Darryl Legal Musings

Recently, 407ETR has launched a full frontal assault against thousands of former users whose accounts are anywhere from 4 to 12 years old. Almost all of these individuals have been in plate denial, unable to renew their licence plate sticker or obtain new plates, for more than 2 years. Some of these individuals believed that those old accounts were paid. Others, knowing that their long ago invoices were relatively small numbers in the hundreds or low thousands, and wanting to pay if only they could determine which charges were properly attributable to them, had attempted for years to sort out billing discrepancies before paying the invoice. Yet after more than 10 years in many cases, 407 has been unwilling or unable to answer their queries as to why they were charged for trips they didn’t take; for trips which occurred months or years after they moved out of the province; trips after they returned the transponder or gave back the plates under which the non-transponder account was registered. Imagine their shock when they opened the most recent collection notices and saw that they now owed anywhere from 100% to 1000% more than the original unproven amount of the debt.

These former customers are now receiving collection notices from a law firm representing the 407. This law firm is well aware that court proceedings cannot be commenced against these alleged toll debtors, as the time limit for issuing a court action has expired. These firms, on behalf of 407, are simply going to keep the file in a perpetual state of “collections”. This means that the previously invoked plate denial can remain in force, and that 407 can pursue aggressive collection actions, including repeated telephone calls, letters, credit bureau reporting, and the usual aggressive, annoying, and questionable techniques employed by the collection industry.

Yet debtors who call these firms and demand an accounting of the charges so they can reconcile what they are being expected to pay are met with silence. This is not the fault of the law firm acting for 407. It only acts for a client who has failed to provide the firm with the necessary background on each file, with the firm receiving only minimal information and a current debt total.

Most people cannot afford a lawyer to go to court and fight the 407 so they are reluctantly entering into settlements in order to resolve the matter and get the plate denial removed from the MTO database. I am aware of individuals who have successfully negotiated a settlement with 407 for as little as 25% of the debt.

If you find yourself in this situation and choose to settle with the 407 or its lawyer or collection agency, don’t assume that because you send them a cheque that the matter is done. In theory it should be. But the toll highway operator has shown repeatedly over the years that it cannot be relied upon for proper record keeping. Further, it seems every couple of years it engages new collection agencies and/or law firms to handle the old debt collection.

So, if faced with a demand for payment and you are prepared to make a deal, by all means do so. While there is much to be gained from fighting a legal battle on the basis of principal, standing up to the bully, public interest, etc., it may be cost prohibitive to do so. As such, settlement may make, depending on the amount at stake, eminent good sense. But be advised that you should only provide the settlement funds if the collection agency/law firm/407 agrees to provide you with the following:

1. A one page legal document called a Satisfaction Piece. This document is your ongoing proof that the debt is deemed settled in full, regardless of how much you actually paid.

2. Confirmation that the plate denial will be removed

3. A copy of 407’s direction to the Ministry of Transportation removing you from plate denial.

4. Confirmation that no negative information has been put on your credit bureau.

5. In the event you are already aware of a negative credit report, then a letter from 407 to Equifax and TransUnion confirming that the negative credit report was place “in error” and should be deleted.

Next time, I will reveal a simple $500 solution to get the 407 off your back.

Darryl Singer is a lawyer with 22 years litigation experience and a particular interest in taking on the 407. He practises as senior counsel with SINGER Barristers Professional Corporation in Markham. www.darrylsinger.com

When choosing a personal injury lawyer, you may well be tempted to select the lawyer who promises to get you the most amount of money in the least amount of time. Resist your temptation to make your choice in that manner, as you will surely be disappointed at the end of the day.

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

1. How much money is my case worth? (I don’t know).
2. How long will it take until we settle? (I don’t know).

You may advise me that another lawyer (or worse, your friend who had his own personal injury case) told you your case was worth a particular amount, and want to know if I will get you that or more. I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. This is simply because at the initial client interview it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.

I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science; oftentimes it appears to be abstract art at that.

Here are just some of the factors at play in determining the value of your lawsuit:

(a) The nature and extent of your injuries. Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates that the extent your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures.

(b) What your own medical practitioners write in their notes about your injuries. For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.

(c)  How often you attend for treatment. Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time: or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.

(d) If you are claiming lost income, the amounts on which you filed and paid tax in previous years. This is especially acute if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this; similarly with self-employed small business owners whose true income loss is significantly more than would appear from the pre-accident income tax returns.

(e) The statutory deductible. The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $30,000 in damages for pain and suffering is deductible. This deductible is actually increased for accidents after August 1, 2015 to approximately $36,500. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.

(f)  Your own evidence at examination for discovery or trial or in statements given to doctors or insurers.  What you tell me is less important that you eventually state “on the record”.

Also keep in mind that what you think of as the value of the case is your net in pocket, versus the actual value. Lawyers who will try to tell you what your case is worth often neglect to advise that this is a top line amount, without mentioning the deductible.  Most importantly, from whatever amount the insurer pays, legal fees of about 30-35% (plus HST) will be deducted by your lawyer. In addition, disbursements incurred by your lawyer are over and above the fees. Disbursements are those amounts I pay out of pocket to third parties in order to advance your lawsuit (court filing fees, medical records/reports, transcripts, mediation fees, to note just some examples). It is not unusual for me to incur several thousand dollars for a case worth only $20,000.

