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When I first began practicing personal injury law, I quickly noticed how COMPLICATED Ontario’s regime of car accident law was. This was completely unnecessary.  Our government has made things so complicated, that lawyers need to specialize in car accident law in order to get results.

Car accident law should not be rocket science. In its purest sense, an innocent accident victim is seriously injured by another party who made a mistake or driving error. Rarely is there deliberate intent on the at fault party to cause a serious accident (save for drunk driving cases). There is no requirement for the parties involved to be sophisticated, knowledgeable of the law or wealthy. The at fault party should be responsible to compensate the injured party for the losses and pain and suffering. This sounds easy enough.

At Goldfinger Personal Injury Law, we have always engaged in making the law easy to understand for our clients. We want to break things down, so that people understand how things work, and how their case works.

This task has been made exponentially more difficult since April 1, 2016. The Ontario Government has moved all accident benefit disputes to a new Tribunal. New rules. New forms. More forms. More expensive to start the process for the injured. NO ACCESS TO THE COURT.

It used to be when you had a problem getting paid accident benefits, that you were able to apply for a FREE MEDIATION to the Financial Service Commission of Ontario (FSCO). FSCO was a Ontario Government body responsible for hearing all sort of accident benefit disputes between insurers and injured accident victims. There was a rich body of case law and detailed rules of procedure which had evolved. Insurers, paralegals, lawyers and even some members of the public knew how the system worked. There was familiarity. It was tailored specifically for accident benefit claims. And if matters didn’t pan out of FSCO, it was within the claimant’s power to keep pursuing the claim via Arbitration at FSCO, or leave FSCO entirely and sue instead before the Ontario Superior Court of Justice. There was a level of flexibility and control there which allowed the claimant to control the process to some extent. There were also many opportunities for settlement along the way.

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99% of personal injury cases in Ontario settle without ever going to trial; or without ever seeing the inside of a Courtroom for that matter.

The same cannot be said for criminal cases in Ontario. The government keeps stats on the percentage of criminal cases which go to trial. These stats are displayed on the Ontario Court of Justice website, and vary from month to month, depending on the offense.

There are a lot of lessons which can be learned when a high profile case such as the Ghomeshi case goes to trial. What happened in that downtown Toronto courtroom, isn’t dis-similar to what happens in other courtrooms across the Ontario. The primary difference is the amount of media attention which the Ghomeshi case garnered, and continues to attract.

What the personal injury lawyers at our office found so amazing, was the analysis and evidentiary principals applied in the highest profile sexual assault case we can think of; are VERY similar to the analysis and evidentiary principals which are applied in your run of the mill car accident, slip and fall, or long term disability case.

Our lawyers were also amazed at how many people chimed in on the findings of the decision of the Honourable Justice Horkins, without actually having read the transcripts from trial, read the Judge’s decision, or without having attended at Court in person to listen to the evidence presented.

Very quickly, if you haven’t read the decision from the Ghomeshi case, we urge you to do so. It will be a primer to how our legal system works and how our legal system weighs evidence. A link to the Ghomeshi decision can be found here.  Evidence is the building block to any case. Without evidence, our legal system doesn’t work.

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I was just visiting my local bank. All across the banker’s desk were glossy flyers advertising critical illness and mortgage insurance. Behind the banker’s desk, there was a lovely poster which again, promoted critical illness and mortgage insurance.

The promotional material paints a very nice picture of what critical illness and mortgage insurance can do for you; should things go terribly wrong.

 

The narrative went something like this:

“I was diagnosed with terrible cancer…Thank goodness I had critical illness insurance with (Insert Name of Bank/Insurer here). Thanks to (Insert Name of Bank/Insurer here) I was able pay off my debts and live with dignity”.

The photo featured a happy and smiling family. Other photos showed a person who appeared to have a very serious and worried look on their face. Either way, these advertisements really drew on the heart strings.

In theory, critical illness and mortgage insurance policies are fantastic. In theory that is. When you get diagnosed with a “critical illness“, or with a “disability“, then your insurer will automatically pay out a lump sum cash benefit. No questions asked. This sounds great; doesn’t it!?

