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For many, this May long weekend marks the official beginning of spring/summer; depending on how you evaluate the temperature. After a very long, cold and windy winter, this May long weekend is a warm welcome; even if the temperatures aren’t “July in Windsor warm“.

As an accident lawyer, our firm has seen many cases over the years, which have stemmed from negligence or bad decisions over long weekends.

With this edition of the Toronto Injury Lawyer Blog, we wanted to give you some safety tips; do’s and dont’s; to make sure that this May long weekend is a pleasant and safe one, for you, your family and those around you.

1. Don’t drink and drive. Whether it’s a car, motorcycle, ATV, E-bike, Sea-doo, or a boat; alcohol and motor engines don’t mix. I can’t begin to tell you about the spike in calls that our law firm receives following long weekends with respect to alcohol related injuries, or drunk driving accidents. When you drink, your judgement is impaired. So is your co-ordination. Getting behind the wheel of a motor vehicle after drinking not only puts your own life at risk, but also the lives of your passengers and other motorists with whom you’re sharing the road or waterway. We all have seen the public service advertisements from such groups as Mothers Against Drunk Driving, or Ontario Students Against Impaired Driving. Driving drunk is ALWAYS a bad decision whereby you’re putting somebody’s life at risk. The consequences can last forever so be smart about it.

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The governing Liberals announced Ontario’s budget on April 23, 2015. Finance Minister Charles Sousa, backed by Premier Kathleen Wynne were in fine form that day. When one thinks of the term “budget“, we would think of all things financial, including taxes, public spending on healthcare, infrastructure, and education. And to be fair, healthcare, infrastructure and education were all addressed in the 2015 budget.

But what often gets swept under the rug without any debate, deliberation or consultation with stake holders is CAR INSURANCE.

Why is this such an important topic? Well, for starters, if you want to drive a car in Ontario, you need to have car insurance. It’s the law. Check the Compulsory Automobile Insurance Act. That’s right. Ontario has a specific act regarding operating a motor vehicle WITH car insurance.

So, if Ontarians are required to operate a motor vehicle with car insurance, then it’s going to be important to all motorists in the province. This amounts to a lot of people. And if all of these people need to have car insurance, then the product they’re required to purchase better be a good product, and protect their rights in the event of property or physical damage.

For insurance companies, car insurance is important because it’s a way for them to make money. What the legislation says regarding what insurers are required, and not provided to require under these policies of insurance goes straight to their bottom lines. The more they can charge by providing the least amount of benefits will increase their profits and make their shareholders happy.

For politicians car insurance is important because if rates are too high, then voters are unhappy. So, the aim of politicians when tinkering with car insurance is to get the cost of car insurance down. But how do they do that? The government doesn’t set car insurance rates. But they do however legislate what benefits are required to be provided in said policies and how benefits work; which ought to have some form of correlation with the price of car insurance (among other factors such as driving record, age, where you reside, driving experience, and the type of vehicle your drive).

So how has car insurance in Ontario been affected since the new budget was announced? Keep reading and I will share that with you.

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The time immediately following your car accident can me the most difficult time; and the most important time in terms of getting your case on to the right start.

There is a LOT of work to do immediately following your car accident. Lawyers know this. Insurance adjusters know this. Unfortunately, the general public doesn’t know this.

I can say with utmost certainty, that the amount of work required on behalf of accident victims and their families has gone up exponentially with the introduction of no-fault accident benefits in Ontario. This no fault accident benefit scheme was supposed to protect consumers (that means every day Ontario drivers like you and me).

In the beginning, I’m sure that it did. The system was not as complicated, not as adversarial, and did not have a myriad of forms or medical experts who focus on only in accident benefit claims. Nowadays, the system has more forms than you could ever possibly imagine; concentrated clinics and health care professionals who only handle treatment for car accident cases; along with a backlog of over 60,000 mediation and arbitration cases dealing specifically with accident benefits before the Financial Services Commission of Ontario (FSCO).

