In Partnership with
‘Not a practice area lawyers want to be dabbling in’
Specific and nuanced, plaintiff-side personal injury law requires skill and dedication from practitioners
Lara Fitzgerald-Husek
Oatley Vigmond
Industry experts
Warren WhiteKnight
Bergeron Clifford Injury Lawyers
Patrick Brown
McLeish Orlando LLP
Lara Fitzgerald-Husek’s practice focuses solely on personal injury law, including motor vehicle collisions, medical malpractice, occupier’s liability, product liability, and long-term disability disputes. For Lara, the most rewarding aspect of her work is helping clients achieve the best possible outcomes to resolve their claims. Lara joined Oatley Vigmond in 2015 after practising insurance defence at a leading national firm. The experience of representing many of Canada's largest insurers has provided Lara with valuable insight into personal injury claims, allowing her to better serve her clients. Lara is a Board member with the Brain Injury Society of Toronto.
Oatley Vigmond
Lara Fitzgerald-Husek
Warren WhiteKnight's law practice is confined solely to representing injured individuals and their families. Warren and his firm practise throughout Ontario and North America but with a particular focus on eastern Ontario. Warren lives on a farm with his wife and four young children where they raise and keep chickens, pigs, ducks, turkeys, horses, ponies, donkeys, and goats. Warren spends his free time camping, fishing, and hunting with his family, and playing soccer. Warren is a Past President of the Frontenac Law Association and often teaches as an Adjunct Professor at Queen's University Law School.
Bergeron Clifford Injury Lawyers
Warren WhiteKnight
Patrick Brown is a Certified Specialist in Civil Litigation and was voted into Best Lawyers in Canada, listed by Lexpert as Most Frequently Recommended, recognized as an AV Preeminent rated lawyer, and nominated as one of the Most Influential Lawyers in Canada by Canadian Lawyer Magazine. Patrick was elected and acted as President of the Ontario Trial Lawyers Association. He initiated the Coroner’s Review of Pedestrian and Cycling deaths in Ontario and was chosen as the Active Transportation Champion of the Year by Toronto Centre for Active Transportation. In 2018 Patrick was presented with the Safety Award of Excellence by the minister of transportation and the Professional Award from the Ontario Brain Injury Association for his outstanding support of individuals living with the effects of brain injury. Patrick proudly sits on the Steering Committee of Friends and Families for Safe Streets. He is the former director of Cycle Toronto and head organizer of the Vulnerable Road User Coalition of Ontario, which lobbies for new laws to end road violence.
McLeish Orlando LLP
Patrick Brown
“We’ve got to be really cautious about anybody presenting us numbers or what they’re suggesting is a reasonable range on damages for pain and suffering. Make sure that you index them because there’s a dramatic change”
Patrick Brown,
McLeish Orlando
RUNNING THE gamut from recent case law and legislative changes to how inflation is impacting clients’ awards, a recent roundtable discussion tackled the latest trends in personal injury law. A common thread ran throughout the insightful conversation: how critical it is for the lawyers who advance these serious and personal cases to stay up to date on this specific and nuanced practice area.
When the COVID-19 pandemic hit, increased delays occurred not only in civil cases but also in Highway Traffic Act criminal proceedings. Many of these defendants got off as a result of the backlog, and “that certainly opens the door more for us in relation to advancing punitive damages, and it's something that all plaintiffs’ counsel should consider in the right cases,” says Patrick Brown, principal partner at McLeish Orlando LLP.
“If you are going to advance any type of claim where somebody has been criminally convicted or did a criminal offence, the Victims Bill of Rights gives you enhanced cost and allows you to claim for mental distress. It specifically also says the penalty that was given in the proceedings is only a factor when considering punitive damages. Sometimes people aren't aware of that piece of legislation, and it really does give a little extra on some of these claims where the conduct is egregious and reprehensible.”
“Plaintiffs’ counsel need to be mindful about arguing strenuously that this is now representative of an amount that should be awarded in the event of a loss of a loved one where there is this loving familial relationship”
Lara Fitzgerald-Husek, Oatley Vigmond, on the Moore decision
“Juries are going to have less indulgence for the defence tactics of delay, obfuscation, and confusion. They’re going to want to see streamlined trials; they’re going to want to see trials that make sense”
Warren WhiteKnight, Bergeron Clifford Injury Lawyers
Another hot-button issue impacting personal injury lawyers and their clients is inflation. Clients are hit with a “triple whammy” after an accident: having no income; facing rising prices for basics like housing, food, and gas; and, on top of that, grappling with health-care costs, which rise at a faster rate of inflation than general consumer goods, WhiteKnight notes – factors that are critical to recovery. For catastrophically injured individuals, children, or people with lifetime care needs, a structured settlement is often recommended, but “in this inflationary context, it's important to not just go to your old tried-and-true methods of paying out these large settlements – we need to be creative at this time.”
