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May 14, 2018

by Admin2

Belairdirect wins court battle with Ontario clinics it suspected of fraud

Charmaine Green was involved in a car accident on Sept. 20, 2009 that led her to apply for a no-fault statutory accident benefit from her insurance provider, Belairdirect.

It’s what happened next that led Belairdirect, which is owned by Intact Financial Corporation, to take on two health care clinics in court. 

https://www.lowestrates.ca/new s/belair-wins-court-battle-ont ario-clinic-suspected-fraud- 25138

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Paralegal license revoked for dishonest dealings with insurers

Ontario’s legal regulator has revoked the license of a Richmond Hill paralegal for professional misconduct, finding that he misrepresented himself to insurance companies in accident benefits claims. 

https://www.canadianunderwrite r.ca/insurance/paralegal- license-revoked-dishonest- dealings-insurers-1004131589/

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Brokers worried that Ontario auto problems will force companies to exit market

Traci Boland, chairwoman of the Insurance Brokers Association of Ontario (IBAO), spoke to Canadian Underwriter Thursday about trends in Ontario auto (as well as home and commercial lines). She said that companies are filing for rate increases, but not getting them; sometimes, not even close to what they were requesting. 

https://www.canadianunderwrite r.ca/brokers/brokers-worried-o ntario-auto-problems-will-forc e-companies-exit-market-100413 1579/

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Texters who distract drivers could be held liable in accidents: insurance expert

MONTREAL — An insurance and legal expert says texters could be held liable for any damages if they message someone they know is driving and that person has an accident.

“There’s an increasing public safety issue of operators of vehicles who are distracted while driving,” lawyer Jordan Solway said in a recent interview.

https://ca.news.yahoo.com/text ers-distract-drivers-could- held-110004612.html

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Consumers risk being sued for online criticism

A Canadian woman posted some negative comments on the internet about a restoration company in Ottawa and now the company is threatening to sue her for damage to its reputation. 

http://www.rcinet.ca/en/2018/0 5/11/defamation-critical-revie ws-internet-law/

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Why are we more susceptible to developing Alzheimer’s after brain injury?

A post on this blog by Alison discussed research which suggests that those of us who have sustained a Traumatic Brain Injury (TBI) have a higher risk of developing dementia, including Alzheimer’s, one of the causes of dementia. 

https://torontobraininjuryblog .com/2018/05/14/why-are-we- more-susceptible-to- developing-alzheimers-after- brain-injury/

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Personal injury lawyers want NL to push back insurance review

With Newfoundland and Labrador’s Public Utilities Board (PUB) set to hold hearings on the province’s auto insurance review, a group of lawyers is demanding for more time to allow it to weigh in on the issue. 

https://www.insurancebusinessm ag.com/ca/news/legal-expenses/ personal-injury-lawyers-want- nl-to-push-back-insurance- review-100515.aspx

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Eby: ICBC is a “decade behind” in terms of changes

British Columbia’s attorney general has issued a statement reaffirming the government’s decision to reform the province’s failing auto insurer. 

https://www.insurancebusinessm ag.com/ca/news/breaking-news/ eby-icbc-is-a-decade-behind- in-terms-of-changes-100497. aspx

May 11, 2018

by Admin2

The Personal Insurance Co. Privacy Breach Class Action

This proposed breach of privacy class action is brought in Federal Court on behalf of all persons resident in Canada who made insurance claims under their automobile insurance policies with The Personal Insurance Company between January 18, 2012 and February 8, 2018, and who had their credit score information accessed by The Personal or its agents. 

http://waddellphillips.ca/clas s-actions/the-personal-privacy -class-action/

The original National Post story: 

What the federal privacy watchdog did after an insurer pried into crash victim’s credit rating

http://nationalpost.com/news/c anada/insurer-violated-crash-v ictims-rights-by-accessing-his -credit-score-federal-watchdog -rules

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Hate crime charge hangs over Ottawa Centre candidate

Twenty-five names and you’re in. Oh, and you can’t work for the government. Aside from that, there’s not much stopping anyone from running for a seat of Queen’s Park, even if you were once stripped of your medical licence and have an upcoming trial for hate crimes.

