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Expert evidence faces greater scrutiny by the courts
The detailed attention and careful ruling given early in December by Justice Robert Stack of the Supreme Court of Newfoundland and Labrador to the admissibility of an expert’s report highlights a year in which issues surrounding expert evidence took centre stage in Canadian courts.
Unidentified Automobile Coverage and Relief from Forfeiture in the Face of Non-Compliance with Reporting Requirements
The Court of Appeal, in the case of Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4 (CanLII), has reminded us of the law with respect to unidentified automobile insurance coverage in Ontario, particularly as it pertains to an insured’s obligations with respect to same
Retroactive Accident Benefits – Are They Available?
If you or someone dear to you was injured in a car, truck, ATV, snowmobile or motorcycle accident in Ontario, and an Application for Accident Benefits was not filed immediately with the insurance company: are retroactive benefits available?
http://oatleyvigmond.com/
Litigation protection products get more elaborate
Ontario courts are in the process of considering the security and treatment of “after- the-event” legal cost indemnities and insurance. These products allow litigants to protect themselves from the risk of a cost order, giving them the security to proceed to trial. They can also be provided as a blanket policy for a law firm that needs protection for its disbursements. While still relatively new in Ontario, a view is emerging that there is a duty on lawyers to advise clients of the availability of this protection.
http://www.lawtimesnews.com/
Law society zeroes in on lawyer advertising
Mercer says the rules used to be quite clear — no legal advertising at all — but adds that changed to address the public’s right to know what services they have available to them. The question he and his committee will have to address is how far has the pendulum swung and how to balance the public’s right of access to information against overzealous or unprofessional advertising.
http://www.lawtimesnews.com/
Proposed Revised Rules of Practice and Procedure for the Licence Appeal Tribunal December 17, 2015
Subject to public feedback and comments received, these rules will be adopted by LAT on April 1, 2016. This will coincide with the anticipated “transition date” when LAT will begin having jurisdiction over certain automobile insurance disputes in relation to the Statutory Accidents Benefits Schedule (a regulation under the Insurance Act).
The draft regulations are open for public comment until January 23, 2016. http://www.sse.gov.on.ca/lat/english/Documents/Rules%20of%20Practice/Proposed%20LATRules%20English%2017December2015.htm
10.1 EXPERT WITNESS—GENERAL
For the purpose of these Rules, an expert witness is a person who is qualified to provide professional, scientific, or technical information and opinion based on special knowledge through education, training or experience in respect of the matters on which he or she will testify.
Commentary
This provision is identical to current LAT Rule 6.4..
10.2 EXPERT WITNESSES (IDENTIFICATION AND DISCLOSURE)
A party who intends to rely on or refer to the evidence of an expert witness shall provide every other party with the following information in writing:
(a) The name of the expert witness;
(b) A signed statement from the expert, in the Tribunal’s required form, acknowledging his or her duty to:
(i) provide opinion evidence that is fair, objective, and non-partisan;
(ii) provide opinion evidence that is related to matters within his/her area of expertise;
(iii) provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue.
(c) The qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert;
(d) A report that sets out the expert’s conclusions and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal;
(e) Where the written report exceeds 12 pages, excluding photographs, a summary stating the facts and issues that are admitted and those that are in dispute, and the expert’s findings and conclusions; and
(f) Where that party intends to rely on or refer to the written report or the witness statement at the hearing, a copy of that report or witness statement signed by the expert witness.
Commentary
This provision is based on the current LAT Rule 6.5. Subsection (c) refers only to a “report” rather than a “witness statement or written report” on an expert’s conclusions.
A more substantive change is the addition of subsection (b). Subsection (b) is adopted from the current rules of Health Professionals Appeal and Review Board /Health Services Appeal and Review Board. The new subsection is designed to respond to Recommendation #18 set out in the Hon. Douglas Cunningham’s Ontario Automobile Insurance Dispute Resolution System Review Final Report (“Cunningham Report”).
10.3 EXPERT WITNESSES (DISCLOSURE TIMELINES)
The disclosure required by Rule 10.2 shall be made:
(a) By the party who filed the notice of appeal, at least 30 days before the hearing;
(b) By any other party at least 20 days before the hearing; or
(c) As ordered by the Tribunal.
Commentary
Identical to LAT Rule 6.6.
10.4 EXPERT WITNESSES—CHALLENGES TO QUALIFICATIONS, REPORTS
A party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal
Commentary
The wording to the current LAT Rule 6.8 provides that LAT requires notice about a challenge to an expert five days in advance. Under the revised rules, it is being proposed that 10 days’ notice will be required.
The book that exposes how the insurance system is set up to deny legitimate claimants
Updated and revised version of the book insurers don’t want you to read: “So You Think You’re Covered! The Insurance Industry Rip-Off” – new info on WSIB, claim denials, insurance assessment centres and insurer-hired medical experts
The updated version of my insurance expose, is out in a week. A whole new section (120 pages), with substantiated documentation and proof, has been added exposing how auto, accident and health insurers and the WSIB, with the Ontario government’s tacit approval, are set up to deny legitimate claimants and to get them to give up on their claim. Although the book still helps claimants through the process and provides guidance and advice, including on how to find a good lawyer, its purpose is to make the public aware of the fight they will face if in a serious accident. Insurers are more likely to pay out on “nuisance” or small fraud claims than pay for benefits for the seriously injured. Go to deniedbenefitclaims.com for more info on this new version of the book.
Jokelee Vanderkop
Disputed Ontario auto claim over denial notice could reach Supreme Court of Canada
Allstate Insurance Company of Canada is applying, to the Supreme Court of Canada, for leave to appeal a ruling arising from a notice denying benefits to an Ontario auto claimant. Court records indicate that Allstate essentially contends that the two-year limitation period in Ontario started when the denial of benefits notice was sent to a claimant, not when the claimant received a copy of a neurologist’s report on which that denial of benefits was based.
Truck turns right from the left lane, hits car: who is at fault?
If the car was already occupying the right lane and the tractor trailer turned into it, then the trucker is entirely at fault, as per fault determination rule 10(4). The long vehicle is allowed, under Section 141(9) HTA, to make its right turn from the left lane — but only when safe to do so.