Deductibility of CPP Disability Benefits

Deductibility of CPP Disability Benefits

The plaintiff in Demers v. B.R. Davidson Mining & Development Ltd. [2011] ONSC 2046 received CPP benefits following a car accident in 1999. A dispute arose as to the deductibility of these benefits.

Prior to November 1, 1996 it was clear that CPP benefits were not deductible. The law in this respect became less clear with the enactment of Bill 59. This Bill dealt with car accidents occurring after November 1, 1996 and before October 1, 2003. As a result of its enactment, s.267.8(1) of the Act provided for the deduction of benefits for “loss of earning capacity”. What wasn’t clear was whether this included CPP benefits.

To complicate matters further, there were two conflicting court decisions. The court in Meloche v. McKenzie ,[2005] O.J. No. 3761 (S.C.J.) looked to the 2003 amendments which specify that CPP benefits are deductible and concluded that this amendment must be a clarification of the original legislation. The court in Sonnenberger v. Creamer, [2009] O.J. No. 754 (S.C.J.) made the opposite finding as it took the position that the amendment did not provide for retrospective application.

There is also a Court of Appeal decision, Kosanovic v. Wawanesa Mutual Insurance Co., [2004] O.R. (3d) 161 (C.A.) which held that CPP benefits were not deductible for this time period. This case was not considered by the court in Meloche and arguments were made by the defendants in Demers that this case should not be considered.

Shaw J. found Kosanovic relevant and binding but also focused on two principals of statutory interpretation to settle the issue: 1) the ordinary meaning of a legislative provision should prevail absent a good reason to reject it; and 2) there must be something in the wording of the provision or in the circumstances in which it is enacted to indicate that the provision is meant to be retroactive. He concluded that the legislation in effect in 1999, when the accident occurred, does not expressly provide for the deduction of CPP benefits and the amended legislation does not indicate retroactivity.

As a result of this case there appears to be two distinct periods of time: 1) accidents which occurred between October 23, 1989 and September 30, 2003 (CPP benefits not deductible); and 2) accidents which occurred after October 1, 2003 (CPP benefits deductible).

10 things your homeowners insurance DOESN'T cover

Surprise: Here are 10 things a typical homeowners policy doesn't cover:
  • Damage due to animals or rodents.
  • Mold, mildew or dry rot.
  • Earthquakes -- including earth movement, landslides, etc.
  • Slow leaks.
  • Flooding: You have to buy a separate flood insurance policy to be covered for floods, tidal surges and tsunamis.
  • Intentional damage.
  • Foundation settling and cracking.
  • Volcanoes: Damage from tremors caused by the eruption generally isn't covered, but removal of ash deposits -- or damage from them -- often are covered.
  • A home business: If you operate a home-based business, you might be uninsured and not even realize it. Your homeowners policy may provide a limited amount of coverage for business-related personal property in the home, but don't wait until you have a loss to find out if you're covered. Talk to your agent.
  • A second residence on the property: Most homeowner policies don't cover a second residence.
Here, on the other hand, is a list of what is covered under a typical homeowners policy.
Need help with insurance problems?

Need help with insurance problems?

If you live in Washington state, we can help with insurance questions and problems. (We're the state agency that regulates insurers, agents and brokers. We get tens of thousands of calls a year from consumers.)

What kind of help? Here are a few examples of recent cases we've handled:

-We helped a dentist get paid when one insurer didn't process a claim because it didn't have the medical codes from the primary insurer. We looked up the codes (on the primary insurer's website; not so hard), provided them, and passed along a friendly reminder about the legal requirements for timely claims processing. The insurer processed the claim the next day.

-We helped another consumer get a life insurer to pay out the proceeds -- more than $250,000 -- on his mother's annuity policy.

-We helped a consumer after an insurer found him 100 percent at fault for an accident. We reviewed their investigation and discovered that they'd failed to get statements from key players (the other driver, for one, and a police officer witness who happened to be sitting beside the road when the accident occurred).  We asked the company to contact the two. Result: they reversed their decision, finding the other driver 100 percent at fault for the accident.

-We helped a homeowner expedite and settle a disputed home repair claim for more than $145,000.

Need help? Call us at 1-800-562-6900 or see

(And if you live in another state, here's a handy map with contact info for your own state's insurance regulator.)
Summary judgment in jury cases

Summary judgment in jury cases

Is summary judgment available in jury cases?

Cooke v. Toivonen (2011), 105 O.R. (3d) 232 (S.C.J.)

This case involved a multi-vehicle automobile collision. The Cooke vehicle was hit from behind by Price, and in turn Cooke hit Toivonen. Toivonen hit the vehicle in front of him.

The plaintiffs consented to an order releasing Toivonen from the action; however, the remaining defendants objected, arguing that to do so would amount to bifurcating the trial. Rule 6.01 permits bifurcation only if all parties consent. In Kovacs v. Kovacs, the Court of Appeal held that jury cases are an exception to the court’s inherent power to split a trial.

