Author Archives: Admin2

May 23, 2018

by Admin2

Your letters: How to fix Ontario’s auto-insurance woes 

Is Thomas Walkom really suggesting a public auto insurance system for Ontario? Let’s look at B.C. and Manitoba for an idea of what that would mean for drivers here. 
 
 
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Man’s car insurance shoots up $600 per year after he moves to new neighbourhood

A few days after moving, Steven Baker thought he was being diligent by phoning his insurance company to inform it that his home address had changed. 
 
 
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Customers say these are the best car insurance companies in Ontario

Customers are growing more and more frustrated with Canadian auto insurance companies as the quality of customer service improves nearly everywhere else, according to a report released this month by J.D. Power. 
 
 
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Car Accident Series: How Contributory Negligence Impacts Your Case

In the aftermath of a car accident, everyone is primarily concerned with the health and wellbeing of those involved. However, it’s only a matter of time before the blame game starts and you begin to hear why at least one person involved in a collision bears responsibility for the damage or injuries sustained. Usually the blame game begins right at the scene of an accident, between the people involved, the investigating officers, and the witnesses to the crash. 
 
 
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Nearly two years since Toronto announced Vision Zero, the city is on pace for its deadliest year for pedestrians and cyclists

Within 24 hours of announcing the Vision Zero Challenge on Tuesday, a call for ideas on how Toronto can reach its target of eliminating traffic deaths, one cyclist was dead in the city and two were injured. 
 
 
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Privacy Commissioner expresses concern that proposed Bank Act changes could open door to more data abuses

Privacy Commissioner Daniel Therrien is expressing concern with new banking powers over customer data that are contained in the government’s latest budget bill, telling the Senate banking committee Tuesday that his office was never consulted on the Bank Act changes. 
 
 
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Ontario doesn’t have enough doctors

I’m often asked if attracting new doctors to Ontario is the key to putting an end to wait times and hallway medicine. I reply, “It’s complicated” — and it is — which proves once again that our health care system is not only inefficient, it’s downright inexplicable. 
 

May 22, 2018

by Admin2

Independent Examinations are Often Found to be Anything But Impartial

The Globe and Mail published an investigative report highlighting the trend of car insurance companies of engaging “hired gun” doctors to produce biased “Independent Assessments” of injured drivers’ medical conditions. The practice is real and ongoing. Arbitrators at the LAT and FSCO have called out some medical doctors and insurance companies for the practice which is ongoing. This casts further questions on the continued reduction of benefits to injured drivers by te insurance companies and proposed changes to the benefits scheme after the next election. 
 
 
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Auto fraud: a cost of doing business?

Canada’s property and casualty insurance industry should do much more to fight auto insurance fraud, a senior claims representative of Canada’s second largest insurer says. 
 
 
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Ontario parties are ducking the issue of public auto insurance

The Liberals and New Democrats vaguely promise to lower Ontario’s sky-high auto insurance rates. Yet for reasons of history and embarrassment, neither is promoting the obvious solution: public auto insurance. 
 
 
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Ontario Liberals promise to end postal code auto insurance discrimination if re-elected

Liberals in Ontario are promising that they will end the insurance industry practice of setting higher premiums for drivers based on their postal code – a promise that the NDP claims was originally theirs. 
 
 
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How Google-happy jurors are derailing Ontario trials

Three recent trials in Ontario have been rocked by juror misconduct connected to the internet, reviving concerns about the challenges of ensuring a fair trial in the digital age.

 
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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII)

After eight weeks of trial, wherein liability was hotly contested, the jury began five days of deliberation on a Friday. Over the weekend, juror #1 engaged in internet legal research at his home. He found the Fault Determination Rules regulation under the Insurance Act. On Monday morning, juror #1 discussed the Regulation with the other jurors. The jury after over two hours of discussion sent questions to the judge. 
 
 
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Brain Injury Grief Is Extraordinary Grief

The last time I tried to research grief from brain injury, I found nothing helpful. After giving up years ago, I tried again in April. I was surprised and heartened to find that brain injury grief was being recognized at long last. Skimming articles from the US and UK validated my belief that brain injury grief is a different and difficult beast from other kinds of grief. 
 
 
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B.C. decision links mild TBI to plaintiff’s early onset dementia

In a rare move, the Supreme Court of British Columbia awarded a man almost $1.3 million in damages arising out of a motor vehicle accident where he suffered a mild traumatic brain injury which resulted in early onset dementia, Vancouver personal injury lawyer Sean Lerner tells AdvocateDaily.com. 
 
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Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII), <http://canlii.ca/t/hrrxc

[10]      Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found (depictions which, on their face, appear to be at odds with the plaintiff’s allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant.  Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life;  and photographs taken before are relevant for comparison (see:  Morabito v. DiLorenzo,  2011 ONSC 7379(CanLII), at para. 5).

[11]      “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile….it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.  A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).

