Personal Injury – Passenger Injuries

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Passenger in a Motor Vehicle Collision

A passenger in a motor vehicle collision may experience significant injuries. These injuries may affect a person’s ability to work, go to school, perform household tasks, and his or her ability to engage in leisure activities. If you have suffered injuries as a passenger in a motor vehicle collision, you may be able to receive compensation for your injuries and expenses, including compensation for loss of income, pain and suffering, and the cost of treatment. Generally, you must start a legal action within two years of suffering the injury.

Who to sue?

In some cases, the Court may determine that no one was at fault for the collision. An example of a no-fault collision may be where a deer has unexpectedly run out in front of a vehicle and the driver was not driving negligently when he or she hit the deer. In these circumstances, your lawsuit may not succeed and your only compensation may be the accident benefits available through your insurance company.

However, more commonly, someone is responsible for the collision. As a passenger in a vehicle, the driver of your vehicle or the driver of the other vehicle may have caused the collision or both drivers may be at fault. For this reason, in many cases, an injured passenger will sue both the driver of the vehicle in which they were a passenger and the driver of the other vehicle.

Although it may be uncomfortable to file a lawsuit against your friend or a family member who was driving the vehicle, that person will likely have insurance coverage that will respond to your claim. The driver’s insurance company will, in almost all cases, provide the driver with legal representation and will cover the amount your claim up to the limit of the driver’s insurance policy.

If you are found to be partially at fault

In some circumstances, a passenger may be partially to blame for the injuries he or she suffers. For example, if you did not wear your seatbelt or if you did so incorrectly, a Court may find that you were partly at fault for any injuries that you experienced. If the insurance company is able to establish that your injuries would have been less serious if you had been properly wearing a seat belt, the amount of your damages could be reduced.

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Family Law – Protection Concerns / Family Violence and Judicial Case Conference (JCC)

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When attending a Judicial Case Conference (“JCC”), the parties and their lawyers (if any) will attend Supreme Court to try and work out any matters which the parties can agree on or consent to.  The Court will make procedural orders, even if not agreed upon by the parties (for example, a deadline by which Lists of Documents need to be exchanged, or a deadline for disclosure of certain documents).  A JCC is necessary before a party can bring an interim application (though there are exceptions in emergency or urgent cases).

JCCs can be daunting for some parties to family litigation since this may be the first time a party will be in the same room or vicinity as a former spouse.  The matter may be complicated when there are protection orders or where there are concerns with respect to family violence by one of the parties to the proceedings.

The Supreme Court does not have access to Provincial Court files as a matter of course, which may contain a protection order.  Therefore, if you have concerns with respect to safety at a JCC (due to a history of family violence or because of a significant power imbalance), it is imperative that you notify your lawyer of your safety concerns as soon as possible before the JCC or, if you are representing yourself at the JCC, notify the Registry staff of your concerns as soon as possible.

If necessary, the sheriffs will ensure that a sheriff is present during the proceedings.  The Judge or Master will also be made aware of your concerns and can prevent you from having to sit facing the other party at the JCC.  This will help protect you and the presiding Judge or Master against any violence by the other party to the proceedings.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Estate Litigation – Ownership of Assets on Death

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Many people own a home or other assets with their spouse or another person. One should consider what will happen to the property when the other owner dies. In some cases this may lead to litigation.

Types of Ownership

When a property is owned by more than one person, it can be owned as a tenancy in common or as a joint tenancy. The main difference between these two types of ownership is what happens when one of the owners dies.

In a tenancy in common each person owns an undivided interest in the asset. Therefore, if people own an asset as tenants in common and one of the owner’s dies, his or her interest passes to his or her estate. If the asset is held by the estate, the deceased owner’s interest in the property will be distributed according to that person’s will or according to the laws of intestacy (when a person dies without a will)

If an asset is owned in joint tenancy, the right of survivorship applies which means that on death, the deceased’s person’s interest in the asset automatically passes to the surviving owner.

As people often do not think about how their assets are owned, the owners’ intention when they purchased the asset as to the type or form of ownership may not be obvious.

The Owner’s Intention

Where the deceased owner’s intention is unclear, litigation may result to determine what the owner intended and who will receive the asset. If the other owner is claiming that the asset is held in joint tenancy, the beneficiaries under the will or the deceased’s next of kin who would inherit under intestacy may dispute the type of ownership.

Estate litigation may help determine the deceased’s intent when he or she purchased the asset or when he or she gave the other owner an interest in the asset. Unless there is evidence to the contrary, the law presumes that when two people own land, they own the land as tenants in common. However, if there is clear evidence that the deceased person intended to own the asset in joint tenancy and intended to give his or her interest to the other owner on his or her death by right of survivorship, the transfer will be valid and the property will remain with the surviving joint tenant. If it does not appear that the deceased person intended to give the other owner the right of survivorship, a Court may determine that a resulting trust applies and that the other owner holds the deceased’s person’s interest in trust for his or her estate.

Ending a Joint Tenancy

One of the owners who wishes to end the joint tenancy and prevent the right of survivorship from becoming effective on death, may sever the joint tenancy on his or her own. Once an owner severs a joint tenancy, the ownership of the property transfers to a tenancy in common.

An owner may sever a joint tenancy:

  • by registering a transfer of the property at the Land Titles Office to him or herself;
  • by reaching a written agreement with the other owner; or
  • inadvertently, where the surrounding circumstances suggest that the ownership has been severed. For example, a joint tenancy may be severed if a couple divorces.

 

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