The cool fall air has finally arrived. Cords of wood are being delivered and wood stoves are being fired up. Gas fireplaces are being flicked on.
The best way to prevent injury and loss from fire is to be prepared. But when you have been affected by fire, you need to know your legal rights and options for seeking compensation.
If you have suffered damage to your home or property due to fire or smoke damage, you need to be proactive in dealing with your homeowners insurance company to make a fire insurance claim. Call your insurance agent or company immediately.
Fire loss claims are complex and time-consuming. You will be required to submit a “proof of loss claim” as soon as possible, with a time limit in which to do so under your policy. If you are displaced from your home, you may claim living expenses. You may have the option to repair or rebuild your home and it is important to have the right appraisers and contractors working for you. Your insurer may deny your claim based on misrepresentation on your application, failure to advise your insurer of a change of use in the property or that a renovation has been completed. You may need to resort to legal action to obtain compensation from your insurer.
Damage to homes and personal belongings are not the only devastating effects of a fire. On average, 19 children aged 14 and under are killed by fire or smoke each year in Canada and nearly 600 are hospitalized. Fire victims suffer physical pain and emotional trauma. The recovery process for burn injuries can be excruciating and lengthy.
You may have the right to bring a claim for damages against a negligent party who caused a fire, including property designers, owners, managers, landlords and product manufacturers. A fire can be caused by a failure to maintain or replace wiring, improper storage of flammable materials, lack of or defective fire and CO2 detectors, obstruction of fire exits, non-compliant building code construction, exploding propane or gas tanks, etc. Also, the origin of a fire may be the result of defective products, including electrical equipment, wiring, circuits or heaters.
And what about your duties and obligations? It’s the law in Ontario for homeowners to have working smoke alarms on every storey of a home and outside all sleeping areas. Landlords are responsible for ensuring their rental properties comply with the law. Tenants of rental properties who do not have the required number of smoke alarms should contact their landlord immediately; it is also against the law for tenants to remove the batteries or tamper with an alarm in any way. Failure to comply with the Fire Code smoke alarm requirements could result in a ticket for $235 or a fine of up to $50,000 for individuals or $100,000 for corporations.
Ontario fire statistics reveal that in about 50 per cent of fatal home fires, the victims had no smoke alarm warning. Smoke alarms are a proven way to prevent injuries and death from fires - see more here.
The Ontario Ministry of Community Safety & Correctional Services provides numerous resources (click here) about keeping your loved ones and property safe from fire.
Let it snow, let is snow, let is snow......What am I obliged to do, as a homeowner, for snow and ice?
In Ontario, homeowners have a a duty to keep their property reasonably safe for others.
Section 3 of the Occupiers’ Liability Act (Ontario) reads:
“3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.”
This means that you, as a homeowner, need to keep your driveway, steps and the like reasonably clear of snow and ice for others who visit you, including delivery people, guests and even strangers, such as canvassers and people trying to inspect your hot water heater to sell you an allegedly better program.
If you do not, you may face liability for failing to keep your property reasonably safe for others.
While home insurance is designed to offer some protection to you, it is important that you act reasonably to keep your property reasonably clear of ice and snow – you should not do nothing and rely on a home insurance policy to protect you if you are sued. Claims will also cause your premiums to increase, too, if your home insurer does not decide to drop you as a insured client altogether if you make a claim and you failed to take reasonable steps to keep your property reasonably clear of ice and snow.
There is also a question in Ontario about whether a homeowner must also take reasonable steps to keep the municipal sidewalk clear of dangerous snow or ice. The best practice is to keep it monitored and, if the municipality is not properly clearing it regularly and keeping it in good condition, taking steps should be considered, such as shoveling, using sand or salt and calling the municipality to attend to take proper steps.
You should take these steps as soon as you can after a snowfall or ice build up. If you are too busy or away, you should consider hiring a snow removal contractor to help you or ask a neighbour to do it for you temporarily.
Avoid a lawsuit, be winter safe at your home.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
Ontario government amended Regulation 364/20 to establish additional COVID-19-related requirements for Ontario businesses and other organizations.
The Regulation now requires businesses and other organizations to ensure that any person - including but not limited to employees - wears a mask or face covering whenever the person is in an indoor area or in a vehicle that is operating as part of the business or organization.
The Regulation sets out a number of specific exceptions to the mask requirement. Most notably for employers, individuals are not required to wear a mask if they:
Have a medical condition that inhibits their ability to wear a mask or face covering;
Are unable to put on or remove their mask or face covering without the assistance of another person;
Are being accommodated under the Accessibility for Ontarians with Disabilities Act;
Are being reasonably accommodated under the Human Rights Code;
Perform work for the business or organization, are in an area that is not accessible to members of the public, and are able to maintain a physical distance of at least two metres from every other person while in the indoor area.
