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October 26, 2011

New Minor Injury Guideline

The new Statutory Accident Benefits Schedule (SABS) came into effect September 1, 2010. Among the key amendments, there has been a reduction of medical and rehabilitation benefits from $100,000.00 to $50,000.00. In some cases, this will be further reduced to $3,500.00 under the new Minor Injury Guideline (MIG).

The MIG applies to accidents that occurred on or after September 1, 2010, and replaces the Pre Authorized Framework for Grade I and II whiplash associated disorders. Section 268.3 of the Insurance Act requires that the MIG be considered in any determination involving the interpretation of the SABS.

An insured person’s impairment comes within this Guideline if the impairment is predominantly a minor injury. “Minor injury” is defined in the new SABS as a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associate sequelae”. Each of these conditions are further defined to specify the severity of each to move it out of the “minor injury” category. For example, “whiplash associated disorder” is defined as “a whiplash injury that does not exhibit objective, demonstrative, definable and clinically relevant neurological signs, and does not exhibit a fracture in or dislocation of the spine”.

The objectives of the MIG are to speed access to rehabilitation for persons who sustain minor injuries in auto accidents, improve utilization of health care resources, provide certainty around cost and payment for insurers and regulated health professionals, and be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries.

Many accident victims may now find their benefits reduced to $3,500.00 and if they do not have a tort claim, they may have little alternative for additional medical coverage. The Financial Services Commission of Ontario expects the MIG to capture 30%-40% of accident claims.

Section 18(2) provides for an exclusion from MIG if the insured person’s health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if subject to the $3,500.00 limit. This exception raises the question of what the courts will consider to be “compelling evidence”.

- Kristen Dearlove, Student-at-Law

October 19, 2011

Municipality attempts to exert rights to shoreline road after discovering a 150 year old By-law

Meaford (Municipality) v. Grist [2011] O.J. No. 4188

This is an interesting case regarding an 1854 By-law that had been found in 2004, which purported to create a municipal/public road along the shore of Georgian Bay.

Some of the named defendants brought two summary judgment motions claiming that there are no genuine issues requiring a trial. The action is disputed by the defendants because the road would take away approximately 66 feet of their shorelines lands.

The road had not been registered on title until 2007 after the Municipality discovered the By-law.

The Municipality’s argument, among other things included the doctrine of dedication and acceptance.

Justice Daley set out the test for the common law doctrine of dedication and acceptance/ long user:

Dedication depends on the intention of the donor and also acceptance of
the road by public authority.

There are three conditions:

1. An owner of the land on which the road is situated had formed the
intention to dedicate the land to the public road or highway;

2. The intention was carried out by the road being thrown open to the
public; and

3. The road was accepted by the public.

Dedication can occur by usurpation and long enjoyment.

Where members of the public continually use the road over a long period
of time, dedication may be inferred.

Justice Daley stated that the plaintiff bears the onus “upon a preponderance of probability to demonstrate that the conditions necessary for the establishment of dedication and acceptance were all present”. He then refers to the Reed v. Town of Lincoln [1973] decision where the “cogency of the evidence required to satisfy the burden … may vary … according to the nature of the issue with respect to which the burden must be met.”

Using this ruling, he bolsters the onus requiring the municipality to “satisfy the onus by a clear and substantial preponderance of evidence that the property owners have lost the title to a portion of their property which now constitutes a public road”.

Meaford argued that the public highway existed prior to the by-law. It was held that there was no genuine issue for trial; the plaintiff had not offered any physical/documentary evidence. Even if there had been a road, the time from the initial Crown grant in 1840 to the date of the by-law in 1854, is not enough time to find a “long user”.

It was further held that there was no dedication and acceptance in modern day, for many reasons, including:

1. The municipality graded the road approximately twice a year –
otherwise had no involvement in the upkeep.

2. The municipality entered into a maintenance agreement with the
cottage owners association.

3. In 1986, part of the road had washed away and the municipality had
not restored the road. In fact, the owner of the property had a
different portion of his property, severed, re-zoned and built a
private driveway (no dispute that this “inland” driveway was a
private road).

