Articles Posted in Uncategorized

Life is hard. Don’t kid yourself. Everyone has their own unique set of challenges and obstacles which they have to overcome.

Some are able to cope. Some aren’t. That’s just the way it goes.

In the past decade, there has been a concerted effort on the part of politicians, courts, employers, athletes and social media influences to recognize that mental health is a real issue. It’s not some made up thing in one’s head. It’s very real and can have a devastating impact on a person’s life.

COVID lockdowns have managed to put fuel on that mental health fire. If you were struggling with mental health issues before COVID lockdowns, one can only imagine how much more difficult things are dealing in a world locked down.

No more in person therapy. Now you need to have video counselling which is effective, but not likely as effective as the real thing in person.

The same concept applies to group therapy or group counselling sessions. That nice feeling of relief seeing your group and socializing (which is healthy) simply isn’t the same over ZOOM or over the phone.

Imagine needing to get medication from your pharmacy. Instead of a normal trip, it’s now like an army tactical mission trying to figure out the best time to go when it’s least busy, the route which will expose you to the fewest people, getting all of your gear in order (mask, gloves, face shield).

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Many lawyers are boasting from the peaks of the tallest mountains of their ability to work remotely. It’s almost a way to claim intellectual superiority over their peers.

If you that lawyer does solicitors’s work which doesn’t require any litigation or the co-operation of the Court or an Administrative Tribunal, the transition from normalcy to COVID lockdown may be seamless.

If you are a litigation lawyer where there Courts are necessary to adjudicate a dispute; then it’s a completely different story.

There are many unique difficulties which personal injury lawyers across the board are facing. Let me take you behind the scenes so that you can have a better appreciation of what’s taking place.

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People want to know:

“Should I talk with my insurance company about my personal injury or long term disability case“.

The answer to this question may surprise you.

You may hear some personal injury lawyers tell you that under NO CIRCUMSTANCES should an injured accident victim or disability claimant ever speak with an insurance adjuster about their case.

There is nothing wrong with this school of thought. What you don’t say, cannot hurt you. What you don’t say also can’t be recorded and used against you down the road to defeat your claim and credibility. Silence is golden.

But what happens in the situation where you can’t lawyer up in a timely manner? What happens if the insurance company calls you and has a few very simple and basic questions to ask of you which you can certainly answer (address, location of accident, date of birth, what hospital you are currently staying at, whether or not you’re employed or retired). Keep it very simple and basic. You should not share any further details with the insurer without a lawyer, as you will read below.

Your claim, personal injury or long term disability has to get opened so that the benefits can begin to flow. The longer you wait, the longer it will take for the insurer to open their file, assign an adjuster, and hopefully pay for the attendant care, med/rehab and income replacement benefits you need. If you wait to retain a lawyer, this may delay you getting the benefits you need. There is nothing wrong with you calling the insurance company to simply open up a claim and get things started. But when doing so, be cautious of the amount of information which you disclose. Keep things simple and short.

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Winter is coming.

The North winds are blowing.

We the North.

Snow. Sleet. Ice and everything in between.

Some smile at the prospect of negative temperatures. They love the winter!

Others cringe. Count me in on team cringe. I would much rather have nice and pleasant warm weather any day over the ice, cold and darkness that winter brings. I think it’s the darkness and cold that gets me down the most.

Some people have a hard time transitioning from warm weather where one can get away wearing flip flops everyday, to cold weather where winter boots and indoor shoes are more appropriate. Flip flops certainly require less effort to take on and off, and you can wear them inside; so I kind of get it. But, when one makes the conscious decision to ignore the elements; one must live with the consequences….

You would have no idea the number of winter slip and fall cases our personal injury lawyers have seen on account of people who wear flip flops, Crocs, or other non winter footwear outside on icy or snowy surfaces. It’s mind blowing!

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The Ontario Government announced (this week or last, it’s not clear because it came out of nowhere) that they are planning to amend the Occupiers Liability Act.

For those of you who don’t know, the Occupiers Liability Act sets out the laws for slip and fall cases on private property.

The Occupiers Liability Act describes who an owner is (“occupier“) what their duties are and so forth. It also sets out what an (“invitee“) is, and sets out their rights as well. An occupier has a positive duty both in statute and in common law to ensure that their premises are safe for invitees to their premises. Failure to uphold that duty will result in liability to the occupier. The result is that an insurer will respond to the claim to cover the occupier and indemnify the invitee. If the occupier did not have insurance on their premises, then they will be responsible to pay for the cost of litigation and pay out on the case out of their own pocket (whether that’s a personal or corporate pocket depends on the ownership structure).

