Author Archives: Admin2

FSRA Encourages Ontario’s Auto Insurers to Explore Further Relief Measures as COVID-19 Continues to Impact Consumers

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Peter B. Cozzi Professional Corporation v. Szot, 2020 ONCA 397 (CanLII), <http://canlii.ca/t/j89x1  
[52]      The principles governing the granting of a charging order under s. 34(1) were summarized by this court in Weenan v. Biadi, 2018 ONCA 288, 141 O.R. (3d) 276, at paras. 14-15:

•        To obtain a charging order on the monies in issue, the onus is on the solicitor to demonstrate that a charging order is warranted;

•        The decision is discretionary. In deciding whether to exercise that discretion, the court must “balance the circumstances and equities of each case and client”; and

•        To obtain a charging order, the solicitor must demonstrate that:

                             i.        the fund or property is in existence at the time the order is granted;

                           ii.        the property was “recovered or preserved” through the instrumentality of the solicitor; and

                           iii.        there must be some evidence that the client cannot or will not pay the lawyer’s fees.

[53]      The appellant asserts that the motion judge erred in concluding that the appellant had not established that his work was instrumental to the recovery or preservation of the property. Repeating the argument he made before the application judge, he contends that he arranged for the ATE Policy and performed the work on Mr. Nguyen’s civil action that led to payment of the policy proceeds.

[54]      The application judge rejected these arguments. She found that the appellant “simply sold Mr. Nguyen the ATE Policy” as an insurance intermediary. She agreed with the submission of the PGT that the appellant “should not be rewarded for brokering a contract between Mr. Nguyen and DAS when he knew that Mr. Nguyen had a litigation guardian and was incapable of entering into the contract.” She also found that the ATE Policy proceeds were not the “fruits of the litigation” because “Mr. Nguyen recovered nothing in the litigation and is more indebted after the litigation than before it. Since no property was recovered or preserved in the proceeding, there can be no charging order.”

[55]      We see no error in the application judge’s findings or in her exercise of discretion based on the evidence before her.

[56]      We also agree with the submission of the PGT in its factum that “the facts of this case are nothing less than shocking”, and that it would offend the principles of fairness and justice to reward the appellant, through the payment of fees and disbursements, for entering into the CFA with Mr. Nguyen, brokering an insurance contract between him and DAS, and having Mr. Nguyen sign a direction to him, when he knew that Mr. Nguyen was incapable of making these decisions and had a litigation guardian from whom the appellant was supposed to take instructions.

D.           DISPOSITION

[57]      The appeals are dismissed. The appellant is ordered to pay costs of $20,000 to the respondent Mr. Szot and $11,000 to the PGT, inclusive of disbursements and taxes.

 

This is an opportunity to take a progressive turn in modernizing the administration of Ontario’s justice system. Auto accident litigants are not criminals, so being judged by one’s own peers has little meaning and there are no checks and balances or accountability for juries. Judges must provide reasoning for their decisions so eliminating juries and the need to withhold knowledge of a ‘secret deductible’ from jurors would go a long way to establish faith in our courts whose current state is one of a system that has squandered the public’s trust by failing to provide accountability while allowing insurers to overuse and abuse the courts in the name of higher profits. 

http://www.fairassociation.ca/wp-content/uploads/2020/06/FAIR-submission-to-MAG-Consult-on-Civil-Juries-June-15-2020.pdf  

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If you have questions or need more information about the study itself, please contact student investigator Laura Brooks by email at brookl2@mcmaster.ca, or call Dr. Turkstra at 905.525.9140 Extension 28648.

The goal of this research project is to help us better understand the experiences that those with brain injury following a motor vehicle collision have with their auto insurance claims.

https://surveys.mcmaster.ca/limesurvey/index.php/241452?lang=en  

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Ontario drivers have seen auto insurance savings but minister says more needed

Economical Mutual Insurance Company v. Sotira Tomec

Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (CanLII), <http://canlii.ca/t/j37sh 

https://www.fsrao.ca/industry/auto-insurance-sector/guidance/statutory-accident-benefits-claims-during-covid-19-outbreak  

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Howard Levitt: Some insurers are using ‘unprecedented times’ as an excuse to deny disability claims

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Lloyd v. Bush, 2020 ONSC 2892 (CanLII), <http://canlii.ca/t/j7rvk  

[1]               This the latest chapter in litigation that was commenced on 31 March 2003, following a motor vehicle accident that had occurred on 3 January 2003.

[2]               The plaintiffs’ claims arising from that incident have now been the subject of three trials and two appeals. 

[3]               The defendants David Bush and MacDonald’s Propane settled with the plaintiffs during the course of the first trial.  The active defendants since then have been the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee (the “Municipal Defendants”).  These parties are represented by the same counsel. 

[4]               The first trial concluded in 2010.  The action was dismissed.  Costs were awarded to the Municipal Defendants in the total amount of $401,276.43 including disbursements and applicable taxes. 

[5]               On the first appeal, the Court of Appeal held that the plaintiffs had established a reasonable apprehension of basis on the part of the trial judge.  The appeal was allowed, and the matter remitted for a new trial.  The Court of Appeal ordered “that each party should be responsible for their own costs at trial”:  Lloyds v. Bush, 2012 ONCA 349, at para. 70.

