Frequently Asked Questions

As a general rule bring any and all documents that remotely relate or are connected to the accident. The following is a list of some of the essential documents that must be brought at the initial meeting with the lawyer:

• A detailed resume.
• If you were involved in a car accident, if and when you hear about a Court date for the Highway Traffic Act charges against the other driver, please advise us of the date, time, place and courtroom number.
• Action photographs of you as well as photographs of you with family members before the accident.
• Copies of any awards or certificates, which you received through the years for outstanding achievements, ex., Terry Fox walk-a-thons, photographs of trophies, etc.
• Tax returns and financial statements going back as many years as possible.
• Photo identification, including driver’s license and birth certificate.
• The names and addresses of all family doctors you have had going as far back as you can remember.
• Your health card number.
• A list of all unrelated accidents and/or medical problems, with a brief summary of each.
• Names, addresses, phone numbers of your friends, relatives and co-workers, who will be willing to provide a statement about your pre-accident functional status, and the impact of the injuries in your personal life or in your employment/business.
• If you were involved in a car accident, bring the police report. If you were involved in a slip and fall at a business, residential or commercial property bring a copy the incident report.
• Bring all your medical documents that you presently have in your possession.
• If you were involved in a car accident, bring your accident benefits file in your possession.

To ensure you receive maximum protection and compensation, call Stayshyn Law Offices and have a free consultation today with our personal injury legal team now.

How long your case will take to resolve is also very difficult to determine. In our experience, often it takes more than two years to obtain future prognosis of your injuries. In the initial stages, we recommend that the main focus should be upon your rehabilitation and not to incur expenses to prepare for the Trial. Our recommendation may delay the process somewhat. However, it will also help to not incur substantial expenses in the initial stages, when we do not know the future outcome and the resultant losses as a result of your injury. If your instructions are to pursue litigation aggressively right from the very beginning, then please do advise and we will act according to your instructions. We will point out that in that case a substantial retainer may be required in the initial stages.

You can release your health records to your own insurer. When you release this information, it is recommended that you only allow the insurance company to collect your medical information starting from two years prior to the accident. They are only entitled to relevant information and it is essential that you contact an experienced personal injury lawyer who can ensure the insurance company does not take unfair advantage of you by going on a “fishing expedition” of personal and confidential information.

Under the mitigation of damages doctrine, a person who has suffered an injury or loss must take reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of the plaintiff’s recovery.

A tort victim also should act to mitigate damages subsequent to the wrongful acts of another. For instance, assume that the victim in a car accident suffers a broken leg. If the victim refuses to get medical treatment and the leg eventually must be amputated, the defendant may be liable only for the reasonable medical expenses to repair a broken leg. Because a reasonable person would seek medical attention after suffering a broken leg, a court could find it unreasonable to make the defendant pay for additional damage that the victim could have prevented with minimal effort.

Other types of mitigation includes but not limited to:

• seeking and complying with all reasonable medical treatment;
• seeking to return to pre-accident employment if able
• seeking retraining if cannot go back to work if able
• applying for all benefits through all available insurance policies (i.e. work benefits, spouse benefits, private benefits, parents benefits etc…)
• applying for all government assistance (i.e. Ontario Disability Support Program, Canada Pension Plan Disability, Ontario Work, Employment Insurance, Employment Insurance Sick Benefits)

Therefore, you must do all that is reasonable to improve your situation and reduce what the defendants may be required to pay you, failing which your damages may be reduced.

To ensure you receive maximum protection and compensation, call our personal injury legal team now.

What is contained under this heading is a very important in terms of maximizing your chance of a successful result for your claim. One of the reasons for this is that the information contained in the medical reports and the doctors’ clinical notes and records will play a very large role in determining the value of your claim.

Tell Doctors & Health Care People ALL of Your complaints ON EVERY VISIT

As mentioned above, the information contained in the medical reports and various clinical notes and records of health care personnel will play a large role in determining the value of your claim. What any doctor writes in your medical report depends on the notes your doctor has in your chart. And what any doctor has in your chart depends on what you tell your doctor on various visits. Take an example where you injured both your neck and back, but the back is much worse–the back is very sore and the neck is only slightly sore. You attend on a doctor or physiotherapy or chiropractor and because people tend to only mention the symptom that bothers them the most, you tell the doctor that your back is very sore and stiff but fail to mention anything about a sore neck. The doctor then writes in your chart “patient complaining of sore and stiff back”. No notation is made by the doctor in your chart of sore neck, because you did not mention a sore neck. When we write to the doctor for a report, the doctor will look at your medical chart to refresh his memory and write their report based on your medical chart. They will mention only the sore and stiff back in your report and will not mention the sore and stiff neck, because you did not tell him anything about it. As a result, you will not receive fair and reasonable compensation for your claim. MAKE A LIST OF YOUR INJURIES AND TAKE IT WITH YOU TO YOUR MEDICAL APPOINTMENTS.

However, you should never overstate your injuries and the impact of these injuries upon your activities of daily living.  As a matter of practice, the insurer for the at-fault driver as well as the no-fault insurer will conduct surveillance.  If the activity level shown on the surveillance is much higher than you have reported in your statements to the doctors or insurance company, then it will certainly seriously undermine your case.

