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The Dubious Status of Henson Trusts
by Martin Smith
June 09, 2014

Once a settlement amount is agreed upon, there is often much additional work to be completed prior to closing a file. Structuring a settlement, while typically largely the responsibility of the plaintiff or prospective plaintiff, can often cause significant delay in the final resolution of a file.

In order to maximize the amount received through settlement, plaintiffs who are recipients of benefits through the Ontario Disability Support Program (“ODSP”) will often try to create what is known as a Henson trust, in order to try to avoid negatively affecting their eligibility for benefits. This paper explains the origins and applicability of Henson trusts in personal injury settlements.

The Legal Implications of Concussions in North American Contact Sports
by James Tomlinson
May 30, 2014

Sports have long been a part of everyday life for many people, both as spectators and participants. With modern advances in science the true inherent dangers of many of these sports are finally being examined, specifically with regard to concussions. Recent studies have revealed an alarming prevalence of concussions and other head injuries suffered by athletes in contact sports that are played all over the world, such as football, hockey, rugby and soccer. The results of these studies have brought much attention to the laws, rules, and regulations governing the conduct of athletes, coaches, trainers and other key personnel when a potential concussion has been experienced. Due to the possibility of serious and permanent injuries occurring on the field, diamond, rink or other, the potential for high value litigation is ever present.

Bill 171: The Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014
by Catherine A. Korte
May 06, 2014

In the decision of Vijeyekumar and State Farm Mutual Automobile Insurance Company (1999) O.J. No. 2178 (C.A.), the deceased died of asphyxiation caused by carbon monoxide poisoning. He was found in his car, the engine was running and the hose had been attached to the exhaust pipe which ran to the front console inside the car beside the deceased. The deceased’s wife and daughter sued the deceased’s automobile insurer for death benefits under his automobile insurance policy. The Court of Appeal determined the applicable test was:

Ever Escalating Claims: The Evolving Auto Insurance Product Stresses on the System
by Catherine A. Korte
May 06, 2014
For those of you who self insure, let’s say the first million. For those of you who own fleets. For those insurers of cars and trucks. For everyone with an automobile policy of insurance. The following is a discussion of the stresses on the auto insurance product in Ontario.

Identifying Insurance Fraud in Tort Claims
by James Tomlinson
May 06, 2014
“Fraud”, for the purposes of this paper, includes staged accidents, claims for accidents that have not occurred, falsified medical records, and false statements on applications or claims.

Insurance Coverage for Injuries Caused by At-Fault Uninsured, Inadequately Insured and Unidentified Motorists
May 06, 2014

An at-fault party may have no insurance or may be inadequately insured. Further, where an unidentified motorist is at-fault (as in the case of a hit-and-run) there may be no practical means of securing compensation for an injury as the at-fault party and his insurer may never be identified.

The system in Ontario has two mechanisms for dealing with such scenarios: 1. Uninsured / Unidentified Motorist coverage under s. 265 of the Insurance Act

Paying for the Future: An Analysis of Large Awards for Future Care Costs
by James Tomlinson
May 06, 2014

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 Bryan15 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

Protection for Settlement Negotiations
March 04, 2014

In a recent Supreme Court of Canada decision, Sable Offshore Energy Inc. v. Ameron International Corp. the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.

The Effect of a Settlement on a Subrogated Action
March 04, 2014

Is an insurer precluded from pursuing a subrogated action if the insured settles its uninsured loss with the third party and signs a general release? This question was answered by the Ontario court in Busgos v. Khamis, a decision of which subrogating insurers should be aware.

Perspectives on Privacy
by Howard Borlack
February 27, 2014

Is installing a telematics device in an insured's vehicle an unreasonable invasion of privacy? Two lawyers debate the issues...

Ontario Automobile Insurance Dispute Resolution System Review - Final Report
February 20, 2014

Catherine Korte, MB's Chair of Accident Benefits, has been making submissions on behalf of the Ontario Bar Association, Toronto Medico-Legal Society and various Insurers to Justice Cunningham regarding proposed changes to the Automobile Dispute Resolution Process in Ontario. Justice Cunningham’s final report has now been released.

Attached is the Ontario Automobile Insurance Dispute Resolution System final review of the Honourable Justice Cunningham.  His final recommendations include:

  • A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
  • Arbitrators should be appointed by order of council on the recommendation of the responsible minister.
  • Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
  • The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
  • The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
  • Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.

Click below to access the report.

Cost Effective Resolution of Low Value Claims
February 06, 2014

Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.

Ontario Privacy Laws for Lawyer: Hot Topics in Privacy Law - 1 of 5
February 03, 2014

Ontario does not have a single overarching privacy and access law. Rather, it is subject to several different pieces of legislation that apply depending on the nature of the organization involved and the type of information that is being collected, used, or disclosed. The principal privacy legislation of interest to lawyers in Ontario is PIPEDA.

Overview of PIPEDA: Hot Topic in Privacy Law - 2 of 5
February 02, 2014

This article describes key concepts of PIPEDA including the application of PIPEDA, what personal information is, the privacy priniciples of PIPEDA, privacy issues in the context of litigation, employee personal information, international issues and using foreign service providers.

Tort of intrusion upon seclusion (Jones v Tsige): Hot Topics in Privacy Law - 3 of 5
February 01, 2014

The facts of Jones v Tsige are fairly straightforward: the plaintiff and the defendant both worked for the Bank of Montreal, albeit at different branches. They also were, at one time or another, involved with the same man; the plaintiff had been married to him previously, while the defendant was common law married to him at the time of the incident. Despite these intersecting facts, the plaintiff and the defendant did not know each other personally.

The defendant, making use of her access as an employee of the bank, accessed the plaintiff's banking information some 174 times.