(A) AUTOMOBILE COLLISION FAQ
1. I WAS INJURED IN A CAR COLLISION AND I DON'T KNOW WHAT TO DO.
The first thing to understand is that in Ontario we have two systems. When you are involved in an automobile collision, you may 1) be able to sue the at-fault driver for monetary compensation and 2) you may be entitled to accident benefits from your own insurance company. Think of two arms - one pointing toward your own insurance company for your accident benefits and the other pointing toward the responsible driver's insurance company for your pain and suffering, economic losses and losses recoverable for your family.
2. CAN I SUE THE PERSON RESPONSIBLE FOR CAUSING MY COLLISION?
You are allowed to sue a person responsible for your or a loved one's injuries. This lawsuit is called a tort action. A tort action is a civil wrong for which the law provides remedy. Suing a person who caused a collision which resulted in you being injured is an example of a tort.
3. CAN I SUE IF I WAS OPERATING A VEHICLE WITHOUT INSURANCE? CAN I STILL GET ACCIDENT BENEFITS IF I WAS OPERATING A VEHICLE WITHOUT INSURANCE?
You are unable to sue a person who is responsible for a collision if you were operating an automobile without insurance, no matter who was at fault for the collision. However, you still may be entitled to certain accident benefits from the insurer of the at fault driver.
4. WHAT CAN I SUE FOR?
Generally, you may be able to sue for monetary compensation for pain and suffering, past and future income loss, loss of earning capacity (you no longer can earn what you could have earned), loss of competitive advantage (due to your injuries, you are no longer going to be able to compete with those who were your colleagues), health care expenses, loss of enjoyment of life, housekeeping and home maintenance expenses, out of pocket expenses, and loss of care, guidance and companionship of family members.
5. ARE THERE ANY RESTRICTIONS IN A LAWSUIT?
Damages for pain and suffering and loss of enjoyment of life are restricted to claims that cross a legal "threshold". An injured person must "suffer a permanent serious impairment" of an "important physical, mental or psychological function". That definition is very specific and contains a lot of components. To better help you understand what the courts look for in determining whether someone meets the threshold, we have set out the criteria considered.
A "permanent and serious" is one that substantially interferes with the person's ability to continue their usual employment or to continue training for a career, or substantially interferes with most of their usual activities of daily living, considering their age.
An "important function" s one that is necessary to perform the essential tasks of the person's employment, to continue training for a career, or to provide for their own care, or important to their usual activities of daily living, considering their age.
A "permanent impairment" is one that has been continuous, is not expected to substantially improve, meets the criteria for a permanent and serious impairment and is expected to continue without substantial improvement when sustained by persons in similar circumstances.
6. I HEARD THAT THE INSURANCE COMPANY I SUE GETS TO REDUCE WHATEVER I MIGHT RECEIVE BY $30,000.00. IS THIS TRUE?
Unfortunately, it is true. As amazing as that may seem, the insurance company that you sue is automatically entitled to reduce your damages by $30,000.00, which of course goes back into their pockets.
The one exception is if your damages are valued at more than $100,000.00, then the $30,000.00 deduction does not apply.
7. IS THERE A LIMITATION AS TO WHEN I CAN SUE A RESPONSIBLE DRIVER? DO I HAVE TO SUE BY A CERTAIN DATE?
A person has two years to sue another driver who may be responsible for a collision. However, there may be some exceptional circumstances when a lawsuit may be issued beyond this limitation date of two years. If this situation has occurred to you, please contact us to discuss.
8. WHAT IF THE PERSON WHO HIT ME DOES NOT HAVE INSURANCE?
If a collision is caused by an unidentified, uninsured or underinsured motorist, an injured person can usually access coverage through the standard provisions in their own policy. This means that if the person who hit you does not have insurance or the person who hits you is unidentifiable (hit and run) then you may claim damages against your own insurance company, which provides for maximum compensation of $200,000.00.
