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One of the biggest challenges in chronic pain cases is the lack of objective evidence to support the claim. Unlike broken bones or other physical injuries, chronic pain is not visible and cannot be easily measured or quantified.

When you are involved in a personal injury claim, you put your past medical history into issue.  It is imperative that you provide accurate information about your past medical history to those healthcare professionals who evaluate and treat you post-accident. Your past medical history is a crucial piece of evidence that will be used to determine the extent of your injuries from an accident and the value of your claim.

In 1990, Ontario ushered in a new statutory system to govern motor vehicle accidents called the Ontario Motorist Protection Plan. It established a statutory threshold that limited those who could claim for injuries from a motor vehicle accident. At the time, there was no statutory deductible in place. The purpose of the system was to remove minor claims from the legal system and essentially keep insurance premiums at a reasonable level.

Often I am asked by new clients what they can do to improve their chance of recovery.  Over my career, I have noted several ways that a personal injury client can adversely impact their own claim. Here are a few examples.

I have noticed an increasing trend whereby insurance adjusters in accident benefit claims are denying treatment beyond the $3,500 under the MIG on the basis that there is no compelling evidence that the injuries fall outside the MIG (see s. 18(2) of the SABS above) without reference to an IE. Simply put, adjusters are making decisions on the basis of their own review of the medical documents without the benefit of a medical opinion.

I was recently retained as counsel to conduct a personal injury hearing at the Licence Appeal Tribunal.

When preparing for the hearing, it became apparent that one reason an insured’s claim is unsuccessful is due to the information relied upon by the insured’s expert was inaccurate (the insured failed to accurately convey evidence) or that the doctor did not conduct a thorough assessment due to a lack of documentation (key documentation was missing or lacking).

A theory is likely the most important step at the beginning of a personal injury matter.  The theory must be developed early since it is the blueprint from which to develop a case.  A theory will determine how the case is handled, what claims to make, witnesses necessary to call, experts to be called and what documentation to rely upon.  None of these decisions can be made intelligently without a theory.  Essentially, the purpose of a theory is to simplify the trial of the matter in order to obtain a favorable result.  Without a theory, a case will simply become unwieldy and disorganized. 

When you are injured in an accident or make a claim for benefits, your life becomes an open book.  This means that if you think an insurer cannot or will not find out what your medical history was like before the accident, then think again.  What is curious is that many injured people are not aware of this and how it can impact their claim.   

Unfortunately, the new year brings about the annual increase to the statutory deductible for motor vehicle accidents in the Province of Ontario. Due to the increase in inflation (4.4% according to the Financial Services Regulatory Authority of Ontario or FSRA), it is significant this year. 

At the start of the pandemic lockdown, many in-person discoveries were cancelled on the assumption that the lockdown would be temporary. Of course, this did not come to pass and lawyers, in order to keep matters moving, had to move to video conferencing. Of course, many lawyers had to be dragged kicking and screaming into the 21st century. In a brave new work, the current generation of lawyers usually have the most difficult time living in it. As the pandemic continued, the reasons for an in person discovery were shown to be, for the most part, anachronistic.

This case involves the interplay between what is a core policy versus what is the operational or government activities, which attract liability for negligence.    Operational implementation is subject to private law principles of negligence whereas core policy decisions are immune from such principles.  This decision was made in the context of a slip and fall accident caused by snowbanks on a public road.

The Supreme Court of Canada provided a structured framework for determining whether a government decision is a core policy decision.  The framework is as follows...