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

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Long Term Disability cases are unique in the world of personal injury law. For starters, they are contract cases (the policy of insurance). Every other case in the world of personal injury law is built on tort law. A dog bite, a slip and fall, a car accident case, an assault case, a product liability case. None of these cases are built on contracts. They are built on tort law. Yet, long term disability cases are predicated on the existence of a policy of insurance, and the wording contained therein.

The wording of those long term disability contracts isn’t written by your personal injury lawyer. Nor is it written by the claimant.

Rather, the wording contained in those long term disability policies is prepared by the long term disability companies themselves.

You would be naive to think that they are worded in such a way as to favour the long term disability claimant, as oppose to the long term disability insurer. Quite the contrary. Every word contained in those policies is there for a reason. The words are there to limit the insurer’s exposure and to maximize their recovery. The policies are drafted in such a way as to offer the least amount of money by way of benefits; while recovering the most amount in premiums.

That makes business sense. If you were running a long term disability insurance company, you would want to maximize your returns as well. A mantra of take in more than what you payout in claims leads to profits, which sits at the core to the existence of any for profit business. Insurance companies are in the business of making money. They are not charities.

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Records are the building materials to any personal injury case. Lucky for you, it’s not your responsibility to gather all of those records. Your personal injury lawyer will get all, or the vast majority of those records own your behalf.

A witness can say one thing at discovery, or up on the stand at trial. What they say can be relevant. But, it’s often self serving evidence. Rarely will you see a Defendant admit that s/he was in the wrong and that the Plaintiff ought to be entitled to all of the damages which they are seeking. The same logic applies to a Plaintiff. They won’t get up on the stand and suggest that the accident was their fault, and that they aren’t in pain; or aren’t deserving of a damages award. People with vested interests in the case are going to tender evidence which best serves their cause.

This is what makes the records so important.

Records: whether they are hospital records, doctor records, tax returns, employment files, police reports have no vested interest in who wins, or who losses the case. The records are objective.

That’s not to say that the records can’t be wrong. That’s also not to say that the author of those records may have made an error in preparing those records. Or, perhaps the author of those records was lazy and was doing the very least in order to complete the task as they are required by their governing body. It could also be that the author of those records carried bias (or was mean) and that bias and those negative feelings carried over into the records which they authored.

Regardless of what’s contained in those records, I can assure you that the personal injury lawyers and the Courts want to see those records. They are very important to your case, even if you don’t think that they are!

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I am a subscriber to a national newspaper. We get the print edition of the newspaper to our personal injury law firm. You read that right. We still get a print edition of the newspaper in the digital age. Our subscription comes with access to the online newspaper, so that that there are paywalls behind their articles. Regardless, we still get the print copy for the office.

An insert in todays newspaper was a popular legal magazine. It’s read by many lawyers across Canada and Ontario. It’s geared to the white collar Bay Street crowd. Those who are focused on business law. It’s not really geared at Main Street lawyers, those who practice directly on behalf of everyday people, such as personal injury lawyers, criminal law lawyer, or family law lawyers.

The headline of the magazine was eye catching; just as a headline ought to be; so kudos to the editors. It was their “Litigation Special” edition of the magazine, and the headline of the publication read “Crisis in The Courts: How Backlogs are Harming the Canadian Economy“.

As a litigation lawyer, I don’t disagree with this statement. But it struck me that the victim of this statement was the Canadian Economy and not the people of Canada; like the Canadian Economy has emotional feelings or something. Now, the Canadian Economy can mean a lot of things. But, when you ask someone about the Canadian Economy, you tend to think about big ticket, macro economic items such as Banking, Interest Rates, Personal and Corporate Taxes,  Housing prices, the Stock Market, Imports and Exports, Inflation, National Debt, National Deficit, the Consumer Price Index and large government subsidies for business or infrastructure projects.

The Canadian Economy is a very broad term, but rarely does one’s mind go to the smaller line items which Canadians see everyday. But these smaller items are what we see in the Courts every day; and more frequently than those bigger ticket items.

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Over the past decade, personal injury lawyers have seen an explosion of a new insurance product offered to their law firms and to their personal injury clients. It’s called Adverse Cost Insurance or After-The Event Insurance.

