chairs

Michael Smitiuch Smitiuch Injury Law Professional Corporation

William Teggart

William J. Teggart Personal Injury Law Professional

September 19, 2016

Plaintiff’s Personal Injury Law PRACTICE BASICS 2016

*CLE16-0090701-a-puB*

DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

© 2016 All Rights Reserved

This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees.

The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315Fax: 416-947-3991 E-mail: cpd@lsuc.on.ca www.lsuc.on.ca

Library and Archives Canada Cataloguing in Publication

Plaintiff’s Personal Injury Law Practice Basics 2016

ISBN 978-1-77094-168-7 (Hardcopy)ISBN 978-1-77094-166-3 (PDF)

1

Chaired by: Michael Smitiuch Smitiuch Injury Law Professional Corporation

William Teggart

William J. Teggart Personal Injury Law Professional Corporation

September 19, 2016 9:00 a.m. to 12:30 p.m.

Total CPD Hours = 2 h 30 m Substantive + 1.0 h Professionalism

Donald Lamont Learning Centre The Law Society of Upper Canada

130 Queen Street West Toronto, ON

SKU CLE16-00907

Agenda

9:00 a.m. – 9:10 a.m. Welcome and Opening Remarks

Michael Smitiuch Smitiuch Injury Law Professional Corporation

William Teggart William J. Teggart Personal Injury Law Professional Corporation

PLAINTIFF’S PERSONAL INJURY LAW

PRACTICE BASICS 2016

2

9:10 a.m. – 9:30 a.m. Assessing the Case: The Importance of File Selection

(5 minutes )

Salvatore Shaw, McLeish Orlando 9:30 a.m. – 9:50 a.m. Developing and Funding a Plaintiff’s Personal Injury

Practice (15 minutes ) Michelle Jorge, Jewell, Radimisis, Jorge LLP 9:50 a.m. – 10:10 a.m. The ABC’s of Motor Vehicle Law and the Statutory

Accident Benefits Schedule

Tripta Sood, Zarek Taylor Grossman Hanrahan LLP 10:10 a.m. – 10:30 a.m. Starting the Action and Bringing Common Motions

Peter Cho, Smitiuch Injury Law

10:30 a.m. – 10:45 a.m. Question and Answer 10:45 a.m. – 11:00 a.m. Coffee and Networking Break 11:00 a.m. – 11:20 a.m. Dealing with Personal Injury Clients: Managing

Expectations (20 minutes ) Nancy McAuley, Lerners LLP

11:20 a.m. – 11:40 a.m. Best Practices in Mediating Plaintiff Personal Injury Cases

Charles Harnick, Q.C., York Street Dispute Resolution Group Inc

3

11:40 a.m. – 12:00 p.m. Winning Cross-Examinations

Peter Brauti, Brauti Thorning Zibarras 12:00 p.m. – 12:20 p.m. Professional Responsibility Issues in Plaintiff’s Personal

Injury Law (20 minutes )

Ian Hu, Counsel, Claims Prevention and practicePRO, Lawyers’ Professional Indemnity Company (LAWPRO®)

12:20 p.m. – 12:30 p.m. Question and Answer 12:30 p.m. Program Ends

September 19, 2016

SKU CLE16-00907

Table of Contents TAB 1 Assessing the Case: The Importance of File Selection………..1 – 1 to 1 – 6

Salvatore Shaw, McLeish Orlando

TAB 2 Developing and Funding a Plaintiff’s Personal Injury

Practice……………………………………………………………………………..2 – 1 to 2 – 6 Michelle Jorge, Jewell, Radimisis, Jorge LLP

TAB 3 The ABCs of Motor Vehicle Law and the Statutory

Accident Benefits Schedule………………………………………………3 – 1 to 3 – 19 Changes to the Statutory Accident Benefits Schedule (SABS)………………………………………………………….….3 – 21 to 3 – 24 Licence Appeal Tribunal (LAT) Process………………….…………3 – 25 to 3 – 25

Tripta Sood, Zarek Taylor Grossman Hanrahan LLP

PLAINTIFF’S PERSONAL INJURY LAW

PRACTICE BASICS 2016

TAB 4 Starting the Action and Bringing Common Motions………....4 – 1 to 4 – 10

Sample Claims and Motion…………………………………………….4 – 11 to 4 – 56 Peter Cho, Smitiuch Injury Law

TAB 5 Managing a Client’s Expectations………………………..……………..5 – 1 to 5 – 6 Nancy McAuley, Lerners LLP

TAB 6 Mediation Basics/Personal Injury…………………………………….6 – 1 to 6 – 13 Charles Harnick, Q.C., York Street Dispute Resolution Group Inc.

TAB 7 Professional Responsibility Issues in Plaintiff’s Personal

Injury Law……………………………………………………………..…………..7 – 1 to 7 – 3 Sample Retainer Letter – Personal Injury Contingency Fee…………………………………………………………………………………..7 – 5 to 7 – 17 Litigation Claims Malpractice Fact Sheet………………………..7 – 19 to 7 – 20 Managing the progress of a file………………………………………7 – 21 to 7 – 22 Ian Hu, Counsel, Claims Prevention and practicePRO, Lawyers’ Professional Indemnity Company (LawPRO®)

TAB 1

Assessing the Case: The Importance of File Selection

Salvatore Shaw, McLeish Orlando

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

PLAINTIFF’S PERSONAL INJURY LAW

PRACTICE BASICS 2016

Law Society of Upper Canada Donald Lamont Learning Centre

The Law Society of Upper Canada 130 Queen Street West

Toronto, ON

September 19, 2016

Assessing the Case: The Importance of File Selection

McLEISH ORLANDO LLP Critical Injury Lawyers One Queen Street East Suite 1620 Toronto, Ontario M5C 2C5 Salvatore Shaw Tel: (416) 366-3311 Fax: (416) 366-3330

File selection is an important part of building and maintaining a successful practice. However, at the start of your practice, file selection is of the utmost importance. As a new lawyer, you will feel like you have to take on every case that comes through your door. Resist this urge. Taking on cases that are fliers because of a difficult liability situation, or very modest damages, can be crippling to a new practice. You will have to learn to recognize what is or is not a viable file for your practice. As a new lawyer, loading up your cabinet with cases that have little hope of success or recovery, but which will still require significant amounts of time and resources to be spent, is not sustainable.

Making a decision to take on a case where injuries are severe and liability is not an issue is straight forward. For all other cases, you will have to make an initial assessment of the case with very little information, normally in short order. For the most part, your assessment will be based on a phone call or in-person meeting with a potential client. Little to no liability or medication documentation may be available. When conducting your initial assessment, you will want to consider the following before deciding to take on the case. Note that the considerations below focus on potential motor vehicle cases. Taking a hard look at these cases at an early stage will help ensure that the energy, financial resources, and time you expend on cases will be well spent.

1. LIABILITY

i)The Collision

Not every potential new client will be an innocent seat-belted passenger, or present a similarly straight forward set of facts. Other cases may appear straight forward from the outset, but end up becoming more complicated as evidence arises. In cases where a potential client is stopped, or rear ended in the collision, liability will normally be less of a concern at the initial stage. Where liability is not as clear, it will be important to thoroughly flush out the facts with the client. Does the client’s story make sense? Don’t be afraid to challenge the client’s story if there are significant holes or portions of the story which do not make sense. The defence lawyer will. Ask for a copy of the MVA report if the client has one. Consider if there are any facts that may result in a finding of contributory negligence (i.e., was the client wearing a seat-belt, a helmet if on a bike or motorcycle, were they impaired by alcohol or drugs?). Consider whether any Highway Traffic Act charges were laid. If so, who were the charges against? Ask whether there were any eye witnesses. What did theses witnesses say? Will the case come down to a “he said, she said” situation? It is easy to pull up a photo of the roadway or intersection on Google to better understand how the collision occurred. Serious collisions may also generate news reports, video, etc., that may be available online and will help you understand the case. Ultimately, use a common sense approach when coming to your own conclusion on liability, after gaining as many facts as you can. If you have concerns about how the collision occurred and whether liability would attach to a potential defendant that may be a red flag. Consider what information or documentation might be available to help resolve

1 - 1

your concerns. Be honest with the client if you have a concern. If the file warrants it, consider taking on a limited retained to investigate the circumstances of the collision, with the understanding that you may not be able to proceed with some or all aspects of the case, based on the results of your investigation.

ii) Property damage

Don’t underestimate the importance property damage will play as a part of your client’s case, especially in soft tissue injury cases. You will want to know what the extent of damage was that resulted from the collision. This is true for all vehicles involved. Know that defence counsel will be quick to point out at mediation or trial the absence or insignificant damage sustained by your client’s car in the collision. It is an uphill battle convincing the trier of fact that a scratched bumper is the result of a severe impact and the cause of a serious injury. It is not enough to be told that the client’s car was “written off”, if the car was of little value before the collision. How old and what type of car was it. Did the car’s air bags deploy? Know that the vehicle’s air bag module may be available to download in the event that your client’s driving before the collision is an issue. Where was the damage on the car? Is this damage consistent with how the collision occurred as told by the client? Was the client’s car moved forward or pushed into anything as a result of the collision? You are looking for facts that point to a severe impact. While simple, the old adage “no crash, no cash” is a helpful one to remember.

iii) Limitation periods

Normally, calls from potential clients are received a few days or several weeks following a collision. Sometimes these calls can be received much later. Those calls that are received just before a limitation period can later lead to problems as you may be unable to complete the necessary investigation in order ensure your pleadings are sufficient. Similarly, if you receive a call after the two year anniversary of the collision, you will have to consider whether, on the basis of the discoverability principle, your client may still advance a claim. Also, be aware whether there are any applicable notice requirements that may pertain to the case (i.e. Municipal Act notice requirements) that have or have not been delivered and how that might ultimately affect the outcome of the case.

2. DAMAGES

Having a good understanding of liability is only part of the assessment of a file. You will need to determine the nature and scope of damages that may result from the collision. You will also have to make an assessment of the client before determining whether the file is one you should take on.

i) The client

1 - 2

Some basic information about the injured person is necessary. Obviously, age is important. A younger client with a permanent injury will have to suffer with the injury longer. This in turn likely means larger future care needs, a greater loss of income potential and general damages. Age can also impact your assessment of how serious an injury may be. Children are particularly vulnerable. An uncomplicated mid-shaft, long-bone fracture in an adult which will completely heal may not generate significant damages. However, consider the case of young child in which the fracture involves a growth plate. Such a case could result in significant damages. Also, consider the client’s back ground. Some clients have very compelling back stories that may be very helpful in your assessment of them and the case. Consider the client’s family situation. Is the person married? Does he or she have children? If the injuries are such that they will significantly impact the relationship with family members or cause a loss of services, consider whether there are viable Family Law Act (“FLA”) claims that can be advanced that would increase the value of the case. The types of damages recoverable in a claim under the FLA 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.

Consider your impression of the client. How does the person present? Are they credible, trustworthy and straight forward? Do you trust them? Do not take on cases where these issues are a serious concern. You will be working with this person for several years. You will invest a large of amount of time and resources advancing this person’s case. If you do not believe in them or their claim, you should not be taking on the case. Do not discount your initial impression of the client; it is often the right one. If something doesn’t feel right, it probably isn’t. Where possible, meet with the potential client in person. Meeting with a client is the best way to determine how he or she presents. Ask the client to bring to the initial meeting any documentation they may have regarding the collision as well as their injuries. Make it a point to meet with most if not all potential clients who call you when building your practice, even if you do not believe that it will be a case you can take on. Each and every client is a potential referral source down the road. Where you are unable to determine whether the file is worth taking on, either because the liability facts are unclear or it is still too early to determine whether the injuries will resolve, take a wait-and-see approach. Ask the client to call you back if further information on liability

1 - 3

becomes available or their injuries do not improve within a certain time frame. Remember to caution them about the existence of limitation periods and confirm in writing that you have not been retained.

ii) The injuries themselves

Obtaining a good understanding of the injuries sustained is critical. The internet is a great resource for determining the nature of the injury at these initial stages. Consider what the prognosis is for the injury. Is it likely that these injuries will worsen over time? What complications can arise from the injuries and required treatment? As an example, consider a client who reports they suffered a broken arm in the collision. An uncomplicated mid-shaft fracture can completely resolve in several weeks without any future complications. In contrast, should the fracture involve a joint, a future deterioration is possible and can be the cause of significant future damages. You are trying to look into a crystal ball at this stage to see what the likely outcome of the injury will be and what future complications, if any, may result.

Also consider the nature of the injury. Is it an objective injury or one that depends entirely on the client being believed? An objective injury like a fracture or other injury that is visible on medical or diagnostic imaging is helpful when advancing the case. In contrast, the unseen injury is always an issue that you will have to work hard to explain to the trier of fact. While objective injuries are much easier to prove than those that do not appear on any imaging, the majority of calls you receive will likely involve soft tissue injuries. In these cases, credibility and likeability of the client will be key. Consider the client’s answers about pre-accident health, work history, post collision treatment and how these answers impact on their credibility and likeability.

iii) Treatment

Consider the actions of the client right after the impact. Do they lead you to conclude that the injuries sustained were serious? Did the injured person lose consciousness, and if so for how long? Did they get out of the car themselves? Did they leave the scene in an ambulance? Was the injured person hospitalized? How long? Did they seek emergency medical treatment? If so, how long after the collision? Is there an explanation for any delay? If any testing or imaging was done, what did it reveal? As mentioned, unseen injuries are more difficult to prove. What treatment or medication was prescribed? Are they still undergoing treatment? Have they been referred to a specialist? Has the specialist given them any prognosis for the injury? Where are they with their recovery? Do they feel like they are getting better or worse? Ask yourself, if you were hearing this story for the first time, what would be your impression of whether the injuries are serious or not?

1 - 4

iii) Pre-Accident Health

You will want to ask about how the client’s health was before the collision. Consider whether there were issues before the collision that were (or were going to) impact the client’s ability to work, look after themselves or their home, or that may impact life expectancy. You must have a candid conversation with the client as most people have a tendency to report that they were fine before the collision. Explain the importance of getting this information up front. Explain that you, as part of your job in advancing their case, will have to obtain their pre-collision health records and provide them to the defence lawyer. Explain that you want to be able to deal with any concerns up front. This should help obtain more detail from the client. You should also examine the level of functioning the client had before the collision. Many people have complaints or illnesses before a collision but are working and leading active lives. A high level of functioning before the collision is key when advancing claims for clients with significant pre-collision complaints. Sometimes, the issues in a client’s pre-collision health actually help to explain a person’s unexpected response to what may be considered a “minor” collision (i.e. the vulnerable thin skull plaintiff).

iv) Loss of income / Loss of Competitive Advantage

In order to assess the potential for loss of income or earning potential, you must have a good understanding of the client’s job and work history before the collision.

With respect to the actual job, determine what the essential duties of the job were. Are there physical aspects to it? Is there heavy or repetitive lifting? Does the client have to be on their feet all day? Can they take breaks? Would the injuries sustained impact their ability to do the job? Also consider how the client was as an employee before the collision. Did he or she receive annual raises? Obtain good performance reviews? Did they move up in the company or obtain promotions within a department? What were their approximate earnings per year? Is the person eligible for STD/LTD benefits, and if so how much? How long has the injured person been off work?

Where the client has not yet started their career, as in the case of a student, determine what their future plans were. Where are they in their education? How has their schooling been or will be affected? Will there be a delay in completing school and consequently delayed entry into the workforce as a result of the collision? Will their choice of career change, resulting in a lower earning position?

Consider the potential client’s work history. Are they someone who has been labouring consistently over an extended period without interruption? If not, what is the explanation for gaps in employment or numerous employers over a short time frame. If the individual was about to start work or was looking for work, confirm whether there is any evidence that can be obtained to support these efforts (completed job applications, interviews, contracts offering employment).

Consider the nature of the client’s work. Was the client self-employed? Did the client

1 - 5

report all their earnings? Someone who did not report all their earnings or worked for cash under the table has already lost a significant amount of credibility.

For those that are unemployed (i.e. stay at home parents, retired persons), focus on what services they may be providing that are now unable to be completed (i.e. child care, housekeeping, home renovations etc.). There may be considerable costs to replace these services, which can be claimed in a lawsuit.

v) Threshold

You should also consider whether the case will meet the “threshold” requirements set out under section 267.5 of the Insurance Act. The threshold precludes persons who are injured, directly or indirectly, through the use or operation of an automobile, from suing protected defendants for non-pecuniary loss, unless the person has sustained a permanent serious impairment of important physical, mental or psychological function, or alternatively, has sustained a permanent serious disfigurement.

vi) Other considerations

Other considerations in your initial assessment of the case should include whether the parties were in the course of their employment at the time of collision. This raises the concern of the claim being potentially barred by action of section 28 of the Workplace Safety and Insurance Act should it apply. Another consideration is whether the client is already represented and looking to change lawyers. Sometimes this poses additional problems, such as the previous lawyer fees and the amount of disbursements which will need to be paid when taking over the file. Also, consider whether the issue that caused the breakdown with the previous lawyer will not also act to end your relationship. You should also consider the referral source, if applicable. Sometimes taking on a file that may be on the line, is repaid many times down the road.

Conclusion

File assessment and selection is a skill like anything else. It requires time to develop. Keep in mind that there will always be files you will regret taking on (or not taking on for that matter), regardless of how diligent you are when assessing the case in the first instance.