Dr Sears and Medical Insurance Fraud Investigation 

SERVICES THAT THE SECOND OPINION® MEDICAL-LEGAL CONSULTANTS GROUP INC. PROVIDES TO INSURANCE CLAIMS ADJUSTERS AND RISK MANAGERS 

http://www.secondopinion.ca/me d_invest.html

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Claimant makes incorrect proof of loss statement: Error? or “Wilfully false”?

A claimant does not have to intend to deceive an insurance company in order to make a “willfully false statement” on a proof of loss, thus voiding the insurance policy, an Ontario court has ruled. 

https://www.canadianunderwrite r.ca/insurance/claimant-makes- incorrect-proof-loss-statement -error-wilfully-false-10041315 61/

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BC Government Passes Discriminatory and Arguably Unconstitutional “Minor” Injury Law

Well the BC Government did it.  Despite a written election promise not to strip British Columbians judicial rights to fix the ‘dumpster fire’ at ICBC they did exactly that.  With an extra dose of hypocrisy they expressly targeted those suffering collision related psychiatric conditions while celebrating “mental health week”. 

http://bc-injury-law.com/blog/ bc-government-passes-discrimin atory-arguably-unconstitutiona l-minor-injury-law

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Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (CanLII), <http://canlii.ca/t/hrxsd

[84]                          In any event, however, I agree with the majority that J. was not required to show that the “characteristics of the particular thief who stole the vehicle or the way in which the injury occurred”[42] were foreseeable in order to establish a duty of care. While the trial judge relied upon the foreseeability of theft by a minor to impose a duty of care, such duties are not conditioned upon the reasonable foreseeability of the particular circumstances which gave rise to the plaintiff’s actual injury (a matter which is properly considered at the remoteness or legal causation stage).[43]Imposition of a duty of care, rather, was conditioned in this case only upon J. showing that physical injury to him was reasonably foreseeable under any circumstances flowing from Rankin’s negligence. And, as I have explained above, it was open on the basis of Rankin’s own testimony to conclude that his negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury. This evidence is sufficient to support the trial judge’s conclusion that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence.

III.         Conclusion

[85]                          The trial judge’s finding of reasonably foreseeable physical injury is sufficient to bring the circumstances of this case within a category of relationships which has already been found to support a duty of care. As a matter of law, proximity is thereby established, and it is unnecessary to proceed to the second stage of the Anns/Cooper framework.[44]  Given that the parties argued the issue to be decided in this appeal, and in the courts below, as one of duty of care and not of remoteness, a finding on duty of care is dispositive. I would therefore dismiss the appeal with costs in this Court to the respondents J. by his litigation guardian, J.A.J., J.A.J and A.J. 

Read commentary on the ONCA decision:   http://canliiconnects.org/en/ commentaries/43948

May 10, 2018

by Admin2

Belair court victory exposes how clinics can abuse auto claims system

Belair Direct has succeeded in quashing an auto insurance claim that illustrates how rehab and assessment clinics can potentially abuse Ontario’s accident benefits law. 

https://www. canadianunderwriter.ca/ insurance/belair-court- victory-exposes-clinics-can- abuse-auto-claims-system- 1004131504/

Belair Direct Insurance Company v. Green, 2018 ONSC 2782 (CanLII), <http://canlii.ca/t/hrvst

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Ontarians overpaid $5 billion for car insurance because insurers don’t pass on savings: report

Ontario drivers may have overpaid a staggering $5 billion in auto insurance premiums over the last five years, said a report released this week by York University professor Fred Lazar.

The report, commissioned by the Ontario Trial Lawyers Association, claimed that while average claims costs per vehicle declined by 15.5% between 2010 and 2016, average premiums per vehicle only fell by 4.8% within the same period.

https://www.lowestrates.ca/ news/ontarians-overpaid-5- billion-car-insurance-report

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Government won’t appeal decision in Star’s challenge to secrecy in tribunals

The Ontario government will not be appealing a Toronto Star legal victory which should lead to more openness in the province’s tribunal system. 

https://www.thestar.com/news/ gta/2018/05/08/government- wont-appeal-decision-in- tribunal-case.html?platform= hootsuite