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Sivananthan and Coachman

2018-05-08, Decision: Appeal, Final Decision, FSCO 5536 

https://www5.fsco.gov.on.ca/AD /5536

 

For the reasons that follow, I conclude that the Arbitrator correctly ordered payment of medical benefits and IRBs, where the order was based upon Coachman’s complete failure to respond to Ms. Sivananthan’s claims. The order cannot be supported, where payment is based upon what the Arbitrator considered to be an improper response. The Arbitrator also erred in failing to precisely determine the amount of IRBs payable, after deducting post-accident income. Therefore, the issue of the amount of IRBs payable must be re-heard. As a result the question of whether the Arbitrator erred in amending his order to allow deduction of post-accident income is moot. The Arbitrator also erred in ordering Coachman to pay Non-Earner Benefits (NEBs) without knowing that the conditions for entitlement to payment will be met at the time when payments will become due. 

The Arbitrator correctly concluded that Coachman unreasonably delayed or denied payment of the benefits that survive this appeal, therefore his order for payment of a special award stands. However, the Arbitrator erred in failing to fix the amount of the award with precision. Therefore, the question of the amount of the special award is remitted for re-hearing.

[]

The Arbitrator found that Coachman committed several breaches of its obligations under the Schedule, justifying a special award. He ordered Coachman to pay the highest possible special award, in an undetermined amount. He ruled that Coachman is precluded from taking the position that Ms. Sivananthan’s injuries fall within the MIG. He fixed the quantum of IRBs at $255.71 per week and he ordered Coachman to pay IRBs, from one week after the 1st accident and ongoing. The Arbitrator also ordered payment of ongoing NEBs, with the caveat that Ms. Sivananthan cannot collect the NEBs as long as she continued to receive the IRBs. The Arbitrator also ordered Coachman to pay for all of the claimed treatment, for the In-Home Assessment and for the Disability Certificate. He reasoned that Coachman is liable to pay Ms. Sivananthan her “full expenses” of the arbitration. He ordered payment of expenses, in an amount to be determined.

[]

The Arbitrator found the following conduct by Coachman to be unreasonable, with regard to the benefits that survive the appeal:

·         Failing to use the available information to calculate weekly IRBs

·         Failing to respond to the claim for IRBs

·         Failing to respond to claims for treatment

I am satisfied that the Arbitrator correctly concluded that Coachman must pay a special award because of its complete failure to respond to the treatment plans that survive this appeal, and its complete failure to respond to Ms. Sivananthan’s claim for IRB. The issue of the amount of the special award is remitted for re-hearing.

A special award can only be attached to benefits owed at the time it is made. Therefore the Arbitrator’s order is rescinded as it relates to the treatment plan in the amount of $1,245.64, the treatment plan in the amount of $3,089.00, dated November 1, 2014 and the In-Home Assessment. I note that the Arbitrator made no finding that Ms. Sivananthan was in fact too ill to attend the assessment that she did not attend regarding the treatment plan of November 1, 2014. The question of entitlement to a special award regarding these benefits is remitted for re-hearing. Since nothing is payable for NEBs, no special award can flow from the Arbitrator’s findings in this regard.  

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Nasir v. Kochmanski, 2018 ONSC 3052 (CanLII), <http://canlii.ca/t/hs232

[17]       While counsel for the plaintiff urged that one of the grounds for an adjournment was alleged improper issuance or signing of summonses to witnesses, there is no evidence in support of that allegation, nor was any authority offered by counsel on this ground.

[18]       Counsel for the plaintiff was most reluctant to acknowledge that the only basis upon which the adjournment was sought was alleged serious misconduct on the part of the defendant’s defence medical expert, Dr. Adrian Upton.

[19]        In the course of his submissions, counsel for the plaintiffs stated that if the trial were to proceed, he plans on calling as witnesses, counsel for the defendant, who were present in court on this motion, to demonstrate that Dr. Upton has committed a “fraud” in terms of the medical legal reports he has provided for the purpose of deceiving the court. No evidence was adduced on behalf of the plaintiffs with respect to the alleged fraud or misconduct on the part of Dr. Upton, other than a submission, based entirely on speculation at this point, that the last report from Dr. Upton was forged and not signed by him. This ground for the adjournment request is based entirely on counsel’s own assessment of Dr. Upton’s handwriting, without any evidence whatsoever being offered in support of this submission.

[20]       Further, counsel for the plaintiffs took the position that as there is negative judicial commentary about Dr. Upton in prior tribunal decisions and civil cases an adjournment should be granted in order to allow him an opportunity to further investigate the evidence that is available with respect to those earlier proceedings where Dr. Upton provided expert medical evidence.

[21]       The plaintiffs’ counsel intends on relying on and introducing evidence at trial on decisions from an administrative tribunal and prior judicial commentary in regard to Dr. Upton’s qualifications as a medical expert witness and as to his credibility.

