Sending AB application to the wrong insurer a "reasonable explanation" for a delay in reporting the claim to the proper insurer: arbitrator

An Ontario arbitrator has awarded a $5,000 ‘special award’ against Economical Mutual Insurance Company after the company denied a claim on the basis that the claimant, Roda Egal, had not provided a reason for a delay in making her application following her injury in a motor vehicle accident. Four months after the accident, Egal’s lawyer had provided Economical a reason for the delay — confusion, basically. Approximately three months after her injury, the claimant applied for benefits to the wrong insurer, the American Home Assurance Company, which had approved her treatment plan and began to pay accident benefits. Economical subsequently took two years to obtain Egal’s file from the firm adjusting the claim. The claimant was injured on Apr. 29, 2009, while travelling with two friends in a rental vehicle that was struck on the passenger side (Egal was sitting in the front seat). She was taken by ambulance to a Toronto hospital, where she left before receiving treatment, and was bed-ridden for six days. Egal testified she was away from work for approximately two weeks after the accident, since she could not turn her neck left or right, her chest hurt and she had back pain, knee pain and headaches. She saw a chiropractor every day until the summer of 2010. Egal originally sent her application for accident benefits in error to American Home Assurance. An adjuster from Crawford Adjusters Canada Inc. was assigned to the file. An Ontario arbitrator has awarded a $5,000 ‘special award’ against Economical Mutual Insurance Company after the company denied a claim on the basis that the claimant, Roda Egal, had not provided a reason for a delay in making her application following her injury in a motor vehicle accident. Four months after the accident, Egal’s lawyer had provided Economical a reason for the delay — confusion, basically. Approximately three months after her injury, the claimant applied for benefits to the wrong insurer, the American Home Assurance Company, which had approved her treatment plan and began to pay accident benefits. Economical subsequently took two years to obtain Egal’s file from the firm adjusting the claim. The claimant was injured on Apr. 29, 2009, while travelling with two friends in a rental vehicle that was struck on the passenger side (Egal was sitting in the front seat). She was taken by ambulance to a Toronto hospital, where she left before receiving treatment, and was bed-ridden for six days. Egal testified she was away from work for approximately two weeks after the accident, since she could not turn her neck left or right, her chest hurt and she had back pain, knee pain and headaches. She saw a chiropractor every day until the summer of 2010. Egal originally sent her application for accident benefits in error to American Home Assurance. An adjuster from Crawford Adjusters Canada Inc. was assigned to the file. In separate correspondence dated Aug. 11 and June 8, 2009, the adjuster acknowledged receipt of Egal’s application and treatment plan, which American Assurance approved in full. In late August 2009, counsel for Egal forwarded correspondence to Economical with an application for accident benefits and an authorization and direction. On Sept. 2 and 18, Economical requested the reason for Egal’s delay in reporting the claim. “On Sept. 28, 2009, Ms. Egal’s counsel forwarded an explanation for the delay to Economical stating that Economical failed in explaining Ms. Egal’s rights to her and did not provide her with an accident benefits package,” the arbitrator noted. “Therefore, her application was not forwarded until after she retained counsel.” Economical said it did not deal with Egal’s claims because of time that had elapsed between the accident and her application. Ontario accident benefits legislation requires that applicants for related benefits must notify their insurers within seven days of the accident, “or as soon as practicable afterwards.” The saving provision in the legislation is that a person is not disentitled from proceeding with a claim if the applicant has a reasonable explanation. “I find no merit in Economical’s position that it had no responsibility to adjust Ms. Egal’s file until receiving a reasonable explanation for her delay in applying,” the arbitrator ruled. “Economical received a reasonable explanation for the delay. Economical was also aware that documentation had been sent to the wrong insurer and persisted in refusing Ms. Egal’s claims long before it had received her file. “I find that Economical failed egregiously in its responsibilities to its first party insured, Ms. Egal. It did not follow up expeditiously in obtaining her file from American Assurance and it made decisions about her entitlement in its absence.”

