We wish to extend our gratitude to our clients, who trust us with fighting for their financial future and taking their case to trial when necessary. 

We understand that the launch of the inaugural edition of Best Law Firms – Canada, introduces a research-driven resource for clients and legal professionals across Canada. Such recognition is helpful to narrowing the search for a personal injury lawyer. 

Such awards, however, are only one element a prospective client should consider. Of paramount importance, above awards, above board memberships, above teaching appointments, is TRIAL WORK. Has the lawyer you are about to retain, successfully taken a case like yours to trial and won? As the senior partner of Boland Romaine says, “Insurers know which lawyers go to trial for their clients and which ones don’t. Shouldn’t you?” 

The Best Law Firms Canada Selection Process

The Best Law Firms – Canada rankings are the result of a multi-step evaluation designed to identify the nation’s top-performing law firms. These steps include:

1. Law Firm Surveys
2. Client References
3. Peer Evaluations
4. Client Feedback
5. Leadership Insights

Read more on this here

About Boland Romaine Personal Injury Lawyers 

Boland Romaine Personal Injury Lawyers is one of Ontario’s most respected injury firms with over 40 years of trial experience. Consistantly voted as one of the top 10 personal injury firms by Canadian Lawyer Magazine, Boland Romaine’s lawyers have won trials for some of the province’s most seriously injured. Our philosophy is simple: trial experience will protect the injured if negotiations break down. A lawyer for the injured needs the fortitude to say “no” to unreasonable offers and the commitment and the skill to take the injured person to trial. 

We have won trials for those who have suffered:

• Traumatic brain injuries
• Spinal cord injuries
• Fatal injuries
• Burn injuries
• Polytraumatic injuries
• Orthopaedic injuries
• Joint ligament injuries
• Chronic pain
• Psychiatric injuries
• Scarring / disfiguring injuries
• Neurological injuries

The post Boland Romaine Recognized in the 2025 Edition of Best Law Firms™ – Canada appeared first on Boland Romaine LLP.

But did you know that your personal vehicle is not insured to carry commercial passengers, and that by doing so, you might be functioning outside of the law? Sure, it’s easy to register as an UberX driver. All you have to do is sign up and show your passport. But what about protection—both for you and your passenger? What happens if you get in an accident?

Here’s the deal: Uber falls into a category of services that are part of the sharing economy. You’ve got something that someone wants, so you offer it up to them. Similar to AirBnb, where homeowners can rent out their extra rooms or homes, regular folk can act as defacto taxi cabs in their free time, toting paying passengers around. For passengers, the plus is the cost savings.

Compare this recent ride which was taken during a low traffic time period, from downtown Toronto to Richmond Hill:

Taxi $70-$80

Uber $30

Attractive for the riders, for sure. And a good supplemental income for the driver. Unless they end up in a fender bender. Then, driving for Uber isn’t as attractive as it seems, neither for both driver nor passenger.

For Drivers

• Personal auto insurance does not cover drivers who are carrying paying passengers. This includes any time ‘on the clock’, even if the driver is just hanging around waiting for a fare. If the vehicle is in an accident, it would not be covered, nor would the passenger, driver, or the other parties involved.
• Insurance can be invalidated if the vehicle is used for undisclosed purposes. Not only would driver and passenger not be covered, but it might be difficult for the driver to obtain auto insurance in the future.
• Many municipalities require taxis to have a specific license. If you are carrying paying passengers without a taxi license, you could receive a ticket and be subject to a fine.

For Passengers

• Riding in a vehicle that may not be insured can put a passenger at risk. If injured in an accident, the passenger might have to take the driver to court to reclaim damages, legal or medical costs.
• If the policy is voided or a claim denied due to the material misrepresentation (ie a personal vehicle being used for commercial purposes), then both driver and passenger could be liable.
• Riders might be at risk when taking UberX. While taxi drivers must maintain a clean driving criminal record and CPR certification in order to maintain their license, screening for UberX drivers is fairly lax. Across the United States there have been reports of drivers with criminal records and crimes perpetrated in vehicles.

