Monthly Archives: October 2008

Statutory “No-Fault” Accident Benefits

Posted in: "All, Administrative Law by Admin | No Comments Thursday, October 30, 2008

Continuing on to this week’s topic, “no-fault,” today I’d like to talk about the Statutory Accident Benefits under the Ontario Auto Policy.
Automobile insurance in Ontario is highly regulated. The government sets out mandatory benefits that all automobile insurance policies in Ontario must carry. Among the benefits are Accident Benefits.
Prior to the 1990s Accident Benefits were available only as an alternative for the victim to recover damages awarded from a lawsuit. However, since then automobile insurance has been reformed and a “no-fault” scheme has been established for personal injuries as a result of car accidents. Accident Benefits have become the primary recovery method for persons injured in a car crash, while the civil litigation route has taken second place as a recovery method.
Accident Benefits, by law, are to provide compensation regardless of fault. Therefore, if you are injured in a car crash, you’ll be entitled to the prescribed benefits regardless of whether you are the driver, a passenger, or a pedestrian. You will get the benefits even if you’re the one who caused the accident (unless you are otherwise excluded by law). As such, this is a truly “no-fault” insurance policy.

Accident Benefits may include the following, depending on the circumstances:
•    income replacement
•    non-earner benefit
•    caregiver
•    attendant care
•    medical expenses
•    rehabilitation expenses
•    visiting expenses for family members
•    lost education expense
•    housekeeping and home maintenance expense
•    cost of examinations
•    death
•    funeral expenses

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Fault on “No-Fault” Insurance

Posted in: "All, Administrative Law by Admin | No Comments Wednesday, October 29, 2008

Yesterday I talked about “no-fault” divorce. To continue the “no-fault” theme, I’d like to talk about another commonly known no-fault scheme in Canada – “no-fault” automobile insurance.

Many people believe that if you are involved in a car accident where two or more cars collided, you will get insurance payment regardless of fault. This is a misconception, at least in terms to damages to the vehicle.

“No-fault” insurance does not mean that an insurance company will let you off the hook even if you have caused the accident. To the contrary, fault is assigned in vehicle damage claims according to the Fault Determination Rules (R.R.O. 1990, Reg. 668, a regulation under the Insurance Act). These rules are technical and will apply regardless of road or weather conditions, visibility, and point of impact.

If you are found at fault, you will have an “at fault” accident on your insurance record. This is entirely separate from finding fault for other purposes, such as the laying of charges. In fact, sometimes the investigating police officer may conclude that the accident was the fault of neither drivers’ and that no charges will be laid, yet one or both of the drivers may nonetheless be found “at fault” on their insurance records.

What would happen if you were found at fault for vehicle insurance purposes?

The degree to which you are at fault would affect the amount you would be entitled to from your insurer to repair your car under Direct Compensation – Property Damage (DCPD, a legal jargon prescribed by the regulation). The insurer would only cover the amount (less deductible) that is attributed to the other driver’s fault.

For example, if you were found to be 50% at fault, you would only be compensated for the 50% of damages caused by the other driver (less deductible); if you are found 100% at fault, you would not receive a penny under DCPD.

If you want to recover the rest of the damages done to your car, you must have collision coverage in effect at the time of the accident. If you don’t have collision coverage, you will have to pay for the repairs yourself.

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Not My Fault – “No-Fault” Divorces

Posted in: "All, Family Law by Admin | No Comments Tuesday, October 28, 2008

Today I’d like to talk about no-fault divorces.

In Canada, there is only one way to get a divorce: you must demonstrate that there is a “breakdown of marriage.”

Breakdown of marriage can be demonstrated by establishing one of the following:

  1. The spouses have lived separate and apart for at least one year;
  2. The other spouse has committed adultery since the celebration of marriage; or
  3. The other spouse has treated the applicant spouse with physical or mental cruelty.

Technically, the “no-fault” divorce refers only to item #1, since there are components of “fault” in item #2 and 3. However, this is not the reason why we refer to divorce in Canada as “no-fault.”

“No-fault” divorce refers to not only the grounds of divorce (breakdown of marriage), but also the spousal support payable to a former spouse.

Under the Divorce Act, in making an order for spousal support, the court cannot take into consideration any misconduct of a spouse in relation to the marriage. Rather, the court must inquire the condition, means and needs of each spouse, including the length of cohabitation, the function performed by each spouse during cohabitation, and any arrangement or agreement relating to support of either spouse.

