Author Archives: Admin2

June 7, 2019

OCA decision may mean more work for lawyers: Romero

Personal injury lawyers may have to change how they present cases that seek damages for motor vehicle accidents following a recent ruling by the Ontario Court of Appeal (OCA), says Toronto mediator Victoria Romero

Are you guilty of these five dumb driving habits?

You know all the stuff you have to do to stay safe in your vehicle: wear your seatbelt, don’t drink and drive, and put down the phone. 

Tornado victims sue insurance company: ‘This is an integrity issue’

Today, almost nine months later, Campbell, 85, is not back in her home, and it’s unclear how long that will take. Campbell’s family and their insurance company agreed that the house had to be demolished. But they still haven’t agreed on how much it should cost to replace it. The insurance company, Desjardins General Insurance Group, gave Dunn quotes between $155,000 and $195,000 less than the lowest estimate Campbell’s daughter, Janice Dunn, received from three contractors she asked for a quote. 

Michigan Embarks on ‘Historic’ Overhaul of Its Auto Insurance, Ending Unlimited Medical Benefits

Michigan Gov. Gretchen Whitmer last week signed a “historic” overhaul of the state’s car insurance system that, beginning in 13 months, will let drivers choose their medical coverage instead of them being required to buy unlimited benefits. 
Howie, Sacks & Henry LLP v. Deligioridis, 2019 ONSC 3268 (CanLII), < 

[2]               The clients retained Michael J. Henry and Howie, Sacks and Henry LLP on or about April 23, 2012 through March 5, 2013 with respect to five tort and an accident benefits files for the clients, a tort and accident benefits file for each of Sophie and Mary and accident benefits file for Harriet. Following this retainer, the lawyers rendered an account in the total amount of $74,069.86 for the five files. An assessment of these amounts was scheduled and, after five appointments and adjournments by the clients over a period of five years, the assessment officer ordered that there would be no further adjournments and that the assessment would be heard December 4-6, 2017. Following the three-day hearing, in which Sophie appeared, by agreement, on behalf of all three clients and cross-examined the witnesses, Madam Assessment Officer Chiba, in considered reasons, awarded the solicitors $17,500 plus costs of $5,085, inclusive of HST for a total of $22,585 on December 6, 2017.

[3]               The clients oppose confirmation of the amended Report and Certificate of Assessment on the grounds and that the assessment officer made numerous errors, including procedural errors, unfairness, breach of natural justice, misapprehension of material facts and palpable and/or overriding errors on factual matters, the application of wrong legal principles, an assessment amount which is so unreasonable as to constitute an error in principle, and costs. It is the position of the clients that no amounts should be awarded for the five solicitors’ accounts or costs. It is the position of the clients that their counsel rendered no valuable service whatsoever to them, lied to them about the status of their accounts, and failed to advise them of examinations for discovery. As regards the assessment, it is the position of the clients that the assessment officer did not allow Sophie to speak, laughed at her, that her human rights were breached due to mobility issues, that there was no breakdown of the assessment amount by person and file and there were no transcripts available and no recordings taken of the proceedings. The clients seek a new assessment hearing where they can get transcripts and where the amounts awarded to the solicitors will be broken down by file. However, the clients’ primary position is that no amounts should be awarded as they maintain that the lawyers did no work of any value.

[4]               The position of the solicitors is that there was no misapprehension of evidence, no palpable or overriding error on factual matters and that deference should be accorded the assessment officer. It is the position of the solicitors that the allegations of the clients are not based in or supported by any documentary evidence, but were, at the hearing, all oral evidence. It is the position of the solicitors that little would be gained from ordering a new assessment hearing, that in according deference to the assessment officer, it should be noted that the assessment officer made findings of credibility, stating in her reasons that she preferred the evidence of the solicitors to that of the clients.

The Law

[5]               A motion to oppose confirmation of an assessment officer’s certificate is made to the Ontario Superior Court of Justice pursuant to the Solicitors Act, sections 6(9). Where objections were not made at the hearing, as in this case, and a motion is brought to oppose confirmation, the motion is in the nature of an appeal and is limited to errors relating to jurisdiction, procedural fairness and/or patent misrepresentation of evidence: Starkman Barristers v Cardillo, 2017 ONSC 5530 (CanLII) at para 25 citing RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (CanLII) (Ont. Div. Ct.).

