Articles Posted in Uncategorized

Long Term Disability cases may sound simple and straight forward. But they aren’t.

When claimants think of what a Court can award them in a long term disability lawsuit, their expectations don’t meet the reality of what the law can do.

For example, claimants believe that a Judge can award them any amount for damages under the sun in the event that their long term disability benefits have been wrongly denied, or terminated. Claimants may pick a number out of their head which sounds large and reasonable in their eyes to compensate them for their losses. But this is simply not how long term disability cases; nor is it how Courts quantify losses for long term disability cases.

There is a lot of math which goes behind the loss quantification in long term disability cases. This means that a Judge will not pick a number out of his/her pocket to compensate a Plaintiff. This is different than a car accident case where a Court has to quantify a Plaintiff’s general damages claim (a claim for pain and suffering). In those tort cases, there is often a range of damages which is presented by the Plaintiff personal injury lawyer; along with a range of damages presented by the lawyer for the insurance company defending the claim. You will find that the range of damages presented by the Plaintiff personal injury lawyer will be higher than the range of damages presented by the lawyer for the defendant insurance company. The Judge will then make an assessment of those damages based on the law presented and the facts of the case, and decide on a figure which s/he believes best fits the case they are deciding.

This sort of exercise does not really happen in a long term disability case.

Why is that?

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In Ontario, we have a very complicated system of no fault car insurance. Regardless of fault, accident victims are required to claim accident benefits from their own insurance company. That means that the other driver could have been 100% at fault, yet still, the injured party must first make a claim for accident benefits from his/her own car insurer. Weird right!?!?

Accident benefits are NOT damages for pain and suffering. They are benefits mainly for health care items which are not covered by the OHIP System. Things like physiotherapy, massage, occupational therapy, psychological counselling, social work, PSW services, counselling, CBT, neuropsychological examinations, chiropractic care etc. If accident benefits don’t get paid, then the injured accident victim will need to pay for these benefits out of his or her own pocket. If they don’t pay for the treatment, then they won’t receive the treatment because it’s not free. The same goes for assistive devices.

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Jurisdiction is a term that we hear a lot in personal injury cases, but what does it really mean?

Jurisdiction is the power of a Court to hear a case, and/or enforce the law. Jurisdiction also means “the extent of a power to make, or to enforce law, judgment or legal decision“.

Which Court or Power has jurisdiction depends on a lot of factors. But, for the purpose of the Toronto Injury Lawyer Blog, we will focus on jurisdiction in personal injury cases.

As a rule of thumb, where the accident took place is a very good starting point for determining which Court has jurisdiction.

For example: let’s say that you have a slip and fall in Saskatchewan while on a trip to visit a family member. You call a lawyer based out of Toronto Ontario to see if they can handle your out of province claim. All of your treating doctors and specialists are based out of Toronto. You live in Toronto. So, based on that logic, you believe that your case should be commenced and heard in Toronto, Ontario.

But the law says that if you fell in Saskatchewan, your case will need to be commenced and started in Saskatchewan.

The Rules of Civil Procedure are a pretty good starting point for determining where to commence a claim; meaning which Court will have “jurisdiction” over the case itself.

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I’m not a big hockey fan.

But, I love watching the Toronto Maple Leafs in the Stanley Cup Playoffs.

I want them to win.

But I really don’t care if they lose. I certainly don’t live and die by their wins, or by their losses. While I am somewhat indifferent to hockey, it’s always nice to see a winner in Toronto and to see frenzied Leafs fans. It’s nice to get caught up in the excitement.

Yet, part of me smiles thinking that the Toronto Maple Leafs haven’t won a Stanley Cup since 1967; when the NHL had just 6 teams! Please don’t characterize me as a Toronto Maple Leaf hater. I’m not. As I said, I want them to win. I’m just pointing out an objective truth.

All of the Toronto Maple Leafs’ Stanley Cup victories came at a time where they only had to be better than 5 other teams! Each year they had a 1 in 6 chance of winning at Stanley Cup. Just by fielding a team, no matter how good or how bad the team; they had a 16.67% chance of winning the Stanley Cup! Those championship odds are remarkable in North American professional sports.

To paint those pre 1967 Stanley Cup victories as remarkable achievements and a sacred part of the franchise’s hockey history is kinda ridiculous. It serves to demonstrate how futile the franchise has been since 1967. It’s like gloating about beating 5 of your cousins in a potato sack race at the annual family picnic.  Ever since the league expanded to beyond 6 teams, the Toronto Maple Leafs have never won a Stanley Cup. Take that in and soak it up.

Does the franchise care about winning; or do they care about something else (money). The two are not mutually exclusive, but I would argue that the focus since 1967 has been largely on profits rather than the on ice product. There was a large period of time (the Ballard years) where winning was an after thought. To their credit, the modern Toronto Maple Leafs want to win, but just don’t know how.

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The case summary below, involves a car accident in Ontario. It’s not out of the ordinary. This is how many car accident cases across the province play out. The defendant insurer often insists that these cases proceed with a jury, instead of by way of Judge alone.

