Uncategorized

Unlike other types of litigation in Ontario, personal injury actions arising from motor vehicle accidents are stacked against plaintiffs from the beginning. Sections 267.5(5) and (7) of the Insurance Act, coupled with ss. 4.1 and 4.2 of Ontario Regulation 461/96, work to minimize the risk that insurance companies for the at-fault driver will have to pay out for injured victims in tort claims. Here are five ways that plaintiffs face an uphill battle from the get-go.

Statutory threshold

Merely being injured in an accident caused by someone else does not automatically entitle one to sue for pain and suffering. The injuries must meet what is called the “threshold.” The plaintiff must have suffered a “permanent serious impairment of an important physical, mental or psychological function.” Most of my personal injury cases involve an argument over whether or not my client meets the threshold. 

As an example, let’s take a typical case I would deal with, where my client suffers from neck and back pain, occasional headaches, and some concomitant psycho-emotional stresses, all of which disrupt her sleep. During the day she is fatigued. The constant pain and fatigue causes frustration leading to minor depression. But she does not miss work and life goes on, for the most part just as it did before. To my client, her pain is real, yet no objective diagnostic tests confirm this. As such, the threshold question is a live issue. I regularly rely upon the Court of Appeal for Ontario decision in May v. Casola [1998] O.J. No. 2475, which states that an individual who returns to normal life but does so with “permanent symptoms including sleep disorder…headaches, dizziness” meets the threshold, and other cases following therefrom (such as one for $100,000 for the soft-tissue injuries of a plaintiff who returned to work and some of his pre-accident activities, but did so in constant pain, in Whilby v. Redhead [2010] O.J. No. 1819). Yet two recent decisions of the Superior Court — Ayub v. Sun [2015] O.J. No. 1415, and Malfara v. Vukojevic [2015] O.J. No. 44 — appear to foreshadow a trend that will make it more difficult for injured parties to recover by seemingly moving the line the threshold must cross.

Threshold motion

While I will run the trial in front of a jury, section 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award. This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.

Statutory deductible

Section 267.2(1) of the Insurance Act sets out a deductible on general damages for pain and suffering. Presently this deductible is $30,000 on all awards under $100,000. Whatever amount the jury awards will be reduced by $30,000. When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.

Insurer not named defendant 

The lawsuit pits my client against a defendant whose vehicle is responsible for causing the accident. The actual defendant is only remotely involved in the defence of the action. It is the defendant’s insurer insurance company who hires and pays the lawyer, and ultimately any award of damages. The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.

Costs

The loser of a trial will pay a significant portion of the winning party’s legal costs. Costs awards exceeding $100,000 for a typical personal injury jury trial are commonplace — no big deal for the insurance company, but a very large risk for my clients. In fact, it is such a large risk that very deserving injured plaintiffs who are pushed to the eve of trial will often walk away for fear of losing their home or having their wages garnisheed.

These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver. The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.

It should be noted that due to recent amendments to the Insurance Act, for all accidents which occur on or after August 1, 2015, the $30,000 deductible referred to above will now be $36,540. Likewise, the $100,000 mark which must be hit to avoid the deductible will be $122,799 for post-August 1, 2015 accidents. These amounts are subject to annual inflation rate increases. This almost under-the-radar legislative change only serves to underscore the opinions expressed in this commentary.

A recent decision by Superior Court Master Donald Short raises an interesting advocacy opportunity based upon a little-known and fairly recent piece of Ontario legislation, the Apology Act.The aim of the act was to allow a potential defendant to express remorse or regret without fear of such comments precluding a defence on the merits and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation. the master reviewed the principles enunciated in the Apology Act. In Simaei, the plaintiff wished to plead in her statement of claim that her former employer’s apology arising from the termination of her employment was an admission of fault or wrongdoing. As such, the plaintiff wished to use the apology as a quiver in the arrow of her case. The defendant’s lawyers argued the court should strike that part of the statement of claim as being prejudicial to her in addition to being vexatious and an abuse of process. None of the allegations have been proven in court.Short agreed, citing the provisions ot andate that a party cannot use an apology made in good faith (unless made in the context of an on-the-record discussion as part of the litigation) against the other side in the context of the litigation. The master went even further and suggested the court must by necessity strike the portion of the pleading referring to the apology since a party, under the Rules of Civil Procedure, “cannot plead facts that go nowhere.In light of the wording of the Apology Act, pleading the apology goes nowhere because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault. Thus, even pleading the fact that there was an apology by the defendant offends the principles of pleading and potentially prejudices the defendant at the trial. Additionally, if the apology remains a part of the pleading, it becomes a live issue on discovery.While the case on its face appears to provide some practical advice on the principles of pleading, it is the discussion of this relatively unknown statute that is the real lesson for lawyers to draw from the decision. Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, underscored the virtue of a strategic apology when he noted: “My personal involvement in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution.”I concur with Short. My own experiences over 22 years of litigation are that a properly timed and genuine expression of remorse can avert a lawsuit or mitigate the eventual cost to the defendant of settling the lawsuit. As lawyers, we think of the facts of a potential case in emotionally detached and almost clinical terms. But to the clients sitting in front of us, if we listen closely, mixed with their explanations of how they suffered economic losses by the proposed defendant will be expressions of moral indignation about how someone could do something so bad to them. Settling or avoiding lawsuits involves understanding more than just the law. It involves trying to get inside the head of the opposing party to empathize with its perspective. Plaintiffs often just want someone to hear and understand them. As counsel for a potential defendant or for you if you are dealing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars. It did not have that effect for the defendant in Simaei, but the plaintiff will not be able to use an ostensibly heartfelt expression of regret against her in the civil action.

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