In order to establish a cause of action for negligence, which will entitle you to commence a tort action in the Superior Court of Justice, the following six elements must be present:

1. Breach of Standard of Care

The defendant’s conduct or behavior must be negligent in the sense that it constituted a breach of the requisite standard of care set or established by the law. This issue, which is nominally known as the “standard of care issue”, easily takes up the most time, and is the most contentious, in negligence actions. The issue essentially asks the question of whether the conduct or behaviour of the defendant departed from the standard of care – an objective standard – that a reasonable person would have exercised in the same circumstances.

The application of this objective standard of the reasonable person ranges from no expectation of compliance on one end of the spectrum, as it relates to very young children and certain mentally/physically disabled persons, to a higher expectation on the other end of the spectrum, as it relates to professional persons acting within the course of their speciality, such as, but not limited to, lawyers, doctors, engineers, et cetera.

2. Sustained Actual Damage

You, as the plaintiff, must have suffered some actual damage. When we’re talking about “damage”, we mean the actual “head of loss” for which I’m claiming on your behalf an award of monetary compensation. Examples of a head of loss are, but not limited to, general non-pecuniary heads of loss, such as pain and suffering, loss of enjoyment of life, loss of amenities, past lost of housekeeping and home maintenance capacity, et cetera, and pecuniary heads of loss, such as loss of income, loss of earning capacity, medical and rehabilitation expenses, costs of care, hospital bills, future loss of housekeeping and home maintenance capacity, out-of-pocket expenses, et cetera.

If you want to learn more about tort damages, then please click the “link” to read my blog entitled “What Damage Awards Do I Get from a Successful Tort Action?”.

The legal term damage is different from the legal term “damages”, as the latter specifically refers to the amount of monetary compensation that should be paid to you by the tortfeasor, whose negligence caused you to suffer damage or loss.

If I can’t prove that you suffered actual damage or a loss, then the defendant is not liable for negligence, even if his or her actions were deemed to be negligent in that they fell below the requisite standard of care that a reasonable person would’ve exercised in the particular circumstances.

3. Causation

As the plaintiff, you must prove that the damage you suffered was caused by the negligence of the defendant. Therefore, I’d have to prove that there exists a causal link or nexus between the tortfeasor’s or defendant’s negligent conduct or behaviour and the loss or damage you suffered, which is nominally known as the “cause-in-fact” issue in a negligence action.

The Supreme Court of Canada established what’s known as the “but for” test to handle this cause-in-fact issue, which can be expressed as follows: “but for” the negligence of the defendant, you wouldn’t have suffered your loss or damage.

If I can’t prove that the defendant’s negligent conduct or behaviour caused your damage or loss, then the defendant is not liable for negligence, even if his or her actions were deemed to be negligent in that they fell below the requisite standard of care that a reasonable person would’ve exercised in the particular circumstances. In other words, if you would’ve suffered your damage or loss in any event, irrespective of whether or not the defendant acted negligently, then his or her negligent conduct or behaviour would be deemed not be the cause of your damage or loss. Even if the defendant’s negligent act wasn’t the only cause of your damage or loss, then it must have materially contributed by at least 25% to the damage or loss you suffered.

4. Duty of Care

There must be a duty to not act in accordance with the negligent conduct or behaviour displayed by the defendant, in order to avoid the kind of damage or loss you suffered, which is recognized by law in the form of legislation and/or a regulation. For example, the duty to drive a vehicle in Ontario with due care in order to avoid a motor vehicle accident, is identified in Ontario legislation and regulations, such as, but not limited to, Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8.

5. Proximate Cause and Remoteness

The negligent conduct or behaviour of the defendant must be a proximate cause of the damage or loss you suffered. In other words, the damage or loss you suffered can’t be too remote a result of the defendant’s negligent conduct or behaviour.

6. Contributory Negligence

Your conduct or behaviour, as the plaintiff, if deemed negligent in and of itself, in some circumstances can either completely bar or limit your recovery of the loss or damage you suffered as a direct result of the negligent conduct or behaviour of the defendant. These circumstances create what is nominally known as a “liability issue”, where the degree of liability of the negligent defendant is reduced by a percentage that’s reflective of the degree of your negligent contribution to your own damage or loss. Depending on your specific conduct or behaviour that’s deemed negligent, the defendant may employ, but not limited to, the following defences against the tort action that I bring on your behalf:

1. Contributory negligence;
2. Voluntary assumption of risk; and
3. Illegality.

An example of the defence of contributory negligence in a tort action for personal injuries suffered in a motor vehicle accident, is where a defendant claims that the plaintiff was “contributorily negligent” for failing to wear his or her seatbelt. The defence doesn’t exonerate the defendant of his or her negligent conduct or behaviour that caused the motor vehicle accident, but rather it will potentially reduce his or her liability. The reason is because they are arguing that “but for” the absence of the seatbelt, the damage or loss the plaintiff suffered wouldn’t have been as severe or as catastrophic. The defendant is essentially arguing that the plaintiff contributed, ever so slightly, to his or her own damage or loss, and therefore, the degree of the fault should be reduced accordingly.

