Ontarians Still Reeling from 2016 Changes to Auto Insurance System

In June 2016, the then-Liberal Government of Ontario introduced major changes to the province’s auto insurance system. Presented as an effort to reduce premiums, the changes significantly reduced available accident benefits and altered the definition of catastrophic impairment, making it more difficult for car accident lawyers to secure fair compensation for their clients. As a recent Global News story illustrates, the now-three-year-old changes continue to have devastating impacts on accident victims.

The Global report focuses on 32-year-old Ben Schenk, who incurred a traumatic brain injury after a crash on Ontario Highway 400 this May. As of July 5, Schenk’s family was waiting to learn whether their insurance company would classify his injuries as “catastrophic.” The decision will have a profound effect on the family’s ability to sustain itself. If his injuries are deemed catastrophic, Schenk will have access to up to $1-million in combined medical, rehabilitation, and attendant care benefits. If they are deemed non-catastrophic, he will have access to just $65,000 in benefits, not nearly enough to cover his rehabilitation.

Schenk’s situation is not unusual for Ontario car accident victims post-June 2016. Patients often wait more than a year to learn their injury designation, a period during which they are in limbo.

“The patient, the client, is in no man’s land until their injury manifests over a six-month period, if not a year, before we can give them any certainty of whether or not they can get the designation,” one lawyer told Global News. “And then when our assessors conclude that they believe they meet the test, then the insurance company notoriously has their own assessors re-evaluate the matters, which causes further delay. It takes typically a year and a half before they get the designation where before June 1, 2016, it would take a matter of weeks.”

Even when catastrophic impairment benefits are awarded, the coverage falls far short of pre-2016 levels. Prior to the Liberal Government’s changes, catastrophically injured accident victims had access to $1-million in medical and rehabilitation benefits, plus $1-million in attendant care benefits. Non-catastrophically injured victims had access to up to $86,000 in benefits; today they have access to just $65,000. Many car accident lawyers advise purchasing additional insurance to cover the gap.

“Regular car insurance is not enough to cover your needs if you’re seriously injured,” the lawyer added. “And it should be. It should be designed to provide the bare minimum of what you need.”

If you or a member of your family has been injured in an automobile accident in Ontario, contact Will Davidson LLP today to learn how our team of experienced car accident lawyers can help. We can provide guidance and representation as you pursue benefits or initiate a personal injury claim.

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Ontario Aims to Restore $2M Accident Benefits Limit

Personal injury lawyers across Ontario cried foul in 2016 when accident benefits available to catastrophically injured patients were slashed from $2-million to $1-million. The latest provincial budget, released April 11, pledges a “return to the default benefit limit of $2 million for those who are catastrophically injured in an accident.” Stakeholders have embraced the announcement, but maintain concerns regarding accident victims’ future wellbeing.

“I think the $2 million restoration would be applauded by most people who practice in personal injury law,” Federation of Ontario Law Associations chairman Mike Winward told Law Times. “Just about anybody who has had a catastrophic case since the limit went down would tell you it’s not sufficient. The $2 million impacts, in the most positive way, the people who have the most serious injuries in car accidents. It impacts them tremendously. The impact to the lawyers is, it certainly allows us to serve our clients better because we have far more funding to get the services and goods that they need.”

For individuals with serious, life-changing brain or spinal cord injuries, the $1-million accident benefits limit that has prevailed since June 2016 often proved woefully insufficient. When an injury victim requires home renovations, attendant care, prolonged medical therapy, and other services, $1-million can be exhausted quickly.

However, personal injury lawyers will have to learn more about the Progressive Conservative government’s policies before fully celebrating the new budget. For example, will the province restore the pre-2016 definition of a catastrophic injury, which was dramatically narrowed under the previous government? And will the $2-million in benefits once again be delivered in separate, $1-million parcels?

The provincial budget also announced a review of contingency fees, stating that the government will “work with the Law Society of Ontario to make contingency fee agreements more transparent for injured claimants who choose to hire a lawyer.”

Increased transparency is in every client and personal injury lawyer’s best interest; however, contingency fees are crucial to ensuring access to justice for Ontarians, and law firms will want assurance that they can continue to offer these agreements.

If you or a member of your family has been catastrophically injured in an accident, the Ontario Government’s recent budget should be met with relief. The restoration of the $2-million default benefits limit could mean the difference between a full, successful recovery and one which is stunted by insufficient funding.

For more information about how Will Davidson LLP can help, contact us today to arrange a free, no-obligation consultation. Our team of experienced personal injury lawyers will help you understand your legal options and provide guidance as you pursue compensation.

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

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.

 

New Developments in Personal Injury Cases: Fitbit Now Being Used to Prove Personal Injury Losses

New Developments in Personal Injury Cases

 Proving Damages in Personal Injury Matters Using “Fitbit”

fitbit tracker
Source: www.fitbit.com

 In Calgary, new developments in personal injury law permit personal injury lawyers to prove their client’s claims with quantifiable data.

