Tag Archives: case

Family Member Providing Attendant Care: You are Entitled to Compensation

Written By: Nick Todorovic and Aidan Vining, Student-at-Law

Family Member Providing Attendant Care: You are Entitled to Compensation

One of the fundamental principles of Canadian tort law is that an injured person is entitled to receive compensation that puts them in the position they would not have been in had they not been injured through the negligence of another person. This includes compensation for past and future care. This means that if you have been injured and require ongoing care from a personal support worker, nurse, therapist, or other medical professionals, the defendant that negligently caused your injuries has to compensate you for the costs of those future services.

In cases involving severe injuries, a person may require 24-hour attendant care for the rest of their life. That amount of care, while necessary, can come with a significant price tag. Due to the size of these damage awards, insurance companies will do their best to not have to pay for an injured person’s future care.

One argument that insurance companies like to make is that an injured person does not need to be compensated for attendant care because they are receiving all or some of their assistance from family members on a voluntary basis. For example, a person that requires 24-hour attendant care may receive that care for 8 hours a day from their husband, wife, parents, or children. The insurance company would argue that they should not have to pay for those 8 hours of care because the injured person is not paying a professional to provide that care.

The case law does not support this argument made by insurance companies. Below are just a few of the cases where the Courts have said that a person’s future care needs must be assessed in a vacuum and in the absence of consideration of benevolent family support.

Andrews v Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [here]

In Andrews, one of the seminal cases in Canadian tort law, the Supreme Court of Canada stated:

The evidence showed that the mother of the appellant James Andrews was living alone, in a second-floor apartment and that relations between Andrews and his mother were strained at times. This should have no bearing in minimizing Andrews’ damages. Even if his mother had been able to look after Andrews in her own home, there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis. The second observation is irrelevant.

As can be seen, the Courts have long held that a negligent defendant cannot take advantage of the generosity of family members. It would be unfair to expect family members to provide attendant care on a voluntary basis, just because they love the injured person and want to provide the care themselves. The defendant is required to compensate those family members for the care they are providing due to their negligent actions.

Moore v Wienecke, 2008 ONCA 162  [here]

In Moore, the plaintiff had been receiving gratis assistance from family members since their motor vehicle collision. This assistance provided by the family was likely to continue. The defendant argued that the plaintiff was not entitled to damages for future care since the family members were providing the care, and not paid professionals. The Court of Appeal disagreed and stated:

[36]      Moreover, the fact that the respondent’s family has helped him with the tasks of daily living in the past, and may well continue to do so, is irrelevant. As expressed by Dickson J. in Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229, [1978] SCJ No 6, at p 243 SCR, “there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis”.

As a result, the Court of Appeal upheld the trial judge’s award of $2,000 per year until the plaintiff reached the age of 75 for future care and maintenance.

Pelletier v Ontario, 2013 ONSC 6898 [here]

The Courts have not limited their position on gratuitous attendant care to only family members. In Pelletier, the plaintiff was injured in a cycling collision when he was struck by a police cruiser. A friend/mentor volunteered to help the plaintiff and brought the injured plaintiff into their home and provided him with care while he recovered. At trial, the plaintiff sought damages to compensate the family for the voluntary care services they provided. The Court agreed with the plaintiff’s claim for damages and stated:

[416]    …It matters not from what source [the plaintiff’s] attendant care needs have been met, or who has provided the attendant care. It matters not whether [the plaintiff] is under a legal or moral liability to repay. [The plaintiff’s] loss is the existence of the need for attendant care, the value of which, for the purpose of calculating his damages, is the proper and reasonable cost of providing the attendant care.

As a result, the plaintiff was awarded $1,000 for every month the plaintiff lived with the family and received their care.

Hummel v Jantzi, 2019 ONSC 3571 [here]

In Hummel, the plaintiff was a passenger involved in a motor vehicle collision. Due to his serious personal injuries, the plaintiff required 24-hour-a-day attendant care. At the time of trial, that care had been primarily provided by the plaintiff’s wife and parents. Both parties agreed that the plaintiff required care for the rest of his life. The parties disagreed, however, on the amount the plaintiff should receive given the fact that it was his wife and parents that were providing the bulk of the care. The Court did not accept the insurance company’s argument that they should not have to pay for his attendant care and stated:

[241]    In my view, the proper approach to assessing [the plaintiff’s] damages under the heading of the cost of future care is to determine a reasonable amount that is required to provide the care recommended by the various healthcare professionals. Based on the evidence, the damage amount awarded for future care should then be adjusted for contingencies to take into consideration factors such as whether the care will be provided by a professional service provider or a family member or not at all.

[269]    I am mindful that, at the present time, [the plaintiff’s] attendant care is provided partly by his wife and partly by his parents. That will not always be the case at least as far as [his parents] are concerned. I am confident that as they age they will be less likely to be able to provide the level of care they are currently providing. They are also likely to predecease [the plaintiff]. Similarly, [his wife] may not always be able or willing to provide the level of care as at present. The needs of the growing family may mean she will have less time to care for [the plaintiff]. She might become unable for physical or emotional reasons to continue to provide care at the current level.

The Court then awarded the plaintiff $200,000 per year for the rest of his life for future attendant care. In coming to this amount, the Court made deductions for the periods of time that the plaintiff would receive care from other healthcare professionals, and a 20% deduction to take into consideration that the medically required attendant care was not likely to be exclusively provided by professional healthcare workers.

Why This Matters

These cases demonstrate just one of the arguments insurance companies will make in an attempt to lower the amount they have to pay to an injured plaintiff. If you or a loved one have been injured through the negligence of someone else, it is important to speak with an experienced personal injury lawyer to ensure you receive the full compensation you are entitled to. Contact our office for a free consultation to discuss your next steps with one of our personal injury lawyers.

Judge Strikes Jury and Denies Defence Counsel the Right to a Second Examination for Discovery and Defence Medical

Written By: Nick Todorovic

Judge Strikes Jury and Denies Defence Counsel the Right to a Second Examination for Discovery and Defence Medical

Justice Lavine rules in favour of a brain-injured cyclist by striking the jury, refusing further defence medical, and disallowing an additional examination.  The ruling allowed the cyclist to move forward with his case to the November 2021 trial sittings and proceed by Judge alone.  Shortly following the ruling, a settlement was entered into between the Plaintiff and the Defendants. The issue of liability among the Defendants is set to proceed.

In June 2015, the Plaintiff was riding his bicycle when one driver opened their door causing him to swerve and a second driver struck him with their car. The Plaintiff commenced an action in May 2016 against the at-fault drivers. Examinations for discovery were completed in January 2017. The parties attended mediation in May 2019 where the Plaintiff served all their expert reports. Mediation failed and the trial record was filed in May 2019. The Defendants consented to the action being set down for trial. Two judicial Pre-Trials took place in July 2021 where the Plaintiff served updated economic loss reports. The Defendants attended both Pre-Trials without any defence medical reports. At pre-trial, the Plaintiff advises that he would be bringing a motion to strike the jury as no jury trials were proceeding in the November 2021 sittings. The Defendant, Kelly Smith, requested that the Plaintiff be re-examined on his economic loss claim and that he attends a defence neuropsychological assessment. The Plaintiff brought their motion to strike the jury and the Defendant, Kelly Smith, brought a countermotion to compel the Plaintiffs attendance at a second discovery on economic loss and to attend a defence neuropsychological assessment.