Ontario court awards punitive damages against insurer, distinguishing between fraud and maximizing insurance recovery

Wawanesa Mutual Insurance Company employed a high-stakes litigation strategy designed to intimidate homeowners seeking damages, a choice that demands significant, but proportionate punishment, an Ontario court has ruled. In Brandiferri v. Wawanesa Mutual Insurance, et al., Ontario Superior Court Justice P.D. Lauwers dismissed the insurer’s allegations of fraud against the policyholders in a decision related to a fire at the home of Salvatore and Linda Brandiferri on Aug. 8, 2000. The fire destroyed the home’s contents and resulted in smoke penetrating the house. The Brandiferris sued Wawanesa and Strone Construction, arguing the latter is liable for deficient remedial construction work and the insurer was also liable because it selected the contractor that provided the poor work. The homeowner’s insurance policy provided “guaranteed replacement cost” coverage for the house and contents, and included a “single inclusive limit” of $564.000. Wawanesa paid slightly more than $479,000, but the Brandiferris sought $178,093.74 from Wawanesa and Strone for the house not being completely or acceptably restored. Counsel for Wawanesa submitted that the Brandiferris had brought an action without determining the amount at issue by way of appraisal. Pina Naccarato, the Brandiferris’ daughter, prepared the proofs of loss. Once completed, they were submitted to the Bradiferris’ lawyer. The proofs of loss prepared on the Brandiferris’ behalf were completed by someone who had never done these before and had no instructions on how to do so, the court determined. The court notes that everything in the house — which had earlier been taken away — was included on the list. Naccarato did not know which items were damaged. “By swearing the proof of loss, the Brandiferris swear that the items listed were destroyed in the fire,” counsel for Wawanesa submitted. As such, those statements were false. “They were not claiming these items in the context of an honest claim for indemnity, but rather in an attempt to secure the maximum payout from the policy and turn this fire as a source of gain.” Justice Lauwers notes the law in Ontario is that it is not automatically fraud for a plaintiff to put in a claim that might be seen as exaggerated. “I am not persuaded on the evidence that the Brandiferris committed fraud in preparing and filing the first or subsequent proofs of loss, even though they did seek to maximize their recovery.” Justice Lauwers determined that, in light of correspondence, it was plain that Wawanesa, through its counsel, “waived its right to insist on an appraisal, in writing, and therefore cannot now insist that it is a condition precedent to the plaintiffs’ right to recovery in this action.” The decision further notes: “The fraud allegation was late-breaking and was only made after the action was started in the statement of defence and counterclaim." Part of an insurer’s duty of utmost good faith in investigating, assessing and attempting to resolve claims must attach to the insurer’s litigation strategy against the insured when the claims is disputed, the ruling adds. Justice Lauwers calculated $108,257.78 as the amount needed to put the home in the condition it was before the fire. He ordered Wawanesa to pay $100,000 in punitive damages.

Family of Quebec man killed when a tree fell on his car should go to province's auto insurer for compensation: Supreme Court

A Quebec man killed when a tree fell on the vehicle he was driving in the City of Westmount must turn to the province’s auto insurer for compensation, the Supreme Court of Canada has ruled, thus rejecting the man’s civil lawsuit against the city. In August 2006, a tree in the City of Westmount fell on a vehicle occupied by Gabriel Anthony Rossy, killing him. His family sued the city for damages, alleging that the city, as the owner of the tree, had failed to properly maintain it. The city sought to dismiss the lawsuit, arguing that the injury resulted from an accident caused by an automobile. Therefore, any compensation should come from the no-fault benefits scheme administered by the Société de l’assurance automobile du Québec under the province’s Insurance Act. The province’s no-fault insurance scheme applies to any accidents in which injury or damage was “caused by an automobile, by the use thereof or by the load carried in or on an automobile.” The Supreme Court agreed with the city’s position. “Although the vehicle may have been stationary or moving through an intersection, the evidence on the record is that [Rossy] was using the vehicle as a means of transportation when the accident occurred,” the Supreme Court ruled, thus overturning the outcome in the Quebec Court of Appeal. “This is enough to find that the damage arose as a result of an ‘accident’ within the meaning of the act and that the nofault benefits of the scheme are triggered. Therefore, the civil claim is barred and [Rossy’s] parents and brothers must turn instead to the Société de l’assurance automobile du Québec for compensation.” Elsewhere, the court wrote: “The vehicle’s role in the accident need not be an active one. The mere use or operation of the vehicle, as a vehicle, will be sufficient for the act to apply.”

