Fair Insurance Act The Ontario Liberal government, just prior to an election, claims it has again decided to address high automobile insurance premiums (but ignores the negative effect of these changes on victims of car accidents). In the 2017 Ontario Ministry of Finance Report “Fair Benefits Fairly Delivered: A Review of the Auto Insurance System of Ontario” the average yearly rates for car insurance by province were: Ontario: $1,458 C.: $1,316 Alberta: $1,179 Newfoundland & Labrador: $1,090 Manitoba: $1,001 Northwest Territories: $974 Nunavut: $968 Yukon: $806 Nova Scotia: $783 Saskatchewan: $775 New Brunswick: $763 E.I.: $755 Quebec: $724. The Liberal government, which has historically taken away benefits and protection from victims with empty promises of keeping car insurance rates affordable (I have never seen any reduction in car insurance the last few years, have you?), has created smoke and mirrors and called it The Fair Auto Insurance Plan. This plan is supposed to “improve care, reduce disputes around diagnosis and treatment… promote innovation, competition and other steps to improve consumer protection.” The plan creates a fancy title for investigation of alleged fraud “The Serious Fraud Office” which is to be operational by the spring of 2018. Call me sceptical but insurers have appropriately and successfully cut out all fraud from car insurance for years, so is this the Premier’s excuse why her promises regarding reducing car insurance premiums never worked out? (although they did cut off perhaps 50% of the benefits desperately needed for victims and greatly increased profits of the auto insurers). The Fair Auto Insurance Plan will also introduce: Standard treatment plans for immediate care on common injuries: sprains, whiplash, etc. (Ask yourself how “common” your injuries are when you are so inflicted). Independent examination centres for more serious collision victims aimed to reduce diagnosis disputes, reduce system costs and inefficiencies (Historically “independent” examination centres are insurer biased). Insurance Act to be given “greater teeth” to protect consumers (Consumer benefit has never been the intention behind changes since 1990- ask any personal injury lawyer). These promised changes have elements that have been used in previous car insurance regimes that have all failed, yet before election promises are being made to protect consumers! The only protection for consumers in the car insurance industry is to acquire optional benefits from your insurance broker to better protect you and your family and to ask a personal injury lawyer whether your coverage is adequate before it is too late! For more information please contact Personal Injury lawyer Marc Spivak by email marc.spivak@devrylaw.ca or phone 416-446-5855. “This article is intended to inform. Its content does not constitute legal advice and should not be upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Insurance Defence, Personal InjuryDecember 19, 2017July 5, 2023
Proving Damages: Mental Injury is no different from Physical Injury In a decision released this summer, the Supreme Court of Canada has clarified that a psychiatric diagnosis is not required to find damages for mental illness. Recognition of mental injury and awards of damages have had a dismal history in Canada. For most of our court history, damages for such injuries have not been easy to achieve. It seemed as though physical injuries were readily compensable, but mental injuries were subject to additional hurdles. Where mental injury was recognized it was subject to the same aura of stigmatism that mental health issues in Canada have historically carried. In recent years, mental health issues have increasingly been accepted as health issues. Yet it was still difficult at law for mental injuries to meet the test for negligence. There was a trend developed where evidence in the form of a psychiatric diagnosis appeared necessary to find damages for mental injury. This added an additional burden to the ordinary duty of care that plaintiffs in personal injury suits had to satisfy. In Mustapha, the Supreme Court clarified the threshold required for proving a case of mental injury, which is the ordinary duty of care analysis. This clarification however did not address that physical and mental injuries were subject to different evidentiary requirements. What persisted after Mustapha was the underlying idea that mental injuries require an additional layer of proof, or else their subjective nature will contribute to exaggerated or dubious claims. However, this summer’s decision from the Supreme Court, Saadati, indicates that the test for causation in tort, as clarified in Mustapha, is sufficient to weed out unmeritorious cases, and that it does not distinguish between mental and physical injury (para 21). There is no legitimate reason to require a different evidentiary threshold for proving damages to mental health and damages to physical health. The Court held that such a distinction creates a dual standard which results in unequal protection to victims of mental injury (para 36). The Court reiterated that it is not concerned with diagnosing injuries, but only with symptoms and effects, and that the latter requires no relationship to a psychiatric diagnosis. An expert to testify that a certain diagnosis is present is no longer required. This too accords with a growing trend to eliminate labels associated with mental health and to eliminate intense scrutiny and disbelief. This recent case better aligns the legal perspective with the health perspective, whereby physical and mental health are not distinct categories. Individuals are treated in the same system for both, so the previous legal distinction did not make much sense. It simply served the function of denying a claimant the ability to recover damages which are fully compensable, which is the point of placing the injured party in the position they were in but for the accident. Accepting that injury to one’s mental well-being should be treated the same as physical injuries should achieve compensability. Importantly, this case does not go so far as to eliminate the need for expert evidence. But rather that such evidence may be sufficient, but is not necessary. What expert evidence can do is speak elements such as seriousness, length of impairment, and treatment options and viability. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryNovember 21, 2017June 17, 2020
