$85,000 Non-Pecuniary Assessment for L1 Fracture and Concussion

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.

In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013.  The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion.  The second aggravated some of her symptoms.  By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain.  In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:

[183]     I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….

[185]     The plaintiff was virtually couch bound for a number of weeks after the First Accident.

[186]     The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.

[187]     The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…

[190]     The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.

[191]     Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.

A cottage agreement can save the family headaches

A cottage agreement can save the family headaches

There’s a family I know who have a story they’d like to share. Eric, Ben and Emma are siblings who inherited their father’s cottage four years ago when he passed away. They all love spending time at the cottage, and love one another – most of the time. Still, they can drive one another crazy. “Tim, I love my sister,” Eric said, “but when we’re at the cottage together, she plays the bagpipes all day long. Supposedly it’s good for her asthma. It drives me nuts.”

If you own a cottage and are thinking of leaving the property to your heirs one day, there’s no guarantee that they’ll be able to share the place successfully. But you can stack the odds in favour of a happy co-ownership through use of one terrific tool: A Cottage Agreement.

The agreement

A Cottage Agreement is a document signed by you, and each of your heirs who will one day inherit your cottage. The agreement should be finalized after an open discussion with your heirs so that they provide input into its creation. What’s the purpose of a Cottage Agreement? To provide a clear understanding of how the finances, usage, upkeep and decisions around the cottage will work when you’re gone. The agreement will also spell out how disputes will be resolved, when (not if) they arise.

As the current owner of the cottage, you might want to pass ownership to the kids during your lifetime, but retain certain rights related to the property – such as the right to continue using the cottage. A Cottage Agreement should spell out these rights.

Sure, a little moral suasion may be enough to keep harmony in the family while you’re around, but even the most loving families can face stresses related to a shared property if there’s no clear understanding around key issues.

The issues

When heirs are going to share the cottage, the following issues should be discussed, with answers baked into your Cottage Agreement.

  • Use of the cottage. Will all the kids be allowed to use the cottage all the time? This will require that they be willing to stay with one another (and may require Eric to be respectful of Emma’s bagpipe asthma treatments). Or will each have exclusive use at certain times? How do you allocate these times?
  • Guests at the cottage. Are heirs allowed to bring guests to the cottage, or will it be family only? Further, can an heir rent the cottage during his or her exclusive time, or is renting prohibited?
  • Sharing the costs. How will your heirs split the costs of upkeep? Should the costs simply be split evenly? Should it be based on who can afford to pay? Should it be in proportion to use of the cottage? Will you leave a “cottage fund” in trust for the heirs to help cover some of the costs? Perhaps your heirs should set aside money annually to create a “reserve fund” to pay for larger repairs when they become necessary.
  • Managing the money. Once everyone agrees on how to pay for things, who will make sure suppliers are paid? Someone has to collect the money, pay the utility bills, property taxes and insurance premiums, among other things.
  • Labour at the cottage. There’s plenty of work to do at the cottage. Who is going to open and close the cottage if required? Who will cut the grass, rake the beachfront, put the dock in the water, prune the trees and hedges, clean out the shed, and more?
  • Rules at the cottage. I’ve seen many cottage heirs squabble over the mess left behind by a sibling, leaving the boat without gas, leaving rotting food in the fridge and other minor inconveniences. Preparing some “Rules of Use” to accompany a Cottage Agreement is a good idea.
  • Succession of the cottage. Will each have the right to leave his or her share to a spouse (who may remarry later), or should the share go to the kids of a deceased owner? Heirs may need a way out of cottage ownership if necessary. Should each have a right to sell his or her share, perhaps giving the others a right of first refusal to buy?
  • Decisions about the cottage. How will your heirs arrive at agreement on matters related to the cottage? Should a majority rule on minor issues? Will certain decisions (such as selling, or making major improvements) require unanimity? How about mediation if they can’t agree?

Banks sell mortgage insurance, but independent experts say you shouldn’t buy it

Personal finance experts are a pretty soft-spoken bunch. It isn’t often that they say they would “never ever” advise buying a certain financial product.

But that is exactly what they generally say when asked about mortgage protection insurance, according to Anne Marie Thomas of InsuranceHotline.com, an insurance comparisons site.

Mortgage protection insurance isn’t the mortgage insurance most Canadians are familiar with, the one you need to buy, generally from the Canada Mortgage and Housing Corp. (CMHC), when your down payment is less than 20 per cent of the value of your home.

Unlike the better-known mortgage insurance, which protects lenders if homeowners default, mortgage protection insurance is, essentially, a type of life insurance. It covers your mortgage debt if you die or become disabled.

Banks generally try to sell homeowners this type of insurance when they sign up for a new mortgage. Insurance premiums are then seamlessly added to their monthly mortgage payments.

So, what’s not to like about that?

A lot, according to Thomas:

1. The payout from mortgage protection insurance shrinks with your mortgage

These kinds of policies only cover your outstanding debt, meaning the payout gets smaller and smaller as you pay off your mortgage. Insurance premiums, on the other hand, stay the same through the insurance term.

