fbpx

COMMON QUESTIONS

need Answers? below are some questions that our law firm is often asked

Frequently Asked Questions by Injury Victims & Disability Claimants.

Below are the answers to common initial questions many clients have when they first contact our practice. We hope that the information below address many initial concerns you may have, but if you don’t find the answers here, please contact us with questions specific to your case. Remember, your consultations with our Hamilton Personal Injury Lawyers are always free, with no obligation to retain the firm.

Yes we do.  We are happy to meet in office or we also offer consultations by Zoom, Google Meet & Microsoft Teams – whichever is easiest for you.

Yes, our Hamilton Personal injury Lawyers are always more than happy to speak with our clients by Zoom, Google Meet & Microsoft Teams at any time.

It’s not possible to predict how long each individual personal injury case will take. Every accident is different. From a legal standpoint, personal injury cases can take anywhere from several months to three years to settle or bring to jury verdict. One thing is certain if your injuries are serious, we normally do not settle personal injury cases before the year mark – or until we are able to obtain a proper medical prognosis on how your injuries will affect you in the future.

We mostly update our clients with major events. We always ask are clients to try and remember that we are  dealing with the medical system, hospitals, doctors, specialists, pharmacies, insurance companies, insurance adjusters, other lawyers, other offices, and other schedules. From requesting and sending medical records, dealing with the Courts, or simply waiting for a response on a letter working its way up the chain to an insurance adjuster… things take time.

Of course you can. You can email or call as often as you wish. We are always happy to update you on the progress of your case.

Although most personal injury cases do settle, there is always a chance that you may have to go to Court. If your case does not resolve and we need to try the case, you and your loved ones will be called as witnesses to give evidence in the case. Be rest assured that we prepare our cases from day one like they will be tried by jury.

A structured settlement is an annuity that regularly pays money over a period of time. Structured settlements are created when insurers use settlement funds to purchase annuities from a federally-registered Canadian life insurer, which guarantees to provide the plaintiff with set periodic payments over a specified period. Payments are a combination of capital and interest, and are not taxed in the hands of the plaintiff. Structured settlements cannot be
changed or cashed once in place.

Our firm typically waits until you reach maximum medical recovery. If your injuries are serious, we get the input of certain medical experts to assist in giving us a prognosis on your recovery. It is highly negligent to settle any case before clinician provide an opinion on whether or not you reached your baseline of recovery and what the future holds. Only then can settlement be determined.

Of course, and even prior to this, if you settle your case, you will not only know how much compensation you and your family will be receiving, but it will be you giving instruction on settlement. At the conclusion of your case we will render you a full and complete account which will provide you with the exact particular details of your settlement and fees owed as per the retainer agreed to at the start of your case.

In Ontario, we typically do not sue insurance companies. We sue the person, persons or organization that caused you harm. Their individual insurance companies would then respond to defend them and pay out compensation if awarded.

Settlement value in personal injury cases are based on many different factors, some of which are factual and some of which are legal.  From a legal perspective, the Supreme Court of Canada has laid out a maximum payable compensation value of approximately $365,000 for pain and suffering (non-economic damages) in Canada, no matter how terrible the injury (excluding lost wages and future care).  Unlike economic damages for wage loss, pain and suffering damages are not based on any specific economic loss.  Pain and suffering awards are decided on a case-by-case basis according to the case facts and the amount of damages typically awarded in similar cases.  We typically do not valuate a serious injury case for at least a year post-accident since everyone’s recovery is time is different.

Yes. We may need to prepare you for your examination for discovery, you may have to attend examination for discovery, a mediation as well as possibly a pre-trial.  If your case is not resolved by then, then we would need to prepare you for trial and attended trial to give evidence concerning your life-changing injuries.

If you have suffered serious injuries then yes –  you should contact one of our lawyers. With serious injuries it’s always much better to hire an experienced lawyer early to in order to get the proper medical personnel, occupational therapists and insurance funding in place.  Lalande Personal Injury Lawyers will focus on your case by gathering the required evidence on liability and damages, consulting with Ontario’s leading experts, and deal with the insurance company on for you – so that you can focus on your recovery.  If it is an absolute necessity, our lawyers might even take your case to trial in order to get the compensation you deserve for your losses.

If you or a loved one have suffered serious injuries there’s no doubt you are wondering not only if you should call a lawyer, but who you should call. Our market is no doubt inundated with these billboards and advertisements. You might be wondering if these lawyers are any good.  The best way to hire a lawyer is firstly – hire local. Hire near your hometown – so you can drive and meet your lawyer. Also, speak to friends and colleagues

We will try to get back to you the same business day, or the following day of you inquire later in the evening. If your loved one is in acute care, we will prioritize call backs and get back to you within minutes.

You can generally see a lawyer within one (1) to three (3) days. If you or a loved one is in acute care, we will prioritize to see you at any time, day or night.

