by Jamie NaumisHow long has that been leaking?
Ontario’s Court of Appeal recently addressed the issue of “discoverability” in a contractor negligence and public health authority claim.
In Presley v. Van Dusen, 2019 ONCA 66, the homeowners retained a contractor to install a septic system in 2010. After the installation was completed and approved by the inspecting public health authority, the homeowners noticed a smell from the system in 2011. By the spring of 2013 there was smell and sewage emanating from the system. Throughout, the contractor assured the homeowners that he would fix the problem and made several attempts to do so. In Summer 2015, the health authority issued an Order to Comply, requiring the homeowners to replace the system.
The homeowners commenced an action in August 2015 against the installation contractor and, in January 2016, added the public health authority that approved the initial installation as a defendant to that action. The question was: were the homeowners out of time to commence such proceeding?
At first instance, the Trial Judge held that the two-year limitation period to bring the action had passed, finding that by Spring 2013, when there was smell and sewage coming from the system, any reasonable person would know that injury, loss or damage had occurred and was caused or contributed by an act or omission of the contractor.
However, the Ontario Court of Appeal (“ONCA”) overturned the Trial Judge’s decision, holding that the Trial Judge failed to conduct an analysis under section 5(1)(a)(iv) of the Limitations Act as to when the homeowners knew or should’ve known that a proceeding would be an appropriate means to remedy their loss or damage.
Contrary to the Trial Judge’s finding, the ONCA found that the homeowners were not aware in Spring 2013 (and, under section 5(1)(b) of the Limitation Act, a reasonable person in their situation would not have known) that an action would be an appropriate means to remedy their loss or damage, because they had reasonably relied upon the contractor’s assurances that the problem could (and would) be fixed. The ONCA determined that the homeowners were entitled to rely on the contractor’s superior and knowledge and expertise (even though he was not a member of a traditional expert profession). The ONCA’s finding was that the homeowners did not know that an action would be an appropriate means to remedy their loss until the contractor had given up on remediation efforts in Spring 2014.
Thus, the ONCA ultimately held that the homeowners had commenced their action within the two-year limitation period. In addition, the ONCA found that the homeowners’ claim against the health unit was also brought within the two-year period. There are important implications in this decision, as third parties such as manufacturers may be exposed to extended limitation periods as a result of the mitigating actions and representations of others such as a contractors or service providers.
A copy of the decision can be found here.
by Neil Colville-ReevesHomeowners, Distributors and Contractors – Plenty of Blame to Go Around in Spill Case
The Court of Appeal has dismissed the appeal of a fuel supplier found 40% at fault in a case involving the discharge of 500 litres of fuel oil from two indoor residential tanks. The oil leaked into the soil underneath and around the house and ultimately made its way into a nearby lake. Remediation costs reached almost $2 million. The court also dismissed the appeal of the plaintiff homeowner who was found to be 60% contributorily negligent for the loss.
In Gendron v. Thompson Fuels, the plaintiff homeowner personally installed two indoor fuel tanks in his basement and did not have them inspected by a certified Oil Burner Technician as required. He also failed to have the tank and system inspected annually. The installation was not compliant with the B 139 installation standard which rendered the system non-compliant with Regulation 213/01 under the Technical Standards and Safety Act. Distributors are required to take certain steps when they find that a system is not compliant with the Regulation and in short, after 90 days can no longer deliver fuel to the system until it is brought into compliance. In this case, the distributor continued to deliver fuel oil to the non-compliant system for several years until the loss occurred.
Claims by the homeowner were advanced against the distributor, Thompson Fuels, the tank manufacturer, Granby Inc. and the TSSA for failing to take certain steps after the loss which may have lessened the impact of the spill.
The Court of Appeal was unwilling to disturb the trial judge’s finding that Thompson had not conducted a comprehensive inspection as required under the Regulation. A distributor is not only required to have a comprehensive inspection done at least once every 10 years, it is also required to maintain the record of that inspection. Thompson had no record of any inspection. The court emphasized that the 50 occasions of oil delivery when there had been no comprehensive inspection represented a frequent and flagrant breach of the Regulation. This was characterized as the cornerstone of the case against the distributor and the 40% allocation of fault.
