Uncategorized

Toronto Street Hockey Ban 'Nothing Short of Stupid'

by

Toronto personal injury lawyer Darryl Singer is echoing calls for dropping Toronto’s ban on street hockey, urging politicians to “let kids be kids.” Ontario Trial Lawyers Association Blog

“The prohibition is nothing short of stupid,” says Singer, principal of Singer Barristers Professional Corporation. “Street hockey gets kids outside and promotes a sense of community and fitness.”

Society spends too much time worrying about legal issues such as liability, he tells AdvocateDaily.com.

“We are over-lawyered and over-legislated at the municipal level. This is an issue where we should leave the legalities out and just let kids be kids.”

Ontario’s Minister of Children and Youth Services, Michael Coteau, recently took the unusual step of intervening in municipal politics to take a stand on the issue, the Toronto Star reports.

Coteau is urging city politicians to amend the Municipal Codes to remove the prohibition of portable basketball and hockey nets on the public right of way, the newspaper says.

In a letter to Toronto City Council, Coteau pointed to the many benefits of outdoor play that go well beyond the physical and health gains: “Things such as communication and social skills, an understanding of social rules, relationship building, learning how to compromise with others, patience and perseverance, teamwork and a sense of belonging.”

Singer, a father of three, says he doesn’t see how the city could be held liable if children are accidentally hurt while playing street hockey.

“It would be a stretch to tie it in with the city,” he says.

“If the prohibition stands, why not ban any sort of physical activity in the city? I am not usually one for the slippery slope argument, but this a good place to say ‘let’s not open the floodgates.”

Read the Article on Advocate Daily

Understanding Liability in Personal Injury Cases

by

If you are hurt in a slip and fall in a bank or from spilled hot coffee from a restaurant, that doesn’t necessarily mean you have a viable lawsuit, says Toronto personal injury lawyer Darryl Singer.

“Just because you’re hurt doesn’t mean you can sue the place where it happened,” says Singer, principal of Singer Barristers Professional Corporation. “Somebody other than you has to be at fault for the accident. There has to be an element of liability.”

It may seem like a simple concept, but Singer regularly receives inquiries from people who are eager to sue — even if they were injured as a result of their own clumsiness.

For example, Singer recently tried to help a man who slipped at a bank, resulting in very serious injuries. The man told Singer he fell because he thought there was spilled liquid on the floor.
Singer issued a notice of lawsuit to the bank, and an insurance adjuster contacted him a short time later, saying they had security camera footage showing the man’s fall.

After viewing the footage, Singer could see there was no spill or other reason for the fall. The man simply tripped over himself when he turned around.

“I explained to him that the bank was not at fault, notwithstanding the fact you had an unfortunate accident that caused you to have an injury,” Singer tells AdvocateDaily.com. “But there’s no possible way it’s the bank’s fault. You can’t sue the bank.”

It was difficult for the man to accept, he says. He believed the bank should pay for his medical rehabilitation, since that’s where the injury occurred.

“This is constant,” Singer says of the misconception around liability and slip and falls.

In another example, a woman tried to get his help after falling outside of a private building. But when his associate viewed the area, she couldn’t find any physical issues with the site. There was no construction at the time of the fall, the weather was fine and the sidewalk in good repair.

Singer believes the confusion around liability is exacerbated by stories coming from the U.S., such as the woman who sued McDonald’s and won a $2.86 million jury award (later reduced to $500,000) after suffering from third-degree burns in her pelvic area from a coffee spill.

In fact, Singer also has a client who was also burned by McDonald’s coffee. He says while she has a good case, she could never dream of winning millions in damages.

“Since the scale of damage awards in Canada is not the same as in the U.S., the case is not worth $2.86 million or even $500,000. It is worth significantly less.”

Singer says people need to realize there is a big difference between hurting yourself because of an accident and as a result of someone’s negligence.

“If you come to my house and fall down my stairs because you’re clumsy, you can’t sue me,” Singer says. “If you’re leaving, it’s winter and you slip because I didn’t salt the stairs, yes, you have a case.

