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June 24, 2020

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

  The Financial Services Regulatory Authority (FSRA) today announced that Ontario auto insurers reported that Ontario consumers are receiving $685M in total premium relief in the form of premium deferrals, rebates, refunds, rate reductions and other means during the COVID-19 emergency 

Statutory Accident Benefits for Car Accident Victims in a COVID-19 World

In the new norm of COVID-19, insurance companies need to be more flexible than ever in how they communicate with their customers. They also need to allow virtual care or treatment when it is a reasonable alternative for their insureds 

Canada should abolish the civil jury service

Canada’s already beleaguered court system has suffered from delays and a lack of modernization for decades, but now with the new constraints imposed by coronavirus restrictions, the courts are facing an even greater obstacle. Civil juries are ill-equipped to weather social distancing, and should no longer be maintained as part of the Canadian court system. 

Obtaining the Name of the Person who Doored You

In the past, the Toronto Police Services Board refused to release the identities of drivers who door cyclists by stating that it is considered an “incident” as opposed to a reportable motor vehicle accident and by relying on the personal information exemption under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990. 

Toronto cop part of organized crime group involved in vicious tow truck wars, chief says

A corrupt Toronto police officer was part of a criminal organization that used stolen encrypted police radios to unfairly profit in southern Ontario’s lucrative and dangerous tow truck wars, police said Monday. 

COVID-19 Raises Profile of Virtual Care

Starting in late February, Sunnybrook doctors saw the COVID-19 patients through video conferencing. The appointments covered care strategies and offered peace of mind. Sunnybrook also sent the patients mini oxygen saturation monitors for home use. 

What we can learn from chronic pain narratives

Percolating through the rich fabric of life among one in five Canadians today is a silent epidemic capable of bringing lives to a screeching halt. Even if patients can miraculously endure the long wait-list times to see a physician, they are often met with a disappointing lack of symptom relief. In the meantime, 6 million Canadians grapple with the wrath of chronic pain tearing their lives apart, with more than half suffering from depression and nearly 35 per cent contemplating suicide. 
Stay safe, Stay healthy
As the days lengthen, grow warmer and we are drawn more outside, I can’t help but to continue to celebrate the beginning of the season that welcomes longer days and excessive sunshine. COVID is having a profound impact on all of us especially crash survivors that are recovering as medical treatments have been put on hold as well as our social interaction. The last few months have been extremely challenging for so many and connecting with crash survivors is crucial more than ever.
Peter B. Cozzi Professional Corporation v. Szot, 2020 ONCA 397 (CanLII), <http://canlii.ca/t/j89x1  
[52]      The principles governing the granting of a charging order under s. 34(1) were summarized by this court in Weenan v. Biadi, 2018 ONCA 288, 141 O.R. (3d) 276, at paras. 14-15:

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

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

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

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

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

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

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

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

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

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

D.           DISPOSITION

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

June 17, 2020 + submissions to MAG re Civil Juries

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

What we know so far about submissions on the Jury issue

OTLA Submission to MAG on Civil Juries

Rastin Letter to MAG re civil juries June 15, 2020

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

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

Globe and Mail article https://www.theglobeandmail.com/canada/article-legal-community-given-until-june-15-to-provide-input-as-ontario/

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

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

We continue to update at:  http://www.fairassociation.ca/2020/06/what-we-know-so-far-about-submissions-on-the-jury-issue/ 


REMINDER: A Survey of Access to Rehabilitation Insurance Coverage for Adults with Brain Injury Caused by Motor Vehicle Collision  

Please note the deadline to complete the survey is Friday, June 19th, 2020.

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

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



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

Insurance companies have provided $685 million in relief to Ontario drivers using their cars less during the COVID-19 pandemic, but the province’s finance minister says more should be done.
Insurance industry employees have come forward describing incidents of being “muscled” by body shops, police say, as a joint-forces operation into the tow-truck wars across the Greater Toronto Area made eight more arrests.

Insurance regulator explains why it slashed 73% of regulatory guidance

Ontario’s new financial services regulator launched last June with a mission to reduce the regulatory burden for industry players. One year into the job, that’s exactly what the Financial Services Regulatory Authority of Ontario (FSRA) has done.

Discoverability and Tomec Once Again

In an interesting sequence of events following an 2003 accident, the Applicant presented for the 2nd time a claim for ACB upon being deemed a CAT in January 2015. Without referencing the original ACB denial in March 2012, the insurer proceeded to request two IEs in May and June of 2016 and agreed that ACB was payable, upon submission of receipts.

