PERSONAL INJURY LAWYER WITH OFFICES IN WHITBY, OSHAWA, AJAX, PICKERING, DURHAM & TORONTO
Personal injury lawyers specializing in:
- car accident claim,
- insurance settlement and lawsuit pay out
- slip and fall,
- dog bite,
- disability denials,
- accidents resulting in personal injury.
Serving Oshawa, Whitby, Toronto, Southern Ontario
*Respect & Experienced Guidance
*Record for Success
*Knowledge of the Law
*Do not pay unless you win
- Issues to watch for Ontario Car Accident Injury Victims in November and December 2012, written by Ontario Personal Injury Lawyers Read more…
- Recent Car Accident & Slip and Fall Results from our Car Accident lawyers and injury lawyers in Oshawa, Whitby Toronto and Ontario, written by personal injury lawyers in Ontario Read more…
- How to Choose the Best Injury Lawyers and Best Car Accident Lawyers in Oshawa, Whitby, Toronto, Ontario, written by a lawyer at a personal injury law firm Toronto, Oshawa Read more..
- 10 questions to ask before hiring car accident or injury lawyers in Oshawa, Whitby Toronto and Ontario, written by an attorney working at a personal injury law firm Toronto, Oshawa Read more…
- Slip and Fall lawsuits – will your case be successful?, written by a personal injury lawyer Oshawa Read more…
- Injury Lawyers in Oshawa, Whitby Toronto and Ontario – What Should Clients Expect To Pay?, written by injury lawyers Oshawa Read more..
- What Is The Difference – Pro Bono, Contingency, Legal Aid & Only Pay If You Win Lawyer? Read more…
- How much is my car accident or slip and fall case or lawsuit worth?, written by an accident lawyer Oshawa Read more..
- Dog Bite Lawyers - Advice, written by a Dog Bite Lawyer Oshawa Read more…
- No-Fault Accident Benefits Lawyers guide, written by accident lawyers Oshawa Read more…
- Ski Hill Injury Accidents and Injuries Read more...
- Sex Abuse, Assault losses and damages Read more…
- How do I fire my paralegal/lawyer, hire a new lawyer? Read more…
Recent Car Accident & Slip and Fall Results
1) A young woman was traveling as a passenger in her husband’s car when they were involved in a car accident. The woman had worked in a service job for a number of months before taking maternity leave in advance of her pregnancy. She was on maternity leave at the time of the accident. The woman did not sustain any fractures, but did sustain whiplash, including neck and back pain, which developed into chronic back and neck pain. Her accident benefits insurer cut off her benefits and certain doctors who examined her did not acknowledge her injuries, noting that they were soft-tissue and not objective injuries. She hired our Best Whitby, Oshawa injury lawyers and the lawsuit settled for more than $450,000.
(2) A gentleman was walking in a parking lot when he slipped and fell on snow and ice. He sustained an ankle fracture (broke his ankle) and other pains. He hired our Toronto Injury Lawyers and the lawsuit resolved for over $225,000
(3) A young man was involved in a motor vehicle accident while travelling as a passenger in his friend’s car. The motor vehicle accident happened when his friend ran a stop sign. The young man sustained a fracture that healed, and chronic neck and back pain with headaches. There was a question about whether he was wearing his seat-belt at the time of the accident, questions about the extent of his injuries and his ability to do the work that he had been doing before the accident. The doctors hired by the insurance company said that he was capable of returning to work and doubted the extent of his limitations. After hiring our Whitby, Oshawa and Best Toronto Car Accident Lawyers, the lawsuit resolved for more than $600,000
Issues to watch for Ontario Car Accident Injury Victims in November and December 2012
1. How will the Courts/Financial Services Commission interpret the new minor injury guideline (MIG) under Ontario’s accident benefits system? Will the exceptions be granted a broad interpretation? What happens to those who do not recover, do they (similar to the old PAF system) become entitled to increased benefits? Does a chronic pain or psychological disorder fall under the MIG?
2. How will the Courts/FSCO interpret the requirement that services be “incurred”, ie: that the service provider sustained an economic loss? Will a liberal interpretation be granted?
3. Will the drastic reduction in available accident benefits lead to more lawsuits by injury victims for housekeeping, etc. and expenses incurred even if the injuries resolve?
4. Will insurers on the side of at-fault motorists now face increased pressure to make advance payments?
5. Will the lack of insurance funding for assessments mean that smaller law firms will now face a funding crisis in trying to obtain necessary and costly expert opinions? Will smaller centres outside of Toronto Ontario – ie: Whitby and Oshawa (where less large law firms and lawyers are located) now face an overall reduction in their awards?
How to Choose the Best Injury Lawyers and Best Car Accident Lawyers in Oshawa, Whitby, Toronto, Ontario
Making sure that you obtain the best suited injury lawyers and car accident lawyers is an important decision.
In our humble opinion, you should confirm the following before hiring a lawyer:
1. How has the lawyer been ranked and rated by Courts. Ask the lawyer to see decisions that he or she has argued. Ask them to show you what Judges have said about them. Ask them how their law firm ranks and whether it is ranked in lexpert or the best lawyers directory. Ask them how many lawyers are in their firm and how long the firm has been around.
2. How is the law firm perceived among other lawyers and the community in general? If the law firm has a bad reputation then you may not want that taint to possibly impact on your case. You may also want to know how insurance companies regard the law firm. Call lawyers in other practice areas and ask them about the reputation of the law firm that you are considering.
