Articles Posted in Car Accident

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Ontario has a no fault system of accident benefits if you’ve been involved in a car accident.

Understanding the concept of “no fault” is hard to grasp (even for lawyers!).

You would think that if you’re not at fault, then the at fault driver’s insurer should pay for everything.

But, that’s not how things work in Ontario’s no fault system. We have a first party pays system.

What this means is that regardless of fault, your own car insurer is responsible to pay for accident benefits in your car accident case.

This means that the other driver could have been drunk, high, on his/her cell phone, having run a red light; and still your own car insurer is the primary payor for accident benefits.

Even more strange is that if you had collateral benefits at the time of the accident, such as health, disability or anything else through work; those benefits kick in BEFORE the car insurance benefits kick in. Even though your collateral benefits have nothing to do with car insurance, those collateral benefits must be used up before the car insurer has to pay anything. How does that make sense? It’s like a disability insurer telling you that they will not pay any disability benefits until you’ve purchased 3 lottery tickets to see if you win. In the event you win, then they disability insurer does not pay because you’ve been paid lottery winnings. If you loose the lottery, and only once you’ve lost and submitted proof of losing that they will pay. All of these laws defy logic, but this is how Ontario’s archaic system of accident benefits has been designed.

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There are a lot of things which non personal injury lawyers don’t know about car accident cases in Ontario. Heck, even some lawyers who don’t practice in the area of car accident cases don’t even know. These are dirty little secrets which aren’t advertised with much fanfare. But, if you do a bit of research, you can learn pick up a few pearls of knowledge here and there.

Every year around this time, the Financial Services Regulatory Authority of Ontario (FSRA) makes a very under the radar announcement, if you can really call it an announcement at all. Basically, they update a page on their website to post new deductible rates for the upcoming new year.

These deductible rates are important for car accident cases. The deductible rates have nothing to do with the physical damage to your vehicle. Nor, do you get to set the deductible by paying a higher insurance premium. This seems very odd, because under all car insurance policies, and under the vast majority of insurance policies, the consumer can pay more premiums to reduce a deductible and potentially reduce it to zero.

But not for pain and suffering claims in car accident cases. The deductible is pre-determined and uniform across the board. It cannot be eliminated, not matter how much you pay in car insurance premiums. The consumer is completely powerless, and at the will of the government along with the insurance industry.

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The Holiday Season is upon us. And with the Holidays comes a lot of celebration. Office holiday parties. Family holiday parties. Friend holiday parties. Sporting team holiday parties. You name it. People will get together and party.

And with parties comes responsibility. Whether or not you’re a host, or a guest, you have a job to do.

With this edition of the Toronto Injury Lawyer Blog, we will review some dos and don’ts for the holiday party season.

Don’t Overconsume 

Will there be alcohol at your holiday party? Probably. Will there be cannabis? Perhaps. Will there be edible cannabis products? You never know. Either way; whatever it is that you consume, do it responsibly and don’t over do it. This is not only to keep you and others safe. It also applies to those office parties or other social gathering when you can end up saying (or doing) something that you will regret on account of having too much to smoke or drink. Just because something is legal (alcohol or cannabis) doesn’t mean that you or your guests are entitled to consume it until they can’t function. In some cases, the host can be held responsible for the over consumption of their guests. This concept is known as social host liability. While social host liability is not easy to prove, it exists and can be established in certain situations. In fact, the Supreme Court of Canada examined the concept of social host liability in a case called Childs v. Desmoreaux [2006] 1 S.C.R. 643, 2006. It’s an interesting read for all those interested in the concept of the responsibilities of a social host for a party involving alcohol, along with the concept of social host liability.

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I’ve been watching a lot of youth soccer games of late. My son plays a lot of soccer.

Given my son’s young age, more experienced referees are not assigned to officiate his games. His referees tend to be young and inexperienced. They are looking at making a few extra bucks while contributing to a game they really enjoy.

The problem is, that the games tend to get out of hand because the young, inexperienced referees lack the experience, poise and confidence to control the game.

The game got so bad last week a parent from the opposing team walked onto the pitch during a water break to have a conversation with the referee. While I was not privy to their conversation, I imagine that they weren’t discussing the weather or making dinner plans.

In this week’s game, two players got shoved/punched in the face without repercussion to the offending player.

In a previous game, the teams were playing by different sports entirely. One team was playing beautiful futbol, while the other team was playing barbaric football.

When a player breaks the rules of the game, the referee is there to enforce those rules. Much like a police officer enforcing the rules of the road. A referee can penalize a player by calling a foul, or handing out a yellow card, or even a red card. A police officer can do the exact same by having a stern talk with a motorist who crosses the line, or even handing out a ticket or charging them with an offence.

When bad things happen without repercussion, they will not only continue to happen, but those actions will get worse and hurt people.

Nobody wants to see anyone hurt or injured in a youth soccer game. We all want the kids to have fun, and to develop. But on the path to fun and development in a competitive setting, there needs to be proper enforcement of the rules. There cannot be no consequences for negligence or intentional acts causing harm. Otherwise, people get hurt and may take things into their own hands which further escalates matters. Which got me to thinking about personal injury law.

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For those unfamiliar with personal injury law, and more specifically, the law surrounding motor vehicle accidents (car crashes, motorcycle accidents, pedestrian-car accidents, bike-car accidents), the idea of what the law should be and how it works is perceived to be rather straight forward.

