Tom Golfetto, Director of Arbitrations at the Financial Services Commission of Ontario (FSCO) posted the following overview of two recent Ontario Court of Appeal decisions which impact the FSCO mediation process. A FSCO mediation is a necessary procedural step which an injured person must take, before being able to pursue an insurer for a denied benefit by way of either an arbitration or lawsuit. Mr. Golfetto sets out steps injured persons, who have a dispute with their insurer, may now take to move their dispute forward expeditiously.
On November 29, 2012, the Ontario Court of Appeal issued decisions on appeals of several lower court decisions regarding when mediation should be considered failed. These included a decision on the matter of Hurst v. Aviva Insurance Company (Cornie v. Security National Insurance Co. et al) and a decision on the matter of Younis v. State Farm.
In Hurst, the Court upheld the lower court decision and found that mediation fails by statutory definition if no settlement has been reached within 60 days of the date of filing an application for mediation, or within the time extended by agreement of the parties. The Court also found that a Reporter of Mediator was not required in order for a file to proceed to arbitration or to court.
In Younis, the Court dismissed the lower court decision and found that a claimant must wait until the 60-day period has expired before bringing an action to court or filing for arbitration.
It should be noted that an arbitration appeal decision on failed mediation came to a similar conclusion as the Ontario Court of Appeal.
Impact on Parties
Parties who filed applications for mediation with FSCO more than 60 days ago should submit a form to FSCO indicating that they either jointly agree to extend the time for mediation or that either party wishes to receive a failed Report of Mediator. If FSCO does not receive this form from parties, by default, their applications will remain in queue for assignment to a mediator.
Applications for Arbitration that were filed without a Report of Mediator and have been held in abeyance, pending the Court of Appeal matters, will proceed to arbitration. Upon request, FSCO will issue Reports of Mediator for these cases.
FSCO expects a significant number of applications for arbitration to be filed, which will greatly increase the wait time for arbitration proceedings. The current wait time for an arbitration pre-hearing is six to eight months.
Parties awaiting mediation are encouraged to remain in the queue for assignment to a mediator. The average wait time for mediation is expected to substantially decrease as ADR Chambers, an external dispute resolution services provider, is now handling an additional 2,000 mediations per month. This is over and above the files that continue to be handled by FSCO’s mediators.
The Chief Coroner for Ontario has just released the Office of the Chief Coroner’s Pedestrian Death Review.
In 2010 there had been a rash of pedestrian deaths. The review was initiated after Patrick Brown of McLeish Orlando LLP and enviromental lawyer, Albert Koehl gathered a coalition of interested groups and requested a review of cycling and pedestrian deaths within the province. Last summer, the Toronto Star posted Patrick and Albert’s request and later that fall, after several meetings, the review was launched. The purpose of the review was to examine the circumstances of the deaths that occurred from January 1, 2010 to December 31, 2010 and make various recommendations. The report itself was dedicated to the 95 Ontarians who lost their lives in preventable pedestrian collisions in 2010.
The review resulted in 26 recommendations covering many areas and includes:
• Reduced speed limits in residential areas and amendments to the Highway Traffic Act
• Adopting ‘Complete Streets’ aprroach to ensure the roadways are designed and maintained for all users including pedestrians and cyclists
• Installing side guards on heavy trucks
• Creating more pedestrian crossings, longer times to cross, and developing a “walking stratedgy for Ontarians”
• Educating drivers on the scenarios that can lead to a pedestrian collision
• Increasing enforcement
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The Canadian Red Cross Society released a paper chronicling 16 years of recreational boating fatalities in Canada. The report makes it clear that for those who will be out on the water this summer, wearing a lifejacket or personal flotation device (PFD) is the way to go.
An estimated 3,000 Canadians died in boating mishaps between 1991 and 2006. The vast majority of these fatalities were the result of “immersion”. Unfortunately, most of these deaths could have been prevented if the victims had simply worn an approved PFD or Lifejacket. Statistics show that most boating victims are male (note: all 28 deaths in Ontario last year were male) travelling in small open boats; and either don’t have a PFD with them or were not wearing one when an accident happened.
Despite repeated campaigns promoting the use of PFDs, the majority of boaters still ignore this basic precaution. During 1991-1995, only 12% of recreational boating drowning victims were properly wearing a PFD, and in 1996-2000, the figure was 11%. Remarkably, this figure was no better for drowning victims who were non-swimmers or weak swimmers.
