Neil P. Wheeler

Professional experience

• Practice Group Leader, Plaintiff Personal Injury Group, Toronto (2008 to present)
• Partner, Lerners LLP (2003 to present)
• Associate lawyer, Lerners LLP (1997-2002)
• Articling student, Lerners LLP (1994-1995)

Representative work

Neil practices civil litigation, with particular emphasis on personal injury and insurance litigation. Neil has been successful as counsel and co-counsel in jury and non-jury trials of personal injury and medical malpractice cases. In addition to his trial work, Neil has successfully appeared on appellate matters in Ontario's Divisional Court and Court of Appeal, and before administrative tribunals.

Neil has acted for injured plaintiffs in a number of trials and court decisions that have had a significant impact on personal injury law in Ontario.

Most notably, Neil successfully acted for the injured plaintiff in the landmark 2004 trial of Desbiens v. Mordini. The case was complex, as Mr. Desbiens was paraplegic before the car accident in question, in which he suffered further serious injuries. Desbiens was the first trial decision in which an injured plaintiff was found to meet the "55% whole person impairment" test of "catastrophic impairment" under the applicable Ontario insurance legislation. A determination of catastrophic impairment has great significance for injured persons in car accidents, as it greatly affects access and entitlement to various benefits and awards. Desbiens outlined a number of important principles regarding the interpretation of catastrophic impairment.

Neil's other successes in Court have produced results that have greatly benefited both his clients and injured plaintiffs in Ontario generally. These results include the following:

• confirming that catastrophic impairment should be determined at trial rather than on a pre-trial motion, in appropriate cases
• determining that chronic pain can satisfy the "threshold" requirements for recovery under the Insurance Act
• permitting an injured person who has pursued his or her claim diligently and resolved it to recover a substantial portion of his or her award, where there are multiple injured individuals pursuing the same defendants but the other claims have not yet been resolved
• confirming that injured persons should be entitled to the lawyers of their choice and that their lawyers should be permitted to continue to act where an attempt to remove them by the defence lacks merit
• confirming that injured persons may settle their entitlement to statutory accident benefits in advance of resolution of a tort lawsuit unless this constitutes a settlement in bad faith to the detriment of the defence, and confirming that bad faith is a very difficult test for the defence to establish
• determining that a motor vehicle tort defendant may not adjourn a trial where catastrophic impairment is an issue by attempting to add the accident benefits insurer on the basis that catastrophic impairment is also relevant to the accident benefits claim
• confirming that, in a motor vehicle case, the different treatment of past loss of income versus future loss of income may cause prejudice to an injured person if a trial date is adjourned, making it inappropriate to adjourn a trial date at the defence request
• determining that, where there is an excessive delay in obtaining a trial date in one jurisdiction due to Court backlog, a change of venue to another jurisdiction may be appropriate where an injured person would be prejudiced by the delay
• confirming that a personal injury trial should proceed as a non-jury trial in appropriate circumstances, including complexity
• awarding solicitor and client costs to an injured person following trial, under the applicable provisions of the Insurance Act, where a defendant failed to admit liability for a car accident and liability was clear, thereby breaching its obligation to attempt to settle a case expeditiously.

Neil acts for plaintiffs throughout Ontario in a variety of different personal injury and insurance claims. These include claims for clients who have been injured in car accidents, slip and fall accidents, other occupiers' liability accidents, chiropractic malpractice and dental malpractice.

He also frequently acts against insurance companies in a variety of claims arising under insurance policies, including claims for accident benefits, long-term disability benefits, and life insurance proceeds.

Neil has acted for both adult and paediatric clients suffering from a wide range of physical, cognitive and psychological trauma. This includes clients with quadriplegia, paraplegia, other spinal cord injuries, mild, moderate and severe traumatic brain injuries, amputations, burns, soft tissue injuries, chronic pain, and post-traumatic stress disorder. He has also acted for families in fatality/wrongful death claims arising from car accidents and other accidents where a family member has been killed.

