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  • FAIR – supporting auto accident victims through advocacy and education

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December 5, 2019

Auditor General releases the 2019 Annual Report http://www.auditor.on.ca/

Volume 1 Chapter 3 Section 3.09 Ontario Disability Support Program 


Volume 3 Ministry of the Attorney General Court Operations Chapter 2

Judges and Ontario government ‘consistently hampered’ audit of justice system delays, auditor general says

“A main takeaway from the access-to-information issues we experienced was that Ontario’s court operations need to be more transparent and accountable to the taxpayers who fund it,” Lysyk wrote in her report. 

Nearly 70,000 patients injured in Ontario’s hospitals each year: Auditor

TORONTO — Nearly 70,000 patients are injured while receiving care in Ontario’s hospitals each year, the province’s auditor general said Wednesday, calling for immediate government action to help reduce that number. 

College of Physicians and Surgeons continuity of care policy puts patients at risk

The new policy raises disturbing questions about the autonomy of the College of Physicians and its ability to fulfil its public interest mandate. The CPSO should commission an external expert to determine if it compromised its mandate by permitting undue influence from the OMA. 

Ontario chiropractors governing body in feud with college for allowing chiropractors to make false medical claims

The College of Chiropractors of Ontario — which oversees the profession — is being accused by chiropractic educational experts of endangering the public by allowing some chiropractors to make claims about the treatment of cancer, mental illness, ADHD and autism. Members of the CCO’s own executive have offered such treatments or speak at conferences espousing them. 
Lambert v. Maracle, 2019 ONSC 7003 (CanLII), <http://canlii.ca/t/j3r32  

[2]                    There are three issues in this case:

a.      Whether the defendants, Michael Maracle, Jamie Walker, Ashley Kelsey, and Lianne Barbara Furlong, Vice President, Legal and Chief Litigation Counsel, from Aviva Insurance Company of Canada, should be compelled to attend for examinations for discovery on December 12, 2019, or such date as may be ordered by the court;

b.      Whether the appointment set for examinations for discovery of the plaintiffs on October 1, 2019 should be struck and whether the certificate of non-attendance of the plaintiffs on that date should be struck; and

c.      Whether Aviva should be compelled to produce an appropriate and further and better affidavit of documents, including detailed schedules, by a date to be ordered by the court. 


[3]                    The plaintiffs’ motion is granted.

[4]                    The affidavit of documents sworn by Aviva on July 27, 2017 and served by Aviva on June 17, 2019 was deficient and not in compliance with the Rules. As a result of Aviva failing to serve an appropriate affidavit of documents, Aviva has not preserved for itself priority in conducting examinations for discovery first. Service of an appropriate affidavit of documents is an absolute requirement in order to preserve priority in conducting examinations for discovery.

[5]                    An order shall issue that the defendants, Michael Maracle, Jamie Walker, Ashley Kelsey, and Lianne Barbara Furlong (from Aviva) shall be compelled to attend for examinations for discovery. As Aviva is not available on December 12, 2019, the examinations for discovery of all parties shall take place within the approximate four-month period between February 17, 2020 and June 19, 2020 on consecutive days. The plaintiffs shall examine the defendants first to be followed immediately thereafter by the examination of all the plaintiffs by the defendant Aviva.

[6]                    The examinations for discovery of all of the plaintiffs and all the defendants shall take place in Kingston on consecutive days within the specified time period, unless otherwise specifically and unequivocally agreed to in writing by counsel. Once the dates are determined, the plaintiffs and Aviva shall serve their appropriate notices of examinations in accordance with the above order of directions and dates selected. If counsel are unable to agree upon the dates for the examinations for discovery by December 31, 2019, I may be spoken to and I will set the dates for the examinations of discovery to proceed, upon being requested to do so by either counsel.

[7]                    The plaintiffs are entitled to conduct their examinations for discovery of all the defendants first, in the order to be determined by the plaintiffs, such examinations to be held before the defendant Aviva examines the plaintiffs. The examinations of the plaintiffs shall be conducted in the order to be determined by the defendants.

[8]                    The notice of examination of the plaintiffs returnable October 1, 2019 in Kingston is struck and is of no force and effect. The certificate of non-attendance of the plaintiffs for examinations for discovery obtained by Aviva for October 1, 2019 is struck and is of no force and effect.