Insurers have "no choice" but to tap into social media: Accenture

The issue is not if, but how, insurers should leap into the world of social media, a new report from Accenture has concluded. “Insurers, of course, really have no choice about participating in social media,” the consulting firm noted in its study, Insurers and Social Media: Vast Potential, Significant Challenges. “With people engaged in social media all around them, the real question is how to participate.” It found the financial services industry as a whole has not generated significant social media “engagement,” although 28 insurers listed in the Fortune 500 have established Facebook pages and 20 have Twitter accounts. “Insurers are only now beginning to explore the real potential of integrated social media campaigns,” according to Accenture. The consulting firm illustrated three distinct stages for social media awareness amongst insurers: • Listen: conduct social media monitoring and analysis. • Engage: initiate marketing campaigns and customer interaction. • Optimize: link social media to customer relationship management (CRM) and building a “single view” of the customer. Accenture observed that insurers succeeding in social media will “build engagement and generate customer interest at much higher levels than many other industries. . . . “However, many insurers will need to re-examine their current IT infrastructure — particularly legacy policy administration systems — to make sure that the capabilities are in place to support (social media) initiatives at scale.”

Lawyers resign from Ontario auto insurance committee

Several lawyers are protesting recently announced changes to the definition of catastrophic injury for accident victims by quitting an auto insurance committee created by the Financial Services Commission of Ontario (FSCO). The Toronto Star reported the group of personal injury lawyers, who include Richard Halpern, partner at Thomson Rogers, Roger Oatley of Oatley Vigmond Personal Injury Lawyers LLP, Nigel Gilby, partner at Lerners LLP and Stephen Firestone of Lackman Firestone, resigned because their recommendations on catastrophic impairment were ignored. “The Ontario government is looking at narrowing the definition of catastrophic impairment,” Halpern told the Star. “This will in turn deprive many seriously injured victims of the support they reasonably need and expected from the protection they thought they were buying with their auto premium dollars.” The insurance industry “is always trying to get governments to roll back the rights of accident victims,” added Oatley. “The government will now claim they consulted with stakeholders, including lawyers and consumers. “We were invited because of our expertise, but ignored. We resigned because the process was a sham. Can you imagine, for example, that in this day and age, emotional injury has to be ignored when assessing the impact of an injury – even though our highest court recently said it should be taken into account?” The informal legal committee was established by FSCO Superintendent Philip Howell to seek advice on auto insurance. On June 12, the Ontario regulator made its recommendations to the provincial finance minister on rules for determining catastrophic impairment. FSCO supported the findings of an expert medical panel in its proposals, including not combining physical impairments with psychiatric or mental/behavioural factors for catastrophic injury, an interim status for claimants who require intensive and prolonged rehabilitation to receive immediate treatment and the use of several clinical and diagnostic tools in determining catastrophic impairment.

Big Data represents big challenge for insurance industry: study

The growth of unstructured, disparate information will create problems for insurance companies that don’t have the technology infrastructure or tools to handle it, according to a recent report from consulting firm Novarica. ‘Big Data,’ defined as data sets that are too large or complex to work with using traditional database systems, could create a broad “analytics” gap between large and midsize insurers, noted Matthew Josefowicz, Novarica’s managing director, partner and co-author of the study, Analytics and Big Data at Insurers: Current State and Expectations. “While data analysis has always been at the core of the insurance industry, legacy technology environments and business practices have inhibited the embrace of Big Data by insurers,” Josefowicz stated. “But the hype around Big Data has renewed focus on little data — traditional enterprise data and analytics — which is still an area of underinvestment for many insurers, especially midsize insurers.” In a survey of 86 insurers, 15% to 20% said they are preparing their technology infrastructure for Big Data projects. Josefowicz noted that adoption rate of technology around Big Data was “tepid” in the insurance industry and lags behind other sectors of the economy. “When it comes to Big Data areas like geospatial data, Internet clickstreams, audio data, social media content, mobile data, telematics, video data and others, usage rates are still very low,” Josefowicz commented. “And while few insurers have invested in the specialized infrastructure required to manage Big Data, a sizeable minority are planning to do so within 12 months.”

Global study shows consumer support for bank branches offering insurance

A new study from Cisco indicates 65% of respondents globally would favour bank branches offering an expanded portfolio of financial and advisory services, including insurance. The Cisco Internet Business Solutions Group (IBSG) Omnichannel Study: Winning Strategies for Omni-Channel Banking surveyed 5,300 consumers in both developed and emerging countries, including Canada, France, Germany, United States, United Kingdom, Brazil, China and Mexico. The suggestion to have bank branches offer an expanded portfolio — including financial education, legal accounting, tax and insurance — had more appeal in emerging countries than in developed countries. The expansion was supported by 56% in developed countries and 81% in emerging countries. Overall, the Cisco statement notes, “the study shows consumers want banks to deliver financial advice and banking services through both virtual and physical channels, ushering in a new era of omnichannel banking.”

