The Duty of Good Faith in Insurance Law The duty of good faith is the guiding principle of insurance litigation. What is the Duty of Good Faith? The duty of good faith is a fundamental principle of the common that parties to a contract must perform their contractual duties honestly and reasonably.[1] In the insurance context, it is an implied obligation that the insurer and insured will deal with claims in good faith.[2] Section 439 of the Insurance Act reiterates this implied principle by stating that “no person shall engage in any unfair or deceptive act or practice.”[3] In summary, the relationship between the insured and insurer is contractual in nature that requires the “utmost good faith” in all dealings between the parties.[4] It is important to underline that the duty of good faith is distinct from a fiduciary duty. Unlike the fiduciary duty, the duty of good faith does not obligate the insurer to “treat the insured’s interests as paramount”, but rather to give as much consideration to the insured’s interests as they do to their own.[5] Who Owes whom this Duty? The duty of good faith is a two-way street. In the majority of cases, it is the insured alleging that the insurer breached their duty of good faith. Case law over the years has strongly stated that the insurer owes the insured a duty of good faith throughout the entire relationship. As emphasized in the Supreme Court case of Fidler v Sun Life Assurance Co. of Canada, the duty of good faith requires the insurer to investigate, assess and decide a claim in a manner that is consistent with good faith practices.[6] Nevertheless, the insured is also obligated to act in good faith. While it is argued that there are many power imbalances favouring the insurer throughout the relationship, the insured also has opportunities to exert the same. For example, in the pre-contractual stage, the insured knows all of the variables that are relevant for the insurer to calculate the risk of the policy. By making misrepresentations or withholding information, the insured may be able to secure a favourable insurance policy. The duty of good faith serves to prevent this by placing a duty on the insured, to be honest, and forthright in disclosing facts that are material to the policy.[7] Scope of the Insurer’s Duty of Good Faith The duty of good faith does not always require the insurer to be correct. As ruled in 702535 Ontario Inc v Non-Marine Underwriters, the mere denial of a claim is not itself a breach of the duty of good faith. [8] As long as the insurer’s decision was based on reasonable interpretations, whether correct or not in the end, then there is no presumption of bad faith. What needs to be examined is if there was any bad faith conduct on the part of the insurer, which must be decided on a case-to-case basis. Insurers are permitted to investigate when skeptical about insured claims, however, they must do so in a manner consistent with good faith. Further investigation into potential claims is permitted as long as the insurer is not willfully blind to substantiate their position and interests.[9] The insurer must also not delay a claim in hopes of achieving an economic advantage or increased bargaining power over the insured. What Constitutes Bad Faith? As stated, what constitutes a breach of the duty of good faith must be decided on a case-to-case basis. However, the following is a non-exhaustive list of actions that courts may determine as acts of bad faith: Denying claims without reason Delaying claims with no justification Failing to investigate a claim Offering substantially less compensation than the claim is worth Misrepresentations Damages for Breach An insurer breaching the duty of good faith can result in major repercussions. Aside from contractual damages, damages defined from the contract itself, insurers could face punitive, aggravated or Fidler damages. Aggravated and punitive damages are supplementary damages that require an independent actionable wrong in order to be claimed. In Whiten v Pilot, the Supreme Court determined that a breach of the duty of good faith constitutes an independent actionable wrong.[10] This independent actionable wrong is not directly related to any breach of contract and is a separate act that warrants its own compensation. Therefore, if an insurer is found to have breached the same, then they may be liable for damages beyond the scope of the contract. Fidler damages are distinct in that they are mental distress damages that arise from a breach of “peace of mind” or any other psychological benefit that would bring mental distress upon breach. These psychological benefits must be within the reasonable contemplation of the parties at the formation of the policy.[11] While rare, if found in breach, these damages can be significant and are in addition to all damages listed above. A lawyer who practices good faith in all their matters is essential for insurance defence. If you are looking for an insurance litigator or have any questions, please contact Charlie Fuhr, lawyer at Devry Smith Frank LLP (‘DSF’), at 416-446-3304 or at Charlie.Fuhr@devrylaw.ca. This blog was co-authored by summer law student Jaimin Panesar. “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.” [1] Bhasin v Hrynew, 2014 SCC 71. [2] 702535 Ontario Inc v Non-Marine Underwriters, [2000] CanLII 5684 (ON CA). [3] Insurance Act, R.S.O 1990 c I.8 at section 439. [4] Pucci v The Wawanesa Mutual Insurance Company, 2020 ONCA 265. [5] Usanovic v Penncorp Life Insurance Company, 2017 ONCA 395. [6] Fidler v Sun Life Assurance Co. of Canada, 2006 SCC 30. [7] Supra note 1. [8] Supra note 2. [9] Whiten v Pilot Insurance Co, 2002 SCC 18. [10] Supra note 9. [11] Supra note 6. By Fauzan SiddiquiBlog, Insurance DefenceJuly 6, 2022August 31, 2022
