1.866.621.1551
Servicing Toronto, Brantford, Simcoe, Hamilton and surrounding areas.
Wednesday, January 17, 2018

 
 
 

 
Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Archive for 2017

MIG is Unconstitutional: FSCO

A recent arbitration decision by the Financial Services Commission of Ontario (FSCO) has ruled that the Minor Injury Guidelines within the Statutory Accident Benefits Schedule (SABS) are unconstitutional.

In the decision, Abyan and Sovereign General [FSCO A16-002657], Arbitrator Benjamin Drory was asked to consider whether Sections 3 and 18 of the SABS unjustifiably infringe upon Sections 7 and/or 15 of the Canadian Charter of Rights and Freedoms.

Arbitrator Drory noted that the Applicant has to first demonstrate that a Charter right has been infringed, and then it is up to the government to justify the infringement under Section 1 of the Charter. It was noted that it was unfortunate that no one from the government attended the hearing.

In this particular case the Applicant suffered from chronic pain. The insurer, Sovereign General, had taken the position that, since the chronic pain was an “associated sequelae” from a minor injury, the MIG applied and the insured was, therefore, limited to a maximum of $3,500.00 in medical and rehabilitation benefits.

The arbitrator decided that Section 7 of the Charter was not violated by the MIG, as it does not threaten his security of person, without accordance to the principles of fundamental justice.

With respect to Section 15 of the Charter, Arbitrator Drory stated the following:

I find that the MIG violates section 15 of the Charter on both of the two grounds argued — it discriminates against those who suffer chronic pain as a clinically associated sequelae to the MVA, and against those who did not (and frequently could not) have their pre-existing conditions documented by a health practitioner before the MVA.

The decision can be read in its entirety at the link below.

Abyan and Sovereign General – MIG Unconstitutional

Federal government explores lowering the legal limit to 0.05%

As most Canadians know, the legal blood-alcohol content (BAC) limit for drivers is 80 milligrams of alcohol for every 100 millilitres of blood, or 0.08%. However, as the Toronto Star reports, that may change in the not-so-distant future as the federal government explores whether to lower the legal limit to 50 milligrams per 100 millilitres (or 0.05% BAC). While the proposal has caused some controversy, its supporters say that recent research has revealed that driving with a BAC of 0.05% can double the risk of a car accident and that other countries, including Ireland and Germany, have successfully lowered their legal limits to 0.05% and have seen a resultant dip in fatal accidents.

Proposal to lower legal limit

So far the proposal to lower the legal alcohol limit for licensed drivers is very much in its nascent stage, with the federal Justice Minister having simply sent letters to the provincial and territorial Justice Ministers about exploring the option. No decision has yet been made as to whether the legal limit will be lowered.

While restaurant lobbies have come out against the proposal, its supporters point out that when the legal limit of 0.08% BAC was originally set, research at the time indicated that a BAC of 0.08% doubled a driver’s crash risk. More recent studies, however, show that the crash risk actually doubles with a BAC of 0.05%. A BAC of 0.08% actually triples the crash risk.

Jurisdictions that have lowered the limit

While criminalizing driving with a BAC above 0.05% at the federal level may be controversial, it would not be the first time within Canada that a jurisdiction has set its maximum BAC levels that low. Every province except Quebec currently penalizes drivers who test positive for a BAC above 0.05%, although British Columbia’s penalties are by far the toughest. As the Ottawa Citizen points out, since 2010 police in B.C. have had the power to impound a driver’s vehicle and suspend their license for up to 30 days if their BAC is between 0.05% and 0.08%. Those tough new rules have been credited with leading to a 50 percent reduction in drunk driving fatalities in B.C.

While B.C.’s penalties for driving with a BAC above 0.05% but below 0.08% are administrative rather than criminal, other countries have made it illegal to drive with a BAC above 0.05%, including Germany and Ireland. In fact, the federal Justice Minister cited Ireland’s change to a 0.05% BAC limit as helping to reduce that country’s drunk driving fatalities by 50 percent and reducing criminal charges for impaired driving by 65 percent.

