Time Limits in Personal Injury Law

One of the first pieces of advice that a personal injury lawyer offers potential clients is to act quickly. This isn’t done to pressure clients into legal action – it’s done because personal injury lawsuits in Ontario are subject to time limits, sometimes referred to as statutes of limitations, under the province’s Limitations Act. In the following article, we’ll explain how time limits affect personal injury claims, why they are in place, and their variations and exceptions.

Time Limits in Personal Injury Law

Ontario’s Limitations Act states that ‘Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.’

In other words, people who have been injured by the error or negligence of another person generally have two years from the time of the accident to file a claim against an insurer or the at-fault party. This rule applies to anyone that suffers immediate serious injuries, such as spinal injuries, brain injuries, paralysis, etc.

In cases where the injury is discovered later than the date of the accident, the two-year limitation period starts from the moment of discovery. When the injury initially appears to be minor but deteriorates to the point where a lawsuit is warranted, the limitation period starts at the moment it becomes clear that legal action is necessary.

Why Are Time Limits in Place?

Ontario’s two-year limitation period is predominantly in place to protect defendants. Almost every personal injury lawyer agrees that limitation periods are necessary – claims filed decades after an accident would be plagued by insufficient evidence, unreliable testimony, and other challenges.

Some lawyers believe two years is insufficient, however. The number was chosen because it was presumed to give plaintiffs and defendants enough time to hire representation, and provide lawyers with leeway to perform research, gather evidence, file paperwork, and generally build a case. However, personal injury lawsuits can be extremely complex and time-consuming. Two years sounds like a long time, but it isn’t always enough.

Variations and Exceptions

The standard two-year limitation for filing a claim isn’t the only time limit affecting Ontario injury victims. For example, victims in motor vehicle accidents must notify their accident benefits insurer within seven days that an accident as occurred; they then have just 30 days to submit an accident benefits application.

For more information about accident benefits representation, click here.

Motor vehicle accident victims also have just 120 days (three months) to notify the at-fault party or insurance provider that they intend to file a lawsuit. Doing so does not require you to pursue a claim.

Unique time limits also exist for claims against local and municipal governments. Claims against government agencies include those involving poorly maintained streets and sidewalks, icy or snowy surfaces on city property, injuries involving public transit or city maintenance vehicles, etc. In these cases, plaintiffs are required to provide written notice within 10 days of the accident. The notice must include the date, time and location of the accident, and other details.

Regarding the standard two-year limitation period, two important groups are largely exempted: minors, whose two-year limitation period begins when they turn 18, and individuals who are mentally incapable of initiating a claim.

Contact an Experienced Personal Injury Lawyer

For more information about limitation periods in personal injury law, filing a personal injury claim, filing a claim for accident benefits, or any subject related to personal injury law, contact Will Davidson LLP to schedule a free, no-obligation consultation with an experienced personal injury lawyer.

Will Davidson LLP’s personal injury team has represented seriously injured accident victims in Ontario for over 90 years. Our expertise ranges from motor vehicle accidents to medical malpractice claims to slip and fall injuries.

Will Davidson LLP is proud to offer legal representation on a contingency basis, meaning you will not be charged hourly fees for our services. Instead, our team will accept a pre-approved percentage of your settlement at the time that it is delivered. This arrangement is beneficial for two reasons: first, it ties our payment to the success of your case; we don’t get paid unless you receive compensation. Second, it allows financial flexibility during your recovery. Serious personal injuries can have lifechanging consequences. You may no longer be able to work and may need long-term medical care, rehabilitation, and home care. You may even need to explore home renovations or long-term care options. By foregoing upfront payment, we hope to reduce financial pressure and make it possible to access the resources you and your family need.

Call today to discuss your legal options and review the viability of your claim. Our team will provide the compassionate, committed support you need during this difficult period of your life.

Quick Road Safety Fixes for Ontario Cities

Many of the road safety concerns that worried Ontario’s car accident lawyers in 2010 remain relevant at the dawn of the new decade. Speeding, dangerous driving, and impaired driving continue to contribute to serious injuries and fatalities across the province, while new concerns such as legalized marijuana and widespread distracted driving are causing additional challenges.

The safety of vulnerable road users is also an enduring issue. In fact, it may be the single most pressing road safety issue in Ontario’s cities and towns. According to data from the Toronto Police Service (TPS), 20 pedestrians and two cyclists were killed in Toronto in 2010. By 2013, those numbers had doubled. In five of the six years since, at least 40 vulnerable road users were killed in Canada’s largest city.

Toronto has a plan: Vision Zero, which has been in place since 2016 (during which time fatalities have not decreased) and which we have already discussed in this blog. But many Vision Zero action items are high level changes that seek to fundamentally reshape Toronto’s massive transportation infrastructure and reverse driver behaviours and attitudes learned over decades. Vision Zero has the ingredients to eliminate traffic deaths in Toronto, but not in the next ten years.

