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

News and Views

UPDATED -Is it fair that taxpayers are funding CMPA to defend doctors but not patients when medical harm is done?

The CMPA, a non profit organization, uses our tax dollars to pay lawyers to defend doctors accused of medically harming patients and this results in preventing all opportunity to ‘learn from their mistakes’.

When car crash survivors complain about the poor quality of their insurer medical exams and reports Ontario’s doctors can make use of CMPA funds to protect them from accountability while Ontario’s patients are expected to pay for their own legal representation. This failure to reign in doctors and improve the patient care is leading to poorer outcomes and access to recovery resources and it leads to individuals becoming dependent on social supports when they can’t get what they need.

According to Teri McGrath @Teri4112 recently seen on W-5 https://www.youtube.com/watch?v=9Z35oDSnZ7g, “Our tax dollars, $520,000,000.00+++ is needed to help patients/families who have been harmed rather than CMPA lawyers who use “a scorched-earth policy which is a military strategy that aims to destroy anything that might be useful to the enemy.”

UPDATE from Teri McGrath, September 21/21:

Tim Mitchell, who did a one man protest at the CMPA office in Ottawa last January is going to go ahead with the Oct. 6, 2021 protest 11 – 2 pm at: CMPA office (875 Carling Ave., Ottawa). He will have a few posters ready if anyone wants to join him.

For anyone who wants to protest but can’t make it to Ottawa, it has been suggested that you do your own protest locally at the provincial Minister of Health office/legislative buildings (he/she determines the amount of the rebate) on the same day, Oct 6. Addresses attached. No need to get super organized, just show up with family and friends.

Attached is a pamphlet you can use to hand out. I suggest you keep the placards simple saying Defund The Canadian Medical Protective Association. And if you are concerned about push back from your doctor, go incognito and wear a mask, hat and sunglasses. Also bring your wheelchairs, walkers and canes. Contact your local news media and let them know what is happening.

As we know, actions speak louder than words. So this is an ideal opportunity to respectfully let the Ministers and CMPA know that patient abuse has got to stop. – Teri McGrath

CMPA facts tri-fold pamphlet blue

Addresses for provincial Min of Health offices

You can get involved by sending a letter to your provincial auditor about the harm when our tax dollars are used to unfairly protect one party over another:

template Letter to Prov AG about CMPA taxpayer funded protection for Drs and not patients.

https://www.cmpa-acpm.ca/en/about

https://www.cmpa-acpm.ca/en/membership/fees-and-payment

What we know so far on submissions to Fraud and Abuse consultation from Minister of Finance office

[CLOSED] Proposed Fraud and Abuse Strategy for the Auto Insurance Sector

In the current auto insurance sector, “insurance fraud and abuse” is neither defined in legislation nor regulation, nor is there an accurate quantification in the size and scope of fraud and abuse. Past governments, regulators and industry have attempted different approaches to identify and measure fraud and abuse. As a result, the industry has taken individualized approaches for managing fraud and abuse, which has created further inconsistencies. https://www.ontariocanada.com/registry/view.do?postingId=37747&language=en and https://www.ontariocanada.com/registry/showAttachment.do?postingId=37747&attachmentId=49356

RESPONSES so far:

FAIR submission to Proposed Fraud and Abuse Strategy for the Auto Insurance Sector 21-MOF010

FSRA Consumer Advisory Panel (CAP) Fraud & Abuse Consultation Submission

Ontario Rehabilitation Alliance Submission to the Ministry of Finance Fraud and Abuse Consultation

Ontario Psychological Association (OPA) Submission to Fraud and Abuse Consultation

OTLA MOF Submission – Proposed Fraud and Abuse Strategy – July 12 2021

The Canadian Life and Health Insurance Association (CLHIA) Submission to the ON Ministry of Finance and FSRA

Ongoing consultations related to Ontario auto insurance

From the Minister of Finance office:

Proposed Fraud and Abuse Strategy for the Auto Insurance Sector- DUE: July 12, 2021.The Ministry of Finance (MOF) and Financial Services Regulatory Authority of Ontario (FSRA) are consulting on a Fraud and Abuse Strategy (F&A Strategy)

https://www.ontariocanada.com/registry/view.do?postingId=37747&language=en

***

Recent consultations (now closed)

From the Financial Services Regulatory Authority:

What we know so far about submissions on the Jury issue

FAIR submission to MAG Consult on Civil Juries June 15 2020

OTLA Submission to MAG on Civil Juries

Rastin Letter to MAG re civil juries June 15, 2020

Access to Justice Group Elimination of Civil Juries

Patrick Brown, McLeish Orlando LLP Submission May 29 2020 re changes to jury system and covid

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

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

Ontario considers scrapping civil jury trials to deal with courts backlog  https://nationalpost.com/pmn/news-pmn/canada-news-pmn/ontario-considers-scrapping-civil-jury-trials-to-deal-with-courts-backlog

The use of credit reports in Ontario’s car accident injury claims and what PIPEDA said

