Author Archives: Admin2

Our Not so Just Justice System

Guest Blog by Brenda Barringer

One of my favourite quotes, commonly attributed to Sir Edmund Burke says, “All that is necessary for the triumph of evil is that good men do nothing.”

This I believe and this is why I attempt to shed a bit of light on the justice system as regards personal injury lawsuits.

Having been through litigation twice now, I am convinced there is no justice in the justice system.

In some places in the world a life is taken and the perpetrator will die; a life for a life. In other places they are put in prison for a lifetime sentence, usually 25 years, so not really a lifetime. Sometimes they receive a lifetime sentence with no parole.

Whatever the sentence handed down, is justice really served?

Can a life be brought back from the dead?

Can catastrophic injuries be undone?

Can families of victims ever believe that justice will be served by the decision of a jury?

I believe not and this is backed up by lawyers, one of whom heard it from one of our own judges.

It seems I am in good company.

One definition of Compensation, which is what happens in litigation, is the act or state of compensating, by making up for someone’s loss, damage, or injury by giving the injured party an appropriate benefit. Some of those benefits are compensation for lost wages, money for ongoing therapies, for pain and suffering for injuries which may last the rest of your life.

However, I want to share one example of how our justice system fails us and is in fact an injustice.

Should your legal matter go the distance and you find yourself sitting in court in a trial, this one little detail could completely derail the process.

If anyone hints at or outright tells the jury that the person being sued is protected by insurance that the monies settled on does not come out of the defendants pocket, a mistrial can result. It is a cardinal sin to mention it’s their insurance that pays the settlement. more…

December 11 2018

December 7, 2018

Dec 5 2018 RESPONSE from Brian Mills re taking action on HST issue
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2019 Automobile Insurance Legislated and Regulatory Adjustments and Optional Indexation Rates Under the Statutory Accident Benefit Schedule

  • the 2019 monetary thresholds and deductibles for determining non-pecuniary tort awards under the Insurance Act and O. Reg. 461/96, Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996
  • the 2019 indexation percentage for the Optional Indexation Benefit under section 30 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (2010 SABS)
  • the 2019 indexation percentage for the Optional Indexation Benefit under section 29 of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (1996 SABS)
  • the 2019 indexation percentage and revised deductibles/monetary amounts applicable to claims under the Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and before November 1, 1996 (1993 SABS)

http://www.fsco.gov.on.ca/en/auto/autobulletins/2018/Pages/a-06-18.aspx

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Delivery of Expert Reports – A One Time Only Event?

In 2016, significant amendments were made to the Rules of the Superior Courts to address inefficiency and delay in the court system. These included certain provisions to ensure that expert evidence is presented to the court in an efficient manner. A recent case gives an interpretation of one aspect of those rules.

https://www.lexology.com/library/detail.aspx?g=cbf3dbe0-8a45-46d9-afff-e5b9e20fad54&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-12-07&utm_term=

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Traffic accidents are eighth leading cause of death globally, according to WHO

The number of traffic-related deaths reached a high of 1.35 million in 2016, according to the 2018 Global Status Report on Road Safety, released by the World Health Organization on Friday. It has also moved up to the eighth leading cause of death for people of all ages, ahead of HIV/AIDS and tuberculosis.
 
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TD Insurance denials criticized after others come forward

Bianca Williams isn’t the only TD Insurance customer who was recently denied critical insurance benefits. After Williams’ story was published and aired by Global News, other TD Insurance customers came forward to say they had been denied benefits payments, too.
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Lawyer tries to overhaul civil jury process

A Toronto personal injury lawyer is not giving up his fight to reform the province’s civil jury process, despite a setback in the Ontario Superior Court of Justice.

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What is legal expense insurance?

Legal expense insurance (LEI) covers various types of legal expenses incurred by the policyholder and is often written on a group basis, according to the Insurance Bureau of Canada (IBC).

