Affidavit of Documents

An Affidavit of Documents includes a sworn statement from you confirming that you have conducted a diligent search of all your records and made appropriate enquiries of others to inform yourself, in order to ensure that your affidavit discloses, to the full extent of your knowledge, information and belief, all documents relevant to any matter in issue in your tort action, which are or have been in your possession, control or power. It can include, but are not limited to, the following documents: videotapes or film, photographs, sound recordings, charts, graphs, maps, plans or surveys, books of account, data and information in electronic form (i.e. emails), et cetera.

The Affidavit of Documents contains three different “schedules” as follows:

1. Schedule “A”, where I’ll list those documents that are in your possession, control or power, and that we don’t object to producing for inspection;
2. Schedule “B”, where I’ll list those documents that are or were in your possession, control or power, and that we object to producing because we claim they are privileged, and where I have stated the grounds for each such claim (i.e. litigation privilege, solicitor-client privilege, et cetera); and
3. Schedule “C”, where I’ll list those documents that were formerly in your possession, control or power, but are no longer in your possession, control or power, and where I have stated when and how you lost possession or control of, or power over them, and their present location.

If we later find new relevant documents after I served your Affidavit of Documents to the other parties, then we must disclose them by serving a supplementary Affidavit pursuant to Form 4D.

I can ask to inspect a document in the other party’s possession, but they can also ask to inspect your documents too.

If we require a document from a non-party, but they are unwilling to produce it to us for inspection, then I will bring a motion in the courthouse to obtain an endorsed Order by a judge, which compels them to produce it to us under Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Affidavit of Service

Once I personally serve your Statement of Claim on all of the named defendants, I will ensure that an Affidavit of Service pursuant to Form 16B is completed for each defendant and subsequently filed with the court. It’s a legal document also known as a Proof of Service, which serves as proof that the defendant(s) received a legal document – your Statement of Claim – from us.

Aggravated Damages

Aggravated damages, which are rooted in an independent actionable wrong committed by the defendant, are designed to compensate you specifically where the reprehensible or outrageous conduct on the part of the at-fault negligent driver causes you a loss of dignity, humiliation, additional psychological injury or harm to your feelings.

You may be awarded aggravated damages if you are successful in your tort lawsuit.

Annualized Income Loss Approach vs. Traditional Lump Sum Approach

When a Court quantifies your loss of competitive advantage, they’ll look at how your ability to compete for employment is impaired. There are two popular methods that have been adopted, which are the traditional lump sum approach without a specific regard to your calculated income loss and the annualized income loss approach, where the award represents your annual income loss to an expected retirement date. The present value of the latter approach produces a higher amount, whereas the ballpark figure using the former approach produces a lower amount.

Appealing a Judgment at Trial

If we disagree with the judgment due to an error in law and/or an error in fact, then we can appeal the decision to the Court of Appeal for Ontario. The Supreme Court of Canada in the case entitled Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577, articulated the standard of review for errors of law, fact and mixed questions, as follows:

…Where the question is one of pure law, the standard is correctness. The standard of review for findings of fact is one of palpable and overriding error – a palpable error being one that is plainly seen. A question of mixed fact and law involves the application of a legal standard to a set of facts. The Supreme Court held that where the issue is negligence, deference is owed unless there is a legal or palpable and overriding error. Thus, in negligence cases, the standard of view for questions of mixed fact and law is one of palpable and overriding error, unless the trial judge made some error in principle, in which case the error may amount to an error of law which is subject to correctness.

The very last appeal that we can make is to the highest court in the country, which is the Supreme Court of Canada.

Appealing an Insurer’s Determination to the Licence Appeal Tribunal

Concerning your Accident Benefits claim, if your claim for statutory accident benefits under the SABS 34/10 is partially approved, reduced or denied by your insurer, then further to Ontario’s Insurance Act, R.S.O. 1990, c. I.8, you have the legal right to dispute your insurer’s determination. You can appeal your insurer’s decision by filing an application with the Licence Appeal Tribunal (“LAT”) — Automobile Accident Benefits Service (“AABS”) within 2 years of the date of the partial approval, reduction or denial. If you don’t appeal the partial approval, reduction or denial of your claim within the two year time limit, you will lose your right to dispute your insurer’s determination.

In order to appeal or apply to the LAT, you must complete the appropriate forms or provide the necessary details in writing. In order to specifically file an application to the LAT — Automobile AABS, you have to do the following 4 steps:

1. You first complete an Notice of Appeal — AABS Application by an Injured Person (“AABS Application”) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the AABS’s website at this URL link: https://tribunalsontario.ca/documents/lat/02027E_Notice-of-Appeal_Liquor-Licence-Act-Gambling-Control-Act.pdf
2. You serve your insurer with your AABS Application form by sending your insurer a copy;
3. You complete an AABS Certificate of Service form, in order to explain how you served, or sent, a copy of your AABS Application form to your insurer; and
   1. It can be accessed, filled in online and downloaded in PDF format from the AABS’s website at this URL link: https://tribunalsontario.ca/lat/general-service/forms/
4. You submit your completed AABS Application and Certificate of Service form to AABS, and then pay the AABS application fee.

All of the AABS forms, including the aforementioned AABS Application form and the AABS Certificate of Service form, can be downloaded and printed to be filled in by hand, as well filled in online on your computer or mobile device. All of the AABS forms can be accessed from the AABS’s website at the following URL link:

• https://tribunalsontario.ca/lat/general-service/forms/

You should provide reasons for your appeal or application and the result or action you are seeking. Also, in order to avoid delays in processing your appeal or application, you should provide the following:

1. Your full name, address, email address and telephone number, if you have chosen to represent yourself; or
2. Your legal counsel or agent’s full name, address, email address, telephone and fax numbers, if you have chosen to have legal counsel or an agent to represent you; and
3. A copy of the decision, proposal or order being appealed.

Your appeals and applications can be sent to the LAT by mail or email.

Lastly, if you want more information on filing an appeal or application, then visit the following URL link:

• https://tribunalsontario.ca/lat/general-service/appeals-applications/

Application for Accident Benefits Package

In order to kickstart your Accident Benefits Claim, your claims adjuster will send you via regular mail, an Application for Accident Benefits Package, which will provide you with information in regards to benefits that you may receive under the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (“SABS 34/10”), under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as a result of injuries you sustained in your motor vehicle accident.

You’ll find enclosed in the the Application for Accident Benefits Package, OCF forms that are mandatory to complete, which are the following:

1. An Application for Accident Benefits (OCF-1) form;
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1224E.5.pdf

2. An Employer’s Confirmation of Income (OCF-2) form; and
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1003E.1.pdf

3. A Disability Certificate (OCF-3) form.
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1226E.1.pdf

You’ll also find enclosed in the package, OCF forms that are not mandatory to complete, but rather may be completed, which are, but not limited to, the following:

1. A Permission to Disclose Health Information (OCF-5) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1225E.pdf

2. An Application for Expenses (OCF-6) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1227E.pdf

3. A Treatment and Assessment Plan (OCF-18) form; and
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1207E.5.pdf

4. A Minor Injury Guideline Treatment Confirmation (OCF-23) form.
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1209E.5.pdf

All OCF forms can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

https://www.fsrao.ca/industry/auto-insurance-sector/auto-insurance-claims-forms-ocf-forms

Application for Expenses or Expenses Claim (OCF-6) Form

Concerning your Accident Benefits claim, in order to submit your additional incurred expenses to your insurer to be reimbursed, you must record and submit them using an Application for Expenses or Expenses Claim (OCF-6) form.

You can access, fill in online and download in PDF format, the OCF-6 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1227E.pdf

Attendant Care Benefits

Concerning your Accident Benefits claim, if as a result of the injuries you sustained in your motor vehicle accident, you are no longer able to take care of yourself, then you may be eligible for attendant care benefits. If so, then further to section 42(1) of the SABS 34/10, your insurer will require you to submit an application for attendant care benefits to them using An Assessment of Attendant Care Needs (Form 1) form, which, ever since September 1, 2010, must be completed by either a registered nurse or an occupational therapist. Your insurer will deduct the costs that’s associated with completing the Form 1 from the medical and rehabilitation benefits limits that’s available to you in your automobile insurance policy. Lastly, if it’s determined that your injuries fall within the Minor Injury Guideline classification, then you won’t be eligible for the attendant care benefit, as it’s only available to you if you fall within either the non-minor injury or non-catastrophic injury classification, or the catastrophic injury/impairment classification.

You can access, fill in online, and download in PDF format, the Form 1 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1223E.1.pdf

Attendant care benefits under s. 19 of the SABS 34/10, pay for reasonable and necessary expenses for your self-care. Such benefits are available if you are not in the Minor Injury Guideline classification, and can show that you are substantially unable to engage in self-care tasks, such as, but not limited to, dressing, grooming, feeding, mobility, laundry, hygiene, or you require supervisor care.

Authorizations and Directions

It is imperative that we have access to all of the pertinent information from third parties that are relevant to the legal issues in dispute in your civil litigation case, in order to start a successful tort lawsuit on your behalf. So, I’ll have you sign Authorization and Direction forms, shortly after you sign the retainer contingency fee agreement.

Once you sign these forms, 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. This includes all relevant information that I may request on your behalf from time-to-time regarding the status of your file, pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.

Balance of Probabilities

The balance of probabilities is the civil standard of proof, which articulates your burden of proof as putting forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages. By contrast the criminal standard of proof is beyond a reasonable double, which is greater burden of proof.

Burden of Proof

A burden of proof is the legal duty placed on you as the plaintiff must put forth enough substantive evidence to support your claims for damages and the compensatory damages you’re seeking for them. The civil standard of proof in a tort action is that of a balance of probabilities, where the burden of proof is to put forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages, but your burden of proof is not as high as a criminal charge, where the criminal law standard of proof is beyond a reasonable doubt.

Burden of Proof for Future Damages

A burden of proof is the legal duty placed on you as the plaintiff must put forth enough substantive evidence to support your claims for damages and the compensatory damages you’re seeking for them.

When a Court is considering the proper award for future damages, it may cover not only all of your injuries and impairments suffered, and disabilities proved as of the date of your trial, but also the risk or likely future developments attributable to your injuries and impairments. The civil standard of proof in a tort action is that of a balance of probabilities, where the burden of proof is to put forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages. However, further to the Supreme Court of Canada, you’re “not required to prove on a balance of probabilities, the probability of future damage, but rather you may be compensated, if” you “prove in accordance with the degree of proof required in civil matters, that there is a possibility or a danger of some adverse future development”.

Caregiver Benefits

Concerning your Accident Benefits claim, prior to September 1, 2010, caregiver benefits (“CGBs”) were available to non-catastrophic claimants. After 2010, if no option was purchased, these benefits are only available if you are found to be catastrophically impaired.

Under section 13 of the SABS 34/10, in order for you to be found eligible for CGBs, you must live with a person in need of care and be the primary caregiver for the person in need of care, and not receive any payment for caregiving activities. The SABS 34/10 defines a “person in need of care” as one who is under 16 years of age or who requires care because of physical or mental incapacity.

The disability test is outlined in section 13(1) — you must suffer a substantial inability to engage in the caregiving activities in which you were engaged in at the time of your motor vehicle accident for the first 104 weeks. After 104 weeks, the test becomes stricter and is the same as that for NEBs — a complete inability to carry on a normal life.

There is no waiting period for CGBs. So, if you’re eligible, you receive $250 per week for the first person in need of care and $50 per week for each additional person in need of care. This amount is reduced as your children turn 16 and are no longer in need of care.

If you elect IRBs or NEBs, and later you’re found to be catastrophically impaired, then section 35(2) allows you to re-elect to the CGB. Elections are otherwise considered final.

Catastrophic Injury/Impairment Classification

Concerning your Accident Benefits claim, if you or your healthcare provider thinks that your accident-related injuries satisfy the legislative criteria of a catastrophic impairment, which is set out in section 3.1(1) of the SABS 34/10, then you’ll have to get your healthcare provider or treating specialist to submit an Application for Determination of Catastrophic Impairment (OCF-19) form to your insurer. It’s of the utmost importance that you select the right healthcare provider or treating specialist, in that the nature of your accident-related injuries falls within the scope of practice of the healthcare provider or treating specialist. So, for example, accident-related traumatic brain injuries fall within the scope of practice of a neurologist, who “deals with the diagnosis and treatment of all categories of conditions and disease involving the central and peripheral nervous systems (and their subdivisions, the autonomic and somatic nervous systems), including their coverings, blood vessels, and all effector tissue, such as muscle” — Wikipedia definition.

You can access, fill in online, and download in PDF format, the OCF-19 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1331E.pdf

If on the basis of this Application, your insurer concludes that your injuries are deemed to satisfy the criteria for a catastrophic impairment, then your insurer will designate you as catastrophically impaired. Then you’ll transition to the catastrophic injury/impairment classification, where your applicable accident benefit policy limits would increase to at least $1 million, unless you have purchased any optional increased benefits under your automobile insurance policy. Furthermore, the catastrophic impairment designation will grant you access to the highest tier of accident benefits, thereby entitling you to request extended medical rehabilitation and attendant care benefits, and other expenses. Your insurer may request a section 44 insurer’s medical examination, where they’ll retain a physician to assess you for the purpose of determining whether or not you should be designated as catastrophically impaired. If their physician determines that you’re not catastrophically impaired, then your lawyer can retain a physician to assess you and complete a rebuttal medico-legal report, and proceed to appeal the insurer’s determination to the Licence Appeal Tribunal.

Certainty and Causation: Past Events

Your past events, which comprise your special damages, must be proven, and once proven they are treated as certainties. In your tort action, the Court will declare whether the at-fault driver was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct of the at-fault driver either was or was not a cause of your injuries and impairments. The Court will decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty.

The role of the Court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.

Chronic Pain

Chronic pain has been recognized as pain that persists beyond the normal healing time after a tissue injury, and it adversely affects the function and well-being of an individual.

It continues for more than the normal recovery period, despite appropriate therapy and reasonable accommodations. Usually pain is regarded as chronic when it lasts or recurs for more than 3 to 6 months.

It is ongoing pain lasting longer than 6 months as diagnostic, or 3 months as the minimum criterion. In contrast to acute pain that arises suddenly in response to a specific injury and is usually treatable, chronic pain is often resistant to medical treatments and lacks the acute warning physiological function.

Chronic pain is a condition that is very complex and multifactorial in origin. It substantially interferes with all daily activities of the individual. Chronic pain is also associated with psychological problems, such as anxiety, depression, and sleep disturbances, which may further increase the severity of the existing pain experience. The feasible sources of chronic musculoskeletal pain can be simultaneously associated with multiple sources, such as muscles, tendons, ligaments, intervertebral discs, facet joints, articular cartilage, periosteum, peripheral nerves, neural pathways, and involvement of the nerve roots at the levels of the cervical, thoracic and lumbar spine.

The evidence-based recommendations support a multimodal, multidisciplinary or interdisciplinary approach for patients who suffer from chronic pain.

Musculoskeletal pain is pain that affects the bones, muscles, ligaments and tendons. Musculoskeletal pain can result from various causes including sports or occupational injuries, motor vehicle collisions, repetitive strain injuries and disease processes, such as arthritis.

Neuropathic pain is a complex, multi-faceted state of chronic pain that may have no obvious cause. It can involve damaged tissue, injury or malfunctioning nerve fibers or changes in brain processing. An example of neuropathic pain is phantom limb syndrome. The brain still receives signals from nerves that originally carried impulses from the now missing limb. Other types of neuropathic pain include numbness, burning, “pins and needles” sensations and shooting pain.

Closing Addresses

After all of the witnesses have been called by all of the lawyers representing the parties to your tort action, we then proceed to the closing addresses to the judge or jury. As the plaintiff, you have the right to address the jury last where both parties adduced evidence, and as such, I’ll address the judge or jury last so our theory of the case and the final argument is the last thing they hear. As a general rule concerning the boundaries of the closing address, I’m permitted to address the jury by making submissions that fairly arose directly or indirectly from the evidence that was adduced throughout the course of your trial, so long as my submissions do not tend to sway the jury away from deciding your civil litigation case upon the evidence and the law. Even though I’m granted wide latitude in the manner in which I deliver my closing address by comparison to the opening address, such as an impassioned address on your behalf that stirs up the passion in them, there are limits. For example, if I make impassioned submissions that draw the jury away from their task of deciding your civil litigation case on the evidence, then the presiding judge would deem that to be improper, and the opposing counsel will surely raise objections in court.

Collateral Benefits

Concerning your tort action, further to the Court of Appeal for Ontario case entitled Bannon v. McNeely, [1998] O.J. No. 1673 (“apples should be deducted from apples, and oranges from oranges”), and the Supreme Court of Canada case entitled Gurniak v. Nordquist, [2003] 2 S.C.R. 652 (“deductions to be fruit from fruit”), the rule against double recovery, codified by s. 267.8 of the Insurance Act, mandates the deduction of collateral benefits from damages awarded to a plaintiff for losses arising directly or indirectly from the use or operation of an automobile.

Examples of collateral benefits, which set-off or are deductible from the award for damages from your tort action, are as follows: Accident Benefits; Ontario Works or Social Assistance benefits, formerly known as Welfare benefits; Canadian Pension Plan Disability benefits; and s

Short and Long-Term Disability Insurance benefits.

Examples of collateral benefits, which are not deductible from the award for damages from your tort action, are as follows: Employment Insurance benefits; Ontario Disability Support Program benefits; and Workplace Safety and Insurance Board benefits.

Compensatory Damages

However, compensatory damages is easily the most common damage award, especially in personal injury law cases, where you are seeking compensation for losses already incurred in the past and anticipated in the future.

Consent Timetable

If for whatever reason I cannot set your tort action down for trial within five years of the start date, then I will take action to either:

1. Obtain the consent of all the parties and draft a timetable, filed with the court at least 30 days before the five year or two year deadline, which shows the court:
   1. The steps to complete before your tort action can be set down for trial or restored to the trial list;
   2. The date(s) the steps need to be completed by;
   3. A date the action must be set down for trial or placed back on the trial list, provided it is not more than seven years after your claim; or

2. Bring a motion for a status hearing any time before the five year or two year deadline, if the parties don’t consent to a timetable, in order to ask for a court Order allowing the action to move forward.

Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

As the Court is ascertaining the appropriate value to assign to your future damage, since it doesn’t have a crystal ball to gaze into the future to know what your future life would’ve been like “but for” the motor vehicle accident, it will factor in things such as, but not limited to, your projected level of earnings, the length of your working life, and positive and negative contingencies, which might affect your future earnings.

Further to the Court of Appeal for Ontario, even if I lead evidence that establishes your risk of future pecuniary loss, this doesn’t mean that you are necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of your risk established. The greater the risk of loss, the greater will be your compensation. The measure of compensation for your future economic loss will also depend on the possibility, if any, that you would have suffered some or all of your projected losses even if the wrong done to you had not occurred. The greater this possibility, the lower the award for your future pecuniary loss.

The Supreme Court Canada described the contemporary Canadian approach to taking into account contingencies, which might affect your future earnings, such as, but not limited to,  business depression, early retirement, illness, promotion, time off work due to pregnancy for women, unemployment, et cetera.

There are, however, a number of qualifications which the Court will make in your case.

1. First, these aforementioned contingencies implicitly are already contained in an assessment of the projected average level of your earnings, so the Court assumes that this figure is a projection with respect to the real world of work, vicissitudes and all.
2. Second, not all contingencies are adverse, as the above list examples would appear to indicate. So the Court will also factor in your rewards of fortune too.
3. Finally, the Court will also factor in the many public and private schemes in modern society, which cushion you against adverse contingencies.

Ultimately, the percentage deduction which is proper will depend on the unique facts of your case, particularly the nature of your occupation.

So, the Court will recognize, and give effect to, your contingencies, good or bad, which may reasonably be foreseen. The court will attempt to evaluate the probability of the occurrence of the stated contingencies, which are relevant to the unique facts of your case.

Contributory Negligence

Contributory negligence is the degree to which your own negligent behaviour or conduct contributes to your own damages or losses.

Your rights to damages is subject to any apportionment of damages due to your contributory negligence, which would reduce the overall total amount awarded to you in damages. So for example, if you were awarded $100,000 in total damages, but you were found to be 25% contributorily negligent, then your total damages would be reduced by 25% ($25,000) down to $75,000.

You can be found to be contributorily negligent, if for example, you weren’t wearing your seatbelt during the accident. The underlying rationale is that you essentially contributed to the severity of your accident-related injuries and impairments, because if you wore your seatbelt as you are required to do by law, then it is likely that your injuries and impairments wouldn’t have been as severe.

Counterclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Crossclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Cross-Examination

After I finish my examination-in-chief of the first witness at your trial, then the opposing lawyer representing the defendant, will be able to exercise his or her right to ask questions of the same witness via a technique known as “cross-examination”, subject to some limitations, where the lawyer is allowed to use leading questions that suggest the desired answer of the lawyer, in order to, amongst other things, determine whether the witness is credible by testing the veracity and accuracy of his or her story.

During an effective cross-examination the questions of the lawyer should primarily elicit “yes” and “no” responses.

The six objectives of cross-examination are, but not limited to, the following:

1. Destroy the evidence of the witness directly;
2. Destroy the evidence of the witness indirectly by attacking his or her credibility;
3. Elicit helpful admissions on the facts;
4. Set the mood or theme of the cross-examiner’s case;
5. Establish the defence; and
6. Destroy the evidence of other witnesses.

Adair Q.C., Geoffrey D.E., On Trial. Second Edition, LexisNexis Canada Inc., 2004.

Crumbling Skull Rule vs. Thin Skull Rule

The balance of compensatory fairness between you and the negligent at-fault driver, is also expressed in these two legal principles and rules: (1) the “crumbling skull” rule; and (2) the “thin skull” rule. The “crumbling skull” rule recognizes that your pre-existing condition was inherent in your “original position”. Therefore, the negligent at-fault driver need not put you in a position better than your original position. The negligent at-fault driver is liable for the injuries caused, even if they are extreme, but need not compensate you for any debilitating effects of your pre-existing condition, which you would have experienced anyway. The negligent at-fault driver is liable for the additional damage, but not the pre-existing damage.

However, it’s balanced out by the “thin skull” rule, where the negligent at-fault driver is liable for your accident-related injuries and impairments, even if they are unexpectedly severe owing to a pre-existing condition. So, the negligent at-fault driver must take you, the victim, as he or she  finds you, and is therefore liable even though your losses are more dramatic than they would be for the average person.

Damages

Another word for “damages” is monetary compensation. In tort law, we classify damage awards in accordance with the specific purpose that they are intended to serve, which are (1) compensation; (2) punishment; and/or (3) vindication.