[9]                    The defendant Aviva shall be compelled to serve an appropriate and further and better affidavit of documents, including detailed schedules on or before January 15, 2020 in accordance with the Rules.

[10]               Costs are reserved. If counsel are unable to agree on costs by December 31, 2019, counsel shall obtain a date for argument of the issue of costs before me from the Belleville trial coordinator between January 20, 2020 and February 14, 2020 to argue the issue of costs on the following terms:

(a)   Both counsel shall serve and file their costs outline and any materials to be relied upon no later than 5 days before the hearing date as set by the court.

(b)   The argument of the issue of costs shall be conducted by telephone conference held on the record.

(c)   If there is non-compliance by any party, the issue of costs will be determined based upon the material filed as at the date set for the hearing of the argument on costs.


Sarno v. Murphy, 2019 ONSC 7008 (CanLII), <http://canlii.ca/t/j3r3d  

[1]               This was a three-and-a-half-week trial where the plaintiff was awarded $36,000 in damages by the jury.  Given that this is less than the vanishing deductible amount, I dismissed the action after the verdict.  I entertained both written and oral costs submissions in this matter.  

[15]           Therefore, when I consider all the aforementioned factors and applicable caselaw, it occurs to me that the plaintiff would reasonably expect to pay $150,000 all inclusive at the end of trial.  Accordingly, I hereby order that amount in costs.

[16]           I note that the plaintiff is a woman of limited means and that her litigation insurance will only cover $93,000 of this award.  To suggest that the plaintiff can easily come up with this money ignores the obvious. Therefore, in the exercise of my discretion and given the principle of fairness, the plaintiff has 12 months to pay.  

December 3, 2019

Ontario Drivers Are Not Well Protected Financially in a Crash – Only 8% of people have purchased additional auto insurance coverage

We conducted out third Annual Survey on Ontario Auto Insurance this fall. It reveals that Ontario drivers are becoming slightly more aware of optional coverage, but they continue to be insufficiently protected particularly when it comes to medical benefits and income replacement benefits. 

Do Insurance Companies Ever Lose Money on Auto Insurance?

Just like any business, insurance companies would like to make as much money as possible, but the fact is that auto insurance in Ontario is heavily regulated by the government, and insurance companies are only allowed to make a certain level of profit. If they make too much, the government forces them to cut their rates. 

Understanding the Criteria for Admissibility of a Surveillance Operation as Evidence

Last October 3, the Court of Appeal of Québec issued an important decision in the CSSS Vallée-de-la-Gatineau Workers’ Union1 case, concerning the admissibility as evidence of a videotape obtained as part of a surveillance operation. In this case, the Court of Appeal nullified an arbitration award that had previously refused to admit into evidence a videotape showing an employee engaged in activities that were incompatible with her state of disability.  
Early Thursday morning, a 77-year-old woman was run down while crossing Islington Avenue, in Toronto’s northwest, by a driver who didn’t stop to help her. According to police, neither did at least one subsequent motorist, who swerved around the fatally injured senior and kept going. 

Province failing most vulnerable after legal aid ‘gutted,’ lawyer says

An Ottawa defence lawyer says some the city’s most vulnerable people are feeling the effects of a court system that’s been “gutted” by a massive cut to Legal Aid Ontario’s [LAO] finances. 

Half of homeless people have experienced traumatic brain injury: study

Roughly half of people who are homeless or in unstable housing have experienced a traumatic brain injuryin their lifetime, a new study has found, with potentially severe consequences for their mental and physical health. 

Insurance Brokers Negligence Cases in Ontario

Buying insurance is more complicated than buying a loaf of bread or a new pair of shoes. For starters, neither bread nor shoes are meant to last a lifetime, nor do they come with a fine print policy or instruction manual explaining what they’re all about. There’s no fine print when it comes to bread or shoes (other than perhaps the list of ingredients contained in the bread). 

Plastic surgeon vows to fight potential class-action lawsuit alleging he filmed patients without consent

A Toronto plastic surgeon who could face a class-action lawsuit over allegations he breached the privacy rights of patients by recording them without their consent using surveillance cameras at his clinic said the suit is without merit and that he intends to vigorously defend himself against the allegations. 
Purdue Pharma is seeking an injunction to temporarily halt all litigation against the company in Canada, as it seeks to settle thousands of lawsuits in the United States over a deadly opioid epidemic. 

