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TORONTO INJURY LAWYER BLOG
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The Law Society of Upper Canada is the regulatory body which governs lawyers in Ontario. They are considering some changes with respect to how lawyers do business, and administer services throughout the province.

Currently, lawyers can provide legal services to the PUBLIC in a wide variety or ways:

  • A sole practitioner: a lawyer operating alone or with other non lawyer employees (lawyer owned personally)
  • A Professional Corporation: a lawyer operating a law firm through that lawyers professional corporation (lawyer owned through the PC)
  • A Limited Liability Partnership (LLP): Lawyers in partnership running a law firm (lawyer owned)
  • A Limited Partnership (LP): A lawyer partnering with another lawyer or a non lawyer to form a parnership (lawyer owned)
  • A Multi-Disciplinary Practice (MDP): A lawyer partnering with another business professional to provide a variety of legal and non-legal services (lawyer owned with others)

Those are the basic models of business associations for Ontario Law Firms. The LSUC is considering allowing non-lawyer ownership of law firms in the form of Alternative Business Structures.

This would allow non-lawyer investment and ownership of law firms. The LSUC is considering whether or not to allow non-lawyers minority ownership or whether or not there should be unlimited restrictions on who can own the law firm.

Australia and the United Kingdom have permitted UNRESTRICTED ownership  by non-lawyers of law firms. Spain, Italy, Denmark and Singapore allow minority non-lawyer ownership.

The question is, what should Ontario do; and how will it impact the legal landscape?

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Driving while using or even holding a hand held device has become a hot button topic across Canada. Charges in relation to distracted driving are on the rise, and are slowly catching up to those charges related to impaired driving.

In Ontario, it’s illegal for drivers to talk, text, type, dial or email using hand-held cell phones and other hand-held communication or entertainment device; think smartphone or I-Pad.

Attentive drivers keep their eyes on the road and their hands on the steering wheel. They aren’t distracted by their tablets or cell phones. It’s proven that drivers who operate cell phones while operating a motor vehicle are 4x more likely to be involved in a car accident than drivers who simply focus on driving. Even more interesting is that when motorists take their eyes off of the road for more than 2 seconds, the chances of them being involved in a car crash almost doubles. This is why it’s so important to keep your eyes on the road and not your phone.

Impaired driving is something different. When we thought of impaired driving in the past, we thought of driving under the influence of alcohol (over 80 as the term is commonly called in Ontario Courts, because that’s the legal limit).

Today, driving under the influence isn’t just limited to drunk driving offences. Ontario is currently 1 of 3 Canadian jurisdictions without any specific offenses related to driving under influence of drugs or other narcotics. We ought to have specific laws which prevent and prohibit such behaviour right?

The Ontario Legislature is presently in its third reading of Bill 31, which might be called “Making Ontario’s Roads Safer Act, 2015; or something really catch and original like that. You know how the Government likes originality and long titles for its acts. If you haven’t read a copy, you should check it out here.

The Act will carry specific wording with respect to operating a motor vehicle while under the influence of drugs or other narcotics.

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Our law firm litigates countless Long Term Disability (LTD) claims against large, multi-national insurers such as Great West Life, Sun Life, Manulife, Industrial Alliance, Desjardins, SSQ, Canada Life, Empire Life, RBC Insurance, Co-Operators, Equitable Life and the list goes on.

Litigating these claims can prove to be difficult for a variety of reasons.

It’s important for all claimants to understand that these claims are based on what the policy says. In our office, we refer to this concept as the four corners of the insurance policy.

There are certainly ways around these four corners, along with way at tackling damages for LTD claims which are outside of the scope of the police such as punitive, aggravated and damages for mental distress. But these topic will not be covered in this edition of the Toronto Injury Lawyer Blog Post.

For now, we are going to focus on damages under the LTD policy.

The policy will define what the monthly LTD benefit amount is; how long benefits will be paid for; when those benefits will begin to be paid; what medico/legal definition a Plaintiff must meet in order to be considered disabled under the policy; what injuries are and aren’t covered under the policy; and what exclusions would limit recover under the policy.

