• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

Latest News Articles

FAIR does not accept responsibility for comments, opinions, statistical information etc. associated with the links listed below. Any opinions, points of view, etc. are not necessarily shared by FAIR.

For a complete list of recent articles, please go to our 'Media Articles' page under 'In the News'.
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February 18, 2020

For-profit welfare scheme draws concerns

“Where I get worried about it, is thinking around, really, what are the goals? What are the incentive structures put in place and who will be administering this?” asked the researcher and family physician with St. Michael’s Hospital’s City Health Associates. “We know there will be private companies bidding to help administer this system. That, to me, is extremely concerning.”

DOUG FORD OPENS WELFARE FOR BUSINESS

A recent article in the Catholic Register informs us that the Ford government will run ‘a three-year pilot program in for-profit welfare in Hamilton-Niagara, Peel and Muskoka-Kawartha.’ The paper goes on to say that, “These three regions will be the forerunners of a province-wide system the government has already mapped out. Eventually, Ontario will be carved into 15 regions. In each region, municipalities, non-profits and for-profit corporations will be invited to bid through a “Request for Proposals” process to manage the caseload of clients on Ontario Works (OW) and the Ontario Disability Support Program (ODSP) in each region.”

Ontario Adopting Process to Better Connect Job Seekers in Hamilton-Niagara With Good Jobs

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EDITORIAL: Auto insurance needs an overhaul

The consumer group FAIR (Fair Association of Victims for Accident Insurance Reform) say this means victims have to hire their own lawyers and medical experts to counter their insurer’s lawyers and medical experts to get benefits for which they’ve paid.
 
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New report shows Ontario auto insurance rates jumped by 20 per cent over three years

“When you add up all the profit that [the insurance companies] are making on home insurance, commercial insurance and auto insurance in the other provinces, it still does not equal what they’re making in profit just on auto insurance in Ontario,” he explained.
 
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Two Recent LAT Cases See Special Awards Against Insurers Who Unreasonably Withheld Payment to Applicants

When an applicant has to dispute an unreasonably denied benefit in front of the Licence Appeal Tribunal (LAT), the adjudicator is able to award a special award in addition to the amount in dispute in the form of a lump sum payment of up to 50% of the amount to which the person was entitled. This power comes from section 10 of Ontario Regulation 664, R.R.O. 1990. An unreasonable denial has been interpreted by the courts to mean one that is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”[1]
 
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Most Canadian P&C professionals would prefer a single auto insurance model nation-wide: CU poll

Most property and casualty insurance professionals across the country would like to see a single business model for auto insurance across Canada – as long as it’s the one in their home province, it seems.
 
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Self-represented litigants struggle to be heard at the Supreme Court of Canada

Supreme Court statistics show there is only a 0.23 per cent chance a self-represented litigant will be granted leave to appeal to the country’s top court, which takes on cases it considers to be of public importance.
 
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Government looking into reports new Ontario licence plates are unreadable at night

“We have been made aware that some Ontarians are reporting concerns with readability to the naked-eye under certain light conditions,” the office of Minister of Government and Consumer Services Lisa Thompson said in an email Monday.
 
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Webinar Registration- Financial Assistance Programs

Special guests Melissa Vigar and Laura Bellon from the Brain Injury Society of Toronto will be joining Ken to discuss various financial assistance programs, along with their application processes and best practices for best results. If you would like your family’s situation addressed or have a particular question, we may be able to answer it at the webinar.
 
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S.R. v. Aviva Insurance Canada, 2019 CanLII 126104 (ON LAT), <http://canlii.ca/t/j4ggf 

[6]      Through the November Notices, the respondent scheduled the following IEs: an orthopaedic assessment, a functional abilities evaluation, and a job site evaluation.  The Tribunal found, that although the November Notices included a valid medical reason for each examination, the respondent failed to provide the applicant with sufficient notice for the functional abilities evaluation and the jobsite evaluation because they did not fully comply with s. 44(5). Specifically, they lacked details regarding the professions of the individuals conducting the examinations. 
9]      I agree that the Tribunal erred. In short, the Orthopaedic Notice did not comply with s. 44(5)(c) of the Schedule. Finding that it did was a significant error. Thus, I grant this reconsideration request  and, therefore, will not deal with the applicant’s second basis for the reconsideration request, that is the allegation of a lack of medical reasons in the Orthopaedic Notice.
[10]   In accordance with s. 55(1)2 of the Schedule, an insured person shall not apply to the Tribunal if the insurer has provided the insured person notice “in accordance with this Regulation that it requires an examination under s. 44 but has not complied. 
[14]   Although this may be a technical oversight, not all individuals with a “Dr.” prefix before their names are medical doctors and/or qualified to conduct an orthopaedic assessment. 
[15]   While I agree with the Tribunal that one could reasonably ascertain by his title and designation the type of assessment being scheduled, I do not agree that one could reasonably ascertain the regulated health profession to which Dr. Yee belongs.  However, even if the applicant could have reasonably ascertained the information, this is not the applicant’s obligation.  Instead, that is information that, according to the Schedule, an insurer must provide the applicant. 
[16]   Without referencing another source, the applicant could not have known Dr. Yee’s regulated health profession. It is not up to the applicant to find out the information that the insurer was to provide.  I agree with the applicant that it was entirely in the insurer’s hands to ensure that the notice was in accordance with the Schedule.[2]  In this case, it was not, and the Tribunal’s focus on the applicant’s ability to reasonably ascertain the missing information was a significant error.
[17]   The Tribunal should not assume that an applicant would be able to ascertain information that was missing.  It is worth repeating that one of the main objectives of insurance law, including the Schedule, is consumer protection.[3] The information that the insurer was required to provide the applicant was to be provided in “straightforward and clear language, directed toward an unsophisticated person.”[4]
20]   In accordance with s. 37 of the Schedule, the respondent was not entitled to discontinue paying the IRB on the basis that the applicant failed to attend the s. 44 IE given that the Orthopaedic Notice was non-compliant with the Schedule. 
[21]   The applicant indicated in his reconsideration submissions that the respondent never took issue with the applicant’s entitlement to IRBs and based its entire reason for not paying the IRBs on the s. 55(1)2 exclusion clause. The respondent did not refute this submission.
[22]   Therefore, I order that the IRB is payable to the applicant for the period that it was withheld, specifically from December 3, 2015 to October 11, 2016. 
[23]   The applicant has requested a ruling on an award pursuant to s. 10 of Ontario Regulation 664 regarding the withheld IRB for the period of December 3, 2015 to October 11, 2016.  
[24]   In accordance with s.10 of Ontario Regulation 664, in addition to awarding benefits, the Tribunal may order an award if it finds that the insurer unreasonably withheld a benefit. 
[25]   Merely because an insurer failed to comply with the Schedule does not mean that the applicant is entitled to an award.  An insurer may fail to comply with the Schedule without acting unreasonably.  In this case, even though the insurer did not fully comply with the Schedule, I do not find that the errors in the Orthopaedic Notice reach the threshold of unreasonably withholding or delaying a benefit contemplated in s.10 of Ontario Regulation 664.
[26]   Accordingly, I find that the applicant is not entitled to an award on the IRBs payable for the period of December 3, 2015 to October 11, 2016.
 

