Ontario consulting on municipalities’ worries on ‘liability chill’

TORONTO — Ontario is taking a look at municipalities’ concerns about a legal rule that they say causes “liability chill” and leads some to ban activities such as street hockey and tobogganing.

In a speech Monday to the Rural Ontario Municipal Association, Premier Doug Ford said the province will launch consultations about “the joint and several liability” rule, which says that if one party is found to have only some responsibility, they would still be liable for total damages if other liable parties were unable to pay.

“We have heard your concerns about increasing insurance costs and the impact that these costs can have on property taxes, on municipal taxpayers, and on the average Ontario resident,” Ford said.

“We will look at the evidence and develop a solution that makes sense.”

Rural municipalities have long been calling for reforms, saying they fear the legal convention could mean they face steep costs from lawsuits for even minor injuries on public property, being forced to pay 100 per cent of the cost in an accident in which they were only found to bear minimal responsibility.

If a drunk driver has no insurance, lawyers could go after the municipality, arguing that the road surface was partially responsible for a collision, the Association of Municipalities of Ontario says.

“Victims of any type of accident obviously have to be fairly compensated, we get all that,” said Gary McNamara, warden of Essex County and a past AMO president. “They should be treated fairly and with respect. We get that, but it shouldn’t be solely on the backs of municipal taxpayers. We can’t be held accountable 100 per cent. It just doesn’t make sense.”

It is costing municipalities across the province more than $300 million to insure their communities, McNamara said. In his community of Essex, insurance costs increased 41 per cent in one year as a result of one claim, he said.

Some communities have even taken to banning street hockey and tobogganing, and it’s unfortunate, said McNamara.

“When an eight-year-old child has got a toboggan in tow and he goes up to that hill and then somebody, a bylaw enforcement officer, says, ‘Sorry but you can’t toboggan down this hill’ — why? Because there’s a massive lawsuit in Hamilton that’s driven other municipalities to say, ‘Can we take the risk?” McNamara said.

Tobogganing was banned for years in Hamilton, where a man won a court settlement of nearly $1 million after his toboggan hit a snow-covered drainpipe and he injured his spine.

But Allen Wynperle, the president-elect of the Ontario Trial Lawyers Association, said there were no other defendants in the Hamilton case, so it was not a matter of joint and several liability. Municipalities appear to be concerned about liability overall, and while certainly a challenge, joint and several liability is a specific issue, he said.

“Very few cases have this problem where the municipalities end up paying more than their liability in the case, but they’re usually very, very serious cases,” Wynperle said.

“In a joint and several liability case, remember, the municipality has been found at fault for conduct or an omission and so a person already has an assessment of damages in that situation and the municipality has been found at least partly at fault.”

The trial lawyers hope Ontario holds compensating accident victims as the top priority, Wynperle said.



352 impaired driving offences reported during December Traffic Safety Spotlight

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ICBC’s Secret “Meat Chart” for Pain and Suffering and the Actual Law

Source: Erik Magraken BC Injury and ICBC Claims Blog

As reported by the Vancouver Sun, ICBC’s top brass have handed out directives to all adjusters to withdraw settlement offers on existing claims and re-assess claims not by the law but by an internal meat chart.

Details of this secret memo are slowly coming to light and it appears ICBC has created 5 different categories for non-pecuniary damage assessment.  The first three deal with soft tissue injuries, the fourth with more serious injuries and the last with what ICBC deems to be catastrophic injuries.

I have not yet had the privilege of seeing ICBC’s full memo to their adjusters (who have been instructed to keep the details secret) but sources tell me that ICBC will be valuing pain and suffering by completely artificial criteria which run contrary to well established law.  If and when full details of ICBC’s new policy are shared with me I will gladly publish them.

In the meantime, if you are being told that your claim is worth an artificially small amount based on ICBC’s internal assessment please know your rights.  It is well established that non-pecuniary damages are assessed individually on a case by case basis using the following non-exhaustive list of factors.  If ICBC is not prepared to use these you can be confident BC courts will –

a)     age of the plaintiff;

b)     nature of the injury;

c)     severity and duration of pain;

d)     disability;

e)     emotional suffering; and

f)       loss or impairment of life;

g)     impairment of family, marital and social relationships;

h)     impairment of physical and mental abilities;

i)       loss of lifestyle; and

j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

Automobile Insurance Premiums, Highest in Canada

BY My Cowichan Valley Now

The first Duncan-Cowichan Chamber of Commerce luncheon of 2019 provided a bleak look into the future of auto insurance premiums in our province.

The Vice President of the Insurance Bureau of Canada’s Pacific Division, Aaron Sutherland made a presentation to those in attendance and highlighted that because ICBC has a monopoly, drivers aren’t going to get any breaks on their premiums any time soon.

“Government is bringing in many important solutions, things like a minor injury cap, things that are going to start driving down the cost curve at ICBC, but unfortunately for drivers,  it isn’t going to do anything for their pocketbook,” said Sutherland. “The price they (drivers) are paying is expected to keep going up, we’ve seen this again with the latest ICBC rate increase. It’s clear today, we need to start looking outside of ICBC for these solutions.”

We live in the most expensive province in the country with regard to auto insurance premiums and those costs are going to keep trending in the wrong direction.

Sutherland said creating a competitive marketplace is key to eventually start seeing some savings.

“We need to look at best practices from across the country and across North America. One of those best practices is that perhaps we need to start looking outside of ICBC for solutions, bringing a competitive marketplace to BC, giving drivers the choice they deserve and the opportunity to shop around for their insurance.”

ICBC doesn’t share data with other insurance companies in what Sutherland calls ‘a data-driven industry.’

The challenge is to create a competitive market, so ICBC has to share its data.


‘You killed the car’: Families complain of dead vehicles, thousands in repairs after station sold bad gas

Fuelling up left a woman stranded with her child and a man stuck holding an $18K bill

Rachel Ward · CBC News

Loraine Bon and her husband thought they were helping their son when they fuelled up the old truck he takes camping.

Instead, the gas they pumped in Bearspaw, northwest of Calgary, put an end to the 4Runner. The fuel was contaminated, and the truck hasn’t started since.

Now six months later, Bon hasn’t got the Centex Bearspaw gas station to pay for the repairs, roughly $3,000 worth.

The gas station’s insurance is disputing whether the Centex is at fault for the soiled fuel, which damaged dozens of Alberta vehicles.

“We don’t care who’s at fault. You’re at fault,” Bon said of Centex. “You sold us the gas. You killed the car.”

Whose fault is it?

The insurance companies for the gas station, the tank installer and the tank manufacturer are arguing over who caused saline to leak into the station’s fuel.

An investigation after the incident showed the inner lining of the fuel tank split, allowing the saline barrier to leach into the fuel — something the company told customers about in a letter last summer.

That saline solution caused vehicles to seize up, some almost immediately. Some had mechanical issues. Others had to have their entire engine rebuilt, like James Niblock of Cochrane, Alta., who got a bill for an $18,000 repair.

Niblock was one of the first customers that morning in July, as he headed into Calgary early with his toddler. He suspects he got a higher concentration of the saline solution than others who gassed up later in the day.

Out of pocket

Niblock’s insurance covered the large bill, but he’s still owed for other expenses — the tow truck, car rental and insurance deductible — which total roughly $1,000. He doubts he’ll see that money again.

“So between the three of them at the moment, they haven’t figured out who is liable,” Niblock said. “While this kind of drags on and no one’s really communicating with us, obviously a lot of people have got either unusable engines or have basically had to pay out of their own pocket for repairs.”

He found out this week that his van needs more work, but from what he’s heard, his case sounds like a good one.

Niblock provided an email to CBC News from the independent adjuster handling the files for Federated Insurance, which insures Centex Petroleum. In it, the adjuster said the insurer was “not issuing any payment” until fault was determined.

“We will let you know when that occurs,” the adjuster said in a Dec. 5 email.

After the leak, Centex closed down and called the tank manufacturer, ZCL Composites, to investigate. The manufacturer repaired the split seam in the fibreglass tank and certified the tank as ready to receive fuel. The gas station reopened and sent a letter to drivers.

“Centex has assured all customers that were affected by this event that we will reimburse them for their costs,” said the letter from managing partner Shafiq Bhura, which Niblock gave to CBC.

Reimbursed ‘almost everyone’

In a brief phone conversation with CBC, Bhura said the insurance company had asked him not to comment “for legal reasons.”

“We’ve reimbursed almost everyone, and those that were complicated or were not straightforward, our insurance company is looking after them,” he said. “So we haven’t had anyone come directly to us with anything unclaimed for the past at least a month.”

He said he understood Centex Petroleum’s insurance company, Federated Insurance, was trying to get everything paid out. Bhura declined to comment further.

Requests for comment to Federated Insurance and ZCL Composites went unanswered. A lawyer handling the file for the insurance firm said he did not have permission to talk. The adjuster declined to comment.

Drivers are asking Centex Petroleum for an easier route to get compensation to replace or repair vehicles damaged by contaminated fuel. (Grant Hindsley/Associated Press)

All of this has been stressful for Jamie Lowe, who has two kids. Shortly after she fuelled up at Centex Bearspaw, her 2015 Dodge Ram broke down late at night while she had her five-year-old in the back seat.

“It was a pretty terrible situation. There was no apology, no accountability. They said that you need to talk to our insurance adjuster,” Lowe said.

Her vehicle was fixed and Centex paid for the repairs.

Seeking apology, easier compensation route

Lately, Lowe’s vehicle has started randomly shaking and rumbling. She said she’s worried the cost for further repairs will be delayed until the at-fault party is determined.

“Well, that could take years, and so many people were out thousands of dollars, which really isn’t affordable. To me, they didn’t go about it the right way,” she said. “I’ll never fill up at a Centex gas station again because of how the situation was handled.”

Trial lawyers say ICBC treating those injured in crashes unfairly due to settlement changes

By  | Global News

ICBC has recently changed the way it handles injury settlements and B.C. trial lawyers are worried it will hurt victims and increase costs for rate payers.

According to the B.C. Trial Lawyers, the public insurer has started revoking previous settlement offers in the last week and is now considering payments based on new criteria.

Lawyers have been told ICBC is now going to judge settlements based on a “meat chart,” with no discretion for the adjuster.

“They will apply one, two or three criteria and put a case in a certain level,” B.C. Trial Lawyers president Ron Nairne said.

“And now ICBC is coming in at this late stage and changing the rules of the game. People will say if the rules are not fair, they are going to have to proceed to trial.”

ICBC says the changes are necessary because of the quickly escalating costs of injury claims and the associated legal expenses. The public insurer says the rising costs of claims is by far the single biggest pressure on ICBC’s finances, having gone up by 43 per cent in just five years, with a projected total of $3.67 billion in 2018.

“In particular, these costs are being driven by litigated injury claims,” ICBC spokesperson Adam Grossman said. “Since March 2017, the dollar value of settlements demanded by plaintiff lawyers for litigated files has increased by 30 per cent, while the average cost of closed litigated injury claims has risen by 20 per cent from $101,920 in 2017 to $121,826 in our current fiscal year.”

“We have constantly been looking for ways to address rising injury claims costs and the pressure they put on insurance rates.

“It’s clear we need to continue to find fair and reasonable ways to get the cost of the average injury claim down to more of a historical, inflationary trend, rather than the sharp increases we’ve seen over the past year.”

But lawyers say this last-minute change is not fair and could have a negative impact on clients. In some cases, lawyers say the new settlement offers are much lower than is acceptable. If the client decides to go to trial, it could delay the expected payout.

Trials themselves are also expensive. In most cases, the overall payout is higher in a trial because of the legal fees.

“This is going to have a huge impact on claimants,” Nairne said.

“People come to ICBC expecting to be treated fairly, that they are not going to be getting a windfall, but will be fairly treated.”

ICBC says it has had success closing more injury files and is seeing fewer cases go to trial each year. But one the concerns from the insurer is that it is seeing fewer offers being accepted and settlement costs are being driven even higher.

“We are doing what any responsible insurer would do when claims costs skyrocket beyond historical trend lines,” Grossman said.

“Our only other option is to increase our insurance rates by levels British Columbians cannot afford, which is not a viable solution.”

The changes are part of an ongoing battle between ICBC and lawyers. The lawyers are concerned that the changes being made at the public insurer are not in the best interest of their clients. The public insurer is concerned that lawyers are increasing their costs, including an increase in commissioning reports, that is adding to the loses at the insurer.

ICBC lost $1.3 billion last year and is forecast to lose more than $800 million this year. The insurer has announced major changes coming on April 1, 2019 that will create a cap of $5,500 on payouts for pain and suffering for minor injuries.

The insurer explains that one of the reasons for the need to change are the mounting legal costs. ICBC says plaintiff disbursement costs have increased by 21 per cent this fiscal year over last. But Nairne is quick to defend the work that he is doing and rejects the suggestion lawyers are artificially inflating what they are looking for in injury settlements.

“The only thing I can do is look at the facts of the case and make a proposal based on those facts,” Nairne said.

“It is all driven on what is fair, based on what the courts have decided previously.”

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