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It’s best to get started with your personal injury case sooner rather than later.

It makes no sense to wait around. I have yet to hear a viable excuse as to why a Plaintiff waited to retain a personal injury lawyer and start their case.

I can contemplate a scenario where a seriously injured accident victim would have to wait to start their personal injury case. That scenario exists where the Plaintiff is so injured that they can’t use a phone or internet to reach out to a personal injury lawyer. A Plaintiff could be in a coma, (like a medically educed coma) following a serious accident. Where a Plaintiff isn’t conscious, or simply too injured to get his/her claim started, then a delay would make a bit of sense. Still, the law doesn’t care. I haven’t seen a case where a Plaintiff is in a coma for 2 years from the date of their accident. That doesn’t really happen. 2 years is a very long time to be left in a coma following an accident. During that long period of time, the accident victim would likely have a Power of Attorney appointed to make decisions. If there is no Power of Attorney, or next of kin, it’s likely that the Office of the Public Guardian and Trustee would get involved in order to protect the rights and the interests of the comatose accident victim.

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Personal injury law in complicated.

It doesn’t have to be that way.

But unfortunately, it is.

If you are hurt, or injured on the jobsite, you would think that you could retain a personal injury lawyer and sue. The lawsuit might likely have to be against your employer on account of their negligence, or providing an unsafe work environment. This would make sense and seems like a very logical approach.

But that’s not the way the law works.

In the vast majority of cases, workers cannot sue their employers for a workplace injury. In the majority of cases, the injured party will have to make a claim through the Workplace Safety and Insurance Board (WSIB). Even if the injured party retains a personal injury lawyer, and files a claim against their employer in Superior Court, that claim will likely be dismissed because the Plaintiff does not have the right to sue. They must have gone through WSIB.

A Plaintiff cannot have both a WSIB Claim, and a personal injury lawsuit. In the majority of cases, the Plaintiff does not have a choice. They MUST go through WSIB.

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Movies get us thinking that video cameras are everywhere, and that they capture everything. Think of your favourite crime show, or crime movie. There’s usually footage of a bad guy caught on camera in the act which is used in some way, shape or form, to move the plot along.

As an experienced personal injury lawyer, I can tell you that the way things work on TV are far from how things work in reality and inside of a Courtroom.

Cameras are everywhere, but they don’t always work the way you might think

Not all cameras are created equal. Some capture remarkably high quality footage which is of great help to a personal injury lawyer. Other cameras are able to track moving people or objects which is also very helpful to a personal injury lawyer. Other cameras capture pictures which are so terrible that they are unusable. Other cameras capture footage which automatically gets destroyed after a predetermined period of time (like 48hrs). If the footage is not preserved before it gets automatically destroyed, it’s lost forever. Some cameras can only record in daylight, so anything that happens at night is unusable. Other cameras don’t even work at all because they’re broken, or simply unconnected or have no power. Some cameras are “dummy cameras” meant to deter, instead of record. If you’re able to secure good and usable footage for a personal injury case, that’s wonderful. The footage will speak for itself. A Judge and Jury will be able to make up their own minds of what happened after reviewing the video footage. But don’t assume that just because there are cameras around, that they will produce useful footage. Often times, the footage is not very clear at all. You would be amazed the amount of times in a personal injury case that the lawyers track down the footage, only to find out that the camera was pointed metres short so the incident took place off screen.

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Cases can settle in a lot of different ways.

They can settle minutes before trial in a Courtroom.

They can settle by email late at night.

They can settle a day after a long mediation which failed because a party had a change of heart.

There’s no predetermined formula as to how cases settle outside of Court. Personal injury lawyers, and defence lawyers have many tools at their disposal to achieving a settlement, if that’s the desired result for their client.

One of the most effective, and most widely accepted tools is mediation.

Mediation is a party centred method of dispute resolution which takes place in a less formal environment than a traditional courtroom. It’s basically a really fancy legal word for a meeting with all of the decision makers to focus on getting the case settled. What’s nice about mediation is that during the mediation, all of the lawyers and adjusters are focusing (or are supposed to be focusing!) on that one particular file. That’s a very good thing considering this singular focus on one specific case for an extended period of time doesn’t happen all too often for lawyers. They often jump from case, to case, to case throughout the course of a day.

There are lots of other benefits to mediation which I won’t go into too much detail about, but here are a few for quick reference:

  • It’s less expensive than going to trial
  • It’s faster than going to trial. You can get a mediation date much faster than you can secure trial dates.
  • Completing a mediation is faster than running a personal injury trial.
  • It’s private and confidential. Nothing said at mediation can, or will be held against any of the parties. That means that the discussions and offers are without prejudice.
  • The result at mediation is instantaneous following the conclusion of mediation compared to completing a trial and waiting for the Judge’s reasons which may take weeks, or months, to be released.
  • The end result of mediation (settlement or failed mediation) cannot be appealed. A trial verdict can be appealed, which adds further cost and delay to the conclusion of the case.
  • All of the decision makers are in the room so that the parties get to decide their destiny. This provides the parties with a certainty of outcome, rather than leaving things to chance in the hands of a Judge or Jury

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When we think of a dog attack, we tend to think that a dog bit another person. But this is not always the case. There are viable dog attack cases when a dog does not actually bite another person.

