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Sounds like a typical law school fact pattern for a tort case.

A property owner retains an arborist to do a routine pruning job on a set of Norwich Maple Trees in his yard.

The arborist advertises that he is both “licensed” and insured.

Upon attending at the job site, the arborist begins to unload his equipment from his van. It includes all of the normal stuff which any arborist would carry: spikes for climbing trees, ropes, counter weights, pylons and chain saws etc. But is also includes something which you shouldn’t find on any job site; an open container of alcohol; in this case a tall boy of beer.

Having an open can of beer may not seem like a big deal. The general labourers there to help the arborist tell the property owner that having a beer on the job site isn’t a problem; and that they do it all the time. They tell the property owner that this is just the way that the licensed arborist works. He needs beer to concentrate and do his job. They are trying to pass this off like it’s all normal.

The notion that a man climbing 20+ feet in the air; with a large gas powered chainsaw; needs to be fueled by alcohol isn’t normal whatsoever.

Yet, this is what the arborist and his friends tried to convey to the property owner.

In case you are wondering, that property owner was me. And I’m a personal injury lawyer. And I wasn’t having anything of it.

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Warmer weather means more people out and about. We see more people out for walks both with and without dogs.

Some dog owners are very responsible. They curb their dog, keep them on a leash and keep the under control. Some dog owners are not. But even the most responsible dog owner may run in to a situation whereby their dog losses control.

What happens when a dog attacks someone? How does one go about making a claim for damages.

It goes without saying that you cannot sue the dog itself. But you can sue the dog owner and claim damages against him/her.

It helps if the dog owner has asset or home owners or renter’s insurance.

A dead beat dog owner without any assets and without any form of insurance will result in an fruitless case. That’s not to say that a Plaintiff won’t “win” the case. In fact, there is a very strong likelihood on a dog bite or dog attack case that the Plaintiff will “win“; and a Court will order that the Defendant dog owner pay damages.

But the Judgment will be an empty one. A Plaintiff cannot recover blood from a stone in the event that the Defendant is without any assets, and without any insurance coverage. A Judgment-Debtor Examination may reveal that the Defendant Dog Owner owns no property, no vehicles, has no money in the bank, and is currently on ODSP or Ontario Works (both of which cannot be garnished).

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There is a black eye on Canada’s Military; and it’s not due to lack of funding or purchase orders of military helicopters or planes gone bad.

In a Government Census, approximately 25% of women serving in the Canadian Military reported being sexually assaulted during their military careers.

Pause and think about that stat long and hard.

Nearly 1 out of every 4 women serving in Canada’s military has been sexually assaulted in their military career.

That statistic is mind blowing! Any other industry would be completely shut down if that’s how women are treated in the workplace. You would have police, government officials and activist groups swarming the employer to the point they would not be able to function. It would be a business and PR nightmare. In the age of cancel culture; this employer would be ruined beyond the point of no return.

But what happens when that delinquent workplace is a public institution; like the Canadian Military?

We can’t stop shopping or boycott the Canadian military.

I suppose that people can withdraw for service, or simply not enlist to serve in the Canadian Military because the work environment appears to be less than optimal; particularly for women. There are other noble ways to serve and to protect one’s country. But the Canadian Military needs people so so many things. The Canadian armed forces does not run on robots or cheap migrant labour. How does the Canadian Military attract Canadians to enlist and serve the country with such bad PR? More importantly, how does the Canadian Military attract women to fill the ranks?

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There is a whit van parked outside of your home. Perhaps it’s at the end of the street. You’ve seen it parked there all week and a few men in it. When you leave the home,  the very same van is following you. You tell your partner that you have a feeling that someone is following you. Your partner tells you to relax and that it’s probably nothing. Your told that you’re being paranoid because you’ve been under a lot of stress and in pain lately. But something is fishy about this van.

You’re not wrong to have these feelings. Sometimes (not all of the time), your feelings of paranoia are justified because someone is in fact spying on you. As creepy as it sounds, it’s true. And worst of all, it’s completely legal.