The motion was heard on September 27, 2021, before Justice Lavine provisionally struck the jury notice of the Defendants and denied the Defendant’s countermotion in its entirety. In coming to her decision to strike the jury, Justice Lavine reviewed the local conditions in the Central East Region and relied on Zmarzly v Huang, 2021 ONSC 5960 for the relevant principles to be applied and the summary of the particular conditions in that region. Justice Lavine reiterated that delay in obtaining a date for a civil jury trial constitutes prejudice and may, in the circumstances, justify striking the jury notice to ensure timely delivery of justice. Justice Lavine provisionally struck the jury notices and listed the trial to take place for the November 2021 sittings as a judge-alone trial.

Justice Lavine then dismissed the Defendant’s countermotion concluding that the Defendant, Kelly Smith, put no evidence before her of any substantial and unexpected change or deterioration in the Plaintiff’s condition that would allow the Defendant to conduct an additional examination for discovery on economic loss. The Defendant, Kelly Smith, could not provide any reason why an additional examination for discovery or defence medical examination was not scheduled before Pre-Trial. In coming to that conclusion, Justice Lavine noted that it is expected that Plaintiffs have fluctuating and evolving issues with the passage of time until the commencement of trial. Justice Lavine noted that the Plaintiff’s change in employment status was not particularly striking or unexpected. Justice Lavine concluded that the denial of a second examination for discovery and the denial of a defence neuropsychological examination at that stage of the proceeding was not necessary to ensure trial fairness.

Shortly after the release of Justice Lavine’s decision, the Plaintiff reached a favourable settlement. This decision is a stark warning to all parties about taking little to no steps in advance of a Pre-Trial. The Courts are taking a harsher stance on trial fairness when a party chooses to ignore the rules of civil procedure with the service of defence medical reports. The ruling is consistent with the Court system seeking to counter unneeded delays in what is an overburdened system.

Nelson (City) v Marchi, 2021 SCC 41: Cities Can be Liable for Operational Decisions that Harm Private Citizens

Written By: Nick Todorovic and Aidan Vining, Student-at-Law

Nelson (City) v Marchi, 2021 SCC 41: Cities Can be Liable for Operational Decisions that Harm Private Citizens

Overview

Under Canadian tort law, governments can be held liable for damage caused by their negligence in the same way as private citizens. However, negligence law also accounts for the unique role public authorities play in governing society in the public interest.

Public bodies such as the government must make difficult decisions that impact the lives of many people. These decisions involve the weighing of many competing factors. When public bodies make poor decisions that harm people, the courts are faced with a difficult challenge. On the one hand, the legal system should use the tools at its disposal to hold the government accountable for decisions that harm people. On the other hand, one of the fundamental principles of Canadian democracy is the concept of the separation of powers, whereby the courts and the government both oversee specific functions and must respect the role of the other branch of power. Accountability for government decision making is meant to be regulated by voting citizens, not by the courts.

To deal with this dilemma, Canadian tort law has developed a distinction between government acts and decisions that can be subject to liability (operational decisions involved in the carrying out of policies), and those that are immune to liability (core policy decisions involving the weighing of various factors).

In Nelson (City) v Marchi, 2021 SCC 41, the Supreme Court of Canada was given an opportunity to address the distinction between these types of decisions. In doing so, the Supreme Court of Canada provides much-needed guidance for determining when a government’s decisions may be immune from liability as a core policy decision.

The Facts

In Nelson, the plaintiff was injured while attempting to cross a snowbank created by the City of Nelson, British Columbia, after heavy snowfall in January 2015. Employees of the City plowed the snow in a parking area in such a way that they created a snowbank along the curb of the parking area that separated the parking stalls from the sidewalk. The City did not clear an access route through the snowbank to the sidewalk for drivers.

The plaintiff was one of the people who had parked in the parking area only to learn that she could not access the sidewalk due to the snowbank. She decided to cross the snowbank, and her foot fell and twisted into the snowbank, causing serious injuries to her leg. She sued the City for negligence.

The trial judge concluded that the City did not owe the plaintiff a duty of care because its snow removal decisions were core policy decisions immune from liability. The British Columbia Court of Appeal concluded that the trial judge erred on this conclusion. The City then appealed to the Supreme Court of Canada.

The Law

The Supreme Court of Canada began its legal analysis by stating that the decision of Just v British Columbia, [1989] 2 SCR 1228 created a duty of care between users of a highway or roadway and the province as a public authority as the province created a physical risk and invited the public to use it.

The Court then stated that the duty of care should apply to public authorities unless there is a valid basis for its exclusion. The Court referred to two such bases: (1) statutory provisions that exempt the defendant from liability, and (2) immunity for “true” policy decisions. While such policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to the duty of care in negligence.

One of the more clarifying statements made by the court is that there are four factors which are to be used in determining whether a public authority’s decision is an immune policy decision or a mere operational decision about implementing the policy. The court states that the overarching separation of powers rationale of the immunity is to guide how the factors weigh in the analysis.

The four factors to aid in determining policy vs. operational decisions:

  • Level and Responsibilities of the Decision-Maker: How closely related is the decision-maker to a democratically-accountable official who bears responsibility for public policy decisions.
  • Process by Which the Decision was Made: The more the process for reaching the government decision required debate, involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision.
  • Nature and Extent of Budgetary Considerations: Government decisions concerning budgetary allotments for departments or government agencies will usually be classified as policy decisions. On the other hand, day‑to‑day budgetary decisions of individual employees will likely be policy decisions.
  • Extent Decision was Based on Objective Criteria: The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged.

The Court further clarified that the presence of financial considerations does not by itself determine whether a decision is core policy. Additionally, mere labeling of a plan or document as a “policy” is not enough to be considered a true policy decision immune from liability.

Application of the Law to the Facts

The City relied on a written document that had been in use since 2000 entitled “Streets and Sidewalks Snow Clearing Removal” (Policy). Essentially, this “policy” stated that snow should be removed from emergency routes and the downtown core first, followed by transit routes, and streets. The City also had unwritten practices for dealing with snow.

The City argued that these written and unwritten policies were core policy decisions because they involved the allocation of scarce resources (equipment and employees) in circumstances where not all stakeholders could be satisfied at once.

The Court disagreed. The Court stated that even if the written “policy” was core policy, this does not mean that the creation of snowbanks without clearing pathways for direct sidewalk access was a matter of core policy. The clearing of the parking area and the creation of snowbanks without access points were not mandated by any of the documents – they were the result of operational and implementational decisions surrounding the removal of snow.

The Court applied the four factors above and concluded that the City’s decision did not have any of the hallmarks of core policy. The supervisor did not have the authority to make different decisions with respect to the clearing of parking areas, there was no suggestion that the method of plowing snow involved the balancing of competing objectives, no high-stakes budgetary concerns were involved, and the chosen method for plowing can easily be assessed based on objective criteria.

The Court’s Conclusion

The Court concluded that the chosen method of plowing the parking area was an operational decision and did not involve a deliberative process based on value judgments concerning economic, social or political considerations. Thus, there is no need to insulate such a decision from liability.

The City owed the plaintiff a duty of care and the regular principles of negligence should apply to determine the City’s liability. The Court therefore ordered a new trial to determine the issues involving the standard of care and causation.

Why This Case Matters

In Nelson, the Supreme Court of Canada provides helpful and much-needed guidance as to when a government’s decisions may be immune from liability as a core policy decision.

This guidance was sorely needed in Ontario following the enactment of the Crown Liability and Proceedings Act, 2019, which seemingly introduced a much broader definition of what “policy matters” immune from liability are. Section 11(5)(c) of the CLPA specifically states that a policy decision includes the manner in which a policy decision is “carried out” – i.e. operational decisions.