1 - 6

TAB 2

Developing and Funding a Plaintiff’s Personal Injury

Practice

Michelle Jorge, Jewell, Radimisis, Jorge LLP

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

DEVELOPING AND FUNDING A

PLAINTIFF’S PERSONAL INJURY

PRACTICE

Michelle Jorge

mjorge@jrjlaw.com

Jewell Radimisis Jorge LLP

4665 Yonge St. #204

Toronto, ON

M2N 0B4

TEL: 416-862-7028

FAX: 416-862-2135

DEVELOPING AND FUNDING A PLAINTIFF’S PERSONAL INJURY PRACTICE

BY: MICHELLE F. JORGE

There are three critical elements that need to be given focus in the developing and sustaining the

viability of any business: clients, employees and profits. In my opinion any business must give equal

attention to these three elements. The business of personal injury, of course is a unique one because it

cannot operate just like any other business because of the duties we owe to our clients, and the fact

that those duties require that we make decisions that place a higher emphasis on one of those

elements. Yet at the same time, in order to develop and fund a personal injury practice it must operate

with the general principles of a business if it is going to survive in this market.

Clients:

Obviously the number one priority in developing and funding a personal injury practice is clients. First

and foremost finding and connecting with the right referral sources and developing a marketing plan is

key. It is important to spend time strategizing and planning different ways to target for new business. It

is important to solidify relationships with people in the medical field, doctors, specialists, hospitals etc.

It is important to stay connected with members of our profession. Even within the personal injury bar,

there is plenty of connections to be made that will generate files.

Not only do you have to develop these connections for files but you also have to make sure you have a

system in place to keep clients happy (as they can be given the difficult circumstances they are in). This

means making sure that there are policies and procedures in place about level and frequency of client

contact. We have a policy for example that a client’s phone call must be returned within one business

day. A potential new client must be seen within 3 days at most. Only a lawyer can sign up a new client.

We spend a lot of time not only going over extensive details relating to injuries, limitations, work

history, liability etc. but we also spend a lot of time managing expectations. We explain cost

consequences to the client at every single new client meeting. Every new retainer letter that goes out

has a follow up appointment for the client to meet with the lawyer. We go out of our way to

accommodate our client’s requests to meet or talk after hours or on weekends if necessary.

In the end, we want clients to walk away as happy as they can be under the horrible circumstances they

are in. Obviously, this is not always possible but we try our best to make this happen every time and it is

important to apply that model to all clients whether it is the smallest file in the cabinet or the largest. At

the end of the day we owe the same duty of care to each of those clients and every single client is

capable of referring other clients as well. This is not contingent in any way on the value of their own

2 - 1

case. This is only contingent on the value of the work of the lawyer and the team who worked on their

file. And of course our responsibilities and duties to a client are not in any way contingent on the

settlement value of their case.

Human Resources:

In order to develop and maintain a successful personal injury practice it is imperative to a) have a great

team and b) treat them in a great way. This sounds very basic but without the right team members in

place, this beast we tackle every single day, will eat us alive.

a) Having a great team:

Having a great team is not a simple goal to achieve in personal injury nor in any business. But it is critical

not only to the development of the business but to the sanity of the partners running that business. A

key element to finding people that will be great on your team is work ethic. I am willing to train a smart,

eager, hardworking individual as long as their work ethic is similar to mine. If it is not we will clash.

Work ethic is something that simply cannot be taught.

When I was interviewing for an articling position I recall always hearing the term ‘fit’. This was so odd to

me what does that mean, does someone fit into the firm culture. I started to develop an understanding

as an associate lawyer but only truly learned the in-depth meaning of this concept once I developed my

own business. This is so critical. Every firm has its culture and it’s very important that the people you

hire fit into that culture.

Another key element is people skills. You need happy and personable people in your office. This applies

to everyone, whether it is the person who scans or the lawyer who will run a department in your firm.

Happy personable people will be happy and personable with each other. This means that there will be

less issues for you to deal with from a human resource perspective. Happy and personable people will

be happy and personable with clients. There is truly no price to put on this for too many reasons to list.

But most importantly, we are dealing with a very vulnerable and distraught portion of society. I need to

know that my team members will always be pleasant and respectful towards my clients and others.

Happy and personable people will also be happy and personable with lawyers, adjusters, lay witnesses,

doctors and so and so forth. Being happy and personable does not take way from being firm and

strongly advocating your position. It simply creates a more positive atmosphere and overall a better

working environment. We spend a large percentage of our time engaged in work related activities, it is

important that we make this as pleasant as possible because it is a long road ahead.

b) Treat the great team in a great way:

I am intentionally using the word team because I consider myself to be the team leader as opposed to

being the boss. I am a firm believer in treating everyone with equal respect, making sure that every

single person is compensated fairly for their work and having a give and take relationship with the

members of my team.

2 - 2

Running a personal injury practice is at times quite a daunting task. The pressure we place on our team

members to meet deadlines can be very overwhelming. Doing simple things like saying good morning to

every single person you walk by in the morning can go a long way. I have learned over the years that the

staff pays way more attention to what we do than we realize.

We always ensure that we are fair in how we compensate our team members. If this means that we are

making less profits that year, then we just focus on ways to improve and make more profits the

following year. We ensure that we are giving generous bonuses at the end of each year. We close our

office in between Christmas and New Year’s. We have summer hours every Friday summer months, we

are generous with our raises and we are respectful of their family responsibilities. What do we get in

return? Well we have staff who come in early, stay late, work together to get things done and we can

sense that they genuinely respect their team leaders.

Profits:

I learned very early on in my career that to make money you have to spend money. But when you first

get started, unless you have managed to save a substantial chunk of cash, and I do mean substantial,

you have to go to the bank and borrow that money. Developing a good relationship with your business

branch manager is very important. I think it is also very important that you choose a branch that is used

to dealing with personal injury law firms. We are our own unique business model. There are enough

things to deal with, having to explain that you are not getting paid for your work possibly until 5 years

from now, should not be on your list of tasks to do.

Preparation is key when approaching the bank. A detailed business plan should be created well in

advance. There should also be a list of all clients (removing names for confidentiality) along with the

projected settlement/judgment date as well as the amount you expect to earn in fees. This will not only

be impressive to the bank but it will make you feel better. Developing a personal injury practice is not

an easy task, organizing and planning ahead can go a long way in helping you see the big picture and

making you feel better. Let us not underestimate the value of ‘feeling better’.

Managing how the firm time is being used and finding ways to be more efficient with time is critical to

the development of a personal injury practice. We try to organize information as much as possible. We

have rules in place that provide timelines for issuing Statements of Claim, attending examinations for

discovery and going to mediation. Of course, we are not always able to follow these timelines, but these

are guides that keep files moving forward.

Once I became a partner I learned very quickly that it is not so much about how much you bill but how

much of those billings you actually net. Running a personal injury practice is very expensive. This is

actually a complete and utter understatement. The fact that we have to carry the disbursements on

every single file for years is not easy. The fact that we never really have certainty about when we are

getting paid on a file is also not easy.

2 - 3

Here are a few tips that I have learned along the way:

1) Make sure you have a proper line of credit in place. When you are doing well or doing better,

go to your bank and ask for more money, even if you do not need it. It is nice to have a cushion.

It will make you feel better.

2) Try to find ways to save. Speak to other lawyers about who they are using as process servers,

interpreters, for photocopy services etc. Do some of your own research. This can save

thousands of dollars. Discuss and brainstorm with your team how to improve the workflow. We

will do team meetings for example where we will go around the room and every single person

highlights what works well for them. We try to implement the strengths and deal with the

weaknesses in the system. There is a lot of brainpower on your team. Tap into that resource.

This means having these meetings a few times per year.

3) Work with experts who are willing to get paid at the conclusion of the case whenever

possible. If you know a doctor that you really like working with but you do not want to carry

those kinds of disbursements, speak to an assessment company about connecting them with

this doctor. The assessment company will be happy to add a doctor to their roster. The doctor

will be happy that you have connected him/her with another source for work, and you are not

paying for the assessment upfront. Lastly your client has the benefit of seeing a credible doctor

who will assist in moving their case to a conclusion.

4) Make sure you are being proactive on files. You have to anticipate what the other side will

need to settle the file. This means keeping the file moving. This not only means bringing in a

settlement sooner but more importantly it means your client can put this behind him/her

sooner. This should also mean that you are building the exposure on the file which should help

in resulting in a better settlement.

5) You must have multiple opportunities to settle at all times. We all go through periods where

the stars align and everything settles on time and for the amount that you projected. Okay in all

reality this happens very infrequently. What actually happens is that we can go through periods

where mediations, pre-trials and settlement meetings are not getting cases resolved. How to

survive those periods is to make sure that you have a lot going on at the same time. This means

planning ahead because not only do you need time to prepare but your team needs time to

prepare as well.

6) Review the expenses and billings monthly and figure out targets. As the expenses go up, and

the number of team members increases, so should your targets. Also do an annual review of

your entire practice. This means file reviews, expenses and billings. It is important to plan for

these ahead of time. This means blocking days sometimes a year in advance.

2 - 4

To enter a business marriage or not to enter into a business marriage

When you are starting out trying to decide whether to go out on your own, join an existing partnership

or start a partnership, there are some key points to consider. First of all if you do choose to join a

partnership or form a partnership, understand that you are in a business marriage. As such, for this

business marriage to succeed there are some necessary elements:

a) Moral compass: There will be many decisions to be made with regards to clients, profit sharing,

advertising, banking etc. If you and your partner or future partner are not guided by a similar

moral compass this will cause huge difficulties. All of the decisions we make in life are in some

way guided by this compass. Make sure the person(s) you are entering into a business marriage

have a similar compass.

b) Similar vision: It is critical that you and your partner(s) share a similar vision about the firm and

its future. In my partnership for example, my partner and I both knew that we are not

interested in developing a volume firm. We both agreed we want to be selective about the

cases that we take on and we want to be able to provide very high client service while

maintaining and developing our reputation within the industry. This meant introducing policies

and guidelines about what kind of cases we take on, client contact, quality of work etc. Again,

very important that our visions were similar in this regard as there could be significant clashes

otherwise.

c) Fairness: Just like any relationship, whether with a family member, with a friend, co-worker or

whomever, fairness must be at the core of the decisions made between the partners. It is

important that all partners are fair with each other in how the work and profits are divided. My

partner and I for example try to maintain the same number of clients at all times, we try to

ensure that each of our team is staffed similarly and try to divide the work that arises from

partnership meetings equally. If one of us is busy preparing for trial or away we back each other

up.

d) Similar work ethic: This is critical not just for partners but even for people you hire to join your

team. If one partner wants to leave the office at 4 all the time and spend half the year in the

Maldives while the other wants to be at the office 7 days per week a partnership is not a good

idea. Despite the fact that there can be many different partnership arrangements, a dissimilar

work ethic is lethal to a partnership.

e) Tap into each other’s strengths: If one partner enjoys public speaking and the other is better at

the financial management of the firm but hates public speaking, divide your tasks accordingly. If

one partner is really good at cross examining and the other at delivering an opening, divide your

2 - 5

trial work accordingly. If one partner is really good at negotiating with the bank and the other

really good at networking, divide your tasks accordingly. My partner is much better at the

business management of the firm. She remembers all of the details about how much we pay for

what, what our financial obligations are, what our obligations are to the law society etc. I on the

other hand get a bit overwhelmed when the bank is reviewing our profiles and have to put a few

documents together. Fortunately my partner and I are both social. I say fortunately because it

helps us in many ways both with clients and defense lawyers and referral sources. But I am

more social than she is and enjoy the social aspect of marketing our firm more than she does.

As such, we focus on our strengths and assign each other separate tasks. This is not to say that

she does not participate in marketing events or that I do not participate in the management of

the firm, but we divide tasks proportionately according to our strengths and likes. At the end of

the day being a partner should make things easier for all parties.

In conclusion, developing and funding a personal injury practice is not for everyone. There are

excellent lawyers who have zero desire to run a business and can be quite satisfied as associates.

However, not all of us can be satisfied with just the practice of law. Some of us cannot be fully

satisfied in that manner and need to be in this role to be proportionately fulfilled. I hope that this

paper has provided some useful points to consider in the development and funding of a personal

injury practice. The truth is, I am still figuring it all out and developing our personal injury practice,

myself.

2 - 6

TAB 3

The ABCs of Motor Vehicle Law and the Statutory

Accident Benefits Schedule

Tripta Sood, Zarek Taylor Grossman Hanrahan LLP

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

THE ABCs OF MOTOR VEHICLE LAW AND THE STATUTORY ACCIDENT BENEFITS SCHEDULE

Tripta Sood Zarek, Taylor, Grossman Hanrahan LLP

In 2016, the Ontario no-fault benefits legislation and related dispute resolution system were

significantly changed. These changes, in particular, those applicable to the determination of

catastrophic impairment, are some of the most extensive changes to the legislation since the

introduction of Bill 59, which came into effect on November 1, 1996.

The following paper will provide an overview of the overview of the most significant changes

and the issues expected to arise as issues concerning entitlement to such benefits make their

way through the new LAT dispute resolution system, which will also be reviewed.

A. THE NEW SABS REGULATIONS

Effective June 1, 2016, the Statutory Accident Benefits Schedule , governing entitlement to no-

fault benefits in the event of motor vehicle accidents, was revised once again. The legislation

introduced changes which include reductions to the level of medical, rehabilitation and

attendant care benefits available, as well as a full revision of the definition of catastrophic

impairment, as discussed below.

Medical and Rehabilitation Benefits (Sections 14-20)

3 - 2

Under the former Schedule, injuries were divided into three categories: minor injuries, non-

catastrophic (but non-minor) injuries (“non-catastrophic”), and catastrophic injuries, each with

corresponding maximum limits in relation to medical and rehabilitation benefits. Claimants

with minor injuries were entitled to a maximum of $3,500 for medical and rehabilitation

benefits, those with non-catastrophic injuries were entitled to up to $50,000, or up to ten years

1 Statutory Accident Benefits Schedule—Effective September 1, 2010, O. Reg. 234/10 to the Insurance Act, R.S.O. 1990, c. I-8 (“Statutory Accident Benefits Schedule”). The June 1, 2016 changes were brought into effect by O. Reg. 251/15.

3 - 1

of benefits (whichever came first), and those with catastrophic injuries were entitled to up to

$1 million over the course of their lifetime.

The new regulation does not change the $3,500 limit applicable to those with minor injuries.

However, it does change the limits to the other two categories of claimants, ostensibly

increasing benefits to those with non-catastrophic injuries to $65,000, and leaving the

catastrophic limits at $1 million. However, these new “increased” limits now include payments

for attendant care benefits, which were formerly subject to separate limits, with the end result

being that medical and rehabilitation limits are lower with respect to those with non-

catastrophic and catastrophic injuries, as discussed further below. Moreover, the time limit for

medical and rehabilitation benefits coverage for those with non-catastrophic injuries has been

reduced from ten years to five, with entitlement up to age 28 for injured persons who were

under 18 years of age at the time of the accident. Entitlement for those with catastrophic

injuries remains lifelong.

Attendant Care Benefits (Sections 18 and 19)

As mentioned above, the new regulation rolls entitlement to attendant care into the medical

and rehabilitation limits, instead of providing a separate pot of funds for attendant care, as

under the former Schedule. Previously, there was no entitlement to attendant care benefits for

those with minor injuries, while those with non-catastrophic injuries were entitled to up to

$3,000 per month for up to 104 weeks post-accident, and those with catastrophic injuries could

receive up to $6,000 per month up to a lifetime maximum of $1 million.

The new regulation does not change the monthly amounts, but specifies that those amounts

will now come out of the medical and rehabilitation limits. Thus, where those with non-

catastrophic impairments previously had access to up to $50,000 for medical and rehabilitation

benefits and an additional maximum of $72,000 for attendant care benefits, the total available

for all such claims is now reduced to $65,000. The same applies to those with catastrophic

impairments, where the prior limits were $1 million for medical and rehabilitation benefits plus

3 - 2

an additional $1 million for attendant care. Catastrophically injured claimants are now entitled

to only $1 million total for all such claims.

The 2013 Henry v. Gore2 amendments to the Schedule, which require that an insured person

demonstrate that attendant care has been “incurred” and that the amount of the attendant

care benefit payable to a non-professional caregiver be limited to the amount of the caregiver’s

economic loss rather than the assessed amount of the attendant care required, remain.

Non-Earner Benefits (Section 12)

3 - 4

Under the former regulation, non-earner benefits were payable at $185 per week to individuals

who did not qualify for income replacement benefits and who suffered a complete inability to

carry on a normal life. There was a six-month waiting period, but benefits were payable for life

for those with catastrophic impairments. Benefits were available to claimants commencing at

age 16, and increased to $320 per week at 104 weeks post-accident in the case of catastrophic

impairment. If a claimant was not catastrophically impaired, benefits terminated at 104 weeks

post-accident.

By contrast, the new regulation shortens the non-earner benefits waiting period to four weeks

and maintains the $185 per week, but benefits are not available to claimants until age 18, and,

2 Henry v. Gore Mutual Insurance Company, 2013 ONCA 480 (CanLII). In the trial and subsequent appeal decisions, it was held that when attendant care was being provided by a non-professional caregiver (eg., a friend or family member), an insurer was required to pay benefits at the Form 1 rate (subject to monthly maximums in the Schedule), rather than based on the amount of the economic loss suffered by the caregiver. In response to this, the Schedule was amended to specify that the amount payable was the amount of the economic loss only, regardless of the dollar value of the care assessed under the Form 1. 3 Section 3(7) of the Statutory Accident Benefits Schedule reads as follows:

subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person.

