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Cold weather!




Winter means that you are either really excited because you happen to be a winter sports enthusiast (most people who love the winter also ski, snowshoe, play hockey and can’t get enough of the cold weather) or you are dreading what’s yet to come.

Whether or not you like, or dislike the winter weather doesn’t matter. But what does matter is that you stay safe for when the sidewalks, walk ways, stairs and entrances get wet, slushy, icy and slippery.

Around this time of year, our lawyers see an increase in client calls relating to slip and fall cases dealing with icy or slippery surfaces.

There is a very good reason for this aside from the obvious that it’s cold, snowy and can be icy outside. The reality is that the first winter storm or frost can catch us off guard. We aren’t quite ready for it. All of our “snow stuff“, such as winter boots, winter coats, hats and gloves were all packed away at the end of last winter, and have yet to be unpacked for the upcoming cold weather season.

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We get a lot of questions and queries to the Toronto Injury Lawyer Blog. Some serious. Some not so serious. In today’s edition of the Toronto Injury Lawyer Blog; Brian Goldfinger himself will answer those questions. Some serious answers. Others not so serious. So sit back, grab a nice hot cup of green tea and enjoy!

Question: Do snow tires actually work?

Answer: Yes they do! Not only that, but your car insurer will offer you a reduced premium if you can show proof that you have installed snow tires on to your vehicle. Keep in mind that personal injury lawyers love to hammer Defendants if they were involved in a winter weather collision and they didn’t have snow tires on their vehicle. They argue that the accident may have been prevented, or may have not been as serious had the vehicle been equipped with snow tires. A driver without snow tires will be frowned upon in the context of a personal injury case. So get them. And yes, they work!

Question: What’s the longest personal injury case you’ve ever been a part of; and why did it take so long?

Answer: 10 years and 2 months! The case took so long because the Plaintiff was a minor when the case began; and it took a while for the Plaintiff’s injuries to crystallize and plateau. It’s very difficult for a personal injury lawyer to recommend a settlement in year 3 of the case; if there’s a lot of uncertainty with respect to the Plaintiff’s health. Add the complication that the Plaintiff was young and growing and you have the recipe for a long drawn out case. This does not even take into consideration the complicating circumstances dealing with liability, causation or contributory negligence.

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Sometimes, during the course of a personal injury case, your lawyer will need to attend Court. But it’s neither for your trial, nor for pre-trial. It’s not even to set a date for trial, or to advise the Judge about the status of the case or readiness for trial.

The purpose of going to Court is because your personal injury lawyer will need something that only a Judge’s order can secure. Or, perhaps the Plaintiff lawyer and the Defendant lawyer cannot agree on how the case should move forward causing the case to be at a standstill. Whatever the reason for attending at Court, these interlocutory steps are just that. They are not the trial. They are intermediate steps which are common in personal injury cases. These interlocutory steps are called “motions”. You may hear a lawyer say that they “need to bring a motion“. This is exactly what they are referring to.

Civil motions Court across Ontario are backlogged. It’s nobody’s fault. This is just the reality of dealing with a chronically underfunded and over subscribed system. We have no statistics to support this statement, but we would guesstimate that the majority of civil motions relate to personal injury cases. The most common motions we see are motions for/relating to:

  • Motion for substituted service of Pleadings on a Defendant
  • Motion to Extend the time for service of the Statement of Claim (related to the motion for substituted service)
  • Motion to Amend the Pleadings
  • 30.10 Motion to compel a party to produce records (which they haven’t produced despite repeated requests)
  • Undertakings/Refusals Motion
  • Motion to Add/substitute a Party to the Statement of Claim, or to add a Statutory Defendant

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Sometimes lawyers are upfront and direct.

Other times, they can be sneaky. It’s those sneaky lawyers that you need to watch out for.

In all of my years of practice, I’ve seen some sneaky stuff. Lawyers and insurers trying to add terms to agreements which weren’t previously discussed, or negotiated. Lawyers and insurers seeking to get in through the back door, what they could not otherwise get in through the front door so to say.

Here are a few examples of those sneaky terms which you should watch out for in the context of your personal injury or long term disability case.

