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Articles Posted in Damages

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Our law firm had a record number of Long Term Disability Claims settle in the last quarter of 2014. In particular, the last month of 2014 was a mediation bonanza for our lawyers when it came resolving long term disability (LTD) disputes.

One of the things which we caution our clients on when it comes to settling LTD claims are the tax implications of the settlement.

Damages for pain and suffering are non taxable. Damages for past and future income loss are taxable. But these heads of damages apply to tort claims such as car accident and general negligence cases (slip and fall, dog bite, etc.)

But what happens for Long Term Disability Claims when it comes to tax implications for the settlement?

Look no further than the wording of your policy. I will be in there. I guarantee it!

Some policies state that benefits are taxable. This means less money in the client’s pocket because they have to pay tax on any amount recovered.

Other policies state that the benefits are NOT taxable. This is much better for the client because they don’t have to pay the tax man for any amount recovered in the case.

If you don’t know whether your LTD benefits are taxable or not, then just ask your insurance broker, union rep or even your employer who is funding the benefits. They will have an answer for you. You can also call the insurer who is underwriting the policy (Great West Life, SunLife, Manulife, Equitable Life, SSQ, RBC Insurance, Co-operators, Desjardins etc.) and ask an agent directly. They will have an answer for you as well.

Effective January 1, 2015, Revenue Canada introduced some important rule changes which impact the tax implications on any taxable LTD settlement. If you have an LTD claim before the Courts, it’s very important to understand these rule changes because they will likely impact on your settlement.
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The first thing which comes to mind when thinking about compensation for personal injury law cases is that they’re all about pain and suffering, or general damages as they’re known.

People who focus on in this area know that damages for pain and suffering are significant, but they aren’t the be all and end all of compensation for an injury case. There are MANY more headings and heads of damages for an injury case which can be much more lucrative than general damages.

The purpose of this Toronto Injury Lawyer Blog Post is to examine damages for pain and suffering and how they work.

One of the most commonly asked questions for our lawyers is HOW MUCH IS MY CASE WORTH? MY PAIN AND SUFFERING IS IMMEASURABLE.

As always, these questions are hard to answer in a quick 140 character Tweet. It all depends on the facts of your case, the nature of the injuries sustained, your pre-accident health, pre-accident life style, and how your recover (or don’t). Every case is different, and every award for damages is also different.

A very long time ago, when dirt was young and when there was little to no traffic on the 401 or in the City of Toronto, the Supreme Court of Canada ruled on 3 distinct cases that are commonly known as the “trilogy”, In these case, the Supreme Court essentially ruled that damages for pain and suffering (general damages) were capped.

Unlike the United States, where we see massive awards for general damages in the millions and millions of dollars; damages for pain and suffering in Canada will not exceed around $356,000 or so in 2014. Sounds crazy right? Just $356,000 to measure pain and suffering!?!?! I agree. But the Supreme Court did this for good reason.
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When will my case settle?

When will I get compensation for my injuries?

When will my case close?

These are just a few of the most common questions that our lawyers are asked at our firm. They are very good questions to say the least. It’s entirely understandable when an inncocent, injured accident victim would want to know when their case will close and when they will receive compensation for their injuries. Living with a looming legal case over your head; having to worry about surveillance, medical appointments with insurance doctors; attending at discovery; attending at Court is all very worrying and taxing to one’s psyche.

For you and the insurance company, a closed file is a good file. And for innocent accident victims, settling their case helps bring a sense of closure and finality to the case; so that they can close that chapter of their lives; and move on the next. Our lawyers often see a catharsis and sense of relief; light a large weight/burden is being taken off a client’s shoulders once a case is closed and settled.

So, if there are so many positive elements to closing or settling one’s file; then WHY DOES IT TAKE SO DARN LONG TO DO SO?!?!?!
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Our law firm sees some very seriously injured accident victims and disability claimants. Many of our long term disability clients who have cases against large multi national insurers such as Manulife, SunLife, Great West Life, Standard Life, Desjardins, Industrial Alliance, SSQ, Equitable Life etc; want to know how an insurer can place a dollar figure on their disability and inability to work for the rest of their lives.

For a disability claimant, the answer to this question can be very simple. If I can’t work for the rest of my life, then naturally, I should be entitled to MILLIONS of dollars worth of compensation. Afterall, my pain and suffering is immeasurable.

One of the most common misconceptions in long term disability cases is that claimants are entitled to damages to compensate them for their pain and suffering. This is NOT true. At our Law Firm, we refer to LTD cases as “four corner” cases. That means that your damages, or benefits, are limited to what the four corners of the policy provide for. If you have a bad policy, which, based on the wording of the policy will not properly compensate you in disability benefits; then your award will reflect that.

There are some situations where awards in long term disability cases can fall outside of the four corners of the policy.
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Hey Brian! As a lawyer, you must hear some crazy stories. (TRUE).

You probably have lots of strangers calling you every day, wanting to discuss their legal problems (TRUE).

What are some of the most commonly asked questions of you (GOOD QUESTION).

As an injury lawyer, we hear of, and see lots of crazy things; lots of sad things; and lots of things that you just can’t make up. Some of these stories, I’m not at liberty to share with the general public.

Regardless of the severity of the injury, one thing that ties most clients together are their questions and concerns for their respective cases. From Toronto to London to Peterborough, client questions are generally the same. Just shows you that geography, race, culture, creed; it doesn’t really matter. People are people, and they share many commonalities regardless of your background, upbringing, or the mechanism and nature of the injury.

So, without further a due, here are some of the most commonly asked questions we here from inquiries to Goldfinger Injury Lawyers.
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Many of our clients cannot return to work after serious accidents.

