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Sometimes, our personal injury lawyers think that car accident law has been purposely designed just to trip people up.

How else can you explain:

a) $36,920 deductible for a pain and suffering award in a car accident claim

b) $73,840 deductible for a pain and suffering award if involved in 2 car accidents

c) $110,760 deductible for a pain and suffering award if involved in 3 car accidents!

d) these deductibles increase year after year with inflation

e) serious and permanent threshold for pain and suffering claims which cannot be shared with the jury at trial

f) the deductibles cannot be shared with the jury at trial either

The purpose of car insurance and accident benefits is consumer protection legislation. This seems like a stretch goal (pardon the Kathleen Wynnism) considering the way the law actually works, and how the law has evolved such that the scales of justice are tipped so far in favour of insurers, it makes it almost miraculous if a Plaintiff succeeds at trial.

This theme of insurance law as consumer protection legislation was highlighted by the Supreme Court of Canada in the decision of Smith v. Co-operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30 (CanLII) If you haven’t read the case, it’s worth a read. An oldie, but a goody!

Here, the Supreme Court stated:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.  The Court of Appeal was unanimous on this point and the respondent does not contest it.  In Insurance Law in Canada(loose-leaf ed.), vol. 1, Professor Craig Brown observed, “In one way or another, much of insurance law has as an objective the protection of customers”….0001r_Goldfinger-200x300

The Supreme Court goes on to add:

In my opinion, the insurer is required under s. 71 to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person.  At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process.  Without this basic information, it cannot be said that a valid refusal has been given. 

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In Canada, we live in a free and democratic society. We are supposed to have access to the Courts when things go wrong in order to pursue justice and protect our rights and freedoms. When you’ve been wronged, and all else fails, you ought to be able to pursue your remedies before a Judge, in a Court of law.

This concept sounds great. But, the reality is, the idea of access to the Courts to protect our rights and freedoms simply does not exist (notwithstanding any delay in having your case heard, or lack of judicial resources; which is a topic for another day).

Want a few examples? Sure….

Innocent injured worker hurt badly on the job on account of the blatant negligence of their employer. Think you can sue? WRONG! Schedule 1 Employee vs. Schedule 1 employer can’t sue. That claim will likely be statute barred, and the injured worker will need to pursue matters through the WSIB. There are no large awards for pain and suffering (or large awards for that matter) at the WSIB. If you don’t like the result at the WSIB, you may apply for leave to appeal the result to the Court, but your case will NOT be heard by a jury of your peers, if it’s even heard at all.

Involved in a single car motor vehicle accident and your own car insurer is denying your accident benefit claims every step of the way? It would seem reasonable and only logical that the injured motorist can sue their own insurer for benefits denied. WRONG! Those sort of claims are now statute barred under the SABS and the Insurance Act. All disputes must go before the License Appeals Tribunal or LAT. The majority of those proceedings occur in writing, so the injured motorist doesn’t even get their “day in Court” so to say. If the injured motorist isn’t satisfied with the LAT’s decision, they can appeal to the Court, but again, their case won’t be heard by a jury of their peers.

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In the November 6, 2015 edition of the Law Times, personal injury lawyer Brian Goldfinger wrote an article entitled “Three Day Summary Judgment Mini Trial”You can find a link to Mr. Goldfinger’s article here as reproduced in the Toronto Injury Lawyer Blog.

Our lawyers were wondering when such a situation would occur? How does what seems to be a routine summary judgment motion where Affidavit evidence, and transcript evidence along with case law which is presented to a Judge, get converted to a mini trial or trial of an issue?

In what situation would this occur? How, why, when and by what mechanism does a Judge order a mini trial or trial of an issue in an Ontario personal injury law case?

Hot off the press, here might be your answer to those questions (and more):

CITATION: Minke v. Hartman, 2017 ONSC 3922

COURT FILE NO.: C-584-15

DATE: 2017/06/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

)

 
Steven Minke, Linda Minke, Cameron Minke and Brittany Minke

Plaintiffs

– and –

Stephen Hartman, Foot Works and Foot Works Inc.

