A person injured in a motor vehicle accident requires only one marked (i.e. Class 4) impairment to be considered catastrophically impaired, a Financial Services Commission of Ontario (FSCO) arbitrator has ruled.
“[FSCO] Arbitrator [Elizabeth] Nastasi in Pastore and Aviva Canada Inc…notes that the Superintendent’s Guidelines for undertaking catastrophic impairment assessments state that two marked impairments are required to render a catastrophic determination under the [S. 2(1.2)](g) criterion [of the Statutory Accident Benefits Schedule],” FSCO arbitrator Lloyd (J.R.) Richards wrote in his decision in Dean Fournie and Coachman Insurance Company.
“She determined that the [SABS] Guidelines are an assessment tool for physicians and are not incorporated into the legislation and are therefore she is not bound by them.
“I agree with her. In light of this, I find that Mr. Fournie only requires one marked impairment to be deemed catastrophically impaired.”
Fournie was injured when he was struck from behind in August 2004 by a pickup truck as he was biking to Petrolia from his home in Sarnia. He applied to Coachman Insurance Company for a determination of catastrophic impairment under the schedule.
Coachman argued that he did not suffer a catastrophic impairment.
Fournie broke his left heel, ankle and thumb, in addition to losing some teeth.
Fournie’s position was that because he required two crutches and a short leg brace for pain relief, the Guides dictate that is a 50% score for the purpose of meeting the 55% threshold for a catastrophic impairment. When added to his 5% for a skin disorder and 2% adjustment order, that would make him catastrophically impaired.
Coachman said Guides assign a 40% maximum to such impairments.
Fournie's doctor, a clinical psychologist, said his patient rated a Class 4 impairment in his activities of daily living, adaptation to work and social functioning.
Richards found that just one Class 4 finding was enough to determine that Fournie had suffered a catastrophic impairment.
Tuesday, February 23, 2010
Monday, February 22, 2010
Conservation Area held to less onerous duty of care when skier wandered from trail
When a cross-country skier wanders from a marked trail onto “expansive and otherwise untamed property,” a conservation authority has a less onerous duty of care, the Ontario Court of Appeal has ruled.
In Schneider v. St. Clair Region Conservation Authority, Joanne Schneider had taken her family cross-country skiing in a public park in January 2005.
During the trip, Schneider inadvertently traversed over the top of a concrete wall, which was part of an abandoned water mill. The wall jutted through ice that covered the lake over which she was cross-country skiing, wrote Paul Martin in Dutton Brock’s newsletter ecounsel.
The wall had been concealed by considerable snow, and so barring the concrete wall was otherwise suitable for this recreational activity.
Under Section 4 of the Occupiers’ Liability Act, there is a lesser standard of care that requires occupiers to “not create a danger with deliberate intent of doing harm … and to not act with reckless disregard,” Martin wrote, adding the standard is invoked when a person “willingly assumes" risks.
“The central issue in Schneider involved a determination as to whether any of the specific scenarios outlined in Section 4(3) applied, which would deem that the conservation authority only owed the lesser duty,” Martin wrote.
“That subsection, in conjunction with Subsection 4, prescribes that a person is deemed to have willingly assumed 'all risks' when travelling on rural premises and recreational trails.”
The trial judge found the lake did not constitute a “recreational trail,” because it was off the marked trail, and therefore the exemption from the usual duty of care did not apply.
But the Court of Appeal overturned this. Because the lake was off of the marked trail, the Court of Appeal stated, it would be unjust to hold the Conservation Authority to the higher standard of care where the plaintiff had wandered from the marked trail.
In Schneider v. St. Clair Region Conservation Authority, Joanne Schneider had taken her family cross-country skiing in a public park in January 2005.
During the trip, Schneider inadvertently traversed over the top of a concrete wall, which was part of an abandoned water mill. The wall jutted through ice that covered the lake over which she was cross-country skiing, wrote Paul Martin in Dutton Brock’s newsletter ecounsel.