Patient complaints are up. Trust is down. What’s next?

John Jefferson isn’t the type of guy to back down from a challenge. So, when Jefferson’s care team told him they couldn’t save his foot after a motorcycle accident ripped out his talus, a major ankle bone, he refused to accept the possibility of amputation. Jefferson recalls telling his wife, “This is bullshit. There has to be a better way.” 

November 28, 2019

Resolving a problem with your lawyer or paralegal https://www.legalline.ca/legal-answers/resolving-a-problem-with-your-lawyer/

LSO Rules of Professional Conduct Chapter 3 Relationship to Clients https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-3

When can my lawyer dump me as a client https://legalblogs.findlaw.ca/uncommon-law/when-can-my-lawyer-dump-me-as-a-client-510/


SABS Priority Disputes 101: Help!

It’s a Friday afternoon before a long weekend, of course, and you’ve just received a potential SABS priority dispute. A new Application for Accident Benefits arrives on your desk and the claimant alleges that she was in your insured’s vehicle at the time of the accident. Not surprisingly, you have no record of her under your insured’s policy. 

SABS Priority Disputes 101: Reflection on Deflection

In our first article in the Priority Dispute Series, I provided an overview of Ontario’s accident benefit priority dispute scheme and the process necessary to pursue and dispute priority. 

LAT throws out claim after occupational therapist disparages the insurer

Ontario’s Licence Appeal Tribunal (LAT) has ruled in favour of The Co-operators after completely dismissing an occupational therapist’s report that disparaged the insurer and provided opinions outside the scope of medical practice. 
B.S. vs. The Co-operators General Insurance Company, 2019 CanLII 110078 (ON LAT), <http://canlii.ca/t/j3gn8

Aviva reveals shock statistics on car accidents in Canada

Aviva Canada’s new survey has revealed that half of Canadian drivers have no idea what to do immediately following an accident. 

Lack of Knowledge About Auto Insurance Continues to Hurt Ontario DriversA annual survey on Ontario Auto Insurance reveals that Ontario drivers are becoming slightly more aware of optional coverage, but drivers continue to be insufficiently protected particularly when it comes to medical benefits and income replacement benefits.

Good-faith obligations survive bankruptcy of insured
The Ontario Superior Court of Justice recently confirmed in Re McEwen (2019 ONSC 5593) that an insurer’s duty of good faith is not extinguished on the bankruptcy of the insured. 
Doctor facing criminal charges, professional discipline
An Ottawa doctor who specializes in pain treatment is scheduled to go to trial next year to face charges that include assault and uttering death threats, charges he denies. 

Ontario (College of Physicians and Surgeons of Ontario) v. Bélanger, 2018 ONCPSD 18 (CanLII), <http://canlii.ca/t/hrh6r


Major shakeup in regulation of health professionals proposed in B.C. to improve patient safety

Patients in British Columbia could soon know about every single action taken by professional colleges in response to complaints about health-care workers, rather than just a select few. 

November 26, 2019

How does mediation work in personal injury cases?

Mediation is mandatory in any civil case commenced in Toronto, Ottawa or Windsor. There are mandatory mediation requirements under the Rules of Civil Procedure.

Ontario’s judicial integrity at risk with Doug Ford, Doug Downey scheme

Every politician dreams of leaving a lasting legacy. Ontario Attorney-General Ian Scott is one of the few to actually do so in an era where the role of the attorney general actually meant something more than being the premier’s lackey.

Ontario’s judicial appointments must maintain political independence, says former AG Bryant

“Judicial appointments are not supposed to be democratic. They’re supposed to be independent of the other branches of the state,” says Bryant, now executive director of the Canadian Civil Liberties Association. “The system is made up of more than just a political branch. The whole point of having a judiciary is to hold [the premier] in check in the event that he does something that is tyrannical or oppressive.” 

Limitation Periods in LTD Cases: As Clear As Mud?

Earlier this year, the Divisional Court released its unanimous decision in Western Life Assurance Company v. Penttila, which determined that the limitation period in LTD cases does not start to run until the date upon which it is “legally appropriate to commence legal proceedings to seek payment of benefits that the insurer refused to pay”.

Fatal crashes will rise by 21 per cent if province proceeds with highway speed limit increase: experts

Fatal car crashes would likely rise by around 20 per cent on 400-series highways if the provincial government moved forward with its plan to raise speed limits from 100 kilometres per hour to 110 kilometres per hour.

