ANSWERS ABOUT PERSONAL INJURY LAW IN ONTARIO

  1. Why do I need a personal injury lawyer?
  2. Why is it important to have a lawyer who specializes in personal injury law?
  3. My friend or loved one caused the accident. If I sue, will my loved one or friend be held responsible to pay?
  4. How much will the process cost?
  5. Why will Feifel Broadbent Gualazzi not sue for medical malpractice?
  6. How long will it take for my case to settle?
  7. Will I have to go to court?
  8. If I am unable to work, how will I manage financially?
  9. I am overwhelmed and stressed out…how will I handle all of this?
  10. How soon after I am injured should I find a lawyer?
  11. If I choose to hire a lawyer, how do I deal with my insurance company?
  12. If I am at fault for the accident, am I entitled to compensation?
  13. A loved one has died and I do not feel right about suing. Should I?
  14. There is a $30,000 deductible. What does this mean?
  15. I am on Ontario Works or ODSP (Ontario Disability Support Program). Can I still sue?
  16. I have been hit by an uninsured or unidentified driver. Can I still sue?
  17. I am a pedestrian, I have no insurance and have been struck by someone who was driving a motor vehicle who did not have insurance or who fled the scene. Can I sue?
  18. I have been charged and am at fault for the accident. Am I still entitled to benefits?
  19. I was at work when the accident happened and I am currently receiving worker compensation (WSIB benefits). Can I still sue?
  20. The accident happened in Michigan or in another province. Can I sue?
  21. I have been involved in a single vehicle accident with a moose or other animal. Can I sue?
  22. Threshold, permanent serious impairment…what does it mean?
  23. Should I go back to work?
  24. How long do I have to sue before it is too late, the limitation period
 

1. Why do I need a personal injury lawyer?

The legislation concerning automobile accidents is extremely complex and contains numerous limitation periods. An insurance adjuster or insurance claims representative at an insurance company WORKS FOR THE INSURANCE COMPANY. Although there are some claims examiners and adjusters who are fair, it has been our experience with numerous claims examiners and adjusters that most of the insurance representatives work primarily, if not entirely, for the insurance company and not the injured victim. Their goal, simply put, is to close your file and to pay the injured person as little as possible. Our goal is to achieve the best possible resolution for our client and to inform the client of all benefits that are available. Often the insurance company representative fails to inform the injured person of all of the various benefits to which the injured person is entitled. We do not believe that the injured person is on a level playing field or on equal footing if that person is dealing with an insurance company who has a representative who deals exclusively with insurance law and clearly is acting and is being paid by the insurance company.

2. Why is it important to have a lawyer who specializes in personal injury law?

Personal injury law, especially when dealing with automobiles, motorcycles, snowmobiles and all-terrain vehicle accidents has become extremely complex in Ontario since 1990. Since then, there have been four different so-called no-fault legislations with each system being as different as day and night. Currently, there will be further significant amendments in 2010, which will greatly impact all forms of motor vehicle legislation in Ontario. Lawyers at Feifel Broadbent Gualazzi continually attend numerous continuing education seminars in Toronto put on by the Ontario Trial Lawyers’ Association, Advocacy Society, The Canadian Institute, and Insight to keep abreast of the ever-changing legislation. Our lawyers have given seminars to various health care organizations, which include the Brain Injury Association, Chiropractic Association and the Physiotherapy Association. We feel that the time of being a “Jack of all trades” in the legal field, especially when dealing with personal injury law, is a thing of the past. As local lawyers, we know the resources available in the community to assist our clients in their recovery over and above achieving the best possible result in successfully having the insurance company pay fair compensation to our clients. We at Feifel Broadbent Gualazzi specialize in personal injury law ONLY, representing injured victims ONLY and NOT insurance companies. Our loyalties and dedication serve only the injured victim.

3. My friend or loved one caused the accident. If I sue, will my loved one or friend be held responsible to pay?

This question is one that has been asked hundreds of times if not thousands. The answer to this question requires a lengthy explanation. It would make more sense if: when an innocent individual is injured in an accident, the individual would sue the insurance company of the person who was at fault.