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We spent two days inside one of York Region’s most crowded mental health units. One patient worried ‘it’s not good for our recovery’

Crayons are the only writing tools you’ll find on the third floor of Southlake Regional Health Centre’s psychiatric intensive-care unit in Newmarket. Patients must sign them out and return them to staff, without exception.

https://www.thestar.com/news/ investigations/2018/05/10/we- spent-two-days-inside-one-of- york-regions-most-crowded- mental-health-units-one- patient-worried-its-not-good- for-our-recovery.html

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Concussion Information for Patients and Families

http://concussionsontario.org/ standards/tools-resources/ concussion-information-for- patients-and-families/

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Post Concussion Thoughts from a Pro Rugby Player

Concussion in professional sport is common. Fortunately, it is becoming more common for professional athletes to discuss the impact concussion has had on their lives. It opens the door for amateur athletes to admit and discuss their injures as well. 

https://www.deutschmannlaw. com/blog/post/post-concussion- thoughts-from-a-pro-rugby- player

 
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Gatling-Coquelet v. Allan, 2018 ONSC 2889 (CanLII), < http://canlii.ca/t/hrwhd 
 

[5]               By virtue of s. 131(1) of the Courts of Justice Act, I have broad jurisdiction to order costs.  Ms. Gatling-Coquelet concedes that I have jurisdiction to make a cost order in this case but says that I should decline to do so for various reasons. 

[6]               Citing Nelligan O’Brien Payne LLP v. Fontaine, 2006 CanLII 20091 (ON SC), 2006 CanLII 20091(ONSC), she argues first that an assessment process is a reference as opposed to an action or application.  As a result, the rules and principles that apply to these types of proceedings do not apply here.

[7]               I disagree.  An assessment process is not a special proceeding different from any other.  When either a client or a solicitor seeks an assessment, they apply for an order.  Although the order results in a reference to an assessment process, the mechanism to obtain it is an application. The person seeking the assessment is referred to as the applicant and the responding party as the respondent.  The standard order states that it is issued “upon application”.

[8]               Under Rule 38.08(3), where an application is abandoned, a respondent is entitled to the costs of the application, unless the court orders otherwise.  There is no reason why this rule does not apply to an assessment procedure.

[27]           Mr. Allan argues that he should get a higher cost award because the entire assessment process initiated by Ms. Gatling-Coquelet was an abuse of process.  I reject this argument.  A client always has the right to seek an assessment of their lawyer’s bill.  It does not, on its own, indicate bad faith. 

May 9, 2018

by Admin2

Tort Rights Eroded for Victims of Auto Accidents

Drunk, distracted and dangerous drivers – sit back and relax. Why?

Because you don’t have to fully pay for your mistakes. The insurance companies that hire lawyers for you and defend you in court have spent millions of our premium dollars lobbying the government of Ontario to take away the rights of the people you injure when you are driving. Because of these efforts, the people you injure are not entitled to receive full compensation for their losses.

http://otlablog.com/tort- rights-eroded-victims-auto- accidents/

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Medical Disorder: Bad doctors who cross the border can hide their dirty secrets. We dug them up

The Toronto Star built an ‘unprecendented’ database to track problem physicians throughout their careers across state, provincial and country lines. Most of the doctors we identified are Canadian-trained. Among them: a children’s kidney specialist convicted in California of possessing child pornography (working in Quebec now); a pediatrician who surrendered his New York licence after the state medical board discovered he faked his own suicide with a forged death certificate (working in St. Catharines, Ont. now); a family doctor who was jailed and stripped of his U.S. medical licences after being convicted of selling opioids to an undercover agent in Hawaii (working six days a week in Markham, Ont., now). 

https://www.thestar.com/news/ medical-disorder/2018/05/09/ medical-disorder-bad-doctors- who-cross-the-border-can-hide- their-dirty-secrets-we-dug- them-up.html

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Global litigation funding options hit Canadian market

Independent brokers are perfectly placed to help lawyers and their clients navigate Canada’s fast-changing litigation funding landscape, says Katie Armstrong, director of international development at TheJudge Global.

