Month: May 2009

2009-05-27 15:44:06

In personal injury actions surveillance is often used by an insurance company to discredit a Plaintiff and to catch them engaging in certain activities they allege they are unable to perform.

During the litigation process the issue of surveillance often becomes contentious. While a Defendant might retain surveillance they don't end up disclosing it. The Ontario Rules of Civil Procedure require that if you intend to rely on such surveillance you have to disclose it 90 days before trial.

All parties should be aware of the disclosure obligations regarding surveillance. A recent Ontario case, Marchese v Knowles 2009 CanLII 12116 (ON S.C.) lays out some of these obligations.

The principals from Marchese are essentially identical to Walker v. Woodstock District Chamber of Commerce (2001) by the Divisional Court.

According to these cases if a party has surveillance it should disclose:

1. Dates, times and precise locations;
2. particulars of the activities and observations made, and
3. the names and address of the persons who conducted the surveillance.

Although, the surveillance itself does not need to be provided the particulars as referenced above does. In fact, Marchese, even states that particulars of the log notes should be produced as well.

Finally, the rules are slightly different when dealing with surveillance in the context of hearings before the Financial Services Commission of Ontario (FSCO). FSCO requires that if you intend to rely on surveillance you must deliver all the raw material generated by the investigators and their contact particulars. Failure to do so, could have grave consequences for the party who intends to rely on the surveillance.

A civil action can be commenced against a long term disability carrier. Many of these carriers offer disability policies through employers. Examples include, Manulife, SunLife, Citadel to name a few. A civil action against a long term disability carrier is defined as a breach of contract. This is based on the fact that employees whose employers offer group disability insurance enter into a contract with the disability carrier by virtue of their employment. The contract has standard wording that offers disability benefits for those who qualify. The definition of a disability is often what becomes a bone of contention between parties.

In the reported case of Barlow v. The Citadel General Assurance Company, the trial judge stated that the insurance company bore the responsibility of proving the insured (the person applying for benefits) was disabled since they accepted the claim and made payment. Citadel General Assurance Company's appeal to the Ontario Court of Appeal was dismissed by a very brief decision.

The Ontario Court of Appeal acknowledged the trial judge made an error in law. However, the court did not classify the error as a, "substantial wrong or miscarriage of justice." The Ontario Court of Appeal ordered a new trial.

In long term disability cases, the insured will typically have to satisfy the test for disability as defined by the long term disability carriers policy. While few civil cases for personal injury make it to trial. Even fewer breach of contract, long term disability cases make it to trial.

There are many reasons why an insurance company will deny coverage to its customer the insured. Often this happens in drinking and driving cases or other violations that contravene the terms of the insurance policy. When an insurance company denies coverage it will only cover any claim for damages up to $200,000. Therefore, if you are being sued for a million dollars which is usually the case, you as the insured will be responsible for anything above that.

Shah v. Becamon 94 O.R. (3d) 297 is a recent case decided by the Ontario Court of Appeal where the insurer Wawanesa denied coverage to its insured i.e, the Defendant. The Defendant, Becamon held a valid G1 license which required a driver of at least four years to accompany her. However, Becamon decided to take the car on her own. She ended up hitting a pedestrian, Shah in the parking lot at Bathurst and Wilson.

She pled guilty to the Highway Traffic Act charge and paid a small fine. However, in the Plaintiff's civil case Wawanesa the insurer denied coverage. At trial, the Judge used the principals of fairness to ensure that Becamon be afforded full coverage by her insurance company. The trial Judge reasoned that, the strip mall parking lot did not constitute a highway as defined by the Act. Therefore, the Defendant was not in contravention of the insurance policy specifically the wording authorized by law:

4(1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

The Ontario Court of Appeal accepted this position.