Recently, Aviva Canada became the first insurer to receive permission from the Financial Services Commission of Ontario to begin offering insurance to drivers carrying paying passengers in their own cars. While this is a step forward, the province’s legislature hasn’t even yet decided if this kind of insurance is legal. However, the coverage is available and can be purchased as an addition to a personal auto policy. The policy will cover the driver for the time they’re on the road waiting for ride requests as well as while picking up and dropping off.

The coverage eligibility requirements are quite specific:

• Drivers will have to have been licensed for at least six years
• They must offer ride sharing for at least 20 hours a week
• They may not carry more than 8 passengers at a time

As time goes on, more applications for similar insurance by other underwriters are sure to be approved. And municipalities will have to continue to consider how to regulate this burgeoning industry.

If you’re thinking about becoming an UberX driver, check into possible insurance options and whether your municipality requires you obtain a taxi license. If you’re a rider, take a taxi, or ask your Uber driver to show you proof of licensing and insurance.

It’s a brave new world we live in. We need to stay safe and educated while we’re getting where we need to go.

If you’ve been involved in an accident while driving or riding in an Uber, contact us to learn more about your rights.

The post Driving or Riding with Uber? What You Need to Know appeared first on Boland Romaine LLP.

While we recommend attending your community’s official fireworks displays in a controlled, professional environment, it might be your choice to put on your own show.

It is true that fireworks can be a fun family activity. But only when you use caution and follow the rules.

If you are planning on hosting a fireworks display, follow these safety tips adapted from Natural Resources Canada to avoid injuries and ensure an enjoyable experience for everyone.

The first step, of course, is to purchase your fireworks from a reputable retailer who sells product that has been tested and meets safety standards. Do not attempt to make your own or purchase illegal product ‘off a truck’. Make sure to read the instructions carefully before beginning, and if necessary, read them several times. Because they can be very dangerous, using fireworks is not the time to rush or cut corners.

Must Haves:

-Lots of water

-Buckets of water for disposing of used fireworks

-Pails or wheelbarrow of sand for setting off fireworks

-Safety glasses for the ‘show’ team

Must Follow Safety Tips:

• Fireworks should only be lit by adults 18 years of age or older. If children are participating, they should be supervised by an adult at all times.
• Make sure to choose a clear, open site away from all obstacles. The fireworks should be labelled with minimum distances from spectators to help guide you in setting up your site.
• Check the weather report. Steer clear of using fireworks in windy conditions as you won’t be able to control the direction of the explosion if there’s wind.
• Plan your display and the order of your show before you begin.
• Read all of the instructions on each piece you’ve purchased.
• Create a sturdy and fireproof firing base. A pail or wheelbarrow filled with earth or sand works well for this purpose.
• Unless indicated otherwise on the label, fireworks without a base should be buried halfway, on a 10-degree angle, into the container of earth or sand.
• Unless the fireworks are indicated to be hand-held (such as basic sparklers), never pick one up after it’s been lit, or try to light on while holding it in your hand.
• Have spectators stand a good distance away from the firing area, and on one side. Always point your fireworks away from the spectators.
• Light fireworks carefully with the attached fuse at the tip.
• Keep water nearby and dispose of burned out fireworks and the associated debris in a pail of water.
• If a firework doesn’t go off, wait at least 30 minutes before approaching it. Do not try to relight it, but rather treat it as you would an exploded one and put in a pail of water. Never try to fix a defective firework.
• Always keep your fireworks out of reach of children, preferably in a locked area. Store them in a cool, dry, ventilated place.

If your choice is to attend your community’s fireworks displays, try checking out your town or city’s website for locations, dates and times. We have included some that are local to us below. Please let us know if you’d like us to add your community to our list.

Town of Aurora

Town of Richmond Hill

Town of Newmarket

Town of East Gwillimbury

City of Belleville

The post Long Weekend Fun: Important Firework Safety Tips appeared first on Boland Romaine LLP.

Bike safety is not just for kids. Did you know that in 2007, 84% of all cyclists killed in accidents were over 15 years old? (Insurance Institute for Highway Safety, National Highway and Traffic Safety Administration. Seven smart routes to bicycle safety for adults. 2007.)    

What You Need to Know

According to The Ontario Ministry of Transportation, bicycles may have one (unicycle), two (traditional bicycle) or three (tricycle) wheels. A bike also has steering handles and/or pedals. If your bike has a motor, it is classified as an electric bicycle and is subject to different rules.

