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.”
Are Uber Drivers Properly Insured? Since its inception over 6 years ago, ride-sharing service Uber has continued to make headlines as one of the most controversial technology companies in the mobile era. This “uber-convenient” service, which uses an online app to connect passengers with drivers using their personal vehicles, has faced legal challenges from consumer groups, municipalities, and provincial legislators. In the face of these obstacles, Uber has continued its expansion to more than 300 cities and is now valued in excess of $40-billion (US). The Uber app allows customers to order rides on their smartphones, have them automatically billed to their credit cards, and monitor who is picking them up. One of the controversial issues that Uber faces is properly ensuring its drivers. In Ontario, the standard automobile policy excludes coverage when the automobile is used to carry paying passengers or used as a taxi. Earlier this year, the Financial Services Commission of Ontario (FSCO), which regulates provincially-incorporated property and casualty insurance companies, warned drivers and users of the ride-sharing services that they may not be protected against certain damages, losses, and liabilities that may arise out of use of the service. While Uber drivers should be opting for a more expensive commercial license, most do not, and instead, continue operating under their existing personal auto insurance policies. Under these policies, if an Uber driver were to get into a serious accident while driving for the ride-sharing company, insurers would likely limit the amount they pay out in claims. In addition, they would then go after the driver for the money for violating the terms of their personal policy. Uber has responded to these insurance concerns by providing contingent insurance to cover drivers in case they encounter problems, however, the company has been tight-lipped on the exact terms of the policy that operates in Canadian cities. Uber ensures this policy covers everyone during a fare, but there is uncertainty about coverage before and after and even during the ride. Without the details of the policy, it is impossible to know whether it provides adequate insurance for drivers and users. In the face of these insurance complications, The City of Toronto has taken steps to interfere with Uber’s operations. Last November, the City filed an injunction to shut down Uber’s ride-sharing application. According to a recent article in the Globe and Mail, The City of Toronto is claiming that Uber’s service violates municipal taxi licensing regulations—failing to meet the $2-million coverage that is required to operate under city bylaws. However, Uber’s website maintains that it provides $5-million in insurance coverage for users. In March, a judge ruled that if the company chooses to provide a copy of its insurance policy as evidence, the document must be made public. Uber has argued that the document is a “trade secret” and that making it public “would cause serious harm to its commercial interests and competitive position.” But Justice James Diamond of the Superior Court disagreed with this, stating in his ruling, “I am not satisfied that Uber has presented sufficient evidence to show that disclosure of the insurance policy would lead to a loss of any competitive advantage.” This week, the Superior Court of Ontario put the issue surrounding Uber’s operations to rest, for the time being, dismissing the city’s application for an injunction. In his decision, Justice Sean Dunphy concluded that there is “no evidence” Uber is operating as a taxi broker, and therefore not subject to city bylaws regulating taxis. As a result, Uber will continue its operations in Toronto. For more information regarding this blog post or any other insurance-related topic, please contact our insurance defence group at https://devrylaw.ca/insurance-defence/ or our personal injury group at https://devrylaw.ca/personal-injury-law-firm/ “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 DefenceJuly 16, 2015June 16, 2020
