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This instalment of the Toronto Injury Lawyer Blog is not your typical personal injury piece. Reason being, this has not been your typical week in the world of the law and politics in Ontario. As detailed below, this has been a historic week.

Earlier today, Doug Ford and his Conservative majority government enacted section 33 of the Charter, commonly referred to as the Notwithstanding Clause in order to uphold The Better Local Government Act.

The Better Local Government Act was passed by Premier Ford’s majority government to reduce the number of seats in the ongoing Toronto Municipal election from 47 seats, down to 25.

The Honourable Justice Belobaba ruled that Premier Ford’s Better Local Government Act was unconstitutional as it violated the Canadian Charter of Rights and Freedoms.

Premier Ford recalled legislature today and passed a resolution declaring that The Better Local Government Act would apply “notwithstanding” the Charter.

Essentially, Premier Ford used his supreme constitutional power to overrule the decision of a Judge to pass the legislation which the Judge had deemed to be unconstitutional.

Constitutional lawyers across Canada and legal academics rejoice. They haven’t seen so much CORAF action since the 1980’s.

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The wheels of justice turn slowly. Why is that?

Do you have all day to listen to the rantings of a personal injury lawyer?

Likely not.

The reality is that some of the delay can be blamed on the inherent nature of modern day personal injury litigation. It’s complex. It’s combative. It’s document heavy; and getting documents produced from the police, hospitals, treatment facilities or a doctor is not the most expeditious process. There are also significant privacy concerns as well which take time to deal with.

Other times you can blame the Courts. Most urban ones are slow without adequate resources to meet demand. Don’t believe Brian Goldfinger? Have you visited your local Courthouse lately?

Some times there simply aren’t enough Judges to hear cases. It’s true and it happens more that you would expect.

The focus of this Toronto Injury Lawyer Blog Post will be tactical delays by insurance lawyers to slow down the progression of a car accident case in Ontario.

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Long Term Disability cases are complicated. Most people don’t even know what a Long Term Disability Claim even is. To take it one step further, some people who have Long Term Disability coverage don’t even know that they have it, or which insurance company it’s with, how much coverage they have, or the duration of their coverage.

To be fair, the monthly long term disability amount is normally not a fixed amount, rather it’s a fixed percentage based on your annual salary or income. This fixed percentage/amount is subject to a variety of set offs such as CPP Disability benefits, WSIB Benefits, other collateral income benefits etc. The Long Term Disability Benefit can also be subject to a Cost of Living Allowance (COLA) which would increase the monthly LTD benefit based on a fixed inflation calculation.

In any event, calculating the LTD benefit can be tricky, and can be a mathematical challenge for even the finest actuary.

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A costs endorsement in the case of Persampieri v. Hobbs was just released by the Honourable Justice Sanderson after a three week jury trial of a car accident case.

This costs endorsement reflects everything that’s wrong with car accident law in Ontario.

You should know that in jury trials, jury decisions are not reported. Only the Judge’s endorsements/rulings from in-trial motions or costs decisions are reported. It’s through those endorsements/decisions which lawyers and insurers alike can pick up on what happened at trial (unless they are in the Court room to observe the trial as it takes place).

This case encapsulates EVERYTHING that’s wrong with the current state of tort claims for car accidents in Ontario. The system is simply grotesque, and tilted so far towards insurers it acts as a deterrent for innocent accident victims to seek the compensation which they deserve.

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Since the Christmas Holiday, our law firm has received dozens of phone calls from prospective clients with respect to their slip or trip and fall cases. The way these accidents occurred all vary. We see a number of snow, ice, slush or general slippery conditions caused by damp condition claims. We also see a variety of pot hole or crack claims. We also see uneven surface or poorly maintained stair claims.

The mechanism of the falls vary, as to the injuries sustained. From ankle fractures, femur fractures, broken arms, broken wrists, separated shoulders, shattered elbows, even broken noses. Ouch!

The reality is that this is now slip and fall season and we handle a lot of these cases around this time of year.

As discussed in a previous Toronto Injury Lawyer Blog post, there are many pit falls for slip and fall cases. The most important which we tried to address was the issue of liability. This is concept of proving negligence (or wrong doing) agains the party you are seeking to sue (normally the property owner, or the company responsible for the maintenance/care of that property).