While bicycles do not require a license, plates, or registration, under Ontario’s Highway Traffic act, a bicycle is classified as a vehicle (just as is a car or truck), and therefore must share the roadway with others, follow all roadway laws including yielding where appropriate and obeying traffic lights. Additionally, unless it’s a bicycle built for two, bikes should carry just one rider.

Cyclists must also:

• Stay as close to the right as possible
• Not ride on 400 series highways
• Walk their bikes across pedestrian cross-overs

Helmets

According to the law, all cyclists under the age of 18 are required to wear helmets. It is a parent or guardian’s responsibility to ensure that children under the age of 16 are wearing a helmet. The fine for riding without a helmet is $75, but the risk to one’s health of not wearing one is much higher.

While it is not compulsory in Ontario for adults to wear a helmet, it is highly recommended. Wearing a bike helmet can seriously reduce the risk of injury should a rider fall or be in an accident.

When purchasing a helmet, ensure that it is new and bears a sticker from one of these safety organizations:

• Canadian Standard Association: CAN/CSA D113.2-M89
• Snell Memorial Foundation: Snell B90, Snell B95, Snell B90S, or Snell N94
• American National Standard Institute: ANSI Z90.4-1984
• American Society For Testing and Materials: ASTMF1447-94
• British Standards Institute: BS6863:1989
• Standards Association of Australia: AS2063.2-1990
• United States Consumer Product Safety Commission (CPSC) 16 CFR Part 1203

Your helmet should fit snugly but comfortably. It should sit level on your head and cover most of your forehead.

Key Tip: Helmets are good for one hit, so know that should you fall, you’ll have to replace it.

Laws

Ontario has created a number of laws to protect cyclists. It’s important to remember that bikes are considered vehicles similar to cars or trucks and must follow the rules of the road. Sharing the road goes both ways, and defensive biking is always the best way to ride.

In 2015, Ontario added some additional regulations to make cycling safer for everyone. According to 2015‘s Bill 31- Transportation Statue Law Amendment Act (which is part of the Making Ontario’s Roads Safer Initiative), the following applies:

• Drivers must maintain a minimum distance of one metre, if possible, when passing a cyclist
• There are penalties for ‘dooring’ cyclists—improperly opening or leaving open doors of motor vehicles around cyclists
• Cyclists may face increased fines for not having bicycle lights, reflectors or other reflective requirements
• Cyclists may use safety lamps that produce intermittent red light flashes

Join Up!

Want to up your skills when it comes to cycling? Many local cycling clubs offer “Learn to Ride” clinics for those who want to take their cycling skills to the next level, as well as group rides and community.

Visit the Ontario Cycling Club’s website for more information on this exciting sport.

The York Region Cycling Coalition provides information and links to clubs in your area.

The Belleville Chaingang offers riding groups three nights a week for cyclists from novice to experienced.

The Newmarket Eagles is a great way to get involved with others who share your passion for biking in our community.

For kids: Pedalheads offers Learn to Bike programs and camps for children aged 2-12.

Community Resources

If you live in Newmarket, Aurora, Richmond Hill, Markham, Thornhill or Vaughan, York Region has created this helpful cycling guide. It includes bike safety tips and a handy cycling map for taking to the trails.

Many towns and municipalities in York Region offer Learn to Bike courses for both children and adults. Visit Cycling York Region to learn more.

If you live in or around Belleville, visit Belleville on Bikes for news, information, tips, and the best places to bike in the Quinte Region.

Biking is a great way to stay healthy and get around quickly and in an environmentally-friendly way. If you’ve got some additional bike safety tips or recommendations for great places to ride, we would love to hear them.

The post Riding on Two Wheels: Bicycle Safety Tips for Everyone appeared first on Boland Romaine LLP.

Choosing the right personal injury lawyer is one of the most important decisions you will ever make. The consequences can be life-long. But how do you choose the right lawyer when there is so much advertising by personal injury lawyers and everyone claims they’re the best?

