Author Archives: Admin2

February 20, 2019

by Admin2

Where are some of the dollars FSCO uses to operate coming from?

http://www.fsco.gov.on.ca/en/about/annual_reports/Pages/ar2017-financials-fsco.aspx
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Spotlight: Ontario motorists are peeved as record-level claims drive auto insurance premiums even higher

The rising frequency of insurance claims and the growing cost of vehicle repairs have forced another year of auto insurance premium hikes in Ontario in 2019. And the result is exactly what you might expect. 
 
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What is Umbrella Insurance?

Personal umbrella insurance is a type of insurance policy designed to add extra liability coverage over and above another insurance policy, such as auto, boat, or homeowners. 
 
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How Breathing Calms Your Brain, And Other Science-Based Benefits Of Controlled Breathing

The science of breathing stands on quite ancient foundations. Centuries of wisdom instructs us to pay closer attention to our breathing, the most basic of things we do each day. And yet, maybe because breathing is so basic, it’s also easy to ignore. A brief review of the latest science on breathing and the brain, and overall health, serves as a reminder that breathing deserves much closer attention – there’s more going on with each breath than we realize. 
 
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IBIA Caregiver Workshop – 2019 

OBIA, along with Brain Injury Canada and the Brain Injury Society of Toronto will be hosting a special workshop event for unpaid caregivers as part of the 13th Annual World Congress on Brain Injury. 
 
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Sabadash v. State Farm et al., 2019 ONSC 1121 (CanLII), <http://canlii.ca/t/hxk3k 

[11]           Arbitrator Smith (“the Arbitrator”) granted Mr. Sabadash’s request for IRBs and other benefits.  He held that, “I cannot accept State Farm’s submission that the ‘but for’ test endorsed by the Courts in accident negligence cases is to be applied to a determination of causation in the statutory accident benefit context.”  He concluded that accident benefits were warranted because, “the preponderance of the evidence leads to the conclusion that the subject accident was a material significant factor well beyond the de minimis range in the causation of Mr. Sabadash’s inability to work…”

[12]           A party to a FSCO arbitration may appeal an arbitrator’s order to the Director or his/her delegate, on a question of law.  The Director or Director’s Delegate may confirm, vary, or rescind the arbitration order, or substitute his or her order for that of the arbitrator.

[13]           State Farm appealed the Arbitrator’s decision to the Director’s Delegate of the FSCO on the basis that the test applied by the Arbitrator was the wrong one and that rather than using the material significant factor standard, he should have applied the “but for” test to determine causation. 

[14]           Director’s Delegate Evans allowed the appeal on the basis that the Arbitrator had misdirected himself as to the proper test of causation  and should have applied the “but for” test.  In so doing, the Director’s Delegate articulated what he believed to be the correct test and analysis to be applied. The Director’s Delegate ordered a new hearing before a different Arbitrator.

[15]           Mr. Sabadash seeks judicial review of the Director’s Delegate’s decision dated September 18, 2017. 
 

[45]           The Applicant argues that the Arbitrator’s decision should be restored, as the Arbitrator’s analysis was the robust application of the “but for” test required by Clements. I disagree.  The Director’s Delegate reasonably remitted the matter for rehearing so that the correct legal test for causation could be applied.  He was correct in finding that the wrong test was articulated by the Arbitrator.  However, although he identified the correct “but for” test, the Director’s Delegate did not correctly explain how the test works. 

[46]           As such, it is appropriate to remit the issue of causation to a different arbitrator to apply the correct test to the evidence.  The Application for judicial review is dismissed.

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Seetaram v. Allstate Insurance Company of Canada, 2019 ONSC 683 (CanLII), <http://canlii.ca/t/hx75m  

[3]               For the reasons I set out below, I declare that the Policy is void. I rely on s. 233(1)(a)(ii) of the Insurance Act, R.S.O. 1990, C. I.8 (“s. 233(1)(a)(ii)”) and Statutory Condition 1(1) of O. Reg. 777/93: Statutory Conditions – Automobile Insurance (the “Statutory Conditions”) which were breached when Zalimoon and Lakeram failed to disclose upon the renewal of the Policy that Avinash was a licensed driver in the household.  

[96]           The Applicants knew that Avinash was a licensed driver in their household with a G2 license that permitted him to drive on his own. The effect of such an additional driver on risk is clear – a high-risk driver in the household able to drive on his own would substantially affect the premium. Only the Applicants would have knowledge of that information, which put them in a position of the utmost good faith.

