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

Frequently Asked Questions by Injury Victims, Disability Claimants.

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

Yes we do. We offer consultations by Zoom, Google Meet & Microsoft Teams.

Yes, our Hamilton Personal injury Lawyers can speak with our clients by Zoom, Google Meet & Microsoft Teams.

Yes, you are allowed to be represented by the legal counsel of your choice. We are often approached by clients who want to change lawyers for one reason or another. Most retainers that you sign with a lawyer should in fact say that you are entitled to terminate your retainer and move your file to another lawyer if you choose to do so.

You need to feel confident in your legal representation. You can switch to any Hamilton personal injury lawyer if you are unhappy with the service you are receiving, but from our experience it’s always best to try and workout any problems that you have with your lawyer first. If things don’t workout, we are happy to book a consultation with you to discuss your options.

No switching lawyers midway through a case will NOT result in higher fees. The fees you initially agreed to will normally be split between your former lawyer and new lawyer.

Section 25(1)5 of the SABS requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s.45, including any assessment or examination necessary for that purpose.
Section 45 of the SABS prescribes the process for making an application for determination of CAT impairment, and contemplates medical examinations as part of the application process. The cost of CAT assessments are funded outside the cap on medical and rehabilitation benefits of $50,000.00, set out in s. 18(3) of the SABS at paragraph 15).

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

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

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

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

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

Yes we will render you a full and complete account which will provide you with the exact particular details of your settlement and fees owed.

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

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

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

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

Accident benefits are part of Ontario’s no fault insurance scheme.  If you have been hurt in an accident – whether it’s your fault or not, you may be entitled to receive accident benefits to assist with your recovery.  The amount of benefits you are entitled to will depend on the severity of your injuries that you have sustained in the accident.

An insurer is not required to pay an income replacement benefit, a non-earner benefit, benefits for lost education or visitors expenses in respect of a person who was the driver of an automobile at the time of the accident:

(i) if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy,

(ii) if the driver was driving the automobile without a valid driver’s licence,

(iii) if the driver is an excluded driver under the contract of automobile insurance, or

(iv) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner’s consent.

In addition, if an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner’s consent – that occupant may not be entitled to the coverage noted above.

In addition, if a person was engaged in an act for which the person is convicted of a criminal offence, or was an occupant of an automobile that was being used in connection with an act for which the person is convicted of a criminal offence – accident benefit coverage may not be available.

Unfortunately, you are only entitled to a maximum amount of $3,500 in medical and rehabilitation benefits – which can be increased to $65,000 if there is compelling evidence that a pre-existing medical condition will prevent you from achieving maximal recovery with access to only $3,500.  This is what you might have heard called the “MIG” or the Minor Injury Guideline. The next level of Medical and Rehabilitation benefits, for non-catastrophic injuries are combined with Attendant Care Benefits to a maximum financial limit of $65,000.00 for any one accident.

The $3,500 MIG limit does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.

Your insurance company shall pay medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for expenses such as:

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant; and

(h) other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person.

You are not entitled to payment for goods or services that are experimental in nature, that exceed the maximum rate or amount of expenses established under the Guidelines or for transportation expenses other than “authorized” transportation expenses.

If you are hurt in an accident, you are entitle to reasonable and necessary expenses which you have incurred in undertaking activities and measures that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate your reintegration into your family, the rest of society and the labour market. In particular, you are entitled to such as:

(a) life skills training (b) family counselling (c) social rehabilitation counselling (d) financial counselling (e) employment counselling (f) vocational assessments (g) vocational or academic training (h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person (i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home; and (j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle.

Maybe – if the defendant has not been convicted criminally with an imposed sentence. In some cases, Courts may be reluctant to award punitive damages if a Defendant has already been dealt with by the criminal courts. If a Defendant has been convicted of a criminal offence such as impaired driving causing bodily harm and that a custodial sentence has been imposed with a period of driving prohibition, some Courts have taken the position that it would be inappropriate for a civil court to go behind the determination of the criminal court and substitute its own finding as to whether that sentence appropriately met the objectives of retribution, deterrence and denunciation.

