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"Reason" for an Examination Under Oath

If requested by an accident benefits insurer, a person injured in a car accident “shall” submit to an examination under oath. These examinations can take hours and cover all aspects of the accident, nature of the injuries, the types of benefits claimed, etc. If a request for an examination under oath is made, the insurer must provide to the insured, pursuant to section 33(4)(3) of the Statutory Accident Benefits Schedule (“SABS“), the “reason or reasons” for the examination under oath.

These requests are of critical importance, as the consequence for refusing to comply is the possible suspension of accident benefits for the period of non-compliance.

Expert Evidence and Diagnosis Not Required to Prove Damages for Mental Illness

The Supreme Court of Canada released a landmark decision on June 2, 2017, in the matter of Saadati v. Moorhead. In short, the Court held that Plaintiffs claiming damages arising from a mental or psychological illness are not required to adduce expert psychiatric evidence to receive compensation for their damages, nor must they have been diagnosed with a recognizable psychiatric illness.

Licence Appeal Tribunal Case Law and Growing Pains

The Licence Appeal Tribunal (“LAT”) began hearing accident benefits disputes on June 1, 2016.
Since June 1, 2016, there have been approximately 100 decisions rendered by LAT adjudicators.
In this article, I review a few of the important cases to date and the principles emerging from them.
The overriding theme from the claims decided to date is that LAT adjudicators take very seriously their mandate of deciding cases in an efficient, proportional and timely manner.
The most significant case law emerging from the LAT deals with the issue of costs at the Tribunal. Ontario Courts follow the principle of “loser pays” whereby the successful party in litigation is traditionally rewarded by the unsuccessful party having to reimburse part of their legal costs and the reasonable disbursements incurred.

Claiming Economic Loss for Lost Opportunity

In Tierney, Arbitrator Robinson was asked to consider whether Jocelyne Wilson met the definition of incurred pursuant to subsection 3(7)(e)(iii)B of the SABS by accepting a co-op position that paid less than one she believed she may have gotten but for the collision. If so, Mrs. Wilson was entitled to be paid $155,000 in attendant care benefits.

On March 17, 2013, Mrs. Wilson’s three children were seriously injured in a car accident. One of her three children was deemed catastrophic. At the time of the collision, Mrs. Wilson was enrolled in a 1-year training course to become a medical records administrator. As a condition of graduating from the program, Mrs. Wilson was required to complete a co-operative placement. Based on her research, completed prior to enrolling in this program, Mrs. Wilson concluded that (1) there was a demand for medical records administrators, (2) co-operative placements existed in hospitals, (3) the College had a high success rate in placing its students and (4) salary expectations exceeded $20 per hour.

CPP not "a policy of insurance" per OPCF-44R

The Supreme Court of Canada has concluded that CPP disability benefits are not “a policy of insurance” for purposes of deductibility in family protection endorsements.
In automobile insurance, there are a number of forms of payments and benefits that injured victims may receive as a result of their injuries. In some cases, those payments or benefits may be deductible at law from the amount of money that the injured Plaintiff may otherwise have been able to claim from the at-fault Defendant in the tort action (i.e. the driver or owner of the at-fault vehicle). There have been a number of judicial decisions that have considered Canada Pension Plan (“CPP”) disability benefits in the context of this issue of deductibility. Most recently, on January 27, 2017, the Supreme Court of Canada released its Judgment in Sabean v. Portage La Prairie Mutual, which further defined the role of CPP disability benefits in tort claims.

What To Do If You Suffer a Personal Injury Aboard

What happens if you are in an accident and suffer a personal injury while you're away on holidays? As an Ontario resident, there are a few things you need to consider.

Crucial to Submit Disability Certificates (OCF-3) Early

Why it is NOW crucial to complete and submit a Disability Certificate (OCF-3) ASAP – An important message for hospital providers.

Traditionally, we have explained to hospital providers that while it was best for patients to submit their Accident Benefit documents (i.e. Application and Disability Certificate) to their accident benefit insurer ASAP, there was no serious consequence associated with a delayed submission of these forms.

However, recently accident benefit insurers have been relying on a provision in the governing legislation that allows insurers to avoid ever paying certain benefits (like vital Income Replacement Benefits) for the period before they have received a completed Disability Certificate (a completed OCF-3).

Read full article: Crucial to Submit Disability Certificate (OCF-3) Early

Confidential Consultations Between Experts and Counsel Now Permitted

There is absolutely nothing improper with counsel’s practice of reviewing draft expert reports, according to the Ontario Court of Appeal in its hotly anticipated January 29th decision in Moore v. Getahun et al (2015) ONCA 55 (OCA).

In fact, the Ontario Court of Appeal in Moore went further to say that draft reports, including notes of consultations between experts and counsel, are now subject to a qualified litigation privilege – a privilege that can be disregarded by the Court only in extreme circumstances where the opposing lawyer establishes a factual foundation to allege improper influence.

Court Confirms Attendant Care May Be Provided Remotely

The appropriateness of this type of indirect or remote attendant care has long been acknowledged by the Ontario Society of Occupational Therapists (“OSOT”). In its publication Assessment of Attendant Care Needs, Form 1: A Resource for Reflective Practice, OSOT specifically addresses the role of phones and other electronic devices as attendant care tools:

FSCO Appeal Decision Clarifies "Minor Injury Guideline"

The recent and much anticipated release of the FSCO appeal decision in Scarlett v. Belair1 signals that injured accident victims will have to work harder to get out from under a Minor Injury Guideline (“MIG”) classification by their insurers.

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