Although current regulations do not require wearing of a PFD by boaters, they do require that a PFD be present in the boat. In at least 28% of boating drownings, a PFD was not even present, let alone worn. And even when a PFD is present, it is impossible, or at the least very difficult, to find a PFD in the water and put it on properly after capsizing or falling into water, which are two of the most frequent incidents leading to boating drownings.
Statistics consistently indicate the wearing a PFD or Lifejacket greatly increases the chance of survival if the unexpected happens. The report from the Canadian Red Cross Society recommends that boaters in all vessels not at anchor or at a dock be required to wear (rather than just carry on board) a Lifejacket or PFD. The recommendation stems from the harsh reality that more than 85% of boating related drownings could have been prevented if victims had made the simple decision to wear PFD or Lifejacket.
Many boaters feel that they don’t need a PFD or Lifejacket since they are “strong swimmers” and have boated for years without having a mishap. However, you can’t predict an emergency situation or accident, but you can prepare for one. Strong swimming skills don’t help much if your boat strikes a rock and you’ve been knocked unconscious and thrown from your vessel. If the unexpected happens and you’re already wearing a PFD or Lifejacket your chance of survival is dramatically increased.
Ensure you and your family make the right decision to wear a PFD at all times, when in or around the boat this summer.
The Brain Injury Association of Canada, its partners and community of survivors, caregivers and health professionals, have designated June as National Brain Injury Awareness Month in Canada. The goal is to increase general awareness across Canada of the effects and causes of acquired brain injury.
Statistics from The Ontario Brain Injury Association website provide insight into just how pervasiveness brain injuries are in our community. Consider that:
• Within the next hour, 6 Canadians will suffer a brain injury
• An estimated 1.3 million Canadians are living with an acquired brain injury right now
• 1 in 10 people will know someone who will suffer a brain injury this year
• Brain injuries are the number one killer and disabler of people under the age of 44
• More than 18,000 Ontarians will suffer a brain injury this year
• 1 in 5 sports related injuries are head injuries
It is important to understand that a brain injury can occur without any visible damage to the head. Some signs or symptoms may appear immediately after the traumatic event, while others may appear much later.
In support of Brain Injury Awareness month, we have listed various signs and symptoms of a brain injury to watch out for. Please note that the terms “mild,” “moderate” and “severe” below are used to describe the effect of the injury on brain function. A “mild” injury to the brain is still a serious injury that requires prompt attention and an accurate diagnosis.
Mild traumatic brain injury
The signs and symptoms of mild traumatic brain injury (concussion) may include:
• Loss of consciousness for a few seconds to a few minutes
• No loss of consciousness, but a state of being dazed, confused or disoriented
• Memory or concentration problems
• Dizziness or loss of balance
• Nausea or vomiting
• Sensory problems, such as blurred vision, ringing in the ears or a bad taste in the mouth
• Sensitivity to light or sound
• Mood changes or mood swings
• Feeling depressed or anxious
• Fatigue or drowsiness
• Difficulty sleeping
• Sleeping more than usual
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With record setting temperatures this week, parents will be looking to get their children into the water as a great way to cool off. It is co-incidental that this is also National Drowning Prevention Week, whose key message is to play safe.
Swimming can be a lot of fun on a hot summer day, but each year, thousands of people are seriously injured or die in swimming accidents. The majority of these accidents involve drowning, near-fatal submersions, diving mishaps and falls.
Children are particularly at risk for injury. Drowning is the second leading cause of death among children under 14 years old. Children under the age of 5 are the most likely to drown in an unsupervised pool. Tragically, many of these swimming accidents could have been prevented. Lifesaving Society public education director, Barbara Byers, states “Younger children are absolutely fearless of the water”. “ There is a magnetic attraction to water. So, it’s our job, as adults, to control access to the water”.
The Ontario Coroner’s Office recently released its report following a review of drowning accidents in Ontario during the summer of 2010. The report found a “disturbing” spike in the number of deaths involving young children. More than twice as many children under age five drowned in 2010 than in the previous two years — a total of 13 last year compared to five in 2008 and 2009. The team examined 89 accidental drowning deaths. Their task was to identify common factors that may have played a role in the deaths and if necessary, make recommendations to prevent similar deaths.
