A Toronto man has been charged in connection with an insurance fraud investigation.
According to Toronto police, the fraud scheme involved a paralegal who said he was operating under Royal Sun and Alliance Company, using 'Executive Brokers' as the name of the insurance broker.
The brokerage address was presented as 251 Consumers Road #1200.
Police allege:
the victim would purchase car insurance from the accused,
the victim believed the insurance was valid,
the perpetrator took $3,000 cash for the insurance,
the perpetrator forged all necessary documentation for the car insurance.
Concerned that there might be other victims who bought insurance from the perpetrator or his company, and who are now driving without valid insurance, Toronto Police have released a photo of the accused.
Police are appealing to any one who might have purchased insurance from the accused or Executive Brokers to contact the Registered Insurance Brokers of Ontario (RIBO) to ensure that they do, in fact, have valid insurance.
Peter Joseph of Toronto has been charged with false pretences under $5,000, forgery and uttering forged document.
Friday, November 26, 2010
Friday, November 19, 2010
Ontario arbitrator orders claimant to produce insurer with two years' worth of medical, prescription records in non-earner benefits case
An Ontario arbitrator has ordered a claimant to provide his insurer, Aviva Canada, with two years' worth of medical and prescription records in a non-earner benefits case.
This is one year beyond the standard practice of requiring production of only one year's worth of medical records in accident benefits arbitrations.
Aviva initially asked the claimant to produce medical records dating back to 2000 and prescription records dating back to 1990. Aviva claimed the reason for going back so far was relevant to Ablarde's claim for non-earner benefits.
Entitlement to non-earner benefits is based on a person suffering from a complete inability to carry on a normal life after an injury sustained in an auto collision. To determine entitlement, the person's activities and life circumstances before the collision must be taken into account.
Ablarde was injured in an auto collision in 2007.
In a pre-hearing decision in Richard Ablarde and Aviva Canada Inc., Financial Services Commission of Ontario (FSCO) arbitrator John Wilson wrote: "I do not accept that it is either necessary or appropriate to order production of [Ablarde's] OHIP summary and prescription records going back to the millennium and beyond."
Nevertheless, Wilson also found the nature of the non-earner benefit made it relevant to go beyond the traditional one-year window allowed in arbitrations.
"The non-earner benefit...differs somewhat from many other accident benefits," Wilson wrote. "Firstly, it is not payable for the first six months.
"Secondly, rather than looking at a short span of time to determine entitlement, one must examine the activities of daily life for 'a reasonable period of time' both before and after a motor vehicle accident.
"Consequently, the one-year suggested limit on medical productions may not always be appropriate."
This is one year beyond the standard practice of requiring production of only one year's worth of medical records in accident benefits arbitrations.
Aviva initially asked the claimant to produce medical records dating back to 2000 and prescription records dating back to 1990. Aviva claimed the reason for going back so far was relevant to Ablarde's claim for non-earner benefits.
Entitlement to non-earner benefits is based on a person suffering from a complete inability to carry on a normal life after an injury sustained in an auto collision. To determine entitlement, the person's activities and life circumstances before the collision must be taken into account.
Ablarde was injured in an auto collision in 2007.
In a pre-hearing decision in Richard Ablarde and Aviva Canada Inc., Financial Services Commission of Ontario (FSCO) arbitrator John Wilson wrote: "I do not accept that it is either necessary or appropriate to order production of [Ablarde's] OHIP summary and prescription records going back to the millennium and beyond."
Nevertheless, Wilson also found the nature of the non-earner benefit made it relevant to go beyond the traditional one-year window allowed in arbitrations.
"The non-earner benefit...differs somewhat from many other accident benefits," Wilson wrote. "Firstly, it is not payable for the first six months.
"Secondly, rather than looking at a short span of time to determine entitlement, one must examine the activities of daily life for 'a reasonable period of time' both before and after a motor vehicle accident.
"Consequently, the one-year suggested limit on medical productions may not always be appropriate."
Tuesday, November 2, 2010
Bad faith no longer necessary for monetary awards for breach of Charter rights: Supreme Court of Canada
Bad faith is no longer a necessary requirement for awarding monetary damages for the breach of a Charter right following a recent Supreme Court of Canada decision, Blaney McMurtry LLP reported in its Insurance Observer.
In Vancouver (City) v Ward, a unanimous Supreme Court of Canada upheld a damages award for an unconstitutional strip search and vehicle seizure, absent bad faith on the part of the police, wrote Rafal Szymanski, a member of Blaney McMurty's insurance defence group, in the article Absense of Malice: Charter Damages Redefined.
In Ward, Vancouver police acted on a tip that an unknown individual planned to throw a pie at then Prime Minister Jean Chretien during a public appearance.
