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Yesterday our law firm participated in a private global mediation in Hamilton. As an aside, if it weren’t for lawyers, this downtown Hamilton office tower would not exist. It seemed like every floor housed a law firm. One of the few floors which didn’t house a law firm was a Reporter’s Office for Examinations for Discovery, Mediations, etc (where lawyers go).

A drunk driver hit my clients.

Liability was not contested. It was abundantly clear to all of the parties that my clients didn’t get in their car that day intending to get hit by a drunk driver.

Their vehicle was a write off following the collision. It was a bad collision.

The at fault driver plead guilty to drunk driving and his license was suspended for 13 months. No doubt, his insurance premiums went up. But, as of today’s date, he is back on the road and driving with the rest of us.

My husband/wife client were shaken up after the collision. The husband sustained the worst of the injuries. The wife was able to tough through the pain, and get back to a semblance of brining normalcy back to her life. But the reality for both is that their lives will never be the same following this drunk driving collision.

It only seems fair that they be compensated for their injuries, pain and suffering. So you would think…

The law in Ontario is, for lack of a better term, TERRIBLE for innocent accident victims. I have no other way of describing it.

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You know what’s confusing?

Car accident claims.

Even for personal injury lawyers who concentrate their practices exclusively on car accident claims; these claims can be confusing!

A recent report commissioned by the Government of Ontario (The Marshall Report: Fair Benefits, Fairly Delivered) affirms this opinion. Car accident claims; specifically accident benefit claims along with the legislation surrounding those claims is overly complicated and needs to be simplified.

As an aside, if you would like to read about Goldfinger Injury Lawyers’s commentary on the Marshall Report, you can certainly do so here by reading our previous week’s installment of the Toronto Injury Lawyer Blog. Our law firm was commenting on the Marshall Report as early as April 12, 2017. It seems that major news outlets only caught on to this story around April 19, 2017; which is about a week after we wrote about the story. Lesson: For up to date personal injury news, information and commentary look no further than the Toronto Injury Lawyer Blog.

Our comments on The Marshall Report are worth a read. We believe many industry outsiders are off base and out of touch with the reality of modern day car accident litigation in Ontario. And this is where we come in. To better help educate the Average Ontario Driver who is understandably flummoxed by how car accident cases work.

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Who is David Marshall,  and why has he been commissioned by the Province of Ontario to write a report on car insurance and car accident litigation in Ontario?

Good question.

If you haven’t heard of David Marshall, here is an interesting article about him from January 31, 2015 in which is he is described as “the Man Ontario Workers love to hate“. He was the president and CEO of the Workers Safety & Insurance Board (WSIB).

The WSIB is the subject of a multi million dollar class action law suit alleging that workers compensation and benefits were unfairly slashed.

The WSIB has been criticized by treating doctors of injured workers for ignoring their medical opinions.

Under Marshall’s watch, the unfunded liability pool of the WSIB has been shrunk from a high of $14.2 billion to just over $9 billion in five years, the number of workers not back to work after a year has dropped by more than half and lost time claims have dropped by 17 per cent — from 50,667 in 2009 to 41,987 in 2013. All the while employers are paying the highest premiums in Canada.

Ontario Federation of Labour president Sid Ryan calls Marshall “the equivalent of the modern day bounty hunter.”

“His job is to disqualify injured workers from receiving their rightful benefits . . . The $400,000 is his bounty for his work over the last year,” Ryan said.

Catherine Fenech, of the Ontario Network of Injured Workers’ Groups, said since Marshall arrived, “we’ve seen a steady decline in the number of claims being accepted . . . and an increase in workers being told the board thinks they can go back to work no matter how badly injured they are.” Continue reading →

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If you’ve been seriously hurt or injured in an accident; or you’ve been denied long term disability benefits by your insurer, you will likely need to retain a lawyer.

