The Art of Written Communications with the Court

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Why you want to hire Browne and Associates Legal Services Prof Corp to draft your claim/defence/motion!

Pleadings are often mentioned in legal proceedings, mostly giving rise to a perplexed look from the individuals involved in pursuing the legal action. What is a “pleading” and why does it matter? Do you want one, and what type of pleading works best? What do you want to say to the Court and how do you say it? Read more… “The Art of Written Communications with the Court”

Choosing the Advocate that is Right for You

How Do You Find Information About a Lawyer or Paralegal?

So, you decided to hire a legal professional.  This is a daunting task.

First, check to see that your legal professional is listed in the Law Society of Ontario directory.  If their name is in the directory, they are licensed with the Law Society of Ontario and are able to provide you with legal advice or legal services.  If their name is not listed, they are not licensed and likely not authorized to provide the services you are seeking.

Second, check the website of your prospective choice.  How much information does the website provide?  Is there a contact number?  Are there office hours?  Does there appear to be a physical office?  Does the prospective hire provide legal advice or legal services in the areas of law that you need help with?  Their website should state clearly what types of issues they could help you with.

While it is not necessary to have a physical office, the Law Society of Ontario does have specific requirements for those who choose to work from home or in shared office space.  Short term or hourly rental spaces, such as Regus or Zemler “office in a box” boardrooms, do support occasional meetings for a legal professional meeting with you in your community.  However, such space may not be appropriate for a long-term relationship.  Legal professionals are obligated to maintain strict confidentiality of your records (e.g. a locked filing cabinet, password-protected clouds), as well as to provide a consultation area that is free of distractions.  It should be a space that nobody else regularly enters or has a reason for being in.  Further, not having a physical office limits the way you can interact, drop off documents or meet with your professional in an emergency or urgent situation.

Your prospects website should provide the areas of law that they work in.  If your prospect’s website simply states, “we handle matters in small claims court“, it is not enough.  What kinds of small claims matters can you bring to this person/firm?  Does your prospect offer help with employment situations?  Is the person familiar with construction contracts, such as a ‘renovations gone bad’ type of case?  How about your prospect’s experience in filing claims against an insurance company, such as when your house insurer declines your claim after your roof blew off?

Meeting with Your Legal Professional

Third, how does your prospect present themselves?  Are they boastful of early achievements?  Do they compare themselves with other legal professionals?  Are they dressed so they could hurry off to the nearest night club after meeting with you?  Do they look like they just finished up a paint job at their house and are interrupting that job to meet with you?  Are they playing with their smart phones at any time in your consultation, or do you notice their computer screen opened up to Facebook or Twitter?

Fourth, what is the state of their meeting space?  Many legal professionals meet in private boardrooms or empty offices in their physical location to ensure that your comfort and confidentiality is held in top regard.  Their own offices may be filled with paperwork to the brim, which is not an ideal client meeting space.  Your meeting with your prospective professional should not include the presence of open files, documents, or even closed files piled up on the desk or board table.  If space is an issue, your professional should place these files behind them on the floor or on a shelf outside your view before meeting with you.

Fifth, how does your prospective professional communicate with you?  At the Initial Meeting, they should mostly listen and steer the discussion with questions to help understand the legal issues you are bringing them.  The type of communication style one client prefers may differ from the next.  However, in most cases, your prospective representative should be knowledgeable about your issue, non-judgmental and be willing to explore a number of options that can help you arrive at the right place.

The Importance of Trust, Professionalism and Being Upfront

It is important to identify your goals with your legal representative when you meet with them.  While we are trained for court and often love to litigate, taking everything to court is not always in the client’s best interest.  A good legal professional would ensure that going to court is a last resort, while at the same time securing a strong legal settlement that may not be perfect but would meet your needs.

Your legal professional should be able to discuss fees in a straight forward manner.  There are different ways that fees are charged to clients at Browne & Associates Legal Services Professional Corporation.  There are hourly fees, which are usually limited to research and possibly a limited scope retainer.  A limited scope retainer is when you need help with some of your case, but not all of it, such as drafting a claim.