The good news for plaintiffs is that the case of Francis v Ontario, 2021 ONCA 197 made it clear that the policy/operational dichotomy lives on in the post-CLPA world. Broad policy decisions of a nature that impacts economic, social, and political factors generally will be immune from liability. However, the implementation of those policies and the way they are carried out by the government will not be immune from liability under the CLPA.

Armed with Francis and now Nelson, plaintiffs are in a strong position to maintain liability against public authorities that cause them harm in carrying out operational and procedural decisions in Ontario.

When Further Defence Medical Examinations of the Plaintiff May Be Unfair: Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719

Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law

When Further Defence Medical Examinations of the Plaintiff May Be Unfair: Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719

OVERVIEW OF THE CASE

In Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719, the defendant moved for an Order compelling the plaintiff to attend a second medical examination pursuant to section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, and an adjournment of the pre-trial conference to allow for service of the subsequent expert report.

The plaintiff alleged that she had sustained both a neck and right arm fracture as a result of a slip and fall on the defendant’s premises in December 2016. Following the completion of the examinations for discovery, the defendant arranged a physiatry medical examination of the plaintiff; a report followed and was served.

In June 2021, 90 days prior to the pre-trial conference, the plaintiff served an expert report from an orthopedic surgeon. The report addressed the plaintiff’s recovery and functional limitations related to her fractured right proximal humerus. In response, the defendant scheduled a second medical examination for the plaintiff with a different orthopedic surgeon to obtain an opinion to counter the plaintiff’s report. The plaintiff refused to attend a further examination, resulting in the defendant’s motion.

THE TEST FOR FURTHER MEDICAL EXAMINATIONS

The Court cited Bonello v. Taylor, 2010 ONSC 5723 as the applicable test for determining when a further examination may be ordered. In Bonello, the overriding factor is trial fairness:

[16] Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33.  The leading principles can be summarized as follows:

(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

(ii)  A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;

(iii) Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination.  What constitutes sufficient evidence will vary from case to case.

(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and

(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

THE COURT’S ANALYSIS

The defendant argued that an examination by a physiatrist was initially conducted because the plaintiff’s main concern was that of chronic pain. The defendant’s physiatry report focused on the plaintiff’s chronic pain and its impact on her day-to-day living. The plaintiff’s subsequent orthopaedic report ultimately focused on the plaintiff’s recovery and functional limitations as it related to her fractured right proximal humerus. The plaintiff argued that if she was required to attend a further examination, she would be prejudiced due to the further delay of the trial.

The Court considered the Bonello factors, stating that while there was no evidence that the defendant was attempting to delay the trial or cause prejudice to the plaintiff, it appeared that the defendant was trying to repair the expert opinion given by the physiatrist. The Court explained that there was nothing unfair in the circumstances in requiring the defendant to base its case on the physiatrist’s report. The Court agreed that there was no evidence that more assessments of the plaintiff’s condition was required for a fair trial.

CONCLUSION

The defendant’s motion for an Order to compel the plaintiff to attend a second medical examination was dismissed. The Court was satisfied that the defendant must be held to their choice to proceed with a first examination of the plaintiff by a physiatrist instead of an orthopedic surgeon. The defendant had the opportunity to wait until the plaintiff served their first report and make their decision based on the specialty of the plaintiff’s report that was served.

WHY THIS MATTERS

While the Court will consider each case on a case-by-case basis, this decision serves as a reminder that if the defence decides to obtain an expert medical opinion prior to the plaintiff doing so, it may be unable to obtain a further opinion to rebut or counter the findings of a subsequently served plaintiff report.

Jury Striking and the Statutory Deductible: Rumney v Nelson, 2021 ONSC 5632

Written By: Brandon Pedersen and Aidan Vining, Student-at-Law

Jury Striking and the Statutory Deductible: Rumney v Nelson, 2021 ONSC 5632

The recent decision of Rumney v Nelson, 2021 ONSC 5632 out of Orangeville is yet another case where the Defendant’s jury notice was conditionally struck. Interestingly, this case has the added bonus of a discussion about whether a jury should be advised of the statutory deductible in motor vehicle collision cases.

Background

The action arose from a 2012 rear-ending motor vehicle collision. At the time of the motion hearing, the action was scheduled to be tried before a judge and jury in October 2021 and expected to last 4 weeks.

Jury Striking

Due to the ongoing COVID pandemic, the Plaintiff sought a conditional order to strike the Defendant’s jury notice. If the Court is not permitting civil jury trials in Orangeville when the matter is called for trial, then the matter would proceed anyways – but without a jury. On the other hand, if jury trials are permitted when the matter is called for trial, then it would proceed with a jury.

In deciding whether to strike the jury notice, Byrne J. stated:

[26]       When deciding whether justice will be served by striking the Jury Notice, the court should consider (i) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication, (iv) the age of the case, and (v) the history of adjournments: Johnson v. Brielmayer2021 ONSC 1245 at para 32.

Byrne J. considered the fact that the motor vehicle collision took place nearly 9 years ago, and that the Orangeville courthouse only has one courtroom sufficiently large for a jury to socially distance. The matter had not been adjourned before, but due to the local conditions in Orangeville, the matter may not be rescheduled for another two years if juries are not available when the matter is called to trial.

Due to this risk of delay and lack of access to justice, Byrne J. conditionally struck the jury notice.

Instructing the Jury of the Statutory Deductible

The Plaintiff also sought an Order that the judge at trial provides an instruction to the jury regarding the statutory deductible as set out in s.267.5(7) of the Insurance Act. Specifically, the Plaintiff wanted the jury to be told how the statutory deductible works and that they should not consider it when determining non-pecuniary damages.

The statutory deductible operates to reduce the amount a person injured in a motor vehicle collision recovers for pain and suffering. The current reduction in 2021 is $39,754.31. This means that if you are injured in a motor vehicle collision, the insurance company will keep the first $39,754.31 of any damages awarded to you for pain and suffering. Juries are not told about this deductible, and triers of fact (i.e. juries) are supposed to make damage awards without regard to the deductible.

In Rumney, the Plaintiff argued that juries should be told about the deductible as this information is readily available on the internet. It was argued that s.267.5(7) of the Insurance Act only states that the assessment of damages should be made “without regard to” the deductible, not “without knowledge.”

Byrne J. noted that the existence of the statutory deductible “is not evidence, but rather a regulation.” As such, Byrne J. found that the regulation applies to every case in the same way, and no evidence on its existence needs to be brought into the trial.

The motion to instruct the jury of the statutory deductible was dismissed.

Why This Matters

This recent decision highlights two important and developing areas of motor vehicle litigation. A steady flow of case law has been growing that demonstrates Courts are willing to strike jury notices due to the ongoing pandemic. The longer restrictions must be in place, the further backlogged the courts will become. Striking the jury is one way for civil actions to proceed in a timely manner and facilitate access to justice.

On the other hand, an interesting argument was made as to why the jury should be instructed about the existence of the statutory deductible. For now, juries will continue to award damages to injured plaintiffs without the knowledge that they will be automatically reduced.

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Overview of the Case

McKee v. Marroquin is a case arising from a motor vehicle collision that occurred on June 10, 2016, in which the plaintiff was seriously injured. The plaintiff issued a statement of claim on August 21, 2017, alleging that the accident and resulting injuries were due to the negligence of the defendants. In response, the defendant served a statement of defense and jury notice on December 14, 2017. Upon the completion of examinations for discovery of all parties, the plaintiff filed the trial record on April 20, 2018. The defendants objected, stating that numerous undertakings given by the plaintiff on discovery were still outstanding.

