How your personal injury case is impacted by COVID-19

This installment of the Toronto Injury Lawyer Blog is intended to focus specifically on the impact which COVID-19 will have on your personal injury case.

Right now we recognize that there are much more pressing life issues out there given increased health risks and lifestyle changes which COVID-19 has brought. These larger life, political, economic and health/safety issues are certainly larger than a personal injury case.

We are personal injury lawyers.

We do not profess to give an cogent or meaningful advice about health policy, social policy, geo-political policy etc.

If you want that sort of information or misinformation; there’s certainly no shortage of it out there.

We are going to stick to our lane and comment about what we know best; personal injury law.

Before we get in to it, we would like to let you in behind the curtain on what Goldfinger Injury Lawyers is doing to flatten the curve. All of our personal injury lawyers are working remotely from home. All in person meetings with clients, adjusters and other lawyers etc. have been cancelled. These meetings have either been rescheduled, or they will take place via teleconference or video conference.  Examinations for Discovery have been re-scheduled. We aren’t yet sure what’s happening with upcoming mediations. These tend to work best in person, but during these times we are taking it day by day and will have to consult with all parties in order to determine the best course of action. This may require re-scheduling the mediation, or the mediations taking place by teleconference or video conference. We remain responsive to voice messages and emails as always.

Many of our clients are concerned for a variety of reasons. But they are calling us for answers about their respective cases and how COVID-19 has and will impact their case.

Here’s how:

The Civil Courts are closed. This means that no motions, trials, pre-trials are being heard. Juries are being excused.

The return dates for these lost appearances are uncertain. They will likely vary from Court Region, to Court Region. The Notice to the Profession from the Central South Region states:

All civil matters set for trial, long or short motions, civil pretrials, and/or
trial scheduling court matters in March 2020 are automatically adjourned to June
2nd, 2020 at 10:00 a.m. to be spoken to.

All civil matters set for trial, long or short motions, civil pretrials, and/or
trial scheduling court matters in April 2020 are automatically adjourned to June 3rd,
2020 at 10:00 a.m. to be spoken to.

All civil matters set for trial, long or short motions, civil pretrials, and/or
trial scheduling court matters in May 2020 are automatically adjourned to June 4th,
2020 at 10:00 a.m. to be spoken to.

All judicial telephone conference calls currently scheduled between now and
June 1st, 2020 will go ahead as planned.

What this means is that if you had something scheduled during this block time, your personal injury lawyer will need to attend at a To Be Spoken To Court of June 3, 2020 to see about getting the matter re-scheduled. Whether or not the Courts will be re-opened on June 3, 2020 is another story which has yet to be written.

Below is a Notice to The Profession from the Honourable Justice Grace, head of the Southwest Region:

All participants in the legal profession should fully familiarize themselves with the Notice, other communications from the court, the procedural rules and applicable practice directions before seeking guidance.  The trial coordination unit simply does not and will not have the time to provide information that is readily available from those sources. 

There are questions concerning the resumption of the court’s operations.  We cannot be certain when that will occur.  Criminal matters in the SCJ are being adjourned to dates in early June 2020 as set forth in an omnibus order signed by Chief Justice Geoffrey Morawetz on March 15, 2020. Justice Grace proposes that civil matters currently scheduled in the S.C.J. be adjourned to dates in that month as well.  After consultation with the trial coordination unit in London, these are the proposed dates:

1. Civil Motions/Special Appointments

•  Those returnable in March will be adjourned until the June 5, 2020 motions court @ 930 a.m. TBST
• Those returnable in April will be adjourned until the June 12, 2020 motions court @ 930 a.m. TBST
• Those returnable in May will be adjourned until the June 19, 2020 motions@ 930 a.m. TBST

1. Civil Pre-Trials

•  Pre-trials scheduled during March, April and May 2020 that are not held will be adjourned until the June 19, 2020  civil assignment court @ 9 a.m. TBST.  I recognize we may have to vacate and re-set trial dates during that attendance too.

1. Civil Trials (jury and non-jury)

•  Those on the running lists for March and April and not reached will be adjourned to the June 19, 2020 civil assignment court @ 9 a.m. TBST.
• Those on the running lists for May will be adjourned to the July 17, 2020 civil assignment court @ 9 a.m. TBST 

1. Matters on the March, April and May Civil Assignment Court lists

•  Those on the March civil A/C list will be traversed to the June 19, 2020 civil assignment court list @ 9 a.m. TBST
• Those on the April civil A/C list will be traversed to the July 17, 2020 civil assignment court list @ 9 a.m. TBST
• Those on the May civil A/C list will be traversed to the same July 17, 2020 civil assignment court list @ 9 a.m. TBST. 

1. Divisional Court matters on the list in London for the week of March 30, 2020

•  Those matters will not proceed as currently scheduled.  Once further direction is received, we will send out an email. 

Lawyers and support staff across the province have been encouraged to work remotely. We are also seeing the same with insurance adjusters.

When it comes to commissioning affidavits, the Law Society of Ontario is allowing for virtual commissioning stating that as a result of COVID-19, until further notice:

• The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
• Rather, alternative means of commissioning such as  commissioning via video conference will be permitted.
• If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.

Treatment providers have cancelled or re-scheduled sessions. This is very significant for injured accident victims who need attendant care services, physio, massage, counselling etc. Health Care and Service Providers are reluctant to come see new clients because they don’t want to put their health, along with the health of their patients at risk. This is cause for concern. Some services providers are cancelling sessions to reschedule. Others are not. Where physical interaction isn’t required, we are seeing more treatment providers offering services over the phone or via video chat. This is similar to doctors offering more tele-health during these difficult times.

We have seen one large long term disability insurer take the pro-active step of voluntarily accepting service of Statements of Claim by way of email. This is a huge step. In order to appreciate that step, you need to understand that the Rules of Civil Procedure REQUIRE that an originating process like a Statement of Claim be served PERSONALLY. Where the claim cannot be served personally, you have to serve by way of alternative service which normally requires a Court Order. For a proposed Defendant to not only voluntarily accept service, but to voluntarily accept service by means other than by personal service is a big deal. Full marks to that long term disability insurer.

The filing of Statements of Claim in order to protect limitation periods is not impacted by COVID-19 given that filings can be made online. But, filing other materials cannot be done online which remains frustrating for lawyers across Ontario.

During times of crisis, areas of weakness are exposed. One of the largest areas of weakness for the Courts is their lack of adoption of technology. Lawyers cannot see what’s contained in a Court file, without attending the Court in person. Lawyers cannot file many documents instantaneously, without attending the Court in person. Lawyers often cannot have meaning exchanges with Court staff, without attending in person. It’s our hope that this experience will be a real eye opener for the Courts such that these weaknesses develop in to great strengths so that we can all better serve the public for years to come.