Insurance and injury law is constantly changing through changes in the law, new judicial decisions, and changes in the political landscape. We believe that it is important for us as injury lawyers stay informed of these changes, so that we can better serve our clients. We also believe that it is important to share this information with accident victims and the general public, so that they can be better informed of their rights in the event of an accident.

Medical, Rehabilitation and Attendant Care Benefits

Medical, Rehabilitation and Attendant Care Benefits
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By Laura Pearce

If you are hurt in an automobile accident you are entitled to request the payment of certain benefits from your own automobile insurance company, whether or not you were at fault for the accident. These benefits are called Statutory Accident Benefits, or “SABs” for short. They are also commonly referred to as “no-fault” benefits because their payment does not depend on who was at fault for the accident.
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What Role Does Your Doctor Play In Your Lawsuit?

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By Laura Pearce

If you are a plaintiff in a personal injury lawsuit, your doctor is – and will be – one of the most influential people in your case.

He or she is not allowed to advocate (fight) for you – that is your lawyer’s job. But your doctor’s objective medical opinion does affect your lawsuit.
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Parties Under Disability and Their Protection in Personal Injury Lawsuits.

Personal Injury Law
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By Laura Pearce

In the context of a personal injury lawsuit, a “party under disability” refers to a minor (someone who is under the age of majority) or to a person incapable of managing their property and/or personal care.

For his or her own legal protection, a plaintiff under disability cannot start or continue a personal injury lawsuit unless a “litigation guardian” is in place on the plaintiff’s behalf.

In essence, the litigation guardian “steps into the shoes of the plaintiff” throughout the lawsuit, doing anything that the plaintiff would be required or authorized to do if not under disability. The same lawyer represents both the plaintiff and the litigation guardian.

Sometimes, the plaintiff’s litigation guardian is court-appointed; but usually, the litigation guardian is the plaintiff’s responsible and trusted family member or friend.

As the plaintiff’s “voice”, the litigation guardian participates in every step of the lawsuit. For example, the litigation guardian accepts (or rejects) the lawyer’s advice; can be examined for discovery; and “gives the ok” when it comes to settlement of the plaintiff’s case. Whenever the lawyer requires client input, he or she seeks this input from the litigation guardian instead of the injured party. At trial, the litigation guardian can even testify on behalf of the plaintiff under disability.

The Ontario Rules of Civil Procedure set out the responsibilities of a litigation guardian. The Rules state, in part, that a litigation guardian “shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. If the court believes that a litigation guardian is not acting in the best interests of the plaintiff under disability, the court may remove the litigation guardian and substitute a new one.

In other circumstances, the plaintiff who was under disability might cease (stop) to be under disability; for example, he or she might reach the age of majority or recover from a brain injury. If that occurs, the plaintiff’s lawyer needs to obtain an order from the court allowing the action to continue without a litigation guardian.

As an added protection for a plaintiff under disability, the Rules of Civil Procedure also provide that even if the plaintiff’s litigation guardian agrees to the settlement of the plaintiff’s claim, the settlement still has to be approved by a judge. The judge not only must approve the amount for which the plaintiff’s claim has been settled, but he or she must also approve the manner in which the plaintiff’s settlement funds will be managed and dispensed. In the case of a minor, settlement funds are not paid to the plaintiff until he or she turns 18. Until then, the settlement funds remain in a secure, interest-bearing account monitored by the court.

 

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.

 

 

 

 

 

 

 

What is an Examination for Discovery?

What is an Examination for Discovery
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By Laura Pearce

The Examination for Discovery (“discovery”) is an important early step in a personal injury lawsuit, typically occurring about six months after the Statement of Defence is filed.

Discovery is a formal proceeding during which the plaintiff’s lawyer questions the defendant, and the defendant’s lawyer questions the plaintiff. Its purpose is to provide both sides with factual information that will be utilized throughout the lawsuit to understand what happened and to assess how the plaintiff’s life has been affected by the incident giving rise to the lawsuit.

Due to the formality of the discovery, the person being questioned should dress “business casual”.

The plaintiff and the defendant are questioned separately, under oath, in the presence of their own lawyer. Neither the plaintiff nor the defendant is in the room when the other is being questioned.

Discovery does not take place in a courtroom. It is usually held sitting around a table in an ordinary business office. A stenographer or typist is present during the discovery so that he or she can record all questions and answers. These are later transcribed so that there is a written record of the entire discovery.

Take the example of a motor vehicle collision:

The plaintiff’s lawyer questions the defendant about the collision itself. This includes discussing the defendant’s activities and condition leading up to the collision; the defendant’s explanation of how and why the collision occurred; and what happened at the scene in the immediate aftermath of the collision. The discovery of the defendant usually takes about 30-60 minutes.