With that in mind, the Globe and Mail recently assembled a list of 10 road safety ideas that experts believe can be done quickly with a little help from city hall. While most Ontario car accident lawyers support Vision Zero and its ambitious safety initiatives, few would argue against these quick, outside-the-box fixes.

Here are a few of the ideas from the list:

  • Identify and memorialize victims

Toronto police do not generally name traffic accident victims in order to protect the privacy of the victims’ families. However, publicly identifying victims, with their families’ consent, could reverse the idea that traffic deaths are a fact of life of urban residents.

“If we see fatalities as statistics, which is the result of not releasing names, it’s easier to maintain that stance,” said Michael Black, who is on advocacy group Walk Toronto’s steering committee, to the Globe. “If you release the names, I think people will be more apt to say: Should part of walking be running the risk of being killed?”

The Globe’s list of ideas also includes memorializing victims with a permanent monument.

  • Improve truck safety

Large commercial vehicles account for a disproportionate number of serious injuries and fatalities on Ontario roads. While Toronto can’t unilaterally change safety standards for trucks in general, it can improve the safety of its own fleet. In Montreal, the city equipped municipal trucks with sideguards to prevent injuries to vulnerable road users; the Globe suggests Toronto do the same.

  • Traffic enforcement

Early last decade, a dedicated Toronto police traffic unit patrolled busy corridors and enforced safety laws. The unit was disbanded in 2012 and the number of traffic tickets handed out in the city hit an all-time low in 2018. The Globe’s experts believe more enforcement could help pull fatalities back to pre-2012 levels. 

“Obviously, the more enforcement, the more people are going to get caught, the more they think they’re going to get caught and they change their behaviour,” said Walk Toronto’s Brown.

In this instance, road safety advocates may get their wish. Late last year, Toronto police announced plans to reintroduce a dedicated traffic squad in 2020.

  • Easier access to traffic calming measures

Concerned residents have to jump through a lot of hoops to get traffic calming measures installed on their streets in Toronto. According to the Globe, if a group of people living on a street wants speed bumps installed, the city will send voting ballots to everyone on the block – a majority of the ballots must be returned for the motion to advance, and 60 per cent of respondents must approve in order to proceed.

A simpler process could save lives – or the city could simply change its residential street parking policies. The Globe suggests allowing both-side parking on certain streets, which is itself a traffic calming action.

For a full list of suggestions, check out the Globe’s article here: https://www.theglobeandmail.com/canada/toronto/article-10-quick-ideas-that-could-reduce-pedestrian-deaths-in-toronto/

Contact an Experienced Personal Injury Lawyer

If you’ve been injured in a traffic accident in Toronto, Oakville, or elsewhere in Ontario, contact Will Davidson LLP to schedule a free, no-obligation consultation. Our experienced team of car accident lawyers has represented seriously injured accident victims for decades. We will happily review your case, outline your legal options, and suggest next steps. If you choose to retain our services, our team will provide tough representation, open communication, and compassionate guidance and advice as you navigate the road to recovery.

Protecting Senior Road Users

On a Saturday in late November, Toronto police hosted a seniors-focused pedestrian safety event at Woodside Square mall in Scarborough. The session included safety tips from officers and free reflective armbands to improve visibility. It occurred just a day after two seniors were seriously injured in separate accidents elsewhere in the city.

Seniors’ safety is a major concern for Toronto’s lawmakers, road safety advocates, and personal injury lawyers. According to the city’s official Vision Zero plan, roughly 870 seniors were killed or seriously injured in accidents between 2005 and 2016. In 2019, approximately 80 per cent of pedestrian fatalities involved people 55 or older; about half were seniors. As Toronto’s population ages – roughly one in five Torontonians will be older than 55 by 2040 – this already serious issue could become a crisis.

Toronto isn’t the only region facing this challenge. Transport Canada data shows that an average of 447 senior-aged drivers, passengers, pedestrians, cyclists, and motorcyclists died each year between 2000 and 2015 on Canadian roads. The next most vulnerable group, 25- to 34-year-olds, averaged 379 deaths per year. The data also shows that senior drivers, specifically, were the most likely to be killed since 2010; they were third, fourth, and fifth most likely from 2000 to 2007.

According to CBC News, the increase in traffic deaths involving seniors and older adults is “a troubling trend found in cities around the world,” a trend that lawmakers are struggling to address. Toronto police’s information session at Woodside Square, for example, attracted widespread ire from safety advocates and some personal injury lawyers.

“They’re out there doing something that the evidence shows us does not work and is in fact a form of victim blaming,” said Jessica Spieker of advocacy group Friends and Families for Safe Streets to CBC Toronto. “There is clear statistical evidence that driver behaviour is largely at fault along with infrastructure design. So there are the things we need to aggressively target.”

In fact, infrastructure design and actions to reduce speeding and other dangerous behaviours are central to Toronto’s Vision Zero plan. The city has invested in red light cameras, road redesigns, speed limit reductions, and is planning to introduce automated speed enforcement cameras in the near future. It also plans to improve “senior safety zones” around the city with enhanced markings and signage, longer pedestrian crossing times, and additional road design changes.

