Auger & Hollingsworth

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    Cynthia Ferguson, Personal Injury Client
  • When should I call the Police after an Ontario motor vehicle accident?

    After suffering a motor vehicle accident in Ottawa there are many things going through your mind.  Many people wonder when they should call the Police to the scene.  Is it only when there is significant damage to the car, or are there other considerations to keep in mind?

    If you have been involved in an Ontario motor vehicle accident and sustained injuries resulting in a loss of work or mobility call Brenda Hollingsworth Personal Injury Lawyers at 613-860-4529 for a free consultation. We can advise you on the best options for your claim and how to pursue compensation.

    There are a lot of considerations to take into account after an Ontario motor vehicle accident. The amount of damage on a car can be deceiving.  A trailer hitch for example can take a great deal of impact without looking overly damaged. However, the driver could have suffered significant impact from the hit.

    There is never a “bad reason” to call the Police when in a motor vehicle accident in Ottawa. If you feel any pain or think you may have suffered a personal injury,  call the police to attend the scene so that they will file a report. It will help you support your claim later on.

    Watch CTVMorning Live as Kurt Stoodley and Brenda Hollingsworth speak about personal injury claims after an Ontario motor vehicle accidents and when to call the Police.

    Have you suffered an Ontario motor vehicle accident? Call the Ottawa personal injury lawyers at Brenda Hollingsworth’s office for a free consultation. They can show you your rights and how to fight for fair compensation.

    4 True Facts About Ontario Insurance Claims After a Car Accident

    1. An Ottawa auto accident claim is not a get rich quick scheme. Awards of money for pain and suffering are very modest in Ontario. The most severe injuries (think quadriplegia or the worst brain injury) will receive less than $350,000 for pain and suffering. Sometimes injured victims receive very large, even multi-million dollar awards. However, when that is the case, it is because they cannot work (loss of income) or have extra-ordinary future care costs.

    2. Some bad drivers need to be held accountable. While many people who cause an Ontario accident are normally careful drivers who were temporarily negligent, there are some drivers who cause multiple accidents; have many driving infractions etc. A law suit is one way to send the message that unsafe driving is not okay.

    3. Most Ontario car accident law suits are totally legitimate and deserving. The insurance industry likes to talk about fraud. While there are fraudsters out there, as in any industry, the number of fake claims is significantly overstated.

    4. Ontario Car Accident Victims Suffer. Whether it is chronic pain, broken bones, psychological illness or brain injury, car accident victims’ lives are often fundamentally and permanently changed. Monetary compensation is no substitute for their old lives, but, it is hoped that it will provide some solace.

    If you have questions about bringing a lawsuit following an Ontario car accident, contact the lawyers at Auger Hollingsworth Professional Corp. at 613 233-4529. We are here to help.

    Ottawa Lawyer | Legal Threshold to Sue After an Ontario Car Accident

    Legal Threshold to Sue After a Car Accident

    Ottawa personal injury and accident lawyer Brenda Hollingsworth spoke to several hundred personal injury lawyers in Toronto on Friday, May 29, 2009 about the legal threshold to sue for injuries for pain and suffering after an Ontario car accident.

    The talk focussed on 3 cases decided over the past thirteen months:  Nissan v. McNamee, Sherman v. Guckelsberger and Soubourin v. Dominion of Canada.

    These cases consider whether changes made to the Insurance Act in 2003 (which are only now making it to court) actually change the standard judge are applying to plaintiffs suing for damages for pain and suffering.  At this time, injured victims in motor vehicle accidents must prove that they have been serious and permanently injured before they can advance a claim for damages.  Brenda’s conclusion was that unfortunately, the trend seems to be toward tightening the restrictions.

    However, fortunately, it is expected that the provincial government will announce changes to this law very soon and that the changes will benefit accident victims who wish to obtain comensation through the courts. We will be posting videos and blog posts about these changes when they are announced.

    Whether or not you meet the legal threshold to sue is a legal question that should be answered for you by a lawyer acting in your best interest.  If you would like to inquiry about your injury and a possible law suit, contact us for a free initial consultation.

    Ottawa Personal Injury Lawyers: Damages for Pain and Suffering / Non-Pecuniary Damages in Ontario

    Ottawa Personal Injury Lawyers: Damages for Pain and Suffering / Non-Pecuniary Damages in Ontario

    Your personal injury lawyer will tell you that the information and evidence an Ontario injured accident victim gathers and collects to support his or her claim for damages for pain and suffering is very helpful if it provides evidence of how the accident has impacted the victim’s life.  

    In Ontario, the calculation of damages for pain and suffering by your lawyer or by the Court is not an exact science.  Awards for damages and settlements are based on what other victims have received in the past for similar injuries.  There will usually be a range of damages for a particular type of injury that can be drawn out from the case law.  Your specific facts will determine where you fit in the range.

    In Ontario, there is a cap on damages that was set by the Supreme Court of Canada in 1970.  The damages cap is indexed with inflation.  Right now, the maximum an Ontarian can be awarded for pain and suffering is between $325,000 and $350,000.  Damages at the cap level are generally reserved for the most serious cases of catastrophic injury.