The plaintiff homeowner was found 60% at fault for the loss as a result of a combination of factors – his improper installation of the tank, his failure to have the system properly inspected on a regular basis and his delay of almost 12 days in reporting the loss to his insurance company which resulted in increased damages.
Of interest was the appeal court upholding the finding that the TSSA did owe the homeowner a duty of care at the time of their initial attendance after the loss was reported. However they found no liability as there was no evidence of the appropriate standard of care of a TSSA inspector. The tank manufacturer, Granby had settled their portion of the claim by way of a Pierringer Agreement. However, the court upheld the trial judge’s finding that Granby had no liability.
There are a number of important takeaways from the decision and as a result it is worth a close read. For instance, the court accepted the evidence on the standard of care of an OBT as it pertains to undertaking a dip test to determine the presence or not of water on indoor tanks. For many years there has been no requirement to do so on an annual basis for indoor tanks while there has been a requirement for a dip test on outdoor tanks. There was standard of care evidence of OBT’s in this case that dip testing for water on indoor tanks was routine.
A copy of the decision in Gendron v. Thompson can be found here.
by Kevin MitchellWhy mediate? Plaintiffs dippin’ back to their bag of tricks
The February 23 and May 28, 2018 decisions of the Superior Court in Thomson v. Portelance and Canfield v. Brockville Ontario Speedway, respectively, 2018 ONSC 1278 and 2018 ONSC 3288, have Justices Firestone and Mew considering the benefit of mediation.
In the former, the tort defendant in a motor vehicle claim refused to schedule a mediation in advance of discoveries in contravention of s. 258.6(1) of the Insurance Act, which permits either party to make the request. The section is silent as to timing but very loud on how to treat non-compliance. Among other things, which mandate the mediation occur quickly and without reference to other steps in the litigation, s. 3 of Regulation 461/96 requires the defendant’s insurer pay the full freight for its cost. Whether prudent or not, due to the related restrictions, the plaintiff wanted to set the matter down quickly after fulfilling the requirement to have a Toronto action mediated. Ottawa and Essex County are also subject to the Mandatory Mediation Program. In this motion scenario, the defendants are lucky they escaped related legal costs.
In the latter, also a personal injury tort claim, there was divided success after a trial. In the broader context, the assessment of costs was at issue and the applicability of Rule 57.01 of the Rules of Civil Procedure as an aid to the court’s overarching discretion. Various of the factors were discussed and their applicability considered. Apart from neutral factors, his Honour found lead plaintiff counsel’s hourly rate too high and the number of hours spent on the case “significant” in relation to its nature. When he got to the criterion of ‘Other matters relevant to the proceeding’, he noted it was a Belleville action to which the mediation Program does not apply, further to Rule 24.1. His Honour found there was no requirement to mediate. Notwithstanding, he went on to consider extra-jurisdictional practice that looks to the justification of the refusal to mediate. Neither party had a strong position upon liability. He found the case to have merit, the defendant’s insurer uncompromising and unreasonable for it to have declined mediation. In the end, the costs reduction was $80,000.00 plus tax, which would have reduced the plaintiff’s costs claim to about the same amount as the judgment. However, the mediation refusal caused the reduction to roll back to about $60,000.00 instead, making the fee recovery $20,000.00 higher. I estimate the difference to equal between two and three times the amount it would have cost the Speedway to prepare for and attend a mediation. It appears that a lack of ‘membership’ in the mediation Program does not absolve a litigant from cost consequences, whether further to the Insurance Act or other statutory/regulatory provisions.
So take a page out of the hip-hop duo, Salt-N-Pepa’s, songbook. Be sure to mind (i.e. know) your business when you take a ride in your coupe.
by Neil Colville-ReevesWhat’s Reasonable?
What’s Reasonable?
That is of course a subjective question and one that you won’t find an explicit answer for in the case of Konopka v. Traders. However, you will read about what is not considered to be reasonable conduct in the context of an OAP 1 policy breach. In Konopka, the elderly insured fell ill while driving to her cottage and permitted her unlicensed husband to drive her vehicle to a nearby parking lot where they intended to stop and rest until she felt better. Shortly after taking the wheel, the unlicensed husband caused an accident. There was no dispute that the insured was aware that her husband was unlicensed and as a result on the face of it she was in breach of the ‘authorized by law to drive’ provision in section 4(1) of the policy. The insurer denied coverage as a result.