Unfortunately, the initiatives have not yet reduced collisions, serious injuries, or fatalities, and law enforcement may be getting desperate. In November, police Chief Mark Saunders announced a new eight-person traffic enforcement unit tasked with reducing dangerous driving and protecting pedestrians at high-risk locations. The Woodside Square safety session, on the other hand, appeared to shift focus from dangerous driving to dangerous walking.

“Instead of keeping on reminding drivers, we also want to help the pedestrians to raise their awareness and provide them with a simple tool that can help them,” Const. David Huang told the CBC. “If we can even reduce pedestrian collisions by one then I think it’s all worth our time.”

Mayor John Tory’s office also offered support for the initiative through a statement that read: “everyone must do their part to stop these preventable deaths and injuries, but that the primary onus rests with drivers in powerful steel vehicles.”

The Mayor’s statement mirrors what most Toronto citizens – including many personal injury lawyers – believe about road safety in their city. Reckless cyclists and pedestrians do sometimes cause serious traffic accidents, but distracted, impaired, or irresponsible drivers are more often to blame. When a vulnerable road user makes a mistake, they put themselves in danger; when a motorist makes a mistake, they endanger everyone on the road.

Contact Will Davidson LLP

If you or a member of your family has been injured in a traffic accident in Toronto, Oakville, or anywhere else in Ontario, contact Will Davidson LLP to schedule a free, no-obligation consultation. Our team of experienced personal injury lawyers has helped thousands of Ontarians access fair and reasonable compensation for the injuries they have incurred. We will evaluate your claim, explain your options and the legal process, and provide guidance and support as you navigate the difficult road to recovery.

With decades of experience in Canadian personal injury and insurance defence law, Will Davidson LLP has the experience and expertise to ensure that you are fairly compensated for the damages you have experienced. We also understand the unique mental, physical, and financial hardships that accompany a serious personal injury or long-term disability. For that reason, we are proud to work on a contingency basis, meaning you will never be asked to pay hourly or upfront legal fees. Instead, we will accept as payment a percentage of your negotiated settlement. This arrangement provides clients with the freedom and flexibility necessary to fund their recovery during the lengthy litigation process.

How Do Trial Delays Hurt Personal Injury Victims?

In October 2019, Waldock v. State Farm Mutual Automobile Insurance Company, which was initially a dispute between plaintiff Thomas Waldock and his insurance provider over the severity of his injuries, was resolved by an Ontario divisional court panel. Through appeals and reviews, the case was heard by the Financial Services Commission of Ontario (FSCO), the Director’s Delegate, and the Superior Court. It took more than 10 years from the time of his accident in March 2008 for Waldock and his personal injury lawyer to be awarded compensation – unless, of course, State Farm decides to appeal the divisional court ruling.

Unfortunately, years- and even decade-long personal injury and insurance dispute cases are no longer unusual in Ontario and elsewhere in Canada, as a recent Canadian Lawyer article makes clear. In Waldock v. State Farm, the insurance provider’s decision to file numerous motions and appeals caused the bulk of the delay, but defendants aren’t always to blame.

What Causes Trial Delays?

According to the plaintiff and defence side lawyers interviewed for the Canadian Lawyer article, are a range of structural issues cause trial delays in Canada. In Alberta, parties must complete expert reports, certify that they’ve attempted alternative dispute resolution processes, and demonstrate that they’ve completed questioning before a trial date can even be scheduled.

“You’ve got about two years – on a large case – of taking all those preliminary steps and getting everything in order,” one insurance defence lawyer in Alberta told Canadian Lawyer. “And then [there’s] another two-year wait for the date itself.”

“Judges want to know you’ve done all your work and you’re very serious and you’ve been forced to think through all the issues before using judicial resources, because those are really short in Alberta,” the lawyer added.

Mandatory mediation is also an issue in Ontario, according to one personal injury lawyer. Prior to recent changes, parties in personal injury cases or insurance disputes could schedule a trial date as long as a mediation date was also set. Now, the mediation must be complete before a trial date is approved.

“That delays the whole process by a number of years. … I’m finding that very, very frustrating,” the personal injury lawyer told Canadian Lawyer. “It’s just adding another year to the process.”

In contrast, British Columbia has no restrictions on trial scheduling, meaning fewer trial delays.

“You can get a trial date right away if you want,” a personal injury defence lawyer practicing in B.C. told Canadian Lawyer. “I really haven’t had any issues with trial delays. I think we have overall a very reasonable system. Two years is a pretty reasonable time frame for trials, and we seem to get those dates relatively easily.”

Further delaying matters is the fact that criminal and family law cases take precedence over personal injury claims and insurance disputes.

The parties’ actions can also have an effect, as in Waldock v. State Farm. One civil litigator who spoke with Canadian Lawyer said civil disputes now involve more numerous and extensive reports; plaintiffs will often submit economic loss, future care, and vocational reports, while the defence side prioritizes lengthy examinations for discovery, medical examinations, and other processes.

