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

Articles Posted in Car Accident

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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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If you’ve sustained serious and permanent injuries in car accident, you recover damages against the at fault driver.

Standard policy limits in Ontario sit at $1,000,000. Ontarians can purchase optional benefits to increase their coverage, but only few ever pick up that option (mostly personal injury lawyers, insurance adjusters, insurance brokers and insurance defence lawyers…notice a trend…mostly people in the know).

In some cases, those policy limits are greater than $1,000,000. Often commercial carriers have policy limits of $5,000,000 or greater. Sometimes your car insurance combines with your home insurance creating what’s called an umbrella policy or umbrella coverage, thereby increasing the policy limits from $1,000,000 to $2,000,000 in coverage.

It’s a good thing for an injured accident victim when there are greater policy limits. It means that the injured party will realistically be able to recover more damages in their personal injury case, if they are entitled to those damages at law.

To understand this concept of recovery, let’s examine what happens when policy limits are inadequate to satisfy a claim.

Let’s say that the claim is worth $1,500,000, but there are is only a $1,000,000 limit under the policy. The first $1,000,000 will be covered by the insurance company pursuant to the insurance policy. This leaves a shortfall for the claim of $500,000.

It will be Defendant’s personal responsibility to cover this $500,000 shortfall in the event they don’t have a policy which will cover the excess amount owing. This $500,000 is not insurable under the standard car insurance policy. The Plaintiff can secure a judgment against the Defendant personally and seize or lien his/her assets; or even garnish his/her wages until the Judgment is satisfied. Please note that Ontario Works payments are NOT subject to garnishment. What is however subject to garnishment are regular pay cheques/wages.

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Has someone other than you driven your car without your knowledge?

What happens if that mystery person gets in to a car accident?

What happens if you knowingly loan your vehicle to someone else to drive; and that person gets in to a car accident; but it turns out that the driver was operating your vehicle without a driver’s license or with a suspended driver’s license?

What happens if you loan your vehicle to a driver who was specified as an excluded driver under the policy?

While these hypothetical fact patterns may seem a bit remote, or foolish, they happen more than you think!

Cases such as these often see their way up the the Court of Appeal, or try to get heard at the Supreme Court. Leave to appeal is sometimes granted, and sometimes denied. Nonetheless, these coverage issues do not stop the parties from trying to get their cases heard before the Supreme Court. These cases drive the law in one direction or another. Often large insurers will spend a disproportionate amount of money arguing these coverage claims given that they will impact present and future coverage disputes. What this means is if on the face of the claim, the parties agree that the damages would range between $40,000-$100,000; insurers will spend that money if not more arguing the disputes. These are business decisions based upon legal principals in order to get the law right. And when I mean right, I mean working in favour of an insurer to deny coverage and not the other way around.

The grand lesson from all of these hypotheticals and decisions is that it’s very important to know who you are loaning your car to, and to know whether or not that person is allowed to legally drive. If not, you could end up in the wrong without coverage.

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After you’ve been seriously injured, or even not so seriously injured in a car accident, or motorcycle accident in Ontario, the injured party; regardless of fault is entitle to accident benefits.

This is what Ontario’s “no fault” scheme of accident benefits is all about.

If you are not at fault for the car accident you’re entitled to receive accident benefits.

If you are completely at fault for the car accident you’re entitled to receive accident benefits.

If you were the passenger of a vehicle involved in a car accident you’re entitled to receive accident benefits.

If you were a pedestrian or cyclist struck by a motor vehicle; even if you don’t know the identity of the other driver; guess what: you’re entitled to receive accident benefits (even if you’re at fault for causing the car accident in the first place!).

Crazy right? Even if you cause the accident, you are entitled to receive accident benefits to assist with your recovery, attendant care needs, income replacement benefits or non earner benefits.

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It’s amazing that no matter how many times we write about it; speak about it; or broadcast our thoughts on radio, podcast, newspaper or television; that so few people know what to do after a car accident in Ontario.

This is very important, because there are tight time lines which you may be dealing with. Getting things done properly, and in a timely manner can be the difference between getting the benefits you need or being denied benefits.

Doing things the right way, and in a timely manner is particularly important during COVID given that things are moving slowly on a good day.

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