COVID-19 Update: How We Are Serving and Protecting Our Clients

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Everyone wants a deal. Bargain hunters looking for deep discounts should look no further than Ontario’s Car Accident System. That’s not to say that purchasing car insurance is cheap. It’s to suggest that car insurers get deep discounts when defending a car accident case. In fact for each case that’s started a car insurance company receives around a $40,000 discount; give or take.

Why would you think about car accidents as a commodity. It’s not like a car accident is a product to be sold and worn like a brand new jacket, a sweater or a pair of pants you’ve just purchased off the sale rack.

But perhaps we should look at car accident cases more as a commodity so that we can better understand how insurers save big bucks on each and every car accident case in Ontario.

The way the laws for car accident cases are set up in Ontario is unfair. Those laws provide more protections to the at fault driver, than they do the injured Plaintiff.

For starters, the injured Plaintiff’s injuries (regardless of fault), must meet a medico-legal test or threshold. If the test is not met, then the injured Plaintiff receives zero dollars for his/her pain and suffering.

If the injuries are not deemed by the Judge to present both a “serious and permanent impairment of an important bodily function“, then the Plaintiff won’t be entitled to general damages for their pain and suffering. That means that regardless of fault; meaning the at fault driver could have been drunk, smoking drugs and on his/her cell phone; if the injuries don’t meet that medico-legal test; then the Plaintiff’s claim for pain and suffering will fail.

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Some injuries are visible to the naked eye. Someone in a wheelchair with a broken limb. A bandage. A crutch. A walker. A cast or a cane. All of these things are plainly visible and send a strong message to the world that a person is hurt, injured and not at their best. These sort of visible injuries are easy to understand, plainly visible to people from all walks of life and from  diverse backgrounds. It doesn’t take a medical expert or a skilled personal injury lawyer to help a judge and jury understand that we have an injured party involved in the case at hand.

In contrast, the vast majority of injuries are invisible to the naked eye. You cannot see chronic pain. You cannot see fibromyalgia. You cannot see anxiety, depression, post traumatic stress disorder, suicidal ideation, or plain misery. Perhaps you can see an unhappy look on one’s face. But simply because someone appears to be unhappy does not necessarily mean that they are suffering from a serious personal injury or disability. Perhaps they are just having a bad day.

The purpose of this edition of the Toronto Injury Lawyer Blog is to focus on those invisible injuries which insurers love to deny, discount and minimize. In particular, we will focus on fibromyalgia and depression which often go hand in hand. And which are two injuries/disabilities which both auto insurers and long term disability insurers love to deny and discount.

If you are suffering from fibromyalgia or depression, don’t lose hope or give up! Stay strong. There is light at the end of the tunnel. Your injuries and disabilities are legitimate despite what the insurance company and their hired gun doctors might say. The insurance company wants you to become reclusive so that you don’t commence an action to get the compensation you deserve. If you do nothing, you will get nothing and the insurance company will win. But if you have the strength and courage to take the first step and to reach out to a personal injury lawyer; you are taking a step in the right direction. Don’t give up. Don’t lose hope.

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Cases are built upon evidence.

Lawyers will try to highlight certain pieces of evidence in order to better suit, or to create a narrative which suits their client’s best interests.

It’s up to a Judge or a Jury to sift through the evidence in order to determine where the truth.

While lawyers can spin evidence any way they want, there are sometimes objective facts which simply cannot be spun.

With today’s instalment of the Toronto Injury Lawyer Blog, we will try to highlight hurdles which our personal injury lawyers have seen in long term disability cases. Sometimes these hurdles can be cleared. Other times, these hurdles cannot be overcome and really hurt a long term disability case.