Law Society of Ontario alleges dozens of personal injury websites are ‘misleading’

The Law Society of Ontario has alleged that a North York lawyer received client leads through a network of 31 websites apparently belonging to separate putative firms, many of which have domain names suggesting that they are personal injury law firms.

Ontario’s court of appeal ramps back up to 15-20 appeals per week

As courts across the country have struggled to continue operating in light of COVID-19 and the physical distancing required, Canadian Lawyer has surveyed chief justices of courts across Canada on how they are managing the crisis.

Settlement Smarts

To get you ready for this, we’ve created the Settlement Smarts primer to help you prepare and navigate the settlement processes you may encounter during your time as an SRL. This primer contains both personal and strategic tips specific to the process. We hope that it will provide you with a helpful starting point.

BrokerLink: How to lower your car insurance premium in Ontario

In the province of Ontario, every single driver is required to have a current and up-to-date auto insurance policy. This policy must include four mandatory coverages: Liability, Accident Benefits, Direct Compensation and Uninsured Automobile.

OCF Claim Forms

OCF Claim forms can be a big headache. Car accidents litigation should be simple to understand. But in Ontario, it’s far from simple. The forms are intimidating, long, and hard to understand. It’s scary; especially after you’ve been left seriously injured in a motor vehicle accident when you’re at your most vulnerable.


Martin Regg Cohn: Doug Ford says he wants to fight racial injustice. So why is he undermining tribunals that help do just that?

Behind the scenes, behind the bench, the untold story of systemic racism and injustice is of a Progressive Conservative government that is systematically undermining accountability — by dismantling the judicial tribunals that safeguard us against racial discrimination, environmental degradation, social privation and tenants’ rights.

PM announces extension of the Canada Emergency Response Benefit

The Prime Minister, Justin Trudeau, today announced that the government is extending the Canada Emergency Response Benefit (CERB) by eight weeks, to ensure Canadians have the help they need as they transition back to work. This extension will make the benefit available to eligible workers for up to a total of 24 weeks.

Providing virtual care during the COVID-19 pandemic

Many regulatory, public health, and government authorities encourage virtual care—via telephone, video platforms, and so on—as an alternative to face-to-face visits in an effort to limit direct contact as part of the COVID-19 response.

New TBI Report Card Released for Ontario

The report card has been released by The Ontario Neurotrauma Foundation and captures regional and provincial data on 11 metrics of prevention, acute management, rehabilitation and reintegration continuums of care. The latest report uses data from 2017/18. The report is filled with valuable data for health care professionals, therpists and family members of those with serious TBI.

V1301 – A Return to Work Does Not Negate an Attendant Care Benefit

The road to recovery following a motor vehicle accident can be long and hard; the disruption to activity and employment can be significant. For those who suffer severe injuries, a return to work can be extremely challenging. When a person succeeds in such a return to work, it can often be at great cost in terms of physical, emotional and cognitive energy.
V1302 – Psychotherapy Rates: Why is the Debate Ongoing?

In July of 2019, we highlighted the alarming trend whereby accident benefit carriers were imposing reduced rates upon psychotherapists; rather than approving the typically requested rate of $149.61 per hour, as afforded per the Fee Guideline to psychologists and psychological associates, insurers were demonstrating variability in their approach to approvals of psychotherapists. With partial approvals sometimes being rendered at rates as low as $58.19 per hour, we witnessed impact to our clients in that they were challenged to access care within their communities.

What Are Invisible Injuries?

So many injuries don’t come up on a scan or x-ray; they’re not always immediately ‘visible’ and their lack of tangibility make them harder to assess, both from a medical perspective and a claim perspective. But for you, the victim, this lack of visibility doesn’t make them any less real or painful.

June 10, 2020

Why Ontario auto liability coverage should get cheaper

Ontario auto insurers may have a hard time raising rates as much as they were before May 15; a major factor could be a controversial change to the dispute resolution process that took effect four years ago. 

Ontario’s FSRA releases guidance on auto insurance claimants during the pandemic

The Financial Services Regulatory Authority of Ontario (FSRA) has released guidance on how auto insurance claimants for statutory accident benefits (SABs) can expect to be treated by insurers and health service providers during the COVID-19 pandemic. 

Tomec v Economical Mutual Insurance Company, 2019 ONCA 882 (CanLII), leave to appeal to the SCC ref’d 2020 CanLII 37601 (SCC)

In Tomec v Economical Mutual Insurance Company, 2019 ONCA 882, the Ontario Court of Appeal allowed an insured’s appeal from an application for judicial review of a decision of the Licence and Appeal Tribunal to deny enhanced housekeeping and attendant care benefits.  The unanimous panel concluded that the rule of discoverability applied to s. 281.1(1) of the Insurance Act and to s. 51(1) of the old Statutory Accident Benefits Schedule such that the two-year limitation period to dispute benefits could not run before an insured was determined to be catastrophically impaired (CAT). 

