• 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

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May 24, 2018

by Admin2
Auto insurer’s secret cameras in sting operation broke law, body shop claims

Aviva Canada accused of acting like ‘peeping Tom’ in undercover operation targeting collision repair shops

http://www.cbc.ca/news/canada/toronto/auto-insurer-s-secret-cameras-in-sting-operation-broke-law-body-shop-claims-1.4674774

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Saving Joint and Several Liability

Where more than one party is at fault and causes harm to someone, they are, in law, equally responsible to pay out the total amount of damages owing to the injured person. This happens frequently in car accident cases where an at-fault driver’s insurance policy limits are not adequate to cover the injured victim’s damages.

http://otlablog.com/saving-joint-several-liability/?platform=hootsuite

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A.B. v. Waite, 2018 ONSC 3155 (CanLII), <http://canlii.ca/t/hs466 
 

[21]           This was not a frivolous case.  As I stated to the jury in my charge, there was evidence that would have supported findings in favour of the plaintiff.  The plaintiff should not be penalized unduly for proceeding with the action and taking it to trial.  This is not a case for substantial indemnity costs.

[22]           I have not applied Rule 49.10 to the earlier offers.  Had I done so, the plaintiff’s costs would be truncated as of the January 2016 date and she would be liable for the defendants’ costs thereafter.  Instead I have attempted to find a number that is greater than that which might have been generated had I ignored those offers entirely but still appears fair to both parties and in keeping with the objective of the rules.  I have fixed the costs after reviewing the bills of costs, applying Rule 49.10 to the fully compliant offer and having regard to the earlier offers under Rule 49.13.  Subject to the adjustments discussed above, the bills of costs are not unreasonable

[23]           The ultimate objective is fairness to the parties.  The defendants are entitled to a level of indemnity for beating their offers.  The objective is not to penalize the plaintiff unduly or to terrorize future plaintiffs.  Ultimately, however, it is the price of admission to our litigation system that proceeding to trial carries with it the risk of costs.

May 23, 2018

by Admin2

Your letters: How to fix Ontario’s auto-insurance woes 

Is Thomas Walkom really suggesting a public auto insurance system for Ontario? Let’s look at B.C. and Manitoba for an idea of what that would mean for drivers here. 
 
 
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Man’s car insurance shoots up $600 per year after he moves to new neighbourhood

A few days after moving, Steven Baker thought he was being diligent by phoning his insurance company to inform it that his home address had changed. 
 
 
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Customers say these are the best car insurance companies in Ontario

Customers are growing more and more frustrated with Canadian auto insurance companies as the quality of customer service improves nearly everywhere else, according to a report released this month by J.D. Power. 
 
 
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Car Accident Series: How Contributory Negligence Impacts Your Case

In the aftermath of a car accident, everyone is primarily concerned with the health and wellbeing of those involved. However, it’s only a matter of time before the blame game starts and you begin to hear why at least one person involved in a collision bears responsibility for the damage or injuries sustained. Usually the blame game begins right at the scene of an accident, between the people involved, the investigating officers, and the witnesses to the crash. 
 
 
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Nearly two years since Toronto announced Vision Zero, the city is on pace for its deadliest year for pedestrians and cyclists

Within 24 hours of announcing the Vision Zero Challenge on Tuesday, a call for ideas on how Toronto can reach its target of eliminating traffic deaths, one cyclist was dead in the city and two were injured. 
 
 
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Privacy Commissioner expresses concern that proposed Bank Act changes could open door to more data abuses

Privacy Commissioner Daniel Therrien is expressing concern with new banking powers over customer data that are contained in the government’s latest budget bill, telling the Senate banking committee Tuesday that his office was never consulted on the Bank Act changes. 
 
 
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Ontario doesn’t have enough doctors

I’m often asked if attracting new doctors to Ontario is the key to putting an end to wait times and hallway medicine. I reply, “It’s complicated” — and it is — which proves once again that our health care system is not only inefficient, it’s downright inexplicable. 
 

May 22, 2018

by Admin2

Independent Examinations are Often Found to be Anything But Impartial

The Globe and Mail published an investigative report highlighting the trend of car insurance companies of engaging “hired gun” doctors to produce biased “Independent Assessments” of injured drivers’ medical conditions. The practice is real and ongoing. Arbitrators at the LAT and FSCO have called out some medical doctors and insurance companies for the practice which is ongoing. This casts further questions on the continued reduction of benefits to injured drivers by te insurance companies and proposed changes to the benefits scheme after the next election. 
 
 
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Auto fraud: a cost of doing business?

Canada’s property and casualty insurance industry should do much more to fight auto insurance fraud, a senior claims representative of Canada’s second largest insurer says. 
 
 
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Ontario parties are ducking the issue of public auto insurance

The Liberals and New Democrats vaguely promise to lower Ontario’s sky-high auto insurance rates. Yet for reasons of history and embarrassment, neither is promoting the obvious solution: public auto insurance. 
 
