Archive for July 2015
The Superintendent of Financial Services for the Financial Services Commission of Ontario (FSCO) has released a bulletin today (A-05/15) outlining amendments to Ontario’s automobile insurance legislation and regulations. Below is the content of this bulletin:
With this bulletin, the Financial Services Commission of Ontario (FSCO) is highlighting a number of recent reforms to automobile insurance legislation and regulations.
These reforms are the result of the announcements made by the government in the 2015 Ontario Budget. They include amendments to the Insurance Act, and to Regulation 664 (Automobile Insurance) and Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur on or After November 1, 1996).
In the upcoming months, FSCO will issue additional bulletins relating to the implementation of other automobile insurance reforms announced in the 2015 Ontario Budget.
The amendments are listed and outlined below:
Ontario Regulation 664 (Automobile Insurance)
This regulation has been amended to require that all insurers offer a discount to policyholders for the use of winter tires. The winter tire discount must be made available for contracts issued or renewed on or after January 1, 2016, for all eligible private passenger automobile policies. Insurers are encouraged to implement the discount before January 1, 2016, where feasible.
Insurance companies that do not currently offer a winter tire discount must file an application for approval with FSCO no later than August 28, 2015. Insurers should use the Private Passenger Automobile Filing Guidelines – Simplified for these applications and not off-balance this discount.
Insurers are required to have a process in place to notify their policyholders of this new discount.
For inquiries regarding the filing process for this discount, contact your Rate Analyst in the Automobile Insurance Services Branch at FSCO.
Ontario Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur On Or After November 1, 1996)
This regulation has been amended to ensure that the deductible amounts for damages for non-pecuniary loss (pain and suffering) reflect the effects of inflation since 2003.
The regulation amendments include the following:
The $30,000 deductible amount prescribed in the case of damages for non-pecuniary loss is adjusted to $36,540 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year.
- The $15,000 deductible amount prescribed in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, is adjusted to $18,270 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year.
The existing endorsement [Added Coverage To Offset Tort Deductibles (OPCF 48)] to reduce the tort deductible amounts will remain unchanged.
Insurance Act, R.S.O. 1990, c. I.8
The Insurance Act is amended to adjust the monetary thresholds beyond which the tort deductible does not apply to reflect inflation since 2003, and link the monetary thresholds to future changes in inflation.
The legislative amendments include the following:
The monetary threshold beyond which the new deductible amount of $36,540 does not apply is adjusted from $100,000 to $121,799, in the case of damages for non-pecuniary loss from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this new threshold amount will be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year.
- The monetary threshold beyond which the new deductible amount of $18,270 does not apply is adjusted from $50,000 to $60,899, in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this new threshold amount will be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year.
- The Insurance Act has been amended in subsection 267.5 (9) to require that the tort deductible be taken into account when determining a party’s entitlement to costs in an action for damages from bodily injury or death arising directly or indirectly from the use or operation of an automobile.
Please ensure that your claims and underwriting staff, and any other staff who may be affected, are informed of these changes. Also ensure that you make any operational changes needed to implement these reforms by the effective date.
Copies of Regulations and Legislation
The Insurance Act and regulations can be downloaded from the e-laws website at www.e-laws.gov.on.ca . The proclamation order for the legislative amendments to the Insurance Act is expected to be published in a future edition of The Ontario Gazette.
Costs for Examination for CAT Assessment, Form 1 Completion and Disability Certificate Not Out of Med-Rehab Limits
A recent decision by the Financial Services Commission of Ontario (FSCO) confirms that the costs for completion of a catastrophic assessment are not subject to the medical and rehabilitation benefit limits.
In Lee-Anne Henderson and Wawanesa Mutual Insurance Company [FSCO A14-001758], Arbitrator Patrick Bowles was asked to consider whether or not this was the case. The Applicant, Ms. Henderson, had requested that the costs for the completion of a catastrophic assessment be paid by the insurer. Wawanesa denied payment, stating that Ms. Henderson had reached the maximum payable for medical and rehabilitation benefits in the amount of $50,000.00, therefore there was no further benefits available to fund the assessments.
Arbitrator Bowles accepted Ms. Henderson’s argument that the only assessments that are subject to the medical and rehabilitation benefit limits are ones for the purpose of claiming a medical and rehabilitation benefit. Since a catastrophic determination is not for the purpose of a benefit per se (rather, it is for a determination on the amount of benefits available), it is not subject to the limits, and should properly be allocated as a claims expense by the insurer.
While it was not directly considered in this decision, it follows that the costs for completion of an Attendant Care Needs Assessment (Form 1), as well as a Disability Certificate (OCF-3) are also not subject to payment under the medical and rehabilitation benefits, as they are for an attendant care benefit and for specified benefits, respectively.
If an insurer is claiming that the medical and rehabilitation benefits have reached the limits, it is helpful to obtain an itemized listing of all payments made to determine if any payments have been incorrectly allocated. This could free-up additional funds that may be needed by an insured for treatment.
This decision can be read in its entirety by clicking on the link below.
Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO).
D.C. (initials are being used, at our client’s request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle. The vehicle did not stop and there were no known witnesses.
D.C.’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash. D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence. Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.
He went home, scraped and bruised, but otherwise felt fine. The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy. Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits. D.C. called, and then retained, Smitiuch Injury Law.
An accident benefits claim was started with D.C.’s insurer, Aviva Canada. Aviva accepted D.C.’s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits. However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule (SABS).
Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C. Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle. Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.
Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C. As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life.
The redacted arbitration decision can be read it its entirety by clicking on the link below.