3 - 3

most significantly, there is no entitlement to benefits after 104 weeks post-accident, regardless

of the severity of the injury.

Catastrophic Impairment (Section 3.1)

The most significant, and likely to be the most disputed, changes relate to catastrophic

impairment. The changes were intended to address two decades of uncertainty and

unpredictability regarding when claimants would be deemed catastrophically impaired, as well

as the gradual broadening of the catastrophic definition, beyond what was contemplated by the

drafters of the former regulation. The problems with the previous catastrophic definitions

included the use of psychological impairments in relation to calculation of whole person

impairment (“WPI”), the use of outdated medical sources (eg., the 4th edition of the American

Medical Association Guides to the Evaluation of Permanent Impairment), and what seemed to

be never-ending disputes among various catastrophic assessors as to the use of the AMA

Guides in calculating the WPI.

By contrast, the new regulation incorporates medical measures of function at all stages of the

catastrophic evaluation, including brain injuries; provides specific, separate criteria for

evaluating pediatric brain injuries; references both the 4th and 6th editions of the AMA Guides;

provides specific methodology for evaluating mental and behavioural impairment;, and

(hopefully) tightens previous loopholes and eliminates many of the ambiguities in the former

legislation. That said, there are still many areas where the definition is open to interpretation,

and where it is likely that disputes will arise.

In light of the reduced limits now available, catastrophic determination will be more important

than ever, and we can expect that efforts to have a claimant deemed catastrophically impaired

will be more and more frequent, in an effort to ensure that claimants have access to funding to

meet their treatment and care needs.

A full analysis of the various scales and methods to be used in determining catastrophic

impairments is beyond the scope of this paper; however, I have set out below a summary of the

changes and anticipated issues arising from each.

3 - 4

Paraplegia/Quadriplegia (Section 3.1(1))

The former legislation referred simply to paraplegia or quadriplegia as sufficient to meet the

catastrophic definition. The new regulation references paraplegia and tetraplegia (essentially

the same as quadriplegia), but introduces a test which requires demonstrable spinal cord

compromise and is based on the degree of spinal impairment. The Schedule now mandates

that spinal function be measured using the ASIA (American Spinal Cord Association Impairment

Scale) and the SCIM (Spinal Cord Independence Measure). These measures are intended to

focus on actual limitations rather than simply a diagnosis, and essentially require a combination

of quantifiable significant and permanent impairments, as defined under the two measures.

The main area for potential dispute is likely to be the SCIM, which measures function based on

the ability to walk with or without various aids. There will undoubtedly be disputes regarding

what it means to be able to “walk” (eg., how rapidly, with what level of reported pain, at what

time of day, with what pain medication), and how level of function is measured under the

SCIM.

Amputation (Section 3.1(2))

The former Schedule required the amputation or other impairment causing the total and

permanent loss of use of both arms or both legs, or one or both arms and one or both legs.

While this was not a frequent basis for a claim of catastrophic impairment, there were

inevitable questions regarding what constituted an “other impairment causing the total and

permanent loss of use”.

Again, the new Schedule attempts to introduce a more objective measure. While the criteria

have been broadened to include the amputation of just one arm or leg (the latter requiring

amputation that is trans-tibial or higher), the subsection criteria relating to loss of an arm still

includes a subjective component, allowing a catastrophic determination in the event of an

“impairment causing the total and permanent loss of use of an arm”. The definition also allows

for catastrophic determination based on the “severe and permanent alteration of prior

structure and function involving one or both legs”, based on function measured using the SCIM

3 - 6

walking test, which the legislation specifies is to be applied “over a distance of up to 10 metres

on an even indoor surface”.

Again, despite the drafters’ efforts to apply objective measures, the definition remains open to

interpretation. For example, with respect to the total and permanent loss of use of an arm: is

loss of use of the hand sufficient, since, arguably, an arm is of little use without a functioning

hand? What if a prosthetic will allow use of the arm? How is “total” loss of use defined? At

what point post-accident should it be determined whether the injury is “permanent”: that is to

say, if improvement or deterioration occurs after a determination, can the issue be revisited?

With respect to the criteria of “severe and permanent alteration of prior structure and function

involving one or both legs”, the same issues referred to above with respect to

paraplegia/quadriplegia will likely arise.

Blindness (Section 3.1(3))

The former Schedule set the catastrophic threshold as “total loss of vision in both eyes”,

whereas the new Schedule clarifies the issue by specifying the level of vision using objective

measures and, most significantly, excludes loss of vision attributable to “non-organic causes”.

This was, and will likely remain, an infrequently used basis for a catastrophic impairment claim.

Adult Brain Injury: Age 18 or Older (Section 3.1(4))

In the former Schedule, there was no distinction between measurement of pediatric versus

adult brain injury, whereas the new regulation provides for different measures to be used,

depending on whether the claimant had reached 18 years of age at the time of the accident.

The former Schedule provided for an automatic catastrophic determination based on a Glasgow

Coma Scale (GCS) finding of 9 or less recorded “within a reasonable period of time after the

accident”, or a score of 2 or 3 on the Glasgow Outcome Scale (GOS) six months or more post-

accident.

3 - 6

The new regulation (subsection 3.1(5)(i)), requires objective evidence of a brain injury, via CT

scan, MRI or “any other medically recognized brain diagnostic technology”. The second

subsection (3.1(5)(ii)), mandates that the insured person must score within certain categories

on the Extended Glasgow Outcome Scale, which has replaced the GOS, at more than one, six,

or twelve months post-accident.

Of note is that the drafters did not separate subsections (i) and (ii) with either “and” or “or”,

such that it is unclear whether a claimant must meet both or just one of the criteria. Another

key question, in the case of objective evidence of a brain injury (subsection (i)), is whether

diagnostic technology other than an MRI or CT scan which purports to show evidence of a brain

injury will be considered “medically recognized”4.

Pediatric Brain Injury: Under age 18 (Section 3.1(5))

The new regulation provides five separate ways in which a pediatric catastrophic brain injury

may be proven, which are as follows:

(i) Admission to one of a certain number of recognized public hospitals, plus objective findings on a CT, MRI, or “any other medically recognized brain diagnostic technology”;

(ii) Admission to a recognized pediatric neurological rehabilitation facility included in the Ontario Association of Children’s Rehabilitation Services;

(iii) One month or more post-accident, a score of 2 (vegetative) or lower on the King’s Outcome Scale for Childhood Head Injury (“KOSHI”);

(iv) Six months or more post-accident, a score of 3 (severe disability) or lower on the KOSHI; or

(v) Nine months or more post-accident, a “seriously impaired” level of function, “such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of the insured person’s waking day”.

4 In this regard, see R. v. J.L.J., 2000 SCC 51 (CanLII), where the Court listed several factors to consider when determining the reliability of novel medical technology.

3 - 73 - 8

It seems unlikely that criteria (i) and (ii) will raise many issues, given the requirements of

hospital admission (which would presumably involve a level of objective medical assessment)

and the limits on what types of hospitals will qualify. The larger issue will likely be with the use

of the KOSHI, which is designed for use in children ages two to 16, and may have limited utility

in children outside that age range. In addition, there are no restrictions on what types of

experts may administer the KOSHI, and the timing of the test administration may also raise

issues if there are impairments which manifest later in life. Finally, criterion (v) will, of course,

raise issues regarding the definition of “seriously impaired” and “age-appropriately

independent”, among others.

Whole Person Impairment (Sections 3.1 (6) and (7))

The new regulation, unlike the old, has refined the way the whole person impairment (“WPI”) is

calculated. Under both the old and new regimes, a claimant has to prove that (s)he suffers a

55% impairment of the whole person to qualify for catastrophic impairment. However, the old

regulation referenced the old (4th edition) of the AMA Guides and did not specifically allow for

the consideration of combined physical and mental impairments in calculating the WPI, or

provide a method for combining the two.

The new regulation attempts to remedy this, providing two ways in which a claimant may meet

the catastrophic threshold on the basis of whole person impairment (WPI):

(a) A physical impairment or combination of physical impairments that, under the AMA Guides, 4th edition, results in 55 per cent or more physical impairment of the whole person (subsection (6)); or

(b) A mental or behavioural impairment (excluding traumatic brain injury), that, under Chapter 14 of the AMA Guides, 6th edition, when combined with physical impairments (calculated as set out above) by using the combining tables in the AMA Guides, 4th edition, results in a 55 percent or more impairment of the whole person (subsection (7)).

Subsection (6) remains unchanged from the previous Schedule, and can be expected to give rise

to the same types of disputes; primarily the percentage ratings to be assigned to various

impairments.

3 - 8

Subsection (7), on the other hand, is new, and now explicitly permits combining of physical and

mental impairments and also sets out the specific methodology to be used; namely, the AMA

Guides 6th edition. Where there were previously numerous disputes regarding these two

matters (whether combining was permitted and, if so, the appropriate method to be applied

when doing so), the new regulation will hopefully eliminate at least these issues.

The other significant issue relates to the timing of the assessment. A catastrophic claim based

on a 55% WPI score can be calculated no earlier than two years post-accident, unless a

physician states that the claimant’s impairments meet the 55% WPI and they are unlikely to

improve. In the latter case, the assessment may be done as early as three months post-

accident.

Mental and Behavioural Impairments (Section 3.1(8))

The new regulation provides that a claimant will be catastrophically impaired if (s)he has an

impairment that, according to the AMA Guides, 4th edition, results in a class 4 (marked)

impairment in three or more areas of function, or a class 5 (extreme) impairment in one or

more areas of function “that precludes useful functioning, due to mental or behavioural

disorder”.

The new requirement that a claimant must have marked impairments in three or more (out of a

possible four) areas of function is new, and essentially overrides the previous Court of Appeal

decision in Pastore v. Aviva5, in which the Court held that a marked impairment in only one area

of function was sufficient to justify a catastrophic finding. Since this was a frequently-used

provision prior to the amendments, the change will likely significantly reduce the number of

claimants pursing catastrophic impairment under this section.

Attached to this paper, with thanks (and permission), is a chart outlining the highlights of the

changes to the Schedule, prepared by Mr. Smitiuch’s office.

3 - 10

5 Pastore v. Aviva Canada, 2012 ONCA 642 (CanLII)

3 - 9

B. THE LICENCE APPEAL TRIBUNAL (“LAT”) AND AUTOMOBILE ACCIDENT BENEFITS SERVICE (“AABS”)

Background

Effective April 1, 2016, the LAT/AABS came into effect for all no-fault automobile insurance

disputes commenced on or after that date. With the new changes, the Financial Services

Commission of Ontario (“FSCO”) no longer has jurisdiction over any new no-fault disputes, and

all disputes arising on or after April 1, 2016, must be pursued through the LAT.

The LAT was introduced following a review of the Ontario insurance dispute resolution system

by the Honourable Mr. J. Douglas Cunningham, a former Ontario Superior Court judge. The

new system, which is intended to streamline and expedite no-fault disputes, eliminates

mediation (which was previously required through FSCO) and takes away the option to litigate

no-fault disputes, instead forcing all disputes through adjudication through the LAT.

Moreover, LAT adjudicators are not bound by the over 20 years of decisions rendered by FSCO

arbitrators, leaving insurers, claimants and their counsel will little guidance as to how the

Schedule will be interpreted, and no indication as to how disputes will be decided in the future.

Of course, this uncertainty is compounded by the recent changes to the Schedule discussed

above, since parties are now dealing with an untested regulation which will have to be

interpreted by an untested group of decision-makers.

At this point, the LAT has been in effect for just over five months and as such is still in its early

stages, with many of the anticipated challenges becoming evident as more and more matters

begin to move through the system.

This section of the paper will provide an overview of the LAT procedures, suggestions regarding

best practices, and brief commentary on how the LAT process has been working, in practice,

since its inception.

3 - 10

The LAT Process

3 - 12

Phase I: Preparation and Application/Response

The introduction of the LAT resulted in the repeal of the Insurance Act limitation provisions,

which provided a claimant had up to two years from the date of a denial of accident benefits to

dispute such denial by filing for mediation with the Financial Services Commission of Ontario

(“FSCO”), plus a further 90 days from date of the Report of Mediator (issued following

mediation), to file for arbitration or commence litigation with respect to any unresolved issues.

The LAT specifically requires that all applications be filed within two years of the denial of

benefits, as per section 56 of the SABS. The LAT website reads as follows:

(T)he law states that you must file an application with AABS within two years from the date that your insurance company denies your policy benefits. The two-year time limit is important. If you do not apply to AABS within two years, it is very possible that your application will be refused.

Since there is no mediation under the LAT, the additional 90-day “grace period” no longer

applies.

The first step in the LAT dispute resolution process is for a claimant or insurer to file an

Application with the LAT. It appears that many Applications are being rejected at this stage,

due to incomplete or insufficient information. The party filing the Application is also

responsible for serving the Application on the respondent. Unfortunately, if an Application is

served via regular mail (which is permitted), this can create difficulty for the respondent in filing

its response in compliance with the very short LAT timelines. It is possible, and has happened,

that a respondent may receive a “Request for Response” (discussed below) before having

received the Application itself.

On receipt of a complete Application, the assigned LAT Case Management Officer (“CMO”)

sends a “Request for Response” letter to the responding party (claimant or insurer). At this

6 A chart distributed by the LAT, outlining the dispute resolution process, is attached to this paper.

3 - 11

point, the responding party has 10 business days from the date of the letter (not from the date

the letter was received) to file a Response by an Injured Person or Response by an Insurance

Company. The Response must deal with all issues raised in the initial Application, and must

include a list of all relevant documents, as well as a summary of all key documents on which the

party intends to rely.

Phase II: Case Conference

Once the LAT has received the Response, it will send a Notice of Case Conference and blank

Case Conference Summaries for completion by both parties. The LAT’s mandate is that the

initial case conference should take place within 45 days of receipt of the Response. Case

conference briefs must be served and filed ten days prior to the case conference.

The case conference has replaced both the mediation and pre-hearing stages at FSCO. Hearings

may be in writing, by telephone, in person or electronically, or in some combination, but most

are taking place via telephone. To date, it appears that credibility issues are not considered

sufficient grounds to justify an in-person case conference. The case conference is meant to

clarify issues in dispute, deal with any procedural and preliminary matters, discuss settlement

and, if necessary, set the dates and method of hearing. In practice, the case conference

discussions often do not involve any substantive discussion of issues relating to the SABS, but

tend to focus largely on settlement and procedural matters.

The case conference is one of the most critical stages of the proceeding, as it sets the ground

for the type of hearing, potential orders from the adjudicator on preliminary issues, including

productions, and other procedural matters. Case Conference Summaries must contain a list of

key documents to be relied on at the hearing, verification that the documents have been

disclosed, a list of key documents sought from the other party, requests for information from

non-parties, requests for summonses, an indication of the preferred hearing type, with reasons,

3 - 12

a summary of all anticipated evidence, including from experts, and details of the most recent

settlement offers7.

This is the time where counsel should consider and raise all preliminary issues, including

limitation issues, questions as to whether the definition of “accident” has been satisfied, any

WSIB defences and issues regarding “incurred” expenses, proper applications for

benefits/denials, and compliance with insurer examinations. All relevant documentation,

including correspondence between the claimant, counsel and the insurer, financial

documentation, collateral benefits information and expert reports should be referenced, with a

clear explanation as to how the documents are relevant and what preliminary issues need to be

discussed.

New issues may be added at the case conference stage. If a new issue arises, a new application

need not be filed, but the party seeking to add issues should set out the details in a letter to the

LAT and copy the other side.

It is worth noting that many Applications are being dismissed (without prejudice) at the Case

Conference stage for various reasons, including pending insurer/claimant examinations relating

to the issues in dispute, the failure to file a case conference brief, and an inability to discuss

settlement due to missing information. It seems that adjudicators are more willing to dismiss

an Application than to adjourn a Case Conference or delay a hearing. As such, it is essential

that counsel ensure that issues in dispute are ready to proceed to hearing, and all relevant

documents have been exchanged, before filing an Application with the LAT.

Phase III: The Hearing

The LAT mandate is to schedule hearings within 60 days of the case conference. Where counsel

and institutional clients are often booking well beyond 60 days, this has created some

difficulties for all parties.

7 Section 14.2, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx

3 - 133 - 14

The LAT has also made it clear that in-person hearings will only be permitted in exceptional

cases. Even in cases where fact evidence from lay witnesses is required, adjudicators have

ordered that such evidence be delivered by affidavit, with cross-examination to take place via

telephone. This raises a multitude of issues, not least of which are difficulties with assessing

credibility (often a critical factor in many claims, and certainly of central importance when

considering settlement), concerns regarding the ability to verify the identity of the individual

being cross-examined, and the use of interpreters. Hybrid hearings (a combination of oral,

written, in-person and/or telephone) have also been ordered.

In practice, the amount of time granted for oral/telephone hearings is very limited, even when

both counsel have indicated that they have numerous witnesses and the issues in dispute are

complex (eg., catastrophic determination or complicated dependency issues). Adjudicators are

also strictly limiting the length of written submissions, again, it appears, irrespective of the

complexity of the issues.

Adjournments are not easily obtained. In order to request an adjournment, the parties must

both consent and must provide three agreeable dates, all within 30 days8 of the scheduled case

conference, together with the Request for Adjournment form, signed by both counsel9. Even

then, an adjournment may not (and often will not) be granted. The LAT has advised that none

of the alternate dates provided may be on a Friday.

