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.