We are different than many – if not most firms in the Province. We would suggest reading our reviews – we offer personal service on each case, you will have direct contact with Matt Lalande, who will personally oversee your case.  We not only will assist with your personal injury case, but also with your employment case if you lose your job, your disability matter, we will fight for your CPP benefits and when we settle your case, we will complete your will and estate plan as part of our service.  Our service is personal – you are just not a file.

We understand that for many, time is of the essence. Your lawyer and case staff  will start work right away and be available for any questions you might have.

Pain and suffering compensation is also known as “non-pecuniary damages” This type of compensation is intended to, insofar as any monetary award can, compensate an injured person for their pain and suffering and loss of enjoyment of life caused by the fault of a tortfeasor, or the person/company who is at fault.

In a case called Stapley v. Hejslet, Judge Kirkpatrick  set out a useful, non-exhaustive list of factors that offer guidance as to what may influence an award of non-pecuniary damages. The list includes the:

(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life.
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff.

With those considerations in mind, judges can assess the compensation which you are entitled for your pain, suffering, and loss of enjoyment of life, for the injuries you  suffered as a consequence of the defendants’ negligence.

Unlike pecuniary damages, non-pecuniary losses are assessed on a global basis without reference to separate heads of damage. For example, the court would not assess $30,000.00 for the plaintiff’s broken leg, $10,000.00 for her broken nose, and $5,000 for her broken pinky toe. Rather, the court would assess the overall impact the plaintiff’s injuries on her life.

Special damages generally compensate a plaintiff for pre-trial pecuniary out-of-pocket or “positive” losses. In contrast, general damages compensate for “negative” losses, which can include both pecuniary and non-pecuniary losses.

Yes of course. Your spouse, children, grandchildren, parents, grandparents, and siblings may all advance a claim for damages if you have been hurt. They could potentially advance a claim for the loss of guidance, care and companionship that the they might reasonably have expected to receive from you if your injury had not occurred. They could also claim economic damages if they have expended funds to help take care of you.

Remember, the goal of a personal injury lawsuit is to restore you to the original position you would have been in if the accident had not taken place. Lost wages are amounts that you would have earned in the past due if not for the defendant’s wrongful act(s) that caused you injury. Once proper evidence is collected from the CRA (tax returns of business records) your employer, your pension information, your collective agreement, your financial statements, balance sheets and any other economic related information, we typically retain economists to properly valuate the present-value of your lost income. Of course, there are factors that could be of changing importance such as the severity of your injuries, your future earning potential based on your current job and your age at the time of the injury.

Lalande Personal Injury Lawyers charge clients on a contingency-fee basis – meaning that you only have to pay if we win your case. Our fees are charged in the form of a percentage of the settlement or verdict amount we obtain on your behalf in Court.

Yes, all of our personal injury consultations are 100% free and without obligation. We are simply happy to meet and talk to you about your injuries and losses.

Yes, our employment law and wrongful dismissal consultations are 100% free and without obligation.

Yes, our wrongful death consultations are 100% free and without obligation.

Never – we NEVER ask our clients for money upfront. Lalande Personal Injury Lawyers operate on a contingency fee basis, which means you only pay us if and when we win your case. Our fee would come in the form of a percentage of the settlement or verdict amount we obtain.

Similar to other Personal Injury Law Firms, our normal contingency rates in the range of 30% plus HST.

The maximum contingency fee that our firm charges on new cases as of July 1st 2021 is 30% + HST.

Of course, depending on the length, complexity and damages recovered, we are always willing to have a discussion concerning our contingency fee.

The essence of a long-term disability policy is for the insurer to pay a monthly benefit to you as the policy holder – provided that you meet the applicable definition of disability and you are not precluded from receiving disability benefits due to any applicable exclusion in your policy.

Unfortunately, many long-term disability insurance policies have exclusions and limitations that may prevent you from collecting long-term disability benefits. If you read the fine print in your long-term disability policy, you will no doubt notice a provision entitled “exclusions”.   Anybody who owns or is considering purchasing it should be aware of its exclusions. What are some of the typical disability insurance exclusions found in long-term disability policies?

  • Alcohol and Substance Abuse – many policies many policies do not have coverage for absenteeism because of substance abuse.
  • Self Inflicted injuries or illness – if you have hurt yourself or caused yourself to be sick you may be declined long-term disability insurance.
  • Medical or surgical care that is not necessary – if you “elect” surgical care that is not vital to receive, you can be denied long-term disability benefits.
  • Committing or attempting to commit an assault – assault will more likely than not void will cause you to be declined benefits.
  • Being involved in or committing a criminal act – will probably void coverage.

There are three types of disability insurance coverage:

Government Plans – which include the Canada Pension Plan (CPP), employment insurance, and Worker’s Compensation (WSIB).

