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Articles Posted in Car Accident

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My articling principal was called to the Bar in 1978. For the first decade or so of his practice, he was in Court nearly every day. He was in Court for motions, pre-trials and trials. Because he was in Court so often, it was absolutely necessary that his office be downtown so that he could be close to the Courthouse. The Courthouse was an extension of his office.

I want to be clear that my articling principal managed a very successful civil litigation law firm; and did not have a criminal law practice.  Criminal lawyers are in Court far more often than their civil litigation counterparts. In 2022, civil litigation lawyers are not in Court everyday. But, they used to be.

Trials back then could be as short as a half day, or as long as 2-3 days. Running a week long trial (5 days) was seen as a ultra marathon! Accessibility to the Courts existed! You would not have to wait years and years for a Pre-Trial or for a Trial date. You could call the Court and get a motion date and have your motion heard by a Judge in a very reasonable period of time.

The Court was there to serve the important public function of the administration of justice. Court staff could afford to take the time to get on the phone (or even speak to you person!) with lawyers  about what to do if documents weren’t accepted by the Court and what needed to be done so that the materials would get accepted.

The lawyers knew the name of the Court staff and vice versa. It was an amicable and symbiotic relationship. Both sides needed each other to make the system work so that justice would flow efficiently.

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I’ve been involved in a car accident.

How do I start my personal injury case?

This should be an easy question. And it was a much easier question to answer in the 70’s or in the 80’s. But in 2022, car accident law along with car accident cases have become very complex. Car accident law should NOT be rocket science. Unfortunately, it has become rather close needing skilled and expert personal injury lawyers to handle these sort of cases.

Let’s get the stuff out of the way which does NOT require the expertise of a skilled personal injury lawyer.

You don’t need a personal injury lawyer to dial 9-1-1 to contact the police or an ambulance about your car accident

You don’t need a personal injury lawyer to go to the hospital to get medical treatment for your injuries

You don’t need a personal injury lawyer to get the name, contact and insurance information of the other driver (but your lawyer car certainly do that if you forgot or could not do so)

You don’t need a personal injury lawyer to report the accident to your own insurance company (although your personal injury lawyer can do that as well if you’re not able to do so on account of your injuries)

You do not need a personal injury lawyer to take photographs of your injuries or of the damage to the vehicle(s) involved in the car accident

All of these things sound and ought to be simple. It’s common sense. But the thing about common sense is that it ain’t so common.

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Many clients and prospective clients want to know where they should go for treatment after a serious car accident in Ontario.

It’s a common question because there are so many options and there is no “right way” of doing it. But there is certainly a wrong way of getting treatment.

For starters, there is no substitute for seeing your family doctor, or any other doctor for that matter who is covered by OHIP. These doctors are free and have no vested interest in your personal injury case. All they want to do is see that you get better and get the treatment you need. There’s nothing wrong with that.

Where people go wrong is that they leave their family doctor (or nurse practitioner) out of the picture when it comes to their post accident wellness and rehabilitation. Your family doctor is probably THE MOST IMPORTANT person when it comes to getting the treatment you need.

Lawyers and Judges rely heavily on the clinical notes and records of your family doctor.

Your family doctor can prescribe you with medication to get better. Your family doctor can make referrals to other specialists to help you recover. Your family doctor can request an x-ray, CT Scan, MRI or refer you to a pain clinic or brain injury program (all covered by OHIP). These are indicators to lawyers and to insurers that a Plaintiff is in pain and that something has gone wrong. If those diagnostic tests come back with objective evidence of a serious injury then it’s very hard for an insurer to refute that nothing is wrong with that Plaintiff. The doctor will know what’s wrong with his/her patient so that the patient can get the treatment which s/he needs. Don’t leave your family doctor or nurse practitioner out of the loop. A physiotherapist, occupational therapist, naturopath, chiropractor or social worker is NO SUBSTITUTE for your family doctor or nurse practitioner.

If you don’t have a family doctor or nurse practitioner, don’t fret. Get on a waitlist. These waitlists clear up faster than you would think. While you’re waiting, go to a Walk In Clinic or to your local Urgent Care or Emergency Department for check ups or for pain management. If you go to the same Walk In Clinic with frequency, they will get a sense of what you’re going through. It will be reflected in the records. Walk In Clinic doctors can make the same referrals and prescribe the same medication as a treating family doctor. If you have a health card, then you have access to a walk in clinic or urgent care clinic.

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If you asked personal injury lawyer what are some of the most common issues they face with car accident cases in Ontario; without a doubt the issue of the threshold and the deductible will be very high on their lists. Likely the number 1 issue which personal injury lawyers face for car accident cases in Ontario.

What are the threshold and the deductible?

Good question, because so few people know what they are, or how they work.

Let’s start with the deductible, because that’s the most concrete of the two concepts. The deductible acts as a secret credit which the insurance company doesn’t want you or the general public to know about. For every pain and suffering case involving a car or motor vehicle; the insurance company which acts for the Defendant is entitled to a LARGE CREDIT for pain and suffering award which falls below $138,343.86. The deductible for 2022 sits at $41,503.50. It’s the $41,503.50 elephant in the room for any car accident case. This means that if a Judge and Jury award an injured Plaintiff $50,000; after the $41,503.50 deductible is applied; it leaves the injured Plaintiff with only $8,496.50 in their pocket. This seems unfair. But that’s the law in Ontario.

