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Public Transit Motor Vehicle Accidents about to Become “Non-Accidents”

On March 29, 2011, the Ontario Legislature unveiled its pre-election budget, in Bill 173, otherwise known as the Better Tomorrow for Ontario Act (Budget Measures), 2011. The Budget didn’t raise any eyebrows. The Canadian Press reported:
There’s “not a single new tax cut or credit to be found, just a smattering of strategic investments that will provide insurance for more farmers, expand breast cancer screenings and add new college and university spaces.”
But Schedule 21 of Bill 173 contains some proposed changes to the Insurance Act that are bound to cause a stir in the insurance industry: Firstly, a passenger injured in a public transit vehicle, which has not collided with an automobile or other object, will no longer be entitled to claim accident benefits under section 268 of the Insurance Act as a result of the incident. Meanwhile, the owner and driver of the public transit vehicle will no longer be considered “protected defendants” under section 267.5 of the Act. Schedule 21 provides:
3. (4) Section 267.5 of the Act is amended by adding the following subsection:
Same, public transit vehicles
(6.1) In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident.
4. Section 268 of the Act is amended by adding the following subsection:
Exception, public transit vehicles
(1.1) Despite subsection (1) and the Statutory Accident Benefits Schedule, no statutory accident benefits are payable in respect of an occupant of a public transit vehicle, in respect of an incident that occurs on or after the date this subsection comes into force, if the public transit vehicle did not collide with another automobile or any other object in the incident.
The “no crash, no cash” scheme will work as follows: Where no collision or crash has occurred, any tort claims for injuries against a public transit authority (owner or driver) would be covered and addressed within the tort system. The plaintiff would no longer need to establish a threshold injury and there would be no damages deductible. But they also would not be entitled to any accident benefits from any insurer (neither there own, nor the public transit’s insurer, nor the insurer of any other vehicle involved in the accident).
The purpose behind the proposed changes is obvious: These days, almost any injury that occurs to a passenger on a bus is an “accident” that entitles the person to access accident benefits. According to FSCO arbitrators, almost any incident that happens once a passenger leaves a bus (even meters away from the bus) is also an “accident”. Often the claimant won’t be covered under any other insurance (might be one reason that they take the bus), so such accident benefit claims would fall to the insurer of the public transit vehicle. Often such incidents aren’t reported at the scene and the transit company isn’t even aware of such incident until their insurer receives an application for accident benefits.
So it is clear the Legislature (and public transit) is, among other things, trying to crack down on suspicious accident benefit claims by passengers who get injured while riding the bus (or streetcar). The changes will likely save the insurers of public transit sizable amounts of money each year by not having to pay any accident benefits in incidents that do not involve a collision.
The proposed changes could cause some problems for automobile insurers. For example, suppose Nick is on the bus waiting to get off at the next stop. As the bus approaches the stop, suddenly a car changes lanes and forces the bus driver to slam on the brakes. Nick falls and gets hurt. There is no contact between the vehicles.
Under the current scheme, Nick would be able to claim accident benefits. He would also sue the public transit company/driver and the owner/driver of the other vehicle (if the identity is known, or perhaps Nick’s own insurer under the unidentified motorist provisions of his policy, if he has one).
But under the proposed scheme, Nick would not be entitled to claim accident benefits as a result of this incident. He would still be able to sue the public transit company/driver and the driver of the vehicle that cut off the bus. The public transit company would not be a protected defendant under section 267.5 of the Insurance Act, which would make up for the loss of accident benefits that Nick couldn’t claim (no threshold, no deductibles, etc).
It appears that the owner and driver of the other vehicle would still be “protected” under section 267.5. However, their insurer would not get a “discount” for any accident benefits that Nick would have received under the current scheme as result of the accident — since he would not be entitled to claim any.

iPad or Playbook?

With a big head start in release dates, the iPad clearly has the lead over the Playbook. But does this mean it is the best choice for lawyers and legal firms? Which one will help your law practice? If looking around the office is any indication, the iPad is the winner. By the time the Playbook was released today the technology junkies had already bought their tablet and they are not going to purchase another one until there is a significant reason to do so.