The first step is the intake stage, where one of the first things that’ll happen before I start a tort action or lawsuit on your behalf, is for you to enter into a contractual agreement with my law firm. My contractual agreements are almost always a retainer contingency fee agreement, where you don’t pay me anything upfront, but rather I charge you a percentage of the amount of money awarded to you in a successful settlement or court judgment following a successful civil trial. However, I’d explain to you that you have the option of retaining me as your lawyer other than by a retainer contingency fee agreement.

I’ll then proceed by developing an initial theory of your case, which I don’t view as something that is static, but rather organic, in that it is continually evolving as your case evolves with emerging facts, the application of the law to your facts, and new evidence. I view the theory of the case as the expression of the dominant central position that I intend to assert at your trial, which is the end goal that I set, because even if we don’t go to trial, it is best to prepare as if we are.

I’ll then have you sign authorization and directions forms, where you authorize and direct third parties, such as your family physician for example, to provide my law firm with a copy of your complete files, information, documents, records and/or notes of any type or kind of yours that are in their possession, and are related to your legal matters with respect to your tort action.

The second step is the pleadings stage, where I draft your Statement of Claim, which is an “originating process” in that it’s the document that commences your tort action or lawsuit. Once I finish your Statement of Claim, I’ll issue or file it in the Superior Court of Justice of the city that we propose your action to be tried in, upon paying the applicable court filing fees. The defendants named in your Statement of Claim, who have been personally served with it, will prepare a Statement of Defence, and then serve it on everyone else named in the legal matter, including me on your behalf.

The third step is the discovery process stage, where further to Rules 30 and 31 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, there are two components that you’ll experience, which are as follows:

1. Documentation discovery → Rule 30; and
2. Examinations for discovery → Rule 31.

The document discovery stage of the process involves an exchange of documents between you and I, and the other parties and non-parties, which are relevant to the legal issues in dispute in your tort action. The examination for discovery stage of the process involves obtaining oral evidence from you and the defendant under oath and before trial, where the lawyers for the opposing party ask questions via cross-examination of the opposing party, and their lawyer, pertaining to the relevant issues contained in the pleadings (i.e. Statement of Claim, Statement of Defence, et cetera).

The fourth step is the setting the tort action down for trial stage, where I will prepare and file your trial record, which further to Rule 48 of the Rules of Civil Procedure, .R.O. 1990, Reg. 194, contains, but is not limited to, the following:

1. A table of contents;
2. A copy of any jury notice;
3. A copy of all the pleadings (i.e. Statement of Claim, Statement of Defence, Counterclaims, Crossclaims or Third-Party Claims);
4. Orders made in your case; and
5. A certificate signed by me, the lawyer, setting the action down for trial.

The fifth step is the exploration of the possibility of proceeding with a private mediation/settlement conference stage, which is a confidential, informal discussion without prejudice between us and the other parties in your tort action, in an attempt to resolve your tort action for an equitable and just settlement, prior to trial. It can occur with all parties meeting with an independent, neutral and unbiased mediator – usually a senior personal injury law lawyer – who assists and guides the parties toward our own voluntary resolution, by helping us further narrow the issues, better understand the strengths and weaknesses of each other’s cases, and focus on the important legal issues needed to narrow the gap between our respective settlement proposals. It can also be arranged voluntarily by counsel without a mediator, where the parties meet with their respective lawyers, or the lawyers meet alone and report back to their respective clients.

The sixth step is the pre-trial conference stage, which I’ll schedule by contacting the court registrar within 180 days of your civil litigation case being set down for trial. Prior to attending the pre-trial conference, I must complete a pre-trial brief or memorandum, which provides the pre-trial judge of the pertinent information he or she requires to adequately conduct it. Once all of the lawyers representing all of the parties to your tort action are present in the pre-trial conference, we have the opportunity to discuss with the pre-trial judge, but not limited to, the following:

1. Potential settlement;
2. Narrowing down the issues or determining whether any of the issues can be simplified for trial;
3. The experts that will be called upon at trial and whether any of them are redundant; and
4. How long you think the trial will last.

