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Articles Posted in Limitation Periods

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Personal injury law is rather strange.

In all cases, the Plaintiff has been hurt or injured. Aside from being hurt or injured, the majority of Plaintiff share another thing in common.

The overwhelming majority of Plaintiffs have never been involved in a civil lawsuit before! That means that they have very limited knowledge about the Court system and how it works. They aren’t familiar with lawyers and legalese. They aren’t familiar with the law and how it works. But most importantly, it’s a message that these Plaintiffs aren’t litigious people. That means that they either don’t know how to sue, don’t want to sue, or want to stay as far away from the Courts as possible. Because let’s face it, the Courthouse is not a pleasant place to be. At the end of the day, the vast majority of Plaintiffs are legally unsophisticated accident victims who were in the wrong place, at the wrong time.

Yet, the Courts treat Plaintiffs who have never sued, never retained a lawyer, or stepped foot inside of a Courtroom like they should know all of the ins and outs of the law. And if they don’t know the ins and outs of the laws, large, highly sophisticated litigants such as insurers get to reap those benefits.

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On August 10, 2021 the Honourable Justice Grace ordered that “all civil jury trials scheduled to commence in London, Ontario during September, October, November and December 2021 and all civil jury trials scheduled to commence in London, Ontario during September and October 2021” are adjourned. There will be a special civil assignment court to be conducted by teleconference on September 16, 2021 at which time new trial and potentially new pre-trial dates will be set.

The reason for the blanket adjournment of all of these civil trials? COVID-19.

His Honour cited “the impact of COVID-19 on the operations of the Superior Court of Justice and the significant backlog of criminal and family cases”.

Omnibus_Endorsement_of_Justice_Grace_re_civil_trials_for_Fall_of_2021_London (1)

So where does that leave your personal injury or long term disability case?

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If you read the last instalment of the Toronto Injury Lawyer Blog, you would have read all about the confusing world of Long Term Disability policies, how they work; how they don’t work; and how ordinary people find them confusing. If you didn’t catch the last instalment of the Toronto Injury Lawyer Blog; don’t fret! You can read up on it here. Brian Goldfinger thinks that you will find it interesting and informative.

What makes our long term disability lawyers mad or frustrated, is when we see what appear to be otherwise meritorious cases, fail on account of a technicality not caught by the innocent disability claimant who doesn’t know any better.Goldfinger-logo-icon-300x300

Enter the recent decision out of Kitchener of Wiles v. Sun Life Assurance Company; released February 15, 2018 by the Honourable Justice G. E. Taylor.

In this case, the Plaintiff commenced an action against Sun Life Insurance for Long Term Disability Benefits. Prior to her disability, she worked at a company called Spaenaur.

The plaintiff states that she became fully disabled as of October 15, 2015, she continued to work full time and perform her employment duties until the date of termination of her employment at the beginning of November 2015. Prior to the termination of her employment, the plaintiff did not request of anyone at Spaenaur to be placed on disability.

In the Attending Physician’s Statement Salary Continuance Services, the plaintiff’s primary diagnosis was stated as “major anxiety disorder”. In the Attending Physician’s Statement Claim for Long-Term Disability benefits, the plaintiff’s symptoms were described as severe anxiety and depression which first appeared on November 3, 2015. The form also described the plaintiff’s symptoms as the result of being dismissed from her employment.

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Our law firm handles many short term disability, and long term disability cases against large insurance companies. These insurers include but aren’t limited to: Manulife, Sun Life, Great West Life, Industrial Alliance, SSQ, Desjardins, Co-Operators, RBC Insurance, La Capitale, and BMO Insurance just to name a few.

It should be noted that not every insurer sells/provides Long Term Disability insurance. Some do, and some don’t.  And not every insurance company handles claims in the same way. Insurers may appear similar, and certainly do similar things; but that doesn’t mean that they are the same.

If you’re reading this instalment of the Toronto Injury Lawyer Blog, you may be contemplating making a claim for Long Term Disability Benefits, and don’t know where to start, what to do, what questions to ask, what to say (or not say) so that you don’t mess up your Long Term Disability Claim.

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What does it take to be found disabled under your Long Term Disability Policy? A kind adjuster? A lenient policy? Good handwriting on the LTD application? A good LTD lawyer? Or is it just dumb luck?