 
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Ontario Liberals promise to end postal code auto insurance discrimination if re-elected

Liberals in Ontario are promising that they will end the insurance industry practice of setting higher premiums for drivers based on their postal code – a promise that the NDP claims was originally theirs. 
 
 
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How Google-happy jurors are derailing Ontario trials

Three recent trials in Ontario have been rocked by juror misconduct connected to the internet, reviving concerns about the challenges of ensuring a fair trial in the digital age.

 
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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII)

After eight weeks of trial, wherein liability was hotly contested, the jury began five days of deliberation on a Friday. Over the weekend, juror #1 engaged in internet legal research at his home. He found the Fault Determination Rules regulation under the Insurance Act. On Monday morning, juror #1 discussed the Regulation with the other jurors. The jury after over two hours of discussion sent questions to the judge. 
 
 
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Brain Injury Grief Is Extraordinary Grief

The last time I tried to research grief from brain injury, I found nothing helpful. After giving up years ago, I tried again in April. I was surprised and heartened to find that brain injury grief was being recognized at long last. Skimming articles from the US and UK validated my belief that brain injury grief is a different and difficult beast from other kinds of grief. 
 
 
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B.C. decision links mild TBI to plaintiff’s early onset dementia

In a rare move, the Supreme Court of British Columbia awarded a man almost $1.3 million in damages arising out of a motor vehicle accident where he suffered a mild traumatic brain injury which resulted in early onset dementia, Vancouver personal injury lawyer Sean Lerner tells AdvocateDaily.com. 
 
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Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII), <http://canlii.ca/t/hrrxc

[10]      Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found (depictions which, on their face, appear to be at odds with the plaintiff’s allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant.  Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life;  and photographs taken before are relevant for comparison (see:  Morabito v. DiLorenzo,  2011 ONSC 7379(CanLII), at para. 5).

[11]      “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile….it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.  A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).

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Sivananthan and Coachman

2018-05-08, Decision: Appeal, Final Decision, FSCO 5536 

https://www5.fsco.gov.on.ca/AD /5536

 

For the reasons that follow, I conclude that the Arbitrator correctly ordered payment of medical benefits and IRBs, where the order was based upon Coachman’s complete failure to respond to Ms. Sivananthan’s claims. The order cannot be supported, where payment is based upon what the Arbitrator considered to be an improper response. The Arbitrator also erred in failing to precisely determine the amount of IRBs payable, after deducting post-accident income. Therefore, the issue of the amount of IRBs payable must be re-heard. As a result the question of whether the Arbitrator erred in amending his order to allow deduction of post-accident income is moot. The Arbitrator also erred in ordering Coachman to pay Non-Earner Benefits (NEBs) without knowing that the conditions for entitlement to payment will be met at the time when payments will become due. 

The Arbitrator correctly concluded that Coachman unreasonably delayed or denied payment of the benefits that survive this appeal, therefore his order for payment of a special award stands. However, the Arbitrator erred in failing to fix the amount of the award with precision. Therefore, the question of the amount of the special award is remitted for re-hearing.

[]

The Arbitrator found that Coachman committed several breaches of its obligations under the Schedule, justifying a special award. He ordered Coachman to pay the highest possible special award, in an undetermined amount. He ruled that Coachman is precluded from taking the position that Ms. Sivananthan’s injuries fall within the MIG. He fixed the quantum of IRBs at $255.71 per week and he ordered Coachman to pay IRBs, from one week after the 1st accident and ongoing. The Arbitrator also ordered payment of ongoing NEBs, with the caveat that Ms. Sivananthan cannot collect the NEBs as long as she continued to receive the IRBs. The Arbitrator also ordered Coachman to pay for all of the claimed treatment, for the In-Home Assessment and for the Disability Certificate. He reasoned that Coachman is liable to pay Ms. Sivananthan her “full expenses” of the arbitration. He ordered payment of expenses, in an amount to be determined.

[]

The Arbitrator found the following conduct by Coachman to be unreasonable, with regard to the benefits that survive the appeal:

·         Failing to use the available information to calculate weekly IRBs

·         Failing to respond to the claim for IRBs

·         Failing to respond to claims for treatment

I am satisfied that the Arbitrator correctly concluded that Coachman must pay a special award because of its complete failure to respond to the treatment plans that survive this appeal, and its complete failure to respond to Ms. Sivananthan’s claim for IRB. The issue of the amount of the special award is remitted for re-hearing.