Unfortunately, the insurance industry has been extremely successful in maintaining the present system, which is basically a façade that one individual is suing another individual when in most cases that is not the case. If the at-fault driver and owner of the vehicle have an insurance company, then it is that insurance company that will choose the lawyer who will defend the claim and will decide if they are going to settle the claim and if so, how much. The individual who was at fault and the owner must be named in the lawsuit although for practical purposes, as set out above they will have nothing to say as to who will be the lawyer who will defend the claim or, if the case settles, how much will be paid.


It should be obvious to all that since it is the insurance company that retains the defence lawyer without consulting the driver or owner of the vehicle that was at fault – and, as well, that it will be the insurance company that will decide how much it is prepared to pay without going to trial without consulting the owner or driver of the vehicle who was at fault – that really the lawsuit is a claim by the injured person against an insurance company and not the at-fault driver or owner.


As long as an injured person restricts their claim to the limits of the policy, which normally is $1,000,000, then there is absolutely no personal exposure to the at-fault driver or owner of the vehicle. Most often, the injured victim through their lawyer will agree to limit the claim to the policy limits in an exchange for an admission of liability on the part of the insurance company. If this is done, then there is absolutely no ramification or monetary consequence to the at-fault driver and owner. Whether or not eventually the injured person gets one penny, one thousand dollars, one hundred thousand dollars, or one million dollars is irrelevant to the at-fault driver and owner.


If the insurance premiums of the at-fault driver or owner have gone up, those premiums would have gone up on the day of the accident by virtue of the accident and the fact that the driver was at fault. Whether or not eventually the innocent injured person has a recovery should have no effect on the premiums of the at-fault driver and owner. As well, later, when it comes time to negotiate a resolution, the resolution is done by the insurance company representative and the injured person along with their representative without consultation of the at-fault driver and owner.


We at Feifel Broadbent Gualazzi have commenced hundreds of actions on behalf of our innocent accident victims naming as defendants, best friends, at times parents naming their children as defendants, children naming their parents as defendants, our injured clients naming their brothers or sisters as defendants, etc. Ninety-nine percent of our clients, along with the defendants, realize that the injured person is really not suing their best friend or loved ones, but simply had to name their best friend or loved ones as defendants in a law suit when in fact it was the insurance company that should have been named all along but which could not be done for procedural reasons.


We have encountered numerous situations where insurance company representatives will attempt to persuade innocent accident victims and play on their guilt and conscience about how they could ever consider suing their best friend or family member. We feel that this is an outrageous tactic on behalf of representatives of the insurance industry when these representatives know that the claim is not being advanced against the innocent accident victim’s best friend or loved ones, but it is rather a claim against an insurance company. We have always informed our clients to speak with their best friend or loved one who had to be named in the lawsuit, informing our clients of the above, offering to meet the individual we had to name along with their legal representative to lay to rest any fears that the at-fault driver or owner may have so that those persons could feel assured that they would not lose their home, their assets, and be in no way financially responsible for any settlement or monies that would be awarded compensation for the injuries suffered by the injured person.

4. How much will the process cost?

We do not require retainers. If our clients recover or for whatever reason we do not proceed to trial, we will never bill our client even if we have worked on your case for many years. We only charge if we are successful in achieving a settlement or after a successful verdict. We want our clients to concentrate on their recovery, not having to worry about how are they going to pay their lawyer.

5. Why will Feifel Broadbent Gualazzi not sue for medical malpractice?

Unlike many out-of-town law firms, we do NOT conduct medical malpractice lawsuits or sue any health care provider for negligence. We work with these professionals every day and not one day with them and the next day against them. We feel victims with automobile and other injuries are better served if we do not conduct medical malpractice lawsuits. We will not play both sides of the fence.

6. How long will it take for my case to settle?

We have had extensive personal injury experience, having resolved thousands of personal injury claims and having achieved tens of millions of dollars of compensation for our clients. We will not, however, compromise our client’s case with an early settlement. The length of time it takes to settle varies greatly depending on the nature of the injury, the type of accident, the insurance company, the adjuster and defence lawyer acting for the opposing side, the client’s recovery and possible future treatments or surgery, the court’s schedule and numerous other factors. A case can be settled within one year but can take as long as seven to eight years. Of course, if the insurance company is being unreasonable, then the case cannot settle but must proceed to trial.

