Author Archives: Admin2

18-000456 v Aviva Insurance Canada, 2018 CanLII 130867 (ON LAT),

by Admin2

18-000456 v Aviva Insurance Canada, 2018 CanLII 130867 (ON LAT), <http://canlii.ca/t/hxfcr

  [23]        Dr. Oshidari conducted the other IE and drafted a multidisciplinary report dated March 6, 2018. He found the applicant had reached maximal medical recovery from a physical standpoint in relation to the 2016 Accident related injuries. Dr. Oshidari found that the applicant’s recent weight gain was the cause of the back issues and nerve issues. He recommended an exercise program to address the applicant’s weight. In addition, Dr. Oshidari found that the applicant no longer had any impairment related to the 2016 Accident.   

[24]        I give little weight to Dr. Oshidari’s report as it relates to the applicant’s entitlement to a chronic pain Treatment Plan. Dr. Oshidari’s report was mostly a copy and paste of an earlier report on June 20, 2017. It was light on details and not well developed. For example, he notes that applicant has gained weight and puts in brackets “(not related to Accident)”. Dr. Oshidari does not explain why he believes the weight gain is not related to the applicant’s symptoms nor what information he relied on to reach that conclusion. Dr. Oshidari also suggested the applicant simply needs a gym membership to address his weight which would presumably address his ongoing pain symptoms. However, the applicant had already stated to Dr. Brown that he was unable to go to the gym as a result of his chronic pain caused by the 2016 Accident.

   [25]        I prefer the report of Dr. Brown which is more detailed, thorough and provides explanation for the findings made over the report of Dr. Oshidari.

February 11, 2019

by Admin2

FAIR on The Agenda’s This Week in Review

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Drivers are killing more pedestrians in Canada every year. Here’s why: Michael’s essay

Last year, they killed more pedestrians and cyclists than died in the dreadful SARS epidemic of 2003. Many of those killed are seniors. The city responded to what is truly a life and death crisis by erecting small yellow signs which read: Seniors Safety Zone: Drive Slowly. One more piece of city signage for drivers to ignore as they race to the next red light. 
 
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Ontario – where you really don’t want to have a fender bender

Imagine a land where drivers pay 55 per cent more for auto insurance than other drivers in Canada, a land where an insurance company may not cover you because of the city you live in, a land where your automobile insurance premiums aren’t based on your driving record but your postal code. 
 
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Attending an Independent Medical Exam (IME)

At one point or another throughout your recovery, you will be asked to attend an Independent Medical Exam which is better known as an (IME) or as some of us call it… “an insurance medical exam.”  You will find yourself asking the same question I did when I was first asked to attend one.  I found myself wondering what this exam was and why I was being asked to attend.  In my case, I was the plaintiff and the request came from the defence lawyer.  It was the defence’s turn to have me examined by their doctor so they could determine the extent of my disabilities. 
 
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ICBC heading for another billion-dollar loss; CEO cites injury claims, legal battles

B.C.’s motor-vehicle insurance provider continues to bleed money, with new numbers showing Insurance Corp. of B.C. posted a net loss of $860 million in the first nine months of its fiscal year, putting it on track to lose $1.18 billion for the full year. 
 
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Ontario proposal to cap psychotherapy panned by mental health docs

Doctors are gearing up to battle the provincial government’s proposal to cap psychotherapy treatment and cleave their pay in a move the Ontario Medical Association says would see the neediest mental health patients suffer most. 
 
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Levels of Injury

Vertebrae are grouped into sections. The higher the injury on the spinal cord, the more dysfunction can occur. 
 
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Planning to retire on a low income:What you need to know

February 8, 2019

by Admin2
LSO and Gregory Stephen Neinstein
 
https://lawsocietytribunal.ca/Current%20Proceedings/Neinstein19H-015NOA.pdf
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IBC president: “We have a long way to go in Canada” when it comes to insurance

The president of the Insurance Bureau of Canada (IBC) shared his thoughts about the state of Canada’s insurance industry during the bureau’s recent luncheon event. 
 