Experts

Section 10 of the LAT Rules of Practice and Procedure10 governs the use of expert reports. A

party seeking to introduce expert evidence must obtain a signed statement from the expert

acknowledging his or her duty to the trier of fact (similar to an Acknowledgement of Expert’s

Duty, Form 53 pursuant to the Rules of Civil Procedure), a summary of qualifications (i.e., a

8 Note that the initial version of the LAT Rules of Practice and Procedure provided a 90-day window for the three agreeable new dates; however, at some point between April 1, 2016 and some time in June 2016, the Rules were amended online to reduce the time to 30 days. It does not appear that notices regarding this change were sent out, and the online version of the Rules did not notify users that a change had been made. 9 Section 16.1, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx 10 Section 10, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx

3 - 14

C.V.), the expert’s report, including the basis for the conclusions reached on the issues with

respect to which the expert will testify, and “a concise summary stating the facts and issues

that are admitted and those that are in dispute, and the expert’s findings and conclusions”11.

This information must be served and filed by the Applicant 30 days prior to the hearing, or by

any other party 20 days prior (or as ordered by the LAT). However, as indicated above, it will

likely serve counsel best to include this information in the Case Conference Summary, since it

will inform the length of the hearing and potentially the type of hearing required, and may

facilitate settlement discussions.

A party who intends to challenge an expert’s qualifications, report or witness statement must

give notice of their intention do so, with reasons, at least 10 days prior to the hearing.

Costs

The LAT provides that a party may seek costs if that party “believes that another party in a

proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”12. A request for

costs may be made at any time before the order is released, in writing or orally. Of note is that

unlike at FSCO, where costs would often be awarded to a successful party, adjudicators have

been refusing to award costs (at least at the case conference stage) unless frivolous, vexatious

or bad faith behaviour has been demonstrated. The failure to file a Case Conference Summary,

the inability to discuss settlement due to lack of information/preparation, and the fact that an

Application is dismissed at the case conference stage because it was filed prematurely do not

appear to be situations which will attract a costs award. In Thompson and Intact13, the first

known released LAT decision, Vice Chair J. R. Richards held that the LAT has jurisdiction to

award costs only where such unreasonable, frivolous, vexatious, or bad faith conduct has been

found.

11 Section 10.2(e), LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx Section 19, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx

3 - 16

13 Thompson and Intact, File No. 16-0000041/AABS, August 16, 2016

3 - 15

Of further note is that even where the issues in dispute have been resolved prior to the initial

case conference, parties can be forced to proceed to a hearing on the issue of expenses, even

where they were never indicated as in dispute. This approach was confirmed in Thompson,

where the claimant and Intact had agreed that Intact would fund the treatment plan in dispute,

but the claimant refused to withdraw his application until Intact paid his costs and

disbursements. The adjudicator held that the dispute continues to be a “proceeding” (as

defined under section 19.1 of the LAT Rules) until there is a notice of withdrawal of the

application, all issues in dispute have been resolved, or the LAT has rendered a decision. Since

the claimant in Thompson had not withdrawn his application, the LAT retained jurisdiction to

award costs. Vice Chair Richards ordered a hearing to determine the issue of costs.

Special Award

The right of a claimant to seek a special award has survived the LAT. Section 10 of Ontario

Regulation 66414 reads as follows:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

It remains to be seen in what circumstances LAT adjudicators will make such awards.

Appeals

If a party is dissatisfied with the LAT decision, it may request reconsideration of the decision by

the Executive Chair of SLASTO15 pursuant to section 18 of the LAT Rules of Practice and

14 R.R.O. 1990, O. Reg 664 pursuant to the Insurance Act 15 SLATSO is the acronym for the Safety, Licensing Appeals and Standards Tribunals Ontario, a cluster of five administrative tribunals of which the LAT is one.

3 - 16

Procedure. Note, however, that a request for reconsideration must be made within 21 days of

the date of the decision.

The rule specifies that a request for reconsideration from a party must be served on all other

parties and must include16:

a. Reasons for the request, specifying applicable criteria under Rule 18.2 (see below);

b. Notification if the party is seeking judicial review or pursuing an appeal in relation to the decision; and

c. Remedy or relief sought.

A request for reconsideration will not be granted unless the Executive Chair is satisfied that one

or more of the following criteria are met17:

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

Alternatively, a party may apply for judicial review of the decision to the Divisional Court,

without being required to seek reconsideration through the LAT. In this case, the Court will

consider whether the LAT decision was “reasonable”; essentially, whether the decision falls

within a range of possible, acceptable outcomes that are defensible in given the facts and the

law.

16 Section 18.1, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx 17 Section 18.2, LAT Rules of Practice and Procedure, http://www.slasto.gov.on.ca/en/AABS/Pages/Rules.aspx

3 - 173 - 18

There is also a statutory right of appeal to the Divisional Court on questions of law only,

pursuant to section 280(3) of the Insurance Act18 and section 11(1) of the Licence Appeal

Tribunal Act19.

C. TORT CLAIMS: BRIEF OVERVIEW AND THE IMPACT OF THE SABS CHANGES

As most, if not all, readers are aware, in addition to no-fault claims, claimants involved in motor

vehicle accidents in Ontario are also entitled to commence a tort action against the at-fault

driver (if any). In addition to general damages, Plaintiffs in such actions may claim

compensation for pecuniary losses (eg., damages for income loss, housekeeping expenses,

treatment, etc.), including those not covered, or only partially covered, by their no-fault

insurers.

Now that the new Schedule has reduced the amount of benefits payable to no-fault claimants,

we can expect that tort claims will be commenced earlier and Plaintiffs’ counsel may be seeking

earlier settlement in certain cases, to ensure that their clients have funds for necessary

treatment once no-fault benefits run out. Plaintiffs’ counsel will also likely seek advance

payments20 more frequently, as Plaintiffs seek funds to provide for medical, rehabilitation and

attendant care needs as their no-fault funds run out, or pending a catastrophic determination.

In addition, the new catastrophic determination makes it likely that fewer claimants will qualify,

meaning that they will not be entitled to the enhanced levels of no-fault benefits available to

catastrophically impaired individuals. This, in turn, also means that pecuniary claims on the tort

side will likely be higher.

18 Insurance Act, R.S.O. 1990, c. I.8, s. 280(3) 19 Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sched. G, s. 11 20 Advance payments may be made under section 258.5(2) of the Insurance Act, which provides that “if the insurer admits liability in respect of all or part of a claim for income loss, the insurer shall make payments to the person making the claim pending the determination of the amount owing.” Subsection 258.5(3) indicates that the amount of the advance payment should be based on the defendant’s insurer’s estimate of the amount owing in respect of the claim for income loss.

3 - 18

Overall, it remains to be seen what impact the new no-fault regime and the LAT will have on

the claims of injured persons in Ontario, but we can expect the impact to be significant, and to

drastically change the landscape of personal injury law in this province.

3 - 19

Changes to the Statutory Accident Benefits Schedule (SABS)

CHANGES TO THE STATUTORY ACCIDENT BENEFITS SCHEDULE (SABS) (O. Reg. 251/15)

Effective June 1, 2016

HIGHLIGHTS

Catastrophic Impairment

Paraplegia or Tetraplegia – Satisfies ASIA scale A, B or C, or D and the mobility limits from total assistance to walking with two aids.

Severe impairment of ambulatory mobility or use of an arm, or trans-tibial or higher amputation of a leg, amputation of an arm, or the permanent loss of use of an arm.

Loss of vision of both eyes - visual acuity in both eyes is 20/200 (6/60) or less, or 20 degrees or less of the visual field.

Acquired Brain Injury 18 years of age or older:

Positive findings on recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, and an assessment using EGOS (Extended Glasgow Outcome Scale) resulting in a rating of: Vegetative State, one month or more after the accident, or Upper Severe Disability or Lower Severe Disability, six months or more

after the accident, or Lower Moderate Disability, one year or more after the accident.

Under 18 years of age: Accepted for admission on in-patient basis to a public hospital with positive

findings on recognized brain diagnostic technology; or Accepted to a program of neuro-rehab in paediatric rehab facility; or KOSCHI scale not exceeding Category 2 one month or more after MVA; or KOSCHI scale not exceeding Category 3 six months or more after the MVA; or 9 months or more after MVA – person is not age-appropriately independent

& requires in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of the person’s waking day.

55% or more Whole Person Impairment (AMA Guides, 4th Edition) – can be combined with psychological, but mental or behavioural impairment subject to AMA Guides, 6th Edition.

Marked psychological impairment in at least three domains, or extreme impairment in at least one domain (AMA Guides, 4th Edition).

Non-Earner Benefit

Payable after the first four weeks after the onset of the complete inability to carry on a normal life

Only payable for 104 weeks after the accident

Medical & Rehabilitation Benefit & Attendant Care Benefit

Both are combined for monetary limits Non-Catastrophic limited to a combined amount of $65,000.00 over five years

(Attendant Care to a limit of $3,000.00 per month) Catastrophic limited to a combined amount of $1,000,000.00 (Attendant Care to a

limit of $6,000.00 per month)

Optional Benefits

Med/Rehab & Attendant Care combined to maximum of $130,000.00 for non-catastrophic impairment or to a maximum of $1,000,000.00 for non-catastrophic impairment and $2,000,000.00 for catastrophic impairment

Maximum monthly Attendant Care benefit payable is $6,000.00

3 - 21

CATASTROPHIC IMPAIRMENT 3.1 (1) For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following:

1. Paraplegia or tetraplegia that meets the following criteria: i. The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA

Impairment Scale, as published in Marino, R.J. et al, International Standards for Neurological Classification of Spinal Cord Injury, Journal of Spinal Cord Medicine, Volume 26, Supplement 1, Spring 2003, can be determined.

ii. The insured person’s permanent grade on the ASIA Impairment Scale is or will be, A. A, B or C, or B. D, and 1. the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility

Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5,

2. the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage a residual neuro-urological impairment, or

3. the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion or an implanted device.

2. Severe impairment of ambulatory mobility or use of an arm, or amputation that meets one of the following criteria:

i. Trans-tibial or higher amputation of a leg. ii. Amputation of an arm or another impairment causing the total and permanent loss of use of an arm. iii. Severe and permanent alteration of prior structure and function involving one or both legs as a result of

which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.

3. Loss of vision of both eyes that meets the following criteria:

i. Even with the use of corrective lenses or medication, A. visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart, or B. the greatest diameter of the field of vision in both eyes is 20 degrees or less.

ii. The loss of vision is not attributable to non-organic causes. 4. If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria:

i. The injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.

ii. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, the injury results in a rating of, A. Vegetative State (VS or VS*), one month or more after the accident, B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower

SD*), six months or more after the accident, or C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.

5. If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:

i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial

3 - 22

pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.

ii. The insured person is accepted for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of the Ontario Association of Children’s Rehabilitation Services.

iii. One month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (Vegetative) on the King’s Outcome Scale for Childhood Head Injury as published in Crouchman, M. et al, A practical outcome scale for paediatric head injury, Archives of Disease in Childhood, 2001: 84: 120-124.

iv. Six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (Severe disability) on the King’s Outcome Scale for Childhood Head Injury as published in Crouchman, M. et al, A practical outcome scale for paediatric head injury, Archives of Disease in Childhood, 2001: 84: 120-124.

v. Nine months or more after the accident, the insured person’s level of function remains seriously impaired such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of the insured person’s waking day.

6. Subject to subsections (2) and (5), a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person. 7. Subject to subsections (2) and (5) a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person. 8. Subject to subsections (3) and (5), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

(2) Paragraphs 6 and 7 of subsection (1) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(a) two years have elapsed since the accident; or (b) an assessment conducted by a physician three months or more after the accident determines that,

(i) the insured person has a physical impairment or combination of physical impairments determined in accordance with paragraph 6 of subsection (1), or a combination of a mental or behavioural impairment and a physical impairment determined in accordance with paragraph 7 of subsection (1) that results in 55 per cent or more impairment of the whole person, and

(ii) the insured person’s condition is unlikely to improve to less than 55 per cent impairment of the whole person.

(3) Paragraph 8 of subsection (1) does not apply in respect of an insured person who sustains an impairment as a result of the accident unless,

(a) two years have elapsed since the accident; or (b) a physician states in writing that the insured person’s impairment is unlikely to improve to less than a class 4

impairment (marked impairment) in three or more areas of function that precludes useful functioning, due to mental or behavioural disorder.

(4) Subsection (5) applies to an insured person who was under the age of 18 at the time of the accident and whose impairment is not a catastrophic impairment within the meaning of subsection (1). (5) If the insured person’s impairment can reasonably be believed to be a catastrophic impairment for the purposes of paragraph 6, 7 or 8 of subsection (1), the impairment shall be deemed to be the impairment referred to in paragraph 6, 7 or 8 of subsection (1) that is most analogous to the impairment, after taking into consideration the developmental implications of the impairment. 45.1 If an insured person who is under 18 years of age at the time of the accident sustains a traumatic brain injury that meets the criteria in subparagraph 5 i or 5 ii of subsection 3.1 (1) and that was caused by an accident that occurs on or after June 1, 2016,

3 - 23

the person may submit an application under subsection 45 (1) and subsections 45 (2) to (5) do not apply, and the impairment is deemed to be a catastrophic impairment for the purposes of subsection 45 (6).

NON-EARNER BENEFIT

12 (3) The insurer is not required to pay a non-earner benefit, (a) for the first four weeks after the onset of the complete inability to carry on a normal life; (b) before the insured person is 18 years of age; (c) for more than 104 weeks after the accident; or (d) if the insured person is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a caregiver benefit under this Part.

MEDICAL AND REHABILITATION BENEFITS

18 (3) The sum of the medical, rehabilitation and attendant care benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) shall not exceed, for any one accident,

(a) $65,000; or (b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.

19 (3) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident. 2. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 3 of subsection 28 (1) has

been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the amount set out in subparagraph 1 i.

3. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit under subsection 28 (7).

4. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a result of, providing the attendant care.

5. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did so for remuneration, and the actual expenses incurred in respect of the attendant care services are lower than the amount of the monthly attendant care benefit as determined under subsection (2), the insurer shall only be liable for payment of the incurred expenses.

TORONTO | BRANTFORD | SIMCOE | HAMILTON

1.866.621.1551 www.sil.lawyer

“Helping those who need it the most.”™ 3 - 24

Licence Appeal Tribunal (LAT) Process

CONFIDENTIAL: ADVICE TO MINISTRY OF THE ATTORNEY GENERAL

AIDRS High Level Process Design C

LAIM

AN

T

AU

TO

IN

SUR

AN

CE

CO

. TR

IBU

NA

L

Denial of SAB

Pre-Dispute Insurance/ Resolution

END

Pre-Intake Stages 1 & 2

Submit application

1

2

START

Application Received/ Document

Assessment Completed by

Staff

4

Within Jurisdiction

No

CLOSE Contact/Seek

More Information

7

Docs Perfected 8

Schedule Case

Conference

9

Receive Case

Conference Brief --

Decision on Hearing Process Type –

Adjudicator Decision

10

Case Conference

Meeting Confirm the

Decision Stream if

not settled

SETTLED

11

12

Schedule Written Hearing

Schedule Video

Hearing

Schedule Oral/

In-Person Hearing

Future State

13 15 17

Written, Video and In-Person Decisions -- Decisions Posted

CLOSE

Intake Process Stages 3, 4, 5, 6, 7 & 8

Initial Screening Stage 9

Pre-Hearing Stage 10, 11 & 12

Hearing Stage 13, 14, 15, 16, 17 & 18

Decision Stage 19

Written Hearing

Video Hearing

In-Person Hearing

16

19

1 month Insurance Sector Stages 1 & 2

Stages 4, 5,6, 7, 8, 9 , 10 & 11 Days 45 - 60

Stages 13 & 14 Days 75

Stages 15 & 16 Days 75

Decision Stage 19 Written Days 30 Video Days 45,

In-Person days 60 - 90

14 18

Stages 17 & 18 Days 150

3 - 25

TAB 4

Starting the Action and Bringing Common Motions

Peter Cho, Smitiuch Injury Law

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

Starting the Action and Bringing Common Motions

Peter Cho Smitiuch Injury Law

3280 Bloor Street West Centre Tower, Suite 800 Toronto, ON M8X 2X3 Tel.: 416-621-1551 Email: peter@sil.lawyer

Plaintiff’s Personal Injury Law Practice Basics 2016 September 19, 2016

Starting a Claim and Bringing Common Motions

Peter Cho, Smitiuch Injury Law

I. THE STATEMENT OF CLAIM – THE FRAMEWORK FOR YOUR LAWSUIT

Your Statement of Claim must be carefully drafted as it sets the boundaries and defines what

you are seeking from your lawsuit. In addition to defining what damages you are claiming and

what negligent actions or inactions resulted in the harm to your client, you are also establishing

the parameters for what you can and cannot ask when it comes time for Examinations for

Discovery. What allegations you have plead in your claim will dictate what questions you can

ask of the Defendant or their representative.1 The same applies for undertakings and

documents you may request. For example, if you have not alleged knowledge of prior incidents

or accidents, or the use of a cellular phone or mobile device, you may be faced with opposition

from defence counsel and not be able to obtain this evidence. Moreover, when you bring a

motion to seek answers to these questions, the Court may find that they are not relevant as

relevance is tied to issues raised, “as defined by the pleadings.”2 Similarly, the amount of

damages as well as the heads of damages must be properly set out in your claim, otherwise you

may not be able to collect damages from a successful trial verdict.3 Last but certainly not least,

if you fail to include any necessary defendants in your Statement of Claim, you may expose

yourself to a claim for solicitor’s negligence if the two year limitation period expires.4 There will

be circumstances where knowledge or information arises two years following the

incident/accident but the Courts will expect that you took all reasonable efforts to identify all

potential tortfeasors. The Statement of Claim is a very important document and one which

defence counsel and the trial Judge will review first and foremost when reviewing your client’s

1 Rules of Civil Procedure, RRO 1990, Reg 194, Rule 31.06.

2 Todd Archibald & Gordon Killeen & James C. Morton, Ontario Superior Court Practice (Canada: Lexis

Nexis Canada Inc., 2016) at pp 1293. 3 Claims can be amended at trial.

