Hurt on a Landlord's Property

Due to carelessness, negligence, or sometimes simple misfortune, people get hurt through accidents on apartment properties. The injuries may arise from dog bites (dogs owned by other tenants), slip and falls due to ice or snow, trips or falls caused by crumbling concrete, steps or walkways, or even injuries inside rental units due to neglect and lack of repair. If you or someone you know has suffered an injury inside a rental apartment or house--what can you do? The fact is that both a tenant and a landlord may be liable in tort for the injuries sustained by a guest. What is sometimes less clear is that a landlord may be liable for the injuries sustained by a tenant of that landlord if the injury is caused by the landlord's negligence and neglect. A landlord does not have any special protection from being sued simply by being in a landlord and tenant relationship---regardless of what the lease says! Given the serious consequences of suffering a personal injury (pain and suffering, loss of income, loss of future income, loss of earning capacity, special expenses including medical and medical assistive devices) it is important to explore all sources of compensation to help the injury victim get through the ordeal. My law-firm, located in Ottawa, Ontario, is considered a leading boutique personal injury law firm. This label "boutique" means that personal injury work is the primary focus of the firm. We currently have eight lawyers in the firm focusing exclusively on personal injury claims. Needing a personal injury lawyer in Ontario is actually less stressful than needing any other kind of lawyer from a financial perspective. Almost all personal injury matters are handled on a "don't pay unless you win basis" meaning there is no risk of having to pay us for services unless you win or settle your claim. Accordingly, it is worthwhile to get an opinion about injuries that happen on a landlord's property. Consultations are free and I would be pleased to hear from you. Michael K. E. Thiele Quinn Thiele Mineault Grodzki LLP Ottawa, Ontario 613-563-1131

Getting the Message Out

As personal injury lawyers one of the things we must do is try to reach the people who need our help. Marketing and advertising is a fine balance as here in Ontario we try to avoid the marketing hype that everyone is familiar with in the United States. One of the new advertising methods we at QTMG LLP are now using is bike rack advertising as we like to think this advertising also supports a healthy living lifestyle of riding one's bike to work etc.. In this photo we have Marc Quinn, partner at QTMG LLP, beside one of our newly installed bike racks in Ottawa, Ontario.

Am I a tenant?

In the early days of this new school year we have seen many hundreds of students moving to the City. Carleton University and University of Ottawa students seemed to have a monopoly on all of the Uhaul trucks this past weekend as they were moving into new apartments and residences. WIth the great excitement of a new apartment sometimes comes an unfortunate realization that the "great" room mate is perhaps less than ideal. It is no surprise then, that the phones at Quinn Thiele Mineault Grodzki LLP have started to ring with some rather fundamental and basic questions about Landlord and Tenant law. Michael Thiele, one of the founding partners has extensive experience in residential landlord and tenant law and has been fielding and increasing number of questions in the last few days from students. Perhaps the most common question is about the respective rights of the people living in the apartment or house. There have been many inquiries from people who have signed a lease as the sole tenant with the clear understanding that they would be having room mates to help pay for the rent. As these tenants have discovered, the joy of collecting rent from room mates and the attitude of these room mates towards the condition, maintenance and repair of the property is often times below their own standards. The question, as these realities sink in, is what are the legal rights of everyone in the house or apartment. The relatively short answer is that the person named on the lease, as the tenant, is the person in control of the rental unit. That tenant has the sole power (amongst the occupants of the rental unit) to decide who stays, who goes, and when they go. The tenant identified in the lease as the "tenant", is responsible to the landlord for all of the rent, for any damage to the unit, and for ensuring that all of the obligations imposed under the Residential Tenancies Act are maintained (ex. ordinary cleanliness, noise, etc.). If the tenant's room mates do not pay, cause damage, are unruly, it is the tenant who will be responsible to the landlord to pay for those damages even if the tenant did not cause the damage or the tenant paid his or her "share" of the rent. Certainly, being the sole "tenant" on the lease carries with it great responsibility and liability. However, being the sole tenant is not necessarily a bad thing. If you are an assertive person and are able to maintain control over the rental unit, and you vet your room-mates carefully and you get them to sign a reasonable contract, you can have the benefits of having room mates (share rent) while limiting liability and risk. Under such circumstances, if a room mate does turn out to be a dud then you may require them to leave in short order in accordance with the terms of your agreement with them. A room mate does not have the protection of the Residential Tenancies Act as they are not a "tenant". Hence, you are not forced to put up with a room mate who might be a "nightmare". Getting rid of a room mate, who signed the lease as a "tenant" is much more difficult, if not impossible. For students with Landlord and Tenant questions you may find some answers to those questions by consulting with Michael Thiele, the University of Ottawa Student Legal Aid Clinic, the various community legal clinics in the City, or even the Ontario Landlord and Tenant Board website.

