J. Brent Melanson
Introduction and Background:
Can you provide a brief overview of your experience as a personal injury lawyer in New Brunswick?
I have been practicing civil litigation and personal injury law for over 30 years and have represented thousands of injured individuals. I’ve appeared at all levels of Court, including Trial Level and Court of Appeal in New Brunswick and the Supreme Court of Canada. I have secured compensation for clients on every type of personal injury case, including car accidents, motorcycle accidents, slip and fall accidents, fatal accidents, assaults, and medical malpractice. For many years, I helped teach the bar admission course for prospective new lawyers. I have also spoken at many conferences and written articles on the practice of personal injury law.
How long have you been practicing personal injury law, and what motivated you to specialize in this area?
I have been practicing in this area for over 30 years. I started my practice as a lawyer representing insurance companies with one of the largest Atlantic Canadian law firms. I quickly realized that I wanted to represent the injured parties instead of the insurance companies. I dedicated my career to helping injured individuals get back onto their feet. I’ve also been an advocate for policies and laws that help compensate injured people.
Have you handled any high-profile personal injury cases in New Brunswick that you can discuss?
I helped create important laws on judicial independence with respect to Section 96 of the Canadian Constitution. I represented a number of judges in New Brunswick at the Supreme Court of Canada and was successful. I have also been involved in other precedent-setting cases in personal injury law and in other areas of the law.
Legal Process and Procedures:
What are the key steps involved in pursuing a personal injury claim in New Brunswick?
- Opening the Claim
Retaining a lawyer, preserving evidence, and notifying the relevant parties and insurers. - Exchange of Information & Discovery
Collecting information and documents to support the claim, exchanging information with the other party or insurance company, and examination for discovery (if necessary). - Resolution of the Claim & Receiving Compensation
Resolving the claim through a negotiated settlement, mediation, settlement conference, or trial.
How does the legal process for personal injury cases differ from other types of legal cases?
In personal injury cases, the party has suffered physical and/or psychological injuries as a result of the actions of another. Personal injury cases follow a specific legal process, which is different from other areas of the law. In order to be successful in bringing a claim, the injured person must prove that someone else was responsible for the accident or incident and that damages occurred as a result of the accident or incident. The aim of personal injury claims is to compensate the individual for their injuries. Amounts for damages aim to put the individual in the position they would have been ‘but for’ the incident or accident. The process involves collecting evidence to build the claim, sharing information on the claim, and then resolving the claim for a fair amount of compensation.
Can you explain the role of the injured party during the legal process and their rights and responsibilities?
The role of the injured party in the legal process is to focus on their rehabilitative treatment and to see their doctors and therapists on a regular basis. Our job, as lawyers, is to walk the client through the legal process: to explain each step, the client’s options, risks and strategies, and our advice. Once the client understands and has directed us on what to do at each stage, we handle the logistics and the leg work. For example, when the client is ready to engage in settlement negotiations, we draft a settlement proposal that summarizes all the relevant evidence and our assessment of damages. We then review the proposal with the client and discuss our recommendations and the client’s instructions. Once we have approval, we send the settlement proposal to the other side as a first offer.
Case Evaluation and Compensation:
How do you evaluate the potential value of a personal injury claim in New Brunswick?
The value of a personal injury claim is based on the individual’s injuries and the impact of the injuries on that person’s life. We assess a client’s claim based on the medical evidence, the client’s reports on their injuries, and legal precedents concerning compensation.
What factors are considered when determining compensation for personal injury cases?
Factors to consider are: The injuries; the impact of those injuries on the person; their ability to earn income; the impact on their lifestyle and activities; and the pain and suffering caused by the accident.
Are there any limitations or caps on compensation for specific types of personal injury claims in the province?
There is a Regulation under the New Brunswick Insurance Act that can impose a cap on general damages for motor vehicle accident claims. This Regulation came into effect in July 2013 and replaced an older Regulation with respect to a similar cap on general damages. The 2013 Regulation changed the amount for the cap. The applicable amount depends on the year in which the accident occurred and is adjusted every year for inflation. For accidents happening in 2023, the amount of the cap is $9,182.57. In order for the cap to apply, the injury must meet the Regulation’s definition of a “minor injury”.The Regulation also varied the test for “minor injury” and provided a list of injuries that are automatically excluded from the cap. This cap only applies to general damages and does not apply to the other heads of damages to which the party is entitled. It also does not apply to personal injury claims that do not involve motor vehicle accidents. It is important to consult a lawyer early on to discuss the criteria and evidence necessary to avoid the application of the cap.
