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Articles Posted in Insurance

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Sounds like a typical law school fact pattern for a tort case.

A property owner retains an arborist to do a routine pruning job on a set of Norwich Maple Trees in his yard.

The arborist advertises that he is both “licensed” and insured.

Upon attending at the job site, the arborist begins to unload his equipment from his van. It includes all of the normal stuff which any arborist would carry: spikes for climbing trees, ropes, counter weights, pylons and chain saws etc. But is also includes something which you shouldn’t find on any job site; an open container of alcohol; in this case a tall boy of beer.

Having an open can of beer may not seem like a big deal. The general labourers there to help the arborist tell the property owner that having a beer on the job site isn’t a problem; and that they do it all the time. They tell the property owner that this is just the way that the licensed arborist works. He needs beer to concentrate and do his job. They are trying to pass this off like it’s all normal.

The notion that a man climbing 20+ feet in the air; with a large gas powered chainsaw; needs to be fueled by alcohol isn’t normal whatsoever.

Yet, this is what the arborist and his friends tried to convey to the property owner.

In case you are wondering, that property owner was me. And I’m a personal injury lawyer. And I wasn’t having anything of it.

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The majority of my clients are first time litigants:

  1. It’s their first time retaining a personal injury lawyer; or retaining a lawyer at all
  2. It’s their first time suing
  3. It’s their first experience with the legal system
  4. It’s their first time getting really hurt and needing to do something about it from a legal perspective
  5. It’s their first time getting denied by an insurance company
  6. It’s their first time feeling gaslit by an insurance company
  7. It’s their first time participating in sworn statements, an examination for discovery, medico-legal assessments, mediation, having surveillance conducted on them, Pre-Trial, Trial and all of the other things which go hand in hand with personal injury cases

The parties which my clients sue or seek benefits from are large and sophisticated insurance companies. This is not their first rodeo. They are well versed in the dark arts of litigation. Strategically defending lawsuits is what they do well.

Insurance companies know what they are up against. They are facing off against for the most part, unsophisticated accident victims who are hurt or injured. The Plaintiffs are new to litigation and all of the ups and downs which it presents. Insurance companies know how to say the right things because they have experience. Having their lawyers say “healing words” to appease a Plaintiff; or say all the right things to gloss over a terrible sequence of events is less expensive than paying out an award for damages.

An apology costs n0thing. Stating condolences for the loss of a loved one costs nothing as well.

But paying out of a claim costs the price of said claim.

There is a quantifiable economic difference between the two which insurance companies and their lawyers know all too well. Why pay out on a claim when you don’t have to? Why pay more on a case when you don’t have to? It makes financial sense. If an insurance company either liked your claim, or wanted to get you the compensation you deserve; you would have received that compensation by now.

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There are serious misconceptions of how people get paid, or receive benefits after they’ve been seriously hurt or injured in an accident.

You’ve likely heard stories of insurance companies paying for an accident victim’s lost wages, treatment costs or even getting them a modified vehicle or modified home before their case even settles.

Some of these things might be true. Some of these things might be false.

At the end of the day, it’s this sort of misinformation which creates large scale confusion as to what benefits get paid, and what benefits don’t get paid before a case even settles.

Goldfinger Injury Lawyers would like to set the record straight with this instalment of the Toronto Injury Lawyer Blog.

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I was talking to my father about the Ottawa Freedom Convoy Protests and what to do about them. This was before PM Trudeau announced the that his government would be implementing the *Emergencies Act and before the police finally did some real police work and cleared out most of the trucks and protesters.

*Note: Canada was NOT facing a National Emergency when PM Trudeau accounced that his government would be implementing the Emergencies Act. The protests at the border crossings in Coutts Alberta and Windsor Ontario had long been cleared up. While there were smaller protests happening sporadically across Canada; these protests did not amount to a NATIONAL EMERGENCY. The protests in Ottawa amounted to a localized emergency isolated to a few blocks of downtown Ottawa. While these protests may (or may not) have presented real or potential security issues; these were localized issues which the municipal police and provincial police ought to have dealt with. But they had a really hard time dealing with them for reasons that I, nor will many Canadians really understand. Did they not see this coming!?!?!?!?! Had they not seen a protest before? Why were they so unprepared and so unwilling to act? How is it that the G-20 Toronto protests, Black Lives Matters protests and any Indigenous protests (BC, Belleville, near any pipeline) get cleared up so quickly by police (often using force), yet for this protest it seemed like authorities rolled out the red carpet to the protesters? But that’s a topic for another day, perhaps from a Civil Rights Lawyer.