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Changes to social assistance: What Was Announced, What it Means, and What’s Next
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The CPSO is in the process of developing a new strategic plan. A strategic plan is a roadmap that provides direction and aligns the day-to-day activities of the organization to its most important priorities. CPSO has engaged the consulting firm OPTIMUS | SBR to support this process. Feedback from the general public and other stakeholders is an important input into the planning process, and we are seeking your participation in the following survey. It should only take you 15 minutes to complete. 
 
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Aviva Insurance v. Queeley (a.k.a Brown), 2018 ONSC 7049 (CanLII), <http://canlii.ca/t/hwfkp  
[1]            I am the case management judge who has been appointed to manage these actions. These actions concern the termination of Ms. Tracey Brown’s employment in 2013 by her former employer, KMI Brokers, as well as a related action brought by Aviva.  Both Aviva and KMI claim that Ms. Brown engaged in fraud in writing insurance policies. 

[7]           Tracey Brown, also known as Tracey Queeley, was employed as an insurance broker by KMI Brokers.  She was originally hired in August of 2011.  Her employment was terminated by KMI Brokers effective April 23rd, 2013.  Ms. Brown commenced an action against KMI Brokers, and its principals alleging, inter alia, wrongful dismissal.  It is this action that is almost settled.

[8]             Approximately eight months after Ms. Brown was terminated, Aviva Insurance Company of Canada (“Aviva”) commenced an action against Ms. Brown.  This action claimed, inter alia, damages for fraud, conspiracy, breach of fiduciary duty and breach of trust in the amount of $150,000.00 as well as costs for the investigation that Aviva had conducted into the conduct of Ms. Brown.

[9]           Aviva sought, and obtained, an ex parte Mareva Injuncton from Lederer J. on October 28th, 2013, the same day that Aviva commenced its action.  That injunction was granted based in part on an Affidavit sworn by Ms. Mavis Hawes, a Fraud Technical Specialist in Avivia’s Anti-Fraud Management Department.

[10]        This injunction was dissolved by Perell J. on November 13th, 2013, but a Certificate of Pending Litigation (“CPL”) was registered against Ms. Brown’s home.  Ms. Brown claims that the registration of this CPL caused her to be unable to refinance her home while she was unemployed, and led to the loss of her home.

[11]        Ms. Brown brought a counter-claim against Aviva, seeking damages for libel and/or slander, intentional infliction of mental suffering, punitive and aggravated damages.

[12]        Aviva defended this action.  A portion of Aviva’s Reply and Defence to the Counterclaim reads as follows:

4. Seventeen investigations from Aviva Canada’s Anti Fraud Management Unit were assigned to the investigation.

5. The work of the investigators included: (a) conducting interviews of the insureds and representatives of KMI; (b) reviewing the insurance claims submitted; and (c) conducting verifications on information put forward in the applications for insurance on the policies issued.

10. To the extent that the words set out in statements by Aviva Canada are statements of fact, they are true. To the extent that they are expressions of opinion, they are fair comments made in good faith and without malice on matters of public interest, namely the duty of a licensed insurance broker to carry out the duties honestly, with integrity and in good faith.

[13]        Aviva also made a complaint to the Registered Insurance Brokers of Ontario (“RIBO”).  RIBO is the organization that regulates insurance brokers.  Ms. Brown was qualified as a Level 1 Broker, which meant that she had to work under the supervision of a Level 2 Broker.
 
[16]
 
f)     Undertaking No 2– to advise as to whether Aviva provided any training to Ms. Brown.  The answer to this question is that it was determined that training was likely provided, but that this fact could not be confirmed.  After discussion, it was determined that Aviva would advise Ms. Brown’s counsel as to why it thought that training was likely provided, and why this fact could not be confirmed.
k)   Undertaking No. 14– To continue to advise as to whether there are any other files handled by Ms. Brown with which Aviva has no issue.  Originally, Aviva alleged that thirty-six (36) cases demonstrated fraudulent conduct on the part of Ms. Brown.  Twelve of these were abandoned at discovery.  Aviva is to confirm its position on the remaining cases where it is alleging fraud by December 24th, 2018
 

December 6, 2018

Proposed Court Reforms Benefit Rich Insurers at the Expense of Average Litigants in Ontario

In a perfect world, the Courtroom presents a level playing field. There are rules which are meant to be followed. There is a neutral unbiased judge who acts as trier of fact; decides right from wrong; just from unjust.