The wall had been concealed by considerable snow, and so barring the concrete wall was otherwise suitable for this recreational activity.
Under Section 4 of the Occupiers’ Liability Act, there is a lesser standard of care that requires occupiers to “not create a danger with deliberate intent of doing harm … and to not act with reckless disregard,” Martin wrote, adding the standard is invoked when a person “willingly assumes" risks.
“The central issue in Schneider involved a determination as to whether any of the specific scenarios outlined in Section 4(3) applied, which would deem that the conservation authority only owed the lesser duty,” Martin wrote.
“That subsection, in conjunction with Subsection 4, prescribes that a person is deemed to have willingly assumed 'all risks' when travelling on rural premises and recreational trails.”
The trial judge found the lake did not constitute a “recreational trail,” because it was off the marked trail, and therefore the exemption from the usual duty of care did not apply.
But the Court of Appeal overturned this. Because the lake was off of the marked trail, the Court of Appeal stated, it would be unjust to hold the Conservation Authority to the higher standard of care where the plaintiff had wandered from the marked trail.
Tuesday, February 16, 2010
PC Financial re-launches as a full-service brokerage
Loblaw Companies Ltd. has launched PC Financial Insurance Broker Inc., a “large-scale full service brokerage” for home and auto insurance.
The service is available in Ontario and Alberta. Currently it represents the following markets: The Dominion of Canada General Insurance Company; Aviva Insurance Company of Canada; Elite Insurance Company; Pilot Insurance Company; Axa Insurance (Canada); Pembridge Insurance Company and Pafco Insurance Company.
Consumers can obtain quotes by calling 1-888-280-8889 or visiting www.pcinsurance.ca.
“PC Financial products continue to ‘challenge the status quo’ on behalf of Canadians,” said Maria Forlini, vice president of PC Financial Insurance.
“The transition to a broker model for home and auto insurance will help customers receive the best product and value to suit their needs.”
Previously, PC Financial operated its home and auto insurance business as a direct model underwritten by S&Y Insurance Company, Scottish & York Insurance Co. Limited and Pilot Insurance Company. All of these companies were Aviva subsidiaries at the time; they have since been re-branded under the collective umbrella of Aviva Canada.
Aviva Canada terminated its relationship with PC Financial in January 2009. Aviva Canada said the partnership no longer met the company’s “strategic needs.”
Randy Carroll, CEO of the Insurance Brokers Association of Ontario, says he is “pleased the company is operating on a broker model, versus a direct model as PC Financial had done in the past.
“Making the transfer to a broker model and providing consumers with choice is a move in the right direction,” he added.
The service is available in Ontario and Alberta. Currently it represents the following markets: The Dominion of Canada General Insurance Company; Aviva Insurance Company of Canada; Elite Insurance Company; Pilot Insurance Company; Axa Insurance (Canada); Pembridge Insurance Company and Pafco Insurance Company.
Consumers can obtain quotes by calling 1-888-280-8889 or visiting www.pcinsurance.ca.
“PC Financial products continue to ‘challenge the status quo’ on behalf of Canadians,” said Maria Forlini, vice president of PC Financial Insurance.
“The transition to a broker model for home and auto insurance will help customers receive the best product and value to suit their needs.”
Previously, PC Financial operated its home and auto insurance business as a direct model underwritten by S&Y Insurance Company, Scottish & York Insurance Co. Limited and Pilot Insurance Company. All of these companies were Aviva subsidiaries at the time; they have since been re-branded under the collective umbrella of Aviva Canada.
Aviva Canada terminated its relationship with PC Financial in January 2009. Aviva Canada said the partnership no longer met the company’s “strategic needs.”
Randy Carroll, CEO of the Insurance Brokers Association of Ontario, says he is “pleased the company is operating on a broker model, versus a direct model as PC Financial had done in the past.
“Making the transfer to a broker model and providing consumers with choice is a move in the right direction,” he added.