Furthermore, Wawanesa also argued that based on the fact the Defendant, Becamon pled guilty to the two offences this meant she was not authorized by law to drive the vehicle. The trial Judge did not accept this position and neither did the Court of Appeal. The trial Judge provided reasons for his decision but it seems ultimately the crux of the issue rested on the fact that:

On the other hand, the stakes in the present civil action, which will probably be long, complex and costly, are much greater -- compensation potentially in the hundreds of thousands of dollars for an innocent pedestrian. In my view, this dichotomy of process and consequences suggests that, in the words of Arbour J. in C.U.P.E. , "fairness dictates that the original result should not be binding in the new context".

In conclusion, it seems that both courts used the principals of fairness to ensure that the Defendant was provided full coverage. At the end of the day, if the Defendant was not provided full coverage she would face grave financial consequences. In addition, the Plaintiff would probably have a difficult time in collecting anything above $200,000 from his civil suit.

It is important to always ensure you understand your policy and anything that can lead to a breach of the policy. Clarify issues with your broker and keep records of your discussion.

The Toronto Sun reported today, Ontario told to slash insurance benefits Insurance claims for car injuries face 75% cut. Essentially, the Financial Services Commission of Ontario made the recommendation as part of it's five year review of the insurance industry. This issue stems back to my previous entries and deals with accident benefits that you collect from your own insurance company.

Under the SABS legislation if you are not a catastrophically injured person the maximum you are entitled to is $100,000 for medical and rehabilitation benefits. However, the new proposal recommends $25,000. Critics state that this would place an incredibly heavy burden on the Ontario health care system as more individuals would turn to the provinces for relief. The Insurance Industry says that Ontario has the highest payouts and that people are being over treated.

The complete Toronto Sun article can be found here.

As discussed previously accident benefits are part of the no fault scheme in Ontario. Regardless, of whether you are at fault or not you can apply to your insurance company for benefits. If an insurance company does not pay you the benefit and later on at a hearing referred to as an Arbitration held at the Financial Services Commission of Ontario (FSCO) it is determined that you should have been paid the benefit there are certain interest consequences.

Specifically, section 46(1) of the accident benefits legislation (SABS) says that if a payment of a benefit is overdue, the insurer shall pay interest on the overdue amount for each day of the amount it is overdue from the date the amount became overdue at the rate of 2% per month.

However, FSCO and the courts have been looking at when interest should be payable i.e, after the Arbitrator's Decision or when the benefit was actually due. There are many decisions on this topic and also whether or not it matters that the insurance company was in receipt of a report that suggested the benefit was not payable.

Recently, the Ontario Court of Appeal upheld a lower court decision regarding interest on unpaid accident benefits. In Sorokin v. The Wawanesa Mutual the Plaintiff was successful in moving for Summary Judgment on unpaid interest that had accrued on the interest component of the Arbitrators award. The motion judge characterized interest as a "benefit" under section 46(2) of the SABS.

The motion judge also advocated for a, "broad and liberal interpretation" of the SABS. Finally, he stated that to hold otherwise, would allow insurance companies to withhold payments without consequences. The Decision was upheld at Ontario's Court of Appeal where the court held that the policy intent of section 46 was compensatory.

Additional cases that deal with interest as per the SABs are:

• Attavar v. Allstate Insurance Co. of Canada., [2003 O.J. No. 213,
• McMahon Urquhart v Zurich Insurance Company of Canada [1988] O.I.D.D. No. 34
• Abulibdeh v. RBC General Insurance Co. [2007] O.F.S.C.D. No. 138
• Mercier v. Royal & SunAlliance Insurance Co. of Canada [2004] O.J. No. 3264
• Neumeyer v. Wawanesa Mutual Insurance Co. [2005] O.J. No. 4004
• Monks v. ING Insurance Co. of Canada [2005] O.J. No. 3753
• Hejnowicz v. Coachman Insurance Co.[2006] O.F.S.C.D. No. 130

Time and time again lawyers acting for Plaintiff's in personal injury actions are facing the dilemma posed by Facebook. The Globe and Mail reported today, Facebook Foils Canadian Lawsuits. This has been a growing trend since 2007 where a number of courts have produced Plaintiff's personal Facebook profiles.

