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The Tort Threshold. Not all is as it seems.

 Aug 28, 2018 9:00 AM
by Kevin Mitchell

The case of O’Brien v. O’Brien, 2018 ONSC 4665, is a tort threshold motion brought by some of the defendants after a jury trial where damages was the only issue. The damages quanta were found to be closer to the defendants' position thereupon. The motion was heard by Justice McKelvey of the Superior Court with reasons, dated July 31, 2018. Regulation 461/96 was referenced, which sets out criteria to be considered upon such a motion. In deciding the motion, it was noted the jury’s verdict was not binding upon His Honour but the findings of fact implicit thereto worthy of serious consideration. It was the plaintiff’s burden, on balance, to prove the threshold was met.

Barry O’Brien was a passenger in a pickup truck piloted by his uncle, James O’Brien, which collided head on with a transport. Among other things, he sustained an ankle fracture in the accident. In respect of other injuries sustained, he had significant pre-existing health issues. Credibility at the motion was not contested and the Judge, in fact, found the plaintiff to underestimate the impact of his injuries. The plaintiff’s orthopod was preferred due to recency of assessment and area of subspecialty. The evidence of the various health practitioners was reviewed in coming to a determination about the various alleged impairments. The left ankle was found to be permanently impaired. Ankle function was found to be ‘important’ to the plaintiff. The ‘seriousness’ criterion was found to be met despite the plaintiff making significant strides to overcome many of the effects of his impairment. Despite the Judge’s review required to consider the plaintiff’s condition ‘at the time of trial’, a likely future inability to work could be considered if a proper evidentiary foundation had been laid. The concern for the Judge on motion was that the jury awarded nothing for future income loss or vocational retraining. Despite the verdict, his Honour found the ankle impairment seriously affecting the ability to continue regular employment. In conclusion, the ankle impairment was found permanent, important and serious in relation to employment but not to his usual daily activities; as the interference with hunting was not ‘most’ of his usual activities.

Said The Prince to Portia in The Merchant of Venice, “all that glitters is not gold”. The defence motion was dismissed.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 


Getting Paid to Sleep? Professionally Designated Spouses Can Now Be Paid for Overnight Supervisory Care.

 Aug 27, 2018 6:00 PM
by Gurpreet Farmaha

The decision in E.E v Aviva Insurance Company, 2018 CanLII 76415 (ON LAT) deals with a request for reconsideration by the respondent of parts of the decision issued by the Tribunal, including the finding that the applicant was entitled to attendant care benefit (including 24 hour supervisory care) alleged to have been provided by his wife, a registered PSW and RPN. At reconsideration, Associate Chair Stephen Jovanovich, agreed with the Tribunals analysis of “incurred”, and found that the test was satisfied under section 3 (7)(e) of the Schedule.

With regard to whether the care was provided during “the course of the employment, occupation or profession in which he or she would ordinarily have been engaged”, Associate Chair Jovanovich found that despite the fact that the applicant’s wife did not contract with private clients and was employed by a healthcare agency, it was not necessary for the applicant to tender his wife’s services through her employer.  

With regard to “but for the accident” the respondent submitted if the evidence of the applicant’s spouse were taken at face value, then “but for the accident” the only periods she would have been working as a nurse was from January 2013 to June 2014 and from June 2015 to December 2016. The remainder of the time, the applicant’s spouse was on maternity leave, and according to the respondent she would not have been actively working during those time frames in any event. Associate Chair Jovanovich disagreed with the respondent and found that if this position were correct, then any time a spouse who is providing needed services is on any type of leave, the ACBs would not be payable. In Associate Chair Jovanovich’s view, this was not the correct interpretation of the relevant sections of the Schedule.

With regard to whether the applicant had paid “the expense, had promised to pay the expense or was otherwise legally obligated to pay the expense”, Associate Chair Jovanovich agreed with the   adjudicator’s conclusion that, based on the evidence of the applicant, his spouse and the Attendant Care Confirmation of Expenses for Services Provided, in which the applicant certified that he promised to pay his spouse for the service, the condition in section 3(7)(e)(ii) of the Schedule was satisfied.

With regard to whether the adjudicator erred in allowing payment for overnight supervision, the respondent submitted that there was no evidence that such overnight supervision was part of the applicant’s spouse duties at her place of employment. The respondent relied on the decision in Y.D. and Aviva Insurance, 2017 CanLII 43883 (ON LAT), where certain personal services were provided by the insured’s spouse who was a physician practising as a fertility specialist. In the Y.D. and Aviva Insurance decision, the adjudicator wrote that the test to be applied was whether the spouse/physician was providing services to his wife in the same manner as he was providing in his normal employment, not what he may have been otherwise qualified to do.

However, in Associate Chair Jovanovich’s view, the case involved very different circumstances that could not be applied to the present matter. According to him, the applicant’s spouse was qualified to provide attendant care, a component of which is providing basic supervisory care. The fact that she may not have actually done so on an overnight basis in the course of working for her employer was irrelevant. He further found that it was reasonable for the adjudicator to find that 24 hour supervisory care was necessary based on the evidence presented.