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Insurer pushing for new auto fraud laws

A major insurer is calling for new laws prohibiting various forms of auto insurance fraud in Ontario.

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Time to increase auto liability coverage: Lawyer

Ontario’s new government should require motorists to buy more liability coverage than is currently mandatory, a lawyer who represents claimants says.

 
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The Surprising and Powerful Way Your Posture Affects Your Mood

Shoulders back. Head up. Look forward. These instructions, which I’m sure you heard more than once from some well-meaning adult when you were a kid, are wise for several reasons – which they probably didn’t even know at the time. As it turns out, paying attention to your posture can make a big difference in your mood.

 
https://www.thebestbrainpossible.com/posture-mood-brain-emotions/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork
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Spinal Cord Injury and TBI recognized as global health priorities

Traumatic brain injury (TBI) and spinal cord injury (SCI) are increasingly recognised as global health priorities in view of the preventability of most injuries and the complex and expensive medical care they necessitate.https://www.thelancet.com/journals/laneur/article/PIIS1474-4422(18)30415-0/fulltext

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Sokoloff v. Mahoney, 2018 ONSC 7223 (CanLII), <http://canlii.ca/t/hwf4f  
[1]                        Persons injured in Ontario motor vehicle accidents, who seek compensation for their injuries face a daunting challenge. They will need skilled legal counsel to properly advance their claims, while generally not having sufficient funds to pay their lawyer.
[2]                        We are fortunate that some counsel are willing to wait for their compensation until the case is resolved and moreover are willing to risk a lack of success at trial, by advising clients with phrases such as, “we don’t get paid until you get paid”.
[3]                        This is such a case, except the client got paid over one million dollars in early 2010 and their original counsel has yet to receive any payment for the plaintiff firm’s professional  services. I therefore turn to a partial history of this matter with a view to assessing how this case differs from “the peaceful and orderly resolution of disputes we strive to achieve.”
[77]                    I am not satisfied that the position of the Mahoney defendants will “appear” to be independently defended in their best interests, if their present counsel relationship continues.
[78]                    I am therefore directing that Falconeri Munro TucciLLP be removed as counsel for the defendants Wayde Mahoney, Kevin Mahoney and Carol Mahoney.
[79]                    This may present practical consequences, but inasmuch as they have received the lion’s share of the proceeds from the original negligence action, I am satisfied that they will be in a position to seek new independent counsel
[80]                    Clearly portions of the evidence put before me suggest that there is at least a possibility that one or more of the Mahoneys may be  in a position to seek indemnification, if that is seen to be appropriate. .  I anticipate that such new representation may well be able to negotiate a basis for their removal from this action.
[81]                    One of the difficulties to be faced in a case such as is that there is no specific applicable rule dealing with the filing obligations when counsel is removed over their objection.
[82]                    I am therefore suggesting, relying upon Rule1.04 (2) that the parties adapt Rule 15.03 and 15.04 (8) mutatis mutandis to advise the court and parties as matters of future representation are clarified.
[83]                    As to costs I have determined to award costs to the moving party for the entire motion including the presently determined element, as against the defendants on a partial indemnity basis. Given the proximity of the trial in this case I have determined to defer to the trial judge with respect to a quantum which may combined or set off against any future costs awards.

December 5, 2018

How these proposed lawsuit rules could benefit insurers

If proposed rules affecting Ontario lawsuits are brought into place, insurers could be paying much less for plaintiffs’ expert witnesses, a lawyer suggests. 
 

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Aviva Canada reveals Ontario’s verdict on fraudulent claims

Aviva’s latest report reveals that Ontarians – who pay some of the highest auto insurance rates in Canada – are more than aware of the insurance fraud issue that is causing their premiums to increase. 
 