Guide to Automobile Accident Benefits Forms

Statutory Accident Benefits (“accident benefits”) are available to those who are injured as a result of the “use or operation of a motor vehicle”. This includes passengers, drivers, cyclists, or those who are injured by motor vehicles as pedestrians. Accident benefits are available regardless of fault and are therefore often referred to as “no-fault” benefits.  

Conducting Virtual Examinations for Discovery

Given the continued suspension of operations of Ontario courts and tribunals,[1] the Advocates’ Society recently issued a guide to Best Practices for Remote Hearings.  As the Ontario Superior Court has recently ordered examinations to be conducted virtually, here are ten important tips for conducting virtual examinations for discovery adapted from the guide. 

Ontario Attorney General seeks input on removing juries from civil trials

In a letter obtained by Law Times, Ontario Attorney General Doug Downey has sought the input of key stakeholders in the legal community about the possibility of removing juries from civil trials to help address additional court backlog resulting from the COVID-19 pandemic. 

Will COVID push more lawyers into retirement?

James Wilber, a legal consultant at Altman Weil, left readers with a foreboding message earlier this year: “Goodbye Boomers, it’s been great to know you.” As a result of the pandemic, wrote 70-year-old Wilber, there could be “a push toward transition and retirement for the oldest lawyers among us.” 

Customers not lauding insurers’ relief measures, but they aren’t shopping around either

The majority of Canadian motorists surveyed are not satisfied with the financial relief measures offered by their insurers, a recently-released Leger Marketing poll indicates. 



Workplace safety tribunal shares best practices for teleconference hearings

The document — which applies to new or ongoing prehearing conferences, applications and hearings conducted via teleconference before the tribunal — seeks to ensure that these proceedings keep progressing amid the COVID-19 pandemic. The tribunal will flexibly adapt this guidance to suit the particular facts of each case and will update it as the situation continues to evolve. 

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

Canada’s P&C insurance industry should follow the example of the banking sector and show a united front in presenting options to clients adversely affected by the COVID-19 pandemic, according to some brokers. 

Crowd forms at sole Service Ontario location open for written driver’s tests

A large crowd of new drivers gathered outside the Service Ontario centre at Toronto’s College Park this morning waiting to write their driver’s license test. 

Ontario’s social assistance regime ‘discriminating’ against structured settlements

Structured settlements are an important option for personal injury claimants in Ontario. Contrary to the more conventional lump sum payment that most personal injury claimants go for, a structure is a financial package, designed to meet a particular plaintiff’s needs through periodic payments, either for a fixed term or for the plaintiff’s life. In recent years, structures have grown increasingly popular among plaintiffs and insurers. 

Feds to send $600 to some Canadians with disabilities

OTTAWA — Canadians with disabilities will be sent a one-time tax-free payment of up to $600, Prime Minister Justin Trudeau announced on Friday, in an effort to help offset the financial pressures of the COVID-19 pandemic. 

Monitoring the CRPD: Your Feedback Matters

The Canadian Human Rights Commission is Canada’s human rights watchdog, with a responsibility to both promote and protect human rights. As a part of that role, the Commission was recently given a new responsibility to monitor the implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in Canada. 

Canadians with lifelong disabilities can lose disability tax credit

Morley, 49, was diagnosed with myalgic encephalomyelitis, commonly known as chronic fatigue syndrome, in 2010. The condition means even the small, routine tasks of everyday living leave him utterly exhausted and in need of prolonged rest, he said. 

Areas of Concern for Disabled People in Accessing Communities of Care During COVID-19

I, Amanda Lin, Student Engagement Facilitator for the School of Disability Studies at Ryerson University, had the pleasure of interviewing Loree Erickson, the current Ethel Louise Armstrong Post-Doctoral Fellow. The following blog post is a summary of the highlights from our hour-long conversation together. 

Telogen Effluvium, aka Stress-Induced Hair Loss

There’s a condition some doctors don’t tell their patients about. It sneaks up on an unsuspecting person.  When you tentatively voice your worry about it, doctors may dismiss you because hair loss isn’t as debilitating as a concussion. Relatives tease you or pretend it’s not happening. Neither reaction makes you feel better as day after day, your hair silently leaves your scalp. You find strands and strands of hair on your pillow, in your sink, on the floor. Your brush waits for that first stroke to fill its bristles up with hair. And no one gives a damn enough about your distress to tell you why. 

