CIN is a non-profit Advocate for Insurance and Health Care Reform. Postings are cut/paste from other sources. @Cinsurancenews #rally4accidentvictims #ABPetition #CPPbacklog
Showing posts with label civil justice system. Show all posts
Showing posts with label civil justice system. Show all posts
Monday, December 12, 2016
LAT hearings held in writing 'fundamental denial of justice'
“These people are not being given the opportunity to come before the tribunal and have their credibility assessed, have their doctors testify and have their lawyers cross-examine the insurance company’s doctors,” Singer tells AdvocateDaily.com. “Instead, it’s all done in writing.
Source/more:
http://www.advocatedaily.com/darryl-singer-lat-hearings-held-in-writing-fundamental-denial-of-justice.html
Thursday, April 16, 2015
Choices and Priorities
How do we as a society decide who is responsible to pay for access to justice initiatives and to what extent? Who sets those priorities and through what lens are those priorities ordered?
the only winners are those who continue to reap the benefit of hourly billings and that’s a declining number too as fewer and fewer are able to afford to pay those bills. Meanwhile, the social and personal costs continue to rise for society as a whole and especially, for those caught in the middle who can’t get the help they need.
More/source: http://www.slaw.ca/2015/04/01/choices-and-priorities/
the only winners are those who continue to reap the benefit of hourly billings and that’s a declining number too as fewer and fewer are able to afford to pay those bills. Meanwhile, the social and personal costs continue to rise for society as a whole and especially, for those caught in the middle who can’t get the help they need.
More/source: http://www.slaw.ca/2015/04/01/choices-and-priorities/
Tuesday, March 31, 2015
Letter: Lawyers not to blame for auto insurance costs
Barbara Taylor, director of policy at the insurance bureau, suggests that the tracking of lawyer fees will protect consumers while allowing the government to note the impact of lawyer fees on the auto insurance system (see “IBC wants regulation for personal injury lawyers,” Feb. 23). If the insurance industry really wants to control costs, I suggest that they take a hard look at what is expected of accident victims when they announce their intention to advance a claim. Immediately, there is a list of dozens of demands including an employment file, income tax returns, clinical notes and records of doctors, hospital records, drug store records, Facebook records, information on previous accidents, names and addresses of witnesses, identity of insurer, a statutory declaration as to how the accident occurred, and on and on.
This is even before there is a determination on whether the case will cross the verbal threshold. While the insurer gratuitously offers to pay reasonable costs, that does not include the time of the lawyer to pursue the various requested items. Has the insurance bureau ever costed the expense to the insurance company and therefore the system of reviewing the various productions when perhaps no claim has ever been advanced?
If litigation is instituted and the matter proceeds to examinations for discovery, again under direction from the insurance company, the defence lawyer will demand further productions and often these items generate some 30 or 40 letters that have to be prepared by the plaintiff’s lawyer. Assuming all these items are produced, has the insurance bureau computed the costs of first the defence lawyer collecting these items and the adjuster reviewing the same? By this time, the plaintiff’s lawyer will have incurred the cost of medical reports and the defence lawyer will make it clear that while they have to be produced, the insurer will not pay for them. Again, the plaintiff’s lawyer has to lay out that money and, of course, spend the time writing for and receiving medical reports.
If the lawyer for the defence wants a medical report, he will usually choose someone who is totally sympathetic to the defence position and, of course, that is an expense to the insurance company that often runs into the thousands of dollars. Then, based on that report, there is a denial arguing that the case does not meet either the threshold or the $30,000 deductible. At this point, having invested time and money, a plaintiff’s lawyer must decide whether to proceed to trial or throw in the towel.
In reality, if a settlement is achieved, it is usually based on analysis of two or three medical reports amounting to a compromise between the plaintiff’s medical information and the defence doctor’s report. In the end, the piles of paper generated by productions throughout the course of the claim are redundant; however, they have justified the salary of adjusters and defence lawyers, all of which costs the system and affects increases to automobile insurance premiums.
My point is that even if this paper chase is eliminated, the insurance bureau and insurance carriers will still find another way to shortchange proper compensation for innocent accident victims.
Bert Raphael,
Raphael Barristers,
Thornhill, Ont.
Comments
Legal pains: The cost of justice includes physical health
 |
| Click for larger version. |
The findings are a part of an ongoing five-year national study looking into the social and economic cost of Canada’s justice system.
“We’re concerned by the level of impact on society. No doubt that number is of concern,” says Trevor Farrow, associate law dean at Osgoode Hall Law School and the chair of the CFCJ.
But Farrow, the principal investigator of the cost of justice project, says the numbers did not surprise him.
“Quite frankly, while I’m certainly concerned about this, we expected the numbers would be significant,” he says.
The study also found unresolved legal problems are hitting the public purse outside of the justice sector. Annually, unsolved legal issues result in at least $40 million in additional health care costs, says Farrow.
That’s a conservative estimate based on one additional visit to the doctor each year as a result of legal pains.
“It’s based on annual estimates of what the health care system costs per person and what a modest increase per person amount to,” says Farrow.
He notes the details of these findings will be released in a more fulsome report in the future. As a whole, the ongoing study is also contemplating the mental health impact of unresolved legal problems, says Farrow.
But health care isn’t the only sector feeling the sting of unmet legal needs. A fact sheet published yesterday by the CFCJ says we’re also spending $458 million in additional employment insurance costs every year due to unresolved legal issues and dishing out an extra $248 million in social assistance costs.
What this means is “a well-supported, functioning justice system helps to reduce the knock-on costs of unresolved legal problems,” says Farrow. “The fewer of those problems we have, the more money we’ll be saving elsewhere. It’s not an isolated problem, it’s a collective problem that we need to notice.”
While the lack of access to justice is a well-known problem in Canada, the CFCJ study, funded by the Social Sciences and Humanities Research Council of Canada, is hoping to achieve a more sophisticated understanding of what the cost of that really is.
“What we didn’t really know is exactly what that [lack of access to justice] amount to in economic terms and also in related terms in health and wellbeing,” Farrow says. “I think the important thing is, from a user-centered perspective, we start to understand the connections between law and legal problems as part of broader social problems.”
#1 RE: Legal pains: The cost of justice includes physical health — Tammy Kirkwood2015-03-15 09:14
Another study showing the costs to Justice is unaffordable to the average person, thus, costs to our social services is picking up the slack. We’ve seen how the cost of a victim of MVA is laid at the feet of the public purse because the insurance industry passes on their responsibility, The government has cut down the social services to save money in the government purse. At some point when do the people in need become more important, than lining everyone else’s purses? I’m Curious
Source: http://www.canadianlawyermag.com/legalfeeds/2587/legal-pains-the-cost-of-justice-includes-physical-health.html#addcomments
Sunday, March 22, 2015
If you have something to say about the quality of the IMEs in Ontario
and the doctors who perform these services, this is a good place to
comment. Deadline April 1, 2015.
Current College of Physicians and Surgeons of Ontario CPSO consultations in respect to transparency at: http://www.cpso.on.ca/
Current comments regarding transparency at: http://policyconsult.cpso.on.
Past comments regarding transparency at: http://policyconsult.cpso.
Source: http://www.fairassociation.ca/
$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury
Adding to this site’s archives of pain and suffering awards for shoulder injuries,
reasons for judgement were released today by the BC Supreme Court,
Vancouver Registry, assessing damages for a chronic shoulder injury
sustained in a vehicle collision.
