Articles Posted in Personal Injury Lawyer

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Yesterday, the Toronto Raptors traded 2x All NBA, 2 x NBA All-Star, 1 x NBA Champion Pascal Siakam to the Pacers for 3 first round draft picks and some players who act as salary filler. Two of the 1st round picks will be late in the first round of the 2024 draft. The 2024 draft is widely viewed a poor draft compared to other years. The third pick will be the Pacer’s 1st round pick in 2026. And, barring injury or a dramatic setback, that pick will be a late round pick as well given that the Pacers are projected to do well.

The haul back for the Raptors is largely underwhelming for a player as talented, dedicated and as accomplished as Pascal Siakam. He is a huge success story for the Toronto Raptor’s scouting and development team. For many Raptor fans, this trade feels like getting 50 cents on a very shinny dollar. There is no way that then Toronto Raptors would attract such a talent still in his prime through free agency. The notion that we are trading him away for little is hard to digest.

But why would the Raptors consider trading away such a talent in the first place?

Good question.

Pascal’s contract with the Raptors is set to expire at the end of this season. The Raptors have tried to extend the contract, without success. Pascal is seeking a “max contract“, and the Raptors are not prepared to pay him those max dollars. So, instead of letting Pascal’s contract expire and receive nothing in exchange, they are trading him away. It’s better than letting him walk away for nothing.

Many NBA teams were not prepared to offer full value for Pascal given that he was under an expiring contract. There was no guarantee that he would re-sign with his new team. The market dictated that they would not pay full price for an expiring asset. This is completely fair, and smart.

But, there had to be a better way. There had to be a way such that the Raptors could get full value for their asset in trading Pascal Siakam. There must have been a sweet spot to pull the trigger on the deal such that the Raptors secured the best possible return for one of the franchise’s best players.

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Over the past decade, personal injury lawyers have seen an explosion of a new insurance product offered to their law firms and to their personal injury clients. It’s called Adverse Cost Insurance or After-The Event Insurance.

How does it work and what does it do?

Adverse Cost Insurance or After-The Event Insurance serves to protect a Plaintiff from an adverse cost award following an unsuccessful trial.  At trial, if a party loses, the Judge will generally order that the losing party pay the winning party’s legal fees. Those legal fees, especially after a trial can be very high. This insurance product is there to cover all, or part, of those legal fees which the losing party is ordered to pay by the Judge.

What are the benefits to this insurance?

In theory, the insurance will pay for part, or all of the legal costs if you’re unable to do so on your own.

Let’s imagine a scenario whereby a Plaintiff in a car accident case loses his/her case. After the lengthy trial, the Judge dismisses the Plaintiff’s case, and orders that the Plaintiff pay the Defendant’s legal costs in the amount of $500,000. This is entirely possible. In fact, it recently happened in the case of Belton v. Spencer. In that case, Belton sued Spencer for damages as against Spencer as a result of an accident that he sustained while walking Spencer’s horse .

Following a trial lasting over eight weeks, Belton’s action was dismissed as against Spencer. The Judge ordered that the Plaintiff Belton to pay $350,000 in legal fees plus HST, and $74,472.52 in disbursements, for a total of $469,972.52 to the Defendant Spencer. Ouch!

Spencer’s law firm had an adverse costs insurance policy that to respond to the trial outcome, by paying for the law firm’s disbursements and/or the applicants’ trial costs owed by Belton to Spencer, up to the Policy limits of $100,000. You can read more about the decision here, and about how adverse cost insurance works in this case.

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Being involved in litigation is miserable. It’s true!

Do you think it’s “fun” to be surrounded by lawyers? Is it fun to be compelled to attend at an Examination for Discovery to be grilled by lawyers you’ve never met? Is it “fun” going to Court? Do you consider it a good time having to be examined by a doctor who is hired by an insurance company to defeat your case or to deny your benefits?

Courthouses and court reporters offices are not meant to be “fun”. Litigation is not designed to be “fun” either.

Taking a step back and putting yourself in the shoes of a personal injury client; the litigation process can be quite aggravating and frustrating.

It’s slow.

It’s very time consuming.

It’s expensive.

The laws don’t make sense.

The laws provide more protections to the at fault Defendant than they do to the injured Plaintiff!

This doesn’t mean that you shouldn’t pursue your case. It means that it’s important for a Plaintiff litigant to have the right mindset as their case goes through litigation. Having the wrong frame of mind will cause undue stress, hardship and anxiety. But all of that can be put at ease if you approach your case with the right frame of mind.

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Facts don’t care about your feelings.

Neither does the law.

A Judge’s job is to assess and judge your case. There will be a winner, and there will be a loser. Sometimes, after legal costs and the time invested into a case are taken into consideration, all of the parties will be losers.

Cases are won and lost based on evidence. Contrary to popular belief, cases are not won based on your feelings or emotions. The law is hard on feelings and emotions. The cold, hard, truth which Plaintiffs need to hear is that Courts don’t care much for emotions (even though they say that the will listen); especially if the evidence isn’t there to support the case. Emotions can certainly bolster a case; but they won’t tilt the scales of justice without proper evidence to support the claim.

Evidence are the meat and potatoes of the case. Emotions, and feelings are the seasoning. You can certainly feast on meat and potatoes, but you cannot feast on seasoning alone.

It’s very difficult for an injured accident victim to separate their emotions, from the evidence at hand. This is understandably. Accident victims (for the most part) aren’t lawyers, and have never stepped inside of a Courtroom. They have no idea how the legal system works. Some believe that the party which yells the loudest; or who shows the most emotion before a Judge and Jury having not taking into consideration the evidence required for a successful personal injury case will be the victor. This could not be further from the truth.