“It’s all about liability.”

Read the Article on Advocate Daily

Appeal Court Ruling Ensures Client Receives Assessment

by

The Ontario Court of Appeal’s decision to have an injured appellant’s fee agreements with two law firms reassessed shows that the court felt a need to step in and ensure the client was not deprived of his right to an assessment, even though he urgently needed the money, Toronto personal injury lawyer Darryl Singer tells Legal Feeds.

Clatney v. Quinn Thiele Mineault Grodzki LLP centred around the 2013 settlement of a man’s personal injury claim for $800,000, after he had been seriously injured in a 2008 crash, Legal Feeds reports.

The appellant originally pursued the claim with Bertschi Orth Solicitors and Barristers, but later switched to Quinn Thiele Moneault Grodzki LLP.

The first firm billed the man more than $117,000 for its work on the file, and the second firm initially told him it was owed more than $305,000, the article notes.

According to the ruling, the appellant ran into problems after asking for a release of $50,000 from his settlement, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.

In the ruling, Justice Gloria Epstein said the appellant was “vulnerable” when he entered into the fee agreements with the firms, and “was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling.

The court ruled that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to the appellant for costs of the initial application and $15,000 for the appeal, the article notes.

Singer, principal of Singer Barristers Professional Corporation, who was not involved in the case, tells Legal Feeds that;

“It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”

Read the Article on Advocate Daily

Criminal Conviction Can Help Plaintiff Prove Civil Liability

by

While a finding of guilt in a criminal proceeding doesn’t guarantee a win for the plaintiff’s counsel in a civil case, it does make things easier as the burden of proof has already been met, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.

“If you’re already convicted it’s unlikely that you’d be able to successfully argue that you weren’t liable and your lawyer’s strategy at that point in the civil case would be to shift to limiting the amount by saying, ‘Yes, he committed an assault and we admit the liability but we don’t think the damages are as high as the plaintiff says,’” explains Singer, principal of Singer Barristers Professional Corporation.

Singer, who typically acts for plaintiffs who are bringing a suit against a convicted drunk driver or for a person who has been assaulted and the perpetrator has been convicted, explains that a conviction under the Criminal Code doesn’t automatically mean that he will win civilly.

He adds, however, that, “it certainly helps me get over the liability hurdle.

“The key is because the test to convict in criminal court is higher than the test to prove liability in the civil court.”

In a criminal matter, he says, the court has to be satisfied beyond a reasonable doubt that the person has committed an offence. In civil court, it only has to be satisfied that on the balance of probabilities the defendant is responsible.

Singer says in the article that it doesn’t bother him if someone he’s suing in civil court is found not guilty at a criminal trial — the mere fact there is a charge is helpful.

“Obviously if there’s a conviction then proving liability is much easier in a civil case because I’ve already got a precedent.”

There are a number of reasons why a person may escape conviction on a criminal charge, he explains, including the Crown deciding to drop the charge if they feel the case is not worth pursuing, or allowing an accused who is a first-time offender to enter into a peace bond.

If a defendant is found not guilty in criminal court, this means the defendant’s lawyer can argue in civil court that the person is not responsible for an act, says Singer, “however it doesn’t mean that we’re down and out on the liability.”

Read this Article on Advocate Daily

Local Lawyers, Paralegals Valuable to Sole Practitioner Network

by

Networking is an essential component of starting a law firm, and can include establishing key relationships with other local legal professionals, Toronto personal injury lawyer Darryl Singer tells Lawyers Weekly.

In 2010, Singer, principal of Singer Barristers Professional Corporation, started his personal injury practice with just one assistant. In part, he credits his firm’s growth to strong relationships with paralegals.

“As a plaintiff’s lawyer I was doing tort cases, and in the first two or three years I had an association with a paralegal firm that kept the accident benefit work and sent me the tort work,” he says in the article.

“Their scope of practice is limited, so if they hit the ceiling and can’t do something they call me.”

