Ontario Lawsuits – What You Need to Know
If you haven't yet read our article, "What is a Personal Injury Lawyer?", it will give you a broader understanding of Ontario Personal Injury law. This is the second article in the series and addresses additional information including steps in a lawsuit, trials vs settlement, and accident benefits.
Negligence lawsuits are complex. There are a lot of moving parts and proving the extent of your damages can take several years and a team of experts. Also, anything that happens leading up to the accident and from the moment the ambulance arrives can be used to support or potentially damage your case. Because of this, we recommend that you consult with a reputable personal injury lawyer as soon as your immediate health concerns are addressed.
The at-fault driver (or municipality etc.) is not under the same pressure. In Ontario, automobile insurance coverage is mandatory. Usually, the driver and/or the owner of the vehicle will be insured. Almost always, at least one liability insurance policy will be available to respond to your claim for damages, including your own as a last resort. You should already have coverage under your own policy called the Family Protection Endorsement or OPCF-44R (please check your policy and add this inexpensive additional coverage if you have not already purchased it). If the other parties are uninsured or underinsured to cover your damages, your own insurer will be required to pay the damages to the limits of your policy.
As well, the government maintains the Motor Vehicle Accident Claims Fund to respond to lawsuits when there is no other available insurance,
Typically the at-fault driver and other parties will be insured. However, when you sue them, it is actually their insurance company that defends the lawsuit and makes all the important decisions including whether to proceed to trial or settle the claim. When settlement discussions take place, the insurer decides if, and for how much, it will settle.
Practically, the fact that an insurance company is your real opponent means that you will always have a long and frustrating fight on your hands. They have millions of dollars and limitless resources, including time, on their side. Many plaintiffs are financially vulnerable after an accident, unable to work, and in need of ongoing care and assistance. Insurers know that the longer they drag out the lawsuit, the harder it is for most injury victims to survive without receiving some form of compensation. Insurers use this strategy so that you will be forced to accept an unfair settlement.
Having an exceptional injury law firm on your side can help to offset the defendant’s advantages. Your legal team can keep the lawsuit moving forward, coordinate your recovery, acquire medical and other evidence, and help you secure interim financial assistance if necessary. The best personal injury lawyers advocate from a position of knowledge and experience, refusing to be bullied by the insurer’s intimidation tactics. They make sure that your settlement is fair and reasonable by proving the nature and extent of your losses.
Steps in a Personal Injury Lawsuit
If you have been injured because of someone else’s negligence, in a car accident or otherwise, you usually have 2 years from the date of the accident to start a lawsuit. There are exceptions to this general limitation period [LINK to limitations piece?}, so it is always prudent to discuss your potential claim as soon as possible.
NOTE: you have 10 days to put a municipality on notice of a potential claim. Sometimes, the limitation is extended, there was a reasonable excuse and no prejudice to the defense resulted.
On or before the two-year anniversary of the accident, you must file a Statement of Claim at the Superior Court of Justice. In an emergency, you can file a Notice of Action by this date and file the Statement of Claim within 30 days. From this time, you have 5 years to proceed to trial.
A copy of the Claim must be served on every defendant within 6 months of issuance.
The defendant must file a Statement of Defence, generally within 20 days of service. They can file a Notice of Intent to Defend if they need additional time.
Once the Statement of Defence is served on you, you must prepare an Affidavit of Documents that contains all the medical and other evidence concerning your case. There is a continuing obligation to provide documentary evidence as the lawsuit proceeds. It is always to your advantage to provide as complete a picture as possible so that the defendant’s insurer can assess your potential damages and set their reserves appropriately. You will receive the defendant’s Affidavit of Documents as well.
You and the defendant are both required to attend Examinations for Discovery, which are interviews under oath that become part of the evidence in your lawsuit. These should be scheduled as soon as is practicable, although the defendant will usually try to delay them. Discoveries are an opportunity for you to explain how the accident has impacted your life. They also give the insurer a chance to evaluate your credibility and how you might perform as a trial witness on your own behalf.
At Discoveries, you and the defendant will both give undertakings to provide additional information identified during the examinations. Once all undertakings have been provided, you can set the lawsuit down for trial. This means that you are demonstrating your readiness to go to court.
If any issues or conflicts between the parties arise, you might have to bring one or more Motions before the court to argue for your position. These can be uncontested and straightforward, be several days long, or anything in between.
In some jurisdictions (the GTA, Ottawa and Windsor), you will be required to attend a mandatory mediation session that lasts between a half and full day. Mediation is a non-binding, confidential meeting at which you can try to settle your lawsuit. It is optional in the other parts of Ontario. You should be prepared to make your best arguments at mediation and will probably need one or more expert reports demonstrating your injuries and losses.
If the mediation does not resolve the lawsuit, you will be required to attend a Pre-Trial conference with a judge. The judge will help identify outstanding issues and try to streamline the trial going forward. They can make recommendations and Orders, and often try to get the parties to settle. The Pre-Trial judge will not be the one who hears the case if it goes to trial.
If Pre-Trial does not resolve the matter, the case proceeds to trial. Depending on the complexity of the issues and the number of witnesses, the trial can last for several weeks or even months. Usually, personal injury lawsuits are presided over by a judge and heard by a jury, who will determine liability and damages based on the evidence presented.
Although it is allowed under the court’s Rules, we do not recommend that you attempt to manage your own lawsuit as an unrepresented plaintiff. Each step identified above has complex and involves very specific rules and procedures. Your lawyer’s job is to make sure that you follow these rules in the way that serves your best interests most effectively, that your evidence is as complete and convincing as possible, and that it is presented in the most compelling way.