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Fraud inflating auto insurance rates, Ontario drivers say

Most Ontarians believe there is wide-spread fraud in the auto insurance industry that needs fixing, a new survey shows. 
 
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Ontario police force begins naming, shaming accused impaired drivers

An Ontario police force has started naming and shaming all people charged with impaired driving by posting their names online. 
 
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MANDEL: Uber driver in crash that killed passenger gets $1,000 fine, driving ban

Life is so terribly cheap when it comes to careless driving.
On the day after what would have been Nick Cameron’s 29th birthday, the Uber driver guilty of the careless driving that led to his passenger’s death has been fined $1,000, banned from driving for a year and ordered to perform 50 hours of community service.
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LETTER: Columnist off target on N.L. insurance industry

To insurers, the landscape that Brian Jones paints in “Newfoundlanders are the caplin of mankind” is rather glorious. Jones claims that insurance companies can charge whatever they want for auto insurance, whenever they want. 
 
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Anger Following Brain Injury

Anger is a very common problem after brain injuries. When someone with a brain injury has a problem with anger, there are usually several causes acting in combination. Some people are angry about the injury or problems that may have come with it, such as disabilities and loss of job, friends, money and control over one’s life. 
 
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Cadieux v. Cloutier, 2018 ONCA 903 (CanLII), <http://canlii.ca/t/hwdxl  
 

[1]         These reasons, and the reasons in Carroll v. McEwen, 2018 ONCA 902 released concurrently, address, among other issues, the intersection of tort damages and statutory accident benefits (“SABs”) under s. 267.8 of the Insurance Act, R.S.O. 1990, c. I.8. This appeal concerns the deduction from the tort damages award of SABs paid before trial. The Carroll appeal concerns the assignment of future SABs to the tort liability insurer.

[2]         Both appeals require this court to determine how SABs are matched to tort damages for deduction and assignment purposes in accordance with the statute. Two different methods of matching SABs with tort awards, reflecting different interpretations of the statute, have developed in the case law.

[3]         One approach requires temporal and qualitative matching of SABs to heads of tort damages (the so-called “apples to apples” or strict matching approach) and is based on this court’s decision in Bannon v. McNeely (1998), 1998 CanLII 4486 (ON CA)38 O.R. (3d) 659 (C.A.)Bannon involved an earlier and much different statutory scheme. The reasoning in Bannon was based on the decision of the British Columbia Court of Appeal in Jang v. Jang (1991), 1991 CanLII 2015 (BC CA)54 B.C.L.R. (2d) 121 (C.A.). The authority of that decision was subsequently questioned by the Supreme Court of Canada in Gurniak v. Nordquist2003 SCC 59 (CanLII)[2003] 2 S.C.R. 652.

[4]         More recently, a “silo” approach has been applied, which requires the tort award only to match generally with the broad corresponding SABs categories or silos.

[5]         This court’s decision in Gilbert v. South2015 ONCA 712 (CanLII)127 O.R. (3d) 526  might be viewed as an application of the “apples to apples” approach in the assignment context, while this court’s decision in Basandra v. Sforza2016 ONCA 251(CanLII)130 O.R. (3d) 466 is an example of the silo approach in the deduction context. This conflicting case law was most recently addressed by this court in Cobb v. Long Estate2017 ONCA 717 (CanLII)416 D.L.R. (4th) 222 and El-Khodr v. Lackie2017 ONCA 716 (CanLII)416 D.L.R. (4th) 189, leave to appeal refused, [2017] S.C.C.A. No. 461.[1]

[6]         The Carroll appeal was initially heard by a panel of this court and was under reserve when this court released its decisions in Cobb and El-Khodr. The Cadieux appeal was scheduled to be heard in September 2017 when counsel for the respondent requested that a five-judge panel be constituted to determine whether this court’s decisions in Bannon and Gilbert, remain good law in light of Cobb and El-Khodr. That necessarily raised the issue of whether Cobb and El-Khodr themselves were correctly decided.