    For car accident cases,  there is also a financial threshold your case must surpass for you to receive damages for pain and suffering.  The amount of the threshold was set in the Insurance Act and the regulations passed by the provincial government.  For cases where the damages for pain and suffering are evaluated at less than $100,000, there is currently a $30,000 statutory deductible.  That means that if your damages for pain and suffering are $70,000, the insurance company only has to pay $40,000.   If your damages are $25,000, you receive nothing for pain and suffering. 

     The personal injury lawyers at Auger Hollingsworth strongly object to this deductible which is the harshest in North America and which has been referred to by at least one judge as a “tax on pain”.  However, this is the current state of the law.  We urge our clients to contact their Member of Provincial Parliament to voice concern about this issue.  One of our personal injury lawyers met with her own M.P.P. Jim Watson (formerly of Ottawa West- Nepean) in November 2007 to discuss this issue.

    In light of the deductible, it is very important to provide as much evidence as possible of the impact of the injury on your life.  In some cases, the evidence from the calendar could push a case over the $100,000 mark, which results in a $30,000 gain to you.

    If you would like more information about what your injury case may be worth, contact the accident lawyers at Auger Hollingsworth to schedule a free consultation.  There is no obligation and there are no hidden costs.  You can call us at 613 233-4529 or email us at info@ottawalawfirm.ca.

    Ottawa Car Accidents and Pain, Suffering and Loss of Enjoyment of Life

    Ottawa Car Accidents and Pain, Suffering and Loss of Enjoyment of Life

    If you have been in an Ottawa car accident or a car accident elsewhere in Eastern Ontario and want to sue for pain, suffering and loss of enjoyment of life, you must prove that you have suffered a “threshold injury”.  What does that mean? 

    It means you have suffered:  permanent serious impairment of an important physical, mental or psychological function or permanent serious disfigurement.

    If your injury meets the threshold, you can sue.

    In addition to the threshold, your Ontario accident damages will be reduced by a deductible.  The deductible changes from time to time.  Email us and we will let you know what deductible applies to your accident.  

    It is not easy to guess whether your Ontario car accident case meets the legal and medical test to determine if your injury is a “threshold” injury or not.   We would be happy to review your case, for free, to let you know what we think.

    Contact an Ontario personal injury lawyer at info@ottawalawfirm.ca to find out if you meet the Ontario threshold and if so, what deductible applies to your case.

    Ottawa Car Accident Claims and Loss of Income:

    You can also sue for a loss of income you have suffered because of an Ontario car accident. You do not need to meet the threshold to get damages for loss of income (or loss of your earning capacity).

    The bad news is that you cannot claim any income loss for the first seven days after the accident. Aftrer that, you can claim 80% of your net income loss up to trial or settlement. Future income loss is awarded on 100% of your gross (before-tax) income loss.

    Your loss of income damages will be reduced by the income replacements money  you receive from  accident benefits (income replacement benefits), short term or long term disability benefits or Canada Pension Plan disability benefits.

    Ontario Car Accident Claims and Health Care Expenses:

    You can also claim past and future health care expenses beyond those covered by OHIP or your accident benefits insurer from the at-fault driver.

    Ottawa Car Accident Claims and Housekeeping and Home Maintenance Expenses:

    If your ability to perform your normal housekeeping or handyperson tasks has been impaired by your car accident, you can claim reimbursement for reasonable past and future expenses. Your Ontario car accident damages will be  reduced by housekeeping and home maintenance benefits paid by your accident benefits insurer.

    Ottawa Car Accident Claims and Family Law Act Damages:

    Family members of the injured person in Ontario may have a claim for damages based on loss of care, guidance and companionship, in cases of injury or death. Each family member’s damage award is subject to a deductible.  Check with a personal injury lawyer to determine what deductible applies to your case.

    Does Your Ontario Personal Injury Case Meet the Legal Threshold?

    Does Your Ontario Personal Injury Case Meet the Legal Threshold?

    If you are an Ontario motor vehicle accident victim, you probably received a letter from an insurance company telling you that you cannot sue for pain and suffering unless your injuries meet the legal “threshold”.  The “threshold issue” is whether the plaintiff  (I.e. the injured victim”) has sustained a permanent, serious impairment of an important physical, mental or psychological function as required under s. 267.5(5) of the Insurance Act.

    Prior to October 1, 2003, the essential elements of the threshold were not defined in the legislation but had been shaped by threshold motions decided by judges, most notably, Meyer v. Bright; Lento v. Castaldo and Dagliesh v. Green.

    Bill 198, the most recent amendments to the threshold, came into effect on October 1, 2003 by Ontario Regulation 381/03.  This regulation defined the terms “serious”, “important” and “permanent.”  The regulation also outlines the evidence that must be adduced to meet the threshold.

    Since April 2008,  we have seen the development of cases under Bill 198,  in addition to continued case law under Bill 59.  From the plaintiff’s perspective, the interpretation of Bill 198 has been mixed.

    Virtually every case acknowledges that the Bill 59 case law remains relevant.  No-one suggests that Bill 198 overrules Meyer v. Bright.  However, there is a developing body of case law suggesting what plaintiffs’ lawyers feared.  Namely, that the purpose of Bill 198 was to reduce the number of accident victims who can claim damages for their injuries.