The amended Regulation expressly states that a person is not required to provide evidence to demonstrate that they fall within one of the exceptions.
As the number of new cases continues to rise, the province is taking more action to prevent and stop the spread of the virus and avoid future lockdowns.
These new restrictions were adopted through the amended order O. Reg 364/20 (Rules for Areas in Stage 3 under the Reopening Ontario [A Flexible Response to COVID-19] Act, 2020).
They include mandating the use of face coverings in all public indoor settings across the province, such as businesses, facilities and workplaces, with limited exemptions, including corrections and developmental services.
The best way to stop the spread of COVID-19 (coronavirus) is by staying home and avoiding close contact with others outside of your household.
When you do go out, you must use a face covering (non-medical mask, such as a cloth mask) in public indoor spaces and whenever physical distancing is a challenge.
public spaces (for example, inside stores, event spaces, entertainment facilities and common areas in hotels)
workplaces, even those that are not open to the public
vehicles that operate as part of a business or organization, including taxis and rideshares
Face coverings will not stop you from getting COVID-19, but may help protect others.
Medical masks (surgical, medical procedure face masks and respirators like N95 masks) should be reserved for use by health care workers and first responders.
When you don’t have to wear a face covering
There are some situations when you do not need to wear a face covering.
You do not need medical documentation to support any of the exceptions below.
Children do not have to wear a face covering indoors if they are younger than two years old.
Health and accommodations
You do not need to wear a face covering if you:
have a medical condition that inhibits your ability to wear a face covering
are unable to put on or remove your face covering without help from someone else
are receiving accommodations according to the Accessibility for Ontarians with Disabilities Act, 2005 or the Human Rights Code
You do not need to wear a face covering if you are in a:
custody program for young persons in conflict with the law
detention program for young persons in conflict with the law
You do not need to wear a face covering when you are working in an area that allows you to maintain a distance of at least 2 metres from anyone else while you are indoors.
Residences and dwellings
You do not need to wear a face covering in:
university dorms, retirement homes, long-term care homes or other similar dwellings except when you are in a common area and can’t maintain 2 metres from others
residences for people with disabilities (any residences listed in the definition of“residential services and supports”in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008)
Performing or rehearsing
You do not need to wear a face covering while you are performing or rehearsing for a:
film or television production
Temporarily taking off your face covering
You can take off your face covering temporarily:
to receive services that require you to take it off (for example, at the dentist, when receiving some personal care services such as facials, or when you have to verify your identity)
to engage in an athletic or fitness activity
to eat or drink
as necessary for health and safety purposes
Non-medical masks or face coverings should:
fit securely to the head with ties or ear loops
maintain their shape after washing and drying
be made of at least two layers of tightly woven material (such as cotton or linen)
be large enough to completely and comfortably cover the nose and mouth without gaping
Face coverings will not protect you from getting COVID-19. The best way to protect yourself is to:
minimize errands to a single trip where possible
avoid close contact with others and keep at least two metres from others outside your household
wash your hands regularly (or using alcohol-based hand sanitizer if soap and water are not available)
practice proper cough and sneeze etiquette (for example, sneeze and cough into your sleeve and avoid touching your eyes, nose or mouth)
How to properly use face coverings
When wearing a face covering, you should:
wash your hands immediately before putting it on and immediately after taking it off (practise good hand hygiene while you are wearing the face covering)
make sure the face covering fits well around your nose and mouth
avoid moving the mask around or adjusting it often
avoid touching the covering while using it
not share it with others
Face coverings should be changed when they get slightly wet or dirty.
Remove or dispose of face coverings
When removing a face covering, you should:
throw it out into a lined garbage bin
wash your hands
Do not leave any discarded face coverings in shopping carts or on the ground.
If the face covering can be cleaned, you should:
put it directly into the washing machine or a bag that can be emptied into the washing machine
wash with other items using a hot cycle with laundry detergent (no special soaps are needed), and dry thoroughly
wash your hands after putting the face covering into the laundry
All face coverings that cannot be cleaned should be thrown out and replaced as soon as they get slightly wet, dirty or crumpled.
WHAT IF MY KID FAILS THE VIRUS SCREENING IN THE MORNING?
Firstly, if your child has a chronic medical condition, are the child’s symptoms worse or different than normal?
If the same, your kid may attend school (with stable symptoms of a known chronic condition), but speak to your family doctor if you have any concerns.
If yes, call the school and inform them of your kid’s illness. Your kid should stay home and seek medical advice.