Singer also says that he turned former personal injury competitors into referral sources.

“I’ve developed a network of a dozen of these firms…that won’t take a case if the claim isn’t worth ‘X’ dollars,” he explains, adding that some firms focus on higher-end tiers within their niche.

Now, Singer’s firm includes an associate lawyer, five paralegals and law clerks.

When it comes to hiring, Singer says his associate lawyer joined as an articling student and remained with the firm after she was called to the bar.

“I don’t use a recruiter,” he says. “It’s almost always connections through people I know.”

Source

Liability Denials Likely After Toronto Cops End Minor Crash Probes

by

A decision by the Toronto police to stop attending minor crashes could make it easier for parties to deny fault and liability — raising barriers for people who are hurt in an accident, personal injury lawyer Darryl Singer tells AdvocateDaily.com. WATCH CityNews.

“What appears to be a minor accident may result in injuries that are anything but minor,” says Singer, principal of Singer Barristers Professional Corporation in Toronto.

Facing an increasing volume of minor collisions, the Toronto Police Service announced Tuesday it would stop investigating when the combined damage is less than $2,000.

Traffic officers say about 70 per cent of all crashes are minor, and the current model is “no longer sustainable,” the Toronto Sun reports. The new hands-off approach is expected to begin next week.

Singer, who represents people who have been hurt in motor vehicle accidents, says the move could lead to problems for individuals who are injured in so-called minor crashes.

“If you are injured in an accident, you cannot sue the other party unless they are at fault,” he says.

“Without a police officer at the scene, it will be easier for the potentially at-fault party’s insurer to defend on the basis that their insured was not actually at fault.”

Singer adds that many minor accidents involve violations of the Highway Traffic Act, such as failing to yield, improper turns and improper lane changes.

“When police attend the scene and determine this to have been the case they will issue a ticket to one of the parties,” Singer says. “If they do not attend, this may open the door for the responsible party to concoct a story to deny liability.”

Singer says he often sees long-term health issues come as a result of crashes that were once believed to be minor.

“Often the body and mind are in a state of shock at the accident scene,” he says. “Unless there are broken bones, you may not realize that you have suffered injuries that will linger for months or even years.”

Soft tissue injuries to the neck and spine may appear to be minor but are often the “most insidious,” he says.

“While broken bones will generally heal, soft tissue injuries often result in chronic physical pain, and the effect of this quite frequently leads to depression and anxiety. So you may not decide until weeks or even months post-accident that you have injuries sufficient to warrant a lawsuit,” he says.

If there is no police report, drivers need to take proactive steps at the scene of an accident, he says. Singer provides the following tips on his blog:

1) Obtain the other driver’s licence and insurance information. Simply take a photo of the driver’s licence and pink slip.

2) Make a note of or photograph the make, model and licence plate of the vehicle.

3) Take photographs of any damage on both vehicles. Include any part that is detached and is lying on the road.

4) Obtain names and telephone numbers of witnesses.

5) If you feel any pain at all on the day of the accident or within several days or weeks thereafter, immediately attend at your family doctor, emergency room, or walk-in clinic, to document the injuries. Make sure to tell the doctor the details of the accident and how these injuries arose.

6) Contact your insurance company and provide them all the details, including details of any injuries, so there is a written record of the accident.

7) Write a detailed account of how the accident occurred and what injuries you have. Make notes about whether you were wearing a seatbelt, had anything to drink, if you were using a cell phone at the time, the weather, when you first saw the other vehicle, and any other details of the accident and your injuries.

8) Make a note of any conversation you had with the other driver.

9) If your injuries are ongoing, keep a regular daily or weekly journal of the nature and progress of your injuries, including your daily pain on a scale of 1 to 10; a list of tasks you need help with; whether or not you missed work or other events; and whether or not (and how) your pain affects your relationship with those closest to you.

“By taking the appropriate steps at the time the event occurs, you will enhance your credibility in the context of the lawsuit, and increase the likelihood that a lawyer can settle or win your case,” Singer says.

