There is no question that large companies are powerful and have influence. As an Ontario car accident lawyer, I am reminded every day of the power imbalance between the powerful and the vulnerable. It is the courts and our right to a jury of peers that is the great equalizer - the jury is the final arbiter of disputes between David and Goliath. Although I still believe that jury trials are the best option for a fair resolution of disputes, in Ontario the jury trial has been pervaded to some degree by the influence of large and powerful auto insurance carriers. The Courts must apply the law - and laws respecting the rights of Ontario car accident victims are written by legislators. As we know, legislators are politicians and politicians can be, and often are, influenced by those with the power and resources to influence - in this case of injury law the influential are the large insurance companies.
Unfortunately we have ceded our common law justice system and replaced it with a minefield of laws and regulations that heavily favours the insurance company profits over the rights of victims. Today, in Ontario, victims of car accidents that attempt to find justice in the courtroom among a jury of their peers are forced to be silent about how the auto insurance claims process really works - how it puts profits over people. Below are just some of the truths that the jury is not permitted to know in a car accident injury trial:
1. Insurance. The jury is never told that the defendant has insurance to pay for the claim. This is despite the fact that, in Ontario, automobile insurance is mandatory. Many, if not most, auto insurance policies provide for $1 million in liability coverage. Furthermore, it is the insurance company that hires and pays for the defense lawyer, litigation expenses, surveillance, background investigations on the victim, expert reports, etc. It is the insurance company that decides whether or not to pay a claim or force the victim to a trial. Nonetheless, the insurance company will put on a good show for the jury. Almost always the defense strategy will include having the individual defendant (the driver of the at-fault car) paraded into the courtroom to sit there looking scared and worried about the outcome of the case. Insurance companies routinely do this so that the jury will believe that the individual defendant is also, in some way, a victim that has been dragged through a trial and litigation process. There is nothing further from the truth. The fact is, the individual defendant has had virtually no involvement in the case whatsoever. It is controlled and managed by the insurance company, their adjuster, and their defence lawyers. The insurance companies have in-house lawyers, and law firms that they routinely use to defend car accident cases. Nonetheless, insurance companies and their defense lawyers routinely try to mislead juries and make them think that the defendant has no insurance. The jury will never hear any mention of the defendant's insurance or the policy limits available.
2. The threshold. This is something that most people in Ontario have never even heard about. Thanks to the insurance industry lobby, victims that have been injured in car accidents are unable to obtain compensation for any non-OHIP covered future medical expenses (ie. drugs, physiotherapy, pain management, equipment, etc. ) or even pain and suffering unless, and only if, they are able to convince the judge that their injuries are serious and permanent. In a recent trial, a jury made up of the community fairly and reasonably awarded a 66-year-old victim $75,000 for her pain and suffering after carefully listening to the evidence for nearly 3 weeks. Nonetheless, after the jury verdict was rendered and the members of the jury were discharged, the judge made his own finding that the injuries were not serious and permanent. On that basis, the judge wiped out/erased the entire award for pain and suffering and for future medical. The jury was never told about the threshold and they had no direct input whatsoever on making any finding or recommendation on whether they believed that the victim in fact sustained a permanent and serious impairment. Nonetheless, even the judge acknowledged that the award of $75,000 must have meant that the jury believed that the victim's injuries were permanent and serious. At the end of the day, however, the jury finding was ignored by the judge.
The threshold, like so many other rules in car accident injury cases, exists for the sole purpose of protecting the profits of large insurance companies at the expense of victims. The insurance companies propagate the idea that people bring frivolous claims in an effort to defraud insurance companies and drive up our premiums. Anyone involved in the industry - on both sides - know that this line is such a crock. It is not the victims that are afraid to share all of the facts with the jury and let them decide the merits of a claim. The victim in a personal injury case is forced to divulge personal information about their lives, including their education (grades), income tax records, and medical history and treatment to a jury made up of six strangers. The victim is subjected to surveillance and invasive medical examinations on behalf of the insurance company. The jury is made up of ordinary people and, one would expect that the six people could fairly decide whether a person deserves compensation or not. I certainly believe in the jury system, and feel that the jury can find the truth when they have all the relevant information. I do not think that there is a lawyer in Ontario that would be foolish enough to bring a frivolous case in front of a jury. Let's get real, it's expensive to have a trial, pay for doctors and accountants to attend at trial to testify, etc. A lawyer that takes a case to trial has to absolutely believe in the merits of his case and client. But here's the real kicker-the threshold only exists in car accident cases where the money on the line belongs to some massive insurance company. If you or I were in a dispute over money and brought our case the court, we wouldn't have the benefit of anything like the threshold - no one is looking to protect your hard earned money.
3. The deductible. Here again the big insurance companies have successfully managed to get a law that allows them to to increase profits at the expense of the victim. In short, the insurance company gets to deduct $36,540 (increasing annually) from the pain and suffering awarded by the jury. Again, the jury is not allowed to hear about this or learn anything about the existence of this deductible. At the end of the trial, the jury will be asked to decide how much the victim should be awarded for her pain, suffering and loss of enjoyment of life. The jury will be left with the impression that the value they decide upon will actually be awarded to the victim. In reality, after the jury is discharged and sent home, the judge will apply the $36,540 deductible and enter a judgment accordingly. As such, where a victim is awarded $75,000 by the jury, the actual judgment will be reduced to $38,460. The jury is not allowed to know this because, obviously, the jury would likely increase the award in order to be fair to the victim at the expense of the insurance company.
Despite these challenges in the system, Ontario's personal injury lawyers must continue to be advocates for the injured. At our Ontario injury law firm, we will continue to take cases as far as necessary and through trial where the insurance company attempts to bully victims.
If you or a loved one has been seriously injured in a car accident, make sure you have a lawyer that is willing to fight for you. We offer FREE CONSULTATIONS with absolutely no obligation. To learn more, or to speak with one of our dedicated Ontario injury lawyers call us at 416-900-1070 or toll free at 1-866-234-6093.
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