Who is Affected by Trial Delays?

Personal injury lawyers tend to blame powerful defendants like insurance providers and the Canadian Medical Protective Association (CMPA) for trial delays. They claim that organizations with deep pockets prefer to ‘wait out’ plaintiffs with limited resources, forcing them to accept less compensation than they deserve. But most insurance providers prefer swift resolutions to legal disputes – years of litigation involving lawyers and expert witnesses is extremely costly.

Plaintiff side lawyers are also hurt by years of slow-moving litigation. When a case drags on for months or years longer than expected, clients have a tendency to second-guess their lawyer’s expertise.

“That might seem reasonable to a lawyer that’s practiced in the area of 10,20, 30 years,” one personal injury lawyer told Canadian Lawyer. “But it’s a long time for my clients that don’t understand the process. And a lot of times they’re concerned that the lawyers are dragging their heels.”

Plaintiffs are acutely affected by trial delays. Recovery from a serious personal injury can be costly, especially if the victim is unable to work. Between rehabilitation, medication, home and attendant care, home renovations, and other expenses, many injury victims struggle to keep their heads above water financially. Every trial delay, every appeal and motion, puts fair and reasonable compensation further out of reach.

Contact an Experienced Personal Injury Lawyer

If you’ve been injured in an accident or are engaged in a dispute with your insurer, contact Will Davidson LLP to speak with an Ontario personal injury lawyer. Our experienced team will assess your claim, explain your legal options, and describe what to expect from a civil claim. Contact us today to schedule a free, no-obligation consultation.

Image credit: Shutterstock

Commercial Vehicles Involved in Numerous Fatal Accidents in Toronto

As Ontario car accident lawyers, the team at Will Davidson LLP keeps a close eye on road safety issues around the province, particularly in Toronto, where fatal collisions among vulnerable road users (cyclists and pedestrians) have increased alongside the city’s population. A recent accident near the intersection of Yonge St and Eglinton Ave in Midtown epitomized the issue while simultaneously shedding light on a serious but neglected problem.

According to the Toronto Star, 54-year-old Evangeline Lauroza was struck and killed by a cement truck at Yonge and Erskine Ave, three blocks north of Eglington, on September 10. Toronto’s Midtown has been a hotbed of construction for several years. There are numerous high-rise buildings under development and crews are working on the Eglinton Crosstown LRT, a multi-billion-dollar public transit project. The result is chaos at street level: roads are narrowed, exits are blocked, and commuters, pedestrians, and cyclists are forced to share space with large industrial vehicles.

As of the Star’s September 12 article, nine of the 26 pedestrian fatalities in Toronto were caused by collisions involving large trucks. The article also cites analysis by University of Windsor researcher Beth-Anne Schuelke-Leech, who found that 10.6 per cent of pedestrian fatalities between 2007 and 2017 involved large trucks, despite these accidents accounting for just 4.8 per cent of collisions overall. Additionally, the research showed that 37.6 per cent of serious collisions involving trucks during that time period were fatal, compared to just 15.9 per cent involving other vehicles.

“Trucks are undeniably more dangerous to (pedestrians and cyclists) in a collision when compared to other vehicle types,” Schuelke-Leech told the Star.

Ontario car accident lawyers are familiar with the dangers posed by large vehicles, both in downtown settings and on highways. The question is: what can be done to reduce truck accidents and the fatalities associated with them.

What is Being Done to Address Truck Accidents in Toronto?

In 2017, the Government of Ontario announced that drivers must undergo more than 100 hours of safety training before being eligible for a commercial truck license. Since then, the government has also introduced a strict no tolerance policy regarding drug- and alcohol-impaired truck-driving.

The City of Toronto has been less proactive. Its ambitious – and so-far ineffective – Vision Zero road safety strategy does not specifically address risks posed by large commercial vehicles. However, the city does have certain restrictions in place.

“Heavy vehicles are prohibited on certain streets and at certain times – on some streets only during overnight and on some streets at all times,” City of Toronto spokesperson Hakeem Muhammad told the Star.

“Commercial vehicles are large, heavy, full of sight line challenges,” he added. “Any time these vehicles are operated in areas used by vulnerable road users there is a risk to safety.”

However, these rules include exemptions: if there is no other way for a commercial vehicle to access a work site, they may use roads on which they would otherwise by prohibited.

City councilors in downtown wards have called for action to reduce accidents involving large commercial vehicles. Several have asked for a hiatus on development approvals in Midtown until more effective safety measures can be established. One downtown councilor also requested that smaller vehicles be used as garbage trucks, fire trucks, and ambulances, a strategy that has already been adopted in nearby Hamilton.

What to Do if You’ve Been in a Truck Accident

If you’ve been injured in an accident involving a large commercial vehicle, you may be entitled to compensation through a personal injury or insurance claim. Contact an experienced personal injury lawyer to discuss your options. Accidents involving commercial vehicles can be quite complex, not only because they result in devastating injuries but because questions around liability may arise.