On November 15, 2019, the parties attended a pre-trial conference and were advised that they were ready to proceed to trial. The action was subsequently set down for trial for May 2020. Due to the disruption of the regular operation of the courts as a result of the COVID-19 pandemic, the trial was delayed. At a second pre-trial conference in June 2020, the parties once again advised that they were ready to proceed to trial. The trial was delayed once again and ultimately adjourned to the blitz sittings in January 2022 to be heard with a jury.

Leave under Rule 48.04(1)

The defendants objected to the plaintiff’s ability to bring a motion to strike the jury notice in violation of Rule 48.04(1). Under Rule 48.04(1) of the Rules of Civil Procedure, a party that has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

The defendants maintained the position that the plaintiff should not have been able to bring a motion due to the fact that the action had already been set down for trial. The defendants’ further argued that the plaintiff had not answered all of the undertakings given on discovery.

Emery J., for the Court, outlined a three-step test to determine whether leave should be granted under Rule 48.04(1):

[14] First, the court must determine whether the change to the circumstances is substantial or unexpected. Second, the court goes on to decide whether it would be manifestly unjust if leave was refused, or if it is necessary in the interests of justice to grant leave, as the case may be. Third, the court should exercise its discretion whether to grant leave having regard to all of the circumstances.

In granting leave, Emery J. referenced recent decisions on motions to strike jury notices in actions from Central West Region, the majority of which found that the pandemic was a substantial or unexpected change in the circumstances such that leave to bring the motion to strike should be granted.

Motion to Strike

Emery J. reviewed the principles related to motions to strike the jury notice:

[28] The bedrock principles behind the right to a jury in a civil case, what is required to displace that right, and the discretion of a judge to strike a jury notice are well settled.  Those principles were reviewed by Hourigan J.A. on the appeal in Louis v. Poitras, and by Trimble J. in Roszczka.  Notably, they include the principle restated by the Court of Appeal in Cowles v. Balac 2006), 2006 CanLII 34916 that the right to a civil jury trial is a substantive right that must not be interfered with except for just cause or cogent reasons.  The Court in Girao v. Cunningham2020 ONCA 260 also confirmed that, while the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality.

[29] Brown J.A. described the scope of this discretion in Belton v. Spencer2020 ONCA 623 as a qualified right.  The judge hearing the motion has “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.”  Brown J.A. went on to emphasize that the paramount objective of the civil justice system is to provide the means for the disputes of parties to be resolved in the manner most just between the parties.

[30] In Louis v. Poitras, Hourigan J.A. put a fine point on this discretion by stating that “motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.”  This corresponds with the view expressed by Brown J.A. in Spencer that the discretion given by the law to the presiding judge is intended to better serve the justice between the parties.  The question of whether a jury notice should be struck is case-specific, and best answered by the judge hearing the motion and likely most aware of local conditions.

[31] Similarly, the motions judge is most able to answer whether striking the jury notice will better serve the justice of the case between litigants in practical terms.

Having regard to all of the circumstances, Emery J. recognized that it would be necessary in the interests of justice for leave to be granted. Emery J. considered the significant backlog of cases requiring jury trials in the coming months and the undue delay that would prejudice the plaintiff’s case, stating that it justified the departure from the defendant’s right to a jury trial.

Jury Conditionally Struck

Emery J. ordered that the action shall remain on the Brampton trial list for the January 2022 sittings. But, if trials by jury are not provided for January 2022, the jury notice is struck, and the trial shall proceed before a judge alone. However, if the matter is not reached during the January 2022 sittings – whether by jury or judge-alone – it shall be set for a trial on the next earliest sittings by jury. If no jury trials are provided at that time, the jury notice is struck, and the trial is to proceed before a judge alone.

Why This Matters

Recent case law supports the view that the pandemic qualifies as a substantial and unexpected change in circumstances in the context of granting leave — this is especially significant for actions that were set down for trial prior to March 2020. As noted by Emery J., the trial list for May 2022 is currently closed in Brampton, and the earliest the parties in this action could expect a jury trial would be January 2023. The recent decisions of the Court overwhelmingly point to the fact that the delays caused by the COVID-19 pandemic will continue to have a significant impact on the regular operation of the courts for the foreseeable future. However, conditionally striking the jury is an attempt to balance the interests of both plaintiffs and defendants by utilizing a modified wait-and-see approach. Given the court’s willingness to favour conditionally striking the jury over an absolute striking, counsel will have to prepare for trial without knowing whether the action will be heard by a jury or by judge-alone.

Causation and the Role of Expert Evidence in Medical Malpractice Litigation: Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545

Written By: Brandon Pedersen & Aidan Vining, Student-at-Law

Causation and the Role of Expert Evidence in Medical Malpractice Litigation:  Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545

Factual Background of the Case

A recent case from the Ontario Court of Appeal demonstrates the integral role experts play in medical malpractice litigation. In Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, a gynecologist was found to have negligently caused the death of his patient.

Ms. Hacopian-Armen died in 2011 from Stage IV uterine leiomyosarcoma (“uLMS”), an aggressive form of cancer that originates in the muscular outer layer of the uterus. Diagnosing uLMS is difficult as it has features similar to fibroids, which are fairly common benign, non-cancerous growths. Fibroids cannot be distinguished from uLMS by imaging. Instead, uLMS can be discovered by conducting an endometrial biopsy – a short and simple in-office procedure.

Ms. Hacopian-Armen’s health issues began when she was diagnosed with fibroids in 1999. In 2009, she was referred to the gynecologist for treatment.

Ms. Hacopian-Armen exhibited several risk factors for diseases of the uterus at her first meeting with the gynecologist in 2009. The risk factors included: being over 40 years old, experiencing abnormal uterine bleeding, and never having given birth. The gynecologist conducted a routine swab of Ms. Hacopian-Armen but did not perform an endometrial biopsy.

Unfortunately, Ms. Hacopian-Armen’s symptoms worsened. In April 2011, the gynecologist performed an endometrial biopsy, which revealed that Ms. Hacopian-Armen had a Stage IV cancerous tumour in her uterus. Ms. Hacopian-Armen had a hysterectomy and began chemotherapy, but it was too late. Ms. Hacopian-Armen died in August 2011, four months after the gynecologist discovered the cancerous tumour.

Ms. Hacopian-Armen’s family started a lawsuit against the gynecologist. They alleged that his failure to conduct an endometrial biopsy was negligent, in that conducting said procedure would have likely detected Ms. Hacopian-Armen’s cancer at a much earlier stage, making it likely that her death would have been prevented.

Trial Decision

Expert witnesses played a significant role in the trial decision.

The trial judge accepted Ms. Hacopian-Armen’s expert’s opinion that Ms. Hacopian-Armen likely had the cancerous uLMS at the first meeting with the gynecologist, and that had an endometrial biopsy been performed on that date, the uLMS likely would have been detected. The trial judge also found that the Ms. Hacopian-Armen’s prognosis would have been substantially improved if the uLMS had been found and treated in 2009. The cancer could have been removed from her body at that time before it had a chance to spread. The trial judge concluded that but for the gynecologist’s failure to perform the biopsy in 2009, Ms. Hacopian-Armen would probably not have died of Stage IV uLMS. The risk of uLMS was real, and it was foreseeable that if uLMS went untreated, it would likely result in serious injury or death.

Ultimately, the trial judge concluded that:

  • The gynecologist breached the standard of care that he owed to Ms. Hacopian-Armen by failing to perform an endometrial biopsy;
  • A biopsy performed at the first appointment in 2009 would have detected the uLMS, which would have greatly improved Ms. Hacopian-Armen’s prognosis; and
  • The harm that occurred to Ms. Hacopian-Armen and her family members was foreseeable and caused by the gynecologist’s failure to perform the biopsy.