There are also block fees where each step in a legal proceeding has a flat rate, as well as a monthly retainer fees for ongoing actions that a client may not be able to fund upfront.  Many times, your legal professional will ask for a certain amount of money upfront.  If they do, this money must by law be placed into a trust account and not disbursed to themselves until: (a) work is partially or fully completed; and (b) invoiced.

It is important that you have a trust level with your lawyer or paralegal.  You should be comfortable telling him or her anything that you feel is relevant to the case you are bringing to them.  You should also feel that you are not being judged.  Many people involved in traffic or criminal cases feel badly, but a professional’s job is not to judge you.  Their job is to assist you in resolving the issue.

Most important, once that comfort level is established you should provide all the information they need, or their ability to help you may be limited.  Please see our companion article on your Initial Consultation.

 

Statutory Accident Benefits: After the Accident

What Are Statutory Accident Benefits?

Statutory Accident Benefits (or SABS) provides “no fault” insurance coverage to accident victims after a motor vehicle accident.  You do not have to be a driver of a motor vehicle to receive it.  You can also be a passenger, a pedestrian or using public transit at the time.  The benefits are set out to pay for medical, financial and certain other costs related to your injuries.

SABS is part of a mixed no fault/tort liability system, whereby SABS is the ‘no fault’ benefit.  For those more seriously injured, there is the tort system.  Under tort, an accident victim sues the other driver to augment SABS and to receive other “damages” in tort.  In order to sue, you must meet what the courts call “threshold”, which is beyond the discussion here.

SABS benefits are paid for through your automobile insurance policy.  If you do not drive or carry a policy of your own, you must use your spouse’s policy or the policy of the driver of the vehicle you were in.  If you were a pedestrian and have no collateral coverage, the driver of the vehicle that hit you is the policy you claim against.  If the ‘other driver’ is not insured, you must claim through the Motor Vehicle Accident Claims Fund.

Who Gets Statutory Accident Benefits?

Anybody who was involved in a motor vehicle collision can submit an OCF-3 (disability certificate) signed by a medical practitioner to make a claim.  If somebody died, there is a death benefit available to the person’s direct dependents.  To claim these benefits, one must contact their own  insurance company (or as above stated, the insurance policy nearest you) to request an Accident Benefits Package within thirty (30) days of the accident.

Often, you will meet with a representative appointed by the insurance company shortly after you make your claim.  They will take what is called a Statutory Declaration.  You may wish to consult legal advice before making this statement.  This is a full statement as to what happened, how the accident affected you, what losses you suffered, any witnesses and ongoing medical needs.  The claimant then needs to make an election.

The election is more complicated since September 2010, where prior to one had the choice of electing to claim benefits as an Earner, a Non-Earner or a Caregiver.  After September 2010, the designation was Earner and Non-Earner.  If you are the insured person and you and you paid a special premium on your policy known as ‘optimal coverage’, you have greater entitlements.  If you do not hold a policy of insurance and are a victim, you only get basic coverage.

What is Basic Coverage?

Advocates criticize the new SABS policy because it delivers fewer benefits and they are much harder to get.  After a claim is made, if it is not obvious to the insurance company that you are more seriously injured, you will be placed in the Mild Injury Guideline (MIG).  This category limits your claim to $3,500 in medical/rehabilitation benefits.  At the time this was put into place, those diagnosed with a whiplash II (or WAD II category) or less were placed in this category.  This is based on faulty assumptions that people in the MIG require less time to completely recover.

However, if you have prior medical conditions that can impact on your recovery time, you can provide this information and get removed from the MIG.  This also applies if you can prove there are psychological damages.  Moreover, those that do manage to leave the MIG are only entitled to a combined total of med/rehab benefits and attendant care up to a limit of $65,000.  Prior to 2010, these limits were $100,000 and $35,000 respectively.

Housekeeping and Home Maintenance Benefits and Caregiver coverage have been slashed.  They are only available to persons who are considered “catastrophic” or who purchased ‘optimal coverage’.

What is Income Replacement Benefits?

If you lost earnings due to your accident, there is a one week “deductible” or waiting period.  If you lost more than a week’s earnings, you need to provide pay stubs, tax returns, among other documentation.  You also need to submit an Employer’s Statement if you are employed.  Basic coverage is 85% of up to $400 per week in coverage.  If you purchased ‘optimal coverage’, this can extend to up to $1,000 per week.  These benefits continue for up to 104 weeks, after which you must meet a stricter test of your inability to work.