In today’s case (Mir Tabatabaei v. Kular) the Plaintiff was involved in a 2010 collision caused by the Defendant. Fault was admitted. The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties. In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:
In today’s case (Mir Tabatabaei v. Kular) the Plaintiff was involved in a 2010 collision caused by the Defendant. Fault was admitted. The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties. In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:
[66] It is undisputed that the accident
caused the plaintiff’s injuries. While pain is subjective I do not
doubt the plaintiff’s complaints of pain in his neck which disrupts his
sleep and pain in his injured right shoulder which interferes with
physical activity including his work as a carpet cleaner. The injuries
have affected the plaintiff’s ability to work as much as he did before
the accident. He works more slowly than before, cannot complete as many
jobs and cannot work as many hours in a day due to the pain in his
shoulder. I am not persuaded the plaintiff’s drug use had any
appreciable impact on his ability to earn a living. The comment recorded
by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to
anything specific, such as his employment, and I am not convinced on a
balance of probabilities the plaintiff complained that opium use was
affecting his job.
[67] Dr. Tarazi’s opinion provides a
deeper examination of the benefits and risks of surgery in the
plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to
rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury
and his opinion that surgery is not indicated due to the real
possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find
the plaintiff’s decision not to have surgery is a reasonable one…
[71] The plaintiff is 53 years of age.
He experiences pain in his right shoulder when he exerts himself. He
experiences pain in his neck at night which disrupts his sleep. There is
no cure for either of these conditions. His shoulder may get worse and
require him to undergo surgery which in turn carries risks.
Notwithstanding the pain and discomfort, the plaintiff has continued to
work to the extent that he is able and to participate in his previous
leisure activities, such as biking and swimming, albeit it to a lesser
extent than before the accident. I agree with counsel for the plaintiff
that Wong is very similar in terms of the type of injury involved;
however, the plaintiff in that case had an additional injury to her
knee. Nonetheless, it is a helpful benchmark. In all the circumstances I
find an award of $75,000 for non-pecuniary damages is appropriate.
Source: http://bc-injury-law.com/blog/75000-nonpecuniary-assessment-chronic-shoulder-injury?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+IcbcLaw+%28ICBC+Law%29
Saturday, March 14, 2015
Court Rejects “Perplexing” Defence Doctor Evidence Minimizing Plaintiff Disability
Reasons for judgement were released today by the BC Supreme Court,
Vancouver Registry, addressing damages following a rear-end collision.
In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for. In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries. In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140] In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:
In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for. In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries. In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140] In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:
[159] Mr. Sirak is a middle aged man. He
was 45 years old when the accident occurred and is now 55 years old.
Prior to the accident, he was healthy, energetic and physically active.
It is apparent from the lay witnesses, who testified on his behalf, that
he was a cheerful, happy, outgoing person who enjoyed life and had many
friends. His family was important to him and he enjoyed spending time
with them. He enjoyed participating in a wide range of recreational
activities. He worked long hours in a physically-demanding career, and
had earned the respect of those in the construction industry in the
Squamish and Whistler area.
[160] For the past ten years, Mr. Sirak has
suffered from severe, disabling, and progressively worsening pain and
neurological symptoms. These symptoms have very significantly affected
all aspects of his life. Even if he undergoes surgery, he is unlikely to
experience any substantial improvement. His condition is most likely
permanent. He faces many years of ongoing pain and compromised
lifestyle. His personality has been affected. He has gained weight. His
sleep has been affected. His appearance has changed. He has become
sloppy and unkempt. He can no longer participate in most of the
recreational activities he previously enjoyed. He cannot play with his
grandchildren in the physical, rambunctious way that was his
pre-accident nature. This, in particular, has caused emotional
suffering. He has become quiet and socially withdrawn. He now spends
most of his time alone.
[161] It has become increasingly difficult
for Mr. Sirak to continue to work as a painter or in any physical job.
He has suffered financial consequences as a result, which will be
addressed in the next section of this judgment, but this has affected
his enjoyment of life in other ways as well. First, he has had to force
himself to continue to work on a part-time basis so that he is able to
support himself and his son, but this has further compromised his health
and exacerbated his pain. Second, he has had to live with the prospect
that his injuries will eventually preclude him from working in any
physical job. Given his limited formal education, and now limited
functionality, his options for more sedentary work are few. It is
apparent, from a consideration of the whole of his evidence, that this
reality, together with his poor prognosis, has weighed heavily on him,
and has had an adverse effect on his overall emotional well-being…
[167] Awards of damages in other cases
provide a guideline only. Ultimately, each case turns on its own facts.
Having considered the extent of Mr. Sirak’s injuries, and all of the
cases presented by counsel, I am of the view that an award of $160,000
for non-pecuniary damages is appropriate in this case.
Source: http://bc-injury-law.com/blog/court-rejects-perplexing-defence-doctor-evidence-minimizing-plaintiff-disability?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+IcbcLaw+%28ICBC+Law%29
Remedial Costs for Unreasonable Settlements by Insurers
In the threshold motion in Maxwell v. Luck, previously discussed here,
Justice Howell pushed back against what is increasingly becoming a
routine attempt by insurers to dismiss chronic pain on the basis of the
lack of objective symptoms in personal injury claims.
Justice Howden awarded fixed costs of $150,400, and disbursements of $ 56,332, taking into account that the plaintiff was under a statutory obligation to pursue accident benefits as well. This approach was upheld in Moodie v. Estate of Delores Greenaway, [1997] O.J. No. 6525, where the court stated,
In my view such pursuits are part and parcel of the Plaintiff’s obligations in an action against the tortfeasor by reason of the releases available to the tortfeasor under the Insurance Act and only in any compelling circumstances should the unsuccessful tortfeasor escape responsibility to indemnify the Plaintiff for the costs of such pursuits…However, Justice Howden also made note of the “hard nosed” approach adopted by the insurer, who had not made significant efforts to resolve the dispute. Insurers are required under ss. 258.6(1) and (2) of the Insurance Act to participate in mediation, and ss. 258.5(1) and (5) requires them to “attempt to settle the claim as expeditiously as possible.” Where they fail to do so, the court is required to consider this when awarding costs.
Justice Howden in applying this provisions awarded an unusual “remedial” penalty. This penalty was described by the Ontario Court of Appeal in Keam v. Caddey,
[28] Morden J.A. describes the costs sanction as a “remedial penalty”. It is remedial because it is intended not only to compel compliance by insurers with an important statutory purpose, but also to provide a remedy to the other party who was deprived of the opportunity for an early settlement of the claim. It is a penalty because it is not intended to be merely compensatory of costs unnecessarily incurred by the other party or parties, as that objective is already addressed by other costs provisions of the Rules of Civil Procedure, but to provide a meaningful consequence to an insurer that elects not to comply.
[29] The legislature chose not to provide a specific cost consequence for an insurer’s failure to participate in mediation, such as substantial indemnity costs against a losing defendant or deprivation of full costs of a winning defendant. Instead, the trial judge is accorded the discretion to determine the appropriate cost consequence in each case. In summary, where an insurer breaches s. 258.6(1), s. 258.6(2) requires the trial judge to ascertain the appropriate remedial costs penalty in the circumstances.The purpose of these provisions has been described by Justice Ramsay in Ross v. Bacchus as follows,
[emphasis added]
[6] …I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases…The public policy rationale behind this is that there is inherent power imbalances between insurance companies and public litigants. Without a statutory obligation to settle a claim and explore mediation, insurance litigation would be characterized by an inherent unfairness to the opposite party.
