If you have been injured in a collision, the last thing you need is the added burden of trying to find a way to come up with money to hire a lawyer to protect your legal rights and interests. With this reality understood, a considerable number of personal injury lawyers utilize what is known as a contingency fee arrangement.
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Grieves v. Parsons, 2018 ONSC 1905 (CanLII)
[1] This case was a three and one-half week jury trial involving a claim for personal injury by the plaintiff, Jeffrey Grieves, arising out of a motorcycle accident on July 24, 2012.
[2] On December 12, 2017 the jury returned its verdict and awarded the plaintiff $50,000 for general damages, $61,000 for past lost income, and $90,000 for future lost earnings.
[3] After taking into account the current deductible provided in the regulations, the $50,000 general damages award would entitle the plaintiff to non-pecuniary damages of $12,615 if he met the statutory threshold.
[4] While the jury was deliberating, the defendants brought a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss was barred on the basis that the plaintiff had failed to establish on the evidence that, as a result of the collision, he sustained a permanent, serious impairment of an important physical, mental or psychological function.
[5] On January 2, 2018, I released my decision on the threshold motion (Grieves v. Parsons, 2018 ONSC 26 (CanLII)), and concluded that the plaintiff did not fall within the statutory exception set out in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8, and therefore granted the defendants’ motion to dismiss the plaintiff’s claim for non-pecuniary damages. On this basis the plaintiff’s non-pecuniary damages were reduced to zero.
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[69] One factor that increased the plaintiff’s costs was that the defendants did not admit liability for the accident until one week before the trial.
[70] Another factor to be considered is the amount claimed and the amount recovered in the proceeding (rule 57.01(1)(a)). In this case the plaintiff’s final award was a fraction of the $1 – $1.2 million claim that the plaintiff proposed to the jury.
[71] I have not been provided with any information relating to any offers to settle made by the plaintiff.
[72] The total costs must be proportional to the amount awarded, but costs may exceed the award of damages in appropriate circumstances. “Proportionality should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award”: Doyle v Zochem Inc., 2017 ONSC 920 (CanLII), at para. 26.
[73] The medical issues were somewhat complex. The plaintiff’s injuries were not in dispute, but causation was the central issue in the case. In addition to his treating physicians, the plaintiff called expert evidence from an orthopaedic surgeon. The jury was presented with valuations of past and future loss of income from a forensic accountant.
[74] While other experts were called, I did not find their evidence particularly helpful, and, apparently, neither did the jury. Costs should be reduced on this basis.
[75] The trial lasted three and one-half weeks. In my view the plaintiff’s case could have been presented more efficiently. For example, the plaintiff’s own physician was taken to virtually every medical record and clinical note in relation to the plaintiff in her possession. Her testimony could have been more focused and much briefer. In addition, the plaintiff’s opening address to the jury resulted in a number of objections and required correcting instructions before the case could proceed.
[79] In applying the proportionality principle and exercising my discretion in awarding costs based upon what is fair and reasonable, the factors set out in Rule 57.01 and 49.13, and the principles from the appellate courts, I fix the costs as follows: the plaintiff’s costs are fixed at $115,000 for legal fees and $50,000 for disbursements, inclusive of HST, for a total of $165,000, payable within 45 days.
Toronto trio plead guilty to healthcare auto insurance scam
Last month, it emerged healthcare professionals in Ontario are logging an impossible number of hours to insurance companies for treating auto collision victims. With the danger of fraud ever present, a case in Toronto has shed light on this problem. Two healthcare providers and a legal aid have been charged in Toronto for auto insurance fraud.
So You Think You’re Covered! How to Fight Back
The ramifications of a serious motor vehicle accident go far beyond physical injuries for the parties involved. Far too often, accident victims find themselves enmeshed in an insurance process involving dozens of insurer-ordered medical assessments (IMEs) and fighting their auto insurer for years for treatment and income replacement or non-earner benefits. Recovery becomes secondary to the fight for benefits. Family finances and relationships are affected and depression becomes the norm when we are caught in a major fight to receive the accident benefits for which we pay hefty premiums.
http://pickinguppieces.net/aut
Insurance know-how vital for plaintiff’s lawyer toolkit | Sandra Kovacs
As among plaintiffs’ personal injury lawyers I am fortunate to have had a reasonably good education in insurance law, earned during my previous incarnation as an insurance defence and coverage lawyer.
