Canada's Privacy Commissioner has called on Staples Business Depot to review and improve compliance with its own privacy policies and procedures after an audit found the company had re-sold computers, hard drives and electronic memory devices without first wiping personal information from them.
In an audit report released on June 21, the privacy commissioner noted its audit of Staples had tested 149 data storage devices, including laptop and desktop computers, USB and internal hard drives, memory sticks and memory cards.
"The audit shows that Staples did not ensure data storage devices are wiped of all customer data prior to resale," the privacy commissioner concluded in its report. "In summary, we found that 54 of the 149 devices tested contained customer data.
"A number of these devices contained personal information that included government-issued identification numbers, email messages, personal correspondence and photographs, immigration documents, resumés, financial statements, custodial arrangements and personal contact lists."
The privacy commissioner noted Staples does have a corporate policy requiring that a vendor's personal information be wiped and removed from electronic devices prior to re-sale. Staples strengthened these policies after a 2009 investigation by the privacy commissioner into the same issue.
"While the revised procedures include key control mechanisms, they are not consistently applied," the report of the privacy commissioner found. "In 15 of the 17 stores audited, we noted instances where data storage devices were:
• resealed and verified as being wiped when such was not the case;
• not verified by a manager prior to being restocked; or,
• sent directly to the RTV [return to vendor] bin without being processed (wiped) by a technician."
Friday, June 24, 2011
Accident benefits not selected are not "available" to an insured; cannot be deducted from past income loss in tort
When an Ontario insured is required by law to select one of three statutory accident benefits, the benefits they do not select are not "available" to them. Therefore, they cannot be deducted from a claim for past income loss in a bodily injury action.
The Ontario Court of Appeal thus overturned a lower court ruling, which found a defendant in a tort case might indeed make such a deduction, in Sutherland v. Singh, released on June 22.
Section 267.8(1) of the Ontario Insurance Act provides that in an action for a loss or damage from bodily injury in an auto accident, the damages to which a plaintiff is entitled shall be reduced by payments for statutory accident benefits that the plaintiff has either received, or that were "available" to them.
The law is intended to prevent "double recovery," in which a plaintiff recovers from a defendant in tort and also receives accident benefits for a past income loss.
The plaintiff in this case, Derrick Sutherland, was rear-ended by defendant Gurmeet Singh. Sutherland has a wife and three children.
At the time of the accident, Sutherland was employed full-time as a machine operator at Winpack. He claimed he was temporarily unable to return to work and therefore perform caregiving duties for his three children.
Under s. 36(1) of the regulations for the Insurance Act, Sutherland must choose one out of three benefit options for lost income: an income replacement benefit (IRB), a non-earner benefit and a caregiver benefit (CGB).
The non-earner benefit did not apply, since Sutherland was working at the time. He elected to receive the caregiving benefits.
He later issued a statement of claim in which he claimed for past income loss, among other things. The defendants sought to deduct from Sutherland's past income loss the value of the income replacement benefits that Sutherland did not select.
Even though Sutherland chose to receive the caregiving benefits, the defendants argued, the IRBs were also "available" to the plaintiff at the time of the choice.
A lower court agreed with the defendants, but the Appeal Court overturned the finding.
The defendants' argument, "ignores the underlying purpose of s. 267.8, which is to prevent plaintiffs from double recovery for their losses," the Appeal Court concluded. "If the defendants' argument is correct, they will be entitled to both CGBs, which Mr. Sutherland received, and IRBs, which he never received.
"This would lead to a situation in which Mr. Sutherland is undercompensated and the defendants would receive a windfall. This would not be a fair result and it cannot have been intended."
The Ontario Court of Appeal thus overturned a lower court ruling, which found a defendant in a tort case might indeed make such a deduction, in Sutherland v. Singh, released on June 22.
Section 267.8(1) of the Ontario Insurance Act provides that in an action for a loss or damage from bodily injury in an auto accident, the damages to which a plaintiff is entitled shall be reduced by payments for statutory accident benefits that the plaintiff has either received, or that were "available" to them.