However, if your kid was tested they are required self-isolate while the results are pending. If the results are negative, and your kid has no known exposure, attend school when the symptoms are resolved for 24 hours.
If it has been recommended to be tested, but you did not get tested, and if no alternative diagnosis was given, your kid should self-isolate for 14 days from the onset of the symptoms.
The Ontario government is establishing a task force to improve provincial oversight of the towing industry. The task force will help develop a regulatory model that will increase safety and enforcement, clarify protections for consumers, improve industry standards and consider tougher penalties for violators.
The government is taking this action in response to concerns raised about incidents of criminal activity and violence in the towing industry.
The task force will review a number of topics related to the towing industry, which could include provincial oversight of safety, consumer protection, improved industry standards, training and background checks.
As part of the review, the task force may consider opportunities for increased protections for consumers against the first-to-scene unethical business practices, insurance savings through a crackdown on insurance fraud rings or improved consumer choice for payments and repairs. The province is also reviewing ways to improve our transportation system by clearing accidents more quickly which would minimize lane reductions and reduce congestion on our highways.
Membership of the task force will include representatives from the Ministry of Transportation, the Ministry of the Solicitor General, the Ministry of Government and Consumer Services, the Ministry of Municipal Affairs and Housing, the Ministry of Labour, Training and Skills Development, the Ministry of Finance and the Ontario Provincial Police. Once the task force has developed proposals for discussion and comment, it will be consulting with industry, municipalities, and public safety experts.
DID YOU KNOW?
There are approximately 1,600 tow truck companies registered in the Ministry of Transportation’s Commercial Vehicle Operator’s Registration (CVOR) program. A valid CVOR certificate is required to operate a tow truck.
The Consumer Protection Act contains specific tow and storage services rules to help protect consumers who need a tow or roadside assistance in Ontario. The Ontario government is currently reviewing the Act and consumers can provide input through a survey until July 17, 2020, on a number of issues, including towing.
CKL businesses and organizations, did you know that you can arrange for your employees , including management, to complete training to promote understanding and compliance with the (Ontario) Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) .
The training is designed to help every employer and employee learn about his or her rights and responsibilities under the OHSA, including how they affect each employer and employee in the workplace.
An excellent (online) training program is offered by the (Ontario) Ministry of Labour. The program is called “Worker Health and Safety Awareness in 4 Steps”. The program is free.
This four-part e-learning series (approximately 16 minutes) is for public, private and not-for-profit sectors. Each video is approximately four minutes in duration, as follows:
Get on Board
Get In the Know
Get More Help
There is a quiz at the end of each video for each employee to complete, in order to obtain the certificate.
After each employee completes the training program, being a four-part e-learning series, a certificate is issued to that employee. You would obtain and retain these certificates for every employee.
Having certificates for each employee will not only minimize the risk of potential workplace injury, safety violation or non-compliance with the OHSA, but also improve the workplace environment generally.
Having the training/certificates available will also likely assist you in the event of any potential claim or issue in future related to workplace injury or safety contravention – that is good risk management practice.
As you know, workplace injury can create significant liability issues for an employer – every step you can take to minimize that risk and potential exposure is wise.
Phase 2 re-opening in the CKL includes outdoor-only sports and recreational facilities and training for outdoor team sports, with limits to enable physical distancing.
We have both City-run and many private sporting associations and clubs throughout the CKL, including soccer, lacrosse, tennis and others.
So, let the games begin, but only subject to the recommended health and safety guidelines and in accordance with COVID-19 common sense.
Below is a great article that should be consider by any outdoor sporting association or private club, as well as any activity or sporting event presented by the municipality - a must read as we let the games resume in the CKL.
Game On: Reopening sports and recreation during COVID-19
Getting back to sports amidst an ongoing global pandemic is not an easy task. As the economy moves through the re-opening phase, there a number of best practices that sports and recreation organizations, clubs, leagues and facilities should consider to limit their exposure to lawsuits, whether they are for-profit or not for-profit. Below are top risk management considerations for sports organizations.
1. Know the current state of the law and follow it: There is guidance from all levels of government for individuals and businesses alike. Be aware there may be different (and sometimes conflicting) orders from the federal, provincial, regional and municipal levels of government. It is important to know current public health orders and occupancy limits. Make sure you consult any governing or oversight bodies for your particular sport or industry for guidance on how to run your activity safely. Following all guidance, regulations and public health recommendations with due diligence may be your best defence to a potential lawsuit.