If you were not working at the time of the accident, Non-Earner Benefits are available if you are unable to carry out your ‘normal activities’.  This is defined as what you were able to do before the accident, when compared to after.  These Benefits are harder to get these days than they have been prior to 2010, but there is a shorter wait period.

How Does Your Insurance Company Test Your Eligibility for Benefits?

Upon making an election, you may start to receive benefits right away.  For medical/rehab benefits, you need to meet with a treatment provider and have them complete a “treatment plan” (OCF-18).  However, sooner more often than later, your insurer will send you for what is called an Insurer’s Medical Examination.  This is covered by the insurance company.  Your costs may be covered in some cases.  You are required to attend these examinations, or you can be cut off your insurance claim for non-compliance.  You will be sent to a medical examiner who has not treated you in the past who will evaluate you for your claim.  A report is then sent to your insurer and your insurance company then sends you a decision as to whether to continue to cover your benefit or to deny it.

In some cases, you may wish to request an IME to take you out of the MIG.  The cost of this is included in your $3,500, so be careful if you wish to do this.  You may also supplement this application with documentation from your own treating physicians.

What Happens if the Insurance Company Denies Benefits or Cuts Me Off?

If you are cut off of your medical/rehab benefits, income replacement benefits or any other benefit, you have the right to challenge the insurance company’s decision.  This is brought through a tribunal called the License Appeals Tribunal (or the LAT).  Prior to the recent changes, the Financial Services Commission of Ontario (or FSCO) handled these disputes.  FSCO still handles claims brought the Motor Vehicle Accident Claims Fund.  The LAT has its own rules of procedure for dealing with disputes for those disputing denials from insurance companies.  The section of the LAT that deals with these claims is called the Automobile Accident Benefits Service (AABS).

If you plan on filing an appeal, it is best that you ensure that you made sufficient claims and/or treatment requests and have undergone treatment.  The date of submission of your denied treatment plan must not be more than ten days of the insurance company’s denial.  In order to be eligible to file an appeal, you must show a treatment plan (OCF-18) was submitted and then denied by the insurance company.  Other costs, such as Housekeeping and Home Maintenance and Caregiver Benefits must be shown be incurred, meaning you paid for them or somebody has taken the economic hit to care for your children.  It is also best if you have your own treatment providers back your claims and put these opinions in writing.

The appeals process for insurance disputes of this kind can be complicated, so it is best to seek competent legal advice from a lawyer or paralegal before proceeding.  Browne & Associates Legal Services Professional Corporation has somebody that can advise in these areas.

 

 

Should I Sue in Small Claims Court?

Something happens.

You are fired from your job, purchase a car from somebody that did not actually own it or loan a friend some money they did not repay.

Your first thought is to file a small claims suit against the person you feel owes you money.

Do I Have A Case (for Small Claims Court)?

As paralegals, we litigate a lot in small claims court.  Small claims court can deal with many, but not all claims, under $25,000.00.  Many times, another body, such as the Landlord and Tenant Board or License Appeals Tribunal have the jurisdiction to deal with your claim.  In many cases, these other forums must be the place you file your claim and not small claims court.  Paralegals can litigate in these other forums and we can tell you if the small claims court does not have the jurisdiction to help you.

Most important, note that many types of actions cannot be decided in small claims court, even those that are not otherwise in the jurisdiction of a tribunal.  Some examples of cases are listed below:

If You Want to Force a Party to Do or NOT to do Something

You cannot take somebody to small claims court to seek what is known as injunctive relief.   If you want to do this, you generally need to file what is known as an APPLICATION to the Superior Court of Justice.  Paralegals do not get involved in these kinds of cases.  For example, if you want somebody to take down a website, sell their condominium or to force a company to re-issue shares to an aggrieved shareholder, these are heard in Superior Court.

Small claims court however can order under limited circumstances something called a Writ of Delivery.  This is usually an order for the return of a specific object, such as a motor vehicle, a musical instrument or even a family pet.

