Archive for the ‘ civil litigation ’ Category

Ontario’s Road Laws Fail to Protect Injured Motorcyclists

What may appear to be a “minor fender bender” between two cars can translate to catastrophic injury to cyclists, pedestrians or motorcyclists unfortunate enough to find themselves on the receiving end of such a crash.

While pedestrians and cyclists in Ontario are usually perceived as the most vulnerable group of road users, motorcyclists also face significant risk yet may face further legal battles that cyclists or pedestrians don’t.

For example, when cyclists or pedestrians are involved in collisions with other motor vehicles in Ontario, the operator of the motor vehicle must prove that he/she was not at fault. This is commonly referred to the “reverse onus” on the driver whose vehicle strikes a cyclist or pedestrian. In other words, the operator of the motor vehicle is presumed to be at fault unless they can prove otherwise.

Injured motorcyclists on the other hand cannot avail themselves of this “reverse onus” even though it is often the motorcyclists themselves (and their passengers) who pay the ultimate price because of the carelessness of other drivers.

For example between 2005 and 2014, the O.P.P. conducted a study , which found 279 motorcycle rider deaths. In 89 of these fatalities, consisting of 74 motorcycle operators and 15 motorcycle passengers, the victims did “nothing wrong”.

The sad reality is that motorcyclists are often seen as being “speed demons” and authors of their own misfortune. This poses additional barriers to injured riders who will often be accused of speeding, disobeying the rules of the road and/or causing the accident.  

Juries are unpredictable and insurance companies may pitch the narrative that you as the injured rider are at fault because you were on the motorcycle. The optics of being on a motorcycle shouldn’t but sadly CAN affect the outcome of your case as an injured motorcyclist.

As a motorcyclist, it is extremely important to anticipate these arguments being made against you if you are involved in a crash by no fault of your own. Having a motorcycle dashcam to record your road trips is a great way to capture the incident and have your side of the story documented in real time.

The law creates another uphill battle for injured motorcyclists. The last thing an injured motorcyclist needs is another hill to climb.

Planning For a Wedding or Trial Requires Commitment!



Planning for a trial is a lot like planning for your wedding day. There are just so many details to keep track of that it is hard to know where to begin. Both big days are usually booked well in advance and require meticulous planning and preparation. Both involve witness participation, which play a key role. Lastly, both events will involve inevitable arguing—either with the opposing lawyer or with your in-laws. Of course, there are always people present we don’t want to let down— a jury of our peers and/or our wonderful family and friends.

Not that I’m a wedding planner but if I were, I’d recommend you secure the venue, book the band and then hire your favourite photographer STAT. Time is of the essence! Why would preparing for trial be any different? All the key steps need to be taken ASAP!

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Today in Ontario, it is more difficult than ever to pursue a claim for damages following a motor vehicle accident.

I have spoken with other experienced injury lawyers who have agreed with me that if they could start fresh in law, they wouldn’t choose personal injury as their primary area of practice.

So why is it so difficult to advance a claim these days?

For one, the insurance legislation has been very unfavourable towards accident victims. To be entitled to money for ‘pain and suffering’, the test to meet requires the claimant to prove a serious impairment of an important physical, mental or psychological function” a.k.a. the “threshold test”. This test does NOT have to be met in injury cases other than car accidents. It is no wonder why insurers are all over this “threshold test” in auto claims and often take the view that “threshold will not be met”. This piece of legislation is a true gift from the politician gods to the insurers.

This gift comes with another little benefit called the “deductible”. This can be thought of as the beautiful red ribbon tied around the gift holding it all together. The deductible is the amount that gets deducted from any pain and suffering award under $100,000.00 and increases with inflation, which would make it approximately $37,000.00 today. So, in other words, if a claimant is so lucky enough to meet threshold, whatever they are awarded under $100,000.00 is subject to a deductible of $37,000.00. This means that if you’re awarded less than $37,000.00 for pain and suffering, you get ZERO.

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Another Slap in the Face for Ontario’s Injured Victims


On March 8, 2017, Ontario M.P.P. Mike Colle introduced a Private Member’s Bill, “An Act to amend the Law Society Act and the Solicitors Act with respect to matters related to personal injury claims and client agreements in legislature” (Bill 103).

Bill 103 set out a number of prohibitive measures including the capping of all new contingency fee agreements to no more than 15% of the award, a ban on all referral fees in personal injury matters and requiring Law Society approval of personal injury advertising.

While the purpose of the Bill may be well intentioned, it is very misguided and will only serve to diminish access to justice to Ontario’s most vulnerable. Read more

The Importance of Honest Income Reporting


Honest reporting doesn’t just apply to journalists. It also applies to those pursuing a claim for income loss.