The defendant’s lawyer asks the plaintiff questions covering the plaintiff’s personal, educational, employment, and health history; the collision in issue; and the plaintiff’s injuries, impairments and losses (functional, emotional, financial, etc.) caused by the collision. In essence, the discovery of the plaintiff covers the plaintiff’s “whole life”, so it takes much longer than the defendant’s discovery. A plaintiff is typically questioned over 4-5 hours.

When the discovery is over, both lawyers will leave with a better understanding of the case’s strengths and weaknesses. Perhaps most importantly, the lawyers will leave with an impression of how the plaintiff and defendant will perform “on the stand” at trial, and how the jury might view them. For this reason, it is important for both parties to remember that the discovery is often just as much an assessment of their character as it is an assessment of the case itself. Be truthful and respectful. Always.

 

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.

What is a Statement of Claim?

A plaintiff commences a lawsuit by preparing a document referred to as a “Statement of Claim”.
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By Laura Pearce

In a lawsuit started by a person who has suffered personal injury due to the negligence of another person or company, the injured person is called the “plaintiff”. The at-fault party is called the “defendant”. The lawsuit is called a “tort action”.

A plaintiff commences a lawsuit by preparing a document referred to as a “Statement of Claim”. The Statement of Claim, often called a “claim” for short, alleges negligence against the defendant. In numbered paragraphs, the Statement of Claim sets out how much money the plaintiff is asking for; the specifics of what happened (i.e. the motor vehicle collision or other incident that caused the injury); what the defendant did wrong; what injuries the plaintiff sustained because of the defendant’s wrongdoing; and how the plaintiff’s injuries negatively affect their life: their ability to work and earn an income; go to school; do their housekeeping; take care of their children; participate in sports or other activities; and/or find enjoyment in life.

In most instances, the plaintiff’s injuries and impairments will be known at the time the Statement of Claim is prepared. The Statement of Claim can usually be revised later if the plaintiff eventually develops more health issues or impairments related to the incident.

In Ontario, an injured person has a limited time to start a lawsuit. The deadline is the second anniversary of the day on which the person discovered their right to bring a claim. Put simply, this normally means that a plaintiff must commence a lawsuit no later than two years from the date the injury was caused, or else the person loses the right to sue. The Limitations Act, 2002 establishes this timeline. There are exceptions to the two-year rule, so if you have ongoing issues related to an injury that was not your fault, you should consider consulting a lawyer.

Once the Statement of Claim is prepared, the plaintiff’s lawyer sends it to the court house where it is “issued” and becomes an official court document. The Statement of Claim is then “served” on the defendant. The plaintiff’s lawyer hires a process server to locate the defendant and hand deliver to him or her the Statement of Claim.

The defendant, if served in Ontario, has a certain number of days to respond to the Statement of Claim. If the defendant is served outside of Ontario, the time for responding to the Statement of Claim varies. The defendant’s response is called a “Statement of Defence”.

The Statement of Defence is prepared by the defendant’s lawyer. It is also a formal court document. In the Statement of Defence, the defendant answers (defends) the allegations that were made against him or her in the Statement of Claim. Typically, the defendant denies the allegations made against him or her. The Statement of Defence is served on the plaintiff’s lawyer. In some circumstances, the defendant’s response to the Statement of Claim involves making counter allegations of negligence against the plaintiff or allegations of negligence against another person or company.

Once both the Statement of Claim and the Statement of Defence are served on the opposite party, the lawsuit is ready to proceed.

If you have been injured due to the fault of another person, you might have questions about whether or not starting a lawsuit is right for you. We can answer your questions. Consultations are free. Call us at 519-946-4300.

 

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.

 

 

 

“Should I bring a lawsuit?” We will give you our opinion. For free.

If you have been hurt in a motor vehicle collision, a slip and fall, or other accident, we will meet with you, for free, to give you our legal opinion on whether or not you have a case.
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By Laura Pearce

If you have been hurt in a motor vehicle collision, a slip and fall, or other accident, we will meet with you, for free, to give you our legal opinion on whether or not you have a case. We will answer every question you have about lawsuits, no matter how many questions you ask. If we think we can help you, we will tell you how.

What can we tell you when you first meet with us? Quite a bit. The following are some examples of the questions we can answer:

  1. Do I have a case? Why or why not?
  2. How do you get paid as my personal injury lawyer?
  3. When can I start my lawsuit?
  4. Who will know that I am bringing a lawsuit? Will my work know?
  5. What are the various “steps” in a lawsuit?
  6. Will I have to go to court?
  7. How long will my lawsuit take?
  8. How much money do you think I might get?
  9. Why is my medical history relevant?
  10. Why do I need to provide my income tax returns?
  11. Can defence counsel look at my social media?
  12. Will defence counsel get to ask me questions?
  13. Will the person who caused the accident get to ask me questions?
  14. How do I access the health and income replacement benefits through my auto insurance company?
  15. If I bring a lawsuit, will my auto insurance premiums go up?
  16. Can I change auto insurance companies after I start a lawsuit?
  17. Can I bring a lawsuit on behalf of my injured child?
  18. What if the injured person is not me, but, rather, a loved one who suffered a brain injury and is not mentally capable of bringing a lawsuit him- or herself?
  19. How will my lawsuit be affected if I am on OW or ODSP?
  20. What is kept confidential between us and what is shared with defence counsel?
  21. What if I want to stop my lawsuit before it resolves?

