School is out, and the weather has turned warm. Summer is the season when most people take their larger amounts of vacation, whether it’s a trip to a far off destination, or a road trip to a nearby province. But what happens if you sustain an injury while on holiday? Depending on where you are, and how you were injured, the answer may change.
Years ago, it was relatively easy for a Plaintiff to choose the venue in which he or she brought an action. For personal injury matters, the jurisdiction in which the damage was sustained was often determined to be the residence of the Plaintiff, as that was where the loss of employment and residual effects of the injury were felt. That all changed, however, in 2012 when the Supreme Court of Canada handed down its decision in Club Resorts v Van Breda. In that case, the Court identified several factors that will be presumptive for a court to assume jurisdiction over a matter. Those factors were whether the defendant was regularly living in the jurisdiction, or had a head office there if it were a corporation; whether the defendant carried on business in the jurisdiction; the jurisdiction in which the incident occurred; and whether there was a contract connected with the dispute made in the jurisdiction.
For example, if a person from Nova Scotia were vacationing in Prince Edward Island, and while there, was struck by a truck from New Brunswick delivering goods to a local shop, multiple factors would come into play in determining the proper venue for the action. As the truck was owned by a company with its head office in New Brunswick, it is possible that the action could be commenced there, as one of the presumptive factors has been met. On the other hand, factors pointing to having the matter held in Prince Edward Island are that the accident occurred in the jurisdiction, and that the defendant was carrying on business in the province. When presented with a multiplicity of options, as in this example, a court will not simply look to how many factors are present, but will weigh the strength of the connection each of the factors has to the jurisdiction.
Once a Plaintiff has selected a venue, it then falls to the defendant to challenge the location, if the defendant so chooses. If the strengths of each of the factors were considered equal, the defendant would have to satisfy a court that the jurisdiction is not convenient to commence the action, and attempt to persuade the court to decline to exercise jurisdiction. While this may seem like splitting hairs, it can make a significant difference when it comes to motor vehicle accidents and the outcome for the Plaintiff. Many provinces have laws that limit or reduce the amount of damages that can be awarded to persons involved in traffic accidents. In Nova Scotia, there is a cap for “minor injuries”, limiting general damages (otherwise known as “pain and suffering”) to an annually adjusted amount that currently sits at $8,352.00 for 2015. Conversely, in Ontario, for all claims to general damages arising from motor vehicle collisions automatically deducts $30,000.00 from all awards or settlements under $100,000.00 in that category. What this means is that if a person were to be awarded $29,000.00 in general damages in Ontario, they would receive nothing from that category.
It is always important to consult a lawyer as soon as possible if you have been injured. It is especially so when you are away from home where different rules or laws may apply.
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