If the Basis of Your Claim is to Order Specific Performance 

This court cannot order specific performance of a third party.  Apart from enforcing a settlement agreement that came out of small claims (or a related forum that is enforceable in small claims court), this is not possible.  However, you can seek damages from breach of contract on a number of grounds (unjust enrichment, breach of contract, interference with contractual relations).  But, a small claims court will not order your employer to give you your job back, nor will they order the company next door to stop polluting your backyard.

Issues That Fall Under Other Statutes with Legislated Jurisdiction 

You might be contesting something under the purview of the Family Law Act or disputing the essence of an estate.  This is also done in the Superior Court or Ontario Court of Justice (Family Division).  The small claims court will not give you your children back.  This court will not resolve issues of equalization between you and a former spouse.  You cannot get appointed to be an administrator of an estate, or set aside a will to dispute its meaning.  However, if a will clearly states that you are entitled to monies under $25,000, you can sue the estate trustee for this money if it is not distributed in accordance to the will.

Construction Liens

Construction liens up until recently were strictly under the jurisdiction of the Superior Court.  However, this is changing by way of the new Construction Act, where small claims court can be the forum to file such liens of value of $25,000 or under in jurisdiction.  This is an evolving process, whereby a dispute resolution process is expected to be fully in place by October 2019.

This list of exceptions is not exclusive.  Contact our office today to see if your case fits the small claims court or another tribunal where we practice.

I Have a Claim Under $25,000.  Should I Sue?

When we determine if we will take on a file, we consider a number of elements in your claim.

First, do you have or can you easily obtain sufficient evidence to bring forward your claim?  Such evidence would include a contract, witnesses, invoices, audio or video recordings, photographs, among other things.  Second, can you directly connect the party you wish to sue as being liable?  Sometimes the answer is easy.  The party is a former tenant, a person to whom you loaned money, a former employer or a municipality.  Other times, it might not be as easily, particularly when a third party caused the party you believe is liable to commit the act.  Third, can you easily find the person you wish to take to court?  This involves knowing the proper name, spelling, last known address, possible occupation, among other things.  Our office can assist you in finding the person to some extent, but there are other factors you need to consider.

Does this person have any assets or a sufficient income to cover the claim?  The person may own their own house, but may have several creditors ahead of you in line if you were to win your case.  They may drive a late model vehicle, but they may be leasing it.  Is your party working?  Do you know if they earn a sufficient income to cover your claim, even if you win?  Is your party possibly bankrupt or involved in a consumer proposal?  This information can be determined through our office to help you determine if it is worth your money and time.

Does My Claim Have Merit?

This is something that needs to be determined.  This depends on the type of case you have, what evidence and if any limitation periods apply.   In general, civil suits have a two year limitation period, but this can differ in some cases.  Often, the answer to whether your case has merit can be determined right away.  As experienced litigation paralegals, we have seen many different types of cases over the years and know how the courts will see them.   When faced with an unusual situation, we conduct case law research to determine if our arguments would be on point.

It is important to go to court with a case that has strong merits.  Some people have come to our office to ask us to sue just to force the other party to back down on something.  Or they want to sue for the principle.  As we have been in court many times, we know that courts penalize parties that bring frivolous, vexatious and meritless claims.  Even a case with good merits can be brought forward and lost, mainly because of the credibility of witnesses, quality of evidence and so forth.  Even if you believe the other party might get intimidated by your lawsuit, many will seek the advice of counsel and call your bluff.

My Case Has Merit and I Want to Proceed.  Now What?

If you wish to proceed with a meritorious claim, Browne & Associates Legal Services Professional Corporation can assist you in many ways.  If money is an issue, we can complete what is known as a limited scope retainer.  That means you might want us to act on part of your action, but not all of it.  We can draft your Plaintiff’s Claim, attend a settlement conference with you if you are already in court or we can help you negotiate a settlement. The costs of full representation will also be discussed with you, as payment plans are available if required.

 

Your Driving Privilege in Ontario

Rights Versus Privilege

As a practitioner, I often attend overcrowded Provincial Offences Courts, where individuals are often charged with driving offences.  If you can get past the line-ups to the front, you can often speak to Prosecutor to arrange a deal.  At the same time, Justices of the Peace explode into a tirade about how driving a motor vehicle is a privilege and not a right.  Reviewing the dockets these days is an amazing test of stoicism.  Dockets show one person after the other charged with “driving while under suspension”, among other related charges.

