[26]           Through the guise of seeking leave to serve and file a Jury Notice after the close of pleadings, I find Economical is effectively seeking to vary or avoid the consequences of the consent Judgment.  While the evidence of alleged inadvertence is questionable and would, on its own, support the dismissal of Economical’s motion, I also find the presence of actual prejudice to Intact if Economical was granted leave to serve and file a Jury Notice.  Intact participated in lengthy settlement negotiations which culminated in a consent Judgment.  There are very limited grounds upon which a consent Judgment can be set aside.  As held by Justice Allen in Davis v. Cooper 2010 ONSC 4320 (CanLII), 2010 ONSC 4320 (S.C.J.), a consent order is a contract that can only be set aside or varied by subsequent consent or upon the grounds of common mistake, misrepresentation, fraud or any other ground which could invalidate a contract.

https://www.canlii.org/en/on/onsc/doc/2016/2016onsc1746/2016onsc1746.html

In addition to the way State Farm handled new medical documentation, Mr. Nader also took issue with the way State Farm handled the termination of his benefits, and how it dealt with the follow-up information that he had not returned to work. In this respect, I agree that State Farm acted unreasonably, and Mr. Nader is entitled to a special award.

Dr. Armitage’s opinion that Mr. Nader could return to work was premised on the availability of a graduated return to work program, and the provision of active rehabilitation and other supports as may be reasonably required to facilitate the attempt. However, neither Dr. Armitage nor State Farm knew whether graduated work was available, and the OCF-9 provided no guidance or direction to Mr. Nader with respect to what was expected of him in terms of investigating, arranging or participating in a graduated work return. More importantly, when advised that Mr. Nader had not returned to work, State Farm took no steps to ascertain the reasons for his non-return to work, help determine the availability of graduated work, and either help facilitate a graduated return to work (if available) or proceed with a vocational assessment to explore other employment options, including possible upgrading. Instead, State Farm simply maintained its denial. [33] In these ways, State Farm acted unreasonably, and its withholding of income replacement benefits from this point became subject to a special award.

The leading case on the proper approach to the calculation of special awards is Liberty Mutual Insurance Company and Persofsky.[34] The calculation begins by first determining the amount of the benefits unreasonably withheld, plus applicable interest. The maximum permissible special award can then be determined by “adding the additional interest component in s. 282(10) two per cent per month, compounded monthly. To be clear, this calculation includes interest on the unpaid SABS interest. The maximum special award is 50 per cent of this total.” With at least an approximation of the maximum amount in mind, a lump sum is to be awarded, guided by principles of rationality and proportionality.

The principal amount of the income replacement benefits that are subject to the special award are approximately $18,000, exclusive of interest. I do not find it necessary to calculate the maximum permissible special award with any degree of precision. It is safe to say that, with interest (and special award interest on all amounts), the maximum award would be substantially higher than the more modest amount of $5,000.00 that I find appropriate to award in this case.

https://www5.fsco.gov.on.ca/AD/4831

[1]               This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendant under rule 2.1.01(6).

[2]               An identical claim against the defendant was dismissed by order of Faieta J. on August 26, 2015.  Mr. Justice Faieta found that the plaintiff had not complied with the order of Stinson J. dated November 21, 2014 despite being provided with a final opportunity to do so.  It is an abuse of process to bring a second lawsuit to continue to litigate the same issues a second time.  Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 (CanLII)at para. 5.

[3]               The plaintiff should be invited to make submissions as to why this action should not be dismissed for being frivolous, vexatious, or an abuse of process.

[4]               On reviewing the material forwarded by the registrar, the court makes the following order:

2. Pursuant to rule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiff in Form 2.1A that the court is considering making an order under rule 2.1.01 dismissing the action;
3. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiff’s action is stayed pursuant to s.106of the Courts of Justice Act, R.S.O. 1990, c.C.43[1];
4. The registrar shall accept no further filings in this action excepting only the plaintiff’s written submissions if delivered in accordance with rule 2.1.01(3);
5. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email if it has their email addresses.

http://canlii.ca/t/gnpt5

http://canlii.ca/t/gm9zq

http://canlii.ca/t/glsct

http://canlii.ca/t/ghcmh

Aviva sent two undercover investigators to the Wellness Centres of Ontario. Over the course of seven months, Aviva’s undercover investigators pretended they were in accidents and weren’t injured, but were looking to make money off the accident somehow.

http://www.ctvnews.ca/w5/undercover-video-provides-rare-glimpse-into-possible-auto-insurance-fraud-1.2812297

http://toronto.ctvnews.ca/undercover-investigation-captures-alleged-car-insurance-fraud-1.2814132

http://www.newswire.ca/news-releases/aviva-canada-surveillance-video-and-investigation-lead-to-charges-against-toronto-legal-and-health-care-professionals-571893421.html

Canadian National Insurance Crime Services (CANATICS) and Insurance Bureau of Canada (IBC) are joining forces in the war on organized insurance crime, hoping to advance efforts with a mix of timely early warnings and investigation expertise.

http://www.canadianunderwriter.ca/news/canatics-ibc-taking-important-step-forward-in-fight-against-organized-insurance-crime/1004073484/

Canada’s justice system hinges on the belief that we are all entitled to a fair hearing — but with five-day civil trials costing, on average, $56,439 last year, it’s clear that the working poor and the middle class are at a disadvantage.

http://www.cbc.ca/news/canada/lawyer-afford-1.3479701

An Assessment of Attendant Care Needs (Form 1) endorsed 24 hour supervision in the monthly amount of $3,300.00. The insurer’s responding Form 1 concurred with the level of supervision on the basis that such supervision was ordinarily required for 6-year old children, not on the basis of any accident injuries. The claimant’s representative failed to produce proof of incurred expenses.

http://www.millerthomson.com/en/blog/ontario-insurance-litigation-blog

FSCO has updated policy and claim forms as part of the implementation of auto insurance reforms.

http://www.fsco.gov.on.ca/en/auto/autobulletins/Pages/default.aspx

Burlington man still embroiled in battle for compensation six years after suffering multiple injuries in fall off train car.

http://www.thestar.com/news/gta/2016/03/12/delay-denial-and-debt-mark-wsib-struggle-for-man-who-lost-his-memory-in-a-workplace-accident.html