Canadian citizens, and those not as fortunate to live in Canada, have the perception that 'uniform publicly funded' medical-related services are available nationwide in Canada and are 'free'... that is what it is to be Canadian. However, contrary to popular belief, there is no unified single professional regulatory, or single-payer national healthcare system in Canada. To the extent that there is healthcare that is publicly funded in Canada, it is funded on a provincial or territorial basis [here-in-after collectively 'provincial' or 'province'] and supplemented with federal funds that are 'conditionally' transferred to the province.
It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.
Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.
The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo...
What kind of evidence is likely to cause an automobile tort claim to flop?
A threshold decision of Justice P. J. Monahan released December 13, 2017, provides useful guidance on the issue.
The circumstances will sound familiar to insurers and their counsel.
Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?
The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.
In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.
The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340 Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000.00 in advance of the trial scheduled for November 2018.
The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015 following her admission of liability.
In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 (“HTA”). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.
Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.
This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward.
December 19, 2017
The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.
This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. The Lawyers of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.
On September 14, 2017, Justice Sanfilippo of the Ontario Superior Court of Justice granted summary judgment dismissing the plaintiff's occupiers' liability claim, stating that without objective evidence pointing to the cause of her slip and fall, the claim could not succeed.
The plaintiff, Mrs. Hamilton, a nine-year resident of an apartment building owned by the defendant, Toronto Community Housing Corporation (“TCHC”), alleged that on May 7, 2012, she slipped and fell in the 4th-floor hallway leading to her apartment unit...
The Ontario Superior Court of Justice recently released the trial decision where Martin Smith, successfully defended a chiropractic malpractice case where the plaintiff, (Patient), sued the defendant chiropractor for negligence and battery for alleged improper chiropractic treatments.
Recently in Middleton v Pankhurst,1 the Court of Appeal confirmed the parameters in which insurers may deny coverage on the basis that the insured was not a “person authorized by law” in accordance to Statutory 4 (1) Condition of O. Reg. 777/93:
Authority to drive
4 (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless...
As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.
This article will review post-accident steps for insurers and drivers.
In Teva Canada Ltd. v. TD Canada Trust, the Supreme Court of Canada considered the defence to the tort of conversion under s. 20(5) of the Bills of Exchange Act. The judges split 5-4, ultimately upholding the recent jurisprudence on the test for non-existing or fictitious payees instead of returning to a purely objective approach, as suggested by the dissenting judges.
The dispute arose from the fraudulent actions of Teva's finance manager.
The Office of the Information and Privacy Commissioner of Ontario (“IPC”) recently considered whether and under what circumstances insurers could collect health card numbers from their insureds.
The issue arose when the Ministry of Health and Long-term Care informed the IPC that individuals’ health card numbers were compromised by criminal activity and were being used to file fraudulent claims...
