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On April 1st, the Ministry of the Attorney General released its Civil Rules Review Consultation Paper. It’s 122 pages in length, making it either the most elaborate April Fools prank on litigators I’ve ever seen; or something poorly thought out on many levels, including its release date.

If any of these changes are adopted, they are game changes in a bad way. It’s clear to me that the people behind these proposed changes aren’t the ones on the front lines of personal injury litigation; or aren’t listening to those who work on the front lines who see cases day in, day out.

These changes, if adopted will present significant barriers to access to justice for the general public. They will also drive litigation further towards AI in a bad way, thereby taking the human element out of litigation. Which is crazy to think given that the ultimate end of a case is trial, which is entirely based on testimony from people (not AI machines or algorithms). The proposals place a lot of emphasis on pre-litigation forms; which creates unnecessary make work projects for litigants. These are artificial barriers to litigating matters which should not exist. They are being proposed simply because the Courts can’t handle the volume of cases. These forms are a backdoor way to preventing litigants to advance their claims.

Here’s something I liked about the proposed rule changes: it makes it easier for lawyers to get off the record. Instead of wasting the Court’s time with motions to get off the record, the Working Group proposes that a lawyer should be entitled to requisition an order to be removed as counsel of record when the following preconditions (the “Preconditions”) have been met: (i) there are no deadlines (agreed upon or imposed by the Court or the Rules) or Court attendances within the next 90 days; (ii) there is no trial or dispositive hearing scheduled to be heard within the next 180 days; and (iii) the client is not under a disability. The requisition will need to be made on notice to the client and opposing parties. The lawyer seeking to get off the record will need to certify that the Preconditions have been met.  That’s great! Saves time, money and Court resources. This change ought to have been adopted 20+ years ago. The crazy thing is that a lawyer can get appointed as easily as filing a Notice of Appointment, or filing a Statement of Claim or Statement of Defence, or Notice of Change of Lawyer. But, if a lawyer has to get off the record, there’s still a whole song and dance that needs to go with it. The proposal is that the song and dance eliminated with the filing of a simple form (Can you hear the AI Bots grinning!?!)

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Doug Ford’s ruling Conservative Government announced a provincial election to take place on February 27, 2025. Mr. Ford called the election early, because that’s one of the tactical advantages which you have as the ruling party. You get to call the election when it best suits your timeline; and to catch the other parties off guard.

You might not think that Ontario Provincial Elections, or Provincial Politics have anything to do with personal injury cases. But they do! The Ontario Government has ALL of the power with respect to the rules and regulations which get applied to not only personal injury cases, but how the Courts and Tribunals function which have a significant impact on all aspects of a personal injury case.

Let’s take a look at a few examples at how provincial politics, and provincial governments have impacted personal injury cases:

April 1, 2016 The Elimination of the Financial Services Commission of Ontario and the Introduction of the License Appeals Tribunal

The Ontario Provincial Government completely eliminated FSCO, and replaced it with the LAT. In doing so, the completely eliminated all FSCO mediations and arbitrations, along with taking away an innocent accident victim’s right to sue his/her own insurer in Court. They effectively eliminated the rights of all Ontario driver’s and accident victims to sue over an accident benefit claim denial/dispute. They also transferred these cases from knowledgeable arbitrators to inexperienced and “new” adjudicators at the LAT who were not familiar with how car accident cases work. They also eliminated the ability to recover legal costs or disbursements against you own insurer in a proceeding, thereby increasing the power imbalance between an innocent accident victim and a sophisticated, deep pocketed insurance company. They say that in civil litigation, the party with the deepest pockets tends to win. The provincial government certainly aided insurers in making that fight even more imbalanced with the elimination of costs for these car accident cases.

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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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