Personal injury law

Anybody who has been hurt in a motor vehicle accident should get in touch with a personal injury lawyer as soon as possible, especially if the accident may have been the result of another driver’s negligence or criminal behaviour (such as if he or she was driving while intoxicated). An experienced lawyer can help accident victims understand what legal options they have, including by helping them with filing claims for financial compensation that they may be entitled to.

The New Dispute System for Accident Benefits Claims: You Lose Before You Even Begin

It is a common legal principle in civil law that the party that loses a case must pay at least some of the winner’s costs, which can include legal fees and disbursements. This is based on the tenant of access to justice, which allows anyone regardless of economic resources to advance a claim against a party that has wronged him or her. In the context of the accident benefits system, it means that an injured person can advance a dispute against an insurance company and, if they are successful, their legal costs will be paid. They are not hindered in advancing a claim because they cannot afford to do so.

On April 1, 2016, all disputes for accident benefits from motor vehicle accidents in Ontario were moved into a new system through the License and Appeals Tribunal (LAT) through the Ministry of the Attorney General. With a new system came new rules. One of the most concerning is Rule 19, which deals with costs.  A recent LAT decision with respect to this rule deemed that costs can only be claimed if a party has acted unreasonably, frivolously, vexatiously or in bad faith within the dispute resolution process.  In other words, as long as both parties have acted well within the dispute resolution process, costs will not be awarded, no matter how egregious an insurer might have been in denying benefits.

In our view, this is totally unjust and unfair.

At Smitiuch Injury Law we fully intend on appealing any adverse decisions on costs and will raise the access to justice principle in order to declare the current Rule 19 void.

List of Top 10 countries by traffic-related death rate

Annual Traffic-Related Fatalities per 100,000 Inhabitants – 2013 ( Canada 6.0)

Source: Wikipedia (https://goo.gl/qp3bxr)

Neuropsychological Assessments and the $2,000 AB Cap

In September of 2010, the Statutory Accident Benefits Schedule (SABS) were amended with respect to Costs of Examinations.  A cap of $2,000.00 was placed on each assessment completed, either for the insured or the insurer.

This cap has proven difficult for some more complex assessments, including neuropsychological assessments.  In order to obtain a reliable assessment the cost is well beyond $2,000.00.

Many in the accident benefits community (plaintiff lawyers acting on behalf of injured victims, as well as insurers) have been getting around this cap by dividing up the assessment into two distinct assessments; normally a “psychological” assessment and a “neuropsychological” assessment.  For the most part this has been widely accepted as a way to comply with the statutory limit while getting a fairly reliable assessment report.  There have been a few insurers who have not agreed with this approach.

A recent FSCO arbitration decision, Breadner and Co-operators [FSCO A15-005120] has challenged this approach.

A Treatment and Assessment Plan (OCF-18) was submitted on behalf of Ms. Breadner with the following breakdown of costs:

  • Neuropsychological Interview – $2,000.00
  • Neuropsychological Testing – $2,000.00
  • Neuropsychological Screen related to the OCF-18 – $250.00
  • OCF-18 – $200.00

With taxes, the total amount of the proposed OCF-18 was $5,028.50.

Co-operators paid $2,200.00 for the cost of one assessment, plus $200.00 for the cost of completing the OCF-18.  They also paid the applicable HST for one assessment.  Ms. Breadner applied for arbitration to claim the costs of the second assessment.

Arbitrator Caroline King determined that the assessment work constituted one assessment within the meaning of the SABS.  She noted that the OCF-18 identifies a neuropsychological assessment and the documents/reports themselves had the same purpose identified, the same author of both reports on the same date, the same dates of examination and the same tests administered.  It was also noted that the results and information in the second document were incorporated by reference into the first document.

Arbitrator King concluded that, “When these points are considered as a whole, I find that the nature, content, and language of the documents clearly supports a finding that the work done constituted one assessment.”

This decision presents a quandary for both injured individuals as well as insurers.  Unless the two assessments are distinct, they may not be entirely paid for by the insurer.  However, any insurance company taking this position would do so at their own peril, as it would also prohibit them from getting a complete neuropsychological assessment as well under Section 44 of the SABS (insurer’s examinations).

The entire decision can be read in its entirety at the link below:

Breadner and Cooperators – Neuropsych and Psych as one assessment

Page 1 of 11