Long Term Disability Hurdle #1: The Plaintiff as returned to work. There is nothing wrong with returning to work, so long as you tell your lawyer and don’t hide it. In fact, the Plaintiff has a legal obligation to mitigate his/her damages, which means trying to return to work. We tell our clients that there’s nothing better for a case than a failed return to work attempt. It shows that the Plaintiff tried to mitigate his/her damages by attempting to return to work and that the return to work failed because their injury/disability is bonafide and very serious. If a Plaintiff does not attempt to return to work, the insurer will certainly question why not. If there are notes in the doctor’s records which suggest that a return to work is possible yet was not attempted; the insurer will insist that the Plaintiff has not even attempted to mitigate despite a doctor suggesting that a return to work is possible. Not trying to return to work can delegitimize a Plaintiff’s injury or disability (if a return to work is on the table). If a Plaintiff returns to work without telling their lawyer, or is working under the table for cash it looks like the Plaintiff is trying to pull a fast one on the insurer. This will be frowned upon. This is why it’s so important to have good communication with your personal injury lawyer and fill him/her in on the significant changes in your lifestyle or health. You both want to be on the same page. If your lawyer is advocating for your disability into the future, yet you returned to work months ago; it’s not a good look for your long term disability case.

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Halloween Trick Or Treating is fun, family friendly and exciting.

But when you take a step back and really examine what Halloween Trick or Treating really entails, it would make any parent cringe.

Knocking on the doors of strangers? Check.

Accepting candies from strangers? Check.

Running door to door at night in poorly visible costumes (while wearing masks with poor visibility)? Check.

All this while on a sugar high adrenaline rush fueled by chocolate and candy? Yup!

On any other night, you would strictly forbid your children from doing any of the above. But on Halloween, it’s all good.

Halloween should be fun, kinda spooky and totally safe. So let’s keep it that way.

The purpose of this year’s Halloween instalment of the Toronto Injury Lawyer Blog is to impart you the parents with some reminders and safety tips. Most of these tips you may already know; or may have forgotten. Nonetheless, it’s a good reminder or tool to keep your kids safe over Halloween.

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It’s really hard to say “no” to free money. This is particularly true when times are tough.

The COVID Pandemic has caused many industries to crumble; and in turn, many people to go months and months without pay.

Restaurants, tourism, retail, hospitality, events, personal care and personal service industries all come to mind. Many people have adapted and pivoted to earn a living. But many others have not and continue to experience hard times.

The Canada Emergency Response Benefit (CERB) was designed to provide financial support to employed and self-employed Canadians who were directly affected by COVID-19.

The means that you would have needed to be gainfully employed to qualify for the CERB.

For some accident victims and disability claimants, qualifying and claiming the CERB presents a contradiction.

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After a serious motor vehicle accident, you will need a lot of help.

You will need help from doctors, nurses, personal support workers. occupational therapists, massage therapists, chiropractors, surgeons, internists, nutritionists, speech language pathologists, social workers, psychologists, psychiatrists, lawyers, accountants, friends, family and more!

Some of these services are FREE because they’re covered by OHIP.

But most services are not free and need to be paid for by an insurance company, or out of your own pocket. The cold hard truth is that most rehab services which don’t fall under the heading “doctor” are NOT covered by OHIP and cost a lot of money. If the insurance company won’t pay, or if you don’t have the means to pay for these services on your own; chances are you won’t get these much needed rehabilitation services.

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During the Pandemic many lawyers and insurers have been very helpful, kind and considerate given the global health crisis we are all dealing with.

At the same time, some lawyers and insurers have been the exact opposite.

As lawyers we have an obligation (or a duty) to be part of the solution and not part of the problem.

This means pivoting and adapting to make things work.

Filing documents with the Court electronically? We’ve made that change.

Conducting examinations for discovery, mediations, pre-trials, case conferences and trials electronically? Evolved to do this as well.

Serving documents on other parties electronically? Check!

E-transferring settlement funds? Yup!

Commissioning Affidavits virtually? Yes!

All of these changes have taken place over the Pandemic to make the practice of law safer for lawyers, litigants, judges, clerks, witnesses and everyone in between so that the legal system can move forward even in the face of a global Pandemic which has cost so many lives.