9. WHAT IF I DO NOT HAVE AUTOMOBILE INSURANCE AND THE PERSON WHO HIT ME DOSEN'T HAVE AUTOMOBILE INSURANCE?
You could bring a claim against The Motor Vehicle Accident Claims Fund (MVACF). The MVACF is considered to be the "payor of last resort", as it provides compensation to people injured in automobile collisions when no automobile insurance exists to respond to the claim.
10. WHO PAYS FOR MY LAWYER IF I SUE AN AT FAULT DRIVER?
Unfortunately, you will be required to pay for your own fees, subject to what your lawyer can get the at fault driver's insurance company to pay. Generally speaking, an at fault drivers insurance company will pay 1/3 to 1/2 of your lawyer's ees, and will generally cover most of the disbursements paid to bring your case to resolution.
11. CAN MY FAMILY GET COMPENSATION FOR THEIR LOSSES AS A RESULT OF ME BEING INJURED?
Yes, your loved ones may be able to bring a claim under the Family Law Act for the loss of "care, guidance and companionship", nursing and any out of pocket expenses paid by them on your behalf, one's time lost from work due to your injuries. A relationship with a spouse or a child can change dramatically when one is injured.
However, just as explained above, the law has put a restriction on your loved one's abilities to bring a claim for their losses. Just as an injured person's damages are subject to a $30,000.00 deductible, a Family Law Act claimant's damages are subject to a $15,000.00 deductible. Therefore it is important to speak with a lawyer who can advise whether it is worth causing intrusion into your loved ones' lives and whether your loved ones' claims are monetarily worth pursuing.
12. WHAT ARE ACCIDENT BENEFITS? WHO IS ENTITLED TO THEM?
Accident Benefits are what your policy of insurance covers you for in the event of a collision. They are benefits that you have paid for under your policy. They consist of things such as Income Replacement Benefits, Medical and Rehabilitation Benefits (ie. Chiropractic, physiotherapy, massage therapy, acupuncture, nursing, vocational retraining, psychological counselling, family counselling), Housekeeping and Home Maintenance coverage, Educational expenses, Attendant Care expenses, Housing modifications, etc.
Essentially, anyone who has a valid automobile policy, anyone who was a passenger in an automobile, or anyone who was a pedestrian without an automobile policy, may be eligible to receive Accident Benefits.
13. MY INSURANCE COMPANY HAS REFUSED TO PAY ME - WHAT DO I DO?
You are not alone. This is not uncommon. The insurance adjuster is hired by the insurance company and their job is to act in the best interests of the insurance company. The insurance adjuster does not represent you. Their job is to analyze your injuries and assess the possible exposure of liability to the insurance company. Their job is to resolve claims for the least amount possible and minimize the amount paid out by the insurance company.
It is in your best interest to hire a lawyer to resolve your issues with your insurance company. If your insurance company does not want to pay you a benefit, you have a right to fight this decision.
14. WHAT TYPE OF ACCIDENT BENEFITS AM I ENTITLED TO?
Under the Ontario Statutory Accident Benefits Schedule, you are entitled to such benefits as the following:
INCOME REPLACEMENT BENEFITS
If you are eligible, this weekly benefit will partially compensate you for the loss of your income if you cannot work because of your injuries. They will pay up to 80% of net lost wages up to a maximum of $400.00/week, unless you purchased optional insurance, in which case up to a maximum of $1,000.00/week.