The court noted that a breach of this nature was subject to a strict liability standard which required that the insured to establish that she took all reasonable steps to avoid the particular event. The reasonableness standard requires a consideration of the nature of the breach, what caused it and all of the surrounding circumstances that explain the act or omission. The court ultimately determined that it was not reasonable for the insured to allow her husband to drive. It is worth noting that the court relied in large part on the discovery transcript of the husband which betrayed a level of confusion and an inability to focus. The court ultimately concluded that the husband was someone ‘who simply cannot get his bearings’ and as a result it was not reasonable to allow him to drive, regardless of the circumstances.
This case is fact driven but provides a good counterpoint to the decision of Ontario’s Court of Appeal in Kozel v. Personal. In that case, the insured was also in breach of section 4(1) for driving while she was not authorized by law to drive. However, in that case the license suspension was the result of a failure to respond to a license renewal notice which was considered to be a ‘relatively minor breach’. In contrast, allowing an elderly individual who had an ‘inability to get his bearings’ and who had not driven in more than 20 years was something quite different and ultimately, not reasonable. https://bit.ly/2KoWLxQ
by Neil Colville-ReevesOverpayments – Recovery, Timing and Notice
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]The year 2016 was not all that bad: The Superior Court finally provided some much needed guidance on whether an insurer can recover an overpayment made to an insured under the SABS. Justice Perell in Intact Insurance Company v. Marianayam shed some light on this ambiguous area of law.
Overpayments commonly occur when an insured person is paid an income replacement benefit and subsequently receives Long Term Disability benefits (LTD) or Canada Pension Plan benefits (CPP), which are deductible under the SABS.
The recovery of overpayments is governed by section 52 of the SABS-2010 (see section 47 of the SABS-1996). It provides that an insurer may recover benefits that were paid to an insured in error or if the insured was disqualified from receiving benefits. This is, of course, only if the overpayment is not a result of willful misrepresentation or fraud. One of the most controversial aspects of this law is subsection 52(3) of the SABS-2010 (section 47(3) of the SABS-1996), which requires the insurer to give notice of the amount that is required to be repaid.
The notice requirement was introduced in the 1996 amendments to the SABS. Subsequently, a body of case law has developed around the timing and content of this notice.
With respect to timing of notice, the Superior Court in Marianayam has helped clarify this area of law by upholding the Director’s Delegate decision in Pries v. Economical Mutual Insurance Company 2, and confirming that an insurer can only recover an overpayment made within 12 months of giving notice. In Pries, Economical took issue with the term “payment” in s.47 (3) of the SABS, and with the phrase, “within the 12-months after the payment was made”. Economical argued that they should be able to recover the full amount of the overpayment. However, Directors Delegate Evans was not persuaded and ultimately held that an insurer can only recover an overpayment made within 12-months of giving notice and awarded Economical 12 of the 16 months of overpayments. To put it another way, the amount of the repayment is capped at one year before the demand and there is no recovery for any payment made more than 12 months before the repayment notice was made.
The Superior Court in Marianayam also weighed in on what constitutes proper notice under the SABS. In doing so, Justice Perell upheld the controversial decision of Knechtel v. Royal SunAlliance, where Arbitrator Sampliner held a valid notice letter must contain:
- The name of the specific benefit(s) the insurer claims has overpaid;
- A statement of the appropriate weekly/monthly or lump sum amount sought;
- The payment date of applicable time span of the specific benefit(s) it has paid and seeks repaid; and
- Calculation of the total repayment claim;
Justice Perell stated that the amount claimed in the insurer’s notice letter “need not be perfectly correct but should be substantially correct.” While this may sound simple enough, Justice Perell determined that Intact’s first two notice letters failed comply with the Knechtel requirements.
In Marianayam, Intact claimed reimbursement for overpayments made to the Claimant between 2007 to 2015 as a result of the Claimant’s receipt of retroactive LTD benefits and CPP benefits.
Intact’s first letter sought $69,000 or 170 weeks of IRBs although the applicable statute provided for repayment of only 12 months (52 weeks). Justice Perell stated that Intact should have only indicated in their letter a demand for 12 months of payments. As a result, Justice Perell found the amount requested was not substantially correct; it was grossly incorrect. Therefore, the first notice was not considered proper notice and could not be relied upon.