Insurers to target social media and cloud computing in IT: Deloitte

Property and casualty insurance companies must address a range of “disruptive” technologies to succeed in a changing competitive marketplace, according to a recent report from Deloitte Consulting L.L.P. The notion of “maintaining a high level of operational efficiency (is) merely table stakes,” the consulting firm noted in its report, Insurance Tech Trends 2012: Elevate IT for Digital Business. “Insurers are investing in technology enablement. . . with the goal of spurring real innovation now.” This innovation spending is mainly directed towards social and mobile computing, “a tangible manifestation of the concept that customer needs and experiences will drive marketplace differentiation,” Deloitte stated. “The doors are now open for social business. Leading insurance companies today are applying social technologies like collaboration, communication and content management to both internal (think employees and agents) and external (customers and prospects) social networks.” Cloud computing is another emerging area of adaptation for insurers, according to Deloitte. “Most insurance organizations are behind the maturity curve on cloud technology, but there is broad acknowledgement that they need to catch up quickly and proactively develop a cloud strategy before one is thrust upon them.”

Apparent lack of concern over possibility of directors and officers being sued disconcerting: Chubb survey

Past lawsuits and increased merger and acquisition (M&A) activity have done little to curb the apparent, “disconcerting” lack of concern among directors and officers about the possibility of being sued. Public company executives may be in for surprise lawsuits if findings from the new Chubb Public Company Risk Survey are any indication. Conducted by Pollara, results are based on telephone interviews with decision-makers at 145 public companies in the United States and Canada. More than 80% of respondents believe it is unlikely they will be sued, notes a press release from Chubb. The “general lack of concern is disconcerting,” says Evan Rosenberg, senior vice president and global specialty lines manager for Chubb. Past trends should cause company executives to be careful, Chubb notes. In fact, the directors and officers of almost 23% of the public companies surveyed have already been sued. In addition, some company directors and officers (D&O) policies cover M&A-related lawsuits and, therefore, any increase in M&A activity may increase the likelihood of a related lawsuit. Chubb notes that M&A activity is reported to have increased more than 14% last year, and 64% of the survey’s respondents have been involved in a merger, acquisition or restructuring over the past two years. Finally, enforcement of anti-bribery laws south of the border is increasing the exposure of directors and officers to future suits by shareholders, regulators, customers, vendors and competitors. The executives’ apparent lack of concern about litigation may be translating into a lack of preparation. Chubb reports that 26% of surveyed companies do not have documented merger and acquisition protocols, and have no plans to develop them in the next 12 months. “While M&A-related lawsuits may be covered by the company’s directors and officers liability policy, documented protocols may help improve the company’s defence in court or result in a lower settlement amount,” Rosenberg suggests. “Companies that actively manage this exposure have a greater chance of receiving more favourable terms and pricing for their directors and officers liability insurance.”

Towers Watson study shows more evidence of commercial rate hardening

Commercial insurance pricing in the United States increased by an average of 5% in 2012 Q1 over the same period last year, noted Tower Watson consulting. This represented the fifth consecutive quarter that prices rose for all standard commercial lines, according to the professional services company’s Commercial Lines Insurance Pricing Survey (CLIPS). In addition, Towers Watson stated that commercial insurers' loss ratios stabilized for most insurance lines and improved in lines with the largest price increases. “We are seeing a continuing trend of price-level increases in the commercial insurance marketplace,” said Thomas Hettinger, property and casualty sales and practice leader for the Americas at Towers Watson. “This quarter, the industry reached a significant threshold — an aggregate price increase of nearly 5% — the largest quarterly increase we've seen since 2004." CLIPS figures showed that the largest price increases were in commercial property and workers compensation lines, with the most significant premium hikes in mid-market accounts. “We are likely to see improving loss ratios in the near future if this level of price increases and loss trends continues,” Hettinger noted. “This would be welcome news for the insurance industry, which has been dealing with low asset returns and significant catastrophe activity for the last few years.”