While certain payments are indexed, the ones that really count for injured individuals are stagnant. For example, the majority of people seriously injured in a motor vehicle accident who are no longer able to work receive a maximum of $400 a week from the insurer-provided income replacement benefit, and that hasn’t been adjusted at all.
“It wasn’t enough to begin with, but in light of recent inflation it’s even harder,” says Fitzgerald-Husek. “It’s made a really difficult situation that much more desperate, and when we have a situation where it’s even farther to get into trial or a pretrial, all of those difficulties have been exacerbated.”
This issue is something that the legislature should take a hard look at, Brown adds. Otherwise people are forced back to work before they’re ready and you've got a much larger claim on your hands if you're on the other side.
Some argue the Moore case is an outlier because of the significance of the relationship, but Brown disagrees. The plaintiff’s daughter wasn’t living with her parents at the time, for example, but losing a loved one is always an incomparable loss and this decision is reflective of that. In fact, it’s a game changer, Brown says, predicting the amounts for these claims will only continue to increase.
Lara Fitzgerald-Husek, partner at Oatley Vigmond, says this is a great example of why injured parties require someone who specializes in personal injury. These claims must be advanced courageously, she notes: “This is really not a practice area lawyers want to be dabbling in.”
Experienced personal injury lawyers know to investigate punitive damages where the circumstances are appropriate, be it in a case where there's been some egregious or criminal conduct by a defendant or even in a long-term disability claim where an insurer has acted in a manner that's contrary to their duty of good faith.
“Don't be afraid to plead those punitive or aggravated damages, even where insurers say, ‘Oh, we don't cover that,’” Fitzgerald-Husek says. “It's still something that should be claimed where the circumstances really require it.”
Among shifting caps and thresholds, there is one silver lining in the doom and gloom of inflation, Fitzgerald-Husek notes – the cap on general damages is now close to $439,000. “That's something to be mindful of in negotiating settlements on behalf of injured individuals,” she says. “We've got to be adjusting the amounts that we're claiming – an award that may have been worth $150,000 a few years ago would now need to be adjusted up accordingly.”
For Warren WhiteKnight, partner at Bergeron Clifford, now more than ever it's incumbent upon plaintiffs’ counsel to get inside the mind of the jury, as jury panels are no longer struck exclusively due to the pandemic and reconvened throughout 2022.
“Juries are going to have less indulgence for the defence tactics of delay, obfuscation, and confusion. They're going to want to see streamlined trials; they're going to want to see trials that make sense,” WhiteKnight says. “If it's a straightforward rear-end collision with a catastrophically injured individual, the jury's going to be saying: Why are we here? Why is this defense lawyer taking three weeks to question this person? Why am I hearing from 20 medical witnesses? Plaintiffs need to use that new old reality to the advantage of the injured individuals and their families.”
Clients may require something more flexible, “such as a trust or another form of non-structured annuity with a higher rate of return on investment,” WhiteKnight says. “You have to be very creative about how to shepherd limited insurance funds. And that comes with yet another demand on our plaintiff-side personal injury practice, which is that the demands we made of insurance companies five years ago are not appropriate now: they need to rise fast enough to outstrip the rate of inflation.”
Read on
Brown agrees, adding, “We've got to be really cautious about anybody presenting us numbers or what they're suggesting is a reasonable range on damages for pain and suffering. Make sure that you index them because there's a dramatic change. And if you don't, you're going to get burned because they're using the indexed amount for the deductible.”
When it comes to case law, the award in Moore v. 7595611 Canada Corp. – $250,000 to each parent of a young woman who died in a fire in a house where she was renting a room – sets a new watermark for loss of care, guidance, and companionship claims. Upheld on appeal, Fitzgerald-Husek says it’s a positive step as jurisprudence in this intangible area makes it much more difficult for insurers and defendants to claw back from that benchmark. Going forward, it also alleviates a difficult client conversation where she has to explain to her clients “that the figure available at law was insultingly low.”
“It's still too low but at least it's something – it's moving in the right direction,” Fitzgerald-Husek says. “Plaintiffs’ counsel need to be mindful about arguing strenuously that this is now representative of an amount that should be awarded in the event of a loss of a loved one where there is this loving familial relationship.”