[7]         The Cadieux and Carroll appeals were heard together by a five-judge panel. The Ontario Trial Lawyers Association (“OTLA”) was granted leave to intervene on the interpretation and impact of ss. 224 and 267.8 of the Insurance Act on civil trials and the retrospectivity of the amendment to the Insurance Act with respect to prejudgment interest.

[8]         For the reasons that follow in this case, and in Carroll, we affirm the silo approach to both deductibility and assignment of SABs set out at paras. 38-56 of Cobb and at paras. 33-72 of El-Khodr. The silo approach is consistent with the statutory language of s. 267.8, is fair to plaintiffs, defendants and their insurers, and promotes efficiency in motor vehicle accident litigation. The decision of the Supreme Court of Canada in Gurniak questions the jurisprudential underpinnings of Bannon. In that light, and in view of subsequent changes to the Insurance ActBannon and Gilbert can no longer be regarded as binding authority in relation to the degree of “matching” required between tort damages and SABs for deduction and assignment purposes.

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Carroll v. McEwen, 2018 ONCA 902 (CanLII), <http://canlii.ca/t/hwf2k  

B.           THE ISSUES

[12]     The appeal before this court is narrow. Neither the allocation of liability nor the quantum of damages is contested. There are two general issues.

[13]     The first or main issue is whether the trial judge erred in assigning to Aviva and Pilot Ms. Carroll’s right to SABs “in respect of medical and rehabilitation benefits and attendant care benefits”, provided the judgment is paid in full. Two sub-issues arise:

(1) Did the trial judge err in law in granting the conditional assignment where the “jury’s lump sum assessment did not allow the court to match the award of future care costs to the particular accident benefits that might be received in the future”?[1]

(2) Did the trial judge err in law in granting the conditional assignment order prematurely, before the judgment had been paid in full?

[14]     The second general issue relates to the costs order. The trial judge reduced the costs order for three reasons, namely: (1) the behaviour of the appellants’ counsel relating to a September 11, 2015 settlement offer made by the respondents; (2) the lack of benefit to the appellants in pursuing the trial; and (3) behaviour by the appellants that extended the trial. The appellants claim that each of these bases for doing so was in error, so each must be considered in turn. The threshold question is whether leave to appeal the costs order should be granted on any or all of these bases. If leave is granted, it must then be determined whether the trial judge erred in the costs order he made.

E.           ORDER

[81]     We dismiss the appeal from the conditional assignment order, and vary the conditional assignment order in the judgment as follows. The amendments we make are underscored for ease of identification:

(1)   Within 30 days of the receipt of this judgment, the Plaintiff Barbara Lynn Carroll is to disclose to the Defendant the Aviva Insurance Company of Canada the amount that she has received by way of statutory accident benefits payments in respect of medical and rehabilitation benefits and attendant care benefits since October 30, 2015.

(2)   Upon payment by the Aviva Insurance Company of Canada in its capacity as the insurer of the Defendants Robert McEwen and Caroline McEwen and by Pilot Insurance Company, in its capacity as the OPCF 44R insurer of Barbara Lynn Carroll, of the sum of $2,610,744.32 plus costs and post-judgment interest, minus the amount of statutory accident benefits payments in respect of medical and rehabilitation benefits and attendant care benefits that Barbara Lynn Carroll has received since October 30, 2015, Barbara Lynn Carroll will assign to the Aviva Insurance Company of Canada and Pilot Insurance Company, all payments in respect of the motor vehicle accident of March 28, 2009 that Barbara Lynn Carroll is entitled to receive, after the judgment has been paid, for statutory accident benefits in respect of medical and rehabilitation benefits and attendant care benefits from her own insurer, Pilot Insurance Company. Such payments shall be made to the Aviva Insurance Company of Canada and Pilot Insurance Company and/or such payments shall be assigned to the Aviva Insurance Company of Canada and Pilot Insurance Company. This right of assignment is conditional on payment by the Aviva Insurance Company of Canada and/or Pilot Insurance Company, within 30 days of the receipt by the Aviva Insurance Company of Canada of the disclosure of the amount Barbara Lynn Carroll has received by way of statutory accident benefits payments in respect of medical and rehabilitation benefits and attendant care benefits since October 30, 2015. Moreover, to the extent that Barbara Lynn Carroll assigns her rights in respect of all payments to which Barbara Lynn Carroll is entitled in respect of the accident of March 28, 2009, from the Aviva Insurance Company of Canada and Pilot Insurance Company for medical and rehabilitation benefits and attendant care benefits, Barbara Lynn Carroll will co-operate with the Aviva Insurance Company of Canada and Pilot Insurance Company in any claim or proceeding brought by the Aviva Insurance Company of Canada and Pilot Insurance Company in respect of such assigned payments including participating in any mediation, litigation or arbitration proceeding commenced by the Aviva Insurance Company of Canada and Pilot Insurance Company to recover such payments.

