Author Archives: Admin2

May 29, 2019

by Admin2

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. 
 
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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. 
 
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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. 
 
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18-003314 v Wawanesa Mutual Insurance Company, 2019 CanLII 43877 (ON LAT), <http://canlii.ca/t/j0cc7  

   [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 Company, 2017 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 13674. In 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

by Admin2

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 
 
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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. 
 
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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.  
 
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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). 
 
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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. 
 
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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.  
 
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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.
 

May 27, 2019

by Admin2

LSO balks at federation’s standards on disciplinary investigations

The Law Society of Ontario has decided it cannot comply with a national standard to contact lawyers and paralegals every three months if they are the subject of a disciplinary complaint investigation, according to a new report. 
 
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The judicial system can’t withstand political interference

The Canadian justice system is one of the pillars that supports our democracy. The rule of law gives people a legal recourse to hold those in power to account. As the French ecclesiastic, preacher, journalist and political activist Jean-Baptiste Henri-Dominique Lacordaire said, “Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.”  
 
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Doug Ford reverses retroactive funding cuts amid fierce pressure from Toronto

Ontario Premier Doug Ford has reversed this year’s cuts to municipal funding, including child care, public health and EMS, but future cuts will continue as planned. 
 
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‘He was the “Pain Guy” ’: A Toronto physician’s ex-patients share their allegations of sexual abuse

These four women say Dr. Allan Gordon touched them inappropriately when they sought his help – and when they complained to the medical college, it dismissed their cases 
 
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‘I couldn’t believe it’ — why disability claims for mental health are often a struggle

When Dr. Wei-Yi Song filled out the insurance paperwork for a pregnant 28-year-old female patient who, at 34 weeks of gestation, was suffering from depression, he thought her case would be “a slam dunk.” 
 

May 24, 2019

by Admin2
2018 Law Society Tribunal Annual Statistics
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Medical Marijuana: What Health Care Professionals Need to Know

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Ontario Appoints Special Advisors to Review Workplace Safety and Insurance Board

The Ontario government is launching a review of the Workplace Safety and Insurance Board (WSIB) to ensure workers and their families remain supported and protected in the workplace. The review will provide the government with new information regarding the board’s operations and how it compares to industry best practices. 
 
 
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Why Aren’t the Doctors Where the Sick People Are?

West Hill is a quiet neighbourhood nestled between the branches of the Highland creek in east Scarborough, bounded by the elite Scaroboro Golf and Country Club to the west and Lake Ontario to the south. In the 1950s and 60s, middle-class families drawn by the area’s affordable houses and rural beauty turned the community into a post-war suburb. Along Kingston Road, which cuts through the neighbourhood, motels and plazas served drivers passing through towards Toronto. 
 
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$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision. 
 
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Saskatchewan drivers underinsured: report

A high percentage of Saskatchewan drivers are not adequately insured, according to a recent report. 
 

May 23, 2019

by Admin2

Government’s proposed insurance changes a start: Derfel

The Ontario government’s plan to reinstate a $2-million default benefit limit for catastrophic injuries is welcome news, says Toronto personal injury lawyer David Derfel. 
 
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Bartenders’ liability for impaired driving accidents – civil versus criminal

Legal experts say criminal charges like those laid against a former bar server in connection with a drunk-driving crash that killed two Ottawa-area teens are rare and difficult to prove. 
 
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Exploring The Link Between Inflammation And Depression: Study Suggests Women Are Affected The Most

The link between depression and the body’s inflammatory response continues getting stronger, with more research showing an ever-tighter correlation. Whether inflammation causes depression has been difficult to nail down, but findings from a new study suggest we could be getting closer to an answer. For women in particular, it seems higher levels of inflammation can lead to an underlying condition that fuels depression. 
 
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Ontario’s poverty reduction strategy is built on the idea that people deserve to be poor

As a community mental health social worker in downtown Toronto, I encounter the most extreme conditions of poverty and social inequality in the city. The people I work with are often forced to find shelter in profoundly undignified environments. Some pay upwards of $1,000 a month to share a shoebox-sized room with strangers in boarding homes where sickness is rampant and pest infestations are chronic. When I search for people in dangerously cramped city respite shelters, I’m struck by their resemblance to natural disaster relief centres. 
 