2. You may find out when you file a claim that you aren’t eligible for coverage

Mortgage insurance policies are “typically underwritten after the fact,” noted Thomas. This means that the insurance company will only take a close look at your case once you file a claim. And it may very well find that something in your particular situation violates the insurance contract, which would leave your family without coverage just when they need it most.

If you purchased mortgage protection insurance, comb through your policy carefully to make sure there’s nothing that could potentially exclude you for coverage, advised Thomas.

3. Your might get saddled with higher premiums when you renew your policy

With mortgage protection insurance, you’ll need to renew your policy at the end of your mortgage term, said Thomas.

Your new premium will be based on your — now smaller — outstanding mortgage balance, but that doesn’t mean you’ll be paying less. Because you’re a bit older, your premium won’t necessarily go down — in fact, it may go up, Thomas told Global News.

4. Your bank, not your family, pockets the payout

Assuming the claim goes through, mortgage insurance guarantees your family won’t have to worry about mortgage payments if you die or become disabled.

In case of death, your beneficiaries can counts on a lump-sum payout that will take care of the outstanding balance, according to Jason Heath of Objective Financial Partners, a fee-only financial planning firm. In case of disability, the policy will generally cover your monthly mortgage payments until the debt is extinguished, he added.

But does it make sense to use the money to pay off the mortgage?

Not necessarily, said Heath. Perhaps your survivors could have easily eliminated mortgage by selling the house. Or they might have preferred to use the money for other purposes, while keeping up with your mortgage payments.

Mortgage protection insurance means any payout will flow out to your mortgage lender, not to you or your family, noted Thomas. And that’s much like CHMC insurance.

Consider plain life insurance instead

Skipping on mortgage protection insurance doesn’t mean you have to go without coverage. Instead, you could buy life insurance, both Thomas and Heath said.

With life insurance, your payout remains the same through the term of the policy and the money comes with no strings attached.

For example, if you had a $300,000 mortgage and took out a policy for the same amount, your beneficiaries would still receive $300,000 even if you had paid down your mortgage in full by the time the claim is filed.

And life insurance is generally much cheaper, too, said Thomas.

“It typically could end up costing you half as much,” she said.

Why does anyone get mortgage protection insurance, then?

Many homebuyers, especially those buying their first home, haven’t done enough research to know what they’re getting into, said Thomas.

“Generally, the way it’s offered to [homebuyers] is when they’re sitting there, signing a whole bunch of [mortgage] paperwork and they’re bored and they’re starting at the wall,” said Heath.

When the bank proposes adding mortgage protection insurance, “for most people, it’s a five-second decision.”

Banking and mortgage industry professionals are often under enormous pressure to sell mortgage insurance, and benefit handsomely through commissions when they do, said Heath.

“Your friendly neighbourhood banker is financially motivated to get you to buy mortgage insurance, whether it’s in your best interest or not,” he added.

That may be why, a few years back, Heath himself discovered in his first-ever mortgage statement that he was, in fact, paying for mortgage protection insurance even if he had clearly declined coverage.

Heath eventually got his lender to cancel the policy and refund the premiums.

But many homebuyers aren’t well-informed enough to know they shouldn’t have signed up for the service in the first place.

“Mortgage [protection] insurance is very expensive, but it’s a captive market,” said Heath.

Housing agency now backing $502 billion in Canadian mortgages

Read more

$90,000 Non-Pecuniary Assessment for Chronic Wrist Injury

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic wrist injury.

In today’s case (Ackerman v. Pandher) the Plaintiff was involved in a 2011 collision.  The Defendants admitted fault.  The Plaintiff worked as a tile setter and the chronic injury disabled him from his profession.  In assessing non-pecuniary damages at $90,000 Mr. Justice Schultes provided the following reasons:

[29]         The medical evidence about Mr. Ackermann’s wrist injury and its effects was not disputed. It indicates that he suffered what is known as a “perilunate dislocation injury[1]” in the accident. This results in “significant soft tissue/ligamentous disruption within the wrist.[2]” Some degree of stiffness is usually seen in patients with this type of injury and his ongoing symptoms are considered to be “reasonable given the nature and extent of his injury.[3]” When he was examined in May of 2015 he had flexion (moving the hand downward from a horizontal position) of only 20%, although his abilities to pinch and grasp were good[4]. His prognosis is for increasing arthritis in the joint as a result of the injury, “with gradually worsening pain and limitation.[5]” A consulting orthopedic surgeon described his condition in 2015 as “chronic and static with a very high likelihood of deteriorating over time.[6]

[30]         If his pain worsens he may require a partial or total wrist fusion, which “typically improve[s] pain however at the cost of significant range of motion.” A total fusion would mean that he could no longer flex or extend the wrist.[7] For now his symptoms can be “slightly improved” by the intermittent use of a brace and by anti-inflammatory medication.[8]

[31]         With respect to work prospects, the orthopedic surgeon offered the opinion that “[b]etween the associated pain and the limited range of motion to his wrist, [he does] not believe that there is any chance of Mr. Ackermann returning to a physical job involving extensive use of his right wrist.” Nor did he believe that there were any “interventions” that would allow Mr. Ackermann to do so[9].

