Author Archives: Admin4

Focus: Ruling criticizes ‘consensus reports’

by Admin4

The practice of having an expert summarize the reports of all the other experts in a personal injury case may be on the way out, after a recent court decision slammed their misuse. The selective quoting of expert findings to present an outcome more favourable to one side has brought the practice into disrepute.

http://www.lawtimesnews.com/201704106074/focus-on/focus-ruling-criticizes-consensus-reports

Are Jury Trials Fair? A Personal Injury Lawyer’s Perspective

by Admin4

I read an article in NOW Magazine recently entitled: “Reasonable Doubt: are some lives worth more than others?”

The article discussed how, in serious personal injury cases that go to trial, women, low income persons and minorities tended to receive lower payouts.

Why? Because the compensation often includes money for  ‘loss of income’, which is typically evaluated as being less for these groups than for (Caucasian) men.

http://derekwilsonlaw.ca/are-jury-trials-fair-a-personal-injury-lawyers-perspective/

Disputed Claim for continuing Income Replacement Benefits

by Admin4

In a 2016 civil action, Galloway v State Farm Mutual Automobile Insurance, State Farm Insurance Co. made a motion for summary judgement to dismiss the plaintiff’s claim for income replacement benefits, a catastrophic injury designation, as well as general damages due to the insurer’s mishandling of their claim.

https://www.ilolaw.ca/blogpost/disputed-claim-for-income-replacement-benefits

Labanowicz v Fort Erie (Town), 2017 ONSC 2072 (CanLII)

by Admin4
http://canlii.ca/t/h314j
[5]               In my opinion, there are four overarching factors that play into an award of costs in this case: (1) the plaintiff’s pre-trial offer to settle, which she handily surpassed; (2) the manner in which the defendant conducted its defence, which the plaintiff has aptly described as a “scorched earth” defence; (3) the complexity of the matters in issue; and (4) the reasonable expectations of the parties as to the fair and reasonable costs to be paid by the losing party. The fourth factor must be weighed against the first three factors. Again, I do not intend to repeat the case law that supports the above mentioned principles—they are captured in Evans and Bimman and repeated, in part, in paragraphs one and two of the defendant’s written argument.

Distracted Driving: Still the #1 Cause of Road Fatalities in Ontario

by Admin4

For the last few years, the OPP has held their Distracted Driving Awareness week in March. Every year, we hope that distracted driving statistics will go down, but inevitably, they do not. This year, the OPP announced that 65 people lost their lives due to distracted driving in 2016. Tragically, that is “more than drinking and driving, speeding or collisions where people were not wearing seatbelts for the fourth straight year.”

http://www.vandykelaw.ca/2017/04/distracted-driving-still-the-1-cause-of-road-fatalities-in-ontario/

Coffee Cup Coverage Case Causes Concern

by Admin4

I recently read a Superior Court decision about a woman who burned herself with hot coffee at a McDonald’s drive-through.
This case has nothing to do with the notorious hot coffee tort case in the U.S. that made headlines many years ago. This matter has to do with automobile insurance coverage. 

http://www.insblogs.com/auto/coffee-cup-coverage-case-causes-concern/7429

Focus: Red Tape Challenge opens door to innovation

by Admin4

The Insurance Bureau of Canada is using the Ontario government’s invitation for proposals to cut regulations as an opportunity to lobby for technological advances in insurer-client relationships. IBC suggests the changes do not create additional risk for consumers. The insurance bar, while acknowledging the necessity to move with the times, is counselling caution in areas where privacy and security are at stake.

http://www.lawtimesnews.com/201704106072/focus-on/red-tape-challenge-opens-door-to-innovation

Documented Medical Diagnosis Required to Establish Pre-Existing Condition

by Admin4

S.C.W.H. was driving when she was involved in a car accident on June 4, 2014. She applied for and received benefits under the SABs. She now seeks payment for medical benefits including chiropractic and physiotherapy services, which Dominion as S.C.W.H. suffered injuries that fall within the MIG. Dominion takes the position as S.C.W.H.’s injuries are minor, her treatment is subject to a $3,500.00 cap within the provisions of the Minor Injury Guideline, and that it has paid this amount.

https://www.deutschmannlaw.com/blog/post/documented-medical-diagnosis-required-to-establish-pre-existing-condition

‘How many times can I lose everything?’: Insurance claim denied after woman’s spouse sets fire to bedroom

by Admin4

Terri-lynn Robison stands in the burned-out shell of her bedroom, still in disbelief that her husband set fire to the bed while she was in the room.

Last year, following a heated argument, she told her husband of 11 years their relationship was over and started packing his clothes.

http://www.cbc.ca/news/canada/toronto/insurance-claim-arson-allstate-1.4061091

Hashi and Certas Direct 2017-03-27 Decision: Arbitration, Final Decision, FSCO 5198

by Admin4
 https://www5.fsco.gov.on.ca/AD/5198
 
Dr. Mills and Dr. Seon differed in their respective Addendum Reports with respect to the Brief Battery for Health Improvement 2 (BBHI-2) scores, the Test of Memory Malingering (TOMM) scores, the Applicant’s language difficulties and the overall treatment of the Applicant. Dr. Mills testified he never uses these tests, which test for attributes such as feigning symptoms, malingering and lying. He said that results from such tests are unreliable. They do not take into account the patient’s different cultural background, the suspicion toward a female assessor, and attitudes towards women (all aspects of cultural differences) which could have an important effect on the outcome of those kinds of testing.
 
As a clinical psychologist he was more interested in the whole picture, which included the fact that the Applicant had come seeking treatment and had endorsed a number of features indicative of serious depression. In his opinion, the Applicant was not feigning his symptoms. He noted that two flags ignored by Dr. Seon were the Applicant’s disclosure at Dr. Seon’s interview that he was taking medication for his pain and had been prescribed anti-depressant medication by his family doctor. These should have alerted her that the Applicant was experiencing real issues of pain and depression, and not feigning symptoms.
[]
In making my overall findings with respect to the Medical Benefits and Costs of Examinations, I must note several things stand out.
 
The first is the marked contrast between the opinion reports of the Applicant and Insurer. This seems endemic to the Adjudication process under the SABS.
That said, I am giving more weight to the Applicant’s testimony and to his self-reported symptoms to the various assessors and his testimony at the Hearing, over the opinions of Drs. Seon and Chiew that the Applicant was likely feigning his symptoms. This is not in any way to question the skills or expertise of these witnesses; I am not qualified to do that. But I am qualified to weigh and prefer particular evidence over other evidence.
 []
On the psychological side, I prefer the evidence of Dr. Mills given my conclusion that the Applicant was neither malingering nor feigning or exaggerating his symptoms. I accept that Dr. Malik, working under the supervision of Dr. Mills, was providing assistance to the Applicant towards understanding the tests when he required it because of language difficulties. The tests administered through Dr. Malik and interpreted by Dr. Mills supported the Applicant’s symptoms of emotional distress and pain which he attributed to the accident.
 
I support Dr. Mills’ conclusion that the serious and recalcitrant nature of the Applicant’s ongoing physical pain and psychological impairment is a direct result of the MVA. I also endorse Dr. Mills’ finding that the MVA materially contributed to the Applicant’s impairment and poses a significant barrier to his function, an observation I was able to make from the Applicant’s demeanour throughout the Hearing when he attended. His impairments should not be characterized as falling within the MIG.