“No Mulligans”- Challenges Faced By Insurers Requesting Multiple Medical Examinations In Personal Injury Cases Where the physical or mental condition of a party to a proceeding is at issue, a medical examination may be granted by a court of competent jurisdiction. This examination is generally regarded as a defendant’s right in personal injury cases. However, there are a number of considerations which affect the availability of multiple examinations for any given case. Where multiple examinations are requested, the primary consideration will be fairness, and it will be critical to establishing the necessary evidentiary basis supporting the defendant’s argument that fairness requires a second or further examination. Notably, a recent decision of Justice Nicholson of the Ontario Superior Court[1] has highlighted the conflicting considerations applicable to this right and cautioned legal practitioners against seeking “a second kick at the can.” General Rule: One Examination per Specialty per Defendant Typically, in a personal injury matter, an examination will be permitted for each specialty applicable to the plaintiff’s injuries. For example, an orthopaedic examination is appropriate where there are orthopaedic injuries; a psychiatric examination is appropriate where there are psychiatric complaints. Examinations by other specialists are appropriate where there are complaints within the area of expertise of those experts. The defendant’s right to a medical examination of the plaintiff in a personal injury matter arises under section 105 (2) of the Courts of Justice Act:[2] “where the physical or mental condition of a party … is in question, the court … may order the party to undergo a physical or mental examination by one or more health practitioners.” “Health practitioner” is defined as a person licenced to practice medicine, dentistry, or psychology. While the language of the statute is discretionary (i.e., “may order”), a first medical examination has been generally established by the courts as a right. Beyond the first exam, section 105 (4) of the Act permits “further physical or mental examinations.” The procedure is set out in Rule 33 of the Rules of Civil Procedure. Specifically, the order for the examination “shall name the health practitioner or practitioners by whom the examination is to be conducted.”[3] Similarly, Rule 33.02 (2) empowers the court to order a “second examination or further examinations.” Where there are two or more defendants, each defendant is entitled to a separate defence medical examination of the plaintiff by their own experts.[4] “Overlapping” Examinations A court will typically not permit multiple “overlapping” examinations to assess the same type of injury. For example, examinations by an orthopaedic specialist and by a physiatrist regarding the same orthopaedic injuries or an examination by a psychologist and a psychiatrist with respect to the same psychiatric complaints would not generally be permitted. However, grey areas arise where there are injuries or complaints that are partially within the expertise of one specialty and partially within the expertise of another. For example, where a plaintiff claims to have suffered a traumatic brain injury (TBI) as well as psychiatric complaints following an accident, an examination by a neuropsychologist with respect to the TBI complaints might be appropriate and an examination by a psychiatrist with respect to the psychiatric complaints might also be appropriate. The court will look at the degree of overlap between the complaints and may restrict the examination to either a neuropsychologist or a psychiatrist. In one case where examinations had been conducted by a psychiatrist and a neurologist, the court refused to order further examinations with a neuropsychologist, an orthopaedic surgeon, and a second psychiatrist.[5] In another example, an examination by a psychiatrist was refused where an examination had been conducted by a psychologist, on the basis that there was an inadequate evidentiary basis for the psychiatric examination and the examination could delay the trial.[6] In determining whether a further or “overlapping” examination will be ordered, the court considers whether the defendant will be prejudiced if no examination is permitted, and this will be weighed against any risk of prejudice to the plaintiff.[7] A key factor in determining prejudice is any possible delay in the trial. The decision will be based upon the evidentiary record, and the defendant has the onus to provide evidence supporting the need for a second or further examination and addressing the issues of fairness and prejudice.[8] Examinations by Accident Benefits Insurers A defendant in a tort action will be entitled to conduct defence medical examinations notwithstanding that the plaintiff may have been examined by the defendant’s Statutory Accident Benefits Schedule (SABS) insurer where the initial examination did not address all the issues and there was no abuse of process.[9] An examination under an insurance contract is separate and distinct from a medical examination under section 105. An examination under contract prior to litigation commencing does not pre-empt the defendant’s right to an examination under section 105.[10] The Test for Fairness (Bonello) The applicable test for further examinations was addressed by Justice Brown in Bonello v Taylor.[11] Justice Brown stated that the overriding consideration was trial fairness. In brief, the factors are: the assessment would be for a legitimate purpose (i.e., not to delay or cause prejudice); the party’s medical condition has changed or there is new information; a report by the defendant is needed to “match” the expert evidence from a specialist’s report from the plaintiff—although this is not automatic; the proposed examination would be necessary as a diagnostic aid, if conducted by a person who is not a health practitioner (e.g., a rehabilitation expert); there is sufficient persuasive evidence to demonstrate the need; evidence of unfairness is also taken into account; and whether the further examination would impose an undue burden on the plaintiff. Read a full summary of the factors in Bonello. When Is Further Examination Denied (Mitsis ) The recent decision of Justice Nicholson in Mitsis v Holy Trinity addressed many of these factors.