[22]       Section 36 (3) of the Regulated Health Professions Act has been held to constitute an absolute prohibition against the use of information and evidence adduced before a tribunal such as the Health Professions and Appeal Board in a subsequent civil proceeding.

[23]       In M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) at para. 29 Laskin JA stated as follows in regard to s. 36 (3): 

[29] I find no relevant indicators of legislative meaning to

displace the presumption in favour of the ordinary meaning of s.36(3).  The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.  This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3).  The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.

[24]       Following Sutherland, the court in Montgomery v. Seiden, [2012] O.J. No. 136 (SCJ) at para 52 expressly stated that the absolute prohibition contained in s. 36 (3) applied to information from a complaint to the Health Professions and Appeal Board. See also: Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324 (CanLII), [2011] O.J. No. 136 (SCJ).

[25]       Thus, contrary to the submissions of counsel for the plaintiff, I have concluded that any prior tribunal decisions or court rulings with respect to Dr. Upton are inadmissible at this trial and as such the plaintiffs’ request for an adjournment based on the need for further investigation of past tribunal rulings does not form a reasonable basis upon which the adjournment of this trial should be granted.

[26]       As to prior judicial rulings and decisions regarding Dr. Upton’s qualifications and credibility, the Court of Appeal Court of Ontario has recently dealt with this issue in its decision Bruff-Murphy v. Gunawawardena, 2017 ONCA 502 (CanLII). In upholding the trial judge’s decision prohibiting cross-examination of the defendant’s expert witness regarding prior civil and arbitral findings made against him, Hourigan J.A. stated as follows at para’s 31 – 32:

[31]      I do not accept this argument. In my view, the prior comments made about Dr. Bail do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. This is analogous to the situation in Ghorvei, where a witness’s credibility had been attacked in previous proceedings. Charron J.A. (as she then was) held at para. 31 that those credibility findings from the previous proceedings were not proper material for cross-examination:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.

See also R. v. Boyne, 2012 SKCA 124 (CanLII), 405 Sask.R. 163, at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54. 

[32]      In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings. Thus, in my view, the trial judge did not err in prohibiting this line of cross-examination. 

[27]       I have thus concluded that any prior judicial rulings or decisions relating to Dr. Upton’s qualifications as an expert witness or in respect of his credibility are wholly inadmissible in this pending trial. 

[28]       It is asserted by plaintiffs’ counsel that an adjournment of this trial is required in order to further investigate Dr. Upton’s credibility as a medical expert and as well the “Scheme”, as alleged, wherein counsel essentially submits that counsel for the defendant has been acting in concert with Dr. Upton to deceive the court in past proceedings.

[29]       This ground for the adjournment request is based entirely on speculation alleging a conspiracy by Dr. Upton and the defendant’s lawyers to deceive the jury and the court in this case. There is absolutely no evidence whatsoever to support these most serious allegations which included, in counsel’s submissions, an allegation of fraud as against Dr. Upton and defence counsel.

[30]       In his submissions, counsel for the plaintiffs further urged that given the court’s parens patriae duty, regard must be had for protection of the interests of the minor plaintiff in the circumstances of this case.

[31]       The focus of that submission was entirely based on counsel’s desire to conduct further investigation regarding the very serious allegations made with respect to Dr. Upton and counsel for the defendant.

[32]       Counsel acknowledged that there are five neurological experts who have treated and examined the minor plaintiff and have concluded that he has sustained a traumatic brain injury as a result of the motor vehicle accident giving rise to this action. Thus, in spite of his submissions with respect to the qualifications of the only defence medical expert, Dr. Upton, he states that there is substantial evidence as to the nature and the extent of the plaintiff’s injuries.  All of that evidence will be available for the judge and the jury to consider.

May 17, 2018

by Admin2

Can I Sue my Insurance Broker for Failing to Make Sure I had Adequate Coverage? 

Anyone selling insurance, whether it is an insurance company, insurance broker, or insurance agent, is obligated to ensure consumers purchasing policies understand the available options and choices for insurance coverage. Accordingly, failure to ensure that a consumer, who is interested in purchasing enhanced coverage is meaningfully informed, can lead to legal liability. This post focuses on automobile insurance in Ontario, but the principles are applicable to other types of insurance. 

http://www.mhalaw.ca/news- resources/legal-blog/can-i- sue-my-insurance-broker-for- failing-to-make-sure-i-had- adequate-coverage

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Ontario drivers paying too much for insurance: report

A recent report that examines the profitability of the auto insurance industry in Ontario shows that companies continue to exceed financial expectations, while the province has failed to fulfil its promise of reducing premiums by 15 per cent, says Toronto personal injury and employment lawyer Kevin Marshall. 

http://www.advocatedaily.com/ kevin-marshall-ontario- drivers-paying-too-much-for- insurance-report.html

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What Is Being Done About Driver Inattention in Ontario?