3. The last thing that you should do is consider whether the lawyer that you are speaking with gives you that “honest feeling”. You want a lawyer that is best suited to you and who understands what you are going through.
How do I fire my paralegal, lawyer or hire a new lawyer?
Just as weddings can lead to divorces, and new cars can lead to auto trader postings, your relationship with your lawyer or paralegal can sour and need to be ended. It is unfortunate when it happens, but it can happen.
The first thing that you should know in an injury case on contingency, is that you are unlikely to be required to pay any fees up front. The usual procedure is that your new lawyer may agree to “protect” a reasonable amount of the old paralegal or lawyer’s fees, as agreed upon or as assessed. Another important thing to remember is that consulting with another lawyer will likely be free and may provide you with some perspective.
In some past cases, our lawyers have seen people who believe that they are being treated unfairly, but are really just confused about the process. They have made efforts to explain the issues and encouraged the person to speak with their lawyers again.
When the relationship cannot be salvaged, lawyers will assess the situation and consider a fair and equitable fee arrangement and retainer. In some cases, such as if you are with a paralegal, no additional fees at all may be required. That is because paralegals typically cannot handle tort claims and so their work would have been restricted to accident benefits.
If you find yourself in the unfortunate situation where you have to fire your lawyer or paralegal or hire someone new, call us to assess the situation and to consider what further steps can be taken. The call is free.
When someone sustains an injury the first thing on their mind is their medical treatment. Legal representation by Ontario Injury Lawyers is often an after-thought that people stumble through without adequate knowledge of industry norms.
Some people will retain paralegals even when that option may not be in their best interests. Those within the industry speak about members of ethnic communities who hold themselves out as “agents”, gathering cases within the community and referring the cases to Toronto Injury lawyers, Toronto car accident Lawyers and/or paralegals in exchange for fees.
There are stories of others who agree to pay retainers to Ontario Injury lawyers/representatives and/or pay for expert reports when other Ontario car accident lawyers might have agreed to fund those things for them.
It is exceedingly important to gather information about injury law in Ontario no matter where you live. Whether you are seeking Toronto injury lawyers, Toronto Car accident lawyers, Oshawa injury lawyers, Whitby injury lawyers, Ajax injury lawyers, etc. the same principles generally apply and you should ensure that you obtain information about standards within the industry before retaining a lawyer. Most Ontario Injury lawyers and Ontario car accident lawyers will be willing to meet with you for free to discuss your options and to provide you with general information.
More information can always be obtained online, including on this website. This may provide some fast, easily obtained guidance about the fundamentals, or a second opinion, that might assist you in making the best decision on an issue that will be very important for you in the future. Given that most Ontario lawyers offer free consultations, it is generally advisable to contact more than one Injury or Car Accident lawyer to learn your options.
For more information and what fee is fair click here - Read more...
Ontario Injury Lawyers who practice car accident, slip and fall and disability law may offer a variety of different types of fee agreements to potential clients. One of the reasons that this is offered is because there is a realization that injury victims often simply cannot pay the hourly rates that lawyers charge. Not all Ontario Injury lawyers offer flexible fee arrangements and it is very important that you have a clear understanding of your fee agreement with your lawyer. There are some Whitby and Oshawa Injury Lawyers and Whitby and Oshawa car accident lawyers who require money up front in these cases. Toronto car accident lawyers and Toronto injury lawyers also sometimes request this.
In most cases, you will probably have a written agreement with your lawyer that will set out the terms of the agreement. Some people get confused by the term “retainer agreement” thinking that it means that they have to pay something up front. This may be true in some cases, but the term may also simply mean the agreement that you are signing to hire the lawyer.
Some injured victims indicate that they need a pro bono lawyer, since they canot pay for the services up front. A pro bono lawyer is normally a lawyer who does not charge you anything at all regardless of the outcome of your case – even if you win. This is normally not what injury victims mean when they say that they want a pro bono lawyer.
Many clients also indicate that they require legal aid. The reality is that they may not require that. Some lawyers will agree to take cases on with the agreement that they will simply be paid a percentage of the damages award at the end of the case, and they will receive nothing if they do not win. A “pay a percentage if you win” agreement can be referred to as a contingency fee agreement. There are a number of variations offered by Injury lawyers in Toronto, Oshawa, Whitby and Ontario.
That is a difficult question to answer. Ontario’s car accident system is a lot different than some others like Quebec’s. In Ontario there is no fixed amount for a particular injury.
There are cases that lawyers and others can look to in order to determine a case’s fair value. However, the exact amount that the case is worth is based on individual factors. For example, if Wayne Gretzky (former professional hockey player) sustained a serious wrist fracture during the height of his career, the case would probably be worth more than if most lawyers suffered the same injury. Other things that might have an influence on the amount would be the amount of pain and disability that the injury causes, the injured person’s age and any other factors that tend to make the injury and its effects worse.
It should also be remembered that, in Canada, there is a cap on the pain and suffering components of awards. The cap was subject to inflation when it was introduced by the Supreme Court in a trilogy of cases in the 1970′s. In 2011 it is between approximately $320,000 and $340,000. Remember that this means that a person that sustains the worst possible injuries is limited to claiming that amount for pain and suffering. One rationale for the cap could be that no amount of money can ever truly compensate someone for a severe injury.
Of course, that does not mean that is the maximum total amount that they can claim. An injured person can also claim, in many cases, for other types of damages, including loss of income/loss of competitive advantage, future care costs, etc. These are not subject to a cap in most cases.
