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The importance of suing the RIGHT party: How to achieve REAL Monetary Value for your damage award

You slip and fall. Better yet, another person hits you really hard and you sustain some serious injuries.

You retain a lawyer.

You sue.

You go to Court. You win a Court..Hooray! The judge awards you $150,000 for a combination of your pain and suffering, loss of income, and future care costs. Sounds like a pretty sweet award; doesn’t it.

Now, what’s next? Just because you get a judgment doesn’t mean that a great big cheque is magically going to appear out of nowhere.

In pretty much ALL cases involving uninsured parties, collecting on judgments or damage awards is a painstackingly difficult process.

One of the first things that you as a Plaintiff and your injury lawyer wants to see is that there is an insurance company responding or indemnifying your claim. While the insurance company will put up a vigourous defence to your claim, and might make your life difficult with surveillance and defence medical examinations; they invariably have the money to pay out a damage award. That means that if you enter a settlement with an insurer, or secure a judgment against them, you will get your money.

The me be clear that in Ontario, even when the at-fault driver does NOT have insurance, you can still claim against your own isurance company or from the Ontario Motor Vehicle Accident Claims Fund (“The Fund”). The Fund will only indemnify you up to $200,000 along with a portion of your legal costs. This is why it’s a good idea to have your own car insurance. This situation also does NOT apply if you’re suing an insurer for long term disability benefits, unless that insurance company has declared bankruptcy and is no longer operating. We doesn’t really happen in Ontario because all insurance companies are strictly regulated by the government through the Financial Services Commission of Ontario (“FSCO”).

The same can’t be said if you secure a judgment against an uninsured party. You can get a judgment for a million dollars against such a party and never be able to collect a dime on it. I’ve seen it happen to many people over the years. I’ve had such people call our office wanting to retain us for collection proceedings. Even after going through collection proceedings, you might find that these people are simply judgment proof. That means that you can’t get a cent out of them because they have no assets, or a bunch of creditors who have priority over your judgment.

If you’re suing a party without insurance, it’s a good idea for your lawyer to first do a lot of research on the Defendant. Do they own property? Do they have active bank accounts in Ontario? Are they gainfully employed? Do they have any outstanding judgments against them? Are they bankrupt?

Once your lawyer has done their research, they will be in a better position to assess your case along with it’s value and the likelihood of recovery.

Some of the enforcement and collection tricks you will see lawyers apply include but aren’t limited to:

Registering the Judgment against the Property: Just like registering a lien on the property of the at-fault party. You can register the Judgment with the Enforcement and Titles office at the Court, and then apply the Judgment to the title of the property. When the Defendant tries to sell the property, the proceeds of sale along with accumulated interest and some legal costs are paid out to honour the Judgment. The Plaintiff will have to wait until the property is sold in order to get their money, but it’s better than not getting paid at all.

Garnishing a bank account or wages:: That saying “he works for me” applies here. You can garnish an delinquent Defendant’s wages so that their salary/pay goes to you instead of them. It might take a long time to get paid the full value of the Judgment, but again; it’s better than nothing.

Getting the Sheriff to Seize Assets: Toronto isn’t the wild west. Some parts of London are the wild west. In any event, whenever I hear the term “sherrif” I think of Dukes of Hazard, the Lone Ranger and the Wild West. Here in Ontario, the Sherriff is just a guy employed by the enforcement office of the Court to go out to a Defendant’s property and seize their assets of any value in order to honour an outstanding judgmnet. Let’s say a Defendant owns a $50,000 car; but they haven’t paid out of a $50,000 judgment. A plaintiff can retain the Sheriff’s Office to make that $50,000 car, your car. Sounds pretty neat. But the reality is that the value of those goods (chattels) is difficult to sell off in the open market to get your money back? Ever try re-selling a used leather sofa and other used goods seized by the Sherriff? It’s difficult and not easy to get top dollar for the goods.TorontoBlueJays2012primary.png

A Plaintiff is able to find out what goods and assets the Defendant has by way of Judgment-Debtor or Creditor Examination. This is a chance for a Plaintiff or their lawyer to ask the Defendant all sorts of questions regarind their assets or lack thereof. The Defendant has a duty to disclose the full nature of their finances. Failure to do so might and failure to attend at such an examination might even result in jail time.

Some of you might find all of this very interesting. But, when your lawyer is working on a contingency fee basis; meaning you don’t pay unless we recover, you can see the important for both Plaintiff and lawyer to get paid at the end of the day. After all, if your lawyer doesn’t get you any money, then you don’t have to pay your lawyer any money.

Now on to more exciting things: Toronto’s baseball team. A lot of hype coming in to the season. Losers of 5 consecutive games. Even after a player only meeting last night, they still couldn’t get the job done. What do you do? Fire the manager? Fire the GM? Relocate the franchise to MTL? I don’t know. I guess that’s why I’m not a professional sports executive. But that’s why these guys get paid the big bucks.

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