Author Archives: Admin2

July 16, 2019

Review of Family and Civil Legislation, Regulations, and Processes

Parliamentary Assistant to the Attorney General, Lindsey Park, has commenced a review of family and civil legislation, regulations, and processes. The review will explore ways to simplify family and civil court processes, reduce costs and delays, and encourage the earlier resolution of disputes. 
 
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“There is a fundamental issue with inequality in terms of car safety development” – Women are 73% more likely to suffer fatal or serious injuries in car crashes

The design and safety testing of cars (and most other consumer goods) was long designed by male engineers and has historically focused on parameters reflecting males. For example tools are often sized for male hands, cupboard heights for male heights, and cars for male dimensions. 
 
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Top court cuts down “apples” approach to tort award reduction

Adjusters and insurance defence lawyers who think the “apples-to-apples” approach to deducting future no-fault benefits from tort awards is rotten will likely find relief in a Supreme Court of Canada ruling released Thursday. 
 
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For disability claimants who are unable to work, the process of having their long-term disability (LTD) claim denied or cut off can be frustrating and complicated, and it can cause a person to rocket into financial debt. Many claimants who are left in financial desperation often turn to disability claims lawyers for help. 
 
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Canada’s New Distracted Driving Laws To Take Effect Aug. 1, 2019

Police sources have confirmed that Canada’s new driving laws, which received royal assent earlier this year, will officially take effect in the province on Aug. 1, 2019.

Fines vary from province to province, but they can be up to $3000 in in provinces like British Columbia and Ontario, Quebec, Alberta, Nova Scotia, Manitoba, Newfoundland and Labrador.

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How SGI’s expansion into Ontario auto fared last year

Saskatchewan’s government-owned insurer has been blindsided by its Ontario auto line.

Regina-based Saskatchewan Government Insurance (SGI) reported Tuesday that SGI Canada’s 2018-19 loss ratio in Ontario was 91.9%, up 16.5 points from 75.4% in 2017-18. That increase was “largely due to unfavourable auto results,” SGI said in its annual report.

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Doctor discipline: Three of Ontario’s top-billing physicians have faced professional sanctions

Vineet Arora was a busy doctor. That’s not unusual in the field of ophthalmology, one of the highest-billing medical specialties based on seven years of OHIP data obtained by the Toronto Star.

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Patients who suffer from medical errors face ‘rigged system,’ critics say

When Anne Levac walked into a Toronto medical clinic nearly seven years ago, she didn’t realize that the procedure would leave her with permanent disabilities.

Levac visited the Rothbart Centre for Pain Care in 2012 in hopes of easing her chronic back pain. A doctor gave her injections into her spine, but the needles were infected with a harmful bacteria.

 
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Why Doctors Must Listen to People with Brain Injury

In the June 28, 2019 issue of New Scientist, Nicholas Schiff is quoted as saying: “They all seem to be in a vegetative state, but we know they are conscious. It’s to remind me they are out there and we are not helping them.” 
 

July 11, 2019

Ontario crash victim must pay $61K in costs to men liable for her injuries

TORONTO – A woman awarded $50,000 by a jury for injuries suffered in a car crash will have to pay more than $61,000 to cover the costs of the two men she sued, even though losers in a lawsuit are normally on the hook for the winner’s legal bills 
 
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Optional benefits priority ruling could create “administrative nightmare” for auto insurers

An insurance defence lawyer is warning of a potential “administrative nightmare” for insurers in light of a recent Court of Appeal for Ontario decision on priority disputes involving optional benefits. 
 
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Hire the right lawyer for a catastrophic auto accident claim

Having a strong case after a catastrophic automobile accident may not be enough if you don’t have knowledgable representation, says Barrie-area personal injury lawyer Steve Rastin
 
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Lorraine Explains: Deadly motorcycle crashes, and the drivers who cause them

Two weeks ago, at 7:30 am, a motorcyclist in Burlington, Ontario suffered life-threatening injuries when a car turned left in front of him. Later that night in the same city, a motorcyclist was killed when an SUV turned left in front of him. The next day, an Oakville driver was charged with making an unsafe left turn, causing a motorcyclist to be violently thrown and severely injured; the rider and bike ended up 40 metres from the point of impact. 
 
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Extra protection in place for minors involved in a lawsuit

Toronto personal injury lawyer Jasmine Daya is undaunted by the extra steps associated with a lawsuit launched on behalf of a minor plaintiff. 
 