[12] The plaintiff was pursuing a slip and fall claim and alleged that she suffered injuries including a fractured right shoulder and arm. Following examinations for discovery, the defendant arranged to have the plaintiff examined by a physiatrist (at that point, the plaintiff had not served any experts’ reports). Subsequently, the plaintiff served a report from an orthopaedic surgeon. In response, the defendant sought their own examination by an orthopaedic specialist. The defendant claimed that it would be prejudiced if a defence orthopaedic assessment were not permitted. Justice Nicholson stated that there had been no material change in the plaintiff’s condition and the defendant knew that the plaintiff’s injuries were primarily orthopaedic in nature when it elected to commission a physiatry exam. Justice Nicholson felt that there was no procedural unfairness to holding the defendant to its choice of experts, and denied the request for a defence orthopaedic examination. As an aside, Justice Nicholson commented that perhaps the defendant’s physiatry report was not as favourable as the defendant might have hoped: “One cannot help but be suspicious that the Defendant had hoped for a report more favourable to its position in the litigation from Dr. Perera [the defence physiatrist] and is now seeking a ‘mulligan.’” Conclusion The importance of establishing the necessary evidentiary basis for a second or further medical examination of the plaintiff cannot be overstated. An affidavit from the prospective medical expert setting out why a further examination is necessary is generally preferable to an affidavit based on information and belief from defence counsel’s clerk. The affidavit material must address the factors set out in Bonello. Establishing that fairness favours permitting the examination and that the plaintiff will suffer no undue prejudice will be key. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Mitsis v Holy Trinity Greek Orthodox Community of London and Vicinity, 2021 ONSC 5719 [Mitsis]. [2] Courts of Justice Act, RSO 1990, c C.43, as amended. [3] Rules of Civil Procedure, RRO 1990, Reg 194, as amended [emphasis added]. [4] Maniram v Jagmohan, [1988] OJ No 2877. [5] Jones v Spencer, [2005] OJ No 1539. [6] Clarfield v Crown Life Insurance, [2000] OJ No 960. [7] Lawrence v Primmum Insurance Co, 77 CPC (6th) 388; see also Suwary (Litigation Guardian of) v Women’s College Hospital, 2008 CarswellOnt 887. [8] Abergel v Hyundai Auto Canada, [2002] OJ No 4387. [9] Jeyanthiran v Ratnam, [2009] OJ No 469. [10] Paul Revere Life Insurance Co v Sucharov, [1983] 2 SCR 541. [11] Bonello v Taylor, 2010 ONSC 5723. [12] Mitsis, supra note 1. By Fauzan SiddiquiBlog, Insurance Defence, Personal InjuryDecember 14, 2021December 14, 2021
Mould in your home – the how’s, what’s and why’s – Are you covered by your homeowner’s insurance? Mould – what is it? Mould is a fungus that is related to yeast, mushrooms and other fungi. It can grow in a wide variety of environments including inside buildings. Although it is a natural part of the environment, Health Canada considers indoor exposure to mould a significant health hazard. Moulds are very common in buildings and homes. Mould will grow in places with a lot of moisture, such as around leaks in roofs, windows, pipes, or where there has been flooding. When mould spores drop in places where there is excessive moisture, they will grow. Mould grows well on paper products, cardboard, ceiling tiles, and wood products. Mould can also grow in dust, paints, wallpaper, insulation, drywall, carpet, fabric, and upholstery. Moulds can trigger a variety of symptoms, primarily as a result of allergic responses, although mould can cause certain diseases directly. Potential symptoms include itchy eyes, throat irritation, stuffy nose, coughing, wheezing, headaches, fever and shortness of breath. Infants, children, the elderly, and those with existing health conditions are at greater risk—including those experiencing severe cases of COVID-19. Prolonged exposure may be particularly harmful. Mould can also cause physical damage to building materials including rotting of wood components of the building such as wall studs, floor joists and floorboards as well as damage to other building components such as ceiling tiles, drywall, and carpet. In extreme cases, mould can also cause structural issues if the decay is pronounced. Mould has been identified as a cause of “sick building syndrome”: a condition affecting a building wherein building occupant(s) may feel sick while they are in the building, but it is difficult to identify a specific cause. Testing Testing can determine the type of mould involved, although this is not usually useful information, as all moulds should generally be removed. Testing surfaces Staining may indicate that a surface has been water damaged while discolouration to surfaces may indicate mould growth. Testing for mould can be done by testing surfaces upon which mould is found. Hidden mould growth may be present behind materials if these materials were subjected to water damage in the past and have since dried out. They can be at increased risk of future mould growth if exposed to damp conditions in the future. A lab will examine the samples under a microscope and assess the extent of the mould growth. The extent will be classified as sparse, moderate or abundant. The presence of mould spores without other fungal structures associated is assessed as follows: a few spores (< 10 spores average per microscopic field at 400X),some spores (10 – 100 spores average per microscopic field at 400X),many spores (> 100 spores average per microscopic field at 400X). The presence of a few spores generally represents settled spores on the surface of the sample rather than indicating mould growth. Testing air quality Testing can also be done by testing air quality. Currently, there is inadequate scientific evidence to establish a clear relationship between airborne spore concentration and adverse health symptoms. As a result, there are no exposure limits or numerical guidelines for airborne spore concentrations exceeding which would indicate a health risk to building occupants. Health Canada does not recommend air sampling, presumably for this reason – it provides information that is not useful in dealing with a mould problem. Remedial work The first step in dealing with mould is to eliminate the damp conditions that gave rise to the growth of the mould. Then the mould itself should be removed. There is little point in removing mould if the damp conditions that gave rise to the mould have not been adequately remediated, as the mould will just regrow. In some cases, mould can be dealt with by cleaning and disinfecting. In extreme cases, extensive remediation work can be required to remove contaminated drywall, framing and other affected building components. Here is a basic checklist to remediate the situation yourself: Remove or replace carpets