‘FAIR – supporting auto accident victims through advocacy and education’
The information provided below is not legal advice, and it may not apply in every situation. FAIR is not a legal service and we do not recommend particular lawyers or firms. We do not provide legal advice. This page is for information purposes only.
ALERT – we are hearing about more and more cases where time limitations for filing have lapsed due to plaintiff’s legal representatives failing to meet limitation period deadlines. Claimants should stay informed of what is happening with their files and ask the questions about filing dates and limitations. Please see some of the decisions and articles listed at the bottom of this page for details.
You’ve been in a car accident. You’ve been injured. You don’t know what to do. Do you need a lawyer? How do you know if you need legal representation or not? Where do you go to find out?
FAIR suggests consulting with a legal representative before signing any documents for your insurer. Insurance companies in Ontario are aggressively categorizing accident victims under the Minor Injury Guidelines (MIG) which limits your rehabilitation costs to $3,500.00, often not enough to cover actual costs. Once a motor vehicle accident victim has signed that their injuries are minor in nature it can be very difficult and costly to undo. Often the extent of injuries is not immediately apparent and symptoms or complications can appear weeks and months after an auto accident. The more serious the injuries, the more important it would be to act in a timely manner and consult with a legal professional.
The best way to not be taken advantage of is to be informed about everything, read everything and know what is going on in your own case file. You may not understand the law but you do need to know what steps need to be taken and when. Many a case has been lost to missed deadlines and inattention. Consumers keep an eye on those that do work on their property or possessions, why not on the legal representative hired to be your voice?
Your rights, time limits, general information and the steps necessary to take following an auto accident can be found on the Financial Services Commission of Ontario website at: https://www.fsco.gov.on.ca/en/auto/brochures/Pages/brochure_claims.aspx and
There is a trend towards self-representation by litigants in Ontario’s court system. There is a very real and concerning lack of affordable access to justice for the average person in Ontario and across the country – this leaves some claimants no choice but to represent themselves. “Canada currently ranks ninth out of 13 Western countries in access to justice,” says Jas Basra, vice-president and chief legal officer of DAS Canada. Dr. Judy McFarlane of the National Self-Represented Litigants Research Study talks about “the unaffordability of private legal services and diminishing public assistance” so for those considering self-representation, a visit to her website gives some insight into the experiences of other litigants. http://drjuliemacfarlane.wordpress.com/2013/10/13/three-hard-realities-shaping-the-self-rep-experience-and-what-the-courts-say-about-this/
For the injured accident victim, the litigation process can be intimidating and confusing. Having basic knowledge about the process does help. A good link to list the stages of a claim can be found at: http://www.merovitzpotechin.com/disputes/understanding_civil_litigation.html
You can present your case in Small Claims Court for amounts up to $25,000.00 and the information is available on the Ministry of the Attorney General’s website: http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/suing_and_being_sued_5.asp
Navigating the No-Fault insurance system is complicated but possible and with the view that some will attempt to manage their claims in the beginning stages, there are links to websites below that could be helpful. The Financial Services Commission of Ontario (FSCO) Dispute Resolution Service (DRS) division is a complex and difficult system to work your way through if you have no prior legal experience. A claimant would be wise to seek out a legal representative with knowledge in auto accident litigation to assist in the filling out and filing of forms and legal documents. You may be able to do some work yourself and by consulting with a professional be more confident that you are doing things in a timely and efficient manner.
You may be able to get some assistance from Ontario’s Superior Court at: http://www.lawhelpontario.org/superior_court/ Free legal help for people without a lawyer or paralegal who are suing or being sued at the Superior Court (more than $25,000)
JusticeNet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access legal aid and too low to afford standard legal fees. The lawyers found on this site have agreed to devote a portion of their practice to qualifying clients at reduced fees. http://www.justicenet.ca/professions
Legal fees for personal injury lawyers range from $250/hr to $800/hr depending on the lawyer’s experience with some lawyers charging even higher prices per hour. Studies show that hiring a larger firm usually comes with a larger base of experience and a higher price tag. You might get more one on one time with your legal representative in a smaller law firm but the key is the level of experience your lawyer has in dealing with personal injury no matter the size of the firm. The trend today has been toward contingency fees based on a percentage of the final settlement amount. For regulations regarding contingency fees: http://www.e-laws.gov.on.ca/html/source/regs/english/2004/elaws_src_regs_r04195_e.htm
If you’ve decided that you need a lawyer there are several ways to find one that specializes in the type of injury you may have. There are referral lawyers in the marketplace that will assess your injury and then refer you to a lawyer that they feel may best represent you. These firms often charge a percentage from the lawyer they recommend, and these fees can add up and will eventually come out of your future settlement so exercise caution.
The best way to find a good lawyer is through a friend or associate’s referral but for most accident victims it is a task they must do for themselves. Picking a name at random from the phone book is probably not the best idea. Keep in mind that insurance defense lawyers know which lawyers will go to court and which lawyers are unlikely to do so. There are some who say that there are two types of litigation lawyers; those who only settle cases and so don’t prepare for court, and those who will prepare for court and who will go the full mile to get their clients a fair settlement. It’s a common story among claimants that they have to switch to a new lawyer part way through their claim. Often it is the result of the legal representative informing them that they were unaware of how serious their injury is and when the insurer digs their heels in and prepares for court.