By completing one form incorrectly, you may be jeopardizing your case from the start. How so? Take the example of electing or FAILING TO ELECT for the proper benefit following your car accident. If you elect an Income Replacement Benefit, but you weren’t making any income before your accident, you may have been better off electing the Non-Earner Benefit. How do you make an Election? You have to complete the OCF-10 Election Form. If you aren’t a lawyer or somebody who works in the car insurance industry, you likely don’t have the foggiest idea about the variety of benefits available, how to claim those benefits, and what on earth to do with all of these forms. This is why the start of the case is such an important and difficult time. Getting your case off on the wrong foot can forever jeopardize an otherwise meritorious claim.

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I was at our Peterborough Office at 380 Armour Rd in the East City today. En-route, it began to snow. Like real, hard core snow.

Confession: I had my snow tires removed 3 weeks ago. With temperatures below freezing in Peterborough and the Kawarthas, I could have benefited from keeping those snow tires on just a bit longer.

In any event, I will make a Goldfinger Guarantee that the weather will get warmer, and we will all finally have an opportunity to get outside and feel a bit more active.

The “activity” part of this Toronto Injury Lawyer Blog Post segues (pronounced seg-ways) nicely in to this week’s topic; top bicycling safety tips for Ontario cyclists. We usually publish some bike safety tips when Spring is around the corner because we know know much people love to get out there and be active. Whether you cycle everyday for your commute to work in a big city like Toronto or London; or you enjoy a weekend ride on the country roads outside of Peterborough and the Kawarthas, these tips will ensure that you’ve done everything you can to stay safe.

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The Law Society of Upper Canada is the regulatory body which governs lawyers in Ontario. They are considering some changes with respect to how lawyers do business, and administer services throughout the province.

Currently, lawyers can provide legal services to the PUBLIC in a wide variety or ways:

  • A sole practitioner: a lawyer operating alone or with other non lawyer employees (lawyer owned personally)
  • A Professional Corporation: a lawyer operating a law firm through that lawyers professional corporation (lawyer owned through the PC)
  • A Limited Liability Partnership (LLP): Lawyers in partnership running a law firm (lawyer owned)
  • A Limited Partnership (LP): A lawyer partnering with another lawyer or a non lawyer to form a parnership (lawyer owned)
  • A Multi-Disciplinary Practice (MDP): A lawyer partnering with another business professional to provide a variety of legal and non-legal services (lawyer owned with others)

Those are the basic models of business associations for Ontario Law Firms. The LSUC is considering allowing non-lawyer ownership of law firms in the form of Alternative Business Structures.

This would allow non-lawyer investment and ownership of law firms. The LSUC is considering whether or not to allow non-lawyers minority ownership or whether or not there should be unlimited restrictions on who can own the law firm.

Australia and the United Kingdom have permitted UNRESTRICTED ownership  by non-lawyers of law firms. Spain, Italy, Denmark and Singapore allow minority non-lawyer ownership.

The question is, what should Ontario do; and how will it impact the legal landscape?

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Driving while using or even holding a hand held device has become a hot button topic across Canada. Charges in relation to distracted driving are on the rise, and are slowly catching up to those charges related to impaired driving.

In Ontario, it’s illegal for drivers to talk, text, type, dial or email using hand-held cell phones and other hand-held communication or entertainment device; think smartphone or I-Pad.

Attentive drivers keep their eyes on the road and their hands on the steering wheel. They aren’t distracted by their tablets or cell phones. It’s proven that drivers who operate cell phones while operating a motor vehicle are 4x more likely to be involved in a car accident than drivers who simply focus on driving. Even more interesting is that when motorists take their eyes off of the road for more than 2 seconds, the chances of them being involved in a car crash almost doubles. This is why it’s so important to keep your eyes on the road and not your phone.

Impaired driving is something different. When we thought of impaired driving in the past, we thought of driving under the influence of alcohol (over 80 as the term is commonly called in Ontario Courts, because that’s the legal limit).

Today, driving under the influence isn’t just limited to drunk driving offences. Ontario is currently 1 of 3 Canadian jurisdictions without any specific offenses related to driving under influence of drugs or other narcotics. We ought to have specific laws which prevent and prohibit such behaviour right?

