Summer 2017 – Newsletter

Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.

The Latest Word from the Supreme Court on Mental Injuries

By Brian Sunohara

In Saadati v. Moorehead, 2017 SCC 28, the Supreme Court of Canada went to great lengths to emphasize the importance of recognizing mental injuries.

Justice Brown, in a unanimous decision of the Court, stated that, where mental injury is negligently inflicted, a person’s autonomy to make choices to live life and pursue goals is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury, perhaps even the loss of a finger.

The plaintiff was involved in five motor vehicle accidents.  The trial addressed his second accident, which was seemingly minor.  The plaintiff led evidence from his friends and family that, after the accident, his personality changed for the worse.  He was once a funny, energetic, and charming individual, but he became sullen and prone to mood swings following the accident.  His relationships with family and friends deteriorated.  He complained of headaches.

The trial judge concluded that the plaintiff had not demonstrated any physical injury resulting from the accident, but he found that the accident caused the plaintiff psychological injuries, including a change in personality and cognitive difficulties.  There was no expert evidence to support this.  The plaintiff was awarded $100,000 in non-pecuniary general damages.

The British Columbia Court of Appeal overturned the trial judgment.  The Court of Appeal stated that the plaintiff had not proven a medically recognized psychiatric or psychological illness or condition, and that such an illness or condition must be demonstrated by expert medical opinion evidence.

The Supreme Court of Canada held that expert evidence is not required to prove a mental injury and restored the trial judgment.

The Court noted that mental injury has historically been treated with suspicion and sometimes outright hostility.  The Court indicated that the stigma faced by people with mental illness is notorious and often unjustly and unnecessarily impedes their participation in civil society.

The Court held that the objectivity, certainty, and predictability of psychiatric tests are overstated.  While, for treatment purposes, an accurate diagnosis is important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but rather with symptoms and their effects.

At the same time, the Court indicated that mental injury is not proven by the existence of mere psychological upset.  Happiness is not a legal right.  Plaintiffs must show much more, in particular, that the disturbance suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society.  The injury must be reasonably foreseeable.

Although expert evidence is not required to establish a mental injury, the Court pointed out that it could be of assistance, and that plaintiffs run the risk of being found to have fallen short if they do not present expert evidence.

Moreover, the Court noted that it remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident could not have caused any mental injury, or at least any mental injury known to psychiatry.  While the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.

In light of the Supreme Court’s decision, we anticipate seeing many more plaintiffs advance claims for mental injuries, including a change in personality.  It should be of some concern to defendants and insurers that the Court agreed that an award of $100,000 for non-pecuniary general damages is reasonable for such injuries.

The Insurance Bureau of Canada (IBC) was an intervener on the appeal.  In its factum, the IBC argued that an objective threshold is required to screen claims for mental distress.  It also argued that the elimination of an objective medical standard would expand the liability of defendants and increase the volume of claims.

The IBC further submitted that, without an objective standard, courts would be flooded, trials would be lengthened, the costs of litigation would increase, insurance premiums would rise, and the risk of insurance fraud would be heightened.  The Court appears to have given little credence to these arguments.

Only time will tell whether these concerns are borne out, but the Court’s decision is one that defendants and insurers will need to pay attention to.

In cases where a plaintiff alleges mental injury, it would be wise to consider retaining a defence psychiatry or psychology expert to rebut the alleged injury, even if the plaintiff has not retained such an expert.  Although the defence expert’s opinion will not be determinative, it could be persuasive, especially in actions tried by a jury.  Surveillance should also be strongly considered in such cases.

When Will a Landowner or Tenant Have Legal Responsibility for an Accident on Adjacent Lands?

By Stephen G. Ross and Jocelyn R. Brogan

Liability in a personal injury action involving multiple defendants for a slip and fall accident can be complicated. A key issue is to determine which defendant, or defendants, has the legal responsibility for the area of the plaintiff’s fall.

When the accident occurs on lands adjacent to the defendant’s, the issue can be further complicated.  Historically, there has been some uncertainty regarding the interplay between the common law and the Occupiers’ Liability Act (“the OLA”) in this regard.

