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20
May

Court decides change to PJI is retroactive

On January 1, 2015, section 258.3(8.1) of the Insurance Act came into force. The amendment says that the 5% prejudgment interest rate for non-pecuniary losses in motor vehicle accident claims no longer applies. Instead, prejudgement interest for non-pecuniary losses is to be calculated using the rate applicable to pecuniary losses, i.e. the bank rate in effect at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced.

The question before the Ontario Superior Court of Justice in the recent decision, Cirillo v. Rizzo was whether this amendment has retroactive application. The Court held that the new rates apply retroactively.

In Cirillo v. Rizzo, the Plaintiff, a pedestrian, started a lawsuit for injuries sustained when he was struck by a motor vehicle operated by the Defendant. The Plaintiff served the Statement of Claim on January 29, 2007. On March 24, 2014, the Defendant made an offer to settle for $50,000 for all claims plus pre judgement interest commencing from the date the notice of claim was served, i.e. January 29, 2007 up to the date that the offer was accepted. On January 26, 2015, the Plaintiff accepted the offer. In this case, the last day of the quarter preceding the quarter in which the proceeding was commenced was December 31, 2006. Accordingly, the bank rate in effect at that time of 4.5% would apply.

The central argument of the Plaintiff was that the amendment to the Insurance Act was substantive in nature and, therefore, the amendment does not have retroactive effect. The Plaintiff relied on the decisions of Somers v. Fournier and Skinner v. Royal Victoria Hospital.

The Defendant submitted that the amendment is procedural in nature and accordingly does have a retroactive effect. The Defendant argued that the issue respecting prejudgment interest in Somers did not relate to the quantification of prejudgment interest but rather the entitlement to prejudgement interest and held that the former (entitlement) to be substantive in nature and the latter (quantification) to be procedural in nature.

The Defendant also distinguished Skinner wherein the Court was dealing with an amendment to prejudgement interest where the amending statute specifically stated that the amendment in question applies to causes of action arising from the 23rd of October 1989. In the present case, the Defendant, argued, there is no such transitional provision and the legislature intended that the amendment did apply retroactively.

The Court found that the case law supported the position of the Defendant and held that the amendment is procedural in nature and shall be applied retroactively. Therefore, the applicable prejudgement interest rate on the $50,000 is 4.5% calculated from January 29, 2007, the date of service of the Statement of Claim, to the date the Plaintiff accepted the Defendant’s offer to settle, January 26, 2015.

In this case, the difference between the two potential prejudgment interest rates was only 0.5%. However, in more recent motor vehicle accident claims commenced on or after April 2009, the prejudgement interest rate would be around 1.3% which is a significant reduction and will work to the financial detriment of Plaintiffs.

30
Apr

We are proud sponsors of the upcoming Acquired Brain Injury conference

Virk Personal Injury Law is a proud sponsor of the 2015 Hamilton Health Sciences 22nd Annual Acquired Brain Injury Conference.

The conference is scheduled to be held on May 14th and 15th at the Hamilton Convention Centre.

To find out more, visit: http://www.hamiltonhealthsciences.ca/body.cfm?id=2127

29
Apr

More changes to accident benefits to reduce recovery to car accident victims

The Liberal government has released the budget for the 2015-16 fiscal year indicating the following changes relevant to the auto insurance industry:

– Combining attendant care benefits into the medical rehabilitation benefit category while increasing this category from $50,000 to $65,000 (currently attendant care is separate category at $36,000);

– Combining attendant care into the $1,000,000 catastrophic medical and rehabilitation benefit category (currently people with catastrophic injuries have $1,000,000 in attendant care benefits and $1,000,000 in medical and rehabilitation benefits);

– Reducing the standard duration for medical and rehabilitation benefits from 10 years to 5 years;

– Eliminating the 6 month period for non-earner benefits while putting a cap on their duration to a maximum of 2 years from the accident;

– Changing the catastrophic benefit definition to be “consistent with more up-to-date medical information and knowledge” ;

– Requiring goods and services not listed in the Statutory Accident Benefits Schedule to be “essential” and agreed on by the insurer;

– Increasing the deductibles on court awards for general damages for pain and suffering (currently $30,000 for awards under $100,000);

– The tort deductible to be taken into account when determining a party’s entitlement to costs in an action for damages from bodily injury or death (currently a party’s entitlement to costs is calculated on the gross amount).

Less than 5 years ago, the Ontario government made significant reductions to accident benefits including reducing med-rehab benefits from $100,000 to $50,000 and attendant care benefits from $72,000 to $36,000. In addition, the Ontario government also reduced mandatory income replacement coverage (from 80% of net income to 70% of gross income) and introduced the minor injury guideline which imposes a $3,500 cap for injuries that fall under this guideline.

Despite these reductions, according to a study commissioned by the Ontario Trial Lawyers Association (OTLA), Ontarians likely have overpaid auto insurance by about $3.1 billion between 2001 and 2013. The study found premiums have been too high, and consumers in Ontario have been paying too much for auto insurance. They also reported that insurers made on average 12% return on equity in 2014 alone. The most recent changes are made under the guise of reducing premiums and reflecting inflation. However, there does not appear to have been much discussion about insurer profits or premium reductions prior to the government’s decision to reduce even further standard benefit coverage. With respect to inflation, it should be noted that Income Replacement Benefits have not changed from the amount of $400 per week in 25 years. What is clear is that the recent changes will undoubtedly have a further negative impact on the seriously injured accident victims.

9
Mar

Freda Vanopoulos is co-hosting upcoming auto insurance seminar

Virk Personal Injury Law’s Freda Vanopoulos is co-hosting the upcoming 29th ANNUAL JOINT INSURANCE SEMINAR presented by the Hamilton Law Association & The Ontario Insurance Adjusters’ Association.

The seminar will provide personal injury lawyers and insurance adjusters a unique opportunity to network while picking up tips and updates on developments and emerging issues in personal injury law.

Don’t miss this event scheduled for THURSDAY, APRIL 30th, 2015 – 8:00 a.m. to 3:30 p.m. at the Hamilton Convention Centre, Chedoke Room (1 Summers Lane, Hamilton)

And obtain more than half of your annual CLE credit requirements as this program contains 1.75 Professionalism Hours and is also eligible for up to 4.75 Substantive Hours.

For more information on the event or to register, visit the Hamilton Law Association website: http://www.hamiltonlaw.on.ca/

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.

 

 

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