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

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Before you get offended, I know that COVID is still around and people are still getting sick. But not quite as sick as they were in 2020/21. We understand a lot more about the virus than we did before,  and we have returned to gathering. Hence the title.

Today, our personal injury law firm settled a car accident case at mediation. It was a global mediation, meaning that both the tort claims (pain and suffering agains the at fault driver) and the accident benefit claims were at issue.

The mediation took place over Zoom. Between the adjusters, mediators and lawyers, there were 9 participants to the mediation.

All of this is not unusual.

Before Zoom, a mediation involving 9 participants would have required 1 main room, along with 2-3 breakout rooms. It would have needed some sort of catered lunch. It would have taken place at a hotel. One party lived in Penetanguishene, another in Grand Bend, another in London and others in the GTA. All of the parties would have needed to travel to a central location for the mediation; and perhaps stay overnight. The travel costs and room booking fees for all of the parties would be high; and would increase in the cost of the mediation and litigation.

Instead, all of the parties were able to do the mediation from the comfort of their own home; or offices. There was no need for anyone to leave early to catch a train home. Sometimes, those “leave early” to catch a train times worked out quite well. It forced the parties to cut to the chase and put out their best numbers earlier on in the process.

When the mediation was over, all of the 9 parties hit the “Leave Meeting” button on their screens and we were all back to where we all started. No travel time incurred or lost. Everyone was able to move on to their next task.

Leaving that mediation, I couldn’t help but think about the ways we conducted mediations before the Pandemic. There are a lot of moving parts for a mediation. Getting 9 people under the same roof in the same City or Town was never easy. Parties were always late for one reason or another. Whether it was traffic, bad weather, train or flight delays, or simply getting lost. That was the norm.

Nowadays, the norm for mediation delays in the Zoom era is poor internet connections which seem easier and much quicker to fix.

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If you have been following the new of late, you may have heard of how the justice system is failing Canadians.

There is a serious shortage of money being allocated to our justice system, which is resulting in excessive delays and cases being thrown out as a cause of delay.

Recently, personal injury lawyer Brian Goldfinger was interviewed by CBC News to speak about the delays which happened to one his his clients. The case is an important one. It’s one of the first cases of sexual assault involving the the Canadian Military to be transferred from military Court to civilian Court. Mr. Goldfinger’s client made the strategic decision to have the case transferred out of military Court into civilian court so that she could get a fair shake at justice. Retired Supreme Court Justice Louise Arbour recommended transferring all cases of sexual offences alleged to have been perpetrated by military members — including historical cases — to civilian authorities. It only made sense that Mr. Goldfinger’s client follow the recommendation of a retired justice of the Supreme Court of Canada.

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Being involved in litigation is miserable. It’s true!

Do you think it’s “fun” to be surrounded by lawyers? Is it fun to be compelled to attend at an Examination for Discovery to be grilled by lawyers you’ve never met? Is it “fun” going to Court? Do you consider it a good time having to be examined by a doctor who is hired by an insurance company to defeat your case or to deny your benefits?

Courthouses and court reporters offices are not meant to be “fun”. Litigation is not designed to be “fun” either.

Taking a step back and putting yourself in the shoes of a personal injury client; the litigation process can be quite aggravating and frustrating.

It’s slow.

It’s very time consuming.

It’s expensive.

The laws don’t make sense.

The laws provide more protections to the at fault Defendant than they do to the injured Plaintiff!

This doesn’t mean that you shouldn’t pursue your case. It means that it’s important for a Plaintiff litigant to have the right mindset as their case goes through litigation. Having the wrong frame of mind will cause undue stress, hardship and anxiety. But all of that can be put at ease if you approach your case with the right frame of mind.

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When someone gets into an accident, we think that the accident victim is automatically entitled to compensation. This seems basic, fair, and like the right thing to do.

Unfortunately, the law is not so simple, nor is it very forgiving.

The law is a donkey. It’s rather stubborn, unyielding, and once you think you have it figured out, it gives you a big kick in the you know what!

Just because you’ve been involved in an accident, even if the accident is NOT your fault; it does not mean that you are entitled to compensation. And even if you are eligible for compensation for your injuries or damages, it does not always mean that you will recover as much as you think you are entitled to.

Insurers and defence lawyers want to know how much money a Plaintiff has received since their accident. Not only that, they want to know how much money a Plaintiff might be eligible to receive even though they have not collected that money.

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Some fact patterns regarding car accident cases can’t be made up. I suppose that you could try; but the reality of what actually happened often exceeds the bounds of your imagination. They are often unthinkable scenarios fit for a law school exam.

To be eligible for accident benefits in Ontario, an injured accident victim must prove the incident meets the definition of an accident under subsection 3(1) of the the Statutory Accident Benefits Schedule. An accident is defined as:

“an incident in which the use or operation of an automobile directly causes an impairment …”

The key words here are “the use or operation of an automobile”. Those words have been defined rather broadly. They are largely fact specific.

If the Plaintiff can establish that the incident arose out of the use or operation of an automobile; then the Plaintiff will be eligible to claim accident benefits. Things like an income replacement benefit; an attendant care benefit; and medical/rehabilitation benefits which are not covered by OHIP. These benefits can really help make ends meet; and can go a long way on the road to recovery following a serious accident. If the accident is deemed as “catastrophic”, these accident benefits will exceed $1,000,000 in value. Being eligible for accident benefits is also important because they will be paid out irrespective of fault. That means where the accident is an “act of G-d”, or some strange fluke; or a single vehicle accident with nobody to sue; then the Plaintiff regardless of fault will be eligible for benefits which is very important.

