Author Archives: Admin2

May 20, 2020

The Doctrine Of Discoverability And Accident Benefits Claims: Special Considerations Following Tomec And Pafco

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. 
 
________________________________________________________________

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

MISSISSAUGA, ON, MAY 11, 2020/insPRESS/ — With the safety and health of assessors, claimants, and staff at the forefront of the mind, Cira Health Solutions (Cira) brought in a team of industrial hygienists to validate their facility’s level of clean. The team of hygienists was hired recently to conduct abatement verification assessments (qualitative testing of surfaces) through Adenosine Triphosphate (ATP) bioluminescence testing and other analysis. 
 
_______________________________________________________________

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

With far fewer cars on the road, resulting in far fewer crashes being reported, a local lawyer who specializes in injury claims says it’s time for the big insurance companies to return some of those high auto premiums they charge motorists. 
 
______________________________________________________________

COVID-19 shows why catastrophically injured should know about structured settlements

The settlement of a personal injury claim can be a life-changing financial decision for any injured person, yet many will make that decision without having been informed of all aspects of the law and regulations that impact personal injury settlements before their settlement is finalized. 
 
______________________________________________________________
Court Updates and info:
 
 
 
 
 
______________________________________________________________

ODSP and OW recipients feel forgotten by province: MPP Lindo

People living on social assistance have been facing difficulties amid the pandemic, but have not been receiving equal support as others have. The provincial government does provide a monthly emergency benefit payment of $100 for individuals, and $200 for families living on social assistance, until July 2020. However, those on social assistance must apply and make their case for receiving the money. 
 
______________________________________________________________

Sudbury column: Social assistance recipients left behind 

It feels as though people in receipt of Ontario Works (OW) and Ontario Disability Support Program (ODSP) in Ontario, as well as recipients of other provincial and territorial assistance, are being left behind in the flow of money that is being provided to help Canadians deal with the pandemic. 
 
_____________________________________________________________

Qualifying for the CERB can put Ontarians with disabilities in a tricky financial spot

It’s no secret that Torontonians with disabilities are particularly vulnerable to contracting COVID-19, and there’s a fear among the disabled community that they would not receive adequate treatment while in hospital.

Recently, the Ontario government has made it even more difficult for them to self-isolate and afford basic needs, even if they qualify for the Canadian Emergency Response Benefit (CERB).

Federico and State Farm

Federico and State Farm https://www5.fsco.gov.on.ca/AD/5688
2020-05-01, Arbitration, Final Decision, FSCO 5688

The Arbitrator found, at 24, that “[a] Psychological Paper File Review Report of Dr. G. Challis, Psychologist, forms the basis of State Farm’s position that the OCF-18, dated October 25, 2011, is not reasonable or necessary.”

Arbitrator Huberman gave little weight to the Challis report, for the following reasons. The Challis report was inconsistent with the preponderance of probabilities and unreasonable in the circumstances. Dr. Challis was a psychologist commenting on occupational therapy. He based his conclusions on his incorrect restatement of the evidence. Dr. Challis’ opinion was not persuasive when contrasted with the “voluminous” evidence in the proceeding.

I do not accept Dr. Challis’ opinion that the OCF-18, dated October 25, 2011, is not reasonable or necessary. I give his evidence little weight. His evidence is inconsistent with the preponderance of probabilities and is unreasonable in the circumstances of this case. Dr. Challis is a psychologist, not an occupational therapist. His expert opinion was not founded on a factual foundation which was proved to my satisfaction according to the appropriate standard of proof, as indicated above. He misquoted Ms. Morse and reached his conclusions based on his incorrectly edited version of her report. His evidence is not persuasive when compared and contrasted with the testimony of Ms. Federico and the voluminous medical evidence presented in this proceeding (page 25).

[]
Despite the findings of Arbitrator Huberman, State Farm also submits that it did not unreasonably deny the disputed plans because it reviewed the reports of Dr. Knolly Hill, Mr. Balaban, Dr. Challis and Ms. Reich. However, at page 19 of his reasons, Arbitrator Huberman accepted and gave considerable weight to the evidence of Dr. Knolly Hill and Mr. Balaban and found that their evidence supported the reasonableness and necessity of the treatment in dispute. In addition, at page 20, Arbitrator Huberman found that the Balaban report “does not clearly suggest that Ms. Federico has returned to her pre-accident status.” In addition, Arbitrator Huberman gave little weight to Dr. G. Challis’ Psychological Paper File Review Report of December 6, 2011 and found it inconsistent with the preponderance of probabilities and unreasonable in the circumstances. The Arbitrator found it unreasonable that Dr. Challis was a psychologist commenting on occupational therapy. Arbitrator Huberman found that Dr. Challis based his conclusions on his incorrect restatement of the evidence. The arbitrator also found that Dr. Challis’ opinion was not persuasive when contrasted with the “voluminous” evidence in the proceeding. 

[]

I find that State Farm’s decision to withhold benefits in this case was unreasonable for the three following reasons, any of which I consider sufficient to justify a special award.

1.     The medical evidence “overwhelmingly” supported the treatment plans

First, at the time State Farm denied both treatment plans in dispute, it had strong medical evidence to support them. Arbitrator Huberman described the evidence in support of the plans as “overwhelming” at that particular time. I agree and adopt that finding as my own.

I find that State Farm acted unreasonably in this case because it did not give due regard to what Arbitrator Huberman described as the “voluminous” evidence in support of the two treatment plans in dispute. When adjusting a claim, an insurer does not have to agree with the majority of medical opinions. However, it must duly consider those medical opinions. The evidence does not show that State Farm took steps to reconsider the requests for treatment after receiving overwhelming evidence that the requested treatment plans were reasonable and necessary.

2.     State Farm relied on two unreliable reports

Second, State Farm relied on two reports that a reasonable, unbiased adjuster would have considered unreliable. It relied on the Morse report to deny the October 2010 treatment plan and relied on the Challis report to deny the October 2011 treatment plan. However, the Morse report did not support its own conclusions and the Challis report misquoted the Morse report on a material matter. Arbitrator Huberman provided detailed explanations of the problems with both reports. I agree with those explanations and adopt them as my own.

State Farm acted unreasonably in this case because it based its denials on the error-ridden medical opinions of Morse and Challis. A close reading of the Morse and Challis reports would have enabled a reasonable adjuster to conclude that they had errors. A reasonable adjuster critically reviews the insurer’s own medical reports and does not simply adopt their conclusions. A reasonable adjuster also looks at a report’s reasons and assesses whether they support its conclusions.

3.     State Farm did not reconsider its decision in light of new information

Third, it was unreasonable for State Farm to continue to deny the claim without assessing new information as it was received. The evidence compels the conclusion that, once State Farm received the Morse and Challis opinions denying the two claims, it chose to remain indifferent to whatever further evidence it received. State Farm seems to have proceeded selectively, taking the favourable elements from the Morse and Challis reports and ignoring what Arbitrator Huberman described as the “voluminous” evidence not supportive of its position.

In particular, State Farm did not reconsider the validity of the claim after receiving the report of Ms. Sandy Sarkissian on November 22, 2013. Although Ms. Sarkissian pointed out errors and omissions in the Morse report, State Farm apparently had no second thoughts. Ms. Sarkissian’s report did not provoke State Farm to any further medical or occupational evaluation of Ms. Federico’s capabilities.