Let me give you some insight into my profession, and equip you with the knowledge and questions you’ll need to make the right decision:

First, there’s a secret you need to know. Many personal injury lawyers don’t fight for their clients by saying NO to unreasonable settlement offers and taking the case to trial. Why? Because a settlement will ensure the lawyer gets paid; it’s costly for the lawyer to go to trial; it takes months of work; it takes experience to do it right; and, for those lawyers who have never done it, they are intimidated.

Lacking trial experience is a significant drawback during settlement negotiations. Trial experience is what the insurance companies and their lawyers pay attention to. Fair settlements only arise when the insurance company believes that your lawyer is willing and able to take your case to trial if necessary. Insurance companies know which law firms go to trial and which do not. So should you.

Second, you want to know if the law firm is dedicated to personal injury litigation. Do they only represent the injured?

Third, you want to know that the firm will invest in your claim and charge you fairly. Advancing a legal claim thoroughly is very expensive. Expert opinions are often needed to explain how an accident came to pass, whether standards in an industry were breached, whether products were manufactured improperly, and what the full medical and financial repercussions of an accident will be. On average, your lawyer should spend between $30,000 to $60,000. In complicated cases, it can be much more.

You want to know, does the lawyer just want to get the case settled quickly when the costs are low? Or, will the lawyer pay what needs to be paid to fully investigate your claim? If the lawyer won’t spend what needs to be spent, and won’t likely do the trial preparation work, then he/she isn’t really losing much when promising a “No Win No Fee” guarantee. On the other hand, if the lawyer is going to fund your claim and be ready to go to trial if need be, then that same promise is of considerably greater value.

So, what are some of the questions you should ask to help you decide who to retain:

• Do you have extensive personal injury trial experience and will you be my lawyer from start to finish?
• When was the last time you went to trial?
• Have you taken cases like mine to trial and won?
• Can you show me written decisions and jury verdicts?
• Will you pay for experts to discover the truth?
• Will you wait to the conclusion of my case to be paid?
• Will your fees be fair and reasonable?

At Boland†Romaine, we believe that when your future is being negotiated you need a lawyer who has the fortitude to say NO to unreasonable offers. The best results are only achieved by lawyers with a reputation for rejecting unfair offers and taking serious, challenging cases to trial and winning.

If you need our help, we would like to meet with you. Our work is based on trust. We think that starts face-to-face.

The post How to Choose the Right Personal Injury Lawyer appeared first on Boland Romaine LLP.

But don’t dismay. Jury duty presents us with a unique and meaningful opportunity to give back to our community. It is one of your civic duties as a citizen of Canada. Our justice system depends on it: It operates as a check or counterbalance to governmental influence. In civil litigation it injects the good conscience of the community into the courtroom.  Duty aside, most jurors report that being a juror and delivering a verdict was a rewarding experience.

Every year the Newmarket courthouse holds two trial sittings, one in the spring, and another in the fall.  During each of the three week long sittings, the court conducts as many trials as is possible, with as many judges as are available at that time.

So what actually happens at jury selection? Approximately 500 jurors show up at the time and date on the notice form, and gather in a large room to listen to opening remarks by the presiding judge, and to watch an information video about being a juror.

Sometimes jurors cannot fulfill their duty for a variety of reasons. Jurors will be invited to tell the judge why. The presiding judge will excuse potential jurors, but they must have compelling reasons to do so, letters confirming the legitimate reason help. Often those excused are asked to return the next spring or fall.

After that, the lawyers will read aloud the names of all witnesses participating in the trial, after which the court will invite jurors to announce if they know any of the witnesses or parties. If that happens, you will return to the body of the court room and may still be selected to be a juror on another trial.

Next, its time for juror bingo. The court registrar selects six jurors names from a spinning drum, and calls upon the jurors to take their positions in the jury box.  After names are called the jury is said to be empanelled, and the court will invite the lawyers to exercise their rights to excuse particular jurors.   Each side gets four challenges.  If you are challenged and removed from the jury panel, don’t take it personally.  Lawyers often have strategic reasons for challenging certain jurors. For example, an engineer may be excused from a case based heavily on engineering evidence, for fear that the other five jurors may defer to the engineer, making it a jury of one instead of six.