The most oft-cited test to determine whether an individual is totally disabled was stated by Laskin C.J. in Paul Revere at 546:
The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.
This test has been consistently followed in B.C.: Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 (B.C. C.A.); Halbauer v. Insurance Corp. of British Columbia, 2002 BCCA 5 (B.C. C.A.); Eddie v. UNUM Life Insurance Co. of America, 1999 BCCA 507(B.C. C.A.); Mathers v. Sun Life Assurance Co. of Canada, 1999 BCCA 292 (B.C. C.A.), leave to appeal to ref’d (2000), [1999] S.C.C.A. No. 334 (S.C.C.).
228      Being able to perform one or more important aspects of the occupation separately will not necessarily disqualify the insured from coverage; they do not need to be totally helpless. What matters is that the insured is unable to perform substantially all of the duties of that position: Paul Revere, at 545 – 546.
There is usually a qualifying or elimination period, which can range from 90 to 180 days, during which no benefits are paid but during this period the person may cover their lost wages by drawing on a short-term disability (STD) policy, employment insurance or government sickness benefits, which may provide an additional 15 weeks of sick benefits.
STD policies are usually paid for by the employer and cover income replacement for the first 120 days of injury or illness.

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

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

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

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

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

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

The short answer is no. Our Hamilton disability lawyers represent denied disability claimants all around the province. If you have been denied disability and live anywhere between Toronto and Niagara, we are happy to come and visit you. Do you live outside of the Golden Horseshoe? We are happy to have a telephone conversation with you to determine the viability of your claim. If at that point you decide to work with our firm, we are happy to arrange your digital signature on our firm retainer and courier the appropriate documents to you overnight in order to commence your lawsuit. Our award winning attorneys have represented hundreds of disability insurance claimants outside of the Golden Horseshoe area—from Niagara Falls to Ottawa to Sudbury. We are happy to discuss your situation at any time. We will never ask you for money up front, and your consultation is without obligation

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

Critical Illness Insurance is a type of insurance to help you and your family if you have diagnosed with a major illness.  Critical Illness is payable in a lump sum cash payment, dependent on the terms of your policy. The purpose of a critical illness payout is to assist you in a time of need after being diagnosed with a life threatening illness.

In every non-unionized employment relationship, the employer has an implied common law obligation to give the employee reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If the employer fails to give the employee reasonable notice of termination, the employee can bring a wrongful dismissal action for breach of that implied term.

Your employer is obligated to provide you reasonable notice of your termination – or in the alternative – payment in lieu of such notice. If your employer has not provided you with reasonable notice OR payment in lieu of notice, or your employer has provided inappropriate notice then you may in fact have a claim for wrongful dismissal.

The employer’s obligation to provide the employee with reasonable notice of termination does not apply where:
  • The employee resigns his employment;
  • The employment relationship is frustrate;
  • There is just cause for termination of employment;
  • The employment contract contains a valid term providing for the amount of notice to be given in the event of termination;
  • The employment contract is for a fixed term.
There are two steps to determining the employer’s liability for reasonable notice:
  • First, the employer must determine the period of reasonable notice. There is no definitive catalogue or list that will guide in assessing reasonable notice in a particular case. The most important considerations are the Bardal factors, however, other factors may also be considered.
  • Second, the employer must calculate the employee’s damages based upon the reasonable notice period. Reasonable notice damages are usually calculated on the basis of the employee’s compensation per month, multiplied by the number of months of reasonable notice. There may be deductions from the damages for mitigation income and collateral benefits.

No, independent contractors are not entitled to common law reasonable notice of termination.

Dependent contractor are workers who cannot be considered employees, but who are economically dependent on a single client company.
Dependent contractors are similar to employees in that they are entitled to reasonable notice of the termination of the working relationship, in recognition of their economic dependence on a single employer. They can be awarded notice periods that are similar to those given to employees.

The purpose of providing reasonable notice is to allow the employee a period of time in which to secure alternative employment.

Yes, unlike statutory minimum termination pay, you can certainly contract out of reasonable notice. As a substitute for common law reasonable notice, you and your employer might have agreed at the outset to any amount of notice or pay in lieu of notice that is equal to or above the statutory minimum.

The starting point for determining the reasonable notice period is set out in an old seminal case case called Bardal v. Globe & Mail Ltd., from 1960. Bardal tells us that reasonable notice is decided with reference to the certain  key factors (the “Bardal factors”):

  • The character of the employment;
  • The employee’s length of service;
  • The employee’s age;
  • The availability of similar employment, having regard to the experience, training and qualifications of the employee.