[6]               The applicable standard of law on an appeal from an assessment officer’s decision is as follows:

The standard of review on an appeal from an assessment officer’s decision is well established. The order below is discretionary. The hearing is an appeal, not an opportunity for the reviewing court to rehear the assessment and come to its own conclusion as to what is reasonable, absent an error in law, misapprehension of the evidence, palpable and overriding error on a factual matter, or an assessment amount that is so unreasonable as to constitute an error in principle.

Starkman Barristers v Cardillo, supra at para 26 citing Rabbani v Niagara (Regional Municipality), 2012 ONCA 280 (CanLII)

[7]               An assessment officer’s ruling is “entitled to considerable deference”. The court hearing the motion opposing confirmation “should not retry the matter or interfere with the result, unless the reasons demonstrate some error in principle or unless there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence”:  RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (CanLII) (Ont. Div Ct.)

[21]           I note from the evidence that over five years, the clients had paid nothing toward their accounts. They maintained throughout that the fee should be $0. Assessment Officer Chiba fairly and reasonably exercised her discretion in making her determination as regards fees. I find there to be no justification for this appellate court to interfere with Assessment Officer Chiba’s determination.

[22]           Based on all of the foregoing, I confirm the decision of the assessment officer and the Amended Report and Certificate as issued.

June 6, 2019

The Worth of “Diminished Value” Claims in Ontario – Update

In past blogs,[1] my colleague, Patricia Forte, has tracked the case law on the state of “diminished value” claims in Ontario.  A recent Superior Court case, Zheng v. Certas Home and Auto Insurance Co.,[2] provides further insight as to the limited “value” of advancing a diminished value claim against the vehicle owner’s own insurer. 

Ford government to adjourn Ontario legislature until after federal election

The Ontario Progressive Conservative government plans to adjourn the House for an extended summer break on Thursday, in a move that would leave Queen’s Park empty until after the next federal election. 

What if that big rig sharing the road with you is being piloted by a sleepy driver?

Could a horrific collision involving 11 cars yesterday on a Houston highway have been caused by a trucker asleep at the wheel? The driver in question denies it, but the video footage has to at least make us wonder how he could have slammed into the jam of cars at that speed without, it appears, even slowing.

Why legal advice is so expensive

The legal system in Canada is complicated, arcane, and out of reach for the majority of people. One important reason for that is that the cost of getting answers to legal questions is generally very high. 

Legal clinics demand meeting with Mulroney on budget cuts as Queen’s Park heads toward summer break

Community legal clinics are demanding to meet with Attorney General Caroline Mulroney over the provincial government’s cuts to the legal aid budget, the full extent of which may only be announced next week after the legislature has risen for the summer. 

Tribunal delays and privacy rules impacting clients with disabilities

People with disabilities — who may already need accommodation or be facing violations of their human rights — are now confronting new challenges at administrative tribunals, according to lawyers who spoke at the Law Society of Ontario on June 5. 

Prescribing Drugs

The College’s Prescribing Drugs policy is currently being reviewed. A revised draft of the policy has been developed and is now being circulated for external consultation. The draft policy sets out expectations for all physicians who prescribe drugs or provide drugs samples to patients. It also sets out specific expectations for physicians who prescribe narcotics and controlled substances, including opioids. 

June 5, 2019

Waivers of Liability in Ontario: A Legal Primer

Find out where to get help with income assistance programs

You may want to get help from a community legal clinic (link is external)to make sure you apply to the right income assistance programs at the right times. 



Wray v. Pereira, 2019 ONSC 3354 (CanLII), < 

[2]               At trial, the plaintiff submitted to the jury that the general damages should be assessed in the area of $150,000 to $200,000, while the defendants suggested to the jury that the general damages should be assessed at $20,000. The plaintiff also claimed past out of pocket expenses of $7,278.52, future care costs in the sum of $5,103.44, as well as some recurring future care costs estimated at $3,492.14 annually. In their verdict, the jury found the defendants fully liable for the plaintiff’s injuries. The jury awarded general damages in the sum of $22,000. It awarded $2,000 for past out of pocket expenses and zero for future care costs. Following the trial, the defendants brought a threshold motion. The defence was successful on the threshold motion. After taking into account the statutory deductible, the plaintiff’s recovery at trial was $2,000.

