BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.

In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.

The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.

 

Liz Weston: 4 Steps to Disaster Proof Your Finances

By Liz Weston

THE ASSOCIATED PRESS

Mother Nature could be excused if she wondered, “How much more prompting do you people need?”

This year delivered epic wildfires, devastating hurricanes, massive floods and some pretty horrific earthquakes. Yet many people still haven’t taken a few critical steps to protect their financial lives from such disasters.

Consider setting aside a few hours this week to take care of these four essential tasks:

REVIEW (AND BOOST) YOUR INSURANCE

Most renters don’t have renters insurance, but they need it since their landlord’s policy won’t cover their stuff.

The vast majority of homeowners do have homeowners insurance, but often not enough especially if their policies haven’t been updated regularly to reflect rising construction costs or improvements. Ask your insurer to rerun the numbers to ensure you have enough coverage to rebuild your home completely. United Policyholders, an advocacy group for insurance customers, recommends adding as much “extended replacement cost” coverage as you can afford. This add-on boosts the policy’s coverage limits by 20 per cent to 100 per cent if costs run unexpectedly high, as often happens in disaster zones when rebuilding costs soar. Another smart addition: “building code upgrade” or “ordinance coverage” to pay the higher costs of rebuilding to current standards.

Other key points:

_Homeowners insurance typically doesn’t cover floods or earthquakes, so consider buying those policies if your home may be at risk.

_You want “replacement cost ” coverage for your home’s contents, not “actual cash value,” which will pay only pennies on the dollar to replace your stuff.

_You may need extra coverage if you have certain valuables, such as jewelry, collectibles, guns or computers and other home office equipment. Policies typically limit coverage to $1,500 to $2,500 for each of these categories.

_Opt for generous “loss of use” or “additional living expenses” coverage, since that will pay your rent and other costs while your home is uninhabitable. United Policyholders recommends having at least two years’ worth of additional living expense coverage.

If you’re concerned your coverage limits are too low and your insurer won’t let you upgrade, shop around for a better provider.

SCAN IMPORTANT DOCUMENTS INTO THE CLOUD

You may be away from home or not have time to grab your bug-out bag in your scramble out the door. Keeping documents or copies off site is one solution, but anything in your safe deposit box or lawyer’s office could be compromised by the same disaster that wrecks your home, says financial planner Leonard Wright, who evacuated his family from their San Diego-area home during the 2007 wildfires.

“You want it out of the area,” says Wright, a certified public accountant and personal financial specialist who contributed to a detailed disaster guide that the American Institute of CPAs created with the American Red Cross and National Endowment for Financial Education.

Wright uses DropBox, a file sharing and storage site, for family pictures and Box, a similar site known for its security features, for financial documents. Other cloud services include Microsoft’s OneDrive, Apple’s iCloud and Google Drive. Documents can be scanned with mobile apps or desktop scanners, which typically cost $200 to $400.

Disaster survivors say the following documents can be particularly important, according to United Policyholders:

_Insurance policies

_Passports and birth certificates

_Family photos

_Tax and loan documents

_Stocks and bonds

_Wills and trusts

_Home blueprints or surveys, if you have them

DO A QUICK HOME INVENTORY

This can be as simple as walking around your home, inside and out, recording your stuff with your smartphone’s video camera and storing that video in the cloud. Or you can use an app, such as Sortly, MyStuff2 or United Policyholders’ UPHelp Home Inventory to photograph and itemize your possessions.

ADD EMERGENCY ACCESS TO YOUR PASSWORDS

Security experts recommend using a password manager to securely store unique, hard-to-remember logins for each account while only having to remember one master password. Password managers also can help a trusted person to take over for you if you die or become incapacitated _ but that person needs access to the account. Some password managers let you offer emergency access to others. Another option is to keep copies of your passwords, or your master password, with your estate planning documents. Services such as Everplans and Fidelity Investments’ FidSafe offer online storage with secure sharing options.

Finally, make a note on your calendar to do all this again next year so all your important documents are kept up to date. Investing a few hours each year can pay off in an easier recovery if disaster ever strikes, and peace of mind even if it doesn’t.

_______

This column was provided to The Associated Press by the personal finance website NerdWallet .

5 things to look for as Ontario unveils its new #marijuana law

Ontario is set to introduce legislation Wednesday that would regulate the sale and distribution of recreational marijuana.

The province was the first to announce detailed plans last month for cannabis once the federal government makes it legal in July 2018.

Many of the workaday details of how legal marijuana will work are up to the provinces. Ontario announced some in September, but others may emerge today.

Here are five things to look for in the province’s proposed bill:

Will marketing look more like alcohol or tobacco?

Those arguing for a stricter system for selling recreational pot want an austere system of marketing and advertising it — closer to what we now have for cigarettes. But others, including marijuana producers, want recognizable brands — more of a marijuana version of what we now see in a liquor store. (Marijuana producers want to build brand loyalty.)

Implicit in that debate is a divide over to what extent marijuana use should be normalized under legalization. Is cannabis a barely tolerated vice, or a fairly benign substance that needs a few controls?

Who wins the argument will have a major influence on what the consumer experience of legal pot will be like.