Intact’s second letter indicated its legal position and advised that an accountant had been retained to calculate the quantum of the repayment. Justice Perell found that this letter also failed to satisfy the notice requirement, as the amount of the repayment was left undetermined.
Finally, Justice Perell accepted a subsequent letter that enclosed Intact’s accounting report as a proper notice. Justice Perell accepted the letter and report as notice, since it came close to calculating the correct amount of the overpayment and only erred by making a claim for 14-months of overpayments rather the limit of 12-months.
Interestingly, Justice Perell did not order repayment of CPP amounts. Intact’s accounting report included the CPP benefits in its overpayment calculation; however, Intact’s letter did not specifically request repayment of CPP benefits. Therefore, Justice Perell found Intact was not entitled to the CPP payments.
Given that Justice Perell did not define “perfectly correct” and “substantially correct”, we are left guessing when a particular notice falls on the spectrum between perfect and substantially correct. Nevertheless, it is fair to say that the evolving jurisprudence regarding overpayments has made it more difficult for insurers to recover overpayments. However, the Marianayam decision has provided much needed guidance on how to recover overpayments successfully. When faced with an overpayment situation, insurers must act quickly to identify and provide notice of any overpayment within 12 months or they may lose the right of recovery. Insurers must also ensure their notice contains the Knechtel requirements and the amount sought must comply with the statute.
See Intact Insurance Company v. Marianayam , 2016 ONSC 1479
[2] Pries v. Economical Mutual Insurance Company, FSCO A11-002004, September 21, 2012; Economical Mutual Insurance Company v. Pries, FSCO Appeal P12-00036, July 8, 2013 [/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesUpdate on the MIG Protocol Project
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]BACKGROUND: INCEPTION OF THE MINOR INJURY TREATMENT PROTOCOL PROJECT (MITPP)
The FSCO Superintendent’s 2009 Five Year Review recommended the development of a minor injury treatment protocol that reflected current scientific and medical literature. [1] This recommendation was accepted by the Ontario government and confirmed in the 2012 Budget. [2]
Dr. Pierre Côté was awarded the consulting contract to spearhead the development of a new Minor Injury Treatment Protocol. Dr. Côté is an Associate Professor in the Faculty of Health Sciences at the University of Ontario Institute of Technology.
The team that was assembled to develop the new protocol is known as the Ontario Protocol for Traffic Management (OPTIMa) Collaboration. This multidisciplinary team of practitioners, academics, scientists, insurers, a retired judge, a patient liaison, and a consumer advocate, produced a report entitled “Enabling Recovery From Common Traffic Injuries: A Focus on the Injured Person,” which contains a number of minor injury treatment protocols for various types of injuries.
The Final Report (CTI Report) was delivered to FSCO in December 2014 and released to the public in mid-2015. [3] It is lengthy, numbering 279 pages and referencing voluminous background material.
FSCO invited feedback on the CTI Report addressing its impact on individual stakeholders. [4]
THE CTI REPORT: ENABLING RECOVERY FROM COMMON TRAFFIC INJURIES
The CTI Report addresses and outlines science-based treatment for “common traffic injuries”. The OPTIMa Collaboration was tasked with developing “Care Pathways” to promote recovery from common traffic injuries. [5] These take the shape of clinical practice guidelines that form the bulk of the CTI Report. These Care Pathways or guidelines cover the following injury types:
- neck pain and associated disorders;
- headaches associated with neck pain;
- soft tissue disorders of the upper extremity;
- soft tissue disorders of the lower extremity;
- temporomandibular disorders;
- mild traumatic brain injury; and
- low back pain with and without radiculopathy.
The “common traffic injury” classification was adopted to replace the term “minor injury”, which the Collaboration viewed as inappropriate. It reached this conclusion after canvassing a small number of injured persons with minor injuries, inviting comments on the terminology.
In a further movement away from the “minor injury” terminology, the CTI Report proposes a new categorization of motor vehicle accident injuries into one of three categories: Type I; Type II; or Type III.
