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Identifying the correct party to sue in a slip or trip and fall case can be tricky.

In a car accident case; it’s a bit more straightforward: You sue the at fault driver. You also sue the owner of the vehicle as well.

In an dog bite or dog attack case identifying the correct party to sue is straightforward was well: You sue the owner of the dog.

How about an assault case? That’s sounds pretty straight forward as well: You sue the assailant.

How about a long term disability case? That’s easy: You sue the long term disability insurer.

Things get a bit more complicated in a slip and fall; or trip and fall case.

First you need to identify where the fall happened. Knowing the exact location of the fall is very important. A few inches to the left or to the right can change the identity of the owner. And getting the correct identity of the owner is of paramount importance for a slip and fall or trip and fall case. Suing the wrong owner won’t get a Plaintiff anywhere.

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Congrats to Goldfinger Injury Lawyer’s very own Afsoun Amirsolaimani on winning a contested motion seeking the removal of a lawyer for the Ontario Motor Vehicle Accident Claims Fund for acting in a conflict of interest. The decision is below and has yet to be reported, but we share it with you now. 

CITATION: Riley et al. v. Director of MVAC, et al., 2021 ONSC 2123 

COURT FILE NO.: CV-20-00000101 

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Slip and fall accidents can cause serious physical and emotional injury. Adding insult to injury is the fact that you will always second guess yourself:

“What if I didn’t step where I did? Could I have avoided the fall? Could I have paid better attention? Would different shoes or boots have prevented my fall?”

Feelings of anger, embarrassment, doubt and even shame can creep up after a slip and fall; because act of walking is so mundane and something we take for granted. How could the act of simply walking cause a devastating injury like an ankle fracture; or a torn ACL/MCL requiring surgery; or a bad concussion? Bad things happen. And when people look for justice and compensation, they reach out the Goldfinger Injury Lawyers.

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Home owners and property owners buy insurance for lots of different reasons. Liability protection is a great reason to have insurance. But what first comes to mind when thinking about property insurance is coverage in the event of damage to one’s property.

What happens if a fire burns down your home/building and all of the contents therein?

What happens if a pipe bursts and ruins the home/building and everything inside of it?

What happens if the roof starts to leak and damage the ceilings, walls and flooring?

Who is going to pay for the property damage?

What happens if the rental arrears on the unit are lost on account of the damage?

If you don’t carry property insurance, you will have to pay for these repair and replacement costs of the damaged goods/equipment on your own.

But the majority of property owners carry some form of insurance. It’s a requirement under pretty much every mortgage. You can certainly own a property mortgage free and not carry any form of insurance on the property, but that’s living quite dangerously to say the least and not recommended by this personal injury lawyer; or any insurance broker.

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Long Term Disability cases are based in contract. Damages are awarded to the disabled plaintiff based on what is available to the disabled plaintiff under the contract.

Damages for the most part are limited to what’s covered under the four corners of the insurance policy.

Only in rare cases will a court order damages for bad faith against an insurer, or damages for mental distress. These outside of contract damages are awarded only in limited circumstances where there has been egregious conduct by the insurer. These cases are the exception, not the rule.

If you went to trial on a long term disability case, here are the things which a Judge can Order:

  1. The insurance company pay the totality of your back payments (arrears), less any offsets such as WSIB, CPP Disability, ODSP or pension payments
  2. The insurance company has to pay interest on the arrears at a set rate (normally it’s pretty low, it’s currently sitting at 2% for this quarter).
  3. The insurance company re-instate your long term disability benefits (put you on claim). But keep in mind that you are not on claim forever. There is nothing preventing from the insurance company from terminating those benefits again down the line because they believe that you’re no longer disabled. The result is you have to go through the entire litigation process again.
  4. The insurance company MAY have to pay for a portion of your lawyer’s fees (or may not)

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Long Term Disability Claims are NOT claims for pain and suffering.

Long Term Disability Claims are not based in negligence.

Nobody from long term disability insurer ran you over with a truck or hit you with a baseball bat resulting in your disability. You had something completely unrelated to your relationship with the long term disability insurer; before your disability arose. It could be serious medical condition; a bad slip and fall; or a stressful work environment. Nonetheless, the long term disability insurer had nothing to do with giving you the disability in the first place.

To be fair the way a long term disability insurer treats you can result in mental anguish, financial distress or harm. These sort of claims along with bad faith claims handling is a separate tort all together. These cases are the exception, but they certainly do happen.

But the foundation of a long term disability claim are the long term disability benefits themselves; which are a creatures of contract, not tort.

Standing alone from any separate tort or bad faith claim; quantifying the value of arrears and futures is a mathematical equation based in contract. It’s not an imaginary number which is made up by the Court.