Truth never hurts.  So, if your activity level increases with therapy and/or with time, then advise your doctors accordingly.  However, if you have any limitations because of your accident-related injuries, then advise your doctors accordingly as well.

Lay witness statements from credible neighbors, co-workers, friends or family can be crucial to the success of your case. These statements help explain how you have changed as a result of the accident. Generally, the witness statement discusses the impact the accident has had on:

1. Social and recreational life;
2. Home and Family Life;
3. Work Life;
4. Housekeeping and Home Maintenance and
5. Mental and Physical Health.

Family Law Act Claimants

Pursuant to the provisions of the Ontario’s Family Law Act, various relatives of yours, have the right to advance claims for their financial losses, as well as their losses of care, guidance, and companionship, suffered as a result of your injuries. The law says the following:

Right of dependents to sue in tort

61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).

Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).

If the injury to the principal party was due to a car accident the non-financial claims of family members are subject to a deductible unless it involves a fatality.

Family members who wish to pursue a claim will be required to attend meetings, examinations for discovery and court proceedings and may have to take several days off work.

Not all family members should be included in a claim. There are advantages and disadvantages that must be discussed and examined in person with our legal team. Call today to find out how our Personal Injury Team of lawyers can assist in obtaining compensation for the entire family!

We expect that you will reasonably cooperate and communicate with us. We can provide our best advice and guidance only when we have all relevant information. It is vital that you be candid and honest at all times.

You have the right to make all critical decisions about how your case is conducted. For example, your lawyer or paralegal has an obligation to ask for your instructions about critical decisions such as accepting a settlement or having a hearing.

If you fail to have a valid power of attorney prior to a serious accident, your affairs may be managed by the Government unless the court orders otherwise.

A power of attorney is essential to ensure your decisions are made by a person of your choosing otherwise the government will make the decisions for you!

An enduring Power of Attorney may save substantial time and money in the event of incapacity or an extended time away from home. A Power of Attorney is a simple document that allows someone else to administer some or all of your affairs during your lifetime. It can become effective now or only in the event of incapacity such as a car accident, can be limited to only dealing with certain assets and can provide alternate attorneys. A bank power of attorney only deals with assets at that institution. Most people should take this simple precaution in this very complex and hurried environment in which we live. Failure to have a Power of Attorney could result in a costly court application to administer such person’s affairs. You can protect yourself by requiring that two people act together as your attorney. You do not want the Government or the Public Guardian and Trustee in your affairs.

If you have become incapacitated (that is unable to make your own decisions), it will be very expensive to have the court appoint a power of attorney. Therefore, it is always best to prepare your power of attorney now while you have capacity to do so.

In ensuring you have a power of attorney we recommend you also have a complete estate protection and also complete a will.

Some of the benefits of making a Will include the ability to direct where your assets will go, the cost and time savings of dispensing with an administration bond and the speed in distributing assets to the beneficiaries, pay debts and fully administer the estate. Each in itself is a valid reason for having a Will prepared at this time.

Call Stayshyn Law Offices to have a free consultation with our personal injury legal team of lawyers today so that we may help guide you through the many mine fields that an injured victim will face in any injury case.

In the initial stages, it is difficult to provide any estimate of the associated costs to prosecute the case on your behalf, because at this stage, the future prognosis of the injuries, and the impact these injuries will have upon you, is not known. Further, whether the case will settle before or after the discoveries or trial is also not known.  While we have little idea what the actual amount of our statement of account will be to you, we have tried to explain in detail how our statement of account will be calculated.

If you have a case and we represent you, you will not have to pay our legal fee unless and until we recover money for you. It will cost you nothing to meet us to determine whether we can help you. NO OBLIGATION, NO RISK! Call our legal team now to protect you and your family’s future.

Explanation of Costs (that is, legal fees and expenses/disbursements)

If you institute proceedings to recover damages for the injuries you and your family members have sustained as a result of an accident, you will be designated as “the plaintiff” in these proceedings. The person you are suing will be designated as “the defendant”.

General

In the Province of Ontario, a plaintiff who achieves any reasonable degree of success in his/her lawsuit is entitled to recover, from the defendant, party and party costs, in addition to any damages to which he or she is entitled. This happens whether your case is settled or proceeds through a trial to Judgment. The party and party costs are calculated according to a strict schedule of fees and disbursements and will reduce a portion of the total legal bill.

Further, an amount of fees is charged in addition to the party and party fees.  It is referred to as the solicitor and client fees.

In addition to the legal fees, your litigation will also require ongoing expenses, which will have to be incurred for obtaining police reports, clinical notes of various doctors, medical reports etc. You may be responsible for payment of these expenses as and when these are incurred.  If your case is successful, then some of these expenses will be reimbursed by the insurance company.

In our experience, if a personal injury case results in a settlement, then the insurer generally pays 10 to 15% of the assessed damages as party and party fees, in addition to the assessed damages, and assessable disbursements. The party and party fees is paid in all third party settlements but is not paid in a no-fault auto case (accident benefits).

Mosty people retain our services by way of a contingency agreement whereby, we will charge you a fee of the total recovered (less disbursements), plus HST and disbursements.

