Both sides of prejudgment interest debate have merit

While the monetary difference between old and new prejudgment interest rate rules isn’t substantial, the overall issue for insurance companies is, Toronto personal injury lawyerDarryl Singer tells Law Times.

The Ontario Court of Appeal is currently considering whether a rule that replaced the former prejudgment interest rate of five per cent with the lower current bank rate is retroactive, reports Law Times.

The legal publication says in recent months, Ontario courts have come down on either side of the issue of prejudgment interest following changes in legislation that replaced the former rate of five per cent with the lower current bank rate.

“The issue stems from an amendment on Jan. 1, 2015, that changed the amount of prejudgment interest for some cases,” says the article.

“One decision earlier this year, Cirillo v. Rizzo, found the change to be retroactive while another one, El-Khodr v. Lackie, later found that earlier ruling to be wrong. The latter case is under appeal,” reports Law Times.

Singer tells Law Times he agrees with El-Khodr, but he understands the reasoning in Cirillo.

“It can’t possibly be fair for them to, many years later, take advantage of the legislative change,” says Singer. “It’s an important issue for the personal injury bar.”

Saskatchewan overhauls auto injury coverage

REGINA – The Saskatchewan government is moving forward with changes to its auto injury coverage that it says will help people after a crash.

Don McMorris, minister responsible for Saskatchewan Government Insurance, says the changes will close loopholes that left some people unable to sue.

One change would allow an innocent party or family to sue for pain and suffering or bereavement damages if an impaired driver was killed while causing a collision.

Injured people would also be able to sue if they were hurt by someone fleeing from police or street racing.

The government also aims to update amounts paid for living expenses and to cover costs of special equipment such as wheelchairs.

In an interview with, Toronto personal injury lawyer Darryl Singer says in the grand scheme of auto insurance claims, the proposed changes are largely insignificant.

“My initial thought is that it’s legislation that has a minor impact on the everyday person,” he says. “I don’t think that these changes, even if implemented in Ontario, would help the majority of people.”

In Ontario, the family of an impaired driver killed while causing a collision cannot sue for pain and suffering or bereavement damages, says Singer, but they can claim accident benefits.

“There is a death benefit and funeral expenses that can be claimed by the family against the driver’s own insurer,” he says, noting the issue is not black and white. “They have the right to bring an accident benefits claim, but the insurance company may defend it on the basis of an exclusion due to impairment.”

Singer says, “To me, there are such a small number of cases that would fall into that category … I don’t think it would make a big difference.”

But that doesn’t mean there isn’t room for change in Ontario’s auto insurance landscape, says Singer.

“The changes that need to be made in Ontario are to reduce the statutory threshold back to where it was years ago,” he says. “In August, the government again increased the statutory deductible. We’re going in the wrong direction.”

Due to the recent changes, the deductible is now $36,540 on all awards under $122,000, says Singer.

Legislation to make the changes in Saskatchewan will be introduced this fall, but likely would not be passed until the spring after the provincial election on April 4.

– With files from

Stay off social media to keep credibility intact

Despite how common it now is to see orders for the production of material from social media sites — with the content to be used as evidence — plaintiffs continue to let their guards down online, putting their credibility in danger, says Toronto personal injury lawyerDarryl Singer.

One recent case, Tambosso v. Holmes, 2015 BCSC 359 (CanLII), saw a woman’s claim for hundreds of thousands of dollars in damages largely rejected by a judge who found the contents of the woman’s Facebook page to be “completely inconsistent” with her testimony.

The woman was suing for damages as a result of two car accidents — one in 2008, the other in 2010. The case details claims of several injuries allegedly suffered by the woman, including psychological ailments such as “post-traumatic stress disorder, depression and mild traumatic brain injury,” reads the decision.

Evidence put forward by the defence included more than 100 pages from the woman’s Facebook account, showing her in numerous social settings with friends.

“I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a ‘homebody’ whose ‘life sucked’ and ‘only had friends on the internet,’” Justice Robert W. Jenkins writes inTambosso.

Singer, who was not involved in the case but commented on the topic generally, says there was a time when an individual’s online persona didn’t play a role in the courtroom — but that time is over.

“It’s standard practice now when clients go to discovery for them to be asked whether they have a Facebook account, a LinkedIn account, an Instagram account, a Twitter account. It’s standard for them to be asked not to delete anything from that day forward, and they may or may not be asked to produce copies of certain photos,” says Singer.