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Owners of Scion and Subaru cars are scared a safety recall could be dangerous

Matthew Foster has a problem with his 2013 Scion FR-S, a Toyota-owned brand. The car’s engine failed last May and he has to pay $7,000 to replace it. 
 
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Proposed New Legislation Will Make It Nearly Impossible To Sue The Provincial Government

The Ontario government wants to make it much harder for people to sue them. By some accounts it will be nearly impossible to sue the government once the legislation passes. 
 
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Income Replacement Benefits after a car accident in Ontario

If you have been hurt or injured in a car accident in Ontario, you may be entitled to an income replacement benefit of up to $400/week (or more if you paid an additional insurance premium to increase your IRB level). 
 
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Toronto hospital fires around 150 employees after uncovering multimillion-dollar fraud

In what could be one of the largest and longest-lasting benefits fraud schemes ever discovered in Canada, a Toronto geriatric hospital has dismissed approximately 150 employees for falsely claiming as much as $5 million in benefits over an eight-year period. 
 
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Disclosure of Harm – General Consultation

The College’s Disclosure of Harm policy is currently being reviewed. The draft policy updates the expectations of physicians where a patient has experienced harm or potential harm in the course of medical treatment. 
 
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Brain injury from Toronto crash derailed Kiesza’s pop career. Now she’s back

The Calgary-born singer and songwriter — best known for taking the world by storm by her house-influenced dance smash “Hideaway” and its accompanying album Sound of A Woman — had just relocated to Toronto two years ago from the Big Apple when tragedy struck. 
 
 
Dermann v. Baker, 2019 ONCA 584 (CanLII), http://canlii.ca/t/j1cr4  

[20]      As noted above, the jury returned a verdict of $50,000, which was reduced to $12,016.67 due to the application of a statutory deductible. The trial judge entered a judgment of “$nil” after further reducing that amount by the $20,000 advance payment. He ordered costs against the appellant, whom he considered to be in the same position as if the action had been dismissed.

[21]      On appeal, the appellant concedes that the trial judge entered the correct judgment amount. Section 120 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that a plaintiff who receives a payment from a defendant releases the defendant from liability to the extent of that payment, and will only be entitled to a reduced judgment:

Advance payments

120 (1) If a defendant makes a payment to a plaintiff who is or alleges to be entitled to recover from the defendant, the payment constitutes, to the extent of the payment, a release by the plaintiff or the plaintiff’s personal representative of any claim that the plaintiff or the plaintiff’s personal representative or any person claiming through or under the plaintiff or by virtue of Part V of the Family Law Act may have against the defendant.

Payment to be taken into account

(3) The court shall adjudicate upon the matter first without reference to the payment but, in giving judgment, the payment shall be taken into account and the plaintiff shall only be entitled to judgment for the net amount, if any.[2]

[22]      Nevertheless, the appellant submits that the trial judge should not have considered the advance payment in his costs analysis. She argues that, in spite of the “$nil” judgment, she was successful against the respondents because she obtained a verdict greater than the statutory deductible. The appellant acknowledges that, even before deducting the advance payment, her recovery was less than the respondents’ offer to settle. As a result, she relies on r. 49.10(2) for the position that she is entitled to be partially indemnified for costs she incurred until the date of the respondents’ offer to settle and that the respondents are only entitled to be indemnified for costs they incurred after that date.

[23]      We do not accept this submission. Under r. 49.10(2), the costs consequences flowing from a defendant’s offer to settle depend on the judgment obtained, not other amounts received during the litigation. If the plaintiff obtains a judgment less favourable than the defendant’s offer, the plaintiff is indemnified for costs incurred until the date of the offer and the defendant for costs incurred subsequently. The rule provides:

Defendant’s Offer

49.10(2) Where an offer to settle,

(a) is made by a defendant at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.

July 9, 2019

Critics of accident insurance reform say Ontario drivers not protected in case of a serious crash

Rhona DesRoches of Fair Association of Victims for Accident Insurance Reform says she’s not surprised Schenk has to wait to be designated catastrophic despite his critical injuries. 
 
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Wife of man critically injured by flying tire on Hwy. 400 speaks out about vehicle safety

The wife of a man who is recovering from severe injuries is speaking out about road safety after the couple’s vehicle was hit by a flying tire while travelling on Highway 400. 
 
