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9
Mar

Call for Sponsors for Camp Dawn!

Bal Virk is a proud member of the Board for Camp Dawn. #CampDawnON provides a rare opportunity to adults with acquired brain injuries to participate in the full camp experience! Camp Dawn has grown tremendously over the years from 19 campers and 11 leaders when it started in 2003 to now host 100 campers and over 40 leaders! You can read Campers’ experiences on the Camp Dawn Facebook page.

The cost of providing camp to our campers is approximately $40,000 and the charge to campers is only $150. We also provide transportation from 3 locations to camp.

Camp dawn relies on our sponsors and donations to make camp accessible to our campers.. Consider making a donation or becoming a leader at campdawn.ca or see http://bit.ly/1zTUTUT for the benefits of sponsorship!

Get your ticket today for the 2nd Wine tasting and silent auction on March 26th. There are some sponsorship opportunities available for this exciting event.

Stay tuned for updates and show your support on Facebook and Twitter @CampDawnON.

20
Feb

What communication is appropriate between experts and lawyers?

The Court of Appeal in Moore v. Getahun [2015] O.J. No. 398 has recently provided clarity as to whether lawyers can review draft expert reports and what is the appropriate degree of consultation between a lawyer and a testifying expert?

The issue arose in a medical malpractice case. The Court of Appeal for Ontario concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports with their expert witnesses. According to Justice Sharpe, there was no basis for disturbing the well-established practice of counsel meeting with expert witnesses to review draft reports to ensure reports were framed in a comprehensible and responsive manner with respect to the relevant legal issues in a case.

Justice Sharpe emphasized that counsel play “a crucial mediating role” by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. This would be difficult to achieve without engaging in communication with the expert as the report is being prepared.

Justice Sharpe also identified existing safeguards against the concern that permitting counsel to engage in an undocumented review and discussion of draft expert reports may interfere with the impartiality of expert witnesses. For example, cross-examination is an effective tool to deal with cases where there is suspicion that counsel may have improperly influenced an expert witness, and it is in the judge’s discretion to reject or limit the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality.

“Leaving the expert witness to his or her own devices, or requiring all challenges to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner”, Justice Sharpe noted.

With respect to documentation and disclosure of consultations regarding draft reports, according to Justice Sharpe, subject to certain exceptions, litigation privilege attaches to draft reports, notes and records of consultation between counsel and expert witnesses. Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced an expert so as to interfere with the expert’s duties of independence and objectivity, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Compelling production of drafts would inhibit careful preparation of the report and discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports.

The Ontario Court of Appeal’s decision reminds us that expert witnesses are there to help the trier of fact understand complex or technical issues, and the lawyers are an important part of that communication.

9
Feb

Been in an ATV or snowmobile accident?

With winter in full swing, operating All Terrain Vehicles (ATVs) and snowmobiles for recreation and transportation is very common. In recent years, there has been an increase in the number of registered off-road vehicles…and accidents. ATV and snowmobiles pose certain risks. Similar to motorcycle accidents, ATVs lack structural protection to riders in the event of a crash. As a result, ATV or snowmobile accident victims often sustain very serious injuries, including:

• Traumatic brain injuries
• Spinal cord injuries
• Severe fractures
• Scarring or disfigurement
• Chronic pain
• Wrongful death

Common causes of snowmobile and ATV accidents include:

• Forms of premises liability such as hidden hazards, falls through ice, poorly maintained trails
• Use of drug or alcohol while driving
• Defective repairs on machinery
• Negligent operation and/or reckless driving

ATVs are required to be insured. If you are injured in an accident involving an ATV, your rights are largely governed by the automobile insurance legislation and you should contact a personal injury lawyer right away. Often, these cases involve suing the municipality or region which involve a very short deadline to put them on notice of such a claim.

2
Feb

What happens once I am discharged from the hospital?

This can be a very daunting time as you have likely become accustomed to having the care of a number of health professionals in the hospital.

However, it will not be a daunting time with the right lawyer. This is a critical time for you to contact a lawyer so that they can put together the appropriate rehabilitation team for you with your input and from hospital staff. After obtaining a good understanding of your injuries and needs, your lawyer can ensure that your accident benefit policy (if injured as a result of an automobile accident) is effectively used to pay for a range of services and devices such as in home attendant or nursing care, home accessibility modifications and vehicle modifications, chiropractic, psychological, physiotherapy services; medication; rehabilitative equipment; vocational training.