View article on AdvocateDaily.com

Had a car accident? Don't call the police.

by

Toronto Police Service announced on March 22nd that it would no longer dispatch officers to the scenes of minor accidents. While the definition of “minor” is not entirely clear, it appears to mean where there is minimal damage to the vehicle and/or there are no individuals with significant injuries. It is foreseeable that other GTA-area police forces will implement similar policies. This will mean more use by individuals of the collision reporting centers, and more need for diligence by motorists at the scene of an accident. While the collision at the time may appear to be minor, injuries sustained by individuals may not become immediately apparent. Often the body and mind are in a state of shock at the accident scene Unless there are broken bones, you may not realize that you have suffered injuries that will linger for months or even years. For example, you may have suffered soft tissue injuries to your neck and spine. These injuries appear to be minor and you will be told if you visit a doctor that the pain will go away in several days. In fact, what I see regularly in my personal injury practice is that soft tissue injuries are often the most insidious. While you will know immediately if you have broken a bone or suffered severe injures, soft tissue injuries may not crystalize for days or even weeks. Further, while broken bones will generally heal, soft tissue injuries often result in chronic physical pain, and the effect of this quite frequently leads to depression and anxiety. Thus, you may not decide until weeks or even months post-accident that you have injuries sufficient to warrant a lawsuit. As there may no longer be a police report containing the other driver’s information and the details of the accident, you need to be proactive at the scene of the accident. Here is a handy checklist of things to do if you are involved in an accident and the police do not attend (or even of they do):

  1. i) Obtain from the at-fault driver his or her driver’s licence and insurance information. In this day and age of cell phones, if you do not have a pen and paper, simply take a photo of the driver’s licence and pink slip. Obviously, you will allow the other driver the same opportunity to gather your information.
  1. ii) Make a note or photograph the make, model and licence plate of the vehicle.

iii) Take photographs of any damage on both vehicles. Don’t forget if any part of the car, such as a bumper, has detached and is lying on the road, take a picture of that as well.

  1. iv) If there are independent witnesses to the accident, obtain their names and telephone numbers.
  1. v) If you feel any pain at all on the day of the accident or within several days or weeks thereafter, immediately attend at your family doctor, emergency room, or walk-in clinic, to document the injuries. Make sure to tell the doctor the details of the accident and how these injuries arose.
  1. vi) Contact your insurance company and provide them all the details, including details of any injuries, so there is a written record of the accident.

vii) When you go home, while your memory is fresh, write a detailed paragraph about how the accident occurred and what injuries you have. Make notes about whether you were wearing a seatbelt, had anything to drink, if you were using a cell phone at the time, the weather, when you first saw the other vehicle, and any other details of the accident and your injuries.

viii) Make a note of any conversation you had with the other driver.

  1. ix) If your injuries re ongoing, keep a regular daily or weekly journal of the nature and progress of your injuries, including your daily pain on a scale of 1 to 10; a list of tasks you need help with; whether or not you missed work or other events; and whether or not (and how) your pain affects your relationship with those closest to you.

Too often I see prospective clients who have no proof that the accident even occurred, have no medical record of any injuries, and may not even know the party they need to sue. Even if you have the basic information, and have been to the doctor, at some point two or more years after the accident, you will be asked as part of the litigation process, under oath, for your recollection of the details of how the accident happened and the specific nature of your injuries over the years. By taking the appropriate steps at the time the event occurs, you will enhance your credibility in the context of the lawsuit, and increase the likelihood that I can settle or win your case.

Maximizing tort settlements during bankruptcy

by

If your plaintiff is an undischarged bankrupt for any period of time during a tort action, you will be required before disbursing settlement funds to obtain a release from your client’s trustee in bankruptcy.

This article provides a simple overview of the interplay between tort personal injury settlements and the Bankruptcy and Insolvency Act (BIA).