Judges have refused to award remedial costs outside of the context of the Insurance Act. For example, Justice Ramsay rejected that these provisions should apply to the municipality in Williston v. City of Hamilton on the basis that the defendant was not an insurer by name or by subrogation.
However, the Ontario Court of Appeal overturned this decision, stating these provisions are not to be interpreted as applying strictly to insurers, especially where counsel are representing both the municipality and the insurance company.
In Maxwell, Justice Howden assessed the remedial penalty to be $50,000, for a total costs award of $256,732.
Both Ross and Maxwell are currently being appealed, but serve as an additional warning towards insurers. As the decision in Lakew v. Munro illustrates, insurers will not automatically be held liable for remedial costs simply because a file fails to settle. However, insurers should be more reluctant to dismiss subjective pain symptoms on the lack of physically observable objective mechanisms. The medical science itself illustrates that pain perception is far more complicated than that.
The additional warning in the costs decision is that the hard stance taken by insurers since the 2010 insurance reforms and following may have other financial implications. When an insurance company offers no settlement and refuses to mediate outright, courts are likely to express censure to this behaviour. The insurance system is under significant pressure, and legislative amendments were intended to streamline claims and pass on savings to consumers.
Instead, insurance companies have appeared to profit. Hard-line positions by some insurers who are known to largely refuse settlement can result in up to a dozen or more claims which are abandoned by plaintiffs, representing significant savings to the insurer. But neither benefits the clients of the insurer, or those involved in a tort claim benefit. More importantly, the refusal to settle imposes a cost burden on the justice system itself.
Bruce Cran, president of the Consumers’ Association of Canada, stated,
Insurance company margins have increased incredibly over the last decade. The companies are making a lot of money and people are getting less benefits … to be perfectly honest, I don’t know how you’re going to fix Ontario.
Comments
RE: ” the “hard nosed” approach adopted by the insurer…”
This will never end until the insurers’ rogue medico-legal experts upon whom they rely for their (too often) bogus accusations of malingering are purged from the system. But neither the insurer defence lawyers nor the plaintiff lawyers (OTLA) have the slightest interest in cleaning up the shoddy IME/IE system which drives the Ontario auto insurance adjudication system. Better to litigate (talk about) this stuff over and over (on the clock) than to expel the “hired guns” from the system. To do so would result in less work for the lawyers. So it doesn’t matter that “Calling an expert to say that no objective finding equals no pain is on longer acceptable (below)” – the lawyers keep on keeping. This I just one more reason why litigation costs keep escalating while access to justice keeps diminishing.
https://www.canlii.org/en/on/onsc/doc/2008/2008canlii49158/2008canlii49158.html?searchUrlHash=AAAAAQARY2xhc3NpYyBoaXJlZCBndW4AAAAAAQ&resultIndex=1
Guerrero v. Fukuda, 2008 CanLII 49158 (ON SC)
[4] A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
[5] Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
[7] Usually this matter, in jury cases, is left until all of the evidence has been heard. The threshold issue is then argued in the absence of the jury, often while they are deliberating.
[8] This can easily result in conflicting decisions as effectively both judge and jury are separately determining the existence and severity of the alleged injuries. The trial judge may well find that the threshold “was not met” and then be confronted with a substantial jury award which would indicate that the jury believed otherwise.
[9] I suspect this, in many cases, leads to the judge awaiting the verdict of the jury before rendering a decision on the threshold issue and thereby being unduly influenced by the jury findings.
[10] Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions. This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.
[11] This, however, would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.
[24] I reject Dr. Clark’s evidence outright. He was a physiatrist called by the defence. His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.
Source: http://www.slaw.ca/2015/02/22/remedial-costs-for-unreasonable-settlement-on-threshold-motions/
This will never end until the insurers’ rogue medico-legal experts upon whom they rely for their (too often) bogus accusations of malingering are purged from the system. But neither the insurer defence lawyers nor the plaintiff lawyers (OTLA) have the slightest interest in cleaning up the shoddy IME/IE system which drives the Ontario auto insurance adjudication system. Better to litigate (talk about) this stuff over and over (on the clock) than to expel the “hired guns” from the system. To do so would result in less work for the lawyers. So it doesn’t matter that “Calling an expert to say that no objective finding equals no pain is on longer acceptable (below)” – the lawyers keep on keeping. This I just one more reason why litigation costs keep escalating while access to justice keeps diminishing.
https://www.canlii.org/en/on/onsc/doc/2008/2008canlii49158/2008canlii49158.html?searchUrlHash=AAAAAQARY2xhc3NpYyBoaXJlZCBndW4AAAAAAQ&resultIndex=1
Guerrero v. Fukuda, 2008 CanLII 49158 (ON SC)
[4] A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
[5] Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
[7] Usually this matter, in jury cases, is left until all of the evidence has been heard. The threshold issue is then argued in the absence of the jury, often while they are deliberating.
[8] This can easily result in conflicting decisions as effectively both judge and jury are separately determining the existence and severity of the alleged injuries. The trial judge may well find that the threshold “was not met” and then be confronted with a substantial jury award which would indicate that the jury believed otherwise.
[9] I suspect this, in many cases, leads to the judge awaiting the verdict of the jury before rendering a decision on the threshold issue and thereby being unduly influenced by the jury findings.
[10] Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions. This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.
[11] This, however, would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.
[24] I reject Dr. Clark’s evidence outright. He was a physiatrist called by the defence. His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.
Source: http://www.slaw.ca/2015/02/22/remedial-costs-for-unreasonable-settlement-on-threshold-motions/
Monday, February 23, 2015
IBC wants regulation for personal injury lawyers
Monday, 23 February 2015 08:00 | Written By Yamri Taddese
The Insurance Bureau of Canada says it would like to see regulatory oversight of how personal injury lawyers structure their contingency fees due to what it calls a major gap in transparency in the auto insurance system.
“We need to at least review this issue. Why aren’t we talking about this?” says Ralph Palumbo, Ontario vice president for the Insurance Bureau of Canada.
All key players in the auto insurance system, including insurance companies and rehabilitation providers, must adhere to regulations around their fee structures, says Palumbo, who notes additional players like tow-truck drivers are now subject to regulation thanks to changes under Bill 15.
“It appears that the only major stakeholders in the system that really [aren’t] regulated are personal injury lawyers,” he says.
Palumbo says trial lawyers should file their fee arrangements with the office of the superintendent of insurance or another body that will review the financial impact these fees may or may not have on insurance costs and premiums.
“There is a sense that often providers, whether they’re lawyers or rehab providers, push claims to a higher level so that the awards are higher. That’s the sort of thing that we need to guard against,” says Palumbo.
“No one is saying the claimant shouldn’t get what is reasonable in the circumstances, but we want to make sure there aren’t outside financial pressures that will drive up those costs.”
Barbara Taylor, director of policy at Insurance Bureau of Canada, says the change will protect consumers while allowing the government to track the impact of lawyers’ fees on the auto insurance system.