But, not just any lawyer. You will need a personal injury lawyer. Here are some quick tips on what to look for when selecting a personal injury lawyer:

  1. Make sure that they practice personal injury law exclusively! Don’t get a lawyer who dabbles in the odd personal injury or LTD matter. If you needed brain surgery, would you get a surgeon who does the occasional brain surgery, or would you want a brain surgeon who concentrates exclusively on brain surgery? The answer is obvious. Getting a so called “dabbler” is a recipe for disaster. Your case is too important to be messing around with.
  2. Does your personal injury lawyer actually do the work, or is your file being referred out of house? Do you want your lawyer referring your file elsewhere, or do you want your personal injury lawyer to be doing the work? If your file is being referred elsewhere, are you being charged a referral fee upon recovery which comes out of your award? If so, how much is that referral fee? If I were an injured accident victim, I would ensure that the lawyer who I retained was in fact doing the work which s/he was retained to do and not a law firm who I’ve never met with or heard of.
  3. Make sure you’re meeting with a lawyer, and not a “runner”: We have heard horror stories of accident victims in hospital who have been approached by people who represent themselves to be lawyers, when they aren’t. These people try to get unsuspecting accident victims and their families to sign paper work so that they can bill the insurer for services, or so that they can take their cases to law firms or paralegals to being working on their files. Our law firm has reported such incidents to the Financial Services Commission Fraud Hotline . Sadly, not much has come of our tips to the fraud hotline other than a few investigations which didn’t go anywhere for reasons unbeknownst to us. In any event, be weary of non lawyers posing as lawyer trying to get you to sign on the dotted line.

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It has been a busy week at Goldfinger Injury Lawyers, and we have some exciting news to share with the readership of the Toronto Injury Lawyer Blog.

We’re excited to announce the hiring of a new lawyer, Afsoun Amirsolaimani. Afsoun comes to us having graduated from the Faculty of Law at the University of Ottawa, and articled at a boutique personal injury law firm in Hamilton. She gained valuable experience in car accident, slip and fall, accident benefits, dog bite and long term disability claims. Outside of work, Afsoun is a fantastic amateur photographer. We are confident that Afsoun will bring her enthusiasm, dedication and passion for justice to our law firm in order to better serve our clients across Ontario. 

Another important announcement is that our Toronto Office has expanded! Yet again! This is our 4th office expansion in Toronto over the past 9 years. Please don’t get the impression that our law firm are bad tenants. It’s just that our law firm has been growing year after year, and we need to increase our space in order to accommodate our needs. We have been able to grow by serving our clients as best we can. Growing one satisfied client at a time. We aren’t going anywhere far. Same building at Yonge/Sheppard. Same floor. Just larger space. We’re still accessible off of Highway 401 at Yonge Street and also accessible via two subway lines. We’re also steps away from OHIP, ODSP, FSCO along with two Court Reporter’s Offices which is very convenient for our lawyers and clients alike. Our law firm is handicap accessible. What’s not to like about Yonge and Sheppard?

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The most serious types of motor vehicle accidents in Ontario are referred to as “catastrophic“, or “CAT” cases.

Just because the accident is bad, doesn’t necessarily make that the accident is “catastrophic“.

Just because the injuries are serious, also doesn’t make the accident “catastrophic“.

The term “catastrophic” carries a very specific medico-legal definition. It’s a term of art. This definition has been tinkered with throughout the years, over and over again. That’s how important it is for any car accident case.

Currently, in Ontario, in order for your car accident case to be defined as “catastrophic“, your doctor or specialist must find on an OCF-19 Application for Determination of Catastrophic Benefits Form which certifies that your injuries meet one of the following criteria:

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Bad accidents happen all the time. Long Term Disability denials too.

It’s a common misconception that one’s case begins the moment that the claimant retains a personal injury lawyer. This is completely wrong. One’s case begins long before that. And, it’s important for a potential claimant to know that their actions will be scrutinized long before a Statement of Claim or Demand Letter has been prepared by your personal injury lawyer.

A Plaintiff’s job is to make a claim, and push that claim to trial. A Plaintiff is required to steer the litigation, and push the pace of the case. Like driving a car. If your lawyer doesn’t drive the car in the right direction, then nobody will.

