Welcome to In Your Corner
Welcome to In Your Corner. This is a newsletter by Nigel Gilby, Bill Simpson, Marinus Lamers, Chris Dawson, and our team to help keep you up-to-date on what is happening in things that may affect your practice or be of interest to you. We picked the phrase In Your Corner and the logo to emphasize that we are in your corner as we all fight to improve the lives of our clients and/or patients.
In Your Corner will keep you up to date on the latest news, human interest stories and trends, as well as provide commentary on the law and either cases or statutory provisions that may have a direct impact on how you conduct your practices. We hope you will find it interesting and relevant to things that you do and we invite your comments and criticisms as we move forward to help make it as relevant to you as possible.
As many of you already know, there are some significant changes coming to the accident benefit legislation beginning in June. The Lerners personal injury team recently held a 2 day retreat to discuss these changes and the far reaching implications for patients and their extended health care teams. This edition of In Your Corner outlines these upcoming changes and we will also be hosting a seminar for health care providers on April 20th to discuss the changes and the impacts they will have on our mutual clients and/or patients. If you are interested in more details please contact Lisa Bradshaw at firstname.lastname@example.org.
In other news, the Lerners personal injury group has once again won the Consumer Choice Award for 2016. This recognition acknowledges the level of service we offer our clients throughout the duration of their cases. We couldn’t have achieved this without the efforts of our exceptional lawyers and amazing support staff so we’d like to say a special thank you to all of them.
Consider this the ringing of the bell for Round One.
The Lerners personal injury group is really proud of our new website that we launched this month. You can check it out at lernershelps.ca. We wanted our website to be a more accurate reflection of who we are, what we do and, most importantly, the role we play in the lives of our clients. As compared to many of our competitors, we hope you’ll find our new site to be less formal, more personal and incorporating the right mix of graphics, video and text.
Choosing the right lawyer is critical to getting the best results as quickly as possible but it can also be a daunting and overwhelming process. The “right” lawyer doesn’t only mean the one with the right skills and expertise, but also someone who listens and understands the physical, psychological, cognitive and social implications of personal injuries. Most important of all is choosing a lawyer you feel comfortable with, who you can relate to and trust to support you and your family along the journey. We believe our new lawyer bios and the 2 minute individual videos on “Our Team” page helps showcase the more human side of our personal injury lawyers, their personalities and approach in working with their clients. We hope this will help people to choose the right lawyer for them.
Another aspect of the site that we are really proud of is our growing library of client testimonials. At Lerners, our team of lawyers advises our clients on the legal aspects of their cases but we also help in many other aspects of our clients’ lives so that they can focus on their recovery. We help connect our clients with the right medical and rehabilitation teams as well as support services. In many cases having the right lawyer can help ease the stress and uncertainty of personal injury cases. Our client testimonial videos are a chance for potential clients to hear real cases about how their Lerners’ lawyer worked with them and helped them along their sometimes long and painful journey.
Lastly, we wanted to ensure that our clients were able to connect with us quickly, easily and in real time. Our new website allows potential clients to “live chat” with us or to connect with the lawyer of their choice directly. We know that taking the first step to contact a lawyer following an accident can be difficult. We hope that our new website does a good job showing those who need us that we are here them wherever and whenever they need us.
Please take a look and let us know of any feedback you may have. lernershelps.ca
Statutory Accident Benefit Changes: Good Government or just Good Politics?
On June 1, 2016 Ontario accident victims will once again be faced with significant reductions in the medical, rehabilitation and attendant care benefits that will be available to address their injuries. The current $50,000.00 coverage which is available for necessary medical and rehabilitation treatment and the current $36,000.00 available for attendant care benefits (total $86,000.00) will be reduced to a maximum of $65,000.00 for all medical, rehabilitation and attendant care benefits, a reduction of $21,000.00. Moreover the timeframe during which these benefits can be claimed will be reduced from 10 years to 5 years. Further, in the case of a catastrophic injury the current lifetime medical and rehabilitation benefit in the amount of $1,000,000.00 and attendant care benefits in the amount of $1,000,000.00 (a combined $2,000,000.00) will be reduced to a maximum of $1,000,000.00 for all medical, rehabilitation and attendant care benefits. This reduction will also come with a new significantly stricter definition on what constitutes a catastrophic injury which will significantly reduce those who would otherwise qualify for the increased catastrophic injury benefits.
This erosion of the available benefits for accident victims is significant in the context of the history of Ontario’s motor vehicle accident insurance system.