When you have a legal matter, you may need to hire a lawyer or a paralegal. If you think you could receive money for your matter, you may be able to pay for their services on a contingency basis. That means you only pay legal fees if you receive money because you win your case or get a negotiated settlement. If you lose your case, you do not pay legal fees, although you may have to pay for other legal expenses. Your lawyer or paralegal will usually charge a percentage of the money that you get as a contingency fee, plus HST.  The percentage charged depends on the lawyer or paralegal you choose and the complexity of your case.

Other ways of paying legal fees

Contingency fees are just one way of paying for the services of a lawyer or paralegal. Other options could include paying an hourly rate or paying a flat rate (one fixed amount) for the legal services.

There are two advantages to having a contingency fee agreement. First, you don’t pay fees for legal services up front. Second, if you lose your case, you will not have to pay legal fees to your own lawyer or paralegal.

There are also possible disadvantages. If you settle or win your case early in the process, the percentage of the award your lawyer or paralegal charges you for legal fees may be higher than if you had been paying hourly or fixed fees.

Another thing to think about is what would happen if you or your legal professional decides to end the contingency fee agreement before the case concludes. This could happen, for example, if you decide to hire a different lawyer or paralegal. It is likely that you would have to pay legal fees for work they have already done, at an hourly rate, plus any other legal expenses. This condition is written into the contingency fee agreement.

Keep in mind that there are other legal expenses besides fees for lawyers or paralegals. Your contingency fee agreement may not cover these.

The fees you pay to a lawyer or paralegal usually only cover the cost of the time they spend working on your case. There are two other important types of legal expenses: disbursements and costs.

Disbursements

These are expenses that your lawyer or paralegal pays on your behalf to third parties for items and services needed to support your case. Generally, disbursements do not include the ordinary costs of providing legal services. For example, overtime or fees for law clerks or administrative assistants cannot be charged to you as disbursements. However, disbursements can include expenses approved by a court or tribunal or authorized by a regulation known as “Tariff A,” even if these expenses relate to the costs of providing legal services.

Examples of disbursements that can be validly charged to you include:

• court filing fees
• hiring court reporters
• costs of transcripts
• paying for expert witnesses, such as medical experts
• cost of copies of documents prepared for the use of the judge (allowed by Tariff A).

You will likely have to pay for disbursements even if you lose your case.

When do I pay for disbursements?

It is most common for the lawyer or paralegal to pay for disbursements and then recover the money from you when your case concludes. In some cases, however, you may have to pay for disbursements as you go. Your agreement should state clearly when and how you agree to pay for disbursements.

Disbursements can be substantial sums of money. Your lawyer or paralegal has a duty to tell you if there are major expenses in your case and the impact they will have on the settlement or award you may receive.

Costs

In legal proceedings, “costs” are the money that a court or tribunal may order the person who loses the case to pay to the person who wins the case (or a stage in the case). Costs can also be included as part of a settlement. In most cases, these awarded costs pay only a part of a person’s legal expenses.

If you lose your case, you may have to pay costs to the successful party. Having a contingency agreement does not protect you from having to pay costs. You should talk with your lawyer or paralegal about the risks involved in your case.

If you win or settle your case, you may receive costs. You can use this money to help pay for your legal expenses. Your lawyer or paralegal should try to get as much money for you in costs as they can.

The lawyer or paralegal usually sets a percentage of the award or settlement as the contingency fee. The percentage also applies to any amount you receive for costs, but it does not apply to any amount you receive specifically to help you pay for disbursements.

The percentage can be higher or lower based on several factors.

For example, you may have a straightforward case that they think you are likely to settle early in the proceeding. In this case, the percentage may be lower.

On the other hand, if your case is complex, and your lawyer or paralegal are taking on a lot of risk because you might lose, they may set the percentage of the contingency fee higher.

The main factors they consider are:

• how much time they think they will have to spend on your case
• the risk that you might not win your case
• how much money they think you might get as a settlement or award.

The legislation sets the maximum fee that a lawyer or paralegal can charge. The maximum fee cannot be more than the amount you receive from your award or settlement. To calculate the maximum fee allowed, the award or settlement will include costs but does not include disbursements and taxes.

In all cases, the fee must be fair and reasonable.

In exceptional situations, your legal professional may ask, in the contingency fee agreement, for the right to choose between the contingency fee or the costs awarded after a trial or hearing.

It is best to compare the contingency fees that lawyers and paralegals are offering before you sign any agreement.

Lawyers and paralegals have to post the maximum contingency fee they charge on their websites or tell you when you contact them. Many lawyers and paralegals offer a free consultation before taking on your case to discuss your options.

For help finding a lawyer or paralegal, you can use the Law Society of Ontario’s website. From the home page, select “Public Resources,” then select “Finding a Lawyer or Paralegal.”

You have the right to know about your legal professional’s education and experience. Many lawyers and paralegals will describe this on their websites. You can also ask about their experience in cases similar to yours.

You have the right to end the agreement at any time.

Your lawyer or paralegal can also end the agreement, but only in certain circumstances. These include when:

• You tell them to do something that goes against their professional duty
• You lie to them
• You refuse to accept their advice on an important point
• You persist in being unreasonable or uncooperative
• You do not pay your bills in a timely manner
• They cannot get the instructions they need from you to pursue your case
• They feel that acting for you places them in a conflict of interest.

No matter who ends the agreement, you may still owe your lawyer or paralegal for their legal services and expenses so far, plus HST. They have the right to take this money from your settlement or award at the end of your case. These terms will be set out in the agreement.