[82]     We also deny leave to appeal the costs order.

[83]     As agreed between the parties, we award costs in the appeal to the respondents, together, in the amount of $35,000, inclusive of HST and all disbursements.

December 4, 2018

Aviva Fraud Report 2018: Majority of Ontarians believe 25% of claims are fraudulent

TORONTODec. 4, 2018 /CNW/ – Ontarians, who pay among the highest auto insurance rates in the country ($1,428 per driver), are aware of insurance fraud and supportive of initiatives to fight it, according to the second annual Aviva Fraud Report, released today. 
 
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Yonge St. van attack lawsuits face hurdles with insurance claims

If a drunk driver veered onto a sidewalk, killing 10 people and injuring 16, his auto insurance policy would typically pay damages awarded to the injured parties in a lawsuit.

https://www.thestar.com/news/gta/2018/12/03/van-attack-lawsuits-face-hurdles-with-insurance-claims.html______________________________________________________________

JURY AWARDS $188,000; COURT FORCED TO REDUCE IT TO $5,800

If ever there was any doubt about the carnage wrought by the Ontario legislature for the benefit of the Insurance industry, look no further than the recent case of A.B. V Waite (2018 ONSC 2151), a decision by Justice C McLeod of the Ontario Superior Court of Justice. 
 
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Key questions to ask providers about legal expense insurance

When considering legal expense insurance, there are a handful of questions law firms should be asking insurance providers, say Dominique Zipperand Joanna Milnes, both with legal expense insurance company DAS
 
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Judge says AI could have been used

A judge capped the costs award in an occupier’s liability personal injury costs judgment, writing that the use of artificial intelligence should have “significantly reduced” counsel’s preparation time. The decision in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959 reduced the starting point for disbursements by $11,404.08, citing both research fees as well as other aspects of the lawyers’ bill, and awarded a total cost award against the plaintiff of $20,000. 
 
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Law Society Accountability for the Access to Justice Problem 

Law societies are not trying to solve the A2J problem, but instead provide “alternative legal services”[1] that merely help that majority of the population that cannot afford legal services learn to live with the problem. That is inevitable because of the operative concept of a bencher[2] and the institutional culture of our law societies, i.e., they do only that which is compatible with that concept and with what they have always done, which does not include the affordability of legal services. 
 
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TD denies woman’s insurance even as she awaits bone marrow transplant

Bianca Williams needs chemotherapy, radiation and a bone marrow transplant. She’s already on a treatment regime that includes frequent blood transfusions. 
 
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Is Ontario’s patient ombudsman next on the Ford government chopping block? 

Ontario’s health minister Christine Elliott says she takes patient care seriously but won’t say whether her former job —Ontario’s patient ombudsman — will be kept or cut by her government. 
 
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Spotlight on Ontario’s Caregivers 
 
The Change Foundation has worked with family caregivers since 2015 to understand what it is like to be a caregiver. Specifically, we look at the experience caregivers have with the healthcare system. We have launched an annual “Spotlight on Caregivers” survey in partnership with the Patient Advisors Network to better understand the family caregiver in Ontario. 
 
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Number of Ontario seniors who used food banks jumped a ‘staggering’ 10% last year

The number of seniors across Ontario who turned to food banks for emergency support jumped by a “staggering” 10 per cent last year, according to a new report. 
 