Fitbit, a popular fitness tracker, is being used by a Calgary law firm to show a client’s diminished physical activity levels in a personal injury claim. The client was a personal trainer who suffered injuries that prevent her from being as active as she used to be. This is apparently the first time that Fitbit data will be used in a personal injury case in Canadian court, or any other case for that matter.

What does this mean for personal injury law? A more quantifiable way to prove a client’s loss due to personal injury. However, it also means that insurers may attempt to get orders for the production of this information from Fitbit’s owner, Vivametrica, in order to show that a plaintiff did not in fact suffer the personal injury to the extent they alleged.

Read more about this interesting development in personal injury law here.

If you or a loved one has suffered personal injury, whether it be from a car accident, slip and fall, or any other cause,  you have legal rights.

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Please contact our Oakville personal injury law firm for more information about bringing a claim for personal injury damages and scheduling a free consultation.

Wicked Winter Ahead: Safety Tips for Preventing Car Accidents

Winter is coming and with it, an increased risk of car accidents

Holiday season is fast approaching, and with it, winter weather and more car accidents.

Car accidents are common sights on our roadways during the winter. In an effort to reduce car accidents, we’ve put together this list of tips to keep you safe this winter.

 
tire on the snow

 

1. Check coolant levels: Coolant is responsible for making sure the engine warms up properly. Many people are unaware that coolant should be changed every two years. Reduce your risk of getting into car accidents by keeping proper levels of coolant in your vehicle.

2. Warm-up your car: Letting your car idle for a minute after starting allows fluids to move throughout the engine, ensuring that it is protected. This too can prevent car accidents.

 3. Check and change your tires: Winter snow tires should be placed on cars when the temperature drops below 7 degrees Celsius. Winter snow tires are important for preventing slippage on ice and snow, a major cause of winter car accidents. Check your tires for wear, as worn down treads increase the risk of car accidents.

4. Keep your speed down: While it’s always important to drive cautiously to prevent car accidents, in the winter it’s important to drive at an appropriate speed given the weather conditions. Speed is a leading cause of car accidents. Never use cruise control and accelerate with caution.

5. Keep ice off: Keep a window scraper and brush in your car to keep your windows clear of ice and snow. You may also want to consider keeping a small shovel in your trunk in the case your car becomes stuck in a snow bank. Snow and ice on the windshield, mirrors and windows can cause car accidents.

6. Keep your fuel tank full: In the unfortunate case you end up getting into one of the many car accidents that will happen this winter or other situation where you are stranded, having extra fuel in the tank can keep you idling and warm for hours.

7. Don’t be distracted: Texting and driving is a leading cause of car accidents anytime of the year, so put down the phone to lower your risk of car accidents. Nothing is as important as the safety of you and your passengers.

Claims for Car Accidents

Every driver in Ontario is required by law to have an automobile insurance policy in the case that they are involved in car accidents . If you have been injured in a car accident or multiple car accidents, you have legal rights to sue the at-fault driver. Contact our Oakville personal injury and car accidents law firm for more information and a free consultation about your claim. The statute of limitations to start a law suit, including car accidents lawsuits, is two years from the date of the car accident. If you miss this limitation period, you will not be able to bring a claim for injuries sustained in the car accident or car accidents. Our Contact our Oakville law firm respecting car accidents.
 

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Nursing Home Negligence

Nursing Home Negligence

There comes a time in a person’s life, where they or their family members need to decide if a long-term facility, such as a nursing home, is the right move. One needs to be ensured that they will be taken care of in a nursing home and that no negligence will occur. Families worry about their loved ones just as much, and it is important for all that their mother, father, grandparents or any other relative is safe in a nursing home and does not fall victim to nursing home negligence. Although there are many fantastic nursing homes out there, there are many cases of nursing home negligence. In today’s era of aging baby boomers, nursing homes will only get busier, and thus more negligence cases may arise.

Nursing Home NegligenceNursing home negligence can be physical or emotionally caused. For example, in 2013, CTV news reported that an 85 year old woman was being mistreated in a nursing home in Peterborough Ontario. She was seen having a feces-covered rag waved in her face and also having her diaper changed with the door wide-open. There were also suspicious circumstances surrounding a black eye and bruises. Another example of nursing home negligence includes a growing concern regarding residents being given potentially lethal anti psychotic drugs, which can be used to help aggression and acting out. There are certain types of these drugs that can cause severe adverse reactions and many residents, who are not even prescribed these drugs, have been victim to this adverse reaction as they have been ingesting the drug. Other types of nursing home negligence include dropping residents, yelling at residents, neglecting residents and leaving residents unattended for hours upon hours, which can create bedsores. According to the Long-Term Care Homes Act, Nursing homes have a zero-tolerance policy for any time of negligence or abuse. Therefore,  if negligence occurs, those people injured, should be compensated.