That said, blanket access to a Facebook page is not the norm, as discovery is not meant to be a “fishing expedition,” adds Singer.

“What I tell my clients from the day they come into the office and retain me is you need to be very, very careful about what you post on social media if it’s inconsistent with what you’re going to say under oath,” he says. “If a client says they used to go out dancing every week but can’t do so since their accident, but Facebook photos show they’ve been out every second weekend at clubs with friends, that’s going to harm their credibility and destroy the case.”

In fact, Singer says it’s best if plaintiffs refrain from posting altogether.

“It used to be that insurance companies would hire private investigators to determine that things you say you can’t do you’re actually doing — and they still do that — but now sometimes all they have to do is look at social media accounts,” he says.

Privacy settings do not always mean a post will remain private, adds Singer, who says there is “always a way” the page can be accessed.

The digital age has not necessarily changed Singer’s tactics in handling such cases, but social media “adds an extra layer” of information to warn clients about.

“We tell them they may be followed by a private investigator, and now we tell them about the risks of social media. I don’t think it’s any different — it’s just a digitized version of the analogue form, which was a private investigator following you in a car,” he says. “People can be incredibly careless. They think they’re only posting it for friends. I’m constantly amazed at how many people let their guards down.”

Law Practice Program a valuable resource for students

As debate continues around the benefits of Ryerson University’s Law Practice Program, Toronto personal injury lawyer Darryl Singer — who worked as a mentor and assessor for the recently completed inaugural session — tells Law Times the quality legal skills gained by participants cannot be overlooked in discussions around the program’s merit.

The program, introduced by the Law Society of Upper Canada in the fall, was designed to address the growing shortage of articling positions in Ontario and offers law students a quicker path to qualification through four months of skills training and a four-month articling requirement.

Referencing his first-hand experience with the program, Singer says it has been a resounding success.

“As a lawyer old enough to remember my articling period preceding a mandatory four-month bar admission course covering eight distinct subjects and who articled at a time when true mentoring still existed, I am not alone in witnessing a decline in the educational, practical, and professional standards of many newly called lawyers,” he writes in Law Times. “This is not to suggest the sky is falling, but that the Law Society of Upper Canada used to have more stringent quality control over new calls.”

The current situation, he writes, is a “failing on the part of the law society in disbanding the old bar admission course,” and also a “failing of a legal industry driven by billable hours and greater economic pressures than ever before with the result that it is more likely to view an articling student as a profit centre rather than as a mentor’s contribution to the future of our profession.”

Singer says the student participants worked through a series of real-life experiences like client intake interviews and negotiation; argued in actual courtrooms; and dealt with share-purchase agreements, among other things.

“The students carried numerous files in different areas of law simultaneously. Built into the program were very real time constraints and law firm demands,” writes Singer. “With all of the students in the same program, it was easy to assess them comparatively, unlike with articling. It was a rewarding experience to see students in September who were shy and unsure with varied legal and life educational backgrounds develop by December into cohesive teams with similar experiences and feeling confident and certain.”

As for those concerned about graduates having to pay back student loans and the lack of paid student-at-law positions, the reality is what it is, writes Singer.

“Further, high student debt load combined with a dearth of well-paying jobs is certainly not unique to law students,” he says. “The Law Practice Program’s existence does nothing to exacerbate the situation.”

Singer says the program is so valuable that one could even advocate it should become mandatory in the manner of the old bar admission course.

“We could then reduce articling to the four-month work placement currently tacked onto the end of the Law Practice Program,” he writes. “If we want to maintain self-governance and public confidence in our profession, we need to ensure more than just a passing standard of uniform skills training. In that regard, the Law Practice Program is a positive step in that direction.”


Resist making promises you can't keep

The plaintiff personal injury business is more competitive than ever. Thus, when meeting with a potential personal injury client for the first time, you may well be tempted to make representations as to what you think the case is worth or how quickly you can settle it. I can only assume from the number of times I hear potential clients telling me about their consultations with other firms that this desire to make promises to the clients is rampant.

I am urging you to resist the temptation to make such comments, as your clients will surely be disappointed at the end of the day, which will lead to other headaches (fee disputes, Law Society complaints, negative social media reviews, etc.)

