The Beard Winter Defender is a regular publication of insurance defence related subjects. Author and lawyer, Cary N. Schneider and the Beard Winter LLP Insurance Defence Litigation Group welcome your questions and comments about any insurance litigation matters.
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Does Chronic Pain Fall Within the Minor Injury Guidelines?
October 2018 | Vol. 12, Issue 13 (page 1-4)
It is evident that the Licensing Appeal Tribunal (“LAT”) decisions place a high onus on a claimant to prove that the injuries take him/her outside of the Minor Injury Guidelines (“MIG”). Adjudicators are not accepting at face value assertions that a claimant has “chronic pain” unless this is supported by credible evidence.
Nearly all of the decisions for the first 1.5 years of the LAT’s inauguration were detrimental to claimants, we can see that the trend is now changing.
Recreational Cannabis Legalization Part 1: Homeowners Insurance
October 2018 | Vol. 12, Issue 13 (page 5-8)
The legalization of recreational marijuana will have far-reaching impacts across many different lines of insurance, and will likely take years to fully measure and understand. Insurers must consider the consequences that legalization will have on their current standard policies including amendments to the wording to reflect the new law, and potential variations in the requirements across the country.
Discoverability, Contribution and Indemnity’s New Best Friend
October 2018 | Vol. 12, Issue 13 (page 9-11)
There has been a recent shift in the court’s approach to applying the discoverability principle as set out in the Limitations Act to claims for contribution and indemnity.
While earlier cases applied a strict two-year limitation window to Defendants advancing crossclaims or third-party claims seeking contribution and indemnity, recent case law has adopted a different approach.
Mandatory breach reporting in Canada: What it means for cyber insurers
April 2018 | Vol. 12, Issue 2
There is nothing like a deadline that motivates people to take action. In Canada, the due date for organizations to have their privacy compliance protocols in place, or risk severe consequences, has just been announced to be November 1, 2018. As of that date, it will be mandatory for organizations to disclose to both their customers and the privacy commissioner when they have suffered a data breach that results in the possibility of a “real risk of significant harm”.
Cyber Hacking And Security – Consequences For Canadian Companies And Insurers
January 2018 | Vol. 12, Issue 1
The prevalence of cyber-predators unleashing new and comprehensive hacks that infiltrate a company’s network grows seemingly unabated. Front page news stories reveal that reputable billion-dollar organizations have fallen victim to cyber-attacks and that our personal information may be in the hands of unsavoury characters. The question is not “if” a company will be subject to a cyber-attack but rather “when”.
Liability In Motor Vehicle Accident Cases: Left-Hand Turns, Pedestrian Knock-Downs, and Rear-End Collisions
November 2017 | Vol. 11, Issue 3
The analysis and investigation of liability in a motor vehicle accident case are crucial to the evaluation of every claim. Any percentage of liability that can be attributed to the plaintiff or co-defendant results in a direct financial saving to your particular claim. There is no set law that provides us with an unqualified answer as to apportionment of liability as each case is fact specific. With that being said, past precedent provides us guidance for the principles that are important to consider when analyzing liability.
The Examination Under Oath: Underutilized and Under-Appreciated (Updated and Revised)
August 2017 | Vol. 11, Issue 2
The evaluation of any personal injury claim primarily revolves around a question of credibility. The impact of the injuries suffered by one claimant is often significantly different compared to the same injuries suffered by another claimant. There is no scientific-medical diagnostic tool that can predict to what extent one person’s injuries will result in a long-term disability while as someone else will suffer a temporary health setback. At the dispute stage we are often left to investigate a claim on the basis of competing reports from medical doctors; some of which are well known for their biases. How a claimant presents on paper is often very different from their representations in person. There really is no better substitute than meeting a claimant in person, asking her the tough questions, and getting a sense as to how she will present in front of a decision maker.
A Year In Review – How The LAT Has Interpreted The MIG
March 2017 | Vol. 11, Issue 1
The Licensing Appeal Tribunal (“LAT”) has been in existence for one year and decisions are being rendered at a fast and furious pace over the past few months. As we know, this is a new system and very much different from what we are accustomed too in many key respects. It is difficult to predict what an Adjudicator will consider important to their decision making in terms of the influence of past law and evidence. For these reasons, it is important to closely review the decisions of the Adjudicators to analyze any trends and thought processes.
