Privacy class-action lawsuit against insurer over credit scores could settle
__________________________________________________________________
Second Round of Catastrophic Insurer Examinations and The Obligation to Produce Records
Being involved in a motor vehicle accident is traumatic and recovering from injury can certainly be difficult. When we consider that the claims experience can also be challenging and invasive, we can appreciate the exceptional pressure and strain that our clients experience. We must always remain sensitive to protecting the well-being and privacy rights of those who have been injured in accidents.
_______________________________________________________________
Changes to auto insurance a good start: Hoffman
The Ontario government’s plan to modernize and streamline the auto insurance industry is a good start, but more needs to be done, says Toronto personal injury lawyer Jennifer Hoffman.
_______________________________________________________________
Ontario regulator considering ‘file and use’ for private passenger auto
A “file-and-use” system for private passenger auto rate changes could be coming to Ontario if a proposal from the province’s Financial Services Regulatory Authority comes to fruition.
_______________________________________________________________
Decision mean insurer ‘cannot rescind a contract prior to a loss,’ says lawyer
Recently, in Merino v. ING Insurance Company of Canada, 2019 ONCA 326, the court ruled that Merino was entitled to sue the insurance company, even though the insurer had tried to argue that it had terminated coverage for the driver, Timothy Klue, and his wife, Sonia Abou-Khalil, before the crash occurred. The insurance company had said due to “misrepresentations in the application regarding Ms. Abou-Khalil’s driving record,” it had rescinded the policy before the crash happened.
_______________________________________________________________
Things are turning around at Aviva Canada. After 18 months of “really tough action” and “hard conversations” for the insurer’s significant broker force, the firm finally has something to celebrate – at least in a calm, ‘pat on the back’ sort of manner.
_______________________________________________________________
Brian Goldfinger on what’s wrong with car accident cases in Ontario
Often bad things happen to very good people. This can have a devastating impact on the lives of the injured party, along with the lives of their families and loved ones. The future of one’s life can be altered for the worst in an instant thanks to some bad decisions.
_______________________________________________________________
Allstate ponders appeal in $700,000 lawsuit over Brampton auto insurance allegations
Allstate officials are considering appealing last week’s Ontario court judgement that rejected the company’s $700,000 counter-suit against a former employee.
________________________________________________________________
Ontario loses ‘top notch’ insurance law firm in Hughes Amys, says lawyer
For the first time since 1918, Ontario’s legal scene will not include insurance law firm Hughes Amys LLP.
The Hamilton- and Toronto-based firm’s website now says it has “ceased operations,” despite having a fully functional web page archived as of June 14, earlier this summer.
_______________________________________________________________
What is a Catastrophic Impairment?
If you have been in a car accident, lawyers, health care professionals, and those in the insurance industry will often raise the question of whether you have sustained a catastrophic injury. In the auto insurance world, “catastrophic” means much more than the common-sense notion of that term.
_______________________________________________________________
What To Consider When Choosing An Expert
In its seminal decision of Westerhof v Gee Estate,1 the Court of Appeal for Ontario provided the general framework for the admissibility of expert evidence in Ontario. Specifically, it clarified the role of participant experts at trial and confirmed that compliance with Rule 53.03 of the Rules of Civil Procedure was not required for their evidence to be admissible, as opposed to the evidence of litigation experts.
_______________________________________________________________
Women 73% more likely to suffer Death or Serious Injury in a Car Crash
Although automobiles are safer than they ever were, thanks to engineering innovations, women are far more likely to sustain fatal, serious and catastrophic injuries than men, when comparing the outcomes in collisions of equal severity. And, the primary reason for this is that auto safety tests have been almost exclusively carried out on crash test dummies that simulate the male physique, and automobile design and safety features have evolved based on the results of these tests.
_________________________________________________________________
The Trauma-Informed Courtroom
Why do judges and other justice professionals need to be cognizant of trauma as it relates to court cases? Like it or not, trauma seems to be the overwhelming negative factor affecting many people who come to court. From treatment court participants to those who have experienced child abuse and neglect, “adverse childhood events” (ACE) seem to be present in many cases. Tragically, people may leave the courtroom worse off than when they came in having suffered “Jurigenic Harm.”[1]
_______________________________________________________________
Ontario Government is reducing Pain Injection Treatments
Dear Patient with Chronic Pain and their Families and Friends,
The Government of Ontario is desperately looking at ways to reduce Ontario’s debt. The Ministry of Health has submitted recommendations to limit to cut certain health care services in Ontario. If implemented, these limitations and cut will directly affect your care as a pain patient.
_______________________________________________________________
18-000247 v Certas Direct Insurance Company, 2019 CanLII 72195 (ON LAT), <http://canlii.ca/t/j1sx2
Relief from the Limitation Period: Legislation Changes
[
54] Prior to April 1, 2016, under the Financial Services Commission of Ontario (“FSCO”) regime, an applicant was required to mediate and either commence an arbitration or action within two years of the refusals. Under this regime, an applicant had an extra 90 days after the Report of Mediator in which to file for a proceeding that was, essentially, equivalent to an application at the Tribunal. The 90-day grace period was removed by the changes to the legislation on April 1, 2016, when the Tribunal assumed jurisdiction over automobile accident benefits claims. Certas submits that the limitation period of two years, however, did not change after April 1, 2016.