February 13, 2020

FAIR Submission on Third Party Reports and Medical Experts: Reports and Testimony

Ontario’s courts are bottlenecked with claimants whose files are loaded with poor quality, unqualified or just plain biased medical information. There’s no shortage of statements from Ontario’s judges about the quality of the Third Party Reports and Expert testimony in relation to your members – isn’t it about time you, as Regulator, took an interest in that record? 
 
http://policyconsult.cpso.on.ca/?page_id=12360  Patients speak out at their rough treatment at the hands of Ontario’s IME providers

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Why are Ontarians possibly overpaying billions in auto insurance?

“The companies being regulated expend a lot of money on lobbying and government relations and are able to convince regulators to tread lightly. Politicians are afraid to call the positions of insurance companies…So they take the safe route. I think regulators should call their bluff.”

Average premiums per vehicle have increased by 2.4 per cent between 2010 and 2018, while average claims per vehicle have declined by 10 per cent, the report says.

The OTLA sought out economist Lazar to formulate estimates because insurance companies are not required to publicly report profits from their auto insurance operations in Ontario.

“As Ontarians, we’re not given that information but we’re asked to pay more,” Wynperle says. “There should be greater transparency. That begins with public disclosure.”
[]

Since the amendments requiring insurance companies to cover the HST were approved June 3, at least two insurance companies — Intact and Belair Direct — publicly announced they will comply. But other major companies have resisted.

“The extent to which a handful of insurance heavyweights continue to thumb their noses at the regulator, the government and their own clients is appalling,” says Paul Harte, a Toronto lawyer who has filed class-action lawsuits against insurance companies. Though the filing of the suits predates the June 3 HST amendments, Harte alleges ongoing HST violations. “Without action to bring greater transparency and accountability to this industry, a number of players will continue to use their wealth and power to the detriment of victims and car drivers.”

As recently as Nov. 26, 2019, Aviva wrote a claimant advising “HST has been included in the limits on this claim.”

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What’s really behind Ontario auto rate increases
 
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Think you’re paying too much for Auto Insurance in Ontario? 

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Ontario’s Auto Insurance Rates are Increasing Up to 11% and Will Remain Among Highest in Canada

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Province gives green light to auto insurance hikes

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Compilation – OTLA

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Should a plaintiff’s failure to get treatment be used to reduce any damages award – Little v. Floyd Sinton Limited, 2019 ONCA 865

The accident occurred on the last day of school in grade 8, Ms. Little had been riding the school bus for several years, was a trained bus patroller, and had been taught how to open the emergency doors. She had been instructed that it was dangerous to jump from the back of the bus when it was moving. 
 
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B.C.’s no-fault insurance system to scrap payments for future earnings

VICTORIA — B.C.’s new no-fault insurance system will freeze compensation for a person’s salary to whatever they were earning at the time of their crash, eliminating the ability in most cases to get extra money for lost future wages. 
 
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Participate in Research

As confirmed by our Masters student research intern Emily Giroux in the video above, your personal experience and insights can help change the world. Whether it’s a quick online survey or a few days in a clinical setting, participating in research advances the science of SCI and helps those living with SCI in any number of important ways. 
 
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Recovering from a concussion: what adults should know

Concussions are injuries to the brain, most commonly resulting after a fall, motor vehicle collision or sports injury. The impact causes the brain to move in the skull, essentially stretching the brain cells and causing chemical changes that trigger symptoms. At the most recent Speaker Series – Concussions & Traumatic Brain Injury: Facts, Fiction and Fundamentals for Prevention and Recovery – occupational therapist Elke McLellan discussed the best tips for adults for recovery and returning to activity safely. 
 

February 11, 2020

Auto insurance rates in Ontario going up as much as 11%

Radio-Canada has learned that the Financial Services Regulatory Authority of Ontario (FSRA) has given the green light to increases in automobile insurance premiums for some 20 insurance companies in the province. 
 
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Ontario’s average cost of auto insurance among the most expensive in the country

Radio-Canada has learned that the Financial Services Regulatory Authority of Ontario (FSRA) has given the green light to increases in automobile insurance premiums for some 20 insurance companies in the province. 
 
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Secret insurance deductible was just raised again, now almost $40,000

Insurance deductible for pain and suffering nears eye-popping $40,000

How happy would you be if an insurance company automatically scooped nearly $40,000 from an award issued after you sustained a serious injury in a car accident? 
 
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Insurance Companies get a Secret Credit for your pain and suffering in Ontario car accident cases

Did you know that Ontario car insurance companies are entitled to a secret credit approaching $40,000 for your pain and suffering in car accident cases? Probably not. 
 
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What is Adverse Costs Insurance? Do I need It?

Generally speaking, in Ontario, we have a ‘loser pays legal fees system’. This means that the unsuccessful party in a lawsuit can expect to be ordered to pay at least part of the successful side’s legal costs. In personal injury litigation it’s not uncommon for the losing party in a trial to be ordered to pay legal costs awards in the range of tens to hundreds of thousands of dollars. 
 
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Industry to see single entity for anti-fraud services

Insurance Bureau of Canada’s (IBC) board of directors said in a press release Monday it has agreed to create an industry advisory group on fraud. The formation of the advisory group will lead to the development of a strategy to ensure a smooth transition of anti-fraud services into the single entity. 
 
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From no-fault hater to no-fault lover: The inside story on David Eby’s decision to revamp ICBC

It took an admission to himself that he’d misjudged the ferocity of the fight against reforms by personal injury lawyers, horror stories about how the existing system still fails customers, the help of top officials from Manitoba and Saskatchewan, and the warnings of massive rate hikes in the next few years even though his contentious previous reforms were successful. 
 
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Major overhaul of ICBC could see rates drop by 20%, with lawyers cut out of system, province says

The province claims that Insurance Corporation of B.C. premiums will drop by as much as 20 per cent — an average of $400 a year — as the insurer moves to introduce a system designed to redirect hundreds of millions of dollars spent in legal costs each year to directly benefit people injured in crashes. 
 
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Canadians with lifelong disabilities can lose disability tax credit

When Robert Morley got the news that his application for the federal disability tax credit (DTC) had been denied in December 2019, he felt a mix of emotions, he said. 
 
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One in five Canadians suffers from mental stress. So why are mental disability claims so frequently denied?

Canadian workplaces are riddled with depression and anxiety. In any given year, one in five Canadians suffers a mental health issue. This is further exacerbated by dismissal. Even our Supreme Court has recognized that losing one’s job often represents losing one’s identity. 
 