The Personal Insurance Co. Privacy Breach Class Action

This proposed breach of privacy class action is brought in Federal Court on behalf of all persons resident in Canada who made insurance claims under their automobile insurance policies with The Personal Insurance Company between January 18, 2012 and February 8, 2018, and who had their credit score information accessed by The Personal or its agents. http://waddellphillips.ca/class-actions/the-personal-privacy-class-action/

FAIR response to Brian Mills June 6 2017 re use of credit reports in claims

Letter from FSCO regarding PIPEDA and use of credit reports in injury claims

FAIR letter to Brian Mills April 28 2017 re use of credit reports in claims

The PIPEDA report http://www.fairassociation.ca/wp-content/uploads/2017/03/Office-of-Privacy-Commissioner-of-Canada-report-re-use-of-credit-scores-in-auto-claims-handling.compressed.pdf

From the Office of the Privacy Commissioner of Canada (PIPEDA) http://www.fairassociation.ca/wp-content/uploads/2017/03/Letter-from-Office-of-Privacy-Commissioner-of-Canada-re-use-of-credit-information-in-auto-insurance-claims.pdf

What the federal privacy watchdog did after an insurer pried into crash victim’s credit rating/National Post http://news.nationalpost.com/news/canada/insurer-violated-crash-victims-rights-by-accessing-his-credit-score-federal-watchdog-rules

Calgary interview on 770 Newstalk with Rhona DesRoches about use of personal information and credit reports in claims adjusting to air on Monday, March 3, 2017 http://www.newstalk770.com/

Breach of Privacy: “Psychological Battery” and ‘intrusion upon seclusion’ http://www.litigate.com/breach-of-privacy-psychological-battery

Petition for Inquiry into Medical Evidence in our courts

Link to: Inquiry into Medical Evidence petition

FAIR has put together a paper version of the petition calling for a Public Inquiry into the medical evidence used in our courts and administrative tribunals. It is the same as the one we have asked you to sign online.

The Ontario Legislature ONLY accepts ORIGINAL petitions, on paper, with ‘hand signed’ signatures. There are strict rules for petitions so NDP MPP Jagmeet Singh’s office has generously agreed to receive the paper petition in his office and present it at Queen’s Park.

If you or a loved one were injured in an auto accident, at work or elsewhere wouldn’t you want an honest, unbiased and qualified medical opinion/report of your injuries? That’s just not happening in Ontario for injured and disabled individuals who make a claim for benefits through their private or public insurers. What if it was your fault that something happens to someone else? You’d want them to have the best chance at recovery wouldn’t you?

Please print, sign and circulate the petition because quality and qualified medical evidence shouldn’t be something we need – it should be something we already have because there is no real justice without it.

Make a copy and mail the ORIGINAL copies to: MPP Jagmeet Singh, Room 172 Main Legislative Building, Queen’s Park 111 Wellesley St. Toronto, ON M7A 1A5

Thanks for being part of the collective voice needed for change!

Other On-line petition: https://www.change.org/p/the-legislative-assembly-of-ontario-support-a-public-inquiry-into-medical-evidence-in-ontario-s-courts-and-tribunals (these signatures are also important to make our point elsewhere and it gives those on-line the power and opportunity to use their voice)

Astounding – applications for hearings at FSCO up to March 31 2016

FSCO Mediation filed in Feb/March (compared to earlier figures that incl Jan 2016)   10,961 application (+ 2742 in Jan)

FSCO Arbitration filed in Feb/March (compared to earlier figures that incl Jan 2016)   4,206 applications (+737 in Jan)

FSCO Total med/arb from Jan to March 31 2016 = 18,646

FSCO Total open files cases pending to March 31 2016 = 26,623

Med-Arb-Timelines 2007-Mar 2016

Copy of Med-Arb-Timelines 2007-Jan 2016

AABS Statistics

Automobile Accident Benefits Service – Statistics
  April 2016 May 1 – May 12, 2016
# of Applications received 137 112
# of Case Conferences scheduled 0 29
# of Case Conferences conducted 0 0
# of Hearings conducted 0 0

 

Recognition of bias of Ontario IME provider in our courts

http://canlii.ca/t/gpqm3

Positions of the Parties

[4]                    The plaintiff’s position is two-fold. Firstly, the plaintiff submits that the defendant is not entitled to an independent medical examination by a psychiatrist as the plaintiff was never treated by a psychiatrist and because there is insufficient evidence of why an assessment by a psychiatrist is warranted. The plaintiff asks that the motion be dismissed. Secondly, the plaintiff submits that Dr. Monte Bail, the psychiatrist chosen by the defendants, has demonstrated such clear and definitive defense bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular.

[5]                    The defendants’ position is that they can decide what speciality of medical doctor they wish to have examine the plaintiff. The defendants submit that to properly defend the claim, they need to provide opinion evidence as to the plaintiff’s depression and mental healthrelated injuries from a psychiatrist and that they can select any qualified psychiatrist of their choice.  Dr. Monte Bail is the psychiatrist of choice selected by Mr. Todd McCarthy, trial counsel for the defendants, in spite of objections raised by the plaintiff as to previous findings that Dr. Bail was not credible and failed to honour his written undertaking to the court in Rule 4.1.01.  The defendants ask that the motion be granted.  A tentative date for the examination by Dr. Bail has been booked for May 30, 2016.

