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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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The term Fibromyalgia is becoming dated, although doctors, insurance companies and disability claimants still use it.

The preferred term according to the Arthritis Society of Canada is “Chronic Widespread Pain“.

Many of our clients deal with Fibromylagia/Chronic Widespread Pain. We often see it associated with many other symptoms including but not limited to depression, anxiety, fatigue, impaired memory, impaired concentration, shortness of breath, and irregular sleep patterns/habits.

Some doctors believe in Fibromyalgia. Other simply don’t.

Firbromyalgia and Chronic Widepread Pain have been recognized and National Guidelines have been endorsed by the Canadian Pain Society and the Canadian Rheumatology Association.

But for many large, deep pocketed insurance companies, those endorsements aren’t enough to prove an injury or a disability under a Long Term Disability Policy with an insurer like Manulife, Great West Life, SunLife, Desjardins, SSQ, RBC Insurance or Industrial Alliance just to name a few of the big ones.
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In Ontario, injured parties who are seeking for compensation generally have 2 years from the date of the accident, or the date of denial to sue. With the exception of minors and sexual assault claims, this is the general rule of thumb which it should not be taken lightly.

This two year period in which Plaintiffs have to sue is called a “Limitation Period“. And if you miss that limitation period to commence your claim, then you’re out of luck.

We have a specific Act in Ontario devoted specifically to limitation periods. It’s called the Limitations Act, 2002 and it sets out the time periods in which you can, and can’t commence a claim.

Determining when a limitation period begins to run in a car accident, or bike accident case is pretty easy. The time begins to run from the date of the accident itself. It doesn’t take a rocket scientist, or an elite personal injury lawyer to figure this out.

BUT: what happens when the triggering event from when time begins to run isn’t as clear as a car accident. What happens in cases not caused by torts or negligence on a identifiable date; such as in a long term disability case for benefits which have been wrongfully denied.

That’s when limitation periods can get tricky and when disability claimants and injured parties can get tricked. Keep reading so you don’t get tricked like countless others.
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