2. Implement workplace policies and training: All organizations and employers should consider establishing clear policies or “best practices” to limit the spread of COVID-19, protect the safety of the public and their members, as well as to minimize occupiers’ liability as applicable. Training (and if necessary, pre-screening) for employees, coaches, administrators, volunteers, athletes, customers, guests, etc. must occur before reopening can take place. Below are some examples of actions to protect employees and customers:
Appropriately trained and equipped employees, volunteers and/or contracting parties;
Proper use of personal protective equipment (PPE) as necessary;
Strategic use of flyers and posters to advise employees, staff and others entering the workplace of any risks of within company premises; and
Proper handwashing and physical distancing techniques.
3. Document your efforts: Documentation of cleaning and hygiene protocols will be critical to ensure compliance with public health orders and will help to mitigate potential future claims. If your organization, club or business is going to use or revise waivers or indemnity agreements in the face of COVID-19 make sure to document who signed, how and when.
4. Enforcement of COVID-19 policies and best practices: Consider how you are going to enforce COVID-19 policies or best practices within your organization or business. Prepare and implement an enforcement protocol, providing of PPE, testing, etc. Are you going to require all employees, athletes and guests to wear PPE? If so, how will you provide it and pay for it? Will you conduct pre-screening of employees and/or customers? Are you going to hire security officers? Will you hand out trespass notices to individuals who are not complying with your policies and protocols? Have employees been made aware of the risks they face before they return to work? Are employees aware of their options and the protocols in place if they become ill or exposed to someone who is ill?
5. Funding and programming: Be aware of all forms of funding and subsidies available to your club or organization. These can be critical financial considerations for reopening in the 2020 season. Also consider whether your 2020 season needs to look a little different to comply with public health orders (i.e. is it safe to play your sport? Can training facilities be altered to make physical distancing possible? Should you consider alternate forms of programming or activities during this season? How will a shortened season affect your athletes? Will you offer online/digital programming?)
6. Be aware of privacy issues: Your business or organization should consider (and implement) guidance issued by government agencies, regulators and self-regulatory bodies to help manage COVID-19-related cybersecurity risks. Be aware of privacy concerns for employees, athletes and guests, particularly regarding COVID-19 testing and screening measures (e.g. health questionnaires, temperature testing, etc.).
7. Waiver/notices: Consider whether your organization, club or business is going to use or revise waivers or indemnity agreements in the face of COVID-19. Consider the use of additional warning signage as well as cleaning and hygiene protocols and information. Since transmission and contraction of COVID-19 is a novel area for liability, there is uncertainty as to how a court will treat a waiver in relation to liability for transmission of COVID-19. Keep in mind that waivers will apply differently to employees, contractors, customers and volunteers.
8. Rentals/indemnities: Review all rental agreements and permits for your club, organization or business and consider who will bear responsibility for defending any COVID-19 related claims. If you are renting space to other individuals or organizations, consider whether your future rental agreements require revisions to account for COVID-19 related transmission risks.
9. Insurance: Be aware of what kinds of claims and activities your liability insurance will and will not cover. Speak to your broker.
10. Hire a professional and use available resources: Don’t try to do everything yourself—consider hiring an occupational medicine or occupational health and safety specialist to assist you with the reopening process. Ensure your COVID-19 employment policies are drafted appropriately and in accordance with the applicable provincial legislation and public health guidance. Make sure to reach out to other online and local resources to ensure that you are reopening in compliance with the current state of affairs and to promote the safest possible environment for your athletes, volunteers, employees, guests and customers.
Most of all, be flexible and be aware that there will always be some level of risk. We are living in a dynamic environment with infection rates and testing abilities changing daily. Your club, organization or business needs to be ready to adapt to a rapidly changing world in the hopes that we can all get safely back to sports and play.
Borden Ladner Gervais LLP - Justine Blanchet, Erin Durant, Douglas Smith, Jake Cabott and Noah Bustein, published on Lexology.com on June 9, 2020
The days are getting longer and spring is on the way. But springtime comes with safety challenges and risk of personal injury. Part 2 of our Springtime Safety Series focuses on dog attacks and bites.
As the weather improves in spring, more people like to take their dogs outdoors. And while we picture happy dogs with wagging tails, the reality is that more dogs out in the spring often leads to increased dog bites and attacks, or even being knocked down by an excited dog.
Dog bites and attacks may result in permanent physical and psychological harm, including scarring and risk of infection. Some dog attacks may even prove fatal. Here are some interesting statistics:
The Humane Society of Canada estimates that someone suffers a dog bite in Canada every 60 seconds.
A study by the Canadian Journal of Emergency Medicine concluded that dog bites account for “more injury-related emergency department visits than injuries associated with playgrounds, all-terrain vehicles, rollerblading or skateboards”.
The majority of dog bite incidents involve children.