Noteworthy Cases

• Behrns v. Burleigh (2005), 78 O.R. (3d) 370, 33 C.C.L.I. (4th) 237, [2006] I.E. I-4470 (S.C.J.)
• Desbiens v. Mordini, selected interlocutory decisions:

i) 17 C.C.L.I. (4th) 146, 135 A.C.W.S. (3d) 50, [2004] O.T.C. 1031 (S.C.J.)

ii) (2003), 66 O.R. (3d) 796, 49 M.V.R. (4th) 294 (S.C.J.)

iii) 2003 CarswellOnt 3082 2004 CarswellOnt 1261 (S.C.J.) trial decision

iv) [2004] O.J. No. 4735 (S.C.J.)

• Acosta v. Bertrand, 2004 CarswellOnt 3976, 2004 CarswellOnt 3979 (S.C.J.)
• Sookram v. MacDonald, 2002 CarswellOnt 694 (S.C.J.)
• Fayez-Salama v. CGU Group Canada Ltd., 2001 CarswellOnt 2852 (S.C.J.)
• Morrison v. Gravina (2001), 29 C.C.L.I. (3d) 129 (S.C.J.).

Client Testimonials

"I was severely injured while riding my motorcycle, when I was struck by a car that failed to yield the right of way. I suffered a serious brain injury and suffered many fractures, including fractures to the back, leg and ankle that required multiple surgeries. I was in a rehabilitation hospital a long time. My wife and I realized we would need a lawyer, as I was unable to continue working and I had many medical and rehab needs. A friend of mine, who had also been hurt in a car accident, told me that his lawyer had been Neil Wheeler at Lerners. He recommended Neil to me. I contacted Neil and Neil came to meet me in the hospital. I hired him to act for me and my family in my lawsuit against the driver at fault for the accident and regarding my accident benefits.

My family and I were under a lot of strain because of the effects of this accident. Neil and his law clerk worked very hard to help us with the many challenges and problems we faced. Whenever we had a problem, we knew we could reach someone from Lerners and that they would help us out. They came to my house to see me and review the status several times while the case was ongoing. Eventually, we went to a mediation with Neil and we resolved our claims at the mediation. Neil had prepared us for the mediation in advance, and my wife and I felt very comfortable with Neil at the mediation. While my medical issues are not going to go away, my family and I were able to take care of financial worries because of the settlement that Lerners helped me recover.

This gives me some peace of mind, whatever the future holds for me and my family.

I am glad that I was referred to Neil. I have recommended Neil to other people who have been injured and who asked me who my lawyer was. I would recommend Neil and his team to anyone who is seriously injured."
Curtis, Carleton Place, Ont.

"I sustained severe injuries, including a brain injury and orthopaedic injuries, in a car accident that was not my fault. I am an engineer by training, and owned a successful business at the time of the accident. Due to my injuries, I was unable to continue working. Neil Wheeler and the team at Lerners acted for me and my family in my lawsuit against the driver at fault for the accident. I was impressed with their diligence and commitment to my case, and particularly to the timely manner that the case was prepared and resolved. They recovered a substantial sum for us in the lawsuit, which has helped me and my family try to deal with the effects of the accident.

Some time after the lawsuit against the other driver settled, my own insurance company stopped paying me accident benefits. The insurance company said that, because medical assessments it had arranged determined that I had not sustained a "catastrophic impairment", it had no further obligation to pay me benefits. We again hired Neil to assist us. Neil let us know that he had successfully conducted the trial of the leading case on catastrophic impairment, on behalf of another injured person. We started a lawsuit against my insurance company. Neil took the position that the assessors my insurance company sent me to had failed to apply the correct principles when determining whether I had sustained a catastrophic impairment. Shortly before trial, my insurance company reversed its earlier position and agreed to pay a significant sum in respect of my future entitlement to accident benefits. This has also helped me and my family deal with the unfortunate effects of my accident.

