Ontario Court of Appeal finds trial judge did not 'double deduct' IRBs from jury award

As long as a trial judge has not directed a jury to deduct income replacement benefits (IRBs) from their jury award, the trial judge may deduct IRBs from the jury award without fear of “double deduction,” the Ontario’s Court of Appeal has ruled.
In Karamzadeh v. Pierre, Heydar Karamzadeh was found by the Ontario Superior Court of Justice to have sustained a “minor soft tissue injury to the neck area,” and was awarded $15,000 in general damages and $17,500 for past lost income.
While the lower court’s jury deliberated, the trial judge found that Karamzadeh’s injuries did not constitute a permanent and serious impairment of an important physical, mental or psychological function. As a result, a statutory deduction of $15,000 applied, and he was not able to recover the general damages.
Furthermore, the trial judge applied a 20% reduction to the past income award and deducted income replacement benefits received by Karamzadeh, reducing the $17,500 for past lost income to nil.
Karamzadeh appealed, arguing that both counsel for the plaintiff and the defence mentioned to the jury — and also the trial judge — in their closing arguments that IRBs ought to be subtracted from any award for past income loss. This was the equivalent of instructing the jury to deduct the IRBs, Karamzadeh argued.
But, the Court of Appeal found that Karamzadeh failed to properly characterize what the trial judge said in his charge.
“The trial judge did make reference to counsel’s submissions, but counsel for the plaintiff now acknowledges that the trial judge did not specifically direct the jury to make a deduction for IRBs that had been paid to the plaintiff; nor did he provide to the jury any formula to calculate past income loss,” the panel wrote.
“We see no error made by [the trial judge] in deducting the IRB payments received by the plaintiff from the gross amount awarded by the jury. Accordingly, this ground of appeal must fail.”

Ontario auto insurers approved for rate increases averaging 5.61% in 2010 Q1

Ontario auto insurance rates continued their upward climb in 2010 Q1, with the province’s auto insurers getting approved rate increases averaging 5.61% when weighted by market share.
“The rate changes approved in 2004, 2005, 2006, 2007, 2008 and 2009 were -10.60%, -2.43%, -1.27%, +0.55%, +5.59% and +8.77%, respectively, for the entire market,” the Financial Services Commission of Ontario (FSCO) noted in a quarterly release announcing the rate changes.
Approved rate changes in the first quarter for the following 10 companies, listed in order of market share, are as follows:

State Farm Mutual Automobile Insurance Company
Market share: 12.46%
Rate Change: +7.24%

Intact Insurance Company
Market share: 7.55%
Rate Change: +0.60%

Economical Mutual Insurance Company
Market share: 6.21%%
Rate Change: +4.16%

Security National Insurance Company
Market share: 5.57%
Rate Change: +7.80%

Pilot Insurance Company
Market share: 4.89%
Rate Change: +18.50%

The Dominion of Canada General Insurance Company
Market share: 4.75%
Rate Change: +0.18%

Co-operators General Insurance Company
Market share: 4.57%
Rate Change: +2.49%

Wawanesa Mutual Insurance Company
Market share: 3.76%
Rate Change: +8.98%

Unifund Assurance Company
Market share: 3.62%
Rate Change: +2.27%

Allstate Insurance Company of Canada
Market share: 2.91%
Rate Change: -1.01%

Ontario quoted auto rates soar in 2010 Q1: Kanetix

Auto rates quoted in Ontario in 2010 Q1 increased by 11.6% over 2009 Q1 quoted rates, according to Kanetix’s quarterly review of auto insurance.
The increase on the quoted rates “suggest that Ontario drivers are feeling the effects of rate increases approved in 2009,” said a Kanetix release.
“Reforms have been announced which, it is anticipated, could slow or possibly even reverse rate increases.”
Quebec drivers obtained quotes that were 4.6% lower this year than last. About 6% opted to see how much could be saved with a two-year policy commitment, and 7% more quotes were obtained by shoppers willing to bundle their home and auto insurance, making them eligible for a multi-line discount.
In Alberta, quoted rates decreased 1.6%. “This result is consistent with the industry-wide reduction of premiums implemented on Nov. 1, 2009 for mandatory basic auto insurance,” a Kanetix release says.

FSCO orders claimant to produce medical records of alleged prior accidents

The Financial Services Commission of Ontario (FSCO) has ordered a claimant to produce OHIP records and the clinical notes of his family doctor dating back to motor vehicle accidents that allegedly occurred up to five years prior to the 2005 accident that was the subject of arbitration.
The applicant, Karel Paskoe, was involved in a motor vehicle accident on Aug. 23, 2005. He agreed to provide records of his family doctor and OHIP records to his insurer, Motors Insurance Corporation, up to one year prior to the 2005 accident.
Some of the medical documents he produced referred to previous accidents.
For example, a 2007 physiotherapy assessment report noted Paskoe was involved in a minor accident in 2000. And a separate 2007 Paramount Rehabilitation Centre Inc. report stated: “Mr. Paskoe reported that he had previous motor vehicle accidents in 2001 and 2002. He was injured but recovered.”
Motors took the position that since the condition about which Paskoe complained is progressive, it would be unfair to restrict the production of pre-accident medical records to one year — particularly in light of evidence that suggested Paskoe sustained injuries in motor vehicle accidents occurring in 2000, 2001 and 2002.
Paskoe said the apparent inconsistencies in the medical reports were not a result of how he reported the information to the medical assessors in question.
He further argued that in the absence of supporting and reliable evidence produced by the insurer about the relevance of the medical reports to be produced, the claimant should be given the benefit of the doubt.
But the “references in the medical reports to earlier accidents provide a foundation for Motors to amplify the scope of foundations,” FSCO arbitrator Judith Killoran wrote in her decision. “Motors requires further medical information to properly assess questions of causation and quantum….
“I find it is reasonable and relevant for Mr. Paskoe to produce OHIP records and the clinical notes and records of his family doctor dating back to prior motor vehicle accidents as early as 2000.”

