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Get legal advice quickly in boating mishaps: Rastin

Busy Ontario waterways can be fraught with danger and if an accident occurs, victims should seek counsel as soon as possible, says Barrie area personal injury lawyer Steve Rastin

There are time limitations to launch civil procedures even if there is a criminal case, so getting a personal injury lawyer involved early is recommended, says Rastin, the managing partner of Rastin & Associates and a former president of the Ontario Trial Lawyers Association (OTLA).

He tells AdvocateDaily.com about one in five Canadians are involved in recreational boating, and the ratio appears higher in his area of practice that includes Georgian Bay.

"On any given weekend, the waterways can be as busy as the highways because of the number of people out on the water," he says. "People should remember when they're dealing with claims or injuries related to boating accidents, that many similar principles apply as you would see with motor vehicles on land but they're not universally the same."

Complicating the waterways are recreational vehicles, canoes, kayaks, and swimmers, Rastin says.

"You would never have that confluence of issues on a highway or a roadway, in terms of pedestrians and 13-year-olds operating scooters," he says. "It's a much more complex environment. Some of those individuals will have insurance and some will not.

"If you have an accident on the water, you shouldn't assume it's the same as having one on land," he says. "You should get some legal advice.

"Victims should not wait until the criminal charges have been handled," he says. It could take a significant period of time to complete a criminal case and, if they waited, victims would have no civil recourse if proceedings hadn't been started within the time limitations.

"The other thing is, where there is criminal conduct, it's not uncommon to send watch briefs to a trial, to take notes so we can better serve the client in the civil case," Rastin says.

He also urges victims to get legal advice before or during interviews with police or a Crown attorney: 

"Without legal advice they may inadvertently agree to, or say something they don't really mean that could be harmful to their civil case," Rastin adds.

According to the Life Saving Society, an average of 282 people per year drowned between 2010 and 2014. Of those fatalities, 119 were realted to boating accidents, the majority of which involved a powerboat. In addition, 82 per cent of people who drowned weren't wearing a flotation device.

Alcohol use is a major concern in boating, as it is a factor in 39 per cent of the average waterways fatalities in Canada, according to the society.

"There are many, many people out there that would never get behind the wheel of a vehicle and drive on city streets, that think nothing about getting into a 28-foot boat and powering out with a beer in their hand," Rastin says.

The laws for alcohol consumption when driving a motor vehicle are similar to those for drinking and boating, he says.

No-fault statutory benefits are not generally available to people involved in a boating mishap, compared to an auto accident, Rastin says.

"There are maritime conventions which limit liability and there is also specific legislation that applies to boaters, but within that, as with the same sort of analysis that applies in a tort case, you have to establish a duty of care. Was that duty of care breached, did damages result from that breach and was that foreseeable?"

He cites a case where a boat was upended or damaged because of another boat's wake.

"Some people would say there's nothing they can do with that," Rastin says. "The answer's not that clear. There are situations where somebody can be liable for a wake-related injury or for striking someone else.

"These are all unique factors that need to be taken into account," he says.

The bottom line, Rastin says, is to seek out legal advice in this complex field as soon as possible after an accident.

"The best example of that is a wake accident. Waterways, especially in Georgian Bay and Muskoka, are heavily regulated, there's many no-wake areas and speed limits," Rastin says. "If you're minding your own business in a kayak and somebody goes through a 10 k/hr no-wake area like a bat out of hell and wipes you out and causes damage, you may have a case."

Boating and water use "is a huge issue in Ontario," he says, noting there are about 250,000 lakes in the province and one in five people are boaters.

"Close to shore is a very heavy traffic area," Raskin says. "The potential for something happening is greater when you're dealing with the increased volume, and when you're looking at the relative inexperience of people operating — even if they're licensed — there's a higher probability you'll get into a mishap.

"A boat is harder to control than a car," he says.

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