The law is intended to prevent "double recovery," in which a plaintiff recovers from a defendant in tort and also receives accident benefits for a past income loss.
The plaintiff in this case, Derrick Sutherland, was rear-ended by defendant Gurmeet Singh. Sutherland has a wife and three children.
At the time of the accident, Sutherland was employed full-time as a machine operator at Winpack. He claimed he was temporarily unable to return to work and therefore perform caregiving duties for his three children.
Under s. 36(1) of the regulations for the Insurance Act, Sutherland must choose one out of three benefit options for lost income: an income replacement benefit (IRB), a non-earner benefit and a caregiver benefit (CGB).
The non-earner benefit did not apply, since Sutherland was working at the time. He elected to receive the caregiving benefits.
He later issued a statement of claim in which he claimed for past income loss, among other things. The defendants sought to deduct from Sutherland's past income loss the value of the income replacement benefits that Sutherland did not select.
Even though Sutherland chose to receive the caregiving benefits, the defendants argued, the IRBs were also "available" to the plaintiff at the time of the choice.
A lower court agreed with the defendants, but the Appeal Court overturned the finding.
The defendants' argument, "ignores the underlying purpose of s. 267.8, which is to prevent plaintiffs from double recovery for their losses," the Appeal Court concluded. "If the defendants' argument is correct, they will be entitled to both CGBs, which Mr. Sutherland received, and IRBs, which he never received.
"This would lead to a situation in which Mr. Sutherland is undercompensated and the defendants would receive a windfall. This would not be a fair result and it cannot have been intended."
Tuesday, June 21, 2011
Brokers welcome and insurers review the CCIR's discussion paper on credit scoring
Ontario's broker association is encouraging the province's consumers to provide input to the Canadian Council of Insurance Regulators (CCIR) on the use of credit scoring in insurance.
The Insurance Brokers Association of Ontario (IBAO) was responding to the release of a discussion paper on the topic by the CCIR on June 17.
"Regulators should be commended for the release of this issues paper because it acknowledges the risks to consumers that the IBAO has been raising with government and consumers," said IBAO CEO Randy Carroll. "All consumers should provide input on this stakeholder process and should consult our Web site, www.SoaringInsuranceRates.ca, to learn more about making their voices heard."
The CCIR's paper identifies seven potential risks to consumers related to the use of credit scoring by insurers. The CCIR is asking for stakeholder input on whether these risks in fact represent a harm to consumers and whether or not current law already addresses these risks.
The Insurance Bureau of Canada, representing Canada home, auto and business insurers, said it is reviewing the report and intends to make a submission of its own as part of the consultation process.
Bryan Yetman, IBAO board chairman, observed in an email that three issues identified and discussed in the CCIR paper - consent, disclosure and privacy - played a role in a recent decision by the B.C. privacy commissioner. In that case, the privacy commissioner found an insurer had not disclosed clearly enough to a consumer that it was using the customer's credit score for the purpose of underwriting.
The CCIR paper does note there seems to be a "discrepancy between what insurers and consumers are reporting" when it comes to obtaining a consumer's consent to use a credit score for underwriting purposes.
Such a disconnect "suggests to the CCIR that the consent given is not sufficiently informed," the CCIR says in its paper.
IBC does not have an official position on the use of credit scoring. It points to a voluntary code it has published for insurers that do use credit scoring.
"Some of our member companies use it as an underwriting tool, others do not," the IBC said in its statement. "In general, we support the right of our member companies to use a variety of tools for underwriting purposes.
"For property and casualty insurance companies that use credit information, IBC has introduced a voluntary Code of Conduct that enhances the protection of privacy and other consumer rights."
IBC's voluntary code calls on an insurer to gather prior consent, whether verbal or in writing, to collect and use credit information.
The code says the consent must be informed; it cannot be given on behalf of someone else; the insurer must retain proof of the consent; and the consent is assumed to be valid for the duration that the policy is in effect.
The Insurance Brokers Association of Ontario (IBAO) was responding to the release of a discussion paper on the topic by the CCIR on June 17.