Then there is what I call the wildcards. These have nothing to do with your injuries or the law.

1. The insurance company we are suing. Some insurance companies have taken a very hard line on all cases where the injuries are only soft tissue and/or which do not have significant provable lost income attributable to the injuries. One such insurer regularly states to plaintiff counsel that they will pay their defence lawyers $100,000 before they will pay the injured plaintiff $10,000. They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
2. The particular adjuster who is responsible for deciding how to handle the file. Even those insurance companies which are settlement minded employ certain adjusters who have a mindset that they would rather force us to the door of the courthouse.

As for the length of time, no matter how fast my office works to move your case forward, I may be stymied by the bureaucracy of a large insurance company, their lawyer’s schedule, and the inherent systemic delays of our court system. Thus, while cases can settle in as little as 6-12 months, or drag on for 8-10 years, most fall anywhere in between. The reality is that there are many factors at play, including those noted above.

For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet.  As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.

Another factor to consider in hiring a personal injury lawyer is to make sure the lawyer is actually experienced in the area. I know of numerous family and real estate lawyers who will dabble by taking the occasional personal injury case. These individuals lack the requisite knowledge to properly assess your case, the experience to manage your case in an appropriate matter, and most importantly, the business relationships with insurance adjusters and lawyers to get cases settled.

One final piece of advice if you are planning on hiring me or another personal injury lawyer: be prepared to listen to our advice. It may not accord with what you want to hear or think is fair and just. But by making the wise choice in the lawyer you hire, the advice you will receive will be the best your money can buy.

As debate continues around the benefits of Ryerson University’s Law Practice Program, Toronto personal injury lawyer Darryl Singer — who worked as a mentor and assessor for the recently completed inaugural session — tells Law Times the quality legal skills gained by participants cannot be overlooked in discussions around the program’s merit.

The program, introduced by the Law Society of Upper Canada in the fall, was designed to address the growing shortage of articling positions in Ontario and offers law students a quicker path to qualification through four months of skills training and a four-month articling requirement.

Referencing his first-hand experience with the program, Singer says it has been a resounding success.

“As a lawyer old enough to remember my articling period preceding a mandatory four-month bar admission course covering eight distinct subjects and who articled at a time when true mentoring still existed, I am not alone in witnessing a decline in the educational, practical, and professional standards of many newly called lawyers,” he writes in Law Times.

“This is not to suggest the sky is falling, but that the Law Society of Upper Canada used to have more stringent quality control over new calls.”

The current situation, he writes, is a “failing on the part of the law society in disbanding the old bar admission course,” and also a “failing of a legal industry driven by billable hours and greater economic pressures than ever before with the result that it is more likely to view an articling student as a profit centre rather than as a mentor’s contribution to the future of our profession.”

Singer says the student participants worked through a series of real-life experiences like client intake interviews and negotiation; argued in actual courtrooms; and dealt with share-purchase agreements, among other things.

“The students carried numerous files in different areas of law simultaneously. Built into the program were very real time constraints and law firm demands,” writes Singer. “With all of the students in the same program, it was easy to assess them comparatively, unlike with articling. It was a rewarding experience to see students in September who were shy and unsure with varied legal and life educational backgrounds develop by December into cohesive teams with similar experiences and feeling confident and certain.”

As for those concerned about graduates having to pay back student loans and the lack of paid student-at-law positions, the reality is what it is, writes Singer.

“Further, high student debt load combined with a dearth of well-paying jobs is certainly not unique to law students,” he says. “The Law Practice Program’s existence does nothing to exacerbate the situation.”

Singer says the program is so valuable that one could even advocate it should become mandatory in the manner of the old bar admission course.

“We could then reduce articling to the four-month work placement currently tacked onto the end of the Law Practice Program,” he writes. “If we want to maintain self-governance and public confidence in our profession, we need to ensure more than just a passing standard of uniform skills training. In that regard, the Law Practice Program is a positive step in that direction.”

To read the full article on Advocate Daily just follow this link.

The unique creditor’s vantage point that 407 ETR Concession Company Limited (“407”) has by virtue of its lease with the Province of Ontario seems on its face rife with potential court challenges. That is not news. What is news is that it has taken until recently for the challenges to come before the courts for determination.

In the first of these cases, the Supreme Court of Canada will rule shortly on the validity of the section of the Highway 407 Act which gives 407 the right to compel the Ministry of Transportation to deny licence plates for unpaid tolls (“plate denial”) even when a debtor has been absolutely discharged from bankruptcy.

The Court of Appeal ruled last year that the provisions of the Bankruptcy and Insolvency Act were paramount and continuing plate denial post-discharge interfered with the public policy intentions of the BIA’s fresh start concept. Not surprisingly, 407 appealed. The matter was argued before the Supreme Court in October 2014 and a decision is expected in 2015. In the meantime, those consumers who made an assignment in bankruptcy which listed, inter alia, the 407 as a creditor and were subsequently discharged, still have their plates in denial as a result of a stay of the enforcement of the Court of Appeal’s ruling until the Supreme Court renders its verdict.

