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Ontario has a no fault system of accident benefits if you’ve been involved in a car accident.

Understanding the concept of “no fault” is hard to grasp (even for lawyers!).

You would think that if you’re not at fault, then the at fault driver’s insurer should pay for everything.

But, that’s not how things work in Ontario’s no fault system. We have a first party pays system.

What this means is that regardless of fault, your own car insurer is responsible to pay for accident benefits in your car accident case.

This means that the other driver could have been drunk, high, on his/her cell phone, having run a red light; and still your own car insurer is the primary payor for accident benefits.

Even more strange is that if you had collateral benefits at the time of the accident, such as health, disability or anything else through work; those benefits kick in BEFORE the car insurance benefits kick in. Even though your collateral benefits have nothing to do with car insurance, those collateral benefits must be used up before the car insurer has to pay anything. How does that make sense? It’s like a disability insurer telling you that they will not pay any disability benefits until you’ve purchased 3 lottery tickets to see if you win. In the event you win, then they disability insurer does not pay because you’ve been paid lottery winnings. If you loose the lottery, and only once you’ve lost and submitted proof of losing that they will pay. All of these laws defy logic, but this is how Ontario’s archaic system of accident benefits has been designed.

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As the title to this Toronto Injury Lawyer Blog Post will tell you, there are so many forms in personal injury cases. If you wanted the Coles Notes version of this entry, I suppose that you can stop reading here. But, if you’re more interested about the details behind these forms then please keep on reading!

At times, it’s difficult to understand why there are so many forms to complete after you’ve been hurt or injured in an accident. If you don’t want any medical assistance, benefits, or compensation, then you don’t have to complete any forms at all. But, that’s not most people. Most people aren’t seeking compensation for their injuries. They are seeking to be made whole from the financial losses which they’ve sustained; or they are seeking treatment for their injuries which are not covered under the public health care system. This is a common theme. If you’ve missed out on work and income, people want that income back. If you need physiotherapy treatment, you should not be out of pocket having to pay for that treatment. All people want, for the most part, is to be made whole following an injury or accident which puts them out of commission. This isn’t so much to ask….Or is it?

One of the themes in personal injury law, as in life, is that if you don’t ask for something, you will get nothing in return. In personal injury cases, money will not fall from the sky. Nor will your out of pocket treatment, or attendant care, be paid out of thin air because a Defendant, or their insurer is being nice. One must ask for these things to get paid.

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2024 was a great year. But, that’s not to say that we here at Goldfinger Injury Lawyers wouldn’t like to see some changes to how things play out for litigating personal injury cases in Ontario.

New Years is a great time for top 10 or top 5 lists for changes we’d like to see. But, I know that such changes aren’t realistic because the wheels of change when it comes to the legal system turn very slowly, or simply don’t turn at all!

That’s why I’m going to focus this edition of the Toronto Injury Lawyer Blog on just one procedural change which I’d like to see in 2025. Just one change! That’s it! It’s not a big ask at all. It doesn’t impact the merits of the claim, nor does it impact how cases are heard/adjudicated thereby giving one party any sort of procedural advantage. The change is neutral, and is intended to save everyone, along with the Courts time and money. It has to do with the service of the Statement of Claim and motions for Substituted Service in Ontario.

New Rules for Substituted Service Motions

Courts don’t have the time, man power, or money to keep up. They are constantly understaffed and backlogged. They cannot keep their heads above water.

There are steps which the Rules require parties follow to push a case through the system. One of the most basic procedures is serving the Statement of Claim on the Defendant.

Often times, a Defendant’s address changes. Perhaps they have moved. Perhaps they are avoiding/evading service. Perhaps they have fled the province or the country.

What happens when a Plaintiff cannot serve the Statement of Claim on the Defendant because they’ve vanished? Does the case end right there? No, it doesn’t. There is a mechanism is the Rules of Civil Procedure which has contemplated such an occurrence; because it happens more than you would think.

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There are a lot of things which non personal injury lawyers don’t know about car accident cases in Ontario. Heck, even some lawyers who don’t practice in the area of car accident cases don’t even know. These are dirty little secrets which aren’t advertised with much fanfare. But, if you do a bit of research, you can learn pick up a few pearls of knowledge here and there.

Every year around this time, the Financial Services Regulatory Authority of Ontario (FSRA) makes a very under the radar announcement, if you can really call it an announcement at all. Basically, they update a page on their website to post new deductible rates for the upcoming new year.

These deductible rates are important for car accident cases. The deductible rates have nothing to do with the physical damage to your vehicle. Nor, do you get to set the deductible by paying a higher insurance premium. This seems very odd, because under all car insurance policies, and under the vast majority of insurance policies, the consumer can pay more premiums to reduce a deductible and potentially reduce it to zero.