Ontario’s motor vehicle accident insurance system has become a highly complex and confusing area of law fuelled by the fact that over the past quarter of a century it has been in a constant state of transition.
Throughout the 1960’s, 1970’s and 1980’s there were many criticisms of Ontario’s accident insurance system. Many argued that the cost of administering the tort system was too expensive, that accident victims had to wait too long to receive compensation, that the results were unpredictable, were inadequate or were too generous resulting in increasing premiums and that the absence of timely treatment prolonged injuries and disabilities. In response successive governments undertook various major and minor overhauls of our insurance system.
Effective June 22, 1990, the then Liberal government enacted the Ontario Motorist Protection Plan (OMPP) which limited a victim’s right to pursue a tort claim against the at-fault driver but in exchange provided enhanced “no-fault” accident benefits.
Effective January 1, 1994, the then NDP government enacted Bill 164 which provided immunity from tort liability for all pecuniary losses while preserving a victim’s entitlement to pursue compensation for their pain and suffering, provided that the injuries satisfied a prescribed threshold and subject to a $10,000.00 deductible. In exchange all accident victims had access to enhanced accident benefits.
Effective November 1, 1996, the then Conservative government enacted Bill 59 under which an innocent accident victim’s right to pursue both pecuniary and non-pecuniary damages in tort was restored subject to a more stringent threshold and a deductible which was increased to $15,000.00 for injury claims. However these amendments came with significantly reduced accident benefits.
Since then there have been a series of statutory and regulatory changes which for the most part had been designed to further restrict the compensation that can be claimed by accident victims in tort while at the same time reducing the accident benefits that were available.
For example despite recommendations to abolish the verbal threshold it has become more onerous by reason of various regulatory changes while at the same time the applicable deductible has increased from $10,000.00, to $15,000.00, to $30,000.00 and effective August 1, 2015 to $36,750.00. Moreover In future years this deductible will be subject to annual increases to reflect inflation. Further the erosion of the statutory accident benefits from the Bill 164 regime to the Bill 159 regime was continued on September 1, 2010 when for non-catastrophic injuries the $100,000.00 available for medical and rehabilitation benefits and the $72,000.00 available for attendant care benefits were reduced to a maximum of $50,000.00 and $36,000.00 respectively. In addition the concept of a “minor injury” was introduced under which medical and rehabilitation benefits were reduced to only $3,500.00 (including the cost of assessments).
Unfortunately, we have for over a quarter of a century been burdened with successive governments whose decisions appear to be guided more by consideration of what constitutes “good politics” rather than “good government.” The fact that there are more taxpayers who pay premiums than accident victims who require assistance, renders governments susceptible to the efforts of lobbyists. There appears to be greater attention to what message can be used to sell the reduction of benefits (ie. excess fraud in the system) rather than address the systemic problems inherent in the legislation. While fraud in the system may exist and it is important that we be aggressive in addressing it, reducing the benefits available to all accident victims to make fraud less profitable, undermines the purpose of having accident insurance in the first place, which is to provide fair compensation for accident victims. The complexity of our accident insurance system dictates that more work is required to achieve lower benefits which only generates greater pressures on accident victims and their healthcare providers. We need to be mindful of the reference by Justice Osborne in his review of the motor vehicle accident insurance legislation, of the “transaction costs” of administering the system which results in the vast majority of premium dollars and the investment returns they generate, never benefitting the accident victims for whom this system was designed to assist.
Many might blame insurers for the troubles in our insurance system. After all they are responsible for most of the lobbying efforts which have persuaded successive governments to limit the benefits available to accident victims. It is likely that the average taxpayer has no problem concluding that insurance premiums are too high and that the insurers pursue excess profits at the expense of accident victims.
Likewise, some might blame personal injury lawyers. London appears to be subject to aggressive advertising campaigns by lawyers who appear to be more skilled in marketing than they are in representing accident victims. The sad truth may be that a typical taxpayer does not hold personal injury lawyers in any higher regard than they do insurers.
However insurers have a mandate to maximize profit for their shareholders while plaintiff personal injury lawyers are ethically obligated to advocate for accident victims by pursuing all claims that are available to them. Can they be blamed when they do their job too well?