Ward was mistakenly identified as the suspect and arrested. In custody, police strip searched him, but did not as him to remove his underwear, not was he touched by the officers. His car was impounded, with the intention of obtaining a search warrant.
When it was determined that there were no grounds for a warrant and there was insufficient evidence to support a charge, he was released, wrote Szymanski.
Ward brought an action in tort and for breach of his Charter right. The lower court held that there was no tort liability, but that his section 8 Charter right to be free from unreasonable search and seizure had indeed been violated. Damage for the breach was set in the amount of $100 for the seizure of the car and $5,0000 for the strip search.
The Supreme Court of Canada confirmed the trial judge's award, deeming them to be "appropriate and just both from the perspective of the plaintiff and the defendant," wrote Szymanski.
"With Ward, the Supreme Court of Canada has provided plaintiffs with an avenue to prosecute government entities for monetary relief, even where such entities were not acting in bad faith," wrote Szymanski. "This will no doubt lead to an increase in litigation.
In Vancouver (City) v Ward, a unanimous Supreme Court of Canada upheld a damages award for an unconstitutional strip search and vehicle seizure, absent bad faith on the part of the police, wrote Rafal Szymanski, a member of Blaney McMurty's insurance defence group, in the article Absense of Malice: Charter Damages Redefined.
In Ward, Vancouver police acted on a tip that an unknown individual planned to throw a pie at then Prime Minister Jean Chretien during a public appearance.
Ward was mistakenly identified as the suspect and arrested. In custody, police strip searched him, but did not as him to remove his underwear, not was he touched by the officers. His car was impounded, with the intention of obtaining a search warrant.
When it was determined that there were no grounds for a warrant and there was insufficient evidence to support a charge, he was released, wrote Szymanski.
Ward brought an action in tort and for breach of his Charter right. The lower court held that there was no tort liability, but that his section 8 Charter right to be free from unreasonable search and seizure had indeed been violated. Damage for the breach was set in the amount of $100 for the seizure of the car and $5,0000 for the strip search.
The Supreme Court of Canada confirmed the trial judge's award, deeming them to be "appropriate and just both from the perspective of the plaintiff and the defendant," wrote Szymanski.
"With Ward, the Supreme Court of Canada has provided plaintiffs with an avenue to prosecute government entities for monetary relief, even where such entities were not acting in bad faith," wrote Szymanski. "This will no doubt lead to an increase in litigation.
Psychological and physical injuries cannot be combined to determine catastrophic impairment: Ontario Superior Court
Percentage determinations of psychological impairments cannot be added to percentage determinations of physical impairments to determine whether or not a person has suffered a whole person ‘catastrophic impairment' under the Statutory Accidents Benefits Schedule (SABS), the Ontario Superior Court of Justice has found.
S. 43, Clause 2(1.1)(f) of the SABS states a person has suffered a catastrophic injury if: "an impairment or combination of impairments...in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person."
Courts and arbitrators are frequently asked to combine percentage-based determinations of physical and psychological impairments to arrive at a conclusion that a person had met the 55% threshold of a catastrophic impairment.
But in Kusnierz v. The Economical Mutual Insurance Company, released on Oct. 19, 2010, the Ontario Superior Court says this type of combination of psychological and physical impairments cannot be done.
"I find that it is not permissible under the SABS to assign percentage values to mental and behavioural disorders under Chapter 14 of the Guides...and then combine them with the percentage values derived from impairments assessed under the other chapters of the Guides (referred to in clause 2(1.1)(f) of the SABS) in determining whether an individual meets the catastrophic impairment threshold of "55 per cent or more impairment of the whole person," Ontario Superior Court Justice Peter Lauwers wrote in his decision.
"I reach this conclusion for the following reasons, in a nutshell:
"(i) The Guides deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the Guides for the purpose of determining whole person impairment;
(ii) The structure of the SABS reinforces the bright line demarcation between mental and behavioural disorders referred to in Chapter 14 of the AMA Guides - specifically referred to in clause 2(1.1)(g) of the SABS - from the impairments assessed under the other chapters of the Guides which are referred to in clause 2(1.1)(f) of the SABS; and
(iii) This interpretation is consistent with the purpose of the specific provisions of Bill 59 and the SABS that this issue engages."
George Cooke, president and CEO of The Dominion of Canada General Insurance Company, praised the ruling during the Insurance Brokers Association of Ontario (IBAO)'s 90th Annual Convention in Niagara Falls. But it does seem likely, based on the importance of the ruling to the industry, that the decision will be appealed.
S. 43, Clause 2(1.1)(f) of the SABS states a person has suffered a catastrophic injury if: "an impairment or combination of impairments...in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person."
