Author Archives: Admin2

Remember back in 2013 when our minority Liberal government promised us a 15% cut in car insurance rates by August, 2015? Earlier this month, Premier Kathleen Wynne belatedly admitted defeat, claiming this was always a “stretch goal”, whatever that means.

http://www.torontosun.com/2016/01/30/fair-auto-insurance-thats-a-stretch

 Subject to public feedback and comments received, these rules will be adopted by LAT on April 1, 2016. This will coincide with the anticipated “transition date” when LAT will begin having jurisdiction over certain automobile insurance disputes in relation to the Statutory Accidents Benefits Schedule (a regulation under the Insurance Act).

The draft regulations are open for public comment until January 23, 2016. http://www.sse.gov.on.ca/lat/english/Documents/Rules%20of%20Practice/Proposed%20LATRules%20English%2017December2015.htm

10.1               EXPERT WITNESS—GENERAL  

For the purpose of these Rules, an expert witness is a person who is qualified to provide professional, scientific, or technical information and opinion based on special knowledge through education, training or experience in respect of the matters on which he or she will testify.

Commentary

This provision is identical to current LAT Rule 6.4..

10.2               EXPERT WITNESSES (IDENTIFICATION AND DISCLOSURE)

A party who intends to rely on or refer to the evidence of an expert witness shall provide every other party with the following information in writing:

(a)  The name of the expert witness;

(b)  A signed statement from the expert, in the Tribunal’s required form, acknowledging his or her duty to:

(i)            provide opinion evidence that is fair, objective, and non-partisan;

(ii)          provide opinion evidence that is related to matters within his/her area of expertise;

(iii)         provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue.  

(c)  The qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert;

(d)  A report that sets out the expert’s conclusions and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal;

(e)  Where the written report exceeds 12 pages, excluding photographs, a summary stating the facts and issues that are admitted and those that are in dispute, and the expert’s findings and conclusions; and

(f)   Where that party intends to rely on or refer to the written report or the witness statement at the hearing, a copy of that report or witness statement signed by the expert witness.

 Commentary

This provision is based on the current LAT Rule 6.5. Subsection (c) refers only to a “report” rather than a “witness statement or written report” on an expert’s conclusions.

A more substantive change is the addition of subsection (b).  Subsection (b) is adopted from the current rules of Health Professionals Appeal and Review Board /Health Services Appeal and Review Board.  The new subsection is designed to respond to Recommendation #18 set out in the Hon. Douglas Cunningham’s Ontario Automobile Insurance Dispute Resolution System Review Final Report (“Cunningham Report”).  

10.3               EXPERT WITNESSES (DISCLOSURE TIMELINES)

The disclosure required by Rule 10.2 shall be made:

(a) By the party who filed the notice of appeal, at least 30 days before the hearing;

(b) By any other party at least 20 days before the hearing; or

(c) As ordered by the Tribunal.

Commentary

Identical to LAT Rule 6.6. 

10.4               EXPERT WITNESSES—CHALLENGES TO QUALIFICATIONS, REPORTS

A party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal

Commentary

The wording to the current LAT Rule 6.8 provides that LAT requires notice about a challenge to an expert five days in advance. Under the revised rules, it is being proposed that 10 days’ notice will be required.  

Bruff-Murphy et al v Gunawardena – Threshold Decision

“ Mr Neinstein argues that he has had a long and distinguished career representing unfortunate accident plaintiffs, and that his mis-steps in this case are isolated incidents in an otherwise exceptional career.”

http://www.canlii.org/en/on/onscdc/doc/2015/2015onsc7909/2015onsc7909.html

1. Hodge v Neinstein, 2015 ONSC 7345

[78] The appellants seek a declaration that any contingency agreement entered into by Neinstein & Associates with a client in which the firm has an entitlement to take any portion of costs in addition to a fee is unenforceable. Making such a determination is a question of law. Since there is evidence that this was a term of Neinstein & Associate’s standard form precedents, there is a factual foundation for it on the record. The determination of whether the agreements are unenforceable does not require a finding of breach of fiduciary duty within each lawyer and client relationship. Rather, the question would be whether entering into such an agreement without getting approval of the court, in and of itself, renders the agreement unenforceable. The only individual analysis required would be for each member of the class to be party to an agreement containing such a clause. Such a term can be built into the definition of the class. This would be a question common to all members of the class and one which would advance the interests of all members.

http://www.slaw.ca/2015/12/23/wednesday-whats-hot-on-canlii-146/

Amendments to Insurance Act regulations are proposed to provide for the transition of a transformed Ontario Automobile Insurance Dispute Resolution System (AIDRS) from the Financial Services Commission of Ontario (FSCO) to the Ministry of the Attorney General’s Licence Appeal Tribunal (LAT), and the wind down of disputes filed at FSCO.