Type I injuries roughly encompass today’s concept of minor injuries, but notably explicitly include traumatic radiculopathies, mild traumatic brain injuries, and post-traumatic psychological symptoms such as anxiety and stress. [6] The Report acknowledges that a small number of patients with these injuries will experience residual problems over time and develop chronic and more widespread pain, regardless of intervention. [7]
Type I injuries are comprised of three subcategories: [8]
- Physical impairments: grades I to III NAD; headaches associated with neck pain; non-specific thoracic and lumbar spine pain, thoracic and lumbar radiculopathy [nerve root injury]; grades I and II girdle and limb sprains and strains; grades I and II sprains and strains of the temporomandibular joint; skin and muscle contusions, abrasions and skin lacerations (which do not extend beneath the dermis).
- Mental impairments : concussion/mild traumatic brain injury as defined by the American Congress of Rehabilitation Medicine (MTBI is defined by loss of consciousness of less than 30 minutes, with altered consciousness < 24 hours, and post-traumatic amnesia < 1 day, and a Glasgow Coma Scale of 13 to 15) and normal structural imaging.
- Psychological impairments : “early” psychological signs and symptoms that include poor expectations of recovery, post-collision depressive symptomatology, fear, anger and frustration.
By contrast, the current “minor injury” definition covers sprains, strains, whiplash associated disorder, contusions, abrasions, lacerations or subluxation and any clinically associated sequelae. Though the inclusion of “clinically associated sequelae” and the ambiguity of this term broadens the existing definition, it appears that the new “common traffic injuries” or Type I injuries concept covers more injuries than the current minor injury definition, most notably by the explicit inclusion of some mental and psychological impairments.
Type II and III injuries are not dealt with in the CTI Report, but roughly correspond with what today would be referred to as non-minor and catastrophic injuries, respectively. In more technical terms, the CTI Report defines Type II injuries as typically involving a “substantial loss of anatomical alignment, structural integrity, psychological, cognitive, and/or psychological functioning.” By way of example, the Report states that depression and PTSD, among many other injuries, fall into this category.
SUBMISSIONS OF VARIOUS STAKEHOLDERS
It appears that consultations between FSCO and various stakeholder groups have occurred. A number of stakeholders have also taken the opportunity to provide submissions on the CTI Report and a draft CTI Guideline.
Concerns regarding the CTI definition
First, there are concerns about the terminology used in the new CTI definition and the definition itself.
The inclusion of “early” psychological signs addresses the MIG’s silence on psychological issues, but falls under scrutiny. Some stakeholders argue that this terminology is confusing, particularly when diagnosis of such symptoms and their severity relies heavily on subjective judgments and self-reporting. Others suggest avoiding reference to potentially confusing terms that might imply a diagnosed disorder, such as “depression”, “anxiety”, and “post-traumatic stress”. [9]
Second, and predictably so, there is disagreement from stakeholders as to what injuries should and should not be included in the Type I category. As noted above, the CTI definition appears to be a broadening of its minor injury predecessor.
Some psychological practitioners suggest that psychological, mental and behavioral disorders should be considered Type II injuries. [10] Notably, the inclusion of depression and PTSD in Type II, two frequently disputed issues between claimants and insurers, is furthermore likely to continue to generate disputes.
Other practitioners point out that traumatic radiculopathies can have different courses of care and if neurological signs outweigh musculoskeletal symptoms, such an injury should not be considered Type I. [11] These same practitioners do not support the inclusion of minor traumatic brain injuries in Type I. [12]
The definition of Type II injuries appears to suggest that Type I injuries could become Type II if they persist beyond six months, thus escaping the CTI financial limits. [13] Notably, the CTI financial limits have yet to be discussed and agreed upon, and are likely to generate further criticism from stakeholders.