The judge who conducts the pre-trial conference cannot preside at the trial without the consent of all of the parties to your tort action.

Lastly, if we can’t resolve your tort action, then the seventh step is the trial stage, which is a coming together of all the parties in your tort action in a formal setting with the authority to adjudicate the dispute and your claims, where the lawyers marshal or adduce the facts, the applicable law, and the supportive evidence. The lawyers, including myself, argue them in an effective, compelling and persuasive manner before a trier-of-fact (judge or jury), who conducts a formal examination of the said evidence, in order to decide whether the monetary compensation in the form of compensatory damages you seek should be awarded. Subject to an appeal to the Court of Appeal for Ontario and possibly a subsequent appeal to the Supreme Court of Canada, the decision rendered at a trial is usually the end of the road for your tort action and legal dispute.

It depends on a lot of factors, which range from the complexity of the legal issues and unique facts of your case and the stance of opposing counsel concerning their assessment of the trial risk associated with your case to how quickly we can marshal the supportive documentary evidence from third parties via the document gathering process, and how soon we can get a trial date.

Since your tort action would be dismissed by the court if it’s not set down for trial or settled within five years of the start date, I always endeavour to pass the trial record within 5 years to secure a trial date, in order to ensure some finality on a fixed date. It also takes anywhere between 1 to 2 years before your accident-related injuries plateau and you reach maximum medical recovery. Plus it takes at least 3 months to gather the documents relevant to your issues in dispute following your examination for discovery, which typically occurs within 1-2 years from the filling of your Statement of Claim. The examination for discovery and the gathering of all of the relevant documents to the legal issues in dispute in your tort action, gives all parties a much better idea of the case we have to meet at trial, in order to better assess our respective trial risks. Lawyers typically don’t discuss settlement until they have a better grasp over our respective strengths and weaknesses prior to heading into a trial.

Therefore, on average, most, but not all, of my tort actions typically resolve anywhere between 2 to 5 years from the commencement of your tort law action, where at the high range of the five year mark we have secured a trial date and have commenced trial preparation.

It depends on a lot of factors, which range from the complexity of the legal issues and unique facts of your case, the stance of your insurance company concerning the severity of your accident-related injuries and impairments, and the number of appeals to the Licence Appeal Tribunal for denied treatment to which of the 3 injury/impairment classifications you fall into (minor injury, non-minor injury or catastrophic impairment), and how quickly we can marshal the supportive documentary evidence from third parties via the document gathering process.

Other factors that dictate the range in which your accident benefits claim can settle, are as follows:

1. You cannot enter into a cash settlement within a year from the date of the accident, with some exceptions;
2. Your insurance company opts to take time to determine a burn rate, or the average annual amount that’s expended on your medical and rehabilitation treatment, by observing same over a period of time, in order to assist with predicting how much money will be spent in the future for your statutory accident benefits; and
3. The duration of your medical and rehabilitation benefits – post June 1, 2016 – is only 5 years.

Therefore, due to the aforementioned factors, most, but not all, of my accident benefit claims typically resolve anywhere between 1 to 3 years from the date of your motor vehicle accident.

Two Year Statute of Limitation Period

Soon after you sign the retainer contingency fee agreement, one of the first things that I’ll do is diarize the limitation period for the filing of your Statement of Claim in accordance with the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which applies to your tort action for compensatory damages for your personal injuries and impairments. Under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your claim for compensatory damages is statute-barred, in respect of such a claim after the second anniversary of the day on which your claim was “discovered”.

The Discoverability Doctrine

Further to s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your claim is discovered on the earlier of the day upon which you first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known one of the following:

1. Your injury, loss or damage had occurred;
2. Your injury, loss or damage was caused by or contributed to an act or omission;
3. The act or omission was that of a person against whom your claim was made; and
4. Having regard to the nature of your injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

Further to s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, you are presumed to have known of the above-listed matters on the day the act or omission upon which your claim for compensatory damages is based, took place, unless the contrary is proven.