A special award can only be attached to benefits owed at the time it is made. Therefore the Arbitrator’s order is rescinded as it relates to the treatment plan in the amount of $1,245.64, the treatment plan in the amount of $3,089.00, dated November 1, 2014 and the In-Home Assessment. I note that the Arbitrator made no finding that Ms. Sivananthan was in fact too ill to attend the assessment that she did not attend regarding the treatment plan of November 1, 2014. The question of entitlement to a special award regarding these benefits is remitted for re-hearing. Since nothing is payable for NEBs, no special award can flow from the Arbitrator’s findings in this regard.  

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Nasir v. Kochmanski, 2018 ONSC 3052 (CanLII), <http://canlii.ca/t/hs232

[17]       While counsel for the plaintiff urged that one of the grounds for an adjournment was alleged improper issuance or signing of summonses to witnesses, there is no evidence in support of that allegation, nor was any authority offered by counsel on this ground.

[18]       Counsel for the plaintiff was most reluctant to acknowledge that the only basis upon which the adjournment was sought was alleged serious misconduct on the part of the defendant’s defence medical expert, Dr. Adrian Upton.

[19]        In the course of his submissions, counsel for the plaintiffs stated that if the trial were to proceed, he plans on calling as witnesses, counsel for the defendant, who were present in court on this motion, to demonstrate that Dr. Upton has committed a “fraud” in terms of the medical legal reports he has provided for the purpose of deceiving the court. No evidence was adduced on behalf of the plaintiffs with respect to the alleged fraud or misconduct on the part of Dr. Upton, other than a submission, based entirely on speculation at this point, that the last report from Dr. Upton was forged and not signed by him. This ground for the adjournment request is based entirely on counsel’s own assessment of Dr. Upton’s handwriting, without any evidence whatsoever being offered in support of this submission.

[20]       Further, counsel for the plaintiffs took the position that as there is negative judicial commentary about Dr. Upton in prior tribunal decisions and civil cases an adjournment should be granted in order to allow him an opportunity to further investigate the evidence that is available with respect to those earlier proceedings where Dr. Upton provided expert medical evidence.

[21]       The plaintiffs’ counsel intends on relying on and introducing evidence at trial on decisions from an administrative tribunal and prior judicial commentary in regard to Dr. Upton’s qualifications as a medical expert witness and as to his credibility.

[22]       Section 36 (3) of the Regulated Health Professions Act has been held to constitute an absolute prohibition against the use of information and evidence adduced before a tribunal such as the Health Professions and Appeal Board in a subsequent civil proceeding.

[23]       In M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) at para. 29 Laskin JA stated as follows in regard to s. 36 (3): 

[29] I find no relevant indicators of legislative meaning to

displace the presumption in favour of the ordinary meaning of s.36(3).  The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.  This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3).  The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.

[24]       Following Sutherland, the court in Montgomery v. Seiden, [2012] O.J. No. 136 (SCJ) at para 52 expressly stated that the absolute prohibition contained in s. 36 (3) applied to information from a complaint to the Health Professions and Appeal Board. See also: Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324 (CanLII), [2011] O.J. No. 136 (SCJ).

[25]       Thus, contrary to the submissions of counsel for the plaintiff, I have concluded that any prior tribunal decisions or court rulings with respect to Dr. Upton are inadmissible at this trial and as such the plaintiffs’ request for an adjournment based on the need for further investigation of past tribunal rulings does not form a reasonable basis upon which the adjournment of this trial should be granted.

[26]       As to prior judicial rulings and decisions regarding Dr. Upton’s qualifications and credibility, the Court of Appeal Court of Ontario has recently dealt with this issue in its decision Bruff-Murphy v. Gunawawardena, 2017 ONCA 502 (CanLII). In upholding the trial judge’s decision prohibiting cross-examination of the defendant’s expert witness regarding prior civil and arbitral findings made against him, Hourigan J.A. stated as follows at para’s 31 – 32:

[31]      I do not accept this argument. In my view, the prior comments made about Dr. Bail do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. This is analogous to the situation in Ghorvei, where a witness’s credibility had been attacked in previous proceedings. Charron J.A. (as she then was) held at para. 31 that those credibility findings from the previous proceedings were not proper material for cross-examination:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.

See also R. v. Boyne, 2012 SKCA 124 (CanLII), 405 Sask.R. 163, at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54. 

[32]      In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings. Thus, in my view, the trial judge did not err in prohibiting this line of cross-examination. 

[27]       I have thus concluded that any prior judicial rulings or decisions relating to Dr. Upton’s qualifications as an expert witness or in respect of his credibility are wholly inadmissible in this pending trial. 

[28]       It is asserted by plaintiffs’ counsel that an adjournment of this trial is required in order to further investigate Dr. Upton’s credibility as a medical expert and as well the “Scheme”, as alleged, wherein counsel essentially submits that counsel for the defendant has been acting in concert with Dr. Upton to deceive the court in past proceedings.