Justice Brown summarized her conclusion as follows:

[156] Based on all of the evidence adduced at trial, including the medical records, the opinions and testimony of the medical experts adduced on behalf of both parties, the submissions of counsel and the case law, I find that Dr. Haider Mahmoud fell below the standard of care by failing to perform an endometrial biopsy on May 25, 2009. His notetaking fell below the standard expected of a reasonably skilled specialist in his professional field.  Further, in failing to perform an endometrial biopsy on May 25, 2009, this allowed the plaintiff’s LMS to progress to the point that the course of the disease was unable to be altered by the time it was finally diagnosed. It was foreseeable, and not too remote, that the negligence would result in the plaintiff’s final loss. I am satisfied that causation, both factual and legal, have been established.

Appellate Decision

The gynecologist challenged the trial decision based on alleged errors in the trial judge’s conclusions on legal and factual causation.

Legal Causation

The gynecologist argued that the trial judge relied on retrospective reasoning and the benefit of hindsight in determining causation. It was argued that the trial judge erred by asking whether it was foreseeable that the presence of uLMS, if untreated, would lead to serious injury or harm. Rather, the gynecologist argued that the proper questions to be asked were whether it was foreseeable to a reasonable gynecologist that (a) Ms. Hacopian-Armen had uLMS in 2009; (b) an endometrial biopsy would have diagnosed the uLMS; and (c) not performing an endometrial biopsy could lead to a delayed diagnosis of uLMS. This is because, the gynecologist argued, uLMS is a rare form of cancer and the harm was too remote and unforeseeable.

The gynecologist argued that the trial judge’s retrospective approach to causation would create a dangerous precedent and force physicians to order unnecessary tests to avoid the risk of missing unforeseeable diseases.

The unanimous panel at the Court of Appeal agreed that the trial judge inappropriately blended her factual and legal analysis with hindsight. However, the Court held that it did not matter that the gynecologist did not know that Ms. Hacopian-Armen had uLMS in 2009. What mattered was the combination of risk factors being presented by Ms. Hacopian-Armen at the time. Due to her age, the fact that she had not had a child, and the symptoms she was having, an endometrial biopsy was required and it was reasonably foreseeable that the failure to conduct one would preclude detection of uterine diseases which would cause serious harm if left untreated.

The Court stated that it is sufficient that the harm suffered is of a kind, type or class that was reasonably foreseeable as a result of the gynecologist’s negligence. By failing to conduct a biopsy that would have detected cancers of the same class or kind as uLMS (including uLMS itself), it was foreseeable that uLMS or other cancers of that kind would go undetected, resulting in injury to Ms. Hacopian-Armen.

The Court also rejected the argument that this case would result in doctors ordering unneeded tests. In this case, due to Ms. Hacopian-Armen’ symptoms and risk factors, a biopsy was actually necessary and ought to have been performed by a competent gynecologist.

The Court therefore rejected this ground of the gynecologist’s appeal and upheld legal causation.

Factual Causation

The gynecologist also argued that the judge erred in finding that but for his negligence, the injury would not have occurred. Specifically, the gynecologist argued that the trial judge erred in (a) finding that uLMS was likely present at the first meeting in 2009, and (b) in finding that an endometrial biopsy would have likely detected uLMS in 2009.

The Court determined that the standard of review applicable to this case was one of palpable and overriding error, as negligence matters involve questions of mixed law and fact. The trial judge’s treatment of expert evidence was therefore given deference.

The trial judge explicitly found Ms. Hacopian-Armen’s experts to be more reliable than those of the gynecologist. Two experts testified on behalf of Ms. Hacopian-Armen that uLMS was likely present in 2009 when Ms. Hacopian-Armen was first examined by the gynecologist. The trial judge accepted this evidence and rejected the gynecologist expert’s opinion that there was no proof of uLMS being present in 2009. The Court of Appeal found no error with the trial judge’s acceptance and rejection of expert evidence.

The Court of Appeal also found no error with the trial judge’s acceptance of Ms. Hacopian-Armen’s expert opinion that uLMS likely would have been detected had a biopsy been conducted in 2009. When there are conflicting expert opinions presented by the parties, a trial judge is entitled to accept one side’s expert opinion over the other. The trial judge found Ms. Hacopian-Armen’s experts to be “forthright, impartial and consistent” whereas the gynecologist’s experts were described as “less than forthright” and “argumentative.” The trial judge found Ms. Hacopian-Armen’s experts to be more credible and thus accepted their evidence over the gynecologist’s experts.

Conclusion

The appeal was ultimately dismissed, and the trial judge’s finding of liability on the gynecologist was upheld.

Why This Matters

This case demonstrates the significant role experts play in medical malpractice litigation. Due to the technical and complex nature of these cases, judges rely heavily on expert evidence to inform their opinion and ultimate decision of a case. For this reason, it is important that you obtain an experienced personal injury lawyer that is familiar with dealing with experts and complicated cases. Obtaining the right expert for your case and obtaining the best evidence from that expert can be the difference between winning and losing a case.

If you or a loved one have been injured, please contact McLeish Orlando Lawyers LLP.

Tactical Move: Requesting a Mediation Under Section 258.6(1) of the Insurance Act

Written By: Nick Todorovic and Daniel Garas, Summer Student

Can plaintiffs request a mediation to take place even before things, such as discoveries, have occurred? Section 258.6(1) of the Insurance Act, a provision that is not well known, actually provides for mandatory mediations. The provision states the following:

Mediation

258.6 (1) A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect of the claim on behalf of an insured or that receives a notice under clause 258.3 (1) (b) in respect of the claim shall, on the request of either of them, participate in a mediation of the claim in accordance with the procedures prescribed by the regulations.

Failure to comply

(2) In an action in respect of the claim, a person’s failure to comply with this section shall be considered by the court in awarding costs.

DECISION BY JUSTICE FIRESTONE

In the 2018 decision of Thomson v Portelance[1], Plaintiff wished to schedule a mediation prior to examination for discoveries so that the “action [could] be set down for trial as soon as possible in order to advance the litigation expeditiously.”[2] Not surprisingly, the Defendants, in this case, refused to schedule the mediation before the discoveries.

Justice Firestone held that “once a party requests that mediation be scheduled, the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process. The appointment of a mediator and scheduling of mediation is in no way contingent on the completion of discovery.”[3]

When a plaintiff requests that mediation be scheduled under section 258.6(1), the defendant has a “positive obligation to appoint, schedule and conduct such mediation within the timeframes and procedures set forth” under 258.6(1) of the Insurance Act.

IMPLICATIONS

What this means is that if mediation is requested under the relevant provision of the Insurance Act, the parties must proceed to prepare for that mediation – through the appointment of a mutually agreed-upon mediator. A defendant cannot refuse mediation simply because different procedures within the litigation process which typically occur before mediation, have yet to take place.

Requesting mediation under section 258.6(1) will help plaintiffs get over the currently mandatory mediation hurdle much faster and allow claims to be resolved expeditiously, which in turn has the potential of relieving the backlogged court system.

INJURED?

If you or a loved one has been injured, please contact McLeish Orlando LLP for a free consultation.

[1] Thomson v Portelance, 2018 ONSC 1278.

[2] Ibid at para 1.

[3] Ibid at para 11.

New Watermark for Loss of Care, Guidance, and Companionship Damages: Moore vs 7595611

Written By: Patrick Brown and Daniel Garas, Summer Student

In the recent decision of Moore v 7595611[1], the Ontario Court of Appeal upheld an award of $250,000 for loss of care, guidance, and companionship – a new watermark for damages of this kind.

