Articles Posted in Personal Injury Lawyer

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I’ve been watching a lot of youth soccer games of late. My son plays a lot of soccer.

Given my son’s young age, more experienced referees are not assigned to officiate his games. His referees tend to be young and inexperienced. They are looking at making a few extra bucks while contributing to a game they really enjoy.

The problem is, that the games tend to get out of hand because the young, inexperienced referees lack the experience, poise and confidence to control the game.

The game got so bad last week a parent from the opposing team walked onto the pitch during a water break to have a conversation with the referee. While I was not privy to their conversation, I imagine that they weren’t discussing the weather or making dinner plans.

In this week’s game, two players got shoved/punched in the face without repercussion to the offending player.

In a previous game, the teams were playing by different sports entirely. One team was playing beautiful futbol, while the other team was playing barbaric football.

When a player breaks the rules of the game, the referee is there to enforce those rules. Much like a police officer enforcing the rules of the road. A referee can penalize a player by calling a foul, or handing out a yellow card, or even a red card. A police officer can do the exact same by having a stern talk with a motorist who crosses the line, or even handing out a ticket or charging them with an offence.

When bad things happen without repercussion, they will not only continue to happen, but those actions will get worse and hurt people.

Nobody wants to see anyone hurt or injured in a youth soccer game. We all want the kids to have fun, and to develop. But on the path to fun and development in a competitive setting, there needs to be proper enforcement of the rules. There cannot be no consequences for negligence or intentional acts causing harm. Otherwise, people get hurt and may take things into their own hands which further escalates matters. Which got me to thinking about personal injury law.

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Sometimes personal injury cases are investigated by the police.

Sometimes, criminal, or quasi criminal charges will be laid on the Defendant (the at fault party).

What does this mean for your personal injury case, and how will your personal injury case be impacted by these charges and the ensuing police investigation?

Good questions!

This edition of the Toronto Injury Lawyer Blog will attempt to answer those questions, and more!

Criminal and quasi criminal charges happen in all types of personal injury cases.

In drunk driving cases, people are charged with the criminal offense of impaired driving.

In distracted driving cases, or for other driving offenses, people are charged under the Highway Traffic Act.

In sexual assault cases, the offending party can be charged under the Criminal Code as well.

When charges are laid, it triggers a police investigation, regardless of the severity of those charges.

The police have strong investigatory powers in order to complete their investigation into the incident. They can issue search warrants to search property. They can seize all sorts of records (medical, cell phone, business etc.). They can summons witnesses, who tend to cooperate more with police than they would with a personal injury lawyer for a civil case. They can call people in to the police station to give a statement, or take a statement (recorded or videotaped) from the parties in order to get a better idea of what took place.

The goal of the police in their investigation is to get down to the truth of what happened. The evidence which the police gather will assist the Court in determining whether or not the accused is guilty, or not guilty. If there isn’t enough evidence there to support the charges, or there isn’t a likely prospect of conviction, the charges will be dropped (in theory).

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Law shows on television make the litigation process look so easy! Why can’t my personal injury case work like that?

There’s generally a formula for legal dramas on television. That formula has worked for a very long time for shows like Law and Order.

Within the first 5-7 minutes (or earlier) there is a crime or some sort of problem which requires police intervention. The next 8-15 minutes, that crime is investigated by the police at the scene of the crime and research is done at the police station. Witnesses are interviewed, different characters are introduced. The viewers are led to believe one thing, when the show takes a sharp turn and points the litigation finger at a party you least expected to have a motive to commit the crime. The police catch the “bad guy“, and the show comes to a satisfying close. All of this is accomplished in the matter of a short half hour show, less time allotted for commercials (so even less content is required for the producers of the show).

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Lots of clients want to know about what the last steps are in a personal injury case when the parties reach an agreement. What happens upon settlement? Does the money magically appear in my bank account? When will I receive my settlement funds? Are the settlement funds taxable? Do I have to go to Court to close my file? Is there any other work required of me for my case once the case has settled?

These are all great questions.

With this edition of the Toronto Injury Lawyer Blog, we hope to answer those “late in the case” questions, and more.

Let’s pretend for a moment that after many years of hard fought litigation; and after many arguments between the lawyers on both sides that everyone seems to agree on a deal in order to get the case settled.

The agreement takes place outside of Court, perhaps moments before trial, or perhaps at mediation or in an exchange of emails between the parties.

What will then take place is an exchange of documents between the lawyers which provide clear terms with respect to the terms of the settlement.

Those documents can take form in something called “Minutes of Settlement“. Or, they can take place through a simple letter or email detailing what has been agreed upon. The purpose of this is to confirm the terms of the deal, so that there are no misunderstandings between the parties.

