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Ontario family launches Charter challenge to Quebec's no-fault system

|Written By Mark Cardwell
Ontario family launches Charter challenge to Quebec's no-fault system
Adam Eidelmann, a lawyer in Dorval, Que., is helping an Ontario family make a Charter challenge to Quebec’s no-fault insurance law under s. 7, as a violation to the right to life and security.

The family of an Ontario woman who died in a two-car crash just south of Montreal in April in a head-on collision is seeking $4 million in punitive damages from Quebec’s transportation ministry.

And the Montreal lawyers representing them believe their clients can make a compelling case as to why those damages should be paid despite Quebec’s no-fault public insurance system, which ensures people injured in a collision receive compensation and benefits from their own insurance company, regardless of fault.

“The case really resides in the subtlety of the legal arguments,” says Elliot Aglioni of Eidelmann Law, a two-lawyer firm in Dorval. “It effects the public interest in Quebec.”

In their petition filed in November with the Superior Court of Quebec in Chateauguay — not far from the scene of the deadly April accident on Autoroute 30 that claimed the lives of 56-year-old Carole Downer of Ontario and three people in the other vehicle — the family points to a coroner’s report that labelled signalization at a critical point of entry onto that stretch of highway as “inadequate.”

According to the coroner’s report, the driver of the other vehicle was seemingly confused by the poorly lit and configured road signs that show where and when to enter the westbound on-ramp to the route 30. The driver instead took the off-ramp and soon entered into a collision with Downer.

Though Downer was killed at the scene, her 28-year-old daughter Vanessa survived — although she spent 51 days in hospital due to a broken hip and numerous lacerations.

Just days after the accident, transport ministry workers improved signage and lighting at the intersection, which the coroner found had been flagged as a trouble spot since the highway was built.

There have notably been several accidents at the site, prompting the town of Chateauguay to send a formal request in 2013 to the province’s transport ministry asking it to rectify the situation.

Downer’s daughter and husband reportedly decided to sue after seeing various media reports about the ministry’s apparent negligence in dealing with the problem.

The daughter told Le Journal de Montréal in early December, however, that the “dozens” of Quebec lawyers she called refused to take the case because of the ironclad provisions of the province’s no-fault insurance system.

“They said it was unthinkable that the MTQ could be held responsible for my mother’s death,” Downer told Le Journal.

But Adam Eidelmann thought otherwise. According to Aglioni, who is assisting Eidelmann with the case, the lawyers intend to make a Charter challenge to Quebec’s no-fault insurance law under s. 7, as a violation to the right to life and security.

“Our goal is not to try and dismantle the no-fault system,” says Aglioni.  “What we want is a provision that creates a carve-out for certain levels of negligence or lack of care.”

He adds that without such a provision, the like of which exists in other no-fault jurisdictions, the system is anti-social law that denies victims their day in court.

“Our system is unique in that it prohibits even gross negligence for being actionable,” says Aglioni.  “That is contrary to the notions of justice in Canada.”




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