EDITORIAL: Liberals show little care for promises
Dalton McGuinty had barely settled into the Premier’s office in 2004 when he broke a signature promise – that he wouldn’t raise taxes – and introduced the Ontario Health Premium, a costly, regressive tax hike that to this day takes more than $3 billion annually out of the pockets of working families.
http://torontosun.com/opinion/
Law firm that billed itself as ‘official’ Jays’ lawyer never worked for the team
A personal injury law firm that billed itself as the Toronto Blue Jays’ “official” injury lawyers is changing the way it advertises after Ontario’s legal regulator reminded the firm it never worked for the team.
Challenges of presenting chronic pain cases to juries
About two-thirds of the caseload of a personal injury practitioner is dealing with chronic pain cases so it’s important to address jury bias in litigation, says Bowmanville personal injury lawyer Ron Strike.
http://www.advocatedaily.com/r
Thangarajah and State Farm 2017-06-12, Arbitration, Final Decision, FSCO 5265
I find that the key criteria on the facts of this case in assessing the amount of the Special Award is the requirement that it be proportionate to the vulnerability of the insured person and the harm or potential harm directed at the insured person. One of the other key factors in this case is that the benefit of the attendant care relates to the living conditions of the Applicant with significant injuries that not only constituted new injuries to his body, and painful ones as well, but that also aggravated serious pre-existing conditions. The delay here, whether counted in three years, as submitted by the Applicant, or six months, as submitted by State Farm, is certainly less in time than the withholding of the death benefit for many years as was the case in Stewart and Liberty Mutual, relied on by State Farm. The difference is that the Applicant (who had to suffer through the period) and his wife (who was providing the attendant care and had given up her work to do so) bore the burden of the failure.
Another key criterion is blameworthiness of the Insurer’s conduct. I find that the delay of six months that finally ended with the $30,000 payment is not well explained by State Farm. The evidence of the adjuster dealt with the transfer of responsibility for the file, assessment of the file, getting approvals from senior levels, her taking a vacation, etc. so that the calculation of the benefit owing and interest was not done in full and approvals obtained even in the period from April to September, thereby necessitating the “down payment” of $30,000.
There is a deterrent aspect that must be respected in the setting of the Special Award so that insurers, when their own assessors support a catastrophic impairment designation, move promptly in their reassessment of denied benefits. The criteria that must be met for such a designation are deliberately high and the raised policy limits are only available to those with the most serious of injuries. The legislation is intended to provide an expeditious dispute resolution process but more importantly it is supposed to ensure that benefits are paid promptly and that was not done in this case. It is trite law that this legislation is consumer protection legislation. As pointed out by Arbitrator Feldman in Melchiorre and Wawanesa Mutual Insurance Company,[14] it is not clear that even the maximum Special Award would be a deterrent for large companies such as State Farm or Wawanesa and,
Too small an award will amount to little more than a “slap on the wrist” or, even worse, a licence to engage in similar conduct in the future.
Therefore I find that State Farm is understating the extent of its failure to meet its obligations to this Applicant and minimizing its obligations. The award needs to be sufficient to provide incentive to insurers to act more promptly than six months. Disruptions in the availability of care can have adverse effects on recovery and lead to very onerous responsibilities on family members that they should not have to bear. Ms. Maraj testified that once an applicant was deemed catastrophic, the file is passed over to a catastrophic claims adviser. She became responsible for the file on June 2, 2016.[15] If State Farm’s processes require a change in personnel dealing with a file once a catastrophic impairment designation is given, that transition must be expeditious to permit the re-examination of benefits promptly, more so than in this case.
ADS Forensics calculated the interest under the Schedule and the Special Award interest. The claim by the Applicant is close to the amount of the Special Award interest and in my view, is too onerous and out of line with the awards of other cases where the handling of the benefits file was filled with more errors of many sorts rather than the one glaring issue on attendant care and the others relating to mischaracterization of the prescriptions and failure to reassess the medical benefits. In my view an award of an amount close to the Schedule interest is proportionate to the harm done to the Applicant and is logical both in its adherence to the criteria for setting the award and in the intended deterrence. Therefore, on the Special Award related to attendant care, I find that the Applicant is entitled to an award of $42,000.00.
With respect to the medical and rehabilitation benefits, I agree with the Applicant that $10,000 is an appropriate amount on the facts of this case, given the nature of the benefits that were delayed and that the quantum is so small as not to constitute a real deterrent unless it approximates the maximum potential award.
I therefore find that the Applicant is entitled to a Special Award totalling $52,000.00.
Star’s lawyers make opening arguments in case to end secrecy in Ontario tribunals
On the first day of arguments in the Toronto Star’s legal challenge to make Ontario’s quasi-judicial tribunals more open and accessible, the courtroom itself served as a useful metaphor.