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Not many people know this, but my family used to own a farm in Brockville, ON. Brockville is east of Kingston, near the Ontario/Quebec border. My grandparents owned a large farm with hundreds of cows, some chickens and large vegetable garden. I still have memories of the farm. On occasion, my grandfather would threaten me if I didn’t listen by saying he would take my toys away and give them to the cows. I sure listened after that.

As Goldfinger legend has it, the farm house burned down on account of a spontaneous hey fire. The only things that were saved were the  family photo albums. And if you ask around, there are a few epic shots of yours truly hanging out with the cows we had.

The reason I’m bringing up Brockville is because it reminds me of a special client our law firm worked with. This client was involved in a single car motor vehicle accident just outside of Brockville. Years went by and this person never thought of retaining a lawyer. She was at fault for the single car accident, so there was nobody to sue (you can’t sue yourself for your own negligence). The person was scared to consult with a lawyer for these reasons. S/he didn’t know where to turn, what to do, or how the system worked. She was lost, and just went along with whatever the insurer suggested.

The person sustained multiple orthopaedic injuries and a brain injury in the car accident. This was by no means a minor collision, and the injuries were significant. I’ll talk more about the significance of those injuries later on in this Toronto Injury Lawyer Blog Post.

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If you asked any injured accident victim, or long term disability claimant how much they believed their case to be worth, you would get all sorts of varying ranges of damages.

Most injured accident victims and disability claimants don’t understand how the law works. They also don’t understand how the laws of damages work for their respective personal injury claims. The laws of damages deal with quantifying the value of a personal injury claim.

Our lawyers would love a system where you can arbitrarily make up numbers to assess general damages for claims.

The limitations of those damage awards would only capped at horizons of your imagination.

You can start with guestimating that the value of your claim is $10,000,00. But why stop there? Why not bump up the value of your claim to $20,000,000……But why stop there?!?!? $30,000,000 is a larger sum than $20,000,000…..You can keep going until your face turns blue. There are no limits aside from your imagination.

Unfortunately for claimants and their personal injury lawyers, the laws of damages don’t work like that. Continue reading →

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What does it take to be found disabled under your Long Term Disability Policy? A kind adjuster? A lenient policy? Good handwriting on the LTD application? A good LTD lawyer? Or is it just dumb luck?

Our lawyers wish we had the answer to get you approved right away. A good lawyer will certainly help, but a good lawyer can only play the hand that s/he has been dealt.

Even winning claims can take time to win as the insurer has to be satisfied that the applicant’s disability is not only legitimate, but also meets the definition of “disability” contained in the policy of insurance.

The tricky thing for adjusters is that every LTD policy is different. They all contain different definitions of disability, different time lines to consider, along with different benefit amounts.

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In a recent survey taken by the “Campaign Research Poll” of 506 Toronto voters found that 60% of them wanted cyclists to be licensed and insured. 57% of those surveyed also wanted the City of Toronto to have more bike lanes.

This poll raised significant debate for motorists, cyclists and politicians. Personal Injury Lawyers and insurers got involved as well (as they should).

It should be noted that some of the most serious accident cases which our law firm handles deals with cyclist accidents. It only makes sense. When a bike collides with a car, the car will win! The bike doesn’t have seatbelt, bumpers, anti lock brakes, or air bags to soften the blow. A bike accident is a pure collision of flesh and bone vs. car and pavement. The damage is frequently catastrophic, even fatal.

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Our law firm often gets calls from soon to be Long Term Disability claimants asking our lawyers to fill out their forms. We realize that the LTD application forms can be overwhelming, complex, with some hard to answer questions. Not all questions can be answered in a “yes/no” fashion.

Filling out LTD application forms is not something which our lawyers do. But, we can help give you a few tips on how to get your Long Term Disability claim a fighting chance of getting approved. Without further ado, here are Goldfinger Injury Lawyers’s tips on how to get your LTD claim approved at first instance:

1. If you want a benefit, you first need to apply for it! This seems like such a simple premise, but you would be amazed at how many people don’t understand it. Your Long Terms Disability benefits won’t just land magically in your lap without you first applying! Do you really think that an LTD insurer wants to pay you money without you not even yet applying for said benefit? LTD insurers don’t exist to give away money for nothing… There are mounds and mounds of forms which need to be submitted. And just because those forms have been submitted, doesn’t mean they will be looked at in a timely manner. Get those application forms submitted, and don’t sit around on it. There are  provisions in every LTD policy our lawyers have seen with respect to the timing of the application in relation to the last day you may have worked. Waiting around on getting that application in will jeopardize that timing and may give the insurer a reason to deny your LTD claim for failure to abide by the limitation periods as set for in the LTD policy.

