Bogoroch & Associates -- Newsletter & Resources: Articles & Papers

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Articles & Papers

The following are articles and papers authored by Bogoroch & Associates principals. For additional articles from other publications and authors, click here to go to the Articles section of our Links page.

October, 2011 -- Expert Demonstrative Evidence -- By Richard Bogoroch and Melanie Larock Expert evidence is critical to the outcome of a personal injury case. As the reliance of 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, demonstrative evidence is helpful to explain, illustrate or summarize the evidence of an expert to make it understandable and effective. (more...)

May, 2011 -- Obtaining Court Approval of a Settlement Under Rule 7.08: What You Need to Know -- By Heidi Brown 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 by Rule 7.08 of the Rules of Civil Procedure is submitted to the Court for approval, said approval is not always forthcoming. (more...)

May, 2010 -- Cleaning Up: Claiming Housekeeping Inefficiency -- By Richard M. Bogoroch and Sarah Ng 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 contributions. The Supreme Court recognized that household services are of significant value to the family of the injured party. (more...)

September, 2009 -- Five Essentials for Litigating Chronic Pain -- By Heidi R. Brown 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 enhanced perception of pain and illness behaviour. (more...)

April, 2009 -- The Annotated Retainer - The Contingency Fee Retainer Agreement -- By Richard Bogoroch and Tripta Chandler This paper provides an annotated template for the contingency fee retainer agreement. (more...)

February, 2009 -- The Great Divide: Some Issues to Consider from the Plaintiff's Perspective to Bridge the Gap Between Tort and Accident Benefits -- By Heidi R. Brown 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 cases and the manner in which we will handle them. (more...)

November, 2008 -- Costs: Making Claims and Maximizing Recovery -- By Richard Bogoroch and Tripta Chandler 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 parties to consider the various costs provisions and their impact on the decisions made during the litigation process.(more...)

October, 2008 -- Dismissing the jury: Insurers may find their request for a jury set aside by the court -- By Richard Bogoroch and Kate Cahill 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. (more...)

October, 2007 -- Accident Benefits: Recent Changes and Developments -- By Richard Bogoroch, Melinda Baxter and Tripta Chandler 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. (more...)

See also:
Accident Benefits: Recent Changes and Developments
(Adobe Acrobat [PDF] file)

June, 2007 -- The Latest on Chronic Fatigue Syndrome and Fibromyalgia: Best Practices for Successful Management and Litigation of Chronic Fatigue and Fibromyalgia Claims -- By Richard Bogoroch 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 be assessed subjectively, and without objective medical evidence, can render an individual vocationally and/or functionally disabled. (more...)

February, 2007 -- Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation -- By Richard Bogoroch and Kate Cahill 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 of individuals who have been injured or killed. Finally, this paper briefly reviews developments in the area of leading evidence to establish damages. (more...)

See also:
Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation
(Adobe Acrobat [PDF] file)

February, 2007 -- Mastering Successful Strategies for Advancing Chronic Pain Cases -- By Richard Bogoroch and Melinda Baxter A diagnosis of a pain-associated disorder includes components of both a physical and emotional or psychological nature. What is of primary importance, and often the most significant barrier, is the largely subjective experience of the disorder. This poses a difficulty for both the medical and legal professions when faced with the difficult task of determining the extent, duration and effect of chronic pain on the plaintiff. (more...)

See also:
Mastering Successful Strategies for Advancing Chronic Pain Cases
(Adobe Acrobat [PDF] file)

January, 2007 -- Practical Strategies for Winning Auto Cases - Mary Carter and Pierringer Agreements -- By Richard Bogoroch and Melinda Baxter Mary Carter and Pierringer 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 burden to the non-contracting defendants. (more...)

See also:
Practical Strategies for Winning Auto Cases - Mary Carter and Pierringer Agreements
(Adobe Acrobat [PDF] file)

November, 2006 -- Understanding and Managing Cases Involving Chronic Pain Syndrome, Chronic Fatigue Syndrome and Fibromyalgia: The Plaintiff's Perspective -- By Richard Bogoroch and Melinda Baxter 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.(more...)

April, 2006 -- Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You -- By Heidi Brown 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 client’s incapacity to instruct counsel only becomes apparent over time as the lawsuit progresses. (more...)

See also:
Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You
(Adobe Acrobat [PDF] file)

January, 2006 -- The ABCs of Family Law Act Claims and their Preparation for Trial in Medical Malpractice Actions -- By Richard Bogoroch and Melinda Baxter 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 framework of suitably adjusted amounts for inflation. Pecuniary and nonpecuniary losses may be claimed. Over the years the quantum of awards for loss of care, guidance and companionship have tended to be modest, however, the impact of juries and their continued persistence in awarding significant amounts under this head of damage is effecting the range of awards in a positive direction. (more...)

See also:
The ABCs of Family Law Act Claims and their Preparation for Trial in Medical Malpractice Actions
(Adobe Acrobat [PDF] file)

November, 2005 -- Advocating for the Brain-Injured Individual -- By Richard Bogoroch 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 system and on obtaining and accessing statutory accident benefits. (more...)