7. Will I have to go to court?

Our focus is on early resolution, mediation and settlement; however, our trial lawyers have conducted numerous jury trials achieving landmark and precedent-setting decisions and have the expertise to aggressively fight for you at a trial if necessary. Most personal injury cases settle without actually proceeding to trial. Very often it may be necessary to proceed through initial court proceedings, but not actually have a trial. There are numerous opportunities to resolve a claim outside of proceeding to trial including private mediations through an alternative dispute resolution or through a pre-trial hearing, which is conducted out of court with the input of a pre-trial judge giving his or her recommendations of resolution. If, however, the insurance company is being unreasonable and is not prepared to pay fair compensation to the injured person, then the matter would have to go to court.

8. If I am unable to work, how will I manage financially?

There are various options available if an injured person is unable to work. There may be a private disability plan through the terms of the individual’s employment. An individual as well may be entitled to an income replacement benefit from the insurance company. The individual may be entitled to other benefits such as Canada Pension Plan disability benefits.

9. I am overwhelmed and stressed out…how will I handle all of this?

Our lawyers and support team are local residents working for injured victims in the District of Algoma. We care and we listen. Our support team at Feifel Broadbent Gualazzi have numerous contacts within the community to assist our clients with seeking counselling and psychological help at times when our clients are simply emotionally unable to handle what undoubtedly is one of the most traumatic experiences of their lives. On staff, we have a fully qualified and compassionate registered nurse and other legal assistants who will help you and direct you to the resources in our community that can help you to cope and rebuild your life. We offer a personalized approach and you are known by name rather than by a claim number.

10. How soon after I am injured should I find a lawyer?

We feel very strongly that an injured victim should always immediately contact a lawyer after an accident. We greatly prefer to meet the client before our client has met with their insurance adjuster or claims examiner of our client’s own insurance company. We strongly urge our clients never to give a statement to the representative of the insurance company representing the at-fault driver. As well, we prefer to be present when our client is giving a statement to our client’s own insurance company. There is absolutely no cost to the client in immediately contacting our firm, and if our client eventually recovers, our client is not billed one penny for any time or work that has gone into that person’s claim. There are numerous limitation periods which apply, which could greatly jeopardize, compromise and sometimes totally eliminate a person’s right to benefits unless that individual completes the appropriate documentation as soon as possible. As well, if an insurance company denies a benefit, then the individual is entitled to dispute the denial but must do so within a very short period of time.

11. If I choose to hire a lawyer, how do I deal with my insurance company?

The answer to this question depends on the relationship that you have had with the insurance company. If the claims examiner and insurance company are being fair and reasonable, then we may feel that it is in your best interest to continue to deal directly with the representative of that company. There are times when our clients deal directly with their own insurance company and we are dealing simply with the representatives of the at-fault insurance company. More often than not, there comes a time when our client who has been dealing with his or her own insurance company is met with a denial of a benefit and the relationship which initially may have been friendly turns extremely adversarial. Even though some insurance companies and their representatives may be fairer than others, ultimately all insurance adjusters and claims examiners are working for the insurance company. We do not believe the claims examiner can really serve two masters; therefore, if the claims examiner is working for the insurance company, we strongly believe that the injured person needs their own independent representation through a personal injury lawyer.

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12. If I am at fault for the accident, am I entitled to compensation?

Absolutely! An individual can be at fault for an accident and can be involved in either a single-vehicle accident or having severely injured another individual, yet be entitled to substantial compensation from their own insurance company. We have successfully negotiated resolution of claims to some of our clients in the millions of dollars for individuals who have been entirely at fault for an accident. Even though you are at fault for the accident, you are still entitled to claim accident benefits. We are under a no-fault system, which means that even though an individual may be at fault for an accident, that individual could still be entitled to a lifetime of benefits which could include loss of income benefits of up to $400.00 per week for life (or greater with appropriate coverage), attendant care benefits of up to $6,000 per month, medical and rehabilitation benefits of up to $1,000,000, housekeeping benefits of up to $100 per week for life, caregiver benefits, non-earner benefits, home renovations, assistive devices and numerous other benefits that can potentially be available to you even if you are at fault for the accident.