If you have been hurt or injured in an accident; or have a disability claim against a private insurer (STD, LTD, Mortgage Insurance); there is a good chance that the insurance company you are fighting is doubting the legitimacy of your case. They doubt the authenticity of your claim, the severity of your injuries and they question your credibility. When this sort of thing happens (which is often), an insurance company will use one of its many tools to defeat your case.

One of the most effective tools is in person surveillance. This means that an insurance company will hire a team of private investigators to camp out outside of your home, and follow you around. They may even try to take images of you in your yard or inside of your home. Super creepy.

Some insurers would rather spend tens of thousands of dollars on investigators, medico legal experts and on lawyers fees rather than pay you a single shiny nickel.

What the insurance company is trying the establish is that you are a liar, a cheater, a faker and a fraudster. If they can establish any of the above; they feel confident that they will be able to defeat your claim. In order to do this, the insurer will attempt to create a narrative which they hope a Judge and Jury will buy. They want to establish that at Plaintiff is not trustworthy and is faking their injuries. One of the most effective ways of doing this is by playing movies at trial of the Plaintiff doing things which s/he said that s/he could not do; or which s/he should not have been doing. If they surveillance shows the Plaintiff having no mobility issues, leading what seems to be a normal, care free and pain free life; then a Judge and Jury won’t think that the Plaintiff is injured or disabled. This will take all of the teeth out of the Plaintiff’s case and leave the Defendant in a good position.

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My articling principal was called to the Bar in 1978. For the first decade or so of his practice, he was in Court nearly every day. He was in Court for motions, pre-trials and trials. Because he was in Court so often, it was absolutely necessary that his office be downtown so that he could be close to the Courthouse. The Courthouse was an extension of his office.

I want to be clear that my articling principal managed a very successful civil litigation law firm; and did not have a criminal law practice.  Criminal lawyers are in Court far more often than their civil litigation counterparts. In 2022, civil litigation lawyers are not in Court everyday. But, they used to be.

Trials back then could be as short as a half day, or as long as 2-3 days. Running a week long trial (5 days) was seen as a ultra marathon! Accessibility to the Courts existed! You would not have to wait years and years for a Pre-Trial or for a Trial date. You could call the Court and get a motion date and have your motion heard by a Judge in a very reasonable period of time.

The Court was there to serve the important public function of the administration of justice. Court staff could afford to take the time to get on the phone (or even speak to you person!) with lawyers  about what to do if documents weren’t accepted by the Court and what needed to be done so that the materials would get accepted.

The lawyers knew the name of the Court staff and vice versa. It was an amicable and symbiotic relationship. Both sides needed each other to make the system work so that justice would flow efficiently.

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The heading of this edition of the Toronto Injury Lawyer Blog “Hitting a Deer or a Moose with your car” may seem like some sort of joke, or click bait; but I can assure you; it’s not.

Hitting a deer or a moose with your car is very real; hence the signage you may see on highways for “Deer or Moose Crossing”. The Minister of Transportation knows of it’s danger, and so should you.

In all of my years of practicing personal injury law, I’ve never handled a case where someone struck a deer or a moose in an urban/city setting. These cases happen in rural, forest and remote settings. And while the chances of striking a deer or a moose with your car may seem awfully remote; and perhaps laughable; these cases are nothing to joke about.

Some of the most serious injuries I’ve seen have resulted from collisions with a deer or a moose. No joke.

Why is that?

For starters, these sort of cases take place on highways or rural roads. The vehicles which hits the moose or deer is generally travelling at a high rate of speed. The faster you’re travelling, the greater the impact and the greater the chance for catastrophic injury.

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I was recently at a kid’s birthday party. It was my son’s first “real” birthday party. He hadn’t been to a “real” birthday party in around 2 years or so due to the COVID Pandemic.

It was great socializing with adults from his class. It was great seeing my child interact with his classmates at a birthday party. It was great to be out and about after such a long period of on and off again lockdowns, fear and uncertainty.

One of the adults at the party told me that he kept up with the Toronto Injury Lawyer Blog. He wanted to know how we came up with so many topics to discuss; week after week.

Here are some secrets from behind the curtain about how we come up with topics.

Many would think that personal injury law is a limited topic. But it’s not. Personal Injury Law encompasses so much which people can relate to.