Nursing homes are expected to provide a safe environment for those living there, and many are! A nursing home should be a clean, happy and pleasant place where people can live without worry of negligence. However, if you are a resident of a nursing home, or you are a loved one of a nursing home resident, that has been victim to nursing home negligence, do not hesitate to contact our personal injury law firm to find out what your legal rights are.

The Dreaded Pothole Situation

Car Accidents and Potholes

They seem to be everywhere. They cause bumps, delays and even car accidents. What are they? They are the dreaded potholes.

After the winter we have just had, it seems that the pothole situation is at an all-time high. They are causing damage to vehicles and causing car accidents if someone loses control when hitting a pothole.

If your car has been damaged in an accident caused by a pothole, or simply by the pothole itself, what are your avenues to seek compensation for such damage from the accident? Can you hold the municipality responsible for any damage that was caused to your vehicle due to a pothole? It is important to understand the standard of care for a municipality as it relates to potholes and any damage to vehicles or accidents potholes may cause.

Justice Leach of the Ontario Superior Court of Justice spoke to this issue in the recent decision of McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. This case was about a young woman who was driving her vehicle on a country gravel road when she lost control of her vehicle and had a car accident due to potholes on the road. She sustained serious and life-threatening injuries as a result of the car accident. The young woman began an action against the rural municipality.

Justice Leach determined that the action should be dismissed. This means that the municipality would not be held responsible for the accident caused by the potholes. For the municipality to be responsible, certain things must transpire. They are the following:

Potholes

  1. Official Complaints to the Municipality should be made.

This does not mean complaining around your city or town, but actually submitting formal complaints to the municipality about the potholes.

  1. The condition of the road must be in a state of disrepair.

A road that is in a reasonable condition, does not count! For instance, a gravel road is expected to have bumps and holes and thus it is not in a state of disrepair.

Additionally, these two points have to coincide. What this means is, even if the road is in disrepair, the municipality can rely on the defence that it had no knowledge of the defect and thus it is not held responsible for any accident.  The municipality has the responsibility to take reasonable steps to prevent the defect from arising by having regular systems of grading and it must meet the minimum standards of inspection and pothole repair. If it does these things, it may not be held responsible for any accident and/or damage that may occur as a result of potholes.

Potholes are going to continue to be the bane of many peoples’ existence. They are something that we all have to live with, however they should be fixed as soon as reasonably possible by the municipality. You have the responsibility to avoid dangerous accident-causing situations, if possible and you must make formal and detailed complaints about potholes, so that if any damage occurs because that pothole has not been reasonably fixed, you will have avenues of recourse!

If you have sustained personal injury from an accident or car accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Watch out for that Tree: Personal Injury and Property Damage

Falling trees causing personal injury and property damage

Fallen Tree on roadIt has been an icy winter to say the least. Personal injury and property damage have been sustained due to icy trees falling on cars, houses and people. However, trees do not only fall in the winter and falling trees can cause personal injury and property damage at any point during the year. What responsibility do you, as a property owner, have if a tree has fallen onto a neighbor or a neighbor’s property causing personal or property damage? On the other hand, what avenues of recourse do you have as a personally injured person or a person who has sustained property damage, against your neighbor?

If your neighbor’s tree falls on your house, or your car, the following should be taken into account: Many times, a tree falling on your property will be covered by insurance. There are times, when this is not the case and therefore neighbors begin law suits for personal injury and property damage against other neighbors. A 1996 Ontario Superior Court Decision, ruled that a neighbor, whose tree fell onto Mr. and Mrs. Parent’s property causing damage to their home and snowmobile, was not responsible for the damage. The judge reasoned that growing a tree is a natural use of the land and the owner of that land is under no obligation to his or her neighbor with respect to what is growing on his or her land. The neighbor has a responsibility to protect him or herself from personal injury or property damage. However, if an owner knows of, or can plainly see, warning signs that the tree is, for instance, decaying, they must take steps to ensure the tree is not hazardous to others.

There is also a British Columbia Court of Appeal case that involves a tree falling onto a woman’s property after a wind storm. The owners of the tree were found responsible for the damage, because the neighbor had warned them about the condition of the tree, and despite that, they did nothing to avoid the hazard. Therefore, to avoid property damage, and at times personal injury, it is important for everyone involved to be responsible property owners.

If you sustain personal injury due to a tree falling on you and it is a fluke accident, do you have any means of compensation? In some cases, personal injury from a tree falling can even result in death, which was the case of a Port Colborne woman. She was driving by in her car this winter when a tree, due to natural phenomenon, fell upon her car, crushing it and causing her fatal injuries. Again, insurance routes are available to most. As well, if the tree was not owned by a civilian, the City (or Town) has responsibility to ensure the safety of their property-this is true of trees, and even pot holes. If these avenues are unable to be used, or if they have been exhausted, legal action may need to be pursued.

Know your legal options and if you have experienced personal injury, do no hesitate to contact our personal injury law firm to find out about your legal rights.

 

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