[97]           Consequently, I do not grant order relief from forfeiture.Order and costs

[98]           For the above reasons, I dismiss the application.[99]           The matter was important to both parties. The motion records contained numerous affidavits, and cross-examination of the Applicants were required and appropriate. All parties prepared thorough factums and briefs of authorities. Based on the above factors, I fix costs at$15,000 (inclusive of taxes and disbursements), payable by the Applicants to Allstate within 30 days of this order.

February 19, 2019

by Admin2

When the Badly-Behaved Party Is Opposing Counsel 

There are many common elements to these reports, which I find to be largely credible. SRLs believe that their unfamiliarity with the legal system, combined with the tendency of some judges to assume the worst of them – that their cases are without merit, or that they are “vexatious” and abusing the process when they make honest mistakes and misjudgments – is being exploited by counsel on the other side as a matter of strategy. 
 
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My Experience Attending Examinations for Discovery

What on earth are Examinations for Discovery I find myself asking my lawyer.   You see, the law firm was calling to set up a convenient time for these examinations to take place.   I was the plaintiff in a Motor Vehicle Crash and it was determined that I was “0” at fault and the driver that caused the crash had plead guilty a couple of years ago.  The Examinations for Discovery date had to coincide with my schedule as well as both lawyers’ but I was given plenty of notice.   A date was set which was two months away and my lawyer requested to meet with me a week before I was to attend.  I would soon come to understand that when you reach “Examinations for Discovery”, this is a crucial step of reaching a settlement.  
 
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Why Mental Health Care Is More than Numbers

A while ago, I was informed that I lived in the mecca of mental health services: Toronto. There are a plethora of private-pay therapists including registered psychologists and registered psychotherapists here, but most with complex needs can’t afford them and must turn to medicare-covered psychiatrists. 
 
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How expert witness restrictions impact insurers

Insurance Corporation of British Columbia will save millions as a result of new auto injury lawsuit rules for the province, which will likely cut costs for other carriers as well, the provincial government says. 
 

February 15, 2019

by Admin2
Fatigue: Does It Ever Go Away?
Fatigue is such an inadequate word to describe the unutterable weariness that comes on to a person with fibromyalgia or brain injury just because one got up in the morning. 
 
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Court upholds Ontario government’s decision to cancel basic income study
 
An Ontario court has denied a request that it quash the provincial government’s decision to cancel a basic income pilot project.
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ICBC’s “Meat Chart” Crashes In the BC Supreme Court

 
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SCC decison speaks at length about the expectation of privacy. As we all know, what happens post car accident is intense surveillance and it does involve other individuals who are surveilled without their permission.

R. v. Jarvis  
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17515/index.do
 
33]                          Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1)  , this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy. For example, the fact that a person chose to be secretive about recording another person in a particular situation may support the conclusion that the recording was contrary to the norms regarding privacy and visual recording that exist in that context. However, as with the purpose of the observation or recording, surreptitiousness will only ever be one consideration, among many, to be taken into account in assessing reasonable expectations of privacy; it cannot be allowed to overwhelm the reasonable expectation of privacy analysis. It is possible under s. 162(1)   for observation or recording to be done surreptitiously but not in breach of a reasonable expectation of privacy. Conversely, observation or recording that is done openly may breach reasonable expectations of privacy, though because it is not surreptitious, it will not constitute an offence under s. 162(1)  .  
 
The Supreme Court’s Jarvis ruling delivers a win for privacy, but it’s a missed opportunity for equality
https://www.theglobeandmail.com/opinion/article-the-supreme-courts-jarvis-ruling-delivers-a-win-for-privacy-but-its/  

Right to privacy not an all-or-nothing concept, says SCC in voyeurism case

 https://www.canadianlawyermag.com/legalfeeds/author/elizabeth-raymer/right-to-privacy-not-an-all-or-nothing-concept-says-scc-in-voyeurism-case-16865/
 

February 14, 2019

by Admin2

FAIR 500 words to the Auto insurance Survey 

http://www.fairassociation.ca/wp-content/uploads/2019/02/FAIR-submission-to-Auto-Insurance-Survey-Feb-14-2019.pdf

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Personal injury lawyer ‘improperly marketed’ legal services, law society alleges

Just below a video and toll-free number, one logo on the Neinstein Personal Injury Lawyers’ website has a thumbs up and says “Best Business of 2017” above the word “Excellence.” Another logo simply states “Best Lawyers.” 
 
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A driver is convicted of assault after a collision. Is the vehicle’s owner vicariously liable for the crash?