Insurers could feel significant impact from Ontario court's new privacy tort: legal paper

The Ontario Court of Appeal’s January 2012 decision in Jones v. Tsige, which recognized the tort of “intrusion upon seclusion” as a cause of action in Ontario, may have significant implications for policyholders and insurers, a paper from Blaney McMurtry LLP states. The New Tort Relating to Invasion of Privacy: Insurance Implications is co-authored by David R. Mackenzie and Jason P. Mangano. “It is clear that modern concepts of privacy, and more importantly, the concept of what constitutes a violation of privacy, have expanded beyond the fixed parameters of [U.S. tort scholar William] Prosser’s four forms of privacy violations,” the paper note, adding the “Ontario Court of Appeal’s decision broadens the reach of the tort considerably.” The court’s decision means a plaintiff must establish three broadly drawn elements: • the defendant’s conduct must be intentional or reckless; • an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and • a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish Policyholders and insurers will watch with interest as each of these factors is reviewed by courts, and the scope of each is determined,” the paper states. “Perhaps none will be so closely watched as the development of the term, ‘private affairs or concerns.’ “What constitutes ‘private affairs and concerns?’ The Jones decision clearly demonstrates that bank accounts fall within the scope of the term.” Also, the application of the tort in the context of social media will undoubtedly give rise to interesting case law, the paper adds. “Can a Facebook page or Twitter account, where a person may have hundreds or thousands of ‘friends’ or ‘followers,’ constitute ‘private affairs or concerns?’ Does spam email constitute an ‘invasion’ of a person’s privacy? What about taking a picture of a neighbour sunbathing in their back yard?”

Arbitrator finds "semblance of relevance" test is too low for production of Facebook photos in dispute resolution hearings

An Ontario arbitrator has dismissed the appeal of an order for a claimant to produce photos from her Facebook account, but in doing so, the arbitrator rejected the “semblance of relevance” test for producing photos from social networking sites. In Eniko Rakosi and State Farm Mutual Automobile Insurance Company, Eniko Rakosi made a claim for accident benefits after she was injured in a motor vehicle accident in May 2008. She and State Farm did not agree on her entitlement to attendant care, income replacement and medical benefits. At the arbitration pre-hearing discussion, State Farm sought production of photos from Rakosi’s Facebook account. The arbitrator found that the claimant’s Hi5 account, a social networking site accessed by State Farm on Oct. 6, 2010, had photographs of the claimant engaged in various social and recreational activities. The arbitrator was satisfied that at least a “semblance of relevance” existed between these photographs and Rakosi’s claim that she was unable to work or engage in certain self-care activities due at least in part to a chronic pain condition. The arbitrator was persuaded that Rakosi’s Facebook profile likely contained photographs similar to those on the Hi5 site. Financial Services Commission of Ontario (FSCO) delegate Lawrence Blackman upheld the arbitrator's order and rejected Rakosi’s appeal. However, in doing so, he agreed with Rakosi’s counsel that the “semblance of relevance” threshold test for producing Facebook photos was too low. Blackman found that the “semblance of relevance” test came from the Rules of Civil Procedure governing the courts. But the rules guiding arbitration in the Statutory Powers Procedure Act call instead for a test based on relevance and reasonableness. “Changing commission production from the Rule 32.2 ‘reasonably necessary’ and Rule 32.3 ‘relevant’ tests to a ‘semblance of relevance’ test undermines this alternative dispute resolution system, creating a less expeditious, more complicated and costly, ‘trial by avalanche’ system, just as the courts are moving in the opposite direction,” Blackman ruled.

Trial lawyers and rehab groups speak out against recommended catastrophic impairment definition