    Here are descriptions of some of the leading cases.

    Nissan v. McNamee

    The earliest Bill 198 case, Nissan v. McNamee decided by Justice Morissette on April 30, 2008 resulted in a finding that the threshold had not been met.  However, the result was largely because the plaintiff’s evidence was not believed.  Justice Morissette’s analysis of the defining regulation was largely encouraging.

    Justice Morissette indicated that the “ultimate question” was whether the defining regulation was implemented to codify the court of appeal decision in Meyer v. Bright or whether the legislator’s intent was to substantially reduce the number of motor vehicle cases in court.

    The answer to that question became an issue of statutory interpretation.  The defendants argued that amendments to legislation are made for a reason and that the reason was to tighten the threshold.  Justice Morissette’s response was that, in her opinion, “efforts to reframe the broad approaches that have been applied since Meyer should be resisted.”

    Justice Morissette highlighted four distinctions between the de facto definition of serious in s. 4.2(1)1 of the regulation and the definition of “serious” in Meyer but in each case demonstrated that the apparent distinctions could be reconciled with Bill 59 case law.  The reference to “accommodation” in the context of employment is simply a codification of the duty to mitigate.  “Reasonable” efforts in relation to “accommodation” simply suggest that the plaintiff has to prove an effort was made to seek accommodation.  Similarly, “age”, referenced in the regulation,  was previously considered in the case law.

    The fourth change, the addition of the word “most” to modify “daily activities” was identified as the most significant change.  She characterized this change as a clarification that it is not enough to have “some” activities impacted.

    Justice Morissette described the explicit definition of “important” at s. 4.2(1)(2) of the regulation as consistent with the guidance from Meyer.

    Justice Morissette also characterised the definition of “permanent” at s. 4.2(1)(3) of the regulation as requiring that the impairment remain serious permanently which was not distinct from the existing jurisprudence.  She also rejected the defendants’ submission that the definition of permanent imposed an objective element.  The requirement that the impairment “be of a nature that it is expected to continue without substantial improvement when sustained by persons in similar circumstances”  means that a plaintiff with chronic pain must be compared to persons with chronic pain, not with persons who recovered from an injury without chronic pain.

    A number of Bill 198 cases followed Nissan v. McNamee with relatively little significant analysis.  These cases are summarized below under the Case Summaries.  However, more recently, there have been two decisions that suggest that Bill 198 was intended to “tighten up” the threshold and make it harder for motor vehicle accident victims to sue.

    Sherman v. Guckelsberger

    In January 2009, Madame Justice Milanetti decided Sherman v. Guckelsberger.  Justice Milanetti determined that the plaintiff in Sherman did not meet the threshold. Significantly, she also held that the legislature had intended to “tighten up” the threshold by the introduction of the defining regulation.

    The plaintiff had suffered soft tissue injuries (primarily back pain, shoulder pain, headache, neck pain) following a rear end collision.  The Plaintiff’s expert diagnosed a WAD III injury, others diagnosed a WAD II injury.

    Justice Milanetti expressly disagrees with the analysis in the Nissan decision, commenting:

    [Morissette J.] concludes, in my view, that the Bill 198 legislative changes do little to change the Bill 59 legislation that predated it. Respectfully, I have a different view of the changes and their ramifications.

    Similarily, Milanetti J. reasoned:

    It is my view, that if the legislators saw fit to amend the legislation yet again-increasing the deductible for claims under $100,000 and making it so much more specific, they did so with a view to tightening it up from the former version.

    In this case, Justice Milanetti held that the plaintiff’s soft tissue injuries did not satisfy the threshold.  The plaintiff was asserting that she met the Bill 198 threshold on the basis of diminished work capacity. She had maintained function in her day to day life, such that she would not meet the threshold under the “daily life activities” criteria.

    The plaintiff worked in a doctor’s office.  She was off for a week, worked part time for two weeks and then went back to work full time, which was 4 days per week.  She also had a second job, doing bookkeeping out of her home. 36 months after the accident, the plaintiff reduced her work hours.  However there was no reduction in pay due to her bookkeeping job.  Justice Milanetti was put out that the plaintiff’s decision to reduce her hours of work was taken “virtually unilaterally” and not on the advice of her heath care team.

    Justice Milanetti reasoned that the evidentiary criteria in the regulation are mandatory and that the plaintiff did not have sufficient evidence.  There was no evidence adduced of “reasonable accommodations to allow [the plaintiff] to continue her employment”. Justice Milanetti said that “I have difficulty accepting that Ms. Sherman has suffered a substantial interference in her ability to continue her usual employment despite reasonable accommodation efforts.

  • Auger Hollingsworth Personal Injury Lawyers representing injured people in Ottawa, Smiths Falls, Perth, Cornwall, Kingston, Renfrew, Lanark, Pembroke, Petawawa and Hawksbury, Toronto, Peterboroght, L'Orignal. Note: This Website Provides Information but not legal advice. Contact a lawyer for legal advice about your case. Every case is different.
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