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Posts Tagged ‘Ontario’

Change to Economic Loss Payment Not Retroactive: Court

A judge of the Ontario Superior Court of Justice has ruled that a change to the Statutory Accident Benefits Schedule (SABS) which became effective on February 1, 2014, does not apply to accidents prior to this date.

In the decision David v Wawanesa Mutal Insurance Company [2015 ONSC 6624], Quinlan J. considered whether Section 2 of Ontario Regulation 347/13 applies to accidents prior to February 1, 2014, when this regulation came into force.

In September of 2010 a change to the SABS allowed for non-professionals (e.g., family or friends) to be compensated for the attendant care that was provided to a person injured in a motor vehicle accident only if that non-professional suffered an “economic loss”.  The term “economic loss” was not defined.  The Ontario Court of Appeal later ruled, in its decision on Henry v Gore Mutual Insurance, that if a non-professional suffered an economic loss, they were entitled to the full amount of the monthly attendant care needs (Form 1) and that reimbursement was not limited to the actual amount of the economic loss.  In other words, once a non-professional established that an economic loss had been demonstrated, the full amount of attendant care benefit was payable as assessed.

In December of 2013 the Government of Ontario filed Ontario Regulation 347/13 to limit the amount of compensation for a non-professional to the actual amount of the economic loss sustained.  This regulation went into effect on February 1, 2014.  The regulation is silent on whether or not it is retroactive.

Quinlan J. states as follows:

[31]           Therefore, I accept the plaintiff’s position that attendant care benefits are a contractual right to which an injured person is entitled.  The contract of insurance between an insured and insurer creates rights and obligations, including the right to attendant care benefits.  As such, despite the fact that SABS are a government-legislated scheme, the treatment of other benefits bestowed by legislation and cases dealing with those benefits do not assist in deciding the issue before me.

[34]           The fact that legislation is remedial does not necessarily mean that it is intended to apply retrospectively (R. v. Evans, 2015 BCCA 46 (CanLII), 321 C.C.C. (3d) 130 at para. 33).  As the Court of Appeal held at para. 60 of R. v. Bengy, 2015 ONCA 397 (CanLII), 325 C.C.C. (3d) 22, if the need for immediate reform of the law were so pressing, why would the legislature not have explicitly made the law retrospective?  There is nothing in the record, including the explanatory notes, that demonstrates a clear legislative intent that the amendment is to apply retrospectively.

[35]           Accordingly, the presumption has not been rebutted and therefore applies.  I find that the plaintiff has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident.

The decision can be read in its entirety by clicking on the link below:

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6624/2015onsc6624.html

FSCO Announces Changes to SABS, Attendant Care Hourly Rates

The Financial Services Commission of Ontario (FSCO) has announced major changes to the Statutory Accident Benefits Schedule (SABS), effective June 1, 2016.

These changes include the following:

  • Medical and Rehabilitation Benefits, as well as Attendant Care Benefits, will be combined with respect to limits
    • For non-catastrophic claims, the maximum will be $65,000.00 for up to five years from the date of accident
    • For catastrophic claims, the maximum is $1,000,000.00, over a lifetime
  • Non-Earner Benefit – $185.00 per week, payable after four weeks but only to a maximum of two years following the accident
  • Catastrophic Impairment Designation – a whole new criteria for determining catastrophic impairment will be in force

FSCO has provided a new Attendant Care Hourly Rate Guideline, reflecting an increase to $11.25 per hour, effective October 1, 2015.

The Professional Services Guideline fees for 2015 remain unchanged from the previous year.

The bulletin can be read in its entirety by clicking on the link below:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2015a/Pages/a-06-15.aspx

Dockets Not Necessarily Required for Costs

A recent judicial decision determined that a law firm’s dockets are not normally required to be produced in order for a court to fix costs under the Rules of Civil Procedure.

In Bhatt v William Beasley Enterprises Limited [2015 ONSC 4941 (CanLII)], Justice Faieta stated that the mere size of the amount of costs being claimed is not a sufficient reason to require a party to undertake the expense of preparing and vetting their dockets.

Peter Cho and Luke Hamer, both of Smitiuch Injury Law, represented the Bhatt family in this matter.

The decision can be read in its entirety by clicking on the link below.

http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4941/2015onsc4941.html

FSCO Announces Amendments to Automobile Insurance Legislation and Regulations

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.

Henderson, Lee-Anne and Wawanesa – COE for CAT not in MR benefit limits

Job Posting – Accident Benefits Clerk

Smitiuch Injury Law continues to grow and we are currently looking for an Accident Benefits Clerk for our Accident Benefits Department.

Job Description:

  • Complete OCF forms per the SABS requirements
  • Prepare documentation for FSCO such as Application for Mediation and Application for Arbitration
  • Request medical records from hospital and other medical providers
  • Schedule client appointments such as medical examinations
  • Communicate regularly with insurance adjusters to ensure clients receive the benefits they are entitled to under the SABS and that they are received in a timely manner
  • Communicate regularly with clients to provide updates on the status of benefits and answer queries that they may have

The successful candidate must possess the following qualifications:

  • Licensed LSUC Paralegal designation
  • Law Clerk Diploma or Institute of Law Clerks of Ontario Certificate
  • Previous experience in accident benefits and working knowledge of the SABS and FSCO procedures are definite assets
  • Experience with Time Matters, PCLaw, Primafact and MS Office are definite assets
  • Ability to manage multiple priorities and multiple files in a fast paced environment
  • Excellent written and interpersonal skills
  • Excellent attention to detail
  • Ability to work independently and as part of a team

Qualified applicants are invited to apply via email to: [email protected]

Please note that only selected candidates will be contacted.