But not for pain and suffering claims in car accident cases. The deductible is pre-determined and uniform across the board. It cannot be eliminated, not matter how much you pay in car insurance premiums. The consumer is completely powerless, and at the will of the government along with the insurance industry.

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The Holiday Season is upon us. And with the Holidays comes a lot of celebration. Office holiday parties. Family holiday parties. Friend holiday parties. Sporting team holiday parties. You name it. People will get together and party.

And with parties comes responsibility. Whether or not you’re a host, or a guest, you have a job to do.

With this edition of the Toronto Injury Lawyer Blog, we will review some dos and don’ts for the holiday party season.

Don’t Overconsume 

Will there be alcohol at your holiday party? Probably. Will there be cannabis? Perhaps. Will there be edible cannabis products? You never know. Either way; whatever it is that you consume, do it responsibly and don’t over do it. This is not only to keep you and others safe. It also applies to those office parties or other social gathering when you can end up saying (or doing) something that you will regret on account of having too much to smoke or drink. Just because something is legal (alcohol or cannabis) doesn’t mean that you or your guests are entitled to consume it until they can’t function. In some cases, the host can be held responsible for the over consumption of their guests. This concept is known as social host liability. While social host liability is not easy to prove, it exists and can be established in certain situations. In fact, the Supreme Court of Canada examined the concept of social host liability in a case called Childs v. Desmoreaux [2006] 1 S.C.R. 643, 2006. It’s an interesting read for all those interested in the concept of the responsibilities of a social host for a party involving alcohol, along with the concept of social host liability.

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The Canada Post strike is in week 4. The Federal Government has refused to intervene. This is rather odd given that they choose to intervene in some labour disputes, but not others. How they pick the ones to get involved with, and the ones to leave alone seems to be completely arbitrary, or out of touch, of the lives of Canadians.

The Canada Post strike isn’t just impacting your holiday packages and cards. It also has an impact on your personal injury case. How so?

Let’s share with you a sneak peak of how Canada Post and overall mail delivery is important to a personal injury law firm, and your personal injury case.

Not Everything Arrives via Fax, Email, Courier, or Bank Transfer

Lawyers use regular mail!!! Lawyers use regular mail a lot! So do doctors, accountants and other small, medium and large sized businesses. But the thing about lawyers is that we write letters. (Dave Letterman Mailbag Theme song here) We write letters. We write lots and lots of letters…LETTERS!!!! Sometimes the enclosures to these letters are large volumes of documents. Other times they are encrypted data keys. In any event, lawyers use Canada Post to get information out, or messages out in order to move the case forward. Because of the Canada Post strike, lawyers are resorting to using more faxes, emails and couriers. But the problem is….

Not everyone uses faxes and emails

I know that statement sounds crazy, but please hear me out. Many government agencies and offices still operate in the stone age. They don’t, or won’t, transmit documents via fax or email. The reason which some give is that it’s not safe or secure. But, I suspect that it’s because they don’t have the capacity or capability to do so. Lots of offices may not have large capacity scanners to get the job done. It’s easier to photocopy the records and send them out in the mail. OHIP Summaries still arrive from the Ministry of Health by regular mail. Police Reports and Officer’s notes and witness statements still arrive from many police forces by regular mail. Clinical notes and records from many hospitals (not all, but most), still arrive by regular mail. Clinical notes and records from many doctors offices still arrive by regular mail. To make matters even more complicated, in order to get these records, payment is required. Payment, in the overwhelming majority of cases is made by cheque, which arrives by regular mail. Do you really think that you can get a government clerk on the phone to make a Visa payment? Do you really think that all government offices and administrators have the systems and capability to receive payments online across multiple platforms? The reality is that the majority of government and civil service offices are set up to receive payment either in person (credit, debit), or via cheque received by regular mail. Their offices internally are also set up to produce documents and correspondence by way of regular mail. Still to this day, hospital records, medical records, police reports, officer’s notes, witness statements, tax returns, employment files: they are all mostly sent out by way of regular mail from source.

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The fine print matters. It especially matters in long term disability claims.

The overwhelming majority of personal injury cases are tort cases. They are not predicated on a contract.

Car Accident Cases

Dog Bite Cases

Slip and Fall Cases

Assault Cases

Product Liability Cases

All of these claims are based on negligence in tort law. They are not based on a contract.

Long Term Disability cases are very different because they are entirely based on contracts. That means that the wording of the long term disability policy (the contract) is very important to whether or not the case succeeds, or fails. One word in the contract can change the entire case.

A Plaintiff can be very seriously injured. But, if the wording of the long term disability contract is not in their favour, they might not win the case.

It’s important for a Plaintiff to know that the wording of every long term disability policy is different. This is significant because just because somebody you know won their long term disability case does not mean that you will win your case as well. There are so many different variables which go in to winning (or losing) a long term disability case. The wording of the long term disability policy is a great place to start.

