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

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The purpose of the Toronto Injury Lawyer Blog is to deliver news and views on the field of personal injury law in Ontario.

But we’re not tone deaf.

Writing about the stories of a personal injury lawyer can be off the mark in the times we’re living in. We don’t want to be blind or naive to what’s happening around us.

This COVID Pandemic we are living through is pretty messed up.

We’re told that in order not to get COVID, you need to distance and isolate from people.

And once you get COVID, you need to further distance and isolate from people.

So either way you cut it; you’re distancing and isolating; thus making COVID; and living during this Pandemic a very lonely and isolating period of our lives. It doesn’t have to be, but it is.

I know from experience.

My 7 year old daughter tested positive for COVID a few months ago. She caught it from a classmate at school. She had not symptoms but needed to get a test because a classmate had tested positive. It turned out that she tested positive as well.

Where the classmate contracted it from is unknown and irrelevant. The school followed all the precautions you hear about. Students are distanced, masked, plexiglass work stations etc. Didn’t matter. These variants are nasty and super catchy.

It’s really hard for a 7 year old to deal with having COVID. I can only imagine all of the emotions and questions she was going through.  Can I be cured? Will any of my friends want to speak with me again? Will any of my friends still be my friends once this is over? Will I be shunned at school? What did I do wrong? Are my parents mad at me? Have I disappointed them? When can I go back to school?  Will COVID spread to my family or to my beloved hamster? Why me? Why did I get COVID and not somebody else? Am I going to be ok? Am I going to die?

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Lawyers are held to a higher standard. We are. Because the profession demands it. The general public demands it. Our Rules of Professional Conduct command it.

So, when the COVID-19 Pandemic hit, the legal profession adapted. A general acceptance of Zoom for Trials, Pre-Trials, Examinations for Discovery, Mediation, Hearings etc. Acceptance of more emails, electronically executed documents and a large pivot towards accepting new technology.

Courts on the other hand were a bit backwards. In person hearings and jury trials were off; then they were on; then the Courts took a wait and see approach. Important and urgent criminal matter trucked ahead. Compelling jurors to leave their homes in the midst of a Pandemic; risking their health to hear a civil matter about money seemed then; and still seems today like a huge ask. But the Courts continued to make that ask of the public irrespective of the health of jurors or others they would come in contact with.

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Slip and fall accidents resulting in serious injuries can be very difficult on the innocent accident victim; particularly when it comes to making ends meet.

How and when will lost wages be paid?

How and when will treatment costs not covered by OHIP be paid (physio, massage, chiro etc.)?

Will attendant care services be available and if so; who will pay for those services?

How do my out of pocket expenses get paid?

What about my damaged glasses or clothing? Will I be compensated for that; and if so; when?

These are all valid questions and concerns which a number of our slip and fall or trip and fall clients have expressed to our personal injury lawyers.

In a car accident case, all of these items are covered through Ontario’s no fault accident benefit coverage. That’s means that so long as you meet the disability test(s) for these benefits; and they are deemed to be reasonable and necessary, these benefits will be paid out to the accident victim.

In a trip and fall case, or slip and fall case, accident benefits are NOT available to the innocent accident victim. There is no interim insurance (unless privately purchased) which will cover these heads of damages. The Plaintiff will have to wait until the end of the case in order to get compensated for these damages.

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Identifying the correct party to sue in a slip or trip and fall case can be tricky.

In a car accident case; it’s a bit more straightforward: You sue the at fault driver. You also sue the owner of the vehicle as well.

In an dog bite or dog attack case identifying the correct party to sue is straightforward was well: You sue the owner of the dog.

How about an assault case? That’s sounds pretty straight forward as well: You sue the assailant.

How about a long term disability case? That’s easy: You sue the long term disability insurer.

Things get a bit more complicated in a slip and fall; or trip and fall case.

First you need to identify where the fall happened. Knowing the exact location of the fall is very important. A few inches to the left or to the right can change the identity of the owner. And getting the correct identity of the owner is of paramount importance for a slip and fall or trip and fall case. Suing the wrong owner won’t get a Plaintiff anywhere.

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Congrats to Goldfinger Injury Lawyer’s very own Afsoun Amirsolaimani on winning a contested motion seeking the removal of a lawyer for the Ontario Motor Vehicle Accident Claims Fund for acting in a conflict of interest. The decision is below and has yet to be reported, but we share it with you now. 

