Wednesday, September 22, 2010


Compelling Attendance at a Future Care IME

Here is a useful case in compelling a plaintiff to attend an IME with an occupational therapist.

Moore v. Wakim, 2010 ONSC 1991 (CanLii)

The defendant sought to compel the plaintiff to attend a Future Care Cost Assessment with an occupational therapist. The plaintiff had already undergone an orthopedic IME and a psychiatric IME.

Justice Howden ordered the assessment. The plaintiff had served a Future Care Cost report alleging attendant care potentially exceeding $2,000,000. Justice Howden held that the court has inherent jurisdiction to exercise its discretion in ordering assessments and it is not necessary to show that the assessment is a "diagnostic aid". There is a line of cases which stand for the principle that an assessment by someone who is not a health practitioner (such as an occupational therapist) must be necessary as a diagnostic aid to assist a health practitioner complete his or her report. Justice Howden accepted that the report was vital to the final result in the case since future care was a principal issue.

Cases such as Moore are helpful in obtaining reports to respond to the plaintiff. Such reports can be ordered under s. 105 of the Courts of Justice Act as "diagnostic aids", but may also be ordered pursuant to the Court's inherent discretion.

Wednesday, September 15, 2010


Accident Benefits: Application Forms Not Needed

The following blog entry was contributed by Alexandra Lacko, articling student. She will be making regular contributions to our blog in the coming weeks.

In ING Insurance Co. of Canada v. TD Insurance Meloche Monnex, [2010] O.J. No. 3549 (C.A.), the Court of Appeal for Ontario recently answered a question on what triggers an insurance company’s obligation to pay accident benefits.

The question answered in this case was whether forms completed by a chiropractor who treated the claimants and sent the forms to ING, amount to “completed applications for benefits”, thereby triggering ING’s obligation to pay benefits.

J.A. Gillese held that “an application for accident benefits need not be on a certain form in order to be valid - it need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim.” She further stated that the arbitrator was correct to find that ING had failed to take reasonable steps to obtain the necessary additional information from the claimants.

The four claimants were injured in a motor vehicle accident and were all treated by the same chiropractor for treatment of their injuries. The chiropractor forwarded the four forms to ING because she said she had seen ING’s contact information in her file and wanted to receive payment for the services she had provided to the claimants.

The forms indicated they were accident benefit claims and provided a claim number, policy number and the date of the accident. Each claimant’s full name, address, telephone number, gender and birth date was filled out.

ING tried to contact the claimants based on the information in the forms and found that the telephone number was out of service. ING received a cell phone number for one of the claimants from the doctor. The claimant was reached briefly but did not call ING back. As well, an ING adjuster sent letters to each of the claimants, but all of the letters were sent to one address which was no longer the address of any of the claimants. ING did not receive responses to any of its letters, and ING was not contacted by any of the claimants. The claimants did not send ING applications for accident benefits in OCF-1 Forms. ING closed the file for the four claimants on July 20, 2007.

On July 25, 2007, TD opened accident benefit claims files for the claimants and received four OCF-1 Forms from the claimants’ authorized representative. ING and TD disagreed about which had been the first insurer to receive a completed application for accident benefits within the meaning of s. 2 of O. Reg. 283/95 to the Insurance Act, R.S.O. 1990, c. I.8.

The matter went to arbitration to be determined, in which the arbitrator held that ING was responsible for the payment of benefits because the forms from the chiropractor constituted a “completed application for benefits”. ING’s application to the Superior Court was dismissed. The Court of Appeal also dismissed the appeal.

Wednesday, September 8, 2010


Mandatory Mediation in Motor Vehicle Tort Claims

The Court of Appeal for Ontario has recently held that the refusal of an insurer to mediate a motor vehicle tort claim should attract cost consequences, per subsections 258.6(1) and (2) of the Insurance Act. See Keam v. Caddey, 2010 ONCA 565.

Significantly, the insurer had refused to mediate on the basis that it was of the opinion that the plaintiff's injuries did not meet the threshold test under the Insurance Act. Also significant was the fact that the Court of Appeal said that the offer to settle made by the insurer prior to trial, although a low offer of just $17,500, was an acceptance by the insurer that there was a potential claim to litigate - and therefore mediate.

The consequence of this decision might be to limit offers to settle in cases where insurers would otherwise make a low offer to settle in order to avoid the costs of a trial, especially where threshold is an issue. The other consequence, of course, is that insurers now will have to undertake the expense of mediation even where there is little or no chance of reaching a settlement.

The facts of the case are: After examinations for discovery, plaintiff's counsel wrote counsel for the insurer asking if they could mediate the claim pursuant to s. 258.6 of the Insurance Act. The insurer ignored the first letter. Plaintiff's counsel wrote again. In both letters plaintiff's counsel referred to costs consequences following trial if the insurer failed to participate. The insurer then responded that it would not mediate because it did not think the plaintiff's injuries met threshold. A year later, the insurer made an offer to settle for $17,500 plus interest and costs. The plaintiff won the trial and plaintiff's counsel sought substantial indemnity costs against the insurer for the failure to mediate, which the trial judge refused.

The Court of Appeal, however, found that the insurer had failed to comply with its statutory obligation to mediate per s. 258.6. The appropriate costs consequences were a "significant remedial penalty" in the amount of $40,000 in addition to the costs already awarded by the trial judge for the usual partial indemnity costs award.

Wednesday, September 1, 2010


Employee or independent contractor?

Ligocki v. Allianz Insurance Company of Canada (2010), 100 O.R. (3d) 624 (S.C.J.)

The issue on this motion was whether the plaintiff was an employee or an independent contractor for the purpose of calculating IRBs.

Prior to the motor vehicle accident the plaintiff worked as a personal support worker for an elderly man, Mr. Deluca. Although he had initially been employed by the Victorian Order of Nurses, when it discontinued services, the plaintiff entered into an oral agreement to continue working for Mr. Deluca. The plaintiff conducted himself as if he was an independent contractor by issuing invoices and identified himself as self-employed to the accident benefits adjuster.

The Court held that despite the plaintiff's self-identification as an independent contractor, the facts indicated he was an employee, since he did not provide supplies or equipment, reported to Deluca, and did not undertake any financial risk.

One would have thought that the clear, repeated assertion by the plaintiff that he was an independent contractor would have been determinative of the issue. This decision seems to bring increased uncertainty into this area. It remains to be seen whether the decision will be appealed.