[29]       This ground for the adjournment request is based entirely on speculation alleging a conspiracy by Dr. Upton and the defendant’s lawyers to deceive the jury and the court in this case. There is absolutely no evidence whatsoever to support these most serious allegations which included, in counsel’s submissions, an allegation of fraud as against Dr. Upton and defence counsel.

[30]       In his submissions, counsel for the plaintiffs further urged that given the court’s parens patriae duty, regard must be had for protection of the interests of the minor plaintiff in the circumstances of this case.

[31]       The focus of that submission was entirely based on counsel’s desire to conduct further investigation regarding the very serious allegations made with respect to Dr. Upton and counsel for the defendant.

[32]       Counsel acknowledged that there are five neurological experts who have treated and examined the minor plaintiff and have concluded that he has sustained a traumatic brain injury as a result of the motor vehicle accident giving rise to this action. Thus, in spite of his submissions with respect to the qualifications of the only defence medical expert, Dr. Upton, he states that there is substantial evidence as to the nature and the extent of the plaintiff’s injuries.  All of that evidence will be available for the judge and the jury to consider.

May 17, 2018

by Admin2

Can I Sue my Insurance Broker for Failing to Make Sure I had Adequate Coverage? 

Anyone selling insurance, whether it is an insurance company, insurance broker, or insurance agent, is obligated to ensure consumers purchasing policies understand the available options and choices for insurance coverage. Accordingly, failure to ensure that a consumer, who is interested in purchasing enhanced coverage is meaningfully informed, can lead to legal liability. This post focuses on automobile insurance in Ontario, but the principles are applicable to other types of insurance. 

http://www.mhalaw.ca/news- resources/legal-blog/can-i- sue-my-insurance-broker-for- failing-to-make-sure-i-had- adequate-coverage

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Ontario drivers paying too much for insurance: report

A recent report that examines the profitability of the auto insurance industry in Ontario shows that companies continue to exceed financial expectations, while the province has failed to fulfil its promise of reducing premiums by 15 per cent, says Toronto personal injury and employment lawyer Kevin Marshall. 

http://www.advocatedaily.com/ kevin-marshall-ontario- drivers-paying-too-much-for- insurance-report.html

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What Is Being Done About Driver Inattention in Ontario?

The results are in: Ontario’s roads, trails, and waterways were more deadly last year than in 2016.

Every year, the OPP reports the number of fatalities on the roads and areas they patrol, and the numbers for 2017 are bleak.

http://www.vandykelaw.ca/2018/ 05/what-is-being-done-about- driver-inattention-in-ontario/

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Non-Attendance of IEs Precludes Insured from Applying to LAT – DW and Heartland Farm Mutual, 2018 CanLII 13145 ON LAT 17-001508

DW was injuredin a car accident on February 16, 2016.  DW applied for medical benefits under the SABs but Heartland denied payment for three treatment plans related to occupational therapy services, a memory foam mattress and a reclining chair.  The denials were based upon DW’s refusal to attend scheduled IEs.  DW asserts that he refused to attend because Heartland failed to provide “the medical and any other reasons” for the examinations as required under the Schedule. 

https://www.deutschmannlaw. com/blog/post/non-attendance- of-ies-precludes-insured-from- applying-to-lat-dw-and- heartland-farm-mutual-2018- canlii-13145-on-lat-17-001508

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Jury Deliberations & Mistrial (An example why Jury Trials for Ontario car accident cases should be abolished)

It’s never ok for Google to be your lawyer. Nor is it ok for Google to be your doctor, dentist, accountant, amateur arborist or veterinarian. You get the picture.

But Google and the internet are a wealth of information. That information can be very helpful at times. At other times, it can be very dangerous. So dangerous in fact just doing a simply Google search as a juror can be cause for a mistrial in an Ontario car accident case.

https://www. torontoinjurylawyerblog.com/ 2018/05/jury-deliberations- mistrial-an-example-why-jury- trials-for-ontario-car- accident-cases-should-be- abolished.html

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Changing the Focus in Medical Negligence

For more than 25 years, the Government of Ontario has provided hundreds of millions of taxpayer dollars to the Canadian Medical Protective Association (CMPA). The CMPA is the principal provider of defence legal services and indemnity payments for doctors in Canada. Over the last ten years alone, Ontario taxpayers have handed over $1 billion to the CMPA. 

http://otlablog.com/changing- focus-medical-negligence/

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New research helps prove future economic loss claims for plaintiffs with TBIs

A new landmark study on the risk of dementia for individuals who have suffered traumatic brain injuries is a help to plaintiffs with potential future economic loss claims, Toronto critical injury lawyer John McLeish tells AdvocateDaily.com. 

http://www.advocatedaily.com/ john-mcleish-new-research- helps-prove-future-economic- loss-claims-for-plaintiffs- with-tbis.html

May 16, 2018

by Admin2

Auto insurer faces lawsuit over credit scores in accident benefits claims

A major Ontario auto insurer is facing a lawsuit over allegedly using credit scores in adjusting accident benefits claims. 