"Regulators should be commended for the release of this issues paper because it acknowledges the risks to consumers that the IBAO has been raising with government and consumers," said IBAO CEO Randy Carroll. "All consumers should provide input on this stakeholder process and should consult our Web site, www.SoaringInsuranceRates.ca, to learn more about making their voices heard."
The CCIR's paper identifies seven potential risks to consumers related to the use of credit scoring by insurers. The CCIR is asking for stakeholder input on whether these risks in fact represent a harm to consumers and whether or not current law already addresses these risks.
The Insurance Bureau of Canada, representing Canada home, auto and business insurers, said it is reviewing the report and intends to make a submission of its own as part of the consultation process.
Bryan Yetman, IBAO board chairman, observed in an email that three issues identified and discussed in the CCIR paper - consent, disclosure and privacy - played a role in a recent decision by the B.C. privacy commissioner. In that case, the privacy commissioner found an insurer had not disclosed clearly enough to a consumer that it was using the customer's credit score for the purpose of underwriting.
The CCIR paper does note there seems to be a "discrepancy between what insurers and consumers are reporting" when it comes to obtaining a consumer's consent to use a credit score for underwriting purposes.
Such a disconnect "suggests to the CCIR that the consent given is not sufficiently informed," the CCIR says in its paper.
IBC does not have an official position on the use of credit scoring. It points to a voluntary code it has published for insurers that do use credit scoring.
"Some of our member companies use it as an underwriting tool, others do not," the IBC said in its statement. "In general, we support the right of our member companies to use a variety of tools for underwriting purposes.
"For property and casualty insurance companies that use credit information, IBC has introduced a voluntary Code of Conduct that enhances the protection of privacy and other consumer rights."
IBC's voluntary code calls on an insurer to gather prior consent, whether verbal or in writing, to collect and use credit information.
The code says the consent must be informed; it cannot be given on behalf of someone else; the insurer must retain proof of the consent; and the consent is assumed to be valid for the duration that the policy is in effect.
Friday, June 17, 2011
Distracted driving, inexperienced driving leading contributors to teen crashes
Preventive programs seem to be helping reduce the incidence of teens driving under the influence of alcohol, reported the Insurance Information Institute.
Immaturity, lack of driving experience, night driving and teen passengers are the primary contributors to the high crash rate among teens, the III reported.
Motor vehicle crashes are the leading cause of death among 15- to 20-year-olds, and teenagers are involved in more motor vehicle crashes late in the day and at night than at other times of day, the III reported in its June issue of The Topic.
But preventive programs aimed at reducing the incidence of drunk driving in teens seem to be having an effect.
A survey of 2,300 high school students in April 2011, commissioned by Liberty Mutual Insurance Company and Students Against Drunk Driving (SADD), found 6% of students say they have driven under the influence of alcohol on prom night - "a very low proportion when compared with the perception of prom night behaviour," the III said.
"In a 2009 study, 90% of the teen respondents thought that their peers would be more likely to drink and drive after the prom than at other times."
The new study cited possible reasons for the low incidence of prom night drinking and driving, including school programs and policies designed to keep teens from engaging in illegal behaviours.
"Eighty-nine per cent of students said their school had programs to discourage underage drinking at school events. Some employ security guards or police at the events, organize transportation and use breathalyzers."
Immaturity, lack of driving experience, night driving and teen passengers are the primary contributors to the high crash rate among teens, the III reported.
Motor vehicle crashes are the leading cause of death among 15- to 20-year-olds, and teenagers are involved in more motor vehicle crashes late in the day and at night than at other times of day, the III reported in its June issue of The Topic.
But preventive programs aimed at reducing the incidence of drunk driving in teens seem to be having an effect.
A survey of 2,300 high school students in April 2011, commissioned by Liberty Mutual Insurance Company and Students Against Drunk Driving (SADD), found 6% of students say they have driven under the influence of alcohol on prom night - "a very low proportion when compared with the perception of prom night behaviour," the III said.
"In a 2009 study, 90% of the teen respondents thought that their peers would be more likely to drink and drive after the prom than at other times."