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

  1. How much money is my case worth? (I don’t know).
  2. How long will it take until we settle? (I don’t know).

You may be tempted, knowing the client is shopping around, to land the client then and there by telling them what they want to hear, or what you may actually believe to be the case. I will tell you, however, that you would be wrong to do so. This is simply because at the initial client interview it is impossible to know.

At the outset of the case, you will only have the client’s perspective. You will not have yet heard the position of the adjuster for the target insurer. You will not have reviewed the medical records of your client’s pre- or post-accident treatment. You will not have yet had the benefit of their income tax returns or other supporting documentation.

Oftentimes, at the time the client signs your retainer, you may not even have the police report of the accident available. And as in all litigation, what your client tells you is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Quantifying damages in a personal injury case is more art than science; oftentimes abstract art at that.

Here are just some of the factors at play in determining the value of your client’s lawsuit:

  • The nature and extent of the injuries. Under the Insurance Act in Ontario, not all injuries are compensable. Recent case law from the Superior Court of Justice indicates that the bar to meet the statutory threshold is on an upward trend. This is good news for insurers, but bad news for you. If your potential client shows up at your office and thinks his sore neck and back pain is worth six figures, and you either by representation or omission, allow him to leave thinking he might get something near what he has in mind (remember that what is in his mind is not grounded in the realities of the law but rather his emotion and sense of moral certainty), you are setting the stage for a disgruntled client before the case is even underway.
  • What your client’s own medical practitioners write in their notes about her injuries. For example, your client may tell you that she is in constant pain, but her family doctor may use words such as “minor” in her clinical notes or, worse, treat the client’s injuries dismissively. This will definitely hurt your case.
  • How often your client attends for treatment. Many clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time; or (iii) they can no longer afford to cover the out-of-pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Their failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding. Yet, whether or not they continue to attend and at what frequency are factors out of your control.
  • If your client has a potential claim for lost income, the amounts on which they filed and paid tax in previous years or can actually prove through source documents. This is especially acute if they are in the service industry, as a large portion of their real income is derived from tips, yet their income tax returns rarely reflect this; similarly with self-employed small business owners (or those who work in “cash” businesses”) where true income loss is significantly more than would appear from the pre-accident income tax returns.
  • The statutory deductible. The Insurance Act mandates a $30,000 deductible on general damages on motor-vehicle-accident-related personal injury cases. This amount is actually increased north of $36,000 as of Aug. 1, 2015). Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount. Moreover, clients generally do not understand this.
  • The client’s own evidence at examination for discovery or trial or in statements given to doctors or insurers, which experienced (jaded) personal injury lawyers know is often very different than what the client has told us at the time we are retained.

Also keep in mind that what you think of as the value of the case is usually the amount of the cheque the insurer will write, while the client is really only concerned with the net in their pocket. From whatever amount you obtain, you will deduct legal fees of about 30-35 per cent (plus HST). In addition, disbursements incurred by you are over and above the fees. It is not unusual for me to incur $5,000 for a case worth only $20,000. Thus there is often a significant gap between the amount of the settlement and the actual dollars going into the client’s jeans.

Then there is what I call the wild cards. These have nothing to do with your client’s injuries, the state of the law, or for that matter your legal acumen.

  1. The target insurance company. Some insurance companies have taken a very hard line on all soft tissue injury cases that do not have significant provable lost income attributable to the injuries. I have been told more than once in mediations with a certain insurer that they “would rather spend $100,000 on legal fees before paying a plaintiff $10,000.” They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
  2. The particular adjuster who is responsible for deciding how to handle the file. Even “good” insurance companies, who settle early and often, employ certain adjusters who take a more aggressive approach.

As for the length of time, no matter how fast your office works to move a case forward, you will inevitably be stymied by the bureaucracy of a large insurance company, lawyer’s schedules, your own schedule if you are running a high-volume practice, not to mention the inherent systemic delays of our court system. Accordingly, you should not suggest a time frame in which a case may settle.

For all those reasons, it is almost impossible to give a client an accurate picture of how their case will shake out when you first meet. As such, resist the urge to lure clients with promises of golden tickets and the chocolate factory tours. Instead, focus on empathizing with your client’s situation while leaving them with the indelible impression that you have the knowledge, skills, and experience to give them the right advice at the right time.

If personal injury law is not within your areas of expertise and experience, you are best to refer the file to a lawyer who does have that experience. If you do not regularly practise in personal injury law, you likely lack the requisite knowledge to properly advise the client, understand the process (which has its own conventions and rules of thumb amongst the bar), or properly assess the case.