State Farm maintained its position even after Ms. Federico filed this application for arbitration and the insurer heard her arguments at mediation and in the arbitration proceedings. Unlike, for example, the claims adjuster in the Erickson case (Erickson at page 5), the adjuster who testified in this case did not indicate that, based on the evidence at the hearing, the insurer was no longer disputing the treatment plans. I agree with Senior Arbitrator Rotter in Erickson that “[a] reasonable insurer would satisfy itself that its position was still correct, and make every effort to evaluate the merits of the insured’s position before proceeding to a hearing” (at 11). State Farm did not meet that standard of reasonableness in this case. Indeed, State Farm did not change its mind until it was compelled to do so by the decision of Arbitrator Huberman.

I conclude that withholding the two treatment plans was unreasonable, not because State Farm should have allowed the benefits, but because it did not properly adjust the claim. This case is by no means an example of how to properly adjust accident benefits. Rather, I find State Farm’s conduct in adjusting the two disputed benefits stubborn, immoderate, imprudent and inflexible. By this conduct, State Farm put itself in the position of being unable to make a reasoned decision about the two requests for benefits.

CONCLUSION:

The evidence leads me to conclude that State Farm unreasonably withheld payments to Ms. Federico of the two treatment plans in dispute, contrary to s.282(10) of the Insurance Act, and that, as a result, the insurer must pay a special award on both benefits claimed.

May 13, 2020

Three Key Tips To Completing The Disability Certificate (OCF-3)

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. 
 
__________________________________________________________________

Tips for Accident Victims Living through COVID Lockdowns in Ontario

Living through COVID sucks.
Living through COVID in pain from a serious car accident sucks even more.
How are you going to see your doctors?
How are you going to get your medication?
How are you going to get to your physiotherapy appointment?
How are you going to communicate with your personal injury lawyer?
______________________________________________________________

Auto Insurers’ approach to rebates and refunds during COVID ranges widely

All over the country driving has decreased substantially. Many people aren’t leaving the house at all in their cars except for essential errands to the grocery store. We are doing our part and it shows. There is a glut in the global gas market because people simply are not driving. 
 
______________________________________________________________

The ABC’s of a Personal Injury Lawsuit

After sustaining an injury as a result of someone else’s negligence, you are likely wondering: what next? Everyone’s journey is different, but this general overview will help inform you about the legal steps.  You should be able to focus on rehabilitation and recovery as your lawyers guide you through the legal process. 
 
______________________________________________________________

As deaths rise, OPP urge drivers to ‘drive like your life depends on it’

As the Ontario Provincial Police (OPP) looks toward Canada Road Safety Week, it is reporting an increase in road fatalities as well as the leading behaviours linked to the deaths, which are the very focus of the national campaign. 
 
______________________________________________________________

What COVID means for plaintiffs

With word coming down that jury trials in Ontario won’t resume until  at the earliest September 24th, one personal injury lawyer is concerned about the additional strain this puts on plaintiffs and thinks lawyers need to take steps, now, to make sure their cases are at the front of the line when courts eventually re-open. 
 
______________________________________________________________

The Court of Appeal Emphasizes the Vital Role Judges and Counsel Play in Ensuring Trial Fairness toward Self-Represented Litigants

______________________________________________________________

Auto-injury ruling in Girao v. Cunningham a landmark for self-represented litigants, lawyers say

At trial, Yolanda Girao, a Spanish-speaking SRL, claimed $1 million in general and special damages against Lynn Cunningham, the at-fault driver in a car accident. The jury at trial found the respondent liable and awarded Girao $45,000 in general damages and $30,000 in special damages. Cunningham’s lawyer, though, moved to dismiss the action claiming Girao did not qualify for general damages. The trial judge accepted the motion, knocked her damages to $0 and awarded costs of $311,845.34 against Girao. 
 
______________________________________________________________

Is it okay for jurors to engage in internet research during deliberations?

In Patterson v Peladeau, 2020 ONCA 137, the Ontario Court of Appeal (“ONCA”) considered whether Justice Hackland of the Ontario Superior Court of Justice erred in his decision when he turned down a request for declaring a mistrial based on a juror engaging in Internet research during jury deliberations. Justice Hackland’s decision was upheld. 
 
______________________________________________________________

The lessons of cost management in a $5 million case

A ten-year case that culminated in a 70-day trial holds lessons about the cost of litigation and the expense of expert witness evidence in complex personal injury cases, lawyers say. 
 
______________________________________________________________

Ontario Releases Plan to Resume Scheduled Surgeries and Procedures

TORONTO — The Ontario government has developed a comprehensive framework to help hospitals assess their readiness and begin planning for the gradual resumption of scheduled surgeries and procedures, while maintaining capacity to respond to COVID-19. Timelines will vary from hospital to hospital and be conditional on approval by regional oversight tables involved with planning and coordinating Ontario’s response to COVID-19. 
 
_____________________________________________________________

Stories of CERB: Canadians share how they’re using the emergency benefit

TORONTO — Canadians are grappling with some of the worst job numbers in the nation’s history, with close to two million jobs lost in April, an unemployment rate of 13 per cent, and millions more working fewer hours. 
 
______________________________________________________________

Taking action to improve disability benefits in Ontario

Kyle Vose works for a social service agency in Toronto and is the agency co-chair of the ODSP Action Coalition. In earlier years, he was also an ODSP (or Ontario Disability Support Program) recipient and served as the recipient co-chair of the coalition. And Andrea Hatala is its current recipient co-chair. Scott Neigh interviews them about ODSP, the challenges faced by recipients, and the activities of the ODSP Action Coalition. 
 
______________________________________________________________

Audiovisual Entrainment or AVE, a Neuroplastic Treatment

Audiovisual entrainment. Huh? AVE. What’s that?! I’m so used to these terms and AVE being short for audiovisual entrainment, that I forget it all sounds like technobabble to most. So here goes my attempt to explain this neuroplastic treatment better. 
 
______________________________________________________________

Economic and Budget Outlook, Spring 2020

The COVID-19 pandemic will have a massive negative impact on Ontario’s economy. Unlike previous recessionary periods where lower demand forced businesses to cut production, the current decline in economic activity is due to government-directed shutdowns to stop the spread of the virus. As a result, Ontario’s economic performance will depend heavily on the success of pandemic containment measures and the pace at which the economy can be reopened through 2020 and into 2021. 
 
______________________________________________________________
 

Federico and State Farm https://www5.fsco.gov.on.ca/AD/5688

The Arbitrator found, at 24, that “[a] Psychological Paper File Review Report of Dr. G. Challis, Psychologist, forms the basis of State Farm’s position that the OCF-18, dated October 25, 2011, is not reasonable or necessary.”

Arbitrator Huberman gave little weight to the Challis report, for the following reasons. The Challis report was inconsistent with the preponderance of probabilities and unreasonable in the circumstances. Dr. Challis was a psychologist commenting on occupational therapy. He based his conclusions on his incorrect restatement of the evidence. Dr. Challis’ opinion was not persuasive when contrasted with the “voluminous” evidence in the proceeding.

I do not accept Dr. Challis’ opinion that the OCF-18, dated October 25, 2011, is not reasonable or necessary. I give his evidence little weight. His evidence is inconsistent with the preponderance of probabilities and is unreasonable in the circumstances of this case. Dr. Challis is a psychologist, not an occupational therapist. His expert opinion was not founded on a factual foundation which was proved to my satisfaction according to the appropriate standard of proof, as indicated above. He misquoted Ms. Morse and reached his conclusions based on his incorrectly edited version of her report. His evidence is not persuasive when compared and contrasted with the testimony of Ms. Federico and the voluminous medical evidence presented in this proceeding (page 25).