You may be eligible for these benefits if you were not working at the time of the collision, you do not qualify for Income Replacement Benefits, you no longer qualify for Caregiver Benefits, you were a full-time student, or you have completed your education in the past year but have not yet secured employment related to your education. To qualify for these benefits, you must suffer a complete inability to carry on your normal activities. If you were eligible, these benefits would begin to compensate you 26 weeks after the onset of your complete inability to carry on your normal activities. There are monetary limitations and time restrictions attached to these benefits, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
If you are eligible, these weekly benefits will reimburse you for expenses you have incurred if you cannot continue as the main care giver for a member of your household who is under 16, or who is over 16 and suffers from a disability. A care giver is someone who is responsible for looking after others. You may qualify for caregiver benefits if you are an insured person who, as a result of an automobile collision, is substantially unable to engage in the care giving activities previously engaged in. You must be living with a person in need of your care and be the primary or main care giver and, at the same time, not be receiving any income for your care giving activities. There are monetary limitations and time restrictions attached to these benefits, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
MEDICAL AND REHABILITATION BENEFITS
Medical Benefits include payments for all reasonable and necessary expenses not covered by another health plan or other extended health policy incurred as a result of an automobile collision in which you were injured. Rehabilitation Benefits are for the payment of expenses incurred by you or on your behalf, provided you have been injured in an automobile collision. The coverage is for costs incurred for reasonable and necessary measures to: reduce and eliminate the effects of the disability resulting from the injury or to assist you in reintegrating into a family role, or the labour market (if you had a labour force attachment) and also your community. There are monetary limitations and time restrictions attached to this benefit, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
ATTENDANT CARE BENEFITS
These benefits will pay reasonable and necessary expenses for a care giver or attendant whom you require as a result of injuries sustained in a collision. Attendant Care Benefits are for the payment of reasonable and necessary expenses incurred by you or on your behalf, provided you have been injured in a motor vehicle collision, for the following services: services provided by an aide or attendant; or services provided by a long-term care facility including a nursing home, home for the aged or chronic care hospital. There are monetary limitations and time restrictions attached to this benefit, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
OTHER EXPENSES BENEFIT
This benefit will pay for other expenses such as lost educational expenses, expenses of visitors, and the reasonable cost of housekeeping and home maintenance necessary due to injuries sustained in a collision. Repairing or replacing certain items lost or damaged in a collision may also be covered. There are monetary limitations and time restrictions attached to this benefit, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
DEATH AND FUNERAL PAYMENTS BENEFIT
Death Benefits are lump sum payments paid to you if you have lost a spouse, dependent or someone on whom you were dependent. Funeral benefits provide reimbursement for funeral expenses to a maximum amount. There are monetary limitations and time restrictions attached to this benefit, therefore it is recommended that you consult with a lawyer at Vienneau Law for more information.
The Statutory Accident Benefits legislation is not easily understood. It is recommended that you consult a lawyer to ensure you receive the maximum amount of benefits you are entitled to receive.
OTHER PERSONAL INJURY FAQS
1. I HAVE BEEN INJURED ON SOMEONE ELSE'S PROPERTY. IS THERE ANYTHING I CAN DO?
Anyone who has the care and control of a property has a duty to make sure that those people coming onto and leaving the property are safe from harm. If you have injured yourself at someone's house, or on someone's property (shopping mall), then you may have recourse to obtain compensation for your injuries. You should take photographs of the area where you were injured (ie. Broken stairs, pot hole, raised sidewalk) as soon after the injury as possible, before the scnene changes in any respect. You should also take photographs of your injuries as soon after the incident as possible. Try to keep whatever footwear you were wearing in your possession, as it will become evidence.
2. WHAT ARE SOME EXAMPLES OF THE TYPES OF PREMISES WHERE AN OCCUPIER MIGHT BE LIABLE FOR MY SAFETY?
Areas such as sidewalks, outside stairs, driveways, school yards, recreational parks, shopping malls, parking lots, houses, apartment buildings and private property
3. YOU CAN CONTRIBUTE TO YOUR OWN INJURIES.
There may be instances when a person who is injured on a property will be held partly or fully responsible for his or her own injuries. For example, if you ignore a sign advising you that a floor is slippery or that an area in question is unsafe, and yet you continue to walk in that area, you may be held to assume and accept the risk which contributed to your own injuries.
As an example, normally when walking on a city sidewalk, a person is expected to watch where they are walking, and therefore their attention is expected to be concentrated on the environment in front of them. If a person trips on a raised portion of a sidewalk, they may be held accountable on a percentage basis for the injuries they sustain.
4. ARE THERE ANY TIME LIMITATIONS? DO I HAVE TO SUE BY A CERTAIN DATE?
Generally, the limitation to sue is limited to 2 years from the date of the incident.