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Yesterday, the Toronto Raptors traded 2x All NBA, 2 x NBA All-Star, 1 x NBA Champion Pascal Siakam to the Pacers for 3 first round draft picks and some players who act as salary filler. Two of the 1st round picks will be late in the first round of the 2024 draft. The 2024 draft is widely viewed a poor draft compared to other years. The third pick will be the Pacer’s 1st round pick in 2026. And, barring injury or a dramatic setback, that pick will be a late round pick as well given that the Pacers are projected to do well.

The haul back for the Raptors is largely underwhelming for a player as talented, dedicated and as accomplished as Pascal Siakam. He is a huge success story for the Toronto Raptor’s scouting and development team. For many Raptor fans, this trade feels like getting 50 cents on a very shinny dollar. There is no way that then Toronto Raptors would attract such a talent still in his prime through free agency. The notion that we are trading him away for little is hard to digest.

But why would the Raptors consider trading away such a talent in the first place?

Good question.

Pascal’s contract with the Raptors is set to expire at the end of this season. The Raptors have tried to extend the contract, without success. Pascal is seeking a “max contract“, and the Raptors are not prepared to pay him those max dollars. So, instead of letting Pascal’s contract expire and receive nothing in exchange, they are trading him away. It’s better than letting him walk away for nothing.

Many NBA teams were not prepared to offer full value for Pascal given that he was under an expiring contract. There was no guarantee that he would re-sign with his new team. The market dictated that they would not pay full price for an expiring asset. This is completely fair, and smart.

But, there had to be a better way. There had to be a way such that the Raptors could get full value for their asset in trading Pascal Siakam. There must have been a sweet spot to pull the trigger on the deal such that the Raptors secured the best possible return for one of the franchise’s best players.

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Over the past decade, personal injury lawyers have seen an explosion of a new insurance product offered to their law firms and to their personal injury clients. It’s called Adverse Cost Insurance or After-The Event Insurance.

How does it work and what does it do?

Adverse Cost Insurance or After-The Event Insurance serves to protect a Plaintiff from an adverse cost award following an unsuccessful trial.  At trial, if a party loses, the Judge will generally order that the losing party pay the winning party’s legal fees. Those legal fees, especially after a trial can be very high. This insurance product is there to cover all, or part, of those legal fees which the losing party is ordered to pay by the Judge.

What are the benefits to this insurance?

In theory, the insurance will pay for part, or all of the legal costs if you’re unable to do so on your own.

Let’s imagine a scenario whereby a Plaintiff in a car accident case loses his/her case. After the lengthy trial, the Judge dismisses the Plaintiff’s case, and orders that the Plaintiff pay the Defendant’s legal costs in the amount of $500,000. This is entirely possible. In fact, it recently happened in the case of Belton v. Spencer. In that case, Belton sued Spencer for damages as against Spencer as a result of an accident that he sustained while walking Spencer’s horse .

Following a trial lasting over eight weeks, Belton’s action was dismissed as against Spencer. The Judge ordered that the Plaintiff Belton to pay $350,000 in legal fees plus HST, and $74,472.52 in disbursements, for a total of $469,972.52 to the Defendant Spencer. Ouch!

Spencer’s law firm had an adverse costs insurance policy that to respond to the trial outcome, by paying for the law firm’s disbursements and/or the applicants’ trial costs owed by Belton to Spencer, up to the Policy limits of $100,000. You can read more about the decision here, and about how adverse cost insurance works in this case.

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Being involved in litigation is miserable. It’s true!

Do you think it’s “fun” to be surrounded by lawyers? Is it fun to be compelled to attend at an Examination for Discovery to be grilled by lawyers you’ve never met? Is it “fun” going to Court? Do you consider it a good time having to be examined by a doctor who is hired by an insurance company to defeat your case or to deny your benefits?

Courthouses and court reporters offices are not meant to be “fun”. Litigation is not designed to be “fun” either.

Taking a step back and putting yourself in the shoes of a personal injury client; the litigation process can be quite aggravating and frustrating.

It’s slow.

It’s very time consuming.

It’s expensive.

The laws don’t make sense.

The laws provide more protections to the at fault Defendant than they do to the injured Plaintiff!

This doesn’t mean that you shouldn’t pursue your case. It means that it’s important for a Plaintiff litigant to have the right mindset as their case goes through litigation. Having the wrong frame of mind will cause undue stress, hardship and anxiety. But all of that can be put at ease if you approach your case with the right frame of mind.

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Facts don’t care about your feelings.

Neither does the law.

A Judge’s job is to assess and judge your case. There will be a winner, and there will be a loser. Sometimes, after legal costs and the time invested into a case are taken into consideration, all of the parties will be losers.