[]
Despite the findings of Arbitrator Huberman, State Farm also submits that it did not unreasonably deny the disputed plans because it reviewed the reports of Dr. Knolly Hill, Mr. Balaban, Dr. Challis and Ms. Reich. However, at page 19 of his reasons, Arbitrator Huberman accepted and gave considerable weight to the evidence of Dr. Knolly Hill and Mr. Balaban and found that their evidence supported the reasonableness and necessity of the treatment in dispute. In addition, at page 20, Arbitrator Huberman found that the Balaban report “does not clearly suggest that Ms. Federico has returned to her pre-accident status.” In addition, Arbitrator Huberman gave little weight to Dr. G. Challis’ Psychological Paper File Review Report of December 6, 2011 and found it inconsistent with the preponderance of probabilities and unreasonable in the circumstances. The Arbitrator found it unreasonable that Dr. Challis was a psychologist commenting on occupational therapy. Arbitrator Huberman found that Dr. Challis based his conclusions on his incorrect restatement of the evidence. The arbitrator also found that Dr. Challis’ opinion was not persuasive when contrasted with the “voluminous” evidence in the proceeding. 

[] 

I find that State Farm’s decision to withhold benefits in this case was unreasonable for the three following reasons, any of which I consider sufficient to justify a special award.

1.     The medical evidence “overwhelmingly” supported the treatment plans

First, at the time State Farm denied both treatment plans in dispute, it had strong medical evidence to support them. Arbitrator Huberman described the evidence in support of the plans as “overwhelming” at that particular time. I agree and adopt that finding as my own.

I find that State Farm acted unreasonably in this case because it did not give due regard to what Arbitrator Huberman described as the “voluminous” evidence in support of the two treatment plans in dispute. When adjusting a claim, an insurer does not have to agree with the majority of medical opinions. However, it must duly consider those medical opinions. The evidence does not show that State Farm took steps to reconsider the requests for treatment after receiving overwhelming evidence that the requested treatment plans were reasonable and necessary.

2.     State Farm relied on two unreliable reports

Second, State Farm relied on two reports that a reasonable, unbiased adjuster would have considered unreliable. It relied on the Morse report to deny the October 2010 treatment plan and relied on the Challis report to deny the October 2011 treatment plan. However, the Morse report did not support its own conclusions and the Challis report misquoted the Morse report on a material matter. Arbitrator Huberman provided detailed explanations of the problems with both reports. I agree with those explanations and adopt them as my own.

State Farm acted unreasonably in this case because it based its denials on the error-ridden medical opinions of Morse and Challis. A close reading of the Morse and Challis reports would have enabled a reasonable adjuster to conclude that they had errors. A reasonable adjuster critically reviews the insurer’s own medical reports and does not simply adopt their conclusions. A reasonable adjuster also looks at a report’s reasons and assesses whether they support its conclusions.

3.     State Farm did not reconsider its decision in light of new information

Third, it was unreasonable for State Farm to continue to deny the claim without assessing new information as it was received. The evidence compels the conclusion that, once State Farm received the Morse and Challis opinions denying the two claims, it chose to remain indifferent to whatever further evidence it received. State Farm seems to have proceeded selectively, taking the favourable elements from the Morse and Challis reports and ignoring what Arbitrator Huberman described as the “voluminous” evidence not supportive of its position.

In particular, State Farm did not reconsider the validity of the claim after receiving the report of Ms. Sandy Sarkissian on November 22, 2013. Although Ms. Sarkissian pointed out errors and omissions in the Morse report, State Farm apparently had no second thoughts. Ms. Sarkissian’s report did not provoke State Farm to any further medical or occupational evaluation of Ms. Federico’s capabilities.

State Farm maintained its position even after Ms. Federico filed this application for arbitration and the insurer heard her arguments at mediation and in the arbitration proceedings. Unlike, for example, the claims adjuster in the Erickson case (Erickson at page 5), the adjuster who testified in this case did not indicate that, based on the evidence at the hearing, the insurer was no longer disputing the treatment plans. I agree with Senior Arbitrator Rotter in Erickson that “[a] reasonable insurer would satisfy itself that its position was still correct, and make every effort to evaluate the merits of the insured’s position before proceeding to a hearing” (at 11). State Farm did not meet that standard of reasonableness in this case. Indeed, State Farm did not change its mind until it was compelled to do so by the decision of Arbitrator Huberman.

I conclude that withholding the two treatment plans was unreasonable, not because State Farm should have allowed the benefits, but because it did not properly adjust the claim. This case is by no means an example of how to properly adjust accident benefits. Rather, I find State Farm’s conduct in adjusting the two disputed benefits stubborn, immoderate, imprudent and inflexible. By this conduct, State Farm put itself in the position of being unable to make a reasoned decision about the two requests for benefits.

CONCLUSION:

The evidence leads me to conclude that State Farm unreasonably withheld payments to Ms. Federico of the two treatment plans in dispute, contrary to s.282(10) of the Insurance Act, and that, as a result, the insurer must pay a special award on both benefits claimed.

May 6, 2020

LEGAL TALK WITH KRIS BONN MAY 4 2020
All talk about auto insurance, thresholds, limitations, court costs, fraud and why #Ontario car crash survivors have such a hard time collecting those benefits they paid for! ‘LEGAL TALK WITH KRIS BONN MAY 4 2020’ with FAIR’s Chair, Rhona DesRoches
 
_________________________________________________________________

It’s Time for the Ontario Government to Mandate Auto Insurance Premium Reductions

We are living in a difficult time; people are getting sick and dying and the economy is in chaos. Recent PBO projections show a forecast of a federal deficit of nearly $250 billion dollars. Millions of Canadians are out of work and many small and medium sized businesses will not survive the current crisis. 
 
______________________________________________________________
 

Ep. 34 – The pandemic’s deadly ripple effect

Modelling from health officials indicate that approximately 35 people in Ontario have died because their surgeries were postponed due to COVID-19. Hosts Steve Paikin and John Michael McGrath discuss the ripple effects that the coronavirus is having on patients in the health-care system. Also, Garima Talwar Kapoor, director of policy and research at the Maytree Foundation, joins the podcast to discuss the province’s decision to deduct the Canada Emergency Response Benefit from social-assistance income.
 
______________________________________________________________

‘We have been booted into the 21st century’: What COVID-19 could mean for Ontario’s strained and outdated courts

______________________________________________________________

The Impacts Of COVID-19 On The Personal Injury Law Firm Landscape

The COVID-19 pandemic has had far reaching impacts on virtually all areas of life. All businesses, including Personal Injury law firms and rehabilitation companies, are working feverishly to adapt to this new normal. 
 
______________________________________________________________

Virtual care is booming amid COVID-19

Like any function of society still able to continue under lockdown, doctor’s appointments have moved online. Canada has had some form of virtual care for a while now, but the use of phone and video to deliver medical care and advice has skyrocketed out of necessity. 
 
______________________________________________________________

Assistive Devices Program has Resumed Processing Applications

Communication from the Assistive Devices Program (ADP) on April 29, 2020 confirms  that in response to the evolving situation regarding the COVID-19 pandemic, the ADP will temporarily accept applications for ADP-funded devices via fax and for ADP grants via email.  Applications must not be mailed to the ADP office.  Applications that were previously received by mail are being processed and must not be resubmitted. 
 