What You Need To Know About Non-Earner Benefits (Now and Into the Future)
October 2016 | Vol. 10, Issue 3
Since the changes to the Schedule came about on September 1, 2010, claims for non-earner benefits have skyrocketed. The increase is not as a result of claimants’ suffering more substantive injuries than ever before, but it is because of a narrowing of the types of benefits available to claimants.
Insurers should be on the look-out to assess these claims substantively and procedurally right from the outset.
Deduction of Collateral Benefits: Matching “Apples to Apples” (Tort)
July 2016 | Vol. 10, Issue 2
Recent decisions by all levels of Court in Ontario support the concept that any listing of income replacement benefits, attendant care benefits, and medical benefits are deductible from a Jury award; regardless whether this is a past or future benefit. This new case law should be utilized by insurers to affect more reasonable settlements and to argue post-trial regarding the reduction of any Jury Awards.
The Upcoming Dramatic Impact Of The LAT On Accident Benefits, “The Times They Are A Changing”
February 2016 | Vol. 10, Issue 1
Amid controversy and much consternation among the personal injury bar, the Licensing Appeals Tribunal (LAT) is coming into effect on April 1, 2016. It is clear from a review of the procedures and practices in place that the upcoming changes will be significant and require a clear new strategy in order to address upcoming claims from an insurer standpoint.
The Minor Injury Guideline: The Law Now And Into The Future
November 2015 | Vol. 9, Issue 3
The enactment of the Minor Injury Guideline (“MIG”) in the current legislation is perhaps the most substantive change that we have been dealing with on a day-to-day basis. The recent case law since Scarlett v. Belair has, for the most part, upheld the fundamental principles that underline the MIG, but has also perhaps provided a guideline for claimants to successfully advance their cases. We must understand what the case law has set-out to date in order to understand what may happen into the future.
Who Has Priority To Pay In The Rental Vehicle Case?
July 2015 | Vol. 9, Issue 2
When defending an insurer in a motor vehicle case involving a rental vehicle some sound investigation may result in significant savings. In fact, in the decision of Shahrooz v. Lin (2014) [set out below], the insurer ended up saving hundreds of thousands of dollars following a decision regarding the priority rules of indemnity of insurance.
Everything An Accident Benefits Adjuster Needs To Know About A Tort Claim But Were Afraid To Ask
April 2015 | Vol. 9, Issue 1
There are fundamental differences in the adjusting for an accident benefits claim compared to that of a bodily injury claim. An understanding of the fundamentals of tort claims will help us adjust our files better and set the stage for more effective negotiation strategies.
What You Need To Know About An Incurred Expense
December 2014 | Vol. 8, Issue 4
One of the most significant changes to the Schedule post-September 1, 2010 revolves around the question as to what constitutes an incurred expense. Gone are the days in which a family member/friend would be compensated for providing attendant care assistance to a claimant for love. Now they must show they did it for money.
The principle of the rule against double recovery is legally sound. A claimant is not supposed to be able to recover compensation for the same loss more than once. For this reason, a tort defendant is entitled to deduct income replacement benefits received by a claimant when making a payment for income loss. Otherwise, a claimant will be earning more money not working than when he did while at work. However, the law pertaining to deductions is far from straightforward.
As an insurer, there is perhaps nothing more frustrating than getting dragged into years of litigation when there is no legal exposure. The old rules pertaining the summary judgment motions were quite restrictive and made it difficult to successfully bring cases to a resolution. However, the 2014 Supreme Court of Canada decision of Hryniak v. Mauldin has relaxed the rules pertaining to summary judgment motions and thereby granted the parties in litigation a new weapon to use in their arsenal.
What is an Economic Loss? The Appeal Courts Have Spoken
March 2014 | Vol. 8, Issue 1
Slowly but surely the changes to the Statutory Accident Benefits Schedule are being interpreted by the Courts and Arbitrators. Since September 1, 2010, the interested parties have for the most part been left to our own devices to try and guess at how the Appeal Courts would interpret the new language.
The Law of Damages In Motor Vehicle Accident Cases (Tort): 101
November 2013 | Vol. 7, Issue 4
The law with respect to the burden of proof in motor vehicle accident cases is often overlooked until it is too late. We need to know what we need to prove when assessing cases, advancing a position at a mediation, and well before we step inside a courtroom.