The firm, founded in 2000, is the largest international litigation funding and insurance broker, and recently entered the Canadian market via its merger with Toronto-based JusticeRisk Solutions.

http://www.advocatedaily.com/ thejudge-global-litigation- funding-options-hit-canadian- market.html

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Kolapully and TTC Insurance

Mrs. Shoba Kolapully was injured on March 6, 2012 in an accident with a TTC bus while she was a pedestrian walking across the street at a corner crossway.  She sought benefits under the SABS from the TTC but when the parties were unable to resolve their disputes through mediation Mrs. Kolapully applied to the FSCO. 

https://www.deutschmannlaw. com/blog/post/kolapully-and- ttc-insurance

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A nurse just lost her freedom to criticize health care. That’s bad for everyone

Carolyn Strom is a nurse from Prince Albert, Sask. In 2016, the Discipline Committee of the Saskatchewan Registered Nurses Association (SRNA) found her guilty of professional misconduct after she used social media to voice her concerns about the care her grandfather received at the end of his life in a nursing home in Macklin, Sask., a town in which Strom herself did not practice. Her comments were, by contemporary standards, balanced and restrained; she named neither individuals nor their profession and she thanked those who had provided good care. She ran afoul of the SRNA for hurting the feelings of a handful of nurses. The SRNA fined Strom $26,000, most of it to cover the costs of her own disciplinary investigation and hearing. 

http://business.financialpost. com/opinion/a-nurse-just-lost- her-freedom-to-criticize- health-care-thats-bad-for- everyone

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BC Psychologists Speak Out Against ICBC Plan to Label Psychiatric Conditions as “Minor Injuries”

As recently discussed the BC Government, at the lobbying of ICBC, are trying to pass a law reducing the rights of British Columbians who are injured by distracted, impaired or otherwise at fault drivers.

As part of the overhaul ICBC is trying to label all psychological and psychiatric conditions as “minor” injuries, taking away the judicial rights of people who suffer these injuries in collisions and capping compensation for these.

http://bc-injury-law.com/blog/ bc-psychologists-speak-icbc- plan-label-psychiatric- conditions-minor-injuries

 
 

 

May 8, 2018

by Admin2

Law protecting Ontarians from disclosure of police records finally gets green light

Legislation protecting innocent Ontarians from the release of unproven allegations and mental health records in police background checks will finally come into effect nearly three years after it passed unanimously in response to a Toronto Star investigation. 

https://www.thestar.com/news/i nvestigations/2018/05/07/law-p rotecting-ontarians-from-discl osure-of-police-records-finall y-gets-green-light.html

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Plaintiff not obligated to submit her private Facebook photos in Injury Lawsuit 

Increasingly, digital documentation such as private Facebook photographs is requested by defendants in the hope of challenging the plaintiff’s evidence of their injuries, in a personal injury claim.  However, private Facebook photographs are no different than private paper documentation, such as personal letters, and a defendant has no more right to demand disclosure of private digital documentation than they would have to a plaintiff’s private letters or photos, based on mere speculation that they may find damaging evidence against a plaintiff. 

https://www.ilolaw.ca/blogpost /judge-dismisses-defendants- motion-ordering-plaintiff-to- produce-facebook-photos

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There are no minor concussions

Minor concussion is a term often used by people. It isn’t one we hear so much from the medical profession any more though as we come to the understanding that any brain damage is serious and can have long term impacts. We also know that a serious of concussions is even more dangerous to the long term well being of an individual. Regardless of how a concussion is sustained we must consider it as brain damage. 

https://www.deutschmannlaw.com /blog/post/there-are-no-minor- concussions

May 7, 2018

by Admin2

Press release: Horwath says NDP will lower auto insurance rates by at least 15%

NORTH YORK – At a town hall on auto insurance Thursday evening, Ontario NDP leader Andrea Horwath announced that an NDP government will lower auto insurance rates by at least 15 per cent and ban the practice of neighborhood discrimination in the setting of auto insurance premiums. 

https://www.sudbury.com/local- news/press-release-horwath- says-ndp-will-lower-auto- insurance-rates-by-at-least- 15-913616

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How Michael Cohen, Trump’s Fixer, Built a Shadowy Business Empire

In the late 1990s and early 2000s, Mr. Cohen’s personal injury practice filed hundreds of lawsuits largely stemming from auto accidents. For part of that time, a bustling bullpen of clerks and paralegals worked the phones at his Long Island City office. They sought settlements with insurers and churned out suits on behalf of clients, many of whom were referred to clinics that were later caught up in no-fault insurance fraud investigations. 

https://www.nytimes.com/2018/ 05/05/business/michael-cohen- lawyer-trump.html?action= click&contentCollection=U.S.& module=Trending&version=Full& region=Marginalia&pgtype= article

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Series on bad doctors is alarming

The Star investigation regarding performance records for doctors is a sterling piece of research and writing.