4 Limitations Act, 2002, S.O. 2002 Chapter 24.

4 - 1

matter. As such, it should be drafted with considerable preparation, research and investigation

before it is issued and served.

The goal of this paper is to provide you with some helpful tips and suggestions when drafting a

Statement of Claim. Some examples have been attached to this paper as a resource but it is

important to keep in mind that every Statement of Claim is unique and should be worded in a

unique and persuasive manner based on the Plaintiff’s theory of the case.

A. Heads of Damages

The first paragraph of the Statement of Claim and the first thing you ought to consider is what

are you seeking in terms of compensation from the Defendant(s). You will be the one to

educate your clients on what areas of compensation they can obtain through a lawsuit. Your

goal is to obtain as much compensation for your client that they can recover for losses

sustained as a result of the negligence of any responsible party. The amount of damages

sought will be defined in your first paragraph. It is important to include in this list amounts for

pre-judgment interest and costs as governed by the Courts of Justice Act.5

The amount you ought to claim in the paragraph 1 should err on the side of caution and at this

early stage of a proceeding, it is better to overstate this amount slightly. When stating the

amount of damages claimed, for example $1,000,000.00 in general damages, you should

research jurisprudence and texts which will provide some guidance on what amounts the

Courts have granted for individuals with similar injuries and complaints.

It is important to also note that there are limits to the amount of insurance coverage available

based on the policy. For example, it is common that an automobile insurance policy has

$1,000,000.00 of insurance for bodily injury claims. However, there are policies which can be

considerably less or more than this amount. This should not limit the amount of damages listed

5 Courts of Justice Act, RSO 1990, c.C.43, sections 128 and 129.

4 - 2

in your Statement of Claim but it should be something you should discuss with your client(s) as

it may become difficult to collect on a judgment over the insurance policy limits available. With

respect to determining the amount of damages claimed in your claim, you should be mindful

that the amount listed will dictate how an insurer will manage a claim and appoint counsel. An

insurer will quickly assign a reserve based on the injuries suffered by your client(s) and consider

the amount being advanced in the Statement of Claim.

In the end, with respect to the amount of damages being claimed, it is better to proceed with

caution and to protect your client by seeking slightly more than what you assess the value of

your client’s damages at the early stages. Your client’s condition may deteriorate and/or they

may lose their employment position which will impact the damages sought at trial.

It is important to note that there is an upper limit to amounts awarded for non-pecuniary

damages (pain and suffering and loss of enjoyment of life) which are often referred to as “the

cap”. That amount is $367,236.00 when indexed to today’s dollars.6 As such, this is something

to discuss with your clients to manage their expectations when you explain the amounts listed

in the first paragraph of the Statement of Claim. There is no cap placed on damages for income

losses or future cost of care.

B. The Parties – Who Should be Included?

It is important to properly identify and investigate any potential tortfeasors prior to drafting

your Statement of Claim. This involves performing internet research, conducting corporate

searches, examining the available evidence and performing some preliminary investigations.

This is crucial because once you have drafted your Statement of Claim and Statements of

Defence have been filed, the pleadings are then closed and you will need leave of the Court

6 As of July 2016. Source: McKellar Structured Settlements, “Non Pecuniary Damages Upper Limits”

(2016), online: McKellar Structured Settlements <http://www.mckellar.com/non-pecuniary-damages-upper-limits>

4 - 3

and/or consent of all parties to add another party.7 In addition, if you find yourself facing a

situation where a party is identified beyond the two year limitation period as set out under the

Limitations Act they may have a limitations defence in their back pocket.8 Depending on the

strength of their position, a limitations defence can be used against you during negotiations or

you may be faced with a summary judgment motion and risk a complete bar to recovery. If you

attempt to add a party beyond the limitation period you will be met with the law of

discoverability as defined under section 5(1) of the Limitations Act and bear the onus of proving

that it was not until after the limitation period expired that, “a reasonable person with the

ability and in the circumstances of the person with the claim “first ought to have known…” of

the claim.9 In addition, if Examinations for Discovery have already been completed, by adding

a new defendant, you are exposing your client to potential re-examination on areas already

covered as the newly added defendant would maintain their right to a full examination of your

client.

An example where a potential defendant may be missed is in the circumstances of a motor

vehicle accident and the defendant has insufficient insurance limits to cover the value of your

client’s potential damages claim. For example, your client’s damages may be worth over

$1,000,000.00 and the defendant’s insurance limits are only $500,000.00. In such cases, you

should include your client’s own insurance company as a defendant under the OPCF 44R

“Family Protection Coverage” endorsement. Most automobile insurance policies will have this

endorsement and it allows your client to seek additional insurance monies from their own

insurer if the defendant(s) have insufficient insurance limits. As such, you should always

investigate the insurance limits of any potential defendants as soon as possible and prior to

issuing the Statement of Claim. In the example above, if the defendant only had $500,000.00 of

insurance coverage under their policy and your client had $2,000,000.00 of insurance coverage,

you would need to include your client’s insurer as a defendant. In this case, you would

7 Rules of Civil Procedure, RRO 1990, Reg 194, Rule 5 and 26.01.

8 Limitations Act, 2002, S.O. 2002 Chapter 24, section 4.

9 Limitations Act, 2002, S.O. 2002 Chapter 24, section 5(1).

4 - 4

potentially have access to an additional $1,500,000.00 in insurance monies to collect on any

settlement or judgment.

After investigating all potential defendants, you should turn your mind to potential plaintiffs in

addition to your client for the Statement of Claim. You should obviously add each plaintiff’s

name and location but you should turn your mind to whether there are potential claims for

family members and minors who, although they may have not been directly involved in the

accident, may pursue individual claims under the Family Law Act (“FLA”) under section 61 for a

loss of expenses (including funeral expenses), lost income, loss of nursing and housekeeping

services, and a loss of guidance, care and companionship.10

However, you should be mindful of who you include as plaintiffs as you do not want over-

extend the number of plaintiffs as you could face a battle to split insurance monies when it

comes to settlement. In addition, defendants will have a right to examine any and all plaintiffs

and this may run the risk of eliciting inconsistent or contradictory testimony that affects the

credibility of the claims of others. Another consideration is that any claims brought by a minor

would be subject to court approval which would result in greater cost and time and potentially

hold up the resolution of all other claims to the lawsuit. Lastly, there is a statutory deductible

of $18,452.70 (indexed up to January 2016) for all FLA claims unless the victim is deceased.11

C. Have a Clear Liability Theory or Theories

To establish negligence against a defendant you will need to set out the standard of care, the

duty of care and establish factually how it was breached. Therefore, when framing the liability

theory against defendant(s) in your Statement of Claim, you ought to be able to satisfy yourself

that these elements have been met. You can leave it open and have more than theory of

10 Family Law Act, RSO 1990 c. F.3, section 61.

11 As of January 2016. Source: McKellar Structured Settlements, “Non Pecuniary Damages Deductibles &

Limits” (2016), online: McKellar Structured Settlements < http://www.mckellar.com/non-pecuniary-damages-deductibles-limits>

4 - 5

negligence against defendant(s) but the essential elements should be present and described in

your claim. I find it helpful to tell a story and explain through the facts, as you have alleged how

the defendant failed to meet the requisite standard of care.

I have attached a sample Statement of Claim for a motor vehicle accident claim to give you an

example of telling your client’s story and describing clearly how the defendant was negligent.

Starting at paragraph 6, the liability theory is described. By using appropriate language in the

description of the accident, the theory is clear that the injured plaintiff, John Doe, was

operating in his vehicle in accordance with the rules of the road and the defendant, Jim Smith,

executed an unsafe and improper manoeuvre. This clearly points to the defendant’s failure to

meet the appropriate standard of care for a motorist.

Most notably, the duty of care and standard of care varies depending on the circumstances.

For example, in a slip and fall claim or injury on someone’s property, the duty of care is a

statutory one under the Occupiers’ Liability Act12. A duty is owed by an occupier of premises to

take such care as in all the circumstances of the case is reasonable to see that persons entering

on the premises are reasonably safe. A sample of a slip and fall claim is also attached for

reference. At paragraph 5, the fall is described and the wording used illustrates the plaintiff’s

theory that the occupiers’ negligence is tied related to poor maintenance and lack of

appropriate warnings for visitors on the premises.

It is important to emphasize that your claim must point to a specific breach of the standard of

care which results in the injury and harm to your client. In the aforementioned claims and

paragraphs, the injuries are described as resulting from the accident and fall.

Following your description of the incident, you should list your allegations of negligence against

each respective defendant. In doing so, it is important to cover every angle and to cast a

12 Occupiers’ Liability Act, RSO 1990, c.O.2, section 3.

4 - 6

somewhat broad net. As mentioned previously, this will create the framework of your

discovery of the defendant and you should explore avenues that are consistent with your

theory on liability. You should start with specific allegations related to the actions or inactions

of the defendant which you say caused the accident which led to your client’s injuries. From

there, you should incorporate allegations based on the type of case. If you have a motor

vehicle accident claim, you should include allegations such as speeding, intoxication, distraction

from mobile devices and fatigue. For an occupiers’ liability case, you should consider including

allegations of prior knowledge of incidents causing injury or harm, prior complaints from

tenants and visitors of the poor conditions of the premises. You may not have evidence at the

time of filing your Statement of Claim but if there is a reasonable basis for these allegations,

you should include these potential areas of liability.

D. Define Your Damages

After having defined your theory on liability, your claim should now particularize your client’s

damages. As you will see in the attached sample claims, this process begins by painting a

picture of the injuries sustained by your client. This information is gathered from your direct

interview with the client and should also be supported from your review of the hospital records

and the treating family physician notes. If your client has had surgery and has a metal plate,

rod or screws in their body, you should include these facts when describing the injuries. It is

important to have credibility behind the injuries you are claiming your client suffered. It is best

to provide medical terminology and be as specific as possible.

With that being said, your Statement of Claim should also include long-term impairments and

issues. Although you will likely not have a prognosis for your client when you draft your

Statement of Claim, particularly with brain-injured victims, you should ensure that your claim

includes injuries that will likely arise given the nature of the injuries sustained. For example,

with an individual who has sustained a brain injury, there will in all likelihood be cognitive

deficits in the future. With an individual who will receive surgery for fractured bones, there

will likely be some scarring or potentially disfigurement as a consequence.

4 - 7

After particularizing the injuries sustained, your claim should then identify the specific heads of

damages claimed in individual paragraphs (i.e. pain and suffering and loss of enjoyment of life,

past and future loss of income, loss of competitive advantage, Family Law Act claims, future

cost of care, loss of home maintenance capacity, etc.). In addition, you should turn your mind

to additional damages claims which may arise given the nature of your client’s injuries. For

example, if your client is a young person who suffered a severe brain injury and/or permanent

loss of the use of their limbs, you can advance a loss of marriageability/loss of interdependent

relationship claim. These claims have been recognizes as unique heads of damages by the

Courts13. Other heads of damages include punitive and aggravated damages where there is

evidence of reckless disregard by the defendant. When providing particulars, it is helpful to

include some facts but full particulars can be given at a later time once further investigation and

discovery has been conducted.

II. COMMON MOTIONS AND HOW TO BRING THEM PROPERLY

When attempting to collect relevant records from third parties such as the police service,

employers and corporations, you may be met with some resistance and receive disclosure of

partial or redacted records. Often, despite providing a signed authorization from your client,

the police will produce motor vehicle accident reports where witness contact information,

dates of birth and other personal information is redacted. You may also only receive a portion

of the police notes. This information may be highly relevant to your case with respect to

liability and/or damages. When dealing with third parties, each situation will likely be different

as you will encounter a variety of departments and organizations but the procedure to obtain

full disclosure of these records will be the same. The procedure is to prepare and serve a

motion for production of records under Rule 30.10 of the Rules of Civil Procedure. A motion

13 Osborne (Litigation Guardian of) v. Bruce (County), [1999] O.J. No. 50, Walker v. Ritchie, [2003] O.J.

No. 18

4 - 8

record consists of a notice of motion and an affidavit with exhibits attached thereto. I have

attached a sample motion record to this paper for reference.

A. Rule 30.10 Motions

Rule 30.10 of the Rules of Civil Procedure permit the Court to order production from third

parties of documents where: (a) they are not privileged; (b) they are relevant to a material issue

in the action; and (c) where it would be unfair to require the moving party to proceed to trial

without discovery of the document.14 This is the three-part test which guides the Court in

determining whether they will grant an order for production of documents.

When bringing a Rule 30.10 motion, the onus will be on you, as moving party, to satisfy the

Court that the production of the requested documents meets this test. When applying the

relevant test, the Court will look at a number of factors including the importance of the

documents in the litigation, whether production at the discovery stage of the process as

opposed to production at trial is necessary, whether discovery of the defendants will be

adequate, the position of the non-parties, the availability of the documents and the

relationship between the moving party and the non-parties.15 As such, your affidavit should be

drafted with these considerations in mind and fully address the foregoing issues.

It is also important to note that prior to bring forward your Rule 30.10 motion, you should make

efforts in writing to request the records and attach those letters to your affidavit as exhibits.

The affidavit should include the replies and responses you received from the third party, if any.

By including these facts and letters, you are illustrating to the Court that you have made best

efforts to obtain these records in advance of seeking a court order. In my experience, Judges

and Masters will want to know if you have exhausted all practical means of obtaining these

records before coming to the Court for an order.

14 Rules of Civil Procedure, RRO 1990, Reg 194, Rule 30.10(1).

15 Ontario (Attorney General) v Ballard Estate, 1995 CanLII 3509 (ON CA)

4 - 9

B. Compliance with Rule 37.10

With respect to the technical procedures in drafting, serving and filing your motion record, you

should consult Rule 37.10 of the Rules of Civil Procedure. This rule outlines the steps that

counsel must take on any motion and itemizes what should be included in your motion record

and the timing of serving and filing same. Different motions such as summary judgment or

undertakings motions will require additional materials, however Rule 37.10 sets out the general

guidelines for all common motions. A stated in the rule, if you are the moving party, you must

serve your motion materials on all other parties and file same with the court seven business

days in advance of the motion date. The responding party must serve and file their motion

materials on the moving party four days prior to the motion date.16 Failure to meet these

deadlines may result in your motion being dismissed or an unexpected adjournment. As such,

it is important to ensure that you properly plan the timing of your motion to allow for necessary

preparation.

As a matter of courtesy and good practice when bringing any motion, when possible, you

should always schedule and provide sufficient notice of your intention to bring a motion to

opposing counsel or parties. This may also save you and your clients a lot of time and expense

as you may be able to consent to a draft order and avoid a contested motion. Common

motions can often be dealt with on an expedited basis on consent and avoid potential costs

consequences.

16 Rules of Civil Procedure, RRO 1990, Reg 194, Rules 37.10 (1) and (3).

4 - 10

Sample Claims and Motion

4 - 11

FOR R

EFE

RENCE O

NLY

4 - 12

FOR R

EFE

RENCE O

NLY

4 - 13

FOR R

EFE

RENCE O

NLY

4 - 14

FOR R

EFE

RENCE O

NLY

4 - 15

FOR R

EFE

RENCE O

NLY

4 - 16

FOR R

EFE

RENCE O

NLY

4 - 17

FOR R

EFE

RENCE O

NLY

4 - 18

FOR R

EFE

RENCE O

NLY

4 - 19

FOR R

EFE

RENCE O

NLY

4 - 20

FOR R

EFE

RENCE O

NLY

4 - 21

FOR R

EFE

RENCE O

NLY

4 - 22

FOR R

EFE

RENCE O

NLY

4 - 23

FOR R

EFE

RENCE O

NLY

4 - 24

FOR R

EFE

RENCE O

NLY

4 - 25

FOR R

EFE

RENCE O

NLY

4 - 26

FOR R

EFE

RENCE O

NLY

4 - 27

FOR R

EFE

RENCE O

NLY

4 - 28

FOR R

EFE

RENCE O

NLY

4 - 29

FOR R

EFE

RENCE O

NLY

4 - 30

FOR R

EFE

RENCE O

NLY

4 - 31

FOR R

EFE

RENCE O

NLY

4 - 32

FOR R

EFE

RENCE O

NLY

4 - 33

FOR R

EFE

RENCE O

NLY

4 - 34

FOR R

EFE

RENCE O

NLY

4 - 35

FOR R

EFE

RENCE O

NLY

4 - 36

FOR R

EFE

RENCE O

NLY

4 - 37

FOR R

EFE

RENCE O

NLY

4 - 38

FOR R

EFE

RENCE O

NLY

4 - 39

FOR R

EFE

RENCE O

NLY

4 - 40

FOR R

EFE

RENCE O

NLY

4 - 41

FOR R

EFE

RENCE O

NLY

4 - 42

FOR R

EFE

RENCE O

NLY

4 - 43

FOR R

EFE

RENCE O

NLY

4 - 44

FOR R

EFE

RENCE O

NLY

4 - 45

FOR R

EFE

RENCE O

NLY

4 - 46

FOR R

EFE

RENCE O

NLY

4 - 47

FOR R

EFE

RENCE O

NLY

4 - 48

FOR R

EFE

RENCE O

NLY

4 - 49

FOR R

EFE

RENCE O

NLY

4 - 50

FOR R

EFE

RENCE O

NLY

4 - 51

FOR R

EFE

RENCE O

NLY

4 - 52

FOR R

EFE

RENCE O

NLY

4 - 53

FOR R

EFE

RENCE O

NLY

4 - 54

FOR R

EFE

RENCE O

NLY

4 - 55

FOR R

EFE

RENCE O

NLY

4 - 56

FOR R

EFE

RENCE O

NLY

TAB 5

Managing a Client’s Expectations

Nancy McAuley, Lerners LLP

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

Managing a Client's Expectations

Nancy M. McAuley Lerners LLP 85 Dufferin Avenue London, ON N6A 4G4

nmcauley@lerners.ca Direct: 519.640.6376

The Law Society of Upper Canada Plaintiff's Persona/Injury Law Practice Basics 2016

September 19, 2016

5 - 1

It is trite to say that communication is the key to managing client expectations. It starts from the

moment a prospective client walks in your door until the day their file closes. Setting a proper

stage for this communication is important to ensure competent representation of your client and

also to avoid unnecessary miscommunication that can lead to delays in proceedings and

potentially a complaint to the Law Society of Upper Canada.