Car accident. Innocent accident victim not at fault. They were in the wrong place, and the wrong time and sustained injuries. Those injuries ought to be compensated by the car insurer for the at fault driver. Case closed.

Unfortunately, that’s not the way things work in Ontario.

We have take an easy to understand event (a car accident) and complicated that event tremendously.  The complexities have been created by the government at the behest of the insurance industry in order to keep the number of car accident claims down; and to limit the compensation available to innocent accident victims.

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Recently, a post went viral on Tik Tok of a York Regional Police officer checking out his mobile device while driving at what appeared to be a high speed.

It would seem unfair that a police officer would be driving around in his police cruiser checking out his cell phone because if members of the general public did the same, they would be given a ticket.

But is it?

There is a caveat in then Highway Traffic Act which permits police, fire and emergency responders to use the mobile devices while driving. There are likely good policy reasons behind these laws, but I cannot say for certain what policy reasons those might be. I can certainly make assumptions that using a mobile device as a police officer, fireman or emergency responder might be required.

Here is what the Highway Traffic Act has to say about operating your mobile device while driving:

Display screen visible to driver prohibited

78 (1) No person shall drive a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.  2009, c. 4, s. 1.

Same

(3) Subsection (1) does not apply to the driver of an ambulance, fire department vehicle or police department vehicle.  2009, c. 4, s. 1.

Hand-held devices prohibited Wireless communication devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.  2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.  2009, c. 4, s. 2.

Exceptions

(4) Subsection (1) does not apply to,

(a)  the driver of an ambulance, fire department vehicle or police department vehicle;

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Car insurance, and making a claim after a car accident in Ontario should be simple and straight forward.

But, as a personal injury lawyer with two decades of experience in the field, I can tell you that it’s not. Far from it! In fact, car insurance and accident benefit claims are complex and defy common sense.

Here are a few items that our lawyers at Goldfinger Injury Lawyers along with our clients have always found rather strange when it comes to car accident claims in Ontario.

Item #1 Regardless of fault, the first insurer to respond to the claim is your own car insurance company. Ontario has a “no fault” system of accident benefits. This means that your own car insurer, regardless of fault, is the first insurer to make a payment of the claim. The at fault driver could have been drunk, high on drugs, on his cell phone having run a red light. It doesn’t matter. Your own car insurer, regardless of fault, is the first insurer to pay. This is what “no fault” is all about. How the accident happened and the degree of liability for the at fault driver is not even a thought when it comes to no fault accident benefits which defies common logic when non lawyers think about car accident cases.

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The greater your injuries, the greater the value of your personal injury case.

The same applies in the opposite.

The less severe your injuries, the less value your personal injury case will have.

It’s always good to have a healthy and high quality of life and a lower value personal injury case; as opposed to the other way around. Nobody wants a poor quality of life. Money is not a substitute for happiness or for having the inability to manage daily tasks.

At some point in your personal injury case, an insurance adjuster, lawyer for the insurance company, or even a Judge might ask a Plaintiff how they are doing, or how they are feeling.

People have a tendency to respond that they are “doing fine“. Think about that for a moment. When a friend, family member, or work colleague asks you how you are doing, the tendency is not to open up and share all of your problems (because that would be really weird). Instead, more often than not, we tend to reply that we are “doing fine”.

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It may be your first time being involved in a serious car accident where you have sustained serious injuries. These are not common events. And because these are not common events, few people know exactly what to after the accident, or how to deal with their car insurer.

The purpose of this edition of the Toronto Injury Lawyer Blog is to provide you with quick tips dealing with your Car Insurance Company after a serious collision.

1.You deal with your own car insurer first. Ontario  has a no fault system of accident benefits for car accident cases. That means that regardless of fault, the first insurer you will deal with is your own insurer. This seems counter intuitive, but this is how the law works. So, the at fault driver could have been drunk driving, high on drugs, texting on his phone, and ran multiple red lights. It does not matter. The first insurer you will deal with is your own insurer regardless of fault. Weird huh!

2. Watch what you say to the insurance adjuster. When you call most insurers, there is a recorded message saying that the call will be recorded for training and customer service. The call is being recorded so that if you put your foot in your mouth, and say something which is helpful to the insurer, but hurtful to your case; it can and will be used against you moving forward. Many claimants put their feet in their mouths and cause more harm than good in these recorded phone calls with their insurance adjusters. It’s much wiser to let an experienced personal injury lawyer handle it.

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Even if you don’t celebrate Christmas, you have to love this time of year. Holiday meals, celebrations, gifts and good vibes galore. That’s what the holidays are about. A bit tone deaf given the political climate? Sure. But the focus of the Toronto Injury Lawyer Blog isn’t politics. Let’s keep that debate out of it and focus on the intention of the Toronto Injury Lawyer Blog which is to educate the public on the ins and outs of personal injury law in Ontario.

The holiday season can get ruined by anyone who makes a bad decision and jeopardizes their life, and the lives of others because they weren’t thinking or showed a wanton disregard for the health and safety of others. Those sort of people exist. You know, the people who make selfish decisions which impact the safety of others. The people who can’t say “no” to the next drink, or are too proud to call a taxi after a few too many drinks.

So, without further ado, here are Goldfinger Injury Lawyers quick hitter tips on how to keep the Holiday Season a safe one. While following these tips can’t guarantee safety, following them certainly can increase the odds of making this holiday season a fun and safe one, as oppose to needing to consult with a personal injury lawyer on account of a serious accident resulting in injury.

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