Cases are won and lost based on evidence. Contrary to popular belief, cases are not won based on your feelings or emotions. The law is hard on feelings and emotions. The cold, hard, truth which Plaintiffs need to hear is that Courts don’t care much for emotions (even though they say that the will listen); especially if the evidence isn’t there to support the case. Emotions can certainly bolster a case; but they won’t tilt the scales of justice without proper evidence to support the claim.

Evidence are the meat and potatoes of the case. Emotions, and feelings are the seasoning. You can certainly feast on meat and potatoes, but you cannot feast on seasoning alone.

It’s very difficult for an injured accident victim to separate their emotions, from the evidence at hand. This is understandably. Accident victims (for the most part) aren’t lawyers, and have never stepped inside of a Courtroom. They have no idea how the legal system works. Some believe that the party which yells the loudest; or who shows the most emotion before a Judge and Jury having not taking into consideration the evidence required for a successful personal injury case will be the victor. This could not be further from the truth.

In order to win a personal injury case, a Plaintiff must establish three factors:

  1. Liability
  2. Damages
  3. Causation

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Injured accident victims in personal injury cases will not get the benefit of the doubt.

A big part of that is because how our legal system works.

At law, an injured Plaintiff is required to establish their case to a Judge and Jury. The Plaintiff is required to bring evidence to the Court to prove that their allegations are in fact true. Without the evidence, the allegations are just that. Mere statements of demand, without any facts or evidence to back them up.

At trial, every Plaintiff will get up on the stand and suggest that they are in tremendous pain; and are enduring tremendous suffering.

But those statements aren’t enough. Without the evidence to back them up, they are just that. Self serving statements which will carry little weight at trial.

That’s not to say that a Judge won’t believe you; or won’t empathize with you. But a Judge will need more to make his/her ruling and award a Plaintiff the damages which s/he is seeking.

Explained another way: A Plaintiff cannot demand $1,000,000 and expect the Judge to award him/her $1,000,000 if there is no evidence to substantiate the claim.

These concepts are very important.

Why?

In my over 20+ years of practicing personal injury law, you would be amazed by the number of Plaintiffs who expect the law to work differently. Expectation of how are legal system works, and of how damages are proven does not mesh with the reality of how our system works. There is an expectation from many people that simply because they have been involved in a serious accident means that they will automatically be compensated for millions of dollars, without question or reservation.

That could not be further from the truth.

The harsh reality is that the legal system in Ontario is very difficult on Plaintiffs in personal injury cases. In fact, the way that the legal system works is that defendant insurers are afforded more protections than the injured Plaintiffs themselves. This seems contradictory given that the Plaintiff is the injured party and the Defendant caused injury to the Plaintiff. So why should more protections be afforded to an at fault Defendant as oppose to an injured, innocent accident victim who was simply in the wrong place, at the wrong time. This inequality of rights is magnified in car accident cases in Ontario where defendants are entitled to a secret credit of over $40,000 per claim regardless of fault (statutory deductible), and also entitled to the benefits of a threshold defence for the Plaintiff’s injuries (again, regardless of fault). This means that a Defendant could have been drunk driving, texting, and ran a red light; yet still; they will have the benefit of two very large statutory defences in order to escape a civil damages verdict at trial. Seems terribly wrong to many, but those are the cards which we have all been dealt in Ontario.

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No personal injury case is ever the same.

Some may be similar; or may share similar characteristics. But, no two personal injury cases are never the same.

There are so many variables which can change a personal injury case. These variables are seemingly infinite. Here are a few which personal injury lawyers and Courts have to consider:

  • The age of the Plaintiff. This impacts his/her future income calculation, future care, and life expectancy
  • The way the accident happened
  • The policy limits relating to the accident
  • The availability of collateral benefits to a Plaintiff
  • How much the Plaintiff was earning (or not), in the years before the accident
  • The Plaintiff’s pre-accident and post accident health, along with what they did (or didn’t do) to get better
  • How the Plaintiff, and/or Defendant presented at Examination for Discovery
  • If any surveillance has been taken of the Plaintiff; and if so; what that surveillance showed, or didn’t show
  • The status of a Plaintiff’s accident benefit case (where available)
  • What the Defence Medical Reports say vs. what the Plaintiff’s expert reports say
  • The information contained in the clinical notes and records
  • Is the family doctor supportive (or not) to the Plaintiff’s case
  • Are there any causation issues with respect to the accident related injuries
  • Are the injuries subjective or objective. If the injuries are subjective, is the Plaintiff credible, believable and/or likeable
  • Will the case be proceeding by way of Judge alone, or in front of a Jury
  • Special considerations when it comes to liability (i.e. suing a government, municipality vs. suing a private citizen)
  • In the case of a motor vehicle accident; are the threshold and deductible live issues for the case

And the list goes on and on.

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