Factors Relating to Costs

[7]               Rule 57.01 sets out the criteria which a court should consider in awarding costs. The particular factors which appear to be the most relevant in this case are as follows:

1.        The results of the proceeding;

2.        Any offer to settle made in the action;

3.        The principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs, as well as the rates charged and the hours spent by the lawyer;

4.        The amount of costs that the unsuccessful party could reasonably expect to pay;

5.        The amount claimed and the amount recovered in the proceeding;

6.        The apportionment of liability;

7.        The complexity of the proceeding;

8.        The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

9.        Whether any step in the proceeding was improper, vexatious or unnecessary, or taken through negligence, a mistake, or excessive caution.

[11]           In my view, the issue of success in the action should take into account the parties positions prior to trial. In this case, the plaintiff made no offer to settle prior to trial, not even a dismissal of the action on a without costs basis. The plaintiff made a Rule 49 offer to settle for the sum of $75,000 plus pre-judgment interest and costs shortly before the commencement of trial. Clearly, the cost consequences under Rule 49.10 have no application since the plaintiff’s offer was nowhere close to the result at trial. However, I view the plaintiff’s offer as a sincere effort to try and resolve the action, whereas the defendant left the plaintiff in a situation where he either had to abandon his claim entirely and face a claim for costs, or alternatively take the case to trial. The defence argues that it was not playing “hardball” during the settlement discussions. At paragraph 41 of the cost submissions counsel states,

Further, it is untrue that the Defendants sought to play “hardball” however defined. As an officer of the Court, counsel for the Defendants unequivocally denies that this was the case. This matter was assessed in a bona fide manner, and the assessment was that the injuries would neither pierce the threshold nor exceed the deductible given that the Plaintiff continued to be physically active in a way that would put stress on his knee, including golfing 3 times a week. There was no wider policy or strategy involved. The Defendants’ assessment has been borne out by the jury verdict. [Emphasis in original]

[12]           While I do not take issue with the right of the defendants to try this case, I have concluded that there was in fact a “hardball” approach taken by the defence in this case. The defence left the plaintiff with no option to withdraw from the litigation gracefully. In deciding not to make any offer, the defence was setting a clear demarcation line or a “line in the sand” which can be used to identify success or failure in the action. In my view, the defence should have realized that even a small award would be considered a success for the plaintiff in these circumstances. I conclude that while the recovery in this case was extremely modest, the plaintiff achieved some success in the action which would justify an award of partial indemnity costs. This also takes into account that in addition to the issue of damages, the defence also was unsuccessful on the liability issues. The jury found the defendants 100% liable for the accident.

[25]           The trial in this action was hard fought and there were numerous objections and motions argued during the course of the trial. While success on the motions and objections was divided, there were some issues advanced by the defendants which had no merit and which lengthened the trial from its estimated length of two weeks. The trial date was initially set at the pre-trial by Justice Shaughnessy. The pre-trial was held on April 24, 2018. The trial was scheduled to be heard at the spring sittings, which commenced on May 14, 2018. The plaintiff initially objected to the case being put on the trial list at the pre-trial before Justice Shaughnessy. He subsequently brought a motion before Justice Edwards to adjourn the trial. His request for an adjournment was denied. He attended again before Justice Edwards with a further request for an adjournment, which also was denied. The request for an adjournment was once again brought up at the commencement of trial. Approximately half a day was spent dealing with the plaintiff’s request for an adjournment. In light of the three previous requests to adjourn the trial, which had all been denied, I have concluded that the further motion for an adjournment of the trial was excessive and unnecessary.

[26]           Another issue which took approximately a day of trial time, was dealing with the defence request to introduce surveillance evidence. The defence attempted to introduce surveillance evidence both for a substantive purpose and for purposes of impeachment. However, in my written reasons dated August 1, 2018, I concluded that there had been clear violations by the defence of their obligations to produce the video surveillance at a much earlier stage of the litigation. As a result of the defence conduct, there was the potential for significant prejudice to the plaintiff for failing to comply fully with their disclosure and production obligations. I ruled that the surveillance evidence could not be used for substantive purposes by the defence.