“First off, we’re asking for a consumer-friendly fee disclosure statement,” she says.
“So that’s something where we want to make sure the consumer has clear transparency on that arrangement that they have with the lawyer. Then we’re asking that that information also be shared with someone like the [Financial Services Commission of Ontario] superintendent, who can then use that information to assess the impact on auto insurance as well as perhaps issue an annual report.”
Ontario Trial Lawyers Association president Steve Rastin says the Insurance Bureau of Canada is suggesting lawyers work harder in order to maximize the value of the case if they have a stake in it.
“You know what, that’s an insult to lawyers,” says Rastin.
“It implies that I won’t do my utmost for my client unless I have a piece in the action. You know what, I think lawyers everywhere should be insulted by the allegation that we’ll work harder for our clients when we have a stake in it.”
He adds: “I work to the best of my ability for every client whether I’m doing the file on a pro bono basis or an hourly rate or contingency rate. To argue that I work harder for somebody because I have a contingency fee, it would be a fundamental violation of the professional code of conduct, our ethical obligations, and I think there are right-thinking lawyers everywhere who put their best effort in for the client no matter how they’re going to be paid.”
Rastin also says there are already sufficient oversight mechanisms in place to guard against improper conduct by lawyers. He calls the Insurance Bureau of Canada’s call for more regulation “a smokescreen” to mask the hefty profits earned by insurance companies.
“I can tell you that what I bill my clients is absolutely transparent,” says Rastin.
“My client knows in the beginning what I’m going to bill them and at the end. For people that are under disability, minors or people in vulnerable situations, we have to get court approval for our accounts. There is already an oversight body in place.
There are lawyers [who] are disciplined for not billing according to proper practices. I don’t want the insurance industry, which meddles in every private area of our lives already, I don’t want them meddling in my personal relationship with my clients.”
Contingency-fee arrangements between lawyers and their clients aren’t to blame for insurance companies’ costs, he adds, noting there are caps in place for the damages plaintiffs can collect for several types of injuries.
Plaintiffs often opt to settle for fear of cost orders that would mean losing their life savings, Rastin adds.
To Rastin, the noise around the issue is a distraction from what he calls “way more serious” concerns with the auto insurance system. “For instance, why are there government-mandated returns on capital for the insurance industry that are something like 11 per cent?” he asks.
Palumbo, however, says it’s only “natural” that lawyers are resistant to regulatory oversight around their fees.
“It’s pretty natural. They have a vested interest in making sure there is no regulatory oversight on their pricing schemes,” he says.
“We don’t think that’s appropriate,” he adds.
Part of the issue, he says, is transparency. “At the end of the day, if the government decides not to impose a cap [on contingency fees], that’s fair enough. But why is this a problem to talk about transparency? I don’t quite understand that.”
The issue isn’t contingency fees themselves, according to Palumbo, but whether those arrangements are always appropriate. “We’re not suggesting for a moment that any of this shouldn’t happen; we’re not against contingency fees. All we’re saying is that the last piece of the [transparency] puzzle is personal injury lawyers, really. No one is reviewing that aspect of the auto insurance system.”
COMMENTS
Discuss IBC wants regulation for personal injury lawyers:
Moira Gracey says:
2015-02-23 07:15 PM
is the IBC suggesting that injured people who have been thrown out of work and are subsisting on the much-reduced accident benefits available be required to pay lawyers up front by the hour? How can the IBC suggest - or the Law Times uncritically report - that lawyers' contingency fees are not regulated? Does Ontario Regulation 195/04 (appropriately entitled "Contingency Fee Arrangements") not count as regulation? Until the insurance industry agrees to a specific tax to fund enough legal aid clinic with enough salaried lawyers to represent all the customers from whom the insurance companies are inappropriately denying benefits, there isn't much alternative to contingency fee arrangements that won't leave injured people high and dry - and insurers laughing all the way to the bank. Insurers should try spending less money fighting claims than they do paying them - that might be a more effective way to lower premiums!
Devils Trumpet says:
2015-02-23 06:30 PM
Sorry to get you excited,the comments were intended for another post that had nothing to do with regulation of lawyers or insurance.My post here was copy and paste,it included a line from a seperate post entirely. I have no knowledge of any insider information regarding Ontario auto insurance.If I did,I doubt very much that I would announce it in this forum. I apologize for my inadvertent mistake,I will double check before I post in the future.
Peter Cozzi says:
2015-02-23 06:05 PM
I have advocated at FSCO for a Consumer Bureau mirroring the Insurance Bureau of Canada to advance the interests of consumers to Government funded by a levy per insurance policy paid for by the same consumers who pay their insurance premiums to Insurance companies every day which in part are used by those insurance companies to fund the IBC. Such a consumer body, properly funded, like the IBC, will be able to inform Government concerning insurance issues from the consumers perspective and thereby provide Government with a balanced view when considering legislative and regulatory changes such as the IBC proposal concerning contingency fees and more.
Tim Boyle says:
2015-02-23 05:56 PM
That Mr. Francis is a shill for the insurance industry is obvious, the only thing unclear is how much he is being paid for being so.
Stew Daroux says:
2015-02-23 05:36 PM
It just amazes me that someone can hold such a lofty position in the insurance industry and really not have a clue regarding the degree to which lawyers are regulated and fee arrangements are scrutinized. In British Columbia there is legislating specifying the maximum percentage fee a lawyer can charge without prior court approval. In addition, clients are notified as part of any Contingency Fee Agreement that they have the right to have the fee ultimately charged reviewed by the Court. They also have recourse to the Law Society of any Province which overseas the practice of lawyers in that jurisdiction. Where is the lack of "regulation" that Mr. Palumbo refers to?
Curious Cat says:
2015-02-23 04:47 PM
What kinds of documents are you alluding to?
Devils a Trumpet says:
2015-02-23 04:10 PM
Another attempt to control every aspect of a claim,the insurance industry once again portrays everyone but themselves as theives while they defraud rate payers and the public.Of course lawyers rip off clients,just not as bad as the government sanctioned theft by the insurance companies. Not one participant other than the claimant has one scintilla of integrity,their just a bunch of criminals running the system. Wait till insurance insider documents begin to surface soon.
Brian Francis says:
2015-02-23 12:30 PM
RE: "Plaintiff lawyers are the only ones fighting for the clients' rights... Plaintiff lawyers (OTLA) advocate for their own interests - not the interests of injured claimants. They aren't always the same. If that weren't true OTLA would long ago have fought against the proliferation of rogue experts who inhabit the system - rather than happily profit from shoddy assessments and endless assessment battles. The only people buying OTLA's "fearless champions of the injured" rhetoric are the plaintiff lawyers.Maybe if OTLA revoked the membership of lawyers who over-bill so badly they are written up in even the mainstream press - and revoked the membership of lawyers who blame dead students for the firm's failings - these indignant protestations wouldn't ring so hollow.
Darryl Singer says:
2015-02-23 12:11 PM
The entire personal injury system is stacked against plaintiffs. The statutory threshold, $30,000 deductible, powerful insurers who sit on AB money for years before they pay it out for necessary treatment. Plaintiff lawyers are the only ones fighting for the clients' rights and attempting to level the playing field. Certainly the insurers do not care. And the provincial government has continually made changes that benefit only the insurers and make it more difficult for the victims to collect.