and upholstery that have been soaked and cannot be dried promptly.Clean up and dry out your home thoroughly and quickly (within 24-48 hours) after any flooding. Dig out mud and dirt.Scrub cleanable surfaces (such as wood, tile, and stone) with soapy water and a bristle brush. Thoroughly clean all hard surfaces (such as flooring, trim, wood and metal furniture, countertops, and sinks) with water and dish detergent.Dry surfaces quickly and thoroughly after cleaning.Use a fan, air conditioner or dehumidifier to help the surfaces dry after you finish cleaning. Consider professional assistance. You may be able to clean a small area of mould on your own, but a larger presence should be handled by a professional restoration contractor. Prevention You can control mould growth by: Controlling humidity and moisture levels;Promptly fixing leaky roofs, windows, and pipes;Thoroughly cleaning and drying after flooding;Ventilating showers, laundry, and cooking. HEPA air filters can be useful in filtering out airborne mould spores that might otherwise trigger allergic or other reactions. Your home should be checked routinely for signs of mould. It could appear as a fuzzy discolouration on surfaces, often accompanied by moisture. It may also be accompanied by a damp or musty odour. Watch for obvious signs of leaks, condensation, or flooding. The source of moisture may also be hidden, so it is important to check behind walls or above ceiling tiles—especially if water damage has occurred. Mould can grow quickly, so it is important to deal with latent dampness immediately. Moisture problems are usually preventable. The longer damp conditions are allowed to remain, the more mould is likely to grow and spread and the more difficult and expensive it will be to clean up. The Role of Homeowners Insurance You may be covered for damage caused by mould in your homeowner’s policy, although not all policies provide this coverage as standard coverage. The first step is to review carefully your homeowner’s policy to see what is covered and what is not. There may be specific exclusions for mould damage in your policy. Your insurer or lawyer can help you understand your policy and make recommendations. If mould is not explicitly covered, you may be able to purchase “riders” or other additional insurance to get the most comprehensive protection. Typically, if sudden water damage occurs, your policy will provide coverage. This would generally extend to consequential damage such as mould. In that cases, your policy would cover the cost of repairs. However, if the problem goes unnoticed or is allowed to persist for an unduly lengthy period of time, you may jeopardize your coverage. Making a Claim Contact your insurer if you have damage from mould or if you need to pay for mould clean-up. Once your coverage is confirmed, your insurer can assist with the cleanup and repair process. A representative of your insurer will likely inspect the damage as part of the claims process. Document the situation yourself with notes and photographs. After your claims and clean-up are complete, check the area regularly to ensure all underlying issues have been resolved. Conclusion Mould in your home is a significant health hazard and it may in extreme circumstances threaten the structural safety of your home. Each season, take the time to inspect everything in your home to detect moisture and mould problems. If the pandemic has caused you to allow routine home maintenance to lapse, now is a good time to get back on track. “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.” *This Blog Was Co-written by Student-at-Law David Heppenstall* By Fauzan SiddiquiBlog, Insurance DefenceOctober 27, 2021July 5, 2023
Witness Statements- Best Practices Obtaining Statements Witness statements should be obtained as soon as possible after a loss. The likelihood of locating witnesses is highest immediately after an incident and diminishes over time. It will also be more likely that a precise and detailed statement can be obtained while the witnesses’ recollections are fresh. Do not wait until preparing for trial to obtain witness statements. Statements should be obtained in sufficient time to be used at mediation or pre-trial. Get them as quickly as possible. Obtaining liability statements after notice of a pending action may help discourage further litigation. The information contained in the statements can also be helpful on examinations for discovery. Statements should generally be obtained from all liability witnesses. Do not rely on the statements included in the police notes, as these are frequently incomplete or unclear and often inaccurate. It is important to iron out any inconsistencies at the outset. Statements should also be obtained from any potential damages witnesses, such as neighbours, co-workers or friends. The identity of these potential witnesses can be obtained at examinations for discovery. Obtaining statements from these witnesses should be undertaken as soon as possible, and in any event well in advance of mediation or pre-trial. Reviewing Statements Where statements are obtained by an independent adjuster, they should be reviewed carefully to ensure that they are complete and unambiguous. Review the statements carefully for the following: Does the statement pin down the liability issue adequately?Is additional information required?Is there scope to challenge the witness on cross-examination that should be addressed at the time of obtaining the statement? If any additions or revisions to the statement(s) are required, they should be undertaken promptly and a revised statement should be prepared and forwarded to the witness for review. The witness should be asked to confirm the revised statement’s accuracy. If possible, the revised statement should be signed by the witness. The statement can also serve as an aide-memoire. Use of Statements Rule 31.06 (2) of the Rules of Civil Procedure requires disclosure of the names and addresses of potential witnesses. A summary of the evidence of the witness must also be given. The statement itself is privileged and except in rare circumstances, a copy of the witness statement should not be produced to opposing counsel. It is essential that the statement(s) be listed in Schedule B of the Affidavit of Documents. The statement can be referenced at mediation or pre-trial, where it will retain its privileged character. The statement can be used to assist in preparing the witness for trial. It is important, however, to ensure that the privilege attaching to the statement not be inadvertently waived. For example, if the witness states that they reviewed the statement to refresh their memory for trial, opposing counsel may be entitled to compel production of the statement. Accordingly, counsel should use the information in the statement to prepare the witness, without necessarily putting a copy of the statement before the witness. Should the opposing counsel call the witness at trial, the statement can be used to cross-examine the witness. If you have further questions about witness statements or any other insurance defence matter, do not hesitate to contact George O. Frank at 416-446-5858 or george.frank@devrylaw.ca. “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, Insurance DefenceApril 14, 2021April 14, 2021