The fundamental purpose of damage awards is to place you in the position you would have been (no better or worse), “but for” the at-fault driver’s negligence. This fundamental, primary guiding principle in tort law behind the awarding of damages in personal injury law cases is captured in the Latin term “restitutio ad integrum” or “restitutio in integrum”, which means “restoration to original condition”.

Deductible on Family Law Act General Non-Pecuniary Damages

The deductible is the amount of money automatically deducted from the amount of compensatory damages awarded to you for Family Law Act general non-pecuniary damages at trial, if that award doesn’t surpass a monetary threshold.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act general non-pecuniary  damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $19,877.16 deductible from any award for Family Law Act general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $66,256.09.

So, for example, if you were awarded $65,000 for Family Law Act general non-pecuniary damages in 2021, then $19,877.16 would be deducted from your award, which would leave you with $45,122.84. However, if you were awarded $67,000 for Family Law Act general non-pecuniary damages in 2021, then the 2021 $19,877.16 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $66,256.09, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.

Deductible on General Non-Pecuniary Damages

The deductible is the amount of money automatically deducted from the amount of compensatory damages awarded to you for general non-pecuniary damages at trial, if that award doesn’t surpass a monetary threshold.

Even if you meet the aforementioned legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $39,754.31 deductible from any award for general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your award for same meets the 2021 monetary threshold of $132,513.28.

So, for example, if you were awarded $130,000 for general non-pecuniary damages in 2021, then $39,754.31 would be deducted from your award, which would leave you with $90,245.69. The $39,754.21 doesn’t go to anyone or anything, but is rather just deducted to reduce the total damage award. The high deductible is designed to discourage plaintiffs, who sustained less serious and non-permanent injuries, from proceeding with a tort lawsuit.

If, however, you were awarded $133,000 for general non-pecuniary damages in 2021, then the 2021 $39,754.31 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $132,513.28, and therefore, you would keep the total amount of the award.

Deductible on Past Economic Loss

Concerning motor vehicle accidents, further to section 267.5(1)2i, (1)2ii, (1)3i and (1)3ii of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, any award for pecuniary damages in the form of either income loss or a loss of earning capacity, between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario, in addition to a legislative deductible of non-pecuniary general damages if the legislative monetary threshold is not met, there is also a legislative deductible for a past economic loss tort award too.

So, for example, if you were awarded $100,000 gross, in damages for your past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, you would receive the full amount awarded to you for your future loss of income and earning capacity without any deductions.

Deductible on Family Law Act Past Economic Loss

Further to section 267.5(1) of Ontario’s Insurance Act, any award to your spouse, children, grandchildren, parents, grandparents and/or siblings for an award in damages for past loss of income and earning capacity between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income loss for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario there is a legislative deductible for a past economic loss tort award in a Family Law Act claim.

So, for example, if your spouse, children, grandchildren, parents, grandparents and/or siblings were awarded $100,000 gross, in damages for past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, they would receive the full amount awarded to them for future loss of income and earning capacity without any deductions.

Default Judgment

If the defendants fail to defend the legal proceeding that I have commenced on your behalf against them, then a default judgment may be given against them in their absence and without further notice to them. The court will assume that the defendants have admitted to the claims made against them and I’ll be able to ask the court to order them to pay your claim for compensatory damages; however, I’d still have to present evidence to the court and prove that you’re entitled to the award of damages you seek. Lastly, the default judgment can be enforced against the defendants’ property and assets.

Defence to the Counterclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Defence to the Crossclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Defence to the Third-Party Claim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Direct Examination or Examination-in-Chief

As I call my first witness and all of the witnesses that I’m calling on your behalf at your trial I ask questions via a technique known as “direct examination” or “examination-in-chief”, where I adduce the relevant and admissible evidence that they possess, which touch upon the matters in issue that I desire to bring to the attention of the court. The rules governing the direct examination or examination-in-chief are as follows:

1. My questions must be phrased in such a specific and unambiguous way that they may be expected to elicit relevant, material and admissible evidence to reach the trier-of-fact; and
2. Subject to the discretion of the presiding judge, leading questions – questions that suggest the desired answer to the witness – on material issues are not permitted in both direct examination and re-examination.

During an effective examination-in-chief, I won’t dominate the scene, but rather find a balance between guiding the discussion to emphasize crucial evidence while simultaneously proceeding in an unobtrusive manner, where my more open-ended questions allow the trier-of-fact to focus on our witnesses’ testimony without interference.

The Disability Certificate (OCF-3) Form

Concerning your Accident Benefits claim, if you want to claim any of the aforementioned weekly disability benefits, then your insurer will require you to complete the mandatory Disability Certificate (OCF-3) form. You fill in Part 1 through to 3 of the OCF-3 form, and then give it to your healthcare provider — chiropractor, dentist, nurse practitioner, occupational therapist, optometrist, physician, physiotherapist, psychologist, speech language pathologist, et cetera. Only an authorized healthcare provider can complete the OCF-3 form.

After your healthcare provider has explained your accident-related injury to you, answered your questions, and addressed your concerns, then you print your name, sign your signature, and include the date that you signed it, in Part 4 of the OCF-3 form. Your healthcare provider will complete the rest of the OCF-3 form from Part 5 through to 10, based on his or her most recent assessment of you, and then submit it to your insurer on your behalf. Again, it’s of the utmost importance that you select the right healthcare provider or treating specialist, in that the nature of your accident-related injuries falls within the scope of practice of the healthcare provider or treating specialist. So, for example, accident-related mental and behavioral psychological disorders fall within the scope of practice of a psychiatrist, or a psychologist, who “practices psychology and studies normal and abnormal mental states, perceptual, cognitive, emotional, and social processes and behaviour by experimenting with, and observing, interpreting, and recording how individuals relate to one another and their environments” — Wikipedia definition. Furthermore, once you identify the right healthcare provider or treating specialist to complete Part 5 through to 10 of the OCF-3 form, it is essential that he or she takes his or her time and completes the OCF-3 form carefully and accurately, following a thorough, comprehensive assessment, because his or her medical opinion will be relied upon by people who review the disability certificate to make important decisions concerning your eligibility to weekly disability benefits, as well as medical and rehabilitation benefits.

You can access, fill in online, and download in PDF format, the OCF-3 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1226E.1.pdf

Discount Rate

​​Further to Ontario’s R.R.O. 1990, Regulation 194: Rules of Civil Procedure, as I calculate the present day value for a future loss of income claim for you, I have to use the “discount rate” noted in Rule 53.09(1) to determine the amount of an award in respect of your future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, which is:

1. for the 15-year period that follows the start of the trial, the greater of,

1. the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada’s Weekly Financial Statistics for the period starting on March 1 and ending on August 31 in the year before the year in which the trial begins, less ½ per cent and rounded to the nearest 1/10 per cent, and

1. zero; and

2. for any later period covered by your award, 2.5 per cent per year for each year in that period.

The Discoverability Doctrine

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”.

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.

Discovery

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

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

The primary purpose of the discovery process is to enable both the plaintiff and the defendant to better understand the case that they have to meet via the exchange of pertinent information and documentation (document discovery) combined with cross-examination or asking the other party specific questions while being recorded (examination for discovery) that’s relevant to the issues in dispute in your tort action or lawsuit.

Some of the benefits to you that come with proceeding with the mandatory discovery process are, but not limited to, the following:

1. Assess the strengths and weaknesses of the other parties’ case before I prepare for trial;
2. Narrow the issues for the trial I’ll conduct on your behalf (if necessary); and
3. Potentially reach a favourable and equitable settlement prior to going to trial.

The Discovery Plan

Prior to the commencement of the discovery process, I must agree with the other parties on a discovery plan within 60 days of the close of pleadings (i.e. after the time expires for me to produce a reply to the Statement of Defence), unless we mutually agree to a longer period of time.

Further to Rule 29.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the discovery plan must include, but are not limited to, the following:

1. The types of documents you and I, and the other parties are going to provide to each other;
2. The dates by which you and I, and the other parties will each serve your Affidavit of Documents pursuant to Form 30A or 30B;
3. Information about the timing, costs and the way in which the documents will be produced;
4. The names of each person being examined in the discovery, and information about the timing and length of the examinations; and
5. Any other information to ensure a quick and cost-effective discovery process.

As I prepare the discovery plan, I must consider the Sedona Canada Principles addressing electronic discovery.

 

Dismissal of Your Action

It’s essential to set your tort action down for trial because the court can, and will, dismiss your action, if, but not limited to, the following:

1. Your tort action is not set down for trial or settled within five years of the start date, unless the court ordered otherwise; and
2. Your tort action was taken off the trial list and not put back on the list within two years, unless the court ordered otherwise;

The court will not provide us with any notice that your action is being dismissed, as we’ll only receive an Order Dismissing Action for Delay pursuant to Form 48D.

Documentary Discovery

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 most essential document in regards to document discovery is what is known as the Affidavit of Documents.

Double Recovery

Concerning your tort action, further to the Court of Appeal for Ontario case entitled Bannon v. McNeely, [1998] O.J. No. 1673 (“apples should be deducted from apples, and oranges from oranges”), and the Supreme Court of Canada case entitled Gurniak v. Nordquist, [2003] 2 S.C.R. 652 (“deductions to be fruit from fruit”), the rule against double recovery, codified by s. 267.8 of the Insurance Act, mandates the deduction of collateral benefits from damages awarded to a plaintiff for losses arising directly or indirectly from the use or operation of an automobile.

Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) Form

Concerning your Accident Benefits claim, if more than one of the three weekly disability benefits applies to you, then you’ll have to elect one of them by submitting an Election of Income Replacement, Non-Earner or Caregiver Benefit

(OCF-10) form.

You can access, fill in online, and download in PDF format the OCF-10 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1228E.pdf

The Employer’s Confirmation of Income (OCF-2) Form

Concerning your Accident Benefits claim, if you were employed at the time of your motor vehicle accident and you want to claim Income Replacement Benefits, then you have to submit the mandatory Employer’s Confirmation of Income (OCF-2) form. You fill in Part 1 through to 3, and then give the OCF-2 form to your employer, or former employer(s), to complete the rest, from Part 4 through to 8. If you listed more than one employer on your Application for Accident Benefits (OCF-1) form, then make sure each employer fills out a separate OCF-2 form.

If you need another OCF-2 form, then you can either acquire another one from your insurer, or fill it in online, or download it in PDF format and print the OCF-2 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1003E.1.pdf

Examination for Discovery

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 determination of which questions are deemed relevant at your examination for discovery is ultimately shaped by what we plead or claim in your Statement of Claim. Therefore, if an issue emerges from what is pleaded in the paragraphs of your Statement of Claim, then the other lawyer can ask you about it at your examination for discovery.

The examination for discovery typically takes place inside a boardroom type-setting at an official examiner’s office so that it can be recorded. This enables us to ask to have it transcribed so we have a written record of what was said at the examination for discovery. You can be examined by the other party or parties for up to seven hours, which applies regardless of whether you and the Family Law Act claimants are also being cross-examined. However, most examinations for discoveries don’t last that long. Alternatively, we can agree to different time limits.

In addition to the lawyers and the person being cross-examined, being present in the room, there is also a court reporter whose job it is to transcribe everything that’s said on-the-record, in order to produce a transcript. Transcription allows me to order a copy of the transcripts directly from the court reporter, which typically costs approximately $5 to $7 per page, depending on how quickly I want a copy of the transcript.

Prior to the commencement of your examination for discovery, you’ll have the option to swear on a Holy bible to tell the truth, or make an affirmation to tell the truth if you are not catholic. Once you start testifying under oath, as your lawyer, I am not permitted to discuss your case or the evidence with you. However, I can communicate with you on the record, which is inclusive of advice as to whether to answer a question. I can also object to questions that I find objectionable, and then state my reasons for not allowing you to answer the question, on the record.

Examination-in-Chief or Direct Examination

As I call my first witness and all of the witnesses that I’m calling on your behalf at your trial, I ask questions via a technique known as “direct examination” or “examination-in-chief”, where I adduce the relevant and admissible evidence that they possess, which touch upon the matters in issue that I desire to bring to the attention of the court. The rules governing the direct examination or examination-in-chief are as follows:

1. My questions must be phrased in such a specific and unambiguous way that they may be expected to elicit relevant, material and admissible evidence to reach the trier-of-fact; and
2. Subject to the discretion of the presiding judge, leading questions – questions that suggest the desired answer to the witness – on material issues are not permitted in both direct examination and re-examination.

During an effective examination-in-chief, I won’t dominate the scene, but rather find a balance between guiding the discussion to emphasize crucial evidence while simultaneously proceeding in an unobtrusive manner, where my more open-ended questions allow the trier-of-fact to focus on our witnesses’ testimony without interference.

Expert Witnesses and Lay Witness

My witnesses whom I’ll call at trial on your behalf are of two kinds, which are “lay witnesses” and “expert witnesses”. A lay witness can essentially only testify on their direct knowledge of what they actually witnessed, and not on his or her opinion of anything. An expert witness on the other hand, is an individual who possesses special knowledge or skill in respect of a subject upon which he or she is called upon to testify, after swearing to be objective and providing testimony that serves the court in enhancing its understanding. Furthermore, after he or she is qualified as an expert witness through a qualification process in the court, he or she is then permitted to give opinion evidence, which is limited to his or her area of expertise, and is deemed to be necessary to furnish the court with such expertise that is likely outside the experience and knowledge of the presiding judge or jury.

Family Law Act Claim

If you were to sadly die from a motor vehicle accident caused by the negligence of the at-fault driver, then your estate cannot claim for an award in damages for your untimely loss, from a successful tort lawsuit. However, if you died, or sustained a serious and permanent impairment, or a serious and permanent disfigurement, then your spouse, children, grandchildren, parents, grandparents and/or siblings may claim for an award of damages further to section 61 of the Family Law Act, R.S.O. 1990, c. F.3.

The award in damages that they could claim further to section 61(2) of the Family Law Act, are as follows:

1. Actual expenses reasonably incurred for the benefit of either your injury or death;
2. Actual funeral expenses reasonably incurred;
3. A reasonable allowance for travel expenses actually incurred in visiting you during your treatment or recovery;
4. Where, as a result of your injury, your spouse, children, grandchildren, parents, grandparents and/or siblings provided nursing, housekeeping or other services for you, a reasonable allowance for loss of income or the value of the services; and
5. An amount to compensate for the loss of guidance, care and companionship that your spouse, children, grandchildren, parents, grandparents and/or siblings might reasonably have expected to receive from you if your injury or death had not occurred.

General Contingencies vs. Specific Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

The law has recognized that contingencies can be placed into two categories as follows:

1. General contingencies, which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness, et cetera; and
2. Specific contingencies, which are peculiar to you, e.g., a particularly marketable skill or a poor work record.

General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may adjust an award for your future pecuniary loss to give effect to general contingencies, but where the adjustment is premised only on general contingencies, it will be modest.

If you rely on a specific contingency, positive or negative, then you must be able to point to evidence, which supports an allowance for that contingency. The evidence will not prove that your potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of your contingency is a realistic, as opposed to a speculative, possibility.

General Non-Pecuniary Damages

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities.

Global Mediation

A global mediation is where I consolidate more than one of your legal proceedings, such as your accident benefits claim against your first-party insurer, your long-term disability claim against your second-party insurer, and your tort lawsuit against the negligent at-fault driver and his or her third-party insurer, into a single private mediation/settlement conference. If we proceed with a global mediation, then I’ll factor in the possibility that some of your compensatory damages may be set off against other damage awards. For example, your accident benefits claim for income replacement benefits and medical/rehabilitation benefits, will be set off against your tort claim for pecuniary damages and costs of care damages, respectively.

 

Some things I always consider when advising you on whether we should proceed with a global mediation include, but are not limited to, the following:

1. The status of your respective legal proceedings, and whether they are simultaneously ripe for mediation;
2. Whether the opposing parties have differing opinions on the quantum or worthiness of your monetary compensation in the form of compensatory damages;
3. Whether the opposing parties have conflicting information about you that may compromise your case if discovered; and
4. The personalities of the opposing parties involved.

Heads of Damages

Due to the fact that your severe and permanent accident-related injuries will adversely impact several aspects of your life, there are several heads, or types, of compensatory damages that you may claim. Heads of damages are the elements that comprise your compensation claim, which the Court awards a monetary amount towards, and these elements make up your total damages or the amount of compensation awarded to you as a lump sum.

Important Functionally Permanent Impairment

The second part of the three part test to determine if you meet the legislative threshold test to receive an award for general non-pecuniary damages, the Court will conduct an analysis that is both subjective and qualitative, which essentially asks whether your impaired function is one that is important to you, having regard to you as a whole.

Here are two other questions that are asked as part of the analysis:

1. Is the function necessary to perform the activities that are essential tasks of your regular or usual employment, considering reasonable efforts to accommodate you, and your reasonable efforts to use that accommodation?; and
2. Is the function necessary for you to provide for your care or well-being, or important to your usual activities of daily living, considering your age?

Each case will be as different as plaintiffs may enjoy different activities and interests, and may have different employment.

If the bodily function is important to you in particular, then that bodily function in question is an important one within the meaning of that expression contained in subsection 267.5(3).

In determining whether a function is important to your employment, it is necessary to consider your specific job. In determining whether a function is important to your activities of daily living, it is important to consider the specific activities that you engage in. So, again, the determination of whether the impairment in issue is “important” is a subjective analysis.

Your activities of daily living must be considered, which includes employment activities, household responsibilities, the ability to socialize with others, the ability to have intimate relationships, the ability to enjoy children, and the ability to engage in recreational pursuits.

Income Replacement Benefits

Concerning your Accident Benefits claim, sections 4 through to 11 of the SABS 34/10 set out the eligibility and entitlement to income replacement benefits (“IRBs”). IRBs are payable if an insured person was at least 16 years of age or more and employed or self-employed on the date of the motor vehicle accident, or worked at least 26 of the 52 weeks before the accident (or was receiving employment insurance at the time of the accident).

The disability test to be met is a substantial inability to perform the essential tasks of employment within 104 weeks of the accident. After 104 weeks, the test changes to a complete inability to engage in any employment for which you are reasonably suited by reason of education, training or experience.

The case entitled Lombardi v. State Farm Mutual Automobile Insurance Co., [2001] O.F.S.C.I.D. No. 55 (Ont. F.S.C.) (FSCO A99-000957, April 11, 2001), is the leading FSCO decision on the interpretation of the phrase “complete inability to engage in any employment”.

 

Prior to September 1, 2010, IRBs were payable at 80 percent of your net weekly income after a one week waiting period. After September 1, 2010, the calculation changed to 70 percent of your gross income after a one-week waiting period. After 104 weeks, the amount payable is the greater of your weekly income benefit or $185 per week. Unless optional increased benefits were purchased, the maximum payable to you is $400 per week. Section 8 of the SABS 34/10 provides a ramp down calculation after age 65.

If you return to work within 104 weeks and you’re unable to continue, entitlement should resume so long as you continue to meet the disability test.

Seventy percent of your post-accident income from employment or self-employment is deducted from the IRB weekly income.

Judgement: Judge-Alone Trial

After the closing addresses from the lawyers representing all of the parties in your tort action, in a judge-alone case, the presiding judge may make his or her decision at the end of the trial, or release his or her decision at a later time, which is known as “reserving judgment”. I can obtain a copy of the judge’s decision, which is set out in a judgment, Order or endorsement from the court office, upon paying a copy fee.

Judgement: Jury Trial Deliberation

If it’s a jury trial, then the judge addresses the law, but the jury addresses the facts. The judge will rule on the evidence, instruct the jury about the law, comment on the evidence, and decide whether there is sufficient evidence to be considered by the jury. The judge has a duty to determine whether any facts have been established by evidence from which negligence may reasonably be inferred, and the jury has a duty to determine whether, from those facts, upon being submitted to them, negligence should be inferred. After the presiding judge completes his or her duty to discharge the jury, they complete their duty and leave the court to deliberate until they reach a verdict.

Jury Notice

Your case will be heard by a judge alone unless I or one of the lawyers for the other parties specifically request a judge and jury to hear your civil litigation case. In order for this to happen, I or one of the lawyers for the other parties, will need to file a Jury Notice pursuant to Form 47A.

Lay Witnesses and Expert Witnesses

My witnesses whom I’ll call at trial on your behalf are of two kinds, which are “lay witnesses” and “expert witnesses”. A lay witness can essentially only testify on their direct knowledge of what they actually witnessed, and not on his or her opinion of anything. An expert witness on the other hand, is an individual who possesses special knowledge or skill in respect of a subject upon which he or she is called upon to testify, after swearing to be objective and providing testimony that serves the court in enhancing its understanding. Furthermore, after he or she is qualified as an expert witness through a qualification process in the court, he or she is then permitted to give opinion evidence, which is limited to his or her area of expertise, and is deemed to be necessary to furnish the court with such expertise that is likely outside the experience and knowledge of the presiding judge or jury.

Legislative Threshold

The legislative threshold constitutes what you have to prove in order to obtain a tort award in damages for non-pecuniary general damages further to Ontario’s Insurance Act, R.S.O. 1990, c. I.8.

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

1. A permanent and serious disfigurement; or
2. A permanent and serious impairment of an important physical, mental or psychological function.

Therefore, in order to obtain a tort award in damages for non-pecuniary general damages, you have to prove that as a direct result of the at-fault driver’s negligence, which caused the motor vehicle accident, you sustained a permanent and serious impairment of an important physical, mental and/or psychological function, or a permanent and serious disfigurement, as per sections 267.5(3)(a) and (b) of Ontario’s Insurance Act.

Statute of Limitation Period: Two Years

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”.

Statute of Limitation Period: The Ultimate Limitation Period

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.

Summons to Witness, Attendance Money and Affidavit of Service

After my opening address, I will then proceed to call my first witness on your behalf. As such, I will need to advise all of the witnesses that I wish to call, when they must attend court. If any of the witnesses I intend to call on your behalf are reluctant or unwilling to attend your trial, then I will make them do so by serving them with what is known as a Summons to Witness pursuant to Form 53A, along with their attendance money to cover their expenses, such as travel. I will then file an Affidavit of Service with the court, in order to prove that I served the witnesses with the summons and delivered their attendance money to them.

Loss of Competitive Advantage

Your claim for a loss of earning capacity and a loss of income can also be inclusive of a loss of competitive advantage and a loss of opportunity, such as a delayed graduation, where I’d lead evidence to prove that there is a reasonable possibility that your loss will occur.

Concerning a claim for an award for damages of a loss of competitive advantage, you’ll have to prove that due to your accident-related injuries and impairments, you’re no longer able to compete in the open marketplace with able-bodied and able-minded individuals, who don’t have accident-related injuries and impairments, but who have comparable qualifications or levels of skill, are capable of executing the tasks and duties required of the job, and may have additional certifications that you would’ve obtained “but for” your motor vehicle accident.