Darryl Singer says:
2015-02-23 12:06 PM
Lawyers are already regulated by the Law Society and in many cases the Superior Court. The insurance industry has no place in the lawyer-client relationship. If the insurers actually paid what they were supposed to pay to accident victims, when they were supposed to pay, then there would be no need for personal injury lawyers in the first place. Lawyer's fees have no bearing on insurance rates. And the marketplace dictates. If my fees are patently unfair then I will not have any clients.
Brian Francis says:
2015-02-23 10:10 AM
How ironic. This column (Court rejects attempt to blame articling student for delay) in today's Law Times offers even more reasons why Ontario personal injury plaintiff lawyers need oversight. OTLA talks about oversight as an "insult". It is insulting to consumers (injured auto accident victims) to hear plaintiff lawyers trying to download their failings on to students.
Brian Francis says:
2015-02-23 09:41 AM
Raston characterizes oversight of personal injury plaintiff OTLA lawyers as an "insult". What is an insult is systemic over-billing - staggering unreglated, self-awarded premiums - and unfair CFAs. A glance at the FAIR website offers ample illustration of endless plaintiff lawyer over- billing problems. Added to the over-billing problem is another "insult" to clients in the form of OTLA's stubborn, obstructionist stance toward cleaning up the IME/IE system (proliferated with rogue "experts") which is driving up Ontario's auto insurance litigation costs by causing endless assessment battles. But what,exactly, is wrong with a"a consumer-friend ly fee disclosure statement". How is that an "insult"? And what do accident victims think? Why not ask FAIR? Perhaps on this issue (if no other) the IBC and FAIR can find common ground?
Source: http://www.lawtimesnews.com/201502234500/headline-news/ibc-wants-regulation-for-personal-injury-lawyers
The Insurance Bureau of Canada says it would like to see regulatory oversight of how personal injury lawyers structure their contingency fees due to what it calls a major gap in transparency in the auto insurance system.
“We need to at least review this issue. Why aren’t we talking about this?” says Ralph Palumbo, Ontario vice president for the Insurance Bureau of Canada.
All key players in the auto insurance system, including insurance companies and rehabilitation providers, must adhere to regulations around their fee structures, says Palumbo, who notes additional players like tow-truck drivers are now subject to regulation thanks to changes under Bill 15.
“It appears that the only major stakeholders in the system that really [aren’t] regulated are personal injury lawyers,” he says.
Palumbo says trial lawyers should file their fee arrangements with the office of the superintendent of insurance or another body that will review the financial impact these fees may or may not have on insurance costs and premiums.
“There is a sense that often providers, whether they’re lawyers or rehab providers, push claims to a higher level so that the awards are higher. That’s the sort of thing that we need to guard against,” says Palumbo.
“No one is saying the claimant shouldn’t get what is reasonable in the circumstances, but we want to make sure there aren’t outside financial pressures that will drive up those costs.”
Barbara Taylor, director of policy at Insurance Bureau of Canada, says the change will protect consumers while allowing the government to track the impact of lawyers’ fees on the auto insurance system.
“First off, we’re asking for a consumer-friendly fee disclosure statement,” she says.
“So that’s something where we want to make sure the consumer has clear transparency on that arrangement that they have with the lawyer. Then we’re asking that that information also be shared with someone like the [Financial Services Commission of Ontario] superintendent, who can then use that information to assess the impact on auto insurance as well as perhaps issue an annual report.”
Ontario Trial Lawyers Association president Steve Rastin says the Insurance Bureau of Canada is suggesting lawyers work harder in order to maximize the value of the case if they have a stake in it.
“You know what, that’s an insult to lawyers,” says Rastin.
“It implies that I won’t do my utmost for my client unless I have a piece in the action. You know what, I think lawyers everywhere should be insulted by the allegation that we’ll work harder for our clients when we have a stake in it.”
He adds: “I work to the best of my ability for every client whether I’m doing the file on a pro bono basis or an hourly rate or contingency rate. To argue that I work harder for somebody because I have a contingency fee, it would be a fundamental violation of the professional code of conduct, our ethical obligations, and I think there are right-thinking lawyers everywhere who put their best effort in for the client no matter how they’re going to be paid.”
Rastin also says there are already sufficient oversight mechanisms in place to guard against improper conduct by lawyers. He calls the Insurance Bureau of Canada’s call for more regulation “a smokescreen” to mask the hefty profits earned by insurance companies.
“I can tell you that what I bill my clients is absolutely transparent,” says Rastin.
“My client knows in the beginning what I’m going to bill them and at the end. For people that are under disability, minors or people in vulnerable situations, we have to get court approval for our accounts. There is already an oversight body in place.
There are lawyers [who] are disciplined for not billing according to proper practices. I don’t want the insurance industry, which meddles in every private area of our lives already, I don’t want them meddling in my personal relationship with my clients.”
Contingency-fee arrangements between lawyers and their clients aren’t to blame for insurance companies’ costs, he adds, noting there are caps in place for the damages plaintiffs can collect for several types of injuries.
Plaintiffs often opt to settle for fear of cost orders that would mean losing their life savings, Rastin adds.
To Rastin, the noise around the issue is a distraction from what he calls “way more serious” concerns with the auto insurance system. “For instance, why are there government-mandated returns on capital for the insurance industry that are something like 11 per cent?” he asks.
Palumbo, however, says it’s only “natural” that lawyers are resistant to regulatory oversight around their fees.
“It’s pretty natural. They have a vested interest in making sure there is no regulatory oversight on their pricing schemes,” he says.
“We don’t think that’s appropriate,” he adds.
Part of the issue, he says, is transparency. “At the end of the day, if the government decides not to impose a cap [on contingency fees], that’s fair enough. But why is this a problem to talk about transparency? I don’t quite understand that.”
The issue isn’t contingency fees themselves, according to Palumbo, but whether those arrangements are always appropriate. “We’re not suggesting for a moment that any of this shouldn’t happen; we’re not against contingency fees. All we’re saying is that the last piece of the [transparency] puzzle is personal injury lawyers, really. No one is reviewing that aspect of the auto insurance system.”
COMMENTS
Discuss IBC wants regulation for personal injury lawyers:
Moira Gracey says:
2015-02-23 07:15 PM
is the IBC suggesting that injured people who have been thrown out of work and are subsisting on the much-reduced accident benefits available be required to pay lawyers up front by the hour? How can the IBC suggest - or the Law Times uncritically report - that lawyers' contingency fees are not regulated? Does Ontario Regulation 195/04 (appropriately entitled "Contingency Fee Arrangements") not count as regulation? Until the insurance industry agrees to a specific tax to fund enough legal aid clinic with enough salaried lawyers to represent all the customers from whom the insurance companies are inappropriately denying benefits, there isn't much alternative to contingency fee arrangements that won't leave injured people high and dry - and insurers laughing all the way to the bank. Insurers should try spending less money fighting claims than they do paying them - that might be a more effective way to lower premiums!
Devils Trumpet says:
2015-02-23 06:30 PM
Sorry to get you excited,the comments were intended for another post that had nothing to do with regulation of lawyers or insurance.My post here was copy and paste,it included a line from a seperate post entirely. I have no knowledge of any insider information regarding Ontario auto insurance.If I did,I doubt very much that I would announce it in this forum. I apologize for my inadvertent mistake,I will double check before I post in the future.