The results are in: Ontario’s roads, trails, and waterways were more deadly last year than in 2016.

Every year, the OPP reports the number of fatalities on the roads and areas they patrol, and the numbers for 2017 are bleak.

http://www.vandykelaw.ca/2018/ 05/what-is-being-done-about- driver-inattention-in-ontario/

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Non-Attendance of IEs Precludes Insured from Applying to LAT – DW and Heartland Farm Mutual, 2018 CanLII 13145 ON LAT 17-001508

DW was injuredin a car accident on February 16, 2016.  DW applied for medical benefits under the SABs but Heartland denied payment for three treatment plans related to occupational therapy services, a memory foam mattress and a reclining chair.  The denials were based upon DW’s refusal to attend scheduled IEs.  DW asserts that he refused to attend because Heartland failed to provide “the medical and any other reasons” for the examinations as required under the Schedule. 

https://www.deutschmannlaw. com/blog/post/non-attendance- of-ies-precludes-insured-from- applying-to-lat-dw-and- heartland-farm-mutual-2018- canlii-13145-on-lat-17-001508

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Jury Deliberations & Mistrial (An example why Jury Trials for Ontario car accident cases should be abolished)

It’s never ok for Google to be your lawyer. Nor is it ok for Google to be your doctor, dentist, accountant, amateur arborist or veterinarian. You get the picture.

But Google and the internet are a wealth of information. That information can be very helpful at times. At other times, it can be very dangerous. So dangerous in fact just doing a simply Google search as a juror can be cause for a mistrial in an Ontario car accident case.

https://www. torontoinjurylawyerblog.com/ 2018/05/jury-deliberations- mistrial-an-example-why-jury- trials-for-ontario-car- accident-cases-should-be- abolished.html

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Changing the Focus in Medical Negligence

For more than 25 years, the Government of Ontario has provided hundreds of millions of taxpayer dollars to the Canadian Medical Protective Association (CMPA). The CMPA is the principal provider of defence legal services and indemnity payments for doctors in Canada. Over the last ten years alone, Ontario taxpayers have handed over $1 billion to the CMPA. 

http://otlablog.com/changing- focus-medical-negligence/

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New research helps prove future economic loss claims for plaintiffs with TBIs

A new landmark study on the risk of dementia for individuals who have suffered traumatic brain injuries is a help to plaintiffs with potential future economic loss claims, Toronto critical injury lawyer John McLeish tells AdvocateDaily.com. 

http://www.advocatedaily.com/ john-mcleish-new-research- helps-prove-future-economic- loss-claims-for-plaintiffs- with-tbis.html

May 16, 2018

by Admin2

Auto insurer faces lawsuit over credit scores in accident benefits claims

A major Ontario auto insurer is facing a lawsuit over allegedly using credit scores in adjusting accident benefits claims. 

https://www. canadianunderwriter.ca/ insurance/auto-insurer-faces- lawsuit-credit-scores- accident-benefits-claims- 1004131796/

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How much Ontario auto insurer might pay if it loses privacy class-action lawsuit

If Canada’s Federal Court were to rule against an Ontario auto insurer sued over allegedly obtaining credit scores of auto accident benefits claimants, the insurer might have to pay up to $10,000 a claimant. 

https://www. canadianunderwriter.ca/ insurance/much-ontario-auto- insurer-might-pay-loses- privacy-class-action-lawsuit- 1004131812/

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Ruling highlights ‘absurd mess’ of threshold test

An Ontario Superior Court decision overruling a jury’s award to a woman injured in a motor vehicle accident will only drive up the cost of personal injury court battles, Toronto litigator Michael Lesage tells AdvocateDaily.com. 

http://www.advocatedaily.com/ michael-lesage-ruling- highlights-absurd-mess-of- threshold-test-1.html

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FAIR doesn’t take a position on which of the parties will do right by Ontario’s car accident victims since none have a platform that suggests they will take better control of the file. A member has put together an excellent video (no, that’s not our FAIR name on it) reviewing Kathleen Wynne’s systematic attack on victims and the massive cuts starting in  2010. It’s a great place to leave your comments about how you feel about auto insurance issues!

May 15, 2018

by Admin2

Change For The Better Rally in Brampton

Monday, May 21st, 1:30pm

https://www.ontariondp.ca/rall y-brampton

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Drivers say auto insurance in this province is “financially difficult” to afford: poll

Nearly two-thirds of polled drivers in Newfoundland and Labrador have said that auto insurance has become “financially difficult” to pay for, according to a new poll commissioned by Aviva Canada. 

https://www.canadianunderwrite r.ca/insurance/drivers-say- auto-insurance-province-financ ially-difficult-afford-poll- 1004131663/

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Insurers’ excessive profits symptom of broken regime

A report showing Ontarians are still overpaying for insurance is evidence of the province’s broken no-fault insurance system, Barrie-area personal injury lawyer Steve Rastin tells AdvocateDaily.com .  

