Alix Digout – May 2018
Most people injured in an accident are unfamiliar with the legal aspects of a personal injury claim. Claims that are resolved within a short period of time might not involve a lawsuit. However, in certain cases a lawsuit is required to preserve the ability to pursue a claim for damages. Below is a brief overview of the litigation process for personal injury claims.
File a Notice of Action and Statement of Claim:
For most claims, the Limitation of Actions Act requires a Notice of Action and Statement of Claim (lawsuit) to be filed within two years of the date the claim is discovered (usually the date of the accident). Exceptions to the two-year deadline include claims related to sexual misconduct and those involving the municipal, provincial or federal government.
Compile an Affidavit Disclosing Documents:
Once a lawsuit is filed, the parties are required to exchange disclosure. In personal injury matters, documents are compiled into a book called an “Affidavit Disclosing Documents” or ADD. Documents included in the ADD include medical records, photos, financial records, and other relevant material that is not protected by solicitor-client privilege. Before documents are disclosed to the other side, sensitive material within your medical files, not relevant to your claim for damages, is removed.
Discoveries are a fact-finding step within the litigation process. This is an opportunity for the parties to ask questions to the other side under oath. This process helps determine liability (who is at fault) and the impact of the injuries on an individual’s life. For example, questions may be asked about the accident and how it happened. Injured clients are generally asked about their life before and after the accident, the impact of the injuries on their employment and ability to maintain their home, and their treatment and recovery. Your lawyer will meet with you in advance of the discovery to prepare and let you know what to expect on the day.
During the period between filing a lawsuit and trial, interim motions are sometimes required to determine procedural matters. If contested, the parties go before the court to argue for or against the motion in question. At the end of the motion, the court will decide in favour of one party, which may result in a court order. Common motions in personal injury matters include motion for production (compelling the production of documents), motion for substituted service (when you are unable to serve someone) and motion for interim payments (an advance payment of damages).
Judicial Settlement Conference or Mediation:
If negotiations stall during the litigation process, parties can attend a Judicial Settlement Conference (“JSC”) or mediation to help settle their claim. These processes are voluntary and provide parties with a high level of control over the outcome. Even though the parties can attend a JSC or mediation, they are not bound by the settlement offers they give or receive during the conference unless they agree. If an agreement is reached, the terms of settlement are binding and the claim is resolved.
Proceeding to Trial:
The end of all personal injury claims is a trial. However, the majority of personal injury claims settle before trial. A personal injury trial takes place before a judge and/or jury at a Nova Scotia Supreme Court. Trials may deal with liability and/or quantum of damages. Trial dates are often secured years in advance. At the end of the trial, the court will make a decision that is binding upon the parties. This means the parties have little control over the outcome.
Resolution and Payment of Claim:
Regardless of whether your claim is resolved by way of successful negotiations, mediation, JSC or trial, the monies awarded for damages are typically held in trust by your lawyer until you sign a Final Release. A Final Release is a formal acknowledgement that your claim has been finalized and you have no further right to claim against the other party for damages arising from the accident. Once signed, you will receive a cheque from the firm for the balance of your settlement funds, along with a statement detailing what legal fees, HST and disbursements (expenses incurred by the firm to move a file forward, i.e., court filing fees, copies, faxes) were deducted.
While the legal process may seem daunting, rest assured you can continue negotiations and settle your claim at any stage leading up to trial. At MDW Law, we are happy to meet with you for a free consultation to discuss your options when deciding whether to proceed with a personal injury claim.