In MacKay v. Starbucks Corporation, 2017 ONCA 350 (“Starbucks”), the Court of Appeal looks to settle this debate.  The plaintiff slipped and fell on an ice-covered municipal sidewalk at the entrance to a patio in front of a Starbucks location in Toronto.  At trial, Starbucks was found liable as an “occupier” of the municipal sidewalk.  The Court of Appeal dismissed an appeal by Starbucks.

The Court found that the OLA “occupies” the field of liability when dealing with the issue of whether a landlord or tenant can be responsible for incidents on adjacent lands.  The Court held that if a defendant is not an “occupier”, then there will be no liability in negligence with respect to injuries on adjacent lands, based on proximity principles.  In short, a defendant is not liable for incidents on neighbouring lands, under the neighbour principle.

This outcome is said to be as a direct result of section 2 of the OLA, which indicates that the Act applies in place of the rules of the common law.

Case law thus far has established only one area of potential exposure on non-”occupier” defendants for injuries on adjacent lands.  This involves situations where conditions flow off the premises onto adjacent lands and cause injuries to others.  Liability will attach in those situations, based on a failure to prevent a nuisance. (See Bongiardina v. York , 2000 CanLII 5408 (ON CA)).

Although the door is not entirely closed, it is clear that situations where a defendant  who is not an “occupier” will be found liable for incidents on neighbouring lands, are quite limited.  As a result, a lot turns on whether a landowner/tenant can be seen to meet the definition of “occupier” under the OLA.

In circumstances where the adjacent land is a municipal sidewalk, the stakes are even higher since the municipality, the typical target and obvious “occupier”, is only responsible if gross negligence is established in the context of personal injuries caused by snow or ice (see Municipal Act, S.O. 2001 c.25 s.44(9)).

Simply clearing ice and snow on an adjacent municipal sidewalk pursuant to municipal by-law, is not enough to create “occupier” status (see Bongiardina). 

A greater degree of assumed control over adjacent lands is required to affix legal responsibility.  Indeed, the nature and extent of the “assumed” control appears the determinative factor.

In Starbucks, the requisite degree of control over the adjacent lands (sidewalk) was demonstrated based on the following factors/conduct of the defendant:

• building a fence and patio that contained an opening that seamlessly joined the patio and the sidewalk;

• by making a path over the sidewalk leading directly to its door;

• by monitoring the condition of the pathway, and by cleaning, salting and sanding it, to be sure it was safe for its customers; and,

• by directing the travel path of its customers over the adjacent lands as a means of entering and exiting its premises.

Starbucks can now be added to the list of well-known cases, such as Moody v. Toronto (City) 1996, 31. O.R. (3d) 53 (Gen. Div) and Bogoroch v. Toronto (City) [1991] O.J. No. 1032 (Gen. Div), where adjacent store owners/merchants, were found responsible for falls on adjacent lands, based on the degree of control assumed over the premises, and the people on it.

Take Away from Starbucks

 The Court of Appeal affirmed that a defendant is not liable for neighbouring lands under the neighbour principle; there is no common law duty of care, based on proximity for incidents on adjacent lands.

In most cases, liability will only attach to an adjacent landowner if the defendant meets the definition of “occupier” under the OLA.

Simply clearing ice and snow from adjacent lands or sidewalks will not be sufficient to attract “occupier” status.

“Occupier” status will only be conferred when a defendant exercises sufficient control over the adjacent lands by directing customer traffic through those lands to its premises and/or by monitoring the condition of the premises to ensure the safety of its customers.

As a result, although liability will not attach to a defendant simply by virtue of them being aware of a danger on an adjacent property, liability may well attach where a degree of control over those premises is exercised, particularly for the defendant’s own benefit.  Counsel will be well advised to consider the nature and extent of any control over adjacent lands when considering which defendants may have legal responsibility for the area of the plaintiff’s fall.

The LAT Survives a Constitutional Challenge

By Alon Barda

There has been much consternation among the plaintiff personal injury bar about the introduction of the Licence Appeal Tribunal (LAT) as the only means to resolve SABS disputes.

In 2014, the provincial legislature amended s. 280 of the Insurance Act so that all SABS disputes would be resolved exclusively by the LAT.  This came into effect on April 1, 2016.

