Posted May 6, 2015
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It started as a typical December day in Sudbury when Alex’s friend offered to drive him home. Alex, an 18-year old, healthy, young man was just finishing up high school. Christmas had ended and New Year’s Day was around the corner. It was that time of year when nobody worked and nothing got done. On this fateful day, the road crew responsible for maintaining the Trans-Canada Highway near Sudbury was short staffed.

Well forecasted, a flash freeze was expected to hit the Sudbury area. As the wet roads turned into sheer ice, the road crew failed to properly salt and sand the local roads. As a result, parts of the Trans-Canada Highway became the Trans-Canada skating rink. The car in which Alex was travelling hit the black ice, lost control and hurdled into oncoming traffic. Alex sustained a catastrophic, life altering brain injury, which he has never fully recovered from.

Alex’s family had been advised that since their son was not wearing a seat belt, he would be found at fault for his injuries. Furthermore, the Province of Ontario, represented by the Ministry of Transportation, took the position that the accident happened because Alex’s friend was driving too fast for the conditions. The Ministry contended its records show the accident site had been continuously salted all day, including minutes before the collision. Alex’s family eventually found themselves meeting with David Payne at Thomson Rogers. When David was first retained, it appeared that little could be done regarding the Ministry of Transportation. As he drilled into the case, something just didn’t seem right. He consequently asked the Ministry to produce its actual records regarding the salting and sanding, policies, practices, and maintenance standards. Thousands of pages of documents were sent to David that included tender contracts, schedules and equipment inventories.

Thomson Rogers’ team, which David led, included four additional lawyers, several law clerks and legal assistants who poured over every single document the Province of Ontario sent. As some contradictions to the Ministry’s position came to light, David pushed even more. Importantly, he needed to review when the highway was actually salted, the appropriate operating procedures on the day of the incident, how many staff were actually working on the day and time when the accident happened, when the salt was ordered, and whether or not it had actually been placed on the road prior to the incident.

Good lawyers always want to believe that they need to make sure no stone is left unturned when representing their client. In this case, the hard work and ongoing review of the documentation was proving invaluable. The documents showed a much different story than what the Government at first contended. Key facts came to light:

  1. prior to the collision, senior staff had retired and had not been replaced;
  2. nearly all supervisory staff were on vacation on the day in question;
  3. the sole responsibility for supervising operations and monitoring forecasts was left to a plow driver;
  4. the plow driver responsible for the supervision and monitoring was not qualified and did not adequately supervise the other drivers;
  5. no one bothered to monitor the weather;
  6. much of the maintenance equipment was inoperable and had been for years;
  7. significant portions of the maintenance records for the day in question were missing, inaccurate and contradictory.

As David and his team continued to drill down, they were able to show even more contradictions in the Ministry’s documents. In order to make sure a proper review of the Government’s responsibility in this case was recognized, Thomson Rogers spent thousands of dollars to hire private investigators who flew across the province to interview witnesses, police officers, fire department personnel and paramedics. He hired highway engineers and meteorologists to review the issues of liability. He obtained all of the medical information and had prepared Care Need Reports to properly evaluate Alex’s damages.

Hard work pays off. The interviews with the various parties undermined the Ministry’s position.

From a personal point of view, I would like to share some of

my own observations. David was retained in 2012. In that year, he immediately set up a treatment and rehabilitation team to optimize Alex’s recovery. A Litigation Guardian was appointed, a Statement of Claim was issued and the legal process of discovery was immediately instituted. In 2013, the statutory accident benefit claims were settled for over $2.2 million and in December, 2014, David settled the tort claim for over $9.5 million. All of this was structured and court approved.

I always like to think the lawyers at Thomson Rogers go beyond the norm in trying to secure the best and fairest settlement on behalf of their clients. Sometimes though, we forget how much effort goes into presenting a case and how work is rewarded.

Not many firms can afford to have spent this amount of money to protect the rights of their clients. On behalf of David Payne and Adam Tanel, we share our best wishes for Alex and his family, and a special thank you to all of the people, family members, liability experts, case managers and healthcare workers who took an active interest in helping Alex. We hope his days will be better because of the kindness and consideration that was extended by everyone to him and his family.

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