Once a PSW, Always a PSW
On December 6, 2017, Adjudicator Go confirmed that an insured is entitled to be paid attendant care benefits regardless of whether the Personal Support Worker (PSW) was working in his/her field at the time of the collision.
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Insurer rejects reasonable offer to settle and is hit with a massive cost award
In a recent costs decision, Aviva Canada (“Aviva”) was hit with a $237,017.50 substantial indemnity cost award. The decision was rendered by Madam Justice Sanderson following a jury trial between the Plaintiff, Maria Persampieri, and various defendants insured by Aviva. The jury in the action had awarded the Plaintiff damages of $20,414.83 following an earlier trial.
The decision involves an elderly Plaintiff who was injured in a motor vehicle accident in 2009. By the time the case got to trial in 2017, the Plaintiff was 84 years old. The decision is significant because the Plaintiff made a formal offer to settle her claims prior to trial for the reasonable sum of $10,000, plus costs. According to the trial judge, “the insurer here rejected a Plaintiff’s offer that would have made it possible to pay minimal damages.”
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Car Insurance Reforms Bad for Taxpayers
Why lower premiums for less coverage will inevitably lead to higher taxes
Anyone want to save $100 per year on automobile insurance?
What’s the catch you ask?
Well, you will get less insurance protection than you need.
Oh, and did I mention your taxes will go up significantly because people without adequate insurance protection will now tap into the public purse?
In other words, paying less for automobile insurance gets you less in insurance coverage and results in increased government spending (also known as higher taxes).
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Another Bad AC Re Retro Application of Post-Feb.'14 Rule
A couple of months ago, I reported on the FSCO decision of MVACF v. Barnes. This was a concerning appeal decision, wherein the Director’s Delegate concluded that irrespective of when the crash occurred, any attendant care provided after the February 2014 amendment to the Statutory Accident Benefits Schedule (SABS) is subject to that amendment. The amendment changed the old “in for a dime, in for a dollar rule” to restrict the amount payable under the attendant care benefit for service provided by non-professionals to the actual economic loss suffered by that service provider (subject to the maximum of the Form 1 and policy limits).
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Pedestrian Car Accident Claims - To Settle or Not to Settle
Pedestrians involved in a car accident should be cautious when settling their claim. In particular, settlement of a catastrophic Statutory Accident Benefits(SABS) claim prior to the negligence trial can be risky. The recently released decision in Cadieux v. Saywell, 2016 ONSC 7604 (CanLII) is a perfect example of why this may not always be advisable where there are multiple defendants and a possibility your client will be found partially at fault for their injuries.
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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.
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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.
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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.
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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.
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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.
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