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News and Views

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

FAIR submission to CPSO re transparency

For many auto accident victims their biggest obstacle to recovery is the CPSO members who are the third party vendors of medical opinion evidence for Ontario’s auto insurers. Whether it is auto insurance MVA claims, WSIB claims, Long Term Disability claims or Canada Pension Plan Disability claims, what Ontario’s medical opinion ‘experts’ say in their reports and testimony can have a profoundly negative effect on recovery outcomes for very seriously injured individuals.

FAIR submission to the Proposed By-Law Amendment Posting of Quality Assurance Committee SCERPs Feb 10 2016

Automobile Insurance Dispute Resolution System Transformation Project Update – November 26, 2015

Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO) is providing regular updates about the transformation of the Auto Insurance Dispute Resolution System (AIDRS) and its transition from the Financial Services Commission of Ontario (FSCO) to the Licence Appeal Tribunal (LAT).

The new system at LAT will begin accepting applications on April 1, 2016. The LAT AIDRS will be streamlined to a single direct review and hearing process in front of an independent adjudicative tribunal.

http://www.slasto.gov.on.ca/en/Documents/What%20New-EN/AIDRS%20Project%20Update%20%20-%20Draft%20-%20EN.htm

Ontario’s Shame and Scandal – how the injured and disabled are punished by government policy

Victim’s group calls for the Auditor General and the Ontario Ombudsman to investigate what is happening to Ontario’s injured and disabled citizens

TORONTO, November 17, 2015 PRESS RELEASE – Ontario auto insurers are poised to make higher profits on the backs of Ontario’s disabled and injured MVA victims in 2016 while continuing to build up the provincial deficit by downloading the expense of victims to the taxpayers. Recently passed legislation means that coverage for the most injured MVA victims will be cut in half.

In October Ontario’s over 9 million drivers learned through the Lazar Prisman Report that they had been overcharged for auto insurance and likely overpaid by $1.5 billion in the last two years alone.

In recent weeks we learned just how challenging recovery is and how poorly the WSIB injured workers are treated in the Prescription Over-Ruled: Report on How Ontario’s Workplace Safety and Insurance Board Systematically Ignores the Advice of Medical Professionals.  Press release Nov 2016 Ontario’s Shame and Scandal – how the injured and disabled are punished by government policy

Licensed Appeal Tribunal reply to FAIR

“We consciously did not choose advocates for one point of view or another.”

2015.10.16 – SLASTO Reply Letter – FAIR

OTLA: Updated study shows Ontario auto insurance is “fundamentally broken”

TORONTO, Oct. 15, 2015 /CNW/ – An updated study released today provides alarming new data on auto insurance in Ontario.

The study, conducted by York University Schulich School of Business Professors Fred Lazar and Eli Prisman, reveals that consumers likely overpaid by $1.5 billion in the last two years alone. This includes overpayments of $700 million (or about $100 for each insurance policy) in 2014 on top of the $840 million ($120 per policy) in 2013.

http://news.morningstar.com/all/canada-news-wire/20151015C7206/otla-updated-study-shows-ontario-auto-insurance-is-fundamentally-broken.aspx

Read: Lazar Report October 2015