I think the most unfortunate part of this decision is the toll these jury cases take on Ontario’s already over burdened judicial system. It appears that the Judge hearing this case felt the same way too, given that she made a point to comment specifically on the impact which jury trials have on our legal system:

“The strategy of offering plaintiffs nothing and forcing the matter to a jury trial is highly wasteful of court and public resources. This matter occupied a full three weeks of court time. It also drew on the time of eight jury members (six jurors and two alternate jurors) who could not work during their service. The cost to the public is clearly not something that factored into the Defendant’s calculations when deciding how to conduct this litigation. I find that this was unreasonable.

This is a strong reason as to why civil jury trials ought to be eliminated. There is no doubt that they take time away and resources away from civil productivity in order to litigate private disputes which have no significant or meaningful bearing on the public good. There is no compelling reason as to why this private dispute could not be tried by way of Judge alone. This would save money, time, desperately needed Court resources, and would likely foster settlement knowing that judges see right through the smoke and mirrors presented by many litigants in these sort of cases. Not to mention that they are also familiar with the deductible (the secret credit to insurers of $46,053.20 which lawyers cannot mention at trial). Jury trials in civil actions, particularly car accident cases are a selfish use of public resources for a non public dispute.

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A lot of people talk about what it’s like to be a personal injury lawyer, and how the courts work for hearing personal injury cases.

But few explore what it’s like to be a client in a personal injury case; and what to expect, and how to best go through the process. The purpose of today’s instalment of the Toronto Injury Lawyer Blog is to exactly that. It’s our hope that these tips will give you some best practices to make the journey as smooth as possible; and to ensure a positive outcome for your personal injury case.

Tip #1: Lower your expectations. This tip applies both for the duration of your case, and the value of your case. The cold, hard truth is that your case, much like all personal injury cases across Ontario take a very long time to complete. The wheels of justice turn slowly, and personal injury cases are no exception. Insurance companies don’t make a profit throwing money at all cases which cross their desks. They will grind you out and wait you out. But it’s not just insurers which contribute to delays. The Courts aren’t any help either when it comes to personal injury cases. The Courts are under funded, and over worked. They have very limited resources, for a volume of cases which gets bigger and bigger year after year. The Courts are expected to do more work, with less resources. Those limited resources are shifted away from the civil justice system (where personal injury cases are heard), and have been transferred to criminal courts. This is a recipe for disaster when it comes to having a personal injury case heard in a reasonable period of time.

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Long Term Disability cases are unique in the world of personal injury law. For starters, they are contract cases (the policy of insurance). Every other case in the world of personal injury law is built on tort law. A dog bite, a slip and fall, a car accident case, an assault case, a product liability case. None of these cases are built on contracts. They are built on tort law. Yet, long term disability cases are predicated on the existence of a policy of insurance, and the wording contained therein.

The wording of those long term disability contracts isn’t written by your personal injury lawyer. Nor is it written by the claimant.

Rather, the wording contained in those long term disability policies is prepared by the long term disability companies themselves.

You would be naive to think that they are worded in such a way as to favour the long term disability claimant, as oppose to the long term disability insurer. Quite the contrary. Every word contained in those policies is there for a reason. The words are there to limit the insurer’s exposure and to maximize their recovery. The policies are drafted in such a way as to offer the least amount of money by way of benefits; while recovering the most amount in premiums.

That makes business sense. If you were running a long term disability insurance company, you would want to maximize your returns as well. A mantra of take in more than what you payout in claims leads to profits, which sits at the core to the existence of any for profit business. Insurance companies are in the business of making money. They are not charities.

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For over a decade I have been blogging about personal injury law in Ontario, and across Canada.

Most of the time, I get into the nitty gritty about personal injury law.

Other times, but not very often, I comment about things completely unrelated to personal injury law, but those ideas are on my mind and I want to put my thoughts on wax. This is one of those times.

I have a young boy who is really in to soccer. He plays on a soccer team. He enjoyed watching the World Cup. He loves watching highlights of goals.  When is isn’t playing soccer, he’s kicking a ball around the house.

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Nobody is perfect. People make mistakes. Sometimes they are honest mistakes. Other times, they are avoidable. We certainly don’t expect regulated professionals to make mistakes, but they do. It happens.

But, when a pharmacist makes an error, it can be deadly or result in very serious health consequences.

When a pharmacist makes an error in the dispensing of medication, this is called a dispensing error case. And our law firm, Goldfinger Injury Lawyers has handled countless dispensing error cases throughout the years. Here are some common types of dispensing error cases we have seen.

The Right Medication, but the Wrong Dosage

In these cases, the pharmacists gets the medication correct, but dispenses the incorrect dosage. Too little of the medication often times doesn’t cause much harm (but it can). Take the example of a seizure medication or an anti-nausea medication. Too little won’t have the desired effect. Too much of a certain medication can have deadly consequences. Most common in these cases are the dispensing of methadone. A doctor may prescible a 10mg dosage, but the pharmacist accidentally dispenses 100mg of methadone. Too much methadone can result in seizures, stopping to breath, muscle damage and other issues. Naloxone is a medication which quickly reverses the effect of an opioid like methadone. If you don’t get a Naloxone injection quickly after the overdose, or you aren’t taken to hospital quickly, the overdose can have life long consequences.

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