Increased Limitation Period Questioned

Now along comes another interesting case from the Superior Court which touches upon something that many litigators have long questioned about the 407’s legislatively-enhanced creditor powers. This involves the increased limitation period from two years to 15 years pursuant to the 407’s standard transponder contract.

In the recent decision from the Newmarket court by Justice Mark Edwards, the defendant’s transponder contract with 407 was entered into in March 2010. The defendant’s account with 407 went into arrears as early as December 21, 2010, the date he last made a payment on the transponder account. He was placed into plate denial in 2011. However, 407 did not commence the action to recover his debt until June 14, 2013.

The defendant sought to dismiss 407’s claim for unpaid tolls on the basis that the action was initiated outside the two-year limitation period for civil actions in Ontario. He argued that the two-year limitation period commenced on the date of the individual invoice, which would have been around December 2010 at the latest). 407 argued that by voluntarily entering into the transponder agreement, the defendant attorned to the 15-year limitation period set out therein. 407 argued in the alternative that the two-year limitation clock commenced on the date the plates were put into denial in 2011.

Effect of Legislation on Protections

Writing in 407 ETR Concession Company Limited v. Ira J. Day, Edwards J. held that the 15-year limitation period that the 407 essentially gave itself was a violation of the two-year limitation period prescribed by the Limitations Act and could not apply to a customer who was a “consumer” within the meaning of the Consumer Protection Act. As such, 407 could not rely upon the exception to the two-year limitation period set out in section 22(5)(1) of the Limitations Act that might otherwise apply to business agreements.

However, the judge also struck a practical balance and ruled that if the two-year limitation period commenced on the date of the invoice, it would be unmanageable. To require the 407 to essentially start the limitations clock 30 days after each individual invoice would create a different limitation period for each invoice, meaning multiple limitation periods per customer and result in literally tens of thousands of unnecessary court actions being issued, not to mention a multiplicity of proceedings for a single consumer debtor. He ruled that the two-year limitation period begins to run upon plate denial.

Balancing Rights for Debtors, Creditors

It is a decision which will likely be appealed by both parties. 407 has lost its much cherished leverage of the extended limitation period, while Day will be on the hook for at least some of the debt based on the limitation period commencing at plate denial.

However, this is clearly another victory for the consumers who use the 407 and should be applauded. As in the case previously decided by the Ontario Court of Appeal, the effect of the decision in Day is to claw back from 407 its enhanced collection powers and put it more on footing with other ordinary secured creditors. This is indeed good for consumers.

At the same time, although Justice Edwards founded much of his rationale upon the unique nature of the 407 toll highway, the case may have wider applications to benefit the credit granting industries.

The ratio of this case in that regard is that each new invoice for a single customer does not necessarily create a new limitation period and the implication is that the courts will find a practical application for when the limitation period commences. This ensures that ordinary unsecured creditors need not issue a claim every time there is a chance of non-payment of a single invoice just to preserve their rights. The court is likely, as it did in this case, to take a contextual approach and strike a practical balance between the rights of the creditor, the rights of the debtor, and the exigencies of the business world and the court system.

Related Cases and Information

• 407 ETR Concession Company Limited v. Ira J. Day
• Highway 407 Act, 1998, SO 1998, c 28
• Limitations Act, 2002, SO 2002, c 24, Sch B
• 407 ETR Concession Company Limited v. Superintendent of Bankruptcy, 2014 CanLII 23006 (SCC) – Leave to Appeal
• 407 Can No Longer Suspend Licence Plates of Bankrupts – CanLII Connects

Darryl Singer is senior counsel and principal of SINGER Litigation Counsel, Professional Corporation in Toronto and has litigated at all levels of court in Ontario since 1993.

As published on CanLII Connects

Auto insurers in Ontario would have you believe that your high premiums are as a result of fraudulent claims and claims by individuals who are not seriously enough injured. Now they are again claiming the sky is falling over a recent Court of Appeal decision that took the Financial Services Commission of Ontario (the government tribunal for no-fault claims) to task for not moving cases along fast enough and opening the door for claims to go directly to court instead of through the tribunal’s mediation process. The Court of Appeal decision is based in large measure on the fact that the FSCO mediation process does not do what it is supposed to do in a timely fashion- namely allow injured motorists to be paid rehabilitation benefits. This systemic delay is a windfall for insurers who routinely deny treatment and simply sit on their money, money which is earmarked for benefit payout. The Insurance Bureau of Canada would have you believe that this court decision could cost insurers $300 million and that it will be yet another reason why they will be forced to increase premiums.

Auto insurance companies have a captive market. The law requires insurance for you to drive. A recent spate of mergers and acquisitions means a limited number of for-profit, stakeholder- driven, multi-national corporations from whom you can buy this insurance. The reality is that if there were no fraud and fewer claims, your premiums would not decrease. They never have and they never will. So as policy holders we have a right to demand from our insurers that they fulfill their end of the bargain, namely paying out benefits in a timely fashion.