Concerns regarding the OPTIMa Collaboration’s methodology and the nature of the Care Pathways
Some stakeholders have argued that the research of the OPTIMa Collaboration did not account for cumulative effects of multiple injuries, particularly with respect to recovery time, response to treatment, and risk factors, and how these may impact the recommended Care Pathway or treatment protocol. [14]
There have also been concerns expressed about the allegedly disproportionate composition of the professionals on the MITPP teams and the minor injury clients they consulted. Some stakeholders note that these teams featured a large number of chiropractors and clinicians specializing in insurer examinations, with no representation from, for example, speech language pathologists, social workers, psychologists or clinicians that carry out treatment. [15] Others add that there was a notable lack of consultation with broader clinical and academic communities before finalizing the CTI Report and the treatment protocols contained therein. [16]
Some practitioners criticize the Care Pathways as being overly directive, noting that the options within certain Pathways are very limited. [17] Others consider it troubling that occupational therapists are left off the list of permitted initiating and coordinating health professionals. [18]
Though the intention of the MITPP was to base treatment protocols on proven scientific research, some stakeholders are also critical of the Collaboration’s position that only practices proven to be effective by quality research are worth implementing. [19]
Stakeholders have drawn attention to the specific language used in the CTI Report and draft Guideline, noting places where terms could be clarified or modified because, as written, they are likely to cause confusion. [20]
Concerns regarding reliance on Self Reporting and Shared Decision-Making
From a defence perspective, there are a couple a features of the CTI Report that may cause concern, namely the reliance on a claimant’s self-reporting of his or her injuries and the notion of “shared decision-making” that appears throughout the Report. Though “a focus on the injured person” is not doubt invaluable in a healthcare context, the SABS environment is compensation driven, where a claimant will generally receive greater benefits for a more serious impairment. This is a financial incentive that is likely to affect how the CTI structure may play out if implemented.
COMMENTARY
The Minor Injury Treatment Protocol Project and the CTI Report produced by the OPTIMa Collaboration are, at least in one way, beneficial to nearly all stakeholders in that they provide some clarity around the definition of common traffic injuries and the appropriate treatment protocols for certain commonly encountered subsets of injuries within this category. The process that led to the Report appears robust, reflecting a thorough analysis of existing scientific research.
The identification and description of treatment protocols is an important step in the evaluation of the “minor injury” concept, particularly because – at the very least – it distinguishes between treatment approaches that are valuable and those that are not supported by existing scientific literature.
Predictably there are concerns from various stakeholders regarding the terminology, the definition, the methodologies in determining the Care Pathways and the protocols as well as the heavy reliance on subjective reporting.
The challenge with the CTI Report will come now as the government seeks to integrate elements of the Report into the existing and evolving statutory accident benefits framework.
[1] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.
[2] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.
[3] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx>.
[4] FSCO, “Minor Injury Treatment Protocol”: < https://www.fsco.gov.on.ca/en/auto/Pages/minor-injury-treatment-protocol.aspx >.
[5] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.
[6] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 7.
[7] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 7.
[8] Ontario Protocol For Traffic Injury Management Collaboration, “Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 34.
[9] Ontario Psychological Association, “OPA Response to: Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.
[10] Ontario Psychological Association, “OPA Response to: Enabling Recovery From Common Traffic Injuries: A Focus On The Injured Person”, p. 5.
[11] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 2.
[12] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 4.
[13] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 3.
[14] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 2.
[15] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 1.
[16] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 1.
[17] Coalition of Health Professional Associations in Ontario Automobile Insurance Services, Letter to FSCO re: The Optima Report “Enabling Recovery from Common Traffic Injuries: A Focus on the Injured Person”, p. 3.
[18] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 4.
[19] Ontario Rehab Alliance, “Response to the Draft Superintendent’s CTI Guideline”, September 3, 2015, p. 2.
[20] Ontario Psychological Association, “OPA Submission Regarding the CTI Guideline”, p.6.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesCan plaintiff corroborate own evidence for threshold?
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]Under Ontario’s threshold provision, persons injured in a car accident can sue for damages for non-pecuniary loss only if they have sustained “a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement.”
Beginning in October 2003, s. 4.3(5) of Ontario Regulation 461/96 (Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996) injured persons have also had to meet evidentiary requirements prescribed by regulation. They must lead evidence of their impairment from a qualified physician and, in addition to that evidence, they must “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”
This appeal to the Ontario Court of Appeal raises a single question: can the injured person – the plaintiff – provide the corroborating evidence? The answer – “yes”.
The words of s. 4.3(5) do not expressly preclude the plaintiff or the injured person from being the corroborating witness. Section 4.3 requires the evidence of at least one physician and some other evidence of change in function. The physician’s evidence alone is not enough and the other evidence alone is not enough. That other evidence may come from the plaintiff, a family member, an employer or co-worker, another lay person, or even from surveillance or medical records. Section 4.3(5) does not exclude anyone or anything. Indeed, undoubtedly there are cases where a plaintiff cannot provide corroborating evidence – for example, if the plaintiff is a minor or was severely brain damaged in the accident – otherwise the plaintiff may corroborate the evidence from the doctor about the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
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