How does it work and what does it do?

Adverse Cost Insurance or After-The Event Insurance serves to protect a Plaintiff from an adverse cost award following an unsuccessful trial.  At trial, if a party loses, the Judge will generally order that the losing party pay the winning party’s legal fees. Those legal fees, especially after a trial can be very high. This insurance product is there to cover all, or part, of those legal fees which the losing party is ordered to pay by the Judge.

What are the benefits to this insurance?

In theory, the insurance will pay for part, or all of the legal costs if you’re unable to do so on your own.

Let’s imagine a scenario whereby a Plaintiff in a car accident case loses his/her case. After the lengthy trial, the Judge dismisses the Plaintiff’s case, and orders that the Plaintiff pay the Defendant’s legal costs in the amount of $500,000. This is entirely possible. In fact, it recently happened in the case of Belton v. Spencer. In that case, Belton sued Spencer for damages as against Spencer as a result of an accident that he sustained while walking Spencer’s horse .

Following a trial lasting over eight weeks, Belton’s action was dismissed as against Spencer. The Judge ordered that the Plaintiff Belton to pay $350,000 in legal fees plus HST, and $74,472.52 in disbursements, for a total of $469,972.52 to the Defendant Spencer. Ouch!

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The title to this Toronto Injury Lawyer Blog post may strike you as a bit odd; but it’s one of the top questions I’ve been receiving since the horrific terrorist attacks of October 7, 2023.

What makes Canada a great country is that we have all sorts of freedoms. But, these wonderful freedoms are not absolute.

In a multicultural society, and in a more homogeneous society, not everyone is going to agree on the same issues, statements or views. It’s a fact of life.

When people don’t agree, or hear things that they don’t like, they can get mad or upset. This may cause them to yell, or even to say grossly offensive, or racist statements. Things might get so heated that it results in damage to property, or physical violence.

So, when someone is shouting racist, homophobic, vile or antisemitic comments at you or at at group, does this make grounds for a viable civil lawsuit against that person, or group of people?

Great question!

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When a car accident happens, you would like to think that the insurance company insuring the at fault driver will pay out on a meritorious claim.

That makes sense.

But more often that not, insurance companies try to avoid (putting it kindly) their obligation to pay out on such claims. They will leave no stone unturned in an attempt to get out of paying. Smart tactic when it works. But breaches all conventional norms of decency when it fails. But a little egg on the face of an insurer isn’t a new thing.

One of the ways that they can avoid paying out on claims is by attempting to nullify the insurance for the Defendant at fault driver.

They can do so in a number of ways.

One of the ways is to declare that the at fault Defendant driver didn’t have any sort of insurance coverage in the first place.

This happens more often that you would think. During the Pandemic, many Ontario drivers stayed at home on account of COVID and the lockdowns. These motorists had cars, which weren’t being used at all. They were just sitting in the garage, all the while the motorist was paying insurance premiums. Many of these motorists temporarily cancelled their car insurance during the Pandemic to save a few dollars. This makes perfect sense.

But the problem became that many of these drivers who removed coverage, forgot to reactivate their coverage when the world opened up again. The result was that they thought that they were driving around with proper insurance coverage, but in reality; they were not.

In that example, the insurance coverage is well within their rights to deny coverage for a car accident which took place when there was a temporary hold, or removal, of the insurance coverage. You don’t get coverage for free.

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It’s a legal requirement to drive a motor vehicle with car insurance.

Section 2(1) of the Compulsory Automobile Insurance Act states:

Compulsory automobile insurance

(1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance

In plain language English, this means that if you are driving a motor vehicle without insurance, you are breaking the law.

The consequences for breaching the Compulsory Automobile Insurance Act can be significant. It’s not a criminal offense, but the fines and consequences for driving without car insurance can add up quickly.

Section 2(3) of the Compulsory Automobile Insurance Act sets out the penalties for driving without insurance. Those penalties are set out below. If you don’t want to read the “leagalese”, I’ll quickly summarize those penalties for you. A Justice of the Peace can fine you (not more than $50,000 after multiple offenses), can take away your driver’s license, can impound your car, and can charge you for the costs of impounding your car.