Economical Mutual Insurance Company v. Sotira Tomec

The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C66763, 2019 ONCA 882, dated November 8, 2019, is dismissed with costs.  

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

June 3, 2020 + FSRA Guidance on Statutory Accident Benefits (“SABs”) Claims during the COVID-19 Outbreak

FSRA Guidance on Statutory Accident Benefits (“SABs”) Claims during the COVID-19 Outbreak

The purpose of this Guidance is to provide FSRA’s Interpretation of the requirements of subsections 1(9), 3(2)5 and 6(1) of Ontario Regulation 7/00 – Unfair or Deceptive Acts or Practices under the Insurance Act (“UDAP”) in the context of a declared emergency under the Emergency Management and Civil Protection Act related to an outbreak of the communicable COVID-19 coronavirus disease, or where physical distancing or other similar measures to prevent transmission of COVID-19 are required or recommended by the Chief Medical Officer of Health or local Medical Officer of Health1 during or after the declared Emergency (the “Emergency”). These provisions of UDAP relate to the adjustment, settlement and charges for, or payment of, goods and services for an automobile insurance claim, including claims for Statutory Accident Benefits (“SABs”) to which this Guidance applies.  


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

We have been told many times over the past two months that we are living in “unprecedented times.”

Most aspects of our lives have been affected by COVID-19 — from massive layoffs and school closures to the inability to hug our loved ones. As a society, we seem untethered. We feel a little lost and are continually looking for the touchstones in our lives to help us through these murky days.


Report: Only 1 in 4 Canadians say they received pandemic-related auto insurance relief measures

The survey, conducted by rate comparison site InsuranceHotline.com, also found that 64% of respondents said they were not informed of any rate relief. Meanwhile, 12% of respondents said they were not sure they even got an offer from their insurers.

Car Rates are Still Up in Downsview

It is no secret that drivers in the Downsview area have been routinely broadsided by high car insurance rates. Ontario has some of the highest rates in Canada and Downsview is known for having some of the most expensive postal codes for car insurance rates in all of Ontario. That makes our area one of the most expensive places to drive a car in the country. With COVID-19 shutting down the economy, many people expected some financial relief. The relief efforts has been uneven.

LawPRO loses out on potential $87.8M tax windfall in Federal Court of Appeal decision

LawPRO has failed again in its bid to reap a multimillion-dollar tax windfall by capitalizing on an exemption that was originally geared to corporate entities owned by municipalities or Indigenous self-governing bodies.

The fine print behind million dollar and multi million dollar personal injury claims in Ontario

There are few moments in life where a person receives a million dollar lump sum of money. Here are but a few which come to mind.

Six-figure pain and suffering judgement against Wal-Mart Canada attracts appeal court scrutiny

A $225,000 award in a lawsuit against Wal-Mart Canada, arising from the accidental spraying of a fire extinguisher by a worker, could be headed to the Supreme Court of Canada.

Precarity in a Pandemic

As the world struggles in the midst of the COVID-19 Pandemic, deep structural and economic flaws in how we care for the most oppressed in society are becoming increasing difficult to ignore. For decades, activists living with the effects of these deep systemic issues have rallied, protested, and raised the flag to anyone who would listen.

May 27, 2020

Canadians are driving far less during COVID-19, which means fewer accidents. So why aren’t insurance companies offering across-the-board relief?

Though Canadians are staying home and driving less during the COVID-19 pandemic, many auto insurance companies haven’t adjusted their rates to reflect this — which means bigger profits. 

Insurers’ Excessive Profits Are a 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 says. The report, written by York University Professor Fred Lazar for the Ontario Trial Lawyers Association (OTLA), concluded that the province’s auto insurers have accumulated more than $5 billion over the last five years in pre-tax income. In 2016 alone, the report found that they took in a total of $1.5 billion, or 60 per cent higher profits than in 2011. 

This ‘cardinal sin’ will increase your client’s auto insurance bill

Young male motorists can expect to pay more than women for auto coverage but the decisions your clients make have an even greater bearing on their insurance bill, the co-founder of LowestRates.ca suggests. 

Financial help lacking as COVID-19 shuts courts and kills legal work, lawyers say

TORONTO – The shutdown of much of the country’s court system due to the COVID-19 pandemic is taking a financial toll on many lawyers, and law societies are not doing enough to help, members of the profession say. 



List of rules potentially affected by reforms to civil justice system


Opinion: How changes forced by pandemic are reducing litigation costs

It has become common to say that we’re living through an unprecedented time. We’re also living in a time of great change that has been forced upon us. Some of these changes have been for the better — and have not only ensured cases move along, but also provide significant cost savings. 

