THE DUTY TO ACCOMMODATE: TENANT RIGHTS

The Human Rights Code confirms that everyone has the right to be free from discrimination and harassment due to disability or perceived disability. This right extends to landlord and tenant relationships. It is unacceptable for a prospective tenant to be refused a rental opportunity due to disability. It is also unacceptable for a tenant to be harassed or treated unfairly by his or her existing landlord due to disability.

Whether due to acquired or traumatic injury, brain and spinal cord injuries can result in numerous accessibility issues within a home environment. Issues may arise due to physical or cognitive impairment and may relate to problems with home entrances, door and hallway widths, counter and cupboard heights, stairs, bathroom layouts, flooring styles etc. Making a home accessible can be a significant undertaking.

Landlords have a duty to accommodate tenants who have real needs as according to the Code. This duty requires that landlords actively work with tenants to find the best solutions to address the identified issues and it also requires that the accommodations be quickly implemented. Where accommodations can’t be quickly implemented, interim measures are to be put in place.

Despite this, and even when private funding is available, landlords sometimes resist this duty of accommodation. Quite sadly, my experience has been that some landlords attempt to refuse even simple accommodations such as installing ramps and grab bars, citing concerns that such installations would cause damage within the unit or to its exterior. Others may try to suggest that to accommodate the tenant would cause unacceptable disrupt to other tenants.

Under the Code, Landlords have a duty to accommodate the needs of their tenants and they must take steps to remove existing barriers, unless to do so would cause undue hardship.

There are only three conditions used in the assessment of whether an accommodation would cause undue hardship:

– Cost
– Outside sources of funding, if any
– Health and safety requirements, if any

No other considerations are to be factored into accommodation decisions. The onus of proving that a requested accommodation would cause undue hardship rests with the landlord.

When resistance exists, the task of educating landlords may fall on the tenant and his family. Such a discussion may not always be productive but it is an important first measure in attempting to overcoming dispute. When disability has arisen due to motor vehicle accident, or other negligence based events, the rehabilitation team members and the personal injury law firm may also opt to speak to the issues with the landlord.

Thankfully, landlords do typically respond well to a discussion about human rights. However, when landlords maintain a refusal to accommodate, escalation of a dispute may be necessary. If you or your loved one is suffering unyielding discrimination or harassment at the hands of a landlord, complaint may be filed at the Human Rights Tribunal of Ontario at:

Toll Free: 1-866-598-0322
TTY: 416-326-2027
Website: www.hrto.ca

THE “MOVE OVER” LAW IN ONTARIO

The “move over” law was enacted in Ontario back in 2003. Sections 159(2) and (3) of the Highway Traffic Act require drivers to slow down and proceed with caution when approaching an emergency vehicle on the side of the highway with its lights on. If it can be done safely and there is more than one lane of travel, the driver must vacate the lane adjacent to the emergency vehicle.

When a driver fails to slow down and/or move over, he or she could be fined up to $2,000 and three demerit points for a first offence. For each subsequent offence, the fine will be no less than $1,000 and no more than $4,000. The driver could also face a jail term of up to 6 months and a licence suspension of up to two years.

Despite being enacted over 10 years ago, hundreds of drivers continue to be completely unaware or simply non-compliant with this law. Since January 2015, the Ontario Provincial Police have ticketed over 700 motorists for ignoring the “move over” law.

Failing to move over for emergency vehicles puts emergency workers, and those stopped by or in need of emergency workers, in serious danger. Since 1989, 5 Ontario Provincial Police officers have been killed in roadside accidents. The most recent police officer to be killed on the roadside was in 2000. Many more have been injured in roadside accidents.

It is very important to stay alert and avoid distractions while driving. If you see an emergency vehicle with its lights on at the side of the road, stay calm, slow down, and do not make any sudden maneuvers. Before you change lanes, consider the road conditions and the surrounding traffic. Use your mirrors to check your blind spots and signal and brake accordingly. If we all adhere to the “move over” law, our roadways and our emergency workers will be that much safer.

Staying Out Of The Shallow End Of The Office Pool?