Cannabis And Cars – Highs And Lows Of Defending A Driver That Consumed Cannabis In Tort Litigation Like alcohol-impaired driving, drug-impaired driving is a criminal offence. Cannabis-impaired driving can result in injury or death for the driver, passengers or others on the road including pedestrians and other drivers. Cannabis: impairs judgment impairs the ability to react increases the chances of being in a crash[i]. The combination of alcohol and cannabis can further exacerbate the impairment. In 2018, the Criminal Code of Canada was changed to allow possession of marijuana for recreational use but Bill C-46 created new criminal offences for driving while impaired by tetrahydrocannabinol (THC), the active ingredient in marijuana. These new offences are based on the level of THC in a person’s blood within two hours of driving. Alcohol The prohibited blood-alcohol concentration (BAC) is 80 milligrams (mg) or more of alcohol per 100 millilitres (ml) of blood. Cannabis (THC) There are two prohibited levels for THC, the primary psychoactive component of cannabis: it is a less serious offence to have between 2 nanograms (ng) and 5 ng of THC per ml of blood. It is a more serious offence to have 5 ng of THC or more per ml of blood. Combination of alcohol and cannabis The prohibited levels of alcohol and cannabis, when found in combination, is 50mg or more of alcohol per 100ml of blood and 2.5 ng or more of THC per ml of blood. Other drugs Having any detectable amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited. The prohibited level for GHB is 5mg or more per litre of blood since the body can naturally produce low levels of this drug. A challenge however, is that THC can sometimes be detected in a person’s blood even 30 days after they consumed cannabis. Impaired Driving Has Tort Implications While charges are not admissible evidence in tort litigation, criminal convictions are admissible evidence of wrongdoing. Accordingly, any criminal conviction is problematic to the defendant driver. Where there were no convictions, then the usual rules of negligence will dictate exposure. An area to consider when mounting a defence is to determine in what format was the cannabis consumed? For example, was it inhaled? Was it in the form of a baked good? A gummy? Was any alcohol consumed? What prescription medication was the driver taking? Different formats have different effects on different timeframes. When was it was consumed? During the car ride? 2 hours before the car ride? The night before? THC, the psychoactive ingredient, takes time to leave the system and its metabolized carboxyTHC takes even longer – some say it can even take up to a month. Accordingly, any test that is positive for carboxyTHC is arguably only evidence that cannabis had been consumed and not that the driver was impaired by cannabis. Assessing the impact of cannabis is far more complicated than assessing the impact of alcohol. While, alcohol levels are correlated to impairment, the same is not true of cannabis. Another area to consider once cannabis consumption has been raised is to determine the level of the driver’s impairment. What was the driver’s condition? Were the driver’s eyes bloodshot? Glassy? Pupils dilated? Did the driver have balance issues? Slurred speech? Confusion? Inappropriate responses? Delayed responses? Was the driver tired, sleepy? A final area to consider is whether the accident was caused by marijuana impairment or by some other factor. For example, was there poor lighting, was there black ice, did another driver do something that triggered the accident, did an animal jump out of the road unexpectedly etcetera. It may be there were other causes to the accident that had nothing to do with impairment. In order to defend a driver about the effect of the cannabis consumed, witness statements from everyone that had contact with the driver at the scene will be useful to determine whether or not the driver exhibited any evidence of impairment. A toxicologist expert will also be necessary to determine the levels of cannabis and the anticipated effects or lack thereof in the particular circumstances. An accident reconstruction may be considered as well. This area is developing. There have been criminal trials dealing with impairment, there have been labour decisions, human rights decisions and union arbitrations that are starting to consider and challenge the consumption versus impairment issues. I expect court decisions in the tort context will follow but the litigation process is longer and has been slowed down due to COVID. [i] Cannabis impairment – Canada.ca “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, Cannabis Law, COVID-19, Insurance DefenceDecember 17, 2020March 13, 2024