http://www.advocatedaily.com/s teve-rastin-insurers-excessive -profits-symptom-of-broken- regime-1.html

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FSCO clarifies that a Form 1 does not govern actual hourly rates for service providers

A Form 1, or Assessment of Attendant Care Needs, contains three parts/levels of attendant care. For each part/level, a particular hourly rate is assigned which is used to calculate an insured persons monthly attendant care needs. The hourly rate used in the Form 1 is governed by the applicable Superintendent’s Guideline. 

https://www.sbalawyers.ca/FSCO -clarifies-that-a-Form-1-does- not-govern-actual-hourly-rates -for-service-providers

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Physician’s Assessment Methodology Not Accepted – Insured is CAT Impaired – Harb and Allstate

Mr. Adel Harb was injured in a car accident on July 6, 2012 when his car was t-boned on his side of the vehicle. His vehicle was damaged to the point that he and the children had to exit the vehicle from the driver’s side. He took the children to the hospital right away, but didn’t experience any pain until later, as he was worried about his children’s and wife’s injuries. He went to see his doctor three days post-accident. 

https://www.deutschmannlaw.com /blog/post/physicians-assessme nt-methodology-not-accepted- insured-is-cat-impaired-harb- and-allstate

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Focusing on the road: Avoiding collisions caused by distracted driving

Distracted driving crashes resulting in personal injury claims are on the increase in Ontario and are preventable. 

https://lernerspersonalinjury. ca/blogs/focusing-on-the-road- avoiding-collisions-caused-by- distracted-driving/

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Candidate’s 15-year fight with WSIB after workplace injury part of his decision to run provincially

Taylor is running in Guelph for the None of the Above Party (Ontario), a party which doesn’t believe in whipping votes and which leaves open the door to the possibility of hand-picking cabinet ministers from a number of parties. 

https://www.guelphtoday.com/lo cal-news/candidates-15-year-fi ght-with-wsib-after-workplace- injury-part-of-his-decision- to-run-provincially-922520

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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII), <http://canlii.ca/t/hs0k9 

[1]               This is a motor vehicle personal injury action tried by judge and jury.  Liability was very much in issue.  Following eight weeks of evidence and closing arguments and my jury charge, the jury began five days of deliberation before returning a verdict.  They began their deliberations on a Friday afternoon and returned Monday morning at 9:30 a.m. to continue.  They rendered a verdict at the end of the week, late on a Friday afternoon.

[2]               On the weekend just after the jury began to deliberate, juror #1, while at his home engaged in some internet legal research.  He found a regulation under the Insurance Act, known as the Fault Determination Rules.  On Monday morning he discussed this regulation with the other jurors, which resulted in a jury question conveyed in a note to the court that sought direction about the use to be made of the regulation.  Juror #1 was questioned about the circumstances leading to his obtaining and sharing this information with other jurors.  A corrective charge and admonition was delivered by me the following day, directing the jury that the Regulation was irrelevant, that they were to disabuse their minds of it and were to refrain from any further internet research pertaining to the trial.

[3]               The jury’s verdict, delivered late Friday afternoon, found the plaintiff Mr. Patterson 73% contributorily negligent in the collision and the defendant 27% at fault.  In the circumstances, the plaintiff seeks an order declaring a mistrial due to the alleged contamination of the jury by this internet information and their alleged failure to abide by the court’s correcting charge.  The defendant’s position is that the court’s correcting charge was sufficient to deal with the problem and to ensure a fair trial, and that the jury verdict was reasonable and supported by the evidence.

May 14, 2018

by Admin2

Belairdirect wins court battle with Ontario clinics it suspected of fraud

Charmaine Green was involved in a car accident on Sept. 20, 2009 that led her to apply for a no-fault statutory accident benefit from her insurance provider, Belairdirect.

It’s what happened next that led Belairdirect, which is owned by Intact Financial Corporation, to take on two health care clinics in court. 

https://www.lowestrates.ca/new s/belair-wins-court-battle-ont ario-clinic-suspected-fraud- 25138

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Paralegal license revoked for dishonest dealings with insurers

Ontario’s legal regulator has revoked the license of a Richmond Hill paralegal for professional misconduct, finding that he misrepresented himself to insurance companies in accident benefits claims. 

https://www.canadianunderwrite r.ca/insurance/paralegal- license-revoked-dishonest- dealings-insurers-1004131589/

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Brokers worried that Ontario auto problems will force companies to exit market

Traci Boland, chairwoman of the Insurance Brokers Association of Ontario (IBAO), spoke to Canadian Underwriter Thursday about trends in Ontario auto (as well as home and commercial lines). She said that companies are filing for rate increases, but not getting them; sometimes, not even close to what they were requesting. 

https://www.canadianunderwrite r.ca/brokers/brokers-worried-o ntario-auto-problems-will-forc e-companies-exit-market-100413 1579/

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Texters who distract drivers could be held liable in accidents: insurance expert

MONTREAL — An insurance and legal expert says texters could be held liable for any damages if they message someone they know is driving and that person has an accident.

