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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

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

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 on the dispute resolution process. One of the most concerning is Rule 19, which deals with costs.

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 (things that have been paid to third parties to advance the matter). 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, therefore, hindered in advancing a claim because they cannot afford to do so.

Rule 19 of the LAT rules states that, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” A recent LAT decision[1] with respect to this rule indicates that the unreasonable, frivolous or vexatious actions of a party are only within the context of the actual dispute resolution (LAT) proceeding.

What this means is that, even with the most egregious behaviour of an insurance company against a financially strapped injured person, that person cannot be reimbursed for the legal costs needed to dispute the insurance company’s decision, unless the insurer did not behave themselves within the LAT proceedings. It is as if all of the actions of an insurance company outside of the proceedings don’t matter.

While an injured person could claim a special award as a punitive measure against an insurer for unreasonable conduct, this is limited to up to 50% in addition to whatever amount is awarded for the most egregious conduct. The injured party cannot be reimbursed for the $100.00 LAT application fee, any medical reports or documents, which support their claim, or the costs of having a legal representative to stand up to the insurer on their behalf.

For example, let’s say that an insurance company denied payment of income replacement benefits to an injured person and that the insurance company’s denial was totally unreasonable. The injured person must pay a $100.00 application fee to dispute the denial. In most cases, given the complexity of accident benefits legislation, they must retain a legal representative. They go through the LAT process. The arbitrator ultimately agrees that the insurance company was unreasonable in denying payment of the income replacement benefit and orders it to be paid. As long as the insurance company behaved themselves in the proceedings they do not have to reimburse the injured person for the application fee, all supporting documentation supporting their claim (which could be in the thousands of dollars), or the costs for retaining the legal representative. The injured person could, in fact, be better off not even disputing the insurance company’s denial.

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.

[1] 16-000041 v Intact Insurance Company, 2016 CanLII 78333 (ON LAT)

Chiocchio v. City of Hamilton et al.

On December 7, 2016, the Honourable Mr. Justice Skarica released his Reasons for Judgment after a trial before him in Hamilton. This action arose from a tragic motor vehicle accident which resulted in the Plaintiff (our client) being rendered a quadriplegic. The losses and damages suffered by the Plaintiff were considerable. The trial proceeded before Justice Skarica on the issue of liability only. While one of the Defendants admitted some fault for the accident, the main issue was whether the City of Hamilton was liable also.

The evidence during the trial established that the intersection in question had a history of accidents and that the City failed to paint the stop line at the intersection despite the recommendation to do so. The visibility at the intersection also became poor the further back that a motorist stopped. In the end, Justice Skarica found the City of Hamilton liable and apportioned fault at 50% against the City and 50% against the Defendant driver. In finding liability against the City, Justice Skarica concluded as follows:

“In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair.”

Click here to read the full Judgment on CanLII. (Chiocchio v Ellis, 2016 ONSC 7570 (CanLII))

Peter Cho and Michael Smitiuch were trial counsel for the Plaintiffs.

Fearless Advocacy – The Dabor Trial

The lawyers, paralegals and staff at Smitiuch Injury Law continue to fearlessly advocate for their clients at both trials and arbitrations. It is the philosophy of the firm to take cases to trial where the other side fails to make a fair and reasonable settlement offer. We have conducted numerous trials and arbitrations in recent years and do not shy away from challenging liability or damages cases. The case of Dabor et al. v. Southbram Holdings Limited et al. (CV-11-417735) is one such example.

 

On June 3, 2016, a Toronto jury returned a verdict in favour of our clients after three weeks of trial. This action arose from the Plaintiff’s fall from a metal stud located above a drop-down ceiling to the floor ten feet below. The Plaintiff suffered a comminuted calcaneous (broken heal) and continues to suffer with significant pain.

 

This was a unique case in that the Plaintiff was an independent contractor performing regular work at a warehouse owned and occupied by the Defendant corporations. Neither of the parties had workers’ compensation coverage. It was alleged by the Defendants that the Plaintiff was the author of his own misfortune and as an experienced contractor he should have performed the work more carefully. In addition, they argued that the Plaintiff did not raise any safety concerns with the work he was being asked to perform and that he had in fact completed the same task safely one week before his fall.

 

Even before this case made it to trial, the Defendants had brought a summary judgment motion to try and put a stop to the lawsuit. Peter Cho of Smitiuch Injury Law successfully fought off this motion and the case continued on.

 

During the trial, we called numerous witnesses, including an orthopaedic surgeon, family physician, specialist pain doctor and a forensic accountant. In the end, the jury found the Defendants 38% responsible for failing to give clear instructions to the Plaintiff, failing to have a safe pathway above the ceiling and failing to provide the necessary equipment for the job. The jury assessed damages at $515,000.00 plus interest and the Plaintiffs beat the Defendants’ formal offer to settle.

 

This verdict was significant because it serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.

 

Michael Smitiuch and Peter Cho were trial counsel for the Plaintiffs.

Concussions – Not a “get up and shake it off” injury

The seriousness of concussions cannot be overstated.

Health care providers are becoming more aware of the effects of concussions (also known as Acquired Brain Injury – ABI).  What was once a, “get up and shake it off” occurrence, has now become a proper assessment with protocols for monitoring the status of the individual as they return to work or sports.

ABI is a physical injury to the brain (concussions). It can be caused by a blow to the head, severe rotation of the neck or whiplash, or even from a lack of oxygen. Over 160,000 Canadians suffer brain injuries every year and, with better reporting, that number gets more accurate and thus keeps rising.

concussions

Concussions can occur many different ways and can have many different symptoms. No two concussions are identical.

About 50% of ABI’s come from falls and motor vehicle accidents.  While many injuries are mild and fully recover (80 – 90% in 7 – 10 days), many can last for much longer.  Some of the symptoms are temporary – headaches, vomiting, concentration issues, memory issues and balance problems. However, some issues can be longer standing – personality changes, sensitivity to light and noise, sleep problems, depression and other psychological issues.

 

Prognosis for ABI’s depends on many factors.  Red flags include post traumatic amnesia, history of previous ABI, skull fracture, nausea and dizziness after injury.

 

Treatment for concussions are rest, rest, and more rest.  Also, those recovering have to limit their exposure to stimulation and thinking that taxes the brain (computer screens and video games).  Return to work or sports is the responsibility of the treating doctor.  Premature return increases risks of second impact syndrome (can be fatal).

 

The seriousness of this condition cannot be overstated.  New imaging techniques are developed to show the extent of the injury and direct treatment.  Hopefully those tests will help those suffering to have the greatest chance of recovery and advocacy.

 

This article was originally published in the Fall 2016 issue of Disclosure. Click here to read the complete newsletter.

Seven Greatest Fictional Lawyers

Seven Greatest Fictional Lawyers

1.Atticus Finch (Gregory Peck) – To Kill a Mockingbird

Image result for atticus finch

2. Lt. Daniel Kaffee (Tom Cruise) – A Few Good Men

Image result for lt. kaffee

3. Vincent “Vinny” Gambini (Joe Pesci) – My Cousin Vinny

Image result for vincent gambini

4. Perry Mason (Raymond Burr) – Perry Mason

Image result for perry mason

5. Elle Woods (Reese Witherspoon) – Legally Blonde

Image result for elle woods

6. Harvey Specter (Gabriel Macht) – Suits

fictional lawyer 6

7. Arthur Kirkland (Al Pacino) – And Justice for All

Image result for arthur kirkland justice

This is one of the articles from Smitiuch Injury Law’s Fall 2016 Newsletter. Click here to read the complete newsletter.

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