In the end, spousal support orders are made with the following legislative goals in mind:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

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New Contents Added – Spousal Support, Child Support

Posted in: "All, Family Law by Admin | No Comments Tuesday, October 28, 2008

I am pleased to announce that new pages have been added to the Family Law section. Please click on the links to visit the new contents.

Support Obligations in General

Child Support

Spousal Support

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Are You (Legally) a Couple? – Common Law Relationships

Posted in: "All, Family Law by Admin | No Comments Friday, October 24, 2008

In the modern era, it seems that marriage is becoming a formality to many. Indeed, many rights that used to belong exclusively to married couples are now available to unmarried ones, either through legislation or the common law.

In an attempt to assert their rights, many unmarried individuals in long-term relationships often declare themselves to be in a “common law relationship.” This was particularly true in the gay and lesbian communities before same-sex marriages were legalized in Canada.

However, legally, not all long-term relationships qualify as common-law spousal relationships.

In the often-cited case Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (Ont. Dist. Ct.), the court set out seven areas in assessing whether two people who were not married to each other could be defined as spouses:

  1. shelter (Do they live together?)
  2. sexual and personal behaviour (Do they have close personal connection between each other?)
  3. household management and services (Do they share household duties?)
  4. social and family activities (Do they participate together in community and family events?)
  5. societal (Are they viewed as a couple by others?)
  6. economic support (What are the financial arrangements between them?)
  7. children (Are they raising children together?)

According to the categories above, the presence (or absence) of a sexual relationship is not the sole determining factor when it comes to the definition of a couple. Rather, the court would take a functional approach in determining whether two people could be defined as a couple for family law purposes.

For example, two individuals who casually date each other would likely not be deemed a couple, since they don’t share a residence together, nor provide household services for each other. On the other hand, two seniors (pardon my stereotypical example) who live together may qualify as spouses even if they don’t have sex with each other.

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What? You Said?

Posted in: "All, Business Development by Admin | No Comments Tuesday, October 21, 2008

Today I attended a networking event hosted by the Ontario Gay and Lesbian Chamber of Commerce. Today’s discussion seemed to focus on marketing and getting your business’ message out. I’d like to share some insight with you on this topic.

Individuals in North America are bombarded by messages everyday. From the moment we wake up to the moment we go to bed, we receive thousands of messages. For the sake of our sanity, we tune most of these messages out ; we thus retain very few of them. When promoting your business, it is vitally important that your messages get through the filters and be retained by your audience.

What gets past through the filters, and what does not?

First, you must attract your audience’s attention. This can be done in several ways. You can attract attention with different methods, such as humour (a joke), flattery (a word of praise), fear (a threat), or desire (a gift). Most marketers suggest that you stay on the positive side because negative messages may backfire if it’s not handled properly.

Second, you must sustain your audience’s attention by piquing their interests. You will have to identify your audience and cater your message to them specifically. People generally are interested in a few things: current affairs that they can relate to (gossips, TV shows, movies), the common good (help conquer cancer, fight AIDS, save the planet), special occasions (Halloween, birthdays, holidays), and self-advancement (money-saving tips, how to become more efficient, how to lose weight).

By attracting and sustaining people’s attention, your message will more likely find its way to your targeted audience.

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Thinking About Hiring Your Neighbour’s Kid? Read This.

Posted in: "All by Admin | No Comments Monday, October 20, 2008

Probably many of you, at one time or another, have hired a neighbourhood kid to do your chores around the house; some of you might even have been the ones who were hired. Today I’d like to explore this topic.

Scenario

Amy hired her neighbour’s son Bob age 13, to do some chores around the house for $8/hr. Bob helped Amy mow the lawn, clean the yard, sweep the driveway and carry groceries. Bob worked every Sunday during the school year and three days a week during the summer. Amy also set out rules regarding machine operation and safety precautions.

One day, while Bob was trying to refuel the lawnmower, he lit a match to the fuel can to see how much fuel was left. The match ignited the fuel can and set the house on fire. Bob escaped unharmed but caused $285,000 in damage.

Amy sued Bob for the damage. Should Amy succeed?

Analysis

By now, most of you have probably said that Amy should not succeed.

But why?

The Ontario Court of Appeal provides insight in Douglas v. Kinger (Litigation Guardian of) (2008), 90 O.R. (3d) 721. (The names have been changed for the purpose of this blog.)

The Court decided that Amy (employer) should not be allowed to recover damages from Bob (employee) because it would be unfair to hold Bob liable.

