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

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Personal Injury Trends: Pandemic Edition (Ontario)

Lock Down Life has been no fun for anyone. Regardless of your socio-economic background, political views, or religious beliefs, this Pandemic has been difficult for everyone for so many reasons. Unless that is if you’re a high profile cabinet minister taking some time off for a vacation to St. Bart’s. Sounds nice. If only we could all be Minister of Finance and depart for St. Bart’s in the midst of a global pandemic where non-essential travel is barred.

Speaking of non-essential travel, our new favourite website during the Pandemic has been the Arrivals log on the Pearson International Airport website. 

Why, just today, international flights have come in from all over the world including Istanbul Turkey; London UK; Shanghai China via Seoul Korea; Toucumen Panama; Lisbon Portugal; too may American cities to mention, along with multiple other domestic arrivals. Not to mention the departures to such exotic locations as Mexico City, Mexico; Doha Qatar; Sao Paolo, Brazil; New Delhi India; Lima Peru and the list goes on. But you need not worry. We’ve all been promised that none of these people flying have COVID, and all travellers pinky promise to quarantine for 7-14 days depending on who you ask as it’s clear as mud. While all of these travel plans go on to this day, Ontarians are on a strict lock down such that they can only leave their homes for essential purposes, but you are kinda free to fly wherever you like. And if you’re a politician who makes up the rules for masses, then these restrictions are completely arbitrary and likely don’t apply to you. Go figure. The Government “For The People” continues to be the most ironic term ever. More like Government for Me (and by “Me” I’m referring to the political ruling class and their buddies; everyone else really doesn’t matter).

As a personal injury lawyer, we’ve seen a lot of changes to behaviour during the Pandemic. The purpose of this Toronto Injury Lawyer is to examine those Pandemic trends which have really made us shake our heads.

  1. The continuing insistence on in person examinations for discovery. Because nothing says Pandemic like 4+ people in a small, poorly ventilated room sitting across from one another at a board room table, speaking moistly for hours on end about their neck pain, back pain etc. I appreciate that some lawyers don’t have good internet service at their homes, or poor wifi, or children who will surely interrupt an in home zoom session; but in person discoveries are the complete opposite of lawyers evolving to be part of the solution. If defence counsel feel a need to intimidate a Plaintiff in person rather than over Zoom, then perhaps defence counsel ought to reassess their tactics and the way they defend their respective claims. There are better, safer and more cost effective ways of getting things done. Lawyers should focus on those solutions and pivoting in those directions rather than relying on old, draconian methods which put all of the participants at risk during the global pandemic. Zoom will also save insurance clients money. They won’t have to pay for counsel’s travel time, mileage, or parking costs. Lawyers can also get to preparing their discovery reports that much faster and then bill on another file that much faster. Efficiencies abound.linkedin-2-300x300
  2. In person defence medical and insurance examinations. Even worse: in person defence medical examinations or IEs where transportation is required. Even worse still: in person defence medical exemptions or IEs where transportation is required and very lengthy (like over an hour in cab). Because nothing says Pandemic quite like sitting in a taxi for over an hour with a taxi driver who has likely driven dozens of other strange people over the past few weeks; followed by sitting with a strange doctor you’ve never met before in his/her small office for hours talking about your back pain, neck pain and shoulder pain. Let’s be honest. Any lawyer can write the report before it’s prepared. The Defence Medical Report/IE will invariably state that the injured accident victim is doing fine and that they are either malingering their injuries; there is no causal connection between the car accident and their subjective pain complaints; and that if the pain complaints are legitimate, they ought to have healed by now in what can only be explained as an Oscar worthy faking performance by the Plaintiff. It’s not even a real medical appointment. The defence medical doctor isn’t billing OHIP for their assessment. The Defence Medical Doctor is not ordering any tests at the assessment, nor are they prescribing any medication or making any medical recommendations to get the injured accident victim better. If only the Ford Government knew these faux examinations aren’t at all heathcare related. They’re all about money. Essential Service? If you call a defence medical doctor billing $5,000+ a pop to deliver a  medico-legal opinion to a billion dollar insurer an essential service; then sure! And if we’ve learned one thing during the Pandemic is that both COVID and Money don’t rest. They roll on regardless the toll. Solution? Conducting these examinations virtually. If OHIP Doctors can do it, I’m sure the Defence Medical doctors can do it as well.
  3. Jury Trials start, then stop, then start, then stop again. If you could be a juror, what type of case would you want to sit in on? A murder trial? A rape case? A drug trafficking case? A human trafficking case? An organized crime case? A fraud case? How about a lengthy personal injury case involving a rear end collision, chronic pain and an income loss? The personal injury case is likely at the bottom of your list unless you’re a glutton for punishment. Legal cases aren’t sexy or exciting like the ones we see in the movies or on television. They are in fact rather slow and mundane. Very rarely is there a smoking gun or an “aha” moment where the case is won or lost. Insurers know this which is why they issue jury notices as a reflex in every single personal injury case which comes their way. The Pandemic has resulted on hundreds of car accident and other personal injury cases getting delayed. There is a better way: a Judge only virtual trial. But insurers won’t agree to them knowing that justice delayed is justice denied. This is yet another example of lawyers being part of the problem instead of being part of the solution. If lawyers have do in fact have a “higher calling” to make the justice system and society work better, it’s time again to pivot from the old ways and embrace a new way of doing things. The reality is that our current system was never equipped to handle the increased case volume on the civil justice system and the complexities that go hand in hand with modern day personal injury cases. Things don’t move forward when there are too many cases and too few resources to hear those cases. Judge alone would save the litigants and the Courts time and money so that they can apply those resources elsewhere.


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