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Facts don’t care about your feelings.

Neither does the law.

A Judge’s job is to assess and judge your case. There will be a winner, and there will be a loser. Sometimes, after legal costs and the time invested into a case are taken into consideration, all of the parties will be losers.

Cases are won and lost based on evidence. Contrary to popular belief, cases are not won based on your feelings or emotions. The law is hard on feelings and emotions. The cold, hard, truth which Plaintiffs need to hear is that Courts don’t care much for emotions (even though they say that the will listen); especially if the evidence isn’t there to support the case. Emotions can certainly bolster a case; but they won’t tilt the scales of justice without proper evidence to support the claim.

Evidence are the meat and potatoes of the case. Emotions, and feelings are the seasoning. You can certainly feast on meat and potatoes, but you cannot feast on seasoning alone.

It’s very difficult for an injured accident victim to separate their emotions, from the evidence at hand. This is understandably. Accident victims (for the most part) aren’t lawyers, and have never stepped inside of a Courtroom. They have no idea how the legal system works. Some believe that the party which yells the loudest; or who shows the most emotion before a Judge and Jury having not taking into consideration the evidence required for a successful personal injury case will be the victor. This could not be further from the truth.

In order to win a personal injury case, a Plaintiff must establish three factors:

  1. Liability
  2. Damages
  3. Causation

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Personal injury law is rather strange.

In all cases, the Plaintiff has been hurt or injured. Aside from being hurt or injured, the majority of Plaintiff share another thing in common.

The overwhelming majority of Plaintiffs have never been involved in a civil lawsuit before! That means that they have very limited knowledge about the Court system and how it works. They aren’t familiar with lawyers and legalese. They aren’t familiar with the law and how it works. But most importantly, it’s a message that these Plaintiffs aren’t litigious people. That means that they either don’t know how to sue, don’t want to sue, or want to stay as far away from the Courts as possible. Because let’s face it, the Courthouse is not a pleasant place to be. At the end of the day, the vast majority of Plaintiffs are legally unsophisticated accident victims who were in the wrong place, at the wrong time.

Yet, the Courts treat Plaintiffs who have never sued, never retained a lawyer, or stepped foot inside of a Courtroom like they should know all of the ins and outs of the law. And if they don’t know the ins and outs of the laws, large, highly sophisticated litigants such as insurers get to reap those benefits.

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Injured accident victims in personal injury cases will not get the benefit of the doubt.

A big part of that is because how our legal system works.

At law, an injured Plaintiff is required to establish their case to a Judge and Jury. The Plaintiff is required to bring evidence to the Court to prove that their allegations are in fact true. Without the evidence, the allegations are just that. Mere statements of demand, without any facts or evidence to back them up.

At trial, every Plaintiff will get up on the stand and suggest that they are in tremendous pain; and are enduring tremendous suffering.

But those statements aren’t enough. Without the evidence to back them up, they are just that. Self serving statements which will carry little weight at trial.

That’s not to say that a Judge won’t believe you; or won’t empathize with you. But a Judge will need more to make his/her ruling and award a Plaintiff the damages which s/he is seeking.

Explained another way: A Plaintiff cannot demand $1,000,000 and expect the Judge to award him/her $1,000,000 if there is no evidence to substantiate the claim.

These concepts are very important.

Why?

In my over 20+ years of practicing personal injury law, you would be amazed by the number of Plaintiffs who expect the law to work differently. Expectation of how are legal system works, and of how damages are proven does not mesh with the reality of how our system works. There is an expectation from many people that simply because they have been involved in a serious accident means that they will automatically be compensated for millions of dollars, without question or reservation.

That could not be further from the truth.

The harsh reality is that the legal system in Ontario is very difficult on Plaintiffs in personal injury cases. In fact, the way that the legal system works is that defendant insurers are afforded more protections than the injured Plaintiffs themselves. This seems contradictory given that the Plaintiff is the injured party and the Defendant caused injury to the Plaintiff. So why should more protections be afforded to an at fault Defendant as oppose to an injured, innocent accident victim who was simply in the wrong place, at the wrong time. This inequality of rights is magnified in car accident cases in Ontario where defendants are entitled to a secret credit of over $40,000 per claim regardless of fault (statutory deductible), and also entitled to the benefits of a threshold defence for the Plaintiff’s injuries (again, regardless of fault). This means that a Defendant could have been drunk driving, texting, and ran a red light; yet still; they will have the benefit of two very large statutory defences in order to escape a civil damages verdict at trial. Seems terribly wrong to many, but those are the cards which we have all been dealt in Ontario.

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linkedin-2-300x300Personal Injury Law in Ontario does not make sense. It’s overly complicated, and intentionally hides things from Jurors.

It would make sense to present a Juror (who likely has no prior experience being a Juror) with all of the facts so that they can make a just decision.

Yet, in personal injury cases, there are things which lawyers are NOT allowed to share with the jury. Insiders (like Judges, insurance adjusters, and lawyers) know about what can be shared with a jury, and what cannot. But jurors are intentionally left in the dark.

Here are a few things which lawyers cannot share with the jury, at a personal injury trial.

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For over a decade I have been blogging about personal injury law in Ontario, and across Canada.

Most of the time, I get into the nitty gritty about personal injury law.

Other times, but not very often, I comment about things completely unrelated to personal injury law, but those ideas are on my mind and I want to put my thoughts on wax. This is one of those times.

I have a young boy who is really in to soccer. He plays on a soccer team. He enjoyed watching the World Cup. He loves watching highlights of goals.  When is isn’t playing soccer, he’s kicking a ball around the house.

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