Licence Appeal Tribunal mired in controversy

Ontario’s Licence Appeal Tribunal (LAT), the body in charge of resolving accident benefits disputes between injury victims and insurance companies, was consumed by controversy last month when a top-ranking official was revealed to have meddled in an insurance claim. The event seized the attention of other provincial adjudicating bodies and prompted concern from Ontario personal injury lawyers.

The Case

In 2012, Mary Shuttleworth suffered a traumatic brain injury and tissue damage in a two-car collision near Dundalk, Ontario. Her injuries left her with persistent nausea, vertigo, and stress. She is unable to work.

Despite her impairment, her insurance company, Peel Mutual, informed her that her injuries were not considered “catastrophic,” a designation that would have entitled her to up to $2-million in benefits. Her “non-catastrophic” injuries made her eligible to receive less than $90,000.

Shuttleworth appealed the insurer’s decision to the Licence Appeal Tribunal. It was the first dispute relating to catastrophic injury designation that the newly formed body was asked to resolve.

The LAT adjudicator for the case, Susan Sapin, eventually sided with the insurer and denied Shuttleworth’s claim for additional benefits.

The Controversy

In the months after Shuttleworth’s claim was denied, her legal team team received an anonymous letter accusing Linda Lamoureaux, head of the Safety, Licensing Appeals and Standards Tribunal, of interfering with Sapin’s decision.

“I have heard from reliable source that Sapin’s initial decision was that this was a catastrophic impairment. Linda Lamoureaux changed the decision to make the applicant not catastrophically impaired,” the letter read, per the CBC. “Thought you should know that the decision was not made by an independent decision maker who heard the evidence.”

Shuttleworth’s team filed a Freedom of Information and Protection of Privacy Act application for documents that would back up the letter’s allegations. The request produced an email chain showing that Lamoureaux’s unsolicited review of Sapin’s decision led to the ruling being changed.

Ruling Overturned

After review by a three-judge Divisional Court panel, the LAT’s ruling on Shuttleworth’s claim was overturned.

“Justice must not only be done; it must be seen to be done,” wrote Justice Julie Thorburn. “An informed, cautious observer would have a reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator.”

Fallout

While Justice Thorburn stressed that the court found no evidence of “any actual impropriety having occurred,” the episode has shaken the trust of Ontario personal injury lawyers and their clients in the fairness of the system. Many injury victims already believe that the system is stacked against them, and this event will only worsen the relationship.

If you or someone you love has been injured in a car accident, contact the Ontario personal injury lawyers at Will Davidson LLP to learn how we can help.

 

Image credit: Ilya Plekhanov/Wikimedia Commons

Toronto considers allowing motorcycle lane filtering – is the practice safe?

The City of Toronto is considering a proposal to allow motorcyclists to move between lanes of traffic while stopped at red lights, a practice known as “lane filtering.” Advocates of the proposal believe it will reduce congestion and improve safety among motorcyclists; however, from a motorcycle accident lawyer’s point of view, it has the potential to complicate already dangerous riding conditions.

Michel Mersereau, a senior instructor for The Rider Training Institute who helped draft the proposal, described the project as such, according to Global News:

“Lane filtering, basically what we are looking at is a pilot project around Richmond and Adelaide streets which represents the highest motorcycle collision zone in the city and this would allow motorcyclists at a red light to filter up between a row of stopped cars to the stop line and proceed through the intersection once the light turns green.”

Lane filtering should not be confused with “lane splitting,” wherein motorcyclists navigate between moving vehicles.

Proponents say that lane filtering protects motorcyclists from a major safety concern: being rear-ended by drivers in intersections. Toronto Councilor Anthony Perruzza, who brought forward the motion and is a motorcyclist himself, said lane filtering puts riders “in a much safer place because they’re ahead of the cars and they’re not just sitting in a lane looking behind them to see someone in a vehicle looking at their phone or being distracted.”

Lane filtering is legal and popular in cities around the world, including in California where it helps address significant congestion concerns. However, the practice has a long history in these jurisdictions, meaning drivers are used to keeping an eye open for lane filtering motorcyclists. In Toronto, a widespread awareness campaign would be necessary to reduce injuries.

“All of a sudden this motorcyclist appears next to you and the car beside you, so it’s not something you can just implement overnight,” a spokeswoman for the Canadian Motorcycle Association told Global.

As any motorcycle accident lawyer in Ontario can attest, motorcyclists are already more susceptible to serious traffic injuries than most drivers on the road. Lane filtering might have benefits, but it shouldn’t be implemented until the risks are identified and soberly considered.

If you or a member of your family has suffered an injury in a motorcycle accident, contact Will Davidson LLP to speak with an experienced motorcycle accident lawyer today. Our team can help you understand your legal options and provide guidance on your road to recovery.

 

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Superior Court case examines the word “spouse” in accident benefits claims

A recently-resolved priority dispute between two auto insurance providers has delivered clarity on the meaning of the term “spouse” in accident benefits claims.

The dispute stemmed from a February 2014 collision involving Helen Halliday and another driver in a parking lot. Helen was driving a vehicle owned by her boyfriend, David Zorony, who was insured by Royal & Sun Alliance. The other driver involved was insured by Desjardins Insurance Group member Certas Direct Insurance Company. The dispute was based solely on which company should provide statutory accident benefits to Ms. Halliday; counsel for the parties were in agreement on costs.

Original Decision

An arbitrator reviewed the case and found that Halliday was owed accident benefits by Royal & Sun as she was the “spouse of the named insured,” which falls within the definition of an “insured person” under the Statutory Accident Benefits Schedule. At the time of the accident, Halliday and Zorony had been living together for roughly one year, though they had been romantically involved since 2008.

The arbitrator’s decision was based more on the Family Law Act’s interpretation of the term “spouse” than on that of the Insurance Act, which clearly stipulates that a couple must cohabit for a longer period.

“The arbitrator observed the wording used to describe a “spouse” under both the Family Law Act and the Insurance Act is essentially the same,” Canadian Underwriter reported. “She went on to develop a broad, contextual interpretation of “spouse” that contradicted the literal wording in the Insurance Act, which requires that an insured party and his or her spouse “live together in a conjugal relationship” for three years.”

Appeal

Royal & Sun Alliance appealed the arbitrator’s interpretation to the Ontario Superior Court of Justice, where the decision was overruled.

“Unlike the Family Law Act, the Insurance Act provides automatic benefits to spouses regardless of need,” Superior Court Justice E.M. Morgan wrote in his decision. “It therefore requires a context-specific approach of its own.”

Certas Direct Insurance Company was thus ordered to pay accident benefits to Ms. Halliday.

Though Royal & Sun Alliance v. Desjardins/Certas doesn’t directly deal with an accident benefits dispute between an injury victim and insurer, the clarification provided on the definition of the term “spouse” in the Insurance Act may be useful to personal injury lawyers in the future.

If you or a member of your family has been injured in a motor vehicle collision or is involved in an accident benefits dispute with an insurer, contact Will Davidson LLP today to arrange a consultation with an experienced and knowledgeable personal injury lawyer.

 

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