Defendants

)

))

) )

) )

) )

)

)

Brian R. Goldfinger and Azka Ashan, for the Plaintiffs
Anna L. Marrison and John McIntyre, for the Defendants
  )  
  )  
  ) HEARD: April 12, 2017

THE HONOURABLE MR. JUSTICE G.E. TAYLOR

REASONS FOR JUDGMENT

Introduction

  • This is a motion for summary judgment by the defendants seeking to dismiss the action due to the expiration of the limitation period.
  • Stephen Hartman is a chiropodist registered to practice in the Province of Ontario. From March, 2006 until November, 2010, Hartman provided footcare treatment to Steven Minke through his chiropody clinic in relation to Minke’s diabetic condition. While being treated by Hartman, Minke developed Charcot foot.
  • On May 15, 2012, Minke underwent a below the knee amputation of his right leg as a result of the Charcot foot.
  • By way of a report dated January 5, 2015, Dr. Perry Mayer a physician who specializes in the treatment of feet of diabetics and in particular the treatment of Charcot foot opined:

Had the appropriate treatment been undertaken at the initial presentation of foot deformity, Mr. Minke would not have lost his limb.

and,

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When it comes to litigating Long Term Disability Claims, many disabled claimants don’t know where to start.

How do I sue?

Who do I sue?

Can I sue my own insurer?

If I sue, will I get fired?

How much can I sue for?

Will my case go to trial?

If my case settles, how does the settlement work?

How much do I have to pay a lawyer?

All of these are valid questions. The reality about our law firm is that around half of our clients have NEVER consulted with a lawyer, prior to meeting with one of our personal injury lawyers.

To take that statistic to the next level, did you know that over 95% of our clients have have NEVER consulted with a civil litigation lawyer before (a civil litigation lawyer is a lawyer who sues in Court; personal injury law falls under the realm of civil litigation).

The reality is that a great majority of people are not only new to the legal system, they are also new to the concept of having to sue for denied benefits. It’s understanding this reality which makes us perform betters as lawyers and advocates on behalf of our clients.

With that heartfelt preamble, we prepare the latest installment of the Toronto Injury Lawyer Blog in an effort to help others not so familiar with the law, better understand how the legal system works (when it comes to long term disability matters)

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Members of Goldfinger Injury Lawyers attended at a legal conference a few weeks ago. It had all sorts of lawyers, spanning a multitude of different practice areas. It was great chatting with different lawyers outside of the realm of personal injury law to hear about their success stories and struggles. Even though we may have practiced in completely different areas, we managed shared a lot of common ground aside from just being “lawyers“.

In one particular conversation, the lawyers at Goldfinger Injury Law were sharing our stories about the delay in having some of our accident cases heard in a timely matter. Even since the landmark Supreme Court of Canada decision in R. v. Jordan, we were still seeing significant delays on the Civil end of things.

The Criminal lawyers we were sharing that story with looked a bit perplexed. Those lawyers had seen a noticeable push by the Courts to have their cases expedited (even if it wasn’t in either party’s best interest).But when he heard that Court resources were being shifted to the criminal sphere at the expense of other areas (like car accident, disability and personal injury law), those lawyers seemed upset.

One lawyer in particular shared with me that he believed the legal system as we know it was rotting away, seemingly faster every day; and that only the lawyers on the front lines truly understood the decay. With the delays in Court, the lack of judicial resources, the depletion of the legal aid system; only the truly rich and wealthy will have the means to advance their claims, and endure the wait time (and associated legal bills) to have their day in Court.

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What is an Examination for Discovery?

Examinations for Discovery are normal. They occur in nearly every civil action (personal injury, or not), in Ontario.

This is an opportunity for your personal injury lawyer to ask the Defendant at fault driver, or insurance adjuster a series of questions which are answered under oath. Your lawyer will ask the at fault party some very simple questions, along with some more pointed questions in order to get more evidence about the case at hand.

The same way your personal injury lawyer gets to ask the at fault party questions; the lawyer for the insurer gets to ask the Plaintiff accident victim, or Plaintiff disability claimant questions of their own.

The insurance defence lawyer will also ask some very simple questions like:

What’s your name?

Whats’ your current address?

What’s your date of birth?

Are you married?

Do you have any dependents?

What is your highest level of education?

Where were you working before the accident?

The insurance defence lawyer will also have some very pointed, more specific questions for you about your case:

Do you recall telling Dr. Smith that your back hurt on such and such a date?

On a scale of 1-10, how would you rank the pain in your back?

Would you describe the pain in your neck as a sharp stinging pain, or a dull ache?

Would you describe the collision as a light, medium or heavy impact?

Do you recall hearing the sound of a honking horn, or tires screeching prior to the collision?

How many car lengths were between your vehicle, and the other vehicle the FIRST time you saw it? What about the SECOND time you saw it?