The Ontario Legislature is presently in its third reading of Bill 31, which might be called “Making Ontario’s Roads Safer Act, 2015; or something really catch and original like that. You know how the Government likes originality and long titles for its acts. If you haven’t read a copy, you should check it out here.

The Act will carry specific wording with respect to operating a motor vehicle while under the influence of drugs or other narcotics.

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Our law firm litigates countless Long Term Disability (LTD) claims against large, multi-national insurers such as Great West Life, Sun Life, Manulife, Industrial Alliance, Desjardins, SSQ, Canada Life, Empire Life, RBC Insurance, Co-Operators, Equitable Life and the list goes on.

Litigating these claims can prove to be difficult for a variety of reasons.

It’s important for all claimants to understand that these claims are based on what the policy says. In our office, we refer to this concept as the four corners of the insurance policy.

There are certainly ways around these four corners, along with way at tackling damages for LTD claims which are outside of the scope of the police such as punitive, aggravated and damages for mental distress. But these topic will not be covered in this edition of the Toronto Injury Lawyer Blog Post.

For now, we are going to focus on damages under the LTD policy.

The policy will define what the monthly LTD benefit amount is; how long benefits will be paid for; when those benefits will begin to be paid; what medico/legal definition a Plaintiff must meet in order to be considered disabled under the policy; what injuries are and aren’t covered under the policy; and what exclusions would limit recover under the policy.

Plaintiffs/Claimants don’t write their policy. Insurance companies do. Accordingly; many provisions contained in long term disability policies aren’t there to protect claimants. Rather, they are there to protect the insurer’s interests so as to mitigate their damages and minimize any potential pay out.

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This week the Ontario Court of Appeal released a much awaited decision in the case of Westerhof v. Gee Estate. The appeal raised the question of whether or not the Rules of Civil Procedure allowed only experts engaged by or on behalf of a party to provide opinion evidence for a case; OR whether the Rules ought to be construed more broadly such as allowing ALL witnesses with special knowledge to provide opinion evidence. This later group is much broader broader and could include treating doctors (family doctors) who have not been formally retained by either party to the litigation to provide their opinion evidence.

In order to better understand this case, it’s important to understand what happened in 2010. That year, the Rules of Civil Procedure were amended to create Rule 53.03 which set out requirements, and also set out that an expert must sign a specific form called an Acknowledgement of Expert’s Duty Form (Form #53). Continue reading →

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Only 1% of car accident cases go to trial.

That means that 99% of car accident cases settle outside of the courtroom.

There are many advantages to settlement. Certainly of the settlement and the lack of appeal rights of the parties to the settlement come to mind. You control your own destiny in a settlement vs. the uncertainty of the trial process (and appeal process thereafter).

This is very important because if you win big at trial, there’s nothing stopping an insurance company from tying up the case for many more years through their appeal rights following a trial.

But I don’t want to focus on settlement in this edition of the Toronto Injury Lawyer Blog Post. What I would like to focus on is what happens when a case actually goes to trial, in front of a jury.

Jury trials need to be requested by one party or the other. They aren’t automatic. A party will file a Form 47A Jury Notice. Some cases (such as cases against a Municipality) forbid jury trials.
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Clients frequently believe that because a car accident happened, and they’re not at fault, that they’re automatically entitled to compensation for pain and suffering.

That might have been the case in the 1960’s or 1970’s during the “auto-lotto“, but that’s certainly not the case in Ontario anymore.

Lawyers refer to those times as the “auto-lotto” because just being involved in a car accident, no matter how minor, likely resulted in some form of recovery for the Plaintiff.

The laws have changed dramatically, and because of these changes, insurers are looking to different factors in their assessments to claims.

Having over a decade of experience representing accident victims in helping them get the compensation they deserve, our lawyers have observed several trends which insurers look to in assessing the value to car accident claims. These little things aren’t things which people normally think of; but which insurers place a lot of weight on.

With this latest edition of the Toronto Injury Lawyer Blog, we will examine what those sometimes overlooked factors are which insurers place a lot of weight on; which people tend not to give much thought about.
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