Neil always responded promptly to phone and email contact and took the time to thoroughly explain issues. This gave exceptional trust in him and his work. I would highly recommend Neil to anyone with a personal injury."
D.N.H.G.

"After a successful career as a civil servant, I completed law school and started a second career that allowed me to apply my legal skills. Unfortunately, I suffered serious orthopaedic injuries in a car accident. Due to my injuries, I was unable to continue with my new career. I retained Neil Wheeler at Lerners to act for me in my lawsuit against the driver at fault for the accident. Given the fact that I have a law degree, I feel I am able to comment on Neil's handling of my lawsuit with considerable insight. Neil and his team handled my lawsuit diligently and professionally. They achieved a very good settlement for me, and promptly. I would definitely recommend that someone who is seriously injured consider hiring Neil to protect his or her interests."
J.N.

"I practiced for many years as a nurse. Unfortunately, I was involved in a serious car accident and I sustained significant orthopaedic and other injuries. At the time of the accident, I spent the majority of my professional time as a surgical nurse at a large teaching hospital. This was demanding work. Unfortunately, my injuries prevented me from returning to this type of work and I was eventually unable to continue with my nursing career. A former patient of mine, who had also been seriously injured in a car accident some years before me, told me that his lawyer had been Neil Wheeler at Lerners. He recommended Neil to me. I contacted Neil and retained him to act for me in my lawsuit against the driver at fault for the accident.

Given my nursing background, I could see that Neil understood the medical issues in my case, and the implications of my injuries for my career. Neil kept me up to date about what was going on in the lawsuit, and responded to me promptly when I needed to speak to him or required additional assistance. Neil achieved a very good result for me in my lawsuit. I was glad that I was referred to Neil, and I would definitely recommend that someone who is seriously injured hire Neil."
Shirley K., Gloucester, Ont.

"I was sitting in a booth at a lounge in Toronto and was seriously injured when a large and heavy mirror fell off the wall and struck my head. I suffered a head injury and physical injuries. I had suffered a concussion in the past, and this made the effects of the head injury I sustained at the lounge even worse. I was off work for a long period of time. I eventually returned to work but I continue to suffer from a number of debilitating symptoms, including vertigo. I was not able to pursue the career path I had planned at the financial institution where I work. I knew someone who worked at an insurance company and he referred me to Lerners. He told me that Lerners has a good reputation for fighting for the plaintiffs and that insurance companies get nervous when dealing with Lerners because of how tough they are. I hired Neil Wheeler at Lerners to act for me in my claim against the lounge. Neil pursued my claim diligently. I attended with him at a settlement conference with a Judge and the opposing lawyers, and felt very comfortable with Neil's handling of my case and his understanding of the challenges and losses I had experienced.

My lawsuit settled shortly after the settlement conference. The amount of the settlement was larger than I had expected. A lawsuit is not fun, but Neil and his group helped make the process manageable for me."
Debbie