While an insured person previously had the option of either bringing an application to FSCO or suing in Superior Court if a matter failed at mediation, the amendment removed the court option.  An insured can proceed to court only on an application for judicial review or to appeal a decision of the LAT on a question of law.

Joseph Campisi, a personal injury lawyer at Campisi LLP, became the flag bearer for opposition to the LAT and personally launched a court proceeding against the Ontario government challenging the constitutionality of s. 280 of the Insurance Act (as well as s. 267(5), which limits the pre-trial income loss recovery to 70% of a plaintiff’s gross income).

The approach was certainly unique and resulted in the Insurance Bureau of Canada moving for intervener status for only the third time in over 30 years at the court of first instance.  The challenge was soundly dismissed by Justice Belobaba in the recently released decision of Campisi v. Ontario, 2017 ONSC 2884.

In the decision, Justice Belobaba first addressed the issue of standing (a legal stake in the dispute). He noted that Mr. Campisi is a personal injury lawyer who has not been injured in an automobile accident and is not disputing a SABS benefit before the LAT. Further, the evidence elicited through the cross-examination of a paralegal at Mr. Campisi’s office (Mr. Campisi questionably did not file his own affidavit) highlighted that his firm very rarely dealt with SABS complaints.

While Mr. Campisi claimed that he drove an automobile and therefore had “a concern for the welfare of all accident victims”, Justice Belobaba highlighted that this is not enough to establish that he was directly affected by s. 280 of the Insurance Act.  As such, Mr. Campisi was found to lack private interest standing to bring the constitutional challenge.

Mr. Campisi was also found to lack public interest standing since he failed to demonstrate that he had a real stake or genuine interest in the constitutional validity of the provisions in question.  Justice Belobaba highlighted that an individual actually injured in an accident is more directly affected by the legislation than Mr. Campisi and could have challenged the constitutionality of s. 280 in their submissions to the LAT.

While Justice Belobaba found that Mr. Campisi lacked standing, he stated that, if he was wrong on this issue, he would still dismiss the application on the merits.

Regarding s. 15(1) of the Charter (equality rights), His Honour found that, while auto accident victims may be seriously injured, the legislation does not discriminate between persons based on physical disability or any analogous ground.  The fact that an insured person may be physically disabled, and is required to proceed before the LAT and not a court, is not a distinction on the basis of disability.

Justice Belobaba then turned to the allegation that the legislation breaches s. 7 of the Charter (right to life, liberty, and security of the person). There was little evidence filed on this issue and the challenge failed since case law has established that the elimination of a court option does not offend s. 7 of the Charter.

Moreover, Justice Belobaba found that there was no violation of s. 96 of the Constitution Act, 1867 in terms of the legislature conferring jurisdiction on the LAT.

Having addressed all the issues, it was concluded that Mr. Campisi lacked standing to bring the application and, in any event, the application would still fail on the merits.

While there may be an appeal, it appears based on the strength of this decision that the LAT is here to stay as the exclusive means to address SABS disputes.

We are now over a year into the LAT and statistics illustrate that of the 57 reported decisions reviewed to February 2017, 30 favoured the insurer while 25 favoured the claimant, with two divided decisions (a judgment call was made to determine success for some decisions).  There was only one CAT decision and it favoured the claimant.  Minor Injury Guideline (MIG) determinations have been clearly pro-insurer.  Disputes surrounding individual benefits have been pro-insurer while disputes involving treatment plans have favoured the applicant.

As such, while the right to sue in court has been removed, the result has been a system that remains imperfect in various ways but is at least anecdotally more balanced than the historically claimant friendly FSCO.

Contractual Disputes: Is That the Final Answer?

By Anita Varjacic and Rebecca Moore

The case of Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. has wound its way up and down several levels of court.

The plaintiff, a commercial tenant, claimed over $4 million in uninsured losses arising out of a fire.  This was on top of over $10 million already recovered by the tenant from its insurer.  The fire was accidentally started by a welding contractor retained by the landlord.