The at fault driver could have been drunk, ran a stop light, while texting on his/her cell phone. The extent of fault will not matter. The deductible applies nonetheless regardless of fault.

It would appear that Ontario’s system affords the at fault Defendant with a $41,503.50 security blanket for each car accident. And that $41,503.50 security blanket only grows larger with time. The reason for this is that $41,503.50 figure increases each year with inflation. The deductible sat at $39,754.31 in 2021 and grew to $41,503.50 in 2022. Where will it be in 2030? Near $50,000? Near $55,000? It will only go up. I am not aware of any provision in the legislation which permits for deflation of the deductible. Only inflation.

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This edition of the Toronto Injury Lawyer Blog is coming out a bit early because I have the time to write now before I have to start homeschooling my children given the recent announced lockdown measures in Ontario. It’s rather difficult being a lawyer and educator for your young children at the same time. There’s a reason why kids go to school and aren’t taught at home by their parents who have full time careers.

I don’t need to tell you that Ontario is all messed up right now. Just tune into the news and it’s all doom, gloom, lockdowns and restrictions. It’s enough to make one cringe.

I’m just a personal injury lawyer, so it’s not my lane to comment on the health and safety of Ontario’s population. But what I can tell you is that I’m an optimist and I strongly believe that we will get through this. There is light at the end of the tunnel. This is the storm before the calm. If were were able to get through the Black Plague and Spanish Flu with nothing more than rubbing alcohol, spoonfuls of castor oil, other whacky home remedies and bandanas for face coverings; I think we will be able to get through COVID and all of its variations. What scientific belief is all of this optimism founded upon you ask? NONE! Just the fighting spirit of humankind and a positive belief that we all want the same thing which is for our health, happiness and our basic human freedoms.

A topic that is within my education, training and expertise is the area of personal injury law. This is the field of law I’ve been practicing in for basically my entire legal career.

Ontario has a really complicated system of car insurance. Each car accident case has two cases. The first case is a no fault accident benefit case with your own car insurer. Regardless of fault, the first claim is with your OWN CAR INSURER for accident benefits. These accident benefits cover such things as med/rehab benefits for physio, massage, chiropractic care, psychological counselling and anything else under the sun not covered by OHIP for your wellness and rehabilitation which is deemed to be both reasonable and necessary. Accident benefits also cover an income replacement benefit which under a standard policy of insurance is up to $400/week; and non-earner benefits for those unemployed or retired people of up to $185/week for up to two years; along with an attendant care benefit of up to $3,000/month for non catatrophic claims; which is then increased to up to $6,000/month for catastrophic claims.

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It’s amazing to me how many people don’t know what to do after they’ve been involved in a car accident in Ontario.

Before you call a personal injury lawyer and we get into all the legal mumbo jumbo; there are a few basic and common sense steps which you will need to take to lay the foundation of a case.

  1. Report the accident to the Police.
  2. Get the medical attention you need.
  3. Steps #1 and #2 are so easy and can be taken care of by way of one single call to 911. The 911 operator can dispatch police, ambulance and the fire department if necessary.
  4. If the police won’t attend at the accident scene, then attend your local collision reporting centre
  5. If the ambulance doesn’t attend at the scene because you have refused it; then seek medical attention at your local emergency department, walk in clinic or family doctor.
  6. Get the name, contact information and insurance information of the other driver. Don’t let the other drive leave the scene without getting that information.

There is a very strong chance that your personal injury case will fail if you don’t report the accident to the police or don’t get medical attention for your injuries.

A Court will NOT accept your evidence that you were in pain if you don’t seek out medical attention. Your pain needs to be documented. Seeing a doctor and getting medical attention is the way to best document your pain for your personal injury case. The Court will draw a NEGATIVE inference by your failure to seek out prompt and regular medical attention. The Court will draw the conclusion that you are NOT injured; or your injuries are NOT serious because you have not sought out medical attention for your injuries. They will draw the inference that your injuries are either NOT serious or simply a fabrication so that you can claim compensation.

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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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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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You have to believe in your own case. If you don’t believe in it, then who will?

If you don’t care, then who will?

If you don’t try to help yourself, then who will.

While this may sound like self respect or motivational mumbo jumbo; it’s true!

A good personal injury lawyer will believe in you and believe in your case. If they are taking the case on a contingency fee basis; meaning don’t pay anything unless the case settles; then the personal injury lawyer ought not be investing his/her time in the case to begin with.

If the personal injury lawyer doesn’t see the case as a “Winner“, then why are they wasting their time and resources on a case doomed to fail? The personal injury lawyer is quite literally putting their money where their mouth is and taking on your case free of charge without any guarantee of recovery until the end of the case should it settle or should the Plaintiff win at trial. If the case is a loser, the personal injury lawyer losses too. That means that the goals of the personal injury lawyer and the client are aligned. And that’s a good thing. The more money the client receives, the more money the personal injury lawyer can bill in fees.

A wise personal injury lawyer will do his/her best to invest in clients whose cases they believe in. They will invest in clients they deem to have worthwhile causes which will render fruitful outcomes for both client and lawyer alike. Investing in too many cases which are going nowhere is a loss for the client,  and a loss for the personal injury lawyer.

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