Licenced Lawyers & Paralegals

A recent incident in Ottawa is highlighting the importance for clients to check that the people they hire are actually real lawyers and/or paralegals. In an Ottawa case, a person going by the names of Neil Shah and Deep Sing Shah, is reported to have held himself out as a lawyer with an office on Laurier Avenue. While the allegations against him remain unproven, reports indicate that several clients lost large sums of money as a result of hiring this person as a lawyer. This story highlights the need for all clients to know how to ensure that the "lawyer" they are dealing with is indeed authorized to practice law in Ontario. To that end, a great starting point is at the website of the Law Society of Upper Canada. The website provides a way for the public to search for a lawyer and to determine if that lawyer or paralegal is in good standing with the Law Society. A lawyer or paralegal who is in good standing will be entitled to practice law in Ontario and will also be insured with the mandatory insurance required by the Law Society of Upper Canada. If there is any doubt after such a search, a client may also call the Law Society to inquire about any lawyer or paralegal that they intend to retain.

BRONSON AVENUE RECONSTRUCTION

Perhaps the recent complaints in various media have made a difference. Bronson Avenue in Ottawa has been undergoing a complete reconstruction and has been impassable for months. The work includes replacement of water and sewer pipes as well as improvement of the street with the installation of a signalized crosswalk to improve pedestrian safety. The City of Ottawa has announced that the working hours on this project are now being extended to include Saturdays between 8 a.m. and 6 p.m.. This will continue until December 2012. At Quinn Thiele Mineault Grodzki LLP, personal injury lawyers Ottawa, we have taken note of the construction work on Bronson and are hopeful that this reconstruction work along with some design changes will result in a safer street. Bronson has become a heavily used and fast artery. As many others in the community using Bronson, it was apparent that entering Bronson from the side streets was increasingly difficult and certainly there seems to have been an increase of collisions between cars and bicycles. With this reconstruction and another signalized intersection we can hope that the street is becomes safer.

USA and Canada sharing privacy information

New charter allows USA to share Canadian privacy information As readers of this blog will agree, the lawyers at Quinn Thiele Mineault Grodzki LLP, personal injury lawyers Ottawa, are always keeping abreast of legal developments that affect the interests of their client. With that in mind, we report that on June 28, 2012, a privacy charter identifying principles of information sharing was jointly released by the United States of America and Canada. One of the principles of that charter is that either country may share personal information about citizens of the other country with a third nation. Accordingly, when a Canadian crosses into the USA over the border, personal information will be available for transfer to a third country when such disclosure is consistent with the law of the domestic country and its international agreements. For information transfer that is not subject to international agreements, the Americans will be required to notify Canada either before or immediately after the sharing of the information. There is no procedure outlined for denying the other country the right to share information. All 12 principles identified in the charter will be applied to the "Beyond the Border Action Plan," a privacy agreement developed between the two nations in November 2011. When information about mental health is released, it can have consequences for people with mental health conditions or a mental health condition history. The Police Records Check Coalition (PRCC) has documented cases where individuals were denied entry at the USA border because information about their mental health was released to border officials. For more information, see www.mentalhealthpolicerecords.ca. Read the full "Statement of Privacy Principles by the USA and Canada" at www.publicsafety.gc.ca.

CAR INSURANCE TIPS

PROTECT YOUR FAMILY----CAR INSURANCE TIPS

At Quinn Thiele Mineault Grodzki LLP we handle a great many car accident cases. It is the substantial part of what we do. We represent regular people who are injured in car accidents. In doing that, we negotiate significant financial settlements for our injured clients. Other times we sue and go to Court to recover compensation for our clients so that they can receive proper compensation for their injuries---this compensation is normally paid by the insurance. In doing this kind of work, we see the importance of being properly insured—unfortunately this is sometimes highlighted by the inadequate basic insurance policies that are legally sold but reflect only the minimums mandated by law.