Need To Know: Four Recent And Key Accident Benefits Decisions
August 2013 | Vol. 7, Issue 3
Knowledge of the law is important for both adjusting claims and negotiating settlements. This is all the more pronounced in the realm of accident benefits where the new changes to the Schedule have resulted in a host of unanswered questions.
Facebook and Insurance Litigation
May 2013 | Vol. 7, Issue 2
The best defence that an insurer has in a personal injury case is capturing the claimant in a live picture doing something that he claims he cannot do. The advent of the popular social phenomenon Facebook and other social media sites has given the insurer a new tool to take a peek into the private life of a claimant.
Non-Earner Benefits: What You Need To Know
January 2013 | Vol. 7, Issue 1
The Value Of A Death Of A Loved One: Loss Of Care, Guidance And Companionship Family Law Act Claims
October 2012 | Vol. 6, Issue 4
Stranges v. Allstate And Beyond: The Merits of a Case Still Count
June 2012 | Vol. 6, Issue 3
April 2012 | Vol. 6, Issue 2
What I Need To Know About ODSP
February 2012 | Vol. 6, Issue 1
Mary Carter and Pierringer Agreements: What Are They and How Do They Work?
December 2011 | Vol. 5, Issue 4
Economics 101 (updated): What Can You Deduct (Income Loss)?
August 2011 | Vol. 5, Issue 3
How To Use The New Expert Witness Rule To Negotiate A Good Deal
April 2011 | Vol. 5, Issue 2
Can A Special Award Be Found When I Do Nothing Wrong Procedurally?
February 2011 | Vol. 5 Issue 1
The Cost Consequences of Failing to Mediate
November 2010 | Vol. 4, Issue 5
The Major Impact of the New “Minor Injuries” Category
September 2010, | Vol. 4, Issue 4
Are Accident Benefits Assessments No Longer Admissible in a Tort Action?
June 2010 | Vol. 4, Issue 3
Court of Appeal Adds Teeth to the Complete Inability Test
April 2010 | Vol. 4, Issue 2
Liability: The Pedestrian Knock-down Case
February 2010 | Vol. 4, Issue 1
The Examination Under Oath: Underused and Underappreciated
January 2009 | Vol. 3, Issue 1
Bill 198 Threshold Cases: The First Wave Of Decisions
February 2009 | Vol. 3, Issue 2
Attendant Care Benefits: Understanding The Basics
May 2009 | Vol. 3, Issue 3
Housekeeping (Tort): Court Of Appeal Increases The Exposure
June 2009 | Vol. 3, Issue 4
Why A Claimant Does Not Need To Suffer A Complete Inability To Pass The Complete Inability Test (Accident Benefits)
August 2009 | Vol. 3, Issue 5
Making Sense Of The Uninsured, Unidentified, And Underinsured Automobile Coverage Claim
October 2009 | Vol. 3, Issue 6
What Happens When I Make A Mistake (Accident Benefits)?
December 2009 | Vol. 3, Issue 7
Section 24 Expenses: When, What, and Why Do I Need To Pay?
January 2008 | Vol. 2, Issue 1
Rule 49 Offers To Settle And The Deductible: “Dazed and Confused”
January 2008 | Vol. 2, Issue 2
Economics 101: What Can You Deduct (Income Loss And Income Replacement Benefits)?
April 2008 | Vol. 2, Issue 3
Priority Disputes And The Ninety Day Notice Period: No Margin For Error
June 2008 | Vol. 2, Issue 4
Deductibility Of LTD Benefits: Another Win For The Claimant
July 2008 | Vol. 2, Issue 5
Bill 198 Threshold: Has Anything Changed?
August 2008 | Vol. 2, Issue 6
Caregiving Benefits: “A Little Detective Work Can Go A Long Way”
October 2008 | Vol. 2, Issue 7
Rule 49 Offers To Settle And The Deductible: The Cost Of Winning The War
November 2008 | Vol. 2, Issue 8
Why a WAD II Injury is not a WAD II Injury
July 2007 | Vol 1, Issue 2
Economic Loss and Retirement Age: The Truth Behind the Numbers
September 2007 | Vol. 1, Issue 3
An Accident Benefits Adjuster’s Worst Nightmare: An Informed Tort Adjuster
October 2007 | Vol. 1, Issue 4
“FACEBOOK” and Insurance Litigation: Shooting Yourself in the Foot
December 2007 | Vol. 1, Issue 5