[
55] In her submissions, E.L. makes reference to the change in the legislation, noting that she filed for mediation with FSCO initially on August 25, 2014 (for a single benefit which is not the basis of this preliminary hearing issue), and again on October 23, 2015 for an additional 15 benefits. Following a mediation that concluded on March 23, 2016, 30 claims for benefits were included in the Report of Mediator dated March 29, 2016 that were the subject of this failed mediation.
[8][
56] E.L. commenced a superior court of justice action on February 3, 2015, which dealt with the one benefit sought from her initial Application for Mediation dated August 25, 2014. Following the second failed mediation at FSCO, E.L., through her counsel at that time, moved the 30 issues into arbitration by commencing an arbitration at FSCO. However, on September 9, 2016, E.L. terminated counsel and withdrew her application for arbitration on these 30 issues.
[
57] E.L. then brought a motion to amend her statement of claim to include the items from her second mediation at FSCO, several other disputed benefits that were never the subject of any arbitration, and additional damages. This motion was heard on January 31, 2017 and the decision was released on February 2, 2017. E.L., however, did not file her motion materials as evidence for the preliminary hearing, so it is unclear what benefits, in addition to those from her October 23, 2015 application for mediation, she was requesting to be added to her statement of claim.
[
58] E.L.’s motion to amend her statement of claim was dismissed. The court found that after E.L.’s withdrawal of her request to arbitrate with FSCO, E.L.’s only option was to apply to the Tribunal if she wished to continue her dispute. The court held that to allow E.L. to amend her statement of claim to include failed issues from the March 2016 mediation would effectively circumvent the effect of the law as it existed after April 1, 2016.[
59] E.L. submits that the limitation period stopped upon her submission of her first and second mediation to FSCO. I do not agree with E.L.’s submission and she has provided no support for this position.
[
60] E.L. also argues that the two year limitation period would not start to run until after the court made its ruling on February 2, 2017. I also disagree with E.L.’s submission, as she provides no support for this position either. Furthermore, the court reviewed the change in the legislation in its decision and confirmed that
s. 280(1) and
(2) of the
Insurance Act directed all disputes initiated after April 1, 2016 to proceed to the Tribunal.
[
61] E.L. submits that she was caught in a time of change in the legislation and that she should not be penalized for this. The decision of 16-001976 v Co-operators General Insurance Company
[9] that was submitted by Certas directly addressed the limitation period set out in
s. 56 of the
Schedule for disputes that arose during this time. In 16-001976, Adjudicator Sewratten made no determination of whether the limitation period in
s. 56 of the
Schedulecould be relaxed due to the switch from FSCO to the Tribunal, and held, “to the extent that this power exists, however, this is not the case in which it applies.”
[10][
62]
Section 7 of
Licence Appeal Tribunal Act, 1999 (the “
LAT Act”) gives the Tribunal power to extend the time, despite any limitation of time fixed by or under any
Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief. Neither party, however, referred to this provision in their argument and declined to make further submissions regarding same following my request. Nevertheless, I am obliged to consider s. 7 of the LAT Act despite neither party citing this section.
[11][
63] In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:
(i) the existence of a bona fide intention to appeal within the appeal period;
(ii) the length of the delay;
(iii) prejudice to the other party; and,
(iv) the merits of the appeal.
[12][
64] I find that this is not a case in which I am prepared to exercise my discretion to extend the limitation period for the the benefit in dispute of $660.00 for chiropractic services set out in the March 6, 2014 OCF-18. As the limitation period for this benefit began to run on March 28, 2014, I cannot conclude that E.L. had a bona fide intention to appeal within the appeal period as, similar to 16-001976,
[13] there is no satisfactory explanation for her delay in applying to the Tribunal on January 10, 2018 after she was explicitly directed to do so by the court on February 2, 2017. Furthermore, the delay and resulting prejudice to Certas is significant, as E.L. did not apply to the Tribunal until 10 months after the expiry of the limitation period. While Certas remains liable for payment for any incurred goods, services, assessments and examinations described in the March 6, 2014 OCF-18 for the period starting on March 21, 2014, and ending on March 28, 2014, I find that E.L. is statute barred from proceeding with her claim for any incurred amounts of the $660.00 for chiropractic service outside of this period.
[
65] I do find, however, that this is a case in which I am prepared to exercise my discretion under s. 7 of the LAT Act to extend the limitation period for the benefits in dispute where the limitation began to run on December 8, 2015 and December 18, 2015. The two year limitation period for these benefits in dispute expired on December 7, 2017 and December 17, 2017 respectively. Therefore, there was a minimal delay in E.L. applying to the Tribunal for a determination of these benefits on January 10, 2018 of approximately one month and Certas has made no submissions on how it is prejudiced by this minimal delay.