Car insurance policies, as issued by any insurance company doing business in Ontario, are anything but straightforward. The law sets out a certain basic framework for every motor-vehicle policy in Ontario through a standard automobile insurance policy; the terms of which are dictated by the government. Aside from the standard minimum coverage, insurance companies are permitted to sell additional benefits as part of the insurance policy. These additional benefits, reflected in endorsements to the standard policy, are essentially amendments to the minimum basic coverage provided by the standard policy.

The question that anyone who is buying automobile insurance should ask is whether the basic coverage, provided in the standard policy, along with the minimum statutory amounts, provides a reasonable level of coverage. Is your family adequately protected by the standard insurance policy? In our opinion, the direct answer is an unqualified no. The statutory minimums are entirely unsatisfactory. Any person relying on the basic coverage in the event of a serious accident is at great risk of being underinsured and exposed to significant financial liability.

The risk of not buying enough coverage is, to a degree, understood. Increased coverage costs a little more. People seem to be conditioned to think that getting the cheapest possible insurance is the aim and purpose of shopping around and getting comparison quotes. It is fairly obvious to insurers, that people shopping for quotes, are shopping for the cheapest policy. Hence, there is a pressure to quote policies that reflect coverage based on statutory minimums as opposed to coverage that provides reasonable protection in the event of an accident.

The fact that Ontarians shop for “price” when getting insurance quotes is not entirely a factor of being frugal or however else you would like to say it. Certainly, everyone likes a good deal—but we at Quinn Thiele Mineault Grodzki LLP believe that hardly anyone would consider an inadequate policy of insurance a good deal. So why then, is the focus on price and not on the content of the policy? The answer we believe lies in the fact that most people still trust the Ontario government to make sure a “standard” policy of insurance provides adequate and reasonable coverage. The sad fact, is that while this was true at one time, the Ontario government has allowed the standard policy of insurance to erode to the point that the minimum coverages are not reasonable—leaving people who rely on them at significant risk.

The endorsements, the additional coverage that your Ontario automobile insurers sell, are neither cash grabs nor unjustifiable extravagances. In our opinion, these additional coverages are so important that they should really form part of the basic coverage of a standard automobile insurance policy.

In this memo, we would like to provide you with following suggestion. In addition to this suggestion we strongly recommend that you contact your insurance broker to talk about all of the potential buy-ups, especially in relation to no fault accident benefits. In the name of consumer choice, the government recently slashed the coverage that comes with a standard automobile policy. The statutory accident benefits that now form part of a standard automobile insurance policy can easily result in inadequate protection for you and your family.

The concrete suggestion we have for everyone who is insured in Ontario is to two-fold. Firstly, you should buy up the liability coverage to whatever amount you can possibly afford. In our opinion, a reasonable base amount of coverage is $5 million dollars. Anything less is a risk.

Five million dollars of liability coverage is the amount your insurer will pay to the victims of any accident that you are deemed responsible for. The sum may sound like a lot, however, it doesn’t take much to imagine the extent of injuries in a serious accident involving multiple vehicles that are full of people. Those millions of dollars can be quickly used up helping the seriously injured.

The second concrete suggestion we have for everyone is to make sure that you have purchased the Family Protection Endorsement. The Family Protection Endorsement protects you and your family in the event that the person who hit you is underinsured or completely uninsured. Surely we have all had the thought that any accident we’re in will be the result of someone else being the “bad” driver and not ourselves. What if that “bad driver” is drunk or impaired by drugs. What if that driver has a suspended licence or is driving without permission? In all of these instances the person you are suing would potentially have no insurance coverage or the coverage would be limited to $200,000. There is no way that this is enough in the case of a serious accident.

The Family Protection Endorsement allows you to recover damages from your own insurer to the extent that the driver or responsible person who hit you was underinsured. The amount available under the Family Protection Endorsement is equal to the amount of your liability coverage. This is another great reason to have the $5 million coverage as you will have a total of $5 million dollars available to you should you be injured by a negligent underinsured or uninsured driver.