The registered owner of a pickup truck could be held liable for injuries to an accident victim even though the at-fault driver of the pickup truck was convicted of assault as a result of a collision, the Court of Appeal for Ontario ruled in a decision released Tuesday. 
 
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Survey: Ontarians not grasping the meaning of distracted driving

A new study by CAA South Central Ontario (CAA SCO) found that while an “overwhelming majority” of Ontario drivers are aware of how serious the distracted driving problem is, many are still unaware that they’re contributing to the problem. 
 
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Catastrophic Injury Impairment

Automobile insurance is constantly changing . It seems that the government continues to strip away at some of the most vital services required for injured people, especially those who are severely injured and need it most, those with a catastrophic injury. The new definition will apply to all accidents in Ontario on or after June 1, 2016. The Statutory Accident Benefits Schedule (“SABS”) provides accident benefits for people who are  involved in a motor vehicle accident in Ontario. Regardless of whether or not they were at fault, or whether or not they were a driver, passenger or a pedestrian.  
 
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B.C. trial lawyers raise concerns about auto insurance settlement policy

The Trial Lawyers Association of B.C. (TLABC) is raising concerns the case settlement policy of the provincially owned auto insurer will lead to an increase in the number of trials and hamper people’s ability to receive proper settlements for their claims. 
 
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Gender can no longer be used to calculate auto insurance rates in California and other states

A new report on auto insurance trends finds that the industry is rejiggering its analysis of risk by adopting technologies that monitor driver behavior on the road 
 

February 13, 2019

by Admin2

Health Claims Database (HCDB) Standard Report

IBC created the HCDB standard report to provide a timely and consistent statistical overview of medical and rehabilitation costs involved in Ontario automobile insurance health claims and the recovery process. See page 54 for how much is spent on medical exams vs how much on treatment.

http://assets.ibc.ca/Documents/Auto%20Insurance/facts/HCDB-Standard-Report-2018H1.pdf

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Why I want to team up with the drunk driver who hit me

Tina Adams was 20 when a drunk driver crashed into her while she was jogging on the sidewalk

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Intact’s guesstimate of auto profitability improvement required by the industry

The Canadian auto insurance industry needs to improve its profitability by about 10 percentage points, executives with Canada’s largest property and casualty insurer suggest. 
 
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‘Advances’ on settlement funds and the personal injury lawyer

Should personal injury lawyers lend money to their clients? If you don’t lend your clients money, is it ok to have family or friends lend them money? It’s inevitable that you’ll be asked, and a responsible personal injury lawyer needs to be prepared for the client in need. You should have a plan, and hopefully; one that doesn’t result in regulatory review or judicial intervention.  
 
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Recovery after a severe brain injury is a challenge that requires full support

The Australian state of New South Wales’ Brain Injury Rehabilitation Network has put out a very comprehensive fact sheet which I think you will find informative. You can read the whole 4 page circular here, much of it applies specifically to case management in Australia. Here are some excerpts from the relevant parts  as I think they summarize brain injury recovery very well. 
 
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B.C. cuts use of auto insurance experts as ICBC set to hit billion-dollar deficit

The B.C. government has imposed new limits on the use of dueling experts in insurance cases, blaming the skyrocketing costs for contributing to the financial precariousness of its public auto insurer, which is on track to a billion-dollar deficit this year. 
 

February 12, 2019

by Admin2

The Psychology of Power

How does power affect behaviour and the brain? Psychologist Dacher Keltner has spent almost two decades answering that question.
 

https://www.tvo.org/video/programs/the-agenda-with-steve-paikin/the-psychology-of-power

https://www.cbc.ca/radio/thesundayedition/the-sunday-edition-for-february-3-2019-1.4997146/drivers-are-killing-more-pedestrians-in-canada-every-year-here-s-why-michael-s-essay-1.4998615
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Ontario auto discussions ‘very encouraging,’ Intact reports

Ontario’s new government and auto insurance regulator are “focussed on the right areas,” a senior manager for the province’s largest auto insurer said recently. 
 
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A push for changes in the discipline process, pre-election

With the 2019 bencher elections on the horizon, lawyers in the province are advocating for changes to be made to how the Law Society of Ontario handles disciplinary investigations upon discovering the lawyer in question may be dealing with a mental health issue. 
 
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Lawyers’ groups push government for change

Lawyers’ groups in Ontario are hoping the Ministry of the Attorney General will move forward in the months ahead to reform and expand the simplified procedure process to try to reduce the backlog in the civil courts. 
 
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B.C. limiting use of duelling experts in ICBC injury claims

The provincial government is implementing new limits on the use of duelling experts in ICBC injury claims as it continues working to fix the public insurer’s troubled finances. 
 
