Improving Catastrophic Changes For The Most Vulnerable Victim Community

Article by Charles E. Gluckstein and Jessica Golosky

The automobile insurance system in Ontario has undergone a series of changes within the past few decades as a result of various efforts by different governments. Each reform has brought a temporary drop in the cost of auto insurance, however, none have been effective in the long run. The Ford Government is working on a plan to reduce the cost of auto insurance for the public and to make the claims process more affordable and accessible for Ontario drivers.

The Ministry of Finance consulted the public on this issue between January 8 and February 15, 2019. The results of the online survey showed:

  • 60% of respondents say that shopping for and buying auto insurance is difficult and frustrating;
  • 55% said that it is too hard to tailor their policy to their needs;
  • 54% said that insurance policies are complicated and difficult to understand; and
  • 53% said it takes too long to receive benefits after being injured in an accident.1

The proposed reforms are intended to provide drivers with options for a range of different auto insurance coverage choices available to them at different premiums. Further, the government is seeking to increase competition in the auto insurance market and to make it easier for drivers to shop for insurance. Under this new regime, auto insurance should become more affordable.

One important aspect of the Ford Government’s plan for reform is the Driver Care Plan, which is meant to revamp the claims process for individuals who are injured in a car accident by increasing and improving access to treatment and care for injured claimants. The Plan will include a return to a default benefit limit of $2 million for catastrophic injuries, with an option for drivers to reduce their catastrophic coverage below the default limit to a minimum of $1 million.

Under the previous system prior to 2016, the default benefit limit for those who are found to be catastrophically injured was $2 million, which included $1 million for medical/rehabilitation benefits and $1 million for attendant care. This was reduced to a combined limit of $1 million in 2016.

With the 2016 changes in the auto industry came a tightening of the definition of catastrophic impairment under the Statutory Accident Benefits Schedule, O. Reg 34/10. It is unclear as to whether the change to the $2 million system will be accompanied by a change in the definition of catastrophic impairment.

It is also unclear as to how the $2 million benefit will be broken down, for example, whether it includes both attendant care and medical/rehabilitation benefits, or whether it will be broken down into $1 million for each benefit. According to the Consultation Paper that was put out by the Ontario Government, the proposal does not split the $2 million benefits into sub-limits, allowing claimants the flexibility to access the type of care needed in the way that works best for them.2

The change back to a $2 million system represents a significant improvement for those who have been seriously injured in car accidents by increasing the funding that these claimants have access to. The Ford Government expects that implementing this change will lead to:3

  • Increased coverage for Ontarians to ensure that accident victims can obtain the care and treatment they need more quickly;
  • The ability for drivers to customize and choose their insurance coverage; and
  • Flexibility for catastrophic claimants to choose how they use their benefit limits (for medical, rehabilitation and attendant care) to suit their individual needs.

The Ontario Government is, once again, consulted the public on the Driver Care Plan reform, particularly on this issue of the catastrophic impairment default benefit limit.4 Written submissions were be accepted up until September 17, 2019. Further information can be found on the website for the Ontario Government’s Proposal for Consultation on this issue: https://www.ontariocanada.com/registry/view.do?postingId=30167&language=en.

Charles will be meeting with MPP Cho in October, 2019 to advocate for auto insurance reform. At Gluckstein Lawyers, our goal is to make a positive difference in our clients’ lives. Whether it’s driving change to outdated laws and regulations, or offering a shoulder during a moment of need. For former President of OTLA, Charles Gluckstein, the business of advocating for people has proven to be an invaluable skill.

Mondaq

“Unconstitutional” ICBC Expert Witness Rule Struck Down By BC Supreme Court

Source: Erik Magraken BC Injury and ICBC Claims Blog

Earlier this year BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and were drafted to save a primary litigant, ICBC, money at the cost of the substantive rights of individuals before the judiciary.

In April a legal challenge was launched arguing these changes were unconstitutional.

Today the Chief Justice of the BC Supreme Court ruled on challenge and declared that these changes were “of no force and effect” due to their unconstitutional nature.

Mr. Justice Hinkson provided the following reasons finding these changes were out of line:

[120]     I find that the effect of the impugned Rule is to change the substantive law of evidence that has guided this Court from its inception, and I find that this is not one of the exceptional cases referred to by Justice Lambert where the Rules may create new substantive law. Accordingly, I find that the Rule 11-8 Orders (and with it, the impugned Rule) are not authorized by the Act…

[164]     The impugned Rule does more than limit the court’s discretion; it eliminates it, and that is the petitioners’ complaint.

[165]     The arbitrary limit of three expert witnesses to address damages, unless there is agreement to more by the parties or expert witnesses are chosen by the court could result in the very unfairness discussed by McLachlin J. in Porto Seguro…

[172]     …the impugned Rule places the court in a role that it should not be placed in. Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties…

[185]     Considering the totality of the submissions and the evidence before me, I find that the impugned Rule compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process…

[197]     The petition is allowed in part.

