Smitiuch Injury Law - Toronto Personal Injury Lawyers
SMITIUCH INJURY LAW 15 CELEBRATING 2001-2016
Call For A Free Consultation
Toll Free 866.621.1551
Toronto Office 416.621.1551
Brantford Office 519.754.1558
Simcoe Office 519.426.9332
Hamilton Office 905.777.7907

Trial & Arbitration Awards

TRIAL DECISIONS

Chiocchio v City of Hamilton et al.

On December 7, 2016, the Honourable Mr. Justice Skarica released his Reasons for Judgment after a trial before him in Hamilton. This action arose from a tragic motor vehicle accident which resulted in the Plaintiff (our client) being rendered a quadriplegic. The losses and damages suffered by the Plaintiff were considerable. The trial proceeded before Justice Skarica on the issue of liability only. While one of the Defendants admitted some fault for the accident, the main issue was whether the City of Hamilton was liable also.

The evidence during the trial established that the intersection in question had a history of accidents and that the City failed to paint the stop line at the intersection despite the recommendation to do so. The visibility at the intersection also became poor the further back that a motorist stopped. In the end, Justice Skarica found the City of Hamilton liable and apportioned fault at 50% against the City and 50% against the Defendant driver. In finding liability against the City, Justice Skarica concluded as follows:

"In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair."

Click here to read the complete Reasons for Judgment. (Chiocchio v Ellis, 2016 ONSC 7570 (CanLII))

Peter Cho and Michael Smitiuch were trial counsel for the Plaintiffs.

Dabor et al v Southbram Holdings Ltd et al.

On June 3, 2016, a Toronto jury returned a verdict in favour of our clients after three weeks of trial. This action arose from the Plaintiff’s fall from a metal stud located above a drop-down ceiling to the floor ten feet below. The Plaintiff suffered a comminuted calcaneous (broken heal) and continues to suffer with significant pain.

This was a unique case in that the Plaintiff was an independent contractor performing regular work at a warehouse owned and occupied by the Defendants' corporations. Neither of the parties had workers’ compensation coverage. It was alleged by the Defendants that the Plaintiff was the author of his own misfortune and as an experienced contractor he should have performed the work more carefully. In addition, they argued that the Plaintiff did not raise any safety concerns with the work he was being asked to perform and that he had in fact completed the same task safely one week before his fall.

Even before this case made it to trial, the Defendants had brought a summary judgment motion to try and put a stop to the lawsuit. Peter Cho of Smitiuch Injury Law successfully fought off this motion and the case continued on.

During the trial, we called numerous witnesses, including an orthopaedic surgeon, family physician, specialist pain doctor and a forensic accountant. In the end, the jury found the Defendants 38% responsible for failing to give clear instructions to the Plaintiff, failing to have a safe pathway above the ceiling and failing to provide the necessary equipment for the job. The jury assessed damages at $515,000.00 plus interest and the Plaintiffs beat the Defendants’ formal offer to settle.

This verdict was significant because it serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.

Michael Smitiuch and Peter Cho were trial counsel for the Plaintiffs.

Stilwell v Corning

After 6 weeks of trial, the jury awarded our client $1.3 million for damages. The verdict was upheld by the Court of Appeal in 2014.

The decision can be read by clicking on one of these links:

Stilwell v. World Kitchen Inc. et al., 2013 ONSC 3354 , Stilwell v. World Kitchen Inc., et al., 2013 ONSC 5360 , Stilwell v. World Kitchen et al., 2014 ONCA 770

Bhatt v William Beasley Enterprises Ltd

After a 7 day trial before a judge alone, a judgment was rendered which awarded our client, an 11 year old boy who suffered a fractured tibia and fibula, and his family damages of $304,863.26, plus legal costs.

The decision can be read by clicking on this link:

Bhatt v. William Beasley Enterprises Limited, 2015 ONSC 2168

Flammia v Royal Glen Eagle

After a 4 week jury trial, the jury awarded our clients $1.887 million in damages and the defendants were found to be 65% liable.