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Citizen Advisory Group
The Citizen Advisory Group helps bring the patient voice and perspective to healthcare regulation in Ontario. The group was formed in 2015 as a patient feedback tool for the College of Physiotherapists of Ontario. Since then, we have grown into a partnership of 18 health regulatory Colleges who are eager to engage patients in their work.
Patient Compass
The Citizen Advisory Group helps bring the patient voice and perspective to health-care regulation in Ontario. This important Group is made up of patients and caregivers from across the province, and provides input on standards of practice, policies and strategic priorities. The Group supports many of Ontario’s health regulatory colleges who want to engage patients in their work. 

February 6, 2020

Transforming ICBC to deliver lower rates, better benefits

Government is transforming ICBC by removing lawyers and legal costs from the system to reduce rates and substantially increase care benefits, making public auto insurance work for British Columbians again. 
 
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Common $1M liability coverage not enough this day and age

Thomson Rogers partners Darcy Merkur and Ian Furlong were quoted in a recent Law Times article “Common $1M liability coverage not enough this day and age: lawyer” by Mallory Hendry discussing insurance companies needing to do a better job informing clients about liability coverage. 
 
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How does ‘Joint and Several Liability’ protect Accident Victims?

In personal injury actions where there is more than one person found at fault, each of the defendants are equally responsible to pay the full amount of damages to the person who was injured.  This is referred to as ‘joint and several liability’.
 
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An Accountable Legal Profession

There has been a lot of recent discussion about the complaints process at the Law Society of Ontario (and other law societies). How should law societies regulate and discipline lawyers, and how do they treat complaints from the public or self-reps, compared to complaints brought by other lawyers or the regulator itself? Are lawyers the best placed to discipline other lawyers? In today’s podcast, LSO President Malcolm Mercer debates these and other issues with Anne Rempel, who has written a series of posts on the complaints process for our Access Revolution Blog. 
 
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Law Commission of Ontario reacts to changes to Class Proceedings Act proposed in bill 161

In a letter signed by Andrew Pinto, chairman of the LCO’s board of governors, and addressed to Doug Downey, attorney general of Ontario, the LCO declined to show its support of the proposed amendments to the Class Proceedings Act, 1992, as currently drafted under Schedule 4 of bill 161, the Smarter and Stronger Justice Act, 2019, which had its first reading on Dec. 9, 2019. 
 
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Pouring Salt on the Wound: Psychologists Identify the Effects of ‘Institutional Betrayal’

Women exposed to sexual assault in the military suffer more trauma-related symptoms than female veterans sexually assaulted in civilian life. Children abused only in residential care settings are more likely to have difficulties as adults than children who were abused only at home. 
 
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Surveillance and Disability Claim Update

The Personal Information Protection And Electronic Documents Act (PIPEDA) has only been with us for a short period of time and it is still too early to tell what sort of an impact it and other similar legislation will have on the dissemination of information both at the claims, adjudication and litigation levels in the handling of disability claims. The objective of this paper and presentation is to discuss this developing area of the law, and in particular recent developments that will assist in predicting how such legislation will impact on the use of surveillance in disability claims. 
 
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‘PSW shortage is a crisis’ putting lives at risk: Ontario Health Coalition

LONDON, ONT. — The Ontario Health Coalition says a recent report by its team is showing a large shortage of personal support workers (PSW) in long term-care homes. 
 
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Neurology Patients Have Higher Suicide Rates

Over a 37-year period, the suicide rate for people with a neurologic disorder was 44.0 per 100,000 person-years, compared with 20.1 per 100,000 person years for all other people, reported Annette Erlangsen, PhD, of the Danish Research Institute for Suicide Prevention/Mental Health Centre Copenhagen, and colleagues in JAMA. 
 
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Companies blame distracted drivers, complex cars as auto insurance increases pile up

It’s the latest and largest in a parade of steep insurance increases the province has been hit with over the past two years that are being blamed on wrecks caused by distracted drivers and on technology-laden vehicles that have become expensive to fix after even minor accidents. 
 
 

February 4, 2020

 

No Weight Given to “Simply Conclusory” Defence Medical Opinion

Adding to this site’s archived posts of judicial criticism of expert witness advocacy or otherwise unsatisforcy expert opinions, reasons for judgement were recently brought to my attention finding that ‘no weight‘ should be attached to an expert that provided a ‘simply conclusory‘ opinion. 
 
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Navigating the LAT Regime – Traps for unfamiliar lawyers

Even when a case falls into an area of law in which a lawyer is experienced, a new or unfamiliar administrative regime can present risks for lawyers not prepared for the particular statutory framework. Importantly, missing key details and requirements can lead to malpractice claims from inadequate investigation or communication failures with clients. 
 
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Insurer Seeks Costs from “Suspended” ATE Policy & Plaintiff Lawyer Personally

Auto Insurers in Ontario continue their dogged pursuit of costs from After the Event legal expense insurance (“ATE”) policies despite ongoing resistance to paying the associated premiums in settled cases. In the most recent example of Loye v Bowers,[1] released on January 23, 2020, Justice Turnbull addressed the novel issue of “suspension” of an ATE policy just days before the commencement of trial and went so far as to call the ATE broker representative to give evidence on a motion. The decision also highlights the possibility of an ATE insurer and plaintiff counsel potentially using or threatening cancellation of coverage to influence a plaintiff’s decision to proceed to trial. 
 
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Personal injury lawyers continue to be frustrated by jury rules

While the changes to the small claims court and the simplified procedure have been heralded for having the potential to cut wait times for trials, there is another benefit to the changes for personal injury lawyers. 
 
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Battle rages over whether private or public auto insurance is cheaper

The Insurance Brokers Association of British Columbia (IBABC) disputes the conclusions published in a recent report that B.C. drivers are paying up to 42% more for their auto insurance than those in neighbouring Alberta. 
 
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the charles smith blog

Technology: The courtroom: Jurors and the perils of googling. My former Toronto Star colleague Betsy Powell – one of the finest reporters on crime and the courts – takes on the perils of Google – when accessed by jurors for information which has not been presented to them in court….”Despite judge’s instructions against hunting for information online, juror googling continues to bedevil the justice system, sometimes forcing mistrials or worse, verdicts that could be based on misleading or false information gleaned from the internet. Yet with dozens of jury trials scheduled in 2020 at downtown Toronto’s Superior courthouse, some legal insiders feel not enough is being done to ensure jurors not conduct their own research into a case.

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Why your walk-in clinic visits could mean trouble for your family doctor, and you

You’ve woken to a throat so sore you can barely swallow. Time to find a nearby walk-in clinic? Sure, it will probably be easier than trying to get in to see your family doctor. But if you live in Ontario, that walk-in clinic visit could hurt your doctor and put you at risk of being “de-rostered.” 
 