[198]     I declare that the Rule 11-8 Orders are, in part, contrary to s. 96 of the Constitution Act, 1867, and thus unconstitutional and of no force or effect. In the result, sub Rules 11-8 (3), (4), and (5) are set aside. In the result sub Rules 11-8(10) and (11) must also be set aside.

Reading between the lines of the judgment the Court suggests that a ‘soft’ expert witness cap may be possible provided the Court retains real discretion to allow parties to marshall all the evidence necessary to prove their case.   Such a rule could likely be crafted and receive the support of various stakeholders who access the Courts in such claims.

#DriveSmartBC – Producing Your Driver’s Licence

“I’ve got 24 hours to produce it, don’t I?” and “It doesn’t matter, I know my licence number.” had to be the two most common responses I received when I stopped someone that wasn’t carrying their driver’s licence with them. Yes, you may know the number, but if my past experience is any indication, most of you don’t know a lot of the other details such as class, expiry date, restrictions or even your security keyword!

“So what?” you say, “You can look it up.” Yes, I was able look it up if the system was working, but how could I be sure that it was really you, especially since the police don’t have access to driver’s licence pictures on the computers in their cars. Add the fact that your friends may have a similar physical description and may also know your licence number and it begins to really get interesting.

Occasionally your “friend” would try to convince me that they were you when I had my pen poised over my ticket book. Often they were unlicenced, prohibited from driving or would be if they were convicted of the offence I was preparing to write. Why not avoid the whole mess and personate you? I wouldn’t know I was issuing the ticket to the wrong person.

The courts have held that it is permissable to take a photo as a part of police notes when investigating an incident. I took advantage of this whenever a driver did not produce their licence. I would ask them to step to the back of their vehicle, stand to the side of the licence plate and take a shot of them, the vehicle and the plate.

If the driver was reluctant to have their photo taken, this was a sign to me that chances were very good that they were not who they said they were. I would take extra care to make sure that I satisified myself that I was dealing with the right person.

Usually the first time you found out about a successful deception was when you tried to renew your driver’s licence. The agent at the Driver Service Center gave you two options: pay for all these tickets you had never received and renew or refuse to pay and don’t renew. Not renewing meant that you couldn’t legally drive until the whole matter was resolved and that often took a month or more.

It is also possible that if the person masquerading as you accumulates a large number of tickets, you could find yourself being prohibited from driving. The could occur either by receiving notice in the mail from RoadSafetyBC or at the roadside if you are stopped by the police.

Today you can easily keep track of suspicious entries on your driving history. ICBC provides your driving record on line where you can check for drivingconvictions that are not yours prior to renewal.

In British Columbia when the police demand your driver’s licence you are legally obligated to immediately hand it over and allow the officer to take it in hand. If requested, you are also required to verbally state your name and current residential address. Doing so will avoid a failing to produce charge and likely significantly reduce the time that you are stopped at the roadside.

Carrying your driver’s licence could provide valuable information for rescue and medical personnel if you are involved in a collision and are unable to communicate.

Latest phone scam targeting Social Insurance Numbers: Hamilton police

BY

Hamilton police (HPS) are warning residents about an increase in online fraud involving Social Insurance Numbers.

Police say in many instances, people are receiving a recorded phone call that directs you to call back immediately, or press “1” to avoid prosecution.

Major Fraud Unit investigators are urging you to not call back or press “1”, saying no official administrative center will ever use high-pressure tactics, be disrespectful, contact you through text or require you to pay any money through gift cards or Bitcoins.

“There were no incidents of the SIN Scam previous to Sept. 2019 and now HPS has had 18 formal complaints as well as the numerous phone calls I get by citizens wanting me to be aware,” said Hamilton Police Staff Sergeant Greg Doerr of the Major Fraud Branch in an email to Global News Radio, 900 CHML.

Police say “when in doubt, just hang up.”

They say the scammers will direct victims to ‘pay their fines’ using gift cards or Bitcoin machines.

Frequent reoccurring scams involve criminals pretending to be government officials seeking money for taxes or immigration fees.

The Government of Canada provides detailed information on how to protect your Social Insurance Number, including who can ask for it, on their website.

$70,000 Non-Pecuniary Assessment For Low Back Injury With Nerve Root Irritation

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.

In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1.  His prognosis for recovery was poor.  The injury caused significant limitations in the types of activities the Plaintiff could participate in.  In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:

[35]         Based on his assessment of Mr. Suc over time, Dr. Hershler was of the opinion that Mr. Suc is unlikely to return to a pain-free state in the future. He says that, due to the fact that over time Mr. Suc’s symptoms and physical findings are unchanged, he is of the opinion that Mr. Suc has sustained a permanent injury, and will remain symptomatic indefinitely.

