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What’s an Examination for Discovery?

This is an opportunity for the lawyer for the insurance company to ask you all sorts of questions, while under oath, about your accident case.

It’s called an Examination for Discovery because the purpose of the exercise is to “discover” more about you, your injuries, the accident, and your case.

It’s the first, and likely the only time that the lawyer for the insurance company will get to meet with you, face to face, and ask you questions under oath. It’s important to make a good impression at discovery. Why you ask? Well, if you don’t present well, or if you don’t come off as a likeable, credible, or geniune person, then it’s likely the lawyer for the insurance company will report this back to his principals. They will likely devalue your case, or make it a more difficult one to settle.
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Johnny Careless was an interesting fellow. To say that he went against the grain is an under statement. Johnny rode his bike without a helmet. He drove his car without wearing a seat belt. He crossed busy intersections against red lights and don’t walk signals. He texted while driving. He wasn’t one to follow rules. Whether it would be the rules of sport, the public library, or the rules of the road provided under Ontario’s Highway Traffic Act. He was, quite simply, a careless individual.

Johnny was going nowhere fast. But all that changed one fine autumn day when Johnny was a passenger in his buddy Ricki Rhodes Chevy Camaro. Ricki was just like Johnny, a careless guy who didn’t much care for rules. Ricki was driving at excessive speeds along Highway 401, West of Mississauga, and lost control of his car causing it to strike head on into the side rail. Johnny didn’t remember what happened. He lost consciousness in the accident. All he remembers is waking up with blood on his face, on a stretcher with flashing ambulance lights glaring at him. Doctors told Johnny that he sustained a traumatic brain injury, along with a fractured ankle and 4 broken ribs. Ouch is right.
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I just wanted to begin this Toronto Injury Lawyer Blog Post by first making quick reference to one of my previous entries. It’s the one dealing with how the OPP’s privacy legislation can impact your case, which was published on July 30, 2013. You can check it out in the Archives of the Blog here.

Our office received 2 OPP Motor Vehicle Accident reports last week; along with the police officer’s notes, driver statements, witness statements etc. from 2 different accidents. We paid around $150 for each set of records. That’s $300 for all you math majors out there.

The purpose really for requesting these records is to find out who’s the bad guy, where they live, their license plate # and other information so that we can track these wrongdoers down, and conduct any criminal or offense investigations in relation to this particular accident, or previous accidents. You also want this information in order to get the address for service of the Statement of Claim. You can’t serve a claim on a person without an address with an Order for the Court for Substituted Service.

What did we get from the OPP?
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Yesterday, there was just a terrible crash between a double decker OC Transpo Bus and a Via Rail Train at Fallowfield Station in Ottawa, ON.

Dozens were injured. 6 were left dead. The majority of the injured were on the bus. But the psychological impact will likely be felt by all, including the friends/family of the injured and deceased, along with the community for years to come. The injured were taken to various hospitals around Ottawa. 10 are reported to have critical injuries.

The names of the 6 deceased have been released. Having the names of those who departed certainly humanizes the story. They are:

  • Connor Boyd, 21
  • Rob More, 35
  • Kyle Nash, 21
  • David Woodard, 45 (the bus driver and a 10 year veteran of OC Transpo)
  • Karen Krzyzewski, 53
  • Michael Bleakney, 57

All of the victims were on the bus. 5 were pronounced dead at the scene of the accident.
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Full disclosure. I’ve seen first how working long hours can impair your judgment.

Doctors, Residents and Medical Students have ludicrous call demands/schedules at teaching hospitals. You should see them post call! Lawyers, Clerks and Articling Students have ridiculous deadlines to meet and pull all nights all too often. You should see them the morning after the all-niter. Taxi Drivers work LONG shifts day after day (and their job is to drive others). Police officers, paramedics and firemen also have some pretty crazy hours.

But the story about the unpaid intern, Andy Ferguson in Alberta is no joke and speaks to the dangers of working LONG LONG hours then driving home.

First, our thoughts of everyone here at our law office are with Andy Ferguson’s family right now. In case you haven’t heard, Andy was a 22 year old UNPAID intern with the Northern Alberta Institute of Technology. He was completing an internship in order to graduate. He needed to complete a certain amount of hours in order to get his degree. Andy’s internship was at a radio station owned by Astral Media called “The Bear“, a pop rock radio station in Edmonton.

Andy was asked to intern the overnight shift. He didn’t want to. He had just completed 3 previous overnight nights, and was now asked to work a 4th. He was told that if he wanted to complete his practicum, he would just shut and do what he was told.