In a lawsuit the court can order various documentation about a Plaintiff both pre and post accident. It has become customary that certain information is almost always produced. For example, clinical notes and records from treating physicians, income tax returns, employment file etc. However, in some cases photographs are requested depicting and or showing the Plaintiff engaging in various sorts of activities.

It then stems, that there are few options for the Plaintiff in a lawsuit to resist producing a Facebook profile. Moreover, given the recent precedent from Courts across Ontario a Plaintiff is obliged to produce his or her profile.

The comments on the Globe and Mail site are interesting and really hate on Plaintiff's and their lawyers.

Keep in mind that these rulings would also apply to Twitter pages, My Space pages or any other forms of Blogs.

http://www.theglobeandmail.com/servlet/story/RTGAM.20090510.wfacebooktrial0510/EmailBNStory/Technology/

Court rules can be very perplexing and the obligations imposed can be onerous. If a Plaintiff has commenced a legal action in Ontario sometime after a certain period you can expect to receive a notice from the court. The notice is typically delivered two years after the commencement of an action and it's referred to as a Status Hearing. Normally, the parties are required to attend before the court and report where the matter is at. Status Hearings can become very time consuming and often the Plaintiff almost always through inadvertence has the action dismissed. This usually requires bringing an official motion before the court to reinstate the matter. While in most cases the action is unopposed and reinstated there are many situations where the Defendant's oppose the motion.

A recent reported decision, Gorouvein v. Toronto Transit Commission 94 O.R. (3d) 225 involved just that. The Defendant TTC was opposing the Plaintiff's motion to reinstate the action. The action started in 2005 and the Plaintiff failed to comply with the timetable to set the matter down by August 15, 2008. The court allowed the Plaintiff to reinstate the matter. However, costs were still given to the Defendant and this was largely due to the Plaintiff's deficient motion material causing the court to rely on the Defendant's material to determine what happened.

Plaintiff counsel had attributed the inadvertence to a clerical error. Nonetheless, Plaintiff counsel must have breathed a sigh of relief. Having an action dismissed while in the carriage of a lawyer can be very distressing as it could have the potential of a negligence claim against the solicitor of record.

It was reported in New York that two of the cities’ biggest brain surgeons abandoned a woman who was prepped and ready to proceed with surgery. The women was on the surgical table had been given anesthesia and had her head shaved for the procedure.  When staff started to look around they were unable to find the doctor who was responsible for the surgery. The staff then requested another doctor at the facility to perform the surgery who refused.

The complete story can be found here.

Khadr v. Canada (Prime Minister), [2009] F.C.J. No. 462 is an unprecedented judgment by the Federal Court of Canada. Justice James O'Reilly ordered the Harper government to intervene and bring Khadr home. Finally, a court has spoken up against the incredible injustice faced by Khadr. As quoted from Lawyers Weekly:

Justice James O'Reilly ruled on April 23 that the Charter's s. 7 guarantee that the state may not deprive a person of his life, liberty and security of the person, except in accordance with the principles of fundamental justice, obliges Canada "to protect Mr. Khadr by taking appropriate steps to ensure that his treatment" at the high-security U.S. military facility in Cuba accords with human rights norms enshrined in the Convention on the Rights of the Child and the Convention against Torture.

This is a huge win for Khadr's lawyers who have been requesting assistance from the Harper government. It will be interesting to see whether Harper will choose to abide by the courts decision. More interesting, has always been the silence from the Liberal majority on this issue.

The Canadian government has an obligation to ensure that it's citizens are not subject to torture and inhumane treatment.

Bravo to Justice O'Reilly for finally standing up.

Khadr v. Canada (Prime Minister), [2009] F.C.J. No. 462