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Motor Vehicle Accident

(May 2019)

Judge in an MVA jury trial, held by C.A. to have properly discharged her various functions. Per following excerpts:
[10] …judge clearly and carefully charged the jury that..necessary to prove that they would not have suffered the injuries claimed but for the accident…the “balance of probabilities” standard…that a different standard of proof..- a “real and substantial possibility” – applies to claims for damages in the future…

[13] …ruling permitting two psychiatrists to testify for the respondent…fulfilled her gatekeeper function..she considered the quantum of damages…alleged psychological issues were a significant aspect of the claim, and the balance in the number of experts called by each side…

[14] …an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained: Evidence Act, s. 52(2)…correctly exercised her gatekeeper function…reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.

[15] …the jury charge was comprehensive, fair, and well-balanced…a clear and sufficient direction to the jury that they, and not the judge, were the fact-finders:…

Gopie v. Ramcharran, 2019 ONCA 402 (CanLII), http://canlii.ca/t/j0bkp

(Apr 2019)

MVA action. In terms of damages exposure, both the driver and owner clearly enjoy the benefits of ‘protected defendants’ under the Insurance Act.
But what if the owner is also the driver’s employer? Can the plaintiff get around the Insurance Act limitations, by relying on the doctrine of vicarious liability?
The answer is a resounding no. As confirmed in a very recent Divisional Court decision:

[15] …subsection 267.5(10.1) added to the Insurance Act…provides as follows:
Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable…

[17] I agree with the trial judge. In fact, as pointed out by him, this seems to be the conclusion reached in Vollick had s. 267.5(10.1) been in effect at the time of the accident the court was then considering…

[18] Indeed, this is the only sensible and rational interpretation of this section…

Hinds v. Metrolinx, 2019 ONSC 2318 (CanLII), http://canlii.ca/t/hzqb0

 

‘Threshold’

(Mar 2019)

The following remarks by the trial judge in this chronic pain MVA case, illustrate what are key factors in evaluating ‘threshold’ in a case such as this:

[95] I also consider it important to view the evidence as a whole and avoid placing too much weight on isolated instances of alleged inconsistencies in determining the veracity of testimony in a case of this nature. What is more significant is whether the witness has given a consistent history over time about his symptoms, his activities and the impact of the injury on his life. This is what Mr. St. Marthe did…. ………

[115] I also find it is not in his nature to complain to others when he is in pain or to shirk from doing things because they might cause him pain. This is why he did not go to his employers until the pain became intolerable. They were aware he was having problems without any complaint by him. When the therapy brought relief from pain, he told the healthcare professionals but sought their help again when it persisted. Drs. Mussett, Beseman and Bednar considered him a reliable historian whose reported symptoms were consistent with the injury he suffered……

St. Marthe v. O’Connor, 2019 ONSC 1585 (CanLII), http://canlii.ca/t/hxxlh

 

Accident Benefits

Procedural

(Jan 2020)

Very recent LAT Reconsideration decision emphasizes stringency of criteria. Per excerpts:

……

[6] ..Rule 18.2…A request..will not be granted unless one of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) ..made an error of law or fact such that..would likely have reached a different result had the error not been made;

(c) …heard false evidence from a party or witness..discovered only after the hearing and likely affected the result;

(d) ..evidence that was not before the Tribunal..could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result…

[10] …It is not through the reconsideration process to re-weigh evidence that has already been properly considered by the Tribunal…..

S.G. v. Wawanesa Mutual Insurance Company, 2020 CanLII 378 (ON LAT), http://canlii.ca/t/j4gh6

[As an aside: Those seeking a request, also need to note Rule 18.1: “The determination …may be heard by the same Member whose decision is the subject of the request.”]

(Sep 2019)

An IME notice must set out “the medical and any other reasons for the examination.” Just how detailed? Excerpts from recent Div. Ct. decision:

[9] ..Aviva provided notice..“unable to determine whether the [TP]..reasonably required for the injuries you received..”..[It] scheduled..insurer’s examination. In a box labelled “Medical Reason”,..wrote “The type(s) of treatment does not appear consistent with the patient’s diagnosis.”

[10] ..repeatedly asked Aviva to clarify its reasons. No clarification was provided. ..

[14] [Per Exec-Chair’s] Reconsideration Decision..: …If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).

[15] ..She observed..both reasons proffered raise..questions..what medical information was relied on..and..the inconsistency between that information and the recommended benefits…

[18] ..[per] Ontario Court of Appeal..reasons..must be meaningful in order to permit the insured to decide whether or not to challenge..Mere “boilerplate” statements do not provide a principled rationale to which an insured can respond..such statements constitute no reasons at all.

Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (CanLII),<http://canlii.ca/t/j2j7q >

(Aug 2019)

Per a Reconsideration decision:

A LAT adjudicator’s denial at a hearing, of an applicant’s representative being able to make closing argument, is a denial to the applicant of procedural fairness.

Even in the face of an allegation (denied by the applicant’s rep) that the parties had agreed at the case conference that their written submissions would comprise their ‘closing arguments’ for purposes of the hearing.

S.A. v. Guarantee Insurance, 2019 CanLII 77002 (ON LAT), <http://canlii.ca/t/j21ds>

 

Catastrophic Impairment (CAT)

 (Apr 2019)

LAT ruling. TBI victim makes CAT:

[10] In order to be determined CAT[2] under the Schedule, K.S. must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (Marked) Impairment in any of the four domains outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment[3] (the “Guides”) due to a mental or behavioural disorder. I find, on a balance of probabilities, that K.S. has sustained at least one Marked Impairment due to mental or behavioural disorders he sustained as a result of the accident. Accordingly, I find that he has sustained a catastrophic impairment as defined by the Schedule and is therefore entitled to the extended policy limits. …

[13] …I find that K.S.’s lack of emotional and psychological regulation, which has resulted in irregular moods and behaviour, as well as private and public outbursts, can be traced directly to the traumatic brain injury he suffered as a result of the accident and the trauma and stress that ensued.
18-000169 v TD Home and Auto Insurance Company, 2019 CanLII 22189 (ON LAT), http://canlii.ca/t/hz9d6

(Mar 2019)

Words matter…particularly in applications for CAT determination! Per recent decision:

[21] ……prior to the two year mark after an accident…they must meet two additional criteria…
Part 1 – s.3.1(2)(b)(i)…

  1. An assessment conducted by a physician three months or more after the accident determines that, the insured person has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent or more impairment of the whole person….

[24] In his report, Dr. Potter wrote that “Unless there is significant and unexpected recovery, it is probable that Mr. C. would be rated at least as 50% whole person impairment based on lower limb impairment from gait derangement.” From a functional perspective, Dr. Potter opined that MC will be wheelchair dependent “which would carry a rating of 80% whole person impairment.”[emphasis added]..

[27] ….I note that the legislature opted to include the words “insured person has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent WPI” as opposed to “will have” or “would have” or “could have”…..

18-004112 v Belairdirect, 2019 CanLII 22219 (ON LAT), http://canlii.ca/t/hz9f5

 

Causation test

(Mar 2019)

The Divisional Court recently ruled that in AB cases – as in tort – the “but for” test for causation remains the default position. “Material contribution” as an alternative test, is to be resorted to only in specified exceptional circumstances:

[31] ……The Ontario Court of Appeal in Monks v. ING, above, held that the same analysis applies in the accident benefit context……

  1. The test for establishing causation is the “but for” test…..
    e. In exceptional circumstances, where (i) the plaintiff establishes that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each of whom could be responsible for the loss; but (ii) the plaintiff is unable through no fault of her own, to show that one tortfeasor is the “but for” cause of her injuries because each tortfeasor can point to the other as the possible “but for” cause of the injury, a plaintiff may establish liability against one defendant if that defendant’s conduct materially contributed to the plaintiff’s risk of injury…..

Sabadash v. State Farm et al., 2019 ONSC 1121 (CanLII), http://canlii.ca/t/hxk3k

Minor Injury Guideline (MIG)

(Mar 2019)

Here’s an interesting recent decision from the LAT, dealing with the MIG.

First, a refresher. An impairment falls within the MIG if it is “predominantly” a minor injury – a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation” and includes “any clinically associated sequelae” to such an injury.

In this case, the claimant – suffering from neck, upper back, lower back and right thigh pain – was also presenting with chronic pain syndrome. The adjudicator firstly ruled out that the claimant was presenting with a “predominantly minor injury.” Of particular interest, however, are the following remarks about the chronic pain:

[19] ……Dr. Brown noted at p. 8 of his report that the applicant’s “pain symptoms have persisted long after the expected time for normal healing and recovery” and that he experienced “psychological distress, sleep disturbances, cognitive impairments, declining work performance and has adopted a sedentary lifestyle”. Based on the duration and impact of the applicant’s chronic pain on his activities of daily living, I do not believe that his chronic pain is a “clinically associated sequelae” to his injuries.

18-000770 v RSA Insurance, 2019 CanLII 9631 (ON LAT), http://canlii.ca/t/hxh4t

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