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Court hands driver $500 fine in incident that killed cyclist Gary Sim

When the driver convicted in the incident that killed her husband was handed a $500 fine in a Scarborough courtroom last month, Angela Sim had a message for him: the punishment was not nearly enough. 
 
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Patient Compass

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More Long Term Disability Claim Tips & Tricks (Ontario)

The last installment of the Toronto Injury Lawyer Blog dealt specifically with tips and tricks for long term disability claims in Ontario.

That Blog entry was a resounding success. We received considerable positive feedback and inquiries that we thought we would keep the ball rolling with a second installment of tips and tricks for long term disability claims in Ontario.

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Gopie v. Ramcharran, 2019 ONCA 402 (CanLII), <http://canlii.ca/t/j0bkp  

[1]         The appellant, Ramesh Gopie, was injured in a motor vehicle accident on November 1, 2005. The driver of the other vehicle was uninsured, so Mr. Gopie’s own insurer, the respondent Economical Mutual Insurance Company, defended the action as an uninsured motorist carrier. Liability was not in dispute. The appellants – Mr. Gopie and his family – sought in excess of $10 million in damages, arguing that Mr. Gopie suffered ongoing symptoms from the mild traumatic brain injury he sustained in the accident.

[2]         Following an eight-week trial, the jury returned a verdict of about $186,000, including pre-judgment interest – an amount significantly less that the respondent’s pre-trial settlement offer of $500,000, plus costs. Once the damages, pre-judgment interest, and the costs awarded to the appellants were set off against the costs the trial judge awarded to the respondent, the appellants recovered nothing and owed the defendants a further $22,406.37 in costs.

[3]         The appellants argue that there are two reasons for the jury’s modest assessment of Mr. Gopie’s damages and that they require a new trial. First, the jury was allowed to effectively judge the character of Mr. Gopie and whether he was a person who was generally untruthful, and, therefore, could not properly assess whether the evidence about his ongoing symptoms following the accident should be accepted or rejected. They say this was the result of the trial judge improperly exercising her gatekeeping function in permitting Dr. Furlong, one of the respondent’s two defence psychiatrists, to impugn Mr. Gopie’s character and the trial judge having improperly told the jury that they could use the evidence of Mr. Gopie’s convictions arising out of events following the accident and other unlawful conduct for the purpose of assessing Mr. Gopie’s credibility. The appellants argue that, together, these errors resulted in a “character assassination”.

[4]         Second, the jury was led astray on the proper test for causation and the standard of proof applicable to claims for damages in the future by the trial judge’s charge on what she described as “preliminary questions” that the jury may wish to consider before reviewing the Questions for the Jury.

[7]         The respondent put the evidence of Mr. Gopie’s unlawful conduct to Dr. Furlong, as hypotheticals, and asked him whether such conduct, if it had occurred, would affect his psychiatric assessment of Mr. Gopie. In responding to whether it would affect his assessment if Mr. Gopie’s licence were suspended on medical grounds and Mr. Gopie continued to drive, Dr. Furlong offered a number of possible interpretations including that Mr. Gopie had told stories to the doctors on whose advice his licence was suspended that were not true. Over Mr. Gopie’s trial counsel’s objection, the trial judge permitted respondent’s counsel to continue and confirm with Dr. Furlong whether such conduct would affect his psychiatric assessment of Mr. Gopie.

[8]         We agree with the appellants that Dr. Furlong’s response including that Mr. Gopie might have told stories to the doctors that were not true was not proper expert evidence. In her summary of Dr. Furlong’s evidence in her charge to the jury, the trial judge made no reference to this response. Referring to his response and telling the jury to disregard it may well have drawn more attention to it. Mr. Gopie’s trial counsel made no objection to the manner in which the trial judge summarized Dr. Furlong’s evidence. We are not persuaded that Dr. Furlong’s response or the manner in which the trial judge charged the jury in relation to Dr. Furlong’s evidence warrants a new trial.

