Do I have a personal injury case? You be the Judge.
Once upon a time there was woman who was walking in a public park. It was winter and cold and icy. In the middle of the park stood a large snow covered hill. There was no visible path up the hill because it was covered in snow and ice. The hill had been used by children for tobogganing, but there was nobody tobogganing on that particular day.
There were signs along the hill from the City/Municipality stating “Hill and Paths not maintained in the Winter. Use at your own risk“.
The hill was both high, steep, snow covered and slippery. But it was also very tempting and mysterious for the woman in the park who was standing at the foot of the giant hill. What could be on top of the hill? What could be on the other side of the hill? Am I strong enough to climb the hill and make it all the way to the top? Do you think that I would set a record for being the first person to climb the hill in the winter? If I climbed the hill on my own, would I win a prize? Perhaps I would be on the news for climbing this glorious hill….
So many questions, so little time; and such a tempting hill.
The woman could not resist. Her curiosity got he best of her and she proceeded to climb the hill. Slowly but surely, she summited to the top of the hill. But when near the top of the hill she lost her footing and twisted her ankle. She was not able to walk properly for days and needed some physiotherapy.
Now the woman calls a personal injury lawyer and shared her story of the giant hill in the public park. She wanted to sue the hill and sue the City/Municipality for not making the hill safe for people to climb in the winter. She wants to sue the manufacturer of her boots for not making the sturdy enough for the climb atop the hill.
It begs the question: Do I have a personal injury case?
Next is the story of a man who lived in a condominium which he owned. The man was hungry. He put some random mystery meat on the burner and left it there to cook. He set it, and forgot about it. The man then got sleepy from looking up different recipes on how to cook random mystery meat on the burner. As you can imagine, the man fell asleep with the random mystery meat sizzling on the burner. He woke up from his slumber to the sound of crackling flames and to the scent of smoke. His condo was ablaze! He is able to put out the fire, but inhales a lot of smoke and has to attend at the hospital. He remains hungry because his mystery meat feast is ruined.
Now the sleepy hungry man calls a personal injury lawyer. He is angry, sleepy, hungry and upset. His condo is ruined due to smoke and fire damage. He is winded because he inhaled so much smoke and lucky to be alive. But the good news is that he had property insurance so the fire/smoke damage to his condo and chattels are all covered by insurance. But he wants to sue everyone in sight for the damage done. He wants to sue the appliance manufacturer for not working properly, the smoke alarm manufacturer for not working properly, the meat supplier for making mystery meat which required so much cooking and the condo corporation for making a unit which did not stand up properly to the heat, smoke and flames. He also wants to sue his neighbour who he alleges knew or ought to have known he was sleeping yet did nothing to wake him up to alert him of the fire.
Final fact pattern.
Man goes for a drive in 1992 and gets hit by a car. He hurts his neck, back and shoulders. He hires a lawyer in 1992 and settles both his tort claims and accident benefit claims for an undisclosed amount. The settlement took place in 1995. The man is not satisfied so in 2022 (30 years post accident) he reaches out to a personal injury lawyer. He wants to sue the at fault driver again. He wants to sue his accident benefit insurer again. He wants to sue his lawyer and the lawyer for the defendant driver. As an aside the man never worked and was on ODSP before his 1992 car accident, and remained on ODSP after the 1992 car accident. He has not earned any source of income for decades.
It begs the question: Do I have a personal injury case?
Canada is a free country. In Ontario, you can sue for anything you like. You can sue the government because the sky way blue on Monday morning, but grey in the afternoon. You can sue the weatherman for getting it wrong. You can sue your local politician for being too handsome. You are free to sue as you like.
But freedom to litigate does not equate to righteousness or success in Court.
Can you sue? Yes. Everyone is entitled to their day in Court and to having a Judge decide their case.
But will my case win? Or will my case make it to trial without being kicked out of the Court because it has no reasonable prospect of succeeding. This is a totally different question for a Judge to decide.
There is a cost to having your day in Court. If a personal injury lawyer does not like your case, or does not believe that it has a reasonable prospect of success; then the personal injury lawyer does not have to take the case on in the first place. Just because a Plaintiff wants to sue does not mean that a personal injury lawyer has to take on their case at no charge or on a contingency fee basis (meaning don’t pay unless the case succeeds). When a personal injury lawyer does not believe that the case will succeed, then that lawyer will likely not take on the case to begin with. It is up to the litigant Plaintiff to either find a lawyer who will take on the case, or advance the case on their own. Either way, the Plaintiff is entitled to advance their claim; whether it stands a chance of success or not. It is then up to a Judge to decide on the merits of the claim.