Singer Kwinter's Shane Katz on recent developments, key challenges, and useful strategies
This article was produced in partnership with Singer Kwinter
As personal injury law continues to change, lawyers practising it must adapt alongside, whether it be new legislative requirements or emerging technologies affecting liability. Shane Katz, a lawyer at Singer Kwinter, discusses the latest developments in the field as well as shares helpful strategies for fellow lawyers. But overall, the message is simple: liability is the most important aspect of a personal injury case.
“Establishing liability is the hard part. Once you’ve done that, in most cases causation flows fairly easily,” Katz says. “If there’s any doubt, make sure you gather the evidence to prove liability as soon as possible — don’t wait.”
One of the most significant recent changes in Ontario personal injury law is an amendment to the Occupiers’ Liability Act (OLA), Section 6.1. It now requires that claims involving injuries due to snow or ice on private property be reported within 60 days, with exceptions being if the injury results in death or there is a reasonable excuse for the late notice.
The government introduced this rule to allow property owners and insurers to gather evidence and prevent them being prejudiced by delayed claims, but Katz questions its effectiveness. He notes that “when it comes to snow and ice, evidence disappears in hours let alone within 60 days. How useful this change really is remains to be seen.”
Regardless, the notice requirement is a significant change in liability that has major implications when it comes to obtaining justice for clients. Katz warns that lawyers need to act quickly.
“If you get a call about a fall due to snow or ice, you must send a notice letter immediately,” he advises. “Otherwise, your client may lose their ability to sue.”
Another challenge is in complex cases, particularly in medical malpractice or some motor vehicle accidents, such as when a car runs a red light while another is making a left, and causation is unclear. Technology such as surveillance footage, black box data, and electronic records can be incredibly helpful: if liability is in question, preserve that evidence as soon as possible, Katz advises.
Katz also stresses the importance of early investigation and expert consultation. In medical malpractice cases, he notes, you need to determine both liability and causation early on as you can’t know if you have a case until you consult a medical expert who can assess the care provided. He points to a recent medical malpractice case involving a perforated bowel. Rather than simply arguing the injury itself was evidence of negligence, the plaintiff’s lawyer examined the steps leading to the injury to build their case and make a stronger argument.
“Causation is a common battleground in personal injury cases,” Katz says. “If a client has a significant pre-accident health history, for example, defense lawyers point to that as the cause of ongoing issues.”
The defense will also commonly argue contributory negligence on the part of the plaintiff, and Katz says preparing to counter these claims early is critical. Again, situations are nuanced. In MVAs, the focus is typically limited to seat belt use or whether the plaintiff knowingly entered a vehicle with an impaired driver. In slip-and-fall cases, preserving evidence such as the client’s shoes — to document they were appropriate for the conditions and in good repair — is best practice.
Insurance companies loom large in personal injury cases, and Katz emphasizes that understanding their internal processes is key to successful negotiations.
“The person you’re negotiating with has to justify any settlement amount to their superiors,” Katz explains. “You need to make sure they have the documentation they need to support the number.”
However, providing extensive documentation doesn’t always guarantee success. Katz has met with frustration when he’s papered the file with everything they need, and had the insurance company still take a tough position. On the other hand, he’s had defense lawyers tell him the insurer would appreciate not overbuilding the file as they’re willing to be reasonable.
Before spending thousands on expert reports and other disbursements, Katz advises plaintiff-side lawyers to communicate with the defense early to gauge their approach. This will help inform how to run the case.
“Commonsense negotiation is always the goal,” he adds. “It can save both sides a lot of time and money.”
For lawyers handling high-stakes personal injury cases, Katz offers one key piece of advice: focus on liability from day one.
“By acting quickly and leveraging the right evidence, personal injury lawyers can navigate evolving liability challenges and achieve better outcomes for their clients.”