13. A loved one has died and I do not feel right about suing. Should I?

We, as a society, all pay insurance premiums to various insurance companies that derive billions of dollars through these premiums and through investments generated by these premiums. We do so because we do not know which very small portion of our society will be involved in accidents who could suffer catastrophic injuries or injuries that could result in death. Premiums that we pay are based in part of projected injuries to individuals in Ontario, which include fatalities. Our law has devised a system that gives extremely modest compensation to the surviving spouse, children, parents, brothers, sisters and, in some cases, grandchildren. Compensation is minimal, and obviously any compensation can never replace a life and is a totally inadequate method of providing recourse to the survivors of a deceased person. Unfortunately, the legal system in such cases can only provide some form of monetary compensation which is extremely modest. As set out above, consumers in Ontario pay automobile, snowmobile, motorcycle, all-terrain vehicle and property insurance premiums based upon projections of fatalities and, therefore, the surviving loved ones are entitled in law to a small measure of monetary compensation. Some individuals, having made a recovery, will donate their recovery to various charitable organizations or to other surviving members of the family that may require financial assistance as a result of the wrongful death of a loved one. There is nothing immoral or unethical in receiving compensation which Ontario law provides for the survivors of a loved one; indeed, the compensation being received has been paid through premiums by all policyholders in the province.

14. There is a $30,000 deductible. What does this mean?

As of October 1, 2003, the no-fault legislation in Ontario was amended to provide that if an injured person suffered a permanent serious impairment that when the case was settled or a jury made an award in an auto accident claim, a judge would have no choice and the settlement would have to be reduced by $30,000 from the award of the injured person. For instance, if in a serious whiplash injury, a jury awards $40,000 or the case is settled for $40,000, the injured victim will only receive $10,000 after the $30,000 deductible has been deducted for a lifetime of pain and partial disability. The other $30,000 benefits and remains with the insurance company. If an individual has two auto accidents under the current law, there are two deductibles and $60,000 is deducted from the award made by the jury to the benefit of the insurance company. The $30,000 deductible represents what we understand to be the highest deductible on earth. What is even more outrageous is the fact that currently a plaintiff’s lawyer appears to be unable to tell the jury of the $30,000 deductible. Accordingly, if a jury makes an award of $25,000 for pain and suffering, after the $30,000 is deducted, the injured person is left with nothing. If the injured person suffered an extremely serious injury and is awarded $100,000 or more, then the $30,000 deductible will not apply, which is referred to as the “vanishing deductible.”

15. I am on Ontario Works or ODSP (Ontario Disability Support Program). Can I still sue?

Yes. If an individual is in receipt of Ontario Works, there is a $25,000 exemption for pain and suffering. If the individual is in receipt of Ontario Disability through ODSP, there is a $100,000 exemption for pain and suffering. Any monies received by an individual for a loss of income must of course be repaid to Ontario Works or ODSP.

16. I have been hit by an uninsured or unidentified driver. Can I still sue?

Yes. If you have insurance of your own or you are dependent upon someone who has an automobile, snowmobile, motorcycle, or other motor vehicle insurance, then you can sue your own insurance company under a family endorsement, which for practical purposes means that your own insurance company is actually insuring the person who was at fault and did not have insurance or who was unidentified and fled the scene. If you do not have any insurance, then you can still sue the Motor Vehicle Accident Claims Fund, which has a $200,000 pool to compensate injured victims in the event that the injured victim does not have insurance and is struck by someone who does not have insurance or by someone who is unidentified and leaves the scene of the accident.

17. I am a pedestrian, I have no insurance and have been struck by a motor vehicle driver who did not have insurance or who fled the scene. Can I sue?

Absolutely. Once again, if you are a pedestrian or someone who does not have insurance, you can claim accident benefits for medical and rehabilitation, income replacement benefits, caregiver benefits, non-earner benefits, etc. from the insurance company of the person who hit you if you know the identity of that insurance company. If the person who struck you did not have insurance or left the scene of the accident, then once again you can apply for accident benefits through the Motor Vehicle Accident Claims Fund and, as well, sue the Motor Vehicle Accident Claims Fund for pain and suffering and all of your other losses.

18. I have been charged and am at fault for the accident. Am I still entitled to benefits?

Even though you have been charged and are at fault for the accident, you are still entitled to claim accident benefits which include loss of wages (income replacement benefits), housekeeping benefits, caregiver benefits, non-earner benefits, attendant care and case manager expenses, ambulance fees, expenses surrounding a hospital stay (parking fees, meals if you are out of town, etc.), expenses of visiting family members when they are in hospital out of town, medication (not already covered by any private insurance plan), assistive devices (slings, crutches, braces, etc.), clothing, hearing aids, etc. damaged in the motor vehicle accident, and childcare expenses.