In car accident cases, there are thresholds, deductibles and other limits. However, in car accident cases, there is also the possibility of obtaining compensation and settlement through the accident benefits system.
The winter of 2010 in Ontario, Canada has seen some harsh storms, heavy snowfalls and extremely cold weather. This sort of weather can lead to dangerous walking conditions. People often sustain injuries at this time of year because of icy and slippery conditions. It is expected that this will lead to many new cases being brought by slip and fall injury lawyers in Oshawa, Whitby, Toronto, and Ontario.
Every year, people sustain ankle fractures, broken arms and wrists, head injuries, whiplash, and pain after slipping or tripping and falling in Oshawa, Whitby Toronto and Ontario. Each and every winter, people hire lawyers and launch lawsuits seeking damage awards (money) from a settlement or judgment after slipping or tripping and falling.
It is important to understand that a private property owner is not responsible just because someone slips or falls on their property. A private property owner does not have to keep their property in perfect condition, or completely safe, but they do have to take “reasonable” steps to make sure that persons are reasonably safe while they are on the property. When someone slips and falls, it is usually important to determine whether the private property owner had a reasonable system of maintenance and inspection in place.
For instance, if you slipped and fell on ice while walking to your car in a parking lot, then it would be important, in many cases, to determine whether the property owner had a reasonable system in place to inspect the parking lot and a reasonable maintenance schedule, which might include plowing/shoveling, salting or sanding the parking lot.
What does “reasonable” mean. That is up for debate and it is something that personal injury lawyers argue about again and again. There are many factors to look at when considering that issue and each case is usually somewhat unique. For example, if someone slips and falls on a small patch of ice, in an otherwise clear, parking lot in a deserted area of Whitby, that is very different from the case where someone slips and falls in a completely snow and ice covered entrance, that has been left uncleaned for days, at the busiest restaurant at Yonge and Bloor in downtown Toronto.
Even if the owner of the deserted Whitby parking lot and the owner of the incredibly busy downtown Toronto restaurant had the exact same maintenance and inspection schedule, the busy downtown Toronto restaurant owner might be found not to have taken reasonable care, while the Whitby owner had. That is not because people are harder on Toronto restaurants, it’s just that safety might require a higher level of maintenance and inspection in the circumstances.
Other things that can sometimes be important in slip and fall cases, are how fast the injured person was walking, whether they were taking care for their own safety (ie: whether they were looking where they were going), whether they were wearing appropriate footwear and clothing, whether they should have known about the danger, whether they were carrying something that interfered with their safety, etc.
If you are injured, you should immediately consult with a lawyer about how long you have to notify the other party about your intention to sue and to start a lawsuit. In some cases, you may only have a matter of days to notify the other party. It is best to discuss these time-lines with injury lawyers in Toronto, Oshawa, Whitby and Ontario.
10 questions to ask be sure that you get top accident or injury lawyers (attorneys) in Oshawa, Whitby Toronto and Ontario, Canada.
If you are considering proceeding with a lawsuit in relation to an accident or injury (whether it is a car accident, a slip and fall or trip and fall), you will want to choose a lawyer and law firm that is competent to effectively handle the case. When speaking to a lawyer that you are considering hiring you may want to ask the following questions:
- Will you provide me with a comprehensive agreement with all of the charges that I will have to pay.
- Is the consultation completely free no matter what I decide to do?
- When do I have to pay (ie: can I pay all fees and charges out of the final award or settlement?)
- What experience and knowledge do you have in this area of the law?
- Does your law firm have the financial and other resources to fund the litigation and to go to trial if necessary?
- Do you focus your practice on litigation and lawsuits or do you practice in other areas too? (some lawyers carry on a general practice where they try to practice in a number of areas).
- Ask the lawyer to explain the legal tests involved in the case and what the game plan would be for meeting them?
- Ask whether the firm is well known and whether insurance companies will know the firm.
- Ask the lawyer to send you one or more decisions in cases that he/she has argued.
- Ask the lawyer what the challenges and problems are in your case and how they can be overcome.
905-409-2438 Our Ontario, Whitby, Oshawa and Toronto injury lawyers offer injured accident victims respect and experienced guidance based upon our record for success in obtaining fair compensation for injuries and losses in car accidents, slip and falls, disability claims and other injury lawsuits. Call 905-409-2438. Offering flexible payment structures (including contingency fee/do not pay unless you win). Providing injury Lawyers, slip and fall lawyers, disaility lawyers, car accident lawyers in Whitby, Oshawa, Ajax, Pickering, Port Perry, Lindsay, Kitchener, Milton, Mississauga, Richmond Hill, Markham, Toronto, GTA, Scarborough, GTA, Bradford, Port Perry, Bowmanville Newmarket, Vaughan, Aurora, Thornhill and beyond with Link Popularity Services. Find the best suited Ontario injury lawyers for your lawsuit – that is a top priority. Ask about how the lawyer or lawyers have been rated by past clients and judges to ensure that you work with a highly rated lawyer with a stellar reputation among attorneys as well.
Injury and Accident Lawyer services are available in English, Spanish, Dari, Farsi, Hindi, Cantonese, Italian and other languages as well in Toronto, Oshawa, and the above noted areas of Ontario. Please also feel free to visit our Spanish language site, written entirely in Espanol – Spanish
You can be assured that Ontario Newmarket Whitby Oshawa Toronto injury lawyers with the right specialty will respond to your case. Lawyers with experience and knowledge in personal injury cases and insurance claims and who have been able to achieve very high insurance settlements/money awards. Many available lawyers are with some of the top personal injury law firms and who past clients have characterized as some of the best personal injury lawyers in the field. We can also assist in accessing and coordinating rehabilitation services to assist in recovery.