[27]           Further time was spent during the trial with the defence attempting to introduce the surveillance evidence for purposes of impeachment. However, I concluded that there was no basis for the introduction of this evidence based on the evidence of the plaintiff.

[28]           The court was also required to accommodate the attendance of the defence expert, Dr. Finkelstein, who was only available to attend during the third week of the trial. I agree with the plaintiff’s submissions that they made every attempt to streamline the trial. They did not call a care cost expert or actuary. They made concessions where possible in order to shorten the length of the trial. For example, they agreed not to pursue a ruling on the admissibility of a wedding video, which had been proposed to go in as an exhibit. They re-organized witnesses as required to keep the trial moving. The conduct of the defence, however, had the effect of lengthening the trial by several days. It also increased the plaintiff’s disbursements for professional witnesses who were kept waiting before being able to give their evidence. All of these factors favour a more generous assessment of costs in favour of the plaintiff.


[29]           As noted in the Boucher case, supra., the objective in assessing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding. In the present case, the plaintiff’s recovery is so small that the plaintiff’s proposed cost outline does not provide a reasonable basis for an award of costs. However, the defendants approach to a resolution of this case made it almost impossible to avoid a trial and their conduct at trial did increase by several days, the length of the trial. Taking into account all of the factors discussed above, I have concluded that a reasonable amount of partial indemnity costs in this case is $40,000 inclusive of HST and disbursements. This figure also takes into account that the defence was successful on the threshold motion. I therefore order that the defendants pay to the plaintiff his party-and-party costs fixed at $40,000 inclusive of HST and disbursements.

June 4, 2019

Financial stress exacerbated post-accident: Herscu

As people struggle with debt and finance-related anxiety it’s not surprising that Canadians ranked money as their greatest stressor, says Easy Legal Finance Inc. president and CEO Larry Herscu

GTA drivers are having their licences suspended over 30-year-old traffic tickets

Ajax, Ont. resident Mike Mariano had his licence suspended a couple of weeks ago. He hadn’t paid the fine he’d incurred for driving with expired insurance — in 1999. 

A Legal Aid Clinic Saved His Life. Budget Cuts Jeopardize Others

He’d watch the clock tick down — 11 p.m., 1 a.m., 2 a.m. — until daybreak. Then he’d rise, exhausted, and attempt to do his work as a pastor at a Toronto church. For three years in the early-2000s, Jacobs said he suffered from relentless insomnia.


CPAC officially asks federal health minister to restore adequate treatment for people with chronic pain

Barry UImer, executive director, says the opioid crisis is about illicit drugs and many of them being contaminated. Those given a prescription for an opioid for chronic pain are not the problem and neither are the doctors prescribing it. Chronic pain patients have been unfairly punished. 

CPSO Policies

One of the CPSO’s key duties as a medical regulator is to provide guidance to Ontario physicians on professionalism and issues relevant to the practice of medicine.


Wrong Diagnosis, Wrong Strategy: Why More Restrictions on Self-Represented Litigants Won’t Work, and Aren’t Justified 

Our daily interactions with self-represented litigants (SRLs) from across Canada, along with our continuous tracking of the developing jurisprudence around SRLs, disclose the emergence of a judicial strategy that amounts to a war on self-represented parties in some courts and jurisdictions. The resulting mistrust and anger among many reasonable members of the public should be a cause for alarm among members of the profession. 

Attention and Brain Injury

June is brain injury awareness month. We all know brain injury exists, but what does brain injury mean to you? I suspect, like for most of us, you perceive it as some sort of injury you rest up from and that happens to someone else. You don’t think about all the ways brain injury changes you. 

June 3, 2019



Pedestrians in low-income areas face higher risk of getting killed or injured in collisions

Heather Sim remembers her father as an avid cyclist who was very aware of the dangers on the road and how to safely cycle around the city. 

Misconceptions around ATE insurance, litigation privilege

While an after-the-event (ATE) insurer works closely with its partner lawyers and law firms, its involvement will not breach solicitor-client privilege or interfere with the trajectory of a case, says Dominique ZipperDirector of ATE with legal expense insurance company DAS

How can home-care users hold personal-support workers to account?