See also:
Advocating for the Brain-Injured Individual
(Adobe Acrobat [PDF] file)

October, 2005 -- Chronic Illnesses From an Employee’s Perspective -- By Richard Bogoroch With illnesses such as chronic fatigue, chronic pain and fibromyalgia, the challenge posed to plaintiff’s counsel is to develop the plaintiff’s case using highly qualified and experienced experts and to present the case in a manner which demonstrates powerfully and convincingly the plaintiff’s disability. To do so, plaintiff’s counsel must understand the nature of these conditions and marshall the evidence necessary to establish the legitimacy of the plaintiff’s condition. (more...)

See also:
Chronic Illnesses From an Employee’s Perspective
(Adobe Acrobat [PDF] file)

October, 2005 -- Common Motions -- By Richard Bogoroch and Tripta Chandler 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 the preliminary drafting of the motion material itself. In view of the law clerk’s important role in the motions process, a thorough understanding of the rules governing motions, as well as the principles behind some of the most common motions, is essential to proper preparation and drafting of motion materials. (more...)

See also:
Common Motions
(Adobe Acrobat [PDF] file)

September, 2005 -- Strategies for Effective Cross-Examination -- By Richard Bogoroch 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 to use cross-examination as an opportunity to highlight his or her intellectual prowess against the expert. The expert knows far more than you will ever know about the topic and you will be made to look foolish and, more importantly, you could cause irreparable damage to your case. The key to an expert cross-examination is no different from any cross-examination, that is, preparation, preparation, and more preparation. (more...)

See also:
Strategies for Effective Cross-Examination
(Adobe Acrobat [PDF] file)

June, 2005 -- Strategies, Approaches and Considerations for a Statement of Claim -- By Richard Bogoroch and Emma Holland 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 a Statement of Claim, the Plaintiff is challenged with balancing the need to plead broadly to allow for any changes in the sequence of events or facts unknown at the time of issuance, while at the same time, pleading with enough specificity to establish the cause of action. (more...)

May, 2005 -- Cross-Examination: Emerge Intact -- By Richard Bogoroch 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? (more...)

See also:
Cross-Examination: Emerge Intact
(Adobe Acrobat [PDF] file)

May, 2005 -- Support offered for fibromyalgia -- By John Stewart, published in The Mississauga News 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 X-ray, so it’s essentially a rheumatalogical diagnosis. That’s why there’s controversy,” he said. (more...)

March, 2005 -- Bill 198 brings significant changes to automobile insurance claims -- By Richard Bogoroch and Tripta Chandler, published in The Lawyers Weekly 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 are marshalled, causation is established and the impact of the accident on the plaintiff’s life has been fully explored, the Regulation may have little practical effect, other than to increase the number of ‘threshold motions’. Until the Courts consider the new threshold, its impact will not be known. (more...)

February, 2005 -- Damages for Emotional Distress -- By Richard Bogoroch 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 tortious or non-tortious conduct. This paper focuses on claims for emotional distress occasioned by the negligence of others. (more...)

See also:
Damages for Emotional Distress
(Adobe Acrobat [PDF] file)

January, 2005 -- Preliminary Requirements under Bill 198: The Plaintiff's Perspective -- By Richard Bogoroch and Tripta Chandler 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 on both tort and accident benefits claims, both by imposing new time requirements applicable to statutory accident benefits claims and by narrowing the threshold for non-pecuniary damage claims in tort. (more...)

See also:
Preliminary Requirements under Bill 198: The Plaintiff's Perspective
(Adobe Acrobat [PDF] file)

October, 2004 -- Complex Issues in Tort Litigation – Update on Damages -- By Richard Bogoroch 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 personal injury damages for more than twenty-five years. Perhaps the most significant contribution of the trilogy, consisting of Teno v Arnold, Thornton v School District No. 57 and Andrews v Grand & Toy, is the establishment of an “upper limit” or “cap” for non-pecuniary general damages. (more...)

See also:
Complex Issues in Tort Litigation – Update on Damages
(Adobe Acrobat [PDF] file)

May, 2004 -- Managing the Plaintiff's Chronic Pain, Fibromyalgia and Chronic Fatigue Case -- By Richard Bogoroch and Tripta Chandler -- 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 are pain and fatigue. These symptoms are largely subjective experiences and, as such, the management of cases involving plaintiffs who suffer from these conditions pose difficulty for personal injury practitioners accustomed to relying upon medical assessments to determine pain and quantify damages. (more...)

See also:
Managing the Plaintiff's Chronic Pain, Fibromyalgia and Chronic Fatigue Case
(Adobe Acrobat [PDF] file)

February, 2004 -- Mediating and Settling Claims for Damages -- By Richard Bogoroch -- 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 the course of my experience in mediating cases. (more...)