Andy was NOT happy, as evinced in a text messages to his girlfriend. He wrote to her “F*ck this place“. In a draft email to his professor at the University, which never got sent, he wrote “it would be nice if the people I worked under showed a little more appreciation and respect for myself“.
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Over 4,500 former NFL players suffer from Alzheimer’s disease or depression. 2 high profile suicides of NFL players in the past 4 years (Jovan Belcher & Junior Seau). Was it the sport they loved? Was it that the sport they loved attracted volatile personalities. Nobody can be certain.

But, what we do know is that the players launched a multi billion dollar class action lawsuit against the NFL for their brain injuries acquired while playing the game they loved or continue to love.

The argument: that the league knew or ought to have known of the frequency and propensity of brain injury while practicing or playing and did nothing about it.The league did nothing to protect its players, and put them in dangerous situations. Had the league done a better job protecting the safety of its players, then the likelihood of those players sustaining a brain injury or head trauma would be far less.
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Kudos to University of Toronto PhD candiate, Adrian Verster for crunching the numbers and compiling a list of the 50 most dangerous intersections in Toronto for cyclists.

Haven’t seen the list? Here’s a link to Mr. Verster’s website. Here’s a link to a great article from the Toronto Star on the study.

Lakeshore and Carlaw is the most dangerous intersection according to these figures. Queen St. W at Niagara Street is #2 on the list.

His site starts off with a commentary stating that as a cyclist, it is “quite frightening at times with all the traffic“. I agree 100% with that comment. It can get scary out there! And I’m not saying that because I’m a personal injury lawyer, recreational cyclist and I see the worst of the worst in my field. I’m saying that because it’s dangerous out there for cyclists, regardless of the city.

A lot of our clients have been seriously injured in bike accidents. Some of the most serious injuries our law firm has seen have come as a result of bike accidents. But, it’s important to note that not all of our clients are from Toronto. Bike accidents don’t discriminate age, time of accident, city or intersection. Meaning, just because you avoid these intersections, or you don`t cycle in Toronto, or do so at quiet hours doesn’t mean that your reducing the likelihood of getting involved in a bike accident.

All it takes is one driver not seeing a cyclist, not paying attention, or veering slightly to the curb and that’s enought to cause a bike accident. The car doesn’t even need to come in contact with the bike. If the car veering to the curb causes the bike to also veer to the curb, then the bike makes contact with the curb causing the cyclist to lost control: there you go; accident. Not pretty.
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We have laws for about everything in Ontario. Don’t believe me?

Personal Injury lawyers need to deal with laws for car insurance (The Insurance Act). There’s an act for motor vehicle accidents and traffic safety (The Highway Traffic Act). There’s an act for slip and falls on private property (The Occupier’s Liability Act). There’s an act for slip and falls on public property (The Municipal Act). There’s an act for simple negligence in Ontario (Negligence Act). There’s even Art Gallery of Ontario Act! Seriously! Don’t think we covered that one in law school, but if I worked at the AGO in any way, shape or form, I’d take a read at the act. Here’s the link.

With these all encompassing, acts, it would seem normal that there be an act devoted stricty to dog owners, dog owner liability and dog bites. And here you have it, the Dog Owners Liability Act or “DOLA” as it’s known by lawyers across Ontario.
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I had tell 3 different people today that our law firm couldn’t help them. I hate telling people that we can’t help, but it happens sometimes.

The reason we couldn’t help was the same in each case. Every single caller; all from different parts of Ontario, had been involved in an accident of some kind. And every single caller had waited too long to either investigate their claim, or had waited passed a limitation period.

While I like to think that our office is excellent and can work miracles, we can’t go back in time to collect critical data, witness statements, photographs of the icy patch where you fell, surveillance footage which has been destroyed, or change the law with respect to how limitation periods and notice provisions work. I wish I had a time machine. But I don’t. And without a time machine to remedy mistakes which had been made long ago (namely waiting too long to do anything), there was not much that the lawyers at my office could do to assist these people.

One of the most common things which I hear from injured accident victims in non car crash cases has to deal with surveillance. People always tell me that the cameras were on, and surely they must have caught my slip and fall accident on camera.
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Did you know that if you’ve been involved in a car accident, that there’s a $30,000 deductible for your pain and suffering claim? That means the first $30,000 of your pain and suffering award essentially vanishes. NOTE: This deductible does NOT apply to claims over $100,000.

Also of note, before September 1, 2010, the $30,000 deductible was $15,000; meaning it doubled overnight. In the 1980’s, there was NO DEDUCTIBLE whatsoever.

Some people call my office telling me they’ve been seriously injured in a car accident. When our law firm explains to them how the deductible works for car accident law in Ontario, you can hear their jaws drop to the floor. I mean literally, drop to the floor.

Who on earth would implement a law which says that the first $30,000 of your pain and suffering claim is essentially worthless. Our government; that’s who. But who do you think suggested that our government bring in these laws. It’s sure as not your neighbour who did; because your neighbour doesn’t know and doesn’t really care about how car insurance works.
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