Once the jury is empanelled and the selection process is over, jurors will be sent to the jury room, and called upon when the parties are ready to start the trial.  Sometimes the trials don’t get reached by the court, and the jurors get released.  You will only have to come back if you get another jury notice.

If your trial does proceed, know that the court is sympathetic to your childcare needs, and typically only sits between 9:30 am and 4:30 pm. If there are significant scheduling issues, the judge can be addressed to see what scheduling accommodations can be made.

Trials start with opening remarks to help provide you with a roadmap to the case you are about to hear.  Most of your time will be spent listening to evidence from witnesses.  The trial will finish with closing remarks and argument by the lawyers.

This is where the hard, but important work of the jury starts.  You will be the “trier of fact” and it will be your job to make up your mind about the truth and honesty of the evidence from various witnesses.  You may be asked to determine whether a party is at fault, and if so, what amount of damages to award to the plaintiff.  At the end, you will have learned a great deal about the civil process, and have a sense of pride for your contribution.    We’ll see you there!

The post So You’ve Received A Jury Notice, Now What? appeared first on Boland Romaine LLP.

Some Background about Ontario Auto Insurance Regulations

In Ontario, you are required to purchase insurance to cover you should you be involved in a car accident. There are four types of coverage that are required.

Third party liability: In Ontario, drivers must carry at least $200,000 in liability. This protects you should someone be injured or killed or property is damaged. This coverage also pays defense costs, to a set limit, to settle claims against you.

Accident Benefits: These benefits cover expenses not covered by OHIP such as rehabilitation, medical, loss of income, or caregiving, regardless of who caused the accident. These benefits have set maximums, but according to the new regulations, you can purchase additional coverage.

Direct Compensation Property Damage: Covers damage to your vehicle  and its contents and equipment if another party is identified at fault for the accident.

Uninsured Automobile: Covers you if you or your family is involved in a hit-and-run accident or one that involves an identified uninsured driver.

Types of Injuries Covered by Accident Benefits

Catastrophic: Paraplegia, quadriplegia, loss of limb, blindness, Traumatic Brain Injury (based on assessment of specific criteria). Automatic designation for children with Traumatic Brain injury in specified circumstances

Non-Catastrophic: minor injuries such as sprains or whiplash and more  serious injuries such as serious strains, broken bones.

The Changes to Accident Benefits

As of June 1, 2016, accident benefits are changing, and the adjustments to coverage will affect medical, rehabilitation, and attendant care benefits. The changes involve maximum payouts as well as providing for the ability to increase coverage according to your specific needs. Additionally, definitions of catastrophic injuries and how they are identified have been modified. These changes are relevant for accidents that occur after the June 1, 2016 effective date.

Medical and Rehabilitation: These benefits reimburse you for reasonable necessary expenses not covered by OHIP or your Extended Health Benefits offered by your employer. Some examples of services include physiotherapy, occupational therapy, and speech therapy.

Attendant care: Reimbursement for an attendant to help care for an injured person, whether at home or in a healthcare facility.

Accidents that Occur Prior to June 1, 2016

Non-Catastrophic: $50,000 maximum for medical and rehabilitation + $36,000 for attendant care

Catastrophic: $1,000,000 maximum for medical and rehabilitation + $1,000,000 for attendant care

Accidents that Occur After June 1, 2016

Non-catastrophic: $65,000 combined for medical, rehabilitation and attendant care

Catastrophic: $1,000,000 combined maximum for medical, rehabilitation and attendant care

Net Changes

Non-catastrophic: reduction of $21,000 in overall maximum benefits

Catastrophic: reduction of $1,000,000 in overall maximum benefits

Note: maximum medical, rehabilitation and attendant care for minor injuries remains the same at a $3,500.

Optional Coverage

Drivers now have the opportunity to purchase additional coverage to supplement the standard maximums up to $3,000,000 in coverage dependent on the type of injury and care or services required.

Conclusions

While the government and insurance industry claim that these coverage reductions have been implemented to make auto insurance benefits more affordable for all Ontarians, it remains to be seen, how much, if any of the savings will be passed on to consumers in the form of lower rates.  One major study suggests that Ontario consumers have been overcharged hundreds of millions of dollars in premiums in the last few years.  There is no evidence to indicate that these changes will result in anything but an extension of that trend.