LONDON — Shirley Parent, 80, has multiple sclerosis and uses a wheelchair. She lives on her own in London and relies on public home-care services: four times a day, personal-support workers get her up or into bed and change her briefs — activities that require the use of an overhead sling lift. ParaMed, one of the three private agencies that provide her care, helps her in the afternoons and evenings. 

Does An Old Brain Injury Contribute To Anger Management Problems? 

I was in a serious head on car accident when I was about two years old, over 50 years ago. I don’t know exactly how serious the brain injury was, but I am told I was till black and blue in the face months later. My head hit the radio and pushed it onto the dash at least a couple of inches. I have been struggling to control my angry reactions for all of my life. I’ve never physically hurt someone because I was angry, but I do react with verbal shouting and door slamming 

Unmasking Brain Injury Pulls Back the Curtain on Brain Injuries 

TORONTOJune 3, 2019 /CNW/ – Brain injury happens in an instant and lives are changed forever. The numbers are staggering, according to Ruth Wilcock, Executive Director of the Ontario Brain Injury Association. “There are close to half a million Ontarians currently living with acquired brain injury (ABI) and more than 45,000 new cases will be added every year, states Wilcock. “This number does not include the 155,000 new concussions that occur each year in Ontario“. 

May 31, 2019

Impact of Vexatious Litigant Orders on Self-Represented Litigants

This is an information-gathering exercise by the National Self-Represented Litigants Project ( If you are a self-represented litigant and have been labelled a vexatious litigant, or been made subject to a court restriction order, we would like to learn more about your experience. This short survey should not take more than 15 minutes of your time. We greatly appreciate your help in compiling this data.  
What I Wish I Could Tell the Jury
In our justice system, we give jurors profound responsibility and power when we entrust them to render verdicts in legal disputes.  In criminal cases, jurors must decide the guilt or innocence of an accused person. 

How Law Affects the Relationship Between the People and Government 

Law is a significant factor in how the individual is able or is forced to interact with the state. It may be a force of oppression, it may protect people from each other and indeed, from the state itself. It may enable people to attain rights and benefits. Our nexus with law helps to define us as a society. When the opportunity to employ law to attain rights is diminished or when law is used as a threat to force particular conduct based on improper motives, the nature of that nexus changes. 

Injured Workers Rally Against Poverty & Privatization

TORONTO, May 31, 2019 (GLOBE NEWSWIRE) — The Ford government and WSIB continue to come under fire from injured workers and supporters, with a rally at Queen’s Park taking place on Saturday, June 1st at 11am. Organized by the Ontario Network of Injured Workers Groups (ONIWG), the rally comes on the heels of a damning report about the WSIB’s practice of sending almost half of permanently disabled injured workers into poverty, and the introduction of a Bill to end the practice. 

Convicted hate monger fires lawyer; sentencing for Your Ward News delayed

Sears, a married father, was found guilty of sexual assault in the 1990s and lost his licence to practise medicine over sexual impropriety with female patients.

The Law Society of Ontario v. Diamond, 2019 ONSC 3228 (CanLII)

The Law Society of Ontario v. Diamond, 2019 ONSC 3228 (CanLII), < 

[1]               Mr. Diamond, the Appellant, appeals the decision of the Law Society Tribunal Appeal Division (the “Appeal Division”) dated August 1, 2018, in which it upheld the decision of the Law Society Tribunal Hearing Division (the “Hearing Division”) dated September 21, 2017. In its decision, the Hearing Division found that Mr. Diamond had failed to co-operate with a Law Society investigation into his firm’s referral practices. The failure to co-operate was due to Mr. Diamond’s delay in providing various financial records to the Law Society. Ultimately, all of the requested records were provided. Pursuant to a joint submission on penalty, the Hearing Division ordered that Mr. Diamond be reprimanded and pay $25,000 in costs to the Law Society.