Loss of an Asset

Since your accident-related, diagnosed physical, psychological and/or cognitive/mental injuries and impairments have substantially interfered with your ability to carry out legitimate job functions, there will be positions or jobs that you will not be able to compete for in an open job market. Your inability to compete is the loss of an asset to you.  In other words, your inability to freely compete in the open job marketplace for the type of work you would have competed for “but for” your motor vehicle accident, is the asset that you have now lost.

Loss of Future Care Costs

If as a direct result of your motor vehicle accident you sustained serious and permanent injuries and impairments, or a serious and permanent disfigurement, which requires ongoing and future care, then you can claim an award for future care damages that project the costs to provide you care, which wouldn’t have been necessary “but for” the accident.

In theory your claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended to place you in the position you would have been in if you had not sustained your accident-related injuries and impairments. This, of course, corresponds with the fundamental purpose of tort law, which is best captured in the old Latin term “restitutio ad integrum” or “restitutio in integrum”, which, again, means “restoration to original condition”.

The Court will not conjecture upon how you will spend the amount awarded to you for your future costs of care, so this isn’t something that will adversely affect its consideration of the proper basis of compensation within a fault-based system. You are free to do with that sum of money for your future costs of care, as you like. Financial advice is readily available, plus you have the flexibility to plan your life and to plan for your particular contingencies.

When a Court is making a determination of your future damages for costs of future care, it’s essentially peering into the future and fixing damages for future care as best it can, once and for all at the time of your trial, subject to modification on appeal. In doing so, Courts will rely on the evidence that I lead on your behalf, as to what care is likely to be in your best interest. Then the Court calculates the present cost of providing that care to you, and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.

I retain an occupational therapist to complete a comprehensive future costs of care report, in order to assist us in providing such cogent evidence to your settlement conference or at your trial. I then retain a forensic accountant to calculate the present cost of providing you the care that the occupational therapist outlined that you’ll need in the future costs of care report.

The award for your future costs of care damages will reflect the reasonable or normal expectations of what you will require.

Loss of Future Expenses and Losses

You can also claim an award of damages for your ongoing or future expenses and losses, which will either continue or be incurred after the date of your settlement or your trial. I would retain a forensic accountant to calculate with reasonable precision your expected future losses or extraordinary costs that’ll likely occur throughout your lifetime as a direct result of your accident-related injuries and impairments. Further to the Court of Appeal for Onario, I only have to lead evidence to establish that there is a substantial possibility that your ongoing or future expenses and losses, and damages will occur.

Since your future damages will be paid to you as a lump sum at either your settlement or your trial, I will calculate on your behalf the present day value of your anticipated ongoing or future expenses and losses. ​​Further to Ontario’s R.R.O. 1990, Regulation 194: Rules of Civil Procedure, as I calculate the present day value for you, I have to use the “discount rate” noted in Rule 53.09(1) to determine the amount of an award in respect of your future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, which is:

3. for the 15-year period that follows the start of the trial, the greater of,

1. the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada’s Weekly Financial Statistics for the period starting on March 1 and ending on August 31 in the year before the year in which the trial begins, less ½ per cent and rounded to the nearest 1/10 per cent, and

1. zero; and

4. for any later period covered by your award, 2.5 per cent per year for each year in that period.

Your claim for future damages would be inclusive of, but not limited to, the following:

1. Your loss of earning capacity;
2. Your ongoing costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks and assistive devices;
3. Your future loss of housekeeping services;
4. Your future loss of pension income/contributions; and
5. Your future losses experienced by your family member following either your death or injury.

Further to section 267.8(1) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, even if you prove that you are entitled to an award of future damages for income loss and loss of earning capacity, subject to exceptions, the amount shall be reduced by the following amounts:

1. All payments in respect of the incident that you have received or that were available before the trial of the action for statutory accident benefits in respect of your income loss and loss of earning capacity;
2. All payments in respect of the incident that you have received or that were available to you before the trial of the action for income loss or loss of earning capacity, under the laws of any jurisdiction or under an income continuation benefit plan; and
3. All payments in respect of the incident that you have received before the trial of the action under a sick leave plan arising by reason of your occupation or employment.

Loss of Housekeeping Capacity

If you are unable to complete the work you usually did within your household as a direct result of your accident-related injuries and impairments, then you can claim an award of special damages for your loss of housekeeping capacity.

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services, and they are as follows:

1. Pre-trial housekeeping left undone;
2. Pre-trial housekeeping performed inefficiently; and
3. Pre-trial housekeeping undertaken by third parties.

Loss of Income and Earning Capacity

If as a direct result of your accident-related injuries and impairments you have lost the ability to function to earn income, then you can claim an award of special damages for your loss of earning capacity and your loss of future income. The special damages that I would seek on your behalf would reflect your loss of income either incurred to the date of trial or future losses. Your claim for loss of earning capacity can be made even if you weren’t working at the time of your motor vehicle accident, but I’ll have to lead evidence on your behalf that establishes you would have obtained employment “but for” your accident.

Loss of Pension Income

If you’re unable to work as a direct result of your accident-related injuries and impairments, then it is likely that you will lose the pension contributions that your employer would have made on your behalf had you continued to work. So, you can claim an award of special damages for the loss of your future pension income. I would retain an accountant to calculate the value of your lost pension income with reasonable precision, which would be inclusive of the amount of pension income you lost to the date of your trial. Lastly, if you received pension benefits, then generally they are not deducted from your damages award.

Medical and Rehabilitation Benefits

Concerning medical and rehabilitation benefits, it’s important to understand that there are 3 different injury classifications, tiers or levels that will 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.

Medical and rehabilitation benefits are available to you for reasonable and necessary expenses that have been incurred. This is a fact specific inquiry.

Medical and rehabilitation benefits encompass both treatment and assessment. On a practical level then, there needs to be a necessary connection in assessments, and the reasonableness requirement entails considering the goal of proposed assessments in the context of your impairments and benefits being pursued.

Medical benefits are integrated with rehabilitation benefits for the purposes of the SABS 34/10. The SABS 34/10 outlines what constitutes medical and rehabilitation benefits under sections 15 and 16, respectively. Medical benefits include, but are not limited to, the following: non-OHIP insured medical services, medication and prescription eyewear. Rehabilitation benefits focus on reintegrating you to the labour market and your activities of daily living, such as, but not limited to, the following: life skills and family or employment counselling, vocational or academic training and workplace or modifications.

Minor Injury Guideline Classification

Concerning your Accident Benefits claim, if it’s determined that as a result of your motor vehicle accident, you only sustained a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae, then you may qualify for medical and rehabilitation treatment under the Minor Injury Guideline classification. The healthcare provider you see will make that determination and then he or she will submit a Minor Injury Guideline Treatment Confirmation (OCF-23) form for your insurer’s review and consideration. Irrespective of your accident benefit limits or any optional increased benefits you have purchased under your automobile insurance policy, the maximum amount of $3,500 is payable for medical and rehabilitation benefits under the Minor Injury Guideline classification for minor injuries.

You can access, fill in online, and download in PDF format, the OCF-23 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1209E.5.pdf

Monetary Threshold for Family Law Act Damages

The monetary threshold is the amount of compensatory damages you have to be awarded for Family Law Act damages at trial for there not to be an automatic deduction.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $19,877.16 deductible from any award for Family Law Act general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $66,256.09.

So, for example, if you were awarded $65,000 for Family Law Act general non-pecuniary damages in 2021, then $19,877.16 would be deducted from your award, which would leave you with $45,122.84. However, if you were awarded $67,000 for Family Law Act general non-pecuniary damages in 2021, then the 2021 $19,877.16 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $66,256.09, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.

Monetary Threshold for General Non-Pecuniary Damages

The monetary threshold is the amount of compensatory damages you have to be awarded for general non-pecuniary damages at trial for there not to be an automatic deduction.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $39,754.31 deductible from any award for general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your award for same meets the 2021 monetary threshold of $132,513.28.

So, for example, if you were awarded $130,000 for general non-pecuniary damages in 2021, then $39,754.31 would be deducted from your award, which would leave you with $90,245.69. The $39,754.21 doesn’t go to anyone or anything, but is rather just deducted to reduce the total damage award. The high deductible is designed to discourage plaintiffs, who sustained less serious and non-permanent injuries, from proceeding with a tort lawsuit.

If, however, you were awarded $133,000 for general non-pecuniary damages in 2021, then the 2021 $39,754.31 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $132,513.28, and therefore, you would keep the total amount of the award.

Nervous Shock Damages

If you suffer a reasonably foreseeable, recognizable psychiatric illness either as a direct result of being involved in the motor vehicle accident or being at the scene to observe the accident or its aftermath – caused by the negligence of the at-fault driver –, then the Court may award damages to you for your psychological injuries.

However, in order for the psychological injury or nervous shock damages to be awarded to you, the law is clear that your psychological harm must be “serious trauma or illness” that amounts to more than “upset, disgust, anxiety, agitation or other mental states that fall short of injury” or that are “serious and prolonged and [rising] above the ordinary annoyances and fears that people living in society routinely, if sometimes reluctantly, accept”.

Non-Earner Benefits

Concerning your Accident Benefits claim, section 12 of the SABS 34/10 sets out the requirements for entitlement to non-earner benefits (“NEBs”), as follows:

1. You must suffer an impairment as a result of an accident; and
2. You must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

You must not qualify for an income replacement benefit. Alternatively, NEBs are payable if you were enrolled in educational pursuits on the date of your accident or within one year of the accident, and you meet the disability test.

Section 3(7)(a) of the SABS 34/10 defines “complete inability” to carry on a normal life if, and only if, as a result of the accident, you sustain an “impairment that continuously prevents the person from engaging in substantially all of the activities in which you ordinarily engaged before the accident”.

The phrase “substantially all” is not defined in the SABS 34/10. However, the Court of Appeal for Ontario in Galdamez v. Allstate Insurance Co. of Canada, [2012] O.J. No. 3394, at paragraph 39, held that “substantially all” does not mean “all”. It means more than most, but not all activities.

After September 1, 2010, NEBs were not payable before you turned 16 years of age. Effective June 1, 2016, the age requirement was raised to 18.

The waiting period also changed from 26 weeks to four weeks as of June 1, 2016. However, whereas you could receive NEBs up to age 65 prior to June 1, 2016, NEBs are now only payable for 104 weeks.

If you’re found eligible, NEBs are payable to you at the sum of $185 per week up to 104 weeks, and if your accident was prior to June 1, 2016, the amount would increase to $320 per week after 104 weeks, if you were enrolled as a full-time student at the time of your accident or had completed your education less than one year before the accident. After June 1, 2016, NEBs are only payable at the rate of $185 per week for a maximum of 104 weeks.

The leading case on NEBs is the Ontario Court of Appeal case entitled Health v. Economical Insurance Co. [2009] O.J. No. 1877 ONCA 391 (Ont. C.A.), which developed several principles on how the definition of “complete inability” should be interpreted for the purpose of determining eligibility for NEBs.

Non-Minor Injury or Non-Catastrophic Injury Classification

Concerning your Accident Benefits claim, if it is ultimately determined that your injuries are not minor or catastrophic, then all of your approved medical and rehabilitation treatment is subject to the non-minor injury or non-catastrophic injury classification limits, which in combination with attendant care benefits, is a maximum of $65,000, unless you have purchased any optional increased benefits under your automobile insurance policy. If it’s determined that your injuries fall within the non-minor injury or non-catastrophic injury classification, then your healthcare provider can submit a Treatment and Assessment Plan (OCF-18) form for your insurer’s review and consideration. Your insurer must approve your Treatment and Assessment Plan (OCF-18) form if it is determined to be reasonable and necessary, which means that following a contextual analysis, the following is determined:

1. The proposed assessment, and expenses or services are related to your accident-related injuries and impairments;
2. The identified rehabilitation goals will be achieved by the proposed assessment, and expenses or services;
3. The cost — financial and non-monetary — of the assessment, and expenses or services correlate with a high success rate of accomplishing the identified rehabilitation goals;
4. The expected degree of success of the assessment, and expenses or services is high and the progress will be closely monitored;
5. There aren’t any significant risks associated with the assessment, and expenses or services; and
6. Other assessments, and expenses or services would not be deemed to be better alternatives to achieve the identified rehabilitation goals.

You can access, fill in online, and download in PDF format, the OCF-18 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1207E.5.pdf

Non-Pecuniary Damages

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities.

Normal Expectancies’ Measure

The tort measure of compensatory damages may be described as the “normal expectancies’ measure”, a term which “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position” you “to the destination” you “would normally have reached … had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both you and the negligent at-fault driver. You receive damages for future losses, as best they can be ascertained. The negligent at-fault driver is required to compensate you for those losses. To award less than what may reasonably be expected to be required is to give you too little and unfairly advantage the negligent at-fault driver. To award more is to give you a windfall and require the negligent at-fault driver to pay more than is fair.

Notice of Action

If at any point I needed more time to file your Statement of Claim, then I’d simply file a Notice of Action pursuant to Form 14C, which will give us an additional 30 more days to file it pursuant to Form 14D.

Notice of Examination

In order to cross-examine an opposing party in your civil litigation case, I must serve a Notice of Examination pursuant to Form 34A, which tells them how to attend the examination for discovery by providing, but not limited to, the following information:

1. A time and place;
2. Telephone conference details; and
3. Video conference details;

Notice of Intent to Defend

In addition to filing and serving a Statement of Defence in response to the Statement of Claim I filed and served on them on your behalf, the defendants can also opt to serve and file a Notice of Intent to Defend pursuant to Form 18B, which will entitle them to 10 more days within which to file and serve their Statement of Defence.

Opening Address by Defence Counsel

After I call all of my lay and expert witnesses on your behalf at your trial, the lawyer representing the defendant will then have the option to make an opening address to the judge or jury, but he or she is not required to do so. The defence lawyer will then call his or her first witness, and conduct an examination-in-chief. I’ll then have the right to ask questions of the defence lawyer’s witness via cross-examination. The defence lawyer may have the right to re-examine. This process will repeat until the defence lawyer has called all of his or her lay witnesses and expert witnesses.

Opening Address by Plaintiff Counsel

Since, the burden of proof lies with you as the plaintiff to prove your case, I’ll commence the trial with an opening address to either the judge-alone or to a judge and jury, where, amongst other things, my objective is to inform the trier-of-fact of the salient facts. I’ll do this in order to provide the court with a broad general outline of your tort action to better enable them to follow the evidence that I will marshal forward by calling witnesses, and entering your documents or objects as exhibits.

The lawyer for the defendant won’t be called upon by the presiding judge to provide an opening address to the trier-of-fact, at least until he or she has heard my opening address, and likely not until he or she has had the opportunity to observe the examinations-in-chief and cross-examinations of all of the witnesses’ that I call to the stand to introduce evidence on your behalf.

Past Cost of Care Claims

Another aspect of special damages that you can claim as an award following a successful tort lawsuit, is the cost of caring for you as a direct result of your injuries and impairments up to the date of your trial. Unlike an accident benefits claim, your costs of care can include care provided by a family member, as well as by a professional service provider. These services are inclusive of, but not limited to, the provision of housekeeping assistance and attendant care, as well as the cost of medical and rehabilitation treatment. In order to accurately calculate your costs of care with reasonable precision, I will retain an occupational therapist to complete a comprehensive past and future costs of care expert report.

Lastly, your award of special damages for costs of care may also be inclusive of out-of-pocket expenses for assistive and rehabilitative devices recommended by your healthcare providers, such as, but not limited to, canes, crutches, rollators to assist you with walking, support railings, et cetera.

Past Expenses and Losses

You can also claim a monetary award for special damages for past expenses and losses caused by a direct result of the negligence of the at-fault driver, which manifest themselves prior to trial, and can therefore be calculated with accuracy and precision. Examples of special damages for past expenses and losses, include, but are not limited to, the following:

1. Your past loss of income;
2. Your past loss of earning capacity;
3. Your costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks, assistive devices;
4. Your loss of housekeeping capacity;
5. Your past loss of pension income/contributions; and
6. Your expenses incurred by your family members (spouse, children, grandchildren, parents, grandparents and/or siblings) to the date of trial following your death or injury.

Pecuniary Damages

Pecuniary damages are any damages that are theoretically capable of monetary quantification, such as income loss, and they are considered separately from general non-pecuniary damages.

Permanent Impairment

In order for your accident-related impairment to be considered permanent, your impairment must be continuous since the accident, and must, based upon medical evidence and you reasonably participating in recommended treatment of the impairment, not be expected to substantially improve. Your impairment must continue to meet the criteria of serious impairment and must be expected to continue without substantial improvement when sustained by persons in similar circumstances.

There is no requirement that there be objective findings to show your permanence. It is well established that chronic pain will meet the requirement of permanence for the purposes of the threshold. Nor is there a requirement to demonstrate that your injuries are perpetual. The requirement of a permanent injury is “met when a limitation in function is unlikely to improve for the indefinite future. A continuous impairment may not necessarily be the same as an “unbroken chain” of impairment.

The Courts have also decided that subjective complaints of pain, accounting for a diminishment in daily function unlikely to improve into the indefinite future, are also permanent for the purposes of the first question.

“Indefinite future” distinguishes injuries for which there is no predicted end limit (permanent) from injuries to which some future date of improvement may be predicted.

This definition is important because one of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

3. A permanent and serious disfigurement; or
4. A permanent and serious impairment of an important physical, mental or psychological function.

Pre-Trial Brief or Memorandum

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. The pre-trial brief or memorandum contains, but is not limited to, the following:

1. Confirmation of whether your tort action is proceeding with a jury or judge-alone without a jury;
2. Confirmation on things such as, but not limited to, the following:
   1. Pleadings are in order;
   2. Motions are complete;
   3. Documents and/or other productions are complete;
   4. Oral examinations are complete;
   5. Transcripts are available;
   6. Notices to admit and responses are complete;
   7. Expert reports have been exchanged; and
   8. Counsel attending for the party submitting the pre-trial brief is counsel with carriage of the file.
3. An overview of the following:
   1. Substantive issues;
   2. Evidentiary issues;
4. Legal considerations, such as, but not limited to, threshold considerations, deductible considerations, et cetera;
5. A discussion of the evidentiary basis for the compensatory damages that I’m seeking on your behalf, inclusive of, but not limited to, general non-pecuniary damages, pecuniary damages, costs of care damages, loss of housekeeping and home maintenance capacity damages, and special damages;
6. A discussion of relevant pre-accident and post-accident medical history; and
7. A discussion of the expert reports that we are relying on for trial and the current medical evidence.

Pre-Trial Conference

If your tort action has been set down for trial, then just before the actual trial date we must attend what is known as a pre-trial conference with a judge.

In order to schedule the pre-trial conference, I must contact the court registrar within 180 days of your civil litigation case being set down for trial. If I do not schedule it, then the court registrar will set the date for us.

Once the pre-trial conference is confirmed by the court, you and I must attend at the courthouse, including all of the other parties and their respective lawyers, before a trial can proceed. Typically, only the lawyers go into the conference room to meet with the pre-trial judge, and the parties remain outside and available to provide instructions to counsel in the event that settlement proposals are made and exchanged between the parties.

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.

Pre-Trial Housekeeping Left Undone

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the first scenario, you may leave some or all of your housekeeping undone. Where you are unable to perform some or all of your housekeeping tasks, and where a third party does not do the work in your stead, work will be left undone. In that situation, you will experience two sorts of intangible losses compensable in an award of non-pecuniary general damages. First, the modern law of damages recognizes your work, whether employment outside the home or housekeeping inside the home, provides a human being such as yourself with an important sense of purpose and contribution, the loss of which is a loss personal to you. Second, where work is left undone, you will be forced to live with the loss of the amenity of an orderly and functioning home.

In both cases, because the losses are intangible in nature, they are compensable within the award for non-pecuniary general damages. Your unpaid housekeeping left undone is often recognized only as a non-pecuniary loss on the basis that the only loss is the intangible one arising from the loss of the amenity of an orderly household and a loss of a sense of contribution. Your lost wages are clearly a pecuniary loss that is ascertainable at the time of trial. However, if you’re an unpaid homemaker, then you don’t suffer a loss of wages, but rather the loss of the benefit of having done the housekeeping, including the personal intangibles, such as the sense of purpose and contribution referred to above, as well as the loss of the amenity of an organized household.

Pre-Trial Housekeeping Performed Inefficiently

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the second scenario, you may perform some or all of your housekeeping functions, but with increased pain and decreased efficiency. You may continue to undertake your housekeeping, but you may experience pain or difficulty in doing so. You may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If you work inefficiently, then your non-pecuniary award would be increased to reflect your increased pain and suffering. To the extent that your inefficiency also results in a less clean and organized household, this is the loss of an amenity that the award for non-pecuniary damages would also take into account.

These aspects of your non-pecuniary award will be assessed in a manner similar to the assessment of non-pecuniary losses if you were faced with increased pain and suffering in performing your income-earning tasks. In determining the significance of the components of your loss, the Court will consider the evidence about your pre-accident and pre-trial housekeeping, the particulars of your increased pain and suffering and diminishment in housekeeping, and the impact of any reduction in the standard of housekeeping on you.

Pre-Trial Housekeeping Undertaken by Third Parties

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the third scenario, you may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of your housekeeping. Irrespective of which of the three scenarios is applicable, you will suffer losses arising from your inability to do work that you previously undertook within your household. The law is well established that where you incur a pre-trial out-of-pocket loss by hiring a replacement homemaker, you may claim the reasonable replacement cost of that homemaker as special damages. Similarly, if I lead evidence on your behalf that you agreed or were otherwise obliged to compensate a third party for housekeeping services rendered pre-trial, then you may claim that amount as special damages.

Furthermore, unlike an accident benefits claim, you can also seek compensation for the gratuitous work done by your family members, but you must either “plead or lead sufficient evidence to support such a claim” where for example, your family members or friends provide housekeeping services for you as a result of your injuries and impairments during the pre-trial period. Courts have recognized that even though your family members can freely choose to spend their lives looking after infirm members of their family, they are not expected to do so on a gratuitous basis.

The Principle of Finality

If your action in tort is successful at trial, then the Court will award you damages in a lump sum, in order to ensure finality or a clean break between you and the at-fault driver. In doing so, it will compensate you for your past loss, as well as provide you compensation for your losses anticipated in the future.

Private Mediation/Settlement Conference

A private mediation/settlement conference 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.

Probability and Contingencies: Future Events

However, when the Court is assessing damages, which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court will make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even in the amount of damages which it awards.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.