Where will pot use (especially smoking) be allowed?

Under a strict version of legalization, marijuana would only be allowed behind closed doors in private. But looser rules would allow licenced establishments for marijuana, regulated more or less as licenced establishments for alcohol now are.

“That’s going to be a really big deal — the idea of whether or not it’s going to be restricted to private residences, or if they’re going to be allowing licenced establishments like vapour lounges to exist,” says Jenna Valleriani, a University of Toronto PhD student who is studying dispensaries.

Will Ontario soften its government-only approach to marijuana retail?

Ontario has announced that only government-owned stores will be allowed to sell pot personally to consumers, a move that pleased the province’s public-sector employees union. However, no other province has formally said it will go that route, and Ontario’s approach is seen in some circles as extreme.

“They got a lot of blowback on their sole government distribution model,’ Valleriani says. “With an election coming up, it feels like a risky move for them to stick with that model, because people are saying that we are already decentralizing the LCBO more broadly, and pulling that into grocery stores, so is that the model that Ontario wants to see?”

“The way B.C. has responded, and other jurisdictions have responded, has really been that they’re looking at Ontario, kind of gauging the response, and trying to build something slightly different.”

What should be done about 18 year olds?

The federal Cannabis Act sets a minimum age for possession at 18; Ontario has said it will set a minimum age to buy pot at 19, and will penalize 18 year olds found with pot under provincial law, like a traffic ticket.

How this will work in the real world is open to question. Will selling pot to an 18 year old be illegal enough to deter anyone from doing it, for example? What stops 18 year olds from ordering marijuana by mail order from Alberta or Quebec, where the cannabis age will be 18? Can Ontario stop 18 year olds from growing their own (which federal rules will allow them to do) without facing a constitutional challenge?

How far is too far from schools?

The province has said that marijuana retail will not be “located in close proximity to schools.” Will provincial law set a distance in metres, or will that be left to local governments? The number and kinds of things that pot stores can’t be near (schools? daycares? community centres? parks?) and what ‘near’ means will matter quite a lot when it comes time to choose sites for them.

Toronto, for example, has nearly 700 elementary schools and over 140 high schools. If a 250-metre circle was drawn around all of them, it would radically affect where marijuana retail stores could be sited in the city.

 

CDN’s favour anti-texting technology to combat cell phone distracted driving

AVIVA Canada

Distracted driving is one of the leading causes of death on the road. Today, almost everyone owns a cell phone and when your phone sends you a notification, it can be hard to resist the urge to check who’s messaged you or updated their social media status with the coolest thing they’ve seen.

In 2016, 65 people were killed in OPP-investigated collisions due to an inattentive driver compared to 45 in alcohol-related fatal collisions. Speed related incidents accounted for 55 deaths and seatbelt-related incidents accounted for 53.

The RCMP defines distracted driving as, “a form of impaired driving as a driver’s judgment is compromised when they are not fully focused on the road.” Laws around cellphone use and driving are different in each province and territory in Canada. In some provinces, a person can be fined up to over $500 and lose up to four demerit points if charged with distracted driving.

In 2015, Aviva launched the “Driving Change Together” campaign to curb distracted driving. This year Aviva is increasing its efforts with the #avivayolo campaign against texting and driving, asking drivers to share their stories.

As more and more people depend on their cell phones to stay connected, it has also become a distraction for drivers. In a new poll conducted by Pollara Strategic Insights for Aviva Canada, 95 per cent of Canadians said texting and driving by others makes them feel unsafe on the road. A total of 88 per cent of Canadians have witnessed other drivers texting behind the wheel, while only 22 per cent of respondents admitted to texting while driving.

Currently, technology exists in the form of apps and devices that can help drivers stay focused on the road. Some vehicles now have Android Auto or Apple CarPlay that allow drivers to connect their smartphones to the vehicle’s built-in display – providing access to select functions on their phone. Drivers can access maps, music, and even pick up a call. With voice activation, it also allows drivers to stay focused on the road.

In efforts to curb texting and driving Android Auto is also equipped with an auto reply function that allows drivers to tap a preset message back to the sender. Similarly, Apple has developed a “Do Not Disturb While Driving” (DND While Driving) feature for their newest iOS11.  The iPhone 8 launched on Tuesday which includes this new feature.

As an extension to the existing “Do Not Disturb” feature, the iPhone can now detect when you’re driving and block incoming calls, texts and notifications. Your screen will also stay dark. If the “DND While Driving” is activated, your phone can send an automatic response to those trying to reach you – you can also customize the message.

It seems Android, Apple and third-party app companies are on the right track. According to Aviva Canada’s latest poll, the majority of Canadians believe the solution to making roads safer is technology that disables the texting function on a smartphone while a person is driving rather than peer pressure or police crackdowns. Furthermore, 78 per cent said they want to see insurance companies, auto manufacturers and governments work toward a technology solution that would stop distracted driving by disabling texting and other functions while a driver is behind the wheel.

The RCMP reports 80 per cent of collisions are due to drivers taking their eyes away from the road for only three seconds prior to a crash. Texting makes you 23 times more likely to crash. Despite advancing technology, drivers should always be alert and never be distracted while driving.