[13]      First, there is no basis to interfere with the trial judge’s ruling permitting two psychiatrists to testify for the respondent. She considered and fulfilled her gatekeeper function and provided a careful and comprehensive written ruling. Among other things, she considered the quantum of damages claimed, that the alleged psychological issues were a significant aspect of the claim, and the balance in the number of experts called by each side. The trial judge concluded that “overall [the two psychiatrists’] perspectives were quite different, and their evidence would not be unduly repetitive and would be of assistance to the jury.” Further, there was no prejudice to the appellants if the two psychiatrists were permitted to testify, whereas the respondent might be prejudiced if they were not both permitted to do so.

[14]      Second, an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained: Evidence Act, s. 52(2). The trial judge correctly exercised her gatekeeper function with respect to the admission of medical opinions contained in the medical records and reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.

May 21, 2019

by Admin2

Ontario Government’s $1 million course correction!

Contained in the 2019 Ontario Budget, Protecting What Matters Most, the government announced that it will be restoring the ‘missing million’ in auto insurance coverage for the most seriously injured, or “catastrophically impaired”, that was slashed in 2016. 
 
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Mixed news for accident victims in auto insurance reforms

Small savings on premiums can leave big deficits in care after an accident, says Toronto personal injury lawyer Gary Will. 
 
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New legal expense insurance trend represents challenge for PI lawyers

Legal expense insurance (LEI) was initially designed to increase access to justice for injured plaintiffs who would otherwise be unable to proceed to trial, but a recent development related to how insurers approach the product should concern all stakeholders, says Amanda Bafaro, Chief Risk Officer of Toronto-based specialist litigation finance firm BridgePoint Financial Services Inc. 
 
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What Surveillance Evidence Needs to Be Disclosed to Applicant? – 18-004555 RD v Wawanesa Insurance, 2019 CanLII 22203 (ON LAT)

SURVEILLANCE – is applicant entitled to surveillance evidence from respondent; is the evidence relevant to the issues in dispute;  is the evidence protected from disclosure by litigation privilege; surveillance that is related to the issues in dispute, if any, is relevant to this application; the respondent is not required to advise of the existence of any surveillance or provide copies of any surveillance evidence that relates to surveillance conducted after litigation privilege unless it intends to rely on it at the hearing 
 
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Injured Workers’ Day Rally

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Brain injuries unmasked

The 29-year-old said he can only piece together the events after the “scuffle” by the Sarnia waterfront from what people have told him, but he ended up in brain surgery in London for an epidural hematoma – bleeding between his skull and brain. 
 
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Five Ways to Support a Survivor of Traumatic Brain Injury

TBI (traumatic brain injury) can have profound and long lasting impacts you the life of the survivor of the injury and on their friends and family. Symptoms can range from physical impairments, to emotional difficulties, to cognitive impairment. Anger, depression, appetite loss and memory loss are common. These are compounded by the fact that there is usually little to no outward sign of disability – strangers don’t have a visual cue (such as a cane or walker) to be more patient, helpful, or understanding. 
 
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17-006563 v. Allstate Insurance Company of Canada, 2019 CanLII 40290 (ON LAT), http://canlii.ca/t/j0681
 [1]        This decision deals with a request for reconsideration focusing on a single question: whether the applicant is entitled to case management services under s. 17(1)(b) of the Statutory Accident Benefits Schedule, O. Reg 34/10 simply because she purchased the optional benefits described in s. 28(1)5 or, instead, whether she needs to have suffered a catastrophic impairment before being entitled to those services?            
[2]        The Tribunal held that the applicant needed to have suffered a catastrophic impairment before being entitled to case management services.  In the Tribunal’s words: I find s. 17(1)(b) when read in conjunction with s. 28(1) 5 of the Schedule provides an insured with entitlement to claim case management services if the optional catastrophic impairment benefit has been purchased and the insured has been deemed to have sustained a catastrophic impairment as a result of the accident. 
[3]        The applicant purchased a policy of automobile insurance from the respondent with the optional catastrophic impairment benefit as described in s. 28(1)5. She was later injured in a motor vehicle accident and subsequently claimed entitlement to case management services. The parties agree that the applicant had not been deemed to have suffered from a catastrophic impairment. 
[4]        The applicant submits that the Tribunal made seven significant errors of law, dealt with below, in interpreting the above sections of the Schedule.  In essence, she argues that the Tribunal made a significant error of law that, if corrected, would likely have resulted a different decision: see Rule 18.2(b)  of the Tribunal’s Rules of Practice and Procedure, Version 1 (April 1, 2016). 