______________________________________________________________

CERB ‘a slap in the face’ for Ontarians scraping by on disability payments

Some Ontarians who rely on provincial disability support say the federal government’s new emergency benefit for people affected by COVID-19 is laying bare a double standard when it comes to the question of what’s considered a livable income. 
 
______________________________________________________________

3 Ways The COVID-19 Pandemic Could Change Disability Policies And Practices

How will our world change after the pandemic? Will go completely back to normal and try to forget all of this ever happened, the way so many Americans did after the 1918 Influenza pandemic? Will we just change a few habits, policies, and plans to confront future outbreaks? Or, will we go a bit further and make bigger reforms we once thought impossible, but now seem both feasible and wise?

___________________________________________________________________
 
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.

________________________________________________

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.

[]

[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.  

April 29, 2020

FAIR Letter to Minister of Health and Minister of Finance re access to MVA victim treatments and Covid19 policy 
_______________________________________________________________ 

How Ottawa pressed the provinces not to claw back pandemic benefits

It took federal Employment Minister Carla Qualtrough an agonizing 19 days to inform the public that she wanted Canada’s Emergency Response Benefit (CERB) to be exempt from clawbacks under provincial and territorial social assistance and disability support programs.
 
_______________________________________________________________

‘That’s not much of a discount’: Why some auto insurers still aren’t cutting rates for all during pandemic

Some drivers are questioning why they aren’t seeing a significant reduction in insurance rates given the lockdown’s eerily empty roads, especially in light of the insurance industry promising rebates and relief in the order of hundreds of millions of dollars.
 
________________________________________________________________

Echelon Insurance introduces financial relief options for auto insurance customers

Echelon Insurance joins other insurers in offering flexible financial options to auto insurance customers in the wake of the COVID-19 pandemic and its severe economic impact.
 
_______________________________________________________________

Ontario regulator extends deadline for insurance agent license renewal

The regulator is extending the deadline for insurance agents, corporate agencies or partnerships to renew their license by 60 days after expiry. FSRA said that the extension will apply retroactively to March 15. It applies for licences due to expire at any time up to June 30, 2020. In addition, life insurance agents will also have a 60-day extension to complete their continuing education requirements.
 
______________________________________________________________

Auto insurers at coronavirus crossroads

Auto insurance firms across Canada have made a significant gear shift in response to the coronavirus crisis. As Canadians abide by ‘stay at home’ orders to prevent further spread of COVID-19, the amount of traffic on the roads and the number of kilometres driven have both decreased massively. As a result, auto insurers are experiencing far fewer claims, and, in the past four to six weeks, their loss ratios have significantly improved.
 
_______________________________________________________________

Coronavirus: Ontario health care worker’s car quarantined by auto dealer

An Ontario health care worker had to wait six days to get her utility vehicle back from a Ford dealer after it was towed there on the way home from her shift at a long-term care institution.
 
_______________________________________________________________

Three Key Tips to Completing The Application for Accident Benefits (OCF-1)

Anyone injured in any way by a motor vehicle in Ontario must complete and submit an Application for Accident Benefits (OCF-1) in order to qualify for important insurance benefits.
 
________________________________________________________________

How courts can step up to save drowning civil justice system

Our civil justice system was drowning before the COVID-19 crisis hit. It was being pushed under by the weight of our overly complicated rules; a scarcity of resources; and, perhaps most importantly, a lack of innovation and willingness to change. It costs far too much and takes far too long to litigate a claim. Most Ontarians have been priced out of accessing civil justice.
 
_______________________________________________________________

What is my Personal Injury Case Worth?

If you have been injured by the negligence of another, you may be wondering about the value of your case. This is particularly so if your injuries are preventing you from working or involve extraordinary medical expenses. Indeed, near the beginning of a relationship with a new client, I am often asked about the value of his or her case. Almost always, my answer is that it will take some time and information-gathering in order to be able to answer this question. 
 
_______________________________________________________________

Ontario disability funding should match COVID-19 emergency benefit: advocates

About 20 years ago, Isabella Gamk’s shelter allowance while on disability support provided her with nearly enough for a bachelor apartment in Toronto.

Fast forward through two decades and the situation has become increasingly inadequate, due to climbing average market rents and only marginal increases to disability payments.

_______________________________________________________________

Report: Social Assistance Changes in Ontario, 2019

In November 2018, the provincial government announced a number of reforms to Ontario’s social assistance programs, Ontario Works and the Ontario Disability Support Program, with the intention of helping recipients break the cycle of poverty.
 
_______________________________________________________________

Ottawa’s pandemic plan should do more for people with disabilities

Like many other Canadians, and especially vulnerable people with severe and prolonged conditions, those who rely on the Canada Pension Plan Disability (CPP-D) benefit face heighted personal uncertainties along with increased living expenses due to the COVID-19 crisis.
 
_______________________________________________________________

Raise ODSP OW Shelter and Basic Needs Allowances Now

We call on Premier Ford to double Ontario Disability Support (ODSP) or Ontario Works (OW) rates to bring them in line with the CERB, because if laid-off workers need $2000 a month to get by — so do people who receive ODSP and OW.
 
_______________________________________________________________

Area Senator joins growing chorus calling for minimum basic income

According to a press release, the Senators support the feds’ emergency COVID-19 financial relief efforts but note the Canada Emergency Response Benefit (CERB) fails to provide necessary support to many Canadians who are “falling through the cracks.”
 
_________________________________________________________________

Man stuck hours daily on floor while province closes Assistive Devices office

A Kitchener man has spent nearly a month stuck in his apartment after his wheelchair fell apart and a replacement has been delayed. Meanwhile, the province has shuttered its Assisted Devices Program office, which helps people access funds to pay for their wheelchairs and other mobility devices.

https://www.cbc.ca/news/canada/kitchener-waterloo/kitchener-man-spends-weeks-immobile-without-wheelchair-while-province-shutters-assistive-devices-office-1.554004

 

April 22, 2020

COVID-19 and Occupational Therapy  

_________________________________________________________________

COVID-19 (Coronavirus) Information for Physiotherapists 

_________________________________________________________________ 

Glass half full? The impacts of CERB on people receiving social assistance in Ontario

The economic impacts of COVID-19 have spared few in our province. Amongst the hardest hit are people living in poverty receiving social assistance. Being able to pay for a full glass of orange juice has gotten just that much harder. 
 
__________________________________________________________________

What life is like now for 3 people with brain injuries — and their loved ones

With the COVID-19 pandemic causing a major upheaval to health care in Ontario, those who need around-the-clock observation are experiencing some of the most significant disruptions. 
 
_______________________________________________________________

About social assistance in Ontario 

Ontario has made additional resources available to enable Ontario Works administrators and Ontario Disability Support Program (ODSP) staff to provide additional assistance for those currently receiving social assistance, who are facing additional costs related to the COVID-19 outbreak. This funding can be used to meet a broad range of needs, for example: cleaning supplies, transportation, food or clothing that individuals and families may require due to COVID-19. 
 
_______________________________________________________________

Apply for emergency assistance

Learn how to get short term financial support if you are in a crisis or an emergency situation and don’t have enough money for things like food and housing. 
 
_______________________________________________________________

Financial help for Canadians affected by COVID-19

Get information on what’s available to: those who have lost incomerenters and homeownersfamiliesseniorsstudentsbusinessesCanadians abroad. There’s also a personal finance section with information on tax and utility bill deferrals. This guide provides the basic benefit information you need to apply for subsidies. 
 
