Case Law

Tuesday, May 7th, 2013 - cflaherty

The recent case of Scarlett v. Belair Insurance Decision Date: 2013-03-26, Adjudicator: John Wilson, Regulation: 34/10, Decision: Arbitration, Preliminary Issue, FSCO 3965 is the first reported Minor Injury Guideline (MIG) case.

The gist of the decisions stand for the proposition that injured insureds should not be required to take extraordinary steps, or be forced to make leaps and bounds to prove that treatment they require for recovery does not fall within the MIG. In fact it is the opposite that is true. Once insureds, through their care providors, establish with convincing evidence that they will not meet maximum recovery within the MIG limit, the insurer must provide payment for the treatement unless they can prove that the insured is subject to the MIG. It can be said that the applicaiton of the MIG should be considered the exceptiopn rather than the rule.

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Monday, April 22nd, 2013 - cflaherty

The recent case of Scarlett v. Belair, FSCO A12-00107, is important more for what it demonstrates in terms of the state of automobile first party insurance benefits in Ontario at the present time, than as an analysis of the application of the Minor Injury Guideline in the legal context.

They key factors that support this contention are:

1. The amount of time it took Mr. Scarlett to obtain a remedy;
2. The total cost of the process; and
3. The approach of the insurer in adjusting the file.

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Thursday, September 13th, 2012 - cflaherty

Social Justice: Superintendent cloaks policy issue as science on catastrophic impairment

Monday, September 10, 2012 | Written by Alan Shanoff | Law Times

http://www.lawtimesnews.com/201209109304/Commentary/Superintendent-cloaks-policy-issue-as-science-on-catastrophic-impairment

The superintendent’s report on the definition of catastrophic impairment in the statutory accident benefits schedule may seem like a dry topic, but for those suffering injuries in motor vehicle accidents, the difference between having a catastrophic impairment designation and not getting one can be a life-altering distinction.

Of all of the proposals in the superintendent’s report, none is more controversial than the one rejecting the combination of physical and psychiatric impairments to determine catastrophic impairment. The origin of this proposal lies with the final report of the catastrophic impairment expert panel from April 2011.

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Monday, February 13th, 2012 - cflaherty

The Ontario Court of Appeal has upheld the judgement in Herbert v. The City of Brantford.

The Ontario Court of Appeal decision can be found at http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0098.pdf

Mr. Herbert was injured when he lost control of his bicylce on a pathway owned by the City of Brantford. The pathway was poorly maintained and constructed and the Trial Judge found the City 40% liable for Mr. Herbert’s catastrophic injuries and for the mulit-million dollars in damages that flowed therefrom due to their disregard for Mr. Herbert’s safety. The City appealed.

The trial decision can be found at http://www.hooperlaw.ca/files/Judgment-Muir_v_City_of_Brantford.pdf.

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Monday, January 9th, 2012 - cflaherty

Accident victim’s rights to expansive first party or “no-fault” benefits in catastrophic cases has been boosted by the recent decision in Kusnierz v. The Economical Mutual Insurance Company, 2010 ONSC 5749 (CanLII).  The decision overturns the trial decision. 

At trial the judge determined that psychological impairments could not be considered in conjunction with physcal impairments to determine catastrophic impairment.  The Court of Appeal has ruled that both areas of injury can be considered and combined to determine whole body impairments.  This is consitent with the findings in the case of Desbiens where the trial judge followed an approach now confirmed by the Court of Appeal.

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Thursday, December 8th, 2011 - cflaherty

In an action against the Hamilton Police in negligence for failing to arrest Hamilton’s “Most Wanted Criminal”  Corey Rogers, the Ontario Superior Court of Justice has dismissed a motion by the police which, if successful, would have stopped the lawsuit.  By virtue of the Ruling the plaintiffs are permitted to proceed.  The case is under appeal.  The plaintiffs are represented by Charles Flaherty and Tara Sciara of Flaherty Sloan Hatfield.

See:  http://www.canlii.org/en/on/onsc/doc/2011/2011onsc5312/2011onsc5312.html

For more information on the details of the crime see: http://www.oacas.org/news/09/april/09roger.pdf

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Tuesday, November 15th, 2011 - cflaherty

An insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim.  It is irrelevant whether the allegations in the pleadings can be proven in evidence.  What is required is the mere possibility that a claim falls within the insurance policy.  Where it is clear that the claim falls outside the policy, either because it does not come within the initial grant of coverage or is excluded by an exclusion clause, there will be no duty to defend.  In examining the pleadings to determine whether the claims fall within the scope of coverage, what is determinative is the true nature or substance of the claim, not the labels selected by the plaintiff.

Monday, November 7th, 2011 - cflaherty

The Ontario Court of Appeal has upheld a claim for damages of mental distress caused by the failure of Echelon Insurance to properly adjust a claim arising from a motor vehicle collision. 

“People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity.  An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made. As an insured person entitled to call on the policy, Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.

Thursday, August 12th, 2010 - cflaherty

THRESHOLD UPDATE: NISSAN AND ITS AFTERMATH

[Posted as relevant case law by the personal injury lawyers of Flaherty Slaon Hatfield]

The most recent amendments to the Insurance Act[1] otherwise known as Bill 198 came into effect on October 1, 2003. The amendments came by way of Ontario Regulation 381/03 which amended O.Reg. 461/96 and added definitions of the terms making up the general threshold identified in s.267.5(5) of the Insurance Act. The Regulation now defines the terms “serious”, “important” and “permanent”.  The Regulation also sets out the evidence required to meet the threshold.  For ease of reference, the defining regulation is attached at Schedule “A” to this paper.  Prior to Bill 198, it was widely accepted that the Court of Appeal’s decision in Meyer v. Bright; Lento v. Castaldo; Dagliesh v. Green[2] was the starting point for any threshold analysis.

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