You need a highly qualified Occupational Therapist and/or Case Manager quickly to ensure your rehabilitation is arranged and coordinated and that your home is a safe setting for you to return to. We can help you find one.

Virk Personal Injury Law is conveniently located across from Hamilton General Hospital but we will come to any hospital prior to your discharge to provide you with your free consultation and take all the time needed to explain your rights and ensure everything is in place for your return home.

14
Jan

Virk Personal Injury Law named one of 15 to watch for in 2015 in today’s Spectator cover story

Source

14
Jan

FSCO Announces Further Changes to the SABS Effective December 1, 2014 and January 1, 2015  

The Financial Services Commission of Ontario (FSCO) recently announced further changes to the Statutory Accident Benefits Schedule (SABS).   The changes will affect service provider regulations, administrative penalties, transportation expenses and interest rates.  Service providers, in particular, should familiarize themselves with the changes.  The following is a brief summary of the key changes.

Effective December 1, 2014:

  • Both licensed and unlicensed service providers will be able to provide goods and services to auto insurance claimants. But, only licensed service providers will be able to receive payment directly from auto insurers. Unlicensed service providers must complete an OCF-21 (Auto Insurance Standard Invoice) in the HCAI (Health Claims for Auto Insurance) system and provide the completed form to the claimant and the claimant must submit the form to the auto insurer and the insurer is expected to pay the claimant directly.  The unlicensed service provider will need to be compensated by the claimant.
  • A new unfair and deceptive act or practice (UDAP) is added for a service provider who advertises that they are licensed, when at the time, the service provider was not licensed. It would also be a UDAP where a person makes any false, misleading or deceptive statements about their business and billing practices.
  • Licensed providers are now able to seek direct payment for a listed expense under the SABS from anyone other than an insurer.
  • Administrative Monetary Penalties (AMPs) may be levied in fixed amounts (for low-level, high-volume contraventions, e.g. non-compliance related to FSCO reporting requirements with final amounts ranging from $250 to $1,000) and variable amounts (for other requirements in the regulations, e.g. significant contraventions of the regulations that can involve or potentially lead to improper billing practices with a maximum of $25,000).
  • A reminder that “authorized transportation expenses”, as defined in the SABS, are intended to apply to expenses incurred by the insured person and an aide for travel to and from treatment sessions, and not mileage expenses for service providers traveling to and from an insured’s location when providing services.

Effective January 1, 2015:

  • Once a mediation proceeding is commenced, the interest rate of 1%, compounded monthly will then change to the prejudgment interest rate described in the Courts of Justice Act for past pecuniary loss (currently 1.3%), to be calculated from the date on which the mediation proceeding is commenced and ending on the date a settlement is reached or a decision is heard.

 

 

14
Jan

Court punishes insurance company for bad faith conduct requiring payment of $200,000 for punitive damages

A claim for punitive damages is not a claim for disability benefits and can be pursued in a lawsuit separately to punish an insurance company for bad faith conduct.  In the recent decision, Fernandes v. Penncorp Life Insurance Company, the Court of Appeal affirmed the Trial Judge’s decision awarding $200,000 in punitive damages, as the Appellant, Penncorp’s conduct met the test for punitive damages as being “highhanded, malicious, arbitrary or highly reprehensible conduct”.

The Respondent, Fernandes, suffered a serious back injury after falling off a scaffold and two days later falling off a trailer.  Following the two accidents, he was unable to work as a self-employed bricklayer.  He claimed disability benefits from Penncorp who accepted Fernandes as totally disabled and paid him a monthly benefit for approximately seven months.  Penncorp subsequently terminated Fernandes’ benefits, contrary to the medical evidence.  Penncorp failed to formerly advise Fernandes of the termination of his benefits until about five months after the fact. It simply stopped sending the disability benefit cheques.

Penncorp relied solely on surveillance that showed Fernandes doing some work around the house, which included shovelling, pushing a wheelbarrow, and lifting the wheelbarrow and a wooden skid into the back of a trailer.  This surveillance was not inconsistent with Fernandes’ evidence that he did some limited housekeeping activities.