The dog owner is vicariously liable for the actions of his or her dog. This includes all aggressive behaviour which includes bitting, but includes all other forms of behaviour as well.

The Dog Owner’s Liability Act set forth clear language which does not limit liability to bitting alone:

Proceedings against owner of dog

4 (1) A proceeding may be commenced in the Ontario Court of Justice against an owner of a dog if it is alleged that,

(b)  the dog has behaved in a manner that poses a menace to the safety of persons or domestic animals; or

(c)  the owner did not exercise reasonable precautions to prevent the dog from,

(ii)  behaving in a manner that poses a menace to the safety of persons or domestic animals.  2005, c. 2, s. 1 (6).

There is no mention in the language above which makes reference to bitting. Rather, the behaviour is described as “behaved in a manner that poses a menace to the safety of persons” or such that “the owner did not exercise reasonable precautions to prevent the dog from behaving in a manner that poses a menace to the safety of persons or domestic animals“.  There is wide discretion for the Court to interpret this sort of behaviour which clearly will not be limited to bitting alone. It can be any other behaviour deemed to pose a menace to the safety of another person or domestic animal.

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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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There is a lot of paperwork in personal injury cases.

I can recall as a young lawyer attending at criminal court on a set date or for disclosure. Most lawyers didn’t have any paper or documents with them. All they had, and all they needed was their calendar to set a date, or a script off memory to say to make sure their position was on the record for further use.

The civil lawyers (personal injury lawyers) had their litigation bags on wheels, which were supplemented by mountains of bankers boxes.

The calendars have been replaced by phones.

The bankers boxes have been replaced by laptops.

But what has not been replaced in personal injury cases are the volumes and volumes of documents require to paper and to build the case. This has not changed since my call to the bar over 20 years ago.

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This week marks my 20 year anniversary of being called to the Bar. Pretty neat. I’ve been practicing as a personal injury lawyer for pretty much all of that time. I’ve learned a lot over the past 2 decades. If I could go back in time and share some pearls of knowledge with my much younger, and more handsome self, here’s what I would have to say:

  1. Everyone’s path is different. In law school, you’re made to think there’s a cookie cutter approach as to what happens after your graduate from law school. Graduate from law school. Then get an articling job in the City of your choice, at the firm of your choice, in the area of law of your choice. Work at that law firm for a few years, climb their hierarchical ladder, get made partner, and let the good times roll. It’s all made to seem, and to sound, very linear. That’s how it can work for some. But for most lawyers, that’s not how the journey works at all. The practice of the law; just like life; is full of twists, turns, ups and downs. Not everything is going to go according to some grand plan which was conjured up in law school.  Just because your colleagues are doing things one way, doesn’t mean that way is right for you. And it certainly doesn’t mean that’s how things are going to pan out for you either. Think of it as you would a diverse vegetable garden. Each plant in your vegetable garden is different; and will have different needs to produce. Some require more water, some require less direct sun. Others are finicky when it comes to soil Ph levels. The path to growth, and what is required for that growth to occur might be similar, but it’s not the same for each plant. The same variances applies to new calls and lawyers of all stripes. Everyone’s growth and path will be different. That doesn’t means that one path is better than the other. You have to do what’s right for you.

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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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This is not the first time which the Personal Injury Law Blog has declared that it all comes down to the facts in a personal injury law case (or any case for that matter).

It’s nice to see Judges articulate what we have been saying all along in our blog entries.

The case of Veerasingam v. Licence Appeal Tribunal, 2024 ONSC 3730 has little to do with personal injury law. There was no accident. Nobody was personally injured. This has to do with a person’s application for a salesperson license, and the appeal process throughout.

But even before the background, facts or the law is discussed, the case starts out like this from The Honourable Justice Myers:

“The facts matter.

Many lawyers graduate from law school thinking that their cases will be won with erudite advocacy concerning esoteric questions of complex jurisprudence intertwined with contemporary ideals of public policy reform.

But as every experienced advocate understands, the reality of life in the trenches of civil litigation is that cases are primarily won or lost on their facts. When the facts suggest that the justice of the case lies a certain way, in the vast majority of cases, the law will support or, at least, will not stand in the way of the just outcome.
There are very few cases where judges write that, while they believe the just outcome is “X,” they are constrained by the law to find “Y.”  It happens. But not very often.“

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