On June 28, 2016, the Ontario Ministry of Transportation (the Ministry) made an announcement that has significant implications for both the trucking and insurance industry. As of July 1, 2017, individuals seeking to obtain their Class A license for commercial trucks will be required to successfully complete an entry-level training course before being permitted to take their Class A road test.
On June 6, 2016, the Superior Court of Justice released its decision inMarfo v. Ahmed.1 In this case, the defendants, having already obtained a defence physiatrist assessment, requested that the plaintiff undergo a defence orthopedic assessment to counter the orthopedic report served by the plaintiff. Master Muir rejected the request and dismissed the defendants' motion, with costs. Here's why...
Updated June 2016 - The Ontario Court of Appeal's decision in Livent is complex in detail but simple in outcome. Auditors carry more responsibility when auditing publicly-traded corporations because the potential fallout from their negligence is greater.
The key legal and policy points arising from Livent appeal form the basis of this short case comment. While we largely agree with the court's decision, we also offer some constructive commentary in anticipation of a potential appeal to the Supreme Court of Canada.
June 01, 2016
In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario's history.
There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. It has resulted in various high-profile suicides involving teens and has contributed to some of the most horrific events of recent years.
A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'.
Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for insurers.
May 02, 2016
Section 42(1) of the current Statutory Accident Benefits Schedule,requires an insured to apply for attendant care benefits by submission of a Form 1, the “Assessment of Attendant Care Needs”, completed by an occupational therapist or registered nurse. Typically the Form 1 is submitted and – subject to insurer's evaluation of the claim – reasonable and necessary attendant care benefits are paid out on an ongoing basis.
However, the Schedule does not address what occurs when the Form 1 determines the attendant care benefits which were already previously incurred by the insured for a period in the past. These are known as “retroactive” applications and are rising in popularity.
April 25, 2016
In Jensen v. Fit City Health Centre Inc., the plaintiff, who was a member of the defendant’s gym, was injured while using a shoulder press machine caused by the defendant allegedly allowing the machine to exist in a defective condition. At trial, the jury found that the defendant was not negligent and, therefore, not liable for the plaintiff’s loss. Following the completion of the trial, the Court was tasked with making a determination on the validity of a waiver entered into between the plaintiff and the defendant that was contained within the gym’s membership agreement and associated membership renewal documentation.
Is an insurer's right to request or conduct an Examination Under Oath limited to the 10 day time period described in Section 36(4) and Section 33 (1) of the SABS?
FSCO was required to revisit the issue in a preliminary decision of Choeun ats Allstate issued by Arbitrator Janette Mills on March 14, 2016...
While the law was clear that a first party insurer ‘discovers' its claim for loss transfer on the day after it makes a request for indemnification, it was unclear whether there are any limitation periods relating to when a first party insurer must deliver an indemnification request to be entitled to seek indemnification under the loss transfer provision of the Insurance Act. This gap in the legislation was clarified in November when the Court of Appeal released its decision in the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and found that the doctrine of laches is not available to second party insurers when defending a claim for loss transfer.
This paper is intended to serve as a brief update on two topics that we focused on in our previous papers: Uber and autonomous vehicles. Given the rapidly evolving nature of both of these topics, we thought it prudent to provide a brief update on latest developments along with their implications for the insurance industry.
April 07, 2016
In August of 2015, the Ontario government proposed significant amendments to the province's no-fault automobile benefits regime, effective June 1, 2016.1 These amendments, made primarily to two existing regulations, echo announcements made by the government in its 2015 Budget.
The most notable changes are to the following areas: (a) non-earner benefits; (b) non-catastrophic and catastrophic benefits limits; and perhaps most important, (c) the definition of what constitutes a catastrophic impairment.
Although the courts are sceptical of “dubious science”, the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.
What constitutes a valid refusal of an accident benefit on the part of an insurer?
FSCO Arbitrator Anne Morris was required to revisit the issue in the hearing of Jody Falcon ats State Farm, with reasons released on February 16, 2016.
The Arbitrator's conclusion will be a surprise to many in the insurance industry as all three Explanations of Benefits ("OCF-9s") delivered by State Farm were considered to be invalid. As a consequence, no limitation period had been triggered, allowing the insured to pursue entitlement to an Income Replacement Benefit notwithstanding the passage of five and a half years since entitlement was disputed.
A decision released on March 1, 2016 by Justice Perell of the Superior Court serves as a useful reminder to insurers of the demanding notice requirements that apply to requests for repayment under Section 47 of the SABS.
The decision provides useful guidance to insurers about what to do in the face of a Plaintiff who resists a request for repayment.
In this age of fingerprint readers and PINs, I find it relieving to see that the old-fashioned signature can still hold sway. Indeed, the existence of a signature in accident benefits claims can make or break a file. In the recent case of Chaparina and State Farm1, Arbitrator Sapin, the procedural maven of the Financial Services Commission2, concluded that State Farm did not have to pay disputed medical benefits because treatment plans were not signed by both the claimant and the health practitioner who allegedly completed it. This ruling proves that accident benefits insurers must pay close attention to the details of treatment plans.