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Cranioelectrical Stimulation for Concussion and PTSD

I wrote back in July about audiovisual entrainment (AVE), one of the neuroplastic treatments for my brain injury that my psychologist introduced me to. He also used what he called “alpha-TENS,” which I now know as cranioelectrical stimulation or CES. 
 
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Five ideas Maytree would like to see in Ontario’s next Poverty Reduction Strategy

While we don’t know the government’s own ideas for its poverty reduction efforts, we do know that we need to address poverty in our province – urgently. We can’t miss this opportunity to table some important ideas that can reduce poverty and prioritize the dignity of people living in poverty. 
 
 
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Syed v. Petrie, 2020 ONSC 664 (CanLII), <http://canlii.ca/t/j50wj  
 

[4]       This action involves a motor vehicle accident that occurred on June 19, 2008. Liability and damages remain in dispute.

[5]       Surveillance has been conducted on the Plaintiff since 2009 and many reports prepared accordingly. On February 2, 2016, the Plaintiff produced to the Defendant the following:

a)        A report dated December 23, 2009 containing surveillance for December 16, 17, and 19, 2009;

b)        A report dated July 17, 2012 containing surveillance for June 27 and 28, 2012 and July 5, 6, 7, 10, and 11, 2012;

c)        A report dated August 7, 2012 containing surveillance for July 27, 2012 and August 1, 2012;

d)        A report dated August 26, 2013, containing surveillance for May 3 and 4, 2013; July 18 and 23, 2013; and August 7, 19, and 21, 2013;

e)        A report dated October 3, 2013 containing surveillance for September 24, 25, 26, and 27, 2013;

f)         A report dated September 24, 2014 containing surveillance for September 5, 6, 15, 16, and 17, 2014;

g)        A report dated September 30, 2014 which was an addendum to the report of September 24, 2014; and

h)        A report dated May 25, 2015 containing surveillance for April 23, 27, 28, and 29, 2015 and May 5, 2015.

[6]       The Defendant also produced the following reports on May 17, 2017:

a)        A report dated October 3, 2016 contained surveillance for September 27, 28, and 30, 2016; and

b)        A report dated November 28, 2016 contained surveillance for November 23, 25 and 26, 2016.

[7]       On July 12, 2018, the Defendant produced a report dated February 21, 2018 containing surveillance for February 6, 7, 8, 9 and 10, 2018.

[8]       On September 11, 2018, the Defendant produced the following:

a)        A report dated October 4, 2016 containing surveillance for September 12, 13, and 14, 2016; and

b)        A report dated January 16, 2018 contained surveillance for December 12, 13, and 14, 2017.

[9]       The trial in this matter was scheduled to start on January 6, 2020. On January 1, 2020, Plaintiff’s counsel wrote to Defendant’s counsel and asked for confirmation that they had been served with all surveillance on which the Defendant intended to rely. The Plaintiff had already prepared his witnesses based on the surveillance in their possession. They also asked whether there were other occasions for which a report had been prepared and not yet provided.

[10]       In response, on January 3, 2020, the Defendant served a surveillance report dated December 26, 2019, which contained surveillance from December 19, 20 and 21, 2019 (“December 2019 Report”). The Defendants indicated that they received it from their investigator on January 2, 2020. They waived privilege over the report and turned it over to the Plaintiff the next day. 

[11]       On or about January 5, 2020, a further surveillance report dated January 3, 2020 was received by the Defendant. The Defendant waived privilege on the report immediately and provided it to Plaintiff’s counsel by e-mail. An actual copy of the video surveillance was provided to the Plaintiff on January 6, 2020. This latter report contained surveillance from December 30 and 31, 2019 and January 2, 2020 (“January 2020 Report”).

January 30, 2020

Ford government has floated giving itself more control over judicial appointments, documents reveal

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Hackers were paid ransom after attack on Canadian insurance firm, court documents reveal

A Canadian insurance company suffered a ransomware attack last fall that saw 1,000 of its computers infected, raising questions about what sensitive data may have been accessed by hackers and whether the firm disclosed the breach to its customers. The case has only now come to light because of recent court filings in Britain. 
 
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Drowsy Driving is Dangerous and is a Factor in 20% of Car Accidents

Many of us have been in a driving situation when we feel tired and know that we are in danger of nodding off behind the wheel. Most of the time we have the sense to pull over and take a break, switch drivers or stop driving for the day. I’ve often seen people sleeping in roadside rest areas mid afternoon, clearly taking a break from the road. 
 
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Police warn about fraudulent Ontario road test booking website

Ottawa police say they’ve received several complaints from unsuspecting drivers who attempted to book a road test using the site bookyourroadtest.com
 
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Bravo Ontario; Forced Opioid Tapering is (Mercifully) Ending

Let’s give a big hand to policymakers in Ontario for correcting a rule that should have never been instituted in the first place. They realized that forced tapering of pain medications is “arbitrary and inappropriate,” and decreed that physicians will no longer be required to wean patients off of prescription opioids.  
 
 
 
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Many Canadians grapple with mental-health issues year-round, but the conversation kicks into high gear every January on Bell Let’s Talk Day. That’s when telecom giant BCE Inc. commits to spending five cents on mental-health initiatives every time someone tweets their hashtag or watches their official video, and every time one of their subscribers texts or calls someone. 
 
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Loye v. Bowers, 2020 ONSC 456 (CanLII), <http://canlii.ca/t/j4vgp 

[33]         The defendants claim $60,047.40 for disbursements.  I will review some of them which cause me concern.

[34]        Dr. Marks was called as a defence expert witness in the area of orthopedic surgery.  Dr. Mark’s wrote a reply medical report which was 82 pages in length, compared to the plaintiff’s expert report of 18 pages.  In fairness to Dr. Marks, he had to review in detail the lengthy pre-accident and post-accident medical history of the plaintiff in rendering his opinion.  He charged $11,300 for the written report which is somewhat on the high side but not unreasonably so.  His evidence was clear and persuasive and in my view, it was important in assisting the jury to render its verdict, which was favourable to the defendant.

[35]        Counsel for the plaintiff objects to the fact that in addition to the fee for his written report, the defendant also claims $24,182 as a witness fee for Dr. Marks’ preparation and appearance to testify during one day of this trial.  He provided counsel with his docketed hours of preparation which amounted to 14.25 hours at $800 per hour.  He further charged $10,000 for his appearance to testify for a full day.

[36]        It appears that he had 9 teleconference calls with counsel between November 4, 2019 and November 12, 2019 which was supposed to be the day that the trial started.  In fact, it did not start until a week later due to a number of pre-trial motions brought by the defendant.