The decision can be read by clicking on one of these links:

Flammia v. Royal Glen Eagle, 2014 ONSC 7522 (CanLII) , Flammia v. Royal Glen Eagle, 2015 ONSC 1465 (CanLII)

LEGAL ISSUES

David Schnarr v Blue Mountain Resorts Limited, 2017 ONSC 114

On January 6, 2017, the Honourable Madam Justice Tzimas released an Endorsement arising from a motion brought by the Plaintiff to have the Defendant’s waiver ruled to be invalid as it offended the Consumer Protection Act ("CPA"). The Plaintiff relied on subsections 7(1) and 9(3) of the CPA which state that consumer rights and warranties under the CPA cannot be negated or varied and that any term or acknowledgement in a contract which purports to do so shall be deemed void.

The Plaintiff argued that the Defendant, as a supplier of services, failed to provide services of a reasonably acceptable quality in relation to the operation of its ski resort which led to the Plaintiff’s injuries. As such, the Defendant violated the deemed warranty under subsection 9(1) of the CPA. In addition, the Plaintiff argued that the Defendant, as an occupier, was negligent and breached its duty of care under the Occupiers’ Liability Act ("OLA"). Plaintiff’s counsel argued that the Defendant wore two ‘hats’ by acting as an ‘occupier’ and as a ‘supplier’ of services and as such, should not be permitted to rely upon their broad and all-encompassing waiver which prevented claims from being advanced arising out of negligence and breach of any and all duties.

This is the first decision from the Court ruling on the interplay between the CPA and the OLA in relation to waivers of liability in the recreational industry. Madam Justice Tzimas noted that this was a novel legal question. The question was whether a Defendant may rely upon a broad and all-encompassing waiver to limit their liability when it acts as both an ‘occupier’ and as a ‘supplier’.

In her Endorsement, Madam Justice Tzimas reviewed and considered the history of waiver case law and the foundation and interpretation of both the OLA and the CPA. Madam Justice Tzimas noted that this issue had application on the recreational industries, not only in Ontario, but across the country.

Madam Justice Tzimas concluded that the Defendant’s waiver was too broad and all-encompassing such that it offended the requirements of the CPA. Madam Justice Tzimas ruled that by operation of subsection 7(1) of the CPA, a Defendant cannot disclaim liability for any breach of the deemed warranty contemplated by subsection 9(1) of the CPA. The Defendant’s waiver was read down to exclude protections from any claims advanced under the CPA. The remainder of the Defendant’s waiver, as it pertained to negligence under the OLA, was found to be enforceable. In sum, the Plaintiff was permitted to pursue two distinct causes of action, a negligence claim, which would be subject to potential waiver defences, and a breach of warranty claim which would not be subject to any waiver.

Peter Cho was counsel for this Motion.

The full decision can be read by clicking here: David Schnarr v Blue Mountain Resorts Limited, 2017 ONSC 114 (CanLII)

Dabor et al v Southbram Holdings Ltd et al.

The Plaintiffs were successful in defeating the Defendants' summary judgment motion to dismiss the Plaintiffs' claims. The Plaintiffs' claim arose out of a slip and fall incident.

The decision can be read by clicking on this link:

Dabor et al v. Southbram Holdings Limited et al., 2013 ONSC 5425

Whitters v Furtive Networks Inc.

The Plaintiffs were successful in defeating the Defendant's motion to strike the Plaintiffs' claims based on the expiry of the two year limitation period. The Plaintiffs' claims arose from flooding damage to their home. Leave to appeal was denied by Divisional Court.

The decision can be read by clicking on this link:

Whitters v. Furtive Networks Inc., 2012 ONSC 3572 , Whitters v. Furtive Networks Inc., 2012 ONSC 2159

Wilson v Arseneau

The family members of a deceased Plaintiff, who committed suicide after her motor vehicle accident, were successful in being added to the Plaintiff's lawsuit more than two years after the accident occurred in order to pursue claims under the Family Law Act.

The decision can be read by clicking on this link:

Wilson v. Arsenault, 2012 ONSC 2879

ARBITRATION DECISIONS

DiMarco and Chubb

Marilena DiMarco was riding her bicycle on a sidewalk to avoid a street fair. She tried to swerve around a parked van, lost her balance and fell, breaking her hip. Her auto insurer, Chubb, took the position that this was not an "accident" and, therefore, no benefits were payable. We convinced Arbitrator Pressman that she was, indeed in an "accident" because the parked van caused the fall.

Maude and State Farm

We successfully convinced Arbitrator Arbus that Marilyn Maude's injuries met the definition of "catastrophic", and that she was entitled to income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits, as well medical treatment and rehabilitation, all which had been denied by State Farm Insurance.