Peter Cozzi says:
2015-02-23 06:05 PM
I have advocated at FSCO for a Consumer Bureau mirroring the Insurance Bureau of Canada to advance the interests of consumers to Government funded by a levy per insurance policy paid for by the same consumers who pay their insurance premiums to Insurance companies every day which in part are used by those insurance companies to fund the IBC. Such a consumer body, properly funded, like the IBC, will be able to inform Government concerning insurance issues from the consumers perspective and thereby provide Government with a balanced view when considering legislative and regulatory changes such as the IBC proposal concerning contingency fees and more.
Tim Boyle says:
2015-02-23 05:56 PM
That Mr. Francis is a shill for the insurance industry is obvious, the only thing unclear is how much he is being paid for being so.
Stew Daroux says:
2015-02-23 05:36 PM
It just amazes me that someone can hold such a lofty position in the insurance industry and really not have a clue regarding the degree to which lawyers are regulated and fee arrangements are scrutinized. In British Columbia there is legislating specifying the maximum percentage fee a lawyer can charge without prior court approval. In addition, clients are notified as part of any Contingency Fee Agreement that they have the right to have the fee ultimately charged reviewed by the Court. They also have recourse to the Law Society of any Province which overseas the practice of lawyers in that jurisdiction. Where is the lack of "regulation" that Mr. Palumbo refers to?
Curious Cat says:
2015-02-23 04:47 PM
What kinds of documents are you alluding to?
Devils a Trumpet says:
2015-02-23 04:10 PM
Another attempt to control every aspect of a claim,the insurance industry once again portrays everyone but themselves as theives while they defraud rate payers and the public.Of course lawyers rip off clients,just not as bad as the government sanctioned theft by the insurance companies. Not one participant other than the claimant has one scintilla of integrity,their just a bunch of criminals running the system. Wait till insurance insider documents begin to surface soon.
Brian Francis says:
2015-02-23 12:30 PM
RE: "Plaintiff lawyers are the only ones fighting for the clients' rights... Plaintiff lawyers (OTLA) advocate for their own interests - not the interests of injured claimants. They aren't always the same. If that weren't true OTLA would long ago have fought against the proliferation of rogue experts who inhabit the system - rather than happily profit from shoddy assessments and endless assessment battles. The only people buying OTLA's "fearless champions of the injured" rhetoric are the plaintiff lawyers.Maybe if OTLA revoked the membership of lawyers who over-bill so badly they are written up in even the mainstream press - and revoked the membership of lawyers who blame dead students for the firm's failings - these indignant protestations wouldn't ring so hollow.
Darryl Singer says:
2015-02-23 12:11 PM
The entire personal injury system is stacked against plaintiffs. The statutory threshold, $30,000 deductible, powerful insurers who sit on AB money for years before they pay it out for necessary treatment. Plaintiff lawyers are the only ones fighting for the clients' rights and attempting to level the playing field. Certainly the insurers do not care. And the provincial government has continually made changes that benefit only the insurers and make it more difficult for the victims to collect.
Darryl Singer says:
2015-02-23 12:06 PM
Lawyers are already regulated by the Law Society and in many cases the Superior Court. The insurance industry has no place in the lawyer-client relationship. If the insurers actually paid what they were supposed to pay to accident victims, when they were supposed to pay, then there would be no need for personal injury lawyers in the first place. Lawyer's fees have no bearing on insurance rates. And the marketplace dictates. If my fees are patently unfair then I will not have any clients.
Brian Francis says:
2015-02-23 10:10 AM
How ironic. This column (Court rejects attempt to blame articling student for delay) in today's Law Times offers even more reasons why Ontario personal injury plaintiff lawyers need oversight. OTLA talks about oversight as an "insult". It is insulting to consumers (injured auto accident victims) to hear plaintiff lawyers trying to download their failings on to students.
Brian Francis says:
2015-02-23 09:41 AM
Raston characterizes oversight of personal injury plaintiff OTLA lawyers as an "insult". What is an insult is systemic over-billing - staggering unreglated, self-awarded premiums - and unfair CFAs. A glance at the FAIR website offers ample illustration of endless plaintiff lawyer over- billing problems. Added to the over-billing problem is another "insult" to clients in the form of OTLA's stubborn, obstructionist stance toward cleaning up the IME/IE system (proliferated with rogue "experts") which is driving up Ontario's auto insurance litigation costs by causing endless assessment battles. But what,exactly, is wrong with a"a consumer-friend ly fee disclosure statement". How is that an "insult"? And what do accident victims think? Why not ask FAIR? Perhaps on this issue (if no other) the IBC and FAIR can find common ground?
Source: http://www.lawtimesnews.com/201502234500/headline-news/ibc-wants-regulation-for-personal-injury-lawyers
Sunday, February 22, 2015
Dozens of gravely sick Canadians denied speedy social security hearings
Employment Minister Jason Kenney answers a question during Question Period in the House of Commons on Parliament Hill in Ottawa, Tuesday Nov. 26, 2014. Earlier this month, Kenney pledged to eliminate the backlog by the summer.(Adrian Wyld / THE CANADIAN PRESS)
Lee-Anne Goodman, The Canadian Press
Published Thursday, February 19, 2015 5:50AM EST
Last Updated Thursday, February 19, 2015 3:23PM EST
OTTAWA -- Dozens of gravely ill or financially strapped Canadians denied Canada Pension Plan disability benefits were refused accelerated appeals in 2014 by Ottawa's badly backlogged social security tribunal.
The backlog plaguing the tribunal has swelled dramatically since its launch almost two years ago, with thousands of injured or ailing Canadians now waiting as long as five years to have their appeals heard.
In 2014, 46 people asked for an expedited appeal due to financial hardship. Only seven were successful, the government reveals in responses to recent written questions from the NDP.
Eleven people sought expedited hearings in 2014 due to terminal illnesses. Four were turned down while seven were successful.
On Thursday, NDP Leader Tom Mulcair chastised the Conservatives during question period, accusing them of victimizing already vulnerable Canadians by refusing to grant accelerated hearings as wait times continue to worsen.
Pierre Poilievre, the new employment minister, responded by saying the government was on track to eliminate the backlog by this summer.
His predecessor, Jason Kenney, announced a plan earlier this month to wipe out the backlog within months.
"We agree that the backlog is unacceptable," Poilievre said.
"We are using experts within the department to review all of the cases that are under appeal to see if we can settle as many of them as humanly possible so that they don't even have to go before the tribunal at all."
Richard Beaulne, a spokesman for the tribunal, called it an "unfortunate reality" that most appellants experience financial hardship.
"But the tribunal would consider expediting such cases where the appellants are able to show exceptional financial hardship sufficient to justify assigning their case ahead of other appellants," he said in an email.
"The tribunal expedites the assignment of cases involving terminal illness only when requesters have provided the proper medical documentation to support their request."
The written responses also reveal that only three of the 63 people currently assigned to hear CPP disability cases are health-care professionals.
Under the old system, one person on each three-member panel had to be a health-care professional to ensure that appellants with disabilities received a fair hearing from someone who understood medical evidence.
Other responses show that the tribunal's backlog currently stands at 11,230 cases. That's a 24 per cent increase since February 2014.