The new study cited possible reasons for the low incidence of prom night drinking and driving, including school programs and policies designed to keep teens from engaging in illegal behaviours.
"Eighty-nine per cent of students said their school had programs to discourage underage drinking at school events. Some employ security guards or police at the events, organize transportation and use breathalyzers."
Residential burglary activity heats up in the summer: Aviva
Aviva Canada is warning consumers that residential burglaries spike in the summer months, when the warm weather tends to draw people away from the homes more frequently and for longer periods of time, leaving them vulnerable to thieves.
Aviva insurance claims data show residential burglaries spike in summer months with 13%, 20% and 31% higher frequencies in June, July and August, respectively, than in April, which shows the lowest occurrence of residential theft claims.
Data also indicate break-ins are more common at the start of the weekend. The number of Friday break-ins is 26% higher than Sunday, the day with the lowest incidence of break-ins.
Overall in Canada, burglaries are on the decline. Aviva claims data show a 42% decline in claims between 2003 and 2010.
Based on Aviva Canada data covering between 2005 and 2010, Quebec homeowners have the highest frequency of break-ins - two times that of the national average, an Aviva release says.
Atlantic Canada provinces, on the other hand, have the lowest frequency of burglary claims, at just over one-third of the national average.
Aviva insurance claims data show residential burglaries spike in summer months with 13%, 20% and 31% higher frequencies in June, July and August, respectively, than in April, which shows the lowest occurrence of residential theft claims.
Data also indicate break-ins are more common at the start of the weekend. The number of Friday break-ins is 26% higher than Sunday, the day with the lowest incidence of break-ins.
Overall in Canada, burglaries are on the decline. Aviva claims data show a 42% decline in claims between 2003 and 2010.
Based on Aviva Canada data covering between 2005 and 2010, Quebec homeowners have the highest frequency of break-ins - two times that of the national average, an Aviva release says.
Atlantic Canada provinces, on the other hand, have the lowest frequency of burglary claims, at just over one-third of the national average.
FSCO highlights amendments to Insurance Act concerning public transit auto claims
The Financial Services Commission of Ontario (FSCO) has released a bulletin highlighting recent amendments to the Insurance Act intended to help municipal transit systems control fraudulent claims.
These amendments include adding a definition of ‘public transit' to the act, where previously it was not included; adding a section that clarifies the liability of a public transit vehicle owner or driver in a single-vehicle collision, where previously they were not liable in these types of crashes; and the addition of a section that states public transit passengers cannot claim statutory accident benefits if the vehicle did not collide with another vehicle or object.
Under the amendments, ‘public transit' is now defined as:
• any service for which a fare is charged for transporting the public by automobiles operated by or on behalf of a municipality or a local board, but does not include special transportation facilities for persons with disabilities or transportation by special purpose facilities such as school buses or ambulances; and
• any service prescribed by regulation to be public transit.
A section (s. 267.5 (6.1)) was added to the Insurance Act that essentially says a driver or owner of a public transit vehicle can be found liable if the vehicle is involved in a single-vehicle collision.
"In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident."
A second section (s. 268(1.1)) was added that provides no statutory accident benefits are payable from any source to an occupant of a public transit vehicle if the public transit vehicle did not collide with another automobile or object.
These amendments include adding a definition of ‘public transit' to the act, where previously it was not included; adding a section that clarifies the liability of a public transit vehicle owner or driver in a single-vehicle collision, where previously they were not liable in these types of crashes; and the addition of a section that states public transit passengers cannot claim statutory accident benefits if the vehicle did not collide with another vehicle or object.
Under the amendments, ‘public transit' is now defined as:
• any service for which a fare is charged for transporting the public by automobiles operated by or on behalf of a municipality or a local board, but does not include special transportation facilities for persons with disabilities or transportation by special purpose facilities such as school buses or ambulances; and
• any service prescribed by regulation to be public transit.
A section (s. 267.5 (6.1)) was added to the Insurance Act that essentially says a driver or owner of a public transit vehicle can be found liable if the vehicle is involved in a single-vehicle collision.
"In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident."