Participating in the legal process should not be dangerous. You should not have to put your health at risk participating in a case. This is exactly why these changes have been brought about.

Yet some lawyers, and some insurers continue to resist these changes.

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September 30, 2021 marks Canada’s first ever National Day for Truth and Reconciliation. The day honours the lost children and Survivors of residential schools, their families and communities. Public commemoration of the tragic and painful history and ongoing impacts of residential schools is a vital component of the reconciliation process. Better late then never?

As a personal injury lawyer, the big theme in the title of National Day for Truth and Reconciliation is the word “Truth“.

We are told as children, adults and throughout law school the importance of telling the truth; along with the importance of seeking out the truth.

But the truth can mean different things to different people.

How so?

There are two types of truths.

There are objective truths. These are facts or findings which nobody can deny or contradict.

Mathematics such as arithmetic and trigonometry are objective truths.

The time of day is an objective truth.

The earth being round (though not to Kyrie Irving); the planets orbit the sun, the chemical formula of water being H2O. These scientific truths are objective.

If you seek to discredit these objective truths, you will either be wrong; or appear as delusional. Or perhaps you’re a savant who has stumbled onto a new way of thinking which breaks the barriers or speed, sound and time; in which case we have all got a lot more learning to do 🙂

I trust you understand where I’m going with objective truths.

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Today is Election Day in Canada. We elect a new, or a returning Prime Minister. This is exciting. Will there be a majority government, or will we see another minority government?

These are important questions! Some political basics:

A majority government can do whatever they like; whenever they like! There’s no need to ask the other party what they think or how they feel about an issue. The majority government sets the agenda about what to speak about; and when to speak about those issues. The majority government can prorogue parliament whenever they like at their convenience. Even if the laws they pass don’t seem fair to Canadians; those laws can get passed and then challenged in Court. Even if the Court rules that the laws are unconstitutional, the majority government can invoke the Notwithstanding Clause to get their way! Dare I say, it’s like a majority government has the powers of a dictator.

With a minority government there needs to be some cooperation because one party alone can’t get their way. It forces parties to work together to get things accomplished. This may sound great in theory, but in practice little gets accomplished because nobody is eager to concede or to back down and appear weak. Cooperation in everyday life is important. But politics isn’t everyday life. Letting another party get their glory or appear to have got the job done is a loss to the opposition parties; so there’s no political incentive to cooperate. What might be in the best interest of Canadians may not be in the best interest of a political party. Hence the dilemma. Are the politicians and political parties really there for the right reasons; or is all for the glitz, glamour, ego, power and prestige that comes with office. You be the judge. Dare I say its the later.

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Good timing can mean the difference between a winning personal injury case, and a losing personal injury case. In fact; timing can also spell the difference between being involved in a serious accident; and missing a serious accident.

Accident victims aren’t looking to get into accidents in the first place. They are simply in the wrong place, at the wrong time. But for some serendipitous timing and bad luck, they would not have been involved in an accident in the first place. Hence, they would not need the assistance of a personal injury lawyer. But accidents much like bad luck and bad timing happens. That’s life.

At law, there are limitation periods. This means that an injured accident victim cannot wait forever, or wait too long to retain a personal injury lawyer and start their claim. Waiting too long to get the legal process started has consequences.

Defendants will argue that waiting too long is unfair. Lawyers will call that unfairness prejudice. You will often hear from Defence lawyers that the delay is “prejudicial to their clients” because of reasons A, B and C. Sometimes this is true. Other times, it’s legal mumbo jumbo for they just want to get the case dismissed on account of delay.

Here’s a case where there can be prejudice to a Defendant for delay:

The Plaintiff waits so long to start their case that evidence is destroyed, witnesses can’t be tracked down or if they are, their memories of the events have faded, and investigations by a Defendant cannot be made until it’s fall too late. That’s certainly fair. Continue reading →

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