May 17, 2019

by Admin2

Making auto reform happen

Insurance reform is long overdue, says the head of a medical evaluation company. 
 
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Personal injury fakers should be prosecuted: Ford

Police should consider laying fraud charges when surveillance evidence reveals accident victims have been faking their injuries, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.   
 
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FOLA: Province paying lip service to consultation on critical issues

The Ontario government’s lack of commitment to meaningful consultation is striking another blow to access to justice, says Michael Winward, chair of The Federation of Ontario Law Associations (FOLA). 
 
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Lawyers frustrated by vacancies at Human Rights Tribunal

Lawyers are concerned vacancies at the Human Rights Tribunal of Ontario are contributing to significant delays and weakening human rights protections in the province. 
 
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Bill 60, Ministry of Community and Social Services Amendment Act (Social Assistance Research Commission), 2019

The Bill amends the Ministry of Community and Social Services Act to establish the Social Assistance Research Commission. The Commission recommends social assistance rates, and makes other recommendations about social assistance policy. The Commission consists of people with expertise relevant to the Commission’s work. 
 
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Link Found Between Chronic Pain And Prematurely Aging Brains

Scientists have long recognized the human brain appears to keep time to its own internal clock, its biological age speeding or slowing depending on a host of factors. 
 

May 16, 2019

by Admin2

Allstate whistleblower facing $700K lawsuit says insurance giant trying to silence her

A former Allstate Insurance Canada employee who launched a wrongful dismissal suit and had publicly criticized a practice she called discriminatory is defending herself against an Allstate counterclaim that could cost her more than $700,000 in damages. 
 
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Even Light Rain Increases Risk of Deadly Car Crash

Even light rain significantly increases your risk of a fatal car crash, a new study finds.

The wetter the roads, the deadlier they become, with rain, snow and ice increasing the risk of deadly car crashes by 34 per cent, according to a study this week in the Bulletin of the American Meteorological Society.

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Secret document shows how far Doug Ford’s Tories would cut social services — until they were talked back from the brink

A secret cabinet draft reveals that draconian cuts to social services, first considered by Doug Ford’s government for its April budget, provoked strong internal warnings of potential human suffering, legal peril and political fallout. 
 

May 15, 2019

by Admin2

Lower Auto Insurance Rates Act defeated by Conservatives

On April 18, 2019, my bill entitled “The Lower Automobile Insurance Rates Act” was debated at Queen’s Park and defeated by the Conservative Government.

https://www.downsviewadvocate.ca/2019/05/lower-auto-insurance-rates-act-defeated-by-conservatives/

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Ontario Court of Appeal: Insured’s Failure to Provide Up to Date Address Not a “Breach of Duty to Cooperate” as not “Substantial”

The insured has a duty to cooperate with defence counsel appointed by his 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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Practical Strategies Webinar – Medical Marijuana: What Health Care Professionals Need To Know

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OW and ODSP Overpayment Recovery Rates May Increase From 5% to 10%

The Auditor General has recommended that both Ontario Works (OW) and the Ontario Disability Support Program (ODSP) increase the amount they collect toward outstanding overpayments. 
 
 

May 14, 2019

by Admin2

Where are the bottlenecks?

Imagine Canada’s auto insurance industry saving millions of dollars each year in total loss costs and passing that along to Canadian drivers in the form of premium decreases. And all by simply reducing total loss cycle times by a week. How can the industry do this? 
 
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Ontario court rejects well-established rules for interpreting insurance policy exclusions

In Pembridge Insurance Company of Canada v Chu,(1) a judge of Ontario’s Superior Court of Justice recently concluded that insurance policies should be interpreted differently when multiple insurers are involved. 
 
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Is the speed limit going up? Is it safe? Key questions arising from government announcements

The Ontario Government announced its intention to review the province’s speed limits and it looks like the limit may be heading up. The current 100 kilometre per hour limit on the 400 series of highways was set in the 1970s in response to maximizing fuel economy during the energy crisis. 
 
