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Ontario’s personal injury laws provide legal remedies to those who have been injured or died in an accident caused by someone else. As personal injury cases involve tort or civil law, the defendants are not imprisoned. Rather, the courts will award damages (money) for the victim to compensate them for their injuries.

Personal injury law does not only involve injuries sustained from motor vehicle accidents. It can also cover other physical and psychological harm, including:

• Public liability claims
• Occupier’s liability claims
• Product liability claims
• Public transportation and recreational facility claims

In these cases, damages are paid by the party found to be legally responsible by the court. This amount can be negotiated between the injured party and the insurance provider involved through a settlement agreement. If the parties fail to agree on the amount, the injured party can sue the at-fault party for compensation through the Court.

Types of Personal Injury Damages

Generally, those who suffer injuries at the fault of another are entitled to recover two different types of damages. These are known as general damages and special damages.

• General damages are damages that do not involve money, such as compensation for pain and suffering. This type of claim aims to compensate for your intangible losses.
• Special damages are also known as economic or pecuniary damages. This type of claim seeks to refund your out of pocket expenses in medical bills and compensate you for lost income as a result of the incident.

Pain and Suffering

One of the general damages you may be entitled to is compensation for the pain and suffering you endured or will continue to endure due to the actions (or inaction) of someone else. If your injuries came from a motor vehicle accident, some criteria must be met to qualify for a pain and suffering claim. These criteria are called the “threshold.” For a claim to pass the threshold, the injuries sustained must result in:

• Permanent and severe disfigurement (e.g. losing a limb or significant scarring)
• Permanent and severe damage to your physical, mental, or psychological function (e.g. becoming an amputee, brain damage, PTSD, and so forth.)
• Death

If during the trial, the Court finds that your injuries do not meet the threshold, your claim may be denied. Pain and suffering claims can be filed on one’s behalf by a caregiver or survivor as well as by the person injured in the accident.

In 1978, the Canadian Supreme Court capped the amount that may be rewarded to you for pain and suffering. In 2019, that amount is somewhere around $340,000. In Andrews v. Grand & Toy Alberta Ltd., the Supreme Court reasons that the cap is necessary as damages for pain and suffering are not exactly compensatory as no amount of money could make up for the loss suffered.

However, qualifying for pain and suffering damages does not immediately mean that your bank account will balloon. If your claim meets the threshold, there is a deductible of almost $40,000in 2019 ($30,000 from previous legislation as indexed over time) from the amount that you would otherwise receive. This deductible does not apply if the amount you are awarded exceeds about $140,000 in 2019 ($100,000 indexed from prior legislation). For example, if you are awarded $210,000 for pain and suffering, you will be awarded the entire amount. If what is granted to you in 2019 is $70,000 for pain and suffering, you will only be entitled to approximately $30,000.

Medical Treatment

Medical treatment almost always includes the amount expected to be shelled out for medical care related to the accident and reimbursement for out of pocket expenses for medical treatment that has already been received. You will also be compensated for the cost of necessary medical care you are expected to incur in the future as a result of the incident. One must meet the threshold requirements to get such compensation.

Housekeeping and Home Maintenance Services

If your injuries prevent you from performing housekeeping and home maintenance tasks, you will also be entitled to monetary compensation for the expenses that hiring professionals to take care of these will incur. Entitlement may be reduced for payments made for housekeeping by an Accident Benefits claim.

Loss of Current and Future Income

If the injuries you suffered have impacted your wages and salary, you will be compensated for this loss. A damage award for your future income is compensation for your “loss of earning capacity” and “earning potential”.

When claiming for loss of income, meeting the threshold is not a concern. While you can file for the income you have lost, this does not include the first seven days following the incident. Furthermore, you are only entitled to a portion of your net loss of income, minus accident benefits that you received for Income Replacement Benefits. Future income losses are calculated in full, unlike past losses.

Damage to Property

If any items or properties were damaged or lost due to the accident, you may claim for compensation for their repair or replacement. While your car insurance provider will usually take care of some such expenses related to the loss or damage of your vehicle, you have the option to recover the remaining amount in a lawsuit if they refuse.