PREVIOUS WATERMARK

The previous high-end for this head of damages was $100,000, established in To v. Toronto (City) Board of Education.[2] This 2001 decision involved a student that was killed during his physical education class when the handball net, on which he was doing pull-ups, fell on his head.[3] Under loss of care, guidance, and companionship, the parents were each awarded $100,000 – an award that would not be interfered with by the Ontario Court of Appeal.[4]

NEW WATERMARK

In the decision released on June 25, 2021, a unanimous Court dismissed the appeal by the numbered company. The Appellant, among other issues raised, challenged the jury award for loss of care, guidance, and companionship ($250,000 to each Plaintiff).

This case arose when the Plaintiffs’ daughter, as tenant, suffered serious injuries which she sustained during a house fire.[5] She was trapped, with no way of escape, and later died at Sunnybrook Hospital. [6] The Plaintiffs decided to commence an action against the Defendants for their negligent conduct.

The numbered company cited To v. Toronto (City) Board of Education, for the proposition that the award of $250,000 was too high.[7] The Appellants specifically quote paragraph 37 of the To decision, where the Court held that the $100,000 award represented the “high end of an accepted range of guidance, care, and companionship damages.”[8]

Despite this, the Court held that the threshold for interfering with a jury award is “extremely high”[9] and in the present case, agreed with the Plaintiffs’ that it should not interfere because the high standard had not been met.[10] The Court further noted that the decision in To stated that “each case must be given separate consideration.”[11]

The Court of Appeal states that ultimately “there is no neat mathematical formula that can be applied to determine the correct amount” when calculating this type of damages.[12]

In summary, Justice Fairburn writes that “while there is no question that the jury award for loss of care, guidance, and companionship, in this case, is high, in light of the factual backdrop of this case, it does not constitute an amount that ‘shocks the conscience of the court’…Nor does it represent an amount that is ‘so inordinately high’ that it is ‘wholly erroneous’ in nature.”[13] (Emphasis is my own)

WHAT THIS ALSO MEANS

Even though this case deals with the loss of a daughter, the amount and decision by the court of appeal should impact all awards relating to loss of care, guidance, and companionship (including loss of spouse, parent, grandparent) as well as adjusting the ranges given by judges at trial.

INJURED?

If you or a loved one has been injured, please contact the lawyers at McLeish Orlando LLP for a free consultation.

 

[1] Moore v. 7595611 Canada Corp., 2021 ONCA 459 [Moore].

[2] To v. Toronto (City) Board of Education, 150 O.A.C. 54, 204 D.L.R. (4th) 704 [Toronto Board].

[3] Ibid at para 3.

[4] Ibid at para 31.

[5] Moore, supra note 1 at para 1.

[6] Ibid at paras 2 and 3.

[7] Ibid at para 22.

[8] Ibid; Toronto Board, supra note 2 at para 37.

[9] Moore, supra note 1 at para 24.

[10] Ibid at para 26.

[11] Ibid at para 27; Toronto Board, supra note 2 at para 29.

[12] Moore, supra note 1 at para 27.

[13] Ibid at para 30.

Fore! Exploring Liability in Golf

Written By: Brandon Pedersen and Cody Malloy, Summer Student

Fore! Exploring Liability in Golf

For golfers in Ontario, it’s our favourite time of year.  After long, cold winters, those of us who love to hit the links with our friends can’t wait to get out and play in the summer heat.  As a matter of fact, the popularity of golf in Ontario is at an all-time high.  Those of us trying to get out on weekends may struggle to find the best tee times due to this increased demand, especially since the COVID-19 restrictions held back the Ontario golf season for a few extra weeks this year.

Although golf is meant to be fun, like any sport, there are risks to our safety.  Whether it’s injuries from errant shots, golf carts, or slip and falls on the course property, there are many liability issues surrounding golf.

Errant golf shots  

With hard golf balls buzzing around golf courses at high speeds, and various levels of ability amongst golfers, golf courses undoubtedly present safety risks.  There are times when golfers don’t have a good sightline to the fairway from the tee box, which causes players up ahead to be out of view.  With holes next to each other, there is also ample opportunity for a shot to stray to an adjacent hole and strike an unexpected player.

In the event, a golfer gets injured with an errant shot, who is liable?

Just like with a lot of legal questions, the answer is: it depends.

There is an implied assumption of risk (volenti non fit injuria) with golf, just like other sporting activities, but that assumption of risk is not unlimited.  Whenever litigation arises out of a sports-related injury, courts will often look at whether a defendant’s conduct is within the natural risks associated with the sport.

In Hayter v. Bezanson, 2009 NSCA 113, the defendant golfer was found liable when his errant drive struck another golfer and seriously injured his wrist.  The Court found that the defendant’s behaviour was not within the natural risks of the sport because the defendant took a running “Happy Gilmore” shot while under the influence of alcohol.  The defendant did not act with the reasonable care of a golfer.  The Court noted how golf shots are meant to be executed standing still, and the defendant’s behaviour, therefore, was not reasonable in the circumstances.

In Liang v. Allen, 2003 BCPC 95, the defendant golfer was found not liable after his errant shot bounced off a tree and struck the plaintiff in a nearby parking lot.  The Court found that the defendant had acted within the standard of a reasonable golfer because he did not intend to hit the plaintiff, and errant shots out of the rough can happen to any golfer.  Further, the Court noted how someone in the defendant’s playing group yelled “fore”, and the parking lot in which the plaintiff was standing was prone to flying golf balls.

In Matharu v. Nam, 2007 BCCA 268, the defendant golfer did not yell “fore” before his errant shot injured the plaintiff, but the Court held that the defendant golfer was not liable for the plaintiff’s injuries.  The defendant, an experienced golfer, took a shot that intended to clear trees near the green, but instead bounced off the trees and towards a nearby tee box, striking the plaintiff golfer.  The Court found that it was not reasonable to expect the defendant to yell “fore” in the circumstances.  The defendant had made the shot on the same hole in previous rounds, and the judge found it to be reasonable that the defendant expected the shot to clear the trees and continue towards the green from his sightline.  The Court also noted how it’s not reasonable to expect golfers to yell “fore” every time they lose sight of the ball.

Occupiers’ liability  

Hazards arising from golf carts or slip and falls give rise to liability for golf courses.  Golf carts do not require insurance to operate under the Off-Road Vehicles Act.  However, golf carts still present a danger to golfers.  If a golf course is negligent in maintaining a cart path, or do not provide warning signs to slow down on steep hills, a golf course could be liable under the Occupiers’ Liability Act (OLA).

Section 3(1) of the OLA states:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Section 3(2) of the OLA further clarifies:

The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

A “condition” of a golf course giving rise to liability would be uneven landscaping or a puddle in the clubhouse, for example.  An “activity” of a golf course would be the act of driving a golf cart, or the game itself.  The OLA spells out the duties owed by an occupier to their visitors in ensuring their property is reasonably safe.

Although golf courses are kept in pristine condition, they present various risks to golfer safety.  Always pay attention when someone in your group taking their shot.  Ensure you are out of their intended shot path, and even if you are, be on alert in case of an errant shot.  Also, ensure you are able to hear any warnings of “fore” from nearby groups in case one of their shots goes astray.  Wet or uneven walkways on the course can be slippery when wearing golf shoes.  Make sure you take due care in navigating your way through the clubhouse.  Lastly, make sure to not drive at an excessive speed when driving a golf cart.  There are many obstacles and other golfers out on the course, and we all need to do our part to ensure the safety of ourselves and others.