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Hwy. 400 flying tire victim still waiting for insurance company to designate injuries as ‘catastrophic’

As Catherine McDonald reports, lawyers say Ontario government reforms which began in 2016 have accident victims waiting longer for less benefits. 
 
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Does anyone still believe that $200,000 is enough auto liability coverage?

Although Ontario motorists can legally put their vehicles on the road with as little as $200,000 in liability coverage, brokers likely wouldn’t want one of those motorists for a client. 
 
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Toronto cyclist wins $3.7K in damages over injuries caused by uneven TTC streetcar tracks

An Ontario Superior Court judge has awarded almost $4,000 in damages to a man who was injured when his front wheel struck the guard rail on the streetcar tracks at Wellington and York streets. 
 
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I got a brand new CR-V and misjudged a corner in the parking garage and scraped the whole side of my vehicle from front to back. How do I know when it’s worth paying for the repair myself instead of making an insurance claim? We really had to save to buy this SUV and money is tight.– Brittany, Oshawa 
 
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Insurance company can’t ‘double dip’ by suing lawyers
The June 17 decision, Hengeveld v. The Personal Insurance Company, 2019 ONCA 497, focused when negligence of a plaintiff’s lawyer is the plaintiff’s responsibility, wrote Justice Benjamin Zarnett, with Justices Alexandra Hoy and Peter Lauwers concurring.

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MANDEL: Plea bargain goes awry in drunk-driving case

What a mess this drunk-driving case has become for everyone but the accused, whose one-year jail sentence has just been thrown out and a new trial ordered. 
 
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Could trial lawyers take a run at a 40-year-old cap on pain and suffering awards?

The Supreme Court of Canada imposed a $100,000 cap on awards for non-pecuniary damages in 1978, as the personal injury law firm Himelfarb Proszanski reports. It was intended to put a lid on “widely extravagant” liability claims. 
 
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No one told Montreal patient her new GP was under investigation

Paine found out why by reading a news report online: Smith was before the Quebec College of Physicians’ disciplinary board for having used his smartphone to surreptitiously take pictures of two patients during exams. 
 
 
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Langemann v. St. Pierre, 2019 ONSC 4099 (CanLII), <http://canlii.ca/t/j19mn  

[1]          The plaintiff Joseph Langemann claims damages arising from personal injuries sustained in a motor vehicle accident that occurred on February 1, 2012.  He alleges that he was injured when the Dodge Caravan vehicle that he was driving was involved in a collision with a farm tractor owned by the defendant Daniel Mooney and operated by the defendant Shane St. Pierre. 

[2]            The statement of claim was issued on January 17, 2014 by the plaintiff’s former counsel.  The action was dismissed for delay by the registrar on February 13, 2019, and the plaintiff, represented by different counsel since September, 2017, now moves to set aside that dismissal order.  The chronology of events in the action between the issuing of the statement of claim and the dismissal is set out below.  The motion is opposed by the defendants St. Pierre and Mooney.

[6]          The factors to be considered on this motion were reviewed by the Court of Appeal in Habib v. Mucaj[2012] O.J. 9546 (C.A.), at paragraphs 5-7:

There are four well established factors to consider when deciding to set aside an order to dismiss an action: (i) explanation of the litigation delay – a deliberate decision not to advance the litigation will usually be fatal; (ii) inadvertence in missing the deadline – the intention always was to set the action down within the time limit; (iii) the motion is brought promptly – as soon as possible after the order came to the party’s attention; and (iv) no prejudice to the defendant – the prejudice must be significant and arise out of the delay: Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Crt.).

 No one factor is necessarily decisive of the issue. Rather, a “contextual” approach is required where the court weighs all relevant considerations to determine the result that is just. Here, the Master specifically referenced the proper test and engaged in the weighing exercise. He found that, after the weighing exercise, the just result was to set aside the dismissal order. The Master’s order was discretionary and was made as part of his duty to manage the trial list. The decision, therefore, attracts significant deference from a reviewing court: Finlay v. Van Paassen2010 ONCA 204 (CanLII).

7 Furthermore, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. However, where the lawyer’s conduct is not inadvertent but deliberate, this may be different: Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695 (CanLII)87 O.R. (3d) 660 (O.C.A.), at para. 28.   . . . .

July 4, 2019

Do pool noodles count in impaired driving laws? Here’s what a canoeing conviction means in practice

Canadian legal history was made last week after an Ontario man, David Sillars, was convicted of impaired operation of a canoe.