Benefits Claimed by Family Members

The Family Law Act of Ontario allows the family members of the injured person to sue for financial losses related to the loss of guidance and companionship as a result of the injuries or death, and for the expenses incurred in the care of the injured. Under prior limits, unless the amount awarded exceeds $50,000, Family Law Act claims are subject to a $15,000 deductible. These amounts are indexed as well and keep moving up. However, if the accident results in death, the deductible amount will not apply.

Other types of damages that can be claimed under the Family Law Act include:

• Actual expenses incurred
• Funeral expenses incurred
• A reasonable allowance for travel expenses incurred in visiting the person injured during their treatment or recovery
• A reasonable allowance for travel expenses incurred in the necessary transportation of the injured person so they can be treated
• A reasonable allowance for the loss of income or the value of services if, as a result of the injury, the claimant is providing housekeeping, care and nursing, or other services to the injured

People who can claim for damages based on the Family Law Act are the direct and close relatives of the injured:

• Parents
• Spouse
• Children
• Grandparents
• Grandchildren
• Siblings

Contributory Negligence

If you’ve been injured in an accident, even if you are the at-fault driver, seek the advice of an experienced personal injury lawyer. “At fault” is a legal question that can be adequately answered by a lawyer. In some cases, your lawyer might be able to argue that you are only partly at fault for the incident. This is a concept known as contributory negligence. Depending on the severity of your injuries and how much you lost, you may still be entitled to a considerable amount of money, even though your total award will be reduced by your percentage at fault.

To reach a competent personal injury lawyer in North York, call Rooz Law Personal Injury Lawyers at (416) 229-6000 and book a free consultation. We work closely with medical professionals to help build a strong case so that you can get the compensation you deserve.

In 2016, the tech world was in a frenzy when a popular smartphone brand was under siege for selling defective phones. Units all around the world exploded or caught fire, causing injuries or property damage. Some airlines banned passengers from bringing the phone model onboard.

Canada has laws in place to protect you from these kinds of situations. Product liability laws see to it that products available on the market meet safety standards and the expectations of the consumers. To protect yourself from the dangers of product defects, it pays to be familiar with the basics of product liability laws. Here are some of the frequently asked questions in the field:

Q: What is product liability?

Product liability refers to when manufacturers, sellers, distributors, or another company is held responsible for a consumer’s defective purchase. Generally, Canadian law requires products to meet the ordinary expectations of the buyer. A product is considered defective when there are flaws in the design or manufacturing, or when the customer is given insufficient warning regarding potential dangers involved in the expected use of the product.

Q: How is “product defect” defined?

Tort liability arises from defects in any type of tangible personal properties. Product liability laws do not cover products that are non-tangible.

In the common law provinces of Canada (like Ontario), the complainant must prove that the product is defective. This is commonly defined as “a defective condition unreasonably dangerous to the user or consumer or to his property.” This means the product itself falls short of reasonable standards.

Generally, the product will be judged by the standard in place at the time the product entered the marketplace, not when the injury occurred.

Q: Who can be held responsible for product defects?

All parties involved in the distribution of the product are potentially liable for product liability claims if a plaintiff successfully proves negligence, including:

• Manufacturers
• Inspectors and certifiers
• Importers, wholesalers, distributors, and retailers
• Repairers and installers
• Product owners

Q: Who qualifies for product liability claims?

The following conditions must be met to qualify for compensation for injuries acquired due to defects in products:

• The cause of the injury must be a product as defined by the law
• The injured party must show that the product was defective
• The injured party must show that the defect was present at the time the product left the possession of the manufacturer, supplier, or retailer
• The injured party must show that it was the defect in the product that caused the injury

Q: What kind of defects can make someone liable

There are three primary types of defects that may cause manufacturer or supplier liability:

• Defects in Manufacturing
  This happens during the manufacturing process of the product and includes any mistake on the part of the manufacturer, ranging from faulty materials to food contamination.
• Defects in Design
  This occurs when the product flaw originates before manufacturing. These flaws happen during the planning process, such as a flawed design or faulty structure.
• Defects in Marketing
  These are defects that arise from the marketing of the products. This includes mislabelling, failure to warn consumers of all foreseeable injuries that the product may cause, and the lack of instructions on the proper handling of the product.

Q: On what legal basis can product liability claims be made?

