How to File an Injury Lawsuit in Canada

Calgary Lawyer Explains Discovery, Mediation, Trial Prep

Video Transcript:

Steve Grover: 

If they like my client, more likely than a trial judge will like my client. And why would they want to go to trial then to spend X amount of dollars paying their lawyers when they can settle it and then move on with another file.

Molly Hendrickson: 

What is the process for filing a lawsuit in Canada? We're gonna talk to lawyer Steve Grover about that on today's Ask the Lawyers. Steve, thanks for joining us.

Steve Grover: 

Oh, hi, Molly. Nice to see you again. Hopefully you're doing well.

Molly Hendrickson: 

Doing well. Nice to see you too. So first off, when someone is injured, do you start off by immediately filing a lawsuit? And when might you file right away versus trying to make a claim without going to court?

Steve Grover: 

I mean, Molly, to be truthful with you, I've been doing this for 22 years, personal injury, motor vehicle accidents and motorcycle accidents, some med mal cases. And I think it's the best interest to actually file a lawsuit once you've retained the lawyer, 'cause I just see that you go through the litigation process, it takes a while to get it going. If you file a suit right away, you can go forward and get the records you need, set up questioning of all parties, and then push the other party to mediation and trial. Unfortunately, the litigation process is slow in Alberta. You could take two to three to four years to get a trial date. So, after doing this for so many years, I would actually... My preference is with if someone retains me and if they're injured in an accident, unfortunately, I like to get documents, get the statement of claim filed in the courthouse, and then get going on the litigation case because there is a process of keeping on pushing the case to mediation and trial to get it settled for a fair and reasonable amount.

Molly Hendrickson: 

So it moves it along quicker. What if the incident involves a criminal element, like a drunk driver who hits your client? How is what your law firm does in civil court different from criminal court?

Steve Grover: 

Well, a lot of people are still familiar with the OJ Simpson case. Everyone knows that OJ got off the murder trial because you have to prove beyond a reasonable doubt, 99% and 9.9% that he was guilty of murder. After the criminal case had been set aside and he wasn't found guilty. The family did sue him civilly and there's a low... It's balance of probabilities, 51% that he was negligent and causing their death and unfortunately, the family did have a civil suit against him. So if someone's charged with, like drinking and driving. I still deal with the civil suit. We monitor the criminal charges. We have a lawyer go down to the courthouse to see what the defendant may have to say, to see what the defendant pleads not guilty or guilty. A lot of these cases will be dragged out for a while, but we always try and monitor the cases, but it doesn't impede our ability to still question the defendant as to what happened and how the accident happened. We probably will get pushback with the insurance company's lawyers, not for them to be produced, but I fought that several times in courthouse.

We've got court orders saying, "Listen, even though this person has a criminal charge, he's pled not guilty. He's entitled his court date in court on the criminal matter." Judges and application judges here in Alberta have agreed with our office that we're entitled to question them about how the crash occurred before their criminal matter goes forward.

Molly Hendrickson: 

So what are the next steps if things are not worked out with an insurance company and a lawsuit is necessary? And how important is it for a client to start creating a paper trail? What kind of things is a client responsible for versus their attorney?

Steve Grover: 

Well, when you have a civil lawsuit case, a personal injury case, paper trail is everything. Unfortunately, the plaintiff is the party who starts the lawsuit, and he or she has to prove their case to the other side, to the defense insurance company, or if it goes to trial to the judge, that burden of proof is on the plaintiff. So I think it's important for the plaintiff to keep paper trail about, try and keep a diary of how you're doing every day. That is a privileged item that we can disclose later at trial because the lawyer told the client to keep the diary. So it's not producible right away. You know, keep records of obviously receipts. I mean, did you spend $1,000 in over-the-counter medications, to keep those receipts? So, I always tell my clients, it's like going to the bank, if you want a mortgage, they're gonna have to see a paper trail. They're gonna have to see your tax returns. They're gonna have to see your credit reports. And that's the same with proving your case. You just can't say, "Hey, I want a million dollars."

Obviously, the insurance company will want to justify if they pay out that kind of money. But even when you go to trial, a trial judge will have to see all that information, that evidence. So it's good to produce a paper trail from start, day one. I know it's hard, but I always recommend my clients to do the best they can. But obviously our office is also trying to create a paper trail at the same time, because that's our job, is to present their case in the best possible way.

Molly Hendrickson: 

So, Steve, can you talk a little bit about what discovery entails and how long that process typically takes? Do you have to sit for a deposition? Do you have to get a medical examination?