A second section (s. 268(1.1)) was added that provides no statutory accident benefits are payable from any source to an occupant of a public transit vehicle if the public transit vehicle did not collide with another automobile or object.
Tuesday, June 14, 2011
FSCO charges director of a Toronto-area treatment centre in connection with auto insurance claims payments
The Financial Services Commission of Ontario (FSCO) has charged the director of a Greater Toronto Area-based treatment centre with knowingly making false or misleading statements to an auto insurer to obtain payment for goods and services provided to an insured.
The allegations have not yet been proven in court.
Following an investigation, FSCO found that Misha Saltanov, the director of York Disability Management Centre, had submitted false invoices to get paid for treatment that was never provided, a FSCO statement says.
The first court appearance for this matter is scheduled for July 14, 2011.
"This action clearly demonstrates that FSCO will not tolerate and will continue to prosecute abuses by unscrupulous participants in the Ontario auto insurance system," said Philip Howell, CEO and superintendent of FSCO.
FSCO investigates allegations of misconduct, unfair practices and non-compliance with legislation or regulations in its regulated sectors. If warranted, FSCO takes enforcement action, such as initiating a prosecution.
In March, FSCO released a bulletin reminding insurers of their rights and responsibilities in curbing questionable and abusive claims. Verifying invoices and expenses was an area of concern highlighted in the document.
On July 1, an amendment to Ontario's Insurance Act will essentially allow insurers to delay paying for suspect treatment plans until the treatment provider provides the insurer with all of the necessary and required information.
The allegations have not yet been proven in court.
Following an investigation, FSCO found that Misha Saltanov, the director of York Disability Management Centre, had submitted false invoices to get paid for treatment that was never provided, a FSCO statement says.
The first court appearance for this matter is scheduled for July 14, 2011.
"This action clearly demonstrates that FSCO will not tolerate and will continue to prosecute abuses by unscrupulous participants in the Ontario auto insurance system," said Philip Howell, CEO and superintendent of FSCO.
FSCO investigates allegations of misconduct, unfair practices and non-compliance with legislation or regulations in its regulated sectors. If warranted, FSCO takes enforcement action, such as initiating a prosecution.
In March, FSCO released a bulletin reminding insurers of their rights and responsibilities in curbing questionable and abusive claims. Verifying invoices and expenses was an area of concern highlighted in the document.
On July 1, an amendment to Ontario's Insurance Act will essentially allow insurers to delay paying for suspect treatment plans until the treatment provider provides the insurer with all of the necessary and required information.
When does a motor vehicle "accident" become a slip-and-fall claim?
The Financial Services Commission of Ontario (FSCO) has confirmed that getting out of a motor vehicle "safely" falls within the definition of the ordinary use or operation of a motor vehicle - even when that means the driver has locked the car door and walked around the car without incident to get to a shoveled "access point" next to a snow bank on a curb.
A FSCO arbitrator made the finding in Daphna Webb and Wawanesa Mutual Insurance Company, heard in March 2011.
Daphna Webb, a 36-year-old mother of two boys, drove to visit a friend who lives in a residential neighbourhood in Ontario. Parking on the street was only permitted on the north side of the street, where the friend lived. That side of the street does not have any driveways.
On the day Webb arrived, she testified there was no snow or ice on the road, but there was a snow bank two feet high that jutted from the curb. The only way to get to the sidewalk was through access points that had been shoveled out.
Webb testified she parked her car directly in front of an access point to the sidewalk. She exited her vehicle on the driver's side, locked the door and walked around the car to the front.
When she put her foot on the shoveled-out access point, she slipped on the ice and fell, breaking four bones in her right foot. She claimed she was injured as a result of a motor vehicle "accident," as defined in S. 2(1) of the Statutory Accident benefits Schedule.
The insurer submitted the use or operation of Webb's vehicle had long ended by the time of the slip and fall. The insurer noted she had turned off her car, took her key out of the ignition, closed her door and locked her car. Most importantly, she had navigated the roadway safely up until the point that she slipped on the access point.
But a FSCO arbitrator held that the access point was still part of the roadway, because the snow bank jutted out from the curb to the road.