Lorraine Explains: Flying wheels are negligence, not accidents

Will we ever get serious about the impact of vehicle owner negligence? A long weekend drive home from the cottage last May – a trip so many of us make, so many times – had tragic results for an Ontario man and his wife.



Disabled man waits months for insurance company to replace scooter

It took six months, several calls and emails from a lawyer, and a CBC inquiry for an insurance company to finally respond to a claim from a disabled Nova Scotia man to replace his scooter, his only means of independence and transportation.

B.C. Attorney General won’t appeal court’s ruling on expert cap in motor vehicle accident cases

The B.C. government will not appeal a decision by the province’s Supreme Court which struck down changes to the rules of court which placed a limit on adversarial, expert witnesses in motor vehicle accident cases.

Windy, humid weather can make chronic pain feel worse, study finds

It may not just be in your head — chronic pain could feel worse on windy, humid days, research suggests.

Published in October, researchers at the University of Manchester in the U.K., along with funding from Versus Arthritis, found people with long-term health conditions were 20 per cent more likely to feel pain on humid and windy days.


‘Now I have a lovely Scottish brogue’ — The science behind foreign accent syndrome

Sharon Campbell-Rayment had a fall from a horse that knocked her out cold. Her recovery from that injury was complete with one small exception. For the past decade, ever since her accident, she’s spoken with a Scottish accent.

November 21, 2019

How many of Ontario’s injured car crash survivors have to take their insurer to a tribunal hearing (LAT) to get access to recovery benefits? 

Lots. Too many. Which companies have more than their market share of claims in the LAT AABS system? All part of these Stats. The summary tells us that average # of days between application and decision has reached an epic 381 days – far more than promised with a new and streamlined hearings system! Note there are 2 pages – see the bottom of the excel sheet. How does your insurer stack up with cases at the LAT?

LAT AABS Applications (March 2019)


Ontario government revamps simplified procedure to reduce delays for 2020

The Government of Ontario says it will double the monetary threshold in 2020 for civil claims that can use the simplified procedure process, one of several updates aimed at lowering legal costs and reducing delays.

Police chief proposes new Vision Zero enforcement team amid spike in collisions

Amid growing public pressure to crack down on dangerous drivers, Toronto police Chief Mark Saunders is pushing for the creation of a dedicated traffic enforcement team.

Surveillance and social media in personal injury cases

Although the Ontario Court of Appeal found that surveillance evidence excluded at a personal injury trial was not so significant as to make a difference as to damages, it was a “hollow verdict” for the defence in the case with some lessons about social media as evidence.

Self-regulation: the end of an era? Lawyer discipline and the role of law societies

Anne Rempel has not had a positive experience with self-regulation. She has made two complaints to a Canadian law society, but the process left her feeling the concerns were not entirely addressed by the “black box” system of lawyer discipline. 

Ontario Court of Appeal clarifies test under “anti-SLAPP” legislation

On August 30, 2018, the Court of Appeal for Ontario released its long-awaited decisions in a series of appeals[1] addressing the limits of the province’s “anti-SLAPP” legislation. This was the first appellate interpretation of s. 137.1 of the Courts of Justice Act (CJA), which provides a preliminary, pretrial procedure for a defendant to seek dismissal of a claim where the litigation arises out of a defendant’s expression on a matter of public interest.

‘That’s a joke’: Ontario man reacts as driver faces $2,000 fine in near-fatal collision

Benjamin Schenk’s life was changed forever in May as he drove along Highway 400 south of Barrie.He and his wife Bella De Bartolo were on their way to a family cottage for the Victoria Day long weekend when a tire flew off a vehicle travelling in the opposite direction and crashed into their car.

Crash Not Accident: Better Road-Safety Reporting Could Save Lives, Show Researchers

Planes do not slam into the ground accidentally, they crash. However, such language is not always used for road smashes: they are often described as “accidents,” as though no one was at fault. Campaign groups have been lobbying for neutral road-incident vocabulary for many years—“crash, not accident” is a common mantra—and now new research has demonstrated that thanks to the leading language used in media reporting, blame for road smashes is often placed on victims.