Bardal lists the most important factors to be considered in assessing the common law reasonable notice period. These factors are weighed and balanced by the courts in their analysis. No single Bardal factor is to be given disproportionate weight.

It’s important to understand that Bardal does not provide an exhaustive list of the factors to be considered. Courts have added other factors into the analysis. However, additional factors are not given the same weight as the Bardal factors, except (arguably) for the factor of inducement.

The reasonable notice period has been generally capped at a rough upper limit of 24 months of notice, with the court awarding above 24 months if exceptional circumstances are demonstrated.

For example, in the case of Dawe v. Equitable Life Insurance Company, 2018 CarswellOnt 8419 (Ont. S.C.J.) a 62-year-old senior vice president with 37 years of service was awarded 30 months of notice. The court would have awarded 36 months on the basis that no comparable employment was available however only 30 months of notice was claimed.

This approach has been rejected by the appeal courts as it overemphasizes the length of service factor and undermines the flexibility of the Bardal analysis.  The rule of thumb approach to reasonable notice also has little correlation to reality. Short term employees may well receive reasonable notice in excess of a month per year of service (sometimes up to four or five months per year of service) and longer-term employees (over 20 years) tend to receive less than a month per year of service.

The state of the law at present is that the appropriate range for reasonable notice has no limit or “cap”.

Abrahim v. Sliwin2012 ONSC 6295 (CanLII)at paragraph 24, cites how the “character” of the employment, in other words, greater notice for highly skilled positions and less notice for clerical or unskilled work, is now “largely irrelevant”: citing Love v. Acuity Investment Management Inc. (2011), 2011 ONCA 130 (CanLII), 89 C.C.E.L. (3d) 157 (Ont.C.A).

Yes, you can claim Human Rights damages as part of a civil law suit. The Ontario Human Rights Code was amended in 2008 to include s. 46.1 allowing courts to award damages for violations of the Code in wrongful dismissal cases.

Currently, the proper test to be applied in determining whether a contractual provision is unconscionable. In Ontario, the existing case law establishes that there are four elements to the test. Those elements are set out in Titus v. William F. Cooke Enterprises Inc.2007 ONCA 573, 284 D.L.R. (4th) 734, at para. 38, recently affirmed in Phoenix Interactive Design Inc. v. Alterinvest II Fund L.P., 2018 ONCA 98, 420 D.L.R. (4th) 335. They are:

  1. a grossly unfair and improvident transaction;
  2. a victim’s lack of independent legal advice or other suitable advice;
  3. an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
  4. the other party’s knowingly taking advantage of this vulnerability

In contrast to the Ontario approach, there is some suggestion that the test for unconscionability requires only two elements: inequality of bargaining power and unfairness. This is the test applied by the British Columbia Court of Appeal in Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A). It is also the test applied by Abella J. in her concurring reasons in Douez, at para. 115, and appears to be the test applied by the dissenting judges in Douez, at para. 145. The majority in Douez did not address the issue of unconscionability and, consequently, did not address the elements of the test.

Evans v. Teamsters, Local 31, 2008 CarswellYukon 22 at paras. 30 and 33 (SCC) wherein the duty to accept a reemployment offer was summarized as follows:

I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Michaels v. Red Deer College (1975), 1975 CanLII 15 (SCC)[1976] 2 S.C.R. 324 (S.C.C.)). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” (Mifsud v. MacMillan Bathurst Inc. (1989), 1989 CanLII 260 (ON CA)70 O.R. (2d) 701 (Ont. C.A.)). In Cox, the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” (Farquhar, at p. 94), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes, 1980 CanLII 23 (SCC)[1980] 2 S.C.R. 880 (S.C.C.)), it is extremely important that the non-tangible elements of the situation – including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements – be included in the evaluation.

I believe that although both constructively dismissed and wrongfully dismissed employees may be required to mitigate their damages by returning to work for the dismissing employer, they are only required to do so where the conditions discussed in para. 30 above are met and the factors mentioned in Cox are considered. This kind of mitigation requires “a situation of mutual understanding and respect, and a situation where neither the employer nor the employee is likely to put the other’s interests in jeopardy” (Farquhar, at p. 95). Further, the reasonableness of an employee’s decision not to mitigate will be assessed on an objective standard.

See also Gent v. Strone Inc., 2019 ONSC 155.