“There’s an increasing public safety issue of operators of vehicles who are distracted while driving,” lawyer Jordan Solway said in a recent interview.

https://ca.news.yahoo.com/text ers-distract-drivers-could- held-110004612.html

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Consumers risk being sued for online criticism

A Canadian woman posted some negative comments on the internet about a restoration company in Ottawa and now the company is threatening to sue her for damage to its reputation. 

http://www.rcinet.ca/en/2018/0 5/11/defamation-critical-revie ws-internet-law/

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Why are we more susceptible to developing Alzheimer’s after brain injury?

A post on this blog by Alison discussed research which suggests that those of us who have sustained a Traumatic Brain Injury (TBI) have a higher risk of developing dementia, including Alzheimer’s, one of the causes of dementia. 

https://torontobraininjuryblog .com/2018/05/14/why-are-we- more-susceptible-to- developing-alzheimers-after- brain-injury/

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Personal injury lawyers want NL to push back insurance review

With Newfoundland and Labrador’s Public Utilities Board (PUB) set to hold hearings on the province’s auto insurance review, a group of lawyers is demanding for more time to allow it to weigh in on the issue. 

https://www.insurancebusinessm ag.com/ca/news/legal-expenses/ personal-injury-lawyers-want- nl-to-push-back-insurance- review-100515.aspx

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Eby: ICBC is a “decade behind” in terms of changes

British Columbia’s attorney general has issued a statement reaffirming the government’s decision to reform the province’s failing auto insurer. 

https://www.insurancebusinessm ag.com/ca/news/breaking-news/ eby-icbc-is-a-decade-behind- in-terms-of-changes-100497. aspx

May 11, 2018

by Admin2

The Personal Insurance Co. Privacy Breach Class Action

This proposed breach of privacy class action is brought in Federal Court on behalf of all persons resident in Canada who made insurance claims under their automobile insurance policies with The Personal Insurance Company between January 18, 2012 and February 8, 2018, and who had their credit score information accessed by The Personal or its agents. 

http://waddellphillips.ca/clas s-actions/the-personal-privacy -class-action/

The original National Post story: 

What the federal privacy watchdog did after an insurer pried into crash victim’s credit rating

http://nationalpost.com/news/c anada/insurer-violated-crash-v ictims-rights-by-accessing-his -credit-score-federal-watchdog -rules

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Hate crime charge hangs over Ottawa Centre candidate

Twenty-five names and you’re in. Oh, and you can’t work for the government. Aside from that, there’s not much stopping anyone from running for a seat of Queen’s Park, even if you were once stripped of your medical licence and have an upcoming trial for hate crimes.

Dr Sears and Medical Insurance Fraud Investigation 

SERVICES THAT THE SECOND OPINION® MEDICAL-LEGAL CONSULTANTS GROUP INC. PROVIDES TO INSURANCE CLAIMS ADJUSTERS AND RISK MANAGERS 

http://www.secondopinion.ca/me d_invest.html

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Claimant makes incorrect proof of loss statement: Error? or “Wilfully false”?

A claimant does not have to intend to deceive an insurance company in order to make a “willfully false statement” on a proof of loss, thus voiding the insurance policy, an Ontario court has ruled. 

https://www.canadianunderwrite r.ca/insurance/claimant-makes- incorrect-proof-loss-statement -error-wilfully-false-10041315 61/

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BC Government Passes Discriminatory and Arguably Unconstitutional “Minor” Injury Law

Well the BC Government did it.  Despite a written election promise not to strip British Columbians judicial rights to fix the ‘dumpster fire’ at ICBC they did exactly that.  With an extra dose of hypocrisy they expressly targeted those suffering collision related psychiatric conditions while celebrating “mental health week”. 

http://bc-injury-law.com/blog/ bc-government-passes-discrimin atory-arguably-unconstitutiona l-minor-injury-law

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Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (CanLII), <http://canlii.ca/t/hrxsd

[84]                          In any event, however, I agree with the majority that J. was not required to show that the “characteristics of the particular thief who stole the vehicle or the way in which the injury occurred”[42] were foreseeable in order to establish a duty of care. While the trial judge relied upon the foreseeability of theft by a minor to impose a duty of care, such duties are not conditioned upon the reasonable foreseeability of the particular circumstances which gave rise to the plaintiff’s actual injury (a matter which is properly considered at the remoteness or legal causation stage).[43]Imposition of a duty of care, rather, was conditioned in this case only upon J. showing that physical injury to him was reasonably foreseeable under any circumstances flowing from Rankin’s negligence. And, as I have explained above, it was open on the basis of Rankin’s own testimony to conclude that his negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury. This evidence is sufficient to support the trial judge’s conclusion that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence.