The form of accident is irrelevant. It doesn’t matter if your accident was caused by bike, car, pedestrian knock down, boat, fall or otherwise.

It doesn’t matter if your injury is catastrophic, is a brain injury, spinal cord injury, ankle fracture, chronic pain, psychological injury or any of the above.

The purpose of this Toronto Injury Lawyer Blog Post is to discuss and examine what you can do for money when you cannot return to work on account of your accident related impairments.

Firstly, it’s important to better understand how the Courts and how insurers quantify income loss claims. Many clients tell me that they’re high income earners, like having high, CEO style six figure salaries with benefits packages. Then, when we request their tax returns, they show little to no income. Go figure.

Courts require evidence of your income loss claim. The best evidence to prove income loss is what’s reported on your tax returns. In some cases, this is the only evidence that matters. In fact, if you should know that whatever you don’t report, you cannot claim. That means if you work at a cash business, and you deliberately conceal earned cash income on your tax returns without reporting it to revenue Canada, the Courts will not re-reimburse you for that income loss (save in exceptional circumstances).ankle.jpg

Basically, you cannot have the tax benefit and NOT report income in a cash business, and later seek to claim that money from an insurer as reportable income later on as your case develops. It doesn’t work that way. The law doesn’t let you suck and blow at the same time. In fact, the laws of physics don’t allow you to suck and blow at the same time. Go ahead. Try it.
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This week I had the pleasure chatting with a kind Detective from the Toronto Police Service in the lobby of the Criminal Injuries Compensation Board. The CICB is where victims of crime can go to get compensation for their injuries resulting from a crime. So, if you’ve been shot or stabbed, you may claim compensation from the CICB. Our office can assist you with the hearing. Hearings take place in a majority of these case. That means you need to go to Court.

If you were to sue the wrong doer, chances are you wouldn’t be able to recover very much money because most wrong doers are judgment proof (unless the wrong doer is a known multimillionaire). That means that they have no quantifiable assets. A stack of money under a pillow doesn’t count. The CICB awards victims of crimes with real money for their injuries, making these cases worth pursuing from a financial perspective.

Back to the story of the Detective and I. Has a nice ring to it, don’t you think?

We were sharing war stories, chatting about the hit TV Show “The Wire“, along with some of the crazy situations we’ve both encountered.

It was an absolute pleasure hearing the perspective from a Detective. Did you know that it’s the police officers who prepare the warrants and all of the legal paperwork which is later relied on by the Crown to prosecute a case? Unlike in the United States where the Attorney General and their lawyers and law clerks prepare this sort of paper work; here it’s the officers themselves who do it.

These officers have no substantive legal training. They’re trained to be cops, not lawyers/paper pushers. Yet, their paper work is legal, and it’s scrutinized by Defence Lawyers and Judges alike. Their paperwork is so important to advancing the Crown’s position. Seems like an unfair fight having paper work prepared by a police officer torn to shreds by an experienced Defence Lawyer along with their legal team. But I’m no expert when it comes to criminal law. Personal Injury Law is what we do best.
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Pre-Trial is one of the last steps in a personal injury case before it actually goes to trial.

The Pre-Trial, aside from the actual trial itself, is the most important step of your case which requires judicial intervention. That means that the Court is actively involved in this part of your case, unlike other parts of your case.

An examination for discovery does NOT require Judge. A mediation does NOT require a Judge. An independent medical-legal examination does NOT require a Judge.

But a Pre-Trial requires a Judge. Without a Judge, a Pre-Trial can’t happen. (save in Toronto/Ottawa and Windsor where Masters can conduct Pre-Trials in Simplified Procedure cases).

So, you might be wondering. What exactly is a Pre-Trial?
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When one of our clients is asked how much they think their case for pain and suffering is worth, they will often tell you that it’s worth $1,000,000 or more. It’s understandable why anyone would put such a high price on their own individual pain and suffering. Can you really put a price on these damages?

Canadian Courts have.

Unfortunately, the system for quantifying damages for pain and suffering is unfair to accident victims in Canada. Why? Because it’s impossible, at law, anywhere in Canada, to recover $1,000,000 or more for you pain and suffering.

It’s this way because back in 1978, the Supreme Court of Canada ruled on three decisions, commonly referred to as “the trilogy“.

In those cases, the Supreme Court established a cap (or limit) for damages for pain and suffering. Back in 1978, that cap was placed at $100,000. Today, with inflation, that cap is around $350,000. This is the absolute MAXIMUM which you can recover for your pain and suffering in Canada. The Supreme Court of Canada established this cap because they did not want our civil justice system, turning in to a free for all legal system like you see in many parts of the United States.

So, even at trial, if a jury awards you $1,000,000 for damages for your pain and suffering, the Judge will then limit that award to $350,000 or below. The Judge would probably instruct the Jury to return to the deliberation room and come back with another figure for damages for pain and suffering.
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Lots of people think that all lawyers do all day is talk. It’s a a common misconception. Perhaps, there are some lawyers who spend their entire days talking; but not me.

The majority of my day is spent listening. I listen to Judges. I listen to Masters. I listen to other lawyers. I listen to insurance adjusters. But, most importantly, I listen to my clients and to prospective clients telling me their stories.

Every day I’m told from my clients how they’re struggling managing their pain; how they’re struggling making ends meet; how they’re feeling down and sad since their accident; and how their accident has turned their life upsidown.

Accident victims have lots to say about their case, how it happened, and what their injuries are. Their testimony is important, and can be very persuasive to insurers, judges and juries. But, sometimes, the MOST PERSUASIVE evidence isn’t verbal; it’s written and hidden in the scribbles. What do I mean by that? Read on and find out.
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