Plaintiffs/Claimants don’t write their policy. Insurance companies do. Accordingly; many provisions contained in long term disability policies aren’t there to protect claimants. Rather, they are there to protect the insurer’s interests so as to mitigate their damages and minimize any potential pay out.

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This week the Ontario Court of Appeal released a much awaited decision in the case of Westerhof v. Gee Estate. The appeal raised the question of whether or not the Rules of Civil Procedure allowed only experts engaged by or on behalf of a party to provide opinion evidence for a case; OR whether the Rules ought to be construed more broadly such as allowing ALL witnesses with special expertise to provide opinion evidence. This later group is much broader broader and could include treating doctors (family doctors) who have not been formally retained by either party to the litigation to provide their opinion evidence.

In order to better understand this case, it’s important to understand what happened in 2010. That year, the Rules of Civil Procedure were amended to create Rule 53.03 which set out requirements, and also set out that an expert must sign a specific form called an Acknowledgement of Expert’s Duty Form (Form #53). Continue reading →

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Only 1% of car accident cases go to trial.

That means that 99% of car accident cases settle outside of the courtroom.

There are many advantages to settlement. Certainly of the settlement and the lack of appeal rights of the parties to the settlement come to mind. You control your own destiny in a settlement vs. the uncertainty of the trial process (and appeal process thereafter).

This is very important because if you win big at trial, there’s nothing stopping an insurance company from tying up the case for many more years through their appeal rights following a trial.

But I don’t want to focus on settlement in this edition of the Toronto Injury Lawyer Blog Post. What I would like to focus on is what happens when a case actually goes to trial, in front of a jury.

Jury trials need to be requested by one party or the other. They aren’t automatic. A party will file a Form 47A Jury Notice. Some cases (such as cases against a Municipality) forbid jury trials.
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Clients frequently believe that because a car accident happened, and they’re not at fault, that they’re automatically entitled to compensation for pain and suffering.

That might have been the case in the 1960’s or 1970’s during the “auto-lotto“, but that’s certainly not the case in Ontario anymore.

Lawyers refer to those times as the “auto-lotto” because just being involved in a car accident, no matter how minor, likely resulted in some form of recovery for the Plaintiff.

The laws have changed dramatically, and because of these changes, insurers are looking to different factors in their assessments to claims.

Having over a decade of experience representing accident victims in helping them get the compensation they deserve, our lawyers have observed several trends which insurers look to in assessing the value to car accident claims. These little things aren’t things which people normally think of; but which insurers place a lot of weight on.

With this latest edition of the Toronto Injury Lawyer Blog, we will examine what those sometimes overlooked factors are which insurers place a lot of weight on; which people tend not to give much thought about.
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The term Fibromyalgia is becoming dated, although doctors, insurance companies and disability claimants still use it.

The preferred term according to the Arthritis Society of Canada is “Chronic Widespread Pain“.

Many of our clients deal with Fibromylagia/Chronic Widespread Pain. We often see it associated with many other symptoms including but not limited to depression, anxiety, fatigue, impaired memory, impaired concentration, shortness of breath, and irregular sleep patterns/habits.

Some doctors believe in Fibromyalgia. Other simply don’t.

Firbromyalgia and Chronic Widepread Pain have been recognized and National Guidelines have been endorsed by the Canadian Pain Society and the Canadian Rheumatology Association.

But for many large, deep pocketed insurance companies, those endorsements aren’t enough to prove an injury or a disability under a Long Term Disability Policy with an insurer like Manulife, Great West Life, SunLife, Desjardins, SSQ, RBC Insurance or Industrial Alliance just to name a few of the big ones.
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In Ontario, injured parties who are seeking for compensation generally have 2 years from the date of the accident, or the date of denial to sue. With the exception of minors and sexual assault claims, this is the general rule of thumb which it should not be taken lightly.

This two year period in which Plaintiffs have to sue is called a “Limitation Period“. And if you miss that limitation period to commence your claim, then you’re out of luck.

