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This might seem like a very niche topic for the Toronto Injury Lawyer Blog as it relates specifically to Ontario teachers seeking to claim, or who have been denied long term disability benefits by The Ontario Teachers Insurance Plan (OTIP)

The reality is that there are a lot of teachers out there. Teachers have access to long term disability benefits and tend to read blog posts like this. Teaching is a difficult profession where bad days get noticed very quickly by the students and aren’t tolerated. Going in to teach a class day in day out in pain when you aren’t there 100% mentally isn’t good for anyone.

OTIP long term disability polices are some of the most complicated long term disability policies out there. It’s not because OTIP is trying to be difficult towards its membership, or has intentionally made the policies complicated to confuse teachers and to trick them out of getting benefits. It’s just that there are a lot of moving parts for teachers, and a lot of money at stake.

For starters, teachers on average earn a very good and stable income. They generally receive regular raises, and they have access to rehabilitation benefits to help them get better. Teachers are unionized employees as well which adds another layer of potential confusion (like why isn’t my union helping me pursue the long term disability claim?).

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Recently, a post went viral on Tik Tok of a York Regional Police officer checking out his mobile device while driving at what appeared to be a high speed.

It would seem unfair that a police officer would be driving around in his police cruiser checking out his cell phone because if members of the general public did the same, they would be given a ticket.

But is it?

There is a caveat in then Highway Traffic Act which permits police, fire and emergency responders to use the mobile devices while driving. There are likely good policy reasons behind these laws, but I cannot say for certain what policy reasons those might be. I can certainly make assumptions that using a mobile device as a police officer, fireman or emergency responder might be required.

Here is what the Highway Traffic Act has to say about operating your mobile device while driving:

Display screen visible to driver prohibited

78 (1) No person shall drive a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.  2009, c. 4, s. 1.

Same

(3) Subsection (1) does not apply to the driver of an ambulance, fire department vehicle or police department vehicle.  2009, c. 4, s. 1.

Hand-held devices prohibited Wireless communication devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.  2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.  2009, c. 4, s. 2.

Exceptions

(4) Subsection (1) does not apply to,

(a)  the driver of an ambulance, fire department vehicle or police department vehicle;

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Car insurance, and making a claim after a car accident in Ontario should be simple and straight forward.

But, as a personal injury lawyer with two decades of experience in the field, I can tell you that it’s not. Far from it! In fact, car insurance and accident benefit claims are complex and defy common sense.

Here are a few items that our lawyers at Goldfinger Injury Lawyers along with our clients have always found rather strange when it comes to car accident claims in Ontario.

Item #1 Regardless of fault, the first insurer to respond to the claim is your own car insurance company. Ontario has a “no fault” system of accident benefits. This means that your own car insurer, regardless of fault, is the first insurer to make a payment of the claim. The at fault driver could have been drunk, high on drugs, on his cell phone having run a red light. It doesn’t matter. Your own car insurer, regardless of fault, is the first insurer to pay. This is what “no fault” is all about. How the accident happened and the degree of liability for the at fault driver is not even a thought when it comes to no fault accident benefits which defies common logic when non lawyers think about car accident cases.

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The greater your injuries, the greater the value of your personal injury case.

The same applies in the opposite.

The less severe your injuries, the less value your personal injury case will have.

It’s always good to have a healthy and high quality of life and a lower value personal injury case; as opposed to the other way around. Nobody wants a poor quality of life. Money is not a substitute for happiness or for having the inability to manage daily tasks.

At some point in your personal injury case, an insurance adjuster, lawyer for the insurance company, or even a Judge might ask a Plaintiff how they are doing, or how they are feeling.

People have a tendency to respond that they are “doing fine“. Think about that for a moment. When a friend, family member, or work colleague asks you how you are doing, the tendency is not to open up and share all of your problems (because that would be really weird). Instead, more often than not, we tend to reply that we are “doing fine”.

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Imagine for a moment that you have a personal injury case with a fast approaching Pre-Trial or Trial date.

In the case, liability (how then accident happened and whose fault it is) along with damages are both hotly contested issues.

At trial, both lawyers for the Plaintiff and the lawyers for the Defendant expect their respective clients to provide contradictory evidence. It’s a case of s/he said vs. s/he said whereby the Judge and Jury will need to pick a version of events they like the best.

What happens is before the trial one of those parties dies?

This happens more than you might expect. Personal injury cases, and civil trials take a lot of time. In 2024, these cases take a lot more time to get to move through the litigation process than they did decades ago. The longer a case takes to reach its conclusion, the greater the odds that a party might pass away before the proceeding reaches its conclusion. That’s just science.

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The feature article in this Saturday’s Globe & Mail was titled “The End of Winter: What We Lose When We Lose Winter“. To lose the season to climate change seems cataclysmic. I would agree.

The article dealt with skiing in Rockies in Western Canada. There are challenges skiing when the weather is too warm and there isn’t enough snow to get in proper ski runs.