Car Accident Lawyers, Injury Lawyers, disability lawyers and slip and fall lawyers are available in Whitby, Oshawa, Ajax, Scarborough, London, Etobicoke, Hamilton, Ottawa, St. Catharines, Niagara, Welland, Markham, Thornhill, North York, Mississauga, Pickering, Oshawa, Toronto, the Greater Toronto Area (GTA),and beyond.
You may also request that an out of town appointment or an in-home or hospital consultation be arranged at no charge to you with:
• Car and motorcycle accidents lawyers
• Life or disability Insurance lawyers
• Slip and fall lawyers
• Personal Injury lawyers
• Sporting accident lawyers
• Airplane crash lawyers
• Boating and jet ski accident lawyers
• ATV or dirt bike accident lawyers
• Snow mobile accident lawyers
• Injury Lawyers
• Faulty products and Products Liability lawyers
• No-fault car insurance claims and accident benefit lawyers
• Dog bite lawyers
• Assaults, including sexual assault lawyers
Or any occurrence resulting in the need for:
• Personal injury lawyers
• Wrongful Death lawyers
• Brain injury lawyers
• Spinal cord injury lawyers
• Disability benefit denial lawyers
• Chronic pain lawyers
Find the best suited Ontario lawyers for your lawsuit – that is a top priority. Ask about how the lawyer or lawyers have been rated by past clients and judges to ensure that you work with a highly rated lawyer with a stellar reputation. Our main information page can be found at Ontario Injury Lawyers
City specific pages can be found at:
Personal injury lawyers specializing in car accident claim, insurance settlement and lawsuit pay out as well as other mishaps (e.g. slip and fall, dog bite, disability denials, injury, accidents) resulting in personal injury. Serving Oshawa, Whitby, Toronto, Southern Ontario
Accidents caused by drivers who are Driving in a vehicle without consent are especially difficult to deal with. They pose legal challenges and can have restrictions on the types of benefits available to be applied for.
In one such recent example, the Globe and Mail reported that, on June 9, 2013, a group of teens allegedly stole a truck and took it on a joyride in Oshawa Ontario. One of the teens (a 13 year old from Whitby Ontario) apparently provided this explanation to police: “Yo bro, I had a really bad day. My girlfriend broke up with me — you don’t even know.”
The Globe reported the allegations that, around 1:30 a.m. Sunday, three teenage boys, two 13 and one 15, were trying to get into parked cars at Just Brakes Plus, a garage in Whitby. The trio found an unlocked Ford pickup truck and, inside, the keys.
According to the Globe’s report, a police officer spotted the truck driving the wrong way on several streets as it weaved through Whitby into neighbouring Oshawa. The officer thought the driver was impaired. After the cruiser’s siren was turned on, a short chase ensued as other police vehicles converged on the truck. The pursuit was called off as the truck drove the wrong way on King St. E. in Oshawa. Then the driver lost control and barrelled onto the sidewalk in front of Out Lounge and Bar, striking three pedestrians.
The article in the Globe noted that one man ended up in serious condition at St. Michael’s Hospital in Toronto. Another man and woman were taken to Lakeridge, also in serious condition.
As an example of the legal issues that may apply in cases where a person is injured in a vehicle that is knowingly used without the owner’s consent, section 30 of the statutory accident benefit schedule says that an insurer is not required to pay income replacement benefits/visitor expenses, housekeeping expenses or certain other benefits in those cases (if insurance applies at all).
In most lawsuits for personal injury from a car accident the defendant’s lawyers will request that the trial be decided by a jury instead of a judge alone. In most cases the defendant has the right to request that.
Why do defendants request a jury in a car accident injury trial? Some of the possible reasons that i personally believe play a role are:
1. A jury is not allowed to be told that the defendant has car insurance that will pay damages awarded.
2. A jury is not allowed to be told that a secret “deductible” of $30,000 will be subtracted from their pain and suffering award to the plaintiff unless the award is more than $100,000.
3. A jury can be unpredictable and the risks are much higher for the plaintiff (who has one case) as opposed to the insurance company (which has many)
4. A jury will not know that if the plaintiff does not get more than what the defendant offed then insurance company can pursue the plaintiff for its costs
5. A jury may not be as familiar with medical concepts and may not be able to deal as easily with a claim for injuries that are not “objective”-and pain is rarely objective.
6. A jury may not know that the doctors hired by the defence are working for an insurance company that provides, potentially, a considerable part of their yearly income and some are alleged to have biases.
While all of these things are true, you should not be discouraged from pursuing your claim if you have an honest and valid claim. Our jury system is, i believe, meant to provide a democratic check on the role of the courts in deciding cases and to keep the courts informed of the view of society.
My very firm belief is that juries are made up of good people who have a real desire to do the right thing and take the role seriously. While there is certainly risk, there is also no other means of compensation.
*Steven Polak is a personal injury lawyer practicing in the GTA, York Region, Durham and also sits on the board of directors for the Canadian Mental Health Association-York Region.
A driver is tired, upset, drunk or in a hurry and does not take proper care on the roadway. Too many car accident injury stories begin this way and the end of the story can be tragic. This may soon be a thing of the past. Google has been testing a new “driverless car” where you can sit back and let a computer drive the car for you. Google’s car is still in the testing phase, but it has the potential to fundamentally change our society. It was recently reported that other car companies are now following suit and working to introduce selfdriving cars.