Winter Driving Warning! From Personal Injury Lawyer Marc Spivak Winter is around the corner. Make sure your vehicle is prepared for possible winter driving disasters. Winter brings low visibility and treacherous roads. Combine that with young and inexperienced drivers, “road ragers” and careless drivers and you have a Canadian recipe for disaster! As a personal injury lawyer, I can tell you that the number of car accident claims leaps during the inclement weather seasons, often due to drivers being unable to slow down in time or losing control due to inadequate anticipation/preparation for poor road conditions. Research proves that winter tires in winter conditions prevent accidents. In 2005, Germany had 12,539 personal-injury collisions. In 2008 German drivers were required to have winter tires on during the winter. Collisions in that year dropped by about 50% to 6,033. Quebec also made winter tires mandatory in 2008 (although 96% of drivers used winter tires prior to this change). Once the law was enforceable, Quebec driver winter tire use increased 2% to 98% with a corresponding larger 5% drop in collisions that year. To understand why winter tires work in Ontario (during the winter) keep the following in mind: All-season tires harden at -10 C; Winter tires harden at -40 C. Stopping distance is 30% shorter with winter tires compared to all seasons. Winter tires offer up to 50% or more traction than all season tires. Tires are designed to grab on to microscopic irregularities in pavement and when they harden, it makes it extremely hard for the tires to grip the road resulting in decreased stopping ability. Your insurance company provides a discount of 2-5% to you for using winter tires. This is based on the reduced risk to the insurer of you having an accident if you are driving with winter tires. Although winter tires are not yet mandatory, it won’t be long before that becomes the law. As a father of three sons, I insist on my children driving or being driven in cars with winter tires in Ontario winters. Keep in mind that accidents cause injuries and loss of property, but also result in increased insurance premiums, sometimes for years after an at fault accident. An at fault accident may push a driver into high risk insurance which might double or triple an insurance premium for years. This might end up costing well over $10,000.00 in additional premiums over time! Having a set of winter tires will also prolong the life span of your tires as the other set is being used and will help keep our roads safer. It is time to get your winter tires installed! Other safety measures that should be taken when preparing for winter driving should include: Bringing your car in for a full checkup and insist on winter wiper blades; Keep your gas tank as full as possible to keep the car heavy and help reduce moisture in the gas line; Clear snow from your car before driving; Always have an ice-scraper and extra washer fluid in the trunk; Keep a booster pack or jumper cables in the car; and Make a survival kit for the car with water non-perishable food flashlight batteries clothing blanket shovel sand or cat litter lighter candles phone charger or charged phone Devry Smith Frank LLP is a full service law firm with experienced lawyers in all practice areas. If you require a personal injury lawyer, please contact Personal Injury Lawyer Marc Spivak today. If you have any other questions, or would like more information please call our office directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryNovember 2, 2017June 17, 2020
If My Guests Drive Drunk/Stoned, Am I Responsible? October is here, and over the next few months, there will be a number of family gatherings and work events that may involve the consumption of alcohol/drugs. When your guest leaves your house and drives while impaired, can you be held responsible if they injure themselves or others? Being a host, you should always be concerned about how your guests are getting home, who is the designated driver, and always be ready to offer up your couch or blow-up mattress for the night. Luckily, we have options like Uber, taxis, and even a service called Safe-T-Ride that will pick you up and drive you home (IN YOUR OWN CAR!) so that you and your vehicle arrive home safely. Morally, as responsible and caring hosts, we should ensure the safety of our guests while in our care in or around our home. The case law is fairly clear about that but once your guest leaves your home does that duty end? The short answer is probably (but don’t take chances and keep your guest and the public safe!). The Supreme Court of Canada in Childs v. Desormeaux confirmed that social host liability probably does not exist in Canada. The homeowner that has a party serving alcohol may have no duty of care to members of the public who may be injured by the activities of the impaired guest after they have left the care of the host. This reasoning may also apply with parties where marijuana or other drugs are used. Regrettably we may see an increase in impaired driving with legalization of marijuana use for non-medicinal purposes. According to Marc Spivak, lawyer and managing partner of Devry Smith Frank LLP’s personal injury group, the Supreme Court of Canada decision may leave open liability on the host if: all of the alcohol that was served was supplied by the host and consumed there and there was some sort of relationship between the host of the party and the guest whereby the host would have control over the extent of the alcohol consumption and whether the guest was intoxicated upon leaving the home. Social host liability cases can take years to litigate with appeals to higher courts by the upset loser of the litigation. These cases cost hundreds of thousands of dollars to litigate and reflect the loss of life or loss of enjoyment of life that nobody should have to experience. If you are hosting a party this season, be prudent and take steps to avoid such possible accidents. Plan before your guests arrive and ensure your guests have safe transportation home. Judgment ability may change during your festivities. Make sure that won’t affect your guest’s safety and what happens after leaving your home. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal Law, Personal InjuryOctober 6, 2017June 18, 2020