[6]               The second trial was heard in 2014, with reasons for decision released on 6 February 2015 (reported at 2015 ONSC 761; supplementary reasons at 2015 ONSC 5340).  The Municipal Defendants were held 60% responsible for the plaintiffs’ damages; David Bush and 818601 Ontario Inc., c.o.b. as MacDonald’s Propane were held 30% liable; Leslie Lloyd was found to be 10% contributorily negligent. 

[7]               The plaintiffs’ damages were assessed by the judge at the second trial in the total amount of $4,149,158.50, comprised as follows:

a.      General damages for Leslie Lloyd – $300,000;

b.      Family Law Act damages for Jason Lloyd – $130,000;

c.      Future care – $408,866;

d.      Future attendant care – $2,000,000;

e.      Future income loss – $1,260,000; and

f.      Past income loss – $50,292.50.

[8]               The second appeal decision, reported at 2017 ONCA 252, upheld the assessment of damages at the second trial, but ordered a new trial on the issue of liability (and the related issues of causation and contributory negligence).  Costs of the second trial were remitted for determination at the third trial.

[9]               The third trial was heard in April and May 2019, with reasons for decision released on 6 February 2020 and reported at 2020 ONSC 842.  Liability was apportioned as follows:

a.      Municipal Defendants – 50%;

b.      David Bush and MacDonald’s Propane – 33%;

c.      Leslie Lloyd – 17%.

[10]           I invited the parties to agree on the costs arising from the second and third trials, failing which they should make written submissions. 

[11]           The parties were unable agree on costs and, consequently, written submissions have been received.  Those submissions have also addressed the issue of interest. 

Ontario courts and tribunals have recently considered the application of the doctrine of discoverability in the context of accident benefit claims. These considerations have developed the common law in notable ways for insurers and insureds alike. Specifically, special considerations now arise in the context of Accident Benefits where limitation periods are concerned. 

 

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Cira sets the bar in IME facility cleanliness with abatement verification and ATP Testing

Windsor car crash rate cut in half — so what’s with high car insurance rates?

Anyone injured in any way by a motor vehicle in Ontario must complete and submit a Disability Certificate (OCF-3) in order to qualify for important benefits. 

 

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Tips for Accident Victims Living through COVID Lockdowns in Ontario

 

Applicant vs. RSA Insurance, 2020 CanLII 14485 (ON LAT), <http://canlii.ca/t/j5f9v  

[25]        The AMA Guide[20] defines “permanent impairment” as, an impairment that is unlikely to change substantially and by more than 3% in the next year with or without medication.

[26]        According to the applicant, the definition of “permanent” from the  Merriam-Webster.com website is: continuing or enduring without fundamental or marked change.[21] 

[27]        I agree with the definition from the AMA Guide that a permanent impairment is something that is unlikely to change substantially or by more than 3 per cent.  I would add that an impairment can be considered permanent if it will continue without a fundamental or a marked change. 

[28]        I do not view Dr. Farhadi’s conclusion of the applicant’s “potential to improve” to mean that she is likely to improve substantially or by more than 3 per cent in accordance with the AMA Guide or that her condition will have a fundamental or marked change so that she is no longer considered to have a permanent grade on the ASIA Impairment Scale. 

[29]        Dr. Farhadi goes on to suggest that the applicant should be reassessed at the 24 month mark.  I place less weight on the conclusions Dr. Farhadi reaches based on the fact that there is no time requirement to conduct an assessment in paragraph 1 of section 3.1(1) as there are in the other paragraphs of this section.  Furthermore, Dr. Farhadi is attempting to go beyond his role as a medical assessor.  His role is to provide a medical diagnosis of the applicant, not to provide his opinion on the interpretation of the Schedule.  That role falls to this Tribunal for the purpose of assessing whether the applicant sustained a catastrophic impairment.

[30]        If the drafters of the legislation intended for there to be a minimum amount of time before an applicant can be determined to qualify as catastrophically impaired under paragraph 1, they would have used wording to that effect as they did in the other paragraphs of section 3.1(1).  In my opinion, requiring the applicant to wait 24 months for an assessment under paragraph 1 goes beyond the wording and the requirements of that paragraph. 

[31]        Based on the above, I find that Dr. Farhadi’s opinion of the applicant having the “potential to improve” does not mean the applicant’s permanent grade on the ASIA Impairment Scale cannot be determined.  Furthermore, I find that there is no requirement to wait 24 months before conducting an assessment under paragraph 1 of section 3.1(1).

CONCLUSION

[32]        I find that the applicant meets the definition of a catastrophic impairment in accordance with the Schedule.

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Arconti v. Smith, 2020 ONSC 2782 (CanLII), <http://canlii.ca/t/j6wzr  

[19]     In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

[20]     That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

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[23]     Rule 1.08(1) is written very broadly. It allows for the use of remote technology in any step in a motion, application, trial, etc. I have no hesitation finding that an examination for discovery ordered in association with a mini-trial of a summary judgment motion is a step in a motion and a trial.

[24]     Looking at the factors in Rule 1.08(5), the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion. Neither is demeanour a factor in this case. The transcript of an examination for discovery of Mr. Fenton can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour.

[25]     I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

[26]     While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.

[44]     In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay. These actions have been outstanding for several years. The defendants are entitled to have their motion heard just as the plaintiffs are entitled to seek compensation. The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.