The standard limitation period for slip and fall cases is 2 years from the date of loss. Failure to commence a claim within that period of time, will result in a limitation period lapsing. Limitation periods, unless otherwise specified in another act, are set forth in the Limitations Act, 2002.

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The wheels of justice turn slowly. Why is that?

Do you have all day to listen to the rantings of a personal injury lawyer?

Likely not.

The reality is that some of the delay can be blamed on the inherent nature of modern day personal injury litigation. It’s complex. It’s combative. It’s document heavy; and getting documents produced from the police, hospitals, treatment facilities or a doctor is not the most expeditious process. There are also significant privacy concerns as well which take time to deal with.

Other times you can blame the Courts. Most urban ones are slow without adequate resources to meet demand. Don’t believe Brian Goldfinger? Have you visited your local Courthouse lately?

Some times there simply aren’t enough Judges to hear cases. It’s true and it happens more that you would expect.

The focus of this Toronto Injury Lawyer Blog Post will be tactical delays by insurance lawyers to slow down the progression of a car accident case in Ontario.

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Long Term Disability cases are complicated. Most people don’t even know what a Long Term Disability Claim even is. To take it one step further, some people who have Long Term Disability coverage don’t even know that they have it, or which insurance company it’s with, how much coverage they have, or the duration of their coverage.

To be fair, the monthly long term disability amount is normally not a fixed amount, rather it’s a fixed percentage based on your annual salary or income. This fixed percentage/amount is subject to a variety of set offs such as CPP Disability benefits, WSIB Benefits, other collateral income benefits etc. The Long Term Disability Benefit can also be subject to a Cost of Living Allowance (COLA) which would increase the monthly LTD benefit based on a fixed inflation calculation.

In any event, calculating the LTD benefit can be tricky, and can be a mathematical challenge for even the finest actuary.

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A costs endorsement in the case of Persampieri v. Hobbs was just released by the Honourable Justice Sanderson after a three week jury trial of a car accident case.

This costs endorsement reflects everything that’s wrong with car accident law in Ontario.

You should know that in jury trials, jury decisions are not reported. Only the Judge’s endorsements/rulings from in-trial motions or costs decisions are reported. It’s through those endorsements/decisions which lawyers and insurers alike can pick up on what happened at trial (unless they are in the Court room to observe the trial as it takes place).

This case encapsulates EVERYTHING that’s wrong with the current state of tort claims for car accidents in Ontario. The system is simply grotesque, and tilted so far towards insurers it acts as a deterrent for innocent accident victims to seek the compensation which they deserve.

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Since the Christmas Holiday, our law firm has received dozens of phone calls from prospective clients with respect to their slip or trip and fall cases. The way these accidents occurred all vary. We see a number of snow, ice, slush or general slippery conditions caused by damp condition claims. We also see a variety of pot hole or crack claims. We also see uneven surface or poorly maintained stair claims.

The mechanism of the falls vary, as to the injuries sustained. From ankle fractures, femur fractures, broken arms, broken wrists, separated shoulders, shattered elbows, even broken noses. Ouch!

The reality is that this is now slip and fall season and we handle a lot of these cases around this time of year.

As discussed in a previous Toronto Injury Lawyer Blog post, there are many pit falls for slip and fall cases. The most important which we tried to address was the issue of liability. This is concept of proving negligence (or wrong doing) agains the party you are seeking to sue (normally the property owner, or the company responsible for the maintenance/care of that property).

The thing our lawyers try to hammer home is just because a slip or trip and fall happened, and injuries were sustained, doesn’t necessarily mean that there will be a winning personal injury case there. The Plaintiff needs to establish that the Defendant was negligent (or at fault, or responsible) for said slip and fall accident.

Without establishing liability, there is no case to be had; regardless of how significant the injuries may be.

This is why sometimes in slip and fall cases, the injuries are almost secondary to how the actual slip and fall took place. In certain instances, the parties will AGREE on damages at trial, and argue only on liability.  This is exactly what happened in a case which went all the way to the Ontario Court of Appeal in Kamin v. Kawartha Dairy Ltd. 2006 CanLII 3259 (ON CA).

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