A recent decision by the Ontario Superior Court of Justice opens the possibility of making social hosts of parties responsible for the actions of their guests.
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Concussions (aka: mild Traumatic Brain injuries) are in the news a lot in sports-related injuries- especially hockey and football as high-profile athletes suffer repeated head injuries that can shorten their careers and permanently impact their lives. As a result, more attention and money has been devoted recently to understanding the diagnosis and treatment and long-term effects of concussions.
Mr. Cowdrey was involved in a serious motorcycle accident on September 15, 2013. He was riding alone just after midnight in Innisfil, Ontario when he struck a pothole and was thrown from his motorcycle. He suffered life-threatening injuries including a serious traumatic brain injury and extensive physical injuries including the loss of his left eye. He was airlifted to Sunnybrook Hospital in Toronto and placed in a medically induced coma for 2 weeks. As a result of the severity of his injuries, he was deemed catastrophically impaired pursuant to the Statutory Accident Benefits Schedule (SABS) under the Insurance Act.
Read More about Accident Benefits Updates: Motorcycle Accident
G.P. v. Cumis General Insurance Company, a recent claim before the Licence Appeal Tribunal (LAT), concerned G.P.’s application for a determination of catastrophic impairment and several denied treatment plans. G.P. had been injured in a motor vehicle accident in November 2013. She sought treatment from her automobile insurer, Cumis, under the Statutory Accident Benefits Schedule (SABS). After agreeing to fund her initial treatment, Cumis denied several treatment plans. G.P. commenced an application to dispute the denials with the LAT. Around the same time, she submitted an OCF-19 (“Application for Determination of Catastrophic Impairment” or “CAT application”) prepared by her physician, Dr. Marciniak, who stated the opinion that she suffered from an impairment or combination of impairments that resulted in 55 per cent or more impairment of the whole person (WPI) and therefore met the test for catastrophic impairment under the SABS.
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In Pucci v. Wawanesa (2019 ONSC 1706), a recent Ontario Superior Court of Justice decision, the court weighed in on causation in a catastrophic impairment (catastrophic) claim. The plaintiff claimant, Brittany Pucci, had been injured in a car accident on June 16, 2013. She suffered various physical injuries and psychological impairments following the accident. Her insurer, Wawanesa paid for her accident benefits including income replacement benefits (IRBs), attendant care (AC) and housekeeping and home maintenance (HKHM) as required under the Statutory Accident Benefits Schedule (SABS) until her non-catastrophic limits were exhausted. Following termination, she applied to the Court for declarations that she had suffered a catastrophic impairment from a mental or behavioral disorder (MBD), and that she was entitled to ongoing IRBs, HKHM and AC benefits.
One of the biggest obstacles facing personal injury plaintiffs in the pursuit of their claims is the very real threat of exposure to a large costs award against them if they are not successful in the lawsuit. Typically, a judge will order the unsuccessful party to pay a portion of the victor’s legal costs. The rationale for this is that the unsuccessful party should not have put the other party to the expense of a trial and should have settled the claim. This is fine if the plaintiff is successful. However, it works both ways. If a plaintiff either is not successful at trial or is awarded less by a jury than the defendant’s insurance company offered to pay in settlement, the plaintiff will typically owe the insurer a portion of its costs.
In H.S. and Allstate Insurance (2018 CanLII 132563), the parties held a Preliminary Issue hearing before Adjudicator Deborah Neilson of the Licence Appeal Tribunal (LAT). The Applicant, H.S. was seriously injured in a car accident on August 18, 2016. She submitted an application for Determination of Catastrophic Impairment (catastrophic) to the Respondent, Allstate, her automobile insurer. Allstate rejected the application. It claimed that she had used the form for accidents that occurred before June 1, 2016, whereas her collision occurred after June 1, 2016, when the current version of the Statutory Accident Benefits Schedule (SABS) came into force. The significance of this distinction involved both the criteria for meeting the catastrophic definition and the amount of benefits available if she was successful.
Read More about ACCIDENT BENEFITS UPDATE: Which CAT definition applies to transitional policies?
In Applicant and Aviva General Insurance, the Applicant sought Income Replacement Benefits (IRB) up to 104 weeks post-accident and ongoing. He had been injured on August 10, 2015, and received IRBs from Aviva, his automobile insurer, from August 15, 2016 until November 15, 2016. Aviva scheduled several medical examinations of the applicant during this period. Ultimately, it terminated his IRBs based on these examinations, which concluded that the applicant was able to perform the essential duties of his employment.
Read More about Accident Benefits Update – LAT Considers Causation in IRB Claim
Concussions are often referred to as invisible injuries because they are hard to detect. Fortunately, over the years there have been some advances in medicine that enable those in the medical field to detect even the tiniest signs of injury in the brain.
Read More about How to Prove Concussion in Personal Injury Cases
Early this year, the government asked for public input into the future of auto insurance in Ontario. We were cautiously optimistic that they wanted genuine participation from the people most affected by any reforms. However, now that the “Blueprint” has been published as part of the 2019 Budget, it is clear the Liberals have little interest in putting drivers first.
Read More about Putting Drivers First? The Government’s Blueprint for Insurance Reform Revealed