Under the no fault regime, you have an entitlement to benefits from your own insurer if you are involved in an accident. The details are beyond the scope of this article but the primary purpose of no-fault is arguably to ensure that your rehab costs are covered. Yet insurers routinely deny payment for treatment such that many individuals are left unable to go for the treatment they need, which is usually not covered by OHIP. Your insurance company will typically say that if you have a standard soft tissue injury (whiplash, neck and back pain, headaches- and by far these make up the  majority of accident injury claims in Ontario) since your symptoms are self-described and typically not apparent on any x-ray, ultrasound or MRI,  that there is nothing seriously wrong with you. This is their justification for not paying the no-fault benefits to which you are entitled under your policy. This decision is initially made not by a doctor who meets with you, but rather by an insurance adjuster who has not met with you and has no medical training., and relies usually upon the opinion of a doctor who earns a living not from treating patients but from writing reports for insurance companies, and who will have met with you for no more than an hour. You are simply being lumped into a category.

If you are not at fault for the accident, you also have a right to sue the other driver in a third party claim (whose tab will be paid by her insurance) for pain and suffering, unlike in the no-fault regime. But the insurers here take the same position. If you have soft tissue injuries they will say that your case does not meet the level of seriousness required by law to sue (not all claims are eligible- the injuries must meet a certain level of seriousness but what is serious is the subject of most tort-related litigation). The Court of Appeal says if you can go on with all of your pre-accident activities but now must do so in pain, fatigue, with constant headaches and stress, that this rises to the level of seriousness to be compensated for pain and suffering. Yet insurers routinely deny settling claims on the basis that your injuries are self-reported and not diagnosable on any objective test. These cases at trial come down to credibility, i.e. whether you and your witnesses are believed by the court or not. But the insurance companies should not be forcing these claims to trial, often taking years and tens of thousands of dollars, when the case could have been settled at a very early stage for a reasonable amount of money far less than the cost of litigation. Of course, the law is not so black and white. Nonetheless, the general attitude of insurers results in injured parties not receiving their no-fault benefits, thus forcing them to retain a law firm to sue under the no-fault regime for these as-of-right benefits, while also forcing the third party claimants through the lengthy litigation process, again to obtain benefits for which all policy holders indirectly pay premiums.

As policy holders of these corporate behemoths who make billions a year in profits in part by refusing to honour their contractual obligations, it is time for the public to stop accepting the lies of the insurers regarding the rising cost of the premiums, and demand the benefits to which they are entitled. It is also time for those who diligently pay their premiums on time with the expectation of fairness to demand our provincial government crack down on the unfair corporate policies of the insurers. The government has given free rein to the insurers to protect the public interest and the insurers have squandered the public trust in this regard.

Darryl Singer is a civil litigator in Toronto

So you’ve been injured in a car accident that wasn’t your fault. Fortunately, you didn’t have any broken bones, traumatic head injuries, or anything so serious. However, you likely continue to suffer from soft tissue pain, which may cause you to have headaches as well as aches and pains in various parts of your body, and you have been encouraged by friends to retain a lawyer to seek compensation for your pain and suffering. The obvious question you will ask your lawyer upon meeting is, How much is my case worth? The truth is,  it is impossible to know right at the outset until your lawyer has received and reviewed all of your medical records.

But what you should know going in to this meeting is that just because you have been injured in an accident that wasn’t your fault, you are not automatically entitled to money for pain and suffering, even if you can prove the two requisite elements of any tort claim: (i) that the other party was at fault; and (ii) that you suffered injuries as a result.

There are two methods enshrined in the law in Ontario which have the effect of limiting the ability for potential accident victims to sue and/or recover damages in Ontario.  These methods are, according the government and the insurance industry, part of an overall scheme to control automobile insurance premiums in Ontario. More accurately, these legal impositions have the effect of chilling the rights of individuals involved in motor vehicle accidents from starting tort actions. These schemes are (a) the statutory threshold; and (b) the statutory deductible. It bears noting that there is no conceivable reason for this threshold or deductible other than at the time, the insurance industry’s lobby was more powerful than the trial lawyers’ lobby.

Statutory Threshold

Pursuant to section 267.5 of the Insurance Act, a person is cannot pursue a tort action against the at fault party of a motor vehicle accident, unless they can meet a threshold test set out  in subsection 5 of that section, which provides that

…as a result of the use or operation of the automobile the injured person has… sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

Effectively, this means that in order to meet the threshold, you must prove the existence of a serious impairment, of an important function, that is permanent.

(i)                 A serious impairment

 A serious impairment is one that substantially interferes with your ability to continue in regular or usual employment, despite reasonable accommodations and despite the reasonable efforts to use accommodations to continue employment; or one that substantially interferes with most of the usual activities of daily living, considering your age.

(ii)               Of an important function

You must demonstrate the function impaired is one that is necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate you and your reasonable efforts to use the accommodation; or, is one that is important to the usual activities of a daily living, considering your age.