_______________________________________________________________

Your CERB money is taxable. Here’s how it’s going to work

The federal income support program provides $2,000 every four weeks for up to 16 weeks to Canadians who’ve been financially affected by the pandemic. Ottawa isn’t withholding any taxes at source on those benefits, meaning recipients are getting the full $2,000 for now. 
 
_______________________________________________________________

Ontario to allow people on social assistance to keep part of emergency benefits

Ontarians on social assistance who have lost their jobs due to COVID-19 will be allowed to keep a portion of federal income support being offered to most other Canadian workers struggling to make ends meet during the pandemic. 
 
_______________________________________________________________

Ontario tells social assistance caseworkers to reinstate benefits to those who lost them after receiving emergency relief payments

“Our concern still is for those who have no ties to the workforce,” he said. “They are still going to be left behind if they can’t apply for this benefit.” 
 
_______________________________________________________________

How the Canada Emergency Response Benefit is Failing Low-Income Precarious Workers, and How it Can be Fixed

I have fielded countless inquiries about the Canada Emergency Response Benefit (“CERB”). While at first glance CERB appears to be working, if we assess the rush for expediency, the mechanics, and the scope of the program, large errors in how the CERB was formulated become apparent. These errors run the risk of prolonging or increasing the suffering of vulnerable, precariousworkers and may place some in a position of having to repay debts arising from CERB into old age.  
 
________________________________________________________________

Ontario lifts roadblock preventing auto insurance companies from offering rebates

Ontario is making a regulatory change that will more easily allow auto insurance companies to provide breaks to their customers because of the COVID-19 pandemic. 
 
_______________________________________________________________

Ontario permits auto insurance companies to provide rebates amid pandemic

“Given the financial crisis that’s facing many Ontario families, I think with this barrier removed we should expect insurance companies to be responding in a matter of days,” Phillips said. 
 
_______________________________________________________________

Auto Insurance – Consumer Relief during A Declared Emergency under the Emergency Management and Civil Protection Act

The purpose of this guidance1 is to provide FSRA’s (i) Interpretation of whether programs to refund, rebate and otherwise repay insurance premiums to customers (collectively “premium re-payment programs”) are an unfair or deceptive act or practice; (ii) Approach to expedited automobile insurance rate filings; and (iii) Information with respect to an Ontario licensed insurer’s ability to provide other financial relief to its customers, all during a declared emergency under the Emergency Management and Civil Protection Act (an “Emergency”). 
 
_______________________________________________________________

Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials

To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) suspended in-person operations, effective Tuesday, March 17, 2020, and until further notice. 
 
_______________________________________________________________

Supreme Court of Canada Declines to Hear Insurance Company’s Appeal of Accident Benefits Coverage

In 2013, Mr. B was denied access to more than $2 million in medical, rehabilitation and other benefits when Belair Insurance Company refused coverage for the out-of-province ATV accident that caused his life-threatening brain injury. 
 
 
 ________________________________________________________________
 
18 years…multiple hearings and not at the end of the claim road!
  
[31]  Some of the medical reports favouring the appellant’s claim in the statutory accident benefits file were included in the Joint Document Brief but they were redacted by the defence…” 

Girao v. Cunningham, 2020 ONCA 260 DATE: 20200421 DOCKET: C63778 https://www.ontariocourts.ca/decisions/2020/2020ONCA0260.htm

(1)         Issue One: The “Joint Trial Brief”

[21]       On the eve of trial, the defence dropped a massive and selectively redacted 16 volume “Joint Trial Brief” on the appellant, who has substantial difficulty with the English language, something of which the defence was well aware. The content of the Brief can be summarized as falling into several categories: medical records, notes, and reports; employment, educational, and tax records; and documents relating to the collision and insurance claims. The Brief became the basis of the trial record in an unfair way that was inconsistent with the trial practice directions of this court.

(a) The Governing Principles

[22]       It is clear law that: The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial”: 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, at para. 14. This court has given instructions on the preparation and use of document briefs, for example, in Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 127-128, and in Pingue, at paras. 39-40.

[23]       Any document introduced by any party that does not become a numbered exhibit should become a lettered exhibit. The important distinction between numbered exhibits and lettered exhibits is that, subject to the trial judge’s discretion, lettered exhibits do not go in with the jury during its deliberations, but numbered exhibits do: Pingue, at para. 17.

[24]       As a more general observation, it is customary for experts to prepare reports, which counsel provides to the parties and to the judge. The admissible evidence of the expert is normally understood to be the oral evidence, particularly in jury trials. However, the best practice in jury trials is to make expert reports lettered exhibits in order to preserve the integrity of the trial record for the purpose of an appeal: Pingue, at para. 21.

[25]       The problem in this case with the trial record went further. It is quite usual in civil actions for counsel to prepare an agreed trial document brief containing documents that are admitted as authentic and admissible. See J. Kenneth McEwan, Sopinka on the Trial of an Action, 3rd ed. (Toronto: LexisNexis, 2016) at pp. 66-72. In Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, 331 O.A.C. 48, at para. 54, Brown J.A. emphasized the necessity of ensuring that the record reflects the document’s intended use:

When a document brief is tendered at trial, the record should reflect clearly the use the parties may make of it. Such use may range from the binder’s acting merely as a convenient repository of documents, each of which must be proved in the ordinary way, through an agreement about the authenticity of the documents, all the way to an agreement that the documents can be taken as proof of the truth of their contents. Absent an agreement by the parties on the permitted use of a document brief, the trial judge should make an early ruling about its use.

[26]       Counsel typically agree on a list of documents and one party attends to the brief’s preparation. As observed in Iannarella, at para. 128: “It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial.” Pingue stated, at para. 40:

[I]t is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted…. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document’s hearsay content.

[27]       This discipline of judicial oversight applies even more forcefully where one party is self-represented and the opposing lawyer prepares the brief, and in a jury trial where the brief goes into the jury room.

(b) The Principles Applied

[28]       The Joint Document Brief was prepared by the defence without input from the appellant, despite the misleading label: “Joint”. There is no good explanation for its late delivery, which put the appellant at a disadvantage leaving her to run from behind through the course of the trial.

[29]       The volumes in the Joint Document Brief were made numbered exhibits. The trial judge’s approach was to simply accept all the volumes. He said, when he marked vol. 16 as exhibit one:

[M]y assumption is for the most part, the documents are going to be admissible. And, rather than marking them first for identification and changing it, I thought I would do it the other way around.

It does not appear from the record that the trial judge later excluded any documents from the Brief tendered by the defence.

[30]       Dr. Becker’s report supporting the appellant’s account of her injury was initially made a numbered exhibit. It was later struck, but no copy was then filed as a lettered exhibit. This failure obliged the appellant to add it as well as some other reports to the appeal book in order to ensure that they were available to this court on the appeal.

[31]       Some of the medical reports favouring the appellant’s claim in the statutory accident benefits file were included in the Joint Document Brief but they were redacted by the defence in order to excise any opinion evidence favourable to Ms. Girao.

[32]       I would not consider the flaws in the management of the trial record to be fatal to trial fairness in this case, but they unfairly enabled the defence’s strategy of keeping expert evidence favourable to the appellant from the jury and from the trial record.

[33]       In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:

1.    Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?

2.    Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

3.    Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?

4.    Are the parties able to introduce into evidence additional documents not mentioned in the document book?

5.    Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?

6.    Does any party object to a document in the document book, if it has not been prepared jointly?

[34]       It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.

