The Examination Under Oath: Underutilized and Under-Appreciated (Updated and Revised)

August 15, 2017

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The evaluation of any personal injury claim primarily revolves around a question of credibility. The impact of the injuries suffered by one claimant is often significantly different compared to the same injuries suffered by another claimant. There is no scientific-medical diagnostic tool that can predict to what extent one person’s injuries will result in a long term disability while as someone else will suffer a temporary health setback. At the dispute stage we are often left to investigate a claim on the basis of competing reports from medical doctors; some of which are well known for their biases. How a claimant presents on paper is often very different from their representations in person. There really is no better substitute than meeting a claimant in person, asking her the tough questions, and getting a sense as to how she will present in front of a decision maker. Read the rest of this entry »


What You Need To Know About Non-Earner Benefits (Now and Into the Future)

October 18, 2016


Since the changes to the Schedule came about on September 1, 2010 claims for non-earner benefits have skyrocketed.  The increase is not as a result of claimants’ suffering more substantive injuries than ever before, but it is because of a narrowing of the types of benefits available to claimants. Commencing on September 1, 2010 claims for caregiving and housekeeping benefits were eliminated for all non-catastrophic type claims.  Further, the new provisions that required a claimant to prove an economic loss / incurred expense for attendant care benefits also curtailed the availability of this benefit to the vast majority of claimants.  As such, if a claimant did not work prior to the loss the only weekly benefit potentially available was for non-earner benefits.  Historically, claims for non-earner benefits had been the claim of last resort as it encompassed a smaller percentage of claimants, has a very onerous test to prove entitlement, and included a six month waiting period.  However, since claimants had no other form of recourse to weekly compensation, a plethora of claims have surfaced.

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Deduction of Collateral Benefits: Matching “Apples to Apples” (Tort)

July 14, 2016


applesThe question as to what a tort defendant is entitled to deduct in terms of a plaintiff’s entitlement to accident benefits is one of the most important aspects of any assessment of a case.  Specifically, is a tort defendant entitled to deduct past and future income replacement benefits as well as  medical benefits paid to a claimant by way of an accident benefits release?  The law has been in flux with regards to same with the pendulum of the decisions swinging between for and against the claimant.  The recent decisions in 2015-2016 have seen the pendulum come to a rest in support of the insurers; with the intention of preventing double recovery by a plaintiff.

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The Upcoming Dramatic Impact Of The LAT On Accident Benefits “The Times They Are A Changing”

March 1, 2016


Amid controversy and much consternation among the personal injury bar, the Licensing Appeals Tribunal (LAT) is coming into effect on April 1, 2016.  It is clear from a review of the procedures and practices in place that the upcoming changes will be significant and require a clear new strategy in order to address upcoming claims from an insurer standpoint.  There will be a focus on speed on behalf of the insurer to respond to a new application and at the same time produce quality written submissions.  Often speed and quality do not go hand-in-hand.  The time to assess claims is significantly curtailed and a hearing may proceed within a matter of weeks as opposed to our normal practice of months / year.  Make no mistake about it, the procedures coming into effect vis-à-vis the LAT constitute a dramatic departure from what we are used to at FSCO.

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The Minor Injury Guideline: The Law Now And Into The Future

December 8, 2015

The enactment of the Minor Injury Guideline (“MIG”) in the current legislation is perhaps the most substantive change that we have been dealing with on a day-to-day basis. If a claimant falls within the MIG then the claimant is only entitled to a maximum of $3,500 in medical benefits as opposed to $50,000. Further, the claimant is not entitled to any attendant care benefits. Not only does this result in significantly less exposure for payment of benefits by an insurer, but it also results in less file handling expenses as the amount of assessments is substantially reduced. The recent case law since Scarlett v. Belair has for the most part upheld the fundamental principles that underline the MIG, but has also perhaps provided a guideline for claimants to successfully advance their cases. We must understand what the case law has set-out to date in order to understand what may happen into the future.

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Who Has Priority To Pay In The Rental Vehicle Case?

July 13, 2015

When defending an insurer in a motor vehicle case involving a rental vehicle some sound investigation may result in a significant savings. In fact, in the decision of Shahrooz v. Lin (2014) [set-out below] the insurer ended up saving hundreds of thousands of dollars following a decision regarding the priority rules of indemnity of insurance. While as it is commonly understood that Section 277 (otherwise known as Bill 18) sets out that an insurer of a personal vehicle has priority of insurance over that of the insurer of a rental vehicle, a closer review of the law suggests that this is not always the case. Knowledge of the law pertaining to rental vehicles is essential to the proper adjusting of such claims; and may result in a reduction or even the elimination of exposure.