"On the facts of this case, I find that because of the snow bank, Ms. Webb was compelled to park her car at the access point and that she was still disembarking from her vehicle when she fell on the roadway at the entry of the access point," the arbitrator found. "Succinctly, I find that Ms. Webb had not safely and completely disembarked from her vehicle when she fell."
A FSCO arbitrator made the finding in Daphna Webb and Wawanesa Mutual Insurance Company, heard in March 2011.
Daphna Webb, a 36-year-old mother of two boys, drove to visit a friend who lives in a residential neighbourhood in Ontario. Parking on the street was only permitted on the north side of the street, where the friend lived. That side of the street does not have any driveways.
On the day Webb arrived, she testified there was no snow or ice on the road, but there was a snow bank two feet high that jutted from the curb. The only way to get to the sidewalk was through access points that had been shoveled out.
Webb testified she parked her car directly in front of an access point to the sidewalk. She exited her vehicle on the driver's side, locked the door and walked around the car to the front.
When she put her foot on the shoveled-out access point, she slipped on the ice and fell, breaking four bones in her right foot. She claimed she was injured as a result of a motor vehicle "accident," as defined in S. 2(1) of the Statutory Accident benefits Schedule.
The insurer submitted the use or operation of Webb's vehicle had long ended by the time of the slip and fall. The insurer noted she had turned off her car, took her key out of the ignition, closed her door and locked her car. Most importantly, she had navigated the roadway safely up until the point that she slipped on the access point.
But a FSCO arbitrator held that the access point was still part of the roadway, because the snow bank jutted out from the curb to the road.
"On the facts of this case, I find that because of the snow bank, Ms. Webb was compelled to park her car at the access point and that she was still disembarking from her vehicle when she fell on the roadway at the entry of the access point," the arbitrator found. "Succinctly, I find that Ms. Webb had not safely and completely disembarked from her vehicle when she fell."
Friday, June 10, 2011
Ontario regulation allows insurers to hold-off paying for suspect treatment plans until complete information provided by provider
An amendment to Ontario's Insurance Act will essentially allow insurers to challenge claims suspected to be fraudulent by refusing to pay for treatment plans until the treatment providers produce reasonable information.
Ontario Regulation 194/11 takes effect on July 1, 2011. The regulation gives insurers the authority to request the following information from treatment providers, who will have 10 business days to produce it after receiving the request:
• the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment;
• a statutory declaration as to the circumstances that give rise to the invoice, including particulars of the goods and services provided; and
• the name and full address of the provider, and of every provider that provided any of the goods or services referred to in the invoice.
Should a provider fail to comply, the amount payable by an insurer under an invoice is not overdue and no interest accrues on it, the regulation continues.
And finally, under the regulation, an insured is unable to commence a mediation proceeding if any of the following circumstances exist:
• the insured has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for a benefit within the times prescribed;
• the insurer has provided the claimant with notice that it requires an examination under section 44, but the insured has not complied; and
• the issue in dispute relates to the insurer's denial of liability to pay an amount under an invoice on the grounds that the insurer requested information from a provider under subsection 46.2(1), and the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.
Ontario Regulation 194/11 takes effect on July 1, 2011. The regulation gives insurers the authority to request the following information from treatment providers, who will have 10 business days to produce it after receiving the request:
• the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment;
• a statutory declaration as to the circumstances that give rise to the invoice, including particulars of the goods and services provided; and
• the name and full address of the provider, and of every provider that provided any of the goods or services referred to in the invoice.
Should a provider fail to comply, the amount payable by an insurer under an invoice is not overdue and no interest accrues on it, the regulation continues.
And finally, under the regulation, an insured is unable to commence a mediation proceeding if any of the following circumstances exist:
• the insured has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for a benefit within the times prescribed;
• the insurer has provided the claimant with notice that it requires an examination under section 44, but the insured has not complied; and
• the issue in dispute relates to the insurer's denial of liability to pay an amount under an invoice on the grounds that the insurer requested information from a provider under subsection 46.2(1), and the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.
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