Claimant diagnosed with "borderline personality disorder" allowed to represent herself in accident benefits arbitration
Should a woman diagnosed with a borderline personality disorder be allowed to represent herself in an arbitration concerning auto insurance accident benefits?
Yes, the Financial Services Commission of Ontario (FSCO) has ruled.
In L.G. and Lombard General Insurance Company of Canada, FSCO arbitrator John Wilson considered whether the claimant in the case, L.G., was entitled to represent herself without legal representation in an accident benefits arbitration, even though Lombard produced evidence that she had been diagnosed with a "schizophrenic/borderline personality disorder."
"Although the diagnosis does not determine capacity [of the claimant to represent herself], such information is not totally irrelevant, " Wilson ruled.
Wilson said the case required a reference to Rule 10.3 of the Dispute Resolution Practice Code (DRPC).
The DRPC reads: "Where an adult party has not been declared mentally incapable under the provisions of the SDA (Substitute Decisions Act), but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or a proceeding, either party may request a hearing on a preliminary issue...to determine whether: (a) the party has the mental capacity to proceed in the dispute resolution process."
But while Rule 10 of the DRPC "provides a grounding for an enquiry into the capacity of a party to participate in the arbitration process, it does not specify a procedure, or the nature of evidence that is to be considered," Wilson noted.
He went on to observe that some kind of medical-legal analysis would be required, and Lombard had not presented anything more than a diagnosis. "It goes without saying that there is not necessarily a direct relation between a diagnosis and capacity, since the effects of mental illness may be mitigated by treatment, may be in remission, or may not ultimately affect the reasoning capacity of an individual," Wilson wrote.
Wilson noted that even though he thought L.G. would be "better served" by a representative, an arbitrator had no basis under the Insurance Act (or other statutes) to enquire into the capacity of a party.
"Rather, I must depend on the parties to file any evidence and to make appropriate submissions," he wrote, saying elsewhere that: "A contemporary report by a qualified assessor addressing capacity in a litigation context would have been more useful in making a more definitive decision, but none was available."
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Yes, the Financial Services Commission of Ontario (FSCO) has ruled.
In L.G. and Lombard General Insurance Company of Canada, FSCO arbitrator John Wilson considered whether the claimant in the case, L.G., was entitled to represent herself without legal representation in an accident benefits arbitration, even though Lombard produced evidence that she had been diagnosed with a "schizophrenic/borderline personality disorder."
"Although the diagnosis does not determine capacity [of the claimant to represent herself], such information is not totally irrelevant, " Wilson ruled.
Wilson said the case required a reference to Rule 10.3 of the Dispute Resolution Practice Code (DRPC).
The DRPC reads: "Where an adult party has not been declared mentally incapable under the provisions of the SDA (Substitute Decisions Act), but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or a proceeding, either party may request a hearing on a preliminary issue...to determine whether: (a) the party has the mental capacity to proceed in the dispute resolution process."
But while Rule 10 of the DRPC "provides a grounding for an enquiry into the capacity of a party to participate in the arbitration process, it does not specify a procedure, or the nature of evidence that is to be considered," Wilson noted.
He went on to observe that some kind of medical-legal analysis would be required, and Lombard had not presented anything more than a diagnosis. "It goes without saying that there is not necessarily a direct relation between a diagnosis and capacity, since the effects of mental illness may be mitigated by treatment, may be in remission, or may not ultimately affect the reasoning capacity of an individual," Wilson wrote.
Wilson noted that even though he thought L.G. would be "better served" by a representative, an arbitrator had no basis under the Insurance Act (or other statutes) to enquire into the capacity of a party.
"Rather, I must depend on the parties to file any evidence and to make appropriate submissions," he wrote, saying elsewhere that: "A contemporary report by a qualified assessor addressing capacity in a litigation context would have been more useful in making a more definitive decision, but none was available."