Ontarians are increasingly trying to better their chances of winning the lottery by sharing the cost of buying their lottery tickets with co-workers. The concept is simple in theory, by pooling your money together with friends and/or co-workers you can buy many more tickets with various numerical combinations.

The simplicity of the office lottery pool can be easily lost when a winning ticket is drawn. This is because most office pools are set up in an informal manner. After all, who needs to create rules to account for how to manage something as unlikely as winning the lottery? Who needs rules when we trust our co-workers to do the right thing and share in the joy of wealth?

Whether you organize or play in an office pool, it is wise to remember the expression “money changes everything”. People play the lottery to win. For this reason, it is good practice to know who in the office is in the pool, how are they paying to play, and who is accepting the responsibility of making sure the tickets are bought.

The Ontario Lottery and Gaming Corporation website provides an online tool to encourage people to think of how to answer questions relating to Group Play. Those failing to organize an office pool ahead of time risk losing all the joy of claiming a winning ticket.

Oatley Vigmond has developed its own office lottery pool based on the experience it has gained in helping the wrongfully excluded to claim their part of a winning ticket. If you or someone you know has hit the jackpot but had their prize taken away we might be able to help.

By: Shane Henry

What If I Am Injured While Holidaying In The Caribbean?

Many of us choose to get away from the cold climate of Ontario at this time of year. Numerous Ontarians will travel south this winter and stay for a week or two at an all-inclusive resort in Mexico or the Caribbean. Very few of us pause before travelling to consider what would happen if we suffered a serious injury while travelling in a foreign country.

If someone is injured in a foreign country the law that applies to any lawsuit brought by the injured person is the law of the country where the accident occurred. It goes without saying that laws in places like Cuba and Mexico are very different from the laws in Ontario. In addition, your Ontario auto insurance does not provide you with any protection when you are outside of Canada and the United States. Therefore if you are hurt in a car or bus crash in the Dominican Republic the only way you would recover damages is if the law of the Dominican Republic allowed you to do so and if the person or company at fault for the accident had insurance or substantial assets.

How can we protect ourselves before we travel? One way is to purchase travel insurance. This will provide you protection against the cost of unexpected emergencies. You can also check to make sure that your long-term disability and life insurance policies do not have an exclusion that might be triggered by travelling out of the country or by engaging in dangerous activities (e.g. kiteboarding or scuba diving).

There are very limited situations where a person injured in Mexico or the Caribbean would be allowed to sue in an Ontario court. It is therefore important if you are seriously injured in a foreign country to consult an Ontario personal injury lawyer promptly after returning to the country.

By: Ryan Murray

Spring Thaw Dangers

Spring has arrived! Unfortunately, with spring, comes the dangers associated with thawing. The warmer and fluctuating temperatures bring many hazards with it, including black ice, thin ice, falling ice, rising water levels and flows, floods and large and numerous pot holes.

When the temperature fluctuates between above freezing during the day and drops below freezing at night this can create black ice on sidewalks and roadways. It can also result in icicles or sheets of ice forming on roofs at night and then melting and falling off during the day. For this reason, it is important to keep an eye out both overhead and underfoot when walking, and ensure you adjust your driving for the weather and road conditions.

The warmer temperatures also bring thinning ice and eventually rising water levels and an increase in water flow. This is due to the melting snow and spring rains which increase runoff into lakes and rivers. As the water is cooler than the air at this time of year, less water evaporates resulting in raised water levels and increase in water flow. As such, it is important to stay off the ice and stay away from rivers and streams during the spring thaw.

Flooding is also a common occurrence in the spring. Although the weather is (unfortunately) out of your control, there are things that you can do to help avoid flooding in your basement. These include cleaning your eaves troughs and downspouts in the fall and spring, getting downspout extensions to carry water further away from your home, ensuring that the grading around your home slopes away from the foundation wall, ensuring nearby catchbasins (grates) are clear from debris and sealing any holes or cracks in your foundation.