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Dear Ontario Drivers:

I am writing to update you on recent legislative changes that affect your car accident claim; in particular your Accident Benefits claims with your own insurer. There are two sides to any car accident lawsuit; the Accident Benefits file with your own auto insurer, and the main action against the driver who caused the accident. The Accident Benefits file is meant to provide money up front to cover things like income replacement (in part) and treatment expenses. It is important to get everything you can from the Accident Benefits side of the law suit so that you can maximize your recovery and reduce the losses from the car accident. The changes to the law are on the Accident Benefits side.

As you may know, when your insurer refuses to pay for a benefit, you have the right to apply to the Financial Services Commission of Ontario (FSCO). The process starts off with a Mediation teleconference where we try to convince the insurer to pay. If that fails, we proceed to the next step, being the Arbitration, where an Arbitrator makes an official ruling as to your entitlement, or lack thereof, to the benefit in dispute. The insurance company has to pay a $3,000.00 fee towards the Arbitration – we only pay $100. The Arbitrators who decide on the issues are known to be quite fair and whenever there is an ambiguity in the law, they tend to interpret the rules in favor of the injured party. Furthermore, the Arbitrators’ decisions are binding on one another, so if an Arbitrator makes a general ruling about an issue, the insurance companies tend to accept it easier knowing that another Arbitrator will likely make the same ruling. For the above reasons, the FSCO process is an acceptable form of dispute resolution although it is far from perfect and there are often long delays before you get a decision.  Continue reading →

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The winds of change aren’t just blowing for car insurance in Ontario. They’re howling! Over the past 8 months, Ontario’s government has announced a major overhaul to how personal injury disputes arising from the use or operation of a motor vehicle are dealt with.

Why is this important to you?

For starters, if you drive a car, or a passenger in a car and sustain any sort of injury, then these changes will impact you. Secondly, it’s the LAW if you drive a car or motorcycle to have insurance. If you drive a motorized vehicle without insurance, then you’re breaking the law and you don’t want to do that. Because car insurance is a requirement, then it ought to be GOOD, and not a hollow policy.

In Ontario, we have a no fault system of accident benefits. These accident benefits are there to protect policy holders, like you and me. The intent of the accident benefit system and the surrounding legislation is CONSUMER PROTECTION LEGISLATION. We are getting away from that “Consumer Protection” part as each day goes by.

Here are some of the highlights from the drastic changes which will kick in effective April 1, 2016 and June 1, 2016:

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The stereotypical image of an injured accident victim in a personal injury case involves a person in a wheelchair, wearing a neck collar, with multiple casts on their legs and arms. Their lawyer is pushing the wheelchair from behind, in to a Court room, parading them before a Judge and Jury so that they can get an appreciation of their injuries.

Some paraplegia and quadriplegia accident victims are certainly like this. These case are no joke. But not every case is a involves paraplegia or quadriplegia.

In most cases, broken bones mend such that the injured accident victim is no longer in a cast at the time of their trial, hearing or mediation; which can take up to 5+ years to get to following a serious accident if things get delayed.

Most injuries are invisible to the judge, jury and insurance company. These might be scars under concealed clothing. Or they might be injuries to the brain, mind, psyche, emotions and cognitive abilities of the injured party. These injuries cannot be seen at first blush. But with some probing and some digging in to the medical evidence, they will come out with the assistance of a skilled lawyer by your side.

Following a serious accident, one of the first things which a lay person first notices are the physical injuries like the broken bones. What can get missed are those other invisible injuries I’ve just eluded to. Unlike broken bones, which can get better over time; these invisible psychological and cognitive injuries get worse and become more pronounced as time passes.

These invisible injuries often come on when somebody bumps their head, losses consciousness or sustains a concussion following a traumatic accident. The accident can be severe such that an MRI picks up spotting on the brain. Or it can be light such that the head simply whips back against the head rest causing a bad knock to the head whereby your mood and cognitive symptoms get worse over time. When these sort of injuries occur, lawyers are able to categorize them as brain injuries. All brain injuries are severe; although some are more pronounced than others. There is no magic pill to make a brain injury go away. There is no cast for the brain. No magical cream, balm, application or band aid to make the brain better. It’s a delicate organ in your body that can’t be replaced.

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Here’s the scenario:

You’ve been working diligently for the same employer, at the same job for years. You’ve given it your all. Countless hours of pain staking work. The job pays well. You have some great colleagues at work. And you have a benefits plan that you believe is fantastic. Part of that so called benefits package is disability insurance; which; in theory; you’ve been told will cover your wages if for whatever reason you can’t return to work on account of injury, illness or disability. You know little about the disability plan because you’ve never had to use it before and you’ve never missed out on work for a prolonged period of time. Your past work attendance has been excellent. Your performance reviews are always top notch.