Presentations

• The Law Society of Upper Canada, Special Lectures 2008 - Personal Injury Law, April 2, 2008. Presentation: "Desbiens and Everything After" (read presentation)
• The Advocates' Society, Tricks of the Trade 2006, Chronic Pain and Mild Brain Injury Cases: Practical Strategies for Litigating the Invisible Injury, January 20, 2006. Presentation: "Catastrophic Impairment Analysis since Desbiens v. Mordini" (read presentation)
• The Canadian Institute, Auto Insurance Claims Litigation conference, Catastrophic Injuries after Desbiens: How Will this Case Affect Claims Under Bill 198?, June 9, 2005. Presentation: "Desbiens: Clarification of 'Catastrophic Impairment'" (read presentation)
• Insight Information Co., Litigating Disability and Auto Insurance Claims conference, Catastrophic Impairment: Desbiens - A New Beginning, April 19, 2005. Presentation: "Desbiens v. Mordini: Clarification of 'Catastrophic Impairment'" (read presentation)
• Sunnybrook (Sunnybrook Health Sciences Centre) Gut Club address, May 6, 2004. Presentation: "Tips to Minimize the Risk of Medical-legal Litigation"
• "Legal Briefs" program, City TV, 2004. Invited guest on topic of social host liability
• Ontario Bar Association, Personal Injury Litigation Getting Ready for Trial: A Crash Course conference, November 19, 2003. Presentation: "Retaining The Expert and Production of The Expert's File In Personal Injury Litigation" (read presentation)
• The Law Society of Upper Canada - Personal Injury for Law Clerks conference, June 14, 2002. Presented: "Client Interviews and Pre-pleading Matters" (read presentation)
• Ontario Trial Lawyers Association 2002 Spring Conference, May 24th and 25th, 2002, Playing to Win: Strategies for Success in a Changing Auto Insurance Environment. Presentation: "Settling The Bill 59 Accident Benefits Claim: The Good, The Bad Faith And The Ugly". (read presentation)

Programs chaired

• The Law Society of Upper Canada, "Statutory Accident Benefits for Law Clerks" conference, November 18, 2005 (chair)
• The Law Society of Upper Canada, "Personal Injury Part ll: Accident Benefits for Law Clerks" conference, January 30, 2004 (co-chair)
• The Law Society of Upper Canada, "Personal Injury for Law Clerks Part 1: Trial Preparation" conference, June 24, 2003 (co-chair)
• The Law Society of Upper Canada, "Personal Injury for Law Clerks" conference, June 14, 2002 (co-chair)
• Canadian Bar Association - Ontario, Civil Litigation Section program, "Privilege: For Your Eyes Only, Maybe", December 5, 2001 (co-chair)
• Canadian Bar Association - Ontario, Health Law Section program "Are You Prepared? Advocacy Before Health Tribunals", April 25, 2001 (co-chair)
• Canadian Bar Association - Ontario, Civil Litigation Section program, "An Appellate Perspective On Summary Judgment", June 9, 1999 (chair)
• Canadian Bar Association - Ontario, Civil Litigation Section program, "Unprotected Defendants: An Expanded Cast of Characters in a Motor Vehicle Action", April 2, 1998 (chair)