What is clear is that these cuts will greatly reduce the treatment and care available for those injured in car crashes with the greatest negative impact on those who suffer the worst injuries.

If you have questions about the changes to Ontario’s Auto Insurance coverage or how the changes to coverage might affect you, please contact us or an experienced insurance broker.

The post What the June 2016 Changes to Ontario Automobile Insurance Regulations Mean to You appeared first on Boland Romaine LLP.

Both Canada and the United States have Supreme Courts that adjudicate the law of the land. Within both systems, multiple judges hear cases together and vote on the outcomes. However, the way that Supreme Court judges are appointed differs markedly between the two countries.

Sidebar: The Supreme Court of the United States is often referred to as SCOTUS.

Jurisdiction

Canada: the Supreme Court is the final court of appeal and the highest legal authority in the Canadian Justice System. The court adjudicates on all areas of the law and on all cases from provincial and territorial courts as well as the federal courts. The decisions are binding on all other courts in Canada.

United States: The Supreme Court is the highest court in the United States. It is the final word on any dispute and once a decision is made, no other court can overturn it. Cases heard include those related to the US constitution, appeals from lower Federal courts and matters related to treason, ambassadors, or disputes from other countries. Since SCOTUS rules on constitutional matters, all other courts in the country must adhere to its rulings.

Number of Judges

Canada: The Supreme Court consists of one Chief Justice and eight associate judges.

United States: The court maximum is 9 judges, all of whom are entitled to one vote. One of these justices functions as the Chief Justice much like the Canadian system. However, the court may function with less judges, if one has left and hasn’t yet been replaced.

Sidebar: Currently, while a new justice is going through the nomination process, SCOTUS has been functioning with only eight sitting justices.  Most legal scholars agree that this is a perilous situation as an even number of justices can resulting in split decisions which have limited or no precedential value.  In the brief period that SCOTUS has sat with only eight justices, there have been a number of these ‘ties’. 

Qualifications

Canada: In order to receive a nomination, a candidate must have been a member of a provincial or territorial law society for at least ten years, or have served as a judge in a superior court. In addition, to ensure that the court has knowledge and experience with Quebec’s civil law code, at least three Supreme Court judges must come from that province. Since a cross-section of judges from all provinces is desirable, it is a practice that the Court includes at least one judge from Atlantic Canada, a minimum of two judges from Western Canada, and three judges from Ontario.

Sidebar: Prime Minister Trudeau has made public statements that he plans to appoint justices who are fully bilingual.  That position is about to be tested as Justice Cromwell retires, and qualified replacements from the Atlantic provinces who are bilingual seem to be scarce.

United States: the U.S. constitution does not put any restrictions on who the President may appoint, but normally only sitting senior judges or highly respected jurists are appointed.  In the current environment and the need for Senate confirmation of the appointment the political palatability is a significant factor in the decision.

Ruling

Canada: The minimum number of judges for an appeal is five though more often seven or nine judges hear a case. For applications for leave to appeal, three judges review the written application and render a decision.

United States: Decisions are reached by a majority ruling (5 of 9 judges).

Appointment

Canada:  The Minister of Justice, with input from the provincial law societies, assists the Prime Minister by compiling a shortlist of candidates. The Governor General then appoints Supreme Court judges based on the advice on the Prime Minister. The provinces and parliament have no formal role in the appointment of judges. There is no political element to nominations. Justices may serve until the mandatory retirement age of 75, but they may be removed, on advice of the Senate and House of Commons, for misconduct or incapacity.

Sidebar Fun Fact: The Justices of the supreme court of either country are often affectionately referred to as ‘The Supremes’.

United States: The President nominates a candidate at his own discretion. Generally the candidate chosen will be aligned with the president’s philosophical or political goals. Once the name is announced, the Senate holds public hearings where the candidate is interviewed on a number of topics including their record as judge or lawyer, opinions on key issues, and controversy or scandal. It is rare for a nominee to not be confirmed by the senate once the process reaches this point. Supreme Court Judges are appointed for life.  Over the past few decades the Senate approval hearings have become slower and the questioning much more pointed as partisan politics have coloured the process.

