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Articles & Papers

Articles & Papers

The following are articles and papers authored by Bogoroch & Associates LLP principals.

February, 01 2013 As part of the OTLA Long Term Disability Conference in 2013, this article on mediation strategies was prepared. Slaying the LTD Dragon Over 20 years ago, in response to an inefficient civil justice system, escalating legal fees, and long and excessive delays to reach trial, the concept…
March, 05 2012 Published in the 2013 Legal Resource Guide from Canadian Lawyer magazine Litigating a medical negligence or malpractice claim is complex and risky. These lawsuits are vigorously defended and supported by the Canadian Medical Protective Association (CMPA), so it's essential to contact an experienced lawyer who specializes in medical negligence…
July, 07 2016 Congratulations to Heidi Brown on the publication of her article ‘Surveillance in the Selfie Generation” in the prestigious Advocates’ Quarterly. Click Here to read the article. (2016) 45 The Advocates’ Quarterly 195-211. Reproduced by permission of Thomson Reuters Canada Limited. Subscriptions to The Advocates’ Quarterly are available…
Author: Richard M. Bogoroch , Melanie Larock
October, 30 2011 Expert evidence is critical to the outcome of a personal injury case. As the reliance on expert witnesses in litigation increases, new and enhanced techniques are required to communicate complex issues to the trier of fact. Because expert testimony is often difficult to convey to a jury,…
May, 27 2016 1. Introduction When representing an injured person in litigation, the question of how to maximize the effectiveness of a lay witness will invariably arise. A lay witness that has been carefully selected and thoughtfully interviewed can add immeasurable value to a civil case. Effective use of a…
May, 25 2011 Settlement of personal injury claims on behalf of persons under disability has engendered confusion and uncertainty for personal injury lawyers. Counsel for the Plaintiff often negotiates what she is of the view is an excellent result on behalf of her client, however, when the settlement documentation required…
Author: Richard M. Bogoroch , Sarah Ng
May, 27 2010 The right of an injured plaintiff to advance a claim for loss of housekeeping capacity is well established in Canadian law. In the Supreme Court of Canada decision of Peter v. Beblow, the Court affirmed that there is no logical reason to distinguish domestic services from other…
September, 29 2009 As a personal injury practitioner handling chronic pain claims, it is important to understand the essential characteristics of chronic pain and fibromyalgia, and to appreciate that sufferers frequently present with psychological features. In addition, it is important to understand that inherent personality traits may also contribute to…
April, 30 2009 This paper provides an annotated template for the contingency fee retainer agreement. What we are retained to do J. Doe & Associates are being retained by the client to provide the following services, namely, to represent the client in respect to injuries, losses and damages resulting from…
February, 28 2009 In 2008, significant developments in motor vehicle accident law have generated a great deal of “buzz” among those who practice motor vehicle accident litigation. The potential ramifications are significant, yet there remains a great deal of uncertainty as to how or whether they will impact on future…
Author: Richard M. Bogoroch , Tripta Chandler
November, 14 2008 Costs are an often overlooked aspect of civil litigation until the time comes to negotiate settlement. However, there are many occasions during the course of litigation, from the time the lawsuit is commenced to the motions stage and during trial preparation, where it is important for the…
Author: Richard M. Bogoroch , Kate Cahill
October, 24 2008 This article, featured in The Lawyers Weekly, discusses how the Ontario Superior Court of Justice recently concluded that the province’s rules allowing judges to discharge juries in civil actions do not infringe the Charter.   The Ontario Superior Court of Justice recently concluded that the province’s rules…
November, 20 2007 Few medical diagnoses have engendered as much controversy as fibromyalgia. Among doctors, lawyers and health care professionals, lines have been drawn as to the existence of this condition. As a lawyer who represents fibromyalgia survivors and their families, I can tell you that the legal and medical…
Author: Richard M. Bogoroch , Melinda Baxter and Tripta Chandler
October, 18 2007 This paper reviews the framework for acting for persons under disability and to assist counsel and the insurer in understanding the myriad rules and procedures which inform and govern this aspect of the law.   Approval of Accident Benefit Claims for Parties Under Disability: The Important First…
June, 18 2007 Cases involving pain-associated disorders, whether in the context of a tort action, accident benefits claim or long-term disability action, present difficult and unique challenges, not only because of the complexities of this medical condition but also because of the need to explain how an injury that can…
Author: Richard M. Bogoroch , Kate Cahill