The Court held that the relationship between the employer and the employee showed that the employee negligence was foreseeable, but the employee’s liability was not.

Bob, 13 at the time, was hired as casual help. Amy knew that Bob was inexperienced, and that his mistakes could cause harm. She set out rules accordingly. Amy could not have expected Bob to indemnify (fully compensate) her for mistakes and accidents occurring during the employment.

Moving onto onto policy considerations, the Court found that employment relationships would be greatly challenged if employers could hold employees liable for the financial consequences of a mistake or accident at work.

Generally, there is a great power imbalance between employers and employees; employers are free to set the terms and conditions of the employment.

If an employer wants to off set the consequences of an employee’s mistakes, the employer can contract with the employees through an indemnity agreement, which will likely lead to higher wages, or the employer could purchase adequate insurance against the risks. The employer could also simply absorb the injures as costs of doing business.

Final Words

The Ontario Court of Appeal was reluctant to impose great financial burden on a minor defendant. To order otherwise would have been unjust – there’s no way that a 13-year-old would take a job, earning $8/hr,  knowing that he or she may be responsible for damages of $285,000. Who would mow your lawn then?

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New Family Law Section: A Guide to Divorce, Custody, and Access

Posted in: "All, Family Law by Admin | No Comments Sunday, October 19, 2008

I am pleased to announce that a section on family law has been added to the site.

Currently available are:

Coming soon:

  • Support Obligations
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Ontario’s New Human Rights Complaint Process

Posted in: "All, Administrative Law by Admin | No Comments Friday, October 17, 2008

Recently I attended a continuing legal education session hosted by the Toronto Lawyers Association. The topic was Ontario’s new process for human rights complaints. I’d like to briefly explain the new process here.

Under the old process, all human rights complaints had to be filed with the Human Rights Commission. The Commission would investigate the claims, and decide whether they were appropriate to be filed at the Human Rights Tribunal. It was a regulatory process that many complainants found frustrating because  they had little or no control over the investigation process, and were not allowed to file the complaints directly with the Tribunal.

The new process is the opposite of the old one. Under the new process, the Commission no longer performs the complaint intake. Rather, all applicants must file their own applications with the Tribunal directly. After the complaints are filed, the Tribunal will adjudicate the cases for all complainants.

What about complainants who don’t know how to file a complaint and can’t afford to hire a lawyer?

The Human Rights Legal Support Centre is set up to assist individual applicants. Its services are available province-wide.

Unlike Legal Aid Ontario, the Legal Support Centre has no financial requirement for eligibility. All are welcome. At the Legal Support Centre, there are staff lawyers that can help answer questions and guide  applicants through the process.

You can reach the Human Rights Legal Support Centre by telephone or internet with the information below:

  • Website: www.hrlsc.on.ca
  • Tel: 416-314-6266
    Toll Free: 1-866-625-5179
    TTY: 416-314-6651
    TTY Toll Free: 1-866-612-8627

Related sites:

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Power of Attorney – What Is It?

Posted in: "All by Admin | No Comments Wednesday, October 15, 2008

Today I want to talk about power of attorney. While most of you will have heard of power of attorney, probably few of you know exactly what it is.

Power of attorney is a legal instrument that authorizes substitute decision-making. It is divided into two categories: power of attorney for property and power of attorney for personal care.

Power of attorney for property grants the attorney (the person who is being granted the power) the right to manage, sell, or acquire property on behalf of the grantor. The power of attorney may delegate all matters that the grantor is capable of doing, except for making a will. It is generally assumed that the power granted will be a continuing one, subject to the conditions set out in the document.

However, under the law power of attorney for property will cease to be effective if the grantor becomes incapacitated. Nonetheless, power of attorney may survive the grantor’s incapacity if there is express intention that the attorney may continue to act during the grantor’s incapacity.

Power of attorney for personal care allows the grantor to name an attorney who can make decisions regarding personal care if the grantor becomes incapacitated. Unlike power of attorney for personal property, the power is only invoked when the grantor becomes incapacitated.

When creating power of attorney, many choose to draft their own documents or buy pre-printed forms at local bookstores. I caution my clients against this practice.

You should always consult a properly licensed lawyer to ensure that your power of attorney is properly drafted and legally valid. There is always a chance that power of attorney may be abused. For example, your attorney may sell off your assets without your consent under power of attorney for property. A lawyer can help you to minimize the risks of loopholes and abuse.

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