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Checking in on Auto Insurance Prices in Ontario

Car insurance is one of those things that Ontarians have long since complained about. Residents don’t have an option, car insurance is needed in order to drive, but the insurance premiums can feel quite high and as though they are constantly increasing. 
 
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Ontario launches Civil Case Management Pilot – One Judge Model

Litigation cases are taking too long to move through the system.   Ontario had to find a way to relieve some of the backlog that has been piling up and straining judicial resources.   In 2018, I had the pleasure of participating in a case management pilot planning group chaired by Chief Justice Strathy, that also included members of the judiciary, the Ministry of the Attorney General, the Ontario Bar Association, the Advocates Society, the Law Society, and others, with the goal of examining support to explore utilizing a one judge model here in Ontario. 
 
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The Coming End of Lawyer Control Over Legal Regulation 

At the end of last year, as John-Paul Boyd ably chronicled on this website, members of the Law Society of BC voted on three resolutions regarding access to justice. The second of these resolutions — directing the law society to bar paralegals from providing family law services under new provincial legislation and to postpone any other enlargement of paralegals’ scope of practice — received overwhelming approval. 
 
 
 

February 7, 2019

by Admin2

Fixing Auto Insurance 

Will the Ontario government’s decision to launch a public review of the province’s auto insurance system lead to positive changes for drivers across the province? 
https://www.tvo.org/video/programs/the-agenda-with-steve-paikin/a-new-direction-on-car-insurance
 
How to find the TVO station https://www.tvo.org/faqs
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FSRA speech – Tammy Kirkwood Feb 7 2019
Since 2010 our coverage has been slashed and reduced by the insurers lobbying for changes that increases their profits on the backs of MVA survivors and their families and ultimately us, the tax payer. With every cut to coverage we move closer to public auto insurance. With every ‘threshold’ insurers create, there is a new barrier to access recovery tools. 

http://www.fairassociation.ca/2019/02/fsra-speech-tammy-kirkwood-feb-7-2019/ 

FAIR Submission to Proposed FY 2019-20 FSRA Priorities and Budget Consultation Document

http://www.fairassociation.ca/wp-content/uploads/2019/02/FAIR-Submission-to-FSRA-Priorities-and-Budget-Consultation-Feb-6-2019.pdf
 
Proposed FY 2019-20 FSRA Priorities and Budget Consultation Document January 21, 2019  
https://www.fsrao.ca/assets/consultations/FSRA_Proposed_2019-20_Priorities_and_Budget_final_20190121.pdf
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Has Intact noticed the impact of pot legalization on auto claims?

Recreational cannabis has been legal for nearly four months, but it’s too early for Canada’s largest property and casualty insurer to tell whether it’s having an impact on auto claims frequency. 
 
 
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Dr. Stephen Wiseman: Attorney-General David Eby promoting two-tier medicine, something NDP normally opposes

An RCA provides rapid second opinions to doctors who are unable to make a clear diagnosis or whose injured patients are facing delays or complications. An RCA must have competence in musculoskeletal injuries, acute and chronic pain and/or mental health and other psychosocial issues. The idea is that a patient is referred to a chosen RCA within 90 days of the accident and must be seen within 15 days. 
 

February 6, 2019

by Admin2

2019-001: Assessments and Fees – FSRA consultation continues

Comments Due: 2019-02-25 
 
Tomorrow, FAIR Vice Chair will be participating in the round table to advocate for consumers affected by a dysfunctional mandate product via the insurance industry.
 
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Ignore LAT Rules and Case Conference Orders on Production Timelines at Your Peril: 18-005028 v. Allstate

On December 10, 2018, Andrew McKague, on behalf of Allstate responded to a motion before the License and Appeal Tribunal (LAT).  The Claimant moved to have new documents admitted as evidence at the LAT hearing, which was to start that day; the documents themselves were first provided on December 3, 2018 along with the Notice of Motion. Allstate opposed the relief sought. 
 
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Aviva rolls out automated claim notification at collision reporting centres

Motorists insured by Aviva Canada will no longer have to make their own first notice of loss (FNOL) to the carrier if they report the accident to a collision reporting centre. 
 