III.         Conclusion

[85]                          The trial judge’s finding of reasonably foreseeable physical injury is sufficient to bring the circumstances of this case within a category of relationships which has already been found to support a duty of care. As a matter of law, proximity is thereby established, and it is unnecessary to proceed to the second stage of the Anns/Cooper framework.[44]  Given that the parties argued the issue to be decided in this appeal, and in the courts below, as one of duty of care and not of remoteness, a finding on duty of care is dispositive. I would therefore dismiss the appeal with costs in this Court to the respondents J. by his litigation guardian, J.A.J., J.A.J and A.J. 

Read commentary on the ONCA decision:   http://canliiconnects.org/en/ commentaries/43948

May 10, 2018

by Admin2

Belair court victory exposes how clinics can abuse auto claims system

Belair Direct has succeeded in quashing an auto insurance claim that illustrates how rehab and assessment clinics can potentially abuse Ontario’s accident benefits law. 

https://www. canadianunderwriter.ca/ insurance/belair-court- victory-exposes-clinics-can- abuse-auto-claims-system- 1004131504/

Belair Direct Insurance Company v. Green, 2018 ONSC 2782 (CanLII), <http://canlii.ca/t/hrvst

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Ontarians overpaid $5 billion for car insurance because insurers don’t pass on savings: report

Ontario drivers may have overpaid a staggering $5 billion in auto insurance premiums over the last five years, said a report released this week by York University professor Fred Lazar.

The report, commissioned by the Ontario Trial Lawyers Association, claimed that while average claims costs per vehicle declined by 15.5% between 2010 and 2016, average premiums per vehicle only fell by 4.8% within the same period.

https://www.lowestrates.ca/ news/ontarians-overpaid-5- billion-car-insurance-report

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Government won’t appeal decision in Star’s challenge to secrecy in tribunals

The Ontario government will not be appealing a Toronto Star legal victory which should lead to more openness in the province’s tribunal system. 

https://www.thestar.com/news/ gta/2018/05/08/government- wont-appeal-decision-in- tribunal-case.html?platform= hootsuite

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We spent two days inside one of York Region’s most crowded mental health units. One patient worried ‘it’s not good for our recovery’

Crayons are the only writing tools you’ll find on the third floor of Southlake Regional Health Centre’s psychiatric intensive-care unit in Newmarket. Patients must sign them out and return them to staff, without exception.

https://www.thestar.com/news/ investigations/2018/05/10/we- spent-two-days-inside-one-of- york-regions-most-crowded- mental-health-units-one- patient-worried-its-not-good- for-our-recovery.html

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Concussion Information for Patients and Families

http://concussionsontario.org/ standards/tools-resources/ concussion-information-for- patients-and-families/

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Post Concussion Thoughts from a Pro Rugby Player

Concussion in professional sport is common. Fortunately, it is becoming more common for professional athletes to discuss the impact concussion has had on their lives. It opens the door for amateur athletes to admit and discuss their injures as well. 

https://www.deutschmannlaw. com/blog/post/post-concussion- thoughts-from-a-pro-rugby- player

 
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Gatling-Coquelet v. Allan, 2018 ONSC 2889 (CanLII), < http://canlii.ca/t/hrwhd 
 

[5]               By virtue of s. 131(1) of the Courts of Justice Act, I have broad jurisdiction to order costs.  Ms. Gatling-Coquelet concedes that I have jurisdiction to make a cost order in this case but says that I should decline to do so for various reasons. 

[6]               Citing Nelligan O’Brien Payne LLP v. Fontaine, 2006 CanLII 20091 (ON SC), 2006 CanLII 20091(ONSC), she argues first that an assessment process is a reference as opposed to an action or application.  As a result, the rules and principles that apply to these types of proceedings do not apply here.

[7]               I disagree.  An assessment process is not a special proceeding different from any other.  When either a client or a solicitor seeks an assessment, they apply for an order.  Although the order results in a reference to an assessment process, the mechanism to obtain it is an application. The person seeking the assessment is referred to as the applicant and the responding party as the respondent.  The standard order states that it is issued “upon application”.

[8]               Under Rule 38.08(3), where an application is abandoned, a respondent is entitled to the costs of the application, unless the court orders otherwise.  There is no reason why this rule does not apply to an assessment procedure.

[27]           Mr. Allan argues that he should get a higher cost award because the entire assessment process initiated by Ms. Gatling-Coquelet was an abuse of process.  I reject this argument.  A client always has the right to seek an assessment of their lawyer’s bill.  It does not, on its own, indicate bad faith. 

May 9, 2018

by Admin2

Tort Rights Eroded for Victims of Auto Accidents

Drunk, distracted and dangerous drivers – sit back and relax. Why?