https://www. canadianunderwriter.ca/ insurance/auto-insurer-faces- lawsuit-credit-scores- accident-benefits-claims- 1004131796/

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How much Ontario auto insurer might pay if it loses privacy class-action lawsuit

If Canada’s Federal Court were to rule against an Ontario auto insurer sued over allegedly obtaining credit scores of auto accident benefits claimants, the insurer might have to pay up to $10,000 a claimant. 

https://www. canadianunderwriter.ca/ insurance/much-ontario-auto- insurer-might-pay-loses- privacy-class-action-lawsuit- 1004131812/

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Ruling highlights ‘absurd mess’ of threshold test

An Ontario Superior Court decision overruling a jury’s award to a woman injured in a motor vehicle accident will only drive up the cost of personal injury court battles, Toronto litigator Michael Lesage tells AdvocateDaily.com. 

http://www.advocatedaily.com/ michael-lesage-ruling- highlights-absurd-mess-of- threshold-test-1.html

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FAIR doesn’t take a position on which of the parties will do right by Ontario’s car accident victims since none have a platform that suggests they will take better control of the file. A member has put together an excellent video (no, that’s not our FAIR name on it) reviewing Kathleen Wynne’s systematic attack on victims and the massive cuts starting in  2010. It’s a great place to leave your comments about how you feel about auto insurance issues!

May 15, 2018

by Admin2

Change For The Better Rally in Brampton

Monday, May 21st, 1:30pm

https://www.ontariondp.ca/rall y-brampton

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Drivers say auto insurance in this province is “financially difficult” to afford: poll

Nearly two-thirds of polled drivers in Newfoundland and Labrador have said that auto insurance has become “financially difficult” to pay for, according to a new poll commissioned by Aviva Canada. 

https://www.canadianunderwrite r.ca/insurance/drivers-say- auto-insurance-province-financ ially-difficult-afford-poll- 1004131663/

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Insurers’ excessive profits symptom of broken regime

A report showing Ontarians are still overpaying for insurance is evidence of the province’s broken no-fault insurance system, Barrie-area personal injury lawyer Steve Rastin tells AdvocateDaily.com .  

http://www.advocatedaily.com/s teve-rastin-insurers-excessive -profits-symptom-of-broken- regime-1.html

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FSCO clarifies that a Form 1 does not govern actual hourly rates for service providers

A Form 1, or Assessment of Attendant Care Needs, contains three parts/levels of attendant care. For each part/level, a particular hourly rate is assigned which is used to calculate an insured persons monthly attendant care needs. The hourly rate used in the Form 1 is governed by the applicable Superintendent’s Guideline. 

https://www.sbalawyers.ca/FSCO -clarifies-that-a-Form-1-does- not-govern-actual-hourly-rates -for-service-providers

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Physician’s Assessment Methodology Not Accepted – Insured is CAT Impaired – Harb and Allstate

Mr. Adel Harb was injured in a car accident on July 6, 2012 when his car was t-boned on his side of the vehicle. His vehicle was damaged to the point that he and the children had to exit the vehicle from the driver’s side. He took the children to the hospital right away, but didn’t experience any pain until later, as he was worried about his children’s and wife’s injuries. He went to see his doctor three days post-accident. 

https://www.deutschmannlaw.com /blog/post/physicians-assessme nt-methodology-not-accepted- insured-is-cat-impaired-harb- and-allstate

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Focusing on the road: Avoiding collisions caused by distracted driving

Distracted driving crashes resulting in personal injury claims are on the increase in Ontario and are preventable. 

https://lernerspersonalinjury. ca/blogs/focusing-on-the-road- avoiding-collisions-caused-by- distracted-driving/

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Candidate’s 15-year fight with WSIB after workplace injury part of his decision to run provincially

Taylor is running in Guelph for the None of the Above Party (Ontario), a party which doesn’t believe in whipping votes and which leaves open the door to the possibility of hand-picking cabinet ministers from a number of parties. 

https://www.guelphtoday.com/lo cal-news/candidates-15-year-fi ght-with-wsib-after-workplace- injury-part-of-his-decision- to-run-provincially-922520

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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII), <http://canlii.ca/t/hs0k9 

[1]               This is a motor vehicle personal injury action tried by judge and jury.  Liability was very much in issue.  Following eight weeks of evidence and closing arguments and my jury charge, the jury began five days of deliberation before returning a verdict.  They began their deliberations on a Friday afternoon and returned Monday morning at 9:30 a.m. to continue.  They rendered a verdict at the end of the week, late on a Friday afternoon.