The cars work with a combination of computers, sensors and cameras. The cars do still require humans to drive in certain conditions and in certain circumstances, but by and large they take over the task of driving the car. As time goes on and the technology is refined, the cars may well become completely driverless.
Think about the effects of this: car accidents should become a rarity, car accident injury should all but disappear, car accident insurance should almost disappear, the need for police monitoring of the roads would be curtailed, taxi cabs should also become driverless eliminating that job, truck driving and transport drivers will no longer be needed in the same numbers, hospitals and injury treatment providers would not be needed in the same numbers, courts would note a reduction in the number of cases, and yes, personal injury lawyers specializing in car accident injury lawsuit cases would have to focus on other areas of law.
This new technology has the very real potential to change our society for the better. Given how central the car is to our society, it is difficult to think of anything that will have a greater impact on our society.
On April 8, 2013, The Globe and Mail reported on a ground-breaking recent decision in Saskatchewan where a judge awarded 3 million dollars in punitive damages against two insurance companies for failing to pay disability benefits to a 52 year old welder (Mr. Branco).
In that case, it was reported that the insurance companies denied the plaintiff long term disability benefits and made inappropriate demands in terms of retraining and steps that the plaintiff was required to take. It was reported that the insurers went to great lengths to thwart the plaintiff’s claim and convince him to accept low settlement offers.
The judge seemed to express the hope that this would send a chill through the insurance industry. The decision is almost certain to be appealed by the insurer and it will be interesting to see what the higher court does with the decision. The fact that the plaintiff will have to now wait even longer through an appeal for this to end is unfortunate – he has already spent ten years of his life in litigation.
Punitive damages are not awarded as compensation for any particular loss by the plaintiff; the damages can be awarded in cases that are deemed to have shown shocking and outrageous conduct and breaches of the duty of good faith that an insurer has towards its insureds.
The previous ceiling for punitive damages had been approximately one million dollars awarded to an Ontario plaintiff in the case of whiten and pilot. That case had been appealed all the way up to the Supreme Court of Canada (the highest court in Canada).
In the whiten and pilot case, the court did not say, with certainty, that one million dollars was the absolute ceiling, although that is how it has been interpreted by some people. That being said, an award of 3 million dollars is so far outside of the usual range that it would set a new standard if it was affirmed on appeal.
In my experience, disability insurers in Ontario seem to know that a great number of people will not appeal disability denials, and those who do will settle for lower amounts than what they are entitled to. The math still seems to work for the insurers statistically, even when they have to pay. A large punitive damage “stick” is something that, in my respectful opinion, the court needs, in order to deal with these very large and powerful corporations (in Ontario, we often find ourselves dealing with denials by insurers like Manulife, Desjardins, Great West Life and others). I often find myself shaking my head with anger when I hear the stories that my clients tell me about how their insurer denied their benefits (usually because the insurer says that they do not meet the “total disability” test) and how their life has been after that.
What makes the award in Branco very unusual is that the award was made by a judge, not a jury. Juries are known and recognized to be more prone to high awards that are outside of the usual scope when they are repulsed by an insurer’s conduct. It cannot be ignored that the decision was made by a learned judge
with years of legal knowledge and training. If nothing else, it is a reminder that Judges are not always the cold detached figures people make them out to be by some people – they are human beings with hearts beating inside of them and a sense of morality that can be outraged.
While it may not be obvious to those who do not deal with these cases often, the one word that best describes his Honour’s judgement is “courage”. This case may be picked apart by appeal courts, it will be attacked by defence lawyers and criticized in many boardrooms of billion dollar corporations as an inappropriate departure from the usual range. The Judge must have known that, must have known the criticism he would face but he did it anyway – which is something that he can always look back on and be proud of, and something that we all owe him a debt of gratitude for. He has reminded the insurers they do not tread unattended, there are rules and that our courts will safe-guard its people. We should all remember that an accident or a disability can happen to any one of us, and this plaintiff’s 10 years without income, without respect and with unreasonable treatment, ruining his life, could just as easily be any one of us – there but for the grace of god go I.
In the March 27, 2013 decision of Scarlett v. Belair Insurance, Arbitrator John Wilson essentially confirmed the common sense inference that the minor injury guideline (“MIG”) is meant for people who have sustained minor injuries.
This may not sound like much of a land-mark decision or much reason to write anything at all. The reason that it is, is because insurers have been trying to force many square pegs (people with more serious personal injury) into the round holes of the MIG. There have been a number of interpretations and policies that have been adopted by insurers that have expanded the use of the minor injury guideline beyond what it was arguably intended to do. Scarlett v. Belair is the first known reported decision that interprets the minor injury guideline.
For those who don’t know, the MIG is a treatment guideline that is found within the statutory accident benefit system (the system that governs no-fault benefits for car accident victims). The MIG restricts a injured person’s treatment to a total of $3,500 (broken down into blocks) and restricts their ability to claim for other benefits. If someone is outside of the MIG (if their injuries are more significant) then they are entitled to up to $50,000 in benefits for treatment, as well as other benefits, including attendant care.
One of the important points made in this decision is that it is the insurer’s burden to prove that the insured’s claim is restricted to the MIG (not the other way around as the insurer argued). The arbitrator found that the claimant’s TMJ, chronic pain diagnosis, and psychological impairments were separate and distinct from the soft tissue injuries and that the totality of the injuries fell outside of the minor injury guideline.