Batuszkin and TD Insurance

Samantha Batuszkin was denied income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits, as well as rehabilitation treatment by her insurer, TD Insurance. We successfully argued that Ms. Batuszkin required these benefits. TD Insurance then refused to pay her expenses for the arbitration hearing and we were successful in having TD pay her expenses.

Cox and Aviva

Dale Cox fell off a bicycle and sustained a catastrophic head injury. He recalled an unidentified white vehicle sideswiping him, but the van did not stop. There were no witnesses, the police were not called (he did not think that they could do anything), and his wife eventually threw out the only piece of physical evidence: the damaged bicycle. Aviva Insurance took the position that his was not an "accident". We successfully convinced Arbitrator Alan Smith that it was, and Mr. Cox was entitled to accident benefits.

Little and Pembridge

Just prior to arbitration for numerous denials, Pembridge Insurance raised a number of preliminary issues in an effort to thwart Janice Little's attempt to dispute numerous denials by her insurance company. Arbitrator Alves agreed with our position and allowed Ms. Little to proceed to arbitration.

In The News

  • October 14, 2016 - Read the Hamilton Spectator story to find out how regulation changes are affecting an Ontario family
  • October 3, 2016 - The Fall 2016 issue of our newsletter, Disclosure, is now available.
  • October 11, 2016 - Michael Smitiuch discusses the impact of recent auto insurance changes - CBC Toronto Metro Morning and Ontario Morning
  • October 3, 2016 - The Fall 2016 issue of our newsletter, Disclosure, is now available.
  • September 28, 2016 - Peter Cho & Michael Smitiuch give talk about the Stilwell v. Corning case
  • September 26, 2016 - New Associate Lawyer joins the firm - Mr. Matthew Nieuwland
  • September 22, 2016 - Michael Smitiuch Co-Chairs & Speaks at The Law Society of Upper Canada Program
  • August 2, 2016 - Two New Articling Students Join Smitiuch Injury Law
  • July 26, 2016 - We are growing again! We are looking to hire a full time Law Clerk in our Tort department.
  • June 30, 2016 - Read Mike Smitiuch's article this week in Lawyers Weekly on increased use of video evidence in civil cases
  • June 29, 2016 - 2016 Smitiuch Injury Law Scholarship Recipients Announced - St. John's College & Assumption College, Brantford
  • May 26, 2016 - Michael Smitiuch discusses the changes to Ontario's auto insurance on CBC Radio Ontario Morning
  • January 4, 2016 - Articling Student Joins Smitiuch Injury Law
  • December 21, 2015 - 49th Annual CP24 CHUM Christmas Wish 2015 Toy Donations
  • December 10, 2015 - Michael Smitiuch selected as a Legal Expert by Global Law Experts
  • November 20, 2015 - Smitiuch Injury Law staff volunteers at The Toronto Lawyers Feed the Hungry Program
  • November 18, 2015 - Bola Damages Suit Against Toronto Police
  • November 18, 2015 - Family Files $5 Million Damages Suit Against Police
  • October 27, 2015 - The Fall 2015, issue of the Smitiuch Injury Law newsletter, Disclosure, is now available.
  • September 16, 2015 - We are pleased to announce the opening of an office in Hamilton!
  • September 15, 2015 - Should Ontario's legal regulator ban lawyer advertising?
  • September 9, 2015 - Chris Jackson awarded OTLA's 2015 Outstanding Law Clerk Award
  • August 13, 2015 - Family Whose Son Died in Muzik Club Shooting Mourns Loss and Looks For Answers
Read More
EMAIL US FOR A RESPONSE

Contact Our Firm Free Consultation

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an lawyer-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Toronto Office
3280 Bloor Street West
Centre Tower, Suite 800
Toronto, Ontario M8X 2X3

Toll Free: 866-621-1551
Phone: 416-621-1551
Fax: 416-621-1558
Toronto Law Office Map

Brantford Office
330 West Street
Unit 6
Brantford, Ontario N3R 7V5

Phone: 519-754-1558
Fax: 519-754-1580
Brantford Law Office Map

Hamilton Office
1 Hunter Street East
Hamilton, Ontario L8N 3W1

Phone: 905-777-7907
Fax: 416-621-1558
Map & Directions

Simcoe Office
16 Norfolk Street South
Simcoe, Ontario N3Y 2V9

Phone: 519-426-9332
Fax: 519-754-1580
Simcoe Law Office Map