Overall, Associate Chair Jovanovich upheld the original decision supporting the attendant care claim and indicated that it would "... seem odd, as a matter of public policy, to mandate that insureds with a trained professional in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable”.


After having articled at Samis + Company, Gurpreet was honoured to join the firm as an Associate in July of 2018. During her time with Samis, Gurpreet has gained valuable experience in various areas of ligation work including: tort law, statutory accident benefit claims, subrogation, priority disputes, and estates law. One of the things Gurpreet enjoys most about being a part of the Samis team is the opportunity to have a diverse and dynamic practice that allows her to continually build on her strengths as a litigator. Gurpreet regularly speaks to matters at the Small Claim Court and the Superior Court of Justice level.

Accident Benefits, Courts, Legislation / Regulation, News  

Should you indemnify? You better you better you bet.

 Aug 20, 2018 9:00 AM
by Kevin Mitchell

With tension like The Who’s iconic song, the July 17, 2018 loss transfer private arbitration award of Fred Sampliner in State Farm v. Economical dealt primarily with a dispute over the quantum of State Farm’s claimed indemnity and included issues. Economical admitted 100% liability for the February 4, 2010 accident. A confounding issue was the fact there was a live SABS claim from a prior January 22, 2008 accident, which was not loss transferable. Both claims, on the verge of trial, were settled together in April 2016. The onus shifted to Economical to show gross negligence or bad faith handling once State Farm proved the payments had been made. Depending upon the quantum at issue, this can be a costly and/or time consuming exercise for any Applicant.

Economical primarily took exception to the manner in which State Farm settled the second claim via lump sum. It also rejected various medication expenses, which were similar to those prescribed in respect of the first accident. Economical enjoyed success only with its third argument respecting repayment of hourly rates for OCF-18s paid by State Farm above the rates contained in the Professional Services Guidelines. Only one OCF-18 was clearly in excess of the posted rates. For the other five impugned OCF-18s, it involved the hourly rate for a psychiatrist, which is not subject to the Guidelines. Economical argued the rate for a psychologist should inform the decision. The arbitrator disagreed, noting differences between the two disciplines, but in accepting OHIP’s hourly rate of $176.25 still found State Farm had overpaid, which rose to the level of gross negligence but not bad faith.

In an indemnity claim of just shy of $275,000.00, less than $10,000.00 was disallowed. State Farm was awarded interest, albeit reduced in duration, and required to equally fund the arbitrator’s account, presumably as part of the umbrage felt by the arbitrator over State Farm’s agreement before the hearing to accept less than it had paid for the OCF-18s. Unfortunately, his ‘brinkmanship’ comment and the noted exceptions seem a bit out of balance when compared to State Farm’s relative success and the fact that had it settled in advance it would have achieved an indemnity recovery of about 50% rather than the 96.4% it now enjoys. The issue of costs was reserved. Neither party intends an appeal.

Without authority/evidence to support paying a psychiatrist more than OHIP does, you better bet your life a loss transfer Respondent will cut you like a knife.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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Accident Benefits, Loss Transfer / Priority Disputes  

Are they spouses? To live together, or not to live together, that is the question.

 Aug 13, 2018 9:00 AM
by Kevin Mitchell

Akin to the controversy unleashed by Claudius’ usurpation of the Denmark crown, the July 10, 2018 endorsement of Justice Morgan in Royal v. Desjardins, 2018 ONSC 4284, relates to judicial review of Shari Novick’s February 24, 2017 priority private arbitration award in favour of Desjardins.

On February 24, 2014, Desjardins’ insured driver struck the claimant who was a non-occupant. Her claim for accident benefits was made to Royal as the insurer of the claimant’s ‘spouse’.  Definitions for that term are contained in s. 3 of the SABS, under “insured person”, and in s. 224 of the Ontario Insurance Act, “spouse”.  The pertinent part of the latter definition refers to two people living together conjugally outside of marriage continuously for at least three years.

Despite dating since 2008, the claimed spouses had actually only resided in the same household for one year pre-accident.  The question was, whether a literal or expanded definition of ‘lived together’ was the proper interpretation?  His Honour found it to be a question of mixed fact and law to which a reasonableness standard applied.  Royal preferred the literal construction.  Desjardins preferred the more global view, considering features of the couple’s life together having ‘notionally’ lived together for the requisite time.  It appears the arbitrator only looked to family law authorities concerning spousal support to aid in her interpretation of the legislation.

The Court of Appeal’s judgment in Economical v. Lott (1998), 155 DLR (4th) 179, was referenced, which found the contexts of the Family Law Act and Insurance Act schemes to be different despite the use of similar words.  Justice Morgan found that the arbitrator erred in finding family law policy applicable to insurance law without related discussion and articulating her reasons.  My view is that the arbitrator purported to choose the family law context by reason of the literal similarity between the definitions in the differing legislation.  When contrasted with Justice Morgan’s opposite finding, it may be a distinction without a difference.  Without further consideration of why she chose one context over the other may well have been unreasonable.  But it was upon the expanded review of the couple’s life that she decided they were spouses and in favour of Desjardins.  At paragraphs 25 & 27, Justice Morgan found that the outcome was unreasonable on the same basis but, more importantly, also found nobler the literal interpretation of the Insurance Act provision.  Presumably, any arbitration awards equating the old s. 224 definition of ‘cohabited’ (interpreted broadly) with ‘lived together’ (altered in 2005) are now in vain.  Accordingly, a declaration issued that the couple were not spouses and that Desjardins stood in priority and was required to indemnify Royal.