What Should I do if I’m in a Car Accident? Ontario is governed by a “no-fault” scheme of insurance for things like covering the damages to your vehicle and providing you certain benefits (“accident benefits”) to pay for physical treatment, replace a portion of your missed income, and provide reimbursement for attendant care expenses. Other Canadian provinces have their own, similar versions of this. If you’re in an accident, the first thing you should do after reporting it to the police and/or a local collision reporting centre and seeking medical attention is to call your insurance company. Your insurer can advise you about the next steps for repairing your vehicle and seeking accident benefits. There may be an inclination to seek the advice of a personal injury lawyer if you were injured. But you might also be concerned you are at fault for the accident and wonder how to protect yourself against future claims. If you think you may be at fault, it is possible that other people who were injured in the incident will bring a claim against you in the future. In most cases, they have two years to do so, though sometimes they will do so well before that and in other cases may have reasons for doing so later than that. It is wise to consider gathering names and information of witnesses who may have observed the incident, particularly if they can speak to details that may suggest you are not at fault, or not fully at fault. For example, if you were making a left turn when the collision happened, it would be useful to know if any witnesses observed the other car coming through on a red light as you were making that turn. If you feel there were outside factors that contributed to the accident, like the actions of another driver, poor lighting conditions, or the like, make note of these things too and report them to your insurance company. They may decide to make further investigations and gather evidence that could be helpful down the road if you are sued. It can be difficult gathering this information as time passes. Consider taking photos of the scene of the accident if possible and of your vehicle. Accidents happen and it can be overwhelming if you’re both injured and concerned about claims against you. Reporting important details to your insurance company and keeping records of those details yourself can help you maintain a solid defence should claims arise against you. For queries regarding insurance defence, please contact our Personal Injury lawyers 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, Insurance DefenceNovember 27, 2020March 18, 2024
An Open Email Dated June 15, 2020, From Insurance Defence Lawyer, Miriam Tepperman, To Our Attorney General Regarding the Importance of Jury Trials I am a proud insurance defence lawyer. I am proud of my role in the justice system that helps people get back on their feet after an injury while keeping the system honest. Both aspects are needed. The system is set up that for those that are injured and not so injured have to focus on their injuries and limitations in order to receive maximum compensation. Some are justified and some may not be. Juries are an important part of this process. Juries have historically been involved in bodily injury trials in Ontario. Juries bring the approach of the common person. The beauty of the common person’s perspective in Ontario is that there is no stereotypical “common person”. We live in a wonderfully multicultural province that I am extremely proud to be a part of. The “common person” therefore includes the newly married, the single, the LGBTQ, the parents, the non-parent, the working, the retired, the Christian, the Jew, the Muslim, the Hindu, the Punjabi, the atheist, the agnostic, the black, the white, the Hispanic, the Asian, the Arab, the Aboriginal, the differently-abled, the new citizens, the multi-generational Canadians, the grocer, store clerk, the small business owner, the teacher, the doctor, the real estate agent, the union and non-union workers. These are just a few examples of our very diverse tapestry. The jury, therefore, brings new and important perspectives to keep our systems rooted in the values of the day. It keeps our system decisions fresh and forward-thinking. The act of the jury trial has not changed. What I have noticed change since I began my legal career 18 years ago, are the decisions of juries in soft tissue/chronic pain cases. It is these cases that have brought the plaintiff bar, particularly in the last 5 years to question the appropriateness of jury trials. This debate, on a simplified level, is whether a plaintiff suffered muscle pains that resolve within a reasonable period of time or whether the plaintiff suffered permanent ongoing pain that permanently limits the plaintiff’s activities and wellbeing. It is these cases, that a jury is perfect for and their role important. The majority of actions settle long before trial. The actions that are tried, are those where the parties fundamentally do not assess the circumstances the same way. Juries are important in these soft tissue/chronic pain cases. The juries, in addition to the judge, bring to the court their own diversified experiences. The juries bring with them their own perspectives, biases, life experiences and anecdotal experience of others around them. They bring the experience collectively of those who have worked physical jobs and understand the aches and pains associated with it, irrespective of injuries. They bring the joint experience of suffering non-compensable diseases and injuries and how long they suffered, and how they overcame them. They bring collectively the collective experience of the ability to return to some type of work if not the pre-accident work when health, family circumstances or injury strikes. Jury decisions have been changing. Juries are coming back with verdicts that are not as sympathetic to the plaintiffs that they do not believe and or that are not mitigating their damages. Juries are compensating those that they believe are badly hurt. The cases where there are objective injuries, with objective limitations are largely settled and when they do go to trial, those parties are largely compensated appropriately. It is the cases where credibility of the plaintiff that is being tested, where the jury has garnered the most attention. Accordingly, I believe it is important to stay the course. Earlier this year, Attorney General Downey’s changes to the Rules of Civil Procedure and the Courts of Justice Act came into effect. These changes included raising the cap for the simplified procedure process to actions seeking damages of $200,000 or less (previously the cap was $100,000) and juries are no longer permitted as of right for civil actions that fall within the simplified procedure unless they meet a specified exception (bodily injury cases do not). Accordingly, soft tissue injuries will fall within the simplified procedure. There is no doubt that the trial process is expensive and frustrates both the plaintiffs and defendants. There are long delays