Your lawyer should help you to find the best medical providers trained in treating patients with your injuries; interview and obtain statements from all witnesses to the accident; research the law that applies to your case; preserve the evidence of your damages in a way that will be admissible in court if it is necessary to go to trial; advise you as to the value of your claim through research as to settlements and judgments of other cases similar to your own; prepare a detailed and convincing settlement brief to present to the insurance company to obtain a fair settlement of your claim; and, take your case to trial. If it is necessary in order to obtain fair compensation for you.

We utilize a team approach in the office, and many tasks are delegated down the line.

Often, lawyers are out of the office for extended periods of time. We have an extremely competent staff who can answer most questions you may have. If your question is not something our staff can deal with, then you can leave a message in the lawyer’s voice mail and a number where you can be reached, and he/she will get back to you as soon as possible.

Technology has changed both the ways in which we get instructions from our clients, and how we serve our clients. It is not necessary, as it may have been, for our clients to make frequent visits to our office, and we try to minimize the number of appointments that are needed. We encourage you to use voicemail, e-mail, virtual meetings and fax to communicate with us as much as possible.

Our preferred way of communicating on your file is electronic mail.  We are moving away from paper files to storing all file material, where possible, electronically.  As a result, your file will predominantly be stored in electronic format, and the correspondence on your file will be sent in electronic format, whenever possible.  If you have secure password protected e-mail that you can rely on for private, confidential communications, we will use e-mail to communicate with you, including sending you letters, accounts and copies of the material we send and receive on your file.  If we cannot use your e-mail address for these purposes, please let us know.

We recognize the importance of privacy and the sensitivity of personal information. As lawyers we have a professional obligation to keep confidential all information we receive within a lawyer-client relationship.  We are committed to protecting any personal information we hold.

For more information, you can read our privacy policy.

1. What is an examination for discovery?
   Under the Rules of Civil Procedure, each side in the lawsuit has the right to make discovery of the opposing party. Thus, when you become a plaintiff or defendant in any litigation, the opposing party may require you to appear at a specified time and place and give your oral testimony under oath, which testimony is taken down by shorthand or mechanical means and transcribed for future use in the lawsuit. Your discovery evidence properly given can go a long way in assisting us in handling your litigation either by way of settlement or at the trial. What you do at the discovery can help you or hurt you, depending upon your attitude, truthfulness and appearance. In its simplest form an examination for discovery is the oral testimony of a witness taken under oath. The questions asked of you will address themselves to information that is relevant to the case or to the discovering relevant facts. You will not be expected to “put on a performance”. You do not have to have a perfect memory. You just need to be who you are – that is the essence of your case.
2. Not a court appearance
   This is not a Court appearance. It is an informal procedure and only you, your lawyer, the defendant, the defendant’s lawyer and a Court Reporter will be in attendance.
3. Your physical appearance
   You should remember that usually the first opportunity the opposing lawyer has to see you comes at the time of giving the discovery evidence. It’s important you make a good impression. But we do not want you to “dress up”. We do need you to feel comfortable.
4. The purposes of a deposition at discovery
   The opposing side is taking your discovery evidence for three reasons. The first reason is that they want to find out what facts you have in your actual knowledge and possession regarding the issues in the lawsuit. In other words, they are interested in what your story is now and what it is going to be at the trial. Secondly, they want to pin you down to a specific story so that you will have to tell the same story at the trial, and they will know in advance what your story is going to be. And, thirdly, they hope to catch you in a lie because if they were to catch you in a lie they can show at the trial that you are not a truthful person and therefore your testimony should not be believed on any of the points, particularly the crucial ones. These are very legitimate purposes, and the opposing side has every right to take your discovery evidence for these purposes and in this fashion. The way to avoid any problem with your evidence is to be, at all times, truthful and honest. It’s very dangerous to engage in a test of wits with a lawyer. On the other hand, truth and honesty can never hurt you. We will be there to protect your interests, but we need you to be truthful and honest. Speak from your memory and your heart. Examination for Discovery is an essential step in any litigation process and if done correctly can significantly increase your award and early chances of resolution. Call today to find out how our Personal Injury Team of lawyers can utilize an examination for discovery to assist in resolving your case earlier than expected and for more money!

Mediation is defined as “assisted negotiation”. It involves the use of a neutral third party, the mediator, who facilitates the exchange of information, uncovers interests, and assists the parties to explore options for mutual gain.

As an impartial third party, the mediator will enforce the ground rules and ensure that discussions proceed fairly, objectively and in a productive fashion. The mediator is not compellable as a witness in a court or an administrative hearing to disclose what occurred during the mediation.

The parties will send to the mediation representatives with authority to settle, and they understand that the mediation may result in a settlement agreement which contains binding legal obligations enforceable in a court of law.

Statements made by a person, documents produced, and any other forms of communication in the mediation are off the record and shall not be subject to disclosure through discovery or any other process, nor are they admissible into evidence in any context for any purpose, including impeaching credibility.

Meditation is a confidential process, and the parties agree to keep all communications and information forming part of this mediation in confidence.

