Ontario Personal Injury Law Firm

Frequently Asked Questions

1. What is a Statement Claim?

In Ontario, the litigation process is initiated through the first pleading. Generally speaking, the first pleading that is issued on behalf of the Plaintiff is referred to as a Statement of Claim (SOC). The SOC must provide key pieces of information:

  • The identity(ies) of the Plaintiff(s)
  • The identity(ies) of the Defendant(s)
  • How much you are claiming against the Defendant(s)
  • The general details of how the accident happened
  • An outline of what the Defendant(s) did to cause the accident?
  • A broad list of the injuries and impairments sustained by the Plaintiff

To learn more about Statements of Claim and how to initiate lawsuits in Ontario, check out our blog here.

2. What is a Tort?

Hint: It’s not a French dessert!

A tort, in common law jurisdiction, is a civil wrongdoing that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. If you are the victim of an accident, you can pursue the at-fault party for compensation (usually provided by their insurance company).

With car accident tort claims, there are several obstacles you need to overcome, such as exceeding a statutory deductible of almost $40,000! You must also prove that your injuries meet a ‘threshold’ by proving that your they caused a permanent and serious impairment of an important physical, mental, or psychological function. This is one of the many reasons you should hire a personal injury lawyer to help you navigate these complex claims.

3. What are accident benefits?

If you are seriously injured in an auto accident in Ontario, Statutory Accident Benefits (SABs) pay for expenses not covered by healthcare such as income replacement, medical and rehabilitation care, and even funeral expenses. In Ontario, this is a mandatory no-fault auto insurance coverage that is included with all basic auto insurance policies.

If you’re involved in a car accident, you can pursue two possible claims: an accident benefits claim or a tort claim.

The accident benefits claim is made against your own insurer. It does not matter if you are at fault; there is still a good chance you have a viable claim!

What if you do not have your own insurance? You can still have an accident benefits claim. There is a complicated system to determine whose insurance company will provide these benefits, but even if you don’t have insurance you can have an accident benefits claim.

What about hit-and-run or unidentified car accidents? In instances where the driver disappears without providing their name or information, the government provides accident benefits coverage under the Motor Vehicle Claims Fund Act.

4. What is product liability?
Product liability refers to bodily injury or property damage arising out of products that a business distributes, supplies, or manufactures.
While manufacturers and distributors of products are not required to give owners a guarantee of product safety, they may still be liable when that product results in unexpected, serious, and preventable harm.
5. What is a motion?
A motion is a process for requesting that a Judge or Master make an order/resolve an issue before a trial can proceed. For example, during a trial, one of the parties may discover that somebody else was responsible for the Plaintiff’s injury and should be added to the lawsuit. That party would then make a motion to the court and ask the Judge to allow them to serve a claim on that person. The Judge’s decision on a motion may affect how the trial continues, but it does not determine the ultimate outcome of the lawsuit.

In Toronto, a Master is like a Judge but with limited powers. One of the main reasons to bring a motion to a Master rather than a Judge is that the matter will not result in a final disposition of the case. For example, Masters don’t usually hear summary judgment motions, where one party seeks to have the claim dismissed in their favour.

6. What is a mediation?
Mediation is a process where an impartial third-party assists disputing parties in resolving conflict through the use of negotiation techniques. All participants in mediation are encouraged to actively participate in the process. The purpose of a mediation is to help parties reach a settlement promptly and effectively.
7. What is an affidavit?
An affidavit is a sworn statement that can be used as evidence in a case, on a motion or at trial.

The process of completing an affidavit involves writing out the facts that you are attesting to and swearing the contents to be true in front of a Commissioner of Oaths (e.g. a lawyer). While most people think of oral testimony when they think of evidence, there is a wide variety of circumstances where an affidavit can be entered as evidence without calling the person who swore it to testify.

8. What is small claims court?
Small claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions.

In Ontario, a small claims court enables many plaintiffs to take their own case to court. It provides a simplified forum for self-represented individuals to sue on their own without a lawyer. The trial procedures are simplified, the timelines are shortened, and the pleadings are made so that anyone, with or without legal experience, can understand them. The maximum that a person can sue for in a small claims court is $35,000.

One key difference between the regular Superior Court procedure and a small claims court procedure is that there is no examination for discovery. After pleadings have been exchanged, there is a pre-trial conference and then the case goes straight to trial.

9. What is a simplified procedure?
Simplified procedure refers to the type of court procedure you file your claim under. Until this year (2020), if your claim was $100,000 or less, you could proceed under simplified procedure rather than the standard procedure.

In 2020, when the government increased the limits under simplified procedure to $200,000, they also added a very important change: unless requested by the plaintiff, the trial in a simplified case is heard by a judge alone, instead of a judge and jury.

Why does this matter? First of all, this allows cases to move a lot faster and provides a framework that’s less favourable to insurance companies. In particular, shorter trials and limited cost consequences can give the plaintiff a leg up.

10. What’s the difference between factual and legal causation?
When we look at negligence cases, factual and legal causation are important parts of the analysis.

Factual causation (usually just referred to as causation), refers to the direct consequences of an action. For example, by driving under the influence and hitting someone with your car, you have directly led to their injury.

Legal causation, on the other hand, is more complicated. In these cases, the reason for a person’s injury is less obvious and not so easily related to a culpable act. Legal causation comes into play when someone does something that causes something that causes something else that causes an injury. To address legal causation, you must look beyond the basic chain of causation and ask if the negligence or consequences were reasonably foreseeable. Under legal causation, the result must be caused by a culpable act and there is no requirement that the act of the defendant was the only cause of the injury.

11.How do personal injury lawyers get paid?
The commonly used phrase “we don’t get paid unless you get paid” is actually true! Most personal injury lawyers get paid through what is called a contingency fee retainer agreement. Under this agreement, we do not get paid until we settle your case.

One of the more commonly asked follow-up questions we receive is what happens if we don’t actually recover any money for you? In these cases, you and your lawyer will both walk away without being paid. But that being said, hiring a lawyer makes it much less likely you will be left in a situation where the insurance company will deny your claim.

Through disbursements, we are able to cover the costs of building and running your case. Disbursements cover payments we have to make for your medical records, for issuing a lawsuit, for generating expert reports and for many other items. Our firm will pay for your disbursements up front so that you don’t have to bear the financial burden. When your case settles, the firm deducts our disbursements, then we apply our fee percentage, and you recover the balance. This is an important way that lawyers are able to provide access to justice for people who otherwise could not afford to hire a lawyer.

12. What is my case worth?
This is one of the most commonly asked questions we receive from our clients – and one of the most difficult to answer!

It is often impossible to answer this question at the time we are retained, especially if it is soon after the accident. This is because nobody knows what the future holds for your recovery: how well or poorly you recover impacts the value of a case. For example, if you have neck pain that resolves after a few months and doesn’t impact your life on a daily basis, your case is going to be worth less than someone whose neck pain progressively gets worse, possibly requiring surgery and impacting their ability to work.

To make matters more complicated, these cases are very subjective – there is no science to determine the worth of each case. Some insurance adjusters and lawyers may therefore not see eye to eye on a case. One of our jobs is to convince insurers that your case is worth what we think it is worth.

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