In order to win a personal injury case, a Plaintiff must establish three factors:

  1. Liability
  2. Damages
  3. Causation

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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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No personal injury case is ever the same.

Some may be similar; or may share similar characteristics. But, no two personal injury cases are never the same.

There are so many variables which can change a personal injury case. These variables are seemingly infinite. Here are a few which personal injury lawyers and Courts have to consider:

  • The age of the Plaintiff. This impacts his/her future income calculation, future care, and life expectancy
  • The way the accident happened
  • The policy limits relating to the accident
  • The availability of collateral benefits to a Plaintiff
  • How much the Plaintiff was earning (or not), in the years before the accident
  • The Plaintiff’s pre-accident and post accident health, along with what they did (or didn’t do) to get better
  • How the Plaintiff, and/or Defendant presented at Examination for Discovery
  • If any surveillance has been taken of the Plaintiff; and if so; what that surveillance showed, or didn’t show
  • The status of a Plaintiff’s accident benefit case (where available)
  • What the Defence Medical Reports say vs. what the Plaintiff’s expert reports say
  • The information contained in the clinical notes and records
  • Is the family doctor supportive (or not) to the Plaintiff’s case
  • Are there any causation issues with respect to the accident related injuries
  • Are the injuries subjective or objective. If the injuries are subjective, is the Plaintiff credible, believable and/or likeable
  • Will the case be proceeding by way of Judge alone, or in front of a Jury
  • Special considerations when it comes to liability (i.e. suing a government, municipality vs. suing a private citizen)
  • In the case of a motor vehicle accident; are the threshold and deductible live issues for the case

And the list goes on and on.

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When I was a young lawyer, I worked at a law firm in Yorkville that had 2 dogs and a cat.

I had never worked in any office environment that had any sort of animal. Having a dog, or a cat, let alone multiple animals in a law office, seemed very strange to me. When I thought about the idea of a traditional law firm, the image of a dog or a cat in the office never came to mind.

The previous law firms I worked at were in large office towers; on Bay Street in Downtown Toronto. There were no animals allowed in those office towers. Even if there were animals allowed, the financial district was not the ideal place to walk a dog. Taking the dog in a business elevator with all of those white collar executives wasn’t the right fit. Nor was going outside of your tower multiple times per day to get the dog some fresh air.

But I was not working at a traditional law firm.  I was working at a personal injury law firm. And the thing about personal injury law, is…well…you guessed it…It’s rather personal.

Personal injury law firms do not represent large institutional clients like multi billion dollar, multi national corporations. Personal injury law firms represent everyday people, like you and me. So, the idea of having an office dog, was not so far fetched.

I’ve loved dogs all of my life. But, not to the point that I felt the urge to take my pet to work.

So what was it like having a dog (or two), along with a cat in the workplace?

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People get really confused about what to do when they sustain an injury in the workplace.

The first reaction for a person who gets injured while on the job is that they want to sue their employer, and everyone else under the sun for what happened to them.

This is a normal reaction and a normal train of thought. It would only seem logical and oh so simple that the injured worker sue his/her employer and anyone else responsible for their work related injuries.

Unfortunately, personal injury law in Ontario is far from logical and far from simple.

You see, because the injury took place in course or work, the employee must take a long hard look at whether or not s/he has to go through WSIB.

But what does going through WSIB have to do with suing for a personal injury case?

WSIB has everything to do with suing for a personal injury case; and here’s why.

You cannot both sue for your personal injuries, and claim WSIB benefits.

Well; if an injured worker cannot sue, and cannot claim WSIB benefits; then why can’t the injured worker just choose one path?

Because the law, in most cases; does NOT allow the injured party to chose. In the vast majority of cases; the injured worker MUST go through WSIB and cannot sue at all! Even if the employer was insanely negligent. I’m talking like sweat shop like labour conditions with zero protective gear and malfunctioning equipment which has been neglected for decades; the injured worker still CANNOT sue their employer if they are covered by WSIB.

If an injured worker tries to sue instead of having claimed WSIB benefits, their case will be kicked out of Court.

If an injured worker sues having not liked the amount of WSIB benefits they received; or having received not enough in WSIB benefits; their case will be kicked out of Court.

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Last night, like millions of others, I sat down to watch the Superbowl with my family. We had our traditional Superbowl Party, with all the fun food, snacks and beverages you might expect. We were all excited for the game, for the commercials and of course; for Rhianna’s return to the public eye for the Halftime show. And Rhianna did not disappoint.

The game had it’s fair share of controversial, or questionable calls.

There was a play in the first half, when the Eagles Tight End caught a pass heading out of bounds. He bobbled the pass, but still got both feet in bounds. Was it a catch? Was it not a catch because he bobbled the ball? I could have sworn it was not a catch because the bobble was clear as day. Yet, the referees ruled it a catch.

In the second half, the Eagles receiver caught the ball, got tackled after taking a step or two, fumbled the ball and it was returned for a touchdown. The ruling on the field called it a touchdown. Upon review, the call was overturned. The referees ruled that despite catching the ball, the receiving did not make a clear football move, and therefore, it was not ruled a catch or a fumble. The call was overturned and the points were taken off the board. It was baffled to say the least.

The final odd call was the holding penalty which ultimately decided the game. The Eagles defensive player made contact with the Chiefs receiver in what looked to be a normal football play. The referees called it a hold, the balls was advanced; and we all know what happened from there. The Chiefs kicked the game winning field goal with seconds left on the play clock. And there you have it, the Superbowl champs were decided.

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