Fact Sheet: Social Assistance Update

It has been almost a year since the Ontario government announced a number of proposed changes to our social assistance programs on Nov. 22, 2018. Many of these changes have been cancelled or postponed as a result of community resistance. This fact sheet explains where we are today.

Ontario Launches Free Routine Dental Care for Low-Income Seniors

TORONTO — As part of its comprehensive plan to end hallway health care, Ontario is investing in programs that keep seniors healthy in their communities longer.

BC attorney general considers legislation to protect ICBC profits from government

British Columbia attorney general David Eby is considering another plan to help keep the troubled Insurance Corporation of BC (ICBC) afloat – this time, with legislation that would keep the provincial government’s hands off the insurer.

‘I thought it was BS’: Alberta drivers facing higher insurance costs

Some Alberta drivers are facing increases in car insurance premiums next year, following the provincial government’s decision to lift a five per cent cap on rates.

November 19, 2019

FAIR Submission to: Draft 2020-21 FSRA Priorities and Budget ID 2019-007

The message received by the public is that the FSRA is so fully stacked with insurers that there will be a singular message coming only from insurers and only in their interests to the Regulator. This does not ‘empower’ consumers who have effectively been silenced by an utter lack of inclusion.


Insurers’ medical examiner gets his day at Supreme Court of Canada

The Supreme Court of Canada is considering whether or not to send an insurance medical examiner’s libel case to trial, based on comments made by a personal injury lawyer about the examiner’s work in a closed forum that got leaked to the general public.

Class action proceeds against pain clinic

The Ontario Superior Court reaffirmed that infectious outbreaks are well suited to class actions, as well as the use of subclasses, when it approved a certification amendment and de-certification motion in a medical infectious outbreak case.
Background info at the bottom of this post: http://www.fairassociation.ca/2019/11/september-5-2019/

Self-regulation: the end of an era? Lawyer discipline and the role of law societies

Anne Rempel has not had a positive experience with self-regulation. She has made two complaints to a Canadian law society, but the process left her feeling the concerns were not entirely addressed by the “black box” system of lawyer discipline. 

Rastin cautiously optimistic about simplified procedure changes

A series of amendments to Rule 76, which governs actions proceeding under the simplified procedure, will take effect Jan. 1, 2020, including the doubling of the monetary jurisdiction for simplified actions from $100,000 to $200,000, the imposition of a hard five-day cap on trial length, and the elimination of juries, he says.

Distracted driving

First it was seat belts, then it was impaired driving, now, distracted driving. There are many forms of distracted driving that can arise in motor vehicle accident litigation. During the examination for discovery process there will be questions posed by lawyers on both sides about whose fault the accident was. Experienced trial lawyers, such as members of OTLA, have particular and special experience in determining this question known as ‘liability’.


New Data on Disability in Canada, 2017


Ontario Government Changes To Disability Payments Should Be Reconsidered: Advocates

TORONTO — Advocates are calling on the Ontario government to reconsider its plan to narrow eligibility requirements for provincial disability payments and potentially cut hundreds of millions of dollars from the social services ministry in future years. 


Welfare in Canada

Households that qualify for basic social assistance payments also qualify for other financial support

Online Concussion Support Group

The Online Concussion Support Group welcomes you to a safe place where you can share your frustrations and struggles and connect with others who have had similar experiences.


Assessor’s medical opinion evidence, libel, and public interest case

Webcast of the Supreme Court of Canada Hearing on 2019-11-12 38374 Maia Bent, et al. v. Howard Platnick, et al. https://www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=38374&id=2019/2019-11-12–38374-38376&date=2019-11-12

For portion to do withBent/Platnick scroll to 1:39:09

More detail re SCC leave to appeal: Maia Bent, et al. v. Howard Platnick, et al. (Ontario) (Civil) (By Leave) 38374


Factums: https://www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=38374

Maia Bent, et al. v. Howard Platnick, et al., 2019 CanLII 35199 (SCC)

Platnick v. Bent, 2018 ONCA 851 (CanLII)

Platnick v. Bent, 2018 ONCA 687 (CanLII)

Platnick v Bent, 2017 ONSC 585 (CanLII)

Platnick v. Bent – Endorsement (1) ONSC 7340 20161201

Platnick v. Bent – Endorsement Re Preliminary Motion (2) ONSC 7474 20161201

Statement of Claim – FILED – 3334-15 – September 3

The original media story: http://www.insurancebusiness.ca/ca/news/auto/medical-files-routinely-altered-to-suit-insurers-claims-fair-186692.aspx?p=1

The latest stories in the media:





Letter to MPPs regarding medical file manipulations Dec 23 2014

more info see: http://www.fairassociation.ca/the-independent-medical-examination-imeie/  and   http://www.fairassociation.ca/ime-providers-adverse-comments/


LAT AABS stats – which insurers are using the hearings system the most?