Conclusions

The major difference between the two courts now really lies in the appointment process.  Where in the United States the process of appointing Supreme Court justices has become a political battle, the Canadian process only has a very limited political element and is much more focused on appointing qualified candidates rather than justices who appear willing to extend or support the ruling party’s political agenda.

The post Canada VS The United States: The Differences in the Selection of Supreme Court Judges appeared first on Boland Romaine LLP.

On January 19^th, 1978 three tragic cases all rose to the Supreme Court of Canada, where 9 judges decided how Canadian law would compensate the injured for pain and suffering. These were groundbreaking cases for personal injury settlements. In Andrews v. Grand and Toy, Jim Andrews was an 18-year-old teen that was rendered quadriplegic in a car accident.  In Thornton v School District 57 Gary Thorton was an 18-year-old teen that was rendered quadriplegic in a gymnastics accident at school. In Arnold v. Teno, Diane Teno was a four and a half year old girl who was rendered partially paralyzed and severely brain injured after stepping into traffic from behind an ice cream truck.

The dilemma, of course, is the impossibility of measuring pain and the absurdity of translating it into money and then personal injury settlements. However, the alternative of saying there should be no compensation since it can’t be perfectly done, is equally absurd. Undeniably there is profound loss; the problem is in the measuring.

The court was concerned that leaving juries unfettered to select what number they considered just, would produce wildly variable and unpredictable results, as demonstrated in the USA. However, the court was also against a tariff system, which prevailed in the days of King Alfred, when a thumb was worth thirty shillings. Instead the court preferred a combined approach where the jury assesses the loss of the individual person, but the maximum amount that can be awarded is capped. In 1978 it was capped at $100,000 (which in 2015 equates to $362,678).

While this seems low to most people, the cap was part of a trade-off, with the Supreme Court emphasizing that victims should be compensated for the future losses of income on a tax free basis and their future care needs. In particular, the court rejected the defendants’ argument that they should only be responsible for the cost of institutionalized care, as opposed to “luxurious” home care.

The $362,678 cap remains, but it has been eroded over the past 10 years in Ontario. In 2003 the government granted automobile insurance companies a $30,000 deductible on claims valued under $100,000. In August 2015, reforms to automobile insurance legislation increased these deductibles with inflation. Effective August 31, 2015 the new deductible is $36,450, and the $100,000 benchmark is raised to $121,799.

Juries are unaware and not told about the deductible. There are limits on what plaintiff lawyers can say to help juries value such losses. Meanwhile, the defendant can appear reasonable in suggesting $35,000 or less, knowing it really means zero, or $120,000 knowing it really means $83,550.

Nevertheless, with a compelling narrative and the support of a victim’s friends, family and treatment providers, fair awards are available. We are proud of our precedent setting decisions in relation to knee injuries, burn injuries, chronic pain, and facial disfigurement, which have been recognized as the highest awards for pain and suffering in their category, when they were decided.

If you’ve been injured and you want to know what your options are, please contact us for a free consultation. The only way we can help you to receive the compensation you deserve is for you to take the first step.

The post Can You Put a Price on Pain? appeared first on Boland Romaine LLP.

Tim Boland, one of BolandHowe’s founding partners discussed this issue when he spoke to the Ontario Trial Lawyers Association’s New Lawyers Division during an OTLA conference targeting young lawyers. He delivered his presentation based on a paper he co-authored with another one of the firm’s lawyers Darcy Romaine on strategies related to pre-trials.

The buildup to a pre-trial, Boland writes in the paper, sees parties armed with witnesses, surveillance, research and resources. Whether there will be a settlement, he says, largely depends on the viability of the trial threat — i.e. the evidence, the magnitude of the claim, and the credibility of the plaintiff — along with each lawyer’s resolve.

“Resolve is based on your assessment of whether or not you believe the other lawyer will go to trial to defend the position they advance,” writes Boland.

“Your assessment will turn on your awareness of your opponent’s reputation for regularly taking cases to trial and the results of those trials; how anxious your opponent appears at the pre-trial; how well your opponent projects confidence, competence, conviction, and preparedness through every available means: verbal, non-verbal, written, etc. Interviewing witnesses before the pre-trial, serving expert notices, Requests to Admit, Adverse Party notices etc., will send strong messages of trial readiness.”