The mediation process commonly follows these steps:

1. Introductions & opening statements – the mediator opens the first session by setting out ground rules, outlining his or her expectations, and describing the role of the third party in managing the mediation process. You may then be asked to give a brief description of the impact the incident has had upon you and your family.
2. Exchanging information and uncovering interests – new information is usually presented and/or documents disclosed at this time. This portion of the mediation is often conducted by alternating joint sessions and individual meetings or caucuses between the parties and the mediator in private. Generating options – Ideas and suggestions for resolving the conflict will arise throughout the course of the mediation. Very often, a list of options is discussed and used as a baseline for the parties in preparing a proposal to reach a resolution.

This is not a Court appearance. It is an informal procedure and only you and your lawyer, the opposing lawyer and his client and a mediator will be in attendance.

Mediation is a voluntary and informal settlement process by which the parties try to reach a solution, which is responsive to their joint needs. Their participation in the process is not intended to alter their existing rights and responsibilities unless they expressly agree to do so.

Mediation can be a very effective tool in resolving your case. We have successfully mediated thousands of cases with excellent results. Call today to find out how our Personal Injury Team of lawyers can utilize mediation to assist in resolving your case!!!

Yes, to clarify issues and to get a status update.

A. Pain and suffering and loss of enjoyment of life:

Damages are awarded for Pain and Suffering.  You will need to describe the injuries you suffered and the changes that resulted in your life. You need to be able to describe the pain that you have felt.

B. Economic Loss Damages:

1. Vocational:

• Has this accident affected your ability to work at home or outside the home?
• How did it affect your job prospects?
• Does it make you less competitive?
• Will future employers avoid hiring you because of your injuries?
• Have you or do you stand to lose your job?
• Can you or will you be able to only do part-time work?

2. Housekeeping/Home Maintenance Capacity:

• Every one of us has to look after our own homes. If the accident has affected your ability to look after home and family, we need to have details.  For example, housekeeping, cooking, cleaning, yard work, repairs and maintenance are usual duties we perform.
• If the accident has stopped or reduced your ability to do these tasks or activities of daily living, we need to know.

3. Mileage or Transportation Expenses:

• If your accident benefits insurance company has not paid for transportation to and from medical appointments, you may be able to claim these expenses in this case.  We will need a list of trips and the mileage for each trip and the total mileage.  You should make a list of each trip and the distance and provide it to me.  If you have access to the internet, check out http://www.mapquest.com/maps/main.adp and the distance can be provided by them.

Under the mitigation of damages doctrine, a person who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of the plaintiff’s recovery.

A tort victim (wronged person) also should act to mitigate damages subsequent to the wrongful acts of another. For instance, assume that the victim in car accident suffers a broken leg. If the victim refuses to get medical treatment and the leg eventually must be amputated, the defendant may be liable only for the reasonable medical expenses to repair a broken leg. Because a reasonable person would seek medical attention after suffering a broken leg, a court could find it unreasonable to make the defendant pay for additional damage that the victim could have prevented with minimal effort.

Other types of mitigation include but not limited to:

1. seeking and complying with all reasonable medical treatment
2. seeking to return to pre-accident employment
3. seeking retraining if you cannot go back to work
4. applying for all benefits (including income if earning less, medical treatment, medications) through all available insurance policies (i.e. work benefits, spouse benefits, private benefits, parents’ benefits, etc.)
5. applying for all government assistance (i.e. Ontario Disability Support Program, Canada Pension Plan Disability, Ontario Work, Employment Insurance, Employment Insurance Sick Benefits)

If it is unreasonable to expect the victim to mitigate damages following the injury, the defendant may be held liable for subsequent injury to the victim that stems from the wrongful act.

THEREFORE, YOU MUST DO ALL THAT IS REASONABLE TO IMPROVE YOUR SITUATION AND REDUCE WHAT THE DEFENDANTS MAY BE REQUIRED TO PAY YOU, FAILING WHICH YOUR DAMAGES MAY BE REDUCED.

First, call the Police, by dialing 911.  Ask for both the police to attend and if needed an ambulance.

At the scene of the accident, be sure to obtain the names, addresses, license plate numbers, and insurance information from the other drivers involved, as well as all witnesses.  If you are physically able, take pictures of the accident scene with your phone.  If you are physically unable to do so, ask a passenger or bystander to do this for you and send you the photos.

If you are injured in an accident, it is important to seek treatment immediately.  Sometimes serious injuries do not cause immediate pain.  If you experience even minor pain after an accident, you should go to the hospital or call your doctor immediately.

Not yours. The other driver’s insurance company has two goals: first, they want to protect the interests of the driver who caused you injury, and second, they want to pay you as little money as possible. Call Stayshyn Law Offices immediately in these circumstances so not to harm your case.

If you were injured or if you are partially or totally at fault in the accident, you should contact our personal injury team prior to deciding whether or not to give a statement to any insurance company.

If you have “medical payments” coverage at your work or private benefits policy, you will be able to have your bills paid under that coverage.  Otherwise, your auto insurer is required to pay bills under that coverage (different coverage limits may apply) or OHIP (Ontario Government Health Plan) may cover some expenses.  If you have no auto insurance, we recommend you call our offices immediately to explore what other options you may have for medical coverage, including the other parties’ auto insurance or the Ontario Motor Vehicle claims funds. There are many pitfalls and obstacles for the injured party to overcome so it is imperative that you call our personal injury team immediately to get you all the benefits you are entitled.