Further, a personal injury lawyer’s ability to get small- to mid-size cases settled is predicated as much on his or her relationships with the adjusters and defence lawyers as with that lawyer’s skills. At the end of the day, this is a people-driven industry and reputation counts. Being an unknown entity is a further disservice to your clients. You also may not understand the lay of the land at various insurers and how they operate, knowledge integral to a lawyer’s ability to take on the right files and obtain a decent result for the client.

Fortunately, in personal injury cases, there is incentive for non-injury lawyers to refer to experienced injury lawyers. Referral fees are the norm. So save yourself and do the right thing for your client by referring the file on. You will be rewarded at the end of the day without having done the hard work or laying out the disbursements.

And for those of you who are like me and handle large volumes of personal injury files, there really is enough business to go around. There is no need to try and get business in the door by making promises you cannot live up to, and potentially open the door for negligence claims and Law Society investigations.

When I teach practice management courses to lawyers and law students, I always say that the law part of being a lawyer is easy. If you can get clients in the door, and manage their expectations, you’re 80 per cent of the way home. The initial client interview is when you set the tone for your client’s expectations. I would rather have a new intake walk out the door than get their signature on the retainer only by promising them what they want to hear.

Apology Act useful tool for diffusing litigation

A recent Superior Court ruling highlights the usefulness of the Apology Act as an advocacy opportunity for the defendant’s counsel, Toronto personal injury lawyer Darryl Singerwrites in Law Times.

The aim of this fairly recent piece of Ontario legislation, writes Singer, “was to allow a potential defendant to express remorse or regret without fear of such comments precluding a defence on the merits and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation.”

In the recent case of Simaei v. Hannaford, the plaintiff wished to use an apology from her former employer “as a quiver in the arrow of her case,” says Singer. However, the defendant’s lawyers argued the court should strike that part of the statement of claim as being prejudicial to her, as well as vexatious and an abuse of process.

Master Donald Short agreed, citing the provisions of the Apology Act that mandate that a party cannot use an apology made in good faith against the other side in the context of the litigation, and also suggested the court strike the portion of the pleading referring to the apology.

“In light of the wording of the Apology Act, pleading the apology goes nowhere because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault,” writes Singer.

The lesson for lawyers to draw from this decision, says Singer, is the discussion by Master Short of this relatively unknown statute.

“Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, underscored the virtue of a strategic apology when he noted: ‘My personal involvement in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution.’”
Singer, who concurs with Short, says that in his experience over more than two decades of litigation, “a properly timed and genuine expression of remorse can avert a lawsuit or mitigate the eventual cost to the defendant of settling the lawsuit.

“Plaintiffs often just want someone to hear and understand them. As counsel for a potential defendant or for you if you are dealing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars,” writes Singer.

System 'stacked' against plaintiffs in MVA litigation

Plaintiffs in personal injury actions arising from motor vehicle accidents face an uphill battle in court, as there are five main ways in which the case is stacked against them from the get-go, Toronto personal injury lawyer Darryl Singer writes in Lawyers Weekly.

The first challenge, writes Singer, is the ‘statutory threshold,’ as merely being injured in an accident caused by someone else does not automatically entitle a person to sue for pain and suffering.

“The injuries must meet what is called the ‘threshold.’ The plaintiff must have suffered a ‘permanent serious impairment of an important physical, mental or psychological function.’ Most of my personal injury cases involve an argument over whether or not my client meets the threshold.”

Plaintiffs then face the threshold motion, writes Singer, as s. 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award.

“This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.”

Third, a statutory deductible on general damages for pain and suffering, he writes, is also set out in s. 267.2 (1) of the Insurance Act.

Due to recent amendments to the Act, for all accidents which occur on or after August 1, the deductible is now $36,540 on all awards under $122,000, says Singer, with jury awards reduced by this amount.

“When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.”

Also, he adds, while the named defendant is the person whose vehicle is responsible for causing the accident, it is their insurance company who pays the lawyer and any damages award.

“The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.”

Finally, the unsuccessful party in the trial is also responsible for paying a significant portion of the winning party’s legal costs, writes Singer — with costs awards commonly exceeding $100,000 for a typical personal injury jury trial.

“These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver.

“The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.”