The Court of Appeal upheld the trial judge’s decision awarding $200,000 in punitive damages.  The trial judge concluded that the Defendant breached its insurance contract with the Plaintiff to pay disability benefits and its duty of good faith.  Having reviewed the evidence, the trial judge concluded that Fernandes continued to suffer from a total disability contained in the insurance policy, i.e. he was unable to perform substantially all of the duties of his occupation and he was disabled from any occupation for which he was reasonably suited for by education, training or experience.

In addition, Penncorp had not dealt with Fernandes in a fair and balanced manner.  Instead, Penncorp took an adversarial approach to Fernandes’ claim and terminated his benefits in the face of medical evidence to the contrary and on the basis of surveillance that did not reasonably support the decision to terminate benefits.

The Court of Appeal, however, reduced the damages for aggravated damages (mental distress) from $100,000 to $25,000 as this award was inordinately high and entirely disproportionate and there was evidence that circumstances apart from Penncorp’s conduct contributed to Fernandes’ psychological distress.

Unfortunately, insurance companies frequently unfairly deny payment of disability claims.  This case, however, can be used as a powerful tool to ensure insurance companies comply with their duty of good faith. The prospect of high punitive damages awards can affect the way in which insurance companies approach claims.

15
Dec

Call out drivers that text

Distracted driving is much too common. It accounts for four million traffic accidents in North America each year. Although Ontario made it illegal in 2009 to drive while using a handheld device, last year approximately 75-80% of all car accidents resulted from driver inattention.

It is illegal to use a handheld device while driving but that does not seem to be eliminating its use.  This is especially alarming given the day and age we are in with heavy reliance on smartphones which only seems to be increasing.   One suggestion is that we create a culture stigmatizing driving and texting and speak up when we see people doing it, especially where you are a passenger and have the opportune moment to enforce zero tolerance.

Distractions don’t end at using a handheld device while driving.  For example, a very high number of car accidents occur each year outside of Canada’s Wonderland on Hwy 400, as many drivers are looking at the rides instead of paying attention to the road. The OPP has been fining people that they catch looking at the rides while sitting in traffic or just driving by. The number of accidents in the area is a testament as to how dangerous distractions are while driving!

Eliminate all distractions while driving and remain focused on the task at hand – arriving safely to your destination.

15
Dec

Am I entitled to interest on overdue payments from my insurance company?

Yes, for accidents that occur after September 1, 2010, the rate of interest on overdue accident benefits payments changed from 2% per month, compounded monthly to 1% per month, compounded monthly.   The decisions of Arbitrator Maggy Murray in Federico v. State Farm Mutual Automobile Insurance Co., [2012] O.F.S.C.D. No. 20 and Arbitrator JeffreyRogers in Subramaniam v. Wawanesa Mutual Insurance Co., [2012] O.F.S.C.D. No. 100 have clarified that interest will accrue at the rate of 2% per month for accidents that occurred prior to September 1, 2010 and 1% per month for accidents that occurred on or after September 1, 2010.  In other words, it does not matter that the benefits may have become overdue after September 1, 2010 but rather whether the accident occurred before or after September 1, 2010.

The Court of Appeal in the recent decision, Zacharias v. Zurich Insurance Company 2013 ONCA 48 in addition to other things clarified what is meant by compounded interest.  At the end of the month during which a payment is overdue, 2 per cent interest is added to the amount that is overdue. As long as that overdue amount remains unpaid, interest continues to accrue at 2 per cent per month on both the increasing principal and on the interest that has been calculated monthly. As both the principal and interest are “overdue payments”, interest must be calculated and paid on amounts that include interest.

 

15
Dec

Is any economic loss, however minimal, sufficient for attendant care benefit eligibility?

Since the September 2010 changes requiring a family member who provides attendant care services to demonstrate an economic loss in providing care in order to be eligible for attendant care benefits, lawyers for injured people have been advocating for a broad interpretation to be adopted for the term economic loss.

Plaintiff’s counsel can now also rely on a recent case, Deol v Gore Mutual, where Arbitrator Wilson confirmed that economic loss is any economic loss of the care provider regardless of how minimal it may be.

In this case the insurance company attempted to argue that Mrs. Deol could not have been performing the care to her husband given the hours she worked.  However, her T4 demonstrated a lower income as well as a ROE from a second job indicating that she stopped working at that job due to stress and illness of her husband.

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