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Monday, February 1, 2010
Looking ahead 2:— Brokers look to help restore stability with Ontario auto
Timing is everything for brokers in Canada’s largest marketplace this year as they await changes to what can only be described as a challenging auto scheme.
“We are starting to hear from our brokers that placing a piece of business with certain companies is not as easy as it was three months ago,” said Insurance Brokers Association of Ontario ceo Randy Carroll.
“Companies are starting to show more concern over their existing books of business versus aggressive growth. There is some hesitancy in the market.”
No fewer than three legislative issues sit atop the 2010 agenda for Alberta’s brokers association this year, IBAA ceo Ginny Bannerman told Thompson’s.
The first is the Trade, Investment and Labour Mobility Agreement between Alberta and B.C. Some credit unions thought they might be selling insurance east of the Rockies by now, but the association is lobbying hard against that.
Their Prairie colleagues to the east will be grappling with smoothing their relationship with credit unions.
“Obviously we have our issues with them in regards to separate and distinct (offices) and tied selling,” said R&J McKay’s Darryl McKay, current president of the Saskatchewan association.
“And they have their issues with us, too, because they maybe don’t feel that they get full representation on the board or maybe their voice isn’t heard as much.”
New Brunswick association president Georges Leger described the outlook there as marginal.
“Urban N.B. is holding its own while the rural and northern areas continue to struggle economically . . . the effect on brokers pretty well follows the economy of the area they service.
“But overall the insurance market and the products we sell are fairly stable province-wide compared to what it was early in the past decade.”
More in our January 11, 2010 edition
“We are starting to hear from our brokers that placing a piece of business with certain companies is not as easy as it was three months ago,” said Insurance Brokers Association of Ontario ceo Randy Carroll.
“Companies are starting to show more concern over their existing books of business versus aggressive growth. There is some hesitancy in the market.”
No fewer than three legislative issues sit atop the 2010 agenda for Alberta’s brokers association this year, IBAA ceo Ginny Bannerman told Thompson’s.
The first is the Trade, Investment and Labour Mobility Agreement between Alberta and B.C. Some credit unions thought they might be selling insurance east of the Rockies by now, but the association is lobbying hard against that.
Their Prairie colleagues to the east will be grappling with smoothing their relationship with credit unions.
“Obviously we have our issues with them in regards to separate and distinct (offices) and tied selling,” said R&J McKay’s Darryl McKay, current president of the Saskatchewan association.
“And they have their issues with us, too, because they maybe don’t feel that they get full representation on the board or maybe their voice isn’t heard as much.”
New Brunswick association president Georges Leger described the outlook there as marginal.
“Urban N.B. is holding its own while the rural and northern areas continue to struggle economically . . . the effect on brokers pretty well follows the economy of the area they service.
“But overall the insurance market and the products we sell are fairly stable province-wide compared to what it was early in the past decade.”
More in our January 11, 2010 edition
Finance Ministry drafting rules for bank Internet sales
The federal government is looking for ways to strike a balance between insurers and banks over the sale of insurance products on the Internet.
Finance Minister Jim Flaherty told a meeting of life insurance professionals at the Advocis conference in Toronto that he is drafting rules to support a level playing field.
“We’ve had some very good discussions between my departmental officials and banks and the insurance brokers to try to figure out where one draws the line,” he told reporters after a speech.
“I suspect that soon, we’ll be able to announce where we draw the line.”
Last fall the government urged the banks to stop promoting insurance on the Internet. Mr. Flaherty said at the time he hoped banks would change their website offerings voluntarily.
Lorne Perry, president of the Insurance Brokers Association of B.C., said brokers thought the line was drawn last October when the minister warned banks not to sell insurance through their websites.
Brokers’ associations have been hearing of strong opposition from banks to the website ban — and stepped-up pressure from the banks on Mr. Flaherty.
“We’re hoping that it’s not going to get watered down.”