For example, some commercial vehicle accidents are caused by faulty equipment or improperly secured payloads. Is the driver of the vehicle solely responsible in these cases? Is the company or organization that owns the vehicle liable? Should the manufacturer share the blame? Accidents involving city-owned vehicles can be similarly complex.

What is clear is that if you’ve been seriously injured in a truck accident through not fault of your own, you deserve compensation for the damages you have suffered. Serious personal injuries can lead to lengthy recoveries and long-term disabilities; a personal injury claim can help address financial challenges and ensure access to necessary medical and rehabilitative care.

For more information about pursuing a personal injury claim, contact Will Davidson LLP to schedule a free, no-obligation consultation. Our team of experienced Ontario car accident lawyers will review your case and provide advice as you consider your options.

Will Davidson LLP provides personal injury representation on a contingency basis, which means we do not charge legal fees until your claim has been successfully resolved. When your compensation is secured, our team will accept a percentage of your total compensation as payment.

Ontario is a Global Leader in Concussion Research and Prevention

Concussions are a serious problem in Ontario. Between 2008 and 2016, more than a million Ontarians were diagnosed with this common form of traumatic brain injury. Children and youth make up 40 per cent of all concussion patients in the province (totalling roughly 60,000 doctor visits per year), with children under five the most likely to be affected.

The ubiquity of these injuries has put brain injury lawyers on notice. Research suggests that even mild traumatic brain injuries can have major long-term health impacts. This is especially true when they occur in children and youths: kids with brain injuries do less well in school, are more likely to receive disability benefits as adults, and are more likely to be hospitalized with psychiatric illnesses, according to the Guardian.

Ontario is a World Leader in Concussion Research and Prevention

Over the past several years, Ontario has established itself as a national and even global leader in concussion research and prevention. In 2018, the provincial government passed Rowan’s Law, legislation named in memory high school rugby player Rowan Stringer who died after suffering multiple concussions in quick succession. The law lays out regulations for youth sports leagues and educational institutions, and provides guidelines to help coaches and teachers recognize and prevent head injuries.

More recently, the Ontario Neurotrauma Foundation published a new ‘living guideline’ to help reduce childhood and youth concussions. Aimed primarily at doctors but featuring sections for coaches and parents, the Living Guideline for Diagnosing and Managing Pediatric Concussion was created over three years by a group of more than 50 physicians, nurses, diagnosticians, and rehab specialists. The resource can be accessed online by users around the world.

“We want to harmonize the messages so it doesn’t matter where you are injured, people will be getting the same messages,” said Judy Gargaro, acquired brain injury program director at the Ontario Neurotrauma Foundation, to the Ottawa Citizen.

The foundation’s previous guideline, published in 2014, attracted users from the United States, United Kingdom, France, Australia, and New Zealand. What sets the new version apart is its dynamism – contributors will review new concussion research and make revisions and updates at least once a month. The recent surge in interest in concussions – from brain injury lawyers, the general population, and medical professionals alike – makes this a necessary feature.

“People are much more aware of concussion,” said Dr. Roger Zemek of the CHEO Research Institute to the Citizen. “My own work has shown that visits have increased four-fold in emergency rooms and family physicians offices over 10 years.”

As the healthcare industry has come to recognize the scope of the concussion problem, treatment best practices have evolved quickly. Until recently, for example, young people who suffered concussions were generally instructed to disconnect from screens, school, social activities, and sports until their symptoms cleared up. The new guideline recommends 24 to 48 hours of rest followed by a gradual reintroduction of physical activities.


“We need to consider that locking people away from their lives and all the things that make them smile may be causing some secondary harm,” said Dr. Nick Reed, an associate professor at the University of Toronto and one of the co-project leads, to the Globe and Mail.

How Can a Brain Injury Lawyer Help?

In a perfect world, Ontario’s aggressive approach to tackling concussions will reduce their prevalence and act as a blueprint for the rest of Canada. For now, though, concussions remain a major concern for brain injury lawyers, particularly as they relate to young people. If your child has suffered a brain injury in an accident, a brain injury lawyer may be able to help your family access compensation for the damages you have suffered. Not every accident causing a concussion will be grounds to launch a personal injury claim – reach out today to discuss your options.

Contact Will Davidson LLP

If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our team of experienced brain injury lawyers has represented seriously injured accident victims for decades. We will happily review the specifics of your case to determine whether a personal injury claim makes sense.

Will Davidson LLP provides legal services on a contingency basis, which means you will never be asked to pay fees until your claim has been successfully resolved. In other words, rather than charging hourly fees, our team will accept a percentage of your final settlement as payment – if you do not receive a settlement, we do not get paid.

Contingency fees, along with free consultations, are part of our commitment to access to justice for all Ontarians. During our decades in practice, we have come to understand that serious personal injuries present numerous complex challenges. A long-term recovery effort takes more than a physical toll; it may also affect your mental health, family dynamics, and personal finances. Contact us today to learn more.