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BC government introduces immediate reforms to save ICBC

In an effort to steer the Insurance Corporation of British Columbia (ICBC) away from insolvency, the provincial government has introduced emergency reforms in the way auto injury cases are handled. 
 
 

Applicant v. Intact Insurance Company, 2018 CanLII 130843 (ON LAT),

by Admin2

Applicant v. Intact Insurance Company, 2018 CanLII 130843 (ON LAT), <http://canlii.ca/t/hxfbv  

Has the Tribunal violated the rules of natural justice by imposing the terms on the IE?
 
11.      Intact raises several concerns with the order. Intact argues that the Tribunal’s terms allow [the applicant] “to control the process”, in that [the applicant] can refuse any compromise, thus forcing the IE to proceed by writing without [the applicant]’s attendance, which is unfair and places it at a serious disadvantage.[2] The 2nd Term – an IE by paper review – also undermines the Tribunal’s own finding at para 24, that “it would be unfair to [Intact] if it is not given the opportunity to assess whether the applicant has sustained a catastrophic impairment under Criteria 8, the central issue of the hearing”.
12.      In sum, it argues, “To force the respondent to proceed with IEs only by way of paper review would put the respondent at a significant disadvantage…”, and that disadvantage is a denial of natural justice.
13.      [The applicant] submits that the Tribunal’s terms are proper – the Tribunal properly balanced the parties’ rights and considerations and the remedies available under the Schedule. [The applicant] notes that other decisions have also called for a key IE to be conducted by paper review. [The applicant] notes that Intact has failed to produce a “scintilla of evidence” that an in person assessment is necessary and lists several practical options available for Intact to conduct a meaningful IE without an in person assessment. Finally, [the applicant] provided a “post-decision update” which was that he offered a reasonable compromise to attend a neuropsychological assessment with an attendant and other conditions.
14.      I agree with [the applicant]. Boiled down, Intact’s argument is that Intact’s failure to receive the IE in the manner it prefers is grounds for reversing or amending the Tribunal’s decision. Assuming for the moment that in some cases an Insurer’s failure to conduct an IE in the manner it prefers is grounds to amend a Tribunal decision, in this case, as [the applicant] submitted, the Tribunal was required to and properly preformed a “balancing act” and so the results of the balancing mean that Intact may not receive the IE that it prefers. In that light, Intact is essentially asking that I substitute my opinion for that of the Tribunal’s member that heard the parties’ written submissions, the testimony of [the applicant]’s treating psychologist about potential harm, and the parties arguments. I find that the Tribunal did not make an error and I decline to substitute my own ‘balancing’ determination for the Tribunal member that heard the evidence.
15.      As [the applicant] argues, the Tribunal faced a situation of diametrically opposed interests, and needed to balance those interests with a practical result. The Tribunal did so, appropriately considering the options contemplated under the Schedule with the possibility of an IE proceeding under s. 44(4). This is not a novel approach. Specifically, s. 44 of the Schedule allows for “paper reviews” as a means of conducting an IE. Similar results were reached in 16-003144 v. Cumis General Ins. Co. and 17-005291 v. Travelers Canada. To be clear, the result in this case is very fact specific to the evidence the Tribunal heard in this case. The Tribunal obviously considered the evidence of risk of harm in this case to be very significant, and accordingly imposed the terms that it did. Without a meaningful risk of harm, the appropriate range of terms, if any, would be different.
16.      There is also no evidence before me that a paper review in this matter is impossible or essentially meaningless. In fact, the opposite appears true, as Intact has conducted 13 IEs to date including several neuropsychological assessments. For that matter, Intact has minimally explained the disadvantage, particularly as one of its assessors concluded that [the applicant] provided invalid testing results. As noted above, [the applicant] offers several reasons why the disadvantage is illusory. Thus, Intact is not really presenting a breach of natural justice, as much as simply asking me to hear the same evidence and come to a different result.

18-000456 v Aviva Insurance Canada, 2018 CanLII 130867 (ON LAT),

by Admin2

18-000456 v Aviva Insurance Canada, 2018 CanLII 130867 (ON LAT), <http://canlii.ca/t/hxfcr

  [23]        Dr. Oshidari conducted the other IE and drafted a multidisciplinary report dated March 6, 2018. He found the applicant had reached maximal medical recovery from a physical standpoint in relation to the 2016 Accident related injuries. Dr. Oshidari found that the applicant’s recent weight gain was the cause of the back issues and nerve issues. He recommended an exercise program to address the applicant’s weight. In addition, Dr. Oshidari found that the applicant no longer had any impairment related to the 2016 Accident.   