The case, which involved the death of an eight-year-old boy after the canoe tipped, required the Ontario Court of Justice to determine whether a canoe counts under Canada’s impaired driving laws. Justice Peter West had to issue a special ruling on this aspect of the case, and he concluded: yes, canoes count.

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Civil jury trial system needs update: Lee

Ontario’s civil jury system “reduces access to justice for many injured plaintiffs” and needs to be modernized, says Toronto personal injury lawyer Andrew M. Lee
 
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The Use of Social Media in Personal Injury Litigation – What Our Clients Need to Know

It likely started with Friendster – we then moved on to Myspace. Now we have Facebook, Instagram, Twitter, Snapchat, Pinterest, Tumblr, LinkedIn and YouTube. There are many others, and there is no doubt there will continue to be more in the future. 
 
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MANDEL: Three strikes and Mississauga psychiatrist is out

Dr. Christopher Doyle was stripped of his licence last year by the College of Physicians and Surgeons of Ontario (CPSO) for incompetence and professional misconduct, including sending a troubled woman to hospital in a suicidal state after abruptly firing her as a patient. 
 
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Concussion rates higher than previously reported, Ont. study suggests

Increasing awareness and understanding of concussions are allowing researchers to better track the prevalence of the condition, a new study suggests, noting that rates of such injuries in Ontario are about twice as previously reported. 
 

July 2, 2019

Insurance Companies in Canada – Who Owns Whom

The variety of insurance companies in Canada is not what it appears to be in the Canadian market. From a consumer perspective there are almost a hundred different insurance companies, but the reality is a bit different: 
 
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Legal aid cuts an attack on ‘the socially disenfranchised’

Provincial funding reductions for Legal Aid Ontario (LAO) will limit access to justice and significantly worsen court delays for those who rely on the non-profit corporation, says Toronto criminal lawyer Roots Gadhia
 
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Ontario Court of Appeal: insured’s failure to provide up-to-date address not breach of duty to cooperate

An insured has a duty to cooperate with the defence counsel that has been appointed by its insurer. The Ontario Court of Appeal recently reconfirmed that this duty to cooperate is not subject to a standard of perfection. Instead, to establish a breach of duty, an insurer must show that the insured’s breach was substantial and not merely inconsequential or trifling. The court will always consider the facts and consequences of the alleged conduct to determine whether a breach can be established. 
 
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Why Doctors Must Listen to People with Brain Injury

In the June 28, 2019 issue of New Scientist, Nicholas Schiff is quoted as saying: “They all seem to be in a vegetative state, but we know they are conscious. It’s to remind me they are out there and we are not helping them.” 
 
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The Perils of Overstimulation after Brain Injury

One of the most challenging impacts of my traumatic brain injury was the loss of my ability to easily filter intense or excessive sensory input.  Things that I once took for granted, such as sharing a meal in a busy restaurant or enjoying a live band at the park are now stressful and, in some cases, even traumatic events.  Before my injury, I was always ready to see the latest action movie – but now, even with earplugs, it’s hard to sit through a movie.  
 

June 28, 2019

Why Canadian caps on pain and suffering awards could face court challenge

Legislated limits on pain and suffering awards, which are meant to manage liability insurance costs, could conceivably be challenged in court, a Canadian personal injury lawyer suggests. 
 
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Priority dispute over accident benefits hinges on endorsement

Continental Casualty Company (CNA Canada) must pay both mandatory and optional accident benefits to an injured pedestrian after a judge set aside the decision of an arbitrator in a priority dispute. 
 
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Is the Law Society of Ontario “Fiddling While Rome Burns?”

If you asked a member of the public what they consider to be the most important issue facing the legal profession in Ontario, their answer will be some version of the following:

“Making themselves relevant. Making themselves affordable. Showing the public how they can serve the public.”

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Delays could come at a cost in Licence Appeal Tribunal hearings

Unsuccessful parties may still be entitled to costs at Licence Appeal Tribunal (LAT) hearings if the other side acts unreasonably or unnecessarily delays the proceedings, says Ottawa personal injury lawyer Najma Rashid
 
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Editorial: New attorney general should protect the little guy

Ontario has a new attorney general, Doug Downey, who is no doubt facing a massive to-do list.

