(This article uses the male gender pronoun, but it applies equally to female persons.)
- Billings v. Mississauga (City) 2010 Ontario Superior Court and Billings v. Mississauga (City) 2011 Ontario Court of Appeal.
- Ontario Tort Cases are prolonged: a tort case occurred in 2003 was only tried in 2010.
(So far, none of my slip/trip and fall cases are against municipalities. All my slip/trip and fall cases have been settled. You don’t have to wait for 7 years for your trial before you obtain a settlement for your slip/trip and fall case.)
- On Monday, April 7, 2003, Mr. Billings decided to walk from his mother’s apartment to a local convenience store in Southern Mississauga to purchase a lottery ticket. At that time, the sidewalks in that neighbourhood were covered with ice from a winter storm which occurred in early April, 2003. Mr. Billings successfully arrived at the convenience store and bought his lottery ticket. On that way back to his mother’s apartment, Mr. Billings suffered a devastating slip and fall. (Mr. Billings worked in China. He was an executive in the Windo Law Firm, in Shenzhen, China. Perhaps he should have stayed in China and bought his lottery ticket in China?)
- Mr. Billings sued the City of Mississauga for his slip and fall. The trial of his case took place on May 13, 14, 17, 18, 19 and 20, 2010 in the Ontario Superior Court for the Regional Municipality of Peel (Regional Municipality of Peel included the City of Mississauga, the City of Brampton, and the Town of Caledon) in Brampton before The Honourable Justice C.N. Herold.
- Surprise! Mr. Billings slipped and fell 50 hours after the winter storm had ceased in Mississauga. The City of Mississauga still had not cleared the ice from the sidewalk upon which Mr. Billings walked, slipped, and fell; however, because municipalities could only be found liable for the pedestrians’ slip and fall on ice and snow on sidewalks if they were GROSSLY NEGLIGENT, Mr. Justice Herold found that the City of Mississauga was not grossly negligent, therefore Mr. Billings was awarded absolutely nothing.
- Mr. Billings appealed against Mr. Justice Herold’s decision. Mr. Billing’s lawyer, at both the Ontario Superior Court and the Ontario Court Appeal, was Mr. Paul Cahill, an experienced Personal Injury Lawyer. The Appeal was heard on March 29, 2011. Oral decision and reasons of that decision were given that same day. The three Justices of the Ontario Court of Appeal agreed with Mr. Justice Herold and found the City of Mississauga not liable to Mr. Billings. Further, the Ontario Court of Appeal required Mr. Billings to pay $5,000 to the City of Mississauga for the costs of the Appeal. Mr. Billings’ lawyer had $5,000 held in trust for Mr. Billings, and Mr. Billings’ lawyer undertook to take that $5,000 out of his trust account and pay that $5,000 directly to the City of Mississauga.
- For this case, the City of Mississauga retained experience municipal/insurance defence lawyer, Mr. Scott E. Hamilton – for both the Ontario Superior Court trial and for the Ontario Court of Appeal appeal. The $5,000 costs at the Ontario Court of Appeal was just the tip of the iceberg: a 7 day trial at the Ontario Superior Court with witnesses and expert witnesses and an experienced lawyer charging perhaps $600 per hour can cost $100,000 for this case. Since Mr. Billings lost his case at trial (and at appeal), he had to pay to the City of Mississauga its costs to defend this case at trial.
- Mr. Billings worked in Shenzhen. There are no ice and snow in Shenzhen.
- ONTARIO HEALTH INSURANCE PLAN SUBROGATION
- Ontario Permanent Residents are covered by the Ontario Health Insurance Plan (OHIP). After a slip/trip and fall accident, the injured claimant is usually cared for by a hospital and/or a medical doctor. Instead of paying out of his own pocket, the injured claimant takes out his OHIP card, and charges his hospital/medical costs to his hospital/medical insurer – OHIP.
- Motor Vehicle Accident: (I have also written an article on Motor Vehicle Accident Claims. You can read this article on my website www.shenlawyer.ca.)
(a) Under the Ontario Insurance Act, the Province of Ontario calculates the amount incurred by the Ministry of Health and Long-Term care (this Ministry operates OHIP) for motor vehicle accidents. The Province of Ontario then assesses each insurance company that issues liability policies for motor vehicle accidents in Ontario, and each of those insurance companies has to pay the assessment against it to the Province of Ontario. The Ontario Superintendent of Insurance has the power to suspend or cancel the insurance company’s licence to issue insurance policies in Ontario for failure to pay this assessment.