Because you don’t have to fully pay for your mistakes. The insurance companies that hire lawyers for you and defend you in court have spent millions of our premium dollars lobbying the government of Ontario to take away the rights of the people you injure when you are driving. Because of these efforts, the people you injure are not entitled to receive full compensation for their losses.

http://otlablog.com/tort- rights-eroded-victims-auto- accidents/

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Medical Disorder: Bad doctors who cross the border can hide their dirty secrets. We dug them up

The Toronto Star built an ‘unprecendented’ database to track problem physicians throughout their careers across state, provincial and country lines. Most of the doctors we identified are Canadian-trained. Among them: a children’s kidney specialist convicted in California of possessing child pornography (working in Quebec now); a pediatrician who surrendered his New York licence after the state medical board discovered he faked his own suicide with a forged death certificate (working in St. Catharines, Ont. now); a family doctor who was jailed and stripped of his U.S. medical licences after being convicted of selling opioids to an undercover agent in Hawaii (working six days a week in Markham, Ont., now). 

https://www.thestar.com/news/ medical-disorder/2018/05/09/ medical-disorder-bad-doctors- who-cross-the-border-can-hide- their-dirty-secrets-we-dug- them-up.html

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Global litigation funding options hit Canadian market

Independent brokers are perfectly placed to help lawyers and their clients navigate Canada’s fast-changing litigation funding landscape, says Katie Armstrong, director of international development at TheJudge Global.

The firm, founded in 2000, is the largest international litigation funding and insurance broker, and recently entered the Canadian market via its merger with Toronto-based JusticeRisk Solutions.

http://www.advocatedaily.com/ thejudge-global-litigation- funding-options-hit-canadian- market.html

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Kolapully and TTC Insurance

Mrs. Shoba Kolapully was injured on March 6, 2012 in an accident with a TTC bus while she was a pedestrian walking across the street at a corner crossway.  She sought benefits under the SABS from the TTC but when the parties were unable to resolve their disputes through mediation Mrs. Kolapully applied to the FSCO. 

https://www.deutschmannlaw. com/blog/post/kolapully-and- ttc-insurance

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A nurse just lost her freedom to criticize health care. That’s bad for everyone

Carolyn Strom is a nurse from Prince Albert, Sask. In 2016, the Discipline Committee of the Saskatchewan Registered Nurses Association (SRNA) found her guilty of professional misconduct after she used social media to voice her concerns about the care her grandfather received at the end of his life in a nursing home in Macklin, Sask., a town in which Strom herself did not practice. Her comments were, by contemporary standards, balanced and restrained; she named neither individuals nor their profession and she thanked those who had provided good care. She ran afoul of the SRNA for hurting the feelings of a handful of nurses. The SRNA fined Strom $26,000, most of it to cover the costs of her own disciplinary investigation and hearing. 

http://business.financialpost. com/opinion/a-nurse-just-lost- her-freedom-to-criticize- health-care-thats-bad-for- everyone

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BC Psychologists Speak Out Against ICBC Plan to Label Psychiatric Conditions as “Minor Injuries”

As recently discussed the BC Government, at the lobbying of ICBC, are trying to pass a law reducing the rights of British Columbians who are injured by distracted, impaired or otherwise at fault drivers.

As part of the overhaul ICBC is trying to label all psychological and psychiatric conditions as “minor” injuries, taking away the judicial rights of people who suffer these injuries in collisions and capping compensation for these.

http://bc-injury-law.com/blog/ bc-psychologists-speak-icbc- plan-label-psychiatric- conditions-minor-injuries

 
 

 

May 8, 2018

by Admin2

Law protecting Ontarians from disclosure of police records finally gets green light

Legislation protecting innocent Ontarians from the release of unproven allegations and mental health records in police background checks will finally come into effect nearly three years after it passed unanimously in response to a Toronto Star investigation. 

https://www.thestar.com/news/i nvestigations/2018/05/07/law-p rotecting-ontarians-from-discl osure-of-police-records-finall y-gets-green-light.html

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Plaintiff not obligated to submit her private Facebook photos in Injury Lawsuit 

Increasingly, digital documentation such as private Facebook photographs is requested by defendants in the hope of challenging the plaintiff’s evidence of their injuries, in a personal injury claim.  However, private Facebook photographs are no different than private paper documentation, such as personal letters, and a defendant has no more right to demand disclosure of private digital documentation than they would have to a plaintiff’s private letters or photos, based on mere speculation that they may find damaging evidence against a plaintiff. 

https://www.ilolaw.ca/blogpost /judge-dismisses-defendants- motion-ordering-plaintiff-to- produce-facebook-photos

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There are no minor concussions

Minor concussion is a term often used by people. It isn’t one we hear so much from the medical profession any more though as we come to the understanding that any brain damage is serious and can have long term impacts. We also know that a serious of concussions is even more dangerous to the long term well being of an individual. Regardless of how a concussion is sustained we must consider it as brain damage. 

https://www.deutschmannlaw.com /blog/post/there-are-no-minor- concussions