Things don’t always appear as they seem. When it comes to disability benefits claims, an insurer must look at the facts objectively and within context. Making assumptions or judgments could seriously interfere with the outcome and lead to a decision that not only puts the insurer at risk of further liability but also prevent the insured party’s ability to obtain appropriate monthly benefits, adequate treatment and ultimately improvement.
Author Archives: Admin4
How this men-only support group helps sufferers struggling with chronic pain and stigma
It’s estimated one in five Canadians live with chronic pain.
The physical and psychological effects can be debilitating and isolating.
New research in the U.S. has found a dramatic increase in suicides among men over 50. The factors are complex, but chronic pain is considered to be one of the main ones.
Hodge v. Neinstein
[1] At issue on this appeal is whether solicitors who have allegedly violated the Solicitors Act, R.S.O. 1990, c. S. 15 (the “Act”), are immune from a class proceeding brought on behalf of their former and current clients.
[2] The appellants, personal injury lawyer Gary Neinstein and his firm Neinstein & Associates LLP (collectively the “Firm”), challenge the Divisional Court’s decision certifying an application, which was brought by representative plaintiff Cassie Hodge against the Firm, under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”).
[3] The Divisional Court certified 19 common issues. These include common issues relying on a breach of s. 28.1(8) of the Act. Section 28.1(8) states that a contingency fee agreement (“CFA”) shall not include in the fee payable to the lawyer any amount arising as a result of an award of costs or costs obtained as part of a settlement in addition to a percentage fee unless certain conditions are met. The certified common issues also include whether the Firm charged interest contrary to s. 33 of the Act, and whether that amounted to a breach of contract or breach of fiduciary duty.
[4] The Firm argues that the application brought by Ms. Hodge, who is a former client of the Firm, should not have been certified as it fails to disclose a cause of action, fundamentally lacks in commonality and fails the preferable procedure requirement. In particular, the Firm argues that ss. 23-25 of the Act preclude the possibility of a class proceeding against the Firm as they form a “complete code” and require individual assessments of client accounts. The Firm says, even if that is not the case, the solicitor-client privilege of its former and current clients shields the Firm from the class proceeding intended to benefit those former and current clients who signed a CFA with the Firm.
[5] Ms. Hodge cross-appeals, arguing that the Divisional Court erred by denying her leave to amend her Amended Notice of Application to plead the tort of conversion and failing to certify further common issues.
[6] For the following reasons, I would dismiss the appeal and allow the cross- appeal in part. While I would dismiss the appeal, I conclude the Divisional Court erred in certifying one issue (common issue 3) as a common issue and would vary the certification order by deleting that common issue.
a) The fiduciary duty/costs common issue
[197] The first additional common issue asks whether the conduct of the Firm – allegedly failing to disclose information required by the Act and the Regulation in its CFAs and taking as part of their fees amounts arising from awards or settlements for costs – breached fiduciary duties to class members.
[198] As I have said above, I am not satisfied that it is plain and obvious that ss. 23-25 of the Act are a comprehensive code and preclude a claim against a solicitor for breach of fiduciary duty arising out of a CFA.
[199] However, the Firm again argues that it is plain and obvious that it did not owe a fiduciary duty to class members to include the prescribed language in its CFAs because they were only prospective clients until the agreements were signed. The Firm submits that a lawyer does not owe a fiduciary duty to prospective clients.
[200] I disagree with how the Firm characterizes this issue. The failure to ensure that the CFAs included the prescribed language is only one aspect of the Firm’s conduct considered in the proposed common issue. The disclosure part of the proposed common issue raises the question of whether the Firm was required to disclose the non-compliance after the class member became a client. In my view, it is not plain and obvious that a claim for breach of fiduciary duty based on the failure to disclose and the taking of costs has no reasonable prospect of success.
[201] I am also satisfied that there is a common legal issue – whether, as a matter of law, failing to disclose that a CFA signed did not include the prescribed language and the taking of costs contrary to the Act amount to a breach of fiduciary duty. In my view, there is some basis in fact for asking whether the taking of costs contrary to the Act constituted a breach of fiduciary duty by the Firm, such that this is a proper common issue. As I have indicated above, the record on appeal is replete with examples of final accounts showing party-and-party costs payable to the Firm, in addition to a percentage of the award or settlement, and the only evidence of the Firm not taking such costs is that of someone who it appears will opt out of the class proceeding.
[202] That said, consistent with my reasoning on the “taking issue” above, I agree with the Firm that whether the Firm actually took amounts arising from costs in an award or settlement contrary to the Act should be characterized as an individual issue.
Negligence claims in paper-only independent medical examinations: Rubens v Sansome, 2017 NLCA 32
The Court of Appeal’s decision is an important warning to physicians conducting paper-only IMEs.
Such paper-based reviews will still attract a duty of care to the patient. Justice Hoegg reinforced that the doctor-patient relationship gives rise to a duty of care when the doctor’s actions have the “potential” to affect the patient’s interests. Paper-only IMEs conducted for the purpose of evaluating insurance claims will inherently affect the interests of the claimant patient.
Insurers and consulting physicians will undoubtedly have to consider the potential liabilities associated with paper-based IMEs in light of this decision.
Rubens v Sansome, 2017 NLCA 32 (CanLII),
Aggressive Driving Deaths Up 80 Per Cent This Year
Deaths related to aggressive driving have skyrocketed on Ontario roads this year, according to Ontario Provincial Police (OPP).
The latest OPP report shows an 80 per cent spike in fatalities caused by aggressive driving. So far in 2017, 27 people have been killed, compared to 15 during the same period last year.
http://www.gregmonforton.com/b
Licence Appeal Tribunal Case Law and Growing Pains
The most significant case law emerging from the LAT deals with the issue of costs at the Tribunal. Ontario Courts follow the principle of “loser pays” whereby the successful party in litigation is traditionally rewarded by the unsuccessful party having to reimburse part of their legal costs and the reasonable disbursements incurred. The Financial Services Commission of Ontario (FSCO), which adjudicated accident benefits claim prior to the LAT coming into force, followed this traditional principle.
https://www.thomsonrogers.com/
Physical and Mental Injury Equal Under the Law: SCC does away with a “Recognizable Psychiatric Illness”
Mental injury is typically an issue for personal injury, but has arisen from time to time in the commercial context when consumers claim they have experienced inordinate mental suffering from the failure of a business’s products or services. Historically, the courts have required plaintiffs to establish a “recognizable psychiatric illness” to recover in a negligence action for mental injury, raising the burden on plaintiffs to prove their case. In Saadati v. Moorhead, however, the Supreme Court of Canada removed this burden, holding that the “recognizable psychiatric illness” threshold for mental injury is not a requirement in Canadian law.1
Mental Injuries Need Not Be Diagnosed by Expert For Trial Purposes – Saadati v. Moorhead, 2017 SCC 28
S’s tractor truck was struck by a vehicle driven by M. This accident was the second in a series of five motor vehicle collisions involving S. S had suffered chronic pain since the first accident, which was later aggravated by the third accident. S sued M and the other defendants in negligence, seeking damages for non‑pecuniary loss and past income loss arising from the second accident.
What is an Occupational Therapist?
Most people who are injured in an accident instinctively know that they should immediately seek out the closest emergency department or a doctor. If injuries do not require hospitalization, then they are commonly referred to physiotherapists, massage therapists, chiropractors, or another practitioner of physical therapy.