2.  Make sure that your family doctor or specialist is on board with the LTD application. You will need a doctor or specialist to complete a medical certificate in support of your LTD application. If your family doctor or specialist doesn’t believe that your disabled, chances are the medical certificate which s/he completes will also NOT support your LTD application. That unfavourable medical certificate will give the LTD insurer a reason to deny your claim. If you have a more supportive doctor of your disability, consult that doctor for his/her assistance in completing the medical certificate.

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Sometimes, our personal injury lawyers think that car accident law has been purposely designed just to trip people up.

How else can you explain:

a) $36,920 deductible for a pain and suffering award in a car accident claim

b) $73,840 deductible for a pain and suffering award if involved in 2 car accidents

c) $110,760 deductible for a pain and suffering award if involved in 3 car accidents!

d) these deductibles increase year after year with inflation

e) serious and permanent threshold for pain and suffering claims which cannot be shared with the jury at trial

f) the deductibles cannot be shared with the jury at trial either

The purpose of car insurance and accident benefits is consumer protection legislation. This seems like a stretch goal (pardon the Kathleen Wynnism) considering the way the law actually works, and how the law has evolved such that the scales of justice are tipped so far in favour of insurers, it makes it almost miraculous if a Plaintiff succeeds at trial.

This theme of insurance law as consumer protection legislation was highlighted by the Supreme Court of Canada in the decision of Smith v. Co-operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30 (CanLII) If you haven’t read the case, it’s worth a read. An oldie, but a goody!

Here, the Supreme Court stated:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.  The Court of Appeal was unanimous on this point and the respondent does not contest it.  In Insurance Law in Canada(loose-leaf ed.), vol. 1, Professor Craig Brown observed, “In one way or another, much of insurance law has as an objective the protection of customers”….0001r_Goldfinger-200x300

The Supreme Court goes on to add:

In my opinion, the insurer is required under s. 71 to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person.  At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, that mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process.  Without this basic information, it cannot be said that a valid refusal has been given. 

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In Canada, we live in a free and democratic society. We are supposed to have access to the Courts when things go wrong in order to pursue justice and protect our rights and freedoms. When you’ve been wronged, and all else fails, you ought to be able to pursue your remedies before a Judge, in a Court of law.

This concept sounds great. But, the reality is, the idea of access to the Courts to protect our rights and freedoms simply does not exist (notwithstanding any delay in having your case heard, or lack of judicial resources; which is a topic for another day).

Want a few examples? Sure….

Innocent injured worker hurt badly on the job on account of the blatant negligence of their employer. Think you can sue? WRONG! Schedule 1 Employee vs. Schedule 1 employer can’t sue. That claim will likely be statute barred, and the injured worker will need to pursue matters through the WSIB. There are no large awards for pain and suffering (or large awards for that matter) at the WSIB. If you don’t like the result at the WSIB, you may apply for leave to appeal the result to the Court, but your case will NOT be heard by a jury of your peers, if it’s even heard at all.

Involved in a single car motor vehicle accident and your own car insurer is denying your accident benefit claims every step of the way? It would seem reasonable and only logical that the injured motorist can sue their own insurer for benefits denied. WRONG! Those sort of claims are now statute barred under the SABS and the Insurance Act. All disputes must go before the License Appeals Tribunal or LAT. The majority of those proceedings occur in writing, so the injured motorist doesn’t even get their “day in Court” so to say. If the injured motorist isn’t satisfied with the LAT’s decision, they can appeal to the Court, but again, their case won’t be heard by a jury of their peers.

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In the November 6, 2015 edition of the Law Times, personal injury lawyer Brian Goldfinger wrote an article entitled “Three Day Summary Judgment Mini Trial”. You can find a link to Mr. Goldfinger’s article here as reproduced in the Toronto Injury Lawyer Blog.

