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

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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”.

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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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Our law firm receives a lot of calls from people who have been denied Life Insurance, Long Term Disability Insurance, Mortgage Insurance and Critical Illness claims.

Some of these policies are group policies which are offered through an employer.

Sometimes these are private policies which are purchased from an insurance broker or from a bank.

This Toronto Injury Lawyer Blog post will focus more on those private policies which individuals purchase on their own. The thing with private policies is that you need to apply, and qualify for coverage. Monthly premiums vary depending on age, health, disability history, lifestyle choices and other risk criteria.

These risk criteria are examined in detail by an underwriting department at the insurance company.

These underwriters have very important jobs. They have to assess the risk of insuring individuals and put a dollar figure on that risk. Premiums are largely determined based on the risk of insuring the individual and the level or amount of insurance which the individual is seeking.

A life insurance policy which pays out a $50,000 benefit will be less expensive than a life insurance policy which pays out a $5,000,000 benefit.

The same way that a life insurance policy for a 9 year old person will be less expensive than a life insurance policy for a 99 year old.

There are so many factors which go into underwriting that it’s hard to understand. This is why insurance companies narrow down these underwriting criteria based on a set of questions when applying for insurance.

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Lots on people who are applying for Long Term Disability insurance benefits; or who are receiving Long Term Disability benefits want to know why their insurance company is asking (or demanding) that you apply for Canada Pension Plan Disability Benefits (CPP-D).

What does one set of benefits have to do with the other? Why is my long term disability insurer so adamant that I apply?

All of these are great question and as personal injury lawyers who handle a lot of long term disability claims; we see them all of the time.

For starters, contained in the very very fine print of each and every single long term disability insurance policy that we have seen is a provision which states something to the effect that:

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A bad police report and a poor police investigation can be very harmful to an injured Plaintiff in personal injury cases.

In order for a Plaintiff’s personal injury case to succeed, the Plaintiff must establish that the Defendant was negligent (at fault) for the accident in question.

No fault against the other driver? No tort claim.

Regardless of how seriously injured the Plaintiff is; if the Plaintiff cannot establish fault against the other driver, they won’t have a successful tort claim. That’s not to say that they won’t have a successful accident benefit claim. Accident benefit claims are not subject to same the fault rules which we see in tort cases.

All too often, our office has seen police investigations in Ontario which frankly aren’t done properly. That’s not to say that all police investigations into motor vehicle accidents fall short. One bad apple (or a few bad apples) can certainly spoil the bunch.

There is no doubt that police resources are spread thin. Large jurisdictions like Toronto have a lot of ground to cover. Other more rural jurisdictions may not have ample resources. But the consequences of not getting the job done properly, or at all, can be devastating to a personal injury case.

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When you’ve been wronged and want to seek justice; you sue.

It’s sounds simple and it ought to be.

Trouble is, when it comes to accident benefit disputes following a car accident in Ontario, you can’t sue anymore. Your right to sue in Court and have your case heard before a Judge were taken away from you. That means that you can’t sue.

Understanding this concept for many innocent car accident victims is really hard to understand. It seems unfair and it is.

Instead of suing in the Courts, accident victims who are seeking compensation for their accident benefit claims follow a car accident are REQUIRED to apply to the License Appeals Tribunal Automobile Accident Benefit Service (LAT AABS) or simply know as the LAT.

The LAT is a Tribunal run by the Province of Ontario. It’s a strange place with its own unique set of rules, procedures and adjudicators.

It’s not uncommon for disputes to be resolved at a Tribunal instead of Courts. We see it in all sorts of places like the Human Rights Tribunal, Workplace Safety and Insurance Board, Ontario Land Tribunal etc.

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The Global Pandemic has been hard on people for different reasons. Those reasons may be economic, social, psychological, health related, something else, or a combination of a variety of factors. Whatever the reason might be, the Global Pandemic has impacted all of us in one way, shape or form.

The field of personal injury law is no exception.

Lawyer across Ontario have seen different systems come in place which we’ve all needed to adapt to and make work. Courts have released new practice directions; it would seem on a near weekly basis for lawyers and litigants to tell us how the Courts will work in this new world. Some months jury trials are being heard. Other months jury trials are not being heard. The same applies for contested motions or applications.

Below is a list of trends and predictions for the field of personal injury law in Ontario which have been brought on by the Global Pandemic. Now that things appear to be opening up, we all may see more changes yet to come.

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