Our lawyers have worked through the maze of complex litigation and coverage issues, managed the class action juggernaut, and represented employees of insurers that come under attack by plaintiff`s litigation. Some of the problems we face are front page news, most are not. They are all problems that are important to our clients, and to us.
In Melo v. Northbridge Personal Insurance Corporation, Justice Croll, writing for The Divisional Court, confirmed that pursuant to s. 11(6) of the License Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only. Justice Croll further indicated that the standard of review to be applied is reasonableness.
The Appellant was involved in a motor vehicle accident on August 28, 2015. He applied for statutory accident benefits from his own insurance company, Northbridge Personal Insurance Corporation. The Adjudicator found that the Appellant was not entitled to income replacement benefits in the amount of $389.11 per week from January 28, 2016 to the date of his decision.
Justice Croll indicated that the Adjudicator cited the correct legal test to prove entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) of the Schedule requires. The Adjudicator weighed the evidence, applied the proper stand of proof, and provided reasons for his findings, which were all ground in the material before him. Justice Croll indicated that the Adjudicator’s exercise of weighing the evidence and preferring some evidence over other evidence does not amount to a question of law only. Justice Croll stated that the Appellant failed to establish an error of law and that the Adjudicator’s decision was reasonable as it was within the range of possible outcomes.
In Sacks v. Ross, the Ontario Court of Appeal dealt with how to apply the causation test in medical negligence cases involving multiple tortfeasors.
Sacks suffered serious injuries arising from complications after a routine bowel surgery. An anastomotic leak occurred after surgery, which spilled into his abdominal cavity, but the discovery of the leak was delayed, and by the time treatment started, he was in septic shock. Ultimately, he was in a coma for several weeks and his legs were both amputated.
At trial, Sacks put forth that the delay and treatment caused his injuries, which were the result of cumulative errors made by the respondents, a team of doctors, nurses and Sunnybrook Hospital, who treated him after his bowel surgery. The respondents argued that the delay in diagnosis did not cause Sacks’ injuries – his injuries were actually caused by flesh eating disease, which could not have been diagnosed or treated when it first arose.
At trial, the jury found five of the defendants breached their respective standards of care, but none of the breaches caused the injuries. Sacks appealed, arguing that the trial proceeded on a mistaken understanding of the appropriate causation test, evidenced by improper jury questions and instructions. Sacks argued that in cases involving multiple tortfeasors, a “global but for” test for causation should apply.
Ultimately, the Ontario Court of Appeal dismissed the appeal. The Court followed the prior Clements decision, where the Supreme Court found that the “but for” test also applies in complex, multiple tortfeasor, negligence cases.
The Sacks decision is significant for the Court’s discussion of the causation test and how it should be applied in complex negligence cases. The Court reminded that the normal causal reasoning process follows three steps:
Step one: what likely happened in actuality – whether the delay in treatment led to the plaintiff’s injury?
Step two: what would have happened if the defendant had not breached their standard of care?
Step three: allocate fault amount the negligent defendants
The analysis requires the jury to analyze each event in the sequence of events, while ignoring any decision it might have made with respect to an earlier event.
To reflect the causal reasoning process, the court recommended framing the jury questions as follows:
Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused Sack’s injuries?
If yes to #1, have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant’s] breach of the standard of care caused or contributed to the injuries of Sacks?
If yes to #2, how did [this defendant] breach the standard of care?
Importantly, question #1 only asks the trier of fact to consider what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, without considering the presence or absence of any breaches of the standard of care. In contract, question #2 determines fault.
The Court of Appeal released two decisions that hopefully put to bed the debate about the effect of legislative changes made in 2015. The court also addressed double recovery by plaintiffs, addressing the deductibility of SABS settlements and other collateral benefits from damage awards.
In Cobb v Long Estate and El-Khodr v. Lackie the court held:
That the amendment to the Insurance Act regarding the prejudgement interest rate applicable for non-pecuniary losses applies retrospectively to all actions tried after the amendment came into effect.
That the amendment to the Insurance Act indexing the deductible applies retrospectively to all actions tried after the amendment came into effect.
Double recovery by plaintiffs is to be avoided potentially weakening the strict “apples to apples, oranges to oranges” approach to deductibility of collateral benefits.
All amounts for IRB, including settlement amounts allocated to IRB, that the plaintiff received before trial, are deductible from the total damages for past and future loss of income arising from the same accident.
Lisa is Partner of Samis+Company. Lisa practices a variety of insurance-related litigation, including short/long term disability benefits, personal injury, premise liability, accident benefits, and subrogation.