December 3, 2018

Insurance company continues to bill widow after she cancels husband’s auto policy

A major Canadian insurance company direct-debited a Toronto-area widow for 16 months even though she cancelled her policy and sold the vehicle when her husband died. As Sean O’Shea reports, the company returned the money after Global News asked why it persisted with making automatic withdrawals.
 
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Spotlight on personal injury law affects reputation

Over the past year, the practices of the personal injury profession, especially in the areas of billing, referral fees and advertising, have come under significantly more public and regulatory scrutiny. 
 
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Under Ford’s plan, it’s the lawyers who win in the end
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Court to decide on priority of payment in ATE policy
 
An Ontario court is deciding who has priority of payment in an After-The-Event (ATE) insurance policy where there may not be any previous agreement for disbursements, says Nick Robson, vice-president and general counsel in the Toronto office of TheJudge Global
 
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A Deductible on Pain and Suffering Damages

In Ontario, if someone injures you in a car accident, you have a legal right to sue them for their wrongdoing.  One of the most common claims in a lawsuit is for pain and suffering (commonly called general damages).  
 
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Cannabis oil: separating fact from fiction

TORONTO — From chronic pain to epilepsy, cannabis oil is being used by Canadians to treat a host of medical conditions. 
 
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Call revived to end ICBC car insurance monopoly

Poor driving habits of British Columbians are leading to more accidents while ICBC is drowning in annual financial losses despite having a monopoly on the auto insurance industry. 
 
 

November 30, 2018

FAIR letter to FSCO Superintendent Brian Mills re the HST issue
More info on the class action and the Superintendent’s response to our first letter: http://www.fairassociation.ca/2018/11/accident-victims-denied-millions-in-benefits-by-insurers-lawsuits-allege/
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Auto insurers’ bitter costs dispute draws rebuke from judge

A bitter cost dispute between two auto insurers over an abandoned court action has led to a rebuke from a judge, who ordered Wawanesa to pay Dominion its legal fees. 
 
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Tomec v Economical Mutual Insurance Company – SABs limitation period is a ‘hard’ one set at two-years – Not subject to Discoverability

In this application, the court is required to grapple with the difficult question of whether a limitation period is a “hard” one, that is, one that bars a claim regardless of whether the claimant is aware of whether he or she has a claim; or whether it may be relieved against where the claimant only becomes aware that he or she has a claim sometime after the limitation period expires. 
 
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Social Assistance in Ontario: What’s happened and what’s next? Webinar

December 6, 2018 10:00 a.m. to 11:30 a.m. Eastern Standard Time – On November 22, 2018, the Ontario government announced a number of changes to Ontario Works (OW) and the Ontario Disability Support Program (ODSP).

 
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Cioffi v. Modelevich et al., 2018 ONSC 7084 (CanLII), <http://canlii.ca/t/hw8rb  
 

[1]       This is a motor vehicle action. The amount in issue is not large but I expect it is important to the defendant insurer. The issue is whether the insurer is required to pay the full cost of a recent mediation or only half of the cost. There is no dispute that s. 258.6(1) of the Insurance Act provides that where a plaintiff requests a mediation, the insurer shall pay the full cost. However, there is also no dispute that as a Toronto action, a mediation is mandatory pursuant to Rule 24.1 of the Rules of Civil Procedure and that the costs of the mediator are to be shared equally pursuant to s. 4(2) of O.Reg. 451/98 made under the Administration of Justice Act.

 [2]      The plaintiff argues that there is a conflict in the two statutes and that the Insurance Act prevails by virtue of Rule 1.02, which provides that theRules do not apply if a statute provides for a different procedure.

[6]        The clear intention of the Insurance Act was to allow a plaintiff to request a mediation to be paid for by the insurer in the hope that the action might be resolved. The policy reasons seem clear – I do not think it is meant to apply only where a plaintiff is impecunious as suggested by Mr. Sazant. Clearly the legislature assumed that in these circumstances the insurer is in a better position to absorb the costs and pay for the costs of the mediation.  