Lawsuits and claims for accident benefits

As an Ontario driver, if you are injured in a car crash, your auto insurance company should provide medical, rehabilitation, and lost wage benefits. If the car crash was not your fault, you could also sue the at-fault driver for compensation. In Ontario, a lawsuit and a claim for benefits are meant to provide an injured person with adequate compensation for injuries and losses suffered in a car crash.  

Why it might get easier for plaintiffs to fund their lawsuits

With a recent Supreme Court of Canada decision involving third-party litigation funding coming on top of the economic disruption caused by the COVID-19 pandemic, Canadian courts are likely to see a spike some types of lawsuits, suggests the head of an international litigation financing provider. 

Tribunal Watch Ontario – Statement of Concern

Report Of The Ontario Human Rights Review 2012


A Survey of Access to Rehabilitation Insurance Coverage for Adults with Brain Injury Caused by Motor Vehicle Collision

This survey will help us learn about the experiences of people with brain injury in collecting insurance benefits for rehabilitation and therapy after a motor vehicle collision. 

ODSP payouts should match CERB, say advocates 

Many on the Ontario Disability Support Program say they’re struggling to survive amid the pandemic, and as Faiza Amin reports, advocates are calling for the program’s payouts to match those of the federal CERB program. 

ODSP recipients struggling to survive pandemic 

Ontarians who survive on disability payments say the monthly payouts were never much to live on. Now the challenges they were already experiencing prior to COVID-19 have been amplified. Faiza Amin reports. 

Additional ODSP help available during pandemic

Ontario has made additional funding available for those currently receiving the assistance and are facing additional costs related to the COVID-19 outbreak. 
Lloyd v. Bush, 2020 ONSC 2892 (CanLII), <http://canlii.ca/t/j7rvk  

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

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

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

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

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

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

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

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

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

c.      Future care – $408,866;

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

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

f.      Past income loss – $50,292.50.

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

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

a.      Municipal Defendants – 50%;

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

c.      Leslie Lloyd – 17%.

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

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

May 20, 2020

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

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

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

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

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

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

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

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

ODSP and OW recipients feel forgotten by province: MPP Lindo

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

Sudbury column: Social assistance recipients left behind 

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

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

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

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

May 13, 2020

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

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

Tips for Accident Victims Living through COVID Lockdowns in Ontario

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

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

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

The ABC’s of a Personal Injury Lawsuit

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

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

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

What COVID means for plaintiffs

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

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


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

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

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

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

The lessons of cost management in a $5 million case

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

Ontario Releases Plan to Resume Scheduled Surgeries and Procedures

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

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

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

Taking action to improve disability benefits in Ontario

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

Audiovisual Entrainment or AVE, a Neuroplastic Treatment

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

Economic and Budget Outlook, Spring 2020

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

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

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

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

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

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


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

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

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

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

2.     State Farm relied on two unreliable reports

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

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

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

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

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

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

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


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

May 6, 2020

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

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

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

Ep. 34 – The pandemic’s deadly ripple effect

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

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


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

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

Virtual care is booming amid COVID-19

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

Assistive Devices Program has Resumed Processing Applications

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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


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

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

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

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

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

April 29, 2020

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

How Ottawa pressed the provinces not to claw back pandemic benefits

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

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

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

Echelon Insurance introduces financial relief options for auto insurance customers

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

Ontario regulator extends deadline for insurance agent license renewal

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

Auto insurers at coronavirus crossroads

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

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

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

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

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

How courts can step up to save drowning civil justice system

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

What is my Personal Injury Case Worth?

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

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

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

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


Report: Social Assistance Changes in Ontario, 2019

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

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

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

Raise ODSP OW Shelter and Basic Needs Allowances Now

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

Area Senator joins growing chorus calling for minimum basic income

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

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

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



April 22, 2020

COVID-19 and Occupational Therapy  


COVID-19 (Coronavirus) Information for Physiotherapists 


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

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

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

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

About social assistance in Ontario 

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

Apply for emergency assistance

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

Financial help for Canadians affected by COVID-19

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

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

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

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

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

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

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

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

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

Ontario lifts roadblock preventing auto insurance companies from offering rebates

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

Ontario permits auto insurance companies to provide rebates amid pandemic

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

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

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

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

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

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

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

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

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

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

(a) The Governing Principles

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

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

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

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

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

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

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

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

(b) The Principles Applied

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) The Governing Principles

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

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

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

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

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

a.    explain the process;

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

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

d.    provide information about the law and evidentiary requirements;

e.    modify the traditional order of taking evidence; and

f.     question witnesses.

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

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

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

(6)         The Threshold Decision

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


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

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

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

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

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

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

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

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

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