In response to growing public demand, the Law Society has expanded it’s referral service to include paralegals as well as lawyers and added the ability to request a referral online. Link to The Law Society Referral Service (LSRS) website at http://www.lsuc.on.ca/faq.
The Law Society Referral Service is designed to provide callers with up to 30 minutes of consultation either by phone or in person at no charge. A Legal Information Officer will receive the call and assess the needs of the client and then provide the name of a lawyer or paralegal who best fits the client’s stated needs. The service is not designed to provide legal advice or second opinions, and any fees should be discussed with the lawyer or paralegal. The service can be reached by calling either 416-947-3330 within the GTA, or toll free 1-800-268-8326 outside the GTA. (TTY Phone: 416-644-4886)
There are advantages to hiring or consulting with a lawyer early in a case. A lawyer will advise you of what you are entitled to while your insurer may not disclose all of the options or benefits you are entitled to. There are forms and deadlines for applying for benefits. If you are seriously injured, having competent legal representation could make a big difference should your insurer decide to fight your claim. You or your representative will want to carefully document the circumstances surrounding the accident including the names and addresses of witnesses and requesting an accident report as well as any other relevant documents. Your insurer starts working on your claim the minute you make one and you should do the same. Have someone close to you keep a record of your interaction with your insurance company and their representatives. Notes and records of medical personnel and treatment providers are easier to access in the here and now of an accident rather than years later when you realize you might need them.
There are some questions you should ask before hiring a lawyer.
- Are you licensed in Ontario and a member of the Law Society of Upper Canada (LSUC)?
- Are you recognized as a specialist in personal injury by the Law Society of Upper Canada?
- Are you going to personally represent me or are you a referral lawyer?
- How long have you been representing motor vehicle accident victims?
- Do you now, or have you in the past represented insurance companies as part of your business? Does your firm or other lawyers who work for the firm represent insurance companies?
- What are your areas of expertise? Do you do other work besides personal injury? How much of your work is for people with injuries?
- Have you taken any cases to Superior Court or to Arbitration at the Financial Services Commission of Ontario?
- How much experience do you have in the courtroom? When was the last time you were in a courtroom on a personal injury case?
- Are there any cases that I can look at where you have represented someone in Superior Court or at the Financial Services Commission?
- Do you have any past clients who are similarly injured that would be willing to give me a reference about your work.
- How often do you settle cases versus take the insurer to court?
- Have you ever been sanctioned by your overseeing body (LSUC)?
- How do you set your fees?
- Will you be charging me by the hour or by contingency fee?
- Will I have to pay a retainer?
- Who will finance the case?
- Will I need to make periodic payments?
- Will it cost more if I have to go to court? What portion of the fees for my legal services are paid by the insurer?
- What happens if I am not successful and lose my case? Do I need to insure against an adverse cost award (paying insurer’s legal costs if you lose your case)?
There are ways to check out a lawyer’s disciplinary history to see if he or she has been sanctioned on the Law Society of Upper Canada website at: http://www.lsuc.on.ca/orders.aspx?folderID=538&id=689
You could check out some of the cases that your lawyer has represented other motor vehicle accident claimants by searching the lawyer’s name on the Canadian Legal Information Institute where court decisions are published at: http://www.canlii.org/en/index.html
The Financial Services Commission of Ontario (FSCO) has a Arbitration and Appeal Decisions section with decisions in respect to auto accident claims that include the names of the victims legal representatives at: http://www.fsco.gov.on.ca/en/drs/Pages/default.aspx You will have to call (416) 590-7202 or 1-800-517-2332 ext. 7202 to register for a password to get access to the decisions.
For those that have issues with their legal representatives’ legal bill: www.LawHelpOntario.org website has detailed information on the assessment process on the How do I Get a Lawyer’s Bill Reviewed tip sheet. The Law Society of Upper Canada LSUC also has information on their page. Additional information about having your bill assessed on FAIR What’s in YOUR Legal Bill ? page.
For those that have issues with the quality or actions of their legal representatives’ work – to make a complaint you may want to visit the Law Society of Upper Canada at: http://www.lsuc.com/with.aspx?id=644
Below are links to articles and websites that may be of interest to you and will provide information. Some are cautionary tales of other accident victims who have been taken advantage of and some are decisions from our courts and the judges and arbitrators, the Triers of Fact who speak to the public through their decisions.
***************************************FAIR does not accept responsibility for comments, opinions, statistical information etc. associated with the links listed below. Any opinions, points of view, etc. are not necessarily shared by FAIR. Do you qualify to make a claim? http://www.youtube.com/watch?v=xuVbqwKoTwY The examination for discovery – one of the most important steps in personal injury litigation. http://www.youtube.com/watch?v=WpeF19fGh8k How not to find a lawyer Make no mistake, ads for legal firms are not intended as public service announcements http://www.torontosun.com/2013/08/16/how-not-to-find-a-lawyer Self-representation dilemma. Those who attempt to litigate for themselves face obstacles in our court system http://www.torontosun.com/2013/06/07/self-representation-dilemma
What’s in YOUR legal bill and what you should do if you think the bill is unfair
LITIGATION FUNDING AND COSTS IN CANADA http://www.csls.ox.ac.uk/documents/CANADAAC.pdf
Justice Ontario » Lawsuits and Disputes http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/lawsuits_disputes.asp