Finally, the fluctuating temperatures cause large potholes to pepper the roadways come spring. Large potholes can cause serious damage to your vehicle, including damage to your tires, rims, steering alignment, suspension, exhaust system and engine. Given this, it is important that you keep a proper look out when driving and keep the pressure in your tires at the recommended levels. If you see a pothole and intend to swerve around it or slow down, be sure that the road around you is clear of other vehicles before doing so. If you damage your vehicle in a pothole, you can make a claim to the municipality where the pothole was located. However, the municipality will not be responsible if they have met the minimum maintenance standards.
By: Karen Vigmond

Things You Need To Know About Snowmobile Accidents

Snowmobiling can be fast-paced and exhilarating. Unfortunately, snowmobile accidents seriously injure Ontarians every winter.

If you are injured in a snowmobiling accident – even if you are at fault for the accident – you should speak to a personal injury lawyer who is experienced in dealing with snowmobile claims. In Ontario, people whose injuries are caused by the ownership, use, or operation of a snowmobile are able to recover similar compensation available to people injured in motor vehicle accidents.

Snowmobile use is governed by the Motor Snow Vehicles Act and snowmobiles are considered “motor vehicles” under the Insurance Act.

The Motorized Snow Vehicles Act stipulates that snowmobiles in Ontario must be insured if they are used outside the land occupied by the owner of the vehicle. If you are injured in a snowmobile accident, you can apply for no-fault accident benefits from your insurer, even if you caused the collision.

You may be eligible to receive insurance coverage for medical and rehabilitation, attendant care, housekeeping and caregiving expenses, as well as weekly compensation for your income loss. If the snowmobile is not insured, you may be able to claim accident benefits from the Ontario Motor Vehicle Accident Claims Fund, which compensates people injured in car accidents where no other insurance is available.

If someone else caused your injuries through their ownership, use or operation of a snowmobile, you can commence a “tort” lawsuit against the person who harmed you to recover damages for your pain and suffering, lost income, extraordinary medical expenses and costs for your future care as a result of your injuries and impairments. Family members of people who are seriously injured in snowmobile accidents may also have a legal claim against the person who caused the accident.

If a snowmobile causes injury because it malfunctions or its parts are defective, you may have a claim against the manufacturer of the snowmobile and/or the distributor that sold the snowmobile.

Applications for accident benefits and tort lawsuits in Ontario are governed by strict timelines. You need to advise your insurance company within one week of the accident and need to send in your application for accident benefits within one month of receiving the package from your insurance company. You also have to notify the person who caused your injuries if you intend to start a tort lawsuit against them and need to start your lawsuit within two years of the date of the accident or you will not be able to recover any compensation.

There are many deadlines, forms, and procedures to be followed with accident benefits and tort claims for snowmobile accident victims. Hiring a personal injury lawyer who understands and is familiar with this system shortly after your accident will help you access all of the benefits that you are entitled to within the relevant time limits.


by Lara Fitzgerald-Husek

Being Safe Around Thin Ice: Checking Ice Conditions

Whether it is ice skating, ice fishing, or the newest winter trend of kite skiing, Canadians have always enjoyed venturing out onto frozen lakes or ponds. While these activities can bring countless hours of family fun, it is important to be aware of the potential dangers of venturing out on ice.

Ice is never 100% safe. However, there are times when it is less safe than others. Before stepping foot on ice, you should always check the temperature outside. It is important to think in terms of temperature rather than dates when deciding if ice is safe. The winter of 2015-2016 has been uncharacteristically mild and just because the ice was safe this time last year does not mean it will be safe again this year.

Even if there are cold temperatures, other factors can also affect ice conditions. The wind can create a wave action in the water causing ice to break up. Additionally, many believe that snow on a frozen surface makes the ice surface stronger. This is a myth. Snow acts as an insulting blanket and can actually hinder ice formation and growth. A sudden drop in air temperature can also affect ice stability as it can create cracks to form in the ice. Even ice that appears thick can be weak. This is known as “rotten ice.” This ice has frozen and thawed repeatedly, making it potentially fragile even when it appears solid.

While some sections of ice may appear to be stable, ice conditions can vary drastically and within close proximity. When in doubt about ice conditions, do not venture out! You can always contact local ice fishing hut providers for the latest conditions as they perform ice-thickness checks daily.

by Liane Shepley

Why choose a firm that only concentrates on Personal Injury Law?