(iii)             That is permanent

The important function that is seriously impaired must have been one that is continuous since the accident and must be expected not to substantially improve.  This is based on the medical evidence and subject to your reasonable participation in the treatment of the impairment, must continue meeting the criteria of a serious impairment, when compared to the improvement a similar person would expect to experience.

The Evidence

As the plaintiff in the tort action, you will necessarily have to prove this threshold through personal testimony and medical evidence. This puts credibility and reliability squarely at issue. As Justice Boswell of the Ontario Superior Court of Justice stated in a tort case called Antinozzi v Andrews , these are not the same thing:

            Credibility relates to the veracity of a witness. Reliability relates to the accuracy of the witness’s testimony and engages a consideration of the witness’s ability to accurately observe, recall and recount events in issue.

A trier of fact (judge or jury) will measure the evidence submitted, and a credible Plaintiff will help satisfy the threshold is met by a balance of probabilities.  “The real test of an interested witness’s credibility ‘must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (Antinozzi case).

All of these factors will be considered by your lawyer both at the initial consultation, and throughout your case if one is pursued. As facts arise the lawyer’s valuation of your case may change over time.   

Statutory Deductible

A second and possibly more troubling manner in which the Ontario government has attempted to curb an accident victim’s decision to pursue an MVA tort action is the $30,000 statutory deductible.  This deductible is applicable to financial awards for general damages made by a court in all tort cases arising from motor vehicle accidents.  Essentially, this means that the first $30,000 in damages for pain and suffering ordered by the trier of fact in an MVA tort case is not paid by the insurance company of the defendant. An award by the judge or jury of damages for pain and suffering of $30,000 or less means the defendant pays nothing. An award of $50,000 means the insurer pays $20,000, and so on up to awards of $99,999. This deductible only applies to awards of less than $100,000.  The legislature’s decision not to apply this deductible to all accident awards for pain and suffering means that there is differential treatment between accident victims.  An accident victim with whiplash and resulting psychological damages resulting from a rear end collision is arbitrarily prevented from accessing the same justice that a victim with broken bones might receive, even though the damages suffered by the victim with purely soft tissue injuries might be experienced for a longer duration.  Even more upsetting is that the plaintiff’s lawyer is precluded from mentioning this deductible to a jury on top of not being able to mention that a defendant is represented by the insurance company.  Both of these keep the rightful awards from reaching a plaintiff when pursuing a tort action through to a trial. Thus, even if you believe your injuries may exceed the threshold, you must consider by how much they are likely to exceed the threshold in order to ensure the damages have a reasonable chance of being significant enough to offset the deductible.

So should I still see a lawyer?

Yes. Only your lawyer will be in a position to assess the likelihood of recovery of damages for pain and suffering. The purpose of this article is to educate a potential plaintiff on the reality of personal injury awards in Ontario, specifically that while if a lawyer does agree to take on your case you will likely end up with some money in your pocket but you must be conservative in your expectations. That said, your lawyer’s job is to build your file in a manner that your case will meet the threshold and exceed the deductible.  Generally speaking, most personal injury lawyers give a free consultation and get paid only if they are successful in recovering money for you so the lawyer has an incentive to get the possible settlement for you.

The other good news is that both the highest court in Ontario, the Court of Appeal, as well as numerous trial courts, have recently held that even if an injured plaintiff has resumed most or all of their pre-accident activities, if they must now do so in constant pain, with headaches, fatigue and the accompanying depression, what the insurance company will classify as a minor injury actually is serious enough to meet the legal test for recovery of damages.

*Darryl Singer is the principal of SINGER Litigation Counsel Professional Corporation, and has practised civil litigation since 1993

For the first time in the history of the paralegal profession in Ontario, the Law Society of Upper Canada (“LSUC”), the Ontario regulatory body which governs the legal profession, is permitting paralegals to stand for election as directors (known at the LSUC as Benchers). This LSUC board of governors is made up of 53 members- 8 non-legal or lay members appointed by the provincial government, 40 lawyers elected by all lawyers in Ontario, and now soon to be 5 paralegals elected by their membership. This is an illustrious event in the annals of the paralegal profession. Were I a licensed paralegal, I would at the very least be concerned with which 5 members were going to assist in governing my profession on everything from scope of practice to discipline. The particular 5 to be elected are all the more important on a board with significantly more lawyer members, many of whom, from the get-go, dislike, fear, and disrespect paralegals.

The voting for this election could not be any easier. All of the more than 6000 licenced paralegals in the province need simply log on to the website to cast their votes (each voter can select 5 of the two dozen or so candidates in the mix). I am one of those lawyers who has always benefited from a symbiotic business relationship between lawyers and paralegals. I regularly teach paralegal courses, write for their publications, and speak at their conferences. I was honoured to be selected to moderate one of the two major election debates between the paralegal Bencher candidates last month. So it saddens me, and it should terrify the paralegals themselves, that according the LSUC, with only a few days until the close of voting, that less than 1000 of those eligible to cast their votes actually did so. The actual proportion to have voted as of this writing is 13%.

