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Articles Posted in Damages

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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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When someone gets into an accident, we think that the accident victim is automatically entitled to compensation. This seems basic, fair, and like the right thing to do.

Unfortunately, the law is not so simple, nor is it very forgiving.

The law is a donkey. It’s rather stubborn, unyielding, and once you think you have it figured out, it gives you a big kick in the you know what!

Just because you’ve been involved in an accident, even if the accident is NOT your fault; it does not mean that you are entitled to compensation. And even if you are eligible for compensation for your injuries or damages, it does not always mean that you will recover as much as you think you are entitled to.

Insurers and defence lawyers want to know how much money a Plaintiff has received since their accident. Not only that, they want to know how much money a Plaintiff might be eligible to receive even though they have not collected that money.

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The entire field of personal injury law is rather effective at making sure that accident victims aren’t unjustly enriched by the benefits or moneys which they receive in their case.

Cases have been fought all the way to the Supreme Court of Canada to make sure that innocent accident victims aren’t getting their cake, and eating it too.

Insurance companies will fight tooth and nail to make sure that Plaintiffs don’t double dip.

It can be hard for innocent accident victims to understand that laws against double dipping exist. Many think that legal remedies are an all you can eat buffet. Unfortunately for Plaintiffs, they are not.

The laws surrounding remedies, damages and set offs exist because at law, an accident victim is not allowed to be put in a better position post accident, than they were pre-accident. The laws surrounding compensation exist to make a person whole again; and not to put them in a better position than they were pre-accident.

The accident should not be seen as a monetary windfall for the Plaintiff. It should be seen as a means to an end to make them whole for their past losses, and those losses moving forward.

Certainly, an insurer will have a more conservative valuation of what those losses are. While a Plaintiff will have a more aggressive valuation. Where that number lies is often somewhere in the middle. But, it’s important to state that a Plaintiff can only be awarded what’s recoverable at law.

Many clients want to see the Defendant suffer. They want to see the Defendant go to jail, or become their butler until the end of time as compensation for their damages. Plaintiffs want to own the Defendant’s home, all of their prized possessions, and receive a public apology in four national newspapers. The law just doesn’t work this way. A Judge cannot sent a Defendant to jail in a civil personal injury case. The only thing that the Judge can do is order the Defendant pay the Plaintiff compensation within the framework of the law.

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The title of this Toronto Injury Lawyer Blog Post, “Brian Goldfinger and the Case of the Bad Delivery” sounds like it could be a young adult mystery novel. I mean; who wouldn’t want to read a book about middle age personal injury lawyer Brian Goldfinger cracking the case on a delivery gone bad? Sound exciting enough; right?!?!?

Let me share a story with you. During the early stage of the Pandemic, my law firm, Goldfinger Injury Lawyers moved from a large office building at 45 Sheppard Ave East in Toronto; to a self contained unit at 167 Sheppard Avenue West, also in Toronto. The move was under a kilometer in distance, but it was still a hard move.

The rationale for the move was quite simple. At the large office building all of our staff and visiting clients had to pay for parking; and parking was quite limited. More importantly, we weren’t too keen during the pandemic to sharing space with strangers. We had to share the elevators, share the bathrooms, share the boardrooms, hallways, reception area, lobby and hallways with the other tenants on our floor. It wasn’t ideal during a global pandemic. Mind you this was pre-vaccines and also when we believed that COVID was not only airborne, but could also be spread on surfaces.

Needless to say, my staff nor my clients were thrilled by the idea of sharing space or common areas with others. The fewer exposures, the better.

So we decided to move down the street.

The new office gave our clients and staff free parking. We no longer had to share any common areas such as washrooms, boardrooms, elevators, hallways, reception area etc. We had to space all to ourselves. It was much more comfortable, and safe from a COVID perspective (keep in mind this is early on in the Pandemic before vaccines were readily available).

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When assessing cases, both Plaintiffs and Defendants need to evaluate risk.

What are the chances of success and more importantly; what does success look like?

For an insurer Defendant, the ideal successful case will involve a quick and quiet dismissal of the action; with or without costs. The case is closed and the insurer does not have to pay.

For an injured Plaintiff, success can mean a lot of things. It can mean a finding of liability against a Defendant which signals to the Plaintiff that s/he was right. It can mean a declaration that the Plaintiff is disabled or entitled to benefits which also validates a Plaintiff.

But for most personal injury lawyers and insurance companies, what they really look at is the worth of the case on the best day scenario for a Plaintiff (or worst day for the Defendant).

Now these estimates can vary depending on the lens through which the case is assessed. But it’s equally important for Defendant insurers to have an honest assessment of their potential exposure on a case so that they can underwrite it properly. Just as it’s important for a Plaintiff to understand their best day, or worst day so that they can best assess their risk every step of the way in the litigation process.

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Every single client that personal injury lawyer Brian Goldfinger has met believes that his/her case is worth at the very least, $1,000,000 (if not more).

But why stop at $1,000,000?

Why not $2,000,000?

Or $3,000,000?

How about $10,000,000?

Better yet, let’s make it $50,000,000 plus three Ferraris, a life time supply of groceries and a lakefront Muskoka cottage.

There are no limits to our imaginations and expectations for our respective cases.

But unfortunately, there are limitations at law for how much you can receive in your personal injury case, along with what exactly you can claim for.