Our lawyers were wondering when such a situation would occur? How does what seems to be a routine summary judgment motion where Affidavit evidence, and transcript evidence along with case law which is presented to a Judge, get converted to a mini trial or trial of an issue?

In what situation would this occur? How, why, when and by what mechanism does a Judge order a mini trial or trial of an issue in an Ontario personal injury law case?

Hot off the press, here might be your answer to those questions (and more):

CITATION: Minke v. Hartman, 2017 ONSC 3922

COURT FILE NO.: C-584-15

DATE: 2017/06/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

)

  
Steven Minke, Linda Minke, Cameron Minke and Brittany Minke

Plaintiffs

– and –

Stephen Hartman, Foot Works and Foot Works Inc.

Defendants

 )

))

) )

) )

) )

)

)

 Brian R. Goldfinger and Azka Ashan, for the Plaintiffs
Anna L. Marrison and John McIntyre, for the Defendants
  )  
  )  
  ) HEARD: April 12, 2017

THE HONOURABLE MR. JUSTICE G.E. TAYLOR

REASONS FOR JUDGMENT

Introduction

  • This is a motion for summary judgment by the defendants seeking to dismiss the action due to the expiration of the limitation period.
  • Stephen Hartman is a chiropodist registered to practice in the Province of Ontario. From March, 2006 until November, 2010, Hartman provided footcare treatment to Steven Minke through his chiropody clinic in relation to Minke’s diabetic condition. While being treated by Hartman, Minke developed Charcot foot.
  • On May 15, 2012, Minke underwent a below the knee amputation of his right leg as a result of the Charcot foot.
  • By way of a report dated January 5, 2015, Dr. Perry Mayer a physician who specializes in the treatment of feet of diabetics and in particular the treatment of Charcot foot opined:

Had the appropriate treatment been undertaken at the initial presentation of foot deformity, Mr. Minke would not have lost his limb.

and,

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When it comes to litigating Long Term Disability Claims, many disabled claimants don’t know where to start.

How do I sue?

Who do I sue?

Can I sue my own insurer?

If I sue, will I get fired?

How much can I sue for?

Will my case go to trial?

If my case settles, how does the settlement work?

How much do I have to pay a lawyer?

All of these are valid questions. The reality about our law firm is that around half of our clients have NEVER consulted with a lawyer, prior to meeting with one of our personal injury lawyers.

To take that statistic to the next level, did you know that over 95% of our clients have have NEVER consulted with a civil litigation lawyer before (a civil litigation lawyer is a lawyer who sues in Court; personal injury law falls under the realm of civil litigation).

The reality is that a great majority of people are not only new to the legal system, they are also new to the concept of having to sue for denied benefits. It’s understanding this reality which makes us perform betters as lawyers and advocates on behalf of our clients.

With that heartfelt preamble, we prepare the latest installment of the Toronto Injury Lawyer Blog in an effort to help others not so familiar with the law, better understand how the legal system works (when it comes to long term disability matters)

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Members of Goldfinger Injury Lawyers attended at a legal conference a few weeks ago. It had all sorts of lawyers, spanning a multitude of different practice areas. It was great chatting with different lawyers outside of the realm of personal injury law to hear about their success stories and struggles. Even though we may have practiced in completely different areas, we managed shared a lot of common ground aside from just being “lawyers“.

In one particular conversation, the lawyers at Goldfinger Injury Law were sharing our stories about the delay in having some of our accident cases heard in a timely matter. Even since the landmark Supreme Court of Canada decision in R. v. Jordan, we were still seeing significant delays on the Civil end of things.

The Criminal lawyers we were sharing that story with looked a bit perplexed. Those lawyers had seen a noticeable push by the Courts to have their cases expedited (even if it wasn’t in either party’s best interest).But when he heard that Court resources were being shifted to the criminal sphere at the expense of other areas (like car accident, disability and personal injury law), those lawyers seemed upset.

One lawyer in particular shared with me that he believed the legal system as we know it was rotting away, seemingly faster every day; and that only the lawyers on the front lines truly understood the decay. With the delays in Court, the lack of judicial resources, the depletion of the legal aid system; only the truly rich and wealthy will have the means to advance their claims, and endure the wait time (and associated legal bills) to have their day in Court.

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