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Recent research on concussions in children now indicates that even the mildest concussions need to be treated with “brain rest” to avoid injuries that can possibly have long-lasting effects on children.
Dr. Ellemberg, a neuropsychologist at the Université de Montréal is conducting the world’s first large-scale study of the effects of concussions on children. His five-year study will research concussions in more than 200 children.
Dr. Ellemberg states “The traditional view has been that children’s developing brains would recover faster from injury than adults’ brains. But we’re finding evidence that a child’s brain could actually be more sensitive to the effects of concussion”.
Dr. Ellemberg cautions that his results aren’t a call for kids to avoid sports and other activities. Rather, he says, it’s time for parents and coaches to be aware of concussion symptoms and give young brains a chance to heal.
“If we take the proper precautions after a concussion we can significantly reduce the impact of the concussion on the brain,” says Dr. Ellemberg.
Any blow to the head, face or neck, or somewhere else on the body that causes a sudden jarring of the head may cause a concussion, such as being hit in the head with a ball, falling off a bike or being checked into the boards in hockey.
The symptoms of a concussion may include:
• Dizzy or disoriented
• Headaches, nausea or vomiting
• Ding or buzzing sounds immediately after injury’
• Seeing stars on impact and later double or blurry vision
If you suspect that your child has sustained a concussion, your child should stop playing the sport right away. The most important treatment for a concussion is rest. Like any physical recovery, the invisible mental recovery must also occur and this takes time. That means not exercising, bike riding, playing video games or working on the computer. Children may have to stay home from school because schoolwork may make their symptoms worse. Children who go back to school or resume activities before they are completely better are more likely to get worse and to have symptoms longer.
A child who has been diagnosed with a concussion should see a doctor immediately if symptoms get worse, such as:
• being more confused;
• worsening of a headache;
• vomiting more than once;
• not waking up;
• having trouble walking;
• experiencing a seizure; or
• behaving strangely.
Problems caused by a head injury can get worse later that day or night. A child should not be left alone and should be checked on through the night. If there are any concerns about a child’s breathing or sleep, wake her up. Otherwise, let her sleep. If she seems to be getting worse, see a doctor immediately.
For more information visit the Canadian Paediatric Society website at http://www.cps.ca/english/statements/HAL/HAL06-01.htm
With spring weather upon us, children will soon be outside cycling, skateboarding and rollerblading. With this in mind, there is no better time to remind parents of the importance of bicycle helmets and how to properly fit and use them.
Bicycle helmets are designed to protect the skull and brain in the event of a fall. A fall may not appear serious at that moment, but even the simplest of falls can result in a serious injury to the brain. Research has shown that bicycle helmets can be extremely effective in preventing head injuries, when worn correctly.
Many provinces have laws requiring bike riders to wear a helmet. In Ontario, anyone under the age of 18 is required by law to wear an approved bicycle helmet when travelling on any public road.
Parents and children should learn how to properly purchase and wear a helmet. A bike helmet should fit securely and not slide around. You want to ensure that the helmet goes all the way around your child’s head and covers the forehead up to an inch above the eyes. The same goes for the helmet straps. The straps need to come all the way around the ears and under the chin. A link to a helpful video on how to property fit a helmet is http://www.youtube.com/watch?v=Y5zE6Xtjf_Y&feature.
Parents should look for a helmet that fits comfortably and meets safety standards. Parents should also check the inside of the helmet for stickers from one or more of the following organizations:
• Canadian Standard Association: CAN/CSA D113.2-M89
• Snell Memorial Foundation: Snell B90, Snell B90S, or Snell N94
• American National Standard Institute: ANSI Z90.4-1984
• American Society For Testing and Materials: ASTMF1447-94
• British Standards Institute: BS6863:1989
• Standards Association of Australia: AS2063.2-1990
No matter how great a helmet may look or fit, it won’t protect your child from injury if it comes off during a fall. Injuries can be greatly reduced or even avoided when the helmet is strapped on correctly and positioned level on the head and the straps snug. Make sure to strap on the helmet properly each and every time. Before your chid rides, also take a moment to visually check over the helmet to ensure it’s not cracked or damaged. Remind your child to take care of the helmet and not to throw it around. That could damage the helmet. If the helmet is involved in an accident, be sure to get your child a new one. Remember, as a child grows they will require a new helmet that properly fits and protects their head.
Taking a few moments to carry out the steps above can help reduce the chance of serious injury to your child.