When clients here about these limitations (essentially how the law works in Ontario), they are left disappointed and thinking that “the law sucks“. I agree. The law does suck. And it sucks especially hard for innocent car accident victims who did NOTHING WRONG, except for being in the wrong place, at the wrong time and suffering a serious injury as a result of the negligence of another individual.

When reading this installment of the Toronto Injury Lawyer Blog, please keep this in mind. All the law can do is try to make you whole, to compensate you “fairly” for your injuries. The law only in very rare cases punishes defendants with punitive or aggravated damages. Defendants are entitled to more protections under the law than innocent plaintiffs. We see these protections in the form of caps on general damages, secret credits called “deductibles“, medico-legal thresholds to hit in order to recover compensation along with damage set offs or credits for at fault defendants.

Car accident laws in Ontario have been drafted, crafted, carefully thought out and manipulated by large deep pocketed insurance companies to reduce their risk and exposure in cases like yours. The lower their risk and exposure, the more profitable these insurance companies can be.

The Ontario government for many years has caved in to insurance company demands with respect to the laws, in particular for car accident claims. The thinking was that the more insurers saved, the easier they would be able to pass along these savings to the consumer to reduce car insurance rates to make everyone happy. But ask yourself, over the past decade have your car insurance rates decreased? Likely not. But the benefits you’re eligible to receive have been slashed significantly. The end result is that Ontario consumers are paying MORE for car insurance, but getting LESS coverage and benefits under their plans.

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Many people ask Brian Goldfinger what it takes to build a successful personal injury case. Is it having the best personal injury lawyer? (not that any personal injury lawyer can ever say that s/he is the best because that’s against the law). Is it having the best client? Is it having the best back end data retrieval software? Is it having the best rehab team working on your case? Is it having the best looking business cards to intimidate the insurance company into submission? Is it having the best doctors treat you? Is it having your personal injury lawyer commission the best medico-legal reports from the best experts?

The truth is that building the best personal injury case is much like building the best home. There is no such thing as the best home. There are great, well built homes. But everyone’s opinion of what the best home is; is entirely subjective. The best home is the place which you lay your head to rest and call home. Some homes are fancier than others. Some homes can do with more. But we all get by with what  we’ve got and we make the most of our situation.

A successful personal injury case is much like a well built home. A well built home requires a lot of advance planning, practical and sometimes unique design, quality materials, experienced and skilled labour.

A personal injury case requires a lot of advance planning, practical and sometimes unique design for the case; quality materials in the form of records/reports, along with experienced and skilled lawyers to optimize a superior result on behalf of the client.

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The purpose of this entry of the Toronto Injury Lawyer Blog is to focus on a rather long personal injury case called Davies v. The Corporation of the Municipality of Clarington.

This is the case about a Via Trail derailment on what should have been a routine trip from Toronto to Montreal on November 23, 1999.

100+ passengers claimed injuries by way of class action.

Liability was sorted out by way of class action by way of trial in 2007.

But what wasn’t sorted out was the quantification of damages for one injured passenger; Christopher Zuber. Injuries, causation and the quantification of damages was the focus of this trial.

Mr. Zuber’s personal injury case in its entirety lasted around 17 years.

The trial took around 26 weeks (approximately 107 days to complete). It is believed this was the longest single personal injury jury trial in Ontario Court history (but we have no real concrete stats on it).

Here are some comments from the Honourable Justice Edwards about this case which speak for themselves on what it takes to suceed in a personal injury case, along with the state of modern personal injury litigation in Ontario. These comments are worth noting for any personal injury lawyer, or for any member of the general public with an active personal injury case on the go in Ontario. The comments of the Honourable Justice Edwards are also important to understanding how personal injury cases work, and are assessed in Ontario. Keep in mind, these are direct quotes from the Judge in this decision.

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To structure, or not to structure? That is the question for the purpose of this entry in the Toronto Injury Lawyer Blog. Sometimes, whether to enter in to a structured settlement is not an option; rather a requirement. Other time, you may have a decision to structure or not.


A structured settlement is a negotiated financial arrangement whereby an injured accident victim agrees to accept a usually large lump sum of money in the form of a settlement from a personal injury claim. That lump sum is then placed in to an interest bearing financial instrument (called a structure) which gets paid out in periodic payments over a long period of time to the Plaintiff.

Instead of receiving one large lump sum at one time, the Plaintiff instead receives periodic payments (usually every month) set over a schedule which normally lasts a life time.

The monthly payments, administration and maintenance of the structure are not charged to the person receiving the structure, unless otherwise specified.

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In Ontario, if you win your case, a judge cannot award you a victory medal, a ticker tape celebratory parade, or a key to the City in your honour. The Judge also cannot order that the at fault party experience the same pain and suffering which you endure.

The only thing the Judge can do is award you compensation in the form of MONEY.  What you do with that money is up to you. So, if you want to take that money from your personal injury case and use it to get a permit and then have a celebratory parade, go right ahead.

It’s nothing personal, it’s busiess

The reality is that personal injury litigation is a serious business. It’s a business because there is money at stake.

That money doesn’t come from a small local charity or a mom and pop’s store/restaurant. In most cases, that money comes from a large, multi national insurance company with offices across Canada and other parts of the world. Most of these insurers trade publicly on stock exchanges world wide. They exist to earn a profit. The more money these insurers pay out in awards, the less money they get to report in profit for their share holders. Continue reading →

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