The tenant sought recovery for damage to its property, as well as business interruption losses.  Under a lease, the tenant was required to maintain fire insurance.  The tenant was also supposed to have the landlord listed as an additional named insured, which it failed to do.  The lease required the landlord to indemnify the tenant for damage caused by the negligence of the landlord and its employees and contractors.

The tenant successfully obtained summary judgment against the landlord.  Our firm was retained to appeal the judgment on behalf of the landlord.  The Court of Appeal allowed the appeal, indicating that the landlord bargained under the lease to be free of responsibility for the risk of loss or damage to the tenant’s property or business caused by fire.  The tenant’s claim was dismissed.

The tenant sought leave to appeal to the Supreme Court of Canada. By order of the Supreme Court of Canada, dated October 20, 2016, the matter was remanded back to the Court of Appeal.  The Supreme Court directed the Court of Appeal to consider the effect of a recent decision which addressed the standard of review in matters involving contractual interpretation, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37.

On April 12, 2017, the Court of Appeal released its decision on the remand order, affirming its original decision.  The Court of Appeal reiterated that the applicable standard of review to be applied to the motion judge’s interpretation of the lease is correctness, as the errors made involved extricable questions of law.

The remand decision provides a detailed review of the application of Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, and subsequently Ledcor, in determining what standard of review is to be applied to appeals involving contractual interpretation.

As enunciated in Sattva, contractual interpretation involves issues of mixed fact and law, and therefore is to be reviewed on a deferential standard of palpable and overriding error. A correctness standard of review may still apply to the rare case involving questions of mixed fact and law, when an error is made involving an extricable question of law.

The Supreme Court in Ledcor discussed the applicable standard of review when dealing specifically with standard form contracts. That decision established an exception to the general rule as enunciated in Sattva, by finding that the applicable standard of review is generally correctness for the interpretation of standard form contracts.  A standard form contract is an agreement offered on a take it or leave it basis, in which all or most of the terms cannot be negotiated separately.  Examples include rental car agreements and gym memberships.

In the remand decision, the Court of Appeal noted that the lease at issue did not involve a standard form contract and, as such, the Ledcor exception to Sattva did not apply.  However, the Court of Appeal affirmed its original decision that the applicable standard of review is correctness because the motion judge erred in law.

Specifically, the legal errors included the failure to apply binding appellate authority on contractual allocation of risk, the failure to assign meaning to all contested terms of the lease, and adopting a construction of the lease that failed to accord with the governing principles of contractual interpretation.

The Deslaurier decision represents an example of the “rare” case in which the correctness standard of review will be applied on appeals involving the interpretation of contracts that are not in standard form.  Absent an error of law, appellate courts are required to give a great deal of deference to a motion judge or trial judge who decides contractual matters.  This makes appealing a lower court judgment difficult, but not impossible.

When an Expert Goes Too Far

By Brian Sunohara

A recent decision of the Ontario Court of Appeal demonstrates the importance of expert witnesses being fair and objective.

In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, Justice Hourigan, for the Court of Appeal stated:

The law regarding expert witnesses has evolved considerably over the last 20 years.  Gone are the days when an expert served as a hired gun or advocate for the party that retained her.  Today, expert witnesses are required to be independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan.

The case arose out of a motor vehicle accident in 2008.  The plaintiff alleged that the accident caused a chronic pain condition, along with anxiety and depression.  After a 23 day trial, the jury awarded non-pecuniary general damages of $23,500 and nothing for all other heads of damages.

The Court of Appeal set aside the trial judgment and ordered a new trial.  This was based on a miscarriage of justice resulting from the improper conduct of a defence psychiatry expert.

The defence expert was criticized by the Court of Appeal on a number of fronts, including:

• He hunted for discrepancies between a short interview with the plaintiff and medical records which dated back several years, and did not give the plaintiff an opportunity to explain the apparent discrepancies.

• He came dangerously close to usurping the role of the jury by negatively commenting on the plaintiff’s credibility.

• He unfairly criticized the plaintiff’s treating health care practitioners.

• He “torqued” test results to support his conclusion.

The Court of Appeal stated that the expert went beyond a mere lack of independence and appeared to have adopted the role of an advocate for the defence.  The expert did not properly understand his role.