Many injury claimants often complain that they were being lumped into a particular category just because they had no fractures. Indeed, I had one car accident client near Oshawa with a head injury who was being regularly followed by a treating neuro-psychologist and educational support aide who was put in the MIG and was only removed as we approached arbitration.
The arbitrator in the Scarlett case, made it clear that insurers cannot simply lump people into one category, and explicitly stated as follows:
“What it [the MIG] is not is the cookie cutter application of an expense limit in every case where there is a soft tissue injury present. Such does not respond to the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process. While it is quite possible that the majority of claimants can be accommodated within the MIG, averages are misleading when applied to individual cases. Each case merits an open-minded assessment, and an acceptance that some injuries can be complex even where there are soft tissue injuries present amongst the constellation of injuries arising from an accident”.
This decision is apparently being appealed by the insurer. There will certainly be further decisions that will consider the provision further. The hope is that the decision will make it clear to the insurers that the minor injury guideline should be reserved for those people with minor injuries. Where the problems are more significant (either initially or if they become worse over time) an insurer must review and respond to that and fairly consider their insured’s needs. Most of the personal injury law cases that I handle are in York Region (Vaughan, Richmond Hill, Newmarket), the GTA or in Durham (Oshawa, Whitby, Ajax) and claimants are typically fair and most interested in getting back to as much as they can do. For these types of claimants, this is a good and important decision
Until you have had a serious personal injury, or have worked closely with someone who has, it can be difficult to fully grasp the emotional consequences that a personal injury can bring with it. It can be a particularly difficult situation to explain when the plaintiff/injury victim is still working and doing their best to make ends meet. Although it can certainly be a more challenging scenario to prove the losses in some cases, I encourage my clients to get back to as much work as they can handle, provided that their doctor agrees. I make it clear that they don’t want to be perceived to be giving any less than their full effort in trying to restore their lives and remind all of my clients that this lawsuit will eventually end, and it would be wrong to just listlessly float through the action without trying, and to then reach the end of the action and not know what they can actually tolerate. That being said, there are many clients who simply cannot return to work or study at all.
Most injury victims, are in and out of appointments, in ongoing treatment, seeing specialists, taking medications and doing just about anything that they can to get better. In that time they struggle with ongoing pain, ongoing problems in doing their job, their work around the house and even holding or playing with their kids in many cases.
A lawsuit can take years to resolve. That wears on a person. Every day you try to go to sleep with pain, you don’t get a restful sleep, you get up in the morning with pain, you try to do what you need to and that just causes more pain. You do your job as best you can, but you’re always feeling guilty and wondering whether others are upset because you’re not doing everything that you used to, everything takes you longer and you get worn down.
You have to go for ongoing treatment just to keep up and that takes time as well. And there is this suspicion and pressure because the insurance companies says that you don’t need the treatment because it won’t cure you, but none of that makes any sense to you because you feel this pain everyday and you know how bad it gets unless you get that ongoing treatment.
You put your energy and your full force into working, because you need the money, and you are not the type of person who just stops. Then you feel guilty because you’re not holding your child, or going down the slide or on the monkey bars with your child, because it’s just too much and you don’t have anything left.
Your spouse has to start doing the chores and things around the house – for years – and, as enlightened as spouses are supposed to be in this day and age, that can still cause issues. The guilt and the difficulties cause friction and problems in relationships and in the marriage and that wears you down more. And it cycles, again and again. Each time that cycle goes round you wear down more and more.
That is what years of an injured persons life are like. The car accident system that we have now does not adequately address their needs, but it is the only system that we have. A lawsuit takes a considerable amount of time and there are many protections for the insurance companies built into the legislation.
Many of my clients break down in tears at the discovery, describing how difficult their job now is for them and how much they now needed help and had to rely on others. And that is just talking about it – imagine how they feel living it every day. They also know that their employer may not always be around, or may decide that they don’t want to be so accommodating and would prefer an able-bodied person – then they are stuck trying to find a good job in a tough market, when they have a disability – they think about who wants to hire someone with a disability when you have 200 other able bodied people to choose from.
This can be exceptionally difficult for “hyper-achievers” who did incredible things before the accident and build their identity on achievement. When that ability to achieve is taken away or compromised, a serious identity crisis can occur.
Many of these victims know that it is only going to get more difficult as they get older and their body has less of the energy to push past the pain and the problems. They now have to deal with the fact that the doctors are admitting to them that there probably isn’t going to be any more improvement – this is it – this is your life now. They were healthy before, and now they have to live with constant ongoing pain and limitations and there is not much that they can do about it.
This is a person’s one and only chance to seek compensation for the rest of their life. That can be a very stressful thing. It is especially stressful when the insurance company denies the existence of the injury itself, or that it is related to the car accident or personal injury at issue. I always tell my clients to be prepared for a battle and to understand that I know that the system is a bad one – but there is no alternative and it is the only means of securing compensation. Some insurance companies will often hire doctors that are known for writing reports that deny the plaintiff’s injuries, their relation to the accident and their severity. They also rely upon secret loop-holes in the law that automatically reduce an injured person’s injury award, forbid certain damages and forbid the lawyers from mentioning the existence of insurance. The delays inherent in moving the file towards trial can, in and of itself, represent a serious challenge for injury victims (In Toronto, it can sometimes take 4 years to get to trial, in Oshawa, Newmarket, Richmond Hill, York Region, the waiting period can be less).