Resignation Clause

A Plaintiff is disabled and his/her claim for long term disability benefits gets denied. The Plaintiff then brings a claim for payment of his/her long term disability benefits. The litigation goes by over the years through the pleadings stage, discovery stage, and then to mediation. But over the years, the Plaintiff does not quit his/her job, get fired, or tender a formal resignation. The Plaintiff is still technically an employee of the company; albeit, and employee who is not working. It can certainly be argued that the employment is frustrated, but that’s an argument for the employer to make.

At mediation the insurer, as a term of settlement requires that the Plaintiff sign a formal resignation from his/her employment in order to get the long term disability settlement. The Plaintiff’s employment is not part of the litigation. If the long term disability case went to trial, the Judge would not be able to make any Order with respect to the employee resigning, or remaining an employee. The Plaintiff’s employment status is a completely separate matter.

Yet, the insurance defence lawyer is insisting that the Plaintiff in the long term disability action sign a formal resignation (without any consideration). The Plaintiff would be sacrificing any potential severance pay, access to other collateral benefits (medical, dental, life etc.) without receiving any consideration save for the long term disability benefits owed to him/her.

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As a personal injury lawyer, I would love to snap my “Goldfinger” and make all of my client’s dreams come true!

I would snap my “Goldfinger” and my client’s cases would settle for billions and trillions and gazillions of dollars!

I would snap my “Goldfinger” and my client’s cases would settle on demand; with no hassle or stress for my clients.

I would snap my “Goldfinger” and the Defendant insurer would pay for a ticker tape parade down Yonge Street in honour of the Plaintiff and the at fault driver would have to serve as the Plaintiff’s butler for a lifetime.

All of this would be very nice for my clients, but it’s fantasy. The actual practice of law doesn’t work at all this way.

Many clients want to see their cases open, and then close quickly for millions and millions of dollars. That’s the way which personal injury cases appear to work on the television and in movies; so why not in reality as well?

Because reality is completely different than the world we see on TV or on the big screen.

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Chronic pain, fibromyalgia and depression are invisible.

That means that they don’t show up on any x-ray, CT Scan, MRI or other diagnostic test. It also means that nobody would know that you are suffering from chronic pain, fibromyalgia or depression simply by just looking at you. It also means that if you tells someone that you are suffering from chronic pain, fibromyalgia or depression; they might not understand; or worse yet; might not even believe that you are suffering. The world is more empathetic and understanding of someone who has a visible injury (like a cast on account of a broken arm) as opposed to someone who is suffering from chronic pain, fibromyalgia or depression.

All of these factors make living with chronic pain, fibromyalgia or depression even harder than it already is.

Adding insult to injury is when your doctor, employer, family members or long term disability insurer doesn’t seem to acknowledge or believe that you are disabled.

It’s an uphill battle. But don’t give up. Goldfinger Injury Lawyers is here to help as best we can.

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Our law firm gets a lot of calls from injured workers.

They have very serious injuries and wish to sue their employer. They allege that their employer was negligent; allowed for unsafe work conditions to exist which they knew, or ought to have known of; or permitted the worker to use unsafe equipment which needed to be replaced or better maintained.

All of these scenarios, in a non-workplace environment; are grounds for a winning lawsuit by an injured party.

Unfortunately for injured workers; the workplace is NOT a normal environment when it comes to litigating personal injury matters.

Most workers have heard of the Workplace Insurance & Insurance Board (WSIB). 

When a worker is injured on the job, s/he has to file a claim through the WSIB to receive benefits. Even if the employer is not registered with the WSIB, the worker needs to file a claim. Some employers are exempt from the WSIB (banks and law firms), but most employers MUST pay premiums into the program.

For many injured workers, WSIB benefits aren’t enough. They want more. They want to be vindicated with a win in Court, or some form of monetary settlement for their injuries.

There is nothing wrong with having these feelings; particularly when the employer could have prevented the injury had they done a better job at protecting their workers and providing for a safe work environment.

Unfortunately the “suing route” via personal injury lawsuit is NOT in the cards for most injured workers.

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Earlier this week Chief Justice Morawetz gave his address at the traditional “Opening of the Courts” for Ontario.  Calling it the “Opening of the Courts” is likely very confusing for the general public.

To be clear, the Courts were not “closed” before that time. But every year around this time we have a ceremony to “open” them in pomp and circumstance. If you like legal tradition, then this is the place to be! If you weren’t there live (which you likely were not), you can catch the ceremony here as it was publicly posted on YouTube.