[2]               On the weekend just after the jury began to deliberate, juror #1, while at his home engaged in some internet legal research.  He found a regulation under the Insurance Act, known as the Fault Determination Rules.  On Monday morning he discussed this regulation with the other jurors, which resulted in a jury question conveyed in a note to the court that sought direction about the use to be made of the regulation.  Juror #1 was questioned about the circumstances leading to his obtaining and sharing this information with other jurors.  A corrective charge and admonition was delivered by me the following day, directing the jury that the Regulation was irrelevant, that they were to disabuse their minds of it and were to refrain from any further internet research pertaining to the trial.

[3]               The jury’s verdict, delivered late Friday afternoon, found the plaintiff Mr. Patterson 73% contributorily negligent in the collision and the defendant 27% at fault.  In the circumstances, the plaintiff seeks an order declaring a mistrial due to the alleged contamination of the jury by this internet information and their alleged failure to abide by the court’s correcting charge.  The defendant’s position is that the court’s correcting charge was sufficient to deal with the problem and to ensure a fair trial, and that the jury verdict was reasonable and supported by the evidence.

May 4, 2018

by Admin2

Draft 2018 Statement of Priorities http://www.fsco. gov.on.ca/en/about/annual_ reports/pages/2018-sop-draft. aspx

Public Consultation on Proposed Treating Financial Services Consumers Fairly Guideline http://www.fsco.gov. on.ca/en/about/superintendent_ guidelines/pages/default.aspx

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Marshall Report: Progress To Date 

On April 11, 2017, David Marshall, Special Advisor to the Minister of Finance, released his final 103-page report regarding Ontario’s auto insurance system. The report was entitled: Fair Benefits Fairly Delivered (the “Report”). 

http://mccagueborlack.com/ emails/articles/marshall- report.html

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Report urges Ontario to take action to curb long delays when patients sue doctors for malpractice

Medical malpractice cases in Ontario linger before the courts up to six years on average, unacceptable delays that need to be curbed, says a government-commissioned report obtained by the National Post Thursday. 

http://nationalpost.com/ health/report-urges-ontario- to-take-action-to-curb-long- delays-when-patients-sue- doctors-for-malpractice

Is Justice Gouge preserving the very secrecy and lack of transparency he previously said protected experts such as Charles Smith from accountability? “…complaint should be inadmissible in any proceeding concerning that complaint…” pg 71

http://www.health.gov.on.ca/en /common/ministry/publications/ reports/physician_complaints/ docs/physician_complaints_ process_en.pdf

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The Art of Due Diligence: Priority Disputes Among Insurers

The enactment of Ontario Regulation 283/95 – Disputes Between Insurers (the “Regulation”) has obliged insurers to continue payment of Statutory Accident Benefits (“SABS”) to injured person even where entitlement to these benefits is disputed. At the same time, the insurers ‘battle it out’ behind the scenes over which has higher priority and should be paying for the claimed benefits. 

http://mccagueborlack.com/ emails/articles/priority- disputes-diligence.html?utm_ source=Mondaq&utm_medium= syndication&utm_campaign=View- Original

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How traumatized witnesses of van attack could make a case for accident benefits

Auto insurers whose customers were witnesses to the April 23 van attack in north Toronto could be paying accident benefits claims if those witnesses have medical evidence that they suffered psychological injury, an insurance law expert suggests. 

https://www. canadianunderwriter.ca/ insurance/traumatized- witnesses-van-attack-make- case-accident-benefits- 1004131225/

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People have a right to ‘as much transparency as possible’ when it comes to doctors’ pasts, health minister says 

Ontario Health Minister Helena Jaczek says the province’s medical watchdog should provide patients with “as full a picture” as possible of physicians’ disciplinary and criminal histories after a Toronto Star investigation found the public is being deprived of information about sanctions imposed in other jurisdictions. 

https://www.thestar.com/news/ medical-disorder/2018/05/03/ people-have-a-right-to-as- much-transparency-as-possible- when-it-comes-to-doctors- pasts-health-minster-says.html

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Appeal court upholds 6-month suspension for doctor who sexually abused patients

A six-month licence suspension was “reasonable” for a Toronto doctor who sexually abused four female patients, the Ontario Court of Appeal ruled Thursday in a decision that reversed a lower court ruling. 

https://www.thestar.com/news/ gta/2018/05/03/appeal-court- upholds-6-month-suspension- for-doctor-who-sexually- abused-patients.html

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MANDEL: Should this Toronto doctor be practising medicine?

How outrageous this is — a doctor who sexually abused four female patients has been handed a licence to continue practising medicine.