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How to Stop Comparing Yourself to Others

Who do you most frequently compare yourself to?If you’re not sure, try this question: Who have you compared yourself to in the last 24 hours?
 

February 5, 2019

by Admin2

The Agenda – Fixing Auto Insurance; A Wild Time in Public Office Thursday February 7 at 8 and 11 pm

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Insurance battle after car bursts into flames

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Bike Safety Is Everyone’s Responsibility

Canadians love their bikes. I love my bike!  No matter the season, you’ll find cyclists out on the roads, rain or shine – and even snow (although winter is a bit hardcore for me personally). And why not? Cycling is not only great exercise, it’s a healthy and budget-friendly way to traverse our city streets and avoid the congestion on our roadways – and in our subways too. 
 
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5 Ways to Work With Your Mind to Stop Negative Thoughts

I’ve seen estimates that somewhere around  60 to 80 percent of our thoughts are negative. And if that weren’t bad enough, most of our thoughts are repetitive. I’ve read as high as 98 percent. That’s a lot of negativity. 
 
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2019-001: Assessments and Fees – FSRA consultation continues

Comments Due: 2019-02-25 
 
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Bon Rathwell Howland v. The Estate of Pamela Howland, 2019 ONSC 749 (CanLII), <http://canlii.ca/t/hx806  
 

[92]           Having found that there is a real and substantial risk that Bon will be found incapable of managing his award after he turns 18, I must award compensation based on the likelihood that the risk will materialize and also based on whether he is likely to be incapable for the entire duration of his life.

[93]           It is a certainty that Bon, who is now 14 years old, will require a guardian for property for the next four years, until he turns 18. Based on the evidence, I find that there is a 75 per cent chance that he will also require a guardian for six years from age 18 age to 24 and a 50 per cent chance thereafter.

[94]           I will adopt the five per cent management fee the Court of Appeal recently found in Cadieux to be reasonable and apply it to the amount of Bon’s jury award plus  prejudgment interest and the amount of his SABs settlement. As noted above, the result is $54,000.00. In a somewhat rough and ready effort to adjust this fee to reflect my assessment of the likelihood that Bon will require a guardian in the future, I will assume that Bon’s life expectancy is approximately 80 years[6] and that, as he is now 14, 66 years remain. I will award five per cent of the $54,000.00 for the first four of the 66 years, 75 per cent of five per cent for next six years and 50 per cent of five per cent for the remaining 56 years.

[95]           The result is approximately $30,000.00 which is the amount of the management fee I award to Bon.

J. C. v B. G. M., 2019 CanLII 1192 (ON HPARB),

by Admin2

J. C. v B. G. M., 2019 CanLII 1192 (ON HPARB), <http://canlii.ca/t/hwz85

28.              In its analysis regarding this aspect of the Applicant’s complaint the Committee came to the following conclusions:

•                    the relationship between the Respondent and the Applicant was that of examiner- examinee and not that of the physician-patient;

•                    it expressed no concerns regarding the Respondent’s billing, found it reasonable and consistent with the Ontario Medical Association’s Guide to Uninsured. Services and, thus, did not amount to a “bribe” or fee splitting;

•                    under PIPEDA, the Respondent was not required to provide information regarding his fees since this is commercial information between the Respondent and CIRA and not personal information. Similarly, the Respondent was not required to provide emails, unless the emails were the only place where personal information was recorded;

•                    it explained that physicians bill the party that retains them to prepare the third-party report which in this case was CIRA, and the amount the insurer pays to CIRA is not relevant to the issue at hand. The Committee noted that the SABS impose limits on the amount an insurer may pay for medical assessments, but this provision is directed at insurers and not physicians;

•                    it concluded that the various amounts billed by the Respondent as evidenced by his invoices were all below the limit of $2000 for fees and expenses for any one assessment as set out in the SABS; it noted that the Committee has jurisdiction over physicians conduct and is not required to determine whether an insurer has met their obligations under the SABS or any other legislation; and

•                    it found that there was nothing in the Record to suggest that the Respondent was splitting fees with CIRA in exchange for CIRA’s referral of the matter to him.

