Personal Injury
The personal injury litigation team at Devry Smith & Frank LLP is a dynamic and talented group who have extensive experience representing accident victims. Our team is comprised of eight (8) lawyers, five (5) accident benefits clerks, five (5) tort litigation clerks and a number of legal assistants whose practice is restricted to personal injury negotiation, mediation, arbitration and litigation.
We take pride in ensuring that our clients receive all compensation and benefits to which they are entitled. We have handled thousands of cases and recovered tens of millions of dollars in settlements and awards. The list of our satisfied clients grows everyday and they, in turn, refer more clients to us.
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Many of the lawyers are formerly insurance defence lawyers and this experience helps the group understand how to maximize your claims to the insurers. Many of the clerks in the group were practicing lawyers from other countries before coming to Canada and to DSF. Others have experience in the medical field.
We have a coordinated network of physicians, specialists, psychologists, diagnosticians, physio and occupational therapists, home care workers and rehabilitation consultants to call on.
Situations in which Compensation may be available:
There are numerous situations in which injured persons may have access to compensation. Insurance proceeds may be available. Motor vehicle insurance, homeowner’s insurance, business insurance, comprehensive general liability insurance, bank loan insurance and credit card insurance policies are but a few of the insurance policies intended to provide protection for injuries and death. You may be entitled to immediate compensation and assistance from your own insurance company or from another party’s insurer.
The list of potential situations for which compensation may be available is essentially unlimited but includes:
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The time limits to sue vary significantly depending on the circumstances. For example, for certain claims against municipalities, notice of intended legal proceedings must be delivered within seven days of the date of the accident, and legal proceedings must be commenced within three months of the date of the accident.
Damages
In most cases, you are entitled to be compensated for all injuries, losses and damages which you suffer as a result of an injury or accident. Damages are generally divided into a number of categories:
General Damages
General damages include compensation for pain and suffering, inconvenience, loss of enjoyment of life, lost amenities and other non-monetary or non-pecuniary losses. General damages in Ontario are generally quite modest and are limited by a “cap” imposed by the Supreme Court of Canada, currently in the approximate amount of $326,529.00. In car accident claims, there are no general damages unless the claim meets a “threshold” (permanent and serious impairment or disfigurement) and the general damages are reduced by a deductible established under the Insurance Act.
Loss of Income
You are entitled to be compensated for any income which you have lost as a result of the accident, as well as any income which you may lose in the future, or any loss or reduction in your income earning ability or impairment in your ability to compete in the labour market. As a general rule, your claim for loss of income will be reduced by any collateral benefits, such as sick leave benefits, disability benefits, accident benefits or other payments for loss of income, which you receive. Damages for loss of income to be sustained in the future will be adjusted to reflect the “present value” of the future losses and to take into consideration any contingencies that may arise in the future.
Other Pecuniary Losses
These losses will include out of pocket expenses, such as travel expenses, housekeeping or home maintenance expenses, past or future care costs, etc. In some cases, medical expenses not covered by OHIP can be recovered.
Loss of income and other pecuniary losses are sometimes referred to as “special damages”.
Family Law Act Claims
Under Ontario’s Family Law Act, certain family members of an injured person, including the spouse, parents, children, siblings, grandparents or grandchildren, are entitled to claim compensation for any losses that they have suffered as a result of the injuries sustained by the injured relative. These losses can include any expenses incurred on behalf of the injured person and will also include an amount to compensate for the loss of the care, guidance and companionship which would have been provided by the injured relative, but for the accident.
Interest
In addition to your claims for general and special damages, you are entitled to claim interest, at rates specified by the Courts of Justice Act and the Insurance Act, and a portion of your legal expenses which, as a rule of thumb, will amount to approximately 40 to 50% of your total legal expense.
Car Accidents
The majority of personal injury claims arise from motor vehicle accidents.
Where there is negligence on the part of the driver of a vehicle involved, you may be entitled to pursue two main types of claims; a damage claim against the at fault driver, and a claim for no-fault accident benefits against your own insurer regardless of who is at fault.
Claims involving Uninsured, Unidentified or Underinsured Drivers
Even if the driver of the other vehicle involved in the accident was not identified, you will probably be entitled to pursue a claim for damages under your own insurance policy, or against the Motor Vehicle Accident Claims Act Fund. If the driver of the other vehicle is not insured, your insurance company is responsible for paying all amounts for which the other driver is liable. Where the other driver has insufficient insurance to pay your claim in full, you may be able to recover any deficiency from your own insurer.
Accident Benefits
These benefits are available to you if you are injured in a car accident, regardless of who was at fault for the accident. These include payment for such things as:
- Weekly income replacement benefits;
- Supplementary medical and rehabilitation benefits;
- Attendant care benefits;
- Housekeeping benefits;
- Funeral and death benefits;
- Caregiver benefits;
- Non-earner benefits;
We can assist you with the complicated form and application process. We can also assist you in getting approved for these benefits, as it is often necessary to commence court or arbitration proceedings in order to ensure that you obtain full benefits.
Slip or Trip and Fall Accidents
Compensation is usually available where your slip or trip and fall is caused by the negligence of somebody else. Typically it is an insurance company that will pay your claim, through a homeowners or general liability policy. Icy stairs and driveways, improperly constructed or maintained pathways or stairs, wet and/or slippery floors, or any form of danger caused by somebody else or for whom another is responsible, are common examples where recovery may be possible.
