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July 31, 2013

Failure to Submit Disability Certificate Disentitles Claimant to Accident Benefits

A recent arbitration decision confirmed the importance of a disability certificate in accident benefits cases.

In Anthonipillai v. Security National, FSCO A11-001168 (July 12, 2013), the applicant was injured in an accident on April 21, 2008.  Although the insurer requested she submit a completed disability certificate several times, she failed to do so until 3.5 years after the accident, after an arbitration pre-hearing.  Even when she did submit a disability certificate, it only addressed caregiver benefits and not housekeeping.  The applicant argued that by continuing to adjust the claim and pay benefits, the insurer waived the requirement for a disability certificate.

The Arbitrator held that the applicant was disentitled to housekeeping and home maintenance benefits as she never submitted a disability certificate.  The insurer did not waive the requirement for a disability certificate as it had an obligation to adjust the claim, even if the plaintiff had not complied with her obligation.  In addition, the treatment and assessments the insurer adjusted were applied for through OCF 18 and 22 forms, which contain the signature of a health professional confirming the information is accurate, the treatment reasonable and necessary and acknowledging that it is an offence to make a false statement.  The insurer was entitled to insist on the same assurances through a disability certificate relating to caregiving and housekeeping expenses.  In addition, the insurer was entitled to obtain s. 42 assessments, without being deemed to have waived compliance by the insured.

July 24, 2013

Second Defence Medical Ordered

In Galea v. Firsker, [2013] ONSC 1666 (S.C.J.), there is an interesting twist to the usual motion to compel the plaintiff to attend a second defence medical examination.

The plaintiff alleged soft tissue injuries.  The defendant's first defence medical with a neurologist was obtained prior to the plaintiff serving any reports.  After being served with reports by an orthopedic surgeon and a physiatrist, the defence sought to have the plaintiff examined by a physiatrist. 

McDermot J. ordered the plaintiff to attend the defence medical.  Even though there was an element of "buyer's remorse" in the defendant's request for a second assessment, denying the request would work an injustice, as the defendant would have no way to respond to the plaintiff's medical evidence.  The fact that there was no affidavit from the neurologist, there was no change in circumstances and there was a possibility the trial may have to be adjourned, the primary concern was trial fairness.

The decision in Galea seems to follow the recent case law where the emphasis is on trial fairness above other factors.

July 17, 2013

No Leave Required for Summary Judgment Motion After Set Down

Does a party that sets an action down require leave to bring a summary judgment motion?

According to Justice Quinn in Fruitland Juices Inc. v. Custom Farm Service Inc. 2012 ONSC 4902 (S.C.J.), no leave is required.

In Fruitland, the defendant brought a summary judgment motion after it set the action down for trial.  The plaintiff objected pursuant to r. 48.04(1).  Justice Quinn granted leave.  He held:

[28]   The requirement for a substantial and unexpected change in circumstances is not a helpful or logical test where the motion for which leave is requested seeks summary judgment. The primary purpose of such a motion is to spare the parties and the legal system the expense and intrusion of an unnecessary trial or, at least, unnecessary issues within the trial. A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. In other motions (such as to add parties, raise new issues or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.

July 10, 2013


For a recent summary of the doctrine of spoliation, see the decision in Stillwell v. World Kitchen, [2013] ONSC 3354 (S.C.J.).

The plaintiff brought an action against the manufacturer of a dutch oven that broke into four pieces as he was washing it, causing a severe laceration to his wrist.  The plaintiff told his wife to dispose of the product shortly after the incident.  He testified that he gave no thought to a lawsuit at the time; he simply did not want to see the pot when he returned home from surgery.

At trial, one of the issues was whether the jury should be charged on spoliation.  Justice Leach held he would not charge the jury on spoliation.  Spoliation gives rise to a rebuttable presumption of fact that the missing evidence, had it been preserved, would have been unfavourable to the party that destroyed it; however, an adverse inference does not arise merely because the evidence has been destroyed.  There must be intentional destruction in circumstances where it can reasonably be inferred that evidence was destroyed to affect the litigation.  There was no evidence that the plaintiff intentionally destroyed the dutch oven, so the doctrine of spoliation would not be put to the jury.

July 3, 2013

Settlement Privilege

The Supreme Court of Canada recently commented on Pierringer Agreements.  The issue was whether the non-settling defendants had the right to know the amount of the settlement between the plaintiff and settling defendants.

In Sable Offshore Energy Inc. v. Ameron International Corp. [2013] SCC 37, the plaintiff sued a number of defendants.  It entered into a Pierringer Agreement with several defendants and the non-settling defendants requested disclosure of the settlement amounts.  The non-settling defendants received all non-financial terms of the Agreement, had access to all relevant documents and other evidence in the settling defendants' hands and were assured that they would not be held liable for more than their share of damages.  In addition, the plaintiff agreed to provide the settlement amounts to the trial judge at the end of trial, so that if the non-settling defendants established a right to set-off, their liability for damages could be adjusted downwards. 

The Court held that the settlement amounts did not have to be disclosed to the non-settling defendants.  The amounts were protected by settlement privilege, which is a class privilege, meaning there is a prima facie presumption of inadmissibility.  The public interest in promoting settlement was greater than any prejudice to the non-settling defendants.  The Court rejected the argument that the non-settling defendants required knowledge of the settlement amounts to know and present their case, or to explore their own settlement possibilities.

It is clear that the Court highly values settlement and this decision aims to encourage settlement and the use of Pierringer Agreements in multi-party litigation.