Upon convincing proof to the insurance company of your pain and suffering, most insurance companies will agree to pay for pain and suffering damages. However, your injuries must meet pass the “threshold test” and a deductible.  This is a very complex area of injury law and will be further explored with our office in our free consultation.

Proof of pain and suffering is one of the most challenging aspects of an automobile accident claim and requires detailed witness statements and doctor reports to support the claim.

Be very careful. Insurance companies make a profit by keeping money and investing it, not by paying it to injured victims. An early offer may not fully compensate you for your injuries, especially if you do not know yet the full extent of the injuries. Remember that once you accept the offer of the insurance company, they will pay you no further money. This will be true even if you later discover that your injury is worse than you thought.

It is paramount that you or a family member speak to an experienced personal injury lawyer as soon after your car accident as possible.

This claim is generally referred to as the third-party claim.

In your negligence claim for damages against the Defendant(s), you have four potential categories of damages, which are as follows:

1. Non-pecuniary general damages, that is, damages for pain and suffering and loss of enjoyment of life and loss of amenities.
2. Loss of income/Loss of Earning Capacity.
3. Future health care expenses.
4. Future cost of care.
5. Other pecuniary losses.

I. Non-pecuniary general damages, that is, damages for pain and suffering and loss of enjoyment of life and loss of amenities

Before anyone can successfully sue for this category of damages, a person must prove that his or her injury “meets the threshold”. This can only be done if the person can show that he or she has sustained one of two types of injury:

1. Permanent serious impairment of an important physical, or psychological function; or
2. Permanent serious disfigurement.

Definition of Permanent and Serious (Reg 461/96 as amended by Reg 381/03

Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.

4.2  (1)  A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

1. The impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person’s age.

3. For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, and

iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

(2)  This section applies with respect to any incident that occurs on or after October 1, 2003.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.3  (1)  A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2)  The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3)  The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4)  The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5)  In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6)  This section applies with respect to any incident that occurs on or after October 1, 2003.

If it is proved that a person’s injury meets the threshold (i.e. the injury is permanent and serious), there is a large deductible (which is indexed to increase annually) from the amount of damages the injured person would otherwise receive. In other words, to receive compensation for pain and suffering your injuries must be permanent, serious and worth more than the applicable deductible. The requirements of meeting the threshold and deducting the deductible apply only to the extent that the negligence of other drivers and owners of vehicles caused your injuries.

II. Loss of Income / Loss of Earning Capacity (s.267.5(1))

With respect to any loss of income claim, you should know the following:

1. The “meeting the threshold” principle, which applies to non-pecuniary general damages does not apply to a loss of income claim.
2. The deductible, which applies to non-pecuniary general damages does not apply to a loss of income claim.
3. A person cannot receive any loss of income for the first 7 days after the collision.
4. A person can only receive a portion of his or her net (after tax) loss of income before trial (less any accident benefits that are received). After trial, a person can receive 100% of his or her gross loss of income. Most cases settle out of Court without a trial and this provision in the Insurance Act does not mean that your case is necessarily going to go to trial.

III. Future Health Care Costs (s. 267.5(3))

These can be recovered in the tort claim, only if the above noted no-fault threshold is met, failing which these expenses are only limited to the no-fault claim.

IV. Future Housekeeping and Home Maintenance (s.267.8(6))

If you are unable to do such things as vacuuming, lawn cutting and gardening, and snow shoveling, you may be entitled to claim for loss of household and handyman capacity. This can be claimed in the negligence claim for damages.

Under this category of damages, the “meeting the threshold” principle does not apply and there is no deductible.

V. Other Pecuniary losses (s.267.8(6))

An example of other pecuniary losses are expenses you may incur, which were expenses not covered by no-fault benefits are expenses submitted to your no-fault insurer and for some reason your no-fault insurer does not pay them.

Under this category of damages, the “meeting the threshold” principle does not apply and there is no deductible.

Categories of Family Member Claims in The Negligence Action

Your family members have potential categories of damages, which include:

1. Loss of guidance care and companionship.
2. The value of nursing housekeeping and other services performed for the injured person.
3. Loss of income.

There is a large deductible on this claim as well (which is indexed to increase annually) for each family law claimant.  Family member(s) listed in a court action will be responsible for attending and providing evidence at an Examination for Discovery and paying legal costs should the action not be successful.

Please note that all claims for treatment MUST be submitted to your Accident Benefit Insurer and approved or you may be responsible to pay for all expenses incurred by the treatment providers.

This claim is generally referred to as the no-fault claim. Please advise us if optional increased coverage was purchased from your automobile insurer. If it was purchased, then you will be entitled to increased benefits.

Generally, you are entitled to no-fault benefits so long as they are reasonable and necessary as a result of the motor vehicle accident. Therefore, please consult with your Family Doctor and treating doctors to determine the best course of treatment and ensure that they agree that their treatment is reasonable and necessary as a result of the motor vehicle accident. We may also need to send you to our experts for their input into your condition as well.

If the no-fault insurer denies any benefit, then you have two years from the date of denial, to file your dispute with the License Appeal Tribunal, or your rights to this benefit will be lost.

Potential Benefits

The Following is a brief description of a few of the potential benefits you may be entitled.  Your own insurance company should provide you with a breakdown and explanation of all benefits available.  Should they fail to do so or if you have any questions, please feel free to contact us.

