Articles

Since its inception over 200 years ago, the Small Claims Court (often referred to hereinafter as the “Court”) has generally been considered the forum for people to resolve small contractual disputes, and although the Court will always remain contract-centric, it is also a viable forum to resolve personal injury claims, which this article will explore.

This article explores the many challenges facing a claimant and their lawyer when their retainer agreement is contingency fee based and offers to settle are expressed in “all-inclusive” terms. These challenges include the need to reverse engineer the all-inclusive offer so that it can be broken down into its constituent elements before additional math is required to calculate the contingency legal fee owing to the lawyer, and finally the need to make any additional reductions in order to be able to explain to the claimant what their net recovery will be from the all-inclusive settlement offer. The article concludes with the suggestion that the complex recursive math required to do a proper calculation is best left to a software application, highlighting that one is made available on-line at 360Mediations.com

There are many issues that arise when the parties attempt to resolve the legal fees and disbursements to be paid, if any, during a mediation. Costs have to be negotiated just like all the other elements of the case. Disbursements are often hotly debated, and this article takes a closer look at how disbursements are treated, concluding with a helpful chart that defines how various disbursements are categorized under the legislation and treated by the courts, to help guide the parties through their settlement negotiations.

It has long been established that absent some unusual circumstances, parties engaged in without prejudice settlement discussions (whether it be through mediation or otherwise) cannot lead such evidence at trial until after the verdict (provided of course that those without prejudice discussions are relevant, such as for assessing costs).  Recently the court in Isenberg v. Erem, 2020 ONSC 444 confirmed that this privilege extends to pleadings as well, and clarified that it is not necessarily every reference to “mediation” that must be removed: but rather, just those paragraphs touching on what was discussed during mediation.

Mediated disputes generally share the same essential elements: an approach that is civil, courteous, reasoned, and full of compromises. Mediation of long term disability (“LTD”) claims are no exception, but they do give rise to some inherently unique issues that set them apart from their oft-related personal injury counterparts, and these differences warrant hiring a mediator astute to these nuanced variations.

– An imperfect solution to a complex resolution. Leading into April 2019, and only months apart, two appellate courts (Alberta and Ontario) raised serious questions about the efficacy of imposing the rule against overcompensation on plaintiffs who negotiated favourable partial settlements.  Notwithstanding these two appellate courts effectively lobbying the Supreme Court of Canada to intervene, Read More …

Parties involved in a motor vehicle accident claim have a very special statutory right to mediate that isn’t available to any other civil litigant: it shouldn’t be taken for granted.

Intuitively, prejudgment interest should be something that is very easy to calculate for Ontario litigants involved in civil disputes: the reality, however, is that it is laden with many complex parts and nuances. It could have, and should have, been made easy, given that not too many lawyers and judges are adept at math, but Read More …