Back to the topic of what amounts to be a National Emergency and whether or not the Ottawa Truck Protest qualified as such. The definition of “National Emergency” under the Emergencies Act is as follows:

National emergency

 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that

  • (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

  • (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.

The Ottawa Police Service and the Ontario Provincial Police ought to have been able to deal with this situation without the implementation of the Emergencies Act. Implementing the Emergencies Act should only be done when facing a real National Emergency. While it’s embarrassing that the capital city of a G7 nation can be blockaded by a few trucks, this is not a National Emergency. This is a time for the Ottawa Police, the OPP and the National Capital Commission to reflect on the lack of preparedness, lack of urgency and lack of security in Ottawa. It should have never reached a point whereby Ottawa was blockaded for 3 weeks. But I digress back to topics as they relate to personal injury law and car insurance to keep things on point.

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Cases are built upon evidence.

Lawyers will try to highlight certain pieces of evidence in order to better suit, or to create a narrative which suits their client’s best interests.

It’s up to a Judge or a Jury to sift through the evidence in order to determine where the truth.

While lawyers can spin evidence any way they want, there are sometimes objective facts which simply cannot be spun.

With today’s instalment of the Toronto Injury Lawyer Blog, we will try to highlight hurdles which our personal injury lawyers have seen in long term disability cases. Sometimes these hurdles can be cleared. Other times, these hurdles cannot be overcome and really hurt a long term disability case.

Long Term Disability Hurdle #1: The Plaintiff as returned to work. There is nothing wrong with returning to work, so long as you tell your lawyer and don’t hide it. In fact, the Plaintiff has a legal obligation to mitigate his/her damages, which means trying to return to work. We tell our clients that there’s nothing better for a case than a failed return to work attempt. It shows that the Plaintiff tried to mitigate his/her damages by attempting to return to work and that the return to work failed because their injury/disability is bonafide and very serious. If a Plaintiff does not attempt to return to work, the insurer will certainly question why not. If there are notes in the doctor’s records which suggest that a return to work is possible yet was not attempted; the insurer will insist that the Plaintiff has not even attempted to mitigate despite a doctor suggesting that a return to work is possible. Not trying to return to work can delegitimize a Plaintiff’s injury or disability (if a return to work is on the table). If a Plaintiff returns to work without telling their lawyer, or is working under the table for cash it looks like the Plaintiff is trying to pull a fast one on the insurer. This will be frowned upon. This is why it’s so important to have good communication with your personal injury lawyer and fill him/her in on the significant changes in your lifestyle or health. You both want to be on the same page. If your lawyer is advocating for your disability into the future, yet you returned to work months ago; it’s not a good look for your long term disability case.

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Today is Election Day in Canada. We elect a new, or a returning Prime Minister. This is exciting. Will there be a majority government, or will we see another minority government?

These are important questions! Some political basics:

A majority government can do whatever they like; whenever they like! There’s no need to ask the other party what they think or how they feel about an issue. The majority government sets the agenda about what to speak about; and when to speak about those issues. The majority government can prorogue parliament whenever they like at their convenience. Even if the laws they pass don’t seem fair to Canadians; those laws can get passed and then challenged in Court. Even if the Court rules that the laws are unconstitutional, the majority government can invoke the Notwithstanding Clause to get their way! Dare I say, it’s like a majority government has the powers of a dictator.

With a minority government there needs to be some cooperation because one party alone can’t get their way. It forces parties to work together to get things accomplished. This may sound great in theory, but in practice little gets accomplished because nobody is eager to concede or to back down and appear weak. Cooperation in everyday life is important. But politics isn’t everyday life. Letting another party get their glory or appear to have got the job done is a loss to the opposition parties; so there’s no political incentive to cooperate. What might be in the best interest of Canadians may not be in the best interest of a political party. Hence the dilemma. Are the politicians and political parties really there for the right reasons; or is all for the glitz, glamour, ego, power and prestige that comes with office. You be the judge. Dare I say its the later.

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Our law firm receives a lot of calls from people who have been denied Life Insurance, Long Term Disability Insurance, Mortgage Insurance and Critical Illness claims.

Some of these policies are group policies which are offered through an employer.

Sometimes these are private policies which are purchased from an insurance broker or from a bank.