My lawyer colleagues didn’t fare a whole lot better. In the 2011 Bencher election, there were over 100 candidates for 40 seats. There were over 50,000 lawyers eligible to vote by mail. At the end of the day only 37% cast their ballot.

This particular apathy towards voting within a fairly insular self-governing profession is not only disturbing; it could have profound results. The more interested and informed voters there are, the most likelihood there will be of actually achieving a governing body that is truly representative of the personal, business and geographic diversity within the profession. The more people involved in the debates and dialogues over issues of the day, the more voices will not only be heard but listened to by those in power. And most importantly, an active electorate is the strongest bulwark against the tyranny of the minority in power.

Regrettably, this voter lethargy is not unique to the legal profession. It is in fact merely a symptom of the endemic atrophy of voter interest in the public at large.

There will be shortly a provincial election. In the last such election, the 2011 vote which sent Dalton McGuinty back to the Premier’s office, only 48% of Ontario voters showed up at the polls. Federally, Stephen Harper secured his last majority government in May of 2011 with a respectable but we-can-still-do-better 6 out of every 10 of registered voters bothering to leave their homes or offices to do their civic duty.

Next to self-governing regulatory bodies for the professions, the single most direct impact any level of governing authority will have on an individual is at the municipal level. And yet, municipal elections have abysmal turnouts. In the last province-wide municipal elections of October 2010, less than half exercised their democratic right to select their local government. While I would not expect anything nearing the 100 percent voter turnout in sham elections run by the likes of Saddam Hussein, a turnout of three-quarters of eligible electorate would be more in line with what one would hope for in a vibrant, active democracy.

Not that any of this is new. I recall with a mix of humour and sadness knocking on doors in the 1984 federal election with the late Solicitor General of Canada Bob Kaplan, and us being greeted again and again at the doors with stunned residents who, upon looking at the pamphlet I handed them, would exclaim “oh, there’s an election on?”

I have heard all the excuses- “I don’t know anything about politics”; “I don’t have time to go vote”; “They’re all the same so why waste my time?”; My vote doesn’t count anyway” And every conceivable variation on these and many other excuses.

We live in what is, despite Americans’ claim that they are it, the most free and democratic nation in the world. We are able to elect governments from our small town local council up to our federal government. There are dozens of professional regulatory bodies in the province representing hundreds of thousands of hard-working, tax-paying professionals. For the most part, those in the professions get to vote for their leadership as well. Even the condo I live in has annual elections to ensure the board of directors is democratically elected. But we should not take this democracy for granted. Democracy ignored can turn into democracy denied. We must take to heart our democratic right to vote and when presented the opportunity, we must educate ourselves, involve ourselves and motivate ourselves to be aware of the issues and to cast an informed vote.

When the major overhaul to the Rules of Civil Procedure was introduced in 2010, it seemed a step in the right direction. The emphasis was on making the litigation process more efficient, less time consuming, less costly for litigants, not to mention less taxing on an already overburdened judiciary and court system. The codification of cost proportionality, time limits on discoveries, increases in the ceilings in both Small Claims Court and under the Simplified Procedure, and more discretion to judges hearing summary judgment motions are all steps in the right direction, as are the amendments regarding status hearings under Rule 48.14. However, one significant change designed to speed the process along, Rule 48.15(1), may well work in some litigation matters, but in the majority of personal injury actions, it actually has the opposite effect. In personal injury cases, Rule 48.15(1) has actually resulted in an increase in time and cost to counsel and clients. Most significantly, it may have resulted in what can only be estimated to be thousands of unnecessary motions every year, straining our already limited judicial resources. In fact, the overriding principles of underlying the new Rule 48.15(1), as discussed by Master Dash in Vaccaro v Unifund, are that of prejudice to the defendant; the principle of finality; and public confidence in the administration of justice. The Master goes on to say that the court must “send the right message” and “provide appropriate incentives for those involved in the civil justice system.

Rule 48.15 states:

ACTION ABANDONED

Dismissal

48.15 (1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:

1. More than 180 days have passed since the date the originating process was issued.

2. No statement of defence has been filed.

3. The action has not been disposed of by final order or judgment.

4. The action has not been set down for trial.

5. The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.

The problem in the vast majority of personal injury actions is that 6 months after the issuance of the claim, very little may have happened. Let me give the reader a typical scenario in a typical high volume personal injury practice, and one which applies to the largest proportion of MVA claims. Once retained, plaintiff’s counsel will issue a Notice of Intention to Sue to the defendant’s insurer and begin the process of collecting the numerous documentary productions required to advance the plaintiff’s case. Obtaining an OHIP summary can take 3 to 6 months, doctor and hospital records often 2 to 3 months, employment records, income tax returns, school records all take weeks or months to obtain. In most cases neither plaintiff’s counsel nor the adjuster (the defendant for all intents and purposes being an insurer) will be in a position to assess the case for very near to 6 months at the earliest. Consider that some insurers take several months until an adjuster is even assigned and reviews the file. It is obvious that in most cases the plaintiff will be running up against this 6 month administrative dismissal unless immediately after the adjuster is on board the insurer is forced by the plaintiff to appoint counsel. And there is the rub.