The vast majority of those cases -- 90 per cent -- involve people seeking CPP disability benefits. Some of them have been waiting years for their appeals to be heard.
The tribunal, consisting of 74 full-time members and 22 part-timers, has been under a cloud of controversy since its inception in April 2013.
In addition to the ballooning backlog of cases, the government-in-council appointments to the tribunal have also been contentious. A third of them have ties to the Conservative party.
The government says the tribunal was established to streamline the appeals process and save Canadian taxpayers $25 million a year.
Source: http://www.ctvnews.ca/canada/dozens-of-gravely-sick-canadians-denied-speedy-social-security-hearings-1.2243123
Auto collision lawsuit defendants' use of video surveillance evidence without disclosure in affidavit breached civil procedure rules, Ontario appeal court rules
DAILY NEWS
Feb 18, 2015 4:26 PM
The Court of Appeal for Ontario has overturned an earlier decision in a lawsuit arising from an auto collision, finding that the defendants breached the province's Rules of Civil Procedure in making a video of surveillance of the plaintiff an exhibit - and cross-examining the plaintiff on its contents - without having disclosed the existence of surveillance in an affidavit of documents.
In a ruling released Tuesday, the province's appeal court set aside a judgement of the Ontario Superior Court of Justice. The appeal court substituted a finding of liability against Stephen Corbett and St. Lawrence Cement Inc., who were sued by Andrea and Giuseppina Iannarella after a collision in February, 2008.
Andrea Iannarella was driving a pickup when he was rear-ended by the Corbett, who was driving a concrete mixer, on Ontario Highway 427, in stop-and-go traffic on a snowy evening.
"The jury found Mr. Corbett had not been driving negligently and the action was dismissed on liability grounds," wrote Mr. Justice Peter Lauwers, of the Court of Appeal for Ontario, of the original court ruling in 2012. "Had liability been established, the jury would have awarded general damages of $32,000 and $40,571 as damages for past income loss, but would not have awarded damages for future income loss."
The trial judge also dismissed Iannarella's claim for non-pecuniary damages "on the basis that the statutory 'threshold' for this type of recovery" under Section 267.5 of Ontario's Insurance Act was not met.
The issues on appeal included the trial judge permitting the defendents to use surveillance evidence.
In overturning the trial jury and ruling the defendants liable, the appeal court found Corbett "was plainly going too fast for the weather and road conditions and could have avoided the collision accident by exercising sufficient care."
Justice Lauwers also noted that during the trial, defence lawyers played a video from surveillance of Iannarella and cross examined Iannarella on its contents.
Court records indicate that excerpts of the video shown to the jury "show Mr. Iannarella variously waving his left arm, carrying a garbage bag, driving and turning the steering wheel with his left hand, reaching with his left arm to the top shelf in a grocery store to retrieve an item, and driving on a 400 series highway," Justice Lauwers wrote. The defendants "claimed at trial that these activities are inconsistent with Mr. Iannarella's self-reported limits on his functionality caused by the collision."
The defendents contended that the plaintiffs were "not entitled to an affidavit of documents or to surveillance particulars since they had not sought the affidavit and had waived examinations for discovery before the matter was set down for trial," noted Justice Lauwers.
But the appeal court found the defendants breached three sections of the Rules of Civil Procedure: "rule 30.03(1) by failing to serve an affidavit of documents; rule 30.07(b) by failing to disclose surveillance conducted after the matter was set down for trial in an affidavit of documents; and, inferentially, rule 31.09 obliging the respondents to correct answers given on an undertaking ultimately leading to the provision of surveillance particulars."
"The trial judge erred at the trial management conference," Justice Lauwers added. "He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking."
The other two judges hearing the appeal - Mr. Justice John Laskin and Mr. Justice William Hourigan - agreed.
They ordered a new trial on the issue of damages.
"Privileged documents must be included in a party's affidavit of documents," Justice Lauwers wrote. "Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery; the 'particulars' of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers."
Source: http://www.canadianunderwriter.ca/news/auto-collision-lawsuit-defendants-use-of-video-surveillance-evidence-without-disclosure-in-affidavit/1003484801/?&er=NA
The Court of Appeal for Ontario has overturned an earlier decision in a lawsuit arising from an auto collision, finding that the defendants breached the province's Rules of Civil Procedure in making a video of surveillance of the plaintiff an exhibit - and cross-examining the plaintiff on its contents - without having disclosed the existence of surveillance in an affidavit of documents.
In a ruling released Tuesday, the province's appeal court set aside a judgement of the Ontario Superior Court of Justice. The appeal court substituted a finding of liability against Stephen Corbett and St. Lawrence Cement Inc., who were sued by Andrea and Giuseppina Iannarella after a collision in February, 2008.
Andrea Iannarella was driving a pickup when he was rear-ended by the Corbett, who was driving a concrete mixer, on Ontario Highway 427, in stop-and-go traffic on a snowy evening.
"The jury found Mr. Corbett had not been driving negligently and the action was dismissed on liability grounds," wrote Mr. Justice Peter Lauwers, of the Court of Appeal for Ontario, of the original court ruling in 2012. "Had liability been established, the jury would have awarded general damages of $32,000 and $40,571 as damages for past income loss, but would not have awarded damages for future income loss."
The trial judge also dismissed Iannarella's claim for non-pecuniary damages "on the basis that the statutory 'threshold' for this type of recovery" under Section 267.5 of Ontario's Insurance Act was not met.
The issues on appeal included the trial judge permitting the defendents to use surveillance evidence.
In overturning the trial jury and ruling the defendants liable, the appeal court found Corbett "was plainly going too fast for the weather and road conditions and could have avoided the collision accident by exercising sufficient care."
Justice Lauwers also noted that during the trial, defence lawyers played a video from surveillance of Iannarella and cross examined Iannarella on its contents.
Court records indicate that excerpts of the video shown to the jury "show Mr. Iannarella variously waving his left arm, carrying a garbage bag, driving and turning the steering wheel with his left hand, reaching with his left arm to the top shelf in a grocery store to retrieve an item, and driving on a 400 series highway," Justice Lauwers wrote. The defendants "claimed at trial that these activities are inconsistent with Mr. Iannarella's self-reported limits on his functionality caused by the collision."
The defendents contended that the plaintiffs were "not entitled to an affidavit of documents or to surveillance particulars since they had not sought the affidavit and had waived examinations for discovery before the matter was set down for trial," noted Justice Lauwers.
But the appeal court found the defendants breached three sections of the Rules of Civil Procedure: "rule 30.03(1) by failing to serve an affidavit of documents; rule 30.07(b) by failing to disclose surveillance conducted after the matter was set down for trial in an affidavit of documents; and, inferentially, rule 31.09 obliging the respondents to correct answers given on an undertaking ultimately leading to the provision of surveillance particulars."
"The trial judge erred at the trial management conference," Justice Lauwers added. "He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking."
The other two judges hearing the appeal - Mr. Justice John Laskin and Mr. Justice William Hourigan - agreed.
They ordered a new trial on the issue of damages.
"Privileged documents must be included in a party's affidavit of documents," Justice Lauwers wrote. "Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery; the 'particulars' of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers."