First of all, there is no need to worry about the impact of the bankruptcy on your legal fees or disbursements. It is by this point trite law that the amount of the settlement or award to be calculated, if any, in the bankruptcy context is net of legal fees, disbursements and HST.

Section 67 of the BIA requires that the bankrupt’s assets (property) vest in the trustee for the benefit of the creditors. Sec. 68 of the BIA sets out a scheme dealing with “income,” specifically for the payment of “surplus income” earned during the period of bankruptcy.

Surplus income is defined in Sec. 68 of the BIA and more particularly calculated through the directive published by the Superintendent in Bankruptcy.

The actual calculation of surplus income is based on location, family size, and certain other obligations of the bankrupt. Using the metrics prescribed by Sec. 68 and the directive, a maximum allowable income to be earned without being fettered by the trustee is determined for the bankrupt. Beyond that, the amount is considered surplus, generally half of which is payable to the trustee.

It is well settled law that general damages in a personal injury action for pain and suffering are neither “property” nor “income” of the bankrupt and thus nothing on account of generals has to be paid to the trustee.

Similarly, the Ontario Court of Appeal in Conforti (RE) [2015] ONCA 268 held that settlement proceeds for housekeeping and future care costs are akin to general damages in that they are monies which are personal to the plaintiff and as such are neither income nor property under the BIA.

This leaves for discussion the important characterization of proceeds of settlement for income loss, loss of future earning capacity and loss of competitive advantage.

The determining factor of whether any of the lost income settlement (past or future) is payable to the trustee will depend on the time period for which the income is notionally payable. To the extent that the time period and the bankruptcy overlap, that portion of the lost income settlement which falls into the period of the bankruptcy will be payable as surplus income to the trustee.

The issue arose in Conforti (RE) and was fleshed out over three decisions. Initially, the trustee sought to have the lost income settlement characterized as “property” of the bankrupt, which would mean that all of the proceeds would vest in the trustee. At Conforti (RE) [2012] ONSC 199, Justice Wilton-Siegel determined that while the settlement was not “property,” it was indeed “income” pursuant to Sec. 68 of the BIA.

The issue of allocation of lost income to the trustee then went before Spence J. Conforti (RE) [2012] ONSC 2656. The trustee sought to have the entire lost income portion of the settlement declared as income in the year it was received, which would thus open the entirety of those proceeds to exposure of the trustee.

Justice Spence disagreed with the trustee and held that the proper allocation was to determine what portion of that lost income was attributable to the years of the bankruptcy.

The Court of Appeal Conforti (RE) [2015] ONCA 268 upheld the reasoning of Spence as to the apportionment but tinkered with his calculation to more precisely line up with the actual period of the bankruptcy. The cumulative result of these decisions provides a method by which to calculate the amount of a lost income settlement that will be attributable to income of the bankrupt.

Simply put, this is done by pro-rating of the years of the bankruptcy against the total number of years for which the lost income is payable.

In Conforti, the plaintiff was being paid future lost income for a notional period of 15 years — the date of the settlement until age 65. The period of this that overlapped with the bankruptcy was two years (post-accident date of bankruptcy to date of discharge). Therefore, the Court of Appeal took a practical approach and allocated for the benefit of the trustee a pro-rated amount of 2/15 of the lost income amount which was be plugged into the surplus income calculation and thus available to the trustee.

It should be noted that awards for loss of competitive advantage will be treated the same as loss of future income claims.

Clever personal injury lawyers, wanting to maximize the recovery for their clients, might be tempted to allocate in the minutes of settlement all of the money for general damages. While this may work in certain instances, the reality is that Justice Wilton-Siegel found, and the Court of Appeal endorsed, a purposive approach to treatment of the monies.

It is not what the words of the settlement say, but what they actually mean. If your client has never returned to work since the accident and is unlikely to in the near future, then it would be difficult for a court not to consider some allocation of the award as lost income.

Darryl Singer is a Toronto-based litigation lawyer at SINGER Barristers Professional Corporation, with experience in both bankruptcy and personal injury matters.