TORONTO INJURY LAWYER BLOG

Evidence in personal injury cases includes but is not limited to hospital records, ambulance reports, witness statements, police records, photographs of the accident scene, photographs of injuries, medical reports, employer’s records, tax returns, OHIP summaries, bank statements and the list goes on.

The problems is that evidence can disappear making an accident victim’s case that much more difficult to prove and that much more difficult to quantify. Take the slip and fall case on an icey patch of pavement. If photographs are not taken of the accident scene immediately, it will be nearly impossible to fully appreciate how the accident happened and who is at fault. We can certainly make educated guesses, but knowing with certainty how large the patch of ice was, where it was, and how slippery it was will be very difficult to re-create completely. What about the lay witness who saw the person slip and fall on the ice. If your lawyer does not get their contact information immediately and conduct an interview, it’s possible that witness may not be reachable in the future because of an address change, they may have forgotten what happened, or they may simply no longer want to co-operate. What about the injuries to an accident victim? Blood, breaks and bruises heal. If your lawyer does not have photographs of what those injuries are, it will be very difficult for the insurer, judge or jury to fully appreciate the extent of the damages to the accident victim.

Pictures, whether they are of an accident scene or of injuries are powerful evidentiary tools used by all Plaintiff lawyers to help their clients prove their cases. The more pictures which a Plaintiff lawyer has to prove their case, the better. But if accident victims wait too long to contact their lawyer to build their case; evidence gets lost, damaged and photos may be impossible to attain; thereby hurting the accident victim’s case.

We recieve many calls at our office from accident victims who want to know how long they have to sue for damages arising from their accident. You have 2 years from the date you knew or ought to have known you have a cause of action. The date that you knew or ought to have known you have a cause of action, is, more often than not, 2 years from the date of the accident. The limitation period to bring your action is set out in an Ontario statute called the Limitations Act, 2002. The Limitations Act, 2002 replaced the old Limitations Act. There is little a lawyer can do to change the limitation periods as set out in the statute, aside from present your case in such a way to show that your case was in fact commenced within the limitation period.

If you try to sue outside of a limitation period, the insurer will likely attend before the Court and seek a Judge’s persmission to have your claim struck for being brought outside of the limitation period (this is called a motion). If the insurer is sucessful, not only will your claim be struck, but there’s also a good chance that you will have to pay for the insurer’s legal costs for bringing your claim outside of the limitation period. No Plaintiff lawyer wants this to happen to their client; especially when they know their client can’t afford to pay for the insurer’s legal costs.

Ignorance of a limitation period is not a defence. Even if you are newcomer to Canada, and you have no idea how limitation periods work or what they are; this will not protect you.

One of the first things I’m asked is how do my fees work in personal injury cases. This is particularly important to people after an accident when they aren’t working and aren’t earning any income as a result of their accident.

All lawyers have different fee structures. Some lawyers ask for money up front. Some lawyers charge their hourly rate as the case goes, and you if don’t pay that hourly rate, they won’t work. Some lawyers work on a contingency basis.

Contrary to popular belief, contingency fees are legal in Ontario. A contingency fee agreement means that the lawyer will not ask you for any fees until your case settles. Once the case settles, your lawyer will take a percentage of the award to account for their fees. The lawyer takes a big risk in this sort of agreement because they risk not getting paid at all if they can’t recover anything for your case. But, this agreement is particularly good for the client and their family, because they don’t have to worry about paying their lawyer or funding the costs of the case until the case is resolved. Personal injury lawyers understand that it can be very difficult for accident victims to fund their cases; which is why many personal injury lawyers have embraced contingency fee agreements for their clients. This is very important, because it gives people who wouldn’t otherwise be able to afford the cost of a lawyer, access to the courts and access to justice.