Questions and Answers

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Questions and Answers2018-11-09T16:29:49-05:00

We have listed below some initial questions which in our experience many clients have when they first contact our experienced injury lawyers.

The questions below can address many initial concerns you may have.

If you don’t find the answers here, you may contact us for answers to more complex questions or questions specific to your case. Consultations are always free.

Don’t see your question below? Feel free to e-mail us your question directly at: mquinn@ottawalawyers.com.

Important Note: The information contained on this web site including the articles and Q&A questions and answers are provided solely for information purposes only and is not legal advice. Since the law changes frequently, the information contained on this site should not be accepted as up to date current law. To obtain current information and advice on your specific situation, you should consult an injury lawyer.

Avoiding Trials and Reaching Settlements in Ottawa Injury Cases2019-02-05T16:26:26-05:00

In pre-litigation and during litigation, when can a personal injury file be settled?

In reality, providing the injuries and affects of those injuries on a person’s life are known, all personal claims can be settled without going to Court.

While it is important to always be ready and prepared for the possibility your file will proceed to a trial, our personal injury lawyers will always consider ways to resolve your case in advance of court if possible. Litigation is stressful, time consuming, risky and can be a very emotional experience.

Settlement with the Insurance Adjuster

In many cases, there will be insurance covering the losses claimed. The insurance company will appoint an insurance adjuster to adjust the file and sometimes an insurance defence lawyer will be assigned the file. After the adjuster reviews the file, assesses liability and damages issues, they may be open to settlement prior to litigation being commenced. Reaching settlement at the adjusting phase occurs fairly regularly.

If settlement is not possible at the adjuster stage, litigation will need to be commenced. In the litigation context, there are a few steps during which it may be possible to settle your court action.

Defence Lawyer Review

In some cases, after the defence lawyer has reviewed the file, they may recommend settlement to the insurance company. This happens infrequently in our experience, but it is possible and sometimes happens.

After Examinations for Discovery

Examinations for discovery is a step in the litigation process where all parties meet at an official examiner’s office and can ask the opposing parties questions about the court case. It is an important step that allows everyone involved to gain a better understanding about all aspects of the case. Often, after examinations for discovery are completed, it affords the lawyers and parties an opportunity to have a frank discussion about the value of the claim and discuss settlement. In some cases, court actions are settled at this stage.

Mediation

In many jurisdictions, the Rules of the Court mandate that parties must attend a mediation to canvass settlement. In our experience, at least half of all cases are settled with the assistance of a trained and experienced mediator.

Pre-Trial

If the court action is not settled at mediation, the parties will attend a pre-trial conference and an experienced judge will assist the parties in reaching a settlement if possible. Many cases are settled at this stage.

Eve of Trial

After preparing for trial, the parties and the lawyers have a very detailed understanding of the case, the issues in the case, the fair value of the case and the risks involved in proceeding to trial. It is not unusual for the parties to discuss settlement immediately prior to a trial commencing and reach a settlement avoiding the risks associated with a trial.

Offers to Settle

At any stage of the litigation process, parties can exchange formal offers to settle. Offers to settle are important and helps the parties put their mind to settlement. The Rules of Civil Procedure and judges highly encourage exchanging offers to settle.

Our lawyers take every opportunity available to settle files. Avoiding the risks and stress of trials is something most of our clients appreciate. If a fair settlement is possible, it is often a better option to settle and avoid the possibility of a negative outcome after a lengthy trial.

Ottawa Injury Lawyers
Marc N. Quinn
613-315-4878

Long-Term Disability Claims and Limitation Periods in Ontario2019-02-05T15:48:31-05:00

Long-Term Disability Claim and Limitation Periods in Ontario

On January 1, 2004, the Limitations Act of Ontario came into force. The Limitations Act limits the period of time during which a person may commence a court action in Ontario in respect of a claim.

The Ontario Limitations Act sets out limitation periods for all types of claims in Ontario. In Ontario, the basic limitation period is two years meaning that a person must commence a court action within two years of when they first knew that a claim could be made. In most cases, this would be two years after the injury victim suffered an injury or damage that was the subject of the claim.

When advancing a claim for long-term disability benefits, the two year limitation period applies. The question always is: when does the two year limitation period start to run? From the date of the denial of benefits, the date of decision on an internal appeal or from the date of disability? What is the impact on the limitation period when pursuing internal appeals to the insurance company in the face of denial or termination of benefits?

A recently released Divisional Court decision (Western Life Assurance Company v. Penttila, 2019 ONSC 14 (CanLII)), the Court addressed the issue of limitation periods in the context of long-term disability claims. The disabled person’s application for benefits was approved and then later benefits were terminated when the definition of “disability” under the policy changed. The disabled person indicated to the insurer an intention to appeal the denial decision, delivered medical documents and appealed the decision. The disabled person further supplied additional medical documents requested by the insurance company. The insurer then maintained its decision on termination of benefits. The disabled person then commenced a court action. The issue was raised that more than two years had passed since the date of the termination of benefits. The insurance company argued that the disabled’s person’s claim was statute barred under the Limitations Act. The insurer filed a motion seeking summary judgment.

In Western Life Assurance Company v. Penttila, on a motion, the motions judge found that the limitation period did not start to run until the delivery of the insurer’s last denial letter related to the appeal or from the date of the insurer’s “final letter”.

On appeal, the Divisional Court found that the motion judge was correct in holding that the triggering event for the commencement of the two year limitation period was the date upon which it would be legally appropriate to commence legal proceedings to seek payment of disability benefits that the insurer refused to pay. The policy allowed for a right to appeal the insurer’s denial directly to the insurer. The Court said therefore that it would be premature to commence legal proceedings until that process ran its course. As a result, the Divisional Court upheld the Motion Judge’s decision and the disabled person was