More in our January 25, 2010 edition
Finance Minister Jim Flaherty told a meeting of life insurance professionals at the Advocis conference in Toronto that he is drafting rules to support a level playing field.
“We’ve had some very good discussions between my departmental officials and banks and the insurance brokers to try to figure out where one draws the line,” he told reporters after a speech.
“I suspect that soon, we’ll be able to announce where we draw the line.”
Last fall the government urged the banks to stop promoting insurance on the Internet. Mr. Flaherty said at the time he hoped banks would change their website offerings voluntarily.
Lorne Perry, president of the Insurance Brokers Association of B.C., said brokers thought the line was drawn last October when the minister warned banks not to sell insurance through their websites.
Brokers’ associations have been hearing of strong opposition from banks to the website ban — and stepped-up pressure from the banks on Mr. Flaherty.
“We’re hoping that it’s not going to get watered down.”
More in our January 25, 2010 edition
Saturday, January 30, 2010
Canadian Underwriter, 1/28/2010
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Ontario Teachers' Insurance Plan working with police to recover stolen laptops
The Ontario Teachers' Insurance Plan (OTIP) is working with Waterloo Regional Police to recover three stolen laptop computers, one of which may have contained personal information of OTIP's insured teacher members.
The burglary happened on Dec. 3, 2009. Waterloo Regional Police informed OTIP that "this appears to be a smash-and-grab' operation, with the intent to steal cash or objects easy to sell," OTIP said in a public statement about the theft posted on its Web site.
The three stolen laptops had been locked to docking stations at the time of the burglary, OTIP noted. "The thieves broke the locks and escaped the building before security was able to respond to OTIP's monitored security alarm."
OTIP said it is sending out letters to any insured teacher members whose information may have been compromised. The letter includes a toll-free number that will connect the recipient of the letter to a trained specialist, who will give more precise information.
"Your identity is safe," OTIP told its members in its public statement. "In the unlikely event your identity is compromised as a result of this occurrence, we will work with Canada's credit-reporting agencies to correct the record and restore your credit rating and identity to its pre-theft condition."
While OTIP says it has a total of 25,000 insured members, "the pool of affected members is relatively small," OTIP says. "Only a small percentage of our members have been affected. If you don't receive a letter, your information was not on one of the stolen computers."
The Record in Kitchener-Waterloo reported 8,600 were affected, although it did not cite the source of the number.
Julie Millard, director of communications for OTIP, told The Record that the affected members were elementary school teachers with the Toronto District School Board.
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Ontario Teachers' Insurance Plan working with police to recover stolen laptops
The Ontario Teachers' Insurance Plan (OTIP) is working with Waterloo Regional Police to recover three stolen laptop computers, one of which may have contained personal information of OTIP's insured teacher members.
The burglary happened on Dec. 3, 2009. Waterloo Regional Police informed OTIP that "this appears to be a smash-and-grab' operation, with the intent to steal cash or objects easy to sell," OTIP said in a public statement about the theft posted on its Web site.
The three stolen laptops had been locked to docking stations at the time of the burglary, OTIP noted. "The thieves broke the locks and escaped the building before security was able to respond to OTIP's monitored security alarm."
OTIP said it is sending out letters to any insured teacher members whose information may have been compromised. The letter includes a toll-free number that will connect the recipient of the letter to a trained specialist, who will give more precise information.
"Your identity is safe," OTIP told its members in its public statement. "In the unlikely event your identity is compromised as a result of this occurrence, we will work with Canada's credit-reporting agencies to correct the record and restore your credit rating and identity to its pre-theft condition."
While OTIP says it has a total of 25,000 insured members, "the pool of affected members is relatively small," OTIP says. "Only a small percentage of our members have been affected. If you don't receive a letter, your information was not on one of the stolen computers."
The Record in Kitchener-Waterloo reported 8,600 were affected, although it did not cite the source of the number.
Julie Millard, director of communications for OTIP, told The Record that the affected members were elementary school teachers with the Toronto District School Board.
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