McLeish Orlando Lawyers LLP is a personal injury law firm of experienced lawyers dedicated to representing people who have been seriously injured and family members who have lost a loved one through the negligence of others. Our lawyers have successfully represented people who have suffered brain injuries, spinal cord injuries, and serious orthopaedic injuries. Our goals are to achieve a fair settlement and the best possible outcome for our clients while at the same time shielding them from the potential stress that comes with advancing claims with an insurance company. The firm was established in 1999 and is a recognized leader within personal injury and wrongful death law. McLeish Orlando holds an AV Preeminent rating from Martindale-Hubbell and the highest ranking – Most Frequently Recommended – in the Canadian Legal Lexpert® Directory. Seven McLeish Orlando lawyers are listed in Best Lawyers in Canada 2023. Additionally, McLeish Orlando has consistently been named as a Top Personal Injury Law Firm by Canadian Lawyer Magazine since the inception of the award in 2011.
Find out more
Bergeron Clifford LLP is a leading regional personal injury law firm in Eastern Ontario. Ted Bergeron and Chris Clifford co-founded the firm in 1999. Today, they are a team of seasoned trial lawyers with a proven track record. Many cases settle out of court, but some cases need to be taken to trial. Bergeron Clifford prepares every case for trial so that their clients have the best options – in court and out of court. Bergeron Clifford has been consistently ranked as a Top 10 Injury Law Firm in Ontario by Canadian Lawyer Magazine. They work with a variety of injuries and are highly experienced with cases marked by catastrophic injury, including brain injuries, spinal cord injuries, amputation, disfigurement, chronic pain, birth injuries, and psychological injuries. With office locations across Eastern Ontario, they are prepared to work wherever is most convenient for you.
Find out more
Oatley Vigmond is a home for only the brightest, most creative, and most productive people in the profession – people with sound judgment, a passion for the work we do, strong people skills, and a devotion to acquiring the best possible outcome. The standards we keep require no less. When you or someone you love has been seriously injured, life as you know it can be instantly turned upside down. Amid all the confusion and stress, one of the most critical elements you’ll need moving forward is a strong advocate on your side, who understands the future you face and knows how to navigate it with expertise and compassion. Right from the start, we’ll become a core member of your care team, making sure you understand the legal, insurance, and medical process, and ensuring you have access to the care and support you need during this difficult time.
Find out more
In Partnership with
‘Not a practice area lawyers want to be dabbling in’
Specific and nuanced, plaintiff-side personal injury law requires skill and dedication from practitioners
Read on
Patrick Brown
McLeish Orlando LLP
Warren WhiteKnight
Relation Insurance
Lara Fitzgerald-Husek
Oatley Vigmond
Industry experts
Lara Fitzgerald-Husek’s practice focuses solely on personal injury law, including motor vehicle collisions, medical malpractice, occupier’s liability, product liability, and long-term disability disputes. For Lara, the most rewarding aspect of her work is helping clients achieve the best possible outcomes to resolve their claims. Lara joined Oatley Vigmond in 2015 after practising insurance defence at a leading national firm. The experience of representing many of Canada's largest insurers has provided Lara with valuable insight into personal injury claims, allowing her to better serve her clients. Lara is a Board member with the Brain Injury Society of Toronto.
Oatley Vigmond
Lara Fitzgerald-Husek
Warren WhiteKnight's law practice is confined solely to representing injured individuals and their families. Warren and his firm practise throughout Ontario and North America but with a particular focus on eastern Ontario. Warren lives on a farm with his wife and four young children where they raise and keep chickens, pigs, ducks, turkeys, horses, ponies, donkeys, and goats. Warren spends his free time camping, fishing, and hunting with his family, and playing soccer. Warren is a Past President of the Frontenac Law Association and often teaches as an Adjunct Professor at Queen's University Law School.
Bergeron Clifford Injury Lawyers
Warren WhiteKnight
Patrick Brown is a Certified Specialist in Civil Litigation and was voted into Best Lawyers in Canada, listed by Lexpert as Most Frequently Recommended, recognized as an AV Preeminent rated lawyer, and nominated as one of the Most Influential Lawyers in Canada by Canadian Lawyer Magazine. Patrick was elected and acted as President of the Ontario Trial Lawyers Association. He initiated the Coroner’s Review of Pedestrian and Cycling deaths in Ontario and was chosen as the Active Transportation Champion of the Year by Toronto Centre for Active Transportation. In 2018 Patrick was presented with the Safety Award of Excellence by the minister of transportation and the Professional Award from the Ontario Brain Injury Association for his outstanding support of individuals living with the effects of brain injury. Patrick proudly sits on the Steering Committee of Friends and Families for Safe Streets. He is the former director of Cycle Toronto and head organizer of the Vulnerable Road User Coalition of Ontario, which lobbies for new laws to end road violence.