Group Benefit Plans – which are available through an employer or an association. Group plans offer more limited disability protection but at a lower cost to the insured and employer.

Individual Long-Term Disability Policies –  available directly from an insurance company or broker, on a client by client basis. They offer the most extensive protection but at higher cost to the insured.

Short-term disability (STD) are benefits that carry from the date of onset of diability and the application for long-term disability. STD is often offered through group employer plans. Short-term disability is meant to carry you through the elimination period. Common elimination periods are 30, 60, 90 and 120 days. After the elimination period is over, the claimant would then apply for long-term disability. STD policies are usually paid for by the employer and cover income replacement for the first 120 days of injury or illness.

There is usually a qualifying or elimination period, which can range from 90 to 180 days, during which no benefits are paid but during this period the person may cover their lost wages by drawing on a short-term disability (STD) policy, employment insurance or government sickness benefits, which may provide an additional 15 weeks of sick benefits.  STD policies are usually paid for by the employer and cover income replacement for the first 120 days of injury or illness. The longer the elimination period, the lower the disability premium, often dramatically so. The most common elimination that we see is 90 days.

This waiting period is otherwise called your elimination period. Typically most policies have a 120 elimination period. It’s during this period that you would apply for short term disability.

No, there are a myriad of policy definitions of disability, making it impossible to cover every possible scenario in any text on the subject.

In considering own occupation, if the claimant is able to perform only minor functions of his or her job, the claimant is nonetheless totally disabled.

The most cited test to determine whether an individual is totally disabled was stated by Laskin C.J. in Paul Revere at 546:
The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.
This test has been consistently followed in B.C.: Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 (B.C. C.A.); Halbauer v. Insurance Corp. of British Columbia, 2002 BCCA 5 (B.C. C.A.); Eddie v. UNUM Life Insurance Co. of America, 1999 BCCA 507(B.C. C.A.); Mathers v. Sun Life Assurance Co. of Canada, 1999 BCCA 292 (B.C. C.A.), leave to appeal to ref’d (2000), [1999] S.C.C.A. No. 334 (S.C.C.).
228      Being able to perform one or more important aspects of the occupation separately will not necessarily disqualify the insured from coverage; they do not need to be totally helpless. What matters is that the insured is unable to perform substantially all of the duties of that position: Paul Revere, at 545 – 546.

Policies may provide, for example:

Benefits equal to:

    • 65% of gross monthly earnings;
    • 75% of net monthly earnings;
  • Benefits that last:
    • up to age 65; or
    • for only fix years.
Reductions may apply so that your total income from all sources does not exceed a certain amount. For example, the policy provision may state that the employee’s total income from all sources is not to exceed 85% of your pre-disability earnings if the benefit is taxable or 85% of the pre-disability net earnings if the benefit is non-taxable.
Benefit amounts may also be reduced by other benefits that a person receives or in entitled to receive from sources specified by the policy wording
 You should be aware of deductions that may be made from an LTD benefit amount based on policy wording. Some typical sources that may reduce the LTD benefit amount include benefits the employee/plaintiff receives or in entitled to receive from:
  • Canada pension plan (CPP).
  • Workers’ compensation (WSIB) or similar coverage.
  • Group, association or franchise plan.
  • Retirement or pension plan.
  • Earnings or payments from any employer, including severance payments and vacation pay.
  • Self-employment income.
  • Government plans, except those that are excluded such as EI benefits.

Yes, most policies have a requirement that the insured apply for CPP disability benefits and, in some cases, also require the insured to appeal a denied claim. In addition, there may be a provision for an offset for CPP disability benefits received by the insured.

The deductibility of severance packages depends on the policy wording for the most part. If the wording is clear and unambiguous, you will have to look no further, but that is not always the case. Where the wording is not clear, consideration must be given to the nature of the severance package.

yes, some policies contain offsets for amounts received through WSIB claims.

In Richer v. Manulife Financial, 2007 CarswellOnt 1713 (Ont. C.A.), the insured’s policy provided for an offset for amounts he was entitled to receive through a WSIB claim. The insured plaintiff had made a WSIB claim but it had not yet been resolved. Entitlement to receive payments was not dependent on an application for compensation being approved. Manulife was entitled to reduce the monthly benefit payable to the insured under the policy by the amount of WSIB benefits to which he would have been entitled had he not elected to proceed with an action. See also Robert Wilken v. Sun Life Assurance Company, 2017 CarswellOnt 19517 (Ont. C.A.), where the court noted, at paragraph 3:
“The plaintiff’s voluntary decision to make a retroactive election, foregoing WSIB benefits to pursue a tort action, effectively would deny the insurer its contemplated and permitted offset, thereby elevating the insurer’s relevant coverage obligation to a ‘first payor’ status that obviously was not intended.”