 Steve Grover: 

Yeah. In 2010 in Alberta, we changed the rules of court. Well, the rules committee did here in Alberta. And we changed the word discovery to questioning, because the rules committee thought, "Hey, this is more late person friendly. We're not getting deposed or we're not getting discovered. We're actually having just a question happen." But it's essentially the same thing as a deposition to the US or examination for discovery in British Columbia. So, that is a process we have to go to because it's a pretrial hearing. I tell my clients credibility is the most important thing. This is the first time that the other insurance company lawyer meets you, asks you some questions. They're reading your credibility. They're reading you as a witness. Hey, is this a good witness? Well, obviously, if he or she's a good witness and really injured, we don't wanna go to trial. So a lot of the cases lawyers will tell you, like myself, a lot of cases depend on what happens at questioning. But it's also a two way street where we will question the defendant also, if they're trying to pull, like, well, we're not at fault for the accident.

It's always my protocol, protocol in my office, myself and my lawyers to question the defendant too. So the question is a very vital important part of the case. I always tell my clients that's the most important part of the case 'cause they're reading your credibility. And we're seeing you as a witness, also as your lawyer to see how you present at trial if it goes to trial.

Molly Hendrickson: 

And what about mediation? Can you go to mediation rather than just going directly to court?

Steve Grover: 

Yeah, again, we had the rule change in Alberta in 2010, where mediation is mandatory before the court will give you a trial date here in Alberta. That rule was suspended for a couple years. There's an uproar with the legal bar here in Alberta. But then they put that back in place just recently. I think it's good to go to mediation. I think it's good that we put it back as mandatory because it gives you an opportunity to present your case informally. You're not in the courthouse, you have control of the process. If we miss that piece of evidence in the opening, the mediation with the other side and the mediator, we can go back and say, "Hey, we forgot about these chart notes." Once you go to court and the trial judge is controlling the whole process on the rules of evidence. So I think a mediation is like sort of like a committee trial. Even if we don't settle, we know the issues that they're gonna bring up against my client's case. We know what was good for us and that we can rehash the case. And if we can't sell it at mediation, then it's almost like we're running a mini trial, a test trial before the big trial so we can clean up the case before we go to trial.

Molly Hendrickson: 

So what happens if a dispute can't be worked out through mediation and how often do you guys reach a settlement through mediation versus having to take the case further?

Steve Grover: 

Our track record generally in Alberta is about 80%-90% of the cases for personal injury cases will settle at mediation. I think it's a good opportunity where I mentioned before that the both parties control the process. The one thing is in Alberta since COVID, we are having problems getting trial dates. So if I have a mediation today and we don't settle, it could be two to three, four years until we see the first day of trial. And I know that, the defense counsel knows that. So and, fortunately, with the rules of court in Alberta, when you go to mediation, you have to make a good faith effort to sell the case. You just can't say, show up and say, "Oh, I'm here for the insurance company XYZ. I'm gonna offer 50 grand. That's it." No, you have to come on a good faith basis to settle in a fair and reasonable amounts. And that's one good part of the rules that we have in Alberta with mediation, is the parties have to come on a good faith basis, make an honest effort to try and settle it on a fair and reasonable amount.

Molly Hendrickson: 

And what strategy do you have to get the best outcome for your clients?

Steve Grover: 

Yeah, I think, I think the best strategy I found was getting trained in reading books from other trial lawyers across Canada and the US, is make sure the other side hears your client speak because at the end of the day all these cases come down to credibility. And I always try and go through a Q&A, like almost do a direct examination opening of a mediation 'cause then the insurance lawyer has questioned my client. He or she knows what my client's like. But the real important person in mediation is the adjuster for the other insurance company because they're the ones that have the checkbook. And I think it's really important for the client to speak. And I know that the two biggest fears in life are obviously death taxes and the third one would be public speaking. But I try and create a Q&A of things that you lost because of the accident. Talk about that. Talk about relationships that were negatively affected because of the accident, cause then they can get an understanding that your client's a real person and they see how they talk.

Obviously, if they like my client, more likely than a trial judge will like my client. And why would they want to go to trial and spend X amount of dollars paying their lawyers when they can settle it and then move on with another file.

Molly Hendrickson: 

Steve, thanks for taking the time to talk to us today. It's nice to see you.

Steve Grover: 

Yeah, nice to see you again. Thank you and happy holidays.

Steve Grover: 

Happy holidays. That's gonna do it for this episode of Ask the Lawyer. My guest has been Steve Grover. If you wanna ask him about your situation, call the number on the screen. Thanks for watching. I'm Molly Hendrickson for Ask the Lawyers.

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