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Facts don’t care about your feelings.

Neither does the law.

A Judge’s job is to assess and judge your case. There will be a winner, and there will be a loser. Sometimes, after legal costs and the time invested into a case are taken into consideration, all of the parties will be losers.

Cases are won and lost based on evidence. Contrary to popular belief, cases are not won based on your feelings or emotions. The law is hard on feelings and emotions. The cold, hard, truth which Plaintiffs need to hear is that Courts don’t care much for emotions (even though they say that the will listen); especially if the evidence isn’t there to support the case. Emotions can certainly bolster a case; but they won’t tilt the scales of justice without proper evidence to support the claim.

Evidence are the meat and potatoes of the case. Emotions, and feelings are the seasoning. You can certainly feast on meat and potatoes, but you cannot feast on seasoning alone.

It’s very difficult for an injured accident victim to separate their emotions, from the evidence at hand. This is understandably. Accident victims (for the most part) aren’t lawyers, and have never stepped inside of a Courtroom. They have no idea how the legal system works. Some believe that the party which yells the loudest; or who shows the most emotion before a Judge and Jury having not taking into consideration the evidence required for a successful personal injury case will be the victor. This could not be further from the truth.

In order to win a personal injury case, a Plaintiff must establish three factors:

  1. Liability
  2. Damages
  3. Causation

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Personal injury law is rather strange.

In all cases, the Plaintiff has been hurt or injured. Aside from being hurt or injured, the majority of Plaintiff share another thing in common.

The overwhelming majority of Plaintiffs have never been involved in a civil lawsuit before! That means that they have very limited knowledge about the Court system and how it works. They aren’t familiar with lawyers and legalese. They aren’t familiar with the law and how it works. But most importantly, it’s a message that these Plaintiffs aren’t litigious people. That means that they either don’t know how to sue, don’t want to sue, or want to stay as far away from the Courts as possible. Because let’s face it, the Courthouse is not a pleasant place to be. At the end of the day, the vast majority of Plaintiffs are legally unsophisticated accident victims who were in the wrong place, at the wrong time.

Yet, the Courts treat Plaintiffs who have never sued, never retained a lawyer, or stepped foot inside of a Courtroom like they should know all of the ins and outs of the law. And if they don’t know the ins and outs of the laws, large, highly sophisticated litigants such as insurers get to reap those benefits.

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Injured accident victims in personal injury cases will not get the benefit of the doubt.

A big part of that is because how our legal system works.

At law, an injured Plaintiff is required to establish their case to a Judge and Jury. The Plaintiff is required to bring evidence to the Court to prove that their allegations are in fact true. Without the evidence, the allegations are just that. Mere statements of demand, without any facts or evidence to back them up.

At trial, every Plaintiff will get up on the stand and suggest that they are in tremendous pain; and are enduring tremendous suffering.

But those statements aren’t enough. Without the evidence to back them up, they are just that. Self serving statements which will carry little weight at trial.

That’s not to say that a Judge won’t believe you; or won’t empathize with you. But a Judge will need more to make his/her ruling and award a Plaintiff the damages which s/he is seeking.

Explained another way: A Plaintiff cannot demand $1,000,000 and expect the Judge to award him/her $1,000,000 if there is no evidence to substantiate the claim.

These concepts are very important.

Why?

In my over 20+ years of practicing personal injury law, you would be amazed by the number of Plaintiffs who expect the law to work differently. Expectation of how are legal system works, and of how damages are proven does not mesh with the reality of how our system works. There is an expectation from many people that simply because they have been involved in a serious accident means that they will automatically be compensated for millions of dollars, without question or reservation.

That could not be further from the truth.

The harsh reality is that the legal system in Ontario is very difficult on Plaintiffs in personal injury cases. In fact, the way that the legal system works is that defendant insurers are afforded more protections than the injured Plaintiffs themselves. This seems contradictory given that the Plaintiff is the injured party and the Defendant caused injury to the Plaintiff. So why should more protections be afforded to an at fault Defendant as oppose to an injured, innocent accident victim who was simply in the wrong place, at the wrong time. This inequality of rights is magnified in car accident cases in Ontario where defendants are entitled to a secret credit of over $40,000 per claim regardless of fault (statutory deductible), and also entitled to the benefits of a threshold defence for the Plaintiff’s injuries (again, regardless of fault). This means that a Defendant could have been drunk driving, texting, and ran a red light; yet still; they will have the benefit of two very large statutory defences in order to escape a civil damages verdict at trial. Seems terribly wrong to many, but those are the cards which we have all been dealt in Ontario.

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linkedin-2-300x300Personal Injury Law in Ontario does not make sense. It’s overly complicated, and intentionally hides things from Jurors.

It would make sense to present a Juror (who likely has no prior experience being a Juror) with all of the facts so that they can make a just decision.

Yet, in personal injury cases, there are things which lawyers are NOT allowed to share with the jury. Insiders (like Judges, insurance adjusters, and lawyers) know about what can be shared with a jury, and what cannot. But jurors are intentionally left in the dark.

Here are a few things which lawyers cannot share with the jury, at a personal injury trial.

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For over a decade I have been blogging about personal injury law in Ontario, and across Canada.

Most of the time, I get into the nitty gritty about personal injury law.

Other times, but not very often, I comment about things completely unrelated to personal injury law, but those ideas are on my mind and I want to put my thoughts on wax. This is one of those times.