Punitive Damages

Punitive damages, which are rooted in an independent actionable wrong committed by the defendant, are not designed to compensate you. Rather, the specific purpose of punitive damages is to punish the tortfeasor or negligent at-fault driver and deter future tortfeasors. A Court may award you punitive damages if the negligent at-fault driver’s conduct was malicious, reprehensible, oppressive or high-handed.

You may be awarded punitive damages if you are successful in your tort lawsuit.

Ranges of Damage Awards

When the Court is making a determination of the award for damages to award you in a trial, it oftentimes refers to precedents, or monetary awards made in factually similar cases to yours.

Generally speaking, the more serious and permanent your impairment is, and the greater impact on your ability to function in your overall daily life and/or employment, the more you can expect a higher monetary award for damages.

As the Court is assessing the appropriate award for the non-pecuniary general damages to be awarded to you following a successful tort action, it will consider the following relevant, non-exhaustive factors:

1. Your age;
2. The nature of your injury;
3. The severity and duration of your pain;
4. Your disability;
5. Your emotional suffering;
6. The impairment of your family dynamics, marital and social relationships;
7. The impairment of your physical and mental abilities;
8. Your loss of lifestyle; and
9. Your stoicism, which shouldn’t penalize you unfairly.

Rehabilitation and Medical Benefits

Concerning medical and rehabilitation benefits, it’s important to understand that there are 3 different injury classifications, tiers or levels that will 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.

Medical and rehabilitation benefits are available to you for reasonable and necessary expenses that have been incurred. This is a fact specific inquiry.

Medical and rehabilitation benefits encompass both treatment and assessment. On a practical level then, there needs to be a necessary connection in assessments, and the reasonableness requirement entails considering the goal of proposed assessments in the context of your impairments and benefits being pursued.

Medical benefits are integrated with rehabilitation benefits for the purposes of the SABS 34/10. The SABS 34/10 outlines what constitutes medical and rehabilitation benefits under sections 15 and 16, respectively. Medical benefits include, but are not limited to, the following: non-OHIP insured medical services, medication and prescription eyewear. Rehabilitation benefits focus on reintegrating you to the labour market and your activities of daily living, such as, but not limited to, the following: life skills and family or employment counselling, vocational or academic training and workplace or modifications.

Re-Examination

After the opposing lawyer representing the defendant finishes his cross examination of our first witness at your trial, then I may proceed with a re-examination of our witness if I can satisfy a two-fold test, which is as follows:

1. My questions must arise out of the other’s lawyer’s cross-examination with the intention to clarify, explain or place in context, any answers that were ambiguous, reasonably require explanation, or were taken out of context; and
2. New material is not permitted in my re-examination, unless it is new material that arose for the first time in the other lawyer’s cross-examination.

I am not allowed to conduct my re-examination with leading questions, just as I am not permitted to do so during my examination-in-chief.

After either the other lawyer’s cross-examination or my re-examination (if necessary), I’ll then proceed to call my next witness on your behalf, and repeat this aforementioned process until all of our lay witnesses and expert witnesses are called.

Restitutio in Integrum or Restitutio ad Integrum

The fundamental purpose of damage awards is to place you in the position you would have been (no better or worse), “but for” the at-fault driver’s negligence. This fundamental, primary guiding principle in tort law behind the awarding of damages in personal injury law cases is captured in the Latin term “restitutio ad integrum” or “restitutio in integrum”, which means “restoration to original condition”.

Retainer Contingency Fee Agreement

A retainer contingency fee agreement is a contractual agreement between you and my law firm, 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.

In addition to my retainer contingency fee agreement incorporating more than two dozen required clauses further to the Solicitors Act, R.S.O. 1990, c.S.15, Contingency Fee Agreements, O. Reg. 195/04, it will also clearly articulate, but not limited to, the following:

1. Confirm in writing that my law firm has been retained by you;
2. Confirm that we’ll be representing solely you, or if you and another person such as a family member who was alo injured in the accident, are agreeable to me representing both of you, then I’d articulate to you both the principle of undivided loyalty, as well as conflicts of interest that may arise with the joint representation;
3. Articulate the legal services that I will provide you as I represent you in relation to your injuries and impairments sustained in your accident;
4. Articulate what legal services I won’t be providing you;
5. Articulate my obligations to you as I represent you in your tort action;
6. Articulate the compensatory damages that I expect to obtain for you either through a settlement with the other party or from a judge following a successful trial;
7. Articulate the approximate time we expect your lawsuit will take to settle or go to trial;
8. Articulate your role as a client in being honest with me, and giving me all the facts and information I need, as well providing me authorization to get from third parties all of the pertinent information relevant to your legal matter;
9. Articulate to you my legal fee, expenses, and billing arrangements;
10. Articulate the percentage I’ll be charging you from the amount of money awarded to you in a settlement or court judgment following a successful trial;
11. Provide a clear example of our contingency fee calculation;
12. Confirm that I’ll seek a sum of money from the Defendant called “costs”, and unless ordered otherwise by a judge, you’ll be entitled to receive any costs awarded in a settlement or court judgment following a successful trial;
13. Confirm that you agree to pay all disbursements, even if I can’t settle your claim or lose at trial;
14. Confirm that you agree to pay any Harmonized Sales Tax that I must charge you;
15. Explain how my contingency fee is calculated and paid, if your tort claim for compensatory damages are paid out by way of a structured settlement;
16. Explain what happens in the event our relationship ends either by you or by me;
17. Explain what happens if you are a minor or a person under disability;
18. Articulate my privacy policy in respect to using or sharing any confidential information you share with my law firm;
19. Articulating that I can’t guarantee success, even though I’ll fight tireless to obtain a successful outcome for you; and
20. Articulate the consequences of signing the contract and confirming that it contains the whole agreement between us.

Serving the Defendant

Once your Statement of Claim is filed with the courthouse, it will stamp and date it. Then we have six months to personally provide a copy of the Statement of Claim to each of the named defendants to whom we’re suing and to whom we made specific allegations of negligence against, which is known as “serving the defendant”. If we were suing the provincial government, then we’d have to serve the Statement of Claim on the Ministers of the Crown, including the Attorney General of Ontario.

 

Setting the Action Down for Trial

 

After the examinations for discovery are completed and the undertakings are satisfied, the next step is to ask for a trial date, which is known as “setting the action down for trial”. Even if I intend on booking a private mediation/settlement conference to discuss the possible settlement of your file, I still like to strategically set the matter down for trial. I do this because it creates a sense of urgency for the other party to act, as they intuitively know if they don’t they’ll be investing a lot of time and money in preparing for a risky trial that has a fixed date in the future.

 

 

 

 

 

Settlement Brief

Regardless of what kind of private mediation/settlement conference we select, there is always an exchange of comprehensive settlement briefs, which present the settlement offer, and outline the theory of the case, and the evidence that will be relied upon at trial to justify the award of compensatory damages that’s being sought. I will draft on your behalf a comprehensive settlement proposal, which includes, but is not limited to, the following:

1. A justifiable full and final, all-in settlement proposal at the high-end of the range based on precedents set in factually similar cases, plus a breakdown of the settlement by the various heads of damages;
2. My theory of the case;
   1. A discussion on the liability issue;
   2. A discussion of your immediate post-injury complaints and care;
   3. An outline of all of your injuries sustained from head-to-toe;
   4. An explanation of your hospitalization and treatment, and medical visits from the accident to the present time;
   5. An exploration of your pain, suffering and loss of enjoyment of life connected with each of your injuries cumulatively;
   6. A discussion of the interference with your normal activities of daily living;
   7. An exploration of your past income loss, and future career plans and anticipated income;
   8. An exploration of your past care costs, and future care needs or desires and costing;
   9. A discussion of the interference with your family relationships; and
   10. An exploration of your special damages;
3. A detailed discussion of the liability issue, inclusive of the accident dynamics and the law surrounding liability in motor vehicle accidents;
4. The law surrounding the legislative threshold test in tort actions;
5. A comprehensive review of all of the relevant medical evidence, inclusive of your pre-existing injuries, previous motor vehicle accidents, your non-tortious injuries after your motor vehicle accident, and your accident-related injuries and impairments, articulated in all of your clinical notes and records laid out in chronological order;
6. A discussion of any causation issue, and a review of the law pertaining to dealing with causation issues in tort actions;
7. An outline of your employment capacity, inclusive of a summary of your work history;
8. An outline of your education, certifications, and qualifications;
9. A comprehensive, comparative analysis of your activities of daily living both prior to and after your motor vehicle accident, inclusive of your:
   1. Self-care activities;
   2. Household care activities;
   3. Employment, school, training, and/or recreational activities;
   4. Shopping activities and your ability to manage your money;
   5. Travel activities; and
   6. Communication capabilities.
10. A discussion of the evidence supporting your claim for general non-pecuniary damages, inclusive of a comparative analysis with at least two other factually similar cases to yours, which I’ll vind via extensive legal research;
11. A discussion of the evidence supporting your claim for pecuniary damages, inclusive of post economic loss, future economic loss, loss of earning capacity, and a loss of competitive advantage in the workforce;
12. A discussion of the evidence supporting your claim for costs of care, inclusive of both past and future costs of care;
13. A discussion of the evidence supporting your claim for loss of housekeeping and home maintenance capacity, inclusive of a comprehensive review and comparative analysis with the leading case from the Court of Appeal for Ontario; and
14. A discussion of the evidence supporting your claim for special damages and out-of-pocket expenses to date.

 

Settlement Conference

A private mediation/settlement conference 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.

Special Damages

Special damages are those damages that have manifested themselves prior to your trial and are therefore capable of precise calculation. Examples of special damages are, but not limited to, the following: hospital bills, lost wages, payment for housekeeping assistance, physician fees, et cetera.

Specific Contingencies vs. General Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

The law has recognized that contingencies can be placed into two categories as follows:

3. General contingencies, which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness, et cetera; and
4. Specific contingencies, which are peculiar to you, e.g., a particularly marketable skill or a poor work record.

General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may adjust an award for your future pecuniary loss to give effect to general contingencies, but where the adjustment is premised only on general contingencies, it will be modest.

If you rely on a specific contingency, positive or negative, then you must be able to point to evidence, which supports an allowance for that contingency. The evidence will not prove that your potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of your contingency is a realistic, as opposed to a speculative, possibility.

Serious Impairment

A “serious impairment” is one that substantially interferes with your ability to function,

which meets the criteria set forth in section 4.2(1) of Ontario Regulations 381/03, Court Proceedings for Automobile Accidents that Occur on or After November 1st, 1996, under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as amended by Ontario Regulation 381/03.

Therefore, a serious impairment is an impairment caused as a direct result of a motor vehicle accident that satisfied at least one of the three following things:

1. Your accident-related impairments substantially interfere with your ability to continue your regular or usual employment at your full-time or part-time job, despite reasonable efforts to accommodate your impairments and your reasonable efforts to use the accommodation to allow yourself to continue employment;
2. Your accident-related impairments substantially interfere with your ability to continue training for a career in a field in which you were being trained before the incident, despite reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow yourself to continue your career training; and/or
3. Your accident-related impairments substantially interfere with your ability to continue in most of the usual activities of daily living, considering your age.

This definition is important because one of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

5. A permanent and serious disfigurement; or
6. A permanent and serious impairment of an important physical, mental or psychological function.

You also have to prove that your accident-related impairments are an important function to you, because the function is:

1. Necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow you to continue employment;
2. Necessary for you to provide for your own care or well-being; and/or
3. Important to your activities of daily living, considering your age.

Also, you have to prove that your accident-related impairments:

1. Have been continuous since the incident, and based on the medical evidence and subject to you reasonably participating in the recommended treatment of the impairments, are expected not to substantially improve, as you’re still suffering from it since the motor vehicle accident; and
2. Are of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Statement of Claim

Your Statement of Claim is an “originating process”, which means that it’s the document that commences your tort action or lawsuit. A Statement of Claim concerning your tort action for personal injuries and impairments, would explain, but not limited to, the following:

1. The specific heads of damages you’re claiming and the amount of monetary compensation you’re seeking;
2. Who you are, in terms of being the injured plaintiff;
3. A description of any of your family members claiming damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (if applicable);
4. A description of the defendant or defendants who you are suing;
5. A description of your motor vehicle accident and the accident dynamics;
6. The specific allegations of negligence you’re making against each of the aforementioned defendant or defendants;
7. A description of your personal injuries and impairments sustained as a direct result of the defendant’s negligence, which caused the subject motor vehicle accident;
8. A description of your family members loss of care, guidance and companionship, and other losses for which compensatory damages can be claimed under the Family Law Act, R.S.O. 1990, c. F.3;
9. The statutes which contain specific provisions that you’re relying on in proving the allegations made in the Statement of Claim; and
10. The location, or the city in Ontario, where you propose the tort action should be tried in, if it cannot be resolved by a settlement and therefore must proceed to trial.

Statement of Defence

The defendants named in your Statement of Claim, who have been personally served with it, will prepare a legal document called a Statement of Defence pursuant to Form 18A, which will deny all allegations in your Statement of Claim unless otherwise admitted. They will then serve it on everyone else named in the legal matter, including me on your behalf. The defendants will also complete an Affidavit of Service pursuant to Form 16B for each named party in the legal proceedings, and file their Statement of Defence with the same courthouse that I filed your Statement of Claim on your behalf.

Status Hearing

If for whatever reason I cannot set your tort action down for trial within five years of the start date, then I will take action to either:

1. Bring a motion for a status hearing any time before the five year or two year deadline, if the parties don’t consent to a timetable, in order to ask for a court Order allowing the action to move forward; or

2. Obtain the consent of all the parties and draft a timetable, filed with the court at least 30 days before the five year or two year deadline, which shows the court:
   1. The steps to complete before your tort action can be set down for trial or restored to the trial list;
   2. The date(s) the steps need to be completed by;
   3. A date the action must be set down for trial or placed back on the trial list, provided it is not more than seven years after your claim.

Summons to Witness, Attendance Money and Affidavit of Service

After my opening address, I will then proceed to call my first witness on your behalf. As such, I will need to advise all of the witnesses that I wish to call, when they must attend court. If any of the witnesses I intend to call on your behalf are reluctant or unwilling to attend your trial, then I will make them do so by serving them with what is known as a Summons to Witness pursuant to Form 53A, along with their attendance money to cover their expenses, such as travel. I will then file an Affidavit of Service with the court, in order to prove that I served the witnesses with the summons and delivered their attendance money to them.

Testifying Under Oath

Prior to the commencement of your examination for discovery, you’ll have the option to swear on a Holy bible to tell the truth, or make an affirmation to tell the truth if you are not catholic. Once you start testifying under oath, as your lawyer, I am not permitted to discuss your case or the evidence with you. However, I can communicate with you on the record, which is inclusive of advice as to whether to answer a question. I can also object to questions that I find objectionable, and then state my reasons for not allowing you to answer the question, on the record.

Theory of the Case

The theory of the case is 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. The theory of your case that I develop is the basic overriding theme, which captures in a few words the justice of the position I’m taking on your behalf. It’s the message I want to deliver for you that’s comprised of mixed fact and law, which I want the trier-of-fact to accept at your trial, and ultimately identify with and grant judgment in your favour with the damage awards I’m seeking for you, at the conclusion of your civil litigation case.

Thin Skull Rule vs. Crumbling Skull Rule

The balance of compensatory fairness between you and the negligent at-fault driver, is also expressed in these two legal principles and rules: (1) the “thin skull” rule; and (2) the “crumbling skull” rule. Further to the “thin skull” rule, the negligent at-fault driver is liable for your accident-related injuries and impairments, even if they are unexpectedly severe owing to a pre-existing condition. So, the negligent at-fault driver must take you, the victim, as he or she  finds you, and is therefore liable even though your losses are more dramatic than they would be for the average person.

However, it’s balanced out by the “crumbling skull” rule, which recognizes that your pre-existing condition was inherent in your “original position”. Therefore, the negligent at-fault driver need not put you in a position better than your original position. The negligent at-fault driver is liable for the injuries caused, even if they are extreme, but need not compensate you for any debilitating effects of your pre-existing condition, which you would have experienced anyway. The negligent at-fault driver is liable for the additional damage, but not the pre-existing damage.

Third Party Claim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Third Party Liability Coverage

In Ontario, we have a standard auto insurance policy called Ontario Automobile Policy Owner’s Policy, or OAP 1, which makes it mandatory for all owners of vehicles to purchase third-party liability coverage to protect them if someone else is killed or injured, or their property is damaged. Therefore, if the defendants I’m suing on your behalf have purchased this mandatory liability insurance coverage, then it will pay for claims as a result of our successful tort lawsuit against them up to the limit of their coverage. It will also pay the costs of settling your claims against them.

By law, owners of vehicles in Ontario must carry a minimum of $200,000 in third-party liability coverage, but options exist to increase the minimum amount; typically to $1 million. So, the defendants typically advise their insurance company of the Statement of Claim that they’ve been personally served with, and then their insurance company retains a law firm to prepare the Statement of Defence and defend the tort action.

Three-Part Test of the Legislative Threshold

The Courts have adopted a three-part test to determine whether you meet the legislative threshold test, as established by the Court of Appeal for Ontario case entitled Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), and later in Ahmed v. Challenger, [2000] O.J. No. 4188 (S.C.J.), at paragraph 17.

In determining whether you have met the aforementioned legislative threshold, the court will answer the following three questions sequentially:

1. Have you sustained a permanent impairment of a physical, mental, or psychological function?
2. If yes, then is your function, which is permanently impaired, an important one?
3. If yes, then is the impairment of your important bodily function serious?

The Three Weekly Disability Benefits

Concerning your Accident Benefits claim, if you sustained injuries as a direct result of your motor vehicle accident, then you may be eligible to receive one of the following three weekly disability benefits, as follows:

1. Income replacement benefits;
2. Non-earner benefits; and
3. Caregiver benefits.

Once your insurer receives your Application for Accident Benefits (OCF-1) form, they will make a preliminary determination about whether any of these weekly disability benefits apply to you, but they don’t have the last word on it, as you can appeal their decision to the Licence Appeal Tribunal if you disagree.

You can access, fill in online, and download in PDF format, the OCF-1 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1224E.5.pdf

 

 

Time Limits for Service

If the defendants wish to defend the legal proceedings that I have commenced on your behalf against them, then the defendants or an Ontario lawyer acting for them must prepare the legal document called a Statement of Defence, serve it on us and the other parties, and file it with proof of service within the following time limits:

1. 20 days after the Statement of Claim is served on them, if they were served in Ontario;
2. 40 days, if the defendants were served in another province or territory of Canada or in the United States of America; and
3. 60 days, if the defendants were served outside of Canada and the United States of America.

Tort

A tort is a civil wrong that causes you to suffer loss or harm, resulting in legal liability for the person who commited the tortious act against you.

Tort Action or Lawsuit

A tort action or lawsuit is the initiation of the legal proceedings to pursue an award of damages against the person or persons, who committed the tortious act or civil wrong against you, which caused you to suffer loss or harm, in order to indemnify you.

Traditional Lump Sum Approach vs. Annualized Income Loss Approach

When a Court quantifies your loss of competitive advantage, they’ll look at how your ability to compete for employment is impaired. There are two popular methods that have been adopted, which are the traditional lump sum approach without a specific regard to your calculated income loss and the annualized income loss approach, where the award represents your annual income loss to an expected retirement date. The present value of the latter approach produces a higher amount, whereas the ballpark figure using the former approach produces a lower amount.

The Trial

If we can’t resolve your tort action at a private mediation/settlement conference or at the pre-trial conference, then we proceed to trial. A trial 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.

The Trial Record

In order to set your tort action down for trial, 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.

Furthermore, if your tort action is defended, meaning the defendant wasn’t noted in default for not filing a Statement of Defence, then I will set your tort action down for trial by doing, but not limited to, the following:

1. Serving your trial record on the other parties;
2. Filing your trial record with the court with proof of service; and
3. Paying any court filing fees.

If, however, your tort action was undefended, then further to Rule 19 of the Rules of Civil Procedure, .R.O. 1990, Reg. 194, I’ll set your tort action down for trial by filing your trial record with the court, in order to go to trial to obtain a default judgment, after trying other ways of getting the default judgment prior to trial, but to no avail.

The Trier-of-Fact

Your trial may be adjudicated by either of the following triers-of-fact:

1. A judge alone without a jury; or
2. A judge and a jury comprised of six jury members in a civil trial.

Undertakings

During the course of your examination for discovery, the opposing lawyer will ask for what is known as “undertakings”, which are formal requests to provide additional information or records not included in your Affidavit of Documents, but that are relevant to the issues in dispute in your tort action. If what the other lawyer is asking for is relevant, then I will agree to provide it. If I want time to consider the relevance of the request, then I will take it under advisement. If it is not relevant, then I will refuse to provide it and state my reasons on the record.

After the examination for discovery, I’ll commence the process of sending out request letters along with your signed Authorization and Direction forms to third parties (i.e. family doctor, employer, treatment providers, Canada Revenue Agency, et cetera), in order to satisfy the outstanding undertakings as soon as possible, which can take up to three months, depending on the documents that are being requested.

Upper Limits on Family Law Act Damages

The Family Law Act awards in damages for general non-pecuniary damages are not subject to the upper limit caps established by the Supreme Court of Canada’s 1978 trilogy cases. However, the Court of Appeal for Ontario, in the case Fiddler v. Chiavetti, 2010 ONCA 210, endorsed their decision in To et al. v. Toronto Board of Education et al., 2011 CanLii 11304 (ONCA), of the assessment of $100,000 in 1992 for each of the parents of the deceased, which was deemed to be at the high end of an accepted range for loss of guidance, care and companionship damages. The Court of Appeal for Ontario concluded that the $100,000 high end had to be adjusted to $125,000 in January 2005 dollars, in order to correspond with the increase in the consumer price index.

Therefore, in order to ascertain what the high end range for non-pecuniary general damages is in current dollars, you simply have to figure out the cost in current dollars to buy a “basket” of goods and services that costs $100,000 in 1992 dollars, which factors in the rate of inflation.

Upper Limits on General Non-Pecuniary Damages

In Canada, there is an upper limit or maximum amount that could be awarded to you in a tort lawsuit for general damages or non-pecuniary damages. In 1978, a trilogy of cases involving catastrophically injured youths, were heard by the Supreme Court of Canada, which resulted in them setting a limit on monetary awards for non-pecuniary general damages at $100,000. However, this limit has increased since then in accordance with the rate of inflation, and as of October 2021 it is $409,972.