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Lifting the veil of secrecy on Ontario’s top-billing doctors
 
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Busting Myths About Poverty in Canada

Poverty is a complex and multifaceted reality. It is rooted in systemic barriers, structural injustice, inequity, and social exclusion. People living in poverty often experience discrimination based on gender, racialization, disability, and other forms of exclusion that prevent full engagement in society. In addition, a weakened social policy foundation leads to rights violations, including a lack of access to safe, affordable housing, healthcare, education, secure employment, healthy food, adequate childcare, and income supports. Indigenous peoples in Canada experience high rates of poverty as part of the enduring and continued legacy of colonization, forced relocation and residential schools, and ongoing racism and intergenerational trauma. People who experience multiple barriers, such as racialized women who are single parents, racialized persons with disabilities, etc. are particularly vulnerable to deep poverty. 
 
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Brain Injury Recovery O-Tip of the Week: There’s an App for That!

June is Brain Injury Awareness Month.  Occupational Therapists are a vital part of a team of professionals that assist with the rehabilitation from brain injury.  Therefore, for the month of June, our series will be providing solutions to assist with some of the common cognitive deficits that can result from brain injury. 
 
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Useful tools or symptom inducers? On using smartphones when you have a brain injury

I had my accident in July 2015, right in the middle of the smartphone era. About a month after my TBI, I was in the hospital and I got my phone back for the first time. I tried to reply to a text. It didn’t work. My brain tried to tell my fingers to type, but nothing happened. The connection was lost. 
 

June 27, 2019

Delays could come at a cost in Licence Appeal Tribunal hearings

Unsuccessful parties may still be entitled to costs at Licence Appeal Tribunal (LAT) hearings if the other side acts unreasonably or unnecessarily delays the proceedings, says Ottawa personal injury lawyer Najma Rashid
 
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Aviva makes U-turn on road safety flags after they draw ire of Toronto officials, advocates

Aviva Canada is pulling back on an initiative meant to kick-off a $5-million campaign aimed at boosting road safety after the rollout of bright flags for pedestrians to hold while crossing dangerous intersections drew the ire of both City of Toronto officials and safe streets advocates. 
 

June 26, 2019

Ford not hitting on all cylinders but on the right road: Rastin

Ontario’s Conservative government deserves praise for many initiatives announced in its first year in power, though it’s at the risk of making serious missteps in some areas, says Barrie-area personal injury lawyer Steve Rastin.  
 
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Why LAT’s first catastrophic impairment case must be re-heard

The Ontario Licence Appeal Tribunal [LAT]’s first ruling on a disputed catastrophic impairment claim is now officially quashed, the province’s appeal court confirmed in a decision released Friday. As it stands, the disputed claim now has to go before a different LAT adjudicator. 
 
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Priority dispute over accident benefits hinges on endorsement

Continental Casualty Company (CNA Canada) must pay both mandatory and optional accident benefits to an injured pedestrian after a judge set aside the decision of an arbitrator in a priority dispute. 
 
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Where insurance fits into bicycle accidents

If you have clients who are riding their bikes this summer, how does liability insurance work if they get into an accident? 
 
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There are now flags for pedestrians to hold at dangerous Toronto crosswalks
 
Police data shows that cycling and pedestrian deaths hit an all-time recorded high in 2018 with a whopping 41 and five fatalities, respectively. 
 
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What Happens to Your Body When You’re Lonely? How It Can Be Physically Damaging

If you’re not switching from one tab to the next on a computer all day, you’re likely scrolling through social media with your phone glued to your side. These unlimited channels of technology allow you to be connected to whomever, practically whenever, you’d like. Yet, as of December 2018, according to a study published in the journal International Psychogeriatrics, three out of four Americans experience “moderate-high levels of loneliness.” 
 
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Caregiver Education Program

Through a grant provided by the Ministry of Health and Long-term Care, the OBIA team is excited to begin the implementation of our “Support, Hope & Resiliency: An Education and Training Program for Caregivers of Acquired Brain Injury Survivors” across the province of Ontario.  This caregiver education program will be provided at more than 40 locations across the province and will be hosted by members of local brain injury associations and service providers. 
 