The Ontario Trial Lawyers Association (OTLA) and Alliance of Community Medical and Rehabilitation Providers are launching a media campaign against proposed changes to the definition of a catastrophic impairment for victims injured in car accidents. Currently, accident victims who are deemed to have suffered a catastrophic (CAT) injury are eligible for basic medical and rehabilitation benefits of up to $1 million. But the OTLA and rehab alliance group argue that if the province accepts the recommendations of the expert panel, the CAT threshold will be raised significantly. “We estimate that the number of cases deemed catastrophic will be reduced by half if these changes are implemented,” says OTLA president Andrew Murray. “If the government goes ahead with this, it will hurt a lot of very vulnerable people,” says Nick Gurevich, president of the Alliance of Community Medical and Rehabilitation Providers. The two groups are running full-page ads in newspapers this week and next, and urging people to contact their local MPPs. An expert panel commissioned by the Financial Services Commission of Ontario (SCO) issued its report on catastrophic impairment definition in April 2011. That report made several recommendations, including not combining physical and psychological injuries in determining catastrophic impairment, requiring medical doctors or qualified neuropsychologists to be the lead evaluators in catastrophic injury assessment and establishing an interim status for people with traumatic brain injuries and major physical impairments to get quick access to rehabilitation services. In a June 12 report posted online, Ontario’s regulator of auto insurance accident benefits, the Financial Services Commission of Ontario (FSCO), has proposed to the government that the expert panel’s recommendation be adopted. Insurance Bureau of Canada (IBC) noted in a recent submission to a provincial government committee studying auto insurance that between 2004 and 2010, the number of no-fault injury claims rose 28%, while the count for large claims has more than doubled. Hospitalizations from motor vehicle accidents are down 12%, yet auto insurers are being presented with many more catastrophic injury claims, according to IBC figures

IBC accuses critics of proposed CAT definition of "fear-mongering"

Insurance Bureau of Canada (IBC) laid down the gauntlet against critics of the province’s recommended catastrophic (CAT) impairment definition, accusing them on June 12 of “fear-mongering.” IBC responded quickly to a media campaign mounted by trial lawyers and medical and rehabilitation service providers. The campaign features full-page ads in daily newspapers opposing a proposal to change the definition of a “catastrophic impairment” suffered by victims injured in auto accidents. In a report to Ontario’s finance minister, the superintendent of the Financial Services Commission of Ontario (FSCO) makes a number of recommendations to change the catastrophic impairment definition. Among them, the superintendent recommends against combining physical impairments with psychiatric or mental/behavioural impairments for the purpose of determining a catastrophic impairment of the whole person. “We estimate that the number of cases deemed catastrophic will be reduced by half if these changes are implemented,” says Ontario Trial Lawyers Association (OTLA) president Andrew Murray. The OTLA’s concerns are endorsed by the Alliance of Community Medical Rehabilitation Providers and the Ontario Safety League. The ads encourage people to contact their local MPPs. “This is false, misleading, singularly irresponsible and is nothing more than self-serving fear-mongering,” IBC’s vice president for Ontario, Ralph Palumbo, responded in a press release. “It is part of a campaign by people who make money from auto collisions and want to maintain the status quo. They’re worried that more money will go to treatment instead of their legal fees. Ontarians should listen to the advice of the medical experts and not lawyers.” IBC’s press release notes the superintendent’s recommendations followed on the advice of an expert medical panel established by FSCO. In addition, the government has promised a public consultation in the 2012 budget. “The panel of experts was of the view that the current system leads to inconsistent catastrophic impairment determinations and frequently gets the diagnosis wrong,” IBC notes. “The proposed changes would make the process more accurate, consistent and objective and would incorporate leading edge science-based evidence into CAT determinations.” Auto insurance benefits remain $1 million for catastrophic injuries, including the option to purchase more coverage. The superintendent’s recommendations would create a new “interim” catastrophic injury category to get people the care they need even before a determination is made. Also, it puts children under 18 into the catastrophic category immediately.

Toronto police charge woman for driving a e-bike while over the legal blood alcohol limit

Toronto police have charged a 27-year-old woman with operating an e-bike with a blood alcohol level of over 80 milligrams. The charge has not been proven in court. An e-bike is capable of being propelled by muscular power and is equipped with one or more electric motors of 500 W or less and can propel the bike no faster than 32 km-h. E-bike riders do not require insurance, the Ontario Ministry of Transportation states on its website. Under the Ontario Highway Traffic Act, an e-bike is not classified as a motor vehicle, so penalties for impaired driving under the act would not apply. The act defines a ‘motor vehicle’ as “an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power.” The definition goes on to exclude “a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine [emphasis added].” Under the Criminal Code, however, the definition of a motor vehicle is “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” This definition “would include an e-bike and anyone operating an e-bike intoxicated could be charged for impaired driving,” the Ontario Ministry of Transportation notes. “If convicted, [an] offender would be subject to the Criminal Code penalties, including a fine or jail time, and a driving prohibition.”