[37]        I find the time and fees charged by Dr. Marks to be totally excessive.  His hourly rate of $800 is jaw dropping.  I find that he should have been able to be prepared to give his evidence in three hours of consultation with counsel and personal review of his report.  I will allow the defendant $3,000 for preparation of Dr. Marks to testify.  I allow the sum of $5,000 for his attendance at trial and giving his testimony.  Thus, I allow preparation and attendance fees for Dr. Marks of $8,000 plus HST of $1,040.00 for a total of $9,040.00, reduced from the amount claimed of $24,182.00.

Hotel Accommodation and Meals for Counsel:

[38]        In the defendant’s Bill of Cost, there are significant claims made for the cost of meals, accommodation and car rentals for each counsel.  They are as follow:

 Ms. Van Rensburg:  Hotel accommodation and parking $5,687.65

                           Car Rental and Gas:  $800.80

                             Meal Expenses: $1201.25.

Ms. Panno:  Hotel accommodation and meals:  $6,000.

                            Meal Expenses: $1200.00

                            Mileage:  $371.52.

[39]        The total claimed by both of the defendant’s trial counsel for hotel accommodations and meals is $14,088.90.

[40]        Section 30 of the Tariff gives the court discretion to allow accommodation and travelling expenses incurred by a party.   I must say that I find the hotel expenses claimed to be excessive.  Personally, I stayed at the Radisson Hotel in Kitchener on a number of occasions during this trial at a government rate of $115 per night plus taxes (which included breakfast).  The total bill each night was approximately $138.00.  It is a clean, safe hotel located within a ten-minute drive from the court house.

[41]         I have no idea from the information given to me of the rate charged for the room at the hotel where they were staying.  I am aware that I checked the cost of another hotel in Waterloo and it would have cost $229 per night and hence I did not stay there.

[42]         I feel that it is incumbent on counsel to search out and find the most reasonably priced appropriate hotel in the region of a courthouse if it is expected that their client would be asking the adverse party to pay their expenses. I have no evidence in that regard.

[43]        I have no information with respect to the number of nights each counsel stayed at a hotel, which hotel they stayed at, the cost per night, whether they sought and obtained a reduced “business” rate.  I have no idea of the costs incurred for each meal nor whether alcohol was included in the bills.

[44]        I also take into account the fact that counsel are employed by TD Insurance as “in house counsel”.   This accident occurred in London but was tried in

Kitchener.   While TD is entitled to counsel of its choice, it seems to me to be unreasonable to require the plaintiff to have to pay the hotel and meal costs of two counsel from out of town.  I must ask myself why a lawyer from the Kitchener/Waterloo region could not have been retained to act as co-counsel to help limit the costs incurred in this matter and which now are demanded from the plaintiff. 

[45]        I therefore allow the defendant’s claim for hotel accommodations in the amount of $6,000.  I allow the sum of $1200.00 for meals.

[46]        I further disallow the claim for $1160.00 related to a consultation with 30 Forensic Engineering, as no report or witness was called by the defendant from that firm.

[47]        In all other respects, I accept the amounts claimed for disbursements as being appropriate and assessable.

Conclusion:

[48]        The defendant shall have judgment against the plaintiff for his partial indemnity costs, disbursements and HST tax as follows:

a.     Total Fees:               $134,995.00

b.      HST                 $  17,549.50

c.      Disbursements:         $  36,754.18

Total:                $189,298.68

 

 
 

January 28, 2020

2020 Budget consultations

Over the years a budget has become a vehicle for introducing all kinds of good and bad ideas when it comes to auto insurance (and other issues)

So a budget consultation is an opportunity to use your voice. 
___________________________________________________________________

Ontario’s FSRA to establish a consumer advisory panel

A release explained that the panel will provide perspectives from consumers – including pension beneficiaries, credit union members and the general public – on planned FSRA policy changes. The panel will also assist the regulator’s consumer office in serving as the voice of the consumer within FSRA. 
 
__________________________________________________________________

The Connection Between Statutory Accident Benefits and Tort

Ontario motor vehicle accident legislation is a confusing area of personal injury law for many victims of a car accident. It is important for people to understand their available options for compensation through accident benefits and tort, and how these particular options interplay with each other. Failure to appreciate this balance (or failure to seek legal representation) can adversely affect the final amount of compensation, or at worst, eliminate entitlement to compensation completely. 
 
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Tomec v. Economical: Ruling on Limitation Periods Protects Injured Plaintiffs

The Ontario Court of Appeal ruled in a decision released Nov. 8, 2019, that limitation periods under the Statutory Accident Benefits Schedule (SABS) are subject to discoverability and are not to be considered “hard limitation periods.” 
 
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Class action lawsuit raises questions for Ford, insurance regulator 

Eleven auto insurance companies that have allegedly withheld hundreds of millions of dollars in HST payments from Ontario car accident victims since 2010 have been named in 11 class action lawsuits that now total $1.1 billion in damages. None of the 11 class actions has been certified or tested in court.
 
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Reporting on SRLs and their Experiences: NSRLP’s Intake Report 2018-2019

After the publication of Dr. Macfarlane’s research report in 2013, SRLs have continued to contact the National Self-Represented Litigants Project. The NSRLP team decided to develop an “Intake Form” in SurveyMonkey, in order to continue to collect information from SRLs across Canada; we have since put out semi-regular reports on the new data from SRLs coming in every week. Our latest Intake Report, out today, presents data from 173 respondents, from surveys submitted between January 1st, 2018 and June 30th, 2019. 
 
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An Open Letter to the Canadian Pain Task Force, the Minister of Health and the College of Physicians and Surgeons of Ontario

After our last teleconference, we sent Andrea Currie, Canadian Pain Task Force Secretariat, an update on the status of two patients in Ontario that were mentioned in that call. One was the young lady who was the subject of a Chatelaine article and the other was Mr. Dan Wallace, the retired police detective and former member of the Canadian Military.
 
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Surprising physical symptoms of my brain injury

The initial bleed at the base of my brain, the hospital had seen but down played it. The blood pushed against and irritated my brain stem and spinal cord. These control the flow of messages between the brain and the rest of the body. This added to my physical symptoms. 

 
 
 
 
 
 
 
 

January 23, 2020

Financial Services Regulatory Authority of Ontario (FSRA) Consumer Advisory Panel members

Rhona DesRoches

Ms. DesRoches is the Chair of the Board of FAIR Association of Victims for Accident Insurance Reform. She has extensive experience in the insurance industry from a consumer perspective, preparing and presenting materials to government, regulators and other stakeholders for the past 25 years with a particular focus on accident victims. https://www.fsrao.ca/consumers/consumer-advisory-panel
____________________________________________________________ 

Outsized award against insurer should incentivize fairness in LAT, says lawyer

An adjudicator admonished an insurer for “imprudent, inflexible and immoderate” behaviour in a recent Licence Appeal Tribunal decision, ordering the company to pay an unusual “special award.” 
 
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Adjudicating claims and setting claims reserves are different, right?