I have a young boy who is really in to soccer. He plays on a soccer team. He enjoyed watching the World Cup. He loves watching highlights of goals.  When is isn’t playing soccer, he’s kicking a ball around the house.

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Everyday, our personal injury law firm receives calls from people who have been involved in car accidents in Ontario.

Some people reside in Ontario.

Other people reside outside of Ontario.

Some accident victims have their own car insurance.

Others have no form of car insurance whatsoever.

Their common connection is that they’ve been involved in a car accident in Ontario; and now; don’t know what to do; or where to turn.

They don’t know the right things to do. They don’t want to do the wrong things either. It’s their first time being involved in a serious car accident and they are looking for answers.

People tell me that they weren’t taught in school how to handle a car accident case with an insurance company. Nor is there any quick and easy book on what to do after they’ve been involved in a car accident. They are right in stating that what to do after a car accident isn’t on the standard school curriculum. But, there is a fast and quick guide on what to do after they’ve been involved in a car accident in Ontario. The Goldfinger Guide to Fair Compensation is a great starting point and it can be found in the link above. Reading the Toronto Injury Lawyer Blog (as you are right now!) is another great resource.

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The July 1st Canada Day Long Weekend is fast approaching. People are excited to celebrate Canada Day.

Having practiced in the field of personal injury law in Ontario for over 2 decades, I can tell you that there are patterns for car accident cases.

Would it surprise you if I told that that our office sees a spike in car accident; and other accident related claims shortly after a long weekend? While I cannot single out the Canada Day Long Weekend in particular; what I can say is that we see a spike in accident calls shortly after a long weekend.

There are very good reasons for this.

For starters, many people are on the move over a long weekend. They are all out and about. Going on a trip, driving off to see friends, headed camping or to a beach to relax. Either way you slice it, more people are on the move over a long weekend, compared to a normal weekend.

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After a car accident, an innocent accident victim needs care and treatment to recover from their accident related injuries.

Treatment like physiotherapy, massage, chiropractic care and seeing a psychologist are not free. These items are not covered by OHIP for accident victims. If you want any of this sort of treatment, you will either need to pay out for it out of your own pocket, have an insurer agree to pay for it; or work out some deal with the provider that they provide care now; and that someone (you or an insurer) pays for it later. If the insurer doesn’t agree to pay under this last model, you are the one who will end up paying for it personally.

This is when the OCF-18 Treatment Plan comes in to play. This is essentially a permission slip; whereby the service provider puts forth a plan to provide treatment to an injured accident victim at a set rate. The insurer will either approve (or partially approve) for the treatment. Or they will deny it.

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No personal injury case is ever the same.

Some may be similar; or may share similar characteristics. But, no two personal injury cases are never the same.

There are so many variables which can change a personal injury case. These variables are seemingly infinite. Here are a few which personal injury lawyers and Courts have to consider:

  • The age of the Plaintiff. This impacts his/her future income calculation, future care, and life expectancy
  • The way the accident happened
  • The policy limits relating to the accident
  • The availability of collateral benefits to a Plaintiff
  • How much the Plaintiff was earning (or not), in the years before the accident
  • The Plaintiff’s pre-accident and post accident health, along with what they did (or didn’t do) to get better
  • How the Plaintiff, and/or Defendant presented at Examination for Discovery
  • If any surveillance has been taken of the Plaintiff; and if so; what that surveillance showed, or didn’t show
  • The status of a Plaintiff’s accident benefit case (where available)
  • What the Defence Medical Reports say vs. what the Plaintiff’s expert reports say
  • The information contained in the clinical notes and records
  • Is the family doctor supportive (or not) to the Plaintiff’s case
  • Are there any causation issues with respect to the accident related injuries
  • Are the injuries subjective or objective. If the injuries are subjective, is the Plaintiff credible, believable and/or likeable
  • Will the case be proceeding by way of Judge alone, or in front of a Jury
  • Special considerations when it comes to liability (i.e. suing a government, municipality vs. suing a private citizen)
  • In the case of a motor vehicle accident; are the threshold and deductible live issues for the case

And the list goes on and on.

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What happens when someone hits you with their vehicle, and they drive off from the accident scene? The at fault driver is unidentified. The collision took place so quickly, that you weren’t able to get a license plate number. The at fault driver obviously didn’t stop to check if you are ok; or to exchange insurance information. Or perhaps the injuries are so bad that you loose consciousness; or you are in so much pain that you can’t track down the at fault driver.

How do you handle these situations? How do you sue a party who cannot be identified?

These are great questions.

These types of unidentified driver situations happen more than you might think.

Often, when they happen, the at fault driver has their nefarious reasons for not stopping. They might be trying to avoid all interaction with the police because they shouldn’t be driving; the are operating a vehicle illegally; they have something illegal/stolen in their vehicle; they are operating a stolen vehicle; or a vehicle which they aren’t allowed to be driving; they are unlicensed; they are uninsured; or perhaps they have so many car accidents on their driving record that one more will result in an automatic suspension of their driver’s license; or a dramatic increase of their car insurance premiums. In all of these situations, the at fault driver is attempting to avoid any interaction with authorities.

In other cases, the at fault driver may not have even known that they were involved in an accident at all. They may have not noticed, or felt any impact resulting from the collision. This can happen when a large vehicle makes the slightest contact with a cyclist or a pedestrian. The impact to the large vehicle is hardly noticeable on account of the size of the vehicle. On the other hand, the impact to the pedestrian or cyclist can be catastrophic

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