How many of Ontario’s injured car crash survivors have to take their insurer to a tribunal hearing (LAT) to get access to recovery benefits? 

Lots. Too many. Which companies have more than their market share of claims in the LAT AABS system? All part of these Stats. The summary tells us that average # of days between application and decision has reached an epic 381 days – far more than promised with a new and streamlined hearings system! Note there are 2 pages – see the bottom of the excel sheet. How does your insurer stack up with cases at the LAT?

LAT AABS Applications (March 2019) 

IBC TOP 20 PRIVATE P&C INSURERS by direct written premiums, 2018 http://assets.ibc.ca/Documents/Facts%20Book/Facts_Book/2019/IBC-2019-Facts-Section-one.pdf

For more info on market share see:  https://www.fsco.gov.on.ca//en/search/pages/default.aspx?k=auto%20insurer%20market%20share%202018&u=http%3A%2F%2Fwww.fsco.gov.on.ca%2Fen&ss=0

November 14, 2019

Webcast of the Supreme Court of Canada Hearing on 2019-11-12 38374 Maia Bent, et al. v. Howard Platnick, et al.

For portion to do with Bent/Platnick scroll to 1:39:09
FAIR is mentioned as an advocacy group in the closing comments at 3:47:06.
A long list of intervenors because it’s about more than quality of IMEs or medical report manipulations. When SCC decides on this Ontario anti-slapp case it will affect all Canadians and their ability to speak out Truth to Power in the public interest.

Reminder: Draft Priorities and Budget (see pages 17-25 on auto insurance) 

Comments due by November 18, 2019 

The Rules, They Are A Changin…

January 1, 2020 will usher in a new era in Ontario litigation practice.   On October 23, 2019, the Ontario Government amended the Rules of Civil Procedure so that cases involving damages of $200,000 or less must be brought under Rule 76, which mandates and provides for a Simplified Procedure.  These changes will be effective January 1, 2020 

Ontario Making It Easier, Faster for People to Resolve Claims

Ontario is making it easier for families, businesses and individuals to resolve their legal issues quickly and affordably by expanding access to the Simplified Procedure process in civil court. 

Optional Accident Benefits Confirmation Form

This week a friend of mine emailed me this document. The document is titled “Optional Accident Benefits Confirmation Form”. It was sent to my friend by her insurance company. She told me that she did not understand half of what it meant. 

Two-year window to dispute auto claim denial not a ‘hard limitation,’ court rules

In Tomec v. Economical Mutual Insurance Company, released Nov. 8, the Court of Appeal for Ontario overturned a 2018 Divisional Court Ruling in favour of Economical, due in large part to a 2019 Supreme Court of Canada ruling over a price-fixing lawsuit. 

Auto insurance premiums going up in 2020 for many Alberta drivers

In a bulletin sent to brokers, and obtained by Global News, large home and auto insurer Aviva Canada said there would be across-the-board hikes of 15 per cent starting January 2020. It also confirmed to Global News that number could go up depending on driving and claims history. 

BC lawyers push back against ‘plans’ for full no-fault auto insurance

Trial lawyers are concerned that British Columbia Attorney General David Eby could be working toward implementing complete no-fault auto insurance in the province – despite his comments suggesting otherwise. 

How Stress Can Shrink Your Brain and 6 Ways to Keep It from Happening

“Whatever doesn’t kill you makes you stronger,” goes the phrase. And somehow, we all actually believe it.

We humblebrag that we’re stressed about work, our families, our finances, and how hard and time-consuming it is to plow through everything on our vast and daily to-do lists.

November 12, 2019

Discoverability a Rule of Construction for Limitations 

Limitations in personal injury litigation can be contentious, especially since the nature of the damages suffered by a plaintiff may not necessarily be known at the initial time of loss. This is especially true in claims that include chronic pain, as these types of medical conditions are not diagnosed until several weeks after an injury. 