An Ontario court has rejected an attempt by claimants in a bad faith claim against an insurer to blur the line between claims adjudication and setting claims reserves, ruling that the insurer’s “records pertaining to reserves” were irrelevant to how the claim was decided. 
 
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Car insurance culprits 

IF YOU BELIEVE EVEN half of what faceless groups are posting on Facebook about ICBC these days, you might have the impression that our public insurer has failed—that it’s corrupt, incompetent, and needs to be replaced yesterday with a for-profit private market. 
 
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Some of Ontario’s biggest hospitals are filled beyond capacity nearly every day, new data reveals

Overcrowding has become so common in Ontario hospitals that patient beds are now placed in hallways and conference rooms not only at times of peak demand, but routinely day after day, research by CBC News reveals.  
 
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One sided pro-insurance company forms in Long Term Disability Cases

We must admit, long term disability cases can be very strange. Liability and calculating damages is not straight forward like in a dog bite or car accident case. The reason for that is long term disability cases are contractual in nature. That means that they are based upon, and defined by your long term disability contract. 
 
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Medical assistance in dying

Medical assistance in dying (MAID) became legal in Canada in June 2016. Canada’s Criminal Code now exempts doctors and nurse practitioners who provide, or help to provide, medical assistance in dying. 
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O-Tip of the Week: Trouble Typing? Try “Talk to Text”

For the month of January, our O-Tip series will help you to get acquainted with your devices and the awesome accessibility features you may not be aware of.

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Elliot v. Aviva Insurance Company of Canada, 2020 ONCA 36 (CanLII), <http://canlii.ca/t/j4rr7 

COURT OF APPEAL FOR ONTARIO

CITATION: Elliot v. Aviva Insurance Company of Canada, 2020 ONCA 36

DATE: 20200121

DOCKET: C67081

Pardu, Brown and Huscroft JJ.A.

BETWEEN

William Elliot Plaintiff/Responding Party (Respondent)

and

Aviva Insurance Company of Canada, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

Defendants/Moving Party (Appellant)

And in the following 13 actions:

Shelli-Lynn Black v. Belair Insurance Company Inc. c.o.b. Belair Direct, et al.

         CV-18-00607931-00CP

Catherine Brooks v. Intact Financial Corporation c.o.b. Intact Insurance, et al.

         CV-18-00607933-00CP

Jill Nicholson v. Unifund Assurance Company, et al.

         CV-18-00607937-00CP

Fernanda Sampaio v. Certas Home and Automobile Insurance Company, et al.

         CV-18-00607939-00CP

David Macleod v. The Commonwealth Mutual Insurance Group, et al.

         CV-18-00608382-00CP

Madeleine Bonhomme v. Co-Operators General Insurance Company, et al.

         CV-18-00608386-00CP

John Ross Robertson v. Echelon General Insurance Company, et al.

         CV-18-00608390-00CP

Bradley Dorman v. Economical Mutual Insurance Company, et al.

         CV-18-00608396-00CP

Mark Cicciarelli v. Wawanesa Mutual Insurance Company, et al.

         CV-18-00608399-00CP

Kristopher Baron v. St. Paul Fire and Marine Insurance Company, Travelers Insurance Company of Canada, et al.       

CV-19-00611894-00CP

Garry Gibbons v. TD Insurance, et al.

         CV-19-00611895-00CP

Brian Nagle v. Gore Mutual Insurance Company, et al.

         CV-19-00611899-00CP

David Sura v. Cumis General Insurance Company, et al.

         CV-19-00611901-00CP

L. Glenn Frelick and Dona Salmon, for the appellant

Ron Bohm and David Lee, for the respondents

On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated May 9, 2019, with reasons reported at 2019 ONSC 2827.

BROWN J.A.:

OVERVIEW

[1]         At issue on this appeal is the motions judge’s decision that a letter dated July 13, 2018 (“Notice Letter”) satisfied the notice requirement contained in s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”), for 15 class actions commenced in late 2018 and early 2019 against the appellant, Her Majesty the Queen in right of Ontario, Philip Howell, Brian Mills, and 15 Ontario automobile insurers. Howell acted as Superintendent of the Financial Services Commission of Ontario (“FSCO”) from 2009 until 2014; Mills is his successor.

[2]         PACA s. 7(1) states, in part, that “no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose”.[1]

[3]         The 15 actions assert a common allegation against the Crown defendants: FSCO failed to enforce its guidelines concerning the Harmonized Sales Tax (“HST”) against all automobile insurers in Ontario in respect of the payment of benefits set out in the Statutory Accident Benefits Schedule (“SABS”) made under the Insurance Act, R.S.O. 1990, c. I.8. The actions allege that the FSCO guidelines directed Ontario automobile insurers to pay applicable HST in addition to the cost of the goods and/or services provided under the SABS and not to include HST within the calculation of any cap on benefits under the SABS. The actions contend that insurers consistently breached those guidelines and FSCO was aware of that wrongful conduct but took no steps to stop it.

[21]      Finally, I do not accept the appellant’s submission that the form of notice accepted by the motions judge resulted in significant prejudice to the appellant. The affidavit of Ms. Zuyin Wang filed by the appellant in support of its motion did not identify any prejudice resulting from the form of the notice. Nor did the November 7, 2018 letter from Crown counsel that responded to service of the first statements of claim. Indeed, it is difficult to conceive how the Crown’s ability to gather sufficient information to permit it to resolve a complaint could be prejudiced when the complaint against the Crown asserted in the Notice Letter was the same as those pleaded in the 15 actions.

[22]      Accordingly, given the breadth of the complaint described in the Notice Letter and its clear signal that class action litigation would follow in respect of that broad complaint, I see no reason to interfere with the motions judge’s dismissal of the Crown’s motion on the basis that the Notice Letter (i) satisfied the legislative purpose of PACA s. 7(1), (ii) set out a specific grievance, (iii) identified the class members impacted by the impugned conduct, (iv) threatened litigation, and (v) was not an impediment to the resolution of the claim against FSCO, thereby complying with PACA s. 7(1): at paras. 13 and 17-19.

DISPOSITION

[23]      For the reasons set out above, I would dismiss the appeal. 
 
BACKGROUND:
 
Elliot v. Aviva Insurance et al, 2019 ONSC 2827 (CanLII), <http://canlii.ca/t/j06d6 
 

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

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

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

 
___________________________________________
Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (CanLII), <http://canlii.ca/t/j2j7q  
 

[1]               In June 2016, Brian Hedley made a claim to his insurer, Aviva Insurance Company of Canada, for statutory benefits under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule”) as outlined in two treatment and assessment plans.  Aviva denied the plans and requested an insurer’s examination.  Mr. Hedley refused to attend the insurer’s examination and commenced an application before the License Appeal Tribunal.