Affidavit of Documents

An Affidavit of Documents includes a sworn statement from you confirming that you have conducted a diligent search of all your records and made appropriate enquiries of others to inform yourself, in order to ensure that your affidavit discloses, to the full extent of your knowledge, information and belief, all documents relevant to any matter in issue in your tort action, which are or have been in your possession, control or power. It can include, but are not limited to, the following documents: videotapes or film, photographs, sound recordings, charts, graphs, maps, plans or surveys, books of account, data and information in electronic form (i.e. emails), et cetera.

The Affidavit of Documents contains three different “schedules” as follows:

1. Schedule “A”, where I’ll list those documents that are in your possession, control or power, and that we don’t object to producing for inspection;
2. Schedule “B”, where I’ll list those documents that are or were in your possession, control or power, and that we object to producing because we claim they are privileged, and where I have stated the grounds for each such claim (i.e. litigation privilege, solicitor-client privilege, et cetera); and
3. Schedule “C”, where I’ll list those documents that were formerly in your possession, control or power, but are no longer in your possession, control or power, and where I have stated when and how you lost possession or control of, or power over them, and their present location.

If we later find new relevant documents after I served your Affidavit of Documents to the other parties, then we must disclose them by serving a supplementary Affidavit pursuant to Form 4D.

I can ask to inspect a document in the other party’s possession, but they can also ask to inspect your documents too.

If we require a document from a non-party, but they are unwilling to produce it to us for inspection, then I will bring a motion in the courthouse to obtain an endorsed Order by a judge, which compels them to produce it to us under Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Affidavit of Service

Once I personally serve your Statement of Claim on all of the named defendants, I will ensure that an Affidavit of Service pursuant to Form 16B is completed for each defendant and subsequently filed with the court. It’s a legal document also known as a Proof of Service, which serves as proof that the defendant(s) received a legal document – your Statement of Claim – from us.

Aggravated Damages

Aggravated damages, which are rooted in an independent actionable wrong committed by the defendant, are designed to compensate you specifically where the reprehensible or outrageous conduct on the part of the at-fault negligent driver causes you a loss of dignity, humiliation, additional psychological injury or harm to your feelings.

You may be awarded aggravated damages if you are successful in your tort lawsuit.

Annualized Income Loss Approach vs. Traditional Lump Sum Approach

When a Court quantifies your loss of competitive advantage, they’ll look at how your ability to compete for employment is impaired. There are two popular methods that have been adopted, which are the traditional lump sum approach without a specific regard to your calculated income loss and the annualized income loss approach, where the award represents your annual income loss to an expected retirement date. The present value of the latter approach produces a higher amount, whereas the ballpark figure using the former approach produces a lower amount.

Appealing a Judgment at Trial

If we disagree with the judgment due to an error in law and/or an error in fact, then we can appeal the decision to the Court of Appeal for Ontario. The Supreme Court of Canada in the case entitled Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577, articulated the standard of review for errors of law, fact and mixed questions, as follows:

…Where the question is one of pure law, the standard is correctness. The standard of review for findings of fact is one of palpable and overriding error – a palpable error being one that is plainly seen. A question of mixed fact and law involves the application of a legal standard to a set of facts. The Supreme Court held that where the issue is negligence, deference is owed unless there is a legal or palpable and overriding error. Thus, in negligence cases, the standard of view for questions of mixed fact and law is one of palpable and overriding error, unless the trial judge made some error in principle, in which case the error may amount to an error of law which is subject to correctness.

The very last appeal that we can make is to the highest court in the country, which is the Supreme Court of Canada.

Appealing an Insurer’s Determination to the Licence Appeal Tribunal

Concerning your Accident Benefits claim, if your claim for statutory accident benefits under the SABS 34/10 is partially approved, reduced or denied by your insurer, then further to Ontario’s Insurance Act, R.S.O. 1990, c. I.8, you have the legal right to dispute your insurer’s determination. You can appeal your insurer’s decision by filing an application with the Licence Appeal Tribunal (“LAT”) — Automobile Accident Benefits Service (“AABS”) within 2 years of the date of the partial approval, reduction or denial. If you don’t appeal the partial approval, reduction or denial of your claim within the two year time limit, you will lose your right to dispute your insurer’s determination.

In order to appeal or apply to the LAT, you must complete the appropriate forms or provide the necessary details in writing. In order to specifically file an application to the LAT — Automobile AABS, you have to do the following 4 steps:

1. You first complete an Notice of Appeal — AABS Application by an Injured Person (“AABS Application”) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the AABS’s website at this URL link: https://tribunalsontario.ca/documents/lat/02027E_Notice-of-Appeal_Liquor-Licence-Act-Gambling-Control-Act.pdf
2. You serve your insurer with your AABS Application form by sending your insurer a copy;
3. You complete an AABS Certificate of Service form, in order to explain how you served, or sent, a copy of your AABS Application form to your insurer; and
   1. It can be accessed, filled in online and downloaded in PDF format from the AABS’s website at this URL link: https://tribunalsontario.ca/lat/general-service/forms/
4. You submit your completed AABS Application and Certificate of Service form to AABS, and then pay the AABS application fee.

All of the AABS forms, including the aforementioned AABS Application form and the AABS Certificate of Service form, can be downloaded and printed to be filled in by hand, as well filled in online on your computer or mobile device. All of the AABS forms can be accessed from the AABS’s website at the following URL link:

• https://tribunalsontario.ca/lat/general-service/forms/

You should provide reasons for your appeal or application and the result or action you are seeking. Also, in order to avoid delays in processing your appeal or application, you should provide the following:

1. Your full name, address, email address and telephone number, if you have chosen to represent yourself; or
2. Your legal counsel or agent’s full name, address, email address, telephone and fax numbers, if you have chosen to have legal counsel or an agent to represent you; and
3. A copy of the decision, proposal or order being appealed.

Your appeals and applications can be sent to the LAT by mail or email.

Lastly, if you want more information on filing an appeal or application, then visit the following URL link:

• https://tribunalsontario.ca/lat/general-service/appeals-applications/

Application for Accident Benefits Package

In order to kickstart your Accident Benefits Claim, your claims adjuster will send you via regular mail, an Application for Accident Benefits Package, which will provide you with information in regards to benefits that you may receive under the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (“SABS 34/10”), under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as a result of injuries you sustained in your motor vehicle accident.

You’ll find enclosed in the the Application for Accident Benefits Package, OCF forms that are mandatory to complete, which are the following:

1. An Application for Accident Benefits (OCF-1) form;
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1224E.5.pdf

2. An Employer’s Confirmation of Income (OCF-2) form; and
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1003E.1.pdf

3. A Disability Certificate (OCF-3) form.
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1226E.1.pdf

You’ll also find enclosed in the package, OCF forms that are not mandatory to complete, but rather may be completed, which are, but not limited to, the following:

1. A Permission to Disclose Health Information (OCF-5) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1225E.pdf

2. An Application for Expenses (OCF-6) form;
   1. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1227E.pdf

3. A Treatment and Assessment Plan (OCF-18) form; and
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1207E.5.pdf

4. A Minor Injury Guideline Treatment Confirmation (OCF-23) form.
   5. It can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s Website at this URL link: http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1209E.5.pdf

All OCF forms can be accessed, filled in online and downloaded in PDF format from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

https://www.fsrao.ca/industry/auto-insurance-sector/auto-insurance-claims-forms-ocf-forms

Application for Expenses or Expenses Claim (OCF-6) Form

Concerning your Accident Benefits claim, in order to submit your additional incurred expenses to your insurer to be reimbursed, you must record and submit them using an Application for Expenses or Expenses Claim (OCF-6) form.

You can access, fill in online and download in PDF format, the OCF-6 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1227E.pdf

Attendant Care Benefits

Concerning your Accident Benefits claim, if as a result of the injuries you sustained in your motor vehicle accident, you are no longer able to take care of yourself, then you may be eligible for attendant care benefits. If so, then further to section 42(1) of the SABS 34/10, your insurer will require you to submit an application for attendant care benefits to them using An Assessment of Attendant Care Needs (Form 1) form, which, ever since September 1, 2010, must be completed by either a registered nurse or an occupational therapist. Your insurer will deduct the costs that’s associated with completing the Form 1 from the medical and rehabilitation benefits limits that’s available to you in your automobile insurance policy. Lastly, if it’s determined that your injuries fall within the Minor Injury Guideline classification, then you won’t be eligible for the attendant care benefit, as it’s only available to you if you fall within either the non-minor injury or non-catastrophic injury classification, or the catastrophic injury/impairment classification.

You can access, fill in online, and download in PDF format, the Form 1 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1223E.1.pdf

Attendant care benefits under s. 19 of the SABS 34/10, pay for reasonable and necessary expenses for your self-care. Such benefits are available if you are not in the Minor Injury Guideline classification, and can show that you are substantially unable to engage in self-care tasks, such as, but not limited to, dressing, grooming, feeding, mobility, laundry, hygiene, or you require supervisor care.

Authorizations and Directions

It is imperative that we have access to all of the pertinent information from third parties that are relevant to the legal issues in dispute in your civil litigation case, in order to start a successful tort lawsuit on your behalf. So, I’ll have you sign Authorization and Direction forms, shortly after you sign the retainer contingency fee agreement.

Once you sign these forms, 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. This includes all relevant information that I may request on your behalf from time-to-time regarding the status of your file, pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.

Balance of Probabilities

The balance of probabilities is the civil standard of proof, which articulates your burden of proof as putting forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages. By contrast the criminal standard of proof is beyond a reasonable double, which is greater burden of proof.

Burden of Proof

A burden of proof is the legal duty placed on you as the plaintiff must put forth enough substantive evidence to support your claims for damages and the compensatory damages you’re seeking for them. The civil standard of proof in a tort action is that of a balance of probabilities, where the burden of proof is to put forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages, but your burden of proof is not as high as a criminal charge, where the criminal law standard of proof is beyond a reasonable doubt.

Burden of Proof for Future Damages

A burden of proof is the legal duty placed on you as the plaintiff must put forth enough substantive evidence to support your claims for damages and the compensatory damages you’re seeking for them.

When a Court is considering the proper award for future damages, it may cover not only all of your injuries and impairments suffered, and disabilities proved as of the date of your trial, but also the risk or likely future developments attributable to your injuries and impairments. The civil standard of proof in a tort action is that of a balance of probabilities, where the burden of proof is to put forth enough substantial evidence to prove that it is more likely than not – 50% +1 – that the defendant’s negligence caused your damages. However, further to the Supreme Court of Canada, you’re “not required to prove on a balance of probabilities, the probability of future damage, but rather you may be compensated, if” you “prove in accordance with the degree of proof required in civil matters, that there is a possibility or a danger of some adverse future development”.

Caregiver Benefits

Concerning your Accident Benefits claim, prior to September 1, 2010, caregiver benefits (“CGBs”) were available to non-catastrophic claimants. After 2010, if no option was purchased, these benefits are only available if you are found to be catastrophically impaired.

Under section 13 of the SABS 34/10, in order for you to be found eligible for CGBs, you must live with a person in need of care and be the primary caregiver for the person in need of care, and not receive any payment for caregiving activities. The SABS 34/10 defines a “person in need of care” as one who is under 16 years of age or who requires care because of physical or mental incapacity.

The disability test is outlined in section 13(1) — you must suffer a substantial inability to engage in the caregiving activities in which you were engaged in at the time of your motor vehicle accident for the first 104 weeks. After 104 weeks, the test becomes stricter and is the same as that for NEBs — a complete inability to carry on a normal life.

There is no waiting period for CGBs. So, if you’re eligible, you receive $250 per week for the first person in need of care and $50 per week for each additional person in need of care. This amount is reduced as your children turn 16 and are no longer in need of care.

If you elect IRBs or NEBs, and later you’re found to be catastrophically impaired, then section 35(2) allows you to re-elect to the CGB. Elections are otherwise considered final.

Catastrophic Injury/Impairment Classification

Concerning your Accident Benefits claim, if you or your healthcare provider thinks that your accident-related injuries satisfy the legislative criteria of a catastrophic impairment, which is set out in section 3.1(1) of the SABS 34/10, then you’ll have to get your healthcare provider or treating specialist to submit an Application for Determination of Catastrophic Impairment (OCF-19) form to your insurer. It’s of the utmost importance that you select the right healthcare provider or treating specialist, in that the nature of your accident-related injuries falls within the scope of practice of the healthcare provider or treating specialist. So, for example, accident-related traumatic brain injuries fall within the scope of practice of a neurologist, who “deals with the diagnosis and treatment of all categories of conditions and disease involving the central and peripheral nervous systems (and their subdivisions, the autonomic and somatic nervous systems), including their coverings, blood vessels, and all effector tissue, such as muscle” — Wikipedia definition.

You can access, fill in online, and download in PDF format, the OCF-19 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1331E.pdf

If on the basis of this Application, your insurer concludes that your injuries are deemed to satisfy the criteria for a catastrophic impairment, then your insurer will designate you as catastrophically impaired. Then you’ll transition to the catastrophic injury/impairment classification, where your applicable accident benefit policy limits would increase to at least $1 million, unless you have purchased any optional increased benefits under your automobile insurance policy. Furthermore, the catastrophic impairment designation will grant you access to the highest tier of accident benefits, thereby entitling you to request extended medical rehabilitation and attendant care benefits, and other expenses. Your insurer may request a section 44 insurer’s medical examination, where they’ll retain a physician to assess you for the purpose of determining whether or not you should be designated as catastrophically impaired. If their physician determines that you’re not catastrophically impaired, then your lawyer can retain a physician to assess you and complete a rebuttal medico-legal report, and proceed to appeal the insurer’s determination to the Licence Appeal Tribunal.

Certainty and Causation: Past Events

Your past events, which comprise your special damages, must be proven, and once proven they are treated as certainties. In your tort action, the Court will declare whether the at-fault driver was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct of the at-fault driver either was or was not a cause of your injuries and impairments. The Court will decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty.

The role of the Court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.

Chronic Pain

Chronic pain has been recognized as pain that persists beyond the normal healing time after a tissue injury, and it adversely affects the function and well-being of an individual.

It continues for more than the normal recovery period, despite appropriate therapy and reasonable accommodations. Usually pain is regarded as chronic when it lasts or recurs for more than 3 to 6 months.

It is ongoing pain lasting longer than 6 months as diagnostic, or 3 months as the minimum criterion. In contrast to acute pain that arises suddenly in response to a specific injury and is usually treatable, chronic pain is often resistant to medical treatments and lacks the acute warning physiological function.

Chronic pain is a condition that is very complex and multifactorial in origin. It substantially interferes with all daily activities of the individual. Chronic pain is also associated with psychological problems, such as anxiety, depression, and sleep disturbances, which may further increase the severity of the existing pain experience. The feasible sources of chronic musculoskeletal pain can be simultaneously associated with multiple sources, such as muscles, tendons, ligaments, intervertebral discs, facet joints, articular cartilage, periosteum, peripheral nerves, neural pathways, and involvement of the nerve roots at the levels of the cervical, thoracic and lumbar spine.

The evidence-based recommendations support a multimodal, multidisciplinary or interdisciplinary approach for patients who suffer from chronic pain.

Musculoskeletal pain is pain that affects the bones, muscles, ligaments and tendons. Musculoskeletal pain can result from various causes including sports or occupational injuries, motor vehicle collisions, repetitive strain injuries and disease processes, such as arthritis.

Neuropathic pain is a complex, multi-faceted state of chronic pain that may have no obvious cause. It can involve damaged tissue, injury or malfunctioning nerve fibers or changes in brain processing. An example of neuropathic pain is phantom limb syndrome. The brain still receives signals from nerves that originally carried impulses from the now missing limb. Other types of neuropathic pain include numbness, burning, “pins and needles” sensations and shooting pain.

Closing Addresses

After all of the witnesses have been called by all of the lawyers representing the parties to your tort action, we then proceed to the closing addresses to the judge or jury. As the plaintiff, you have the right to address the jury last where both parties adduced evidence, and as such, I’ll address the judge or jury last so our theory of the case and the final argument is the last thing they hear. As a general rule concerning the boundaries of the closing address, I’m permitted to address the jury by making submissions that fairly arose directly or indirectly from the evidence that was adduced throughout the course of your trial, so long as my submissions do not tend to sway the jury away from deciding your civil litigation case upon the evidence and the law. Even though I’m granted wide latitude in the manner in which I deliver my closing address by comparison to the opening address, such as an impassioned address on your behalf that stirs up the passion in them, there are limits. For example, if I make impassioned submissions that draw the jury away from their task of deciding your civil litigation case on the evidence, then the presiding judge would deem that to be improper, and the opposing counsel will surely raise objections in court.

Collateral Benefits

Concerning your tort action, further to the Court of Appeal for Ontario case entitled Bannon v. McNeely, [1998] O.J. No. 1673 (“apples should be deducted from apples, and oranges from oranges”), and the Supreme Court of Canada case entitled Gurniak v. Nordquist, [2003] 2 S.C.R. 652 (“deductions to be fruit from fruit”), the rule against double recovery, codified by s. 267.8 of the Insurance Act, mandates the deduction of collateral benefits from damages awarded to a plaintiff for losses arising directly or indirectly from the use or operation of an automobile.

Examples of collateral benefits, which set-off or are deductible from the award for damages from your tort action, are as follows: Accident Benefits; Ontario Works or Social Assistance benefits, formerly known as Welfare benefits; Canadian Pension Plan Disability benefits; and s

Short and Long-Term Disability Insurance benefits.

Examples of collateral benefits, which are not deductible from the award for damages from your tort action, are as follows: Employment Insurance benefits; Ontario Disability Support Program benefits; and Workplace Safety and Insurance Board benefits.

Compensatory Damages

However, compensatory damages is easily the most common damage award, especially in personal injury law cases, where you are seeking compensation for losses already incurred in the past and anticipated in the future.

Consent Timetable

If for whatever reason I cannot set your tort action down for trial within five years of the start date, then I will take action to either:

1. Obtain the consent of all the parties and draft a timetable, filed with the court at least 30 days before the five year or two year deadline, which shows the court:
   1. The steps to complete before your tort action can be set down for trial or restored to the trial list;
   2. The date(s) the steps need to be completed by;
   3. A date the action must be set down for trial or placed back on the trial list, provided it is not more than seven years after your claim; or

2. Bring a motion for a status hearing any time before the five year or two year deadline, if the parties don’t consent to a timetable, in order to ask for a court Order allowing the action to move forward.

Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

As the Court is ascertaining the appropriate value to assign to your future damage, since it doesn’t have a crystal ball to gaze into the future to know what your future life would’ve been like “but for” the motor vehicle accident, it will factor in things such as, but not limited to, your projected level of earnings, the length of your working life, and positive and negative contingencies, which might affect your future earnings.

Further to the Court of Appeal for Ontario, even if I lead evidence that establishes your risk of future pecuniary loss, this doesn’t mean that you are necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of your risk established. The greater the risk of loss, the greater will be your compensation. The measure of compensation for your future economic loss will also depend on the possibility, if any, that you would have suffered some or all of your projected losses even if the wrong done to you had not occurred. The greater this possibility, the lower the award for your future pecuniary loss.

The Supreme Court Canada described the contemporary Canadian approach to taking into account contingencies, which might affect your future earnings, such as, but not limited to,  business depression, early retirement, illness, promotion, time off work due to pregnancy for women, unemployment, et cetera.

There are, however, a number of qualifications which the Court will make in your case.

1. First, these aforementioned contingencies implicitly are already contained in an assessment of the projected average level of your earnings, so the Court assumes that this figure is a projection with respect to the real world of work, vicissitudes and all.
2. Second, not all contingencies are adverse, as the above list examples would appear to indicate. So the Court will also factor in your rewards of fortune too.
3. Finally, the Court will also factor in the many public and private schemes in modern society, which cushion you against adverse contingencies.

Ultimately, the percentage deduction which is proper will depend on the unique facts of your case, particularly the nature of your occupation.

So, the Court will recognize, and give effect to, your contingencies, good or bad, which may reasonably be foreseen. The court will attempt to evaluate the probability of the occurrence of the stated contingencies, which are relevant to the unique facts of your case.

Contributory Negligence

Contributory negligence is the degree to which your own negligent behaviour or conduct contributes to your own damages or losses.

Your rights to damages is subject to any apportionment of damages due to your contributory negligence, which would reduce the overall total amount awarded to you in damages. So for example, if you were awarded $100,000 in total damages, but you were found to be 25% contributorily negligent, then your total damages would be reduced by 25% ($25,000) down to $75,000.

You can be found to be contributorily negligent, if for example, you weren’t wearing your seatbelt during the accident. The underlying rationale is that you essentially contributed to the severity of your accident-related injuries and impairments, because if you wore your seatbelt as you are required to do by law, then it is likely that your injuries and impairments wouldn’t have been as severe.

Counterclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Crossclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Cross-Examination

After I finish my examination-in-chief of the first witness at your trial, then the opposing lawyer representing the defendant, will be able to exercise his or her right to ask questions of the same witness via a technique known as “cross-examination”, subject to some limitations, where the lawyer is allowed to use leading questions that suggest the desired answer of the lawyer, in order to, amongst other things, determine whether the witness is credible by testing the veracity and accuracy of his or her story.

During an effective cross-examination the questions of the lawyer should primarily elicit “yes” and “no” responses.

The six objectives of cross-examination are, but not limited to, the following:

1. Destroy the evidence of the witness directly;
2. Destroy the evidence of the witness indirectly by attacking his or her credibility;
3. Elicit helpful admissions on the facts;
4. Set the mood or theme of the cross-examiner’s case;
5. Establish the defence; and
6. Destroy the evidence of other witnesses.

Adair Q.C., Geoffrey D.E., On Trial. Second Edition, LexisNexis Canada Inc., 2004.

Crumbling Skull Rule vs. Thin Skull Rule

The balance of compensatory fairness between you and the negligent at-fault driver, is also expressed in these two legal principles and rules: (1) the “crumbling skull” rule; and (2) the “thin skull” rule. The “crumbling skull” rule recognizes that your pre-existing condition was inherent in your “original position”. Therefore, the negligent at-fault driver need not put you in a position better than your original position. The negligent at-fault driver is liable for the injuries caused, even if they are extreme, but need not compensate you for any debilitating effects of your pre-existing condition, which you would have experienced anyway. The negligent at-fault driver is liable for the additional damage, but not the pre-existing damage.

However, it’s balanced out by the “thin skull” rule, where the negligent at-fault driver is liable for your accident-related injuries and impairments, even if they are unexpectedly severe owing to a pre-existing condition. So, the negligent at-fault driver must take you, the victim, as he or she  finds you, and is therefore liable even though your losses are more dramatic than they would be for the average person.

Damages

Another word for “damages” is monetary compensation. In tort law, we classify damage awards in accordance with the specific purpose that they are intended to serve, which are (1) compensation; (2) punishment; and/or (3) vindication.