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Roadblocks ahead for Alberta drivers trying to get insurance: industry professionals

Alberta drivers are being cautioned about a possibly bumpy road ahead when it comes to insurance coverage. 
 
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HST class action case proceeding through the courts
 
Elliot v. Aviva Insurance et al, 2019 ONSC 2827 (CanLII), <http://canlii.ca/t/j06d6 
 

[1]               The plaintiffs have filed 15 proposed class actions against 15 different Ontario auto insurers for failing to comply with the bulletins and guidelines issued by the Financial Services Commission of Ontario (“FSCO”) relating to the inclusion of HST in the calculation of benefits under the SABS.

[2]                The FSCO’s bulletins and guidelines apparently made clear that the payment of HST was the responsibility of the insurer and was not to be deducted from any caps or benefits payable under the SABS. The plaintiffs say the defendant insurers ignored these bulletins and guidelines and included HST amounts in the calculation of benefits payable under the SABS.

[3]               The plaintiffs also sue the FSCO defendants in identical fashion in each of these 15 actions alleging that Messrs. Philip Howell and Brian Mills, the former and current FSCO superintendents, failed to ensure that the insurers complied with the FSCO bulletins and guidelines.

[]

[7]               The Crown says the Ralston Notice about the FSCO defendants was sufficient for the launching of the first action, Mieyette, but not for the other 14 actions. In particular, argues the Crown, because it did not receive notice of the actual names of the other 14 claimants (i.e. the other 14 proposed representative plaintiffs), the other 14 actions are nullities. 

[] 

[22]         The motion is dismissed. The “other 14 actions” are not nullities and may proceed.

[23]         I asked counsel at the hearing of the motion to provide me with their costs request if their side were successful. The defendants would have requested $5000; the plaintiffs would have requested $4000. The plaintiffs have prevailed on this motion. Costs are fixed at $4000, payable forthwith by the defendants to the plaintiffs.

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Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747 (CanLII), <http://canlii.ca/t/j03fn 
 

[14]           Dealing firstly with the timing of the report, s. 64(1) of Regulation 222/98 specifically provides that a report not provided to the Director that is provided to the Tribunal “shall” be considered by the Tribunal if it relates to the Appellant’s condition at the effective date of the Director’s decision and if it is submitted in a timely manner.

[15]           The wording in s. 64(1) and the decision of this Court in Jemiolo v. Director of the Ontario Disability Support Program (2009), 2009 CanLII 9420 (ON SCDC), 248 O.A.C. 77 (Div. Ct.) state that even a report prepared after the decision of the Director “shall be considered by the Tribunal” if the stated conditions are met. Here, the psychiatrist’s report, although prepared about four months after the Director’s decision, relates to the Appellant’s ongoing condition stating that the Appellant’s condition has been ongoing “for approximately five years”. Thereby, it meets the conditions of s. 64(1). As a result, the Tribunal unreasonably erred in law when it decided not to accept the psychiatrist’s report as relevant because he “did not see the Appellant at the time of the Director’s decision”.

[16]           As well, we find that the Tribunal’s finding that there was no evidence of S1 nerve root impingement was not reasonable considering the evidence of S1 nerve root effect on an MRI. The Tribunal stated that the imaging does not confirm “impingement”. However, the imaging report of January 16, 2017 states: “Disc protrusion and minimally indents the anterior thecal sac as well as the anteromedial margin of the right and left S1 nerve roots as they exit the thecal sac”. The interpretation of this imaging result is within the psychiatrist’s expertise with respect to his physical condition as he is trained as a medical doctor.

[17]           We note, as well, that the opinion of the psychiatrist with respect to his physical conditions was in keeping with that of Doctors Lentini, a physical medicine specialist, and Bidari, the family doctor.

[18]           Thirdly, we find that the Tribunal erred in failing to consider the psychiatric analysis of the psychiatrist and the family doctor’s evidence relating to the Appellant’s depression. In this case, the Tribunal never dealt with the medical opinions relating to depression. That is an error of law.

[19]           The above is sufficient to allow this appeal. However, and although we do not make these findings, we express concern that the Tribunal might have interpreted the applicable statutory provision incorrectly.