While settlement is often the preferred manner of resolution, trial is not to be avoided at all costs.

“Sometimes the benefits do outweigh the costs,” he says. “Sometimes splitting the difference between two bargaining positions isn’t justice. Sometimes there are larger principles at stake. Sometimes a compromise is as bad as a loss, and sometimes the other side is just plain wrong.”

Counsel must also be aware of “the feint,” says Boland, since it may not always be advantageous to showcase true resolve and the total viability of a case as it may only prompt the other side to increase their offer slightly and warn their client to prepare for trial.

“Your job is to assess the other lawyer’s resolve correctly and, depending on the circumstances, determine whether it is best for you to project readiness or not,” writes Boland, noting a feint only works if a lawyer already has a reputation for regularly going to trial.

“In game theory, if you always bluff, it’s no longer a bluff, it’s a tell,” he adds.

Fear of going to trial is a real concern, especially with young lawyers, writes Boland, and the ability to ask for help is crucial.

“Resilience, resolve, and grit don’t just happen: they’re cultivated,” he says.

Boland’s advice?

“You have to do as many trials as you can. You have to take losses. They hurt, deeply, but they’re necessary,” he says. “The trick is to incrementally tackle challenges so your client is always well represented and so that your own feelings don’t compromise your effectiveness. Get into small claims court. Get into traffic court. Get into CPP and ODSP hearings. Your skill and confidence will grow over time and so will your resolve.”

When it comes to scheduling the pre-trial, timing is a strategic decision, says Boland: “The further away it is from trial, the more it will be used by both sides as a reconnaissance mission; the closer it is to trial the more likely it is to focus on resolution.”

Another critical component to the pre-trial puzzle is the pre-trial memorandum, writes Boland.

“Up until the pre-trial memorandum, the adjuster has only received reporting letters from his defence lawyer. The pre-trial memo is a rare opportunity to circumvent the defence lawyer and speak directly to the adjuster/claims manager, the decision makers,” he says.

“This is the document that will be debated at the committees when reserves are re-set. So get your pre-trial memo out as early as you can. You don’t want the attending adjuster and defence lawyer at the pre-trial without sufficient authority to settle.”

The pre-trial memo is also critical because the judge reads it, he adds.

A powerful pre-trial memo requires strong, direct, compelling writing illustrated by photographs, charts and graphs where necessary, says Boland. A proper, polished layout is also crucial, along with impeccable spelling and grammar.

Managing client expectations is another key element of the process, says Boland.

“You don’t want to be going to a pre-trial conference without being in agreement with a fully informed client,” he says. “A pre-trial is a stressful event for your client. Part of your ability to have true resolve is a client who is right there with you. You cannot achieve that if your client is learning the weaknesses of the case and cost consequences in the hallway on the day of the pre-trial.”

Prudent preparation also includes finding out who the pre-trial judge is in advance to get a sense of how it will proceed, as each judge prefers different formats, says Boland.

Pre-trial models include formal, where the pre-trial is conducted in open court, in the presence of the parties; mediated, where in chambers, the judge caucuses with the sides separately after an initial meet and greet; and a discussion format, which is similar to the formal model, but is held in chambers and clients are not invited.

When at the pre-trial, Boland advises counsel to remain polite, professional and respectful.

“Nothing demonstrates inexperience so much as a lawyer who keeps interrupting,” he says.

While there are endless tips to pass along in terms of preparing and executing a pre-trial, says Boland, none are more important than a lawyer’s ability to demonstrate his or her willingness to go to trial.

“Your ability to settle your client’s case for the highest amount without going to trial can only be achieved if the opposing lawyer believes that you will go to trial,” writes Boland. “To do that, you need a reputation for going to trial.”

Ultimately, he says, the result a client will receive will turn on a lawyer’s resolve.

“A career of avoiding trial will catch up with you. Once you develop a reputation of being afraid to lose, your ability to effectively negotiate on behalf of your client is lost,” says Boland. “However, it’s never too late to establish your resolve by taking a stand and fighting for cases that need to be fought, win or lose.”

NOTE: This article was originally featured at www.advocatedaily.com

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