Publications

Imagine yourself standing at the bakery counter of your local grocery store. There is a sign that reads bread is 15% off. You ask for a loaf but notice that the baker has cut it in half. Fifteen percent off but for half a loaf. You say that you want a full loaf. The baker says that would cost an extra 30%. Would you buy the loaf? Of course not. The only person benefiting from this deal is the baker. Yet, this is what Premier Wynne has put onto the people of Ontario when it comes to auto insurance. Here is how it works if, for example, a car driver ran a stop sign, broadsided your vehicle and you were injured.

The recent case of Clark v. Kwasney decided by Mr. Justice Reid here in Hamilton further emphasizes the difficulty of establishing “squatters’ rights”. Counsel (Bordin and Brisbin) were unable to convince their clients to settle and therefore the matter proceeded in an expeditious manner to a hearing. The result was a split decision. The fenced area was lost and the unfenced area remained as per the deeds.

A Power of Attorney for Property may save substantial time and money in the event of incapacity or an extended time away from home and is relatively inexpensive. The word Attorney in this context does not mean lawyer. A Power of Attorney for Property is a simple written document that allows someone else financial management of some or all of your property while you are alive. It can become effective now and continuously, for a limited time, or only in the event of incapacity. It can be limited to dealing with all or only certain assets of yours.

Some of the benefits of making a Will include the ability to direct where your assets will go, the cost and time savings of dispensing with an administration bond and the speed in distributing assets to the beneficiaries, paying debts and fully administering the estate. Each is, in itself, a valid reason for having a Will prepared immediately. The cost to do far outweighs the cost of not doing.

In tort law, there are few areas that are subject to as much judicial and legislative attention as liability of public authorities for the design and maintenance of roadways. This is a field of law that is very much driven by statute. The Municipal Act, 2001, SO 2001, c 25 and the Public Transportation and Highways Act, RSO 1990, c P.50 and regulations made under those Acts contain a number of provisions that potentially shield road authorities from liability for otherwise negligent actions or omissions. Those provisions are not infrequently varied, changed or repealed. Any change can lead to uncertainty and litigation.

Particularly with the advent of no-fault insurance schemes, more and more people are finding themselves embroiled in litigation with their insurance companies. Whether an insured is bringing an action against their insurer for failing to pay accident benefits, disability benefits, life insurance benefits or property damage claims, a common allegation in any Statement of Claim is that the insurer breached its duty to act in good faith.

Every so often, I will get a call from someone who is having difficulty in making a claim under their homeowners insurance policy. Most of us are used to representing clients in first-party claims relative to their auto insurance policies, all of which are, effectively, exactly the same, regardless of the insurer. However, homeowners policies are not always the same. While many policies have similarities, there are numerous Riders and Endorsements which can make coverage unique to the individual insured.

Michael Winward received his LL.B. from the University of Western Ontario in 1983. He was called to the Bar of Ontario in 1985 and immediately commenced employment with Mackesy Smye LLP, becoming a partner in 1990. Michael restricts his practice to civil litigation with an emphasis on personal injury and insurance litigation. Michael has enjoyed being a trustee of the Hamilton Law Association and has sat on a number of its committees.

The fatality trial presents special challenges to Plaintiffs’ counsel to overcome our judiciary’s conservatism in awarding damages in wrongful death cases. Perhaps fearful that awards would significantly increase as they have in the United States, our judicial system has kept them suppressed. If emotions and our natural sympathies that flow from wrongful death claims were allowed into the courtroom then some would argue that awards would spiral out of control.

Motor vehicle accidents are fairly common, but many people are still unsure about what to do in the moments after an accident. Below are a few common questions and answers to guide you in the right direction.

In McIntyre v. Grigg et al (2006) 83 O.R. (3d), 161, the Court of Appeal, for the first time, considered the issue of whether punitive damages were available in the context of a motor vehicle accident claim. I had the privilege of arguing this appeal after my partner David Smye obtained a very favourable verdict from a Hamilton jury. While the majority in the Court of Appeal upheld the jury’s award for punitive damages, the quantum of the award was reduced substantially.

According to the Canadian Institute for Health Information, across Ontario in 2002-2003 there were 8,698 Emergency Room visits due to playground related injuries. Of those injuries, 590 resulted in a hospital stay of at least one night. The majority (56%) of injuries occurred among children between the ages of 5 and 9. The majority of injuries were orthopaedic in nature, mostly upper extremity. However, there were also 131 reported head injuries.