People drive cars, ride transit, walk or ride bikes to get around. Once you participate in any or all of these activities, you open yourself up to a potential claim. Who amongst us hasn’t seen a car accident; or the aftermath of a car accident? How many times have you drove on the highway or passed an accident scene with flashing police lights, firemen and paramedics.

We all know or have heard of someone who has been involved in an accident; whether it’s serious or not. We all likely have someone in our lives who is sick, ill, or disabled from working. They likely require, receive or have applied for either government assistance, or insurance benefits from a private insurer.

In order to drive a motor vehicle you require car insurance. It’s the law.

Who hasn’t done something “risky” like bungee jumping, sky diving, skiing, put their kids in a bouncy castle; or some other action sport which requires the participant to sign a waiver?

Who hasn’t seen a vicious dog or been afraid of a vicious neighbourhood dog? Perhaps that dog got off leash and bit someone?

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April 1, 2016 was an important date for car accident victims across Ontario. Not because it was April Fools Day. But because on this date, everything to do with hearing and adjudicating accident benefit disputes in Ontario changed.

All accident benefit disputes filed on or after April 1, 2016 which used to be heard at the Financial Services Commission of Ontario were from that point forward heard at the License Appeals Tribunal or LAT for short.

Only around 2 or 3 adjudicators from FSCO transferred over to the LAT, so there was no real continuity or institutional knowledge which had carried over from FSCO to the LAT.

Adjudicators at the LAT were not bound by any precedent set by the years of caselaw developed at FSCO.

There were new shorter time lines which the parties had to deal with. New rules regarding expert reports and expert qualifications.

Costs only awarded in rare circumstances, and when costs are awarded, they are under the low end of the spectrum.

The cost burden shifted significantly to the injured accident victim who has much less money to spend on legal fees than does the insurance company who they are fighting against.

At FSCO the accident victim simply filed for mediation. The cost of filing for mediation was free to the accident victim. If the mediation failed, the accident victim could give up on the case, pay $100 to file for Arbitration, or elect to sue in Superior Court.

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I’ve been involved in a car accident.

How do I start my personal injury case?

This should be an easy question. And it was a much easier question to answer in the 70’s or in the 80’s. But in 2022, car accident law along with car accident cases have become very complex. Car accident law should NOT be rocket science. Unfortunately, it has become rather close needing skilled and expert personal injury lawyers to handle these sort of cases.

Let’s get the stuff out of the way which does NOT require the expertise of a skilled personal injury lawyer.

You don’t need a personal injury lawyer to dial 9-1-1 to contact the police or an ambulance about your car accident

You don’t need a personal injury lawyer to go to the hospital to get medical treatment for your injuries

You don’t need a personal injury lawyer to get the name, contact and insurance information of the other driver (but your lawyer car certainly do that if you forgot or could not do so)

You don’t need a personal injury lawyer to report the accident to your own insurance company (although your personal injury lawyer can do that as well if you’re not able to do so on account of your injuries)

You do not need a personal injury lawyer to take photographs of your injuries or of the damage to the vehicle(s) involved in the car accident

All of these things sound and ought to be simple. It’s common sense. But the thing about common sense is that it ain’t so common.

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When assessing cases, both Plaintiffs and Defendants need to evaluate risk.

What are the chances of success and more importantly; what does success look like?

For an insurer Defendant, the ideal successful case will involve a quick and quiet dismissal of the action; with or without costs. The case is closed and the insurer does not have to pay.

For an injured Plaintiff, success can mean a lot of things. It can mean a finding of liability against a Defendant which signals to the Plaintiff that s/he was right. It can mean a declaration that the Plaintiff is disabled or entitled to benefits which also validates a Plaintiff.

But for most personal injury lawyers and insurance companies, what they really look at is the worth of the case on the best day scenario for a Plaintiff (or worst day for the Defendant).

Now these estimates can vary depending on the lens through which the case is assessed. But it’s equally important for Defendant insurers to have an honest assessment of their potential exposure on a case so that they can underwrite it properly. Just as it’s important for a Plaintiff to understand their best day, or worst day so that they can best assess their risk every step of the way in the litigation process.

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