in the system due to an overburdened justice system. Weighing the issues and concerns, the benefits are hoped to outweigh the drawbacks in the circumstances where damages suffered fall within the $200,000 damages award threshold. These changes, however, likely will not address the circumstances where the defendant believes it is a matter that falls at most within the simplified procedure but the plaintiff believes that it is a severe chronic pain case. Perhaps more severe penalties are needed for those actions brought in the regular procedure that should have been brought with the simplified procedure. While the plaintiff bar is quick to point out that defendants are backed by insurers in these types of cases, they fail to mention two important points. First, not all claims are fully insured. It is common now to see claims seeking $2,000,000 or more, while non-commercial defendants generally hold insurance policies of $1,000,000. Accordingly, the defendant him or herself, and not the insurer, is exposed to those excess amounts. The second matter that is not talked about by the plaintiff bar is that over the last number of years, plaintiffs have been getting some type of litigation insurance to help them fund the litigation. Accordingly, plaintiffs are behaving very differently in litigation, driving costs up further than they had when I had started my career. Many Ontarians own vehicles and if not know people that do so they understand that this litigation is largely backed by insurance. They don’t need to be told. Similarly, Ontarians are proud of our publicly funded health care system and know that is available to the injured as well. These days many plaintiffs have some type of litigation insurance to help them fund the litigation and protect them from cost awards. None of this is disclosed to the jury. The role of the jury is to decide the facts of the cases and assess the damages arising from those facts. It is not the role of the jury to worry about how the litigation is paid for and what impact the requirement to pay will have on an individual party. There is no doubt that we face unusual hurdles due to the COVID-19 pandemic. There is no doubt that the system can be modernized by adopting more technology. Let’s use this time to streamline the processes but not to silence voices. The voice of the jury, particularly for the amounts at issue through the regular process is important to make sure the justice system hears the voice of the evolving values of the community it serves. By Fauzan SiddiquiBlog, COVID-19, Insurance DefenceJune 15, 2020September 29, 2020
Insurance in the COVID-19 Era, Can Insurance Save Your Business? This is a time of great uncertainty where businesses are incurring losses and extra expenses due to the coronavirus. The question is: who has to bear these losses? Is it the businesses themselves? Government? Insurance? Your company may have insurance that can help save your business during these unprecedented times. This article does not constitute legal advice What Insurance Does the Business Have? Property/Business Interruption Act of God/Force Majeuere Commercial General Liability Policy Umbrella or Excess Policies Civil Authority Extension All Risks Policy Environmental Insurance Policy Event Cancellation Policy Infectious Disease Endorsement Non-Physical Damage Endorsement Pandemic Endorsement A Policy With Specialized Wording What Is Business Interruption Coverage? Business interruption insurance is intended to indemnify a business for its loss of profit and additional expenses that arise due to an insured peril.[[i]] What Is “Act Of God” Coverage? “Act of God” or “Force Majeure” in insurance terms is a damaging event that is beyond human control, for example, an earthquake or a hurricane[[ii]]; however most policies have specific exclusions for natural disasters and viruses under the excluded perils exclusions in its policies. Does the Commercial General Liability Policy Provide the Necessary Coverage? Many Commercial General Liability Policies provide business interruption insurance but unfortunately, many businesses only have such coverage under their commercial property insurance policy.[[iii]] If that is the case, business interruption arising out of property damage may trigger the policy but an event such as coronavirus is unlikely to do so if the claim is for lost income due to loss demand in this coronavirus era. That said, if the business is unable to operate due to the presence of the contagion in the premises, then more questions should be asked.[[iv]] For example, if a manufacturer of food has to shut down while the facilities are disinfected, it becomes a more interesting question, than whether the facilities are losing revenue because the demand for its product has fallen. Another thing to consider is whether there was “Act of God” coverage under the commercial general liability possibility.[[v]] Umbrella and/or Excess Policies These policies should be reviewed to consider whether they could be triggered. Infectious Disease Endorsement A business should determine if it has an infectious disease endorsement that may provide coverage for losses by infectious or communicable diseases. This may provide COVID-19 coverage for losses.[[vi]] Non-Physical Damage Endorsement Similarly, a business should consider if it has a non-physical damage endorsement as it may provide coverage for COVID-19 losses.[[vii]] Civil Authority Endorsement Civil authority endorsements relate to situations where access to the premises is prohibited by civil authority. Often the length of time may be specified such as 2-4 weeks.[[viii]] Issues will need to be considered about mandatory versus voluntary closures and whether there is a partial versus a complete closure and whether there was COVID-19 present versus a closure to prevent its presence. All Risks Policy The wording of the policy will need to be considered. This may be an area where COVID-19 claims may be covered through an argument that COVID-19 presents an identifiable risk to human health and safety. Litigation will likely be needed to determine if a virus is a “direct physical loss” under an All Risks policy. Environmental Insurance Policy Another policy that should be considered is an environmental loss policy. An environmental policy may cover losses from coronavirus if it covers biological contaminants and/or viruses and/or communicable diseases. It would need to cover indoor loss exposure. Many will not meet these criteria but they should be considered.