We have a specific Act in Ontario devoted specifically to limitation periods. It’s called the Limitations Act, 2002 and it sets out the time periods in which you can, and can’t commence a claim.

Determining when a limitation period begins to run in a car accident, or bike accident case is pretty easy. The time begins to run from the date of the accident itself. It doesn’t take a rocket scientist, or an elite personal injury lawyer to figure this out.

BUT: what happens when the triggering event from when time begins to run isn’t as clear as a car accident. What happens in cases not caused by torts or negligence on a identifiable date; such as in a long term disability case for benefits which have been wrongfully denied.

That’s when limitation periods can get tricky and when disability claimants and injured parties can get tricked. Keep reading so you don’t get tricked like countless others.
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More often than you could possibly imagine, we here at Goldfinger Personal Injury Law are courted by other lawyers, professional bloggers, advertisers and spam services to post content, links etc. on the Toronto Injury Lawyer Blog.

We have never, and repeat NEVER caved. Only lawyers and other staff members of Goldfinger Law have ever posted on the Toronto Injury Lawyer Blog. All of our content is original, and is 100% Goldfinger Law. Can’t you tell? We have a certain style and panache which people have come to love.

Today is a momentous day. We are honoured to have a very special guest blogger to add his two cents on the field of personal injury law. We have allowed this lawyer to have his say on our blog because we certainly respect this lawyer’s ability, legal wit, and passion for the law.

Stephen Offenheim is a Toronto lawyer who has been practising on in the field since lord knows when. He is a seasoned litigator to say the least. Stephen has been an inspiration and has given me plenty of guidance over the years. It’s an honour to have his as the first ever guest poster on the Toronto Injury Lawyer Blog.

So, without further a due; here is the lawyer himself, Stephen Offenheim covering the topic why it’s important NOT TO LIE in your personal injury case. Enjoy!
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There are three elements to any personal injury case.

Element #1: Liability: How did the accident happen and who’s to blame? The concept of liability is straight forward in many cases. A drunk driver runs a stop sign resulting in catastrophic motor vehicle accident. Establishing liability against the drunk driver is easy to establish. The driver was drunk and on top of that, they ran a stop sign. The drunk driver is at fault of the car accident. Liability is established. Sometimes liability isn’t so clear and an engineer or another expert will need to be retained to look in to this issue. This expert will be able to tell us whether or not we have a case and whether or not we can place blame on another party of the event giving rise to the litigation.

Element #2: Damages/Injuries: What are the injuries from the car accident. Is it a simple bruise which goes away in a week, or are the injuries severe, like a brain injury along with multiple orthopedic injuries. Understanding this concept is somewhat straight forward as well for many accident victims because it’s easy to visualize and more tangible than other legal concepts. If Superman were involved in a car accident, chances are he wouldn’t have sustained any injuries or damages. Hence: he wouldn’t have much of a personal injury case if Superman weren’t injured. Sorry Superman.

Element #3: Causation: : There must be some form of connection between the Bad Guy Defendant’s conduct and the Accident Victim’s injuries. This term is sometimes called “remoteness of damage” or “proximate cause“. Either way, this third element is the most difficult for accident victims to understand.

Sometimes causation is easy to prove. Suzy broker her leg in a car accident. Suzy is seeking compensation for her broken leg from the car accident. Thomas slipped and fell and bumped his head. Thomas is seeking compensation for his head injury from the slip and fall accident.

But sometimes causation is not so simple/clear. Johnny was in a car accident and hurt his knee. Now Johnny complains of headaches, fatigue and shortness of breath. Alice was bit by a dog and sustained abrasions to her legs. Now Alice is deeply depressed and can’t sleep. Marvcus lived in a mouldy apartment building. Now Marvcus has a bad cough. Marvcus has since moved out of the apartment building but still has a bad cough and can’t sleep properly.

The focus of this edition of the Toronto Injury Blog Post will examine the concept of Causation, along with the pitfalls many of us encounter along the way. It’s dedicated to a fellow colleague of mine based out of Toronto who gave sage advice to me in my youth and was a mentor of sort in assisting me in getting in to law school, so where we go.
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