This paper is not intended to give you an exhaustive list of ways to manage your client's

expectations, but rather it is intended to provide you with some food for thought on how you are

currently working with clients and ways that you might improve upon or shift your current

practices.

Rules of Professional Conduct

We are all familiar with the Rules of Professional Conduct that govern our profession. While all

of the Rules are applicable to this specific topic to some degree, included in those Rules are

sections that more specifically relate to the basic ways we can serve our clients, and in turn,

manage their expectations. For example:

Rule 2: Integrity

2.1-1: A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Rule 3: Relationship to Clients

3.1-2: Competence-A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer.

3.2-2 Honesty and Candour-When advising clients, a lawyer shall be honest and candid.

Formalized client complaints often revolve around communication, or lack thereof. In reviewing

the website for the Law Society, there were eighty (80) 'Current Proceedings" listed for the

years 2015-2016 under the proceeding type of "conduct". While we cannot know if all of these

matters can be traced back to the manner in which the lawyer communicated with, and by

extension, managed the expectations of, the client, it is likely that the majority of these

complaints may have been avoidable if the clients felt their needs were being met. No one

enjoys receiving notice from the Law Society that a complaint has been laid against them­

effective communication and client management can help you avoid that tedious and stressful

process.

5 - 2

With that context in mind, we turn to the day-to-day management of a client and their personal

injury matter.

Initial Contact

The importance of communicating with your client (and thereby setting the tone for managing

your new client's expectations) starts with first contact. In that initial meeting or telephone call,

the injured person or their family will, in all likelihood, be nervous and anxious-both because

they are meeting with a lawyer and due to the stress and concern for the injured person's

recovery.

Managing your client from that very first encounter is sometimes challenging as the people

walking through your door often have a whole set of unspoken expectations that they are not

actually going to tell you about. Those expectations are influenced by television, American

'justice', and maybe a neighbour they visited over the back fence. For vulnerable clients, (ie a

plaintiff), they will often come to you with a level of distrust and suspicion. Families of clients, in

an effort to control the uncontrollable after a serious injury, may present with a list of demands.

Until a bond or trust is created, many of these unspoken expectations may influence the

decision making of the client in ways that you do not have an opportunity to understand or

recognize. The best way to create this bond and build trust is through frank and open

discussions of all areas of a claim.

The initial meeting is also the time to talk about how you and your team operate. If you have an

assistant whose main role is quarterbacking your schedule - ensure the client has that person's

direct number and email so that they schedule a time to speak with you, when needed. If you

have an accident benefits clerk, introduce that person to the client. They will work together a

lot, particularly in the early stages of the file. Remind your client that if they have a question to

simply pick up the phone or email. Encourage them to ask your staff the question if you are

unavailable when they call - your staff may be able to give them an answer immediately. Also

encourage them to copy your staff on email to ensure a timely response to their question in the

event you are out of the office. In this age of 'instant response', sending off a quick 'placeholder

email' in response to a client email, letting them know you received their message and that you

will get back to them reduces their anxiety and frustration. Often the client just needs

confirmation that someone is looking into an issue that is important to them.

Each initial meeting is different. If you are meeting at the hospital, shortly after a catastrophic

injury, more often than not you will need to repeat the information you provide in subsequent

5 - 3

meetings. It is difficult to retain the information when a loved one is fighting for their life or has

just been told they will never walk again. In those early meetings, you will need to read what the

new client (or their family) needs in that instant and answer those questions or address those

issues first.

That said, it is imperative that you talk openly about your retainer, the legislation (threshold,

deductible, cap on non-pecuniary general damages), the process and potential challenges

(liability or insurance coverage) as early as possible. Setting reasonable and realistic

expectations from the outset will serve you and your client well.

Retainer

We are paid for the services we provide. It seems obvious to say, but not everyone (lawyers or

clients) is comfortable reviewing the manner in which we are paid. Without a detailed

discussion, misunderstanding and misinformation can plague the client's experience with you

and your firm.

Review your written retainer with your client. It is often helpful to have a family member with the

client during this review (assuming the client is in agreement with their attendance). Be detailed

in your discussion about contingency fees, disbursement accounts and what happens if there is

a break-down of your solicitor and client relationship. It is often helpful to provide a very basic

example of how fees are calculated using actual numbers. At the end of the meeting, provide

the client with a copy of the executed retainer. It is always a good idea to send correspondence

confirming your retainer and the information provided at the initial meeting together with a memo

to your file setting out the details of your discussion.

Along the same lines as the retainer and depending on the facts of the case (or your firm's

policies relating to same) there should also be a discussion about the purchase of Adverse Cost

Insurance. Discussions about potential personal exposure of the client (or a Litigation

Guardian), depending on the result will assist the client in making decisions and choices that

work for their personal circumstances.

Process

One of the most common complaints from clients relates to the length of time it takes to resolve

their claim. In the initial meeting, explain why cases can take, on average, 4-6 years to resolve.

More specifically, talk about the importance of the client reaching maximum medical recovery

5 - 4

before discussing a resolution; talk about the fact that thereafter (and depending on your

jurisdiction) it can be a further number of years to actually reach trial, if it is needed.

There are those cases where liability and damages are such that insurers tender limits early;

however, that is the exception, not the norm. Suggesting to a client that their matter is straight­

forward and should resolve quickly sets the client up for frustration and disappointment if that

does not occur, and sets you up for having to deal with a very angry client. One of the most

effective ways to lose your client's trust and respect is by missing timelines and benchmarks

that you have set.

To combat or respond to the sometimes turtle-like pace of litigation, there are steps that can be

taken by the lawyer. When you say you will do something, do it and do it sooner than the client

expected. When you are anticipating next steps and responding in a timely manner to client

inquires, clients will believe that you are moving the matter forward as quickly as possible.

Anticipate when the matter will be ready for discovery and ensure that your Statement of Claim

is issued and served well in advance to allow you to obtain dates for discovery within the ideal

timeframe. If you wait until this 'ideal time' is upon you, with counsel schedules, your client's

discovery will likely be months later than necessary.

In the interim, between being retained and discoveries, be active in the accident benefits side of

the file. Ensure that you are up to date with the treatment team and that the client's concerns

are being addressed in a timely and efficient manner. When you receive a denial of a benefit,

call the client proactively to let them know that you have already come up with a plan to address

the denial; pre-empt 'bad news' with a potential solution or strategy. Again, this will assist you

in building a strong and communicative relationship with your client.

Assessment of the Claim

It is impossible to assess the value of a client's claim at an initial meeting, although you may

have some thoughts on the range for non-pecuniary general damages. Regardless, providing

information on the threshold (if applicable), deductibles and the cap on general damages early

on in the process, and repeating throughout your retainer, will help the client wrap their head

around what a reasonable settlement position might be at the end of the day. This is particularly

important if you are dealing with a fatality as our system does not compensate for the loss of a

child or the loss of a parent in a manner that can in any way address the loss. It is also

particularly important for clients who appear focused on the dollar amount (for example, before

engaging in any activity etc they call and ask how it will affect the lawsuit). In addition, you will

5 - 5

want to ensure that you speak directly about the numbers that are found in the prayer for relief

in the Statement of Claim. If this does not occur, you client may believe the amount sited is

your assessment of their damages.

As part of that assessment, a discussion about liability issues or pre-accident medical histories

must also take place in a frank and open manner. With respect to liability, reviewing the police

file and any expert reports will illustrate for the client both sides of the argument. In addressing

the medical experts, provide your client with the position of the defendant's experts-not just

your experts. Help them to understand how a judge and/or jury may/could prefer the

defendant's experts over their experts and treatment providers. Providing a copy of the pre-trial

memoranda or mediation briefs is another way to inform your client of the defendant's position.

No favour will be given by sugar-coating obvious challenges in your client's case. Always be

direct in your review of an issue and provide advice in a compassionate, yet straight forward

manner.

If your client hears about the $30,000.00 deductible or that the defendant sees them as 50%

contributorily negligent or that the defendant believes their pre-accident medical history negates

their claim, while sitting in a mediation or settlement meeting, you can be assured that your day

is going to be difficult.

Communication throughout duration of file

As noted above, managing the expectations of your client regarding responsiveness in your

initial meeting is crucial. If you cannot promise to respond immediately to every call and email,

do not suggest you can. Talk about how your department works and the efforts you will make to

provide timely answers to questions and updates.

Documenting meetings and instructions can never be over-emphasised. Instructions can be in

writing or confirmed in writing, depending on the client and your comfort level. If the time comes

where a complaint to the Law Society has occurred, you will appreciate the thoroughness of

your internal memoranda and communications with your client.

Keeping the client engaged in the process through regular communication is helpful in

maintaining their confidence and their trust during this very long and difficult process.

Communication also prevents unnecessary detraction from the actual issues in the lawsuit due

to miscommunication. That said, clients should be encouraged to 'speak up' if they are

5 - 6

frustrated or anxious because of some action (or inaction) by your office. A complaint can be

waylaid by acknowledging the client's concern and working with them towards a solution.

Clients that are higher needs can be challenging within the context of a full practice. Setting

boundaries or limits to the amount of time they consume will assist in their coming to terms with

your availability, thereby helping them to relax their expectations. There will always be clients

who demand more of your time than others. The key is to not allow those clients to monopolize

your time in a way that you neglect the needs of your less intrusive or vocal clients-their needs

may be as great, if not greater than the vocal client.

Settlement Discussions

By the time you are at mediation or a settlement meeting, and if you have managed your client's

expectations appropriately, your client should be fully prepared for the position the defendant

might put forward and have a reasonable range of damages for settlement in their mind.

Throughout these discussions, you must obtain clear (written) instructions from your client. In

order for your client to fully understand the offer, your explanation should include a breakdown

of your fees in accordance with your retainer (identifying the defendant's contribution to same)

and the net recovery to your client.

Depending on the client, it is sometimes helpful to set out the settlement position to the client in

a detailed email to allow them a time to review and digest the information and numbers. Once

they have reviewed the email you can meet or speak by telephone to answer questions and

obtain instructions.

In closing, the most satisfied clients are normally those that feel they have been treated with

respect, compassion and consideration. If, at the conclusion of your file, your client is satisfied

with your service, in all likelihood you have managed their expectations through the process and

helped them close this chapter in their lives.

6165226.1

TAB 6

Mediation Basics/Personal Injury

Charles Harnick, Q.C., York Street Dispute Resolution Group Inc.

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

MEDIATION BASICS/PERSONAL INJURY

INTRODUCTION

Mediation is a facilitated, without prejudice,

confidential settlement negotiation that takes place

within the context of our current adversarial system.

The success of any step in the adversarial system,

whether it is a motion, pre-trial conference, trial or

appeal is dependent on preparation. Mediation is no

different.

In a mediation you must know your case as if you

were going to trial. At the conclusion of the mediation

there may be an offer extended to settle the case. Is that

offer better than the result you would likely obtain at

trial? You can only make the evaluation and advise your

client if you know your case. Preparation is the key.

6 - 1

THE MEDIATION MEMORANDUM

This is a very important document. It is the first

thing your opponent and his or her client will read. It is

the mediator’s introduction to the case. It is the first

impression you make and first impressions can be

lasting.

The memo should be concise. It should introduce

the parties, the issues and the strengths and

weaknesses of those issues. It must then lay out in a

persuasive manner, the proof.

Use headings and number the paragraphs. Be

concise and not repetitious in your arguments. Make

your best arguments first. Deal with the strengths of

6 - 2

your case but even more importantly, deal with the

weaknesses. If there are glaring weaknesses in your

case you must deal with them in your memo. Be

assured, your opponent is not going to forget about

them.

Do not include every piece of paper you have

accumulated, as exhibits to your memo. If you quote an

expert in the memo, ensure that the expert’s report is

included. Attach the relevant medical reports and

hospital records.

If you are dealing with complicated medical

evidentiary issues, you must balance brevity and

conciseness against ensuring that the mediator is

focussed on the crucial issues as well as their proof.

6 - 3

Highlight excerpts of the medical evidence and where

they can be found.

Nothing can derail a mediation faster than the

introduction of new materials at the 11th hour. At a

minimum, all materials needed to assess a file should

have been turned over to the other side 6 weeks before

the mediation. If this does not happen and the

mediation memoranda contain new information, there

is no chance that the new material will be considered in

assessing the damages in advance of the mediation.

6 - 4

PREPARING THE PLAINTIFF FOR MEDIATION

Counsel for the plaintiff must meet with the

plaintiff in advance of the mediation to properly

prepare for what may be the equivalent of a trial insofar

as the plaintiff is concerned. Counsel must brief the

plaintiff about what the mediator will say and what

defence counsel will say at the opening session of the

mediation. Counsel should review, in detail, the brief

that was provided by defence counsel so the plaintiff is

not surprised by what he or she is likely to hear.

Counsel for the plaintiff should also use the defence

memorandum as a means to manage appropriately, the

plaintiff’s expectations. You will of course, much earlier,

have sent your client a copy of the memo prepared on

his or her behalf inviting suggestions.

6 - 5

THE OPENING STATEMENT

Address the issues in the case. Be prepared to

discuss the strengths of your own case and how you

intend to satisfy the evidentiary burden.

Acknowledge your weaknesses and deal with how you

intend to overcome them. Never personalize the issues

in dispute. You have come to the mediation in the spirit

of compromise. There will be contentious issues.

Approach these issues dispassionately and avoid

provocation if you want the other side to listen and hear

what you have to say.

It is most effective to speak without notes if

possible, or with a brief outline of headings you wish to

cover. DO NOT read your mediation memo as your

opening.

6 - 6

CLIENT PARTICIPATION IN THE OPENING

If your client is a good witness, of course you

should permit that person to say a few words. This will

impress upon the insurance adjuster that the plaintiff

will make a good impression on the judge and/or jury. If

the plaintiff is not a good witness but is decent and

honest, perhaps that person could read a prepared

statement about how he or she has been impacted by

the accident. If the effort is made, it usually reflects in a

positive way.

The claims person, representing the defendant, can

also have a significant impact. A few words indicating

they are attending in the hope of finding a fair

resolution to both parties can set the tone for a positive

day.

6 - 7

DAMAGES

Unless you are responding to something in the

other party’s brief, it is generally best to leave the

quantum of damages until you begin caucusing. As

plaintiff however, your opening offer should be ready in

advance with the concurrence of your client. A long

delay in presenting your numbers might give the

impression you are not prepared.

CAUCUSING

You will have told your client that following the

openings the parties will separate and the mediator

would then begin the process of delivering messages

between the parties. When the caucusing begins, do not

be afraid to use the mediator as a sounding board. The

6 - 8

mediator is there to assist counsel as to whether or not

their theories or negotiation strategies are realistic.

Regardless of what the mediator says or suggest

however, counsel determines the course of action to be

taken.

Mediators use a standard caucusing rule – anything

discussed in caucus can be repeated to the other side

unless counsel state otherwise. Always be aware of this

rule and never hesitate to tell the mediator you want

certain information to remain confidential.

It is very important that prior to any offers being

presented, counsel advise the mediator of any prior

settlement discussions. There is nothing worse than

presenting an offer to the defendant and being told that

the proposal is significantly higher than a recent offer

6 - 9

from the plaintiff. If the mediation is not immediately

derailed the mediator will spend the next few hours

simply getting the parties to start over.

PRINCIPLED NEGOTIATIONS

Your negotiating positions should be supported

with sound arguments. This is usually the case at the

outset and offers should be broken down under various

heads of damage to reflect this principled approach.

However, at some point parties may move to global

numbers. This is much more acceptable when the

foundation for these negotiations has been principled.

6 - 10

DISCLOSURE OF SURVEILLANCE

Good surveillance is surveillance that the plaintiff

cannot explain away. Therefore, there is no reason not

to disclose this information in detail in the mediation

brief.

Where surveillance is used strictly for credibility

purposes, it should be handled at mediation as it would

be handled at trial. Where a witness has been caught in

a direct lie, the decision is easy. It can be revealed on a

surprise basis at the mediation and it will have a

dramatic effect.

If the plaintiff has an explanation, however, this can

backfire at mediation just as it would at trial.

6 - 11

WHY MEDIATIONS FAIL

Cases cannot settle if the plaintiff has unrealistic

expectations with respect to damages or is unprepared

to acknowledge a degree of fault with respect to

genuine liability issues. The essence of mediation is to

find reasonable compromise. A plaintiff who is not

prepared to compromise is not likely to succeed at

mediation.