Source: http://www.canadianunderwriter.ca/news/auto-collision-lawsuit-defendants-use-of-video-surveillance-evidence-without-disclosure-in-affidavit/1003484801/?&er=NA
Friday, February 20, 2015
Why not tell the Minister of Finance
what you think about downloading the costs of accident victims to the
public systems where the taxpayer is picking up the tab. Or how the the
bogus and biased medical reports commissioned by Ontario's insurers to
deny claims is affecting victim's health and how that increases the use
of our publicly funded OHIP system and social supports. Or the ODSP or
even CPP disability. Or ask why our courts are clogged down with unpaid
auto insurance claimants trying to hold their insurer accountable and
who is paying for that? Or why MVA victims are often forced to rely on
foodbanks?
Consider
ccing your MPP or indeed all of the MPPs who are the ones that keep
passing the legislation that is harming vulnerable MVA victims. You can
find a list of MPP emails at: http://www.ontla.on.ca/
WHAT MATTERS TO YOU?
The Budget affects all Ontarians – that’s why we’re looking for your input and ideas for the 2015 Ontario Budget.
Email:submissions@ontario.ca
More ways to join the conversation
The Minister of Finance will be hosting in-person sessions and telephone town halls with stakeholders across the province. If you are interested in participating in one of these sessions, contact us at 1-866-989-9002 or submissions@ontario.ca.
______________________________
List of Ontario MPPs - you can cut and copy to address your email if you decide to copy ALL MPPs
ganderson.mpp.co@liberal.ola.
tarmstrong-qp@ndp.on.ca,
ted.arnott@pc.ola.org,
bob.baileyco@pc.ola.org,
ybaker.mpp.co@liberal.ola.org,
bbalkissoon.mpp@liberal.ola.
cballard.mpp.co@liberal.ola.
toby.barrettco@pc.ola.org,
lberardinetti.mpp.co@liberal.
gbisson@ndp.on.ca,
jbradley.mpp.co@liberal.ola.
scmpp@ndp.on.ca,
MPPChan <mchan.mpp.co@liberal.ola.org>
bchiarelli.mpp.co@liberal.ola.
JCimino-QP@ndp.on.ca,
steve.clark@pc.ola.org,
Mike Colle <mcolle.mpp@liberal.ola.org>,
mcoteau.mpp@liberal.ola.org,
gcrack.mpp@liberal.ola.org,
ddamerla.mpp@liberal.ola.org,
bdelaney.mpp@liberal.ola.org,
sdelduca.mpp.co@liberal.ola.
Vic Dhillon <vdhillon.mpp.co@liberal.ola.
jdickson.mpp@liberal.ola.org,
dinovoc-qp@ndp.on.ca,
hdong.mpp.co@liberal.ola.org,
BradDuguid <bduguid.mpp.co@liberal.ola.
garfield.dunlop@pc.ola.org,
christine.elliott@pc.ola.org,
vic.fedeli@pc.ola.org,
cfife-qp@ndp.on.ca,
kflynn.mpp@liberal.ola.org,
cforster-qp@ndp.on.ca,
John Fraser Ottawa South <Jfraser.mpp.co@liberal.ola.
JFrench-QP@ndp.on.ca,
wgates-qp@ndp.on.ca,
"fgelinas-qp@ndp.on.ca" <fgelinas-qp@ndp.on.ca>,
mgravelle.mpp.co@liberal.ola.
LGretzky-QP@ndp.on.ca,
ernie.hardeman@pc.ola.org,
michael.harrisqp@pc.ola.org,
PHatfield-QP@ndp.on.ca,
randy.hillierco@pc.ola.org,
ahoggarth.mpp.co@liberal.ola.
ahorwath-qp@ndp.on.ca,
ehoskins.mpp@liberal.ola.org,
tim.hudakco@pc.ola.org,
"Mitzie Hunter, MPP" <mhunter.mpp.co@liberal.ola.
hjaczek.mpp@liberal.ola.org,
sylvia.jones@pc.ola.org,
skiwala.mpp.co@liberal.ola.org
mkwinter.mpp@liberal.ola.org,
Marie-France Lalonde <mflalonde.mpp.co@liberal.ola.
jleal.mpp@liberal.ola.org,
dlevac.mpp.co@liberal.ola.org,
TracyMacCharles <tmaccharles.mpp.co@liberal.
jack.maclaren@pc.ola.org,
Lisa MacLeod <lisa.macleod@pc.ola.org>,
hmalhi.mpp.co@liberal.ola.org,
amangat.mpp.co@liberal.ola.org
mmantha-qp@ndp.on.ca,
Cristina Martins <cmartins.mpp.co@liberal.ola.
gila.martow@pc.ola.org,
dmatthews.mpp@liberal.ola.org,
BillMauroTBayAtik <bmauro.mpp.co@liberal.ola.org
jim.mcdonellco@pc.ola.org,
Kathryn McGarry <kmcgarry.mpp.co@liberal.ola.
emcmahon.mpp.co@liberal.ola.
tmcmeekin.mpp@liberal.ola.org,
"Monte McNaughton, MPP" <monte.mcnaughton@pc.ola.org>,
mmeilleur.mpp@liberal.ola.org,
Pmilczyn.mpp.co@liberal.ola.
norm.miller@pc.ola.org,
pmiller-qp@ndp.on.ca,
rmoridi.mpp@liberal.ola.org,
julia.munro@pc.ola.org,
gmurray.mpp@liberal.ola.org,
inaidoo-harris.mpp.co@liberal.
tnatyshak-qp@ndp.on.ca,
rick.nicholls@pc.ola.org,
dorazietti.mpp@liberal.ola.org
randy.pettapiece@pc.ola.org,
apotts.mpp.co@liberal.ola.org,
sqaadri.mpp@liberal.ola.org,
Liz Sandals <lsandals.mpp@liberal.ola.org>
Psattler-qp@ndp.on.ca,
Laurie Scott <laurie.scott@pc.ola.org>,
msergio.mpp@liberal.ola.org,
jsingh-qp@ndp.on.ca,
todd.smith@pc.ola.org,
Charles Sousa <csousa.mpp@liberal.ola.org>,
tabunsp-qp@ndp.on.ca,
htakhar.mpp@liberal.ola.org,
mtaylor-qp@ndp.on.ca,
lisa.thompson@pc.ola.org,
jvanthof-qp@ndp.on.ca,
Daiene Vernile <dvernile.mpp.co@liberal.ola.
bill.walker@pc.ola.org,
Jim WilsonMPP <jim.wilson@pc.ola.org>,
swong.mpp.co@liberal.ola.org,
Kathleen Wynne <kwynne.mpp@liberal.ola.org>,
john.yakabuski@pc.ola.org,
Jeff Yurek <jeff.yurek@pc.ola.org>,
dzimmer.mpp@liberal.ola.org,
Source ;http://www.fin.gov.on.ca
Subscribe to:
Posts (Atom)
That being said,the insurance industry is looking for new opportunities to squeeze more money into their pockets with the lawyers being their next target to lobby(pay)the government for legislation that sets financial limits on what personal injury lawyers can earn from representing a client.
Nothing will change until changes occur at Queen's Park first.
This dysfunctional system helps all the hands in the victims pockets grease their own palms.
"IBC's recommendation that injured auto accident victims be provided an easily understandable (consumer friendly) fee-structure outline" Sounds good, but is it more bullshit?
"Nothing will change until changes occur at Queen's Park first." Indeed! Look at the cuts to benefits the gov't as been making to social services themselves.