The reports raise questions. Why is it necessary for Ontario patients to turn to the Star for information about medical performance? Why must Ontario patients rely on foreign jurisdictions for information about safe access to Ontario licenced doctors? And why, in a country with federal health care, do patients from one province have more secure access to medical performance than others?

https://www.thestar.com/ opinion/letters_to_the_ editors/2018/05/05/bad-doc- series-is-alarming.html

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Personal Injury Victims Need More Compensation

Steven Wilder is also a member of the Ontario Trial Lawyers Association and says compensation in Canada is unfair because it’s capped at just under $400,000 if a lawsuit is successful.

He says private insurance companies are not paying their fair share but make millions in profit.

http://blackburnnews.com/ chatham/chatham-news/2018/05/ 07/personal-injury-victims- need-compensation/

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#TorontoStrong Fund to donate initial $500,000 to victims and families of Yonge St. van attack. How will the rest be spent?

The #TorontoStrong Fund is giving the first $500,000 it raised since the Yonge St. van rampage to victims of the attack and their families.

As for the remaining $2 million collected, how it gets distributed is still to be determined.

https://www.thestar.com/news/ gta/2018/05/04/torontostrong- fund-to-donate-initial-500000- to-victims-and-families-of- yonge-st-van-attack-how-will- the-rest-be-spent.html______________________________ ______________________________ 

Report: Medical malpractice cases take too long, cost taxpayer too much

A recent report commissioned by the Ontario government found that medical malpractice cases in the province take too long to resolve and cost taxpayers too much money.

Authored by retired Justice Stephen Goudge, the report said it takes about seven years for cases to make their ways through the courts and nearly five years to reach settlements.

https://www. insurancebusinessmag.com/ca/ news/professional-liability/ report-medical-malpractice- cases-take-too-long-cost- taxpayer-too-much-99841.aspx

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Self-regulation is shielding bad doctors, not protecting patients

Doctors who have been disciplined by American medical boards can saunter back across the border to set up shop and, thanks to Canada’s secretive regulatory bodies, their Canadian patients may be none the wiser. 

https://www.thestar.com/ opinion/editorials/2018/05/03/ self-regulation-is-shielding- bad-doctors-not-protecting- patients.html

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Clarity needed on what drug manufacturers are paying doctors millions of dollars for

The opioid crisis in Canada is getting worse, despite efforts to curtail it. The latest figures suggest that more than 4,000 Canadians died last year from opioid overdoses. 

The main culprit for all this death currently is illicit fentanyl, which is 100 times more toxic than morphine. But the root cause of much of this crisis is OxyContin, which was prescribed widely by doctors before it was fully understood just how addictive and subject to abuse it could be.

https://www.thestar.com/ opinion/editorials/2018/05/05/ clarity-needed-on-what-drug- manufacturers-are-paying- doctors-millions-of-dollars- for.html______________________________ ______________________________

Provincial Election 2018

A public list by Ontario Medical Assoc.

Candidates running in the 2018 Ontario Provincial Election
https://twitter.com/OntariosDo ctors/lists/provincial- election-2018/members
Voter information
https://www.elections.on.ca/en .html
 
 
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A.B. v. Waite, 2018 ONSC 2151 (CanLII), <http://canlii.ca/t/hrcxf 

 

Conclusion

[22]           This is a disastrous outcome for the plaintiff.  It would only have been worse had I granted the threshold motion.  It illustrates the legislative intention that all but the most significant tort claims should be eliminated and injured motorists be largely confined to claiming no fault benefits under their own insurance policies.