I. Income Replacement Benefits

An injured person is entitled to receive weekly income replacement benefits for up to the first 104 weeks (excluding the first week) after a collision if the injured person was employed on the date of the accident and thereafter suffers a substantial inability to perform the essential tasks of his or her employment. An injured person can still receive income replacement benefits after 104 weeks if the person suffers a complete inability to engage in any employment for which he or she is reasonably suited by reason of education, training or experience. One of the reasons we have requested a detailed and comprehensive resume is so that we will have precise details of your education, training and experience.

An injured person receives no income replacement benefits for the first 7 days after a collision and thereafter, as long as a person qualifies, he or she receives 70% of gross weekly income (after deducting taxes) and after deducting any benefits you may be entitled to from other sources such as a disability plan at work. The maximum that can be received is $400.00 per week, unless optional coverage was purchased and if it was, the maximum a person can receive from his or her auto insurance company is $1,000.00 per week.

For those that do not qualify for Income Replacement, you may be entitled to Non-Earner Benefits.

NOTE – IT IS OF THE UPMOST IMPORTANCE THAT YOU APPLY AND REASONABLY PURSUE ALL AVAILABLE ACCIDENT BENEFITS INCLUDING INCOME REPLACEMENT BENEFITS.  IF YOU RETURN TO WORK AT REDUCED HOURS OR AT A REDUCED INCOME, YOU MUST STILL CONTINUE TO REQUEST AND PURSUE THESE BENEFITS, FAILING WHICH THE CLAIM AGAINST THE AT FAULT DRIVER MAY BE PREJUDICED AND YOUR DAMAGES SUBSTANTIALLY REDUCED.

II. Caregiver Benefits – if option was purchased at time of policy renewal

An injured person is entitled to caregiver benefits if at the time of the accident the (i) insured person was residing with a person in need of care and (ii) the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiver activities.

III. Medical and Rehabilitation Benefits Not Covered by OHIP or any other Plan

A person is entitled to receive medical and rehabilitation benefits for expenses incurred from the date of the accident for a specific time frame and amount.

If optional increased coverage was purchased from your insurer the payments discussed in the preceding paragraph may be higher.

Further, if the accident-related injuries are classified as catastrophic, then the above limit will be $1,000,000.00.

IV. Attendant Care Benefits

Under certain circumstances an injured person is entitled to attendant care benefits if they are unable to care for themselves.

V. Expenses of Visitors

A person who visits an injured person is entitled to payment of all reasonable and necessary expenses incurred as a result of the accident during the injured person’s treatment or recovery. These expenses are limited to family members and other individuals who were living with the injured person at the time.

VI. Housekeeping and Home Maintenance Benefits – if option was purchased at time of policy renewal

An injured person can receive $100.00 per week for reasonable expenses incurred for housekeeping and home maintenance, if the injured person suffers a substantial inability to perform these services and the injured person performed these services before the accident. These expenses are paid for 104 weeks unless the injury is catastrophic, in which case they are payable for longer.

VII. Other

You may also be entitled to such benefits as, lost educational expenses, expenses of visitors and damage to clothing, glasses and hearing aids etc.

It is important that you make all efforts to identify ALL the insurance policies available to you and submit all your claims for disability and/or medical as well as rehabilitation benefits to that insurer. Your automobile insurance policy is secondary to all the insurance policies which are available to you. If you do not pursue your rights under these policies, then it will substantially affect your rights in the no-fault case as well as the third-party case against the at fault driver.

It is your responsibility to apply for all benefits available to you, including, but not limited to: Short Term Disability, Long Term Disability, CPP, CPP disability, etc.

You may have collateral benefits through yours or your spouse’s employment (i.e. medical, dental, short-term disability, long-term disability etc..) or otherwise.  If you do, you must submit any expenses to them for payment before this expense is submitted to your Accident Benefits Insurer.

Short-Term Disability Benefits and Long-Term Disability Benefits

Please make sure that you apply for all Short-Term disability and Long-Term disability benefits that may be available through your employer or private coverage. We strongly encourage you to contact your employer or private coverage immediately and request all the Application forms so that you do not miss any relevant deadlines for applying for the benefits. It is your obligation to file these forms with your employer or Benefit insurer within any applicable deadlines.

We cannot say how much a case is worth at the time of our initial interview with you because we do not know what the various doctors and other health professionals are going to say is your medical future. A case cannot be settled without a medical prognosis on what the future condition of an injured person will be and it usually takes a minimum of two years from the time of an injury to obtain a prognosis, because generally an injury will improve over this period of time and sometimes considerably longer.

Money that has been awarded by the court or negotiated in a settlement will usually be paid to your lawyer or paralegal. They hold it in trust for you.

Before they give the money to you, they prepare an account statement showing what they will deduct for fees, disbursements and applicable taxes. The account statement must clearly set out:

• The amount of the settlement or award
• The amount of the contingency fee and amounts for any other legal services that
• they will deduct, plus HST
• The amount of all outstanding disbursements they will deduct, plus any applicable
• taxes
• The net amount of money that you will receive after the deductions
• The way you will receive the money.

The account statement should clearly explain why the fees and deductions are reasonable, and what you can do if you feel that they are not reasonable.