The fundamental purpose of damage awards is to place you in the position you would have been (no better or worse), “but for” the at-fault driver’s negligence. This fundamental, primary guiding principle in tort law behind the awarding of damages in personal injury law cases is captured in the Latin term “restitutio ad integrum” or “restitutio in integrum”, which means “restoration to original condition”.

Deductible on Family Law Act General Non-Pecuniary Damages

The deductible is the amount of money automatically deducted from the amount of compensatory damages awarded to you for Family Law Act general non-pecuniary damages at trial, if that award doesn’t surpass a monetary threshold.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act general non-pecuniary  damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $19,877.16 deductible from any award for Family Law Act general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $66,256.09.

So, for example, if you were awarded $65,000 for Family Law Act general non-pecuniary damages in 2021, then $19,877.16 would be deducted from your award, which would leave you with $45,122.84. However, if you were awarded $67,000 for Family Law Act general non-pecuniary damages in 2021, then the 2021 $19,877.16 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $66,256.09, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.

Deductible on General Non-Pecuniary Damages

The deductible is the amount of money automatically deducted from the amount of compensatory damages awarded to you for general non-pecuniary damages at trial, if that award doesn’t surpass a monetary threshold.

Even if you meet the aforementioned legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $39,754.31 deductible from any award for general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your award for same meets the 2021 monetary threshold of $132,513.28.

So, for example, if you were awarded $130,000 for general non-pecuniary damages in 2021, then $39,754.31 would be deducted from your award, which would leave you with $90,245.69. The $39,754.21 doesn’t go to anyone or anything, but is rather just deducted to reduce the total damage award. The high deductible is designed to discourage plaintiffs, who sustained less serious and non-permanent injuries, from proceeding with a tort lawsuit.

If, however, you were awarded $133,000 for general non-pecuniary damages in 2021, then the 2021 $39,754.31 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $132,513.28, and therefore, you would keep the total amount of the award.

Deductible on Past Economic Loss

Concerning motor vehicle accidents, further to section 267.5(1)2i, (1)2ii, (1)3i and (1)3ii of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, any award for pecuniary damages in the form of either income loss or a loss of earning capacity, between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario, in addition to a legislative deductible of non-pecuniary general damages if the legislative monetary threshold is not met, there is also a legislative deductible for a past economic loss tort award too.

So, for example, if you were awarded $100,000 gross, in damages for your past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, you would receive the full amount awarded to you for your future loss of income and earning capacity without any deductions.

Deductible on Family Law Act Past Economic Loss

Further to section 267.5(1) of Ontario’s Insurance Act, any award to your spouse, children, grandchildren, parents, grandparents and/or siblings for an award in damages for past loss of income and earning capacity between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income loss for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario there is a legislative deductible for a past economic loss tort award in a Family Law Act claim.

So, for example, if your spouse, children, grandchildren, parents, grandparents and/or siblings were awarded $100,000 gross, in damages for past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, they would receive the full amount awarded to them for future loss of income and earning capacity without any deductions.

Default Judgment

If the defendants fail to defend the legal proceeding that I have commenced on your behalf against them, then a default judgment may be given against them in their absence and without further notice to them. The court will assume that the defendants have admitted to the claims made against them and I’ll be able to ask the court to order them to pay your claim for compensatory damages; however, I’d still have to present evidence to the court and prove that you’re entitled to the award of damages you seek. Lastly, the default judgment can be enforced against the defendants’ property and assets.

Defence to the Counterclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Defence to the Crossclaim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Defence to the Third-Party Claim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Direct Examination or Examination-in-Chief

As I call my first witness and all of the witnesses that I’m calling on your behalf at your trial I ask questions via a technique known as “direct examination” or “examination-in-chief”, where I adduce the relevant and admissible evidence that they possess, which touch upon the matters in issue that I desire to bring to the attention of the court. The rules governing the direct examination or examination-in-chief are as follows:

1. My questions must be phrased in such a specific and unambiguous way that they may be expected to elicit relevant, material and admissible evidence to reach the trier-of-fact; and
2. Subject to the discretion of the presiding judge, leading questions – questions that suggest the desired answer to the witness – on material issues are not permitted in both direct examination and re-examination.

During an effective examination-in-chief, I won’t dominate the scene, but rather find a balance between guiding the discussion to emphasize crucial evidence while simultaneously proceeding in an unobtrusive manner, where my more open-ended questions allow the trier-of-fact to focus on our witnesses’ testimony without interference.

The Disability Certificate (OCF-3) Form

Concerning your Accident Benefits claim, if you want to claim any of the aforementioned weekly disability benefits, then your insurer will require you to complete the mandatory Disability Certificate (OCF-3) form. You fill in Part 1 through to 3 of the OCF-3 form, and then give it to your healthcare provider — chiropractor, dentist, nurse practitioner, occupational therapist, optometrist, physician, physiotherapist, psychologist, speech language pathologist, et cetera. Only an authorized healthcare provider can complete the OCF-3 form.

After your healthcare provider has explained your accident-related injury to you, answered your questions, and addressed your concerns, then you print your name, sign your signature, and include the date that you signed it, in Part 4 of the OCF-3 form. Your healthcare provider will complete the rest of the OCF-3 form from Part 5 through to 10, based on his or her most recent assessment of you, and then submit it to your insurer on your behalf. Again, it’s of the utmost importance that you select the right healthcare provider or treating specialist, in that the nature of your accident-related injuries falls within the scope of practice of the healthcare provider or treating specialist. So, for example, accident-related mental and behavioral psychological disorders fall within the scope of practice of a psychiatrist, or a psychologist, who “practices psychology and studies normal and abnormal mental states, perceptual, cognitive, emotional, and social processes and behaviour by experimenting with, and observing, interpreting, and recording how individuals relate to one another and their environments” — Wikipedia definition. Furthermore, once you identify the right healthcare provider or treating specialist to complete Part 5 through to 10 of the OCF-3 form, it is essential that he or she takes his or her time and completes the OCF-3 form carefully and accurately, following a thorough, comprehensive assessment, because his or her medical opinion will be relied upon by people who review the disability certificate to make important decisions concerning your eligibility to weekly disability benefits, as well as medical and rehabilitation benefits.

You can access, fill in online, and download in PDF format, the OCF-3 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1226E.1.pdf

Discount Rate

​​Further to Ontario’s R.R.O. 1990, Regulation 194: Rules of Civil Procedure, as I calculate the present day value for a future loss of income claim for you, I have to use the “discount rate” noted in Rule 53.09(1) to determine the amount of an award in respect of your future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, which is:

1. for the 15-year period that follows the start of the trial, the greater of,

1. the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada’s Weekly Financial Statistics for the period starting on March 1 and ending on August 31 in the year before the year in which the trial begins, less ½ per cent and rounded to the nearest 1/10 per cent, and

1. zero; and

2. for any later period covered by your award, 2.5 per cent per year for each year in that period.

The Discoverability Doctrine

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”.

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.

Discovery

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

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

The primary purpose of the discovery process is to enable both the plaintiff and the defendant to better understand the case that they have to meet via the exchange of pertinent information and documentation (document discovery) combined with cross-examination or asking the other party specific questions while being recorded (examination for discovery) that’s relevant to the issues in dispute in your tort action or lawsuit.

Some of the benefits to you that come with proceeding with the mandatory discovery process are, but not limited to, the following:

1. Assess the strengths and weaknesses of the other parties’ case before I prepare for trial;
2. Narrow the issues for the trial I’ll conduct on your behalf (if necessary); and
3. Potentially reach a favourable and equitable settlement prior to going to trial.

The Discovery Plan

Prior to the commencement of the discovery process, I must agree with the other parties on a discovery plan within 60 days of the close of pleadings (i.e. after the time expires for me to produce a reply to the Statement of Defence), unless we mutually agree to a longer period of time.

Further to Rule 29.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the discovery plan must include, but are not limited to, the following:

1. The types of documents you and I, and the other parties are going to provide to each other;
2. The dates by which you and I, and the other parties will each serve your Affidavit of Documents pursuant to Form 30A or 30B;
3. Information about the timing, costs and the way in which the documents will be produced;
4. The names of each person being examined in the discovery, and information about the timing and length of the examinations; and
5. Any other information to ensure a quick and cost-effective discovery process.

As I prepare the discovery plan, I must consider the Sedona Canada Principles addressing electronic discovery.

 

Dismissal of Your Action

It’s essential to set your tort action down for trial because the court can, and will, dismiss your action, if, but not limited to, the following:

1. Your tort action is not set down for trial or settled within five years of the start date, unless the court ordered otherwise; and
2. Your tort action was taken off the trial list and not put back on the list within two years, unless the court ordered otherwise;

The court will not provide us with any notice that your action is being dismissed, as we’ll only receive an Order Dismissing Action for Delay pursuant to Form 48D.

Documentary Discovery

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 most essential document in regards to document discovery is what is known as the Affidavit of Documents.

Double Recovery

Concerning your tort action, further to the Court of Appeal for Ontario case entitled Bannon v. McNeely, [1998] O.J. No. 1673 (“apples should be deducted from apples, and oranges from oranges”), and the Supreme Court of Canada case entitled Gurniak v. Nordquist, [2003] 2 S.C.R. 652 (“deductions to be fruit from fruit”), the rule against double recovery, codified by s. 267.8 of the Insurance Act, mandates the deduction of collateral benefits from damages awarded to a plaintiff for losses arising directly or indirectly from the use or operation of an automobile.

Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) Form

Concerning your Accident Benefits claim, if more than one of the three weekly disability benefits applies to you, then you’ll have to elect one of them by submitting an Election of Income Replacement, Non-Earner or Caregiver Benefit

(OCF-10) form.

You can access, fill in online, and download in PDF format the OCF-10 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1228E.pdf

The Employer’s Confirmation of Income (OCF-2) Form

Concerning your Accident Benefits claim, if you were employed at the time of your motor vehicle accident and you want to claim Income Replacement Benefits, then you have to submit the mandatory Employer’s Confirmation of Income (OCF-2) form. You fill in Part 1 through to 3, and then give the OCF-2 form to your employer, or former employer(s), to complete the rest, from Part 4 through to 8. If you listed more than one employer on your Application for Accident Benefits (OCF-1) form, then make sure each employer fills out a separate OCF-2 form.

If you need another OCF-2 form, then you can either acquire another one from your insurer, or fill it in online, or download it in PDF format and print the OCF-2 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1003E.1.pdf

Examination for Discovery

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 determination of which questions are deemed relevant at your examination for discovery is ultimately shaped by what we plead or claim in your Statement of Claim. Therefore, if an issue emerges from what is pleaded in the paragraphs of your Statement of Claim, then the other lawyer can ask you about it at your examination for discovery.

The examination for discovery typically takes place inside a boardroom type-setting at an official examiner’s office so that it can be recorded. This enables us to ask to have it transcribed so we have a written record of what was said at the examination for discovery. You can be examined by the other party or parties for up to seven hours, which applies regardless of whether you and the Family Law Act claimants are also being cross-examined. However, most examinations for discoveries don’t last that long. Alternatively, we can agree to different time limits.

In addition to the lawyers and the person being cross-examined, being present in the room, there is also a court reporter whose job it is to transcribe everything that’s said on-the-record, in order to produce a transcript. Transcription allows me to order a copy of the transcripts directly from the court reporter, which typically costs approximately $5 to $7 per page, depending on how quickly I want a copy of the transcript.

Prior to the commencement of your examination for discovery, you’ll have the option to swear on a Holy bible to tell the truth, or make an affirmation to tell the truth if you are not catholic. Once you start testifying under oath, as your lawyer, I am not permitted to discuss your case or the evidence with you. However, I can communicate with you on the record, which is inclusive of advice as to whether to answer a question. I can also object to questions that I find objectionable, and then state my reasons for not allowing you to answer the question, on the record.

Examination-in-Chief or Direct Examination

As I call my first witness and all of the witnesses that I’m calling on your behalf at your trial, I ask questions via a technique known as “direct examination” or “examination-in-chief”, where I adduce the relevant and admissible evidence that they possess, which touch upon the matters in issue that I desire to bring to the attention of the court. The rules governing the direct examination or examination-in-chief are as follows:

1. My questions must be phrased in such a specific and unambiguous way that they may be expected to elicit relevant, material and admissible evidence to reach the trier-of-fact; and
2. Subject to the discretion of the presiding judge, leading questions – questions that suggest the desired answer to the witness – on material issues are not permitted in both direct examination and re-examination.

During an effective examination-in-chief, I won’t dominate the scene, but rather find a balance between guiding the discussion to emphasize crucial evidence while simultaneously proceeding in an unobtrusive manner, where my more open-ended questions allow the trier-of-fact to focus on our witnesses’ testimony without interference.

Expert Witnesses and Lay Witness

My witnesses whom I’ll call at trial on your behalf are of two kinds, which are “lay witnesses” and “expert witnesses”. A lay witness can essentially only testify on their direct knowledge of what they actually witnessed, and not on his or her opinion of anything. An expert witness on the other hand, is an individual who possesses special knowledge or skill in respect of a subject upon which he or she is called upon to testify, after swearing to be objective and providing testimony that serves the court in enhancing its understanding. Furthermore, after he or she is qualified as an expert witness through a qualification process in the court, he or she is then permitted to give opinion evidence, which is limited to his or her area of expertise, and is deemed to be necessary to furnish the court with such expertise that is likely outside the experience and knowledge of the presiding judge or jury.

Family Law Act Claim

If you were to sadly die from a motor vehicle accident caused by the negligence of the at-fault driver, then your estate cannot claim for an award in damages for your untimely loss, from a successful tort lawsuit. However, if you died, or sustained a serious and permanent impairment, or a serious and permanent disfigurement, then your spouse, children, grandchildren, parents, grandparents and/or siblings may claim for an award of damages further to section 61 of the Family Law Act, R.S.O. 1990, c. F.3.

The award in damages that they could claim further to section 61(2) of the Family Law Act, are as follows:

1. Actual expenses reasonably incurred for the benefit of either your injury or death;
2. Actual funeral expenses reasonably incurred;
3. A reasonable allowance for travel expenses actually incurred in visiting you during your treatment or recovery;
4. Where, as a result of your injury, your spouse, children, grandchildren, parents, grandparents and/or siblings provided nursing, housekeeping or other services for you, a reasonable allowance for loss of income or the value of the services; and
5. An amount to compensate for the loss of guidance, care and companionship that your spouse, children, grandchildren, parents, grandparents and/or siblings might reasonably have expected to receive from you if your injury or death had not occurred.

General Contingencies vs. Specific Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

The law has recognized that contingencies can be placed into two categories as follows:

1. General contingencies, which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness, et cetera; and
2. Specific contingencies, which are peculiar to you, e.g., a particularly marketable skill or a poor work record.

General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may adjust an award for your future pecuniary loss to give effect to general contingencies, but where the adjustment is premised only on general contingencies, it will be modest.

If you rely on a specific contingency, positive or negative, then you must be able to point to evidence, which supports an allowance for that contingency. The evidence will not prove that your potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of your contingency is a realistic, as opposed to a speculative, possibility.

General Non-Pecuniary Damages

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities.

Global Mediation

A global mediation is where I consolidate more than one of your legal proceedings, such as your accident benefits claim against your first-party insurer, your long-term disability claim against your second-party insurer, and your tort lawsuit against the negligent at-fault driver and his or her third-party insurer, into a single private mediation/settlement conference. If we proceed with a global mediation, then I’ll factor in the possibility that some of your compensatory damages may be set off against other damage awards. For example, your accident benefits claim for income replacement benefits and medical/rehabilitation benefits, will be set off against your tort claim for pecuniary damages and costs of care damages, respectively.

 

Some things I always consider when advising you on whether we should proceed with a global mediation include, but are not limited to, the following:

1. The status of your respective legal proceedings, and whether they are simultaneously ripe for mediation;
2. Whether the opposing parties have differing opinions on the quantum or worthiness of your monetary compensation in the form of compensatory damages;
3. Whether the opposing parties have conflicting information about you that may compromise your case if discovered; and
4. The personalities of the opposing parties involved.

Heads of Damages

Due to the fact that your severe and permanent accident-related injuries will adversely impact several aspects of your life, there are several heads, or types, of compensatory damages that you may claim. Heads of damages are the elements that comprise your compensation claim, which the Court awards a monetary amount towards, and these elements make up your total damages or the amount of compensation awarded to you as a lump sum.

Important Functionally Permanent Impairment

The second part of the three part test to determine if you meet the legislative threshold test to receive an award for general non-pecuniary damages, the Court will conduct an analysis that is both subjective and qualitative, which essentially asks whether your impaired function is one that is important to you, having regard to you as a whole.

Here are two other questions that are asked as part of the analysis:

1. Is the function necessary to perform the activities that are essential tasks of your regular or usual employment, considering reasonable efforts to accommodate you, and your reasonable efforts to use that accommodation?; and
2. Is the function necessary for you to provide for your care or well-being, or important to your usual activities of daily living, considering your age?

Each case will be as different as plaintiffs may enjoy different activities and interests, and may have different employment.

If the bodily function is important to you in particular, then that bodily function in question is an important one within the meaning of that expression contained in subsection 267.5(3).

In determining whether a function is important to your employment, it is necessary to consider your specific job. In determining whether a function is important to your activities of daily living, it is important to consider the specific activities that you engage in. So, again, the determination of whether the impairment in issue is “important” is a subjective analysis.

Your activities of daily living must be considered, which includes employment activities, household responsibilities, the ability to socialize with others, the ability to have intimate relationships, the ability to enjoy children, and the ability to engage in recreational pursuits.

Income Replacement Benefits

Concerning your Accident Benefits claim, sections 4 through to 11 of the SABS 34/10 set out the eligibility and entitlement to income replacement benefits (“IRBs”). IRBs are payable if an insured person was at least 16 years of age or more and employed or self-employed on the date of the motor vehicle accident, or worked at least 26 of the 52 weeks before the accident (or was receiving employment insurance at the time of the accident).

The disability test to be met is a substantial inability to perform the essential tasks of employment within 104 weeks of the accident. After 104 weeks, the test changes to a complete inability to engage in any employment for which you are reasonably suited by reason of education, training or experience.

The case entitled Lombardi v. State Farm Mutual Automobile Insurance Co., [2001] O.F.S.C.I.D. No. 55 (Ont. F.S.C.) (FSCO A99-000957, April 11, 2001), is the leading FSCO decision on the interpretation of the phrase “complete inability to engage in any employment”.

 

Prior to September 1, 2010, IRBs were payable at 80 percent of your net weekly income after a one week waiting period. After September 1, 2010, the calculation changed to 70 percent of your gross income after a one-week waiting period. After 104 weeks, the amount payable is the greater of your weekly income benefit or $185 per week. Unless optional increased benefits were purchased, the maximum payable to you is $400 per week. Section 8 of the SABS 34/10 provides a ramp down calculation after age 65.

If you return to work within 104 weeks and you’re unable to continue, entitlement should resume so long as you continue to meet the disability test.

Seventy percent of your post-accident income from employment or self-employment is deducted from the IRB weekly income.

Judgement: Judge-Alone Trial

After the closing addresses from the lawyers representing all of the parties in your tort action, in a judge-alone case, the presiding judge may make his or her decision at the end of the trial, or release his or her decision at a later time, which is known as “reserving judgment”. I can obtain a copy of the judge’s decision, which is set out in a judgment, Order or endorsement from the court office, upon paying a copy fee.

Judgement: Jury Trial Deliberation

If it’s a jury trial, then the judge addresses the law, but the jury addresses the facts. The judge will rule on the evidence, instruct the jury about the law, comment on the evidence, and decide whether there is sufficient evidence to be considered by the jury. The judge has a duty to determine whether any facts have been established by evidence from which negligence may reasonably be inferred, and the jury has a duty to determine whether, from those facts, upon being submitted to them, negligence should be inferred. After the presiding judge completes his or her duty to discharge the jury, they complete their duty and leave the court to deliberate until they reach a verdict.

Jury Notice

Your case will be heard by a judge alone unless I or one of the lawyers for the other parties specifically request a judge and jury to hear your civil litigation case. In order for this to happen, I or one of the lawyers for the other parties, will need to file a Jury Notice pursuant to Form 47A.

Lay Witnesses and Expert Witnesses

My witnesses whom I’ll call at trial on your behalf are of two kinds, which are “lay witnesses” and “expert witnesses”. A lay witness can essentially only testify on their direct knowledge of what they actually witnessed, and not on his or her opinion of anything. An expert witness on the other hand, is an individual who possesses special knowledge or skill in respect of a subject upon which he or she is called upon to testify, after swearing to be objective and providing testimony that serves the court in enhancing its understanding. Furthermore, after he or she is qualified as an expert witness through a qualification process in the court, he or she is then permitted to give opinion evidence, which is limited to his or her area of expertise, and is deemed to be necessary to furnish the court with such expertise that is likely outside the experience and knowledge of the presiding judge or jury.

Legislative Threshold

The legislative threshold constitutes what you have to prove in order to obtain a tort award in damages for non-pecuniary general damages further to Ontario’s Insurance Act, R.S.O. 1990, c. I.8.

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

1. A permanent and serious disfigurement; or
2. A permanent and serious impairment of an important physical, mental or psychological function.

Therefore, in order to obtain a tort award in damages for non-pecuniary general damages, you have to prove that as a direct result of the at-fault driver’s negligence, which caused the motor vehicle accident, you sustained a permanent and serious impairment of an important physical, mental and/or psychological function, or a permanent and serious disfigurement, as per sections 267.5(3)(a) and (b) of Ontario’s Insurance Act.

Statute of Limitation Period: Two Years

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”.

Statute of Limitation Period: The Ultimate Limitation Period

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.

Summons to Witness, Attendance Money and Affidavit of Service

After my opening address, I will then proceed to call my first witness on your behalf. As such, I will need to advise all of the witnesses that I wish to call, when they must attend court. If any of the witnesses I intend to call on your behalf are reluctant or unwilling to attend your trial, then I will make them do so by serving them with what is known as a Summons to Witness pursuant to Form 53A, along with their attendance money to cover their expenses, such as travel. I will then file an Affidavit of Service with the court, in order to prove that I served the witnesses with the summons and delivered their attendance money to them.

Loss of Competitive Advantage

Your claim for a loss of earning capacity and a loss of income can also be inclusive of a loss of competitive advantage and a loss of opportunity, such as a delayed graduation, where I’d lead evidence to prove that there is a reasonable possibility that your loss will occur.

Concerning a claim for an award for damages of a loss of competitive advantage, you’ll have to prove that due to your accident-related injuries and impairments, you’re no longer able to compete in the open marketplace with able-bodied and able-minded individuals, who don’t have accident-related injuries and impairments, but who have comparable qualifications or levels of skill, are capable of executing the tasks and duties required of the job, and may have additional certifications that you would’ve obtained “but for” your motor vehicle accident.

