Beware Of Special Rules When Suing A Municipality

Accident victims should retain counsel as soon as possible after injuring themselves on city-owned property due to special rules that apply in those cases, says Windsor personal injury lawyer Gino Paciocco.

Paciocco, a founding partner of Paciocco & Mellow, tells AdvocateDaily.com that while plaintiffs have two years to file a civil claim, provincial law requires an extra step for cases involving a municipality.

Under s. 44 (10) of the Municipal Act, actions against a city for negligence are barred unless “within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail” to the clerk of the municipality.

In cases where responsibility for the road or bridge in question is shared, the clerk for each jurisdictions must receive notice, the Act says.

“If you miss the 10-day notice period, in some circumstances it can defeat your claim altogether. There are some exceptions to that general rule which is why it is important to see a lawyer as soon as you are injured to protect your rights,” Paciocco says.

“Verbal notice is not sufficient to comply — it must be in writing,” he adds. “We can ensure that rights are protected by sending a notice letter. And if you missed the 10-day period, we can advise if you meet any exceptions to maintain a valid claim in any event.”

Paciocco says municipalities can find themselves liable when property that belongs to them is left in a hazardous condition, or not maintained for an extended period of time.

“In our experience, slip and fall incidents on municipal sidewalks are the most common claims,” he says. “We also have claims for falls and motor vehicle accidents due to icy conditions of roadways, although those are much less frequent.’

As recently as this summer, a family discovered the hard way how strict the notice period can be after Ontario’s top court dismissed their claim against a northern Ontario municipality.

The roots of the case lie in a 2007 accident that left their 17-day-old son brain damaged. A claim was launched in 2014 against the driver and owner of the other car in the crash, but the city was not added as a defendant until almost a year later, two days after the child’s grandmother swore an affidavit to become his official litigation guardian.

A motion judge dismissed the city’s attempt to have the claim struck, concluding that the 10-day notice period did not start to run until after the grandmother took on her duties. In any case, the judge ruled that the plaintiff being a child was a reasonable excuse for missing the deadline and that it caused the municipality no prejudice.

However, the Court of Appeal disagreed, finding that the child’s mother was effectively acting as his litigation guardian when she filed the original suit on his behalf.

“She had no conflict of interest in relation to suing the City, and she had a good reason to try to limit her own potential liability by suing the City,” the unanimous three-judge panel wrote.

“The only explanation in the record for not doing so is [the mother’s] evidence that, ‘this never came up.’”

Since this was not a reasonable excuse, the appeal court concluded the case against the municipality should be dismissed.

    

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Textalyzer Would Be A Privacy Invasion for Drivers

Privacy concerns will hamper the development of a Canadian “textalyzer” that shows police if a driver’s cellphone was recently in use, says Windsor personal injury lawyer Gino Paciocco.

NPR reports that police in several U.S. states, including New York, want to put the tool into action in an effort to crack down on the increasingly prevalent problem of motorists who text while driving.

Modelled on the breathalyzer for alcohol testing, the machine works by plugging into a phone, and extracting data to put a finger on exactly when and how it was being used at the time the owner was driving.

However, Paciocco, a founding partner of Paciocco & Mellow, tells AdvocateDaily.com that the idea strikes the wrong balance between public safety and personal privacy rights.

“If you allow police to go ahead and conduct these tests whenever they want, it’s going to be a huge invasion of privacy that I don’t think people will put up with,” he says. “With the advance of technology, there is so much information your phone can collect. You could tell if someone’s speeding, where they’ve been. Some might even know your blood pressure and how much sleep you had the night before.”

Depending on how well the machine could restrict officers’ access to data on the phone, it could also raise issues for doctors and lawyers who use their devices for work purposes, considering their duties of confidentiality to patients and clients, Paciocco says.

According to NPR, police officers attach a cord to connect the textalyzer to the phone. Within two minutes, it can bring up a summary of the all the apps that were open and in use in the recent past, including screen taps and swipes.

Paciocco says the textalyzer reminds him of photo radar, another measure hailed by some as a solution to a road safety problem.

“It may have been good to reduce speeding, but there was a public outcry about privacy that caused it to be done away with,” he says.

If police have a reason to suspect that a particular driver’s texting caused an accident, then they have other means to get the same information that an on-the-spot textalyzer would provide, Paciocco says.

“They can go and get a search warrant through the courts to collect that evidence from the phone company,” he says. “I don’t see the urgency that would justify giving police officers the absolute right to go into your device with complete discretion.”

While he acknowledges that texting and driving is a practice that appears to be on the rise, Paciocco says there are more effective ways to challenge that problem than a textalyzer.

“You could mandate some sort of lock on the phone that disables it while the car is in motion. If drivers are unable to text with their cellphones, then that would prevent accidents and make everyone much safer,” he says. “But even that would have its own issues, and you would need a way to distinguish between drivers and passengers.”

    

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FLA Claims an Alternative to Minimized Accident Benefits

With the recent reduction in motor vehicle accident benefits, many people are depending heavily on the Family Law Act (FLA) for compensation, Windsor personal injury lawyer Gino Paciocco tells Law Times.

As the article notes, in Part V of the FLA, entitled “Dependant’s claim for damages,” s. 61(1) gives a spouse, including common law spouses, children, grandchildren, parents, grandparents, brothers and sisters of a person injured or killed by the fault or neglect of another the entitlement to recover their pecuniary loss resulting from the injury or death.

“FLA claims are a way to get around accident benefits now that they are minimized, and optional benefits are not pursued,” says Paciocco, partner with Paciocco & Mellow.

“Just about everyone I see has no optional benefits because they are not told about them by brokers, or they don’t want to pay more,” he adds.

Law Times explains there are two types of claims that can be advanced under the FLA, as outlined in s. 61(2), including pecuniary claims, which are actual expenses reasonably incurred for the benefit of the person injured or killed, such as funeral expenses and a reasonable allowance for the loss of income or the value of nursing or housekeeping services.

There are also non-pecuniary expenses  — compensation for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person.

When you present a non-pecuniary claim, says Paciocco, it’s “more of an art than a science. You are not able to prove actual expenses.”

To deter individuals from going forward with minor non-pecuniary claims, the government has also introduced a deductible, says the article.

Paciocco tells Law Times it makes sense the deductible wouldn’t apply to pecuniary losses, where you can calculate the loss of income.

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