 

If you or a loved one has suffered a catastrophic injury, choosing a personal injury lawyer is one of the most important decisions that you will ever make.

Unfortunately, personal injury law in Ontario is very complex. In particular, the law relating to injuries suffered in motor vehicle accidents has gone through major changes more than half a dozen times since 1990. Further major changes will come into force on June 1, 2016. Finding the right lawyer can be overwhelming and confusing. How then does someone find the right lawyer?

First, we recommend that you look for a lawyer and a firm that only practices personal injury law. Gone are the days when a general practitioner could provide help to someone with a serious personal injury law claim. Next, look for peer review rankings. These include the lawyer being a Certified Specialist in Civil Litigation by the Law Society of Upper Canada as well as being recommended for Personal Injury Law in publications like Lexpert and Best Lawyers.

Peer review rankings are arguably the only objective standard readily available to persons wishing to assess a lawyer’s competence to handle a complex personal injury case. While such rankings are not perfect and no lawyer would suggest that he or she is superior to another lawyer based solely on such rankings, these rankings are objective and can be very helpful in choosing a lawyer.

Lastly, look for a track record of success. Ask to speak to former clients with similar injuries who were pleased with the result or ask the lawyer for details of their successes at trial.

Given how important the choice of lawyer can be in a serious injury claim, it is crucial that the injured person and their family take their time and give thorough consideration to the matters raised in this posting before making up their mind about which lawyer to choose.

By: Ryan Murray

Liability Waivers

One of the things I am most frequently asked about is liability waivers. Specifically, what happens if you sign a liability waiver and then are seriously injured during an activity?

For those who are unfamiliar, when a person participates in almost any event, such as mountain biking, a running race or downhill skiing, they are asked to read and accept a number of conditions. These conditions typically include a clause whereby you assume all risks associated with an activity and agree not to sue the operator of a resort or organizer of an event in case you are injured.

While there are many complexities and nuances surrounding the law of waiver, they are typically enforceable. Courts in Ontario and across the country have agreed that where an adult has signed a document they are bound by its terms. This includes situations where a party claims not to have read the document in question – the host is entitled to rely on a signed waiver as evidence that the risk has been assumed.

There are, however, exceptions to the general rule. These include the following:

The risk is not outlined – contracts must be read narrowly. If the waiver signed by a participant does not cover a risk specifically, the injured party may have a claim. For example, if you signed a waiver regarding skiing but were injury in a slip and fall in the chalet, the waiver may not be effective.

There is misrepresentation – if the host of an event misrepresents the purpose and effect of a waiver, it will not be enforceable.

The person does not have capacity – a waiver is not enforceable if a person is not an adult or does not have the mental capacity to sign a contract. In the case where someone is obviously impaired by alcohol or drugs, a waiver may also not be enforceable.


When I am asked this question, the advice I give is always the same – while the situation is likely bleak, consult a lawyer. They have the expertise to review the nature of your accident and the waiver to determine if you have an avenue to recover for your injuries despite signing a waiver.

By: Kevin Henderson

Before You Head South: What Canadian "Snowbirds" Should Know About Car, Home and Health Insurance.

Flocks of Canadian “snowbirds” head south to warmer parts of the U.S.A. and abroad to avoid the freezing temperatures at home. Before you travel, however, you should take a moment to review your car, home and health insurance to make sure that you are properly insured in the event something happens to you (or your car or home) while you are on vacation.

Car Insurance

If you have an Ontario car insurance policy and plan to drive your car south to a vacation in the U.S.A., your Canadian car insurance policy should cover you in the event that you become injured in a collision while on vacation.

You can apply for accident benefits with your Ontario policy and, depending on your policy, may be eligible to receive funding from your car insurer. This funding may include funding for medical and rehabilitation expenses, attendant care expenses, housekeeping expenses. It may also include caregiving expenses or an income replacement benefit if your injuries prevent you from returning to work. If you are injured in a car accident while traveling in the U.S.A., an experienced personal injury lawyer in Ontario can help you.