Image credit: U.S. Air Force photo/Staff Sgt. Jonathon Fowler

Court Decision Puts Ontario Accident Victims in a Tough Spot

When the Government of Ontario enacted sweeping changes to the province’s auto insurance system in 2016, it did so with the aim of reducing premiums by streamlining and simplifying the claims and pushing through broad benefits cuts. According to most Ontario car accident lawyers, the changes to benefits and shifting injury definitions in Bill 15, the Fighting Fraud and Reducing Insurance Rates Act, have had a negative impact on injury victims while also failing to significantly reduce premiums.

Another stipulation of Bill 15 was that responsibility for resolving accident benefits disputes between injury victims and insurers moved from the Financial Services Commission of Ontario (FSCO), a regulatory agency of the Ministry of Finance, to the Licence Appeal Tribunal (LAT). The change was met with skepticism by Ontario car accident lawyers, who noted that the LAT had no history of managing conflicts between insurance companies and vulnerable insureds.

The shift from the FSCO to the LAT has not been catastrophic for accident victims, but a ruling by the Superior Court of Ontario, recently upheld by the provincial Court of Appeal, may spell trouble. The case, Stegenga v. Economical Mutual Insurance Company, involved an allegation of bad faith against the insurer. The ruling confirmed the LAT’s jurisdiction over most bad faith cases, which limits potential awards for plaintiffs.

The Case

Fifteen-year-old Morgan Stegenga was seriously injured in a car accident in 2011. In addition to broken ribs, she suffered a head injury that affected her cognitive ability and caused personality, behavioural, and psychological changes, according to Canadian Underwriter.

Morgan’s family applied for accident benefits in 2012. Their insurer, Economical Mutual Insurance Company, failed to advise them that Morgan’s injuries may qualify as catastrophically impairment. It also failed, according to Law Times, to ‘investigate Stegenga’s condition, have her medically assessed, assign a case manager for her care and rehabilitation or respond to their requests for authorization of a neurologic psychoeducational assessment.’ The Stegenga family opted to sue, alleging that the insurer had breached its duty of good faith.

The Decisions

Ontario’s Insurance Act states that the LAT is responsible for “the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.” Superior Court Justice James Ramsay decided that Stegenga’s claim fell into this category and dismissed it.

In its appeal, the Stegenga family argued that the insurer’s duty to act in good faith was separate from its duty to provide benefits and could thus be addressed in court. Court of Appeal Justice Benjamin Zarnett disagreed and upheld the Superior Court’s decision. He cited lawmakers’ intent in his explanation.

“The legislature made a choice as to what disputes would be within the exclusive jurisdiction of the LAT, and what remedial powers the LAT would have. That was a policy choice it was entitled to make,” Justice Zarnett wrote. “The Insurance Act and its regulations form a comprehensive scheme for the regulation of insurers and insurance. The legislature must be taken to have armed the LAT with the remedial powers it considered appropriate to deal with improper insurer behaviour, knowing those remedial powers were different from the court’s.”

The Implications

The decision of the Ontario Court of Appeal in Stegenga v. Economical Mutual Insurance Company will prevent accident victims from seeking damages outside the LAT from insurers acting in bad faith.

“This was an attempt by the personal injury plaintiff’s lawyers to try to preserve that bad faith cause of action and pursue it in court,” one lawyer told Law Times. “This just firmly shuts the door on the potential to recover for bad faith in a standalone action.”

It also limits the amount of compensation available to plaintiffs. In cases of bad faith, the LAT can make a special award of up to 50 per cent of the benefits that the injury is owed and can order the insurer to pay a higher interest rate, per Canadian Underwriter. But this is “much lower than the potential risk for a bad faith claim,” the lawyer who spoke to Law Times said.

Will the reduced maximum penalty for bad faith actions embolden insurance companies to act unethically? That is certainly a concern for many Ontario car accident lawyers. However, it is still far too early to know how the Stegenga v. Economical decision will affect insurer behaviour moving forward.

Contact an Experienced Personal Injury Lawyer

If you have been injured in a motor vehicle accident and are considering claiming accident benefits, contact Will Davidson LLP today to learn how our experienced team of Ontario car accident lawyers can help. We will be happy to schedule a free, no-obligation consultation to review your case and offer advice on how best to proceed. Contact us today for more information.

Dashcam Footage in Personal Injury Claims

Every year, hundreds of people are killed and tens of thousands are injured in car accidents in Canada. The impact of these accidents extends far beyond the people who are directly involved: families, friends, coworkers, and more are also affected. This far-reaching impact is why it’s so important for accident victims to work with an experienced car accident lawyer. If, for example, the person injured in the accident is the sole breadwinner for a family of four and is no longer able to work full-time, a car accident lawyer can help negotiate compensation that addresses the needs of the entire family.

But securing compensation isn’t as simple as submitting a list of expenses to an insurance company and waiting for a check to be delivered. Your car accident lawyer must establish who is liable for the accident, whether the accident was the cause of your injuries, and how much compensation is owed for those injuries.