Typically, a lawsuit must be commenced within two years of the date the benefits were denied unless otherwise specified by the contract. Determining when the limitation period begins to run is not always obvious and often the principle of discoverability complicates matters. There are different reporting times regarding the onset of your disability stated in each and every contract however.

Yes. The case law is clear that a person can still be considered totally disabled even if they return to work for a short time during recovery, or after benefits have been terminated by the insurer: Ferguson v. UNUM Life Insurance Co. of America, [1998] B.C.J. No. 531 (B.C. S.C.); Nicholas v. Metropolitan Life Insurance Co. of Canada, 2003 BCSC 506 (B.C. S.C.); Hood v. Metropolitan Life Insurance Co., [1993] S.J. No. 227 (Sask. C.A.). The idea in these cases is that plaintiffs should not be prejudiced or disadvantaged from receiving benefits by attempting to work again. See also Tanious v. Empire Life. Judge Brown notes that the plaintiff’s tasks and abilities cannot be considered sensibly in a piece-meal fashion. As stated earlier, what matters is that the insured is unable to perform substantially all of the duties of that position.  In this case, the plaintiff had been told by her family physician earlier that she should not be working; but in what was an exercise in obvious poor judgment, ignored the advice and continued to work, fearful of losing her position. Just because the plaintiff was able to perform some of her duties, does not mean she was able to perform substantially all her duties on a continued and satisfactory level. In other words, going through the motions of some tasks when the plaintiff clearly should have ceased work on advice of her physician should not be to her prejudice.

Judge Brown reviewed this in Tanious v. Empire Life. A plaintiff’s suitability for any occupation under a Policy was referred to in Plouffe v. Mutual Life Assurance Co. of Canada, 2001 BCSC 900 (B.C. S.C.), Slade J. analyzed what a reasonable occupation would be under the “any occupation” definitions of total disability:
The test for disability has been held to be a subjective one, related to the background and education of the disabled person in question: Labelle v. Great-West Life Assurance Co.[1986] 17 C.C.L.I. 173 (B.C.S.C.).
 In Labelle, Proudfoot J. (now J.A.) construed an “any occupation” definition of total disability with these qualifying words:
Notwithstanding this all-embracing definition, this does not mean that the person is not entitled to the benefit if he is so sick that he can take on only trivial or inconsequential work, or work for which he is over- qualified, or work for which he is completely unsuited by background.
A person is considered not to be totally disabled from engaging in ‘any’ occupation if his condition would enable him to enter into an occupation reasonably comparable to their old occupation in status and reward, and reasonably suitable in work activity in light of their education, training and experience.

No. Being able to perform one or more important aspects of the occupation separately will not necessarily disqualify the insured from coverage; they do not need to be totally helpless. What matters is that the insured is unable to perform substantially all of the duties of that position: Paul Revere, at 545 – 546.

Yes, Legal expenses paid to collect or establish the right to reinstatement of disability insurance benefits or the right to a lump sum disability insurance settlement of past and future benefits are deductible for tax purposes. Where a claimant incurred legal expenses, those expenses are deductible from the settlement amount as being reasonable necessary expenses incurred to realize the settlement that was achieved. Without the legal expense, the settlement amount would not have been realized by the claimant. Where the lump sum disability insurance settlement between the claimant and the disability insurer does not specify the amount of legal costs, the Tax Court of Canada will consider the evidence of what legal expenses were incurred.

Disability Certificate

In order to qualify for accident benefits, you must submit a completed Form OCF-3 Disability Certificate. A copy of the Disability Certificate can be found on the FSCO website at the time of application. If the claimant fails to do so no benefit will be payable for the period before it is submitted.
The Disability Certificate is divided into 10 parts. Parts 1-4 are to be completed and signed by the claimant before giving the form to a health practitioner. The health practitioner then completes the rest and submits it to the insurance company. You may wish to assist your client with this to ensure consistency and accuracy. At a minimum, be certain to obtain a copy for your file.
Parts 5-10 are to be completed and signed by one of the following health practitioners:
  • Chiropractor.
  • Dentist.
  • Nurse Practitioner.
  • Occupational Therapist.
  • Optometrist.
  • Physician.
  • Physiotherapist.
  • Psychologist.
  • Speech Language Pathologist.
The list is broad, and the Disability Certificate will carry more weight if it is completed by a health practitioner:
  • Whose area of practice is related to the primary diagnosis.
  • Who treated the claimant prior to the accident.
  • Who is funded by OHIP.
Your family doctor is often a good choice.
image

TALK TO US
NO FEES UPFRONT

905-333-8888

or fill out the form below

    • img
    • img
    • img
    • img

    Clients Testimonials

    more testimonials

    Experience Matters

    $1.13M

    Pedestrian AccidentFor a Middle Age

    view all case results