Approximately 50% of these types of personal injury files settle at the adjuster level. It benefits the operation of an efficient personal injury practice, the client, and the insurer to, wherever possible, fairly resolve the file without the need for the appointment of defence counsel and continued litigation. Most significantly it benefits the court system. Half of the thousands of MVA claims need not take up precious judicial and administrative time of the system. Yet the Rules require that the plaintiff either force the insurer to appoint counsel, which many of them are reluctant to do. These adjusters will happily provide their consent for a motion to extend the time for dismissal or to reinstate after dismissal if it should become necessary. I have tracked my own files over 2012 and 2013 in an attempt to conduct an ad hoc empirical study.  Approximately 80% of the matters where a Notice of Pending Dismissal is received and where I do not force the insurer to file a defence end up being resolved without the need for a defence to be filed, and thus no motion is necessary. My practice is by no means atypical. Thus, I am bringing only 1 motion on average for every 4 or 5 notices I receive, and thus only 20% as many motions. Extrapolate this across the personal injury Bar and we are saving thousands of motions a year.

Unfortunately there has been, as a result of some decisions of the Masters Court in Toronto, an emphasis put on bringing these motions in a timely fashion, as in during the 45 day notice period, or as soon as possible after dismissal. The fear is that I can no longer essentially ignore the notice and dismissal, and then simply bring the one out of five motions that I will eventually have to bring when it becomes apparent that the negotiations have broken down and there is no prospect of settlement. And almost all of those motions will be on consent or unopposed. There is no prejudice to the defendant as their representative has agreed it was in their, and my client’s, best interests, to hold off on the filing of a defence. The insurer is not relying on any principle of finality. And as to the evidence being preserved, much of it is not even in our possession yet so it is certainly not stale or missing. Moreover, we are talking 6 to 12 months from the commencement of the claim. This article is not meant to address the 2 year dismissl notices, just the 6 month timeline. So any delay can hardly be seen as egregious. Both plaintiff and defendant are actively working to move the file forward. On those bases alone, many of the key factors Master Dash refers to simply would not bear scrutiny in the instances I describe. Obviously those larger claims where it is apparent that settlement will not be possible for years are not going to fall into the category where motions are necessary as a defence will be demanded by plaintiff’s counsel almost immediately.

My conversations with other plaintiff’s counsel reveal similar concerns by those firms. My firm handles approximately 250 to 300 cases at any one time and is a relatively small practice by some standards. The majority of files are could fairly be categorized as falling into the category referred to as needing exclusion from Rule 48.15. I am at a loss to see how bringing up to 5 times as many motions as necessary benefits the efficiency of the system and saves on court resources, both administrative and judicial.

There is a simple solution here. Either, invoke a sub-rule that applies to personal injury actions, say 12 or 18 months, or implement a system whereby plaintiff’s counsel and the insurer can extend the time automatically without a motion simply by filing a requisition confirming their agreement to extend the time. I had heard rumours that the latter process would be implemented, but so far they appear to be just rumours.

Given that Toronto Masters motions are now booking 3 months down the road, ex parte motions court is jammed every day it sits, and a typical motions list is often more than can be handled on a particular day, this change would benefit not only the personal injury Bar but the entire litigation bar as well as the court system. It would save countless amounts of money in terms of time and judicial resources, benefit all parties to the litigation by keeping costs down and encouraging pre-discovery resolution where appropriate, all of which ties in nicely with the new focus on cost proportionality.

Just before the Christmas holiday break, the Court of Appeal for Ontario issued a ruling against the 407 ETR corporation (“407”) on an issue that insolvency lawyers and bankruptcy trustees have suggested for years should have been obvious. The issue related to 407’s ability to have the Ontario Ministry of Transportation (“MTO”) refuse to issue or renew licence plates/stickers if the driver in question had money owing to 407 for unpaid tolls. The case involved a former truck driver and traveling sales agent, Matthew David Moore. Mr. Moore discovered after being discharged from bankruptcy and having all of his pre-bankruptcy debts expunged, that he could not renew his vehicle plate permit unless he paid the 407 at least a portion of the money he technically no longer owed to 407 (as that debt had likewise been wiped clean on the date of his discharge from bankruptcy). This inability to obtain vehicle plates would, of course, not only prevent him from legally driving on the 407, but also anywhere else in Ontario. Given his employment history, this would also appear to interfere with his ability to earn a livelihood. Such an outcome is in direct contravention to the aims of consumer bankruptcy in Canada, which laws are founded on the “fresh start” principle. Despite the federal bankruptcy regime, the 407 Act of Ontario allowed the 407 to require the MTO to suspend or refuse permits and plates to those who owed even modest sums to the toll highway company. As a result of this perverse quandary he faced after his discharge, Moore applied to the Registrar in Bankruptcy- a judicial officer in the Toronto court with oversight for bankruptcy law- for a judgment requiring 407 to notify the MTO that he was no longer indebted to them. The Registrar agreed. The 407 then appealed to a single judge of the Superior Court who overturned the Registrar’s decision, concluding that there was no apparent conflict between the fresh start concept of the federal bankruptcy regime and the ability of 407 to essentially enforce collection of a debt post-bankruptcy. Moore was set to appeal to the province’s highest court when the 407 sought to derail the appeal by offering what he said was a “sweetheart deal” to settle his outstanding debt. Fortunately, the federal Superintendent of Bankruptcy stepped in and was permitted by the Court of Appeal to argue the merits of the case for the benefit of all discharged bankrupts who found themselves in Moore’s situation, a number which I understand to be in the thousands.