If you have been injured on a golf course, McLeish Orlando is here to help.  Please contact us for a free consultation.  A lawyer at McLeish Orlando will evaluate your case and determine how we can best serve your needs.

Haines v. Aviva Insurance Company of Canada, 2021 ON LAT 20-003388/AABS

Written By: Salvatore Shaw and Emma Pedota, Summer Student

McLeish Orlando celebrates its achievement in the recent decision Haines v. Aviva Insurance Company of Canada[1], where Salvatore Shaw and articling student, Ryan Marinacci, were successful at the Licence Appeal Tribunal (LAT) in defeating the insurance company’s claim that our client’s right to claim accident benefits was statute-barred.

The Applicant was injured in a motor vehicle accident in February of 2016 and applied for attendant care benefits (ACBs). The Applicant was initially afforded ACBs from March to November of 2016, however, his insurer later terminated these benefits on the basis that they were neither reasonable nor necessary. On taking over the file from a previous lawyer in 2019, McLeish Orlando was successful in January of 2020 in having the Applicant deemed catastrophically impaired (CAT).

Following the CAT determination, our office submitted an Assessment of Attendant Care Needs (“Form-1) seeking post-104 week ACBs on behalf of the Applicant. This benefit was denied, and the insurer relied on its refusal letter from 2016 that terminated attendant care benefits to the previous lawyer to refuse payment of the benefits and claimed that the time to dispute the denial was now statute-barred. McLeish Orlando applied to the Licence Appeal Tribunal (LAT) on behalf of our client seeking payment of these denied benefits. The parties agreed to have the issue of whether the Applicant’s claim was statute-barred as a result of the previous denial determined as a preliminary issue.

The Respondent’s Submissions

In their submissions, the Respondent maintained that the widely cited case of  Tomec v. Economical Mutual Insurance Company can be distinguished from the current case as Tomec involved a claim for ACBs and housekeeping benefits which were “pre-emptively” denied, whereas the Applicant’s denial of ACBs, in this case, was not pre-emptive but after payment of the benefit and therefore the earlier denial should stand and the limitation period to dispute the denial now expired.

The insurance company raised this novel argument which they believed took this case outside the scope of Tomec. The Respondent’s relied on the case of R.M v. Certas Home and Auto Insurance[2] which stands for the proposition that when a benefit is not pre-emptively denied, discoverability does not apply, and the date of the denial is fixed. The Respondent’s argued that the Applicant’s catastrophic determination did not alter the decision to deny the benefit as it is inconsequential to the decision.

In attempting to further distinguish Tomec from the case at bar the Respondent’s claimed that unlike in Tomec, the Applicant’s condition in the present matter did not worsen, even though a catastrophic determination was made. They relied on the reduced ACB rate from 2016 to 2020 to suggest that there was an improvement in the Applicant’s injuries and needs, and therefore a claim cannot be said to have been “discovered” when the Applicant is doing better than he was at the time of the denial.

The Applicant’s Submissions

McLeish Orlando maintained that the Applicant was not statute-barred from proceeding with his claim for post-104 week ACBs on account of the fact that he was not eligible for these benefits until he was declared catastrophically impaired. The Schedule provides that only individuals who have been deemed catastrophically impaired are eligible for ACBs past the 104-week mark. Like in Tomec, without the designation of catastrophic impairment, the applicant would not have been entitled to post-104-week ACBs.

McLeish Orlando further submitted that the Applicant was not eligible for post-104 week ACBs at any point before his post-CAT Form 1 was submitted to his insurer on February 13, 2020. Thus, the Respondent’s refusal to pay post-104-week ACBs on the basis of its pre-104-week denial, at which time the Applicant was not deemed catastrophically impaired, is inconsistent with Tomec and incorrect.

The Decision

Adjudicator Jesse A. Boyce held that the Applicant was not statute-barred from proceeding with his claim for post-104-week ACBs as he was not qualified for this benefit until he was declared CAT. In keeping with the binding direction provided by the Court of Appeal in Tomec, the Adjudicator found that the rule of discoverability did apply to the Applicant’s claim and should therefore be allowed to proceed.

The Adjudicator subsequently held that, contrary to Aviva’s submissions, its 2016 denial of pre-104- week ACBs clearly pre-dates the applicant’s eligibility, so its acceptance of the applicant’s CAT impairment was consequential to the denial as the applicant was not eligible for the benefit he is now claiming. Lastly, the Adjudicator rejected Aviva`s assertion that the Applicant`s condition improved following the 2016 denial as he was deemed catastrophically impaired in January of 2020.

The Adjudicator further noted that had the rule of discovery not applied in this case, he would have exercised the discretion afforded by s. 7 of the License Appeal Tribunal Act to extend the limitation period. S. 7 allows the Tribunal to extend a limitation period if it is satisfied that there are reasonable grounds for granting such relief, based on four factors: a bona fide intention to appeal; the overall delay; prejudice to the parties; and, the merits of the claim. On the first factor, the Adjudicator found that it was impossible for the Applicant to have had the intention to appeal the denial of a benefit he was not yet eligible for. With regards to the overall delay, the Adjudicator rejected Aviva`s argument that the delay was a total of four years as the Applicant applied to the Tribunal within a month of receiving his denial. Finally, the Adjudicator Boyce held that there would be limited prejudice to Aviva if the limitation period was extended, and the merits of the Applicant`s claim were obvious on account of the Applicant`s CAT designation.

Order

The Applicant was not statute-barred by s.56 of the Schedule to advance his claim for ACBs. The parties were asked to contact the Tribunal to arrange a case conference on how to proceed with this matter.

The lawyers at McLeish Orlando played a critical role in this decision and understand the nuances of limitation periods and how they can affect the availability of benefits. By confirming that the Respondent insurer was incorrect in its interpretation of the law, our lawyers will continue to represent our client to ensure he receives the full compensation he deserves.

 

[1] Haines v. Aviva Insurance Company of Canada, 2021 ON LAT 20-003388/AABS.

[2] R.M v. Certas Home and Auto Insurance, 2020 CanLII 87925.

 

Jajjo and Danno v. Singh, 2021 ONSC 4269

Written By: Nick Todorovic and Cody Malloy, Summer Student

Jajjo and Danno v. Singh, 2021 ONSC 4269

In a June 14, 2021, Superior Court decision, Master Graham held that the defendant was responsible for the costs of cancelled defence medical examinations of the plaintiffs after the plaintiffs refused to sign the medical consent forms.

After the plaintiffs suffered injuries from a motor vehicle collision, the defendant arranged for the plaintiffs to undergo defence medical examinations by Dr. Erin Boynton, an orthopaedic surgeon.  Before arriving at the doctor’s office, plaintiffs’ counsel had advised them not to sign any documentation.  Upon arrival at the examining doctor’s office, the plaintiffs were asked to sign medical consent forms.  The plaintiffs attempted to contact their counsel but were unable to do so, and the plaintiffs were asked to leave.  Defence counsel later received invoices for the cancelled appointments, and the defendant brought a motion to recover these costs from the plaintiff.