An effective transportation system is critical to the economic health of our province. Motor vehicle accidents and accident victims are inevitable and as such insurance was made compulsory to ensure that accident victims could receive fair compensation. Almost everyone I talk to says that if they were to design from scratch a motor vehicle accident insurance system to address the realities that accidents will happen, while they do not know what they would design, it would not be what we have. In the short run we have to deal with the system that we have. In the long run, we need to look to our elective representatives to design a sustainable system which gives priority to accident victims instead of throwing them under the bus in the name of “good politics”.
A Recent Success at the Court of Appeal
As is often the case in personal injury matters, decisions before the Court are borne out of tragic and unusual circumstances. The case of Economical v. Caughy was certainly nothing less than tragic and unusual. So unusual, that it created an issue of whether Mr. Caughy would be entitled to accident benefits.
Almost four years ago, Patrick Caughy suffered a serious spinal cord injury when he tripped over a parked motorcycle. Patrick Caughy was enjoying a camping holiday with his family and friends at a weekend country music jamboree. The campers created a campsite that was encircled with all of their vehicles and trailers. A motorcycle was also parked at the campsite near Mr. Caughy’s truck. As the first day of the jamboree went on, Mr. Caughy became significantly intoxicated. Later, in the middle of the night, Mr. Caughy began playing tag with one of his daughters and her friend. In the dark of the night and as he rounded his truck, he failed to see the motorcycle and tripped over it. The trip propelled Mr. Caughy into his truck, causing him to end up breaking his neck and suffering a serious spinal cord injury.
Mr. Caughy thought he could rely on his automobile insurance company to assist him on his long road of rehabilitation. After all, he had suffered an injury that was caused by a collision with an automobile and so he applied to his insurer for accident benefits. To Mr. Caughy’s dismay, the insurance company completely denied him. The insurer argued that his injury did not arise as a result of an “automobile accident.”
The legal definition of an automobile “accident” is “an incident in which the use or operation of an automobile directly causes an impairment.” With this definition in mind, it is worthwhile to ask yourself, was Mr. Caughy’s trip over the motorcycle an “automobile accident?” Did his tripping over a parked motorcycle, while impaired and playing tag in the dark, satisfy this legal test? His insurer maintained that it did not.
Nigel Gilby and I were retained by Mr. Caughy and his family to fight for them and secure the accident benefits Mr. Caughy would undoubtedly require. Once our fight was underway, the insurer brought an application before the court to determine that Mr. Caughy was, in fact, not in an automobile accident, and therefore not entitled to accident benefits.
We initially argued the case before Justice Nightingale. The insurance company took the position that because the motorcycle was parked it did not involve its “use or operation” and, therefore, was not involved in an automobile “accident” and no accident benefits were payable. We argued that parking a motor vehicle was an ordinary use to which automobiles are put. Justice Nightingale accepted our arguments and found that Mr. Caughy’s accident was indeed an automobile accident.
However, the insurer did not agree with our argument or the decision of Justice Nightingale and appealed to the Ontario Court of Appeal.
The Court of Appeal agreed with us and adopted our arguments, finding that Mr. Caughy was entitled to accident benefits. In its decision, the Court of Appeal stated: “A vehicle is designed to be parked. Indeed, it is safe to say that most vehicles are parked most of the time. I would conclude, therefore, that parking a vehicle is an ordinary and well known activity to which vehicles are put.”
You might ask: What are some of the implications of this decision? Well, we now have a binding authority from the highest court in Ontario that confirms accident benefits are permissible even when a pedestrian collides with a parked vehicle. With this newfound guidance, we anticipate that entitlement to accident benefits will arise in most circumstances involving injuries sustained by parked automobiles.
There is no question that over the course of the last few years Mr. Caughy’s family has had to endure hardship and make a number of sacrifices, not only in terms of the care they would be able to provide for him but also in terms of replacing the income that he brought into the family unit. As Mr. Caughy’s lawyers, we have been in his corner since day one. In first taking his case and learning of the insurer’s denial of his claim, we realized there would be years that would go by before there was any decision and, if we were unsuccessful, we would never be paid anything for the money we would invest in his case or for the countless hours of time committed to trying to help him. However, it is our view that dedicated lawyers have to take on cases where they can help a victimized person or advance our law for the greater good. They need to take on tough cases; the cases where there isn’t always a guarantee of payment.
Mr. Caughy’s case is also an example of situations where an accident and the circumstances surrounding it might not be so clear. When this occurs, one should not assume there is no hope. It is always worthwhile to consult a skilled personal injury lawyer who knows the law, or, in some cases, will make new law. Fortunately for Mr. Caughy - he did - as otherwise he would have never received any accident benefits for his catastrophic injuries.