At Quinn Thiele Mineault Grodzki LLP we strongly urge you to review your automobile insurance polices with your broker. Please do so before it may be necessary to make a claim. A review after an accident is simply too late. You will be quite surprised to learn that the cost of the “buy ups” is actually quite reasonable relative the significantly better coverage that you can get. Insurance is supposed to protect you in the event of a catastrophe. Only you can make sure that your coverage is right.

QTMG LAWYERS

Ontario Long-Term Care Homes Act

New Long-Term Care Homes Act now in effect

Ontario's new Long-Term Care Homes Act, 2007 (LTCHA) came into effect on July 1, 2010. The act states that "a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met."

This act now supersedes other legislation governing long-term care homes, including the Charitable Homes Act, theHomes for the Aged and Rest Homes Act and the Nursing Homes Act.

The LTCHA has an expanded Residents' Bill of Rights, which recognizes the dignity of each resident and ensures a safe environment for each resident. The Residents' Bill of Rights also protects a resident's right to participate fully in the development, implementation, review and revision of his or her plan of care, including rights to

• give or refuse consent to any treatment, care or services for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent,
• participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters, and
• have his or her personal health information within the meaning of the Personal Health Information Protection Act, 2004 kept confidential in accordance with that act, and to have access to his or her records of personal health information, including his or her plan of care, in accordance with that act.

As a mandatory requirement under the LTCHA, all licensed long-term care homes must establish a Residents' Council consisting only of residents of the home to help advise on matters relating to the home. In addition, all long-term care homes must establish a written policy to promote zero tolerance of abuse and neglect of residents.

COSTS TO THE SELF-REPRESENTED PARTY

AWARDING COSTS TO THE SELF-REPRESENTED PARTY: By Michael Thiele

If a person goes to Court as a self-represented party, either as a defendant or plaintiff, is that person entitled to receive costs if they are successful on the motion or trial? This question is often raised by self-represented persons who are taking the time to act as their own lawyer. For many different reasons, but usually because of the high cost of hiring a lawyer, many persons are forced to represent themselves in Court. Accordingly, they spend a significant amount of time trying to do the work necessary to represent themselves.

For parties who are represented by lawyers, there is a possibility of recovering costs if they are successful in motions or at trial. Costs are discretionary, but the usual rule is that the successful party is entitled to receive costs. The costs are intended to indemnify a party for all or part of the legal fees incurred as well as the disbursements and taxes. The breadth and extent of costs being awarded is beyond the scope of this blog.

Where a person does not have a lawyer, but spends a lot of time working on their case, should they get “costs” in the same way that a party who has a lawyer gets “costs”. The argument for costs is generally that the self represented party has had to do the work that a lawyer had to do and therefore they should be compensated.

In recent years, Courts have recognized that individual self represented parties can receive costs under some circumstances. In fact, there appeared to be a trend to award “nominal” costs to self-represented litigants simply on the presumption that they should get “something” for the clear effort that must have been involved in representing themselves.

This practice of awarding nominal costs to self-represented parties is likely now a thing of the past with the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt). In this decision, the Divisional Court reviews some of the recent cost awards to self-represented parties. In this specific case, the Court was considering a $20,000 cost award to a self-represented party and further it considered what would have been a “nominal” award of $5000 in costs to the same party that would have been awarded but for the higher cost award.

In reviewing the caselaw, including appellate authority, the Divisional Court in this case clarifies that costs awards to self-represented parties may only be granted where it is proven that the self-represented party performed the work of a lawyer and that this self-represented party as a result of performing this work also sacrificed other remunerative work---meaning the self-represented party needs to prove that they suffered an opportunity cost as a result of being self-represented.

It is significant to note, that even if a self-represented party establishes that they performed the work of a lawyer, and that they suffered the loss of remunerative work, that the Court directs that the costs awarded to that self-represented party should still be modest and moderate amount for preparing and presenting the case. The direction is clear, that a self-represented party should not have their costs calculated in that same manner as a lawyer.

As a result of this reasoning, the Divisional Court in this case, set aside the award of $20,000 to the self-represented party, and further indicated that the self represented party should not get the nominal costs of $5000.00. In fact, the self-represented party only received, as costs, its disbursements, and zero on account of the work done in representing himself.

For more detailed information see the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt).