Evidence

Published on: November 30, 2023

Do I have to produce a lot records in my personal injury case?

Records are the building materials to any personal injury case. Lucky for you, it’s not your responsibility to gather all of those records. Your personal injury lawyer will get all, or the vast majority of those records own your behalf.

A witness can say one thing at discovery, or up on the stand at trial. What they say can be relevant. But, it’s often self serving evidence. Rarely will you see a Defendant admit that s/he was in the wrong and that the Plaintiff ought to be entitled to all of the damages which they are seeking. The same logic applies to a Plaintiff. They won’t get up on the stand and suggest that the accident was their fault, and that they aren’t in pain; or aren’t deserving of a damages award. People with vested interests in the case are going to tender evidence which best serves their cause.

This is what makes the records so important.

Records: whether they are hospital records, doctor records, tax returns, employment files, police reports have no vested interest in who wins, or who losses the case. The records are objective.

That’s not to say that the records can’t be wrong. That’s also not to say that the author of those records may have made an error in preparing those records. Or, perhaps the author of those records was lazy and was doing the very least in order to complete the task as they are required by their governing body. It could also be that the author of those records carried bias (or was mean) and that bias and those negative feelings carried over into the records which they authored.

Regardless of what’s contained in those records, I can assure you that the personal injury lawyers and the Courts want to see those records. They are very important to your case, even if you don’t think that they are!

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Published on: July 26, 2023

How Baking a Cake and Personal Injury Cases are alike

By Goldfinger Injury Lawyers

Injured accident victims in personal injury cases will not get the benefit of the doubt.

A big part of that is because how our legal system works.

At law, an injured Plaintiff is required to establish their case to a Judge and Jury. The Plaintiff is required to bring evidence to the Court to prove that their allegations are in fact true. Without the evidence, the allegations are just that. Mere statements of demand, without any facts or evidence to back them up.

At trial, every Plaintiff will get up on the stand and suggest that they are in tremendous pain; and are enduring tremendous suffering.

But those statements aren’t enough. Without the evidence to back them up, they are just that. Self serving statements which will carry little weight at trial.

That’s not to say that a Judge won’t believe you; or won’t empathize with you. But a Judge will need more to make his/her ruling and award a Plaintiff the damages which s/he is seeking.

Explained another way: A Plaintiff cannot demand $1,000,000 and expect the Judge to award him/her $1,000,000 if there is no evidence to substantiate the claim.

These concepts are very important.

Why?

In my over 20+ years of practicing personal injury law, you would be amazed by the number of Plaintiffs who expect the law to work differently. Expectation of how are legal system works, and of how damages are proven does not mesh with the reality of how our system works. There is an expectation from many people that simply because they have been involved in a serious accident means that they will automatically be compensated for millions of dollars, without question or reservation.

That could not be further from the truth.

The harsh reality is that the legal system in Ontario is very difficult on Plaintiffs in personal injury cases. In fact, the way that the legal system works is that defendant insurers are afforded more protections than the injured Plaintiffs themselves. This seems contradictory given that the Plaintiff is the injured party and the Defendant caused injury to the Plaintiff. So why should more protections be afforded to an at fault Defendant as oppose to an injured, innocent accident victim who was simply in the wrong place, at the wrong time. This inequality of rights is magnified in car accident cases in Ontario where defendants are entitled to a secret credit of over $40,000 per claim regardless of fault (statutory deductible), and also entitled to the benefits of a threshold defence for the Plaintiff’s injuries (again, regardless of fault). This means that a Defendant could have been drunk driving, texting, and ran a red light; yet still; they will have the benefit of two very large statutory defences in order to escape a civil damages verdict at trial. Seems terribly wrong to many, but those are the cards which we have all been dealt in Ontario.

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Published on: February 1, 2023

Slip and Fall Cases in Ontario

By Goldfinger Injury Lawyers

It’s rather chilly in Ontario, with temperatures getting around the negative double digits.

When it gets this cold, ice forms and hardens significantly, making for difficult walking conditions on both public sidewalks, and private driveways and walkways.

Despite the poor walking conditions, there are still some daredevils out there who defy the cold temperatures and dare to wear sandals, flip flops, crocs or other footwear not associated with winter conditions.

So, what happens after a slip and fall case in Ontario? How are these cases started and built up by personal injury lawyers in order to get their clients the compensation which they deserve.

Cases are built upon facts and evidence.

This of these as the primary ingredients to a successful lawsuit. Without evidence, the case is going nowhere fast. You personal injury lawyer cannot simply conjure up evidence out of nowhere. And neither can you. Evidence in favour of your case either exists, or it does not. Some evidence is easy to gather. Other forms of evidence are not, and may need some form of higher power (like a Judge’s Order) to compel production.

Here’s an example of evidence which is easy for your personal injury lawyer to gather and to produce. Things like:

Clinical Notes and Records from the Hospital you attended after your slip and fall accident
Clinical Notes and Records from your Family Doctor or Nurse Practitioner, or the Walk In Clinic you attended after your slip and fall accident
Clinical Notes and Records from your Physiotherapist, Massage Therapist, Chiropractor or Occupational Therapist who you saw after your slip and fall accident
Pre-Accident and Post Accident tax returns which establish your base line pre-accident income, to show that you sustained a loss of income as a result of your slip and fall accident
Your Pre-Accident and Post Accident decoded OHIP Summary showing the doctor(s) you saw; and the frequency you saw those doctors before your slip and fall accident vs. the doctor(s) you saw, and the frequency you saw those doctors post slip and fall accident
Your employment file
Your ODSP File
Your CPP File
Your short term and/or long term disability benefits file
Your collateral benefits file
Your LHIN file
Photographs of your injuries, along with the ice patch which caused your fall (if you took any such photos and preserved them)
The ambulance call report, or the records from the police or fire department if they came to the scene of the accident to assist
Weather records for the days prior to your fall, the date of loss, and the days post slip and fall accident

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Published on: July 5, 2022

Evidence in Personal Injury Cases (Ontario)

By Goldfinger Injury Lawyers

Last week, the Supreme Court of Canada released a decision which upheld key protections for sexual assault victims. The decision is R. v. J. J.