The Ontario Court of Appeal refused to uphold the need for a new penalty hearing and has instead, reinstated the ridiculously light six-month suspension for the breast-groping Dr. Javad Peirovy.

http://torontosun.com/news/ local-news/mandel-should-this- toronto-doctor-be-practising- medicine?utm_term=Autofeed& utm_campaign=Echobox&utm_ medium=Social&utm_source= Twitter#link_time=1525396017

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Key differences in litigation funding firms

Not all settlement loan providers are created equal, and clients need to be aware of the differences and ask some key questions before agreeing to financial assistance, says Mickey Mingov, founder and managing director of CaseMark Financial. 

http://www.advocatedaily.com/ casemark-financial—mickey- mingov-key-differences-in- litigation-funding-firms.html

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Applicant makes claim with no accident report – GAE and Aviva Insurance Canada, 2018 CanLII 13185 ON LAT 17-000317

MIG and MEDICAL BENEFITS: application for benefits considered complete due to extraordinary circumstances; applicant passenger in an acquaintance’s car; driver will not release accident report to her; insurer fails to provide proper notice in denial of claims; 

https://www.deutschmannlaw. com/blog/post/applicant-makes- claim-with-no-accident-report- gae-and-aviva-insurance- canada-2018-canlii-13185-on- lat-17-000317

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UPDATED – Province-Wide Parties Debate on Accessibility and Disability Issues

Community Partners invite people with disabilities and their allies from across Ontario to ask questions to each party regarding: Accessible/Subsidized/ Supportive Housing, Employment, Poverty Reduction Strategies, Accessibility for Ontarians with Disabilities Act (AODA), Ontario Disability Support Program (ODSP), Education and other disability issues. 

https://www.sciontario.org/ node/11701

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17-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT), <http://canlii.ca/t/hr1fc 

Reasonableness and necessity of s. 44 Assessment

[18]   Under s.44 of the Schedule, an insurer may require insurer’s examinations by the health professionals of its choice, but this right is limited to those examinations that are “reasonably necessary”. This is in order to ensure that insurers are able to assess information provided by a claimant and to adequately respond.

[19]   The Tribunal has applied the following guiding criteria in assessing the reasonableness of a proposed insurer examination:

                     i.        the timing of the insurer’s request;

                    ii.        the possible prejudice to both sides;

                  iii.        the number and nature of the previous insurer’s examinations;

                  iv.        the nature of the examination(s) being requested;

                     v.        whether there are any new issues being raised in the applicant’s claim that require evaluation; and

                  vi.        whether there is a reasonable nexus between the examination requested and the applicant’s injuries.[2]

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M.M. and Optimum 2018-04-20, Arbitratio n, Final Decision, FSCO 5552 https://www5.fsco.gov.on. ca/AD/5552
 
[]

Dr. Hope provided two reports.  In his first, he refused to provide a rating because he concluded that, “in the absence of valid evidence of a significant psychological impairment that could be attributed directly to the accident in question, I give no rating”.  He came to that conclusion because he determined that the Applicant was over-reporting her symptoms and that the psychometric testing results that he had were not valid.  I give his opinion no weight for the following reasons.

I do not share Dr. Hope’s view that there is “no valid evidence of a significant psychological impairment”.  I find such evidence in that of Dr. Liao, Dr. Kiraly, Mr. Beedling and Dr. Robinson, and in the medical history set out in the reports of Dr. Robinson and Dr. Mills as well as in the clinical notes and records of those treating the Applicant.  I reject the opinion of Dr. Hope that the Applicant is exaggerating her symptoms and could not be rated.  He does not dispute that she suffers mental behavioural impairments.  His information on her history was incomplete.  He did not know that the Applicant had suffered other recent personal losses due to other motor vehicle accidents.  Dr. Robinson did know about these losses and indicated that these were complicating factors impacting on her emotional and mental outlook.  Further, when Dr. Hope reviewed in his testimony under cross-examination the questions that he believed had been answered in a manner that indicated exaggeration, the answers that he recorded during the Applicant’s testing were consistent with her evidence.  She could not truthfully have answered them any other way.  I find the more probable explanation for the answers in the testing that is consistent with the other evidence I have is the explanation given by Dr. Robinson, that is, that the answers were indicative of an individual overwhelmed by the issues facing her.

I was also troubled by Dr. Hope’s reference in his report to the Applicant making a workplace injury claim even though her injury had completely healed prior to the accident and forms no part of the issues in this case.  None of the other psychologists regarded this as significant in the psychological assessment.  When questioned, Dr. Hope indicated that, based on this claim experience, her answers were influenced by the potential for gain.  He had no more information than that she had made the claim and the injury was resolved.  His opinion that she was probably exaggerating is not supported by his speculation on this claim. I also note that his work in providing opinions is almost exclusively for insurers.  In all the circumstances and given the other evidence I have, I find that his opinion and his refusal to provide a rating are not consistent with the rest of the evidence and were not appropriate in the circumstances.

Because Dr. Hope regarded the Applicant’s test results as invalid he refused to provide a rating.  There is no evidence that Dr. Khaled did anything else to identify a Mental Behavioural Disorder rating for her, despite the opinion of Dr. Robinson expressed on three different occasions as to the impairments suffered by the Applicant and the evidence of significant impediment to her function identified by Ms. Javasky.