New FSCO Decision Limits Timelines for Examination Under Oath for Specified Benefits

NOTE: This arbitration decision was overturned on appeal.  A petition for Judicial Review was filed, but later abandoned.

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that limits an insurer’s ability to request an Examination Under Oath in certain cases.

In the decision Neil Williams and State Farm Mutual Automobile Insurance Company [FSCO A14-001463], Arbitrator Maggy Murray considered whether or not an insurer was prohibited from providing a notice of an Examination Under Oath more than 10 business days after receiving an application and completed disability benefit for a specified benefit.

A specified benefit is an income replacement benefit, caregiver benefit, non-earner benefit, or housekeeping and home maintenance benefit.

Section 36(4) of the Statutory Accident Benefits Schedule (SABS), reads as follows (emphasis added):

(4)  Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2).

Section 33 (1) and (2) of the SABS reads as follows:

(1)  An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

2. A statutory declaration as to the circumstances that gave rise to the application for a benefit.

3. The number, street and municipality where the applicant ordinarily resides.

4. Proof of the applicant’s identity.

(2)  If requested by the insurer, an applicant shall submit to an examination under oath, but is not required,

(a) to submit to more than one examination under oath in respect of matters relating to the same accident; or

(b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition.

Based on this decision (and a plain reading of the legislation), an insurer must provide notice of an Examination Under Oath for a specified benefit within 10 business days of receiving an application and completed disability certificate and an insured is not obligated to submit to an Examination Under Oath if notice has not been provided within that time period.

This decision can be read in its entirety by clicking on the link below.

Neil Williams and State Farm – Examination Under Oath, Specified Benefit

FSCO Announces Amendments to SABS, Service Provider Regulations, etc.

The Financial Services Commission of Ontario (FSCO) has released a bulletin announcing changes to the Statutory Accident Benefits Schedule (SABS), service provider regulations, administrative penalties and eligibility for transportation expenses.

Below are the highlights:

  • Effective December 1, 2014, both licensed and unlicensed service providers and provide goods and service to auto insurance claimants.  Licensed service providers can receive payment directly from insurers, which unlicensed service providers cannot.  Unlicensed providers must complete the OCF-21 form (Auto Insurance Standard Invoice) on HCAI, print it, and provide a copy to the claimant.
  • Effective January 1, 2015, the current interest rate of 1% per month, compounded monthly, will continue to apply.  However, once a mediation proceeding has commenced, the interest rate will then change to the prejudgement interest rate described in the Courts of Justice Act for past pecuniary loss.  This will be calculated from the date on which a mediation proceeding commenced and ending on the date a settlement is reached or a decision is issued.  The current prejudgement interest rate is 1.3% per annum.
  • It is now considered to be an unfair or deceptive act or practice if an unlicensed provider advertises as a licensed provider.
  • There is now an exemption allowing licensed service providers to seek direct payment for a listed expense provided under the SABS from anyone other than an insurer.
  • Specifies penalties for non-compliance with the newly added requirements.
  • Reminds insurers that “authorized transportation expenses” apply only expenses incurred by the insured person or an aide.  It notes that service provider mileage costs are subject to FSCO’s Professional Service Guidelines, which states that insurers are not liable for any other costs beyond what is permitted under the Professional Service Guideline.

The bulletin can be read in full at the following link:

http://www.fsco.gov.on.ca/en/auto/autobulletins/2014/Pages/a-14-14.aspx

Genie Boom Crane is an “Automobile”: FSCO Arbitrator

Note: This decision was overturned on appeal.

A new arbitration decision from the Financial Services Commission of Ontario (FSCO) has determined that a “Genie Boom Crane” is an “automobile” under the Statutory Accident Benefits Schedule.

The decision, Joseph Beattie and Unifund Assurance Company [FSCO A13-005289], describes the Genie as, “a four-wheeled mobile crane, propelled by its own motor”, which is used to elevate a worker to perform a maintenance function.

In this particular case, the Applicant, Mr. Beattie, was operating the crane on a private parking lot.  The ground level collapsed into the level below, injuring him.  Mr. Beattie applied for accident benefits through his own insurance company, Unifund Assurance.  Unifund took the position that the crane was not an “automobile” at the time and place when the structure collapsed and was, therefore, not an “accident”.

The arbitrator found that, since the crane was a “vehicle propelled or driven otherwise than by muscular power” and did not meet the specific exclusions under the section of the Highway Traffic Act, it was a vehicle.  Since it was used off-road, it did not require compulsory insurance, thereby not making it subject to the provisions of the Insurance Act.

The entire decision can be read by clicking on the link below.

Beattie and Unifund – Genie Boom – Accident

FSCO Releases New Professional Services Guideline

The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline, which applies to expenses related to services provided by health care providers rendered on or after September 6, 2014.

A copy of the new guideline can be found at the link below.

2014 FSCO Fee Guidelines

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