Building a Strong Case:
What types of evidence are crucial in establishing a strong personal injury case?
There are two elements that the injured party has to prove: Liability and damages. The standard of proof is on a balance of probabilities, or that it is ‘more likely than not’. Liability means that someone else is at fault for the accident. It can be important to preserve evidence relating to liability early on. This evidence can include photos of the area where the incident occurred, witness statements, video footage, and reconstruction reports. Damages mean the amount of compensation that an individual is entitled to. Evidence to support damages can include medical charts, treatment files, employment information, receipts and functional capacity evaluations.
How do you gather and analyze evidence to support your clients’ claims?
It’s best to start gathering evidence as soon after the incident or accident as possible. If you plan to pursue a claim, it is crucial to contact us as quickly as possible so that we can discuss the early preservation of evidence with you. From the beginning of the claim, we start to identify the types of evidence that will be necessary to support the claim. This is an ongoing process as the claim evolves. We help the client identify what evidence they may already have to support the claim. Many documents, such as medical charts, will be in the possession of non-parties. We can request these documents on the client’s behalf. The Defendant may also be in possession or have access to evidence necessary for the claim. We file the appropriate forms with the Court to ensure the Defendant provides us with the evidence we need for the claim.
As we collect evidence, we also analyze the evidence for its strengths or weaknesses. We have ongoing conversations with our clients about how to bolster the evidence for their claim to make the claim as strong as possible.
Do you work with any experts, such as medical professionals or accident reconstruction specialists, to strengthen your cases?
Sometimes, an expert report is necessary to support a claim. Decisions around the type of expert used, and the timing for these reports are strategic and depend on the unique aspects of the claim. These experts may provide opinions on accident reconstruction, medical causation or extent of injuries, functional capacity, vocational ability and opportunity, loss of valuable services, or future cost of care. We discuss the strategic considerations for experts and our recommendations with our clients to build the best possible case for our clients. We have strong relationships with the best experts in their fields in New Brunswick. We work with experts that we know provide high-quality opinions and reports that will be persuasive in Court.
Legal Challenges and Recent Developments:
What are some common challenges or obstacles faced when pursuing personal injury claims in New Brunswick?
In my experience, insurance companies and Defendants will pay as little as possible in compensation for a person’s injuries from an accident. It is usually necessary to build a strong case and to apply pressure through litigation in order to secure fair and equitable compensation for our clients.
Are there any recent legal developments or changes in legislation that have impacted personal injury cases in the province?
The area of personal injury law in New Brunswick is constantly evolving.
Case law evolves more rapidly than legislation. We keep an eye on any new reported cases in the province. We also have a network of other personal injury lawyers in-province with whom we share new case law and recent practice developments. We also attend annual personal injury conferences that present and discuss new case law and claim strategies. Our lawyers are often asked to speak at these conferences.
The most recent significant change in the legislation was in July of 2013 when the new Regulation with respect to the cap on general damages for minor injuries was introduced.
How do you stay updated with changes in personal injury law to ensure the best representation for your clients?
Client Communication and Support:
How do you maintain effective communication with your clients throughout the legal process?
What level of support and guidance can clients expect from your firm during their personal injury claim?
As lawyers, we have rules in our professional code of conduct that require us to keep our clients informed about their claims and to consult with our clients on decisions that impact their claims. I personally feel that effective client communication goes beyond even what is enshrined in our Code. From my first meeting with a client, I ensure there is clarity around how I will communicate. We discuss the process for the claim and how our office will be in touch with the client throughout that process. Our office is in regular contact with our clients to ensure they are aware of what is happening with their claims. We take an informed decision-making approach with our clients. No important decisions are made on the claim without discussing with the client: The decision to be made, their options, the risks and benefits, and my advice. We also take a trauma-informed approach to communications with our clients. Our goal is not only to secure an excellent legal result for our clients but also to ensure that they feel supported throughout the process and they have clarity about how we got to the result.
Can you share any testimonials or success stories from previous clients you have helped in New Brunswick?
We have helped thousands of people in New Brunswick with their personal injury claims. It is so rewarding to help our clients get the compensation they deserve after they are injured. Every client is important to us, but there are a few cases that I remember as being particularly rewarding to resolve.