Courts and arbitrators are frequently asked to combine percentage-based determinations of physical and psychological impairments to arrive at a conclusion that a person had met the 55% threshold of a catastrophic impairment.
But in Kusnierz v. The Economical Mutual Insurance Company, released on Oct. 19, 2010, the Ontario Superior Court says this type of combination of psychological and physical impairments cannot be done.
"I find that it is not permissible under the SABS to assign percentage values to mental and behavioural disorders under Chapter 14 of the Guides...and then combine them with the percentage values derived from impairments assessed under the other chapters of the Guides (referred to in clause 2(1.1)(f) of the SABS) in determining whether an individual meets the catastrophic impairment threshold of "55 per cent or more impairment of the whole person," Ontario Superior Court Justice Peter Lauwers wrote in his decision.
"I reach this conclusion for the following reasons, in a nutshell:
"(i) The Guides deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the Guides for the purpose of determining whole person impairment;
(ii) The structure of the SABS reinforces the bright line demarcation between mental and behavioural disorders referred to in Chapter 14 of the AMA Guides - specifically referred to in clause 2(1.1)(g) of the SABS - from the impairments assessed under the other chapters of the Guides which are referred to in clause 2(1.1)(f) of the SABS; and
(iii) This interpretation is consistent with the purpose of the specific provisions of Bill 59 and the SABS that this issue engages."
George Cooke, president and CEO of The Dominion of Canada General Insurance Company, praised the ruling during the Insurance Brokers Association of Ontario (IBAO)'s 90th Annual Convention in Niagara Falls. But it does seem likely, based on the importance of the ruling to the industry, that the decision will be appealed.
Accident benefits arbitrations face the same kind of backlogs seen in courts: FSCO director delegate
Arbitration is supposed to offer a cheaper, quicker alternative to the courts when resolving accident benefits disputes, but the current reality is completely different, Lawrence Blackman, director delegate at the Financial Services Commission of Ontario (FSCO), says.
At the Canadian Defence Lawyers (CDL)'s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010, Blackman spoke about the importance of sticking to best practices in an effort to keep arbitrations on a timely schedule.
"What is the reality?" Blackman asked rhetorically. "You know as well as I do what the reality is. The reality on both sides is boilerplate pleadings, boilerplate production requests, fishing expeditions...a jury policy where at least 95% of requests are granted, last-minute adjournment requests, hearings extending for weeks, months, even longer, bankers' boxes of documents that are duplicated repeatedly and although the system does at present have arbitration hearings available next week, I see that arbitrators are booking hearings for the autumn of 2011."
Blackman said there were 14,000 applications for mediations in the 12-month period ending 2007. Last year, there were 26,000 applications in the same period.
"That is 500 applications for mediation a week," Blackman said. "That's an 89% increase, and there has been no increase in staff."
Three years ago, there were 4,500 mediations pending. In September 2010, the number was just shy of 20,000.
Blackman said general arbitration guidelines provide that an arbitration be assigned to a mediator within three weeks of receipt of a completed application. "Presently, there is an eight-month gap," he said.
As for arbitration pre-hearings, there is a similar backlog, Blackman noted. As of September 2010, FSCO received 4,000 applications for a pre-hearing in the past 12-month period, which amounts to 80 applications per week.
"In next 18 weeks, there are 31 pre-hearing spots available," said Blackman.
At the Canadian Defence Lawyers (CDL)'s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010, Blackman spoke about the importance of sticking to best practices in an effort to keep arbitrations on a timely schedule.
"What is the reality?" Blackman asked rhetorically. "You know as well as I do what the reality is. The reality on both sides is boilerplate pleadings, boilerplate production requests, fishing expeditions...a jury policy where at least 95% of requests are granted, last-minute adjournment requests, hearings extending for weeks, months, even longer, bankers' boxes of documents that are duplicated repeatedly and although the system does at present have arbitration hearings available next week, I see that arbitrators are booking hearings for the autumn of 2011."
Blackman said there were 14,000 applications for mediations in the 12-month period ending 2007. Last year, there were 26,000 applications in the same period.
"That is 500 applications for mediation a week," Blackman said. "That's an 89% increase, and there has been no increase in staff."
Three years ago, there were 4,500 mediations pending. In September 2010, the number was just shy of 20,000.
Blackman said general arbitration guidelines provide that an arbitration be assigned to a mediator within three weeks of receipt of a completed application. "Presently, there is an eight-month gap," he said.
As for arbitration pre-hearings, there is a similar backlog, Blackman noted. As of September 2010, FSCO received 4,000 applications for a pre-hearing in the past 12-month period, which amounts to 80 applications per week.
"In next 18 weeks, there are 31 pre-hearing spots available," said Blackman.