October is Cyber Security Awareness month

Aviva Canada

Did you know?

In 2016, Canadians lost $40 million to online scams. With identify theft and other online security breaches on the rise, consumers need to be aware of how to protect themselves.

What is identify theft?

Identity theft is when someone uses your personal information – like your credit card, Social Insurance Number or name – without your knowledge or consent, to commit fraud. Some common ID theft scams include creating false lines of credit and making purchases using a stolen bank account or credit card.

According to the Ontario Securities Commission, your identity is at risk when:

  • you enter your credit card information online on a non-secure website
  • you click on an email link from what looks like a legitimate bank or online shopping service (eg. PayPal) and enter your account information
  • your personal information (Social Insurance Card, credit card or bank card) are stolen
  • you give out your credit card’s three-digit security code over the phone to a scammer who claims to be from your financial institution
  • any time your personal information is available to others

Aviva’s Identity Theft coverage is now even better

Aviva has introduced an enhanced ID Theft coverage – offering customers even more peace of mind as they tap, swipe and click their way through life. As one of the most comprehensive on the market, it features widespread financial protection if your identity is compromised, including:

  • an increased limit of $40,000 per policy term for all ID theft expense claims
  • a $5,000 limit per policy term to cover any financial loss due to ID theft
  • 24/7 credit bureau monitoring and two credit bureau reports for six months after an ID theft claim
  • access to your own ID theft case worker to help you identify and restore your finances and personal information after an ID theft claim

Don’t let thieves get the upper hand – learn more here or contact an insurance broker to add Identity Theft coverage to your home insurance policy.

#HeadsUp, Saskatchewan – Distracted driving is always a bad call

Picking up your phone while driving to let your friend know you’re running late? That’s a bad call. It’s illegal, dangerous and may cost you – there might be a police officer watching from a bus or an unmarked vehicle in the next lane, and the fines and penalties are stiff.

Distracted driving is the focus of October’s Traffic Safety Spotlight. Throughout the month, police across the province will be using a variety of tactics to catch distracted drivers in the act, including surveillance from unmarked vehicles and plainclothes officers on the sidewalks. Regina Police Service is running “Operation Bus Cop,” with eagle-eye officers watching for distracted drivers from city buses.

Police will be on the lookout for people using handheld cellphones to talk, text, email or browse online while driving. But distracted driving isn’t just limited to using a phone.

“Drivers are still not getting the message. If you are in control of a vehicle, anything that takes your attention away from the road is dangerous,” said Superintendent Brian Shalovelo, Saskatoon Police Service. “If someone says they were picking up a CD on the floor when they lost control, that is distracted driving. Changing the radio station, smoking a cigarette, reading a map or your mail – these are all examples of how a driver can be distracted. We’ve even seen people watching Netflix while driving.”

“The average car or lightweight truck weighs over four thousand pounds,” said Chief Evan Bray, Regina Police Service. “That is two tons of comfort and convenience to get you to your destination…or it’s two tons of steel and glass that can take your life, or someone else’s, if you lose control. Is there any text message, photo or music selection in the world that could be more important than a human life?”

“The message is simple: put the phone away and encourage your friends and family to do the same,” said Earl Cameron, Executive Vice President of the Auto Fund. “Put it out of reach in your glove box, zip it up in your purse and put it in the back seat, or mount it on your dashboard and use it hands-free if you’re an experienced driver. We all have a responsibility to make safe choices behind the wheel.”

It is illegal for drivers in Saskatchewan to use, view, hold or manipulate a cellphone while driving. This means that, even if you’re simply holding a cellphone and not using it, you can still be charged. Drivers caught using their cellphone while driving for the second time within one year will have the vehicle they are driving seized for seven days. Experienced drivers can only use a cellphone if it is mounted to their visor or dash, and they use the voice-activated or one-touch functions. Learner and novice drivers are not allowed to use a cellphone of any kind, not even hands-free.

The penalty for distracted driving is a $280 fine and four demerit points under SGI’s Safe Driver Recognition program.

Everyone can drive free of distractions by following these tips:

  • Don’t use your cellphone, even at a red light – the law applies whenever you’re in control of a vehicle.
  • Put the phone away – silence your phone and put it out of reach before getting behind the wheel.
  • Focus on driving – limit distractions like eating, grooming, or having emotional conversations with passengers.
  • Have a designated texter – let your passenger reply to messages and operate the radio and GPS.
  • Pull over first – if you need to make a call or take care of children or pets, don’t do it while driving.
  • Call out friends and family – if you see them using a cellphone behind the wheel, speak up! It may save their life.

Visit SGI’s website at www.sgi.sk.ca to learn more about distracted driving and the strengthened cellphone legislation.

August Traffic Safety Spotlight Results: Impaired driving

During the August spotlight on impaired driving police reported 390 impaired driving offences, including 334 Criminal Code charges.

Police also reported:

  • 4,243 tickets for speeding or aggressive driving
  • 360 tickets for inappropriate or no seatbelt/child restraint
  • 459 tickets for distracted driving (including 342 for cellphone use)

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