A Defendant on the other hand can do the exact opposite and delay the action. Justice delayed is justice denied. A Defendant can conversely push an aggressive defence and proactively attempt to have the claim roadblocked before it ever sees a trial by way of motioning the claim to death.

A Plaintiff is required to do all of the asking,  pushing, document gathering and demanding. Think of the personal injury lawyer as the builder of a castle. They need all of the resources and materials to build a stable structure. Think of a defence lawyer as the party which seeks to tear the castle down, brick by brick. Which brings me to my next point.

Frequently, our lawyers get calls from injured accident victims and LTD Claimants who, even though they don’t have a lawyer, haven’t yet taken the very most basic steps to advance a claim which don’t require legal advice or counsel.

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Recently, the Ontario Divisional Court released their decision in Gilbert’s LLP v. David Dixon Inc., 2017 ONSC 1345. The Honourable Justice Nordheimer, speaking for the Court had some pointed commentary with respect to the Solicitors Act and its application in 2017. The Solicitors Act goes back to 1909 England. The language contained therein is antiquated, and hard to understand; even for the most astute personal injury lawyer or Judge.

The Solicitor’s Act governs how lawyers bill and collect legal fees. This decision is important as the story of lawyers’ fees, particularly in the context of personal injury claims, has been all over the news lately.

Here’s what the Honourable Justice Nordheimer had to say about the Solicitors Act:

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Today, the Federal Government called for tougher penalties, along with increased national uniformity when it comes to distracted driving. This call to arms was long overdue. Our personal injury lawyers can tell you that distracted driving has been a problem since at least 2004, if not earlier. Think of all of the car accidents that have happened since 2004 across Canada….Disturbing if you look at the stats. I suspect that a lot of those accidents were non-reported distracted driving accidents. Law enforcement just takes time to catch on to the trends. Distracted driving in many ways, is also more difficult to prove than drunk driving. More on that later.

Distracted driving is NOT drunk driving. Drunk driving is covered under the Criminal Code of Canada. It’s a uniform definition across the country.

Distracted driving on the other hand is defined and covered under provincial legislation. That means what’s described as distracted driving in one province, can be different in another province.

In Ontario, holding your mobile device, even if you’re not looking at it, while operating your vehicle can be interpreted as distracted driving:

In Ontario, it’s against the law to:

  • operate hand-held communication and electronic entertainment devices while you’re driving
  • view display screens unrelated to your driving

Examples of hand-held devices include:

  • iPods and MP3 players
  • GPS
  • cell phones
  • smart phones
  • laptops
  • DVD players

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If you have applied for Long Term Disability Benefits with a private LTD insurer such as SunLife, Manulife, Great West Life, Industrial Alliance, SSQ, Co-Operators, Empire Life, RBC Insurance, La Capitale Insurance, BMO Insurance; and had your claim denied, then this is the article you need to read.

It’s important to know that in order to recover a Long Term Disability Benefit from one of these insurers, you first need to APPLY for it. Just sitting around and waiting for a cheque to roll in is a pipe dream. Insurers won’t pay a benefit, unless you’ve taken the time to complete the paper work (properly), and then submit it.

If don’t apply for the LTD benefit, I can assure you that you won’t get approved.

If you wait too long to apply for the LTD benefit, I can assure you that your claim will get denied for delay. Many LTD policies contain clauses that the LTD benefit must be applied for within a certain  period of time. Failure to make a timely application is grounds for an LTD insurer to deny your claim. If you take the time to read the fine print of your Long Term Disability Policy, you will see plenty of clauses which are drafted in favour of the large, deep pocketed insurer, instead of in the favour of the individual policy holder (a person like you and me).

None of this seems fair; but it isn’t intended to be fair. Keep in mind; an insurance policy is a product designed by an insurer to make money. If these policies weren’t profitable, I can assure you that insurers would not put them out there for the public to buy. Continue reading →

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