[35]       In my view, none of these issues or questions are novel. The answers to these questions are not implicit in the filing of a joint document book and must be expressly addressed on the record or by written agreement. The problem frequently comes because the parties have not turned their minds to the issues in sufficient detail before the document book is tendered as an exhibit. This must change as a matter of ordinary civil trial practice. Had the trial judge taken himself, counsel and Ms. Girao through this list of questions relating to the document book, some of the problems identified in these reasons could have been avoided.

[145]   Given the pleadings and the material facts at issue, there was minimal, if any, probative value in this mocking and belittling cross-examination on the benefits settlement. It was highly prejudicial to Ms. Girao, having the perverse effect identified in Ismail of using “collateral entitlements premised on disability to support arguments of ability”. The trial judge did nothing.

[146]   In my view the trial was unfair to Ms. Girao for all of these reasons, quite apart from my earlier conclusion that the combined errors in addressing the medical evidence alone are a sufficient basis upon which to allow the appeal.

(4)         Issue Four: The role of the trial judge and counsel where one party is self-represented

[147]   The overarching principle is that the trial judge is responsible for controlling proceedings to ensure trial fairness. Trials involving self-represented litigants can be especially challenging.

(a) The Governing Principles

[148]   Numerous trial fairness concerns arise for self-represented litigants. In Pintea v. Johns2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006) issued by the Canadian Judicial Council. The Statement provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”: at p. 2. The enumerated principles appear under the following headings: promoting rights of access, promoting equal justice, and responsibilities of the participants in the justice system. The Statement sets out directions for the judiciary, court administrators, self-represented persons, and members of the bar. The section on promoting equal justice is particularly relevant. It states:

1.    Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

2.    Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

3.    Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

4.    When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

a.    explain the process;

b.    inquire whether both parties understand the process and the procedure;

c.    make referrals to agencies able to assist the litigant in the preparation of the case;

d.    provide information about the law and evidentiary requirements;

e.    modify the traditional order of taking evidence; and

f.     question witnesses.

[168]   In my view, the self-represented status of a litigant is a factor that might unduly complicate or lengthen the trial, leading the trial judge to conclude that prudence suggests the jury be discharged. As noted by Epstein J.A. in Kempf, “in many cases the ‘wait and see’ approach is the most prudent course to follow”: at para. 43 (9). As the trial unfolds, the trial judge becomes better able to assess the capacity of the self-represented party to present the case, whether as a plaintiff or a defendant. While remaining mindful of the substantive but not absolute right to a trial by jury, the trial judge then is positioned to determine whether justice to the parties would be better served by dismissing or retaining the jury.

[169]   While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality. I should not be understood as stating that the presence of a self-represented litigant should invariably lead to the dismissal of a civil jury. In many if not most cases, a trial judge should be able to fairly manage a civil jury trial with a self-represented litigant, with the willing assistance of counsel acting in the best traditions of officers of the court.

[170]   In my view, the trial judge erred in failing to revisit his decision not to strike the jury.

(6)         The Threshold Decision

[172]   I have outlined above the skewed orientation in the evidence that went to the jury. This orientation also made its way into the trial judge’s threshold decision. In the threshold motion, the trial judge “incorporate[d] by reference the review of the evidence in [the] jury charge”: at para. 6. Although he did not otherwise refer to the opinion of Dr. Sanchez, it underpinned the trial judge’s basic approach. Because some of the best evidence that supported the statutory accident benefits settlement was excluded by the trial rulings, there was little to oppose the defence’s evidence. Dr. Sanchez’s opinion also provided the trial judge with a lens through which he looked askance at the other medical evidence Ms. Girao led. Because of the basic unfairness that permeated the trial, I would set aside the ruling on the threshold motion. 
 
[171]   The appellant asks that this court order the case to be retried by a judge sitting without a jury. This court has from time to time reversed a trial judge for striking a jury notice, directing a new trial before a judge and jury: see e.g. Kempf, at para. 78. While s. 134(1) of the Courts of Justice Act gives this court broad jurisdiction to make remedial orders, I have found no cases in which this court has directed that a new trial proceed without a jury. In my view the prudent response to the appellant’s request is to refuse the order she seeks and to leave it to the trial judge to determine whether the jury should be discharged should a new trial proceed.

VI.        DISPOSITION

[173]   At trial, the appellant functioned as a legally-untrained, self-represented, non-English speaking litigant in testifying, examining and cross-examining through a Spanish interpreter. She was faced with a phalanx of defence counsel, two representing Ms. Cunningham, and two representing Allstate Insurance Company of Canada.  The trial was 20 days long, involved many witnesses, and considered complex medical evidence.

[174]   Ms. Girao was entitled to but did not get the active assistance of the trial judge whose responsibility it was to ensure the fairness of the proceeding. As a self-represented litigant, she was also entitled to, but did not get, basic fairness from trial defence counsel as officers of the court. The trial judge was also entitled to seek and to be provided with the assistance of counsel as officers of the court, in the ways discussed above. This did not happen.

[175]   I would allow the appellant’s appeal, set aside the judgment and orders, and order a new trial. I would award the costs of this appeal and of the trial to the appellant, including her disbursements. If the parties cannot agree on the quantum the appellant may file a written submission no more than five pages in length, in addition to receipts for disbursements, within 10 days of the date of this decision, and the respondent may respond within an additional 10 days.

For more on this story see: https://www.canlii.org/en/#search/text=Yolanda%20Girao&resultIndex=2

________________________________________________________
 
SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO – sets out parameters for ZOOM hearing of upcoming three-day appeal. Gowns not required. Up to 500 members of the public can watch via Zoom. Materials to be filed via e-mail.  
 
Ontario v. Ontario Association of Midwives, 2020 CanLII 25862 (ON SCDC), <http://canlii.ca/t/j6bq9
  

[1]               This endorsement addresses the conduct of the hearing and the filing of documents for the upcoming hearing in this application.

[2]               The hearing will be held before a three-judge panel on April 21, 22 and 23, 2020 (three full days).

[3]               The hearing will be conducted as a video conference.  ZOOM technology will be used.  Further details about the videoconferencing process will follow in a subsequent endorsement.

[4]               Neither counsel nor the court will gown for the hearing.  Instead, business attire is required for anyone with a speaking role in the hearing. All parties must ensure that they participate in the videoconference from appropriate surroundings and that they (and the Court) will not be interrupted or disturbed during the hearing.

 

April 15, 2020

Ford government calls for auto insurance breaks due to coronavirus

Ontario Finance Minister Rod Phillips said Thursday he wants to see insurance companies giving drivers breaks on their premiums that reflect the “devastating impact” of the COVID-19 pandemic. 
 
__________________________________________________________________

Insurance companies cutting rates for some drivers but not everyone qualifies

The bureau represents more than 90 per cent of insurance companies across Canada. It said measures announced on Wednesday could help save drivers $600 million over the next three months.  
 
_______________________________________________________________

UPDATED: What emergency relief will insurers offer customers? Here’s what they told us

Canada’s six biggest banks released a joint announcement on Mar. 17 that identified some solutions for customers feeling the financial pinch, after “social distancing” caused some businesses to shut down in an effort to slow the spread of novel coronavirus. In that statement, the banks confirmed they would “work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges such as pay disruption due to COVID-19; childcare disruption due to school closures; or those facing illness from COVID-19.” 
 
_______________________________________________________________

Supreme Court of Canada declines to hear insurance company appeal on dirt bike pay-out after two Ontario courts ordered insurer to pay

In 2006, Chris Perneroski from Fenelon Falls, Ontario, was involved in a terrible accident while riding his dirt bike during a vacation in Georgia, USA. Chris suffered a catastrophic brain injury in the accident, he was 21 years old at the time. His injuries were so severe that his doctors were not sure he would survive. 
 