[2]               Under the Law Society’s Rules of Professional Conduct, lawyers are required to act in good faith to reply promptly and completely to the Law Society. This appeal raises the issue of what constitutes acting in “good faith”. According to the Appellant, the Appeal Division construed the concept too narrowly and in doing so unreasonably punished a licensee who at all times expressed a willingness to provide the requested information and only delayed doing so because of confusion and misunderstanding. According to the Respondent, the Appeal Division’s approach to the question of good faith and failure to co-operate was a straightforward application of the existing jurisprudence and an assessment of the Hearing Division’s factual conclusions. The task was within its expertise and the decision was reasonable.

[3]               For the reasons that follow, I would dismiss the appeal.

[23]           The Hearing Division found Mr. Diamond had committed professional misconduct through his failure to co-operate with the Law Society’s investigation. It found that Mr. Diamond must have known that he had the records containing the information required by Bylaw 9, and that the communications between Mr. Diamond and the Law Society amounted to a “cat and mouse game”. It further found that the documents requested are routine documents that are required to be kept or which should be available from institutions on short notice, and Mr. Diamond should have been able to provide them more promptly.-

[24]           The Appeal Division held that these findings were reasonable. It found that it was reasonable to conclude that there had been a lack of good faith given the passage of time, the numerous explanations provided by the Law Society as to what was required, and the fact that licensees are required to have such information readily available. The Appeal Division further found that any confusion or mistaken beliefs on the part of Mr. Diamond did not relieve him from his failure to co-operate, as “[l]icensees must understand their obligations and comply with them; a confused licensee who has not taken the time and effort to be aware of those obligations may be found to have engaged in misconduct.”

Issues Raised

[25]           The Appellant raised the following issues on this appeal:

(a)   Did the Appeal Division err in law by interpreting the concept of good faith too narrowly?

(b)   Did the Appeal Division err in law by conflating the test for failing to co-operate with the positive obligation on a lawyer to keep certain records?

(c)   Did the Appeal Division come to an unreasonable conclusion?
[60]           Again, this conclusion is a reasonable one. Good faith is more than an absence of bad faith. Ignorance of one’s obligations and a lack of reasonable efforts to fulfill those obligations (such as talking to one’s bookkeeper) cannot constitute good faith.  


[61]           For these reasons the appeal is dismissed. As agreed by the parties, the Appellant is to pay the Law Society its costs of the appeal, fixed in the amount of $5,000, all-inclusive. 

May 30, 2019

IBC: 75% of Canadian drivers are distracted at the wheel

Of the survey’s respondents, 75% of drivers said they were distracted at the wheel in the past six months. The high number of distracted drivers comes as a surprise, considering that 90% of the respondents also said that they were aware that accidents caused by distracted driving can lead to higher auto insurance premiums. 

Raptors ticket auction to benefit family of hit-and-run victim surpasses $10K

TORONTO — The company that owns the Toronto Raptors says the price of a pair of tickets being auctioned off to support an employee whose son was the victim of a hit and run has surpassed $10,000. 

Listed Expenses

Demystifying CBD

Marriage Breakdown After Brain Injury

Eighty percent of marriages separate at the ten-month mark after brain injury, my diagnosing psychiatrist informed me. My husband, sitting beside me, must’ve taken that in, checked the calendar, and decided he was good to go. We would’ve been married almost thirty years if he had stayed. We’d been married twelve years when he packed up his shirts and boots, took paintings off the wall, talked me out of the Inuit sculpture our mediation had agreed was mine to keep, and left with his father helping him, a jerk of a man, to put it nicely. His father manipulated people one against another. That was one good thing that left. 

May 29, 2019

Auto Insurance Changes in Ontario 2019 – Personal Injury Law

2019 is bringing sweeping changes to auto insurance coverage throughout Ontario. While some of the changes were discussed during the previous year, more are in the works as of April of this year. In the event you are involved in an auto accident, the proposed changes will impact how your personal injury lawyer represents you. 

Ontario raises speed limits to 110 km/h for pilot program

The Ford government, looking at ways to get people moving quicker across the province, recently announced a pilot project to review speed limits on 400 series highways. 

Ontario government seeking to insulate itself from lawsuits

Buried within the Ontario government’s April budget is a new Crown Liability and Proceedings Act that threatens to severely restrict our ability to sue the provincial government. 
18-003314 v Wawanesa Mutual Insurance Company, 2019 CanLII 43877 (ON LAT), <  

   [3]        The applicant was deemed to be catastrophically impaired in 2016, and as a result is entitled to claim a higher level of benefits.