Will Desjardins recover the crown?  It is too early to tell if it will suffer the slings and arrows of a leave application to the Court of Appeal.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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Accident Benefits, Loss Transfer / Priority Disputes  

Hey Neighbour...It's About that Fence

 Aug 8, 2018 11:00 PM
by Neil Reeves

The Court of Appeal has provided further guidance on the issue of prescriptive easements in the case of Hunsinger v. Carter. The case involved one party having uninterrupted use of a shared driveway over a 40 year period for commercial purposes, facing off against a neighbor who purchased the property last year and attempted to restrict his neighbours historic use of the property.  The ‘new’ neighbor was operating a daycare and wanted to erect a fence in the middle of the shard driveway for reasons of safety. 

On application, the court held that the ‘new’ neighbor could erect the fence, in part relying on the finding that the historic neigbour would be able to maneuver vehicles on their portion of the driveway and that the fence would not provide an absolute impediment to doing so.  The application court judge found that the historic neighbor had established a prescriptive easement over the driveway as it was the dominant tenement for over 40 years before 2007 when both properties were registered in the Land Titles system. The appellant and his family had made use of the gravel driveway “openly, continuously, and without licence over this period.  However, the application court judge found that the obstruction of the easement in erecting a fence was allowable because that portion of the driveway which was obstructed was not needed to be used by the historic neighbor.

The Court of Appeal disagreed, finding that building the fence would encroach on the easement. It is interesting to note that the Court did not disagree that the proposed fence did not prevent the historic neighbor from utilizing the driveway  to access the back of his property. Rather it was clear that the court accepted the argument that the fence would substantially interfere with the neighbours use.  Encroachment is only permissible where the encroachment does not substantially interfere with the easement and in this instance, the fence was thought to constitute a substantial interference.  

The decision in Hunsinger v. Carter can be found here - https://bit.ly/2OTZOB2 .

Coverage, Municipal Act, Occupiers Liability, Property  

Why mediate? Plaintiffs dippin' back to their bag of tricks

 Aug 6, 2018 9:00 AM
by Kevin Mitchell

The February 23 and May 28, 2018 decisions of the Superior Court in Thomson v. Portelance and Canfield v. Brockville Ontario Speedway, respectively, 2018 ONSC 1278 and 2018 ONSC 3288, have Justices Firestone and Mew considering the benefit of mediation.

In the former, the tort defendant in a motor vehicle claim refused to schedule a mediation in advance of discoveries in contravention of s. 258.6(1) of the Insurance Act, which permits either party to make the request. The section is silent as to timing but very loud on how to treat non-compliance. Among other things, which mandate the mediation occur quickly and without reference to other steps in the litigation, s. 3 of Regulation 461/96 requires the defendant’s insurer pay the full freight for its cost. Whether prudent or not, due to the related restrictions, the plaintiff wanted to set the matter down quickly after fulfilling the requirement to have a Toronto action mediated. Ottawa and Essex County are also subject to the Mandatory Mediation Program. In this motion scenario, the defendants are lucky they escaped related legal costs.

In the latter, also a personal injury tort claim, there was divided success after a trial. In the broader context, the assessment of costs was at issue and the applicability of Rule 57.01 of the Rules of Civil Procedure as an aid to the court’s overarching discretion. Various of the factors were discussed and their applicability considered. Apart from neutral factors, his Honour found lead plaintiff counsel’s hourly rate too high and the number of hours spent on the case “significant” in relation to its nature. When he got to the criterion of ‘Other matters relevant to the proceeding’, he noted it was a Belleville action to which the mediation Program does not apply, further to Rule 24.1. His Honour found there was no requirement to mediate. Notwithstanding, he went on to consider extra-jurisdictional practice that looks to the justification of the refusal to mediate. Neither party had a strong position upon liability. He found the case to have merit, the defendant’s insurer uncompromising and unreasonable for it to have declined mediation. In the end, the costs reduction was $80,000.00 plus tax, which would have reduced the plaintiff’s costs claim to about the same amount as the judgment. However, the mediation refusal caused the reduction to roll back to about $60,000.00 instead, making the fee recovery $20,000.00 higher. I estimate the difference to equal between two and three times the amount it would have cost the Speedway to prepare for and attend a mediation. It appears that a lack of ‘membership’ in the mediation Program does not absolve a litigant from cost consequences, whether further to the Insurance Act or other statutory/regulatory provisions.

So take a page out of the hip-hop duo, Salt-N-Pepa’s, songbook. Be sure to mind (i.e. know) your business when you take a ride in your coupe.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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Legislation / Regulation, Torts  


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