Our lawyers wish we had the answer to get you approved right away. A good lawyer will certainly help, but a good lawyer can only play the hand that s/he has been dealt.

Even winning claims can take time to win as the insurer has to be satisfied that the applicant’s disability is not only legitimate, but also meets the definition of “disability” contained in the policy of insurance.

The tricky thing for adjusters is that every LTD policy is different. They all contain different definitions of disability, different time lines to consider, along with different benefit amounts.

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My law firm gets calls from people all across Ontario with respect to Long Term Disability claims. The questions cover a wide range of topics from:

  • Am I entitled to LTD benefits?
  • What can I do if the LTD insurer denies my claim?
  • How can I apply for LTD benefits?
  • Is it too late to sue?
  • Should I appeal the LTD insurer’s decision not to pay LTD benefits?
  • How many times should I appeal the insurer’s LTD denial?
  • How much is my LTD case worth?
  • How do LTD benefits work?
  • Where can I get my LTD application paper work and how do I fill it in?

One of the reasons people have so many questions when it comes to their LTD claim, is because few people have ever read their LTD policies; LTD claims are the exception for employees; not the norm; and people simply don’t understand how these benefits work.

In fact, we even have people calling our office for completely different reasons (car accident, slip and fall, motorcycle accident), only to find out months, or sometimes years later that they have long term disability coverage through their employer! Some people don’t even know they’re covered!!!

As an aside, this awareness of your rights dovetails in to personal injury lawyer advertising. Insurers don’t want to see lawyers advertise. To be fair, some well connected personal injury law firms don’t want to see other personal injury law firms advertise either (but that’s a different topic).One of the reasons which insurers don’t want to see personal injury lawyers advertise, is so that the general public is kept in the dark when it comes to understanding their rights. The later an injured accident victim, or LTD claimant understands their rights, the better for an insurer.

Case in point: The recent Ontario Court of Appeal decision in Usanovic v. Penncorp Life Assurance Company also known as La Capitale Financial Security Insurance Company 2017 ON CA 395 (CanLII). This Ontario Court of Appeal decision was released on May 18, 2017.

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It’s not very often that judgments from the criminal court system impact personal injury and car accident cases.

It’s particularly rare when a criminal case which was decided in British Columbia, has such a far reaching effect that it impacts the way and timing in which personal injury cases are heard in Ontario.

But the case we are about to review is no ordinary case…..

Today’s installment of the Toronto Injury Blog will focus on a unique decision from the Supreme Court of Canada in R. v. Jordan [2016] SCJ No 27 (QL).

This was an appeal which went all the way up to the Supreme Court of Canada, from the BC Court of Appeal, and the BC Supreme Court.

The accused, Mr. Jordan, was charged with various charges in a dial a dope operation. He was charged in December 2008. His trial ended in February 2013. What’s a dial a dope operation? It doesn’t really matter for the context of this analysis.

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I would like to begin this Toronto Injury Lawyer Blog Post by discussing our law firm’s experience reporting a case of auto fraud to the Financial Services Commission of Ontario (FSCO). I will get in to what exactly the auto fraud was in a later post, as I simply don’t have the space this week to get in to the story.

FSCO is the government body which takes care of car accident and accident benefit fraud in Ontario. This was our first time reporting an incident.

When you wish to report a fraud, there is a Fraud Hotline, 1-855-5TIP-NOW or 1-855-584-7669. There is also an online form you can complete on the FSCO website. Accident Benefit and Car Accident Fraud has been made to be a big deal with all of the huffing and puffing which insurers do about this “epidemic“. You would think that reporting a fraud would be simple, and that the fraud team at FSCO would know what they’re dealing with, and get right on it seeing as it’s such a big deal.

I was passed on to four separate people at the FSCO Fraud Hotline (plus a hang up altogether)  before they even took down any of the fraud victim’s information to investigate the matter. It seemed like nobody knew what to do, nobody knew what to look for, and nobody wanted to deal with our report. I was being passed, from person to person without getting any answers. I had to advance a theory of the fraud which made them say “AH-HA! That’s it!” before they even understood the cause/root of the alleged fraud. It was like they hadn’t even dealt with car accidents or accident benefit cases before.