[]

I do not accept the ratings arrived at by Dr. Khaled for Optimum.  He was an advocate for strict compliance with the wording of the Guides but failed to apply the same rigor to the work of his own team.  Dr. Khaled insisted that the proper and only credible way to arrive at the ratings was to have the ratings done by the medical professionals who examined the Applicant for the purpose of the CAT determination.  Dr. Adam and Dr. Zakzanis testified that they could take a diagnosis from another expert and provide a valid rating under the Guides without seeing the patient. Further, as noted above, the Guides specifically provide in Section 2.2, that “any knowledgeable person can compare the clinical findings with the Guides’ criteria and determine whether or not the impairment estimates reflect those criteria.”  Dr. Gallimore is experienced and qualified to more than satisfy the requirement of a knowledgeable person to determine the appropriate ratings based on the clinical findings and reports of the experts who in fact assessed the Applicant.

In my view, Dr. Khaled gave Optimum the outcome it wanted.  I am satisfied on the evidence that he deliberately closed his eyes to relevant information that he should have taken into account.  The Guides are specific that the history of medical treatment of the patient is an essential element in the assessment and rating.  Dr. Khaled included Dr. Robinson’s reports in his review of the records but when there is a specific issue related to the diagnosis of Mental and Behavioural Disorder requiring ongoing treatment, Dr. Khaled simply ignores the evidence and relies solely on Dr. Hope’s refusal to accept the test results as valid.  In cross-examination Dr. Khaled indicated that he focused on the assessments that were done for the CAT determination.  He gave little if any weight to the past history. 

I find that his handling of the evidence as to the Applicant’s mental behavioural impairments ignored the evidence of Dr. Robinson and Dr. Mills as well as that of the Occupational Therapist Ms. Javasky.  In his testimony Dr. Khaled used every opportunity to advocate for his approach to the interpretation of the Guides which I find is not supported by the Guides themselves. 

Also, I am entitled to draw adverse inferences from the failure of a party to bring forward evidence that was in the power of the party to produce.  Optimum had lots of notice that mental and behavioural disorders were a factor in the Applicant’s medical history and that she had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood by its own assessor.  Dr. Gallimore flagged the desirability of bringing a psychiatrist onto the assessment team.  Optimum objected strenuously to Dr. Kiraly’s report, that of the only psychiatrist, but it could have retained its own in order to adjust this claim fairly.  Alternatively, Dr. Zakzanis was capable of undertaking the mental behavioural disorder assessment and he explained in the stand the analysis which would assess the functionality of the Applicant in terms of what was attributable to the brain injury and what was attributable to the mental and behavioural impairment.  Dr. Robinson likely could have as well.  By failing to take the step of securing that impairment rating, I am entitled, on the basis of all the evidence, to draw the conclusion that Optimum did not seek a further assessment because it knew it likely would support a rating sufficient to bring the Applicant over the 55% whole person impairment or alternatively of a Marked Class 4 Impairment.  In a tort action, there is no obligation on an adverse party to fill in a gap, if it exists, in an opposing party’s case.  The onus lies on the Applicant to prove her case both in tort and in accident benefits, but, in accident benefits, there is an obligation of good faith on the part of the insurer. Optimum, in its adversarial approach to the claim for catastrophic impairment here, has failed to discharge that duty.

I therefore find that the Applicant has met her onus on the balance of probabilities to prove that she suffered catastrophic impairment as a result of the accident in accordance with the Schedule.

[]

Where I find fault with Optimum was the decision, whether by it or by its adjuster Pinnacle, to ignore the reports of Dr. Robinson and to use Dr. Hope instead.  They used medical professionals who almost exclusively do work for insurers and there was clear evidence, on the part of Dr. Hope and in the advocacy of Dr. Khaled, that the assessment ratings did not assess the Applicant in accordance with its obligations to adjust the claim in good faith and in accordance with the Guides.  There has not, however, been a delay in payments that would support a special award. 

 

Reevely: Years after saying they would, Ontario’s Liberals get serious about cutting car-insurance premiums

by Admin4

Medical Marijuana: What Health Care Professionals Need To Know (Barrie)

by Admin4

Join us for a half-day conference open to all health care professionals. Hear from our keynote speaker, Dr. Lionel Marks de Chabris, on the usage and abuse of medical marijuana, participate in a group discussion about how marijuana affects rehabilitation, and learn about the legal implications of its use.

http://oatleyvigmond.com/news-events/events/medical-marijuana-health-care-professionals-need-know-barrie/#.WQDNL8YpDIW

No Forced “Consent” When Attending Court Ordered Medical Examination

by Admin4

In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.

http://bc-injury-law.com/blog/forced-consent-attending-court-ordered-medical-examination?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+IcbcLaw+%28ICBC+Law%29