in the moment with zero attachment to the outcome?

As the challenges and responsibilities of making a living and managing a family accumulate, we seem to have adopted the collective belief that play is for youth.

The truth is that play is for everyone, particularly those engaged in the incredible complexity and breakneck pace of modern life.

Play can be any activity that you find enjoyable, with minimal emphasis on rules, structure, or tangible results. The objective is to get you out of the focused, rational mindset that you exist in for most of the day, unplug from your routine, and have some fun!

It’s easy to be sedentary in the modern world, so ideally your play sessions will involve getting outdoors in fresh air and sunlight while performing moderate amounts of physical exertion. This can be anything from a five-minute break from your work desk to practice juggling in the courtyard to a weekend getaway where you learn how to stand-up paddle, snowshoe, or rock climb. For the majority of us who don’t accumulate enough daily movement, these outdoor play stints produce the best physical and psychological benefits.

Research has shown that play is a sure way to fuel your imagination, creative juices, problem-solving abilities, and emotional well-being. Play helps us connect with our childlike curiosity, manage stress, and even increase productivity – all with a better sense of humour and a more positive outlook on life.

For those averse to formal workouts, you’ll be relieved to know that play can contribute to the development of strength and speed as effectively as formal workouts do. There are even fitness centres popping up designed to promote play, filled with foam pits for jumping, ropes to climb or swing on, and obstacles to jump over or up onto. The MovNat (MovNat. com) fitness program emphasizes spontaneous interaction with one’s natural surroundings, which can appeal more than a stuffy gym to many.

I recently polled my Facebook community to see what their favourite play activities are, and here’s what they love:

  • Dancing to music in the kitchen
  • Hula-hooping
  • Adult dodge ball
  • Pickup basketball / Ultimate Frisbee
  • Hopscotch
  • Skipping
  • Cannonballing into a lake
  • Chasing your children on the jungle gym
  • Tobogganing / building snow forts / having a snowball fight
  • Zip-lining

It’s up to us to reconnect with our roots as playful human beings. When it feels as though life is too serious or slipping by too fast, toss aside your to-do list and make room for the activities that really help you recharge. Let the fun shine in, have a blast, and just live a little – or a lot!

Carolyn can be reached at

eatrealfoodacademy.com

Originally Published: April 24, 2017