February, 27 2007 This paper reviews a recent case from British Columbia in which the cap on general damages was unsuccessfully challenged and will then consider some recent case law assessing future pecuniary losses. It then turns to a consideration of the court’s approach to assessing damages for family members…
Author: Richard M. Bogoroch , Melinda Baxter
January, 19 2007 Agreements are powerful and extraordinary tools to achieve settlement. In recent years, with complex multi-party litigation becoming increasingly common, these agreements have performed an indispensable role in the pursuit of justice for injured victims by guaranteeing a minimum result, reducing the expense of litigation and shifting the…
Author: Richard M. Bogoroch , Melinda Baxter
November, 08 2006 The subject of pain remains an elusive and controversial one, largely due to its subjective experience, which poses difficulty in determining its etiology and for diagnosis. Chronic nonmalignant pain is more difficult to understand, assess and treat than acute pain or cancer pain.   Introduction The world…
April, 27 2006 Personal injury lawyers routinely act on behalf of clients who have sustained serious physical and psychological injuries. Often, from the first day you meet a client, it is clear that he does not have the requisite capacity to instruct you in the litigation. In other cases, a…
Author: Richard M. Bogoroch , Melinda Baxter
January, 27 2006 Principally, the key factors in the assessment of Family Law Act claims in a personal injury action, and for the purpose of this paper, a medical malpractice action, are the extent and duration of the loss, and the valuation of associated losses and expenses, applied within the…
November, 02 2005 Subtitled “A Step-by-Step Approach to Navigating the Insurance Maze and to Obtaining Justice for the Brain-Injured Survivor and His or Her Family”, this paper offers Richard Bogoroch’s observations, impressions, and experience in seeking justice for brain-injured individuals and their families. The paper focuses both on the tort…
Author: Richard M. Bogoroch , Tripta Chandler
October, 21 2005 In civil litigation, there are a number of motions which counsel and law clerks can expect to regularly encounter. Preparation for these motions is usually within the purview of the law clerk, who is generally responsible for all correspondence leading up to the motion as well as…
September, 23 2005 Cross-examining an expert witness is one of the great challenges of trial advocacy. It is more often done poorly than well. Why is that? Perhaps because counsel expect to take the expert head-on in his or her field and expect to turn the witness. Counsel ought not…
Author: Richard M. Bogoroch , Emma Holland
June, 13 2005 Pleadings are an art form. As Plaintiff’s counsel, the Statement of Claim allows you an opportunity to frame the story your client wishes to tell. Done well, a Statement of Claim acts as an important tool of persuasion and establishes the theme of the case. In drafting…
Author: Richard M. Bogoroch , Emma Holland
May, 27 2005 The role of cross-examination is to weaken or discredit the testimony of the opposing witness and to obtain from that witness testimony favourable to your case. How can this be accomplished?   “You will cross-examine the other side’s witness only to the extent necessary to secure the…
May, 13 2005 Lawyer Richard Bogoroch, who will speak at the next MFS support group session May 24, has successfully fought a number of civil cases for fibromyalgia syndrome (FMS) and chronic pain patients against insurance companies over the past decade. “Nothing shows up on an MRI or on an…
March, 25 2005 In October 2003, the Ontario government passed Bill 198, significantly changing automobile insurance claims. In particular, Bill 198 raised the threshold for non-pecuniary loss claims in tort … While the new threshold permits insurers to attempt to deny more claims for non-pecuniary losses, once the appropriate experts…
February, 24 2005 This paper was presented as part of the Canadian Institute program entitled “Litigating Personal Injury Damages”. The claims for emotional distress are among the most challenging and difficult for the litigator. Emotional distress refers to mental or psychological trauma and can be occasioned as a result of…
February, 14 2005 This paper was presented as part of the Advocates’ Society’s program entitled “Hurricane Season in Auto Insurance: Practical Strategies to Ensure your Backyard is not a Disaster Area”. Bill 198 has and will continue to dramatically alter the landscape of motor vehicle accident litigation and has impacted…
October, 22 2004 Prepared as a companion piece to the Complex Issues in Tort Litigation seminar Richard Bogoroch chaired for the Osgoode Professional Development Program, this paper discusses the series of three Supreme Court of Canada cases (known as the “trilogy”) which have provided a baseline for the assessment of…
May, 18 2004 Chronic pain, fibromyalgia and chronic fatigue cases present unique challenges for plaintiff’s counsel whose task it is to prove disability, whether within the context of a tort or statutory accident benefits case or when claiming entitlement to long-term disability benefits. The primary symptoms associated with these conditions…
February, 26 2004 Mediation is the most effective means of resolving a dispute and enjoys wide popularity among the Bench, the Bar and litigants. The long delays and costs which are part and parcel of litigation are avoided by a successful mediation. This paper provides observations and comments formed over…
