PUBLICATIONS

This paper provides detailed information across all Canadian jurisdictions regarding:

• Whether interest from litigation loans is recoverable by the plaintiff in Canadian actions, and
• What the impact is of adverse insurance on litigation across Canada.

On September 23, 2020, the License Appeal Tribunal (“LAT”) released a ruling that it does not have jurisdiction to award punitive damages.

The Applicant filed a motion to the LAT requesting that a claim for punitive damages be added as an issue in dispute on the basis of an alleged privacy breach.

The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.

With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information.

There are three guiding principles...

The enactment of Ontario Regulation 283/95 – Disputes Between Insurers (the “Regulation”) has obliged insurers to continue payment of Statutory Accident Benefits (“SABS”) to injured person even where entitlement to these benefits is disputed. At the same time, the insurers ‘battle it out' behind the scenes over which has higher priority and should be paying for the claimed benefits.

A priority dispute arises when there are multiple motor vehicle liability policies which might respond to a SABS claim made by an individual involved in a motor vehicle accident.

Section 268(2) of the Ontario Insurance Act sets out the hierarchy of insurers obligated to pay SABS with respect to the occupant claimants, as follows:

The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.

Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient. 

The last 20 years have seen radical advances in technology, the like humankind has never known. The revolutionary way in which data can now be stored, catalogued, and shared has arguably led to a significant “digitization” of individuals. Simply, more of our lives are being recorded than ever before, whether it be voluntary (Facebook, Instagram, Snapchat etc.) or involuntary (intelligence gathering, surveillance etc.).

In light of this digitization, there has been a growing pressure to carve out a space where neither corporations nor government can intrude on the individual, and when they do, to govern what can be made of that information. This is essentially the concept the law recognizes as “privacy”.

Just as Confucius guided us so many centuries ago, similarly, in order to understand the concept of causation in accident benefits context, we must look to the past...   

Although tort law clearly limited the use of the "material contribution" test, the accident benefits jurisprudence continued to use it in many instances as the appropriate test for causation. 

Section 42(1) of the current Statutory Accident Benefits Schedule,requires an insured to apply for attendant care benefits by submission of a Form 1, the “Assessment of Attendant Care Needs”, completed by an occupational therapist or registered nurse. Typically the Form 1 is submitted and – subject to insurer's evaluation of the claim – reasonable and necessary attendant care benefits are paid out on an ongoing basis.

However, the Schedule does not address what occurs when the Form 1 determines the attendant care benefits which were already previously incurred by the insured for a period in the past. These are known as “retroactive” applications and are rising in popularity.

In August of 2015, the Ontario government proposed significant amendments to the province's no-fault automobile benefits regime, effective June 1, 2016.¹ These amendments, made primarily to two existing regulations, echo announcements made by the government in its 2015 Budget.

The most notable changes are to the following areas: (a) non-earner benefits; (b) non-catastrophic and catastrophic benefits limits; and perhaps most important, (c) the definition of what constitutes a catastrophic impairment. 

To put cyberbullying into perspective, in 2010, 49.5% of students in 33 Toronto junior high and high schools reported that they were bullied online. Cyberbullying, thankfully, has not gone unnoticed. Regulators, parents, and the courts alike have grappled with the best way to address the phenomenon and find productive solutions. From properly defining and identifying the issue, current enforcement strategies, anti-bullying legislation, and even with respect to insurance and coverage issues, cyberbullying is proving to be one of the most pressing social issues particularly among young Canadians moving into the 21st century.

On February 18, 2015, Justices Sharpe, van Rensburg and Pardu of the Court of Appeal for Ontario released their long-awaited privacy law decision in Hopkins v. Kay. Despite the fact that the Personal Health Information Protection Act ("PHIPA") is a "lengthy and detailed statute" that comprehensively addresses "the collection, use, disclosure, retention and disposal of personal health information", the Court affirmed that plaintiffs are still entitled to raise the common law tort for breaches of privacy in circumstances involving health information.

With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:

The Final Report of the Ontario Automobile Insurance Anti-Fraud Task Force was released. This task force was appointed to advise the government of Ontario on the extent of automobile insurance fraud and what to do about it. Its findings were as follows:

For those of you who self insure, let’s say the first million. For those of you who own fleets. For those insurers of cars and trucks. For everyone with an automobile policy of insurance. The following is a discussion of the stresses on the auto insurance product in Ontario.

In the decision of Vijeyekumar and State Farm Mutual Automobile Insurance Company (1999) O.J. No. 2178 (C.A.), the deceased died of asphyxiation caused by carbon monoxide poisoning. He was found in his car, the engine was running and the hose had been attached to the exhaust pipe which ran to the front console inside the car beside the deceased. The deceased’s wife and daughter sued the deceased’s automobile insurer for death benefits under his automobile insurance policy. The Court of Appeal determined the applicable test was: