ICBC Effort To Remove Case From Supreme Court Fails

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages.  After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction.  In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

[12]         The plaintiff filed an affidavit sworn December 13, 2019. In that affidavit, he deposes that, as a result of the accident, he continues to experience symptoms in his back, shoulders and right hip, and has difficulty sleeping. He complains of pain in his lower back and shoulders when not active, and of pain lasting two to three days if he engages in activities. He further deposed to having difficulty falling asleep and of waking in the night because of lower back pain. He further deposed to attending massage therapy on a more or less weekly basis and that he intends to seek chiropractic treatments.

[13]         In approaching this mater, I am particularly mindful of the caution expressed by Justice McEwan in Kooner v. Singh, 2011 BCSC 1384, at paras. 3 and 6. There, he stated it is only in the clearest of cases that a matter should be transferred to the Provincial Court. It is only where there is no possibility of a damage award exceeding the Small Claims’ limit that a matter should be transferred to the Provincial Court:

[3]        I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[6]        I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[14]         The plaintiff is relatively young. He apparently had no medical issues prior to the accident. He apparently suffered soft tissue injuries in the accident to the neck, back and shoulders, and continues to suffer from what may be chronic pain which may encumber him for the rest of his life. He also has ongoing sleep difficulties and his injuries have affected his enjoyment of recreational activities. The injuries suffered by the plaintiff and the effects of those injuries are somewhat similar to what is described in Poulin and Carson, where the plaintiffs were awarded general damages of considerably in excess of $35,000.

[15]         In my view, on the basis of the evidence before me and the authorities, there is a possibility that the plaintiff may recover damages at trial in excess of $35,000. Accordingly, this matter should not be transferred to the Provincial Court, and the application is dismissed.

Brad Riddell Appointed Vice President, CyberSecurITy at FlexITy, Canada’s leading Systems Integrator

TORONTO, Jan. 20, 2020 /CNW/ – Brad Riddell has been appointed Vice President, CyberSecurITy at FlexITy, Canada’sleading Systems Integrator and Digital Transformation Solutions, by CEO Peter Stavropoulos.

As Vice President of CyberSecurITy Solutions, Brad Riddell is responsible for rapid expansion and growth while managing FlexITy’s emerging CyberSecurITy business. He brings more than 20 plus years of IT risk management, systems integration, and managed services, sales and delivery experience to the FlexITy organization.

“Brad is astute at understanding the cybersecurity challenges faced by Canadian companies and developing pragmatic solutions to effectively manage cybersecurity risk. He has a proven track record of building high performing teams that attract top cybersecurity talent that our clients require. As a longstanding trusted advisor to clients across many industries, Brad quickly earns their trust and develops long-lasting relationships,” said Peter Stavropoulos.

“FlexITy is a proven and trusted Systems Integrator focused on attracting and retaining top IT engineering talent and delivering robust, high performance and reliable solutions to their clients. We are applying this winning approach to cybersecurity to create Canada’s leading end-to-end cybersecurity services business. FlexITy will build tailored solutions targeted at solving the most daunting challenges such as ransomware, securing IoT devices, ensuring the safety of critical infrastructure, enabling secure electronic commerce, and ensuring the privacy of patient medical records,” said Brad Riddell.

Canadian companies now have a single trusted provider to design, deploy, secure and manage critical IT networks, systems and applications. By taking a truly integrated approach to network and system design, integration and security, FlexITy offers a unique capability unmatched in the Canadian market.

Along with the depth of FlexITy’s Infrastructure team of architects, pre-sales engineers, highly skilled and cross-certified integrators and project managers, all with the highest of government security clearances, we work with our best-of-breed strategic partners to develop and deliver broad and deep sets of Managed and Hybrid CyberSecurITy Solutions that make an immediate impact with clients across Canada.

The range of FlexITy clients serviced over the past two decades span across some of Canada’s leading financial, government, public sector, legal, media, telecommunications, insurance and health care institutions.

About FlexITy

FlexITy is an award-winning integrator of smart technology, CyberSecurITy and service solutions, built on powerful and digitally advanced secure platforms, and delivered with decades of expertise, is headquartered in Richmond Hill, with offices in Toronto and Winnipeg.

FlexSecurITy is a next-generation cybersecurity offering enabling organizations to protect the way people work today from advanced threats and compliance risks. FlexSecurITy protects organizations from the advanced attacks targeting them and protects the critical information people create while arming organizations with the right intelligence and tools to respond quickly when things go wrong.

FlexHealth-Powered by FlexITy is a suite of patient-centric solutions that integrate interactive mobile applications, secure health IT and data, and optimize healthcare management. FlexHealth engages patients and families, empowers clinicians and delivers outcomes that matter.

FlexTEL, a leading and secure managed business provides Unified Collaboration Cloud Services for Enterprises seeking a holistic enterprise grade Collaboration Platform.


www.flexsecurity.com, www.flexity.com, www.flexhealth.ca

Appeal court to hear multi-million-dollar insurance case this week

The excerpted article was written by ALEX MACPHERSON, SASKATOON StarPhoenix

Saskatchewan’s highest court will decide whether investors can put unlimited funds into insurance policies with a guaranteed rate of return.

Saskatchewan’s highest court is set to spend the next three days hearing a case that could have lasting implications for Canada’s insurance industry, hundreds of policyholders and the provincial government.

The case, which will be heard at the Saskatchewan Court of Appeal in Regina Wednesday, will test whether investors can put any amount of money into certain life insurance policies with a guaranteed rate of return, as well as the effects of the province’s decision to intervene in a live court case.

The plaintiffs — investors who own the 20-plus-year-old policies — want the Court of Appeal for Saskatchewan to overturn a lower court’s ruling that says they cannot use the policies for “unlimited stand-alone investment opportunities.”

While the investors have argued the policies do not have a cap on premiums and can be used for exactly that, three of the country’s largest insurers contend the polices were never intended to be used that way and, if they are, it could bankrupt them.

The insurance companies, meanwhile, are asking the court to reverse the same justice’s finding that new provincial regulations, introduced during the original trial to close the loophole used by the investors, cannot be applied retroactively.

The provincial government’s decision to make the changes by way of a three-page order that mentions neither the trial nor the Manufacturers Life Insurance Co.’s (Manulife) lobbying efforts has been criticized as not transparent and potentially unfair.

Saskatchewan Attorney General Don Morgan later acknowledged the province could have been more transparent, but emphasized the decision to protect the companies and, by extension, the people they insure was the correct one.

The case is set to be heard by a three-judge panel consisting of justices Brian Barrington-Foote, Neal Caldwell and Jerome Tholl.

The appeal is scheduled to begin three weeks after the court refused the Canadian Life and Health Insurance Association’s (CLHIA) application for intervener status — which, if granted, would have allowed it to make arguments.

The insurance companies involved in the case — Manulife, BMO Life Assurance Co. and Industrial Alliance Insurance and Financial Services Inc., who are collectively known as the respondents — are all CLHIA members.

In a Dec. 23 chambers decision, the same three-judge panel acknowledged the association has a “clear interest” in the proceedings, but declined to grant it intervener status in a private matter involving experienced litigants.

“We are not persuaded by the materials or argument in this application that CLHIA would add anything meaningful to the respondents’ arguments, as opposed to simply adding to the chorus,” the justices wrote in the decision.

CLHIA spokesman Kevin Dorse declined to comment on the grounds the case is before the courts.

Given how much is at stake in the case, it is expected the Saskatchewan Court of Appeal’s decision in the matter will result in a request for leave to appeal to the Supreme Court of Canada — the country’s highest judicial authority.

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Surprising Special Award Against Insurer

Article by Alon Barda

A recent decision of the Licence Appeal Tribunal (“LAT”) indicates that an insurer cannot simply rely on the opinion of an assessor when determining a claimant’s needs.

The adjudicator said that the insurer should have considered all relevant medical evidence and should have followed up with the assessors for clarification of the claimant’s needs. The failure to do so resulted in a special award against the insurer.

Background

In Malitskiy v. Unica Insurance, 18-010164/AABS, the claimant sought entitlement to attendant care in the amount of $6,000 per month less the partially approved amount of $1,199.10. He also sought entitlement to a rehabilitation benefit of $344,864 for home modifications and entitlement to some cost of examinations. The claimant also sought a special award for unreasonably withheld or delayed payments.

The claim involves an ice fishing accident that occurred on March 16, 2014. The vehicle in which the claimant was travelling hit a pressure crack on the lake and slipped over, ejecting the passengers in the process.

The impact caused the claimant to suffer a brain injury and multiple fractures, including to his cervical spine and wrist. It was later discovered that the accident caused nerve damage in the claimant’s shoulder as well as cognitive and emotional impairments.

Unica deemed the claimant to be catastrophically impaired as a result of the accident.

The adjudicator was persuaded on a balance of probabilities that: the claimant has pain in his shoulder and cannot lift heavy items; he experiences difficulty while using the stairs in his home; he experiences balance issues; he needs assistance with dressing and supervision while showering; he has cognitive and memory issues; and he has emotional issues and needs cuing to eat and engage in hygiene activities.

Attendant Care

The adjudicator considered the Form 1 completed by the claimant’s OT assessor recommending $6,020.63 in attendant care per month and the insurer’s assessor recommending $1,199.10 per month in attendant care assistance.

The significant difference between the Form 1’s surrounded assistance to respond to an emergency, coordination of attendant care assistance, and supervision/assistance regarding certain daily tasks. In particular, the insurer was of the view that the claimant did not require overnight assistance to ensure safety and security in the bedroom.

When the insurer’s assessor conducted the assessment, she did not consider whether the claimant needed cuing, emotional support and supervision at night, and she was unable to explain conclusively on cross-examination why she did not do so.

The adjudicator ultimately found that, based on the claimant’s various functional limitations, the additional time recommended by the claimant’s assessor represented a reasonable assessment of the claimant’s attendant care needs and that the claimant is entitled to $6,000 per month from October 13, 2017 to date and ongoing less amounts paid by the insurer.

Home Modifications

Unica agreed that some of the home modification recommendations were reasonable and necessary but the significant items of contention included the installation of a home elevator (the insurer proposed an in-home stair lift) and a therapy room for space to engage in exercises and use the equipment while home.

Based on the claimant’s functional needs, the adjudicator found on a balance of probabilities that the claimant required the disputed renovation items and that the home modifications totaling $344,864 are reasonable and necessary.

Special Award

The most notable aspect of this case is the finding regarding the special award. Under section 10 of Ontario Regulation 664, if the LAT finds that an insurer has unreasonably withheld or delayed payments, the LAT, in addition to awarding the benefits and interest to which an insured person is entitled under the SABS, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts at 2 per cent per month, compounded monthly.

While the adjudicator found that Unica paid for most of the disputed benefits in part and that it based its decisions on the assessments it completed, the adjudicator still found that there was a failure on the part of the insurer to “ask the relevant questions” about the claimant’s functional needs.

For example, the adjudicator states that, after receiving the Form 1 and the treatment plan proposing the home modifications, Unica “should have asked its assessors to investigate whether [the claimant] needed cuing, emotional support, and nighttime supervision”. The assessor testified at the hearing that she did not consider those issues.

Furthermore, the adjudicator found that it was unreasonable of Unica to focus on the reports of their assessors on the core issues in dispute when its assessors had designated the claimant to be catastrophically impaired on various grounds and the medical and treating evidence confirmed that the claimant “has needs for significant assistance that included not just helping him physically but also being attentive to his psycho-emotional needs.”

The adjudicator found that, when read together, the reports of the insurer’s assessors on the issue of attendant care and home modifications did not correspond with the information in the claimant’s medical and treatment file and that their opinions as to the claimant’s functional needs were not supported elsewhere in the evidence.

While Unica had the information available to make further relevant inquiries into the functional needs of the claimant, the adjudicator found that it did not do so despite the fact that this should have been readily apparent based on the evidence already in its possession.

As such, the adjudicator ultimately held that the position taken by Unica with respect to the attendant care benefit and home modifications amounts to an “unreasonable withholding or denial, when the medical evidence, including evidence from Unica’s own assessors, supported [the claimant’s] need for these claimed benefits.”

Accordingly, the adjudicator found the partial denials of these benefits to be “imprudent, inflexible, and immoderate” and ordered a special award.  Unica is required to pay 25% of the portions of attendant care and home modifications benefit that were denied. This represents half of the limit outlined in the Regulation. Unica is also required to pay interest at 2 per cent per month, compounded monthly.

Takeaway

While the adjudicator was entitled to reject the opinions of the insurer’s assessors, it is highly questionable as to whether Unica “unreasonably withheld or delayed payments” to warrant a special award.

Insurers are not medical experts. An insurer should be able to rely on the expertise of assessors who conduct benefit-specific assessments, including occupational therapists who complete a Form 1, which is a detailed document. There was no evidence that the insurer withheld relevant medical documentation from the assessors.

However, based on the decision of the adjudicator, it seems that insurers should confirm that assessors are asked all the appropriate questions that may arise from the medical evidence available and to ensure that the response to the benefit at issue includes consideration of the file in its entirety.

An attendant care assessor must consider all the attendant care assistance recommended for a claimant and, if providing a response that does not conform to the medical evidence to date (or earlier insurer examinations), then the assessor should provide detailed reasons explaining why that is the case, particularly on more serious cases involving catastrophically injured claimants.

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers’ liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

Distracted driving is a trend on the rise

Canada Safety Council

It’s a scene that is far too familiar on roads across Canada: a cell phone sounds an alert, the driver reaches for the phone, and in the short time it takes to read the screen, a collision has occurred.

Distracted driving is a trend on the rise, a dangerous and life-threatening behaviour that must be stopped. To mark this year’s National Safe Driving Week, the Canada Safety Council and the Insurance Brokers Association of Canada (IBAC) share a crucial message: distraction behind the wheel is entirely preventable. Just don’t do it.

The Statistics

Distracted driving statistics are understated because distraction isn’t always easy to prove. In fatal accidents where distraction was a possible factor, there may not be evidence of phone usage or, sadly, a living witness to tell the story. This has resulted in a significant underreporting of the issue – still, the data currently available reveals staggering numbers.

According to Transport Canada, distraction was a contributing factor in 21 per cent of fatal collisions and 27 per cent of collisions resulting in serious injury in 2016. Comparatively, those numbers were reported at 16 and 22 per cent, respectively, in 2006.

The Canadian Council of Motor Transportation Administrators (CCMTA) provides further context to these numbers: 1.7 per cent of fatal collisions and 1.9 per cent of collisions resulting in serious injury involved electronic communication devices between 2010–14. While more recent statistics are not available, the prevalence of mobile devices in today’s society makes it a reasonable assumption that these numbers, too, are on the rise.

And if you’re fortunate enough to avoid injury or fatality, you’ll still be subject to fines and potentially demerit points depending on your province. Refer to this chart by the Canadian Automobile Association for a detailed breakdown.

To further compound the financial costs, your auto insurance premiums could sharply increase if you’re found to have been operating a vehicle while distracted.

“Insurance is all about risk, and distracted driving is an extremely risky behavior,” said Peter Braid, Chief Executive Officer of IBAC. “That’s why insurance brokers are partnering with the Canada Safety Council to raise awareness of the danger and encourage drivers to keep their eyes on the road. The stakes are high – death, injury, property damage, fines and rising insurance premiums. Whatever the distraction, it’s not worth the risk.”

 

text notification bubble with ellipsis looking like traffic light

The challenge

The challenge in addressing this issue is cognitive dissonance and, where distracted driving is concerned, willingly engaging in behaviours that are known to contribute to the likelihood of collisions. Studies in provinces across Canada have borne out the same result: a majority of drivers understand that distracted driving is dangerous and illegal; yet, the same respondents report using their devices behind the wheel anyway.

“Personal accountability is a major component of society’s role in reducing distracted driving deaths,” said Gareth Jones, president of the Canada Safety Council. “If you’re in the majority of road users who understand the risks, you owe it to your family and to fellow road users to put the phone away and otherwise minimize distractions.  It’s a choice that each of us has completely within our control.  Building a culture of safe driving happens one person and one decision at a time, so let’s choose well.”

 

Other types of distraction

While the topic of distracted driving is often discussed in the context of texting and calling behind the wheel, other forms of distraction exist and can also be harmful. Distracted driving is characterized as any action that removes your focus from the road. This can include eating, adjusting music, heat or GPS, applying makeup and interacting with passengers in the vehicle.

 

Tips to avoid distraction behind the wheel

  • Put your phone on silent or on Do Not Disturb mode. You won’t be tempted by an alert you don’t hear.
  • Even better, use an app or a built-in function that activates a Do Not Disturb feature automatically when connected to your vehicle’s Bluetooth or when increased speed is detected. See the enclosed tip sheet for examples.
  • Out of sight, out of mind – put your phone in a glove compartment, a zipped purse or knapsack, or even the back seat.
  • Make sure to leave enough time in your schedule to eat and groom before getting in the car.
  • Ensure that your temperature, music and GPS are set before you leave.
  • If it’s really that important, pull over.

Above all else, remember that driving is a potentially deadly task that requires your full attention. You wouldn’t take a call while operating a bulldozer; why do the same with a vehicle capable of going at much higher speeds?

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