Similarly, if the insurance representative does not

have realistic authority, the mediation will not succeed.

6 - 12

CONCLUSION

Mediation has become an integral part of the litigation

process insofar as personal injury claims are concerned.

Constant improvement in our mediation techniques will

allow us to overcome obstacles to settlement that arise

during mediation. These are but a few suggestions.

6 - 13

TAB 7

Professional Responsibility Issues in Plaintiff’s

Personal Injury Law

Ian Hu, Counsel, Claims Prevention and practicePRO, Lawyers’ Professional Indemnity Company

(LawPRO®)

September 19, 2016

Plaintiff’s Personal Injury Law

Practice Basics 2016

Professional responsibility issues in plaintiff’s personal injury law

Ian Hu, Counsel, Claims Prevention and practicePRO

Constant challenges threaten to derail a practice if improperly dealt with. Follow me as we take this journey into the life of a hypothetical file and uncover the most common sources of malpractice claims. The Case of Mr. Smith Mr. Smith suffers serious injuries in a motor vehicle accident and retains you as his lawyer. He expects an abnormally high settlement, but you inform him that settlements are based on what facts can be proven, not what he feels the case is worth. To hammer home the point, you advise him that juries are unpredictable. Having set realistic expectations, you meet with your clerk on the file and discuss next steps. You determine you will help him only on his tort file, and document this in the retainer. You obtained the precedent retainer from practicePRO’s website practicepro.ca/retainers. The date of loss is easy to calculate in this case. You record the time and date of the accident in the file progress plan (which you also downloaded from practicePRO), and tickle the 2-year limitation period to commence a claim. You ensure the tickler reminds both your law clerk and you well ahead of the deadline. Investigation Next you investigate the file. You send out notice letters to the possible defendants requesting any information they may have regarding the accident, including whether there are any other parties involved. You request the complete police file including notes, a corporate search of the owner of the defendant’s vehicle and a driver’s licence search of the defendant. When you receive the police file you review it and realize that some notes are redacted, as they are often are, because of privacy regulations. You bring a 30.10 motion to obtain unredacted notes. You remember that a certain claims prevention lawyer at LAWPRO once told you that failure to properly investigate a file is the third most common source of personal injury law claims. Further to the 30.10 motion, you receive the unredacted police file after a few months, which reveals an unidentified driver was involved in the accident. You thank your lucky stars you brought the 30.10 motion. You look up the law regarding naming unidentified, underinsured, and uninsured defendants. You discover that under your client’s own OPCF44R “Family Protection” auto insurance policy, he can name his own insurer to stand in as the unidentified and uninsured defendant. Upon further research you note the 1-year limitation period and the complex case-law regarding discoverability. You decide it’s best to issue the claim as soon as possible. After all, failure to meet timelines is the most common source of claims in personal injury law.

7 - 1

Commence the Claim As you review the Statement of Claim, your notes remind you that your client advised his wife has had to look after him since the accident, and they wanted you to include her in the lawsuit. This is a large claim and her damages may end up well above the deductible for Family Law Act claims. You include her as a proper plaintiff. You thank your lucky stars you attended the LSUC’s Personal Injury Law Practice Basics where you heard a talk on how failure to know the law is the fourth most common source of claims, and failure to follow your client’s instructions is the second most common source of claims in this practice area. But you don’t stop there. The Smiths also have a child under 18 years old, little Annie, that has lost the benefit of Mr. Smith’s care, guidance and companionship. You obtain instructions to appoint Mrs. Smith as little Annie’s litigation guardian and to make a Family Law Act claim on Anakin’s behalf. A voice in your head reminds you that in the last several years one of the costliest source of malpractice claims has been dealing with cases dismissed pursuant to Rule 48 due to not being set down in time. You consult the Rule 48 Transition Toolkit at practice.pro/Rule48 to confirm your ticklers and warning systems are in order to avoid an administrative dismissal. You tickle 5 years from the day the claim was issued to set the matter down for trial. Discoveries To assess the file properly you arrange discoveries with the parties. Due to scheduling issues the discoveries are a year later. In the meantime you request all relevant clinical notes and records to get a sense of your clients’ pre- and post-morbid damages. When discoveries are complete you realize you need to investigate both damages and liability further. You obtain appropriate medical reports, an accounting report to quantify the damages, and an accident reconstruction expert to clarify liability. The failure to investigate a claim adequately is another leading cause of malpractice claims. Having investigated the file to your satisfaction, you are now prepared for mediation and trial. You meet with the clients to discuss how the file is valued and the pros and cons. You want to do a good job for them while also avoiding an improvident settlement malpractice claim, and you know one of the best ways to do this is to communicate clearly your recommendations and expectations with the clients. Mediation and beyond You contact the defendants to arrange a mediation and discuss a trial date. Unfortunately, mediation is scheduled at least a year away, and you know the trial may be even further down the road. You set the matter down immediately.

7 - 2

Finally mediation day arrives. Fully prepared, you and your clients go through a grueling full day mediation. Throughout the day you discuss the possible outcomes of going to trial and settling at various numbers, and the associated risks. At the end of the day you receive an offer you can recommend. Your clients are happy with the offer. On a writing pad you have your clients sign instructions to settle, and you make sure to include not just the all-inclusive number, but also the fees, costs, disbursements and HST. You underline the “take home” amount that your clients will receive in their pocket. Failure to clearly communicate the terms of settlement and to follow instructions to settle (or not settle) are some of the most common reasons clients sue their lawyers. You think about how you’ll use the funds you make toward increasing your marketing budget. But wait, you’re not done yet! With little Annie in the lawsuit you bring a motion for court approval of the settlement, setting out again the possible outcomes, risks, and the numbers involved. Everything comes back approved. You pat yourself on the back for a job well done. Conclusion It’s no coincidence that taking care to avoid a malpractice claim can at the same time improve the prospects of your file. Investigating a file, communicating with your client, and meeting timelines makes for a better and less stressful practice. With proper investigation you can nail down liability, with proper communication you can control your client’s expectations, and with proper time management you cut down on your WIP. Malpractice claims in personal injury law are among the costliest. Keep an eye on reducing your claims risk – doing so will benefit both your practice and the profession.

7 - 3

Sample Retainer Letter – Personal Injury Contingency Fee

Contingency Fee Retainer Agreement (Personal Injury) This document incorporates more than two dozen required clauses further to the Solicitors Act, R.S.O. 1990, c.S.15, Contingency Fee Agreements, O. Reg. 195/04. This document should be adapted to suit your practice and

the matter for which it is being used. See endnote.

This document may be adapted for use by lawyers and paralegals for their legal practices. It is available at practicepro.ca/retainers © 2016 Lawyers' Professional Indemnity Company

[Firm Name, Address, Telephone Number, Email]

[Date]

[Client Name] [Client Address] Re: Accident of [date of accident]

Part 1: Our Services Legal services covered by this contract [Firm Name and/or Lawyer Name] is being retained by the client to provide the following services and to represent the client in respect to injuries, losses and damages resulting from a [type of accident] which occurred on or about [date]. We agree to act for you in your legal claim against [name of Defendant(s)], once we receive a signed and dated copy of this contract. We will then be your lawyers throughout the whole legal process including going to trial if necessary. (The attached document called Steps in a Lawsuit explains the basic steps most lawsuits go through as well as some legal terms.) The limitation period, or the latest date by which we will commence a lawsuit, is [Day, Month, Year]. At the same time, we will try to settle your case to obtain a favourable settlement for you. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If your claim is settled, it will not have to go to trial. We will keep you informed about matters that arise, and discuss with you any significant decisions you must make. We will give you our legal advice, but you will make the final decisions. And, we will only settle your lawsuit if we have your written consent. Meeting your expectations

7 - 5

2 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

Money You hope to obtain a fair and reasonable amount of money for your injuries to compensate you for:

(1) your pain and suffering; (2) loss of wages; (3) your medical, drug, and other out of pocket expenses.

You also hope the Defendant(s) will pay for at least some of the legal fees we will charge you. Even if you win your lawsuit, the Defendant(s) may only have to pay you some of these fees, not the whole amount. You still agree to pay us our fees which are discussed in Part 2 of this contract. When we have the information we need, we will tell you how much money we think you could reasonably hope to obtain in a settlement or at trial. We will also tell you if our opinion changes as your case progresses. Time It can take up to two years or longer for a lawsuit to go to trial or settle. The amount of time your lawsuit will take will depend on factors such as how soon you recover from your injuries; when we receive the documents we need; the court’s schedule; and when the other lawyers are available. Your role as client You understand the importance of giving us all the facts and of being totally honest with us. We can only do our best job if we have your trust and are fully informed. In particular, we ask you to give us all information you have, or have access to, which could help us in working on your lawsuit. We need copies of all letters and documents relating to the accident; medical reports; physiotherapy records; income tax records; paycheque stubs; and medical, drug, and parking receipts. If necessary, we will ask you to give us written authorization to obtain this information from other parties. You retain the right to make all critical decisions regarding the conduct of your claim. Legal services not covered by this contract At this time we have not been retained to represent you generally or in connection with any other matter. We will not be performing the following services:

7 - 6

3 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

(a) [describe, e.g., accident benefits, long term disability, CPP-disability, social security, etc.] (b) [describe] (c) [describe] [If you are not being retained to assist with another possible cause of action you are aware of, add this sentence: In particular, although you told us [describe cause of action, for example: "you were let go from work"], you have not asked us to take any legal action concerning this.] If your case goes to trial and either you or the Defendant(s) is unhappy with the court’s decision, you or the Defendant(s) can appeal the decision of the court to get a higher court to change that decision. We will tell you what we think the likely outcome of an appeal would be. But this contract does not cover the work that will be involved in such an appeal. If you want us to act on the appeal, we will ask you to sign another contract to cover the new legal services and fees. This contract also does not cover any steps you may have to take to force the Defendant(s) to actually pay you. If you ask us to help you enforce a court order or judgment, again, we would ask you to sign another contract. This contract does not cover such enforcement proceedings. We have not agreed to give you legal advice or perform legal services for you relating to any other matter. Sole Representation We will be representing solely you in this matter. Our representation of you does not include the representation of related persons or entities, such as family members; friends; the individuals or entities that are shareholders, directors or officers of a corporation, its parent, subsidiaries or affiliates; partners of a partnership or joint venture; or members of a trade association or other organization. In acting for you, we are not acting for or taking on any responsibilities, obligations or duties to any such related persons or entities and no lawyer-client or other fiduciary relationship exists between us and any such related persons or entities. [Multiple Clients – Optional in the alternative if not sole representation] Representing Multiple Clients with Apparent Same Interest (Joint Representation) As you know the following [party/parties] are involved with you in this matter and you and they have asked us to represent all of you:

[name(s)]

We have discussed with you the principles we must follow of undivided loyalty. No information received from one of you as a part of the joint representation can be treated as confidential as

7 - 7

4 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

between all of you. If we should receive information from one of you which we are instructed to keep confidential as between all of you, we will have to stop acting for all of you. We have discussed these matters with you and have concluded that, at least at present, each of your individual interests in this matter are the same. The areas in which these individual interests may diverge in the future are:

[describe]

If we agree to act for one of you in a matter separate from this one, and we receive confidential information from that separate matter that is relevant to this matter, and the client in that separate matter wishes to keep it confidential, then

[Lawyer when drafting agreement must choose (i) or (ii) following]

(i) the information must not be disclosed to the other in this matter. This means we must withdraw from the joint representation.

or

(ii) the information must be disclosed to each of you in this matter and we may continue to act jointly for both of you.

Other conflicts may arise that cannot as yet be foreseen. A conflict of interest occurs when what is best for one of our clients somehow is not best for or hurts another of the firm’s clients. At the present time we can represent all of you. However, if it later becomes apparent that there is a conflict, we confirm each of your instructions to attempt to resolve this conflict. If a successful resolution cannot be accomplished in a timely way or at all, or if our attempts to resolve the issue cause us ethical concerns, we will have to withdraw from representing all of you. [if applicable] We confirm your agreement that if a contentious issue between you and _______________ arises, we may continue to advise _______________________________ about the contentious matter and that I we will refer you to another lawyer or paralegal. Our billings will name and be sent to all of you and each client is responsible for payment of the entire amount. You will need to decide between you how our accounts will be divided. Part 2: Our Fees, Expenses, and Billing Arrangements Our fee is a percentage and contingent on a favourable settlement or trial outcome We have explained to you that you have the option of retaining a lawyer other than by a contingency fee agreement. There are two main ways a lawyer can bill you:

Option 1 — by charging an hourly fee for work done;

7 - 8

5 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

Option 2 — by charging a percentage of the amount of money awarded in a settlement or court judgment; or, alternatively, by accepting court ordered costs as the fee.

We have explained that hourly rates may vary among lawyers and that you can speak to other lawyers to compare rates. You have asked us to charge you fees based on a percentage of the amount of money awarded to you in a settlement or court judgment, or by accepting court ordered costs as the fee, whichever is greater (option 2). We agree. You acknowledge and understand that all the usual protections and controls on retainers between a lawyer and client, as defined by the Law Society of Upper Canada and the common law, apply to this contingency fee agreement. The disadvantage of choosing a percentage arrangement (option 2) is that you may end up paying us more in legal fees than if we were to charge you an hourly fee for work done (option 1). This could happen if we are fortunate in favourably settling your lawsuit quickly. There are also advantages to choosing a percentage fee. First, if we cannot settle your case or if you lose at trial, then you would only have to pay our disbursements. You would not have to pay us any fees. Second, if we go to trial and win, the percentage fee may be less than an hourly fee if we have spent a significant amount of time on the trial. The contingency fee is to be paid to us contingent on a settlement or trial verdict. Percentage based on work done Our percentage fee will be less if your claim is settled than if it goes to trial. If it is settled, the fee will depend on the stage at which the lawsuit is settled. Our percentage fee will be:

(1) [___, for example, 20]% of the damages awarded if we settle your claim before the examination for discovery (Steps in a Lawsuit explains this step)

(2) [___, for example, 25]% of the damages awarded if we settle your claim during or after the examination for discovery and at least 90 days before trial

(3) [___, for example, 30]% of the damages awarded if we settle your claim less than 90 days before trial or during trial, but before the court judgment

(4) [___, for example, 33-1/3]% of the damages awarded if your claim does not settle and is decided by a trial.

For the purposes of calculating our percentage fee, any amount awarded in respect of costs and disbursements is excluded.

7 - 9

6 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

You understand that we will not recover more in fees than you recover in damages or receive through a settlement. Costs If we successfully settle your claim or win at trial, we will seek a sum of money called costs from the Defendant(s). If our fee is calculated as a percentage of the settlement or court judgment, you will receive the full amount of these costs since these costs are not included in the calculation. You understand that unless ordered otherwise by a judge, you are entitled to receive any costs contribution or awarded to you, on a partial or substantial indemnity scale. If, on the other hand, you are liable to pay costs, you are responsible for paying any costs contribution or award, on a partial or substantial indemnity scale. Disbursements In addition to our percentage fee or court-ordered costs as our fee, you agree to pay all disbursements, even if we cannot settle your claim or lose at trial. Minor disbursements We will charge you for the minor ongoing disbursements that we have to pay. Some of these disbursements are: long distance telephone calls; photocopying costs; costs to deliver documents to court or the other lawyers; faxes; court filing fees (which the court charges to keep an official record of court documents); and, necessary land or company registry searches (for example, to find out the proper name of the defendant). If we successfully settle your claim or win at trial, the settlement or court judgment most likely will require the Defendant(s) to reimburse you for some of these disbursements. Major disbursements We may have to hire other people such as court reporters, expert witnesses, accountants, and property appraisers to help us with your lawsuit. If we need to hire these people, we will first discuss the matter with you. We usually ask you to pay these major disbursements in advance, or we will have the bill sent directly to you to pay. Again, please pay these bills within 30 days. After 30 days we will begin charging interest at [XX]% per annum. Also, as with the minor disbursements, if we successfully settle your claim or win at trial, the settlement or court judgment most likely will require the Defendant(s) to pay you costs to reimburse you for some of these disbursements.

7 - 10

7 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

First Charge We have first charge on any funds received in regards to disbursements or taxes as a result of a judgment or settlement of the claim, subject to section 47 of the Legal Aid Services Act, 1998. HST In addition to our legal fees and disbursements, you agree to pay any Harmonized Sales Tax (HST) that we must charge you. Example of Contingency Fee Calculation To illustrate how our percentage will be determined, we offer the following sample calculation. A claim settles before examinations for discovery for the following amounts paid as a lump sum: Damages $100,000.00 Costs $10,000.00 Disbursements $10,000.00 HST (on costs and disbursements) $ 2,600.00 Total (lump sum payment from defendant) $122,600.00

Since the claim settled before examinations for discovery, our fee would be 20% of the damages including interest awarded to the client. The client receives the total amount of the costs. The invoice delivered to the client would look like this:

Fee of 20% x $100,000.00 damages $20,000.00 Disbursements (reimbursed by defendants) $10,000.00 Other Disbursements (not paid by defendants) $ 300.00 HST (on fee and disbursements totaling $30,300) $ 3,939.00 Sub-total $34,239.00

The client would then receive ($122,600.00 - $34,239.00 =) $88,361.00

You have the right to ask the Superior Court of Justice to review and approve our bill if payment of fees and disbursements is by way of this contingency agreement. Should you wish to do so, you may apply to the Superior Court of Justice for an assessment of the bill within six months of its delivery. Billing Arrangements You agree and direct that all funds claimed by us for legal fees, costs, taxes and disbursements shall be paid to us in trust from any judgment or settlement money. We will then deduct our fee, any HST, and any unpaid disbursements, and give you the balance.