The Court held that it has the authority to order summary judgment in jury cases. Summary judgment is not at odds with a litigant’s right to a jury trial. There was no air of reality to a claim that the Toivonen vehicle could be liable and the action and crossclaims against Toivonen were dismissed.
Health insurance rate requests now public

Health insurance rate requests now public

Individual and small employer health insurance rate requests are now public. See the complete filings received since July 1, as well as a summary for each request.

Several health insurers filed rate requests prior to July 1, but have voluntarily made their filings public. They include: Asuris Northwest Health, Kaiser Foundation Health Plan, and Regence BlueShield.

Insurance Commissioner Mike Kreidler proposed the legislation (HB 1220) making health rates public on behalf of the consumers who contact his office, demanding to know what's driving their higher premiums. State law prevented him from sharing the information that insurers use to justify rate requests - even after the rate was approved.

The new law makes most individual and small employer health insurance rate filings public shortly after they're received. This includes how much of the requested rate will be spent on medical claims, administrative costs and profit. Also, the public will see if their rate change includes any benefit changes.

Kreidler's office is building an interactive web tool where the public can search rate requests, post comments, and sign-up to get an e-mail when their health plan requests a change and a decision is made. The new tool is scheduled to go live early this fall.
Owner of auto glass companies sentenced in $1.6 million fraud case

Owner of auto glass companies sentenced in $1.6 million fraud case

A Burien auto glass company owner has been sentenced to jail for a billing scheme that's believed to have cost insurers more than $ 1.5 million.

Michael Alan Perkins, 44, pleaded guilty to three counts of first-degree theft in King County Court July 1. He was sentenced to 9 months in jail, with 30 days of the sentence converted to 240 hours of community service.

Investigators for state Insurance Commissioner Mike Kreidler are recommending a total of more than $1.6 million in restitution to the companies. The court will decide the amount at an upcoming hearing.

Perkins is the owner of Autoglass Express Inc. and Premier Auto Glass, LLC., both run out of Perkins' Burien home. The glass shops overbilled insurers, including State Farm, Allstate and MetLife insurance companies.

An investigation by Kreidler's office's anti-fraud Special Investigations Unit, which spent months combing through more than 10,000 records, found more than $1.5 million in deceptive billing by Perkins' companies between September 2005 and December 2009. Read the full release.
Insurance Fraud

Insurance Fraud

The front page of the Toronto Star today headlines "Shady clinics bilk $1.3 billion in bogus car insurance claims scam".

The related article states:

Ontario’s car insurance industry is under attack by bogus medical clinics that use fake accident treatment charges to milk the system...

Travel around Toronto and you will see more and more of these rehabilitation clinics popping up. Anybody can open one and they are not regulated. One New York man with an auto insurance fraud conviction is listed as administrator of a Mississauga clinic.

...Here’s how it typically works.

Tow truck drivers or paralegals direct accident victims — drivers and passengers — to rehab clinics. They might get a finder’s fee of $1,000 cash or, in the case of paralegals, a percentage of the payout. It is not uncommon for a clinic to bill an insurer $40,000 over the life of a claim.

The accident victims the Star found often spoke little or no English. At the clinic they were handed forms to sign that gave the clinic the right to submit claims to their insurance firm and receive payments.

Here is a link to the Toronto Star's website.
Deductibility of Statutory Accident Benefits

Deductibility of Statutory Accident Benefits

Sutherland v. Singh, [2011] O.J. No. 2901 (C.A.)

The plaintiff was eligible for income replacement benefits (IRBs) and caregiver benefits (CGBs). He elected to receive CGBs. Under s. 267.8(1) of the Insurance Act, damages are reduced by payments for statutory accident benefits that the plaintiff received or that were “available”. The issue on appeal was whether IRBs were “available” to the plaintiff (thus allowing the tort defendant to deduct them) even though he elected to receive CGBs. The Court of Appeal held that the answer is “no”.

Justice Gillese held that once the plaintiff elected to receive CGBs, IRBs were no longer available to him. The purpose of s. 267.8 is to prevent double recovery. The effect of allowing the defendants to deduct CGBs that the plaintiff received as well as IRBs that he never received would be to create a windfall for the defendant.

10 things to do after a car crash

The National Association of Insurance Commissioners recently put out a checklist to help you gather the neccessary information after a car crash. Here are the their 10 things to do after a car crash: (And here's a printable form for your glove compartment)

1. Remain calm.

2. Assess the scene. Do not get out of your car if it is not safe to do so.

3. Check for injuries.

4. Call the police. Tell them where you are, what happened and if there are injuries.

5. DO NOT admit fault.

6. Exchange information with the other drivers. Get: NAME, ADDRESS, PHONE, INSURER’S NAME, INSURER’S PHONE and POLICY NUMBER for all of the drivers involved.

7. Get names and phone numbers of witnesses.

8. Take photos/video of the scene including the damage to all cars. Cell phone photos will work to document initial damage.

9. Write down/record your record of the events.

10. If the police respond, find out where to get a copy of the police report for your claim. If the police do not come to the scene, ask police dispatch where you can file an incident report.