7 day limitation periods may apply where a municipality is involved. You should consult with a lawyer as soon as possible to determine your entitlement.
Occupier’s Liability
Owners and occupiers of property must take reasonable steps to ensure the safety of persons on the property. This includes all City property i.e. streets, sidewalks, parks. Grocery stores are often negligent in failing to ensure all spills are mopped or swept before posing a danger to patrons. A landlord/commercial business/neighbor that fails to properly shovel and salt a walkway, driveway or stairs may be negligent.
Fatal Accidents
Compensation may be available to certain family members of persons killed in accidents as a result of another person’s negligence. Under the provisions of Ontario’s Family Law Act, the spouse, siblings, children, parents, grandchildren and grandparents of someone killed in an accident may pursue a claim for the losses which they suffer as a result. Compensation is available for accidental deaths arising from any accident caused by the negligence of a third party, including car accidents, snowmobile accidents, slip and falls, defective products, etc.
Generally, the family member is entitled to recover any monetary loss arising from the death, including expenses incurred for the benefit of the deceased person, funeral expenses and travel expenses incurred in visiting the person prior to his death or attending the funeral. In addition, where the family member provided nursing, housekeeping or other services to the deceased person prior to his death, he or she may recover a reasonable allowance for the loss of income sustained or the value of the services provided. The family member is also entitled to be compensated for the loss of the guidance, care and companionship which he or she might reasonably have expected to receive from the deceased person if the death had not occurred.
In some cases, lump sum death benefits may be available through an automobile insurer or another motor vehicle insurer, a life insurer or a disability insurer.
Limitation periods and notice requirements, which may be as brief as 7 days, apply to claims arising from a death. Accordingly, it may be essential to obtain legal advice with respect to your rights as soon as possible.
Dog Bites/Animal Attacks
Compensation is usually available for injuries caused by an attack or bite of an animal owned by somebody else. Typically the dog owner’s insurance company will pay your claim through a homeowners or general liability policy.
Animal bites may cause permanent disfiguring scars, pain and anguish, emotional trauma and may require lengthy and costly treatment.
Strict liability is imposed on persons who own or possess a dog under the Dog Owners’ Liability Act. Limitation periods may apply. You should consult with a lawyer as soon as possible to determine your entitlement.
Limitation Periods
There are strict time limitations which may apply to your claim. Some actions taken against a municipality, for example, require that written notice by registered mail be provided to the municipality within seven days of the incident, and require that legal proceedings be initiated within three months of the accident. Other accidents allow legal proceedings to be commenced within two years, six years or even longer periods after the accident giving rise to the claim. Since such proceedings will be precluded if not initiated within this time period, it is critical to consult with a lawyer who specializes in personal injury litigation as soon as possible. The lawyers in the Devry Smith & Frank LLP personal injury group would be pleased to consult with you regarding such issues at your convenience.
Discoverability Rule
In most cases, the limitation period will not start to run until the injured person knows of the circumstances giving rise to the claim. In many cases, this will be the date of the accident, but there may be extenuating circumstances which will extend the limitation period under the discoverability rule.
Limitations Act 2002
The Limitations Act, 2002 was passed in December 2002 and came into force on January 1, 2004. The Act imposes a two-year basic limitation period commencing from the discovery of the claim, which would replace many of the limitation periods previously found in the Limitations Act and scattered in other Ontario statutes.
The new “two-year discoverability rule” applies to all claims unless explicitly excluded. With the emphasis on discoverability, even those claims for which the limitation period is two-years may nevertheless be affected, as the triggering event for the commencement of the limitation period is the discovery of the claim. Section 5 of the Act provides that a claim is “discovered” when the person with the claim knows or ought to know:
- that injury, loss or damage has occurred;
- the identity of the person who caused that injury, loss or damage; and
- that, having regard to the nature of the injury, loss or damage, a legal proceeding would be an appropriate means to remedy it.
The Act provides that the onus is on the person with the claim to prove that he or she did not discover the claim when the act or omission on which the claim is based took place.
There is also an ultimate limitation period pursuant to s. 15 of the Act, which provides that a proceeding may not be commenced in respect of a claim more than 15 years after the date the act or omission in question took place despite a claim not being discovered within 15 years. Therefore, a plaintiff (subject to some limited exceptions) has 15 years to discover a claim. Otherwise, a valid limitations defence may be brought forward against the claim.
Our Fees
As a general rule, our fees in personal injury matters will be paid from the proceeds of the settlement or other resolution of your claim.
Free Consultation
We are pleased to offer a free consultation in connection with personal injury matters. This consultation will enable you to meet with one of our lawyers to determine whether compensation may be available for your claim. The consultation will be completely without any obligation on your part. Should you subsequently wish to retain our services, we will review with you our fee arrangements in detail prior to finalizing the retainer.
Contingency Fees
In many personal injury cases, we would be pleased to negotiate a fee on a contingent basis. Under this arrangement, our fee will be a percentage of the amount recovered. We will pay the cost of obtaining all medical reports and records and any accounting reports, accident reconstruction reports, forensic engineering reports, actuarial reports, and any other disbursements necessary to pursue the claim. In the event that there is no recovery, there will be no legal bill to pay, and we will absorb the cost of all disbursements and time spent pursuing the claim.
