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Denials, Disability and Delay. Where to start your Long Term Disability Case

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”.

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

Likely on the backburner, waiting for your turn to have your day in Court which has likely been delayed significantly. How delayed has yet to be seen. But if getting a civil motion date in Toronto is any indicator as to how backlogged the Courts across the province are; that delay may take a number of years. Recently our office tried to secure a motion date in Toronto; and we were given a date 9 months away. 

This sort of news is very upsetting and frustrating to litigants across the province of Ontario. Particularly Plaintiffs. Justice delayed is justice denied. Conversely, many Defendant insurers are pleased. The longer the case drags along, the greater the chance of a traumatic life event happening such as:

  • A subsequent accident so that the insurer can attribute damages to the second accident and not the accident giving rise to the claim (passing the buck)
  • An improvement in health
  • A Plaintiff grows tired of litigation and gives up on his/her case
  • Witnesses forgetting important events relating to the case
  • More opportunities for surveillance
  • A change in circumstances to the Plaintiff
  • An untimely death to a litigant or to an important witness
  • Increased deductibles for motor vehicle accident cases which go up at the beginning of each calendar year thereby reducing the potential value of a Plaintiff’s case

All of these factors help a Defendant’s case succeed. The Defendant also gets to sit on their money. The cost of inflation is greater than the cost of interest. The value of $100,000; will be greater than the value of $100,000 years from now. And while money will inflate, chance are that jury awards won’t inflate at the same rate as the cost of inflation or the cost of living. All very frustrating for Plaintiffs, but re-assuring for Defendants.

A Plaintiff’s lawyer’s job is to push a case forward to trial to get results for their client(s). A Defence lawyer’s job is to do the exact opposite; or get the case settled so that their client can close their books and move on to the next file; depending on their client’s business approach and appetite for litigation.linkedin-2-300x300

It’s sometimes best for a prospective claimant not to know the truth about how our Court system works. Why? Because it’s frustrating for all of the parties involved. If you were to tell a Plaintiff that his/her case could take over 5 years (or more) from the date of their accident to see the inside of a Courtroom (with a prospect of appeal to make things even longer), how many Plaintiffs would even bother to start that journey? Not many. Living with litigation looming over your head is not an easy or a pleasant thing to do. Even if you get used to living with it; it’s still not pleasant no matter how much you try to tell yourself that it ain’t so bad.

These are personal feelings. For a corporation, it’s different. It’s a strategic business decision. Litigation is part of running a business and business disputes happen. The cost of legal fees is written off as a business expense. Decisions don’t impact a person’s daily life.

But for a personal injury claimant, litigating is different altogether. It’s a very personal decision. It’s a personal case because it’s all about you! The cost of litigation cannot be written off as a business expense because it’s a personal case. Feelings get hurt. Emotions ensue. It’s not fun. And going through the process for years isn’t a pleasant experience for anyone. For the lawyers, insurance adjusters, and claims reps; it’s their job and they don’t have to go to sleep with the looming worry about the case. But for the personal injury litigant; it’s their life which is being litigated. Every move they make is being called into question by the insurance lawyer and their team.

So knowing this; where does one begin? 

Well, at the start of course.

Don’t let these prospective delays cause you to panic. If you are disabled from working, the first thing you need to do is apply for long term disability insurance (if you have it available to you).

If you fail to apply for long term disability insurance, you won’t get approved and that’s a certainty. Benefits just don’t fall from the sky without an application being completed and submitted.

In the event that your long term disability application gets denied; don’t loose faith and certainly don’t give up. You have 2 years from the date of denial to sue, but we would not recommend sitting on it and doing nothing. The longer you wait, the closer you are getting to that limitation period expiring. Chance are if you sit on lawyering up too long, you will forget all about it and the worst will happen: your limitation period will expire and your case will have failed even before it had a chance to get off the ground. This is exactly what an insurance company wants to see happen. It’s an easy and straight forward defense for their lawyers: We denied the claim more than two years ago; the Plaintiff failed to commence his/her action within the requisite time period, so the case is statue barred. Barring some special circumstances, it’s very difficult for a Judge not to agree with that position.




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