COVID-19 Update: How We Are Serving and Protecting Our Clients

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After a serious motor vehicle accident, you will need a lot of help.

You will need help from doctors, nurses, personal support workers. occupational therapists, massage therapists, chiropractors, surgeons, internists, nutritionists, speech language pathologists, social workers, psychologists, psychiatrists, lawyers, accountants, friends, family and more!

Some of these services are FREE because they’re covered by OHIP.

But most services are not free and need to be paid for by an insurance company, or out of your own pocket. The cold hard truth is that most rehab services which don’t fall under the heading “doctor” are NOT covered by OHIP and cost a lot of money. If the insurance company won’t pay, or if you don’t have the means to pay for these services on your own; chances are you won’t get these much needed rehabilitation services.

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During the Pandemic many lawyers and insurers have been very helpful, kind and considerate given the global health crisis we are all dealing with.

At the same time, some lawyers and insurers have been the exact opposite.

As lawyers we have an obligation (or a duty) to be part of the solution and not part of the problem.

This means pivoting and adapting to make things work.

Filing documents with the Court electronically? We’ve made that change.

Conducting examinations for discovery, mediations, pre-trials, case conferences and trials electronically? Evolved to do this as well.

Serving documents on other parties electronically? Check!

E-transferring settlement funds? Yup!

Commissioning Affidavits virtually? Yes!

All of these changes have taken place over the Pandemic to make the practice of law safer for lawyers, litigants, judges, clerks, witnesses and everyone in between so that the legal system can move forward even in the face of a global Pandemic which has cost so many lives.

Participating in the legal process should not be dangerous. You should not have to put your health at risk participating in a case. This is exactly why these changes have been brought about.

Yet some lawyers, and some insurers continue to resist these changes.

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September 30, 2021 marks Canada’s first ever National Day for Truth and Reconciliation. The day honours the lost children and Survivors of residential schools, their families and communities. Public commemoration of the tragic and painful history and ongoing impacts of residential schools is a vital component of the reconciliation process. Better late then never?

As a personal injury lawyer, the big theme in the title of National Day for Truth and Reconciliation is the word “Truth“.

We are told as children, adults and throughout law school the importance of telling the truth; along with the importance of seeking out the truth.

But the truth can mean different things to different people.

How so?

There are two types of truths.

There are objective truths. These are facts or findings which nobody can deny or contradict.

Mathematics such as arithmetic and trigonometry are objective truths.

The time of day is an objective truth.

The earth being round (though not to Kyrie Irving); the planets orbit the sun, the chemical formula of water being H2O. These scientific truths are objective.

If you seek to discredit these objective truths, you will either be wrong; or appear as delusional. Or perhaps you’re a savant who has stumbled onto a new way of thinking which breaks the barriers or speed, sound and time; in which case we have all got a lot more learning to do 🙂

I trust you understand where I’m going with objective truths.

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Today is Election Day in Canada. We elect a new, or a returning Prime Minister. This is exciting. Will there be a majority government, or will we see another minority government?

These are important questions! Some political basics:

A majority government can do whatever they like; whenever they like! There’s no need to ask the other party what they think or how they feel about an issue. The majority government sets the agenda about what to speak about; and when to speak about those issues. The majority government can prorogue parliament whenever they like at their convenience. Even if the laws they pass don’t seem fair to Canadians; those laws can get passed and then challenged in Court. Even if the Court rules that the laws are unconstitutional, the majority government can invoke the Notwithstanding Clause to get their way! Dare I say, it’s like a majority government has the powers of a dictator.

With a minority government there needs to be some cooperation because one party alone can’t get their way. It forces parties to work together to get things accomplished. This may sound great in theory, but in practice little gets accomplished because nobody is eager to concede or to back down and appear weak. Cooperation in everyday life is important. But politics isn’t everyday life. Letting another party get their glory or appear to have got the job done is a loss to the opposition parties; so there’s no political incentive to cooperate. What might be in the best interest of Canadians may not be in the best interest of a political party. Hence the dilemma. Are the politicians and political parties really there for the right reasons; or is all for the glitz, glamour, ego, power and prestige that comes with office. You be the judge. Dare I say its the later.

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Good timing can mean the difference between a winning personal injury case, and a losing personal injury case. In fact; timing can also spell the difference between being involved in a serious accident; and missing a serious accident.

Accident victims aren’t looking to get into accidents in the first place. They are simply in the wrong place, at the wrong time. But for some serendipitous timing and bad luck, they would not have been involved in an accident in the first place. Hence, they would not need the assistance of a personal injury lawyer. But accidents much like bad luck and bad timing happens. That’s life.

At law, there are limitation periods. This means that an injured accident victim cannot wait forever, or wait too long to retain a personal injury lawyer and start their claim. Waiting too long to get the legal process started has consequences.

Defendants will argue that waiting too long is unfair. Lawyers will call that unfairness prejudice. You will often hear from Defence lawyers that the delay is “prejudicial to their clients” because of reasons A, B and C. Sometimes this is true. Other times, it’s legal mumbo jumbo for they just want to get the case dismissed on account of delay.

Here’s a case where there can be prejudice to a Defendant for delay:

The Plaintiff waits so long to start their case that evidence is destroyed, witnesses can’t be tracked down or if they are, their memories of the events have faded, and investigations by a Defendant cannot be made until it’s fall too late. That’s certainly fair. Continue reading →

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In tort law, one of the first and most important things lawyers are taught is to sue a Defendant with deep pockets and an ability to pay out a Judgment.