[2]               Section 38(8) of the Schedule provides that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations the insurer agrees to pay for, and those it does not agree to pay for.  In the case of the latter, the insurer is required to provide in the notice “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”

[3]               If the insurer requires an insurer’s examination, the insurer “shall give” the insured person a notice setting out “the medical and any other reasons for the examination” and whether the attendance of the insured person is required at the examination (s. 44(5) of the Schedule).

[4]               At the Tribunal, Adjudicator Gregory Flude agreed with Aviva that its reasons denying the plans and requesting the insurer’s examination complied with ss. 38(8) and 44(5) of the Schedule. In approving the reasons offered by Aviva, Adjudicator Flude expanded upon or interpreted the reasons offered by Aviva by reference to the “medical documentation on file.”  Mr. Hedley requested a reconsideration of the Tribunal’s decision.  

[5]               On reconsideration, Executive Chair Linda Lamoureux decided in favour of Mr. Hedley.  She cancelled the Tribunal’s decision on the basis that it involved a “significant error of law” because Aviva’s reasons for denying the treatment plans submitted by Mr. Hedley and for requesting that Mr. Hedley attend an insurer’s examination were inadequate.

[6]               Aviva appeals the Reconsideration Decision and asks that it be set aside and the Tribunal’s decision be reinstated. 

[7]               For the following reasons, the appeal is dismissed.

[14]           In the Reconsideration Decision, Executive Chair Lamoureux relied on her own decision in 16-003316/AABS v. Peel Mutual Insurance Company, [2013] O.F.S.C.D. No. 211, with regard to the evaluation of the sufficiency of notice under ss. 38(8) and 44(5) of the Schedule:

In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files.  It would be naïve or impractical or to expect them to articulate something resembling a medical opinion.  Likewise, their reasons should not be measured by the inch or held to a standard of perfection.  Moreover, reasonable minds may disagree about the content of an insured’s file.  Those allowances should be made.  If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).

[15]           The Executive Chair found that Aviva’s denial letter fell short of this mark.  She observed that both reasons proffered raise obvious questions concerning what medical information was relied on by Aviva to make its determination, and what, specifically, was the inconsistency between that information and the recommended benefits.  She also found that the benefits included in the second treatment and assessment plan, together with the assistive devices and part of the therapy included in the first plan, were entirely consistent with Mr. Hedley’s diagnosis of low back pain.

[16]           Executive Chair Lamoureux also observed that to provide content and give effect to a justification not provided in the “sparse reasons” that Aviva offered, as Adjudicator Flude had done, would “run counter to the Schedule’s consumer protection objective.”   

[17]           In the view of Executive Chair Lamoureux, the Adjudicator’s interpretation of Aviva’s obligation under s. 38(8) would “essentially allow an insurer to justify any denial of a plan by merely stating that it had reviewed the plan in light of the medical documentation on file, and without providing any meaningful detail, assert that the plan was not appropriate given the insured’s condition.”  She concluded that the Adjudicator’s interpretation constituted a “significant error of law” and granted the request for reconsideration.     

January 21, 2020

New Guest Blog:
Effects of Insurer Examinations on Medical Assessments for Treatment by Ruth Volpato RN (Ret)
 
In preface, I am a Registered Nurse (retired) having dedicated the last 20 years of my career in working with motor vehicle accident victims with the goal of reaching maximum recovery and rehabilitation.  My sole focus has been on the welfare of my clients.  Those of you in the rehabilitation industry are aware of the numerous insurer examinations our clients have been faced with over the years.  At this point in time, I am unaware if the insurance model has changed thus decreasing these examinations; however my article is to address the multitude of clients having gone before.  If this pertains to current situations, it is hopeful this article will be of value.   http://www.fairassociation.ca/the-blog/
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Man injured by flying ice issues plea: clear off your car completely

On Thursday, Burger and his son were already west of Renfrew on a section of the highway that is two lanes wide. Burger, driving his Honda Pilot, has just passed Storyland Road. There were no vehicles in front of then, but there was a string of vehicles headed in their direction. 
 
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Right to Claim Catastrophic Attendant Care and Housekeeping Benefits Returned

Insurers have been put on notice — accident victims who have been deemed catastrophically impaired more than 104 weeks after their car accident can no longer be barred from claiming catastrophic attendant care benefits based on the expiration of the two year limitation period set out in section 18 of the Statutory Accident Benefits Schedule – Accidents On or After November 1, 1996, O. Reg. 403/96 (SABS)
 
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Caught on camera: Man chases dangerous driver after 911 puts him on hold 

Sam Gill says he had a knot in his stomach as he watched a driver in front of him barrelling down a busy road in Mississauga, Ont., weaving in and out of oncoming traffic, jumping a curb and hitting a snowbank so hard the impact knocked his headlight off, though that didn’t stop him. 
 
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Ontario Looking for Innovative Ideas on How to Help Reduce Poverty

TORONTO — The Ontario government wants to hear from people across the province about what they want to see in the next poverty reduction strategy. 
 
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Nagra v. Oganesyan, 2020 ONSC 315 (CanLII), <http://canlii.ca/t/j4q4x
  
[2]               This action arises from a motor vehicle accident on January 25, 2013. Twelve vehicles were involved. There are at least seven defendants and eight third parties.
[3]               Mr. Nagra issued the Statement of Claim on December 22, 2014. Mr. Price was not served with the Statement of Claim until June 17, 2019.

POSITION OF THE PARTIES

[4]               Mr. Nagra seeks to extend the deadline to set this action down for trial: see Rule 48.14(5)(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Price submits that the action should be dismissed for delay because Mr. Nagra has no acceptable explanation for the delay. Mr. Price also submits that he has been prejudiced by the delay as follows:

1)        He has lost the ability to conduct surveillance to determine the impact of the accident on Mr. Nagra’s ability to work and perform his recreational and non-recreational activities;
2)        His ability to conduct surveillance to determine the accuracy of Mr. Nagra’s claim has been compromised;
3)        His ability to obtain a timely vocational/medical assessment has been compromised; and
4)        The delay has led to diminished recollection as memories of witnesses fade.
[5]               Mr. Nagra explained that the delay was due to his decision to first pursue a WSIB claim. A resolution under the WSIB claim could have rendered the action against Mr. Price unnecessary. He further explained that he attempted to serve Mr. Price and was unable to do so. Mr. Nagra also submits that there has been no non-compensable prejudice because counsel for Mr. Price has been aware of the action since June 2018 when he received a copy of the Statement of Claim. He submits that counsel for Mr. Price has had an opportunity to investigate the case due to his defence in several companion actions that arise from the same accident. Discoveries have also not been conducted.______________________________________________________

Kanani v. Economical Insurance, 2019 ONSC 7201 (CanLII), <http://canlii.ca/t/j4q4q  