The Opening of the Courts presents an opportunity for the Chief Justice to make a state of the union type of address acknowledging how the Courts and the Administration of Justice is performing from an insider’s perspective. It presents the Chief Justice with an opportunity to announce plans or changes moving forward. When the Chief Justice speak, lawyer across Ontario listen very attentively. Here are a few interesting comments from the Chief Justice himself from the Opening of the Courts which caught my attention:

References to the Queen have now transitioned to the King. Our Registrars now refer to the King when opening and closing court.”

The current situation (in Ontario Civil Courts) cannot continue. If the timeline between the commencement of a civil matter and the trial is 4 to 5 years, the civil justice system is simply not responding to the litigants.

return to in-person hearings, especially for substantive and complex matters, is an integral part of the judicial system and essential to the administration of justice.”

Meaningful access to justice requires in-person hearings for many self-represented litigants. It is also essential to building the core ingredients of a strong and healthy bar — mentorship and collegiality

There is no going back: virtual hearings have become a permanent fixture for court proceedings

civil proceedings are an area that is ripe for major change…..(The Court) runs the risk of becoming irrelevant in civil proceedings if action is not taken.”

The Rules of Civil Procedure were meant to provide us with a roadmap to resolution; but instead, civil proceedings have become bogged down by process. They have become a maze that is difficult for many to navigate. They have become out of step with the purpose they were meant to serve

In commenting on this, the Chief Justice commented that there out to be a new and more simple path forward. There looks to be a complete re-writing of the Rules of Civil Procedure within 3 years.

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Insurance companies along with their third party contractor occupational therapists and rehabilitation companies seek to take advantage of innocent accident victims when they are at their most vulnerable. Immediately following a serious accident.

Innocent accident victims are shook following a serious car accident. Their world has been turned upside-down.

They have to manage a boat load of little emergencies because life as they know it has changed. They might be non-weight bearing in hospital in need of 24/7 attendant care, but life still goes on.

Who is going to look after the kids while you’re injured?

Who is going to walk the dog, get the groceries or take out the garbage?

How am I going to manage my work obligations?

How am I going to pay my bills?

Who is going to pay for all of the treatment and medication I need?

Who is going to help me fill out the pile of forms which the insurance companies are asking me for?

How do I apply for Government assistance?

The last thing you need is a stranger doing an assessment of you when you’re in such a vulnerable physical and emotional state.

Yet this is exactly what seems to happen time and time again.

Your car insurer will hear about your car accident one way or another. The more serious the accident, the greater the chance that your insurer will find out about the accident rather quickly, even if you have not reported it. Chances are the other party or parties who were involved in the car accident have. The insurer can track the party involved just by virtue of a quick license plate check; or by checking up the information contained in the Police Report or Occurrence Summary.

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Car accidents happen. They are unpredictable and don’t discriminate based on age, gender, religion and socio-economic status. They happen to poor people, rich people, middle class people, retired people, disabled people and gainfully employed people. There isn’t any method to the selection of an accident victim. It’s completely random. Serious car accidents happen to good people who are simply in the wrong place, at the wrong time. They fall victim to fate, time and circumstance. Some accidents are avoidable. While others are not.

This Toronto Injury Lawyer Blog Post will tell the tale of Brian Goldfinger and the Catastrophic Car Accident.

The term “catastrophic” is a very important legal term when it comes to car accident law in the Province of Ontario. In plain English,catastrophic” is a word used to describe sudden and very serious damage; as having a very significant impact.

But at law, the term “catastrophic” means something different altogether. Under the SABS and in the Insurance Act, the term “catastrophic” is used as a definer to establish an accident victim’s injuries are very serious. Being deemed “catastrophic” by your car insurer means that your injuries have met a medico-legal definition. Once that definition is met, the catastrophic car accident victim is entitled to a wider variety, and an greater amount of benefits then another accident victim whose injuries have not been deemed catastrophic. For example, a catastrophic accident victim is entitled to case management services. A non-catastrophic accident victim is not. A catastrophic accident victim is entitled to a combined attendant care and med/rehab limit of $1,000,000 for treatment and services deemed to be both reasonable and necessary. The limits for a non-catastrophic car accident victim are either $3,500 under the Minor Injury Guideline; or $65,000 under the regular guidelines.

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