A famous lawyer once said that a trial is not a tea-party. It certainly is not and there are nasty elements and road-blocks that can seem insurmountable at times. Describing the real effects of a car accident or injury and properly framing them with evidence and expert testimony are integral. Feel free to call us for a free consultation to see if we can help you through this difficult time.
One of the largest battle-grounds in a lawsuit for personal injury after an accident is the area of “income loss”. Establishing what a accident victims would have made if not for the accident related injuries. For years now, there has been a general acceptance in the personal injury domain that people retire at age 65 and don’t earn additional income. It is becoming increasingly clear that this idea has not kept pace with the new reality.
Canadians simply are not counting on that anymore and are not expecting to retire at age 65 anymore. It is becoming increasingly common to see people working after age 65. In a recent case that I had, this issue was front and centre. The Judge in that case remarked on the fact that work post age 65 was becoming increasingly common. As part of that case, we relied upon a number of studies that have documented the shifting attitude of Canadians.
One of those studies was a March 2011 study through Sunlife Financial, which noted that most Canadians now expect to retire at age 68. It also noted that for those people earning less than $50,000 per year, the average expected retirement age is 70 years old.
A 2012 study through Sunlife shows that only 30% of Canadians expect to be fully retired by age 66. More than half (55%) expect to still be working and have an expected retirement age of 71.
A further study noted that most Canadians expect to work after their formal retirement.
Some of the other factors that we referenced to support our client’s case was the fact that his income had been considerably lower in the past, his savings were very low, and he had been the sole income earner for a family with 4 kids. Our argument was that he simply could not have retired at age 65 and enjoyed any kind of a similar lifestyle to what he was accustomed. Also, there were questions about the size of his pension and his entitlement to benefits if he did not work past age 65.
When analyzing injury cases on behalf of accident victims it is very important to consider the specific circumstances of the client in order to get a clear picture of their losses. While the accident benefits system in Ontario significantly curtails income replacement at age 65 for car accident victims, there is no similar limitation on the tort lawsuit system. That means that it is entirely possible to recover income losses that you would have otherwise earned after age 65 through a personal injury lawsuit.
Hello, my name is Steven Polak and I am on the board of directors for the CMHA York Region and South Simcoe. I am working with the Board on organizing the Ride Don’t Hide bike ride in support of mental health programming. This is now a national event, but it will be the first year that York Region and South Simcoe holds the event. The ride will take place on June 23, 2013.
This is an initiative that may be of interest to you, either to sponsor or to participate in the ride (we would love to have lots of riders out this year). Lerners LLP will be one of the Diamond Level Sponsors for York Region and South Simcoe. Shoppers Drug Mart is the main national sponsor. If you would like to become involved with the ride in any way, please feel free to contact me.
The ride will support a number of mental health initiatives, including the following ones:
1. Youth Wellness
The Youth Wellness Program, Mental Health Literacy and Suicide Prevention for our children. We are currently able reach 9,540 students and faculty, but there are 80,000 students in grades 6 through 12 that would benefit from any one of our courses: Surviving High School, Mental Health Myth Busting, Eating Disorders and Other Self-Harming Behaviours or Tackling Stress. However, adding courses alone is not enough, we know there are at-risk students so the program offers 1-1 support with our specially trained team members, group facilitation and over 50 consults to faculty, school administrators and parents. Our goal is to raise $85,000. This investment means that we will reach an additional 4000 students, offer 50 children 1-1 life saving support and double our consultations to faculty, school administrators and families. When lives are saved a mere $30 per student may be the best return on investment your donation can support.
2. Support for Depression
Support for Depression is facilitated by peer volunteers and overseen, supported and organized by CMHA. There is a critical need to expand this service and offer groups in other languages to accommodate different ethnic cultures or other peer groups such as women only, LGTBQ etc. To add a new group that runs throughout the year requires $5000. We are targeting 5 new groups for a total new investment of $25,000.
3. Family Support that includes educational sessions and individual support.
Every $200 raised allows one family to attend valuable workshop series to increase their understanding of mental illness and how to support their loved one and each other. This also lets them connect with other families in similar situations to provide that critical peer support and understanding.
To run one series we need a total of $4000 for 20 families. Our current waitlist is 30 families and growing. We know that when a family is in need waiting can be a burden that we don’t want to add. Your donation can make an impact right away.
Every $1000 raised allows us to work with an individual family to consult around specific needs. Each situation is unique and the ability to work one on one with our specially trained social workers can make all the difference for the family and also for their loved one.
We need $15,000 to double our current capacity and that only scratches the surface of the family support desperately needed throughout York and South Simcoe
*These general comments on head injuries and concussions after a car accident or other injury producing accident are published from my general perspective as a personal injury lawyer in Ontario, Canada, and should not be taken as being medical advice in any way, or specific legal advice. Please seek appropriate medical and legal consultation on your specific issue*
The effects of head injuries and concussions after a car accident or other injury producing accident are wide ranging and, in my experience, difficult to predict. Some people with concussions and head injuries make excellent recoveries and go on to move past the injuries completely, or to a great extent. However, others are not so lucky. My experience has been that doctors need a considerable period of time to go by, to make any firm prognosis with respect to how a person’s functioning will be affected into the future. Some of the types of difficulties and complications that I have seen people suffer with have included memory, concentration and attention problems, balance issues, rage, anger and mood problems, psychological and psychiatric disorders, loss of motivation, depression and emotional distress. I have seen these kind of problems have a snowball effect and end up making the other problems even larger.