In Canada, the Bankruptcy and Insolvency Act (BIA) deals with consumer bankruptcies with the aim of allowing discharged bankrupts a fresh start. The idea is that an “honest debtor” who has gotten in over his or her head (through illness, long term unemployment, marital breakdown, a failed attempt to run a business, among other reasons) would be entitled, after a period of bankruptcy, to a discharge. Once an Assignment in Bankruptcy is made (thus putting the individula into a state of bankruptcy) no unsecured creditor can continue to enforce or collect upon any debt of the bankrupt. Upon discharge, all debts, except those enumerated in section 178(1) of the BIA, would be expunged, thus allowing the now discharged bankrupt to be free of any and all debts incurred prior to the date of bankruptcy. In this manner, Parliament reasoned, the individual could move forward and rebuild their financial life free from the past encumbrances. Debts which would survive bankruptcy would include those debts incurred by fraud (one who incurs a debt by committing a fraud is obviously not an “honest debtor”); those related to child or spousal support; certain types of criminal court ordered restitution or fines. It is long settled law and policy in Canada that regardless of the fact that the fresh start principle results in many creditors ending up unpaid, to the tune of hundreds of millions of dollars a year, the consumer bankruptcy regime set out in the BIA is actually in the country’s best interests. I would suggest it is also in keeping with our national commitment to social justice and equality of opportunity.

In Ontario, however, an apparent conflict with the aims of the BIA has arisen as a result of the 407 Act. Upon discharge, although the 407 could no longer take any legal action or other collection and enforcement mechanisms to collect its toll debt from the bankrupt, it could still require payment from the discharged bankrupt in exchange for lifting the permit suspension. In essence, if one wanted to continue to legally drive in Ontario after being discharged from bankruptcy, one would be forced to make a financial arrangement to repay some or all of the pre-bankruptcy debt one owed to 407 in order to obtain plates and permits. Thus, 407 was obtaining through the back door what it could not legally do by entering through the front door.

Further, as the BIA consumer bankruptcy regime also groups together all unsecured creditors of a bankrupt (generally speaking these would include banks for unsecured loans and credit cards; other charge card companies; utility providers; private lenders including family; and often Revenue Canada) to share any assets or surplus income of the bankrupt (or more likely to all lose out in the majority of consumer bankruptcies), the 407’s ability to have the MTO suspend plates also gave the 407 an unfair position as against other creditors, granting it a superior position not intended by the BIA. In fact, this point was not missed by the Court of Appeal in deciding the case. Madam Justice Sarah Pepall, writing for the unanimous Court of Appeal panel in Canada (Superintendent of Bankruptcy) v 407 ETR Concession Company Limited, stated quite tongue in cheek, that the “407 Act should not permit (407) to occupy the collector’s lane”.

Madam Justice Pepall also conducted a very detailed historical overview of the Supreme Court of Canada’s decisions on the doctrine of paramountcy. Simply stated, this doctrine specifies that when a federal piece of legislation and a provincial Act are in conflict, the federal legislation reigns supreme. She concluded that as the doctrine of paramountcy applied and further, as the section of the 407 Act which granted the suspension powers to 407 conflicted with the fresh start purpose of the BIA, the the relevant section of the 407 Act as to be rendered inoperative. This is no insignificant decision. Given that there are approximately 25,000 bankruptcies a year in Ontario, there are presently thousands of Ontario drivers validly discharged from bankruptcy hindered from a true fresh start because they cannot obtain the necessary permit to legally drive in a province where except for those living in the core of Toronto, private vehicle transportation is necessary just to get to work. This number would have been bound to increase by several thousand a year had it not been for this decision.

While 407 is currently determining whether to seek leave to appeal to the Supreme Court of Canada, I would advise any discharged bankrupt with a permit denial as a result of pre-bankruptcy debt to immediately contact the collections department of 407. Demand confirmation that 407 will advise MTO to remove any 407 imposed restriction from their database. Given that the decision was just released I have not had any feedback on whether MTO will simply abide by the ruling of its own accord without the need for a 407 clearance notice for each individual affected driver. But the current state of the law is as set out by the Court of Appeal, which means the 407 can no longer require the MTO to withhold plate permits from discharged bankrupts. Given the thorough analysis of and reliance upon Supreme Court bankruptcy decisions and paramountcy cases, I suspect even if the matter is appealed, the reasoning of the Court of Appeal is unassailable and will be upheld by the country’s highest court.

The complete case can be found here: http://www.ontariocourts.ca/decisions/2013/2013ONCA0769.htm