Loss of an Asset

Since your accident-related, diagnosed physical, psychological and/or cognitive/mental injuries and impairments have substantially interfered with your ability to carry out legitimate job functions, there will be positions or jobs that you will not be able to compete for in an open job market. Your inability to compete is the loss of an asset to you.  In other words, your inability to freely compete in the open job marketplace for the type of work you would have competed for “but for” your motor vehicle accident, is the asset that you have now lost.

Loss of Future Care Costs

If as a direct result of your motor vehicle accident you sustained serious and permanent injuries and impairments, or a serious and permanent disfigurement, which requires ongoing and future care, then you can claim an award for future care damages that project the costs to provide you care, which wouldn’t have been necessary “but for” the accident.

In theory your claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended to place you in the position you would have been in if you had not sustained your accident-related injuries and impairments. This, of course, corresponds with the fundamental purpose of tort law, which is best captured in the old Latin term “restitutio ad integrum” or “restitutio in integrum”, which, again, means “restoration to original condition”.

The Court will not conjecture upon how you will spend the amount awarded to you for your future costs of care, so this isn’t something that will adversely affect its consideration of the proper basis of compensation within a fault-based system. You are free to do with that sum of money for your future costs of care, as you like. Financial advice is readily available, plus you have the flexibility to plan your life and to plan for your particular contingencies.

When a Court is making a determination of your future damages for costs of future care, it’s essentially peering into the future and fixing damages for future care as best it can, once and for all at the time of your trial, subject to modification on appeal. In doing so, Courts will rely on the evidence that I lead on your behalf, as to what care is likely to be in your best interest. Then the Court calculates the present cost of providing that care to you, and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.

I retain an occupational therapist to complete a comprehensive future costs of care report, in order to assist us in providing such cogent evidence to your settlement conference or at your trial. I then retain a forensic accountant to calculate the present cost of providing you the care that the occupational therapist outlined that you’ll need in the future costs of care report.

The award for your future costs of care damages will reflect the reasonable or normal expectations of what you will require.

Loss of Future Expenses and Losses

You can also claim an award of damages for your ongoing or future expenses and losses, which will either continue or be incurred after the date of your settlement or your trial. I would retain a forensic accountant to calculate with reasonable precision your expected future losses or extraordinary costs that’ll likely occur throughout your lifetime as a direct result of your accident-related injuries and impairments. Further to the Court of Appeal for Onario, I only have to lead evidence to establish that there is a substantial possibility that your ongoing or future expenses and losses, and damages will occur.

Since your future damages will be paid to you as a lump sum at either your settlement or your trial, I will calculate on your behalf the present day value of your anticipated ongoing or future expenses and losses. ​​Further to Ontario’s R.R.O. 1990, Regulation 194: Rules of Civil Procedure, as I calculate the present day value for you, I have to use the “discount rate” noted in Rule 53.09(1) to determine the amount of an award in respect of your future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, which is:

3. for the 15-year period that follows the start of the trial, the greater of,

1. the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada’s Weekly Financial Statistics for the period starting on March 1 and ending on August 31 in the year before the year in which the trial begins, less ½ per cent and rounded to the nearest 1/10 per cent, and

1. zero; and

4. for any later period covered by your award, 2.5 per cent per year for each year in that period.

Your claim for future damages would be inclusive of, but not limited to, the following:

1. Your loss of earning capacity;
2. Your ongoing costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks and assistive devices;
3. Your future loss of housekeeping services;
4. Your future loss of pension income/contributions; and
5. Your future losses experienced by your family member following either your death or injury.

Further to section 267.8(1) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, even if you prove that you are entitled to an award of future damages for income loss and loss of earning capacity, subject to exceptions, the amount shall be reduced by the following amounts:

1. All payments in respect of the incident that you have received or that were available before the trial of the action for statutory accident benefits in respect of your income loss and loss of earning capacity;
2. All payments in respect of the incident that you have received or that were available to you before the trial of the action for income loss or loss of earning capacity, under the laws of any jurisdiction or under an income continuation benefit plan; and
3. All payments in respect of the incident that you have received before the trial of the action under a sick leave plan arising by reason of your occupation or employment.

Loss of Housekeeping Capacity

If you are unable to complete the work you usually did within your household as a direct result of your accident-related injuries and impairments, then you can claim an award of special damages for your loss of housekeeping capacity.

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services, and they are as follows:

1. Pre-trial housekeeping left undone;
2. Pre-trial housekeeping performed inefficiently; and
3. Pre-trial housekeeping undertaken by third parties.

Loss of Income and Earning Capacity

If as a direct result of your accident-related injuries and impairments you have lost the ability to function to earn income, then you can claim an award of special damages for your loss of earning capacity and your loss of future income. The special damages that I would seek on your behalf would reflect your loss of income either incurred to the date of trial or future losses. Your claim for loss of earning capacity can be made even if you weren’t working at the time of your motor vehicle accident, but I’ll have to lead evidence on your behalf that establishes you would have obtained employment “but for” your accident.

Loss of Pension Income

If you’re unable to work as a direct result of your accident-related injuries and impairments, then it is likely that you will lose the pension contributions that your employer would have made on your behalf had you continued to work. So, you can claim an award of special damages for the loss of your future pension income. I would retain an accountant to calculate the value of your lost pension income with reasonable precision, which would be inclusive of the amount of pension income you lost to the date of your trial. Lastly, if you received pension benefits, then generally they are not deducted from your damages award.

Medical and Rehabilitation Benefits

Concerning medical and rehabilitation benefits, it’s important to understand that there are 3 different injury classifications, tiers or levels that will 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.

Medical and rehabilitation benefits are available to you for reasonable and necessary expenses that have been incurred. This is a fact specific inquiry.

Medical and rehabilitation benefits encompass both treatment and assessment. On a practical level then, there needs to be a necessary connection in assessments, and the reasonableness requirement entails considering the goal of proposed assessments in the context of your impairments and benefits being pursued.

Medical benefits are integrated with rehabilitation benefits for the purposes of the SABS 34/10. The SABS 34/10 outlines what constitutes medical and rehabilitation benefits under sections 15 and 16, respectively. Medical benefits include, but are not limited to, the following: non-OHIP insured medical services, medication and prescription eyewear. Rehabilitation benefits focus on reintegrating you to the labour market and your activities of daily living, such as, but not limited to, the following: life skills and family or employment counselling, vocational or academic training and workplace or modifications.

Minor Injury Guideline Classification

Concerning your Accident Benefits claim, if it’s determined that as a result of your motor vehicle accident, you only sustained a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae, then you may qualify for medical and rehabilitation treatment under the Minor Injury Guideline classification. The healthcare provider you see will make that determination and then he or she will submit a Minor Injury Guideline Treatment Confirmation (OCF-23) form for your insurer’s review and consideration. Irrespective of your accident benefit limits or any optional increased benefits you have purchased under your automobile insurance policy, the maximum amount of $3,500 is payable for medical and rehabilitation benefits under the Minor Injury Guideline classification for minor injuries.

You can access, fill in online, and download in PDF format, the OCF-23 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1209E.5.pdf

Monetary Threshold for Family Law Act Damages

The monetary threshold is the amount of compensatory damages you have to be awarded for Family Law Act damages at trial for there not to be an automatic deduction.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $19,877.16 deductible from any award for Family Law Act general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $66,256.09.

So, for example, if you were awarded $65,000 for Family Law Act general non-pecuniary damages in 2021, then $19,877.16 would be deducted from your award, which would leave you with $45,122.84. However, if you were awarded $67,000 for Family Law Act general non-pecuniary damages in 2021, then the 2021 $19,877.16 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $66,256.09, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.

Monetary Threshold for General Non-Pecuniary Damages

The monetary threshold is the amount of compensatory damages you have to be awarded for general non-pecuniary damages at trial for there not to be an automatic deduction.

Even if you meet the legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for general non-pecuniary damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $39,754.31 deductible from any award for general non-pecuniary damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your award for same meets the 2021 monetary threshold of $132,513.28.

So, for example, if you were awarded $130,000 for general non-pecuniary damages in 2021, then $39,754.31 would be deducted from your award, which would leave you with $90,245.69. The $39,754.21 doesn’t go to anyone or anything, but is rather just deducted to reduce the total damage award. The high deductible is designed to discourage plaintiffs, who sustained less serious and non-permanent injuries, from proceeding with a tort lawsuit.

If, however, you were awarded $133,000 for general non-pecuniary damages in 2021, then the 2021 $39,754.31 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $132,513.28, and therefore, you would keep the total amount of the award.

Nervous Shock Damages

If you suffer a reasonably foreseeable, recognizable psychiatric illness either as a direct result of being involved in the motor vehicle accident or being at the scene to observe the accident or its aftermath – caused by the negligence of the at-fault driver –, then the Court may award damages to you for your psychological injuries.

However, in order for the psychological injury or nervous shock damages to be awarded to you, the law is clear that your psychological harm must be “serious trauma or illness” that amounts to more than “upset, disgust, anxiety, agitation or other mental states that fall short of injury” or that are “serious and prolonged and [rising] above the ordinary annoyances and fears that people living in society routinely, if sometimes reluctantly, accept”.

Non-Earner Benefits

Concerning your Accident Benefits claim, section 12 of the SABS 34/10 sets out the requirements for entitlement to non-earner benefits (“NEBs”), as follows:

1. You must suffer an impairment as a result of an accident; and
2. You must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

You must not qualify for an income replacement benefit. Alternatively, NEBs are payable if you were enrolled in educational pursuits on the date of your accident or within one year of the accident, and you meet the disability test.

Section 3(7)(a) of the SABS 34/10 defines “complete inability” to carry on a normal life if, and only if, as a result of the accident, you sustain an “impairment that continuously prevents the person from engaging in substantially all of the activities in which you ordinarily engaged before the accident”.

The phrase “substantially all” is not defined in the SABS 34/10. However, the Court of Appeal for Ontario in Galdamez v. Allstate Insurance Co. of Canada, [2012] O.J. No. 3394, at paragraph 39, held that “substantially all” does not mean “all”. It means more than most, but not all activities.

After September 1, 2010, NEBs were not payable before you turned 16 years of age. Effective June 1, 2016, the age requirement was raised to 18.

The waiting period also changed from 26 weeks to four weeks as of June 1, 2016. However, whereas you could receive NEBs up to age 65 prior to June 1, 2016, NEBs are now only payable for 104 weeks.

If you’re found eligible, NEBs are payable to you at the sum of $185 per week up to 104 weeks, and if your accident was prior to June 1, 2016, the amount would increase to $320 per week after 104 weeks, if you were enrolled as a full-time student at the time of your accident or had completed your education less than one year before the accident. After June 1, 2016, NEBs are only payable at the rate of $185 per week for a maximum of 104 weeks.

The leading case on NEBs is the Ontario Court of Appeal case entitled Health v. Economical Insurance Co. [2009] O.J. No. 1877 ONCA 391 (Ont. C.A.), which developed several principles on how the definition of “complete inability” should be interpreted for the purpose of determining eligibility for NEBs.

Non-Minor Injury or Non-Catastrophic Injury Classification

Concerning your Accident Benefits claim, if it is ultimately determined that your injuries are not minor or catastrophic, then all of your approved medical and rehabilitation treatment is subject to the non-minor injury or non-catastrophic injury classification limits, which in combination with attendant care benefits, is a maximum of $65,000, unless you have purchased any optional increased benefits under your automobile insurance policy. If it’s determined that your injuries fall within the non-minor injury or non-catastrophic injury classification, then your healthcare provider can submit a Treatment and Assessment Plan (OCF-18) form for your insurer’s review and consideration. Your insurer must approve your Treatment and Assessment Plan (OCF-18) form if it is determined to be reasonable and necessary, which means that following a contextual analysis, the following is determined:

1. The proposed assessment, and expenses or services are related to your accident-related injuries and impairments;
2. The identified rehabilitation goals will be achieved by the proposed assessment, and expenses or services;
3. The cost — financial and non-monetary — of the assessment, and expenses or services correlate with a high success rate of accomplishing the identified rehabilitation goals;
4. The expected degree of success of the assessment, and expenses or services is high and the progress will be closely monitored;
5. There aren’t any significant risks associated with the assessment, and expenses or services; and
6. Other assessments, and expenses or services would not be deemed to be better alternatives to achieve the identified rehabilitation goals.

You can access, fill in online, and download in PDF format, the OCF-18 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1207E.5.pdf

Non-Pecuniary Damages

One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities.

Normal Expectancies’ Measure

The tort measure of compensatory damages may be described as the “normal expectancies’ measure”, a term which “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position” you “to the destination” you “would normally have reached … had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both you and the negligent at-fault driver. You receive damages for future losses, as best they can be ascertained. The negligent at-fault driver is required to compensate you for those losses. To award less than what may reasonably be expected to be required is to give you too little and unfairly advantage the negligent at-fault driver. To award more is to give you a windfall and require the negligent at-fault driver to pay more than is fair.

Notice of Action

If at any point I needed more time to file your Statement of Claim, then I’d simply file a Notice of Action pursuant to Form 14C, which will give us an additional 30 more days to file it pursuant to Form 14D.

Notice of Examination

In order to cross-examine an opposing party in your civil litigation case, I must serve a Notice of Examination pursuant to Form 34A, which tells them how to attend the examination for discovery by providing, but not limited to, the following information:

1. A time and place;
2. Telephone conference details; and
3. Video conference details;

Notice of Intent to Defend

In addition to filing and serving a Statement of Defence in response to the Statement of Claim I filed and served on them on your behalf, the defendants can also opt to serve and file a Notice of Intent to Defend pursuant to Form 18B, which will entitle them to 10 more days within which to file and serve their Statement of Defence.

Opening Address by Defence Counsel

After I call all of my lay and expert witnesses on your behalf at your trial, the lawyer representing the defendant will then have the option to make an opening address to the judge or jury, but he or she is not required to do so. The defence lawyer will then call his or her first witness, and conduct an examination-in-chief. I’ll then have the right to ask questions of the defence lawyer’s witness via cross-examination. The defence lawyer may have the right to re-examine. This process will repeat until the defence lawyer has called all of his or her lay witnesses and expert witnesses.

Opening Address by Plaintiff Counsel

Since, the burden of proof lies with you as the plaintiff to prove your case, I’ll commence the trial with an opening address to either the judge-alone or to a judge and jury, where, amongst other things, my objective is to inform the trier-of-fact of the salient facts. I’ll do this in order to provide the court with a broad general outline of your tort action to better enable them to follow the evidence that I will marshal forward by calling witnesses, and entering your documents or objects as exhibits.

The lawyer for the defendant won’t be called upon by the presiding judge to provide an opening address to the trier-of-fact, at least until he or she has heard my opening address, and likely not until he or she has had the opportunity to observe the examinations-in-chief and cross-examinations of all of the witnesses’ that I call to the stand to introduce evidence on your behalf.

Past Cost of Care Claims

Another aspect of special damages that you can claim as an award following a successful tort lawsuit, is the cost of caring for you as a direct result of your injuries and impairments up to the date of your trial. Unlike an accident benefits claim, your costs of care can include care provided by a family member, as well as by a professional service provider. These services are inclusive of, but not limited to, the provision of housekeeping assistance and attendant care, as well as the cost of medical and rehabilitation treatment. In order to accurately calculate your costs of care with reasonable precision, I will retain an occupational therapist to complete a comprehensive past and future costs of care expert report.

Lastly, your award of special damages for costs of care may also be inclusive of out-of-pocket expenses for assistive and rehabilitative devices recommended by your healthcare providers, such as, but not limited to, canes, crutches, rollators to assist you with walking, support railings, et cetera.

Past Expenses and Losses

You can also claim a monetary award for special damages for past expenses and losses caused by a direct result of the negligence of the at-fault driver, which manifest themselves prior to trial, and can therefore be calculated with accuracy and precision. Examples of special damages for past expenses and losses, include, but are not limited to, the following:

1. Your past loss of income;
2. Your past loss of earning capacity;
3. Your costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks, assistive devices;
4. Your loss of housekeeping capacity;
5. Your past loss of pension income/contributions; and
6. Your expenses incurred by your family members (spouse, children, grandchildren, parents, grandparents and/or siblings) to the date of trial following your death or injury.

Pecuniary Damages

Pecuniary damages are any damages that are theoretically capable of monetary quantification, such as income loss, and they are considered separately from general non-pecuniary damages.

Permanent Impairment

In order for your accident-related impairment to be considered permanent, your impairment must be continuous since the accident, and must, based upon medical evidence and you reasonably participating in recommended treatment of the impairment, not be expected to substantially improve. Your impairment must continue to meet the criteria of serious impairment and must be expected to continue without substantial improvement when sustained by persons in similar circumstances.

There is no requirement that there be objective findings to show your permanence. It is well established that chronic pain will meet the requirement of permanence for the purposes of the threshold. Nor is there a requirement to demonstrate that your injuries are perpetual. The requirement of a permanent injury is “met when a limitation in function is unlikely to improve for the indefinite future. A continuous impairment may not necessarily be the same as an “unbroken chain” of impairment.

The Courts have also decided that subjective complaints of pain, accounting for a diminishment in daily function unlikely to improve into the indefinite future, are also permanent for the purposes of the first question.

“Indefinite future” distinguishes injuries for which there is no predicted end limit (permanent) from injuries to which some future date of improvement may be predicted.

This definition is important because one of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

3. A permanent and serious disfigurement; or
4. A permanent and serious impairment of an important physical, mental or psychological function.

Pre-Trial Brief or Memorandum

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. The pre-trial brief or memorandum contains, but is not limited to, the following:

1. Confirmation of whether your tort action is proceeding with a jury or judge-alone without a jury;
2. Confirmation on things such as, but not limited to, the following:
   1. Pleadings are in order;
   2. Motions are complete;
   3. Documents and/or other productions are complete;
   4. Oral examinations are complete;
   5. Transcripts are available;
   6. Notices to admit and responses are complete;
   7. Expert reports have been exchanged; and
   8. Counsel attending for the party submitting the pre-trial brief is counsel with carriage of the file.
3. An overview of the following:
   1. Substantive issues;
   2. Evidentiary issues;
4. Legal considerations, such as, but not limited to, threshold considerations, deductible considerations, et cetera;
5. A discussion of the evidentiary basis for the compensatory damages that I’m seeking on your behalf, inclusive of, but not limited to, general non-pecuniary damages, pecuniary damages, costs of care damages, loss of housekeeping and home maintenance capacity damages, and special damages;
6. A discussion of relevant pre-accident and post-accident medical history; and
7. A discussion of the expert reports that we are relying on for trial and the current medical evidence.

Pre-Trial Conference

If your tort action has been set down for trial, then just before the actual trial date we must attend what is known as a pre-trial conference with a judge.

In order to schedule the pre-trial conference, I must contact the court registrar within 180 days of your civil litigation case being set down for trial. If I do not schedule it, then the court registrar will set the date for us.

Once the pre-trial conference is confirmed by the court, you and I must attend at the courthouse, including all of the other parties and their respective lawyers, before a trial can proceed. Typically, only the lawyers go into the conference room to meet with the pre-trial judge, and the parties remain outside and available to provide instructions to counsel in the event that settlement proposals are made and exchanged between the parties.

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.

Pre-Trial Housekeeping Left Undone

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the first scenario, you may leave some or all of your housekeeping undone. Where you are unable to perform some or all of your housekeeping tasks, and where a third party does not do the work in your stead, work will be left undone. In that situation, you will experience two sorts of intangible losses compensable in an award of non-pecuniary general damages. First, the modern law of damages recognizes your work, whether employment outside the home or housekeeping inside the home, provides a human being such as yourself with an important sense of purpose and contribution, the loss of which is a loss personal to you. Second, where work is left undone, you will be forced to live with the loss of the amenity of an orderly and functioning home.

In both cases, because the losses are intangible in nature, they are compensable within the award for non-pecuniary general damages. Your unpaid housekeeping left undone is often recognized only as a non-pecuniary loss on the basis that the only loss is the intangible one arising from the loss of the amenity of an orderly household and a loss of a sense of contribution. Your lost wages are clearly a pecuniary loss that is ascertainable at the time of trial. However, if you’re an unpaid homemaker, then you don’t suffer a loss of wages, but rather the loss of the benefit of having done the housekeeping, including the personal intangibles, such as the sense of purpose and contribution referred to above, as well as the loss of the amenity of an organized household.

Pre-Trial Housekeeping Performed Inefficiently

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the second scenario, you may perform some or all of your housekeeping functions, but with increased pain and decreased efficiency. You may continue to undertake your housekeeping, but you may experience pain or difficulty in doing so. You may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If you work inefficiently, then your non-pecuniary award would be increased to reflect your increased pain and suffering. To the extent that your inefficiency also results in a less clean and organized household, this is the loss of an amenity that the award for non-pecuniary damages would also take into account.

These aspects of your non-pecuniary award will be assessed in a manner similar to the assessment of non-pecuniary losses if you were faced with increased pain and suffering in performing your income-earning tasks. In determining the significance of the components of your loss, the Court will consider the evidence about your pre-accident and pre-trial housekeeping, the particulars of your increased pain and suffering and diminishment in housekeeping, and the impact of any reduction in the standard of housekeeping on you.

Pre-Trial Housekeeping Undertaken by Third Parties

Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services.

In the third scenario, you may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of your housekeeping. Irrespective of which of the three scenarios is applicable, you will suffer losses arising from your inability to do work that you previously undertook within your household. The law is well established that where you incur a pre-trial out-of-pocket loss by hiring a replacement homemaker, you may claim the reasonable replacement cost of that homemaker as special damages. Similarly, if I lead evidence on your behalf that you agreed or were otherwise obliged to compensate a third party for housekeeping services rendered pre-trial, then you may claim that amount as special damages.

Furthermore, unlike an accident benefits claim, you can also seek compensation for the gratuitous work done by your family members, but you must either “plead or lead sufficient evidence to support such a claim” where for example, your family members or friends provide housekeeping services for you as a result of your injuries and impairments during the pre-trial period. Courts have recognized that even though your family members can freely choose to spend their lives looking after infirm members of their family, they are not expected to do so on a gratuitous basis.

The Principle of Finality

If your action in tort is successful at trial, then the Court will award you damages in a lump sum, in order to ensure finality or a clean break between you and the at-fault driver. In doing so, it will compensate you for your past loss, as well as provide you compensation for your losses anticipated in the future.

Private Mediation/Settlement Conference

A private mediation/settlement conference 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.

Probability and Contingencies: Future Events

However, when the Court is assessing damages, which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court will make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even in the amount of damages which it awards.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.