Adjudicator Cook in the case of Boyce v. Toronto Community Housing Corporation tells us that the employer is obliged to accommodate the worker’s disability to allow the worker to continue in employment unless providing that accommodation would result in undue hardship for the employer. Under the Code, the first question is generally whether the worker is capable of performing the essential duties of the pre-disability job.  If not, the second question is whether the worker could perform the essential duties of the pre-disability job with accommodation. A worker who cannot perform the essential duties of the pre-disability job even with accommodation is generally entitled under the Code to access other work that may be available, together with consideration of whether the worker could perform the essential duties associated with that other work with accommodation.  This might involve consideration of specific jobs that are available, but may also involve creative accommodation solutions, including new job descriptions that allow the worker to continue in employment: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC)[1999] 3 S.C.R. 3 (“Meiorin”).

In a Human Rights setting, employees bears the onus of establishing discrimination on a balance of probabilities. The employee must prove it is more probable than not that one or more Human Rights Code grounds was a factor in the decision to terminate his or her employment. (Peel Law Association v. Pieters2013 ONCA 396 (CanLII) at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne2010 ONCA 593 (CanLII) at para. 109.) If the employee is successful in making out a prima facie case of discrimination, the evidentiary burden shifts to the employer to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination with just any rational alternative explanation. The employer must offer an explanation which is credible on all the evidence. The ultimate issue is whether an inference of discrimination is more probable from the evidence that the actual explanation offered by JLL. See Shaw v. Phipps2010 ONSC 3884 (CanLII) at para. 77, upheld 2012 ONCA 155 (CanLII).

Yes, it can in certain circusmtances. For example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow awarded an increased notice period because the employer’s conduct, with regard to completing the plaintiff’s record of employment and making it more difficult for her to obtain employment insurance benefits resulted in the conclusion that 24 months is was appropriate amount. The law comes from the Supreme Court of Canada decision in 1997, Wallace v. United Grain Growers Ltd.1997 CanLII 332 (SCC)[1997] 3 S.C.R. 701, where, at paragraph 130, the Court concluded that where an employer dismisses an employee in a manner that negatively affects the employee’s chances of finding alternative employment, a Court may properly increase the employee’s period of reasonable notice to reflect that increased difficulty.

Yes, and they should. Lump sum damage awards should reflect salary increases that would have been offered to a plaintiff.  For example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow accepted 2 percent cost of living increases.

A gross-up must be argued. Your lawyer must put forward a claim for recognition of the increased tax burden this lump sum award will attract within the personal-combined (Ontario/Federal) rates. or example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow awarded a gross up for taxes of an additional $4,986.21 based an award of 24 months notice.

The onus is on the applicants to establish, on a balance of probabilities, that the respondents breached their rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test: F.H. v. McDougall2008 SCC 53 (CanLII).

Absolutely. In assessing credibility of plaintiffs or applicants, Judges or Adjudicators are guided by the principles established in Faryna v. Chorny1951 CanLII 252 (BC CA)[1952] 2 D.L.R. 354 (B.C.C.A.). At pp. 356-357, where the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility. 

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

The task of Judges and Adjudicators is to consider whether, having regard to the totality of the evidence before me, each of the plaintiffs or applicants have proven the material allegations that form the foundation of their claims that their Code rights have been violated on a balance of probabilities and on the basis of evidence that is clear, cogent and convincing. This necessitates an assessment of each plaintiff or applicant’s credibility as it relates to their material allegations, having regard to the totality of the evidence.

The elements and circumstances for an award of aggravated damages were reviewed in the Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII) decision.  In paragraph 66, aggravated damages are described as compensatory damages which are part of breach of contract damages.  They are to address “the additional harm suffered because of the way the contract was breached”.  Relative to wrongful dismissal claims, they address employer conduct that is “unfair or is in bad faith”: at paragraph 66, citing the Supreme Court of Canada decision in Keays v. Honda Canada Inc.2008 SCC 39 (CanLII)[2008] 2 S.C.R. 362 at paragraph 57.  It is noted that the breach of an employment agreement will inevitably cause some mental distress and such distress and hurt feelings are not compensable.

Punitive damages are distinct from aggravated damages.  These damages are designed to punish an employer, and as such are an exception to the general rule that damages are to compensate an injured party.  Punitive damages go beyond compensatory damages.