The defendant argued that the plaintiffs should not have been surprised by having to sign medical consent forms for the examination. [1] The defendant further argued that the plaintiffs had previously signed consent forms for accident benefits psychological examinations, the doctor’s form was straightforward, the doctor was required to sign an Acknowledgment of Expert’s Duty (Form 53), and the plaintiffs’ counsel should have advised the plaintiffs they would be required to sign a medical consent form. [2]

The plaintiffs argued that they had never attended defence medical examinations before, and they thought the examinations were being done for the benefit of the defendant, and they wanted legal advice before signing the medical consent forms. [3] The plaintiffs felt that the brevity of the doctor’s medical consent form was irrelevant because of their unfamiliarity with the adversarial litigation process, and the examining doctor could have forwarded the consent forms to the plaintiffs’ counsel for review beforehand. [4]

Master Graham pointed to the relevant section of the Courts of Justice Act for the case:

[23] The relevant Courts of Justice Act provisions with respect to defence medical examinations are s. 105 (2) and (5):

105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(5)  Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

Master Graham referred to Coll v. Robertson, 2020 ONSC 383, which stated that it is appropriate, for the purposes of a defence medical examination, to require a plaintiff to sign a consent form before the examination because the examination is “intrusive” and it is essential that the consent is reduced to writing. [5]

Master Graham dismissed the defendant’s argument regarding the plaintiffs previously signing consent forms for accident benefits psychological examinations because the psychological examination would determine “what if any psychological treatment the plaintiffs’ first-party insurer should pay for”, whereas the defence medical examinations were “in the context of an adversarial claim for damages”. [6]

Master Graham also dismissed the defendant’s claim that the consent form was straightforward due to its brief nature because the consent form contained language that was not clear, and therefore not reasonable to expect the plaintiffs to sign the forms without consulting with their counsel. [7] The Court also dismissed the defendant’s argument that the examining doctor would be required to sign a Form 53 because the plaintiffs would not have understood the content of the form. [8]

Importantly, Master Graham placed the onus on the defendant to address the requirement for consent for their medical examinations. [9] Master Graham stated that the defendant should not “simply assume that the plaintiffs, on arriving at the defence medical appointment, will sign a document prepared by the opposing expert that they have never seen before.” [10]

Master Graham summarized his conclusion as follows:

[36] I accept that the plaintiffs’ concerns about being asked to sign documents at the defence physician’s office immediately before their examinations were reasonable. This is not to say that there was anything sinister in Dr. Boynton’s request that the plaintiffs sign the forms, but rather that the plaintiffs should have been given the opportunity to seek the guidance of their lawyer before doing so. If the defence expert was going to require the plaintiffs to sign documents prior to conducting the defence medical examinations, it was incumbent on the defendants’ counsel to give the plaintiffs an opportunity to review those documents with their counsel before signing them.

Master Graham ultimately dismissed the defendant’s motion, holding that the plaintiffs “acted reasonably in refusing to sign Dr. Boynton’s consent forms without the opportunity to consult counsel prior to doing so.” [11]

 

[1] Jajjo and Danno v. Singh, 2021 ONSC 4269 (CanLII) at para 9.

[2] Ibid at paras 12-15.

[3] Ibid at para 17.

[4] Ibid at paras 20-21.

[5] Ibid at para 27.

[6] Ibid at para 30.

[7] Ibid at para 31.

[8] Ibid at para 32.

[9] Ibid at para 33.

[10] Ibid.

[11] Ibid at para 37.

Fratarcangeli v. North Blenheim Mutual Insurance Company: the LAT Can Extend the SABS Two-year Limitation Period

Written By: Lindsay Charles and Cody Malloy, Summer Student

Fratarcangeli v. North Blenheim Mutual Insurance Company: the LAT Can Extend the SABS Two-year Limitation Period

In the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997, released on June 15, 2021, the Court held that the LAT has the power, under section 7 of the LAT Act, to extend the two-year limitation period under section 56 of SABS.  This decision grants the LAT broad power in allowing for claimants to bring disputes before the tribunal outside of the two-year limitation period.

For reference, section 7 from the LAT Act reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a)  extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b)  give the directions that it considers proper as a result of extending the time.

Section 56 of the SABS reads:

An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. 

The Court noted that the LAT “has exclusive jurisdiction under s. 280 of the Insurance Act to resolve any disputes ‘in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled’ “ [1]

The main issues of this case surrounded the Court’s statutory interpretation of the LAT Act:

[22]      There are two issues regarding whether s. 7 of the LAT Act confers jurisdiction to extend the two-year limitation period in s. 56 of the SABS:

(1) whether s.7 has no application to disputes concerning the denial of benefits under the SABS because the limitation period is fixed under regulation and not “by or under any Act” within the meaning of s. 7; and,

(2) whether s. 7 does not apply because an application to the LAT for the resolution of a dispute under the SABS is not a “notice requiring a hearing” within the meaning of s. 7.

Issue 1 – “by or under any Act”

The insurers made three main arguments that the LAT can’t extend the two-year limitation period under SABS:

  • SABS is a regulation, not an “Act” [2]
  • The “paramountcy” argument: the specific language of section 56 of SABS conflicts with and is intended to prevail over the broad language of section 7 of the LAT Act [3]
  • The transfer of SABS disputes from the FSCO to the LAT was to promote efficiency, and extending the two-year limitation period under section 56 of SABS would be contradictory [4]

The Court said the first argument was not persuasive because regulation is made “under an Act”, which in this case is the Insurance Act. [5] Further, if the Legislature had intended for section 7 of the LAT Act to not apply to the Insurance Act, they would have explicitly said so. [6]

The insurers’ second “paramountcy” argument failed because paramountcy applies to conflicts between federal and provincial statutes, whereas here the Court is assessing two provincial statutes or statutory schemes. [7] Further, there is no conflict between SABS and the LAT Act because:

“The Insurance Act sets up a framework for benefits and confers the power to make regulations implementing that framework. The regulations (the SABS) set out the details for the benefits, including the resolution of disputes about those benefits, which in turn include a two-year limitation after benefits are denied. The LAT Act sets out additional rules about proceedings before the LAT, including s. 7, which permits the LAT to extend any limitation imposed by or under any Act. Thus, the LAT Act expressly contemplates a circumstance in which, despite any limitation in another Act, such as the Insurance Act, the limitation may be extended by the LAT.” [8]

Lastly, the Court found the insurers’ inefficiency argument to not be persuasive.  The transfer of cases to the LAT was more about fairness and accessibility to dispute resolution, rather than efficiency. [9] The Court also noted that the Legislature knew about section 7 when they authorized the transfer to the LAT. [10] The Court also reasoned that the insurers put forward no evidence that allowing the LAT to extend the section 56 limitation “impairs timely and efficient resolution of disputes. This is simply a conclusory assertion put forward by the insurers without any empirical support.” [11]

Issue 2 – “notice requiring a hearing”

One of the insurers argued that “the Insurance Act and the SABS refer to an ‘application’ to resolve disputes between insurers and insureds with respect to an insured person’s entitlement to statutory accident benefits” whereas section 7 of the LAT Act refers to a “notice of hearing”. [12]

The Court dismissed the insurer’s argument because the insurer submitted no evidence distinguishing between an “application” and “notice of hearing”. [13] Further, the Court noted how the “LAT treats SABS applications as the ‘commencing document’ for a proceeding which entitles an applicant to a hearing”. [14] Lastly, the Court explained how the LAT hears appeals under other legislative schemes that use “notice requiring a hearing”, “appeal”, and other languages that do not refer to an “application.” [15]

 

[1] Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 7.

[2] Ibid at para 31.

[3] Ibid at para 35.

[4] Ibid at para 36.

[5] Ibid at para 41.

[6] Ibid at para 42.

[7] Ibid at para 49.

[8] Ibid.

[9] Ibid at para 52.

[10] Ibid at para 53.

[11] Ibid at para 54.

[12] Ibid at para 56.

[13] Ibid at para 59.

[14] Ibid.

[15] Ibid at para 60.