The Court of Appeal referred to the two step analysis in terms of the admissibility of expert evidence, as outlined by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182.

First, the trial judge must consider the four traditional threshold requirements for expert evidence: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.

Secondly, the trial judge must exercise a “discretionary gatekeeping step” by balancing the potential risks and benefits of admitting the evidence.  The judge has to consider whether the probative value of the expert evidence outweighs its prejudicial effect.

The Court of Appeal held that, although the trial judge did not permit the expert to testify in certain areas, he failed to properly exercise his role as a gatekeeper.  The expert’s report made it evident that he would be a troublesome witness, one who was intent on advocating for the defence.

However, the Court of Appeal acknowledged that it is difficult to predict with certainty how an expert may testify based on the expert’s report.  For this reason, the trial judge’s gatekeeper role is an ongoing one.  The trial judge has residual discretion to exclude expert evidence even after admitting it.  A mid-trial or final instruction can be given to a jury to exclude all or part of an expert’s testimony.  If the prejudice is too great to be corrected, a mistrial should be declared.

In the end, the Court of Appeal stated that, although a new trial would be costly and time consuming, “…it is necessary because the defence proferred the evidence of a wholly unsuitable expert witness”.

This case is a clear statement from the Court of Appeal that “hired guns” are not welcome in the courts.  An expert’s primary duty is to the court, not to the party that retains him or her.  Lawyers need to ensure that experts are aware of their responsibilities.  As stated by the Court of Appeal in Moore v. Getahun, 2015 ONCA 55, consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands his or her duties.

Case Dismissed: Defendant Not Liable in Left Turn Car Accident

By Brian Sunohara

In left turn car accident cases, liability is often found on both drivers.  However, a recent court decision shows that, in some circumstances, the driver travelling straight can avoid liability, even on a summary judgment motion with apparent credibility issues.

On June 22, 2017, the Ontario Court of Appeal released a decision in Mayers v. Khan, 2017 ONCA 524.  The Court of Appeal upheld an order granting summary judgment to the defendant and dismissing the plaintiff’s action.

The accident occurred at a busy intersection in Scarborough.  The defendant was operating a heavy Brinks truck 60 to 70 km/h in a 60 km/h zone.

At the motion, the plaintiff argued that she made a left turn on an advance green, and the defendant drove his truck through a red light and struck her.  In a statement given to the police, the plaintiff made no mention of an advance green.  The plaintiff also argued that the defendant was driving too fast and failed to take proper care as a professional driver.

The defendant stated that he entered the intersection on a green light.  The light turned yellow when he was in the middle of the intersection.  At that point, the plaintiff made a left turn.  The defendant said that he immediately slammed on his brakes but was unable to stop his truck in time to avoid a collision.

An independent witness largely supported the defendant’s version of events.  However, he did not hear the Brinks truck apply the brakes, and he told the investigating police officer that the Brinks truck was travelling “really fast”.  Further, the witness did not know the colour of the traffic light when the defendant entered the intersection, although he said it was yellow when the plaintiff made her turn.

The motion judge, Justice Glustein, outlined the law in left turn cases, including:

• A very heavy onus is placed upon a driver making a left-hand turn. He or she may turn into the path of approaching traffic only after having assured himself or herself that he or she can do so in safety.

• Section 141(5) of the Highway Traffic Act states: “No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision”.

• If there is evidence of negligence on the part of a driver going through an intersection, that driver may be contributorily liable for the accident. An oncoming driver must take reasonable care to avoid an accident.

• Even if a driver drives through a red light, the other driver with a right of way still has a duty to exercise reasonable care to avoid a collision if: (1) the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection, and (2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision.

• A driver travelling in excess of the posted speed limit will not per se be found negligent. The rate of speed which may be considered excessive and thereby constitute negligent driving will vary depending on the nature and condition of the particular road travelled upon and the traffic faced by the driver. The speed of the dominant driver exercising reasonable prudence is a question of fact that turns on the circumstances of each case.

In describing how to deal with conflicting evidence on a summary judgment motion, the motion judge stated:  “…it is not simply because there is a conflict in the evidence that a case must proceed to trial. The court must consider the evidence as a whole to determine whether it is confident that it can make the necessary findings of fact and apply the relevant legal principles.”