Starting at paragraph 67 of Whiten v. Pilot Insurance Co., [2002], S.C.R. 595, Binnie J. describes punitive damages as an award designed to meet the objectives of punishment, deterrence and denunciation rather than compensation.  Binnie J. goes on to provide that punitive damages cannot be limited to specific categories but should be resorted to only in exceptional cases.  At paragraph 94 his Honour offers eleven descriptive points on punitive damages:

(1) Punitive damages are very much the exception rather than the rule,

(2) [They are] imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

(3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant,

(4) [In awarding punitive damages, the court must have] … regard to any other fines or penalties suffered by the defendant for the misconduct in question.

(5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.

(6) [The purpose of punitive damages] … is not to compensate the plaintiff, but

(7) [Their purpose, rather, is] to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.

(8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and

(9) [Punitive damages] … are given in an amount that is no greater than necessary to rationally accomplish their purpose.

(10) … while normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.

(11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

Special Damages are designed to return the plaintiff to the same financial position that he or she was in prior to the alleged injury.  Under all human rights statutes, victims of discrimination may receive compensation for special damages such as lost income and expenses incurred as a result of the discrimination.

Where the discrimination results in the termination of employment, the proper measure of compensation for lost income is not the common law measure of “reasonable notice.” This is because the nature of the wrong, and the purpose of the remedy to address it, is different in cases of discrimination and wrongful dismissal. The difference was explained by the Ontario Court of Appeal in Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 60 D.L.R. (4th) 759 (Ont. C.A.), at paras. 8-10:

In wrongful dismissal cases the wrong suffered by the employee is the breach by the employer of the implied contractual term to give reasonable notice before terminating the contract of employment. Damages are awarded to place the employee in the same position as he or she would have been had reasonable notice been given.

Martin v. Nova Scotia (Workers’ Compensation Board),  2003 SCC 54 (CanLII) has told us that there is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.

A Disability Certificate (OCF-3) is part of your application for accident benefits.  Your insurance company will provide you with an Application with Accident Benefits (which we can of course help you fill out).

You can also find a copy of the Disability Certificate on the FSCO website.  Your Disability Certificate is divided into 10 parts. Parts 1-4 are to be completed and signed by the claimant before giving the form to a health practitioner. The health practitioner then completes the rest and submits it to the insurance company.

Parts 5-10 are to be completed and signed by one of the following health practitioners:

  • Dentist
  • Chiropractor
  • Nurse Practitioner.
  • Occupational Therapist.
  • Speech Language Pathologist
  • Occupational Therapist
  • Physician
  • Psychologist

The list is broad, and the Disability Certificate will carry more weight if it is completed by a health practitioner:

  • Whose area of practice is related to the primary diagnosis.
  • Who treated the claimant prior to the accident.
  • Who is funded by OHIP.

Your family doctor is often a good choice.

Yes you should contact one of our lawyers if you have the slightest question about an injury. Lalande Personal Injury Lawyers will focus on your case by gathering the required evidence on liability and damages, consulting with Ontario’s leading experts, and deal with the insurance company on for you – so that you can focus on your recovery.  If it is an absolute necessity, our lawyers might even take your case to trial in ordre to get the compensation you deserve for your losses.

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

We will try to get back to you right away – but at the absolute latest, it will take 24 hours. If your loved one is in acute care, we will prioritize call backs and get back to you immediately.

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

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

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

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

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

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

In a “sidewalk” case, gross negligence must be found for the municipality to be liable. The cases show that, while the municipality does not bear an absolute duty to protect the public from the hazards of ice and snow, it will be negligent if it does not both have a systematic policy in effect for snow removal and respond appropriately to emergent weather conditions as they arise. Further, a municipality must respond reasonably and diligently to emergent weather conditions as they arise.


A municipality has a duty to keep public roads in a reasonable state of repair. Section 44(1)  of the Municipal Act, 2001, S.O. 2001, c. 25 provides:

The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Section 44(3) limits the scope of this duty and provides the municipality with three statutory defences to allegations it did not properly maintain highways or bridges as follows:

Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
Section 99(9) of the Act states that except in a case of gross negligence, a municipality is not liable for personal injury caused by snow or ice on the sidewalk.
Thus, in a “sidewalk” case, gross negligence must be found for the municipality to be liable. The cases show that, while the municipality does not bear an absolute duty to protect the public from the hazards of ice and snow, it will be negligent if it does not both have a systematic policy in effect for snow removal and respond appropriately to emergent weather conditions as they arise.



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