The thing our lawyers try to hammer home is just because a slip or trip and fall happened, and injuries were sustained, doesn’t necessarily mean that there will be a winning personal injury case there. The Plaintiff needs to establish that the Defendant was negligent (or at fault, or responsible) for said slip and fall accident.

Without establishing liability, there is no case to be had; regardless of how significant the injuries may be.

This is why sometimes in slip and fall cases, the injuries are almost secondary to how the actual slip and fall took place. In certain instances, the parties will AGREE on damages at trial, and argue only on liability.  This is exactly what happened in a case which went all the way to the Ontario Court of Appeal in Kamin v. Kawartha Dairy Ltd. 2006 CanLII 3259 (ON CA).

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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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The Liberal Government of Ontario plans to introduce new tougher penalties to crack down on careless and distracted driving, this fall.

The Honourable Minister of Transportation Steven Del Duca, along with some other MPPs, announced the new measures today in Toronto.

The legislation, if passed, is supposed to protect pedestrians and cyclists and reduce the number of fatality claims involving people killed or injured by drunk, distracted, impaired and/or dangerous drivers.

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I was just visiting my local bank. All across the banker’s desk were glossy flyers advertising critical illness and mortgage insurance. Behind the banker’s desk, there was a lovely poster which again, promoted critical illness and mortgage insurance.

The promotional material paints a very nice picture of what critical illness and mortgage insurance can do for you; should things go terribly wrong.

 

The narrative went something like this:

“I was diagnosed with terrible cancer…Thank goodness I had critical illness insurance with (Insert Name of Bank/Insurer here). Thanks to (Insert Name of Bank/Insurer here) I was able pay off my debts and live with dignity”.

The photo featured a happy and smiling family. Other photos showed a person who appeared to have a very serious and worried look on their face. Either way, these advertisements really drew on the heart strings.

In theory, critical illness and mortgage insurance policies are fantastic. In theory that is. When you get diagnosed with a “critical illness“, or with a “disability“, then your insurer will automatically pay out a lump sum cash benefit. No questions asked. This sounds great; doesn’t it!?

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2014 is coming to a close and what a year it’s been.

Tonight, millions of people around Ontario are getting ready to bring in the new year in style. That means parties, gatherings, food and alcohol.

Many host parties at their homes and have questions regarding the safe service and consumption of alcohol.

Here are a few quick tips for hosting a safe new years party:

1. Make sure there are non-alcohol drinking options at your party/gathering. This means water, pop, juice, non-alcohol sparkling wine/punch. Get creative and have fun with it.

2. Have the number of a taxi company or car service on site. Some taxi companies have great fridge magnets which have their contact information which are always in good taste for displaying the night of your party.

3. Have one, or more designated drivers assigned for your party
4. Offer guests to stay the night in a guest room, or even on the couch if they’ve had too much to drink and can’t get home safely
5. Know where the nearest hotel is for your guests and let them know about it if they’ve had too much to drink
6. Friends don’t let friends drink and drive. Taking away your friend’s car keys might save their lives, or somebody else’s

When I think of New Years, I think of a very tragic case which happened in Ontario on New Years and went all the way up to the Ontario Court of Appeal, and then to the Supreme Court of Canada. The case is called Childs v. Desmoreaux and can be read here.

There is a theory at law called “social host liability”. This is when the injured accident victim seeks compensation from the injuries not just from the at fault drunk driver, but ALSO from the host of the party for over serving or not being responsible in the safe service of their alcohol at the party which the at fault driver attended before the drunk driving collision.
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We have laws for about everything in Ontario. Don’t believe me?

Personal Injury lawyers need to deal with laws for car insurance (The Insurance Act). There’s an act for motor vehicle accidents and traffic safety (The Highway Traffic Act). There’s an act for slip and falls on private property (The Occupier’s Liability Act). There’s an act for slip and falls on public property (The Municipal Act). There’s an act for simple negligence in Ontario (Negligence Act). There’s even Art Gallery of Ontario Act! Seriously! Don’t think we covered that one in law school, but if I worked at the AGO in any way, shape or form, I’d take a read at the act. Here’s the link.

With these all encompassing, acts, it would seem normal that there be an act devoted stricty to dog owners, dog owner liability and dog bites. And here you have it, the Dog Owners Liability Act or “DOLA” as it’s known by lawyers across Ontario.
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