Dashboard Cameras

Recently, dashboard cameras have become popular among the Canadian general public, with support from insurance providers, law enforcement, and personal injury lawyers. Often, they are adopted by people who have been involved in, or know someone who has been involved in, a traffic accident or insurance dispute.

Dashboard cameras are considered a reliable third-party witness in disputes over motor vehicle accidents, meaning they can help your car accident lawyer establish liability in a crash and, in some cases, prove causation of injuries. There are no privacy issues associated with dashcam footage, because roads are considered public places in Canada. As such, the footage is generally admissible in court. High-end cameras also record GPS positioning and speed, which can support liability claims.

Insurance providers favour dashboard cameras because they simplify the process of proving liability and reduce insurance fraud. In fact, some providers have considered offering discounts to drivers who use dashcams. Still, some members of both the insurance and personal injury fields believe the technology has flaws, not least of which is the risk of distraction.

“Dashcams may, like GPS devices, be a distraction if they’re not properly used,” said Pete Karageorgos, Insurance Bureau of Canada director of consumer and industry relations for Ontario, told the Canadian Press. “On the other side of the coin, if someone is involved in a crash or they witness something, the good thing about having dashcam video is it really is an impartial and unbiased witness to the events.”

It is also worth noting that although dashcam footage is admissible in general, it is unlikely to be accepted if it has been edited, cut, or manipulated in any way. From the moment of your accident, you should be careful to preserve it intact.

Even in cases where a car accident lawyer is not involved – hit and runs involving another vehicle, theft, vandalism, etc. – dashcam footage can help law enforcement identify suspects and make arrests.

How a Car Accident Lawyer Can Help

With the help of your dashcam footage, a car accident lawyer can identify the parties who are liable for your injury and pursue compensation to cover the cost of your recovery. As mentioned above, car accident injuries can be extremely serious. Recovery can involve months of medical care, rehabilitation, and therapy, as well as extended and perhaps permanent attendant care. In some cases, home renovations and mobility equipment may also be necessary.

These costs can add up quickly. Accident benefits obtained through your insurance provider can address some expenses, but it may be necessary to pursue additional compensation through a civil claim against the individuals who are responsible for your injuries. Dashcam footage, in addition to evidence collected at the scene of the accident, witness testimonies, police and medical reports and more, is essential to proving liability in your personal injury claim. An experienced car accident lawyer can review this evidence and offer advice on how to proceed.

Contact Will Davidson LLP

If you or a member of your family has been injured in a serious accident, contact Will Davidson LLP to schedule a free, no-obligation consultation with an experienced car accident lawyer. Our team will assess the viability of your claim and provide guidance as you consider your legal options.

Will Davidson LLP has represented seriously injured Ontarians for several decades. During that time, we have come to understand the serious mental, physical, emotional, and financial challenges that accompany a traumatic injury. Although we know that no amount of money can make up for the pain and suffering you have experienced, we also understand that financial compensation can relieve some of the pressures associated with your recovery. For that reason, in addition to free consultations, we are proud to offer our services on a contingency basis, which means you will not be asked to pay legal fees until your claim has been successfully settled. If we cannot secure compensation, we will not accept payment.

Study Reveals Best and Worst Driving Cities in Ontario

InsuranceHotline.com, a website that compares auto insurance quotes, recently named the ten best and worst driving cities in Ontario based on how likely residents are to have tickets, collisions, or a combination of the two on their records. The study, which looked at quotes from 2018 and 2019, showed that drivers in high-density urban neighbourhoods are less likely to have infractions than their more rural counterparts. The results came as a surprise to insurance professionals and car accident lawyers.

Oakville is One of the Best Driving Cities in Ontario

Province-wide, 3.5 per cent of drivers admitted to having at least one at-fault crash and one ticket on their record; 6.9 per cent admitted to having at least one ticket and 8.9 per cent admitted to having been in a collision in the last ten years.

Drivers in Orangeville, Ontario, located roughly an hour northwest of Toronto, were the most likely to report at least one crash and one ticket, at 9.4 per cent. Fifteen per cent of Caledon drivers reported having at least one ticket, and 13.6 per cent of Woodstock drivers admitted being involved in a crash in the last decade.

The report assigned letter grades for each municipality based on the increased or decreased likelihood of drivers reporting an infraction. The communities of Orangeville, Bradford, Woodstock, Sault Ste. Marie, Brantford, and Orillia all received ‘D’s, while Thunder Bay, St. Thomas, Caledon, and Barrie rounded out the bottom ten with ‘C’s.

The top ten driving cities in Ontario – North York, Toronto, East York, Etobicoke, Mississauga, Brampton, Scarborough, York, Thornhill, and Oakville – are all in the GTA, to the surprise of the study’s authors.

“We were as surprised as pretty much everyone when we saw these results and really looked at the data and saw how this was shaking out,” InsuranceHotline.com senior manager of partnerships Anne Marie Thomas told Canadian Underwriter. For car accident lawyers, the finding bolsters concerns that downtown clients don’t receive good value for their insurance dollars.