December, 02 2003 For most women, the birth process, although difficult, is an exciting and life-changing experience. The emergence of a healthy baby after many hours of intense labour is truly a miraculous event. For some, however, the experience can be extremely frightening particularly when complications arise. One such complication…
October, 22 2003 This paper discusses how even though the subject of pain remains an elusive and controversial one, there has been a growing recognition in recent years of pain-associated conditions such as Chronic Pain, Fibromyalgia and Chronic Fatigue Syndrome. The paper observes that in recent years, our legal system…
May, 13 2003 This paper discusses the “Lost Years” claim in personal injury cases, detailing the innovative thinking that has gone into transforming non-pecuniary damages into pecuniary ones. Introduction A discussion of damages would be incomplete without a reference to the Trilogy of Supreme Court of Canada cases which have…
March, 27 2003 As science and technology have become more complex, the role of the expert witness has become increasingly more important. This paper discusses how the selection and preparation of the expert witness has been and will prove to be at the cornerstone of much successful litigation.   Introduction…
September, 01 2002 The Supreme Court of Canada’s ruling in Athey v. Leonati is a definitive commentary on the manner in which liability and damages should be apportioned in tort actions. The Court discusses a myriad of possible scenarios in which tortious and non-tortious factors, pre-existing conditions and subsequent incidents…
This insightful paper, newly updated, focuses on the plaintiff’s perspective in handling catastrophic accident benefit claims. It discusses, considers and analyses the tactical considerations to employ when acting for the catastrophically injured.   With the enactment of the Automobile Rate Insurance Stability Act, commonly known as Bill 59, and with…
March, 26 2002 This paper provides insight into the standard of care required of hospitals, nurses and obstetricians regarding child delivery methods and informed consent in the context of child delivery. In a medical malpractice action against a physician, the plaintiff must establish on a balance of probabilities that the…
June, 30 2001 Author: Richard Bogoroch When Mr. Justice Riddell famously said that a lawsuit is not “an afternoon tea” he could not have anticipated but must have had in mind fibromyalgia litigation. The clash and clamour of conflicting views, the ferocious attempts to impugn the credibility of both the…
Author: Richard M. Bogoroch , Rachel Urman
April, 30 2001 In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a…
February, 28 2001 This in-depth paper focuses on strategies and tactics to employ in chronic pain cases arising from car accidents, in light of the Ontario Motorist Protection Plan. Strategies for Chronic Pain & Emotional Injuries: Coping With the OMPP Threshold By Richard Bogoroch 1. Introduction Chronic pain cases are…
February, 01 2001 Questioning a child witness is one of the most difficult tasks for the advocate. To do it well requires patience, skill and a thorough command of language so that responsive answers are elicited to the questions asked. IntroductionQuestioning a child witness is one of the most difficult…
Author: Eric Atkins for Law Times February, 14 2000 Toronto lawyer Richard Bogoroch told Law Times it was one of the larger "special awards" made under Insurance Act s. 282(10), which permits an arbitrator to award a lump sum when an insurer "unreasonably withholds or delays benefits." Special awards are…
November, 30 1997 There are a few things as difficult or as dangerous as the cross-examination of the defendant’s expert. While it is often said that a plaintiff’s case is made or lost on the strength and credibility of the plaintiff’s witnesses, one can never underestimate the damage that the…
November, 10 1997 With the passage of Bill 68 (the Ontario Motorist Protection Plan), which came into effect on June 22, 1990, the landscape of personal injury litigation in Ontario was forever altered. The right to sue for damages for pain and suffering and for economic loss was substantially restricted…
May, 20 2015 Richard Bogoroch presented on nursing home liability as part of The Osgoode Certificate in Elder Law program, a unique 5 day interdisciplinary program for legal advisors, healthcare professionals and others who work with older persons. Click here to view the presentation.
December, 17 2013 Published in the 2014 Legal Resource Guide from Canadian Lawyer magazine. Personal injury claims can be complex and confusing but it is important to understand your rights, the damages you can be compensated for, the lawsuit limitation period, and other related information specific to your claim. By…
October, 11 2013 When representing an injured person in litigation who was formerly working and now faces limited prospects for a return to the workforce, the question ‘when and how to apply for CPP disability benefits?’ will invariably arise. Applying for Canada Pension Plan Disability Benefits (“CPP Disability Benefits”), though seemingly straightforward,…