[30]        I also found the evidence of the applicant’s rehabilitation team with respect to his need to be admitted into a facility for substance abuse inconsistent. Mr. Tamir testified that institutionalization will cause isolation and impede the applicant’s progress within the community. I found credibility issues with this testimony as it was contradictory to what the rest his rehabilitation team recommended.[10]

[31]        In addition, I found the evidence of Ms. Ali, a representative from Medex problematic. Medex has been providing PSW services to the applicant from November 2017 to present. Significantly, Ms Ali testified that Medex was not aware that the applicant had psychological issues or problems with substance abuse until 10 months after Medex started providing service. Furthermore, the PSW assigned to care for the applicant had been certified three months prior to providing PSW services and had no training dealing with people with psychological issues.[11] Following an incident in September 2018, the PSW had to be switched as she did not know how to cope with an incident involving the applicant being intoxicated. No further details were provided with respect to this incident.

[32]        In my view, it is noteworthy that the PSW hired to care for the applicant was not aware of his suicidal ideations, substance abuse or psychological issues. In my opinion, this lack of knowledge and communication does not support an urgent need for 24-7 supervision. Moreover, Medex is currently charging the applicant $5,670.00 per month for six hours of ACBs a day.[12] The maximum payable under the Schedule is $6,000.00 per month. I find that the rates charged by Medex would not provide the applicant with 24-7 supervision. This is also acknowledged by Ms. Diamond’s report dated April 21, 2017.[13]

Rates Charged Exceed the Guideline Rates:

[50]        The Guideline sets out the maximum hourly rates insurers are liable to pay for each level of care on the Form 1 to calculate an individual’s maximum monthly entitlement.[20]

[51]        The respondent submits and I agree that the hourly rate charged by Medex exceed the hourly rates allowed by the Guideline. Much was made by the respondent about the service contract that Medex entered into with the applicant. Medex had the applicant sign a service contract which included the following:

                        a)      The applicant agreed to a lien to be assigned to Medex on any future settlement claim or judgment as a result of the accident in the event that payment of its invoices were refused by the insurance company; and

                        b)      They charged him a flat rate of $35.00 an hour because he is catastrophic.

[52]        From January 2018 to present, Medex has submitted invoices to the respondent in the average amount of $5,670.00 per month for 6 hours of service a day which is above the Form 1 amount in effect at that time and the rates in the Guideline.

[53]        While I find the actions of Medex concerning, the issue regarding whether the clinic complied with ethical standards is not before me. The respondent submitted 16-001063 v. Belair Direct Insurance Company2017 CarswellOnt.13605, in which the Adjudicator went through the complex exercise of breaking down the time spent by the service provider under each level of care to determine the quantum of ACBs incurred in accordance with the levels of care and rates provided by the Guideline.[21] There is not enough evidence before me to undertake such a task as the service provider’s daily logs do not allocate the hours worked between the three levels of care.

[54]        The respondent also submits that a lack of invoices to show expenses incurred and invoices which do not provide a detailed breakdown of services rendered can disentitle an applicant to an ACB. It proposes that the invoices submitted by the applicant do not provide a detailed breakdown and consequently I should make a determination that the services were not incurred. For the reasons that follow, I disagree with the respondent.

[55]        First, I found the case law relied upon by the respondent distinguishable. The respondent relied on 16-001063 v. Belair and 17-002957 v. Aviva Insurance Canada, 2018 CarswellOntario 13674In 16-001063, no invoices were submitted for a specific time period and the Adjudicator determined that the ACBs had not been incurred. In 17-002957, the Adjudicator determined that the invoices did not specify or itemize the services provided. Consequently, the Adjudicator was unable to determine whether the goods and services were received. What is unclear to me is what evidence the Adjudicator had before him to make that determination. In the matter before me, the applicant has submitted invoices from January 2018 to October 2018. The applicant has also submitted the service provider’s daily activity logs which list the services provided on a daily basis. The only thing missing from the log is the amount of time the PSW spent on each task. I find the evidence before me is sufficient for me to conclude that the services have been incurred for the time-period claimed.