If you plead guilty to driving while under suspension, the Ministry of Transportation tacks on a further six months of suspension on your license. Defenses for this charge are limited, as this offence is considered a “strict liability” offence.  That means in essence ‘you should known better’.  In theory, all of this makes sense, but in reality this whole concept needs a rethink.

Non Driving As A Disability

I met dozens of individuals who have medical conditions that led to an administrative suspension of their licenses.  If people think this only happens to older people, they are mistaken.  Virtually all of those I worked with were under sixty five, one being a mere twenty-three years old.  Once again, the Ministry enforces this idea about driving a vehicle being a “privilege”, they should understand what this means.  Many of those seeking our representation for getting disability support are unable to drive.  They have a better than average chance of qualifying for the Ontario Disability Support Program (ODSP) because of this.  In many parts of Ontario, not being able to drive is a disability in itself.  It can make you unemployable.

Awhile back, one adjudicator looked me in the eye and asked me to convince her of this, citing “plenty of transit service” in the area.  I readily produced a large package of advertisements copied from newspaper, Internet or other job posting sites, where literally every job demanded candidates have G license and access to a vehicle.  I then ask where this appellant is going to work if they cannot get their driver’s license.  If one thinks the state should not provide for these people, think again.

Geography Versus Privilege

In Niagara (and many other places), those “privileged” to drive are the only ones that can obtain the benefits arising from it, such as a job, a decent income and sense of belonging.   Employers have said that drivers are more reliable, with of course no data to back it up.  I am told that people with no license likely lost it through drunk driving or criminal activity.   The truth is most license suspensions are not due to drunk driving, but for unpaid fines and medical reasons.  Many of my clients were not aware they were suspended because they did not get the letter in the mail.  In an average community, including Niagara Region, thirty percent of its residents over the age of sixteen do not drive.  In larger communities like the Toronto area, this figure is much higher.  Others do not drive because they cannot afford to do so.  There are few jobs available to those that cannot or do not drive.

Many candidates are screened out as a certain kind of “riff raff’, a long held belief about workers that do not drive.  However, these are discriminatory requirements in place with almost every job, not just jobs where there is a bone fide reason to require a license.  As a result, the majority of people with disabilities, students, older persons and low income persons are trapped into this legislated cycle of poverty, perpetuated by this accepted prejudice and legalized discrimination.

Marginalized in Their Communities

It is not just employment where non-drivers are discriminated against, but many are also left out of their communities.  In order for a driver to remove their lens of “privilege”, they should leave their car at home for more than a month.  While doing so, they should try to carry on their lives without driving.  Day to day tasks can suddenly become daunting.  The idea of transporting children to school, dropping them off at daycare (which may or may not be close by or at a bus stop), going to work and doing one’s job becomes a struggle.  After work, reversing the route and picking up a few groceries for the evening’s meal becomes unthinkable without a vehicle.  First, it is not likely that you will get home a reasonable hour, but you will likely be worn out as well.  Such workers cannot even dream about going out again to take in a movie or work out at the gym or YMCA.  Repeating this Kafkaesque routine everyday soon gets old, whereby one no longer wants to do as much.

Imagine If …

As a non driver, trying to do a grocery run on your way home is out of the question.  You do not have the time, bus fare or flexibility in doing so.  You will find you have to take up one of your precious weekend days to do this.  For those without a vehicle, grocery shopping is a bigger chore than it is for those that drive.  You can only go to the grocery store every week or two.  Shopping at multiple locations is tricky, particularly without a trunk to store your earlier purchases in.  Tough luck if there’s a special in the meat department at one store and a special on produce in the other.  You can’t go to both.  Drivers simply put the groceries from the first store in their trunk, then go on to the next one and be home in an hour or two.

Research has shown that non-drivers end up spending more money on the same products that drivers do, simply because of this limitation.  Once you finish the groceries, you need to get them home.  You only have two hands, so taking them on a bus might be impractical, especially if you live a long way from the grocery store.  Many phone a cab.  Cab companies, while charging an arm and a leg for their service, are not always reliable transportation.  People who work shifts, take groceries home, or need transport for medical reasons, often find themselves waiting for quite some time for a cab. CT Scans, dialysis and other non-emergency medical trips are required on a 24-hour basis.  It is not unheard of for people to wait at a hospital, a grocery store or elsewhere for two or more hours in some communities to get a ride home.