Insurance Rates Don’t Reflect Study Findings

Drivers in cities like Brampton, Mississauga, and Toronto pay stubbornly high auto insurance rates which, as Ontario car accident lawyers know, have become more unreasonable given recent accident benefits cuts by the province. BramptonGuardian.com reports that Brampton residents pay an average $2,494 per year in insurance premiums, more than $1,000 above the provincial average. Mississaugans pay an average of $2,086 per year.

Auto insurance premiums are based on more than collision and infraction rates. Urban drivers may pay more due to the sheer volume of accidents downtown, or perhaps because collisions in city cores tend to be more serious than accidents on rural roads. Lower per capita collision rates also don’t necessarily mean that city dwellers drive more safely; they may simply drive less. After all, it’s more difficult for people in rural areas to get from point A to point B by transit, bicycle, or foot. Average population age could also play a role.

“It’s everything factored in together,” Thomas said in her interview with Canadian Underwriter. “It’s where you live, how you drive, how long you’ve been licenced – it’s the whole package. Saying that this one city is worse or this one city is better, for everyone, that may not necessarily be the case.”

“Maybe [the lower average premium in rural areas] speaks to the accidents not being at-fault accidents,” Thomas continued. “Maybe rates are more expensive in these cities … because of the cost to settle the claim versus somewhere in Orangeville. Maybe those drivers have had an accident, but it’s a single-vehicle accident that had a couple of thousand dollars in damage, whereas in a more congested areas, maybe the accidents are more significant and more expensive to settle.”

Flipping the Script

Regardless of insurance prices, the InsuranceHotline.com study challenges assumptions about rural vs. urban driving. It may feel safer to coast along a provincial highway than navigate multiple lanes of impatient traffic on the Don Valley Parkway, but the stats suggest rural drivers are ticketed more often and involved in more accidents than their urban peers.

Contact an Ontario Car Accident Lawyer

If you’ve been involved in a traffic accident anywhere in Ontario, contact Will Davidson LLP to learn how our experienced team of car accident lawyers can help. Will Davidson LLP has been representing injured Ontarians for decades. We understand the serious physical, mental, emotional, and financial challenges that accompany serious car accident injuries, and are committed to helping our clients secure compensation for the damages they have incurred.

Contact us today to arrange a free, no-obligation consultation where we will discuss the viability of your claim and explain your legal options. Will Davidson LLP is proud to work on a strict contingency basis, meaning you will not be asked to pay legal fees until your case has been successfully absolved. Reach out now to learn more.

Medical Malpractice Lawyers Face Challenges in Delayed Diagnosis Cases

In Ontario, some medical malpractice lawyers believe two words – “but for” – are making it difficult for injured patients to access compensation for negligence causing delayed diagnosis. Last month, Law Times reported on White v. St. Joseph’s Hospital (Hamilton) a case in which the plaintiff went into septic shock due to an undiagnosed bowel leak but was unable to recover compensation for his injuries.

The “but for” test is a test in Canadian tort law that links the damages the plaintiff has incurred with the defendant’s actions. In Clements v. Clements (2012), the Supreme Court of Canada summed up the test in these words: “the test for showing causation is the but for test. The plaintiff must show on a balance of probabilities that but for the defendant’s negligent act, the injury would not have occurred.”

Medical malpractice lawyers believe this wording confuses juries and makes it extremely difficult to prove liability in cases where negligence has clearly occurred. According to Law Times, plaintiffs have lost four out of the last five delayed diagnosis cases heard in Ontario’s courts.

“’But for’ is meant to encapsulate an event that causes or contributes to the harm,” one lawyer affiliated with the White v. St. Joseph’s case told Law Times. “But juries get confused when they hear that phrase, especially when there’s more than one contributing cause and they hear only the ‘but for’ phrase.”

In White v. St. Joseph’s, the plaintiff alleged that nurses and the hospital should have noticed the bowel leak before he went into septic shock. As a result of the delayed diagnosis, the plaintiff spent an extended time in hospital, including a stay in the intensive care unit, and underwent remedial surgery. However, an expert witness at the trial testified that “most of Mr. White’s outcome was unavoidable,” and the trial judge determined that the hospital had met its standard of care.

The Court of Appeal for Ontario upheld the trial judge’s decision using the ‘but for’ test. “In other words,” the decision read, “’but for’ the alleged delay would the plaintiff have suffered the unfavourable outcome?”

The plaintiff lawyer who spoke with Law Times believes the case leaves plenty of room for confusion and prejudice in subsequent jury trials.

“Nobody says ‘But for my car’s flat tire, I’m late,’ because that’s inconsistent with plain language,” he explained. “They say, ‘I’m late because I had a flat tire,’ and courts should approach causation in the same way.”

While medical malpractice cases involving delayed diagnosis are challenging, Will Davidson LLP’s team of medical malpractice lawyer has successfully secured compensation for its clients at all levels of court. If you’ve been injured in a medical setting, reach out today to learn how we can help.

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