[23]           It also illustrates how annual indexing of the monetary threshold for unreduced general damages and annual indexing of the deductible may in short order make unreduced general damages largely unattainable.  A review of jury awards in this jurisdiction over the past decade would reveal that general damages in excess of $130,000.00 are very much the exception.  There is no evidence that jury verdicts have become more generous to keep pace with inflation.

[24]           In conclusion I am compelled by the Insurance Act and the Regulations to reduce the jury verdict of $118,371.00 to $5,760.00.  Judgment may issue for the latter amount and I may be spoken to with respect to costs.

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. 

 

May 3, 2018

by Admin2

WALLACE: Liberals have no real appetite for auto rate cuts

Ontario Liberals have been promising to fix rising auto insurance premiums for 15 years.

They’ve repeatedly made and broken promises to lower rates, address fraud and hold insurance companies to account even as rates and insurance company profits soared.

http://torontosun.com/news/pro vincial/wallace-liberals-have- no-real-appetite-for-auto- rate-cuts

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AUTO INSURANCE STUDY REVEALS OVERSPENDING BY $5 BILLION

According to a new report drivers in Ontario have overpaid by approximately 5 billion dollars on auto insurance over the past five years. The report, commissioned by the Ontario Trial Lawyers’ Association suggests insurance companies might have made about 5 billion in pre-tax income between 2011 and 2016. Given the levels of excessive profitability, motorists almost certainly paid too much for coverage with estimates of the over payments amounting to about 143 dollars per policy, per year. 

http://www.zoomerradio.ca/show /fight-back-on-zoomer-radio/ fight-back-on-zoomer-radio- podcast/auto-insurance-study- reveals-overspending-5-billion /

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Ontario drivers overpaying on car insurance as company profits soar

A report by York University Schulich School of Business says drivers are being overcharged for their car insurance. Marianne Dimain has the story. 

https://globalnews.ca/video/41 79331/ontario-drivers-overpayi ng-on-car-insurance-as- company-profits-soar

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“Glaring errors” in report on auto insurance overpayments – IBC

The Insurance Bureau of Canada (IBC) has some bones to pick with a report commissioned by the Ontario Trial Lawyers Association (OTLA), which stated that motorists in the province have overpaid for auto insurance coverage by about $143 per policy each year. 

https://www.insurancebusinessm ag.com/ca/news/breaking-news/ glaring-errors-in-report-on- auto-insurance-overpayments– ibc-99621.aspx

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Regulators expect doctors to tell the truth about their past. Here’s what happens when they don’t

In May 2000, Dr. Martin Tesher signed papers telling the Ontario College of Physicians and Surgeons that he was not facing professional disciplinary actions anywhere he practised medicine.

That was a lie.

http://projects.thestar.com/do ctor-discipline/part-3/

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Who Pays for Health Care: Injuries from Motor Vehicle Accidents

When a person is injured in a motor vehicle accident, the Statutory Accident Benefit Schedule requires the automobile insurer to pay for non-professional health care services (such as personal support and homemaking services, attendant care services, and community support services). These services may be provided at home or in community settings such as supportive housing units, long-term care homes and complex continuing care hospitals. 

http://www.health.gov.on.ca/en /public/publications/ohip/moto rvehicle.aspx

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Automobile Insurance Basics & Accident Benefits – A Quick Preview

 

Superior Court decision calls into question whether LAT decisions are impartial or independent

by Admin2

Shuttleworth v LAT 2018 ONSC 3790

[67]  There is no formal and voluntary process, despite the statutory accountability process that calls for one. As the decision in this case was subjected to a peer review process that did not contain the required safeguards of adjudicative independence, decision of the adjudicator is set aside and referred back to the LAT for a new hearing.

16-000013 v Peel Mutual Insurance Company, 2017 CanLII 33649 (ON LAT) http://canlii.ca/t/h437f 

Report: Ont. drivers might have overpaid $5B on insurance over five years

by Admin2

Ontario insurance companies are potentially making billions in pre-tax income off motorists who are generally overpaying for coverage, according to a report commissioned by the Ontario Trial Lawyers Association. 

https://www.ctvnews.ca/canada/ report-ont-drivers-might-have- overpaid-5b-on-insurance-over- five-years-1.3910201