[3]            The principal claims in this action against Economical are;                       

 i.     the breach of its duty to act in utmost good faith.                       
 ii.     retroactive and ongoing Attendant Care at the maximum level for two attendant caregivers.                     
 iii.     statutory interest at a rate of 2% per month, compounded monthly under Bill 164 from the accident date.
[4]            The Plaintiffs state that Economical have simply claimed that the reserve information is not relevant as to how it assessed or failed to assess the Kanani claims or how it reported those claims, and therefore it is submitted that is the issue in these motions.  The Plaintiffs essentially submit that this is a rare, exceptional and extraordinary action in which the internal activities and operations of Economical have been impugned requiring full disclosure of the complete internal file, including reserves.  The Plaintiffs position is that Economical had sufficient information to be able to determine that the benefit should have been assessed and paid, therefore production and review of the reserves would indicate exactly what Economical considered with respect to the present and future benefit for attendant care needs, and that Economical’s duty to act in utmost good faith extends through the litigation.
[16]         An insurance company is required to maintain reserves for all claims which have an open status.  This is because it takes some time for the company to determine the full indemnity amount under the policy and related expense amounts for the claim, then pay out and close the claim.  While the claim is open, the company is required to set aside funds to allow them to make future payments should claims be advanced.  Besides reserves for each claim, the company also carries a ‘bulk provision’ for reserves for the following reasons;(a)   at any point in time, there are some claims which have already occurred but have not been reported and therefore do not have any reserves on them;(b)   there will be some claims where the final payments will be greater than the reserves created for them, based on additional information on these claims as well as unforeseen developments, like health complications from an injury; or(c)   some closed claims will also re-open based on new information that comes to light.
[17]         Reserves are maintained to allow for payment should claims be advanced.  Each adjuster reserves an active case because they are required to under the Insurance Act.  This applies to all claims.  Both the individual claim reserve and the ‘bulk provision’ are required to be included within the ‘liability’ section of the insurer’s balance sheet to provide an accurate reflection of the financial condition of the company, as required by the aforementioned legislation.  Reserves are estimated amounts assigned by an insurer to account for the total possible future payout of a person’s claims arising from an accident.  Reserves include not only benefits but legal costs, claim expenses and reinsurance conditions.  Reserve amounts are a required prudential mechanism to set aside funds to meet future obligations.  Claim reserves are an estimate of the ultimate future cost of resolution and administration of claims.
[18]         Following receipt of notification of the loss, initial reserves are posted when an adjuster is assigned to a claim for lines of payment for which immediate funds may be required, pending receipt of further information.  Once further information is received, additional reserves are posted and additional reserve lines are opened as required.  Within 30 days of the preliminary reserves being posted, reserve lines are opened/increased for medical benefits, rehabilitation benefits, attendant care benefits, cost of examinations, and damaged clothing.
 [23]         The Plaintiffs rely on the statement that “reserving and adjusting are intertwined.”  Reserves are created and affected by the ongoing assessment adjustment of the claim, as new information comes in.  However, the adjustment of the claim is not affected by the presence or quantum of reserves.  This is specifically acknowledged where the Plaintiffs state:  “How you adjudicate the case affects the reserve, what information you get.”  However, that reserves and adjusting may be “intertwined” does not necessarily make reserves relevant to this litigation.  Similarly, the Plaintiffs concede this is not a case where the setting of reserves is alleged to have influenced the conduct of Economical.
[24]         Economical submits that the allegations demonstrate the potential for misuses of reserves information.  Reserves are not the equivalent to entitlement.  Entitlement is established under the SABS by submission of a claim for attendant care and adjustment of that claim to determine entitlement.  The Plaintiffs confuse reserves and entitlement and seek to eradicate the separate spheres between adjusting and reserves, it is argued.
 

January 16, 2020

Solutions to relieve pressure of rising auto insurance costs

The solutions to rising auto insurance rates – such as those which most recently hit Albertans – aren’t simple ones, but there are fixes that governments and insurers could implement to bring some relief to consumers, according to an auto expert. 
 
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MAG releases new flowcharts to illustrate latest court reforms

The guide illustrates simplified procedure under rule 76, ordinary pretrial procedure, filing for motions and applications, expert evidence, mandatory mediations and case management. It also includes a detailed breakdown of different paths to dismiss an action for delay. 
 
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Insured died before signing settlement agreement — so is it enforceable?

After a dispute stemming from a 2015 car accident, the late Gerald Riggs participated in a Dec. 17, 2018 mediation. A settlement was reached, with instructions sent to participants on Dec. 19, dictating that the tort insurer would pay the all-inclusive sum of $300,000 and that Intact would pay an all-inclusive sum of $350,000 – plus payment of attendant care, incurred treatment plans, physio, and the rehab support worker’s invoices –until January 31, 2019. 
 
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No ‘Boiler Plate’ Responses Accepted in Insurer Denials – Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318

Mr. Hedley was injured in a car accident in March 2014. He sustained lower back injuries and applied to Aviva pursuant to the SABs for benefits. Aviva approved chiropractic and functional abilities assessment. As a result of the assessment and OT submitted a treatment and assessment plan which recommended assistive devices. Aviva responded withing 10 days that it was “unable to determine whether the recommendations are reasonably required for the injuries you received in the motor vehicle accident’ and advised it scheduled an IE. 
 
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Your client’s vehicle is damaged by a massive pothole. Is it covered and is the city liable?

You’re on your way to work minding your own business when all of a sudden you drive over a massive pothole and damage your car. Does your auto insurance cover it and can the city be held liable? 
 
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Howard Levitt: I wouldn’t recommend my profession to anyone anymore. Here’s why

Over my career, I have seen vocations rise and fall. At one time senior executives with lucrative stock option plans were Canada’s highest paid employees, but government regulation put paid to that. Investment bankers had the rooster’s walk for many years, but that profession is dramatically hollowed out. There are far fewer of them and, at every level, they earn much less than they once did. Fresh MBAs volunteer for entry-level positions that once paid six figures. 
 
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What do Chronic Pain, Fibromyalgia and Depression all have in common?

A lot of the clients at Goldfinger Injury Lawyers suffer from Chronic Pain, Fibromyalgia and Depression. It’s not easy because nobody seems to understand these conditions. More on that later. 
 
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The medications that change who we are

They’ve been linked to road rage, pathological gambling, and complicated acts of fraud. Some make us less neurotic, and others may even shape our social relationships. It turns out many ordinary medications don’t just affect our bodies – they affect our brains. Why? And should there be warnings on packets?

https://www.bbc.com/future/article/20200108-the-medications-that-change-who-we-are?ocid=ww.social.link.twitter

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ODSP 2020 Wednesday, January 22 at 7pm

If your loved one with a disability requires financial help with basic living expenses, including medical expenses, they could be eligible for the Ontario Disability Support Program (ODSP). Understanding how this program works and how to maintain it alongside other financial resources will ensure your loved one continues to receive this support for as long as he or she may need it need it.