CITATION: Riley et al. v. Director of MVAC, et al., 2021 ONSC 2123 

COURT FILE NO.: CV-20-00000101 

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Slip and fall accidents can cause serious physical and emotional injury. Adding insult to injury is the fact that you will always second guess yourself:

What if I didn’t step where I did? Could I have avoided the fall? Could I have paid better attention? Would different shoes or boots have prevented my fall?”

Feelings of anger, embarrassment, doubt and even shame can creep up after a slip and fall; because act of walking is so mundane and something we take for granted. How could the act of simply walking cause a devastating injury like an ankle fracture; or a torn ACL/MCL requiring surgery; or a bad concussion? Bad things happen. And when people look for justice and compensation, they reach out the Goldfinger Injury Lawyers.

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Home owners and property owners buy insurance for lots of different reasons. Liability protection is a great reason to have insurance. But what first comes to mind when thinking about property insurance is coverage in the event of damage to one’s property.

What happens if a fire burns down your home/building and all of the contents therein?

What happens if a pipe bursts and ruins the home/building and everything inside of it?

What happens if the roof starts to leak and damage the ceilings, walls and flooring?

Who is going to pay for the property damage?

What happens if the rental arrears on the unit are lost on account of the damage?

If you don’t carry property insurance, you will have to pay for these repair and replacement costs of the damaged goods/equipment on your own.

But the majority of property owners carry some form of insurance. It’s a requirement under pretty much every mortgage. You can certainly own a property mortgage free and not carry any form of insurance on the property, but that’s living quite dangerously to say the least and not recommended by this personal injury lawyer; or any insurance broker.

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Long Term Disability cases are based in contract. Damages are awarded to the disabled plaintiff based on what is available to the disabled plaintiff under the contract.

Damages for the most part are limited to what’s covered under the four corners of the insurance policy.

Only in rare cases will a court order damages for bad faith against an insurer, or damages for mental distress. These outside of contract damages are awarded only in limited circumstances where there has been egregious conduct by the insurer. These cases are the exception, not the rule.

If you went to trial on a long term disability case, here are the things which a Judge can Order:

  1. The insurance company pay the totality of your back payments (arrears), less any offsets such as WSIB, CPP Disability, ODSP or pension payments
  2. The insurance company has to pay interest on the arrears at a set rate (normally it’s pretty low, it’s currently sitting at 2% for this quarter).
  3. The insurance company re-instate your long term disability benefits (put you on claim). But keep in mind that you are not on claim forever. There is nothing preventing from the insurance company from terminating those benefits again down the line because they believe that you’re no longer disabled. The result is you have to go through the entire litigation process again.
  4. The insurance company MAY have to pay for a portion of your lawyer’s fees (or may not)

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Long Term Disability Claims are NOT claims for pain and suffering.

Long Term Disability Claims are not based in negligence.

Nobody from long term disability insurer ran you over with a truck or hit you with a baseball bat resulting in your disability. You had something completely unrelated to your relationship with the long term disability insurer; before your disability arose. It could be serious medical condition; a bad slip and fall; or a stressful work environment. Nonetheless, the long term disability insurer had nothing to do with giving you the disability in the first place.

To be fair the way a long term disability insurer treats you can result in mental anguish, financial distress or harm. These sort of claims along with bad faith claims handling is a separate tort all together. These cases are the exception, but they certainly do happen.

But the foundation of a long term disability claim are the long term disability benefits themselves; which are a creatures of contract, not tort.

Standing alone from any separate tort or bad faith claim; quantifying the value of arrears and futures is a mathematical equation based in contract. It’s not an imaginary number which is made up by the Court.

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More people than ever have to attend Methadone Clinics to deal with their addiction and substatnce abuse issues. Opiate dependence and substance abuse issues are very real, and very costly on so many levels. They threaten to bottom out health care spending, take emotional tolls on families, loved ones and friends; and ruin lives.  Methadone Clinics are just one of the ways which Ontario is trying to deal with these problems. It will take a multi disciplinary approach to get a handle on addiction and substance abuse issues. But there can be no dispute that they are serious issues which our government and health care system are working very hard to resolve.

The focus of this edition of the Toronto Injury Lawyer Blog will be to examine what happens when there has been a prescription overdose; or a dispensing error at a Methadone Clinic in Ontario, or at a Pharmacy in Ontario. These cases are becoming more common with the increasing number of people who are prescribed and dependent on methadone to manage their problems. Pharmaceutical negligence and dispensing errors are not uncommon and can cause serious, life changing damages for which innocent claimants deserve fair compensation for their losses.

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