If you are flying south and will be renting a car when you arrive in the U.S.A., your Ontario insurance policy should respond to your claim for accident benefits and should also provide you with coverage for injuries that you may have caused to others or property you damaged. Your car insurance may not automatically cover the cost of damage to the rental car. You can contact your insurance company to ensure that you are covered while driving your car or a rental car in the U.S.A. and you may be able to purchase an additional endorsement to cover the cost of damage to a rental car. You can also see if your credit card offers insurance that will cover property damage to a rental car.

You may need to purchase extra insurance if you will be gone or using a rental car for more than 30 days or if you are making your southern destination your exclusive place of residence in the winter.

Home Insurance

Home insurance policies in Ontario differentiate between homes that are “vacant” and homes that are “unoccupied”. Home insurance policies are not all the same and the definition of “vacancy” and “unoccupied” that applies to you will be included in your insurance policy.

The definition of “vacancy” in a policy usually applies to situations where the occupants of the house have moved out and the house is empty. The definition of “unoccupied” usually applies where you are away from home for 4 or more consecutive days. If your home is going to be unoccupied for a period of time, you need to arrange for someone to check in at your home (the frequency of required visits may be included in your insurance policy) and you should also drain your pipes and shut off your water supply to reduce the risk of flooding.

If damage occurs to your home while it is unoccupied and you have not complied with the requirements in your policy, your insurance may not cover you for certain types of losses, like flood damage caused by frozen pipes or appliances like dishwashers. Some policies will still cover your while your home is unoccupied, provided you make special arrangements to monitor the home while you are gone. If your home is vacant for 30 or more days and you have not advised your insurer of that fact, your entire insurance policy could be void.

Before you go on vacation, you should contact your insurance company or broker to confirm what you need to do to ensure that you will be covered if anything happens while you’re gone.

Health Insurance

It is always a good idea to obtain travel medical insurance before going on vacation to help protect you from huge and unexpected health expenses. Almost all health insurance policies have an exclusion clause stating that if you have a certain pre-existing health conditions which are not “stable” in the three months before the effective date of the policy, the policy becomes void.

Definitions of medical stability are very strict and being referred to a specialist or changing your medication could be enough to trigger the exclusion. If you have pre-existing medical issues, you can still purchase health insurance but you must ensure that you answer all of the insurer’s questions truthfully and candidly so that your policy will cover you in the event of an unexpected health expense.

As with your car and home insurance, you should speak with your insurance company before going on vacation to confirm that you are covered for the duration of your trip.

By: Lara Fitzgerald-Husek

Accidents with Uninsured Drivers: What Happens Now?

What happens when you are injured in Ontario as a result of a motor vehicle accident and the driver of the vehicle who struck you did not have insurance coverage? You may be asking yourself: Will I be able to obtain medical and rehabilitation assistance, income replacement, and other benefits that I require?

The answer is yes. If you have automobile insurance, an Application for Accident Benefits will have to be submitted to your own insurer. It is your own insurer who will be responsible for providing you with reasonable and necessary accident benefits. It is also important to note that applying for these no-fault benefits does not affect your insurance premiums. If, however, you do not have your own automobile insurance, and no other automobile involved in the accident has insurance, or can be identified, you may be eligible for accident benefits from the Motor Vehicle Accident Claims Fund (MVACF).

The MVACF is a government fund. It is considered the payor of last resort. This means the fund provides accident benefits and other coverage to people injured in automobile accidents when there is no other automobile insurance that exists that can respond to a claim. Benefits for injured persons provided by MVACF are:

• Statutory Accident Benefits directly to persons involved in an automobile accident, who have no other recourse to automobile insurance.

• Compensation for personal injury or property damage to victims involved in an automobile accident with an uninsured or unidentified driver, or stolen vehicle when no liability insurance exists. This coverage is capped at $200,000.

It is important to note that the MVACF will not provide Accident Benefits when the accident was outside of Ontario or, in most cases, if the accident was in Ontario but the injured individual(s) does not reside in Ontario.

If you or a loved one find yourselves in this situation, a personal injury lawyer can help with this complex claim. They can ensure that forms, documentation, and information are supplied in a timely manner so that you or your loved ones can obtain access to the much needed Accident Benefits required in order to rehabilitate back to health after suffering serious injury.


By: Josie Skelly