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More people than ever have to attend Methadone Clinics to deal with their addiction and substatnce abuse issues. Opiate dependence and substance abuse issues are very real, and very costly on so many levels. They threaten to bottom out health care spending, take emotional tolls on families, loved ones and friends; and ruin lives.  Methadone Clinics are just one of the ways which Ontario is trying to deal with these problems. It will take a multi disciplinary approach to get a handle on addiction and substance abuse issues. But there can be no dispute that they are serious issues which our government and health care system are working very hard to resolve.

The focus of this edition of the Toronto Injury Lawyer Blog will be to examine what happens when there has been a prescription overdose; or a dispensing error at a Methadone Clinic in Ontario, or at a Pharmacy in Ontario. These cases are becoming more common with the increasing number of people who are prescribed and dependent on methadone to manage their problems. Pharmaceutical negligence and dispensing errors are not uncommon and can cause serious, life changing damages for which innocent claimants deserve fair compensation for their losses.

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“For the People“……

That’s what the Ford Government promised. That’s what the Ford Government was supposed to deliver.

They certainly aren’t delivering on any front.

Another promise made. Another promise broken I suppose.

Let’s examine this “For The People” government from the personal injury corner of there room.

Bill 118, Occupiers’ Liability Amendment Act, 2020 came into force on January 26, 2021. Right in the middle of the Pandemic because nothing says Global Pandemic quite like amending the Occupiers’ Liability Act for slip and fall cases in the middle of the winter!

The Explanatory Note of that Act clearly states:

“The Bill amends the Occupiers’ Liability Act to provide that no action shall be brought for the recovery of damages for personal injury caused by snow or ice against an occupier or an independent contractor employed by the occupier to remove snow or ice, unless, within 60 days after the occurrence of the injury, written notice of the claim is served.”

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If you haven’t heard of what a COVID Long Hauler is, you should look it up. As a personal injury and long term disability lawyer, I don’t profess to be a medical expert. This is where I defer to the doctors have to say about COVID long haulers and the potential long lasting health implications by those who study COVID at the Mayo Clinic , Harvard Medical School and the Cleveland Clinic.

Tens of thousands of people who have contracted COVID, have been left with lingering symptoms and effects including but not limited to fatigue, body aches, joint pain, coughing, shortness of breath, difficulty concentrating, inability to exercise, loss of taste or smell, headaches, and difficulty sleeping. COVID Long Haulers can’t exert themselves or exercise and simple tasks (like walking to the mailbox or taking out the trash) will often leave them feeling exhausted. Chronic fatigue and chronic pain as being reported with COVID Long Haulers can be incredibly debilitating and frustrating. Many long-haulers also report brain fog, difficultly concentrating or feel like they aren’t as sharp as they used to be.

The reality of COVID is that it’s a new disease which began in an outbreak in around December 2019. Given the newness of the disease, doctors have little data to know the the long term effects or recovery from these long term effects/symptoms. Only time will tell. The vast majority of COVID Long Haulers test negative for COVID after the first few weeks of contracting the disease, despite still having these COVID long haul symptoms.

Long-haulers include two groups of people affected by the COVID:

  • Those who experience some permanent damage to their lungs, heart, kidneys, or brain that may affect their ability to function.
  • Those who continue to experience debilitating symptoms despite no detectable damage to these organs.

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If you’ve sustained serious and permanent injuries in car accident, you recover damages against the at fault driver.

Standard policy limits in Ontario sit at $1,000,000. Ontarians can purchase optional benefits to increase their coverage, but only few ever pick up that option (mostly personal injury lawyers, insurance adjusters, insurance brokers and insurance defence lawyers…notice a trend…mostly people in the know).

In some cases, those policy limits are greater than $1,000,000. Often commercial carriers have policy limits of $5,000,000 or greater. Sometimes your car insurance combines with your home insurance creating what’s called an umbrella policy or umbrella coverage, thereby increasing the policy limits from $1,000,000 to $2,000,000 in coverage.

It’s a good thing for an injured accident victim when there are greater policy limits. It means that the injured party will realistically be able to recover more damages in their personal injury case, if they are entitled to those damages at law.

To understand this concept of recovery, let’s examine what happens when policy limits are inadequate to satisfy a claim.

Let’s say that the claim is worth $1,500,000, but there are is only a $1,000,000 limit under the policy. The first $1,000,000 will be covered by the insurance company pursuant to the insurance policy. This leaves a shortfall for the claim of $500,000.

It will be Defendant’s personal responsibility to cover this $500,000 shortfall in the event they don’t have a policy which will cover the excess amount owing. This $500,000 is not insurable under the standard car insurance policy. The Plaintiff can secure a judgment against the Defendant personally and seize or lien his/her assets; or even garnish his/her wages until the Judgment is satisfied. Please note that Ontario Works payments are NOT subject to garnishment. What is however subject to garnishment are regular pay cheques/wages.

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