_______________________________________________________________

Opinion: Maybe COVID-19 is what it will take to modernize Canada’s antiquated courts

In Ontario, the court suspended regular operations on March 17. Aside from some very narrowly defined “urgent” and other specified matters, the courts are simply not available. Most criminal matters have been adjourned until at least June. Almost everything in the civil courts has been postponed until further notice. All limitation periods have been suspended. The timelines for doing things like issuing a statement of defence or disclosing documents have been paused. If you are a litigant with an ongoing matter in the court system, there is almost nothing you can do right now except sit tight and wait. 
 
_______________________________________________________________

Is The CERB Basically An Interest-Free Loan Anyone Can Apply For?

OTTAWA — Like thousands of Canadians, René Baron is wondering whether to apply for the Canada Emergency Response Benefit — quick, needed cash — even though he knows he doesn’t qualify for it. 
 
_______________________________________________________________

Part-time, contract and seasonal workers now qualify for COVID-19 emergency benefits

Prime Minister Justin Trudeau has announced more flexible rules for claiming the Canada emergency response benefit (CERB) in response to critics who pointed out the initial rules excluded too many people, including those working reduced hours. 
 
______________________________________________________________

Looking for Help

211 is an award winning helpline and website that provides information on and referrals to Ontario’s community, social, health-related and government services. 
 
_______________________________________________________________

Painkillers and sedatives may reach ‘critical shortage’: emergency physicians’ group

TORONTO — As governments attempt to address the dwindling stock of masks, tests and ventilators needed during the COVID-19 pandemic, a national group of physicians is warning of another supply threat. 
 
_______________________________________________________________

Ontario’s Social Assistance Deductions Policy Puts ODSP Recipients At Risk

As it stands, families that receive Ontario Disability Support Program (ODSP) assistance have income from support programs such as Employment Insurance (EI) deducted dollar for dollar from their ODSP income, while earned income is deducted at a rate of 50 cents on the dollar. With our new reality, the math doesn’t add up for families trying to make ends meet. 
 
_______________________________________________________________

Backgrounder : COVID-19 Disability Advisory Group

During this time of public health and economic crisis, in the spirit of “Nothing Without Us” and the Accessible Canada Act, and in recognition of Canada’s domestic and international human rights obligations, the Government of Canada is committed to ensuring that it considers, respects and incorporates the interests and needs of persons with disabilities into its decision-making and pandemic response. 
 
________________________________________________________________

Statement by Minister Qualtrough on Canada’s Disability-Inclusive approach to its COVID-19 pandemic response 

We recognize that some groups of Canadians are significantly and disproportionately impacted by this pandemic, in particular Canadians with disabilities.  For some persons with disabilities, underlying medical conditions put them at greater risk of serious complications related to COVID-19.  Others face discrimination and barriers in accessing information, social services, and health care.  For others, the need for self-isolation and physical distancing create additional challenges. 
 
_______________________________________________________________

Activists fear for safety of people with disabilities after funding for mobility and medical devices deemed non-essential

Thousands of Ontarians with disabilities may end up in hospital — or not be able to return to the community safely — because the Ford government has temporarily shuttered a provincial program that helps pay the cost of specialized mobility and medical devices, disability activists say. 
 
______________________________________________________________

Disabled population left out of emergency funding, advocate says

A Sudbury advocate believes people with disabilities have been forgotten during the COVID-19 pandemic.

Nadine Law, co-founder of the group Access2All, says people with disabilities have largely been forgotten in conversations around the effects of the virus, particularly in emergency government funding.

https://www.cbc.ca/news/canada/sudbury/disabilities-covid19-no-emergency-funding-1.5530405

_______________________________________________________________

Disability community feeling left out

The government needs to step up and recognize that the disability community in Ontario is part of the vulnerable population, according to Nadine Law.

What we know so far about submissions on the Jury issue

FAIR submission to MAG Consult on Civil Juries June 15 2020

OTLA Submission to MAG on Civil Juries

Rastin Letter to MAG re civil juries June 15, 2020

Access to Justice Group Elimination of Civil Juries

Patrick Brown, McLeish Orlando LLP Submission May 29 2020 re changes to jury system and covid

Canadian Defence Lawyers  https://issuu.com/enzadel/docs/submission_re_civil_juries_cdl

Zarek, Taylor, Grossman, Hanrahan   http://ztgh.com/system/frame/posts/pdfs/000/001/397/original/Zarek_Taylor_Grossman_Hanrahan_-Submissions_on_Civil_Jury_Trials_dated_June_15__2020.pdf?1592247977

IT IS TIME TO ABOLISH JURY TRIALS IN CIVIL MATTERS    https://www.mcleishorlando.com/blog/it-is-time-to-abolish-jury-trials-in-civil-matters/

Ontario Attorney General Doug Downey should not be rushing to axe civil juries, FOLA warns  https://www.canadianlawyermag.com/practice-areas/litigation/ontario-attorney-general-doug-downey-should-not-be-rushing-to-axe-civil-juries-fola-warns/330582?utm_source=GA&utm_medium=20200617&utm_campaign=Newsletter-20200617&utm_content=AE1FF389-FA2E-4B96-8FEA-FEEF64C1AAE4&tu=AE1FF389-FA2E-4B96-8FEA-FEEF64C1AAE4

Ontario considers scrapping civil jury trials to deal with courts backlog  https://nationalpost.com/pmn/news-pmn/canada-news-pmn/ontario-considers-scrapping-civil-jury-trials-to-deal-with-courts-backlog

April 8, 2020

Left behind financially in the Emergency Response Benefit?

Here’s where to reach your Ontario MPP https://ola.org/en/members/current/contact-information  
____________________________________________________________________

How COVID-19 is probably affecting your auto claimants

“People will regress rather than being able to maintain whatever progress they have made past an accident,” said Rhona DesRoches, chair of the board of FAIR Association of Victims for Accident Insurance Reform, in an interview. 
 
___________________________________________________________________

Advocates pushing for this temporary accident benefit reform

FAIR Association of Victims for Accident Insurance Reform has heard that some motor vehicle accident victims are reluctant to have a team of healthcare providers at their homes while social distancing precautions are in effect, Rhona DesRoches, FAIR’s chair of the board told Canadian Underwriter. This in turn highlights an existing insurance regulation around how insurance reimburses attendant care by non-professional providers (such as a family member of the victim, for example). 
 
_______________________________________________________________

National class action lawsuit launched against insurers refusing to pay coronavirus-related claims

A law firm in Regina, SK has filed a national class action lawsuit against some of Canada’s largest indemnity insurers for their refusal to pay business owners for losses sustained due to the coronavirus outbreak. 
 
_______________________________________________________________

Desjardins to offer a refund to auto insurance clients driving less

The refund will be offered to clients whose commuting habits have “significantly changed” and who only use their vehicles for essential trips (i.e., going to the pharmacy or grocery), a release said. Desjardins’ refund program is open to anyone who has lost their job, working from home, or is otherwise self-isolating. 
 
_______________________________________________________________

Allstate to return $600 mln in auto premiums as coronavirus cuts driving

Allstate Corp, one of the largest U.S. auto insurers, said on Monday it would return more than $600 million in premiums to customers as many Americans drive less due to stay-at-home orders aimed at curbing the coronavirus outbreak. 
 