[56]        Second, the Schedule is consumer protection legislation. In my view, the applicant should not be penalized because of the service provider’s disregard for the maximum rates payable under the Guideline or inadequate invoicing. Further, the respondent could have requested a more detailed breakdown of the services provided and no evidence was submitted that it did so. In addition, it paid for the invoices of AGTA which charged above the Guideline rates and also did not breakdown the services provided.

[57]        Finally, while I do not have the authority to increase the hourly rates payable under the Guideline, I find that sections 19 (1) and (2) of the Schedule permit me to approve incurred ACBs up to the maximum amount of the Form 1 which I have determined to be $3,047.29 per month.

[65]        The respondent relied on the IE report and testimony of Dr. Paitich, orthopaedic surgeon. Dr. Paitich opined that the applicant has achieved maximum medical recovery and that further treatment will provide no benefit to the applicant. In Dr. Paitich’s view, further physiotherapy will only make the applicant dependent on facilities which will impede his recovery. Dr. Paitich testified that, although the applicant has reached maximum medical recovery, he will continue to have ongoing symptomatology and simply stretching with a home exercise program is sufficient.

[66]        Dr. Patich submits that the applicant has had four-to-five years of supervised physiotherapy and that the treatment was passive in nature. The applicant had a further twelve months of active treatment which focussed on improving his range of movement. In Dr. Paitich’s opinion this is well beyond the time period for recovery for someone with the applicant’s orthopaedic injuries. Dr. Paitich contends that the applicant’s fractures have all been anatomically reduced (which means put back together with plates and screws). As a result, his anatomy has been restored to normal.

[67]        While I respect Dr. Paitich’s opinion as that of an orthopaedic surgeon, the evidence of the applicant’s service provider supports that improvements have been made by more active physical rehabilitation. Furthermore, the applicant’s testimony and the progress notes of the clinic also demonstrate that the treatment has helped relieve the applicant’s pain. As already noted, the case law contradicts Dr. Paitich’s opinion that continued treatment is justified if it relieves pain. In addition, Dr. Paitich has only seen the applicant three times for the purpose of conducting assessments, whereas the service provider has worked with him on a weekly basis and has noted progress. Therefore, I give Mr. Bhatt’s opinion more weight.

May 28, 2019

Auto Insurance Rates in Ontario Will Continue To Go Up In 2019. Here’s Why.

Auto insurance rates always seem to be going up, and in Ontario, they’re going up faster than ever. In fact, premiums in the province are about 15 percent higher than in Alberta and around twice as high as they are in the maritime provinces 

Who Pays for Damage in a Car – Bicycle Accident

Bicycles are back out on the roads and riding one in traffic carries risks. Drivers of cars and trucks find it hard to watch for or see cyclists. Road hazards (potholes, garbage, tracks) can make it seem that cyclists are riding erratically. Without dedicated bike lanes cyclists must ride in live traffic lanes. Even with bike lanes cyclists find cars and trucks parked in them, swerving into them, and in the end, cyclists are not adequately protected from cars entering them. 

Mounting cost of expert evidence an access-to-justice issue

Despite ongoing concerns over the cost and reliability of expert evidence, its use has become a routine aspect of family law litigation, says Toronto family lawyer Gary Joseph.  

What does a Million Dollar Personal Injury Case look like in Ontario?

Every single client that personal injury lawyer Brian Goldfinger has met believes that his/her case is worth at the very least, $1,000,000 (if not more). 

Law society disciplining lawyers more behind closed doors

Statistics show that the Law Society of Ontario’s applications to discipline lawyers or paralegals were granted 85 per cent of the time in 2018, according to a report released on May 23. 

Walking without pain: How a new surgical procedure is giving hope to some amputees

After losing part of his leg as a teenager, Jason Simunic has spent more than 30 years walking with pain, due to ill-fitting prosthetic limbs that irritate his skin and cause blisters. Now he hopes those days are behind him.  

Changing Perspective in Quest to Restore Cognition

I roll my chair up to my semi-tidy desk, push a notepad out of the way, open the non-fiction book I’m reading, and shift the blank white paper to cover off one page with its beautifully laid-out text. I put on my reading glasses. I reach for my iPhone to set the timer so that I can track my reading speed progress over time and not over-push myself. I set it for five minutes.