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Stewart et al. v. Wood et al., 2019 ONSC 3931 (CanLII),  http://canlii.ca/t/j14tp
  

[23]      The Plaintiffs seek costs at partial indemnity rates in the amount of $95,096 plus HST of $12,362 for a total of $107,458. They also seek disbursements of $29,070. Included in the list of disbursements is the insurance premium of $1,458 the Plaintiffs paid to obtain $100,000 coverage for possible adverse costs insurance. The Defendants state that it is settled law that such an insurance premium is not a recoverable disbursement. I disagree. There are conflicting opinions on this issue. Milanetti, J., Reilly, J. and Firestone, J. respectively in Markovic v. Richards, 2015 ONSC 6983 (CanLII), Foster v. Durkin, 2016 ONSC 684 (CanLII) and Valentine v. Rodriguez-Elizalde, 2016 ONSC 6395 (CanLII) each held that the premium for adverse costs insurance is not to be reimbursed by the Defendants as a compensable disbursement. I then turn to Armstrong v. Lakeridge Resort Ltd., 2017 ONSC 6565 (CanLII). Salmers, J. in that decision held that the costs insurance premium was a compensable disbursement. Salmers, J. noted at para 21:

“Without costs insurance, the fear of a very large adverse costs award would cause many Plaintiffs of modest means to be afraid to pursue meritorious claims. It is in the interests of justice that Plaintiffs be able to pursue meritorious claims without fear of a potentially devastating adverse costs award.

[24]      I find adverse costs insurance to be an “access to justice” issue.  For that reason, I hold it to be a compensable disbursement to be included as a costs obligation payable to the Plaintiffs. This amount is $1,458.

June 25, 2019

Last year, 41 cyclists were killed or seriously injured – I was one of them

It took me three months to walk again, and five to walk without a cane. It wasn’t therapy or confidence that got me back on two wheels. It was anger.

https://nowtoronto.com/news/vision-zero-cycling-toronto/

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What cabinet upheaval means for auto reform progress

Ontario Premier Doug Ford has made drastic changes to his cabinet just months after including auto reforms in its first budget.

Taking over as finance minister – and in effect, the auto insurance file – will be Rod Phillips. The former finance minster, Vic Fedeli, has been moved to the ministry of economic development.
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Downey commits to collaborative approach as Ontario’s new attorney general

Lauded by former colleagues for his collegiality, Ontario’s new Attorney General Douglas Richard Downey plans to take a collaborative approach on new initiatives and lingering issues that dogged his predecessor, including one that drew a comment from Canada’s top judge.

 
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IBC: Fraud is an attack on everyone – insurers, consumers, law enforcement

In a recent statement, the Insurance Bureau of Canada (IBC) made clear that it is serious about addressing the issue of insurance fraud – particularly auto insurance fraud. But it needs help from everyone involved.

 
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West v. Knowles, 2019 ONSC 3829 (CanLII), <http://canlii.ca/t/j13kw

[1]           The plaintiff, Joshua West, was involved in a motor vehicle accident on June 5, 2010, while as a passenger in the car driven by the defendant, Gordon Knowles, and owned by the defendant, Robin West.  Mr. Knowles drove into a tree. Following a four-week trial before a jury, the jury returned a verdict in which it granted $160,000 for general damages, $50,000 for past loss income and $500,000 for future loss of income.

[2]           Joshua West now seeks a cost award for fees and disbursements against the defendant in the amount of $481,134.49 inclusive of HST.  The defendant submits that the appropriate range for Joshua West’s fees would be $125,000-150,000 plus disbursements and HST.  Also, the defendant seeks a cost award against the plaintiff, Robert West, in the range of $9,000-15,000 plus HST.

[10]        Rule 57.01 states:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) 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 that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.  R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1. 

June 24, 2019

Ontario government won’t ‘deviate’ from fiscal plan, says new finance minister

Ontario Finance Minister Rod Phillips says the provincial government has no plans to “deviate” from its controversial fiscal priorities but it will admit mistakes when it makes them. 
 
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Ontario’s new attorney general should reverse cuts to legal aid

Ontario has a new attorney general, Doug Downey, who is no doubt facing a massive to-do list.

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Scales tipped in insurer’s favour with LTD claims

Insurance companies are ramping up their scrutiny of long-term disability claims and employing tactics to deny benefits, Toronto personal injury and disability lawyer Nainesh Kotak tells Benefits Canada
 
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Bill 100, Protecting What Matters Most Act (Budget Measures), 2019

The Schedule amends section 62.1 of the Aggregate Resources Act which currently requires licensees and permittees under the Act to give notice of any change in their name and address to the Minister and the Aggregate Resources Trust.  The amendment requires the licensees and permittees to give notice of any change in their name, address and other prescribed contact information to a prescribed person. 
 