[24]        I give little weight to Dr. Oshidari’s report as it relates to the applicant’s entitlement to a chronic pain Treatment Plan. Dr. Oshidari’s report was mostly a copy and paste of an earlier report on June 20, 2017. It was light on details and not well developed. For example, he notes that applicant has gained weight and puts in brackets “(not related to Accident)”. Dr. Oshidari does not explain why he believes the weight gain is not related to the applicant’s symptoms nor what information he relied on to reach that conclusion. Dr. Oshidari also suggested the applicant simply needs a gym membership to address his weight which would presumably address his ongoing pain symptoms. However, the applicant had already stated to Dr. Brown that he was unable to go to the gym as a result of his chronic pain caused by the 2016 Accident.

   [25]        I prefer the report of Dr. Brown which is more detailed, thorough and provides explanation for the findings made over the report of Dr. Oshidari.

February 11, 2019

by Admin2

FAIR on The Agenda’s This Week in Review

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Drivers are killing more pedestrians in Canada every year. Here’s why: Michael’s essay

Last year, they killed more pedestrians and cyclists than died in the dreadful SARS epidemic of 2003. Many of those killed are seniors. The city responded to what is truly a life and death crisis by erecting small yellow signs which read: Seniors Safety Zone: Drive Slowly. One more piece of city signage for drivers to ignore as they race to the next red light. 
 
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Ontario – where you really don’t want to have a fender bender

Imagine a land where drivers pay 55 per cent more for auto insurance than other drivers in Canada, a land where an insurance company may not cover you because of the city you live in, a land where your automobile insurance premiums aren’t based on your driving record but your postal code. 
 
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Attending an Independent Medical Exam (IME)

At one point or another throughout your recovery, you will be asked to attend an Independent Medical Exam which is better known as an (IME) or as some of us call it… “an insurance medical exam.”  You will find yourself asking the same question I did when I was first asked to attend one.  I found myself wondering what this exam was and why I was being asked to attend.  In my case, I was the plaintiff and the request came from the defence lawyer.  It was the defence’s turn to have me examined by their doctor so they could determine the extent of my disabilities. 
 
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ICBC heading for another billion-dollar loss; CEO cites injury claims, legal battles

B.C.’s motor-vehicle insurance provider continues to bleed money, with new numbers showing Insurance Corp. of B.C. posted a net loss of $860 million in the first nine months of its fiscal year, putting it on track to lose $1.18 billion for the full year. 
 
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Ontario proposal to cap psychotherapy panned by mental health docs

Doctors are gearing up to battle the provincial government’s proposal to cap psychotherapy treatment and cleave their pay in a move the Ontario Medical Association says would see the neediest mental health patients suffer most. 
 
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Levels of Injury

Vertebrae are grouped into sections. The higher the injury on the spinal cord, the more dysfunction can occur. 
 
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Planning to retire on a low income:What you need to know

February 8, 2019

by Admin2
LSO and Gregory Stephen Neinstein
 
https://lawsocietytribunal.ca/Current%20Proceedings/Neinstein19H-015NOA.pdf
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IBC president: “We have a long way to go in Canada” when it comes to insurance

The president of the Insurance Bureau of Canada (IBC) shared his thoughts about the state of Canada’s insurance industry during the bureau’s recent luncheon event. 
 
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Checking in on Auto Insurance Prices in Ontario

Car insurance is one of those things that Ontarians have long since complained about. Residents don’t have an option, car insurance is needed in order to drive, but the insurance premiums can feel quite high and as though they are constantly increasing. 
 
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Ontario launches Civil Case Management Pilot – One Judge Model

Litigation cases are taking too long to move through the system.   Ontario had to find a way to relieve some of the backlog that has been piling up and straining judicial resources.   In 2018, I had the pleasure of participating in a case management pilot planning group chaired by Chief Justice Strathy, that also included members of the judiciary, the Ministry of the Attorney General, the Ontario Bar Association, the Advocates Society, the Law Society, and others, with the goal of examining support to explore utilizing a one judge model here in Ontario. 
 
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The Coming End of Lawyer Control Over Legal Regulation 

At the end of last year, as John-Paul Boyd ably chronicled on this website, members of the Law Society of BC voted on three resolutions regarding access to justice. The second of these resolutions — directing the law society to bar paralegals from providing family law services under new provincial legislation and to postpone any other enlargement of paralegals’ scope of practice — received overwhelming approval.