Discoverability a Rule of Construction for Limitations
Limitations in personal injury litigation can be contentious, especially since the nature of the damages suffered by a plaintiff may not necessarily be known at the initial time of loss. This is especially true in claims that include chronic pain, as these types of medical conditions are not diagnosed until several weeks after an injury.
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V1201 – The Court of Appeal’s Review of Limitations and Discoverability for Accident Benefits Claims
In March of 2018,
we reflected on the troubling decision of
S.T. and Economical Mutual Insurance Company (LAT 16-003034/AABS). This case involved terminations of attendant care benefit and housekeeping and home maintenance benefit. The terminations had been issued at the 104-week anniversary of the accident date and were based on the fact that there was no ongoing coverage in the absence of a confirmed catastrophic impairment. Economical issued written notice describing how to dispute the terminations and warning of the two-year limitation for pursuing such disputes.
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Intact’s take on the impact of no-fault auto insurance
No-fault insurance is not a silver bullet that is going to solve the auto liability problem, but it can be helpful to insurers, provided that the coverage is not too generous, suggests the head of Canada’s largest property and casualty insurer.
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Thoughts About Self-Regulation in the Public Interest
It is no secret that that self-regulation can be compromised by the tension between the public interest and the interest of the regulated profession
[i]. This tension leads some to say that self-regulation is inherently flawed and should come to an end.
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Rastin Review of Greig v. Desjardins, 2019, BCSC 1758: An assessment of damages for breach of good faith by disability insurance company
In a recent case decided at the Supreme Court of British Columbia, Greig v. Desjardins, 2019, BCSC 1758, the court decided whether disability insurance companies should be held accountable when they take unreasonable positions that are contrary to their obligations of good faith, and result in financial and emotional disaster for plaintiffs.
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Toronto lawyer pushing province to bring in ‘Textalyzers’ to catch texting drivers
A Toronto lawyer and prominent road safety advocate is pushing Ontario to implement a controversial technology that would allow police to test cellphones at the side of the road to see if drivers are using them behind the wheel.
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Researchers develop cars that can tell if you are texting behind the wheel (or below it)
AI is a hot topic globally. The future of AI and the future of humanity are closely tied. New facial recognition software can identify you, accurately guess your age and describe what you are wearing. It can even give your walk pattern a ‘signature’. Deep learning and AI are moving at leaps and bounds. It should come then as no surprise that a University of Waterloo research team has developed new software that can detect when people are texting and driving.
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What May Qualify as a Catastrophic Injury?
While many Ontario accidents only result in minor injuries, some can result in serious injuries that affect the rest of a victim’s life. Catastrophic injuries can cause significant physical, emotional and financial suffering. To further complicate matters, recent changes in Ontario law have made it more difficult for catastrophic injury victims to obtain compensation.
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Kingston man waits years for surgery to relieve painful condition
Bill Bagyan has been catheterized more than a dozen times since 2014 to relieve the pain from urethral stricture disease, which involves scarring in or around the urethra. Since being diagnosed, he’s had multiple surgeries scheduled to fix the problem — but each time, they’ve been cancelled. (Jean Delisle/CBC)
Not the words we’d expect to describe an Ontario court.
Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 DATE: 20191108 DOCKET: C66763
Absurd Result
[46] Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the Page: 16 legislative enactment”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418, at para. 27.
[47] Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed any benefits until she obtained CAT status in 2015, she would not be caught by the limitation period: Machaj v. RBC General Insurance Company, 2016 ONCA 257, at para. 6. Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits.
[48] This outcome is absurd. There is no principled reason for barring the appellant’s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late.
[49] The impossible position a hard limitation places the appellant is best illustrated by having regard to Economical’s counsel’s oral submissions. Counsel denied that the appellant was put in a lose-lose situation. She argued that the appellant could have applied to the LAT before the expiry of the limitation period for a declaration that, in the future, she would be entitled to extended benefits if she were subsequently found to be CAT. Page: 17
[50] I start by noting that courts must be cognizant of the significant disparity in resources between large insurance companies and their insureds, who do not have unlimited resources to bring multiple proceedings, including prophylactic claims based on a future contingency: see MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 88, leave to appeal refused, [2016] S.C.C.A. No. 39.
[51] In any event, if such a proceeding were commenced for a declaration, it is difficult to imagine how it could succeed. At best, the appellant could only lead speculative evidence that she might be CAT at some unknown point in the future. Faced with that evidentiary record, the LAT would likely decline to make the requested declaration.
[52] In my view, the hard limitation period puts the appellant in an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result. To choose it, as the LAT did, is unreasonable.
