Tag Archives: motions

60-Day Failed Mediation Motions: Insured Victims Win Decisively

There is good news to report to anyone who has unjustifiably been denied access to any statutory accident benefit that they have applied for or has had to deal with a dispute over the determination of catastrophic impairment.

Most people reading this blog will be familiar with the dispute resolution procedure under the Insurance Act.  Most people will recognize that the procedure is badly broken.  Before a dispute can proceed to Court or to a binding Arbitration, a mediation must be held at the Financial Services Commission of Ontario.  If the mediator is unable to resolve the dispute, only then are you able to proceed to a final determination of the issue.  The difficulty is that mediations are being scheduled more than a year from the filing of an application in many instances.

Now for the good news.  Justice Sloan ruled on February 8, 2012 in the case of Cornie v. Security National, that section 19 of the Dispute Resolution Practice Code requires FSCO to conduct a mediation within 60 days of the filing of the Application.  If FSCO is unable to schedule a hearing within this time frame, the mediation is deemed to have failed and the claimant can proceed to a final determination.

In rejecting the defence arguments in the case, Justice Sloan says “The insurance companies take the position that the accident victims must simply wait.  To entertain this argument could mean that an accident victim might have to wait 100, 300 or 500 days for mediation.  I find that submission preposterous.”

Insurers Must Advise Insured Persons of Rights When Refusing Benefits

When an insurance company denies accident benefits to an insured person, the insurer must advise the insured person of his or her right to dispute the denial and of the most important points in the process.    A recent court decision has confirmed that if an insurer falls short of this requirement, it will not be able to rely on the limitation period that begins with that denial.

In Yifru v. Certas Direct Insurance Company, Certas Insurance denied Ms. Yifru’s claim for non-earner benefits on June 23, 2003.   Certas advised Ms. Yifru that she could dispute the decision by applying for mediation within two years of the denial.  However, it did not advise her that she had any further options if she and Certas failed to settle her claim at mediation.

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When is a Settlement Truly a Settlement?

One of the most common ways to settle a lawsuit is for the parties to attend a mediation.    In Lynne Boulanger’s lawsuit against The Great-West Life Assurance Company, the parties did exactly that.  At the end of the mediation, their lawyers drafted a “Settlement Agreement”.

As part of the Settlement Agreement, Ms. Boulanger agreed to sign a release “in a form reasonably satisfactory to counsel for both sides.”  At the mediation, Ms. Boulanger read or had the Settlement Agreement read to her and understood its contents.

About a month after the mediation, Ms. Boulanger asked her lawyer to get Great-West Life to approve the release of settlement funds and the reinstatement of her long-term disability benefits, while the parties worked out other issues in the agreement.  Great-West Life agreed.

Shortly afterward, Ms. Boulanger had a falling out with her lawyer, and went on to represent herself.  She took the position that the claim had not been entirely resolved  and did not sign the release.  Specifically, she alleged that the issues of punitive damages and damages for mental distress still needed to be resolved.

Great-West Life brought a motion for an Order dismissing the lawsuit.

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New Bill 198 Threshold Decision Sheds Light on Interpretation

Since the defining regulation for the Bill 198 threshold was passed in October 2003, it has been the subject of a much debate.  There have been surprisingly few decisions to provide guidance and new decisions are always welcome.

Only six days into the new year, Madame Justice Milanetti released a new decision that sheds further light on the interpretation of the threshold under Bill 198.  It suggests that courts are not interpreting the Bill 198 threshold as a substantial departure from the previous threshold under Bill 59.

Valdez v. Clarke involved a threshold motion brought by a defendant at the end of a three-week jury trial.  Mr. Valdez had been involved in three motor vehicle collisions and brought a lawsuit against the defendant driver in the second collision.  The jury awarded Mr. Valadez $25,000 in general damages for pain and suffering and loss of enjoyment of life.   Because the deductible on general damages is $30,000 under Bill 198, Mr. Valdez would not end up receiving any compensation.

Despite the absence of any financial recovery for Mr. Valdez, Justice Milanetti agreed to hear the defendant’s threshold motion “given the paucity of Bill 198 law on threshold thus far.”
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Is an Insurer’s Examiner an “Expert”?

“When is an expert not treated as an expert?”  That was the question Ontario Superior Court judge Thomas Lederer asked in the case of Babakar v. Brown .

The Babakars were involved in a motor vehicle collision and were insured by State Farm.  They applied to State Farm for accident benefits.  At some point, State Farm required the Babakars to attend insurer examinations under section 42 of the Statutory Accident Benefits Schedule with psychologist Dr. Hoath, orthopaedic surgeon Dr. Kadish, and physiotherapist Mr. Diaz.  Based on the reports of Dr. Hoath, Dr. Kadish and Mr. Diaz, State Farm terminated the Babakars’ accident benefits.

at the examination for discovery of State Farm’s representative, the Babakars’ lawyer askedState Farm to make the following inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz:

1.                  To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

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A Plaintiff’s Facebook Account is Not Automatically Producible

A recent decision provides a new perspective on when a plaintiff’s Facebook profile must be produced in a personal injury action.  In Schuster v. Royal & Sun Alliance Insurance Company of Canada, Royal & Sun Alliance (RSA) brought a motion – without notice to the plaintiff- for an Order requiring the plaintiff, Karen Schuster, to preserve her Facebook profile.  RSA indicated it would then bring a second motion, on notice to the plaintiff, to have the plaintiff produce her profile.

Justice Price heard the motion and his decision provides some interesting comments regarding the nature of Facebook and when the contents of a plaintiff’s Facebook profile should be ordered produced.

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Court Denies Plaintiffs’ Motion to Set Aside Dismissal

In a decision released last week, Master Dash denied a motion by plaintiffs to restore their action after it was dismissed for delay by the court Registrar.   The case arose out of alleged medical malpractice and Master Dash acknowledged that the plaintiff had “suffered very serious injuries.”

Master Dash cited the following 4 factors that must be considered and weighed together with any other relevant factors:

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