How much time elapsed between the time you saw the at fault vehicle and impact?

Do you recall what Dr. Smith said to you at your medical appointment on September 10,1982? (of course you don’t, this was all the way back in 1982!!!)

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The snow has melted. The sun is shinning (sometimes); and the weather is getting less miserable. It’s time to go outside and enjoy the fresh air.

For many, the turn of seasons from winter to spring, means riding your bike to work. In fact, from May 29-June 30, 2017, it’s Bike Month! The City of Toronto hosted a Ride your Bike to work day on May 29th to kick off Bike Month. Every Tuesday, Wednesday and Thursday during Bike Month, Cycle Toronto will be hosting commuter outreach stations along busy cycling routes all around the city. You can stop by to get a free Bike Month 2017 branded tote bag full of giveaways from one of their official partners.

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My law firm gets calls from people all across Ontario with respect to Long Term Disability claims. The questions cover a wide range of topics from:

  • Am I entitled to LTD benefits?
  • What can I do if the LTD insurer denies my claim?
  • How can I apply for LTD benefits?
  • Is it too late to sue?
  • Should I appeal the LTD insurer’s decision not to pay LTD benefits?
  • How many times should I appeal the insurer’s LTD denial?
  • How much is my LTD case worth?
  • How do LTD benefits work?
  • Where can I get my LTD application paper work and how do I fill it in?

One of the reasons people have so many questions when it comes to their LTD claim, is because few people have ever read their LTD policies; LTD claims are the exception for employees; not the norm; and people simply don’t understand how these benefits work.

In fact, we even have people calling our office for completely different reasons (car accident, slip and fall, motorcycle accident), only to find out months, or sometimes years later that they have long term disability coverage through their employer! Some people don’t even know they’re covered!!!

As an aside, this awareness of your rights dovetails in to personal injury lawyer advertising. Insurers don’t want to see lawyers advertise. To be fair, some well connected personal injury law firms don’t want to see other personal injury law firms advertise either (but that’s a different topic).One of the reasons which insurers don’t want to see personal injury lawyers advertise, is so that the general public is kept in the dark when it comes to understanding their rights. The later an injured accident victim, or LTD claimant understands their rights, the better for an insurer.

Case in point: The recent Ontario Court of Appeal decision in Usanovic v. Penncorp Life Assurance Company also known as La Capitale Financial Security Insurance Company 2017 ON CA 395 (CanLII). This Ontario Court of Appeal decision was released on May 18, 2017.

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If you’ve been involved in a car accident in Ontario, and you’ve been injured, you will need to report the collision/accident to a car insurer.

Despite what you may believe, large car insurance companies aren’t run by computers. They have real live people who work there! Many work very hard and diligently to respond to your claim in a professional, courteous and timely manner. Others…not so much. Some insurers and their employees are better than other. But that’s not the point of this Toronto Injury Lawyer Blog Post.

When you call an insurer, you will speak with a real person who will take down your information, and the basic details of your car accident claim. That intake operator will then assign your claim to a person called an “adjuster“.

An insurance adjuster is an employee or sometimes a third party contractor of a large car insurer who handles your case. They write to you, call you, send cheques, pay service providers, etc.

But different adjusters, handle different tasks and have different responsibilities. The purpose of this Toronto Injury Lawyer Blog post is to do our best to explain why there may appear to be so many adjusters assigned to your car accident case, and what each adjuster may (or may not), do.

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Did you know that May is Motorcycle Safety Month? Unless you’re a personal injury lawyer; the answer is likely “no”. Well…It is!

So, what does that mean for the average person? Probably not much…But, injury lawyers like me are trying to raise awarness of motorcycle safety and motorcycle injuries through social media posts such as this one.

The Ministry of Transportation keeps road safety and accident stats in something called “Ontario Road Safety Annual Reports“. The most updated ORSAR is a 2014 report which shows the following interesting stats for road safety:

Total Fatal and Personal Injury Collisions in 2014: 34,064

Total drivers involved in fatal and personal injury collisions: 64,202

Total vehicles involved in fatal and personal injury collisions: 64,736

Persons Killed in Motor Vehicle Collisions per 100,000 people: 3.52

11.6% of Motor Vehicle Fatality Claims were Motorcycle Fatalities 

Of the 64,736 vehicles involved in reported collisions in 2014, 1,206 were motorcycles or mopeds. Of those 1,206 vehicles, 54 of those claims resulted in fatalities.

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