_______________________________________________________________

Cost Of Catastrophic Impairment Assessment Paid Outside Of Person’s Medical And Rehab Limits – RB v. RSA

RB was involved in a car accident in April 2017 and sougth benefits pursuant to the SABs. He was denied certain benefits and cost of examinations by RSA and applied to the LAT. 
 
_______________________________________________________________

COVID-19 Financial Supports

The public health measures enacted to protect Canadians during the COVID-19 pandemic is having major impacts on individuals and businesses. Both the Canadian and Ontario government, along with the private sector, have introduced measures to assist those who are facing challenges, outlined below. 
 
______________________________________________________________

NOTICES AND ORDERS – COVID-19

_______________________________________________________________

Information on COVID-19

As COVID-19 evolves, the provincial and federal government continue to update their resources.

We encourage you to regularly review the websites of the Ministry of Health and Public Health Ontario (PHO) for the most accurate, up-to-date information. 

 
_______________________________________________________________

Guidance for the Health Sector

The case definition for COVID-19 has been updated and is current as of March 30 2020. This information may change frequently, please check back often for updates. 

 
_______________________________________________________________

Ottawa’s COVID-19 benefits program opens for applications 

OTTAWA — Applications open today for the new federal emergency aid benefit for Canadians who lost their income because of COVID-19. 
 
_______________________________________________________________

Questions and Answers on the Canada Emergency Response Benefit 

_______________________________________________________________

Canada’s emergency relief leaves out those on social assistance

The federal government is providing financial relief for Canadians laid off amid the COVID-19 pandemic, but some groups are finding themselves excluded. 
 
_______________________________________________________________

Open Letter urges Ontario to boost support for people on social assistance

A coalition of more than 130 health care workers, community agencies and Ontarians living in poverty is urging Queen’s Park to increase benefits immediately to almost one million residents on social assistance struggling to survive during the COVID-19 crisis. 
 
______________________________________________________________

To survive we need rent cancelled and basic income, people on social assistance say

While most Canadians are struggling under COVID-19, with many businesses shut down, local advocates argue that those at, or below, the poverty line will be hardest hit.  
 
______________________________________________________________

CANADA: Financial inequality ‘staggering’ for Canadians with disabilities, expert says

In Ontario, Doug Ford’s Conservative government has been toying with cutting benefits and other supports, including in education. While the government has since backed off cutting Ontario Works, Ontario residents with disabilities continue to live under the persistent threat of losing whatever little economic independence they have. 
 
_______________________________________________________________

Caregiver Advisory Panel 

This province-wide online discussion forum is an ongoing opportunity for caregivers to provide regular input and feedback on some of our caregiver-focused ideas, tools and programs, and be surveyed on different aspects of the caregiving experience on a regular basis. 
 
_______________________________________________________________

Why COVID-19 has personal support workers feeling uneasy during home-care visits

Personal support workers who care for clients inside their homes are among the essential service providers who don’t feel safe on the job due to a lack of personal protective equipment amid the COVID-19 pandemic. 
 
 
 

April 1, 2020

How Car Insurers Can Help Accident Victims During The COVID-19 Crisis

We are in the midst of an unprecedented COVID-19 Crisis, and while everyone is facing challenges, individuals who were already recovering from traumatic injuries face unique challenges. 
 
___________________________________________________________________
Thousands of Canadian dentists who followed industry recommendations to shut down their practices nearly two weeks ago because of the COVID-19 outbreak have still not received insurance payments despite taking out business interruption policies that include pandemic coverage. 
 
______________________________________________________________

Insurers are under the gun as coronavirus claims mount — but will those claims be covered?

When Dr. Michael Duchnay had to close his west end Toronto dental practice due to the pandemic, it was catastrophic, but there was one stroke of good luck: He had insurance. In fact, his business policy explicitly mentioned pandemic-caused closures. 
 
_______________________________________________________________

COVID-19 and your insurance

On March 23, Ontario announced the closure of non-essential business. “We’re prepared to extend the order if necessary,” Ontario Premier Doug Ford said at the time. The closures took effect March 24 at 11:59. Quebec has also shut down business until at least April 13. 
 
________________________________________________________________

Changes to Our Courts: How COVID-19 Is Changing the Landscape 

“How will COVID-19 change the legal industry and what will it look like After Coronavirus? Short answer: the coronavirus will turbocharge legal industry transformation. It will propel law into the digital age and reshape its landscape. The entire legal ecosystem will be affected—consumers, providers, the Academy, and the judicial system.” – Marc Cohen in the article “COVID-19 Will Turbocharge Legal Industry Transformation” 
 
_______________________________________________________________
 
There’s a time limit in my legal case that I can’t meet because of COVID-19. What can I do?
 
There are rules about how much time you have to start a legal case or when steps in your case must be taken. As of March 16, 2020, all time limits to start a case in Ontario law have stopped running. This is because of an emergency government order (link is external)
 
_______________________________________________________________

Courts scramble to modernize to keep the system working in a pandemic

The COVID-19 pandemic is forcing Canada’s court system to operate as it never has before to adapt to the demands of physical distancing. 
 
_______________________________________________________________

About the LAT

On March 20, 2020, the Government of Ontario issued an Emergency Order (O.Reg. 73/20) under the Emergency Management and Civil Protection Act. 

The order suspends limitation periods and procedural time periods relevant to tribunal proceedings. The suspension is retroactive to March 16, 2020. 

_______________________________________________________________

Ontario Protecting Critical Front-Line Justice Services in Response to COVID-19

“The health and well-being of Ontarians is our government’s number one priority. This commitment extends across the vast network of justice partners and individuals who interact with the justice system on a daily basis. 
 
_______________________________________________________________
 
RE: FSRA’S GUIDANCE AND PROMPT RESPONSE SOUGHT RE PANDEMIC RELATED ISSUES
 
Along with all healthcare providers we’ve been asked to do our part and help mitigate the impact of this pandemic on our most vulnerable populations and onour acute care sector. We are ready and anxious to do so. Help us do our part. 
 
_______________________________________________________________
The biggest economic policy challenge we face during COVID-19 is addressing the massive and widespread loss of work prompted by government-mandated physical distancing. That’s not to minimize other such challenges, but the loss of work is vast and unprecedented. 
 
_______________________________________________________________

Ellen Roseman: Financial resources you can turn to in the COVID-19 crisis

Are you anxious and confused about the far-reaching effects of the new coronavirus on your finances? You’re not alone.

In a recent survey by financial technology company Borrowell, 74% of Canadians report feeling stress brought on by the health crisis. More than 40% say their biggest financial worry is how to pay for necessities, such as food and rent. And 32% have no plan in place if funds run too low to pay bills.

______________________________________________________________

Canadians who didn’t have a job even before coronavirus: what help can they get?

The coronavirus pandemic has attracted a historic response from the federal government, with Ottawa pledging around $200 billion to rescue the economy. But across the country, Canadians who already didn’t have a job when the pandemic struck are wondering what support, if any, they’ll be able to access. 
 
_______________________________________________________________

New Ontario Works payment pickup procedures in Toronto during coronavirus outbreak

Ontario Works and Ontario Disability Support Program cheques and payment cards will be distributed beginning Monday under new social distancing protocols. 
 
_______________________________________________________________

Nonvisible disabilities: How to accommodate workers’ limitations

One in five Canadians between the ages of 25 and 64 has at least one disability, according to the 2017 Canadian Survey on Disability. That’s about 4 million adults who experience limitations, many of which are not immediately apparent to others.