After much pressing and energy, the fraud has now been reported. What happens now is beyond our law firm’s control. Whether or not we get a progress report from FSCO regarding their investigation is uncertain. I’m doubtful they’ll get back to our office or to the fraud victims. Reporting car accident and accident benefit fraud should NOT be an exercise of jumping through hoops. It should be a clear and easy process with responsive, knowledgeable and accountable staff who get results. Results matter and I got the feeling in dealing with the FSCO fraud team that didn’t know what they were doing. Just our opinion based on our experience.

Now, on to the remainder of the Toronto Injury Lawyer Blog which focuses on Long Term Disability Claims and their tricky limitation periods…..

If there’s one thing which causes Plaintiff side injury lawyers to panic or lose sleep, it’s the fear of missing a limitation period. Conversely for defence counsel and their insurer clients, the prospect of getting a clear cut win on summary judgment motion because a Plaintiff missed their limitation period is exciting; along with a fast and cost effective way to close a file.

Determining when a limitation period begins to run has always been a challenge in certain types of cases. For motor vehicle accident claims, establishing the date of loss is rather simple. Most of the time, with certain exceptions, all the Court needs to do is look at the date of loss. But the same approach does not apply in the context of long term disability claims where there can be multiple denials, multiple levels of appeal, or the denial is not clear and unequivocal. There can be heated debate between Plaintiff and Defence Counsel as to when a limitation period should begin to run. Continue reading →

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Not too long ago, the Toronto Injury Lawyer Blog focused on limitation periods in the context of Long Term Disability Claims, and how insurers will delay, delay, delay such that enough time has passed that they could ask the Court to dismiss your claim. Delay is the enemy of a Plaintiff and the friend of an insurer.

The longer a denied claim goes without litigation, the greater the chance that the delay argument will swing in the favour of the LTD insurer. It’s clear that time is NOT on the claimant’s side when it comes to filing an LTD claim, and then litigating it at Court.

One of the larger LTD Insurers, RBC Life Insurance Company recently brought their delay argument to the Ontario Court of Appeal in the hopes of having a claimant’s case dismissed completely.

The case is Dube v. RBC Life Insurance Company and the initial decision at the Superior Court level can be found in the above noted link.

In this case Mr. Dube was a full time employee of the Windsor Essex Housing Corporation. He began working there in around November 2008. He was entitled to benefits under a group disability policy with RBC. One of those benefits was Long Term Disability Benefits. These benefits were supposed to pay for a percentage of Mr. Dube’s salary, in the event of serious injury, illness and/or disability. Basically, if you’re too hurt to work, RBC will pay you a portion of your salary to help make ends meet. In theory, this sounds like a great thing. Almost too good to be true…

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Generally speaking, adults have 2 years from the date of a car accident, or slip and fall to sue. If you wait until after two years from the date of the accident, you’re likely out of time to sue. This is called a “limitation period“. These limitations, are set out by statue. The best place to look when it comes to limitation periods is Ontario’s Limitations Act, 2002, SO 2002, c. 24. or the applicable act for the subject matter you’re dealing with. You’ll likely need a lawyer to help sort these things out, so have a good one to call if you have any questions about this sort of thing. But this isn’t the purpose to today’s instalment of the Toronto Injury Lawyer Blog.

Sometimes, large insurers try to contacts OUT of the limitation periods which are set for in the Limitations Act,  2002, or other statues. Personal injury lawyers often see this in the context of long term disability litigation.

Long Term Disability claims are unique, because unlike a car accident or slip and fall case where the applicable law is generally tort law from our common law system along with other statutes such as the Negligence Act, Occupier’s Liability Act, or Insurance Act; Long Term Disability Claims (LTD) are entirely contractual claims. The insurer and their underwriters draft the contract. The claimant is suing for benefits which are supposed to be provided for under that contract. If the contract doesn’t exist, then there’s no LTD claim. If the benefits don’t exist under the contract, then they won’t exist in your claim.

A trend which Plaintiff side lawyers have been seeing more and more in the context of LTD litigation are instance whereby large LTD insurers, such as Manulife, Great West Life, Sun Life, SSQ, Desjardins, RBC, Equitable Life, Industrial Alliance and others are trying to contract OUT of statutory limitation periods to reduce them. They do this by virtue of tucking in clauses to those lengthy and complicated LTD insurance contracts.

An LTD claimant, or lawyer may assume that they have two years from the date of denial to sue. This would seem entirely reasonable. BUT, the insurer is relying on one of these limitation clauses to have the claim dismissed from Court, so that they don’t have to pay out any benefits on the claim.

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