Smitiuch Injury Law - Toronto Personal Injury Lawyers "Helping those who need it the most"
SMITIUCH INJURY LAW 15 CELEBRATING 2001-2016
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Trial & Arbitration Awards

TRIAL DECISIONS

Sparrock v Gurdev Dhillon et al.

On October 5, 2017, a jury in Hamilton returned a verdict in favour of an Ontario Provincial Police officer who was injured in the line of duty. Michael Smitiuch and Peter Cho of Smitiuch Injury Law were the lawyers for the police officer. The trial took almost three weeks and numerous witnesses testified, including medical and financial experts and police officers.

On March 28, 2012, Constable Dave Sparrock pulled over a vehicle for a Highway Traffic Act violation. While he was writing a ticket in his police cruiser (which had all emergency lights on) a transport truck failed to move over and smashed into the cruiser.

The jaws of life were needed to cut Constable Sparrock out of his vehicle and then he was rushed to the hospital. Constable Sparrock was forced to retire early from the police force due to the injuries suffered in this collision.

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

McKnight v HMQ et al.

After a five week trial, a Brantford jury has awarded a driver $2.4 million in damages in an incident involving a snow plow. The driver, 37-year-old Greg McKnight of Brantford was driving home from work westbound on Highway 403 in Hamilton, when a snow plow at the Wilson Street overpass pushed snow and ice onto his car, smashing through the sunroof. McKnight suffered chronic pain and psychological distress.

The two snow plow companies, contracted by the City of Hamilton and Province of Ontario, admitted liability in a case that’s taken nine years to make its way through the courts. On April 20, 2017, the jury awarded $2.4 million to the driver, including $600,000 for pain and suffering damages, $950,000 for loss of income, and $800,000 for cost of care and other expenses.

Peter Cho and Luke Hamer were trial counsel for the Plaintiff.

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

  • July 12, 2018 - Mississauga Nursing Home Found Negligent In Death of Elderly Patient
  • April 9, 2018 - Hamilton Health Sciences 25th Annual Conference on Neurobehavioural Rehabilitation in Acquired Brain Injury
  • February 9, 2018 - Michael Smitiuch Represents an Alberta Dentist in a $5.6 million Lawsuit
  • January 22, 2018 - The Winter 2018 issue of our newsletter, Disclosure, is now available
  • January 11, 2018 - THE LAWYER'S DAILY - Multiple Hospital Suicides Result in Legal Action
  • December 5, 2017 - CBC News interviews Michael Smitiuch about Auto Insurance Reforms
  • October 30, 2017 - BREAKING NEWS: Families Seek to Hold Hamilton Hospital Accountable for Patient Suicide Deaths
  • October 11, 2017 - Hamilton Jury Returns Verdict In Favour of Injured Police Officer
  • September 11, 2017 - THE LAWYER'S DAILY - Ontario Provincial Police using GPS darts make roads safer, could threaten privacy
  • September 7, 2017 - BREAKING NEWS: Suit Against City of Mississauga Raises Questions About Safety of Summer Students
  • July 31, 2017 - Smitiuch Injury Law welcomes two Student-at-law. Caroline Tarjan and Gurjiwan Brar will be articling with the firm for the next 10 months.
  • July 14, 2017 - THE LAWYER'S DAILY - Rethinking the cap on pain and suffering damages
  • July 3, 2017 - THE LAWYER'S DAILY - Will Toronto’s new trial sitting pilot project stand the test?
  • June 30, 2017 - Recipients of the 2017 Smitiuch Injury Law Legal Studies Scholarships are announced
  • June 7, 2017 - Premium sponsorship of FORE the Kids Charity Golf Tournament
  • May 11, 2017 - BREAKING NEWS: $1,000,000 Breach of Privacy Lawsuit Started Against the William Osler Health System and a nurse
  • May 1, 2017 - A Brantford jury awards our client $2.4 million after a five week trial
  • April 24, 2017 - Michael Smitiuch discusses the Marshall Report and the vital role that lawyers play in helping injury victims fight for justice
  • April 6, 2017 - Michael Smitiuch discusses the Madeleine Petrielli $4M lawsuit on Global News - The Morning Show
  • April 5, 2017 - Family files $4M lawsuit against the City of Mississauga, the Region of Peel and others, after their daughter was killed while crossing the street
  • April 3, 2017 - Gold Sponsorship - HHSC 24th Annual Conference on Neurobehavioural Rehabilitation in Acquired Brain Injury
  • March 8, 2017 - UPDATE - The Adam Bari Story - Changes to Accident Benefits entitlement adds to family’s struggle
  • February 15, 2017 - Smitiuch Injury Law staff volunteers at The Toronto Lawyers Feed the Hungry Program.
  • February 1, 2017 - The Dangers of Wired Glass
  • January 19, 2017 - Father and son file $4M lawsuit against TTC over violent Union Station confrontation
  • January 11, 2017 - "Reduced damages a tough fight for killer drunk driver" - Toronto Sun
  • January 11, 2017 - What should you do if you are in a car accident? CBC News Toronto
  • December 23, 2016 - 50th Annual CP24 CHUM Christmas Wish 2016 Toy Donations
  • December 14, 2016 - Toronto man who was wrongly convicted files $4.5M lawsuit against Toronto Police
  • December 12, 2016 - Paralyzed in crash, man wins damages from City of Hamilton over faded stop line at rural crossing (CBC Hamilton)
  • December 7, 2016 - Go to the Trial & Arbitration Awards page to read the Chiocchio v. City of Hamilton et al. summary
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