7 - 11

8 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

Structured Settlements Instead of a lump sum payment, some claims are paid out by way of a structured settlement. A structured settlement will pay you tax-free payments at set time intervals for a period of time. If your claim is paid out by way of a structured settlement, our contingency fee is calculated and paid in lump sum based on the total damages award at the time of settlement. Part 3: Dealing with Each Other Ending the relationship By you You are free to end our services before your case is completed by writing us a letter or note. If you do, you agree to pay our disbursements and an hourly fee based on the actual time spent up to the date of ending those services. Our hourly fee depends on which lawyer or assistant helps with the work. I will be the main lawyer responsible for your case, but some work may need to be done by a more senior lawyer, and other work can be done equally well by a more junior lawyer. There are also many services, such as gathering information and preparing routine documents, that our paralegal assistant is well qualified to perform. A paralegal works under the supervision of a lawyer, but may not give legal advice. Our paralegal can serve you at a lower cost than one of our lawyers can. If you end our relationship, our hourly fee will be based on these rates:

My rate $[amount] per hour

[senior lawyer’s] rate $[amount] per hour

[junior lawyer’s] rate $[amount] per hour

[paralegal’s] rate $[amount] per hour If a lawsuit has already commenced, you will take the appropriate steps under the Rules of Civil Procedure to file and serve a Notice of Change of Lawyers or a Notice of Intention to Act in Person. If you do not do so within 30 days, we will bring a motion to remove ourselves as lawyers of record and charge you a flat rate of $1,000.00. By us Subject to our obligations to you to maintain proper standards of professional conduct, we reserve the right to terminate our services to you for good reasons which include, but are not limited to:

7 - 12

9 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

(a) if you fail to cooperate with us in any reasonable request;

(b) if our continuing to act would be unethical or impractical; or

(c) did not pay our bills on time without making other arrangements for payment.

Again, you agree to pay our disbursements and an hourly fee for our legal services up until the time we stopped acting for you. [If the client is a minor or person under disability include the following section: Minors or Persons under Disability If you are a party under disability as defined under the Rules of Civil Procedure, you, as represented by a litigation guardian, must have the contingency fee agreement reviewed by a judge before the agreement is finalized or as part of the motion or application for an approval of a settlement or a consent judgment under Rule 7.08 of the Rules of Civil Procedure. The amount of the legal fees, costs, taxes and disbursements are subject to the approval of a judge when the judge reviews a settlement agreement or consent judgment under Rule 7.08 of the Rules of Civil Procedure. Any money payable to a person under disability under an order or settlement shall be paid into court unless a judge orders otherwise under Rule 7.09 of the Rules of Civil Procedure.] Confidentiality As your lawyers, we have to share relevant information about your case with the Defendant(s) and the court. But unless we need to share this information as part of our work, all information you give us will be kept confidential between us. Your information will be collected, used and disclosed for the sole purpose of providing our services to you in accordance with our Privacy Policy. You confirm communication via the following is confidential and consent to me/our firm contacting you at:

[client address] [client home number] [client cell number] [client email]

No guarantee of success We will work with you towards your desired outcome. However, all legal actions are subject to many possible variables such as the demeanour and recollection of witnesses, the availability of substantiating documents and other evidence, and the evidence marshalled by the other side - all of which affect the decision of a judge or jury. Accordingly, we cannot guarantee that your

7 - 13

10 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

desired result will in fact be achieved. For us to work towards your desired outcome, it will be necessary for you to abide by the terms described in this agreement. Remember that all lawsuits involve risks and uncertainties in the law, the facts, and the evidence. Part 4: Signing this Contract This contract contains the whole agreement between us about our relationship with each other and our legal fees and disbursements. It will not be changed unless we both agree and sign any changes. It will legally bind anyone such as heirs or legal representatives who replace either you or us, but it does not legally bind other lawyers who might act for you if you decide to end our relationship. If you want us to proceed on the basis described above, please sign both copies of this agreement in the space provided and return one copy to us in the enclosed self-addressed envelope. If there is anything you do not agree with, or if there is anything you would like to discuss before signing, please write or call us.

____________________________ Lawyer’s signature _____________________________ Client’s signature

________________________Date ________________________Date

7 - 14

11 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

Steps in a Lawsuit

The timing of a lawsuit is difficult to predict. It depends on many things, including actions the Defendant(s) takes, court schedules, and decisions you make. A lawsuit can take up to two years or longer to settle or go to trial. However, most lawsuits go through the same basic steps, although not always in the same order. Some lawsuits skip some steps, and some steps are repeated many times over. The steps listed here are the main steps that occur in a lawsuit. They will give you a general idea of what to expect. 1. Gathering the Facts With our client’s help, we gather all the available facts concerning the claim, including interviewing and taking statements from witnesses. We sometimes hire investigators or experts to help us, so this step can involve disbursements. 2. Starting the Lawsuit We begin the lawsuit by preparing the necessary court documents and filing them in court. This means the court date-stamps all copies of the documents, keeping one copy for their official record. We then deliver filed copies to the Defendant(s). This step also involves disbursements such as court filing fees. 3. Interim Applications After we start a lawsuit, but before trial, we or the Defendant(s) sometimes need to ask the court to decide certain things. Going to court to ask for an order is called an interim application. These interim applications are usually about how the lawsuit should be handled. For example, we might ask the court to order that the Defendant(s) show us a particular letter or document that the Defendant(s) would rather not let us see. 4. Examination for Discovery After gathering the facts, either we or the Defendant(s) arrange an examination for discovery. At the examination for discovery, we question the Defendant(s) under oath about the accident. We also ask the Defendant(s) to show us what relevant documents the Defendant(s) has, and to tell us about all relevant documents he or she has ever owned or had access to. In return, the Defendant(s) also question our client about the accident and the injuries he or she suffered. We give the Defendant(s) copies of the documents we have that relate to the lawsuit, and our client describes all relevant documents he or she once had, or had access to.

7 - 15

12 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

5. Review of the Law Once we have a good idea of all the facts, we review the law. We then give our client our legal opinion about what the likely outcome of a trial would be, and how much money our client can expect to obtain. 6. Negotiation and Settlement When it is appropriate, we talk with the Defendant(s) to see if they will settle the claim. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to trial. 7. Preparation for Trial If a claim is not settled, it may go to trial. Preparing the case for trial includes putting together all the necessary documents, arranging for witnesses to attend, and preparing any legal opinions. 8. Trial We act for our client at the trial. The trial may involve days or weeks of hearings, if not more. The judge or jury then decides the case, which could be a further few days, weeks, or months after the trial. 9. Completing the Claim We do all the work necessary to complete the claim, from gathering the facts to trial. If the case resolves successfully, the Defendant(s) may be required to pay monies to our client. Once these monies are received, they will be distributed as per this agreement. If the case does not resolve successfully, our client may be required to pay monies to the Defendant(s). However, this does not include starting new steps such as enforcing or appealing a court judgment. To enforce a judgment means to start proceedings to force the Defendant(s) to actually pay what he or she has been ordered to pay. To appeal a judgment means to start work to get a higher court to change the original court’s judgment. NOTE & DISCLAIMER: Model retainers are provided by LAWPRO for your consideration and use when you draft your own documents. They are NOT meant to be used "as is." Their suitability will depend upon a number of factors, such as the current state of the law and practice in each area of law, your writing style, your needs, and the needs and preferences of your clients. These documents may need to be modified to correspond to current law and practice. These documents do not establish, report, or create the standard of care for lawyers. The material is not a complete analysis of any

7 - 16

13 ® 2016 LAWPRO and practicePRO are registered trademarks of Lawyers’ Professional Indemnity Company. May 2016

of the topics covered, and readers should conduct their own appropriate legal research. Retainer letters or agreements should include reference to the following: identity of the lawyer and the client; scope of service (is your work to be limited in any way?); obligations of client; delegation of work; expected chronology; fee arrangement; billing format; rate changes; withdrawal or termination of services; and conflicts of interest. Drafted originally by the Law Society of British Columbia, LAWPRO has revised this retainer for Ontario lawyers with permission. LAWPRO gratefully acknowledges the work of the Law Society of British Columbia in preparing this document.

7 - 17

#1 claims area by count

#2 claims area by cost

Average 798 claims per year

Average cost $21.7 million per year

Average cost per claim: $27,100

Average of 2 years before claim reported

Litigation claims, always near the top of the LAWPRO claims count (alternating some years with real estate), saw an increase after 2009 due to Rule 48 administrative dismissals. New amendments to Rule 48.14 as of January 2015 should reduce these claims, but there are still risks that the new processes, deadlines and transition provisions will trap unwary lawyers. Lawyer/client communication is also a significant source of claims in this area. Misunderstandings around what actions the client expected the lawyer to take, or the expected outcome/cost of a case, often result in claims. Limited scope retainers may increase these risks. Proper documentation of instructions, detailed notes of client conversations and reporting letters can help LAWPRO defend these claims should they arise. Claims involving inadequate discovery of fact or inadequate investigation are the third most common source of plaintiff litigation claims. These involve the lawyer not taking extra time or thought to dig deeper and ask appropriate questions on the matter.

See reverse page for the most common plaintiff litigation errors and more steps that can be taken to reduce exposure to

a malpractice claim.

Speakers and resource materials Hot topics in litigation claims

Rule 48 Transition Toolkit (practicepro.ca/Rule48) We can provide knowledgeable speakers who can address claims prevention topics. Email practicepro@lawpro.ca Visit practicePRO.ca for resources including LAWPRO Magazine articles, checklists, precedents, practice aids and more.

Familiarize yourself with the changed requirements under the new Rule 48.14, and in particular, the transition provisions.

Prevent communications claims by ensuring client understands the process and likely outcomes of their matter

Avoid the unintentional expansion of retainers by having a clear intake and retainer process.

Resolution of claims Count of litigation claims

All claim figures from 2005-2015. All cost figures are incurred costs (April 2016)

Quick stats

Common errors

Litigation Claims Malpractice fact sheet lawpro.ca

7 - 19

Litigation Claims Fact Sheet

Risk management tips Avoid administrative dismissals. Under the new Rule 48.14 of the Rules of Civil Procedure, matters commenced before January 1, 2012 will be automatically dismissed on January 1, 2017, and matters commenced after January 1, 2012 will be dismissed five years after commencement. These dismissals will happen without notice to the parties. Use the Rule 48 Transition Toolkit (practicepro.ca/Rule48) to help you avoid administrative dismissal claims. Familiarize yourself with the Limitations Act, 2002. We continue to see claims related to lawyers’ unfamiliarity with the new limitations rules. Take the time to review the rules and the related jurisprudence: See practicePRO’s limitations resources at practicepro.ca/limitations. Have written confirmation of instructions and advice. As in all areas of law, this is a crucial to helping LAWPRO defend you in the event of a claim where you may have no recollection of the details years later. Take notes on your conversations with the client, and document in writing things like the details of settlement offers, the scope of your retainer (especially in limited retainer cases), your advice on accepting offers, and the likelihood of winning or losing a case and the costs involved.

Create more detailed docket notes. Like the resolution above, this has the benefit of helping protect you in the event of a claim (e.g. “Conference with client re risks and costs of litigation” is much better than just “Conference with client re lawsuit.”) It also will help you determine if you are making money on a particular case by giving you a better understanding of the amount of time you and your staff are spending on it. Talk to clients more often. Don’t rely solely on email. Lawyers are increasingly using emails to communicate with clients, and this is resulting in misunderstandings. Clients and lawyers read things into emails that aren’t there, miss the meaning of what is said, or read between the lines and make assumptions. During a long litigation matter, arrange some face-to-face meetings, or at least a phone call if distance is an issue.

Most common malpractice errors

Time management and procrastination (42%) • Failing to issue a claim within two years of the date

when a claimant knew or ought to have known that he/she had a cause of action/claim

• Failing to commence an action for injuries sustained in a motor vehicle accident before the expiry of the two-year (from date of discovery) limitation period

• Failing to prosecute an action in a timely fashion, leading to admin dismissal of the action for delay

Lawyer/client communication errors (21%) • Failing to manage client expectations, specifically:

failing to clearly explain the risks and cost implications of litigation; failing to realistically explain the chances of success in proposed litigation; encouraging false hopes and unrealistically high expectations

• Failing to ensure that the client understands your advice and recommendations, and you understand your client’s instructions

• Failing to provide client with breakdown of settlement monies when obtaining instructions to settle, including "take home" amount for how much client would receive, and how much would be paid to lawyer as costs, disbursements, & HST

Inadequate investigation of fact or inadequate discovery (13%) • Failing to name proper defendants due to improper

review or lack of corporate searches, property searches, motor vehicle accident reports, and police investigation files

• Failing to name proper insurer as defendant due to an unidentified, uninsured or underinsured claim

• Failing to name all proper plaintiffs such as corporate entities and Family Law Act claimants

• Failing to assess the file properly due to lack of expert reports, medical reports, and investigation reports

©2016 Lawyers’ Professional Indemnity Company. LAWPRO is a registered trademark of Lawyers’ Professional Indemnity Company. All rights reserved. This publication includes techniques which are designed to minimize the likelihood of being sued for professional liability. The material presented does not establish, report, or create the standard of care for lawyers. The material is not a complete analysis of any of the topics covered, and readers should conduct their own appropriate legal research.

7 - 20

7

Managing the progress of a fileUsing a file progress planLitigation matters proceed at different rates, and the scheduling and timing of the various steps are fluid. As many hands willtouch a file, a file progress plan can serve as a one-stop resource to help anyone know what stage the litigation is at, what hasbeen done, and what needs doing.

A file progress plan will help you set a realistic schedule for the required steps at the start of a matter, and will help ensurethose steps are completed as a matter proceeds. It will also help make sure that all necessary steps are completed by requiredlimitation periods or deadlines, and that nothing falls through the cracks.

The File Progress Plan in this Toolkit is a template you can adapt for use in your firm. Add or change the order of the steps tomatch what typically happens on your matters. In some cases you will want to adapt it for steps that will occur on an individualfile. Ideally, keep the file progress plan in an electronic form so it can be easily updated and accessible to everyone in the firm.It will also work as a paper document that is stapled on the inside front cover of a file.

Create the plan as part of the procedure to open any file. Fill out the header information including thecurrent date under “Last updated (date).” Briefly set out the theory of the case for liability and damages.Do this in a meeting with everyone involved in the file.

For each step you want to take on the file, assign the task and the expected completion date to the appropriate person and mark it down in the plan. If you are the one carrying out the task, place yourown initials in the “Who” box.

Keep the plan updated by scheduling a follow up meeting in your calendar. This is the most importantstep. The idea behind the plan is that time is always set aside in your calendar to review each file witheveryone involved, minimizing the chance of a file falling through the cracks.

Repeat steps 2 and 3. When the time comes to review the file again, the meeting you scheduled willshow up in your calendar. At that point, update the plan and revise the theory of liability and damagesas necessary. Review the file, ensure tasks have been completed, assign new tasks, and schedule another meeting.

Tips for working with a file progress plan:

• Estimate how long the tasks will take. If, for example,you have just opened a file and want to request and reviewa number of records before you commence the Statementof Claim, setting a meeting three months into the futuremay make sense. At that point you expect you will havereceived the records and can review them. If, on the otherhand, the limitation period is coming up in a month, youwill want to meet on the file in a week or two to ensurethe proper steps have been taken.

• The number of people involved in the meeting is flexible.On bigger files you may involve a team of law clerks, associ-ate lawyers, paralegals, and other staff. On smaller files youmay just set a meeting “with yourself ” to ensure the balldoesn’t get dropped. The key is to make sure everyone responsible for executing tasks attends the meetings.

• Keeping track of disbursements. Disbursements can add up quickly so you may also want to keep track of disbursementsin the header so that they can be easily monitored.

Don’t litigate a case that shouldn’t be litigated

All too often LAWPRO sees claims where a file has languished because damages are minimal and/or thereare difficult issues of liability. These types of files almostalways lead to unhappy clients, which primes them for amalpractice claim, especially if the weaknesses of thecase were not discussed with the client. At the time ofretainer, carefully assess the matter. Are there significantholes in the theory of liability? What’s the damages estimate? Is the file truly one that should proceed? And remember to re-assess the file if anything changesas it progresses.

1

2

3

4

The followingsteps will help you effectively create and use a file progress plan:

><7 - 21

8

File Progress PlanName of file: File No.:

Responsible lawyer(s) & staff:

Last updated (date): To be updated next (date):

Date of loss: Dismissal date:

Theory of liability & strength of case:

Theory of damages: Estimated quantum:

Step (Modify steps below as necessary.)Date to becompleted

Actual datecompleted Who Notes

Obtain authorizations and directions

Request 3rd party documents (e.g., OHIP summary)

Diarize limitation periods, dismissal date, and 30 day deadline to bring status hearing motion

Investigate claim (order searches, order records,retain experts)

Identify all defendants

Serve notice letters

Issue Statement of Claim

Statement of Claim properly served

Statement(s) of Defence received (or defendants noted in default)

Discovery plan

Affidavit of documents

Discoveries

Answer undertakings

Motions

Client meeting

Retain further experts

Mediation & prep

Set action down for trial

Trial & prep

�

An electronic copy of this document is available at practicepro.ca/Rule48This document may be adapted for use by lawyers and paralegalsfor their legal practices.

<7 - 22