Publications

• Canadian Pain Coalition Newsletter, Fall 2011. Article: “How Are Health Records Used In A Lawsuit?” (read article)
• Canadian Pain Coalition Newsletter, Spring 2011. Article: What Is An Occupiers' Liability Claim? (read article)
• Canadian Pain Coalition Newsletter, Winter 2010. Article: "Rule Changes Offer Some Hope For Injured And Disabled Litigants" (read article)
• Canadian Pain Coalition Newsletter, Fall 2010. Article: "What Are My Rights If I Have Been Injured In A Car Accident?" (read article)
• Canadian Pain Coalition Newsletter, Fall 2009. Article: "What Is A 'Long-Term Disability Benefits' Claim?" (read article)
• Canadian Pain Coalition Newsletter, Summer 2009. Article: "Tips to Help You Choose An Injury or Disability Lawyer" (read article)
• The Law Society of Upper Canada, Special Lectures 2008 - Personal Injury Law, April 2, 2008. Article: "Desbiens and Everything After" (presented at conference) (read article)
• The Lawyers Weekly, February 16, 2007 issue. Article: "Change of Venue Rule Allows Earlier Trial Dates" (read article)
• The Advocates' Society, Tricks of the Trade 2006, Chronic Pain and Mild Brain Injury Cases: Practical Strategies for Litigating the Invisible Injury conference, January 20, 2006. Article: "Catastrophic Impairment Analysis since Desbiens v. Mordini" (presented at conference) (read article)
• The Canadian Institute, Auto Insurance Claims Litigation conference, Reducing Regulatory Risk: Managing Claims under the New Regulations, September 22nd and 23rd, 2005. Article: "Desbiens v. Mordini: Implications For Motor Vehicle Litigation" (read article)
• The Canadian Institute, Auto Insurance Claims Litigation conference, Catastrophic Injuries after Desbiens: How Will this Case Affect Claims Under Bill 198?, June 9, 2005. Article: "Desbiens: Clarification of 'Catastrophic Impairment'" (presented at conference) (read article)
• Insight Information Co., Litigating Disability and Auto Insurance Claims conference, Catastrophic Impairment: Desbiens - A New Beginning, April 19, 2005. Article: "Desbiens v. Mordini: Clarification of 'Catastrophic Impairment'" (presented at conference) (read article)
• Advocacy Kit, a guide to the litigation process and related medical-legal issues, prepared at the request of the Arthritis Society, December 8, 2003
• Ontario Bar Association, Health Law Section Newsletter, Vol. 13, No. 2, November 2003. Article: "R v. Serendip Physiotherapy Clinic: Balancing Patients' Privacy with the Need to Investigate Crime" (read article)
• Ontario Bar Association, Personal Injury Litigation Getting Ready for Trial: A Crash Course, November 19, 2003. Article: "Retaining The Expert and Production of The Expert's File In Personal Injury Litigation" (presented at conference) (read article)
• Ontario Bar Association, Civil Litigation Section Newsletter, Vol. 12, No. 2, October 2003. Article: "Motor Vehicle Litigation: The Only Constant is Change"
• Ontario Bar Association, Civil Litigation Section Newsletter, Vol. 12, No. 1, August 2003. Article: "Amendments to Rule 37.02"
• Ontario Bar Association, Health Law Section Newsletter, Vol. 12, No. 3, May 2003. Article: Hospital Records: In for a Penny, In for a Pound (read article)
• Ontario Bar Association, Health Law Section Newsletter, Vol. 12, No. 2, January 2003. Article: "Informed Consent: Not Just What, But Who?"
• Ontario Bar Association, Health Law Section Newsletter, Vol. 12, No. 1, November 2002. Article: "Browne (Litigation Guardian of) v. Lavery: An Expert's 'Findings' May Be the Expert's 'File'"
• The Law Society of Upper Canada - Personal Injury for Law Clerks conference, June 14, 2002. Article (co-author): "Client Interviews and Pre-pleading Matters" (also co-chair) (read article)
• Ontario Bar Association, Health Law Section Newsletter, Vol. 11, No. 2, May 2002. Article:"To v. Toronto Board of Education: Reassessing Family Law Act Damages"
• Ontario Trial Lawyers Association 2002 Spring Conference, May 24th and 25, 2002, Playing to Win: Strategies for Success in a Changing Auto Insurance Environment. Article "Settling The Bill 59 Accident Benefits Claim: The Good, The Bad Faith And The Ugly" (presented at conference) (read article)
• Ontario Bar Association, Health Law Section Newsletter, Vol. 10, No. 1, November 2000. Article: "Limitations Reform" (read article)
• Ontario Bar Association, Civil Litigation Section Newsletter, Vol. 7, No. 2, December 1997. Article: "Expert Evidence and the New Rule 53.03" (read article)

Memberships

• Ontario Trial Lawyers Association
• Ontario Bar Association (including serving on OBA Civil Litigation Section Executive 1997-2004, and OBA Health Law Section Executive, 2001-2004)
• The Advocates' Society
• Medico-Legal Society of Toronto

Education

• Admitted to Ontario Bar (1996)
• Bachelor of Laws, The University of Western Ontario (1994)
• Bachelor of Journalism (Honours) program, Carleton University (1989 - 1991)

Personal information

Neil is active in sports, including squash and distance running. He has completed a number of marathons and biathlons in Canada and the United States, including the New York City Marathon. His other hobbies include travelling, music, movies and reading. Neil speaks conversational French