If you are a party under disability represented by a litigation guardian, a judge must approve the agreement. This approval must happen either before the agreement is finalized or as part of the court’s approval of a settlement agreement or a consent judgment. When the court reviews a settlement agreement or a consent judgment, the court must also approve the legal fees, costs, taxes and disbursements.

If you would like additional information about contingency fees, please visit the Law Society of Ontario’s website.

If you were injured in a motor vehicle accident, you may be entitled to sue for your pain and suffering (also known as ‘general damages’). If the general damages in the award or settlement are under a certain amount, a ‘deductible’ may apply — reducing how much of the award or settlement is paid by the other side’s insurance company. This deductible is ‘statutory,’ meaning that it is set by insurance legislation. Before signing an agreement, ask your lawyer if these insurance rules could apply to you to reduce how much you are able to recover.

Your activities, abilities, and credibility are central pieces of your case during personal injury litigation. Insurance companies sometimes want to find out for themselves if what you say and what you do are the same.  Credibility relates to your honesty, and the question of the extent or degree of loss of the ability to engage in your daily activities.

In order to do surveillance, insurance companies hire private investigators. Insurers describe your injury to investigators so they’ll know what to look for as they will follow you throughout the day; if you injured your knee, investigators will watch to see whether you limp. These investigators will typically search social media and various directories to learn what you look like and where you live.

Investigators will often wait inside a vehicle outside your home, workplace or in public places to capture video footage of you. Investigators will also conduct drone surveillance to capture video footage of you in your backyard or other areas of perceived privacy. Investigators will sometimes be advised of a medical appointment or examination for discovery because they know you can be seen there. They will film you putting out the garbage, walking around the neighborhood, running errands, and inside grocery stores or pharmacies. They should not film in private spaces like your home or backyard.

Investigators are not allowed to use a ‘pretense’ – this means they should not talk to you while pretending to be someone else. They should not enter private spaces – like a gym, for instance – by pretending to be member. Investigators conclude their surveillance by preparing a report for the insurance company to review. This report usually includes photos, edited footage, and notes on the observations. Defence counsel will sometimes receive a copy of this report.  If the surveillance shows you doing an activity you said you could not do, it will affect your credibility at trial. This can be powerful and important evidence.

If an investigator does their job well, you will likely not notice their presence. Limits are placed on their ability to surveil your activities to protect your right to privacy. The surveillance that insurers complete is a justified method of determining your honesty and credibility, so it’s important that you are not exaggerating or minimizing your injury.

Please be advised that throughout this litigation process the insurance company will be asking to review all your social media websites. The law is in a state of flux with respect to whether this line of inquiry by insurance companies is proper. The posting of statements or photographs by friends, family or yourself could be used by the insurance company to negatively affect the outcome of your case. Having provided this Notice to you we leave to your discretion whether or not you will keep your social media site active as your litigation proceeds.

A claim for pain and suffering is subject to a statutory deductible, currently set at $46,790.05 as of 2025 and indexed annually. Please note that the deductible is not paid by the insurer. The deductible is used to reduce any amount offered for your pain and suffering by the insurer.

When an insurer makes an offer it offers an amount for your claim, plus the deductible. For example:

The insurer offers you $100,000.00 for your claim. From the insurer’s and the Court’s perspective they have made you an offer of $146,790.05, on a gross basis. The net of the deductible amount is $100,000.00.

There is risk associated with this calculation. For purposes of offers to settle and the costs consequences that follow such offers, you must obtain more than $146,790.05, after any trial, even though the amount to be paid to you if you accepted the $100,000.00 offer is only $100,000.00. While this seems unfair, it is the current state of the law in Ontario.

Further, if you proceed to trial, the jury is not aware of the $46,790.05 deductible and does not take the deductible into consideration in assessing your damages.

For example, if the jury wants to assess your damages for pain and suffering at $100,000.00, they are not aware that the Court will reduce your award by $46,790.05 resulting in you actually receiving the sum of only $53,209.95.

The risk with this situation is that if you do not beat the insurer’s offer ($146,790.05), obtain more than $146,790.05, the Court may rule that you are to pay a portion of the insurance company’s legals costs from your award at trial. For example:

Insurer offer before trial is $146,790.05 Jury awards $100,000.00, for all of your claims. The Court will reduce your award by the deductible, $46,790.05, resulting in a total award to you of $53,209.95.

$53,209.95 is less than the $146,790.05, pretrial offer made by the insurer and the Court therefore could award legal costs to the insurer the amount of $50,000.00 or more because they made you an offer greater than the amount you received after a trial.

Therefore, when the trial is over the amount of money you have recovered after the trial is $3,209.95 or less.

All dog owners are responsible to pay for damages caused when their dog attacks and bites a person. It is important that all evidence be secured quickly to protect your claim.  You should write down the location, time and characteristics of the dog as soon as possible.  It is vital that you find out the home address of the owner of the dog as soon as possible and try to learn the identity of the dog owner.

If you were bitten by a dog, the owner of the dog is responsible for its damages. Normally the dog owner will have a homeowners insurance policy that will respond to the incident and pay for the damages. It is essential that you call our team immediately so the necessary pictures, investigation and medical evidence can be accumulated and preserved.

Call Stayshyn Law Offices to have a free consultation with our personal injury legal team of lawyers today so that we may help guide you through the many mine fields that an injured victim will face in any injury case.