The only remedy in a personal injury case is money.

There is no ticker tape parade for the victor of a lawsuit. The Court cannot order the Defendant apologize, or be your servant for as long as it takes a Plaintiff to recover from his/her injuries. All which a Judge or Jury can do is order that the Defendant pay you compensation for your injuries and damages.

If a Defendant does not have the ability to pay the Judgment, it doesn’t mean that they go to jail. It also doesn’t mean that they can’t drive a car, work, or otherwise have their freedoms taken away. If a Defendant doesn’t pay, and doesn’t have the assets to pay a Judgment; then the Plaintiff is out of luck. The Judgment is without any real monetary value. While it may be satisfying or vindicating for a Plaintiff to have “won” the case; if the Defendant doesn’t have the ability to pay the Judgment the Plaintiff won’t get any compensation.

This is why it’s so important for a Plaintiff to sue a Defendant who has the ability to payout on a potential Judgment. This is why insurance matters.

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We aren’t tone deaf at the Toronto Injury Lawyer Blog.

Back to School is around the corner. But Back to School 2021 in the midst of a looming 4th wave during the Global Pandemic brings a new unprecedented set of worries and anxieties for parents, teachers and students. The large boogey man in the room is the COVID-19 Delta variant which is more transmissible than it’s predecessors.

Children under the age of 11 aren’t vaccinated; so what do you do?

You can keep the kids at home and continue with online learning at the risk of isolating kids, hurting not only their education but also their mental health.

Or, you can send the kids back to school and hope for the best.

Whatever option you select is your decision to make. Nobody can tell you that it’s right, or wrong. These are unprecedented times which we aren’t accustomed to. No matter how much we try to tell ourselves that “this is the new normal“; there’s certainly nothing normal about it.

Now that the COVID-19 Delta variant is out of the way, we can talk about what to expect the first day after Labour Day once schools open up.

For starters you will see an increase in pedestrian, bike and vehicle traffic on the roads. More cars, more buses, more mini vans, more people taking kids to and from school. This means we all need to be a little bit more careful getting to where we need to go. That stands for pedestrians, cyclists and motorists alike.

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Car accident insurers love jury trials.  How do I know this? Because in 99% of the car accident cases I have seen, Jury Notices are filed by the Defendant Insurer. If car insurers didn’t LOVE juries, they wouldn’t file jury notices so often.

What explains the car insurance industry’s affection of Jury Trials?

For starters, Juries are unpredictable. You have no idea if they will favour a Plaintiff, or a Defendant.

Is it because Jurors aren’t paid for their time and will be irritated that they have to miss work without pay sitting on a Jury? That feeling of irritation for being there will weigh negatively against a Plaintiff who brought the claim in the first place.

Is it because Jurors have to pay for parking (at select Courthouses) and gas to get to the Courthouse without getting compensated for their out of pocket expenses? That would weigh negatively against a Plaintiff as well.

Is it because instead of hearing an interesting case like you would see on television (murder, racketeering, drugs); instead they have to hear a car accident case where the main issue in dispute isn’t liability, but rather pain to a Plaintiff’s head, neck, back and shoulders which can get boring and stale pretty quickly. That doesn’t sound like a fun trial to hear at all, particularly if it goes on for a long time. There’s another factor which weighs negatively against a Plaintiff.

In all of these scenarios, a Juror doesn’t know which party filed the Jury Notice. As a result they look at the Plaintiff with extreme distain knowing that it was the Plaintiff’s case has caused them to sit on a Jury in the first place. Essentially, the Plaintiff is seen as wasting the Juror’s time and losing the Juror money when all along the Plaintiff never filed the Jury notice to begin with.

This is the harsh reality of civil jury trials in car accident cases in Ontario. But that reality gets even more harsh.

The will of then Jury is suppressed when awarding damages in a personal injury case.  On top of that, Jurors are left in the dark for car accident cases. 

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On August 10, 2021 the Honourable Justice Grace ordered that “all civil jury trials scheduled to commence in London, Ontario during September, October, November and December 2021 and all civil jury trials scheduled to commence in London, Ontario during September and October 2021” are adjourned. There will be a special civil assignment court to be conducted by teleconference on September 16, 2021 at which time new trial and potentially new pre-trial dates will be set.

The reason for the blanket adjournment of all of these civil trials? COVID-19.

His Honour cited “the impact of COVID-19 on the operations of the Superior Court of Justice and the significant backlog of criminal and family cases”.

Omnibus_Endorsement_of_Justice_Grace_re_civil_trials_for_Fall_of_2021_London (1)

So where does that leave your personal injury or long term disability case?

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Most unionized employees have benefits through their employer. Those benefits have been negotiated by their unions as a perk of employment. They help make life inside and outside of the workplace that much better and add a layer of security and value to one’s employment.

But if you asked a unionized employee what benefits they are covered for, and for what amounts: most will tell you that they aren’t really sure; but they are sure that they are covered for some things (dental, physio, life, disability or something else).

Not every employee memorizes their benefits booklet and that’s ok. Those benefits booklets can also get confusing given that employees are assigned into different categories where insurance benefits and amounts vary depending on the level of seniority or position of the employee.

You union can play a big role, or a small role in your long term disability claim.

Understanding the interaction between the employee and his/her union in the context of a long term disability claim is important. Failure to understand the union’s role can defeat a long term disability claim before it even has the chance of getting off the ground.

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