In the wake of the Me Too Revolution, Canadian parliament changed the Criminal Code to establish more protections for sexual assault victims.

Let’s say an accused has text messages, or emails, or some other form of communication directly from the complainant. Those messages may impact the dignity of the complainant. Instead of simply being used at trial in their defence, an accused must disclose these records and a pretrial must be held in order to determine what records, can, or cannot be used at trial. It’s entirely in the Judge’s hands. If the Judge determines that the records are not relevant and will hurt the complainant’s dignity, they cannot be used.

The second major change was to give the complainants the right to argue at a hearing (outside of the course of the trial) that their privacy outweighs the importance of the records. Again, it’s up to a Judge to make the final determination of the privacy rights of the complainant outweigh the rights to a defendant using all evidence at his/her disposal in order to defend the charges.

This is a very difficult balancing act. The rights, dignity and privacy of the complainant are important. A complainant should not be humiliated on the stand or hurt twice as a result of stepping forward and testifying at trial. Complainants should not be intimidated to step forward and have their voices heard. I think we can all agree with that.

At the same time, a Defendant has the right to a fair defence. If an accused cannot use all of the evidentiary tools at his/her disposal in order to combat the charges, then are we giving that Defendant a fair and meaningful opportunity to a defense a trial. Or are we just giving them a perceived fair shake while limiting the tools at their disposal?

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Published on: May 26, 2021

Your personal injury lawyer should believe in you!

By Goldfinger Injury Lawyers

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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Published on: October 15, 2020

Toronto Injury Lawyer Blog Post #490: Subjective Opinion vs. Objective Evidence in Personal Injury Claims

By Goldfinger Injury Lawyers

Everyone is entitled to their own opinion. These opinions differ from person to person….and that’s ok.

Opinions can be based on a lot of different things: fact, belief, values, upbringing, history, education, training, experience, a gut feeling; or based on absolutely nothing at all!

You don’t need evidence to craft an opinion. It’s yours and doesn’t need to be justified by evidence, facts or anything other than that’s how you feel. And the crazy thing is how you happen to feel changes from day to day. Just like your opinion on something can change day to day, or hour to hour. Opinions aren’t concrete. They are fluid and forever changing.

Take politics. Sometimes Canadians elect a Liberal Government. Sometimes Canadians elect a Conservative Government. Other times Canadians can’t decide and elect a minority government. During an election; Canadians voice their political opinions by casting a vote for their party of choice. The party which they vote for can change from election to election. The change of vote represents a change of political support or political opinion. Opinions are fluid and change.

Evidence is completely different.

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Published on: October 3, 2019

Medical Records & Personal Injury Cases go hand in hand like….

By Goldfinger Injury Lawyers

Sand castles are built of sand.

Log cabins are build of wood.

Large office towers and built of concrete, steel and glass.

And personal injury and long term disability cases are built of medical records!

The evidence of any personal injury case establishes the foundation upon which cases are built. The stronger the evidentiary foundation, the stronger the case. And the opposite is of course true. No evidence, or a lack of evidence will translate in to a weaker case.

The basic evidentiary building block in a personal injury or long term disability case are medical records. These records can be from a hospital, rehab facility, doctors office, specialists’ office, nurse practitioner, rehab clinic, or an OHIP Summary.

Without compelling medical evidence to support the injury or disability, establishing damages (the injury) will be difficult for the Plaintiff and his/her personal injury lawyer to do.

It’s simply not enough for an injured or disabled Plaintiff to get up on the stand and state that they were and remain injured due to the negligence of the Defendant.

Of course a Plaintiff is going to say such a thing. They have everything to gain because they are the lead party in the action. The Plaintiff has a lot of skin in the game.

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Published on: April 27, 2016

Expert Evidence in a Personal Injury Case (Ontario)

By Goldfinger Injury Lawyers

Personal Injury, Long Term Disability and Car Accident cases across Ontario are built upon EVIDENCE. Our legal system doesn’t play out in such a way as a Plaintiff makes a claim, yells a lot that they’re entitled to compensation, and then they get what they want. If Courts worked that way, those with the loudest voices would always win. In order for your case to succeed, you need evidence.

Evidence can’t be made up or fabricated. In order to be persuasive and carry weight, your evidence needs to be pure, legitimate, and not tampered with or altered.

Evidence comes in a lot of different forms. Evidence can be oral testimony from an examination for discovery. It can come from testimony at trial while a witness or party is on the stand. Oral evidence can come from parties to the litigation, witnesses to the action, lay persons/character witnesses, or experts.

Evidence can also come in the form of documentary evidence. Police reports, medical reports, video surveillance, 911 recordings, photos of injuries etc. All of these items are forms of evidence as well.

Cases are made and broken based on evidence. How much weight evidence is given depends on the Judge/Jury.

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