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New Trends in Car Accident Law (Ontario)

Personal Injury Law and insurance claims handling practices have trends.

Just like we see trends for runway fashion, or trends on a celebrity packed red carpet; we see trends for accident law. What’s hip, sexy, or cool for one insurer, or for one judge on a case, will likely apply to the next insurer or judge. It’s a copy cat industry.

Now law isn’t as trivial or fickle as the world of fashion. It takes judges to rule on the law. It takes politicians to create law. It takes people to elect those politicians who make the law. All it takes is one fashion designer to create the next “big hit“.

Other lawyers who don’t practice personal injury law want to know what’s new, and what’s changed with Ontario’s car accident law. Let me assure that you LOTS has changed in the last few months alone. Leave it up to our law firm to keep you up to date with those “hottest trends“.

Did you ever think that personal injury law could be so cool and hip? Me neither.

1) CYBER SURVEILLANCE: Why hire private investigators to go out and do old fashion stalk like surveillance. You know. The type of surveillance when they hire people to stake out your house, follow you around town during your normal day. The investigators take photos or videos of an accident victim doing something they shouldn’t be doing; or doing something which they swore under oath at Examination for Discovery that they couldn’t do. This is a costly, timely and inefficient way to do business.

It’s far cheaper, easier and more efficient for investigators to conduct surveillance of you online. They’ll look at your Facebook, Twitter, Pintrest, MySpace, LinkedIn accounts for starters. Any blogs you keep, forums you belong to (private or public) will also be within their grasp. I’ve seen more get damaged on account of cyber surveillance than on account of the old school real thing.

Keep in mind that old school stake out surveillance is still a very effective tool for insurers. With the advance of camera technology, I’ve seen some remarkably sharp images taken of clients from a very far range.

2) AUTOMATIC PLACEMENT IN THE MINOR INJURY GUIDELINE (MIG) The Minor Injury Guideline has devastated accident benefits for EVERYONE in Ontario. You pay more in insurance premiums, but you get less in benefits. Period. You used to be automatically entitled to $50,000 in benefits. Now, with the introduction of the MIG, the insurer gets to act as judge, jury and executioner and place you into the MIG where benefits are just $3,500. It has become the policy of many large insurers, to automatically place any accident victim who makes a claim in to the MIG, regardless of the injury. That means that your medical and rehabilitative benefits which are not covered by OHIP get capped at $3,500 unless the insurer decides to take you out of the MIG.

What will make an insurer take you out of the MIG? Good question. It usually takes a lot of yelling, screaming, threats, and finally litigation to get accident victims out of the MIG, regardless of injury. But Brian, this sounds like bad faith or improper claims handling on behalf of insurers. It certainly is. Which leads me to our next trend.

3) INSURERS HAVE EVEN LESS INCENTIVE TO SETTLE CLAIMS The Ontario Government has passed legislation to effectively reduce pre-judgment interest rates in car accident cases. The interest rates were escalated in order to encourage settlement. It was a check and balance to protect accident victims from deep pocketed insurers delaying cases. Insurers with lots of money can afford to wait out your claim for many years. In fact, while they’re sitting on your money, they’re investing it in order to make more money. The seriously injured accident victim on the other hand cannot afford to wait when there is no income coming in because they can’t work due to their injuries. A reduction of the higher pre-judgment interest rate has made an already slow process, even slower.

4) ELIMINATION OF JOINT AND SEVERAL LIABILITY FOR MUNICIPALITIES Mayors from across Ontario have been screaming for the elimination of joint and several liability for municipalities in personal injury cases. Basically, if there’s a car accident between 2 cars on an icy road, and the Plaintiff lawyer sues the at fault driver, along with the City for not properly maintaining its roads; and the City is found 1% responsible, the City could end paying the lion’s share of the claim. This is particularly significant when the claim exceeds $1,000,000 because the City’s policy limits are very high. Standard car insurance policy limits are just $1,000,000. It would NOT surprise me if in the next budget, or within the next 5 years, we see such an elimination. As a matter of fact, it would not surprise me if we saw a complete elimination of joint and several liability for all car accident related claims in Ontario. It would be a double standard because such an elimination would certainly come at the request if the Insurance Bureau of Canada, which is the lobbying arm for Insurance Companies in Canada. How can you only eliminate joint and several liability for car accident cases when it has so many other applications which have been adopted in the common law? Commercial disputes, other torts, slip and falls, dog bites, medical malpractice claims, professional negligence and the list goes on. This would have to be an elimination across the board, which would be more controversial than just an elimination for car accident cases.

5) A REDUCTION OF CATASTROPHIC BENEFITS Catastrophic Benefits are reserved for the most seriously injured accident victims on account of a car accident in Ontario. The Insuance Bureau of Canada has been trying to reduce these benefits, and make the definition of “catastrophic” more difficult to claim such benefits. While these benefits have not recently changed, I foresee that the definition of catastrophic will change, benefits will be further reduced, and it will be more difficult to fit under the definition of catastrophic.

6) THE ELIMINATION OF THE FINANCIAL SERVICES COMMISSION OF ONTARIO (FSCO) FOR CAR ACCIDENT CLAIMS If you had an accident benefit dispute against your insurer, you needed to first mediate that dispute at FSCO. The mediation was supposed to take place within 60 days. 60 days then became 120 days. 120 days then became 1 year! The mediation normally took place over the phone. If the mediation settled, then great. If not, the dispute could then be Arbitrated at FSCO, or litigated at the Ontario Superior Court of Justice. The mediators and arbitrators has special knowledge of the Insurance Act, and the Statutory Accident Benefits Schedule (SABS) which is very complicated and lengthy legislation which deals exclusively with car accident claims. The government is eliminating FSCO’s power over mediating and arbitrating these claims. They are moving the claims over to the Appeals Review Tribunal. Nobody has any idea how this will play out. The Appeals Review Tribunal deals with all sorts of cases. Tobacco, Firearms, Storage Liens, Fishing Licenses, Tariffs. We should all be concerned. This move made zero sense.

7) BENEFITS MUST BE “INCURRED” TO CLAIM AN ATTENDANT CARE BENEFIT: Car accident law has become a rich person’s law. It benefits the wealthy, and hurts the poor. You have to show the insurance company that you’ve sustained an economic loss, or that the benefit is incurred, in order to receive an attendant care benefit. Didn’t use to be that way. Retired people, students, unemployed, under employed, self employed people suffer as a result of this significant change.

On to more exciting things? Sure.

Toronto’s basketball team is making the playoffs! They haven’t made the playoff in 7 years. Last year, their general manager was making personal phone calls to all season ticket holders asking them to renew their season tickets. This was a plea to the public because the team was so bad, and was going nowhere fast.

This season, Toronto made the playoffs. To reward their fans for their loyalty, Toronto is charging the HIGHEST prices for playoff tickets in the NBA. What a way to thank the base that has shown relentless passion and devotion to a franchise who has only won 1 playoff round in their 19 year history. Did I mention that there were under 3,000 tickets available for purchase on the open market? The rest of the tickets were sold in priority to season ticket holders and sponsors.

Thank you all who commented on the large bridge ad we took out on the Oxford St. Bridge near my London office. We all think it looks great. We thank everyone for their positive feedback.

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