[[ix]] Event Cancellation Policy Many events such as trade shows, festivals, sporting events, conferences, theatre and concerts may have event non-appearance or cancellation coverage. This provides insurance protection in cases where the headliner cannot appear for reasons such as illness or an accident. Many events have been cancelled due to the need for social distancing, so the non-appearance and cancellation clauses may be triggered.[[x]] Policies issued after January 23, 2020, may have a COVID-19 exclusion but policies obtained before that probably do not. Coverage can help the organizers recoup some expenses and losses. Pandemic Endorsement This is not a typical endorsement that a small or middle sized business is likely to have. This policy has been successfully triggered by Wimbledon and NCAA.[[xi]] Policy With Specialized Wording If your business is insured by a policy with specialized wording then there may be coverage where typically there may not be. Consideration of the wording is needed. Does Your Business Have Insurance Coverage Once the policies are identified and the particular endorsements and exclusions are identified, one needs to give consideration to the specific wording. At this point, it is unclear how insurers will consider coronavirus claims and whether they will be considered a “force majeure” or whether they will be excluded. There are currently no pending cases or judicial decisions on the issue, but that will undoubtedly change in the coming months. If you submit a claim and are denied, a legal opinion should be considered to determine whether you may have a viable claim or whether to take no as an answer. [i] Gord McGuire & Tim Zimmerman, “Are Coronavirus Losses Covered Under Business Interruption Insurance Policies?”, The Star (March 27, 2020), online: <https://www.thestar.com/opinion/2020/03/27/are-coronavirus-losses-covered-under-business-interruption-insurance-policies.html>. [ii] HUB Insights, “Act of God Insurance Claims Currently Remain Under Question as Businesses Look for Ways to Recoup Losses in the Wake of COVID-19”, HUB International (April 15, 2020), online: <https://www.hubinternational.com/blog/2020/04/act-of-god-insurance/>. [iii] Chetan Sehgal, Jay Ahluwalia, Matthew Law & Crawford Smith, “Insurance Coverage and COVID-19: Legal Considerations and Loss Quantification Developments”, BDO Canada (April 3, 2020), online: <https://www.bdo.ca/en-ca/insights/advisory/commercial-insurance-loss-accounting/insurance-coverage-considerations-on-covid-19/>. [iv] Gord McGuire & Tim Zimmerman, supra note 1. [v] HUB Insights, supra note 2. [vi] Tim Zimmerman & Gord McGuire, “The Calm Before the Storm: Business Interruption Insurance Litigation”, The Lawyer’s Daily (April 9, 2020), online: <https://www.thelawyersdaily.ca/articles/18561/the-calm-before-the-storm-business-interruption-insurance-litigation>. [vii] Ibid. [viii] Chetan Sehgal, Jay Ahluwalia, Matthew Law & Crawford Smith, supra note 4. [ix] David Dybdahl, “Environmental Insurance Coverage for COVID-19 and Other Biological Hazards”, IRMI (April 2020), online: <https://www.irmi.com/articles/expert-commentary/environmental-insurance-coverage-for-covid-19-losses>. [x] HUB Insights, “Coronavirus Resulting in Event Cancellation? Your Non-Appearance/Cancellation Policy May Help Counter Costs”, HUB International (April 10, 2020), online <https://www.hubinternational.com/en-CA/blog/2018/09/event-cancellation-insurance/>. [xi] HUB Insights, supra note 2. “Our articles are 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, COVID-19, Insurance DefenceMay 12, 2020July 5, 2023
“Our articles are 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.”
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
Insurance Adjusters in U.S. look to save time by using Drones to assess Damage Travelers Insurance in the U.S. is responding to the hurricane in Texas by training their adjusters to become certified drone pilots. Travelers Insurance had 65 certified pilots as of Friday among the 600 employees that are deployed to the Houston area. Overall, they have 300 employees that are certified drone operators, and are looking to get that number to 600 by early 2018. Other companies such as State Farm and Allstate have drones, but State Farm has decided to not use its drone fleet in Houston, just yet. Allstate has contracted a third-party drone operator to do hundreds of inspections a day in Houston. By using drones, insurance companies can save time and protect their adjusters from potentially unsafe areas, not to mention being able to get “the customer back on their feet more quickly, paying them more quickly so they can get their damages repaired as quickly as possible,” says vice-president of claims for Travelers, Jim Wucherpfennig. Since the Federal Aviation Administration (FAA) eased some restrictions last year, insurance companies have increased their fleets. Drones have become very inexpensive and as a result, most major insurers now have a fleet – “the benefits were evident in the response to Hurricane Matthew last October,” according to Jim Whittle, chief claims counsel for the American Insurance Association. If you are unable to enter an area due to restrictions or nature, you can fly your drone and get access to the property for an assessment. For Travelers, they do not expect their drone fleet to take the place of human adjusters, as the claims specialists will almost always do an on-the-ground inspection to get a proper final estimate. The drones allow for a head start. For one Travelers employee Laura Shell, a catastrophe claims specialist, she believes that by using a drone it will allow her “to get a look into areas that aren’t easily accessible and onto roofs,” to do her job quickly. In situations like Hurricane Harvey and Matthew it has become evident that the benefits drones provide are far reaching, not only for the insurance companies and adjusters, but also the insured, who are in desperate need of support in order to get their lives back on track after such devastation. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. 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, Insurance DefenceSeptember 5, 2017June 18, 2020