29.              It is common ground that the SABS regulates the rights and responsibilities of the parties regarding automobile insurance policies issued in Ontario.

30.              The Committee, in a clear line of analysis concluded that the SABS regime imposes a limit of $2000 for payments an insurer may make for each medical assessment and that this provision applies to insurers and not to physicians. It explained that the amounts billed by the Respondent were consistent with the OMA’s Guide to Uninsured Services, were reasonable and did not amount to a bribe.

31.              Counsel for the Respondent referenced a previous decision of this Board, J.T. v B.M. CanLII 62879 where the Board concluded at paragraph 58 that:

… the focus of section 25 (5) is on the maximum amount that an insurer shall pay (emphasis added). This issue is separate and distinct from the question of whether or not a physician has charged a reasonable fee for the services provided. While the Committee has the ability to consider, as a matter of professional conduct, whether a physician’s fees are reasonable, the question of whether an insurer has complied with section 25 of the SABS is not within the Committee’s authority.

February 4, 2019

by Admin2

Lynn Martin Show Interviewed Partner Jennifer Bezaire on Concerns About “Liability Chill”

On Tuesday morning at 9 a.m., partner Jennifer E. Bezaire was a guest on the Lynn Martin show on a.m. 800. Bezaire was on to discuss why municipalities are concerned about joint and several liability and to explain this legal concept and the obligations it imposes on municipalities and property owners. 
 
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Terence Corcoran: CBC admits it wrongly reported hyped-up insurance ‘climate risks’

The Insurance Bureau of Canada’s decades-long campaign to raise alarms about the ravages of floods continued last week with an appearance by Blair Feltmate, a favourite star climate-change witness for the biggest insurers, at the Lake Simcoe Region Conservation Authority’s annual meeting. Feltmate heads the industry-funded Intact Centre on Climate Adaptation at Waterloo University, which claims climate change has triggered a surge in flood events in recent years. 
 
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Is the SABs unconstitutional – Sovereign General Insurance Company and Abdirahman Abyan and Insurance Bureau of Canada Ontario Trial Lawyers Association and Attorney General of Ontario

Sovereign General Insurance Company appeals the order of Arbitrator Drory dated September 14, 2017. The Arbitrator found that two provisions of the SABS–2010 were unconstitutional, namely the definition of “minor injury” insofar as it includes chronic pain arising from minor injuries, and the requirement for a pre-accident condition to be documented in order to escape the effects of the “minor injury” definition. 
 
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Should a LAT member be allowed to reconsider their own decision?

New amendments to rules surrounding the Licence Appeal Tribunal (LAT) in Ontario “have sent a dagger into the heart” of one insurance defence lawyer. 
 
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Insurance company reinstates long-term disability coverage after Global News report, legal action

A major Canadian insurance company is restoring long-term disability coverage to an Ontario woman following a Global News report on legal action taken against the insurer. 
 
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Canadian Basic Income Recipients Are Suing Their Government

Members of an internationally lauded basic income pilot project in Canada are taking their province to court over its surprise cancellation, arguing that the Ontario government’s decision is unethical and that it was made in bad faith. 
 

Fixing Auto Insurance -The Agenda with Steve Paikin

by Admin2

Will the Ontario government’s decision to launch a public review of the province’s auto insurance system lead to positive changes for drivers across the province?

Ontario pays among the highest auto insurance premiums in the country, despite having among the lowest accident rates in North America. What reforms are needed?

https://t.co/FFmev45fVc

https://twitter.com/i/status/1093613873435951105

FSRA speech – Tammy Kirkwood Feb 7 2019

by Admin2

FSRA speech – Tammy Kirkwood Feb 7 2019

Since 2010 our coverage has been slashed and reduced by the insurers lobbying for changes that increases their profits on the backs of MVA survivors and their families and ultimately us, the tax payer. With every cut to coverage we move closer to public auto insurance. With every ‘threshold’ insurers create, there is a new barrier to access recovery tools. 

Our premiums keep rising and now the standard or basic coverage is not enough to provide necessary resources or funding for seriously injured people. 

This has led to an enormous number of auto insurance related cases in our courts and a lack of faith in the industry overall……read more