The Ultimate Limitation Period

I’ll also diarize your ultimate 15 years limitation period, which is established pursuant to section 15 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, after which the tort proceedings cannot go ahead. However, in accordance with s. 15(4) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your ultimate period will be suspended if the following applies:

1. You are not capable of commencing a proceeding due to your physical, mental or psychological condition, and if you are a minor, you’re not represented by a litigation guardian;
2. You are an unrepresented minor or a person;
3. Your potential defendant willfully concealed that he or she was the cause of, or that he or she contributed to your injuries and impairments; or
4. Your potential defendant willfully misled you as to the appropriateness of a proceeding to remedy your injuries and impairments.

It’s essential to diarize your statute of limitation periods and ensure they aren’t missed, as the expiry of your limitation period will constitute a defence to your tort action, which will be pleaded in a Statement of Defence issued by the lawyer of the defendant I’m suing on your behalf.

A catastrophic impairment designation places you – an auto accident victim – in the highest level of impairment category available under automobile insurance regulations. While not a benefit itself, a catastrophic impairment designation is the gateway or vehicle to access enhanced benefits, where your policy limits increase to $1 million, if you satisfy specific criteria outlined in the legislation. All other impairments fall under the non-catastrophic and minor injury category.

When you’re injured in a motor vehicle accident as a direct result of the negligence of another driver, there exists a priority of payment for your health care services, which are as follows:

1. Priority Number One: Ministry programs, inclusive of OHIP services and professional services arranged or provided through your local Community Care Access Centres (CCACs), such as nursing, physiotherapy, occupational therapy, speech-language pathology, social work and nutritional services (subject to eligibility and maximum amounts payable), as well as long-term care homes or other third-party agencies funded by the Ministry of Health and Long-Term Care.
2. Priority Number Two: Your private supplementary health and disability insurer and private employer plans.
3. Priority Number Three: Your statutory accident benefits, which are available through your own automobile insurance policy.
4. Priority Number Four: The money awarded to you in a tort action or lawsuit, which is paid by the at-fault, negligent driver’s automobile insurance policy.
5. Priority Number Five: Your provincial government plans such as
   a. Non-professional services arranged or provided through CCACs, such as personal support and homemaking services, attendant care services; and
   b. All services and benefits such as vocational rehabilitation and welfare payments, administered by the Ministry of Community and Social Services.

When the Court is making a determination of the award for non-pecuniary general damages and special damages to award you in a trial, it oftentimes refers to precedents, or monetary awards made in factually similar cases to yours. As a lawyer, I will conduct extensive legal research for you to find factually similar cases to your case, in order to determine the appropriate non-pecuniary general damage awards in settlement negotiations with defence counsel, which I could justify, as well as articulate to defence counsel what his or her trial-risk is if we go to trial. As your lawyer, I will also marshal or adduce the facts, the applicable law, and the supportive evidence, as well as argue them in an effective, compelling and persuasive manner, in order to get you the monetary compensation you deserve.

However, generally speaking, the more serious and permanent your impairment is, and the greater impact on your ability to function in your overall activities of daily living and/or employment, the more you can expect a higher monetary award for non-pecuniary general damages and special damages.

It largely depends on the severity of your accident-related injuries and impairments, and which of the 3 different classifications, tiers or levels you fall into that determine the applicable benefits that are available to you, which are as follows:

1. The Minor Injury Guidelines classification, which have policy limits of $3,500;
2. The Non-Minor Injury or Non-Catastrophic Injury classification, which have policy limits of $65,000 (if optional increased benefits weren’t purchased), in combination with attendant care benefits; and
3. The Catastrophic Injury/Impairment classification, which has policy limits of $1 million (if optional increased benefits weren’t purchased), in combination with attendant care benefits.

Therefore, for example, if it is determined that the injuries and impairments you sustained as a direct result of your motor vehicle accident, satisfy the criteria of a catastrophic impairment, then your applicable accident benefit policy limits would increase to from either $3,500 (minor injury) or $65,000 (non-minor or non-catastrophic injury) to at least $1 million, where you will have access to the highest tier of accident benefits, thereby entitling you to request extended medical rehabilitation and attendant care benefits, and other expenses. In this scenario, your ongoing care, treatment and rehabilitation needs in the future would be deemed to be substantially greater than if your injuries and impairments were determined to fall with the minor injury, or non-minor or non-catastrophic injury classification, and as such, you can expect a much higher monetary award for your statutory accident benefits if your insurer wants to settle your accident benefits claim on a full and final basis.

However, keep in mind that the total amount that you accident benefits claim could settle for is restricted to the policy limits pursuant to the aforementioned 3 injury/impairment classifications, and minus whatever statutory accident benefits were paid up until the date of settlement.