 

November 29, 2018

Feeling the Anger 

I understand why so many people are so angry. The legal system in Canada has let down its users, the communities it serves, and its own values of fairness and equality. 

https://representingyourselfcanada.com/feeling-the-anger/

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Ontario’s social assistance reforms hint at direction, offer few specifics, and have problematic implications

Analysis of the just announced reforms to social assistance resulting from the Ontario government’s “one-hundred-day” review will have to wait until further details are made public. Many of the reforms are still too vague to assess. 

https://maytree.com/publications/ontarios-social-assistance-reforms-hint-at-direction-offer-few-specifics-and-have-problematic-implications/

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Attorney general wrong in blaming lawyers for ICBC costs, trial lawyers say

Distracted and impaired motorists – and not the ensuing legal costs – are the primary drivers of Insurance Corp. of British Columbia’s (ICBC’s) financial problems, say the insurance corporation and the association representing provincial trial lawyers. 
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For those following the James Sears story:

Christie Blatchford: No court expert needed to know repulsive Your Ward News paper is anti-Semitic

If it seems like yesterday that James Sears and LeRoy St. Germaine were making headlines, well, that’s because it was. 
 
 
 

November 28, 2018

Free civil legal clinics to stay open through 2019 after getting $525K from Feds, legal community

A program that gets lawyers to volunteer their time to help people navigate the civil court system has been saved from closing for at least another year after receiving a one-time $250,000 contribution from the federal government and $275,000 in donations from the legal community. 
 
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TO LEND OR NOT TO LEND …. THAT IS THE QUESTION

How often have you lent your car to a family member, friend or colleague without giving it a second thought? Perhaps it’s time you did. 
 
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Distracted driving will be a $1,000 fine in Ontario and lead to licence suspension

The penalty for Ontario drivers caught using their phones will increase to $1,000, along with a three-day licence suspension and three demerit points. This will more than double the current distracted driving fine of $490. 
 
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Ruling on dangerous driving death speaks to a wider problem

A recent ruling that found an Ottawa man not guilty of dangerous driving causing death and leaving the scene of a fatal collision speaks to a much wider problem, Toronto critical injury lawyer Patrick Brown tells CBC News
 
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Self-Represented Parties and Sharp Practice by Counsel – Should We Be Thinking Differently?

War is the means by which nation states have sometimes resolved their differences. Litigation is the means by which people in our society sometimes resolve their differences. In both cases, there is value in prescribing the rules of engagement. 
 
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Rethinking the “Patient Complaint” Process

I’ve often thought we need a re-imagining of the concept and process for the ‘compliments and complaints’ process in healthcare and hospital settings. I’m not sure about any of you, but I was raised not to complain. Complaining was synonymous with griping and whining. It is defined as a “statement of disagreement or discontent” and often does not lead to a solution based conversation. 
 

November 27, 2018

Lawyers say benefits of statutory deductible waning

The statutory deductible for pain and suffering is ripe for reform, according to personal injury lawyers. 
 
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“REASONABLE AND NECESSARY”: A REFRESHER

Often, the insurer’s reason is that the proposed treatment is not “reasonable and necessary,” which is the governing legal test for eligibility for medical and rehabilitation benefits. 
 
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Social Assistance Revamp; Losing the PC Presidential Bid 
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What it takes to get off social assistance

Callers talk of creating their own jobs, cycling on and off ODSP, facing stigma from employers and harassment from social workers. 
 
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Concussions Post-Injury: Noise as Cause of Symptoms

It’s no secret that one of the symptoms commonly related to concussion is sensitivity to sound. What may have previously been an acceptable sound level now is unbearable, painful, and causes more symptoms – usually immediately. I’d like to assert that post-injury, sound crosses the threshold: it becomes noise.  It becomes a cause
 
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ICBC has posted a net loss of $582 million for the first six months of our current fiscal year (April 1 to September 30, 2018), reflective of the continued pressure ICBC is under from the rising number and cost of claims.