Recently, the Financial Services Regulatory Authority of Ontario (FSRA) published its 2021 Automobile Insurance Indexation Amounts Guidance. This Guidance, effective January 1, 2021, establishes the amounts related to insurance claims that are subject to indexation for 2021. Indexation is tied to the Canadian Consumer Price Index (CPI) and varies year to year.
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The issue of whether Ontario casinos can be found liable for profiting from losses of problem gamblers is undecided at law. This finding would require the Anns/Kamloops test to be met, such that the circumstances disclose reasonably foreseeable harm and sufficient proximity between the problem gambler and the casino, without the presence of residual policy reasons for negating a duty of care. In 2016, the Court of Appeal for Ontario overturned a summary judgement decision which struck a claim on grounds that the provincial regulator did not owe a duty of care to problem gamblers. Discussed below, the decision has had wide implications and may lead to a novel duty of care in this province.
In A.M. v the Dominion of Canada General Insurance Company, 2019 CanLII58194 (ON LAT), a dispute arose over the A.M, the applicant’s Income Replacement Benefits (IRBs). He was injured on December 21, 2017 when his vehicle was rear-ended. He applied for “no-fault” accident benefits including IRBs under the Statutory Accident Benefits Schedule (SABS) from his auto insurer, Dominion.
In Applicant v. Aviva Insurance Canada (2018 CanLII 110921), a recent Licence Appeal Tribunal (LAT) decision, the applicant was struck by another car while making a left hand turn on June 30, 2016. Within two days of the accident, he reported back and left leg pain and began receiving physiotherapy. His employer provided accommodation for his injuries that allowed him to continue working. He received accident benefits coverage from his insurer, Aviva subject to the $3500 cap under the Minor Injury Guideline (MIG). Subsequent treatment plans for physiotherapy, chiropractic and massage were denied and the applicant commenced a LAT proceeding to challenge the MIG designation and seek payment of the disputed plans.
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Many of you do not know that our legal system is prejudiced against plaintiffs who are injured in car accidents. In response to pressure from the Insurance industry, our Insurance Act has built-in relief for defendant insurance companies from paying damages to plaintiffs. Briefly, damages under a certain amount are subject to an automatic deductible which stays in the defendant insurer’s pocket. So, if a jury awards you $70,000 for pain and suffering, you will only receive $40,000. The jury is not told that this happens.
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Generally, the June 1, 2016 Amendments to the Statutory Accident Benefits Schedule have made it more challenging for car accident victims to qualify for a determination of catastrophic impairment (catastrophic). The declared legislative intention is that the amendments were introduced to promote clarity in the catastrophic criteria, with the ultimate goal of providing more efficient and cost-effective resolution of these claims. However, from the claimants’ perspective, these goals appear one-sided in favour of the insurance industry. With fewer claims leading to a catastrophic finding, insurer payouts are reduced. At the same time, the greater challenges to a successful catastrophic determination operate as a disincentive to claimants, their care providers and legal representatives.
An ongoing source of frustration for seriously injured car accident victims concerns the refusal by their accident benefits insurers to fund assessments for a determination of Catastrophic Impairment (catastrophic). The Statutory Accident Benefits Schedule (SABS) sets out the obligations on insurers to pay for assessments. Typically, assessments that relate to a benefit or payment are funded out of the rehabilitation and treatment limits under the policy- either $50,000 (or $3,500 if a claimant has been categorized under the Minor Injury Guideline (MIG)). This is set out in s. 14, 15 and 18 of the SABS. However, s. 25 of the SABS specifically requires an insurer to pay reasonable fees charged for preparing an application for determination of catastrophic impairment under s.45, including any assessment or examination necessary for that purpose.
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If you have been seriously injured in a motor vehicle accident, it can be difficult performing routine tasks that you used to take for granted. You may feel fatigued, frustrated and overwhelmed. At the same time your insurance company will be pressuring you to return to work and resume your daily activities.
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In the recently released Costs decision, Stewart et al. v. Wood et al. [2019 ONSC 3931] Justice Tausenfreund was required to assess costs and disbursements in a settled personal injury lawsuit.
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On July 19, 2019, the Ontario Court of Appeal released Stegenga v Economical Mutual Insurance Company 201 ONCA 615). The central question on appeal concerned the jurisdiction of the Licence Appeal Tribunal to hear a bad faith claim against Economical for its handling of the plaintiff, Morgan Stegenga’s accident benefits claim under the Statutory Accident Benefits Schedule [SABS] in light of the 2016 amendments to the SABS.