Punitive Damages

Punitive damages, which are rooted in an independent actionable wrong committed by the defendant, are not designed to compensate you. Rather, the specific purpose of punitive damages is to punish the tortfeasor or negligent at-fault driver and deter future tortfeasors. A Court may award you punitive damages if the negligent at-fault driver’s conduct was malicious, reprehensible, oppressive or high-handed.

You may be awarded punitive damages if you are successful in your tort lawsuit.

Ranges of Damage Awards

When the Court is making a determination of the award for damages to award you in a trial, it oftentimes refers to precedents, or monetary awards made in factually similar cases to yours.

Generally speaking, the more serious and permanent your impairment is, and the greater impact on your ability to function in your overall daily life and/or employment, the more you can expect a higher monetary award for damages.

As the Court is assessing the appropriate award for the non-pecuniary general damages to be awarded to you following a successful tort action, it will consider the following relevant, non-exhaustive factors:

1. Your age;
2. The nature of your injury;
3. The severity and duration of your pain;
4. Your disability;
5. Your emotional suffering;
6. The impairment of your family dynamics, marital and social relationships;
7. The impairment of your physical and mental abilities;
8. Your loss of lifestyle; and
9. Your stoicism, which shouldn’t penalize you unfairly.

Rehabilitation and Medical Benefits

Concerning medical and rehabilitation benefits, it’s important to understand that there are 3 different injury classifications, tiers or levels that will 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.

Medical and rehabilitation benefits are available to you for reasonable and necessary expenses that have been incurred. This is a fact specific inquiry.

Medical and rehabilitation benefits encompass both treatment and assessment. On a practical level then, there needs to be a necessary connection in assessments, and the reasonableness requirement entails considering the goal of proposed assessments in the context of your impairments and benefits being pursued.

Medical benefits are integrated with rehabilitation benefits for the purposes of the SABS 34/10. The SABS 34/10 outlines what constitutes medical and rehabilitation benefits under sections 15 and 16, respectively. Medical benefits include, but are not limited to, the following: non-OHIP insured medical services, medication and prescription eyewear. Rehabilitation benefits focus on reintegrating you to the labour market and your activities of daily living, such as, but not limited to, the following: life skills and family or employment counselling, vocational or academic training and workplace or modifications.

Re-Examination

After the opposing lawyer representing the defendant finishes his cross examination of our first witness at your trial, then I may proceed with a re-examination of our witness if I can satisfy a two-fold test, which is as follows:

1. My questions must arise out of the other’s lawyer’s cross-examination with the intention to clarify, explain or place in context, any answers that were ambiguous, reasonably require explanation, or were taken out of context; and
2. New material is not permitted in my re-examination, unless it is new material that arose for the first time in the other lawyer’s cross-examination.

I am not allowed to conduct my re-examination with leading questions, just as I am not permitted to do so during my examination-in-chief.

After either the other lawyer’s cross-examination or my re-examination (if necessary), I’ll then proceed to call my next witness on your behalf, and repeat this aforementioned process until all of our lay witnesses and expert witnesses are called.

Restitutio in Integrum or Restitutio ad Integrum

The fundamental purpose of damage awards is to place you in the position you would have been (no better or worse), “but for” the at-fault driver’s negligence. This fundamental, primary guiding principle in tort law behind the awarding of damages in personal injury law cases is captured in the Latin term “restitutio ad integrum” or “restitutio in integrum”, which means “restoration to original condition”.

Retainer Contingency Fee Agreement

A retainer contingency fee agreement is a contractual agreement between you and my law firm, 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.

In addition to my retainer contingency fee agreement incorporating more than two dozen required clauses further to the Solicitors Act, R.S.O. 1990, c.S.15, Contingency Fee Agreements, O. Reg. 195/04, it will also clearly articulate, but not limited to, the following:

1. Confirm in writing that my law firm has been retained by you;
2. Confirm that we’ll be representing solely you, or if you and another person such as a family member who was alo injured in the accident, are agreeable to me representing both of you, then I’d articulate to you both the principle of undivided loyalty, as well as conflicts of interest that may arise with the joint representation;
3. Articulate the legal services that I will provide you as I represent you in relation to your injuries and impairments sustained in your accident;
4. Articulate what legal services I won’t be providing you;
5. Articulate my obligations to you as I represent you in your tort action;
6. Articulate the compensatory damages that I expect to obtain for you either through a settlement with the other party or from a judge following a successful trial;
7. Articulate the approximate time we expect your lawsuit will take to settle or go to trial;
8. Articulate your role as a client in being honest with me, and giving me all the facts and information I need, as well providing me authorization to get from third parties all of the pertinent information relevant to your legal matter;
9. Articulate to you my legal fee, expenses, and billing arrangements;
10. Articulate the percentage I’ll be charging you from the amount of money awarded to you in a settlement or court judgment following a successful trial;
11. Provide a clear example of our contingency fee calculation;
12. Confirm that I’ll seek a sum of money from the Defendant called “costs”, and unless ordered otherwise by a judge, you’ll be entitled to receive any costs awarded in a settlement or court judgment following a successful trial;
13. Confirm that you agree to pay all disbursements, even if I can’t settle your claim or lose at trial;
14. Confirm that you agree to pay any Harmonized Sales Tax that I must charge you;
15. Explain how my contingency fee is calculated and paid, if your tort claim for compensatory damages are paid out by way of a structured settlement;
16. Explain what happens in the event our relationship ends either by you or by me;
17. Explain what happens if you are a minor or a person under disability;
18. Articulate my privacy policy in respect to using or sharing any confidential information you share with my law firm;
19. Articulating that I can’t guarantee success, even though I’ll fight tireless to obtain a successful outcome for you; and
20. Articulate the consequences of signing the contract and confirming that it contains the whole agreement between us.

Serving the Defendant

Once your Statement of Claim is filed with the courthouse, it will stamp and date it. Then we have six months to personally provide a copy of the Statement of Claim to each of the named defendants to whom we’re suing and to whom we made specific allegations of negligence against, which is known as “serving the defendant”. If we were suing the provincial government, then we’d have to serve the Statement of Claim on the Ministers of the Crown, including the Attorney General of Ontario.

 

Setting the Action Down for Trial

 

After the examinations for discovery are completed and the undertakings are satisfied, the next step is to ask for a trial date, which is known as “setting the action down for trial”. Even if I intend on booking a private mediation/settlement conference to discuss the possible settlement of your file, I still like to strategically set the matter down for trial. I do this because it creates a sense of urgency for the other party to act, as they intuitively know if they don’t they’ll be investing a lot of time and money in preparing for a risky trial that has a fixed date in the future.

 

 

Settlement Brief

Regardless of what kind of private mediation/settlement conference we select, there is always an exchange of comprehensive settlement briefs, which present the settlement offer, and outline the theory of the case, and the evidence that will be relied upon at trial to justify the award of compensatory damages that’s being sought. I will draft on your behalf a comprehensive settlement proposal, which includes, but is not limited to, the following:

1. A justifiable full and final, all-in settlement proposal at the high-end of the range based on precedents set in factually similar cases, plus a breakdown of the settlement by the various heads of damages;
2. My theory of the case;
   1. A discussion on the liability issue;
   2. A discussion of your immediate post-injury complaints and care;
   3. An outline of all of your injuries sustained from head-to-toe;
   4. An explanation of your hospitalization and treatment, and medical visits from the accident to the present time;
   5. An exploration of your pain, suffering and loss of enjoyment of life connected with each of your injuries cumulatively;
   6. A discussion of the interference with your normal activities of daily living;
   7. An exploration of your past income loss, and future career plans and anticipated income;
   8. An exploration of your past care costs, and future care needs or desires and costing;
   9. A discussion of the interference with your family relationships; and
   10. An exploration of your special damages;
3. A detailed discussion of the liability issue, inclusive of the accident dynamics and the law surrounding liability in motor vehicle accidents;
4. The law surrounding the legislative threshold test in tort actions;
5. A comprehensive review of all of the relevant medical evidence, inclusive of your pre-existing injuries, previous motor vehicle accidents, your non-tortious injuries after your motor vehicle accident, and your accident-related injuries and impairments, articulated in all of your clinical notes and records laid out in chronological order;
6. A discussion of any causation issue, and a review of the law pertaining to dealing with causation issues in tort actions;
7. An outline of your employment capacity, inclusive of a summary of your work history;
8. An outline of your education, certifications, and qualifications;
9. A comprehensive, comparative analysis of your activities of daily living both prior to and after your motor vehicle accident, inclusive of your:
   1. Self-care activities;
   2. Household care activities;
   3. Employment, school, training, and/or recreational activities;
   4. Shopping activities and your ability to manage your money;
   5. Travel activities; and
   6. Communication capabilities.
10. A discussion of the evidence supporting your claim for general non-pecuniary damages, inclusive of a comparative analysis with at least two other factually similar cases to yours, which I’ll vind via extensive legal research;
11. A discussion of the evidence supporting your claim for pecuniary damages, inclusive of post economic loss, future economic loss, loss of earning capacity, and a loss of competitive advantage in the workforce;
12. A discussion of the evidence supporting your claim for costs of care, inclusive of both past and future costs of care;
13. A discussion of the evidence supporting your claim for loss of housekeeping and home maintenance capacity, inclusive of a comprehensive review and comparative analysis with the leading case from the Court of Appeal for Ontario; and
14. A discussion of the evidence supporting your claim for special damages and out-of-pocket expenses to date.

 

Settlement Conference

A private mediation/settlement conference 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.

Special Damages

Special damages are those damages that have manifested themselves prior to your trial and are therefore capable of precise calculation. Examples of special damages are, but not limited to, the following: hospital bills, lost wages, payment for housekeeping assistance, physician fees, et cetera.

Specific Contingencies vs. General Contingencies

Factors affecting the degree of risk of your future damages and/or loss, and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

The law has recognized that contingencies can be placed into two categories as follows:

3. General contingencies, which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness, et cetera; and
4. Specific contingencies, which are peculiar to you, e.g., a particularly marketable skill or a poor work record.

General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may adjust an award for your future pecuniary loss to give effect to general contingencies, but where the adjustment is premised only on general contingencies, it will be modest.

If you rely on a specific contingency, positive or negative, then you must be able to point to evidence, which supports an allowance for that contingency. The evidence will not prove that your potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of your contingency is a realistic, as opposed to a speculative, possibility.

Serious Impairment

A “serious impairment” is one that substantially interferes with your ability to function,

which meets the criteria set forth in section 4.2(1) of Ontario Regulations 381/03, Court Proceedings for Automobile Accidents that Occur on or After November 1st, 1996, under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, as amended by Ontario Regulation 381/03.

Therefore, a serious impairment is an impairment caused as a direct result of a motor vehicle accident that satisfied at least one of the three following things:

1. Your accident-related impairments substantially interfere with your ability to continue your regular or usual employment at your full-time or part-time job, despite reasonable efforts to accommodate your impairments and your reasonable efforts to use the accommodation to allow yourself to continue employment;
2. Your accident-related impairments substantially interfere with your ability to continue training for a career in a field in which you were being trained before the incident, despite reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow yourself to continue your career training; and/or
3. Your accident-related impairments substantially interfere with your ability to continue in most of the usual activities of daily living, considering your age.

This definition is important because one of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:

5. A permanent and serious disfigurement; or
6. A permanent and serious impairment of an important physical, mental or psychological function.

You also have to prove that your accident-related impairments are an important function to you, because the function is:

1. Necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow you to continue employment;
2. Necessary for you to provide for your own care or well-being; and/or
3. Important to your activities of daily living, considering your age.

Also, you have to prove that your accident-related impairments:

1. Have been continuous since the incident, and based on the medical evidence and subject to you reasonably participating in the recommended treatment of the impairments, are expected not to substantially improve, as you’re still suffering from it since the motor vehicle accident; and
2. Are of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Statement of Claim

Your Statement of Claim is an “originating process”, which means that it’s the document that commences your tort action or lawsuit. A Statement of Claim concerning your tort action for personal injuries and impairments, would explain, but not limited to, the following:

1. The specific heads of damages you’re claiming and the amount of monetary compensation you’re seeking;
2. Who you are, in terms of being the injured plaintiff;
3. A description of any of your family members claiming damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (if applicable);
4. A description of the defendant or defendants who you are suing;
5. A description of your motor vehicle accident and the accident dynamics;
6. The specific allegations of negligence you’re making against each of the aforementioned defendant or defendants;
7. A description of your personal injuries and impairments sustained as a direct result of the defendant’s negligence, which caused the subject motor vehicle accident;
8. A description of your family members loss of care, guidance and companionship, and other losses for which compensatory damages can be claimed under the Family Law Act, R.S.O. 1990, c. F.3;
9. The statutes which contain specific provisions that you’re relying on in proving the allegations made in the Statement of Claim; and
10. The location, or the city in Ontario, where you propose the tort action should be tried in, if it cannot be resolved by a settlement and therefore must proceed to trial.

Statement of Defence

The defendants named in your Statement of Claim, who have been personally served with it, will prepare a legal document called a Statement of Defence pursuant to Form 18A, which will deny all allegations in your Statement of Claim unless otherwise admitted. They will then serve it on everyone else named in the legal matter, including me on your behalf. The defendants will also complete an Affidavit of Service pursuant to Form 16B for each named party in the legal proceedings, and file their Statement of Defence with the same courthouse that I filed your Statement of Claim on your behalf.

Status Hearing

If for whatever reason I cannot set your tort action down for trial within five years of the start date, then I will take action to either:

1. Bring a motion for a status hearing any time before the five year or two year deadline, if the parties don’t consent to a timetable, in order to ask for a court Order allowing the action to move forward; or

2. Obtain the consent of all the parties and draft a timetable, filed with the court at least 30 days before the five year or two year deadline, which shows the court:
   1. The steps to complete before your tort action can be set down for trial or restored to the trial list;
   2. The date(s) the steps need to be completed by;
   3. A date the action must be set down for trial or placed back on the trial list, provided it is not more than seven years after your claim.

Summons to Witness, Attendance Money and Affidavit of Service

After my opening address, I will then proceed to call my first witness on your behalf. As such, I will need to advise all of the witnesses that I wish to call, when they must attend court. If any of the witnesses I intend to call on your behalf are reluctant or unwilling to attend your trial, then I will make them do so by serving them with what is known as a Summons to Witness pursuant to Form 53A, along with their attendance money to cover their expenses, such as travel. I will then file an Affidavit of Service with the court, in order to prove that I served the witnesses with the summons and delivered their attendance money to them.

Testifying Under Oath

Prior to the commencement of your examination for discovery, you’ll have the option to swear on a Holy bible to tell the truth, or make an affirmation to tell the truth if you are not catholic. Once you start testifying under oath, as your lawyer, I am not permitted to discuss your case or the evidence with you. However, I can communicate with you on the record, which is inclusive of advice as to whether to answer a question. I can also object to questions that I find objectionable, and then state my reasons for not allowing you to answer the question, on the record.

Theory of the Case

The theory of the case is 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. The theory of your case that I develop is the basic overriding theme, which captures in a few words the justice of the position I’m taking on your behalf. It’s the message I want to deliver for you that’s comprised of mixed fact and law, which I want the trier-of-fact to accept at your trial, and ultimately identify with and grant judgment in your favour with the damage awards I’m seeking for you, at the conclusion of your civil litigation case.

Thin Skull Rule vs. Crumbling Skull Rule

The balance of compensatory fairness between you and the negligent at-fault driver, is also expressed in these two legal principles and rules: (1) the “thin skull” rule; and (2) the “crumbling skull” rule. Further to the “thin skull” rule, the negligent at-fault driver is liable for your accident-related injuries and impairments, even if they are unexpectedly severe owing to a pre-existing condition. So, the negligent at-fault driver must take you, the victim, as he or she  finds you, and is therefore liable even though your losses are more dramatic than they would be for the average person.

However, it’s balanced out by the “crumbling skull” rule, which recognizes that your pre-existing condition was inherent in your “original position”. Therefore, the negligent at-fault driver need not put you in a position better than your original position. The negligent at-fault driver is liable for the injuries caused, even if they are extreme, but need not compensate you for any debilitating effects of your pre-existing condition, which you would have experienced anyway. The negligent at-fault driver is liable for the additional damage, but not the pre-existing damage.

Third Party Claim

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

1. Settle the case with you at any stage of the legal proceeding;
2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

Third Party Liability Coverage

In Ontario, we have a standard auto insurance policy called Ontario Automobile Policy Owner’s Policy, or OAP 1, which makes it mandatory for all owners of vehicles to purchase third-party liability coverage to protect them if someone else is killed or injured, or their property is damaged. Therefore, if the defendants I’m suing on your behalf have purchased this mandatory liability insurance coverage, then it will pay for claims as a result of our successful tort lawsuit against them up to the limit of their coverage. It will also pay the costs of settling your claims against them.

By law, owners of vehicles in Ontario must carry a minimum of $200,000 in third-party liability coverage, but options exist to increase the minimum amount; typically to $1 million. So, the defendants typically advise their insurance company of the Statement of Claim that they’ve been personally served with, and then their insurance company retains a law firm to prepare the Statement of Defence and defend the tort action.

Three-Part Test of the Legislative Threshold

The Courts have adopted a three-part test to determine whether you meet the legislative threshold test, as established by the Court of Appeal for Ontario case entitled Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), and later in Ahmed v. Challenger, [2000] O.J. No. 4188 (S.C.J.), at paragraph 17.

In determining whether you have met the aforementioned legislative threshold, the court will answer the following three questions sequentially:

1. Have you sustained a permanent impairment of a physical, mental, or psychological function?
2. If yes, then is your function, which is permanently impaired, an important one?
3. If yes, then is the impairment of your important bodily function serious?

The Three Weekly Disability Benefits

Concerning your Accident Benefits claim, if you sustained injuries as a direct result of your motor vehicle accident, then you may be eligible to receive one of the following three weekly disability benefits, as follows:

1. Income replacement benefits;
2. Non-earner benefits; and
3. Caregiver benefits.

Once your insurer receives your Application for Accident Benefits (OCF-1) form, they will make a preliminary determination about whether any of these weekly disability benefits apply to you, but they don’t have the last word on it, as you can appeal their decision to the Licence Appeal Tribunal if you disagree.

You can access, fill in online, and download in PDF format, the OCF-1 form from the Financial Services Regulatory Authority of Ontario’s website at the following URL link:

http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1224E.5.pdf

 

 

Time Limits for Service

If the defendants wish to defend the legal proceedings that I have commenced on your behalf against them, then the defendants or an Ontario lawyer acting for them must prepare the legal document called a Statement of Defence, serve it on us and the other parties, and file it with proof of service within the following time limits:

1. 20 days after the Statement of Claim is served on them, if they were served in Ontario;
2. 40 days, if the defendants were served in another province or territory of Canada or in the United States of America; and
3. 60 days, if the defendants were served outside of Canada and the United States of America.

Tort

A tort is a civil wrong that causes you to suffer loss or harm, resulting in legal liability for the person who commited the tortious act against you.

Tort Action or Lawsuit

A tort action or lawsuit is the initiation of the legal proceedings to pursue an award of damages against the person or persons, who committed the tortious act or civil wrong against you, which caused you to suffer loss or harm, in order to indemnify you.

Traditional Lump Sum Approach vs. Annualized Income Loss Approach

When a Court quantifies your loss of competitive advantage, they’ll look at how your ability to compete for employment is impaired. There are two popular methods that have been adopted, which are the traditional lump sum approach without a specific regard to your calculated income loss and the annualized income loss approach, where the award represents your annual income loss to an expected retirement date. The present value of the latter approach produces a higher amount, whereas the ballpark figure using the former approach produces a lower amount.

The Trial

If we can’t resolve your tort action at a private mediation/settlement conference or at the pre-trial conference, then we proceed to trial. A trial 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.

The Trial Record

In order to set your tort action down for trial, 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.

Furthermore, if your tort action is defended, meaning the defendant wasn’t noted in default for not filing a Statement of Defence, then I will set your tort action down for trial by doing, but not limited to, the following:

1. Serving your trial record on the other parties;
2. Filing your trial record with the court with proof of service; and
3. Paying any court filing fees.

If, however, your tort action was undefended, then further to Rule 19 of the Rules of Civil Procedure, .R.O. 1990, Reg. 194, I’ll set your tort action down for trial by filing your trial record with the court, in order to go to trial to obtain a default judgment, after trying other ways of getting the default judgment prior to trial, but to no avail.

The Trier-of-Fact

Your trial may be adjudicated by either of the following triers-of-fact:

1. A judge alone without a jury; or
2. A judge and a jury comprised of six jury members in a civil trial.

Undertakings

During the course of your examination for discovery, the opposing lawyer will ask for what is known as “undertakings”, which are formal requests to provide additional information or records not included in your Affidavit of Documents, but that are relevant to the issues in dispute in your tort action. If what the other lawyer is asking for is relevant, then I will agree to provide it. If I want time to consider the relevance of the request, then I will take it under advisement. If it is not relevant, then I will refuse to provide it and state my reasons on the record.

After the examination for discovery, I’ll commence the process of sending out request letters along with your signed Authorization and Direction forms to third parties (i.e. family doctor, employer, treatment providers, Canada Revenue Agency, et cetera), in order to satisfy the outstanding undertakings as soon as possible, which can take up to three months, depending on the documents that are being requested.

Upper Limits on Family Law Act Damages

The Family Law Act awards in damages for general non-pecuniary damages are not subject to the upper limit caps established by the Supreme Court of Canada’s 1978 trilogy cases. However, the Court of Appeal for Ontario, in the case Fiddler v. Chiavetti, 2010 ONCA 210, endorsed their decision in To et al. v. Toronto Board of Education et al., 2011 CanLii 11304 (ONCA), of the assessment of $100,000 in 1992 for each of the parents of the deceased, which was deemed to be at the high end of an accepted range for loss of guidance, care and companionship damages. The Court of Appeal for Ontario concluded that the $100,000 high end had to be adjusted to $125,000 in January 2005 dollars, in order to correspond with the increase in the consumer price index.

Therefore, in order to ascertain what the high end range for non-pecuniary general damages is in current dollars, you simply have to figure out the cost in current dollars to buy a “basket” of goods and services that costs $100,000 in 1992 dollars, which factors in the rate of inflation.

Upper Limits on General Non-Pecuniary Damages

In Canada, there is an upper limit or maximum amount that could be awarded to you in a tort lawsuit for general damages or non-pecuniary damages. In 1978, a trilogy of cases involving catastrophically injured youths, were heard by the Supreme Court of Canada, which resulted in them setting a limit on monetary awards for non-pecuniary general damages at $100,000. However, this limit has increased since then in accordance with the rate of inflation, and as of October 2021 it is $409,972.