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.
A newly released decision of the Superior Court has put time limits on the application of legislation that sought to “cap” the amount payable in respect of attendant care benefits.
Effective February 1, 2014 Ontario Regulation 347/13 provided that attendant care benefits provided by a family member were to be “capped” at the “amount of the economic loss sustained by that family member” as a result of providing the care.
The regulation was silent on the issue of whether it applied to claims arising from accidents occurring before February 1, 2014. This decision sheds some light.
As I stated in a previous post Jane Doe 464533 v. X, courts must always adapt the common law to meet the needs of the digital age. Justice Faieta's decision in Hardev Kumar v. Vinod Khurana, 2015 ONSC 7858 is an example of this trend. Unlike the case that I profiled previously, where the court recognized a new tort to compensate the victim of so-called “revenge porn”, the court in Kumar v. Khurana simply applied an age-old tort, defamation, with special sensitivity to the realities of internet communication.
In Merritt v. Tigercat Industries, 2016 ONSC 1214, the Honourable Justice D.J. Gordon ruled that an employer was not justified in terminating its employee for cause who had, among other things, been charged criminally with two counts of sexual assault against a minor. Justice Gordon granted the plaintiff employee summary judgment in the action and awarded him damages amounting to 10 months' pay in lieu of reasonable notice.
February 22, 2016
It's no joke—April Fools' (April 1, 2016) marks the day when accident benefit arbitration applications will begin to be received by the Licence Appeals Tribunal (“the LAT”) instead of by FSCO.
But fear not! The LAT's process, while new and unfamiliar, is in fact quite similar to that of the dispute resolution process at FSCO.
For an accident benefits insurer, the denial of a treatment plan used to be such a simple thing.
In an attempt to reduce the costs associated with insurer's examinations, the Ontario Legislature made insurer's examinations optional. In doing this, however, it introduced new procedural hurdles that insurers must overcome in order to properly deny treatment plans.
In the recently decided case of Gardiner v. MacDonald, 2016 ONSC 602, Madame Justice Roccamo presided over a trial arising from a brutal collision where a public transit bus T-boned an SUV at 1:54 a.m., on a cold, January morning, in Ottawa.
The public transit bus was travelling northbound on a well-travelled road in the "bus lane", and entered the intersection on a green light. The SUV was travelling westbound and entered the same intersection on a red light when it was struck by the bus, and propelled in a northerly direction until it came to a rest in the snowy and slushy street. The collision was so bad that the bus crossed a snow-covered median before coming to rest in a ditch.
Alcohol use by the driver of the SUV was a factor in the collision; no charges were laid against the bus driver as a result of the accident, but tragically, 3 of the occupants of the SUV, including the driver, were fatally injured. A fourth occupant sustained catastrophic injuries.
The only issue at trial was whether the bus driver (and by extension the municipality) was partially liable for the collision.
Are there ANY limits on an employer firing an employee during the initial probation period?
The Divisional Court recently weighed in on this evolving issue inNagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (Div. Ct.).
Nagribianko is a significant decision addressing the conflicting rights of employers and employees during probation periods.
The relentless expansion of the internet into all facets of our lives has created many opportunities for the advancement of the law. Cyberspace is the modern frontier for the law to tame. On any given day, the facets of the internet are built upon by the contributions of billions of people. As a result of its directly democratic nature, it contains examples of the full spectrum of human behaviour that runs from selfless altruism to selfish insecurities and hatred.
Justice Stinson's recent decision in Jane Doe 464533 v. X (the defendant's name is subject to a publication restriction) is a step in remedying the excesses of internet use.
February 02, 2016
The class action lawsuit is a unique legal procedure. Like any other court proceeding, class actions are a risk-reward proposition. The potential for settlement or damages must be weighed against the expense of litigation and, in some jurisdictions, the risk of an adverse cost award. As such, deep pockets and a high tolerance for risk are often critical to pursue a good case on the merits.
In this article, we discuss the treatment of third party funding agreements (TPA) by Canadian courts. After a review of the relevant legal principles, we outline the hallmarks of a properly drafted TPA as defined by the courts and discuss undefined areas for future consideration. Virtually all of the substantive case law on third-party funding agreements in the class action context stem from Ontario courts. We therefore focus on these decisions...
This Case Summary is a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's “contemporaneous, reliable, objective records.”