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It’s snow tire time. We’ve had some pretty mild weather thus far in Ontario, but it’s getting to be that time of year. Don’t believe me?

Today the Weather Network announced that Ontario would get hit with its first blast of winter. They are predicting up to 60cm of snow in some regions on account of lake effect snow. They are warning drivers this will be the first hit of winter, with some hazardous winter driving conditions.

A few things to note:

  • The people/networks which predict the weather are often wrong. These are only weather predictions so they aren’t going to be correct 100% of the time. Catchy headlines are used to engage readers (pay per click). Reporting on the weather that everything is fine and there is nothing to worry about won’t engage as many eyeballs. But predicting doom and gloom entices more people to click and read. So take these predictions with a grain of salt.
  • Having said that about false weather predictions; we’re certainly due for a meaningful snowfall in Ontario. We are in the last week of November, and we haven’t really felt, or seen the winter. That means it wouldn’t surprise me if we got hit with a winter storm of some proportion. How big, or small that storm will be is anyone’s guess.
  • The first snowfall of the winter makes for erratic driving! It seems that people forget how to drive when it snows, or they’ve never driven in snowy conditions before. Both statements can be true. Not everyone on our roads knows what it’s like to drive, or how to drive, when it snows. Snow, sleet, slush and ice create unique driving conditions which are only seen in winter weather countries like Canada.
  • We also see the procrastination of putting on snow tires having an effect. Many people don’t think of putting on snow tires until it’s snowed a few times and their vehicles are sliding around the roads like sleds. They know that they have snow tires, and that they need them; but they wait until it’s too late to get them installed. That’s quite common. It’s recommended that snow tires be changed over when temperatures consistently fall below 7 degrees; even if it isn’t snowing. Snow tires are formulated to grip better when it’s cold.  With global warming, this date is going to be more erratic, and get pushed back later and later.
  • On that note, here is a free marketing opportunity for any tire brand (Michelin, Cooper, Bridgestone etc.) or the tire industry. National Snow Tire Changeover Day. This idea would be good to heightening awareness about snow tires, and giving people a reminder to get them installed. It may also increase sales of snow tires. The companies can also provide incentives to purchasing and installing tires on National Snow Tire Changeover Day. The problem you might encounter is that the day might change depending on the weather. Hot temperatures would delay it, while fast cold snaps might move it forward. The National Date might also vary depending on where you live. You would have different temperatures and climates depending on the province (or area within a province) where you live. In any event, I’m sure that the marketing executives at the tire companies can figure things out. That’s why they’re paid the big bucks.

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This week, the Provincial Government of Alberta will announce that people will no longer be able to sue for personal injuries arising from a car accident. I hate seeing when governments take away the rights of innocent people to best suit their corporate overlords.

This dramatic change to the law means innocent accident victims won’t be able to sue for personal injuries against:

  • Drunk Drivers
  • Distracted Drivers
  • Drugged Up Drivers
  • Incapacitated Drivers
  • Careless Drivers
  • Drivers too high to operate a vehicle
  • Driving driving illegally without a license
  • Grossly negligent drivers
  • Drag Racers
  • Stunt Drivers
  • Criminals who have stolen a car and who operate their vehicle like it’s Grand Theft Auto causing a serious collision and life threatening injuries. See the serious collision which took place on November 18, 2024 at Bathurst and Wilson in North York where a driver on bail operating a stolen vehicle hit a TTC Bus, injuring 9 innocent individuals.
  • Defendants who drive their vehicles so poorly, and so negligently, that they cause death to innocent people who are simply in the wrong place, at the wrong time
  • Anyone else who acts a fool behind then wheel and causes injuries to another innocent person

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Having practiced personal injury law for over 20 years, I can tell you that fraud for personal injury law claims does exist. But, it does not exist to the extent the insurance industry wants you to believe. The numbers for what you and I believe to be fraud are lower because what the insurance industry accounts as fraud is more all encompassing that you would suspect in order to inflate those fraud statistics in order to justify rate hikes. Some classic examples of fraud for personal injury cases include things that would come to mind when you think of personal injury insurance fraud.

Staged Car Accidents

Fake, or staged car accidents, in order to recover money and benefits in personal injury cases are a real thing. But, fraudsters are really playing with fire with these sort of cases. After a car accident happens, people call the police. The police investigate car accidents. And if the police don’t come to the scene of a car accident, then it’s expected that the parties which are involved in the car accident report the collision to the accident self reporting collision centre. It’s not wise for a fraudster to voluntarily call the police after their scheme, but this is exactly what is supposed to happen. The police can sometimes detect the fraud at first site. Insurance companies are also very good at detecting staged car accidents. They have their own investigators to look in to claims which don’t pass the sniff test so to say. This is not to suggest that every car accident gets investigated by an internal fraud team at an insurance company. But, when things don’t line up, the insurers can sense it and will then do what they need to do in order to look in to the suspected fraud.

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