The motion judge weighed the evidence, rejected the plaintiff’s arguments, and dismissed the action.  He found that there was no genuine issue requiring a trial on the issue of the defendant’s liability.

The motion judge relied heavily on the evidence of the independent witness in finding that the plaintiff did not have an advance green and that the defendant did not run a red light.  Further, the evidence supported that the accident happened quickly, such that the defendant could not have avoided the accident.

On appeal, the plaintiff argued that the motion judge reversed the evidentiary burden and made palpable and overriding errors.  She also argued that a mini-trial should have been ordered.

The plaintiff submitted that the onus was on the defendant to lead expert evidence that the defendant could not have done anything to avoid the accident.  The Court of Appeal disagreed, outlining the onus of proof as follows:

The moving party bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.

Since the motion judge concluded that the defendant had demonstrated there was no genuine issue requiring a trial, the burden shifted to the plaintiff to show that the defendant contributed to the accident.  The plaintiff was obliged to lead evidence to satisfy the burden, which she did not do.

The Court of Appeal rejected the plaintiff’s other arguments, stating that it was satisfied the motion judge properly considered and weighed the evidence.  There was no reversible error.  The appeal was dismissed.

In our view, and as supported by the Court of Appeal, the motion judge properly applied the principles outlined by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.  The Supreme Court stated that summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims.

Further, the Supreme Court indicated that an issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial.

The courts have seemed hesitant to grant summary judgment in motor vehicle accident cases because there are often different versions of how an accident occurred and credibility issues may be at play.  However, as stated by the motion judge:

Motor vehicle negligence cases may often raise credibility issues with respect to liability.  However, if such conflicting evidence can be addressed with fairness and confidence under the Hryniak principles, summary judgment is appropriate, particularly given the extensive trial time and cost that is often required to address damages, causation, and statutory threshold issues which would not be necessary if there is no genuine issue requiring a trial with respect to liability.

In the right liability dispute, and especially when a credible independent witness supports a defendant’s version of events, a summary judgment motion should be considered by a defendant.  Before bringing a summary judgment motion, a party must ensure that it has a very good chance of success.  There has to be strong evidence.

A party bringing a summary judgment motion on a liability issue faces not only losing the motion and being subject to a cost award, but also the possibility of the judge reaching the exact opposite conclusion and making a finding of liability against the moving party, even without a cross-motion by the responding party.  For example, in the left turn case discussed above, it was open to the motion judge to find the defendant driver liable.

As stated in Deluca & Vogeli v. MacLaren Art Centre Inc., 2016 ONSC 1428:

If the defendant takes the position that the court can determine liability without a trial, it takes the chance that the court will determine liability in the plaintiff’s favour.  A party cannot bring a summary judgment motion on the issue of liability (as the defendant in this case did) and take the position that a trial is unnecessary only if determination of liability falls in its favour. A party that asks the court to determine liability without a trial must prepare for the motion on the assumption that the court will determine liability, in their favour or not, without a trial.

Therefore, although there are great benefits to summary judgment motions, they can be risky and can backfire.