Last week in Toronto, we hit temperature highs of around 16 degrees. This week, we have seen lows of around -6 degrees. That’s quite the temperature swing.

When the weather gets hot, we change our clothes and footwear accordingly. The same applies to when things get cold. But we we see wild weather swings which go from spring/summer weather back to winter weather, it can be a bit dangerous because many people have problems adjusting.

I can’t say I blame them. How does one go to a summer mindset, back to a winter weather mindset in 24hrs? Just yesterday, kids were outside riding their bikes (some in shorts) and playing on muddy fields in shoes (or sandals). Yet today, we’re all back to wearing parkas, mittens and snow boots?

To suggest these changes in temperature don’t effect our behaviour or patterns is out of touch. What our personal injury lawyers see is that these spikes and drops in temperatures cause an increase in claims. This means that more people are getting hurt, in part, because we are going from a summer mindset, and expected to get back to a winter mindset.

Do you drive differently when the roads are clear than you do when then roads are snow and ice covered?

Do you wear different footwear in the winter months, than you would in the spring/summer months?

Are you outside more when the weather is nice and pleasant, as oppose to when it’s cold and windy?

Are children more likely to walk or ride their bikes to school when it’s nice outside, as oppose to when it’s freezing?

What happens when the temperature fluctuates in a 24 hour period, such that it feels like spring and then reverts back to a cold weather winter climate? How would you dress, or would your dress differently than you normally would? How would this change your commuting pattern?

For many Canadians, changes in weather have a large impact on how they get around. Are you walking to work in a giant snow fall, taking transit, riding a bike or driving? Is your boss letting you out of work a bit earlier knowing that a big storm is on its way? Perhaps your employer is more likely to let you work from home knowing that some in climate weather is on its way.

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The first long term disability case I had experience with came well before I was a personal injury/disability lawyer.

It happened before I was in law school. It happened to my mom.

She had just gone through multiple surgeries and had not recovered properly, or at all from them. She had been approved for Long Term Disability just before the surgeries took place. She was around 62 years old. After the surgeries, she remained on disability benefits. But shortly there after the long term disability insurer asked that she attend a few “independent” medical assessments with the insurance company’s doctors. She obliged.

Following those assessments, my mom was cut off her long term disability benefits. She was 63 years old, and her benefits were set to expire at the age of 65. She remained at home, in significant pain, and unable to manage her day to day activities of daily living, let along return to any form on employment.

We soon found out that these “independent” doctors who she saw were not really independent. These doctors did minimal to no work through the public OHIP system. Instead, most of their work was generated by referrals from auto insurers, long term disability insurers and WSIB. These doctors did not have a roster of patients who they routinely saw to cure their ailments. Instead, they had institutional clients like insurers, or assessment centres, who referred them people to see on a one shot only basis. After the assessment, they had an army of clerks who would generate reports. The person would arrive at the office for their one and only time to see the doctor. The doctor would check them over, and then someone would generate the report. That report, more often than not went in the favour of the insurer who had referred to doctor the patient in the first place. The doctor would not bite the hand that feeds them so to say.

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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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I’ve had a few interesting conversations over the past few days with some very thoughtful, rational, insightful and logical people. These people are not lawyers. They have no skin in the game when it comes to the field of personal injury law. That means that they are neither lawyers, insurance adjusters, service providers, doctors, or lobbyists. It’s always nice to get someone’s perspective on the law, and how they perceive it works (or doesn’t) from an “outsider“.

For whatever reason, they were thinking about how the law worked in Ontario. And, in particular, how auto insurance claims worked. They were thinking along these lines because recently, a friend or family member had either been involved in a serious car accident, or something bad happened to their car which required that they get the auto insurer involved.

All of their experiences shared some common threads.

For starters, the people didn’t understand why the insurance claims system was so complicated. Why did the system need to be so complex, with so many hard to understand forms? It was like you had to have a law degree or some expertise in personal injury just to get the insurer to approve a benefit. And just because a benefit was deemed approved, does not necessarily mean that the money would be flowing in a timely manner.

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Personal injury cases are never as simple as they might appear to be.

The case of an apparently simple slip and fall, just isn’t so simple.

On the surface, the case is very easy to summarize. A person is walking on a private walkway. The walkway was not properly maintained for the winter. The person slips, falls, and breaks their ankle. Ouch!

On the surface, the Plaintiff would sue the private property owner. That makes total sense. The dynamic of the litigation would be a single Plaintiff against a single insurer acting on behalf of the private property owner.

But that’s not what actually happens.

The private property owner is not a single entity. The property is owned by three different corporate entities (that’s three different defendants). All of these Defendants may have different insurers for the loss, or they may have the same insurer under one policy. Your personal injury lawyer can find this out once the litigation proceeds.

The property owners inform your personal injury lawyer that there was a property management company. That’s an additional Defendant to add to the mix, with a different insurer altogether.

Now that the property management company is added, they inform you that there was a winter maintenance contract in place. That’s a 5th Defendant to the mix.

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