(b) Because motor vehicle liability insurance companies have already paid their assessments which cover OHIP’s payments for hospital/medical treatment costs for injuries arising out of motor vehicle accidents, therefore, for an Ontario Permanent Resident to claim for injuries/damages arising out of a motor vehicle accident, he does not have to claim the treatment costs amount incurred by OHIP arising out of his motor vehicle accident in Ontario.
- Slip/Trip and Fall Accident:
(a) For the Province of Ontario, there is no Ministry of Health and Long-Term care assessment for issuance of non-motor vehicle liability policies insurance companies. (The most common of the non-motor vehicle accident injuries is the slip/trip and fall accident injuries.) The Province of Ontario is entitled to recoup the OHIP treatment costs for these injuries. The Province of Ontario thus has instituted the OHIP Subrogation process.
(b) Suppose a person slips and falls on a piece of slippery garbage on the floor in a Mall and breaks his wrist. That person then retains me to claim/sue the Mall for negligence. I then explain to this claimant that, on his behalf, I have to report his accident to OHIP, setting out what injuries he has suffered (broken wrist) and setting out his stays in hospitals and long-term care facilities, also setting out the medical care he has received so far, and what future medical care/hospital stay he may require because of the accident. I further ask OHIP to provide to me a subrogation letter – setting out how much OHIP wants to be paid for the hospital, medical, diagnostic tests (X-ray, MRI etc.), and laboratory tests – treatment costs for this claimant (including future medical/hospital care costs). This subrogation letter further appoints me (the claimant’s lawyer) to also represent OHIP for its subrogation claim.
(c) I will further explain to this claimant that because all the medical doctors in Ontario are paid by the Province of Ontario, their fees are regulated by the province and these fees are usually reasonable. However, hospital stay can cost $1,000 per day, and long-term care facility stay can cost $120 per day. If the claimant has a long time stay in a hospital, the OHIP subrogation claim can be substantial.
(d) OHIP subrogation always has to be paid first before the claimant receives his share of the settlement/award. But if he has a high OHIP subrogation claim (e.g. $10,000 or more), he has to receive a high settlement/award from the Mall to make his claim worthwhile. (Staying in the hospital for 10 days can cost $10,000 – but this is rare because the hospital usually discharges its patient as soon as possible – either discharges him back to his home or discharges him to a long-term care facility.) At the time of the settlement, my legal fee for the client is calculated after deducting the usual disbursements. The usual disbursements deducted include the costs of reports, searches, filing fees and office expenses, and the OHIP subrogation amount. These disbursements are paid off the top. (The Ministry of Health and Long-Term Care pays to me a legal fee of 15% of the OHIP subrogation amount it receives. This OHIP subrogation amount fee is separate and distinct from the legal fee paid by my client to me.)
III. SLIP/TRIP AND FALL
- Slip/Trip and fall is a common occurrence in Ontario, especially in winter with snow and ice on the ground. A corollary of slip/trip and fall is something falling on one’s head (e.g. a sign falling down from the top shelf in a store). Grocery store with wilted lettuce on the ground can cause slip and fall. Icy parking lot and walkway outside a store can also cause slip and fall. In the springtime, snow and ice melt, underneath the snow and ice are cracks and potholes in the concrete (formed by water sipping into minute cracks in the cement and expanding when that water freezes, forming the larger cracks and potholes) – waiting for the pedestrians to trip and fall on these cracks and potholes. The parking lots and walkways have to be well lit in the evenings. If not well-lit, pedestrians cannot see the cracks and potholes and trip over them, then claim against the owners/occupiers of the parking lot/walkway.
- Against whom do you claim? (In Motor Vehicle Accidents, in addition to claiming against the driver/owner of the other car that hit you or your car, the injured can also claim Accident Benefits. There are no accident benefits in Slip/Trip and fall – you can only claim against the tortfeasor (the party who caused the accident).
(a) Land owner: In Ontario, you can search for the owner of a piece of land through searching in the Land Registry – either by attending at the Land Registry office of the county/region in which the land is located or search online.
(b) Primary tenant of that land: the land owner may have leased that land to a major tenant (e.g. the owner of a Mall/Plaza). E.g. if you slip and fall in a Plaza, you may want to claim against the owner of the Plaza, who is the primary tenant of that land – because the owner of the land may not have done anything which caused your accident. Often, the owner of the Plaza is a numbered company. You then have to do a corporation search to find out the names and addresses of the Directors and Officers of that numbered company, and send your Claim Notice to a Director or Officer of that corporation.