What’s Happening at Rogers Partners

• Rogers Partners has once again been ranked by Lexpert as a “consistently recommended” law firm in the area of commercial insurance litigation.
• Don Rogers continues to be recognized by The Best Lawyers in Canada in the areas of insurance law, personal injury litigation, and energy regulatory law.
• For the fifth year in a row, Stephen Ross has been recognized by The Best Lawyers in Canada as a leading practitioner in insurance law.
• In May and June 2017, Andrew Yolles and Meryl Rodrigues were defence counsel in a successful three week jury trial in Brampton. The case arose out of a motor vehicle accident.  The plaintiff alleged to have sustained several injuries, including left leg numbness and a chronic pain condition.  There are certain outstanding issues to be decided by the trial judge, including the threshold and the deductible.  The end result will likely see the plaintiff recover zero damages.
• In May and June 2017, Don Rogers and Julie DeWolf were involved in a complex medical malpractice trial in Sault Ste. Marie. After more than two weeks of hard-fought litigation, the case settled.
• In June 2017, David Rogers won an important summary judgment motion on behalf of an insurer. The court agreed with David’s arguments that the insurer properly terminated an insurance policy for non-payment of premiums and that the plaintiff was not entitled to recover under the policy.  The claim against the insurer was dismissed with costs.
• Stephen Ross and Meryl Rodrigues recently wrote a detailed and informative article on “The Interplay between Tort and Accident Benefits”. The article has been selected for publication in an upcoming release of a popular reference text, the Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases.
• Rogers Partners continues to support initiatives at the Art Gallery of Ontario. On April 27, 2017, several lawyers from Rogers Partners and some clients attended the Art Gallery’s annual Massive Party fundraiser.  The event involved a fun night filled with food, cocktails, and dancing.
• Congratulations to Susie Lindsay on the birth of her baby girl on May 29, 2017.  Further, Susie, a Harvard graduate who clerked at the Ontario Court of Appeal, recently wrote an article on security for costs at the request of Justice Archibald.  The article is expected to be published soon.
• Congratulations to Don Rogers on being named the 2017 recipient of the Ontario Bar Association Award of Excellence in Insurance Law (Toronto). Don was presented with the well-deserved award before many friends and colleagues at a dinner on June 21, 2017.  Justice Darla Wilson and Justice Patrick Moore (former partner and co-founder of the firm) spoke at the event.  It was the latest of numerous commendations Don has received as one of the leading trial lawyers in the province.
• Rogers Partners looks forward to participating in the RIMS (Risk and Insurance Management Society) Canada conference which will take place this September in Toronto. Last year, Kevin Adams attended the conference in Calgary.
• The lawyers and staff of Rogers Partners continue to participate in Casual Fridays in recognition of worthy causes.  The firm is currently supporting the Tim Hortons Children’s Foundation.

From the Desk of Kevin Adams

The rules and legislative framework governing auto insurance claims and litigation seem to change regularly. Further changes may be on the horizon.

In February 2016, David Marshall was appointed as a Special Adviser to the Minister of Finance. His task was to review and recommend improvements for auto insurance in Ontario. He released his final report on April 11, 2017 entitled “Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario”.

Mr. Marshall sought to focus his analysis on: coverage options; comparable systems; common traffic injuries; medical examinations and assessments; legal costs; dispute prevention; engagement and education; and evidence-based treatment protocols. Ultimately, the report makes 35 recommendations to establish a regulatory regime for “Fair Benefits Fairly Delivered”.

Examples of some of the recommendations are:

• Insurers should make sure that seriously injured persons are given top priority and do not need to hire lawyers or other professionals to get their entitlement.
• The regulator should undertake a complete overhaul of the pricing schedules for treatment by providers and evaluators to bring them more in line with prices being paid by other similar bodies, such as workers’ compensation boards, and to emphasize outcomes rather than the number of treatments.
• There should be no cash settlements in the accident benefits portion of the Ontario auto insurance system for those benefits specified in the legislation as being for medical and rehabilitation care. Where the legislation provides for cash payments, for example for lost wages and lump-sum payments for catastrophically injured persons, these would, of course, continue to be paid.
• There is an urgent need to revise and simplify the legislation and current set of regulations and focus on desired outcomes and less on the details of process.
• Settlement cheques should be made payable jointly to the claimant and his or her lawyer to allow the claimant to fully understand and accept the disposition of the funds.
• To the extent possible, the regulatory regime should be overhauled to encourage insurers to innovate and introduce new products even on a trial or experimental basis.
• Insurance companies must change their role from managing costs to delivering care to their customers. They will need to change their claims management and related practices in the process. They will also need to innovate and compete on service and cost.

Following the release of Mr. Marshall’s report, Charles Sousa, Minister of Finance, was quoted as saying: “Over the last several years, we’ve introduced important changes that have reduced auto insurance costs and lowered average premiums. We know that to achieve more savings for drivers and to address fraud, we need to transform the current system.”

We can only assume that some of the recommendations will be acted upon by the legislature.  Whether the system will be tinkered with or transformed remains to be seen.