4. The “inland” driveway was maintained pursuant to the maintenance

5. The defendants were bona fide purchasers for value and the cottages
built on the lots comply with zoning by-laws in regards to set back
from the water’s edge and not from the disputed road.

6. There was no evidence of municipal funds or labour to build, maintain
or restore the road.

7. The municipality, in this action, was only trying to lay claim to a
very small potion of the road that the By-law purported to create.

Justice Daley held that there was no evidence of actual or implied dedication or acceptance and was held not to give rise to any issues requiring a trial.

He went further to state that the municipality had slept on their rights for over 150years and applied the doctrine of laches and acquiescence and that “quite apart from all of the other reasons expressed (in the 192 paragraphs), it would be unjust to grant Meaford’s claim”.

This post was prepared by our Associate Alison McBurney.

October 12, 2011

The Importance of Causation

In Lancaster (Litigation Guardian of) v. Santos, [2011] O.J. No. 3706, the County of Dufferin was added as a third party in an action arising out of a MVA on November 21, 2001 involving a fully-loaded pickup truck being driven by Mr. Santos and the plaintiff’s vehicle.

The transport had tipped over when coming around a curve and slid into oncoming traffic. It was alleged that but for the County’s failure to properly sign the portion of the road in issue, Mr. Santos would have been aware of the hazardous road condition and would have reduced his speed such that he could have managed the curve.

Lemon J., found the cause of the accident, on a balance of probabilities, to be the shifting of the truck’s load as a result of it not being properly secured. Mr. Santos had testified that the signs which existed provided some warning and he reacted to it by slowing down. As a result of this testimony, the road conditions and signage were not found to be the cause.

Lemon J., went on to determine whether the County could have been liable had there been causation. The plaintiff argued that when the County breached the Manual of Uniform Traffic Control Devices (MUTCD) by not properly signing the road, it breached its duty of care.

Lemon J., stated: “while I agree that this sign did not meet the standard set by the MUTCD, and that other drivers in other circumstances might have been mislead, that was not the case for Mr. Santos…The sign as posted was doing its job”.

This case is significant in that that court confirms an obvious yet often overlooked principle – If there is a breach of the duty of care, it must have contributed to or caused the MVA. Municipalities should keep in mind that although they perhaps made a mistake at some point in time, it must be considered whether this mistake caused or contributed to the MVA.

Thanks to our articling student, Kristen Dearlove, for this post.

October 5, 2011

Court of Appeal Comments on s. 132 of the Insurance Act

The Court of Appeal recently commented on s. 132 of the Insurance Act. Section 132 provides that a person who obtains a judgment against an insured person which has not been satisfied may recover that amount from the insured’s insurer.

In Walker v. Sovereign General Insurance Co., [2011] O.J. No. 4106 (C.A.), the Walkers obtained a judgment against Sun Shelters Industries Inc. for damages sustained in a parking lot slip and fall. Sun Shelters went bankrupt and could not pay the judgment, so the Walkers brought an action under s. 132 against Sun Shelters’ insurance company, Sovereign. Sovereign’s position was that it did not receive proper notice as required under the CGL policy and as a result was not required to defend the action or indemnify Sun Shelters or the Walkers.

The Court of Appeal held that notice of a claim can be given either by the insured or by a person on behalf of the insured. In this case, notice was given to Sovereign by a co-defendant. The Court noted that if notice is given by someone other than the insured, the person should have sufficient proximity to give adequate details of the claim:

36 Given its purpose and importance, if the notice is to be given for an insured instead of by the insured itself, the person giving it should have sufficient proximity to the claim to have knowledge of the information required by s. 3(a). Emshih was just such a person. It owned the property where the accident occurred; it was a defendant in the original action; and it cross-claimed against Sovereign's insured. In giving notice to Sovereign, Emshih was giving notice for Sun Shelters as contemplated by s. 3(a) of the policy.

Sovereign had actual notice of the claim and made a conscious decision not to defend. If the insurer had no knowledge of the claim, no opportunity to investigate or negotiate a settlement, it may be that the decision would be different.

- Tara