And then; things happen to change. Some really bad luck. A fall here that never quite heals. You throw out your back on account of a minor slip and fall. Or perhaps chronic pain starts to take over your body such that you can no longer focus, get out of bed or function like you used to. Or maybe you just aren’t the same person any more on account of psychological illness like anxiety, depression, sadness or a combination thereof. Perhaps you’ve been diagnosed with chronic pain or fibromyalgia. Whatever the reason, disability happens. Unfortunately, it’s a part of life for many. And when disability happens, you would hope that your long term disability insurer and employer are both there to support you when you need the help the most. After all, you’re the all star employee who has given it his/her all over the past 10+ years at work.

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This morning, I saw some of the most gruesome video tape of an assault I have ever seen in my years as a personal injury lawyer. The video depicted a horrific assault of one man, pummelling a defenceless man who had been knocked unconscious from a series of punches to the head.  Even though the man being beaten lay motionless on the ground, he was still being punched repeatedly in the face. Unlike a Mixed Martial Arts fight, there was no referee to stop to beating. It continued for what seemed to be an eternity. This was rated “R” footage that would have made anyone cringe. Even a personal injury lawyer such as myself who has seen some pretty nasty images over the years.

As a result of the serious beating, the injured party sustained a fractured orbital bone, along with brain damage. This does not take in to consideration the bruising cuts to the victims face. He had to be rushed to hospital in Toronto following the attack, where he remained for 3 days following his discharge home.

In years past, this assault would have been described by the victim or any witnesses in words; based on foggy memory. Those memories get even foggier as time passes. If the victim or the witnesses had consumed alcohol or drugs at the time of the attack, then chances are those memories are even foggier.

Around 10 years ago, when injured parties and witnesses were asked to provide their best recollection of the events giving rise to the claim, all they had to go was based on these foggy memories, notes, or perhaps photos taken at the scene.

But all of that has changed over the past decade. Cameras have gotten smaller and smaller; and those cameras now have video capabilities. Every cell phone on the market today, with a few exceptions, have both photo capability and video capability. And there are now more cell phones on the planet than people. Cameras are so small today, and can be connected to almost any computer device, they can fit on any surface; from a dashboard cam on a car; to the back of a pen/pencil.

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This will be a fun edition of the Toronto Personal Injury Lawyer Blog. First, we would like to congratulate our founder and directing lawyer, Brian Goldfinger, on his recent naming to the Legal Elite for 2016 by London Business Magazine. The Legal Elite recognizes the brightest and best legal minds in London, ON and Southwest Ontario. This is Brian’s second consecutive year being named to the Legal Elite. We are glad to see all of Brian’s hard work representing injured accident victims and disability claimants getting some fantastic positive recognition in the community. None of this could be accomplished without the hard work from the team of hard working lawyers, law clerks, rehabilitation professionals and support staff at Goldfinger Personal Injury Law which have helped Brian fight on behalf of his clients. A big thank you to everyone behind the scenes for making this award possible.

Here is a link to the feature article on Brian Goldfinger being named to the 2016 Legal Elite by London Business Magazine.

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Litigating Long Term Disability Claims (LTD Claims) can be tricky, especially when the injury is an invisible one; such as chronic pain or a psychological injury.

Firstly, it’s important to note that Long Term Disability Claims aren’t your typical tort or pain and suffering claims. These are special sort of cases.

What this personal injury lawyer means by that; is that the insurance company didn’t intentionally hire a hit man to whack you over the head with a sledge hammer to cause your pain and suffering. While it may feel like the insurer is intentionally causing you harm, the reality is, that in a vast majority of cases; they didn’t do anything intentional to cause your disability. We acknowledge that there are small exceptions where the behaviour of insurers is so outrageous and so disrespectful that it adds to the harm ; or causes harm. BUT, the reality is, that in most cases, while the insurer may have contributed to your harm by their denial of your claim, in the vast majority of cases; they likely didn’t cause you to be disabled in the first instance. The classic example of this was as stated: they didn’t hire somebody to hit you with a baseball bat to cause you to go on disability. Your health can deteriorate over time for a wide variety of reasons. Stress and anxiety from a denied LTD claim? Sure. But there are likely a wide variety of factors which have led to you being disabled from working.

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