Not all head injury or concussion victims need to proceed with a lawsuit. It’s not really in everyone’s interests to do so. Lawsuits should be considered where there are ongoing symptoms that are impacting on a person’s functioning. The problem is trying to figure out whether or not it is in someone’s interests to proceed with a lawsuit. You don’t want to proceed with a frivolous lawsuit, but you also don’t want to miss a notice or limitation period that may apply. In motor vehicle accident claims, generally, there is a 30 day time-period to file a claim for accident benefits (no fault benefits) and a 120 day time-period to notify the defence about your intention to make a claim (these time-lines can be extended and often are extended). There is, generally, a two year time-period to sue as a result of a car accident (this can be extended in certain circumstances). Earlier time-lines can also apply in certain types of cases. It is best to seek advice from a lawyer as soon as possible after a car accident. I have often helped clients by filing the necessary notice and benefits paper-work (without charge) and then considering whether or not to proceed as time goes on.
Slip and fall claims or denied disability benefit claims can be very difficult because there is even less help available than there is to car accident victims. With slip and fall cases or general (non auto) accident claims, there is no basket of no fault benefits available to assist someone with treatment and income loss in the interim. If the property owner in a slip and fall claim is denying liability (fault) for the accident, then you may not be able to get anything until the end of the claim – that can be an extremely difficult situation. I do everything that I can to find a way to help my clients manage during that time period (within the bounds of ethics).
What is vital when handling head injury cases, is to have all of the information available. If a student had a head injury it is important to review past educational records and testing against post-accident records. It is important to obtain employment files to see what issues were being reported pre and post accident. It is also vital to speak with people who know the injured victim and to preserve that evidence. In two past cases where a witness’ health was failing, I conducted “de benne esse” examinations of witnesses (these are out of court examinations that can be used at trial) to preserve the evidence. In both of those cases the witnesses gave powerful and emotional evidence about the accident and the injuries and that made a significant impact on the insurer. It is important to remember that an “Insurer” is made up of people who are, for the most part, decent hard-working people (there certainly are exceptions). When an insurer sees heartfelt testimony and raw emotional evidence, it has an impact on most of them.
What these cases are typically about is common-sense. I always encourage my clients not to try to memorize anything or do what they think is best for the claim – claimants are best served by being honest, forthright, honourable and specific. A claimant who goes into questioning and is clear and honest about their abilities and their limitations will make an impression on the insurer and in a court. Embellishment allows the insurer to turn the tables on you and to say that you are trying to take advantage of them. The best way to avoid that is not to take advantage of them. You are the victim and they should compensate you – they need to hear that and be reminded of that.
The other thing that makes an impact in these cases is having a team of qualified and reputable experts on your side. Having an orthopaedic surgeon giving evidence about the capabilities of someone with a head injury simply is not going to have the same impact as having a renowned head injury expert doing the same thing and, frankly, the expert is in a much better position to reach an opinion. Unfortunately, the OHIP system does not have the capacity to send injured people to all of the experts that can provide the opinions necessary to understand the long term consequences of the injury. The experts who are truly qualified to give those opinions are not cheap. For that reason, you need a lawyer who is going to invest in your case and who is going to believe in your case.
Feel free to call us. The consultation is free. We offer only pay if you win fee structures, because the unfortunate reality of most of our client’s situations do not allow them to elect for an hourly rate retainer. We pride ourselves on being a fair fee group of lawyers.
[I am writing this article as a personal injury lawyer practicing in Southern Ontario, including in Whitby/Oshawa, Richmond Hill, Vaughan, Newmarket and Toronto/GTA, Ontario Canada. This article is not specific legal advice – it is advisable to call a lawyer to discuss your specific details and time-periods for an injury involving car accidents in bad weather].
In the course of my practice as a personal injury lawyer, I often have to deal with injury claims involving car accidents in bad weather. Car accidents and injuries tend to spike after winter storms and bad weather (snow, ice, rain etc.) in general. The question is who has responsibility for those accidents and injuries. The answer is that it depends. In some cases it is possible that the municipality or other road authority has some or all of the responsibility for failing to maintain the roads properly or failing to close the roadway or take other steps. There are very short limitation and notice periods against municipalities and so it is advisable to speak with a lawyer immediately.
In many cases, driver error or owner error is the cause, or partial cause. In York Region and Durham Ontario, where many of the cases that I work on as a lawyer are litigated, inclement weather is an ongoing issue. Again and again I have to question defendants in cases who swear that it was all the fault of the weather. I have not had a case like that yet (as of February 1, 2013) where the defendant did not ultimately accept some degree of responsibility. In those cases, I usually conduct a detailed enquiry into the car maintenance, including the age of the car, tires, types of tires, braking system, etc. I then go into the mechanics of the accident and the steps that were taken and the likely effects of that conduct. In many cases it is also helpful to consider the type of driver training that the defendant has had and refer them back to some of what they learned about winter driving. Witnesses, police reports, property damage reports and officer notes are also crucial pieces of evidence.
In some cases, the defendant driver is found responsible for the accident, but the municipality/road authority can be found to be responsible for a percentage of the damages. The reason that it is very significant if a municipality is found responsible, is because, in Ontario, if someone (or an entity) is found responsible for any part of a car accident (even 1%) they could potentially be on the hook for the full amount of the plaintiff’s (injured person’s) damages and losses. They could be jointly responsible for the damages together with the defendant driver/owner in many cases. This becomes especially significant when the defendant driver/owner’s insurance policy is not sufficient to pay off the plaintiff/injured person’s full damages that they are awarded.