The Basics

The widely held view of the purpose of section 277 was to make an insurer of the owner of a rental vehicle the lowest in the line of priority when dealing with the obligation to indemnify a claimant for his loss. To be clear, the insurer of a rental vehicle is responsible for indemnifying a claimant, but only the last of three levels of priority. The insurer of a defendant’s personal vehicle in a rental vehicle case is typically first in the line of priority. In short, the order of priority is as follows:

  1. The lessee’s insurer is first
  2. The driver’s insurer is second
  3. The owner’s insurer is third

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Everything An Accident Benefits Adjuster Needs To Know About A Tort Claim But Were Afraid To Ask

April 21, 2015

There are fundamental differences in the adjusting for an accident benefits claim compared to that of a bodily injury claim. In the accident benefits world often an adjuster will have direct contact with the claimant at the outset of a claim and perhaps have developed a relationship with the insured. In the tort world, for the most part the only contact with the claimant is through his lawyer. Whereas there is a set of rules (the Schedule) that sets-out how an accident benefits claim is supposed to proceed from beginning to end, the tort claim is much less structured. An understanding of the fundamentals of tort claims will helps us adjust our files better and set the stage for more effective negotiation strategies.

Duty Of Good Faith v. Adversarial Relationship

First and foremost, an accident benefits carrier is in contractual relationship with its’ insured and is obligated to address a claim in good faith. If an insurer is found to have acted improperly vis-à-vis the insured then there is a real possibility that a special / punitive damages award will be found. In the tort claim, the insurer is defending the driver/owner who has been sued by the claimant. There is no requirement to treat the claimant in any special way. There is really no viable punitive damages claims in tort.

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What A Tort Defendant Can Deduct From An Accident Benefits Settlement, Future Accident Benefits Entitlement, and Disability Benefits Settlement: “Apples from Apples”

October 15, 2014

The principle of the rule against double recovery is legally sound.  A claimant is not supposed to be able to recover compensation for the same loss more than once.  For this reason a tort defendant is entitled to deduct income replacement benefits received by a claimant when making a payment for income loss.  Otherwise, a claimant will be earning more money not working then when he did while at work.  However, the law pertaining to deductions is far from straightforward.  While as the Courts want to prevent double recovery, they also want to prevent double deductions.  The Court is concerned that a claimant not be undercompensated by allowing a tort defendant to deduct benefits to which the claimant may not have received.  The recent case law has made it difficult for a tort defendant to deduct accident benefits settlements, future entitlement to accident benefits, and disability benefits settlements.

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The New Summary Judgment Rules and Insurance Law: A New Weapon in the Arsenal of Litigation (Tort and Accident Benefits)

June 24, 2014

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As an insurer, there is perhaps nothing more frustrating then getting dragged into years of litigation when there is no legal exposure. For example, in a tort case, a defendant may have no liability for an accident but is stuck waiting for the target parties to resolve their case before one can close their file. In the accident benefits world, the claimant may not have introduced any evidence of proof of an economic loss for attendant care benefits, but we are still left to go to trial to adduce medical evidence regarding the substantive need for this service. The old rules pertaining the summary judgment motions were quite restrictive and made it difficult to successfully bring cases to a resolution. However, the 2014 Supreme Court of Canada decision of Hryniak v. Mauldin has relaxed the rules pertaining to summary judgment motions and thereby granted the parties in litigation a new weapon to use in their arsenal. Insurers may find that the use of the new summary judgment procedure gives them the opportunity to take proactive action to bring their cases to a resolution effectively and efficiently. Read the rest of this entry »

What Is An Economic Loss? The Appeal Courts Have Spoken

March 24, 2014

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Slowly but surely the changes to the Statutory Accident Benefits Schedule are being interpreted by the Courts and Arbitrators.  Since September 1, 2010 the interested parties have for the most part been left to our own devices to try and guess at how the Appeal Courts would interpret the new language.  The Court of Appeal decision of Henry v. Gore (2013) and The Director’s Delegate decision of Simser v. Aviva (2014) provide us with some guidance as to what an Economic Loss means.  Yet, this guidance is far from clear.  It is important to understand the basis for the reasons in these decisions in order to apply them to the cases that we are adjusting. Read the rest of this entry »