While fudging your reported income might save you from being taxed, it can create problems later on if you are injured in an accident and want to rely on your income tax returns to prove your pre-accident earning capacity. Read more

Stop Feeling Guilty About Suing The Person Who Injured You





In my line of work as a personal injury lawyer, I am often surprised at the number of people who express sheer guilt in pursuing a personal injury claim. I often hear people say, “I feel funny about doing this” or “I’m not in a wheelchair so maybe it’s not worth it”. Is it the polite Canadian in us?

Yes folks, it is ACTUALLY true that good honest people can bring personal injury claims that are not paraplegics. It could be your grandmother, brother or next-door neighbor. Lets not be too quick to pass judgment. Leave that to the courts. Read more



With the Apple Watch release date just around corner, it is clear that the excitement, curiosity and growing popularity of wearable technology is bound to continue. This will also have a significant impact on the future of personal injury claims. So much of what we do is now recorded in digital form.

In today’s high tech world, the advent of wearable technology and the digitization of everything we touch, see and do leaves behind a trail of “digital handprints” and “digital fingerprints” to be tracked. Read more




Access to justice plays a vital role in maintaining the rule of law and ensuring fairness and equality within our civil justice system. In a perfect world, justice could be done without regard to the high costs of litigation.

Regrettably, we live in a world that is far from perfect and litigants must be mindful of the high costs and risks of litigation. Despite the challenges, the introduction of the often-underexplored option of Legal Expense Insurance (LEI) in Ontario may provide injured claimants with a greater sense of security to pursue claims with less concern for the financial risks involved.

Legal Expense Insurance is popular in Europe and Quebec and has recently gained some recognition in Ontario.

The following discussion will address some of the difficulties with our civil justice system and the ways that Legal Expense Insurance helps address these problems, with a focus on injured claimants.


The Supreme Court of Canada has recently recognized the problems in our legal system regarding access to justice. In its recent decision of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Justice Karakatsanis speaking for the Supreme Court stated at the outset:

“[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.”

Injured claimants, even those with competent lawyers acting on a contingency fee basis (sometimes referred to as a “no win no fee” arrangement) may still face great financial risks associated with litigation against the deep pocketed insurance companies.  For example, in the event a claim proceeds to trial and is unsuccessful, the injured claimant may end up being responsible for paying the disbursements incurred from both sides and may also be liable to pay the insurance company’s legal bill, which could be very significant. For example, the cost of civil matters can vary but according to an October 2013 report published by the Action Committee on Access to Justice in Civil and Family Matters, national ranges of legal fees may vary from “$13,561 – $37,229 for a civil action up to trial (2 days), $23,083 – $79,750 for a civil action up to trial (5 days), $38,296 – $124,574 for a civil action up to trial (7 days)”

The modernization and expansion of legal services to better promote access to justice is an ongoing challenge. According to the Action Committee on Access to Justice in Civil and Family Matters’ 2013 Report,

“Innovations are needed in the way we provide essential legal services in order to make them available to everyone. The profession — including the Canadian Bar Association, the Federation of Law Societies of Canada, law societies, regional and other lawyer associations — will, together with the national and local access to justice organizations … take a leadership role in this important innovation process.”

One such innovation to reduce the financial risk of litigation is through Legal Expense Insurance.


This type of insurance can protect those pursuing personal injury claims by providing coverage for expenses and any legal costs that a claimant might otherwise have to pay out of their own pocket in the event that the claim is unsuccessful or abandoned.

For personal injury claims, the premiums for LEI would be deferred until the conclusion of the claim only if the claim is successful. If the claim is unsuccessful, no premium is payable and the policy would still provide coverage to the injured claimant against adverse legal costs and disbursements that they may otherwise be responsible for paying after losing their case.

The Law Society of Upper Canada has referred to Legal Expense Insurance as a “useful insurance product, with the potential to make legal services more accessible and affordable”.

Given the benefits of this innovative option, the insurance industry and its regulators should be encouraged to support greater distribution and sale of LEI as part of more standard insurance products.

In the field of personal injury litigation, the often-cited “David and Goliath” comparison between accident victims and defending insurers creates a financial power imbalance. However, LEI may serve as one such innovative development to level the playing field and reduce the financial power imbalance at play. Although not the cure to the access to justice problem, LEI may be part of the solution. After all, what good are legal rights if you can’t enforce them?


Reposted with permission from




With the holiday season finally here, a little extra pocket money won’t hurt this time of year. For those handling a personal injury claim on their own without a lawyer, that may mean taking a quick settlement with the insurance company to splurge a little bit more on gifts this holiday season.

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There are a number of important tips to be aware of afterMVA a car accident. The actions taken (or not taken) by you can go a long way in deciding the success of your personal injury case. Below are 10 Key Legal Tips to be aware of following a car accident.

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