[32]         During his evidence, Mr. Ackermann demonstrated the restrictions in his range of motion of his right wrist and how moving the wrist forward and backward or from side to side causes him pain.

[33]         When he attempted to return to work after the accident he quickly found that the pain in his wrist made it impossible to perform the essential tasks of tile setting.

[34]         This injury has also undermined his ability to engage in the extensive range of physical activities that made up his life outside of work. These have included gardening, shovelling manure for his wife’s chickens, performing home maintenance tasks and minor renovations, playing sports as part of his Sunday social activities and playing with his grandchildren. He also cannot go hunting because of the effect on his wrist of firing a gun.

[35]         Using his wrist to do work of any kind causes a burning pain which is severe enough that it can also wake him up at night. He always feels pain to some extent but if he “takes it easy” it is lessened…

[132]     I think that in this case Mr. Ackermann’s circumstances demonstrate a meaningful requirement for solace, one that is greater than his physical injury might otherwise suggest. It was not contested that he was previously a person for whom the ability to interact physically with the world, and his identity as a “worker” in both his actual employment and his home life, were extremely important. The pain that is brought on by the use of his wrist is serious enough, but in my view a critical aggravating factor has been the comprehensive undermining of his sense of capability in the parts of his life that he otherwise found the most fulfilling. Even though he was rather stoic when giving his evidence, the overall sense he projected of someone who has been cut adrift from the previous fundamentals of his life was still palpable.

[133]     Taking care to distinguish these effects from the harm that has been caused to his earning capacity, which is of course to be dealt with separately, I conclude that an award of $90,000 under this heading is appropriate.

SEC Issues Cybersecurity Alert For Brokers And Financial Advisers

Article by Peter Stockburger

On May 17, 2017, the US Securities and Exchange Commission (SEC), through its National Exam Program, issued a “Risk Alert” to broker-dealers, investment advisers and investment firms to advise them about the recent “WannaCry” ransomware attack and to encourage increased cybersecurity preparedness. The purpose of the alert, according to the SEC, was to “highlight for firms the risks and issues that the staff has identified during examinations of broker-dealers, investment advisers, and investment companies regarding cybersecurity preparedness.”

Based on a 2015 survey of 75 SEC registered broker-dealers, investment advisers and investment firms, the SEC National Exam Program staff recognized certain firm practices that registrants may find relevant when dealing with threats such as the WannaCry ransomware attack:

  • Cyber-risk Assessment: Five percent of the broker-dealers, and 26 percent of the investment advisers and investment companies examined “did not conduct periodic risk assessments of critical systems to identify cybersecurity threats, vulnerabilities, and the potential business consequences.”
  • Penetration Tests: Five percent of the broker-dealers, and 57 percent of the investment companies “did not conduct penetration tests and vulnerability scans on systems that the firms considered to be critical.”
  • System Maintenance: All broker-dealers, and 96 percent of investment firms examined “have a process in place for ensuring regular system maintenance, including the installation of software patches to address security vulnerabilities.” And only ten percent of the broker-dealers, and four percent of the investment firms examined had a significant number of critical and high-risk security patches that were missing important updates.

The SEC recommends registrants undertake at least two separate tasks: (1) assess supervisor, compliance and/or other risk management systems related to cybersecurity risks; and (2) make any changes, as may be appropriate, to address or strengthen such systems. To assistant registrants, the SEC highlights its Division of Investment Management’s recent cybersecurity guidance, and the webpage of the Financial Industry Regulatory Authority (FINRA), which has links to cybersecurity-related resources.

The SEC cautions that the recommendations described in the Risk Alert are not exhaustive, “nor will they constitute a safe harbor.” Factors other than those described in the Risk Alert may be appropriate to consider, and some factors may not be applicable to a particular firm’s business. Moreover, future changes in laws or regulations may supersede some of the factors or issues raised in the Risk Alert. Ultimately, the “adequacy of supervisory, compliance, and other risk management systems can be determined only with reference to the profile of each specific firm and other facts and circumstances.”

The SEC recognizes that it is not possible for firms to anticipate and prevent every cyber-attack. However, “appropriate planning to address cybersecurity issues, including developing a rapid response capability is important and may assist firms in mitigating the impact of any such attacks and any related effects on investors and clients.”

Dentons is the world’s largest law firm, a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner, and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons’ global Privacy and Cybersecurity Group operates at the intersection of technology and law, and was recently singled out as one of the law firms best at cybersecurity by corporate counsel, according to BTI Consulting Group.

About Dentons

Dentons is the world’s first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world’s largest law firm, Dentons’ global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

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. Specific Questions relating to this article should be addressed directly to the author.

For more information, visit our Privacy and Cybersecurity blog at www.privacyandcybersecuritylaw.com

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