19. I was at work when the accident happened and I am currently receiving worker compensation (WSIB benefits). Can I still sue?

If you were injured during the course of your employment and the individual who struck you was not in the course of their employment, then you have a right to elect to either sue for personal injuries or to claim WSIB benefits. In the event that you have already elected WSIB benefits, it is possible to re-elect so that you can sue, but this will mean that you will have to repay WSIB once your civil case is settled or you obtain a verdict. Similarly, in some situations, it is still possible to sue the at-fault driver even though the at-fault driver was also in the course of that person’s employment depending on the nature of their employment. In most situations, an individual will receive far greater compensation by electing to sue rather than proceeding through WSIB.

20. The accident happened in Michigan or in another province. Can I sue?

Absolutely. Feifel Broadbent Gualazzi has commenced numerous claims in Sault Ste. Marie for accidents that have occurred in Michigan, Ohio, Florida, Alberta, New Brunswick and elsewhere. If the injured victim resides in the District of Algoma, then it is possible to sue in Algoma for injuries that have occurred in any state in the United States or any province in Canada, provided that the law where the accident occurred is applied. There may be advantages of pursuing a claim in Ontario for injuries that have occurred in another province or in the United States rather than commencing proceedings elsewhere. There may also be advantages of claiming no-fault benefits under a different jurisdiction rather than electing to choose no-fault benefits under Ontario law. Our experts will help you choose.

21. I have been involved in a single-vehicle accident with a moose or other animal. Can I sue?

If it is a single-vehicle accident and the driver has been injured as a result of an accident with an animal on the road, then that driver is still entitled to potentially significant no-fault benefits through the driver’s own insurance company. As well, any passengers in that vehicle may be entitled to a lawsuit against the driver and owner of the vehicle even though it is a single-vehicle collision with a moose or other animal if it can be shown that there was some negligence on the part of the driver, which could include but is not limited to travelling too fast for the conditions, being tired, having faulty brakes or tires, or being inattentive. Each case depends upon its own facts, and there have been many situations whereby the driver of a motor vehicle that was involved in a single-vehicle accident with an animal has been found partially at fault for the accident resulting in full compensation for the passengers of that vehicle.

22. Threshold, permanent serious impairment…what does it mean?

There have been numerous cases and interpretations involving what is commonly referred to as the threshold in order to receive compensation for pain and suffering or future health care in an automobile accident in Ontario.


There have been cases where individuals have sustained back injuries requiring surgery but were able to successfully return to their employment. These had been found not to meet the test of having sustained a permanent serious impairment because the individual had what was referred to as a tolerable injury, which resulted in them not meeting threshold.


It is possible, however, to meet threshold with injuries that appear to be far less serious such as headaches or whiplash injuries even though at first blush, such an injury may appear to be far less serious than back surgery. If the headache or whiplash injury is substantially affecting the individual’s ability to work or carry on their activities of normal life, then it is still possible to successfully sue for damages for pain and suffering.

23. Should I go back to work?

Absolutely. As soon as you and your primary health care provider – NOT the doctor or representative paid by the insurance company – feel that you are ready to attempt to return to work, you should do so.

24. How long do I have to sue before it is too late, the limitation period?

The normal limitation period for most accidents is 2 years from the date of the accident. Certain types of accidents, such as suing a municipality (city or town) for negligent maintenance of a sidewalk, can be as short as having to give the municipality written notice of the claim within 7 days. In some situations, it is possible to sue long after the limitation period has expired based on what is referred to as the discoverability rule. We have successfully sued many years after the limitation period has expired based on the discoverability rule. For instance, in an auto accident claim, the discoverability rule essentially states that the limitation period does not start until the injured person knows or ought to have known that the person had sustained a permanent serious impairment. It may be 3, 4, 5 or more years after an accident has occurred that an MRI or other test is conducted and the injured person is informed by their doctor that the person will have a lifetime problem. The limitation period could start when the doctor informs the person of the results of the test and that the injured person will be saddled with a lifetime of pain and partial disability.


If the injured person is under a mental disability or if the injured person is a child, different limitation periods apply. In the case of a child, normally the limitation period starts when the child attains the age of 18. Missing a limitation period is, however, normally fatal to your claim. We always recommend that an injured person contact one of our personal injury lawyers as soon as possible. There is no cost to the client. One day of delay could mean the difference of having a claim or not having a claim.

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