Plaintiff sues too quickly to determine the presence of a serious and permanent impairment: court

The Ontario Superior Court has found that a plaintiff injured in an auto accident “rushed” to trial before full recovery from two shoulder surgeries and therefore has not met the threshold for a permanent serious impairment. In Iannarella v. Corbett, the plaintiff in the case was injured in a motor vehicle accident in February 2008. Following the accident, he complained of left shoulder pain, which he said restricted the mobility of his left arm and shoulder. The judge noted some evidence had been tendered that suggested the plaintiff’s complaints had morphed into chronic pain syndrome. At the time of the accident, the plaintiff worked for Fenco Company, a car parts manufacturer where he supervised several workers and drove a forklift vehicle in the plant. The plant laid off a number of workers in October 2008, a few months after the accident. One of several doctors caring for the plaintiff after the accident performed surgery on the plaintiff’s shoulder in early 2010 to repair a partial tear in the ligaments. After the doctor concluded the first operation, which he deemed to be a “success,” he performed a second surgery in September 2011 to improve the pain situation. The doctor found the second surgery was also successful, adding that the plaintiff’s response to the surgeries would take into 2013 to determine. The doctor did not recommend that the plaintiff was ready for work after the surgeries. The court found that the plaintiff did not meet the threshold for a serious and permanent impairment that prevented the plaintiff from returning to work. For one thing, the plaintiff had no work to which to return. He had not been looking for work since he had been laid off. Secondly, the plaintiff had not allowed sufficient time to recover from the effects of the surgeries before proceeding to trial. “This trial began only seven and a half months after surgical intervention aimed at improving [the plaintiff’s] left shoulder pain complaints,” the court found. “As will be seen later in these reasons, recovery from that surgery is ongoing and a prognosis for the future and the eventual medical outcome cannot yet be made.”

FSCO warns of mail scam using Aviva Canada logo

The Financial Services Commission of Ontario (FSCO) is telling consumers to be on the alert for a mail scam that is using the Aviva Canada logo, address and name. Designed to look like they have come from a law firm in Spain, the letters ask recipients to contact the author for more details. The letters are currently circulating with the promise of a large payout from an estate sharing the same last name as the addressee, FSCO reports in an advisory. Aviva Canada has confirmed it has no connection to this proposal or any similar transactions, and consumers are advised this type of scenario is commonly involved in an advance fee fraud. Any consumer receiving such correspondence is asked to contact the Aviva ombudsman at ombudsman@avivacanada.com and to forward the correspondence to the Canadian Anti-Fraud Centre

Aviva data show theft season has begun

Summer is here, bringing with it warm weather, time away from home and a spike in residential burglaries. Insurance claims data from Aviva Canada Inc. show the frequency of thefts on the home front during June, July and August are 13%, 22% and 32% higher, respectively, than in February, when theft is least likely to occur. The favourite day of the week for thieves is Friday, when break-ins are 25% higher than on Sunday. “The longer residents spend away from their homes without taking the proper precautions, the greater chance that thieves will strike,” Wayne Ross, vice president of national property claims for Aviva Canada, says in a press release. The good news is that residential theft claims dropped almost 50% between 2003 and 2011, Aviva data show. The bad news is that the value of property being stolen — including easy-to-grab electronic devices — is on the rise, increasing 51% over the same period (from $4,574 to $6,912). An Aviva-led customer survey indicates some Canadians take precautions against theft, but only 33% of those polled have a security system.

Companies using social media for business purposes need to be insured: ACE Canada

The business benefits of using social media are getting impossible to ignore, but a new paper and podcast from ACE Canada suggests lack of understanding around this new way of communicating can also put organizations at risk. “Be sure that you have adequate insurance coverage for your company’s social media activities and review the coverage parameters and amounts regularly,” notes Social Media: the Business Benefits May Be Enormous, But Can the Risks – Reputational, Legal, Operational – Be Mitigated? “Commercial general liability may not cover online content, and your company will need coverage not only for your own website, but for content you’ve placed anywhere on the Internet,” the paper advises. “Social media activity might compromise or leak sensitive company information (or client information) that could have legal consequences.” Risks may be reputational, legal and operational in nature. They can have an impact on privacy, intellectual property and employment practices, adds a statement from ACE Canada. “Once you’ve taken the steps to mitigate these considerable risks, your company will be in the best possible position to reap the enormous business benefits of social media participation,” says David Brosnan, division president of ACE Canada Property and Casualty and chief underwriting officer.