There are so many good applications available for the iPad that will help your practice. Apple’s productivity suite ($), DropBox (free), LogMeIn Ignition ($) and a terrific new app, Moleskine (free).

Given the head start in sales and the countless apps I think the iPad is the best choice.

For more information on using your iPad in your law practice, check out the following blogs: Legal iPad (www.legal-ipad.com), Tablet Legal (www.tabletlegal.com), iPadLawyer (www.ipadlawyer.co.uk), iPad Notebook (www.ipadnotebook.wordpress.com)

FSCO Releases Draft Statement of Priorities for 2011

FSCO has released a draft of its statement of priorities for 2011. Some of the activities being considered are:

– Audit reviews of compliance with 2010 auto reforms, including Statutory Accident Benefits
– Work with stakeholders to identify measures that will reduce fraud and abuses in the auto insurance industry
– Undertake long-term initiatives from the 2010 auto insurance reforms – Minor Injury Treatment protocol, catastrophic impairment definition and closed claims study
– Consider additional tools in enforcement of insurance regulation such as administrative monetary penalties
– Initiate electronic mediation scheduling and explore feasibility of private sector medation/arbitration service providers to assist with increased workload resolution services.

FSCO is inviting comments on this draft by June 7, 2011.

Expert panel seeks comment on its definition of catastrophic impairment

The Catastrophic Impairment Expert Panel is seeking comments on its final report on the definition of “catastrophic impairment” under Ontario’s Statutory Accident Benefits Schedule (SABS).

The report will be posted on the Financial Services Commission of Ontario (FSCO)’s Web site for review on Apr. 11.

An information session will take place on April 28 to address questions on the report’s content. Attendance at the information session will be limited to three representatives from a single organization.

FSCO asks that interested parties RSVP by Apr. 21, or provide written submissions (supported by scientific evidence) by May 13 via the following email: [email protected]

“Catastrophic Impairment Report I Consultation” should be included in the emails subject line.

Alternatively, submissions can also be faxed to 416-590-7265, or mailed to the following:
Sivan Raz
Auto Insurance Policy Unit
Financial Services Commission of Ontario
5160 Yonge Street Box 85
Toronto ON M2N 6L9

Ontario task force to tackle auto insurance fraud

The Ontario government is setting up a task force to advise it on how to deal with auto insurance fraud. Will it help reduce insurance premiums?

 

Read the March 30, 2011 Globe and Mail article for more details.

The Court of Appeal upholds the Threshold for Psychological Injuries

In Healey v. Lakeridge Health Corp., [2011] O.J. No. 231 (C.A.), the Court of Appeal concluded that although there were some academic and judicial opinions to the contrary, there is a strong line of authority that to recover damages for psychological injury independent of physical injury, plaintiffs are required to show that they suffer from a recognizable psychiatric illness. The Court concluded,

“The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the [psychological] injury is serious and prolonged.”

Federal Government Falls

What does the fall of the Federal government today mean to small businesses such as a law firm?

FSCO Mediation Wait-List Times Decreasing

Smitiuch Injury Law has received confirmation from the Financial Services Commission on Ontario (FSCO) that steps are being taken to decrease the wait time for mediations from the current nine months.  Mediators at FSCO are now conducting three mediations per day instead of two.  This should help alleviate the backlog for disputes against insurers for denied accident benefits and, ultimately, will mean that clients will be able to have quicker resolution of their accident benefits claim issues.

A golf cart driving on a highway without insurance is a “motor vehicle”

A golf cart driving on a highway without insurance is still a ‘motor vehicle’ for the purposes of accident benefits. Arbitrator Kominar – “…certain classes of vehicles, including golf carts, when they are operating on property other than highways, it does not follow that ‘if’ those conveyances choose to venture out, illegally, onto highways that they are exempt from insurance requirements…”

Welcome to The Disclosure Blog

We are excited to introduce a new blog to the Canadian Legal community. We want this blog to be fresh, exciting, provoke thought and stimulate discussion. Our intent is to not just post items related to Personal Injury, Motor Vehicle Accidents or even items related to the business of law, although we still will. Thanks for visiting.

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