V1201 – The Court of Appeal’s Review of Limitations and Discoverability for Accident Benefits Claims

In March of 2018, we reflected on the troubling decision of S.T. and Economical Mutual Insurance Company (LAT 16-003034/AABS). This case involved terminations of attendant care benefit and housekeeping and home maintenance benefit. The terminations had been issued at the 104-week anniversary of the accident date and were based on the fact that there was no ongoing coverage in the absence of a confirmed catastrophic impairment. Economical issued written notice describing how to dispute the terminations and warning of the two-year limitation for pursuing such disputes. 

Intact’s take on the impact of no-fault auto insurance

No-fault insurance is not a silver bullet that is going to solve the auto liability problem, but it can be helpful to insurers, provided that the coverage is not too generous, suggests the head of Canada’s largest property and casualty insurer. 

Thoughts About Self-Regulation in the Public Interest 

It is no secret that that self-regulation can be compromised by the tension between the public interest and the interest of the regulated profession[i]. This tension leads some to say that self-regulation is inherently flawed and should come to an end. 

Rastin Review of Greig v. Desjardins, 2019, BCSC 1758: An assessment of damages for breach of good faith by disability insurance company

In a recent case decided at the Supreme Court of British Columbia, Greig v. Desjardins, 2019, BCSC 1758, the court decided whether disability insurance companies should be held accountable when they take unreasonable positions that are contrary to their obligations of good faith, and result in financial and emotional disaster for plaintiffs. 

Toronto lawyer pushing province to bring in ‘Textalyzers’ to catch texting drivers

A Toronto lawyer and prominent road safety advocate is pushing Ontario to implement a controversial technology that would allow police to test cellphones at the side of the road to see if drivers are using them behind the wheel. 

Researchers develop cars that can tell if you are texting behind the wheel (or below it)

AI is a hot topic globally. The future of AI and the future of humanity are closely tied. New facial recognition software can identify you, accurately guess your age and describe what you are wearing. It can even give your walk pattern a ‘signature’. Deep learning and AI are moving at leaps and bounds. It should come then as no surprise that a University of Waterloo research team has developed new software that can detect when people are texting and driving. 

What May Qualify as a Catastrophic Injury?

While many Ontario accidents only result in minor injuries, some can result in serious injuries that affect the rest of a victim’s life. Catastrophic injuries can cause significant physical, emotional and financial suffering. To further complicate matters, recent changes in Ontario law have made it more difficult for catastrophic injury victims to obtain compensation. 

Kingston man waits years for surgery to relieve painful condition

Bill Bagyan has been catheterized more than a dozen times since 2014 to relieve the pain from urethral stricture disease, which involves scarring in or around the urethra. Since being diagnosed, he’s had multiple surgeries scheduled to fix the problem — but each time, they’ve been cancelled. (Jean Delisle/CBC) 
Not the words we’d expect to describe an Ontario court.
Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 DATE: 20191108 DOCKET: C66763  
Absurd Result 
[46] Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the Page: 16 legislative enactment”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418, at para. 27. 
[47] Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed any benefits until she obtained CAT status in 2015, she would not be caught by the limitation period: Machaj v. RBC General Insurance Company, 2016 ONCA 257, at para. 6. Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits. 
[48] This outcome is absurd. There is no principled reason for barring the appellant’s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late. 
[49] The impossible position a hard limitation places the appellant is best illustrated by having regard to Economical’s counsel’s oral submissions. Counsel denied that the appellant was put in a lose-lose situation. She argued that the appellant could have applied to the LAT before the expiry of the limitation period for a declaration that, in the future, she would be entitled to extended benefits if she were subsequently found to be CAT. Page: 17 
[50] I start by noting that courts must be cognizant of the significant disparity in resources between large insurance companies and their insureds, who do not have unlimited resources to bring multiple proceedings, including prophylactic claims based on a future contingency: see MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 88, leave to appeal refused, [2016] S.C.C.A. No. 39. 
[51] In any event, if such a proceeding were commenced for a declaration, it is difficult to imagine how it could succeed. At best, the appellant could only lead speculative evidence that she might be CAT at some unknown point in the future. Faced with that evidentiary record, the LAT would likely decline to make the requested declaration.  
[52] In my view, the hard limitation period puts the appellant in an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result. To choose it, as the LAT did, is unreasonable.