See also:
Mediating and Settling Claims for Damages
(Adobe Acrobat [PDF] file)

December, 2003 -- Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation -- By Richard Bogoroch and Leanne Goldstein -- 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 is shoulder dystocia which, if improperly managed, can have disastrous consequences. This paper discusses what this can mean from a medical malpractice standpoint. (more...)

See also:
Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation
(Adobe Acrobat [PDF] file)

October, 2003 -- Understanding and Managing the Increase in Chronic Claims and Newly Classified Disabilities -- By Richard Bogoroch and Leanne Goldstein -- 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 has moved towards encouraging and facilitating early resolution of cases which may develop as a result of the claimant's involvement in an accident or as a result of an injury. (more...)

See also:
Understanding and Managing the Increase in Chronic Claims and Newly Classified Disabilities
(Adobe Acrobat [PDF] file)

May, 2003 -- Auto Insurance Claims Litigation – The Lost Years -- By Richard Bogoroch and Leanne Goldstein -- 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. (more...)

See also:
Auto Insurance Claims Litigation – The Lost Years
(Adobe Acrobat [PDF] file)

March, 2003 -- Reflections on the Role of the Expert Witness -- By Richard Bogoroch and Leanne Goldstein -- 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. (more...)

See also:
Reflections on the Role of the Expert Witness
(Adobe Acrobat [PDF] file)

September, 2002 -- Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective -- By Richard Bogoroch and Rachel J. Urman -- 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. (more...)

See also:
Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective
(Adobe Acrobat [PDF] file)

September, 2002 -- How Canadian Courts Have Turned “Thin Skull” Damages into “Crumbling Skull” Damages: What are the Implications? -- By Richard Bogoroch and Tripta Chandler -- 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 may contribute to a plaintiff’s ultimate condition following a tortious act. The Court also addresses the difficult and often misunderstood issue of damage awards in cases involving thin skull and crumbling skull plaintiffs. (more...)

March, 2002 -- Forceps and Caesarean Deliveries and Informed Consent: New Issues and Dangers in Child Delivery Methods -- By Richard Bogoroch and Simone Levine -- 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. (more...)

June, 2001 -- Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Law Suit – From the Plaintiff’s Perspective -- By Richard Bogoroch -- When Mr. Justice Riddell famously said that a law suit 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 plaintiff and the plaintiff’s experts alike have made this type of litigation one of the most difficult, complex and expensive cases to prosecute. (more...)

April, 2001 -- Recent Developments in Obstetric Negligence Law -- By Richard Bogoroch and Rachel Urman -- 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 summary from the principals underlying the litigation in these types of cases. (more...)

See also:
Recent Developments in Obstetric Negligence Law
(Adobe Acrobat [PDF] file)

February 20, 2001 -- The Medical Post – Doctors and the Law: Not taking notes constitutes negligence -- By Michael Fitz-James -- A recent Ontario ruling has a failure to take notes issue front and centre in the lawsuit – that failure being the very foundation of the negligence itself. The case is also important in demonstrating the standard of care for a family physician giving patients counselling. And the message is: after the counselling’s done, the fact it has been done must be documented in the patient’s record. (Click here for the full article, on the Medical Post Web site.)

February, 2001 -- The Child Witness: Tips from the Trenches -- By Heidi Brown -- 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. (more...)

See also:
The Child Witness: Tips from the Trenches
(Adobe Acrobat [PDF] file)

Strategies for Chronic Pain & Emotional Injuries: Coping With the OMPP Threshold -- By Richard Bogoroch -- 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. (more...)

See also:
Strategies for Chronic Pain & Emotional Injuries: Coping With the OMPP Threshold
(Adobe Acrobat [PDF] file)

February 14, 2000 -- Insurer ignores medical evidence, hit with $30,000 'special award' -- By Eric Atkins for Law Times -- [...] 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 over and above the weekly income replacement, interest and home-care expenses. (more...)

See also:
Domenica Fimiani and Liberty Mutual Insurance Company - Reasons for Decision
(Adobe Acrobat [PDF] file)

Corralling the Experts: Opinion Containment -- by Richard Bogoroch -- 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 defendant’s experts can do to the plaintiff’s case in compelling a less than advantageous settlement offer during the course of the trial or alternatively, setting the stage for a favourable verdict for the defence. Trials in the 90’s have become in many cases a battle of the experts. (more...)

See also:
Corralling the Experts: Opinion Containment
(Adobe Acrobat [PDF] file)

Winning the Fibromyalgia Case -- by Richard Bogoroch -- 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 dispute is unhelpful. Fibromyalgia sufferers and their families live with its consequences every day. Lives and careers have been shattered and families disrupted because of fibromyalgia. There is no doubt that this condition exists, and there is no doubt that people who suffer from fibromyalgia are entitled to compensation and, in the context of disability claims, payment of disability benefits in accordance with the terms of the policy. (more...)

Cashing Out Accident Benefits Claims Under the Statutory Accident Benefits Schedule -- by Bogoroch & Associates -- 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 with the obvious result that there was a substantial decline in tort litigation. This trend continued with the enactment of Bill 164 and again with Bill 59 which came into force on November 1, 1996. (more...)