At Velocity Injury Law your first meeting will be with a lawyer (and it will be with the lawyer who will actually handle your case). You are not restricted to 30 minutes on your initial consultation. The ENTIRE meeting is free. You will not have to pay anything for that meeting, and after the meeting, you are under no obligation to hire us. Resolve any uncertainties you might have about starting a lawsuit – call us and make an appointment to come in. We have free, handicap accessible, parking. We are here to help. 519-946-4300.

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.

When – and how much – do you pay us for being your lawyer?

When – and how much – do you pay us for being your lawyer?
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By Laura Pearce

As a client of Velocity Injury Law you usually do not have to pay your lawyer any money for the legal services up-front or during your lawsuit. In most cases, you only pay us when your lawsuit is over – and even then, only if we get you financial compensation for your injuries.

What we charge you as a “fee” is a percentage (in most cases this ranges from 25% to 33%) of the amount you receive in damages upon settlement of your case or at trial. “Damages” is “legal speak” for the money you receive to compensate you for the injuries and financial losses you have suffered because of your accident. In addition to our fee, you will be required to pay the HST and any other taxes owing to the federal or provincial government on that fee. You will also be responsible to pay for expenses that we incurred in advancing your claim unless the other side pays for those expenses (which they often do).

This type of agreement between lawyer and client is called a “contingency fee agreement”. Our fee is “contingent” upon the amount of financial compensation we get for you. The contingency fee agreement is signed by you and your lawyer when you hire him or her.

Clients like contingency fee agreements for many reasons, which include:

  • You do not pay your lawyer “by the hour”. So, if the contingency fee agreement states that your lawyer’s fee is 30% of damages, the fee will be 30% of damages whether or not he or she worked 80 hours or 4,000 hours on your case.
  • You do not get charged for calling your lawyer, e-mailing your lawyer, or meeting with your lawyer. Whether you call your lawyer once every week for a year, or once every two months over the same time period, the lawyer’s fee will be the fee agreed upon in the contingency fee agreement.
  • If you have been injured in an accident and your injuries are severe enough to keep you off work, you might not have the money to pay a lawyer up-front or periodically. Having a contingency fee agreement gives you the peace of mind that you will not be asked to pay your lawyer until your lawsuit is over and you finally have the money to pay your lawyer’s fee.

In some cases we are not fully compensated for the time we spend on your file. In other cases, we are compensated fairly well. In ALL cases, you have the right to have our account, or the account of any other lawyer you hire, reviewed by the Court to determine whether it is fair and/or reasonable.

We can answer any questions you have about our contingency fee agreements. Give us a call at 519-946-4300.

 

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.

 

 

 

What is a dog owner’s civil responsibility?

What is a dog owner’s civil responsibility
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By Laura Pearce

If you own a dog you might be surprised to learn that you are automatically considered legally responsible if your dog injures another person – whether or not the dog does so unexpectedly or because  it was provoked, and even if you did nothing wrong.

The Ontario Dog Owners’ Liability Act imposes “strict liability” on the owner of a dog that bites/attacks a person. “Strict liability” means that the dog owner is legally responsible for the victim’s injuries and losses, even if the attack occurred without the dog owner’s intention or negligence.

Put another way, the victim of the dog attack does not have to “prove” any wrongdoing. The owner is liable for the attack and any resultant injuries, even if the owner did not do anything negligent to cause the attack; even if the dog attacked “out of the blue”, having never acted aggressively before; and even if the victim caused the dog to attack.

Being legally accountable for your dog’s attack could result in you being financially responsible to pay the victim’s medical bills; cosmetic surgery costs; wound and scar care expenses; psychological counselling fees; and even lost wages if the person needs or needed time off work to recover from the injuries.

If the victim of your dog’s attack approached your dog despite your warnings about the dog’s tendency to bite, or if the victim continued to bother the dog despite the dog becoming visibly agitated, you will still be held responsible for the attack, but the victim’s financial compensation might be reduced to account for his or her fault or negligence.

You will not be held responsible if your dog hurts someone on your property who is committing, or has the intention of committing, a criminal act, unless keeping the dog on your property was unreasonable for the purposes of protecting your property or people on it.

Dog attacks can be both physically and psychologically devastating for victims. If you have been hurt by a dog and want to know what can be done to help you recover, give us a call. Consultations are free.

This article is not a substitute for legal advice. If you have any questions, please contact us at 519-946-4300.