Ontario's $2,000 cap on AB assessments could be vulnerable to Charter challenge: AB seminar panelist
By including a health practitioner's travel and translation costs within a $2,000 limit on auto insurance accident benefits assessments, the new Ontario auto insurance reforms may be heading down the highway towards a Charter challenge.
"On the issue of including the transportation costs and the translation costs, I would think that's a Charter issue that would be challenged quite quickly, because there's a [potential] disenfranchisement of people who don't live in urban centres and people who do not speak English," said Kadey B.J. Schultz of Hughes Amys, who made the point at a panel discussion on the recent reforms to the Ontario Statutory Accident Benefits Schedule. "They might not get the same value for money out of their policy of insurance as the people living in the Greater Toronto Area and English-speaking people would."
The panel discussion occurred at the Canadian Defence Lawyers (CDL)'s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010.
Schultz made her comment after fellow panelist Dr. Arthur Ameis of the Multi Disciplinary Assessment Centre (MDAC) criticized the inclusion of travel and translation costs within the $2,000 cap. He noted the inclusion of these costs would make it difficult to find health practitioners willing to perform assessments on behalf of insurers.
For example, Ameis suggested health practitioners would have no incentive to travel to underserviced and/or remote areas to perform at-home assessments, since the cost to do so would be counted against the assessment limit. "Transportation?" he said of the costs. "Well, that basically precludes service in places such as Rainy River, Timmins, Kapuskasing."
Similarly, he said, health practitioners might choose not to assess claimants whose first language wasn't English. "Why should I as a physician, when I could at most make $2,000, accept a patient who doesn't speak English?" he said. "I am going to have to have some of my fee taken out to pay for the translator."
Ameis noted that even first-year general practitioners bill at $492 per hour, which would reach the $2,000 assessment limit in about four hours.
Ameis emphasized that health practitioners do not perform assessments casually. He noted they are required to do long, extensive reports; receive banker's boxes of documentation in order to do an assessment; often have their credentials questioned publicly in court and arbitration settings; and could potentially face civil suits or disciplinary hearings as a result.
"So the attractiveness of this work is low," he said. "We're facing a situation where a couple of years from now at arbitration, the plaintiff lawyers may or may not have gotten around the cap to get their assessments done, but the insurers are held to the cap, and they are going to be presenting less-than-complete, less-than-expert, less-than-satisfactory, less-than-exhaustive assessment reports to counter the situation. And yet no one has touched the arbitration system, which is exceedingly demanding."
"On the issue of including the transportation costs and the translation costs, I would think that's a Charter issue that would be challenged quite quickly, because there's a [potential] disenfranchisement of people who don't live in urban centres and people who do not speak English," said Kadey B.J. Schultz of Hughes Amys, who made the point at a panel discussion on the recent reforms to the Ontario Statutory Accident Benefits Schedule. "They might not get the same value for money out of their policy of insurance as the people living in the Greater Toronto Area and English-speaking people would."
The panel discussion occurred at the Canadian Defence Lawyers (CDL)'s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010.
Schultz made her comment after fellow panelist Dr. Arthur Ameis of the Multi Disciplinary Assessment Centre (MDAC) criticized the inclusion of travel and translation costs within the $2,000 cap. He noted the inclusion of these costs would make it difficult to find health practitioners willing to perform assessments on behalf of insurers.
For example, Ameis suggested health practitioners would have no incentive to travel to underserviced and/or remote areas to perform at-home assessments, since the cost to do so would be counted against the assessment limit. "Transportation?" he said of the costs. "Well, that basically precludes service in places such as Rainy River, Timmins, Kapuskasing."
Similarly, he said, health practitioners might choose not to assess claimants whose first language wasn't English. "Why should I as a physician, when I could at most make $2,000, accept a patient who doesn't speak English?" he said. "I am going to have to have some of my fee taken out to pay for the translator."
Ameis noted that even first-year general practitioners bill at $492 per hour, which would reach the $2,000 assessment limit in about four hours.
Ameis emphasized that health practitioners do not perform assessments casually. He noted they are required to do long, extensive reports; receive banker's boxes of documentation in order to do an assessment; often have their credentials questioned publicly in court and arbitration settings; and could potentially face civil suits or disciplinary hearings as a result.
"So the attractiveness of this work is low," he said. "We're facing a situation where a couple of years from now at arbitration, the plaintiff lawyers may or may not have gotten around the cap to get their assessments done, but the insurers are held to the cap, and they are going to be presenting less-than-complete, less-than-expert, less-than-satisfactory, less-than-exhaustive assessment reports to counter the situation. And yet no one has touched the arbitration system, which is exceedingly demanding."
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