(c) Secondary tenant of that land: The owner of the Mall/Plaza sublets parts of the Plaza to various shops – e.g. a grocery store. If you slip and fall inside a grocery store, you sue the grocery store instead of the owner of the Plaza – because the owner of the Plaza may not have done anything which caused your accident. Again, the grocery store may be owned by another numbered company. Again, you do a corporation search to find the names and addresses of the Directors and Officers of that other numbered company and send your Claim Notice to a Director or Officer of that other numbered company.
(d) Maintenance/Snow removal companies: The party against whom you claim may give to you the name and address of a maintenance/snow removal company whom it claims is responsible to maintain the land and/or to remove the snow and ice on the land. Under the Ontario’s Occupier’s Liability Act, the party which occupies/controls the land has the duty of care to ensure that persons entering the land or while present in the land are reasonably safe. Hiring someone else to maintain/remove ice and snow does not absolve the occupier its duty of care responsibility. So, now you claim against both the occupier of the land and the maintenance company that has the contract/responsibility of maintaining the land and/or remove the snow and ice from the land. (Suppose my client tripped and fell on a pothole in a Plaza, and the Plaza owner gave to me the name and address of a snow removal company that was responsible to remove the snow and ice from that Plaza. But, on the day of my client’s trip and fall, there was no ice or snow on the ground of that Plaza. Both the Plaza owner’s insurance company and the snow removal company’s insurance company contacted me. I explained to both insurance companies that there was no ice or snow on the ground of the Plaza on the day of the accident. I then settled with the insurance company of the Plaza owner.)
- Limitation periods for Slip/Trip and fall lawsuits: In most circumstances, the law requires that you file your lawsuit for a slip/trip and fall Statement of Claim at an Ontario Court within 2 years of the accident. There are additional Notice requirement if you claim against a municipality or against the government of Ontario or government of Canada.
- What can be claimed?
(a) Pain and suffering;
(b) past and future loss of income;
(c) medical/rehabilitation expenses: medicines, physiotherapy, massage therapy, chiropractic therapy, wheelchair, Tens machine (to alleviate pain) etc. (An extreme example would be remodelling your bathroom or your house to accommodate your injury/disability arising from your slip/trip and fall.);
(d) housekeeping costs (you pay someone to do your housework for you because your injury prevents you from doing housework – both housework inside the house and gardening outside of the house. e.g. apart from the usual cutting grass and clearing snow, you have a Japanese garden – you are unable to do the gardening after the accident, and you pay a gardener to do the gardening for you in your Japanese garden. You then claim the cost of the gardener who gardens for you in your Japanese garden); and
(e) miscellaneous expenses: e.g. Your injury from your accident prevents you from driving. You take a taxi to travel from your home to the physiotherapy clinic, then take another taxi to travel from the physiotherapy clinic back to your home. You claim the cost of those taxis.
(Because all these processes required before you can commence your claim and the loss items you can claim for may change, you should consult a Personal Injury Lawyer before you commence your claim process.)
- SPECIAL TORTFEASORS
- There are special tortfeasors against whom you are not allowed to claim slip/trip and fall injury damages unless you give to them proper notices at proper times.
(a) Section 44(9) of the Ontario Municipal Act states the following:
“44(9) Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk.”
(b) The key words in that subsection are: “gross negligence”, “municipality” “snow or ice”, and “sidewalk”.
(c) To sue the municipality, a Notice about the accident must be served on the municipality within 10 days of the accident. Further, a Statement of Claim has to be filed at an Ontario Court within 2 years of the accident (same as any other slip/trip and fall cases). Because the Notice requirement may change, you should consult a Personal Injury Lawyer before you serve your Notice. The 2 year filing limitation period has existed for many years; however, it is always prudent to check this filing limitation period as soon as possible.
- Province of Ontario:
(a) Province of Ontario is a property owner. A pedestrian can slip/trip and fall on a Province of Ontario owned property.
(b) The Province of Ontario owns properties in Ontario. It also owns some provincial highways. To sue the Province of Ontario for a slip/trip and fall, you not only have to give the 10 day Notice to the Province, but also have to wait for 60 days after the service of the Notice before you can file your Statement of Claim at an Ontario Court against the Ontario Provincial Government. Also, you have to file your Statement of Claim at an Ontario Court within 2 years of the date of the accident. (Again, these Notice and filing requirements can change, so you should consult a Personal Injury Lawyer as soon as possible after your accident.)
Slip/trip and fall claims against the Canadian Government is complex. I am leaving this topic to another article to explain the process to pursue a slip/trip and fall claim against the Canadian government.