[26]               While it is unnecessary for me to decide the second issue of the relief requested by the plaintiffnamely, whether to not allow Dr. Monte Bail to conduct a defense psychiatric examination due to his failure to adhere to the principles of fairness, objectiveness and impartiality and his defense biasI make the following observations and comments by way of obiter dicta. I find the plaintiff’s argument on this issue compelling.  Rule 4.1.01 makes it clear that an expert’s duty to the court prevails over any obligation owed by the expert to a party. The Supreme Court of Canada has held that an expert witness who is unable or unwilling to comply is not qualified to give expert opinion evidence and should not be permitted to do so. (See White Burgess Langille Inman v. Abbott and Haliburton Co.2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182).

[27]               When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial.

[28]               Kane J. in Bruff-Murphy v. Gunawardena2016 ONSC 7 (CanLII)held that Dr. Bail was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to Rule 4.1.01 (see paras. 53-125). He did not meet the requirements under Rule 53.03. Justice Kane found that Dr. Bail’s report and testimony was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth.  He further held that the purpose of Rule 4.1.01 is to prohibit and prevent such testimony in the guise of an expert, and that “Dr. Bail undertook and thereby promised to not do what he did in front of this jury.” Importantly, Justice Kane held that, “I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”

[29]               Additional critical findings in relation to Dr. Bail can be found in Gordon v. Greig (2007), 46 C.C.L.T. (3d) 212 (Ont. S.C.J.), at paras. 43-48;Sidhu v. State Farm Mutual Automobile Insurance Co., 2014 CarswellOnt 18595 (F.S.C.OArb.), at para. 68; Sohi v. ING Insurance Co. of Canada, 2004 CarswellOnt 3236 (F.S.C.O. Arb.), at paras. 35-41; Gabremichael v. Zurich Insurance Co., 1999 CarswellOnt 4480 (F.S.C.O. Arb.), at para. 132; and Rocca v. AXA Insurance (Canada), 1999 CarswellOnt 5506 (F.S.C.O. Arb.), at para. 66.

[30]               The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased “hired guns” by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court.  This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them.

[31]               Rule 33.02 provides that the court shall name the health practitioner by whom the independent medical examination is to be conducted. It could be argued that the court, in the exercise of its discretion, should therefore consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert under Rule 4.1.01. The court’s discretion would therefore include the discretion not to name a particular health practitioner if that health practicioner fails to meet the criteria set out inRule 4.1.01 on the basis of bias. While it would be uncommon to find an expert biased and impartial, such an expert so found should not be allowed to have any role in the court process.

[32]               Considering the highly intrusive nature of these independent medical assessments, and the serious issue of ensuring a fair trial, the plaintiff’s argument to deny the right to have an expert that has been found to be biased conduct the assessment in the first place is worthy of consideration in appropriate circumstances considering the potential for a miscarriage of justice that can be caused by such an expert biased in favour of one party, particularly in front of a jury.

Conclusion

[33]               As the defendants have failed to establish that they are entitled to an independent medical examination to be conducted by a psychiatrist, the motion is dismissed. Costs of the motion are reserved.

[34]               If counsel are unable to agree on costs, I will receive brief written submissions on or before May 31, 2016. Thereafter, I will determine the issue of costs based on the materials filed.

Also see: http://www.fairassociation.ca/wp-content/uploads/2016/01/Bail-Monte-Psychiatrist.pdf

Canada Social Report Social Assistance Summaries, Ontario, 2015 Published March 2016

In 2014-15

894,954 individuals were dependent on Ontario Works and Ontario Disability Support Program

http://www.canadasocialreport.ca/SocialAssistanceSummaries/ON.pdf

Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)

LAT adjudicates matters in a variety of diverse areas such as alcohol and gaming regulation, motor vehicle impoundments and driver’s licences, new home warranties, consumer protection, regulation of various occupations and businesses, and starting on April 1, 2016, in relation to automobile insurance Statutory Accident Benefits Schedule (SABS) disputes.

Information about LAT’s Automobile Accident Benefits Service (AABS) is available here: www.slasto.gov.on.ca/en/AABS

2.3 “AUTOMOBILE ACCIDENT BENEFITS SERVICE (AABS) CLAIM” “Automobile Accident Benefits Service (AABS) Claim” means an application to the Tribunal pursuant to s. 280(2) of the Insurance Act seeking resolution of a dispute involving statutory accident benefits.

2.23 “STATUTORY ACCIDENT BENEFITS SCHEDULE (SABS)” “SABS” means the Statutory Accident Benefits Schedule, Ontario Regulation 34/10 (Statutory Accident Benefits Schedule—Effective September 1, 2010), made under the Insurance Act, as revised from time to time, or a previous version of the SABS.

INFO: http://ow.ly/103AM9