Trial vs Settlement
We are often asked, “If proceeding to trial is so challenging and time-consuming, why can’t I just settle and get it over with?”
Very few personal injury claims actually proceed to trial. Both sides have a lot to lose by placing the decision in the hands of a jury. The jury might you partly or even fully at fault. The evidence might not support the quantum of damages you are seeking, and the jury might award much smaller amounts or potentially nothing. Also, a trial is very expensive, and the losing side is usually expected to pay a significant portion of the other party’s legal costs. The limited availability of judges makes scheduling difficult, and it can take months or years to book a trial. For these and other reasons, reaching a settlement is usually preferable for plaintiffs and defendant insurers alike.
However, only at trial can you reasonably expect to receive full compensation for your injuries and losses. This possibility is a primary incentive motivating insurance companies to settle lawsuits. They are always engaged in cost-benefit analysis, and generally will avoid trial unless they know they can win, either because their client is not at fault, or the plaintiff cannot prove their damages. Sometimes, they decide to take their chances because the plaintiff will not accept their final settlement offer,
Lawyers like to say, “The best settlement is one where neither side is happy.” They mean that you and the defendant will both have to compromise to resolve the lawsuit. Even when liability is clearly against the defendant, they will present an alternative version of your injuries and ongoing impairments, seeking to reduce the amount of damages you can claim. Keeping in mind that a jury might agree with their version, or could find some middle ground between your numbers and theirs, it usually makes sense to accept a reasonable partial amount than to run the risk of trial, which might still take years to happen with unpredictable results.
There are usually several opportunities to settle the lawsuit as it proceeds. We have found that the insurer will listen to a proposal before Discoveries in a less complex case if strong evidence has been provided in advance. After hearing your evidence and undertakings have been provided, they will usually reassess the strength of your claim and their likely exposure if it goes to trial. This opens another window of opportunity. As mentioned, mediation and pre-trial are intended as settlement vehicles. As your case proceeds, your injury lawyer can recommend strategies for strengthening your case and will continue to advise you concerning the potential range of settlement you can expect. They will never settle without your approval, and you have the option to proceed to trial if the defendant refuses to settle for fair and reasonable compensation.
As mentioned above, when you are in a car accident, you are entitled to receive accident benefits regardless of who caused the accident. These “no-fault” benefits are funded by your own auto insurer, and include Income Replacement benefits (IRBs), medical, rehabilitation, and attendant care benefits, and various others.
You do not need to hire a personal injury lawyer to manage your accident benefits. The system was designed so that you could fill out the forms by yourself.
However, it can be very confusing, especially if you are seriously injured or hospitalized. There are tight deadlines and many potential obstacles that can overwhelm you and your loved ones. Also, although they are supposed to provide for your health care and lost income during your recovery, the actual support your insurance company approves is often inadequate to your needs. In many cases, this support is denied outright as not “reasonable and necessary.” You can end up in log-running disputes trying to prove that you need ongoing treatment, care, or income while your recovery is derailed.
The best injury law firms have experienced and compassionate accident benefits teams whose only job is to relieve you of the burdens that come with your accident benefits claim. The team can make recommendations for your rehabilitation, help set up appointments, and coordinate travel and treatment. They will engage with your accident benefits adjuster, taking care to meet all deadlines, provide any necessary documentation or evidence, and advocate for your treatment.
If a dispute is unavoidable, your lawyer will prepare your application for a hearing with the Licence Appeal Tribunal and will represent you in negotiations, settlement conferences, and the actual hearing. As in the lawsuit, it is often preferable to settle accident benefits disputes instead of proceeding to the hearing. Your lawyer will ensure that the issues in dispute are resolved fairly on your behalf.
The standard accident benefits coverage provides income replacement for up to two years post-accident, and medical, rehabilitation, and attendant care benefits up to $65,000. At some point in your recovery, there will probably be one or more opportunities to settle your accident benefits claim on a full and final basis. This means that you will receive a lump sum payment on account of all potential future benefits you could claim in relation to the accident. In exchange, you give up your right to claim ongoing benefits, even if your condition gets worse. Without expert guidance, injury victims often are coerced into settling their claims for low value, or when it would be better to keep the claim open (for example, the insurer might want to settle before the claimant realizes they should apply for greatly enhanced “catastrophic” accident benefits).
Because of the way that accident benefits can impact your damages claims in your lawsuit, we strongly recommend that you review any settlement offers with an experienced injury lawyer before signing, even if you have managed your own accident benefits claim to that point. In the right circumstances, your best option might be to settle both your accident benefits claim and your lawsuit at the same time in a global mediation or settlement meeting. Again, your injury lawyer works in your best interest and will advise you concerning your choices.
If you are considering settling your claim, before you settle, we recommend you read our article to understand what you need to know before you settle.
We know what you are going through. Suffering serious injuries and ongoing functional limitations is exhausting. It is easy to lose sight of your primary goal – reclaiming your life. The best personal injury lawyers and accident benefits teams offer guidance and unwavering support, fighting for your rights: to necessary care, treatment and financial assistance, and to justice and fair compensation. We provide you with confidence and peace of mind so you can focus on your recovery.
If you have any questions relating to your accident benefits or a potential lawsuit, we are pleased to offer a free, no-obligation consultation.
Trust Campisi LLP – Champions with Heart
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