But It Costs So Much to Drive!

I often hear drivers complain about the cost of gas, insurance, maintenance and parking for their cars.  However, it is more likely than not that they have secure, better paying employment that pays them enough to cover expenses.  It is difficult for non-drivers to have empathy for drivers over expenses.  It costs more on a per kilometer basis for cabs, private drivers, Uber and other private methods of transport.  Public transport is sometimes available, but you are trading large amounts of time for the supposed savings.  For these reasons, non drivers go to far fewer places than drivers do.  In effect, our government, likely through the heavy influence of the auto industry, driving has become a necessity.  This is not just for getting around, but for maintaining one’s dignity and belonging to one’s own community.   It is difficult to develop an attachment to one’s community if they cannot get around in it.  Most “free” community events are held on statutory holidays, where the transit service is limited or non existent.  Non drivers don’t have the same ability to access the ‘informal markets’ that drivers do:  garage sales, Kijiji or a swap service.  Many consider if they are giving an item away for free, the person wanting it should pick it up.  Paying for a delivery service can be prohibitive.

The community does not accommodate non drivers because they don’t have to.  Non-drivers are a low hanging fruit that can easily be swept away with ignorance and disregard.   However, it is more difficult for us to consider the very interests that want to force everybody to buy a car, despite thirty percent of the population not driving and eleven percent in zero car households.  I have encountered many members of that eleven percent. Very few are gainfully employed and if so, they are substantially under employed.  If they are young enough, they make plans to leave the region to go elsewhere, because they see others older than themselves stuck in their communities.

Privilege Versus Equity

If the Ministry of Transportation wants to maintain its right to decide who can and cannot drive, there needs to be meaningful, effective and reliable alternatives to those that cannot or do not drive.  Everybody may not have the “right” to drive, but all should have a right to travel and get around their communities in a reasonable period of time.  Employers should not be allowed to require candidates for employment to own a vehicle and drive.  An exception would only be if the employer were seeking courier, cab drivers or the like.  Employers that find it easy to overlook those that don’t drive should find a way to ensure everybody otherwise qualified for the jobs could work there.  It should cost employers to deny access to jobs in this way.  If they complain about it being ‘inconvenient’ to have their employee not able to hop in their cars and go wherever, they should pay for this.  In other words, they should make it work.  Put the onus on the company to ensure all of its staff can do the essential duties of the job.   Municipalities should also enforce the human rights code and AODA if cab and private transportation companies want to keep their own licenses.

Graduated Driving As A Barrier

For some who have been non-drivers for a long while, the graduated system in place makes it difficult particularly for older learners.   Younger people who still have access to their parents or older siblings have somebody that could accompany them for practice sessions for the G2 road test.  Older people, particularly those that live alone, have less access to somebody like this.  Exceptions should be made for those that have driven before or who are older than thirty.  If the powers that be think that upgrading RELIABLE alternative transportation for communities costs too much, they need to re-think their policies.  Costs are currently downloaded on those who are left behind, those determined by the Ministry not to drive, or those that choose not to drive.  It costs money not to work, just as it costs a community to have too many people that cannot access jobs.

Technology Versus Marginalization

The issue about having or not having a driver’s licence may soon become moot.  Over the past few years, successful test models of self-driving vehicles have been entering the community.  Like Uber, Airbnb and Amazon Prime, this technology will disrupt our community’s current prejudices and way of life.  Many people whose livelihood depends on being behind the wheel will soon find themselves marginalized.  Those who weren’t able to drive will gain access to their communities.  Topics of discussion will become more nuanced and varied, as opposed to the usual complaints about the price of gas, the latest head on vehicle crash or the latest model Ford is putting out.  There will be no more communities where two-thirds of the businesses within either make cars, fix cars, paint cars, sell cars, lease cars or use cars to drive people or things around.  We will all be forced to pursue other interests.  Even some members of my profession that focus on Highway Traffic offences will have to re-think their vision of legal advocacy.