Motorcycle fatalities on upswing despite record lows for car crash fatalities

Motorcycles with anti-lock brakes are 37% less likely to be in fatal crashes per 10,000 registered vehicle years, according to the Insurance Institute for Highway Safety (IIHS).
Bike models with anti-locks also have 22% fewer claims for damage per insured vehicle year than the same models without antilock brakes, reports the Highway Loss Data Institute (HLDI). [A vehicle year is one vehicle insured for one year, two insured for six months, and so on.]
Crash avoidance technology like motorcycle anti-locks is especially important because more people are taking up riding and more are dying in crashes, says IIHS.
Rider deaths topped 5,000 in 2008 — more than in any other year since the U.S. federal government began collecting fatal crash data in 1975.
Motorcycle registrations also rose to 7.7 million in 2008, up from 4.3 in 2000.
The data is especially disturbing since the upswing has come amid record lows for fatalities in car crashes.
“Stopping a motorcycle is trickier than stopping a car,” the IIHS said. “In an emergency, a [motorcycle] rider faces a split-second choice to either brake hard, which can lock the wheels and cause an overturn, or hold back on braking and risk running into the emergency.”
Anti-locks can help reduce brake pressure when they detect impending lockup and increase pressure when traction is restored, “so riders may brake fully without fear of locking up.”
More than half of motorcycle owners surveyed by IIHS said they would get anti-locks on their next bikes.

Federal Court to hear State Farm's challenge of privacy law

The Federal Court of Canada in Halifax is scheduled to hear State Farm Mutual Automobile Insurance Company v. the Privacy Commissioner of Canada on Apr. 13, 2010.
The case concerns State Farm’s challenge of the privacy commissioner’s jurisdiction in an insurance fraud investigation.
In March 2005, Jennifer Vetter, a State Farm insured, was involved in a motor vehicle accident with Gerald Gaudet.
State Farm hired private investigators who conducted video surveillance of Gaudet.
Pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA), Gaudet requested the personal information State Farm had compiled, including copies of the surveillance reports and tapes.
State Farm denied the request stating PIPEDA did not apply to any information it held regarding Gaudet.
When the Privacy Commissioner intervened, State Farm argued the Office of the Privacy Commissioner had no jurisdiction regarding the disclosure of surveillance information.
The New Brunswick Court of Appeal ruled in early 2009 that the Federal Court was the proper jurisdiction to hear the case.

Ontario auto cost insurers $900 million in 2009: IBC

Canadian property and casualty insurers writing Ontario auto lost an astounding $907 million in 2009, said Barbara Sulzenko-Laurie, vice president of policy at the Insurance Bureau of Canada (IBC).
Sulzenko-Laurie presented a ‘State of the Industry’ speech at the Swiss Re–IBC Breakfast in Toronto on Mar. 30, 2010.
The continued escalation of the “excesses and abuses” of Ontario’s no-fault SABS system resulted in a 23.5% increase in the direct loss ratio in Ontario AB lines, she continued. Between 2008 and 2009 the loss ratio increased from 124% to 148%.
Sulzenko-Laurie observed companies that had more exposure to Ontario auto — based on 50% or more of direct earned premium — were much more likely to have returns on equity (ROE) of less than 9%.
“For those companies that had more exposure to Ontario auto, 75% of those companies had an ROE of less than 9%, whereas those companies that were less exposed, almost 50% of those companies achieved an ROE greater than 9%,” she said.
The Financial Services Commission of Ontario remains “very optimistic” that the reforms coming into place Sept. 1, 2010 will meet its projected savings target of 31%, but Sulzenko-Laurie said she’s holding judgement.
She noted the plaintiff bar is already “trying to undermine the reforms” by holding information sessions on “how to get around” them. She read from a sheet of proposed legal seminars entitled, ‘How to Squeeze the Most out of $50,000,’ and ‘Catastrophic Impairment: New Directions.’
In her view, the reforms may have simply come too late.
Sulzenko-Laurie noted IBC approached the government as early as 2006 to take remedial action to curb rising AB costs. Between that time and 2010, when the reforms will actually be implemented, the loss ratio in Ontario auto increased by 19%.
“The results of the slowness of responding to obvious problems in the system is that in the past two years, Ontario insurers have lost $1.3 billion,” Sulzenko-Laurie said. “Ontario consumers have seen their average premiums rise by 10.5%.”