This Toronto Injury Lawyer Blog post will focus more on those private policies which individuals purchase on their own. The thing with private policies is that you need to apply, and qualify for coverage. Monthly premiums vary depending on age, health, disability history, lifestyle choices and other risk criteria.

These risk criteria are examined in detail by an underwriting department at the insurance company.

These underwriters have very important jobs. They have to assess the risk of insuring individuals and put a dollar figure on that risk. Premiums are largely determined based on the risk of insuring the individual and the level or amount of insurance which the individual is seeking.

A life insurance policy which pays out a $50,000 benefit will be less expensive than a life insurance policy which pays out a $5,000,000 benefit.

The same way that a life insurance policy for a 9 year old person will be less expensive than a life insurance policy for a 99 year old.

There are so many factors which go into underwriting that it’s hard to understand. This is why insurance companies narrow down these underwriting criteria based on a set of questions when applying for insurance.

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Car accident law shouldn’t be confusing. But it is!

Workplace injury law shouldn’t be confusing either. But it is!

Part of the reason that both car accident law and workplace injury law are both so confusing is because there are man made laws behind both; which usurp natural law.

For car accident claims we look to the Insurance Act and the Statutory Accident Benefits Schedule. Both pieces of legislation are dense; and require that the injured claimant complete a bunch of confusing standard forms.

For workplace injury claims we look to the Workplace Safety Act, the Occupational Health and Safety Act along with the First Aid Requirements Regulation 1101

These pieces of legislation are also dense, and require that the injured worker complete a bunch of confusing standard forms.

You cannot sue your car insurer in regular Court over an accident benefit dispute for a car accident claim. Instead you must start a proceeding before the License Appeals Tribunal or LAT in the Automobile Accident Benefits Service or AABS

You cannot sue your employer in regular Court over a workplace accident. Instead you must start a proceeding before the Workplace Safety and Insurance Board or WSIB.

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The Workplace Safety Insurance Board (WSIB) provides no fault insurance coverage for injured workers in workplace accidents.

When workers have been injured in the course of their employment; often they look to our law firm to sue their employer.

But here’s the catch. And oh boy; is it ever a big catch.

You see, the thing is, in the vast majority of cases, you cannot sue your employer for your workplace injuries. There are certain exceptions like working for a bank, a law firm, or a funeral home. But in the vast majority of cases, you cannot sue your employer for their negligence giving rise to a workplace injury.

Employers are given one of two classifications. They are either classified as Schedule 1, or Schedule 2 employers. The marjority of employers fall under Schedule 1.

A Schedule 1 cannot sue his or her own Schedule 1 employer. They will be forced to make a WSIB claim. In the event that they find a personal injury lawyer to take on their case and sue their employer for their workplace injuries, the Defendant will bring an Application to the Worplace Safety and Insurance Appeals Tribunal (WSIAT) to have the lawsuit kicked out of Court and force the injured worker to pursue a WSIB claim.

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The cost of Physiotherapy is NOT covered by OHIP. That means that if you need physiotherapy, someone needs to pay for it.

The cost of chiropractic treatment is NOT covered by OHIP. That means that if you need chiropractic treatment, someone needs to pay for it.

The cost of out of hospital occupational therapy is NOT covered by OHIP. That means if you need to see an occupational therapist,  someone needs to pay for it.

The same applies to psychotherapy, massage, cranial sacral treatment, nutritionist, a rehab coach, a PSW, an RSW, social work for a car accident case outside of hospital, speech language therapy, neuropsychological testing, driver retraining, case management services, psychology (not to be confused with psychiatry); even some forms of medicinal cannabis for pain management are not covered by OHIP.

All of these services are very important to accident victims for the long roads to recovery following a accident; motor vehicle or otherwise.

If the accident victim has their own form of collateral benefits with an insurer like Blue Cross, Manulife, SunLife, GreenShield, Canada Life etc.; some or percentage of those benefits may be covered. Most policies differ; but it’s not uncommon to see a cap for these services set at around $500 or $750 per year.

If the accident victim was involved in a motor vehicle accident; or an accident arising from the use or operation of motor vehicle s/he will have access to accident benefits to pay for these services.

The level of accident benefits available to each person varies depending on the coverage purchased under the policy along with the degree of injury. For the most minor accidents, people will only have access to $3,500 in benefits. For more serious accidents there is a blended level of $65,000. For the most serious accidents, there is $1,000,000 available in coverage.

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