However there are some strict notice requirements in which you are required to notify a "person in charge" of the incident and provide some details as to what happened and what injuries you suffered. For instance, not many people are aware that if you sustain injuries as a result of snow or ice, you need to notify the City Clerk in writing within 7 days.
5. IS THERE EVER A SITUATION WHERE IT WOULD NOT BE WORTH MY TIME TO SUE?
Yes. If your injuries recover quickly, are not serious, or where your portion of responsibility is more than that of the owner of the premises.
Speak with a lawyer at Vienneau Law for more information.
(C) WRONGFUL DISMISSAL FAQ
1. I HAVE BEEN TERMINATED AND I DON'T KNOW WHAT TO DO.
Termination has been said to be the capital punishment of employment. This "capital" punishment is only justified when the misconduct fundamentally changes the employment relationship. When an employee is terminated from his/her employment many questions may arise. The first place to start is whether or not your dismissal was for "just cause".
2. WHAT IS "JUST CAUSE" FOR TERMINATION?
Termination for "just cause" means that if an employee is incompetent or the employee's conduct is so unacceptable that it seriously impacts on the organization and gives rise to a breakdown in the employment relationship, that employee can be terminated without notice or payment in lieu of notice. If an employer is able to establish that they have "just cause" for the termination, they are not required to give you any notice of the termination The allegations of cause on the part of employers are dishonesty, theft, violence in the work place, harrassment, insubordination, incompetence, and consistent tardiness. Employers must show that you have been warned about your behavior on previous occasions. Employers must show that you had been offered the opportunity to correct your behaviour. The employer always bears the onus of establishing "just cause".
3. WHAT IS REASONABLE NOTICE?
The purpose of reasonable notice is intended to bridge the period between termination and obtaining replacement employment. The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal. The employer is required by law to give you reasonable notice of your termination. If an employer fails to provide reasonable notice of termination, the employee may consider bringing an action for breach of the implied term.
4. HOW REASONABLE NOTICE DETERMINED?
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment; the length of service of the employee; the age of the employee and; the availability of similar employment, having regard to the experience, training and qualifications of the employee. These reasons are not exhaustive; every case turns on its particular facts.
5. WHAT KIND OF COMPENSATION IS THERE FOR WRONGFUL DISMISSAL?
In the event that you are wrongfully dismissed, the measure of damages for wrongful dismissal is the salary that the you would have earned had you worked during the period of notice to which you were entitled, minus any severance pay or notice you actually received. Any money you earned, or should have been earned, will also be deducted. Any wage increase or bonus that would have fallen due during the notice period is only compensable if you would have been contractually entitled to the increase or bonus.
Regarding pensions, the employee's measure of damages in the case of pension benefits that have not vested in him or her at the date of dismissal, but which would have vested during the notice period, is the value of the vested benefits that he or she would have received had he or she remained in employment throughout the notice period. Regarding medical, dental, life, and disability benefits provided under an employer's insurance plan, the courts generally reimburse the wrongfully dismissed employee for any out-of-pocket expenses actually incurred during the notice period that would otherwise have been covered by the plan.
Other benefits that you may be entitled to are statutory contributions to the Canada Pension Plan and the Employment Insurance Commission, investment losses resulting from the wrongfully dismissed employee having been denied the opportunity to exercise stock options, tips and gratuities, loss of overtime opportunities, use of a company car for private purposes, membership fees in clubs that are provided primarily for the employee's private (as opposed to business) use, discount schemes that enable the employee to buy the employer's products or services at reduced rates, and loss of accumulated sick leave.
6. LESSEN THE AMOUNT OF YOUR LOSSES
A Judge will undoubtedly ask you about your reasonable efforts to find alternative employment and how you made up for any of your claimed losses. The period after your notice is not to be viewed as time for you to take a vacation. The best thing you can do for your situation is search for alternate employment. You don't have to prove that you've looked for a new position. It's up to the employer to prove that you didn't look, and would have found a job had you looked, or that you were unreasonable in refusing to take a suitable position. If your former employer can prove that you didn't seek or take suitable alternative employment, the court will reduce your damages award to reflect how long you could have been working. Keeping a record of your search for alternate employment is your best defence.
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