In dog bite cases in Ontario, the law places “strict liability” for a dog’s actions on the owner. According to the Dog Owners’ Liability Act, all damages and injuries are the legal and financial responsibility of the owner. An owner of a dog may be liable for an attack even if the dog did not previously show a propensity to attack people.
This strict liability also applies to anyone who “harbours” a dog. A person who is not the owner may be found to be harbouring a dog if they are in physical possession and control over a dog just before a bite or attack. For example, family members, friends or even dog sitters or walkers can be seen as harbouring the dog if they were in control of the dog at the time of an attack.
Victims can sue the dog owner(s) for compensation for physical and emotional suffering, housekeeping and home maintenance assistance, medical treatment and rehabilitation, income loss and out-of-pocket expenses.
If the dog owner is a homeowner, most standard home insurance policies include “third party liability” coverage which means that the insurance company will likely respond to a claim if the homeowner’s dog harms someone.
As a dog owner, it is important to understand your home insurance policy coverage. If your dog does harm someone, it is important that you notify your insurance company immediately.
If you are injured by a dog, seek immediate medical attention to ensure you have not contracted any disease. The incident should be reported to your municipal Animal Control Services Department. It is also important to obtain the name and contact information of the owner and any witness information, as well as take photographs of the injury and of the dog itself.
So get out there and enjoy your springtime walk. Just remember that dog owners must be aware of their responsibilities and dog victims should be mindful of their legal rights in the event that such a bite or attack happens to them or a loved one.
The days are getting longer and spring is on the way. But springtime comes with safety challenges and risk of personal injury. Part 1 of our Springtime Safety Series focuses on motorcycle accidents.
Springtime is a great time for getting out the motorcycle for a road trip. However, because of increased motorist, pedestrian and other traffic, there may be increased risks. Also, changing weather in spring (including freeze and thaw conditions) can cause slippery patches on the roadways, causing dangerous driving conditions.
Because of the vulnerability of being in an open and unprotected vehicle such as a motorcycle, the risk of serious injury in a crash increases. Injuries include spinal and muscle damage, road rash, traumatic brain injury and even death.
A recent study suggests that motorcycles account for 10 per cent of all motor vehicle deaths in Ontario and cost the health care system six times the amount of car crashes. Researchers showed that while car safety has improved with rates of severe injuries and deaths from car crashes decreasing significantly over the last 10 years, injuries from motorcycle crashes have remained stable or even worsened.
In Ontario, it is mandatory to have motorcycle insurance for any motorcycle you ride on the roadway. Mandatory motorcycle insurance includes Third Party Liability, which protects you from being held personally liable for damage you might cause to other persons and/or their property. The legal minimum coverage of $200,000 is not adequate protection. Most people have policies with at least $1 million. But increasing your third party liability limits up to $2 million or more (for only a nominal premium increase) is a great idea. Because injuries in a motorcycle accident are often serious, if another insured driver causes serious injury to you or a family member and they only have $1 million in liability insurance, you can access additional coverage from your own insurance company (up to your own liability limits) in order to be fully compensated for all your injuries and losses. Also, having higher liability limits will further protect you from personal liability.
Insurance coverage also includes Accident Benefits which compensate you for medical expenses, rehabilitation, funeral expenses and loss of income following a collision. Accident benefits coverage was drastically reduced as of June 1, 2016. Once again, given the added risk of injury in motorcycle accidents, it is advisable to choose to increase your level of accident benefits coverage in important areas.
If you have been in a motorcycle accident, you also have the right to sue a negligent driver. You may have the right to compensation for pain and suffering if you suffered a “permanent serious impairment of an important physical, mental or psychological function,” according to the Insurance Act. This lawsuit would be in addition to your entitlement to Accident Benefits and may also seek compensation for healthcare expenses, income loss and other losses.
Before you hit the road again this spring on your motorcycle, talk to your insurance providers about increasing your Accident Benefits and liability coverage and make sure you understand what your coverage includes.
Also, protect yourself from springtime motorcycle risks by using appropriate safety gear and being aware of wet and slippery road conditions. Wear proper attire in changing weather to keep you warm, to prevent limbs stiffening and to allow you to react better in unexpected situations. Be aware of increased roadway and pedestrian traffic.
Safety precautions and proper insurance are an essential part of ensuring that you and your family are entitled to care and compensation in the event of a motorcycle collision.
 “Direct medical costs of motorcycle crashes in Ontario” published in CMAJ, November 20, 2017, by Daniel Pincus, David Wasserstein, Avery B. Nathens, Yu Qing Bai, Donald A. Redelmeier and Walter P. Wodchis; http://www.cmaj.ca/content/189/46/E1410