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They say that a lie has already spread around the world before the truth even has a chance to get up in the morning.

Words cannot ring more true after what we’ve seen circulating in the Middle East over the past 24 hours. Legacy media and many notable politicians have been quick to side with terrorists who celebrate death and teach hate because it makes for a great byline and makes them appear morally superior.

Yet, spreading outright lies is morally wrong. And when those lies entice others to act in violent ways, it gets violent and dangerous.

The right thing to do is make sure you’re getting the story right, before you proclaim what you believe to be the truth from a wide reaching and influential platform. But does anyone care about getting things right anymore?

It’s one thing to spew lies and hate into a vacuum; where those lies and hate are lost forever; never reaching an audience. But, it’s an entirely different thing when social media has afforded everyone with a cell phone a free and unvetted platform to reach the eyes and ears of nearly everyone in the world.

So, why aren’t we more committed to getting the story right?

Why is there a need to jump the gun before we get all of the facts straight?

Is there an award for being first to report on an entirely inaccurate story? I didn’t know that social media had turned into a race to post something; anything; even if it’s not accurate.

Since when did we devolve to this?

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Recently, my family and I took a family vacation to Europe. We visited Paris, Rotterdam, Amsterdam and Antwerp. We had a blast.

All of these cities are dramatically different than what we see in Ontario cities. As a personal injury lawyer, it got me thinking about those practical and legal differences for what happens when accidents happen in those European cities compared to what happens in Ontario. Here are a few of my observations from our trip.

Each of the four cities which we visited all had dedicated bike lanes, dedicated pedestrian sidewalks, and dedicated roads. Taking things even further, Rotterdam and Amsterdam also had a dedicated tram lane.

Cars, bikes, pedestrians and the tram were NOT expected to share their lane of traffic with each other. They all had their own lanes to operate, in unison. That’s not to say that traffic moved quickly. It was in essence an acknowledgement that having all of these means of transportation share the same roadway is quite difficult. So, instead, the city planners gave everyone their own dedicated lane (with dedicated road signals) to help things move along.

It was quite difficult at times for any one mean of travel (walk, drive, ride a bike or tram) to ride smoothly without getting in the way of another method of travel. Bikes had to look out for cars, pedestrians and the tram and vice versa. There was a lot going on and if you weren’t paying close attention, an accident was inevitable given the volume of different traffic.

The was a strong police presence on the roads of Paris. The officers were either on foot, on horseback, or riding motorcycles. There were certainly some police cars, but far more police were on foot, horseback or on motorcycles. What I found interesting about the police on the motorcycles is that they not only used their police sirens, but they also had whistles in their mouths and would whistle to get someone’s attention rather than put on their sirens. It was an effective technique. The police presence in Rotterdam, Amsterdam and Antwerp was far less than it was in Paris.

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When you think of a car accident case, the basic premise is that there was an accident; an at fault party; and the at fault party is responsible to pay for the injured party’s damages and losses.

Some cases certainly work that way. But the vast majority of cases do not.

There are a lot of moving parts behind the scenes which non-lawyers rarely see; but which lawyers see all too often.

These moving parts have to deal with insurance coverage. Insurance coverage will result in the defendant’s ability to pay for a Plaintiff’s damages and losses.

You see, it’s not enough for a Defendant to be found responsible for pay for the damages and losses in a personal injury lawsuit.

Just because a Defendant is deemed responsible, does not translate into a Defendant’s ability to pay for those losses. This is a very important distinction.

Take the example of a Defendant who has no assets to his/her name, and who is in tremendous debt. How would that individual Defendant have the ability to pay out of a Judgment awarded against him/her? It wouldn’t be possible unless that Defendant was put on some sort of payment plan which s/he would never be able to fulfill. In Canada, simply because you don’t pay a debt does not mean that you go to jail. Nor does it mean that you have to give up all of your worldly belongings.

And it’s for these very reasons that the topic of insurance coverage is so important in a personal injury case. Coverage will determine whether or not there are real assets there for a Plaintiff to recover upon. It will also determine who is responsible to pay for what. Continue reading →

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