Background: A ‘startling turn of events’: Judge rules case points to improper influence in Ontario auto insurance disputes

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 (CanLII), <http://canlii.ca/t/j140m  

[1]          Mary Shuttleworth was injured in a car accident on September 28, 2012. In December 2014, she applied to her insurer, Peel Mutual Insurance Company (“Peel”), for a determination that her accident injuries resulted in impairments that met the statutory threshold for a “catastrophic impairment” as defined in the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“the SABS”). When the parties were unable to agree whether the threshold was met, she sought a hearing before the Licence Appeal Tribunal (“the LAT”). At the time, the LAT was a part of a cluster of tribunals known as the Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”). On April 21, 2017, LAT vice-chair Susan Sapin released a decision determining that the threshold was not met.

[2]          Approximately two months later, Ms. Shuttleworth’s counsel received an anonymous letter stating that, before the decision was released, it was reviewed and changed by Linda Lamoureux, the executive chair of SLASTO. The letter claimed that in Ms. Sapin’s initial decision, Ms. Shuttleworth’s injuries qualified as a catastrophic impairment, but when Ms. Lamoureux reviewed the decision, she altered it and determined that Ms. Shuttleworth did not meet the threshold. The letter also indicated that Ms. Sapin was reluctant to sign the decision.

[3]          Ms. Shuttleworth attempted to obtain information about the process followed in her case. This was met by a broad claim of adjudicative privilege asserted by the LAT. However, the LAT did produce some emails without attachments, which it relied on in support of its position that there was no interference with Ms. Sapin’s decision. Having obtained no meaningful information regarding the serious charges in the anonymous letter, Ms. Shuttleworth brought an application for judicial review.

[4]          The Divisional Court granted Ms. Shuttleworth’s application for judicial review and set aside the LAT’s decision. While it made no finding of any actual impropriety, the court held that the LAT’s decision-making process did not meet the minimum standards required to ensure both the existence and appearance of adjudicative independence.

[5]          The LAT and SLATSO appeal the order of the Divisional Court, as does Peel (“the appellants”). They assert that the court erred in law in finding that there was a reasonable apprehension of lack of independence in relation to Ms. Sapin. As I will explain below, I do not accept this submission and would dismiss the appeal.

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Al-Khouri v. Hawari, 2019 ONSC 3681 (CanLII), http://canlii.ca/t/j13kk  
 

[5]         At the outset of the Pre-trial, Plaintiff’s counsel indicated that the defence has refused to negotiate possible settlement of the case. Further, Aviva agreed to engage in a mediation and took no position other than a no liability position. The Plaintiff argued that throughout the file, but most notably at the Pre-trial Conference, the Defendant’s insurer had acted in bad faith. Aviva’s position required everybody to attend the pre-trial Conference and then Aviva refused to negotiate.

[6]         In response to this information I asked the defence if they were continuing with a no liability position. Counsel indicated they were.

[7]         In light of the insurer’s position, I read out Rule 50.05 (2). I asked Aviva’s claims representative if she had authority to settle the case, up to policy limits if the facts supported it, or whether she had to report to a committee or an individual to obtain further instructions. I also asked her whether, if she did not have the authority, she had arranged to have an effective decision-maker available by phone, as required by the Rule.

[8]         The claims examiner said two things: first, she indicated that she had not made arrangements that an effective decision-maker at Aviva was phone-ready to be contacted; and second, she confirmed that she reports to a committee for instructions.

[9]         Defence counsel provided answers to the balance of my questions. She advised that the “committee” is merely an oversight committee. The claims representative before the court made recommendations based on the facts to the oversight committee. Counsel’s submissions, however, did not satisfy me that the claims examiner before the court was the, or even an effective decision-maker that had authority to settle.

[10]      Rule 50.06 sets out the purposes of, and the things to be considered at the Pre-trial Conference, the first of which is the possibility of settlement.  Rule 50.05 supports Rule 50.06 by requiring that the “parties” attend in person unless the Court orders otherwise, so that people present at the Pre-Trial have the ability to make decisions about the case. Where a third party liability policy protects a Defendant, the Defendant cedes control over the defence of the action to the insurer. The insurer, thus, becomes the “party” for the purposes of the rule.

[14]      Based on the representations of counsel and Aviva’s claims representative’s answers to my two questions, I determine that the Defendant had not complied with Rule 50.05(2), in the circumstances of this Pre-Trial Conference. Aside from filling in the Pre-Trial Conference Report, the Pre-Trial could not consider those things listed in Rule 50.06 because Aviva’s decision maker(s) was/were not present, or available, or even defined.