[36]         Dr. Heran noted that Mr. Suc had improved since the accident. He noted that Mr. Suc did have persisting symptoms, and that he must avoid certain tasks and movements which would aggravate his condition. He was of the view that Mr. Suc would require assistance for heavier duties if his condition does not improve any further. Dr. Heran stated, “From a future perspective, he is definitely at increased risk for exacerbations or aggravations of site of persisting symptoms, notably in the lumbosacral level.”

[37]         I find on a balance of probabilities that Mr. Suc will remain symptomatic over his lifetime, and that his current level of function is contingent on Mr. Suc modifying his behaviors to avoid movements and tasks which have the potential to aggravate his symptoms…

44]         Mr. Suc was 37 at the time of the accident. His injuries are serious and have had a serious impact on his life. As a result of the accident, he suffers from ongoing pain in his back from a disc bulge that is contacting his nerve root. While his daily pain levels have improved, he has also restricted his movements so as not to aggravate his pain. He also experiences excruciating pain from time to time. His pain has affected his sleep and his mood.

[45]         Mr. Suc used to be a strong and healthy man, who could successfully take on physical tasks. He enjoyed and excelled in sports. It is unlikely his back pain will ever completely resolve, and he will not be able to resume his former level of activity. However, Mr. Suc is able to manage his day to day pain reasonably well. He is able to work full time. He can participate in some sporting activities, although not competitively or at the level he did before the accident.

[46]         Mr. Suc lost his job with RAS as a result of his injuries. This resulted in a period of financial insecurity for him and his young family, where they lost their house and had to move into their pastor’s home. Mr. Suc and his family have received generous support from their church, but it has been psychologically difficult for him to be unable to properly care for them. Mr. Suc has a new job which allows him to provide for his family, but this job is not ideal from the perspective of his family as it requires him to work weekends and evenings. He is no longer able to share responsibility with his wife for childcare and household responsibilities.

[47]         I find that an award of $70,000 is appropriate for non-pecuniary damages.

bc injury law, L5-S1 Disc Herniation, madam justice baker, nerve root irritation, Suc v. Skelton

Decorating your yard before Halloween

Excerpted article was Written by Stephanie Fereiro | Economical

Halloween is just around the corner. Whether you’re going for a simple setup of cobwebs and cornstalks or building a haunted graveyard on your front lawn, taking a little extra care while you do it will not only help your decorations stay put, but it could also help you prevent a liability claim (which could come up if one of your visitors tripped on a topsy-turvy tombstone, for example). Consider these tips as you prepare your property for All Hallows’ Eve.

Decorating your yard before Halloween

  • Beware of tripping hazards. Keep in mind that many of your trick-or-treaters will likely be wearing masks, which could limit their visibility and make it tougher for them to make their way to your front door. Make sure your decorations and any electrical cords are placed away from your main walkways and stairs to prevent trips, and check that your steps and railings are in good repair.
  • Secure your skeletons. When hanging or placing decorations outside your home, secure them carefully so they don’t blow away or come loose and fall onto your walkways. This includes decorations that are placed on your lawn and your porch (like foam tombstones or scarecrows, for example).
  • Follow the directions. If any of your decorations came with instructions, be sure to read them carefully — and follow them. (E.g., string lights may say they’re intended for indoor use only. If that’s the case, only use them indoors, as using them outdoors may be dangerous.)
  • Go for fog. If you’re looking to create a spooky, foggy atmosphere, consider using a fog machine instead of dry ice, as dry ice can cause burns when touched. If you must use dry ice, be sure to keep it out of reach of visitors.

Last-minute to-dos for Halloween night

  • Light it up. If you’re planning on handing out treats, leave your outdoor lights on (and be sure to replace any burnt-out bulbs) so trick-or-treaters know you’re home and can see a clear path as they make their way to your door.
  • Don’t play with fire. Consider using no-flame battery operated candles to light up your jack-o’-lanterns. If you’d prefer to use real candles, place them in an area that will be out of reach for children and dogs, keep them away from wooden surfaces and flammable decorations, and don’t leave them unattended. If you’re using any string lights or decorations that require electricity, inspect the wires ahead of time to ensure they’re in good condition and don’t overload your circuits, as this could lead to a fire.
  • Keep your pets contained. Make sure your cats and dogs are in a secure area where they won’t be able to sneak out when you open the door for trick-or-treaters. Not only could your pet scare those little goblins, but he could also get spooked by all those costumes and run off — or into a busy street.

These are just a few ways to prepare for a safe and spook-tacular Halloween. Once you’ve decorated your yard, remember to design safe costumes for the kiddos and map out a route for your trick-or-treating trekif you’re planning on heading out for the night.

How to prepare your yard for a safe and spooky Halloween

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