The defendant of a product liability claim may answer to the other party on the basis of either contract law or tort law. If there is a contractual relationship between the manufacturer and the customer, liability is typically founded on the principles of contract law, but in some cases, liability in tort law may also exist.

Seeking compensation for damages or injuries due to defective or dangerous products under tort law requires a claim of negligence. The complainant must establish the following to prove negligence:

• The defendant owed a duty of care to the plaintiff with respect to the product
• The product was defective or unreasonably dangerous
• The defect caused or contributed to the plaintiff’s damages
• The plaintiff’s damages were reasonably foreseeable

Q: On whom does the burden of proof lie?

In tort law, the burden of proof lies on the claimant. It is up to them to establish that the product was indeed defective and that the defect caused or contributed to their injuries or loss. Causation is generally tested by showing that the loss or injury would not have occurred if the defendant exercised reasonable care.

The courts will not automatically relieve defendants from liability in case other factors played a role in causing the complainant’s injuries. If there are numerous potential causes of the loss or injury, causation will be established by the complainant’s ability to prove that the negligence of the defendant played a material role in causing or contributing to it. In “failure to warn” cases, the burden of the complainant is to prove that, had there been sufficient warning, the product would have been handled as prescribed.

Q: What evidence can be presented to support claims in product liability cases?

Typically, the courts will decide liability on evidence alone. In instances where direct evidence of negligence is not available, however, the court may take circumstantial evidence into consideration to establish a prima facie case of negligence.

Q: Can the parties rely on expert witnesses to support their claims?

The court typically accepts expert evidence in the form of written reports and testimonies during a trial during product liability cases. This makes the instruction and selection of experts, and their reports, critical elements during product liability litigation.

According to the Supreme Court, expert evidence must meet the following to be admitted:

• Relevant
• Necessary to assist the trier of fact
• Not barred by an exclusionary rule
• Given by a duly qualified expert

In situations where the scientific method involved in the expert’s opinion is unorthodox, the party advancing such has to prove that the science is reliable.

Q: Can a defendant be held criminally liable for defective products?

While there are no provisions in the Canadian Criminal Code specifically related to supplying defective products, there are extraordinary circumstances that hold a supplier criminally liable for fraud or criminal negligence. Other offences found in the Criminal Code that can apply in product liability cases include the Hazardous Products Act, Food and Drugs Act, and the Consumer Packaging and Labelling Act.

If one believes that the manufacturers and distributors must be held criminally liable, there must be a separate and independent criminal prosecution. If the defendants were found liable in the context of civil law, it does not mean that they are also criminally liable.

Q: Is there a need for court approval for settlement of product liability cases?

Except in cases where the plaintiff is under a legal disability (such as being a minor), court approval is not needed to settle private legal actions.

Settling class action suits, on the other hand, requires court approval. A notice of a settlement agreement and a date of the hearing for the motion of court approval must be posted. Class members who want to object to the terms of the settlement agreement may attend the hearing and object to its approval.

Q: Can liability be mitigated or excluded?

In some cases, manufacturers and suppliers can contractually limit or exclude liability for defective products. This is commonly done through sales contracts that explicitly stipulate and set the extent of the seller’s obligations.

Q: Do Canadian courts have jurisdiction over non-Canadian companies?

Canadian courts may assume jurisdiction over the manufacturer and other parties involved in the distribution chain even if the defending party is not incorporated (or does not conduct their business) in Canada. Generally, the courts agree that when manufacturers release their products to the public, the court of all territories where the supplier or manufacturer should have reasonably foreseen that their product will be used, purchased, or consumed may assume jurisdiction over a claim.

Q: How long does a claimant have to file a complaint?

The statute of limitations of claiming product liability is within two years from the date on which the claim is discovered. This is usually defined as the date on which the product causes the injury. This period may be extended in certain circumstances such as when the claimant is not aware of, and could not have reasonably discovered, the damages suffered.

To make filing claims for injuries caused by product defects and dangers, ease the process with the assistance of an experienced product liability lawyer. They are well-equipped with the necessary skills needed to prepare the required evidence and paperwork to make your case.

If you need a tort and injury lawyer in North York and Toronto, Rooz Law Personal Injury Lawyers is at your service. Call us at (416) 229-6000 to make an appointment.