McLeish Orlando LLP
Patrick Brown
In Partnership with
‘Not a practice area lawyers want to be dabbling in’
Specific and nuanced, plaintiff-side personal injury law requires skill and dedication from practitioners
Read on
Patrick Brown
McLeish Orlando LLP
Warren WhiteKnight
Bergeron Clifford Injury Lawyers
Lara Fitzgerald-Husek
Oatley Vigmond
Industry experts
Patrick Brown is a Certified Specialist in Civil Litigation and was voted into Best Lawyers in Canada, listed by Lexpert as Most Frequently Recommended, recognized as an AV Preeminent rated lawyer, and nominated as one of the Most Influential Lawyers in Canada by Canadian Lawyer Magazine. Patrick was elected and acted as President of the Ontario Trial Lawyers Association. He initiated the Coroner’s Review of Pedestrian and Cycling deaths in Ontario and was chosen as the Active Transportation Champion of the Year by Toronto Centre for Active Transportation. In 2018 Patrick was presented with the Safety Award of Excellence by the minister of transportation and the Professional Award from the Ontario Brain Injury Association for his outstanding support of individuals living with the effects of brain injury. Patrick proudly sits on the Steering Committee of Friends and Families for Safe Streets. He is the former director of Cycle Toronto and head organizer of the Vulnerable Road User Coalition of Ontario, which lobbies for new laws to end road violence.
McLeish Orlando LLP
Patrick Brown
Warren WhiteKnight's law practice is confined solely to representing injured individuals and their families. Warren and his firm practise throughout Ontario and North America but with a particular focus on eastern Ontario. Warren lives on a farm with his wife and four young children where they raise and keep chickens, pigs, ducks, turkeys, horses, ponies, donkeys, and goats. Warren spends his free time camping, fishing, and hunting with his family, and playing soccer. Warren is a Past President of the Frontenac Law Association and often teaches as an Adjunct Professor at Queen's University Law School.
Clifford Injury Lawyers
Warren WhiteKnight
Lara Fitzgerald-Husek’s practice focuses solely on personal injury law, including motor vehicle collisions, medical malpractice, occupier’s liability, product liability, and long-term disability disputes. For Lara, the most rewarding aspect of her work is helping clients achieve the best possible outcomes to resolve their claims. Lara joined Oatley Vigmond in 2015 after practising insurance defence at a leading national firm. The experience of representing many of Canada's largest insurers has provided Lara with valuable insight into personal injury claims, allowing her to better serve her clients. Lara is a Board member with the Brain Injury Society of Toronto.
Oatley Vigmond
Lara Fitzgerald-Husek
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Damage awards in Moore
Loss of guidance, care, and companionship
to each respondent
$250,000
Mental distress
to each respondent
$250,000
Future care costs – respondent father
$174,800
Future care costs – respondent mother
$151,200
Rise in deductible amounts
as of Jan. 1
Rise in monetary thresholds
as of Jan. 1
Category
Non-Pecuniary General Damages (Pain and Suffering)
Family Law Act: Loss of Guidance, Care, and Companionship
Family Law Act (Fatality)
2022
2023
$41,503.50
$44,367.24
$20,751.76
$22,183.63
No Deductible
No Deductible
Category
Non-Pecuniary General Damages (Pain and Suffering)
Family Law Act: Loss of Guidance, Care, and Companionship
2022
2023
$138,343.86
$147,889.59
$69,171.36
$73,944.18
WhiteKnight agrees a sea change to a higher range for these awards would be welcome. These sorts of cases “pull at the heartstrings and make the trier of fact put themselves in the shoes of the people suffering the loss. They would feel they should be awarded something that comments positively upon our justice system – and the Court of Appeal has endorsed this approach.”
“We're going to see solid awards from juries and judges going ahead,” WhiteKnight forecasts. “And I hope that becomes the new normal.”
Ultimately the discussion kept returning to the same point: personal injury is not an area where lawyers can lack exclusive focus and still be effective. For injured people or those who have lost someone, advocates who are up to date on the law, follow developments in real time, and know how to advance cases with tenacity are those who will get results.
