Is a Carjacking An “Accident”?

Posted by on September 7, 2011 under Accident Benefits, Automobile Insurance, Case Law, Claims Denial, Insurance Companies Comments are off for this article

On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep.  He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas.  When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep.  The men began hitting Mr. Downer while pulling him out of the vehicle.  Mr. Downer put the Jeep into reverse to get away from the men.  One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off.  A short time later, he became aware that he had suffered injuries in the incident.

Mr. Downer’s insurance company brought a motion to dismiss Mr. Downer’s claim for benefits on the basis that he had not suffered his injuries in an accident.

Was the carjacking an accident?

Read more of this article »

Alarming Recommendations for the Seriously Injured

Posted by on May 19, 2011 under Automobile Insurance, Disability Benefits, Insurance Companies, Medical News Comments are off for this article

The Financial Services Commission of Ontario (FSCO) Panel selected to review the definition of Catastrophic Injuries has released their report.

To those consumers not familiar with this, see my previous blog “Catastrophic Impairment under a Microscope.” It was anticipated that the review of the definition would give rise to maintaining or granting greater access to medical and rehabilitation benefits to those suffering catastrophic injuries. The last set of changes made by the Ontario Government in September 2010 saw many accident benefits slashed in half or eliminated for the less seriously injured.  These cuts were made in order to ensure that the system was financially able to protect those suffering from the more disabling catastrophic injuries. Therefore it was extremely alarming to see that the FSCO Review Panel has  recommended new changes which will make it more restrictive for the seriously injured victims to meet the catastrophic definition.
If implemented, a large portion of these victims will be denied the designation and suffer greatly with the reduced benefits. The changes prevent the injured person from having psychological injuries combined with physical injuries when conducting the assessment. As well, they propose to get rid of the GCS score as a designator for those suffering brain injuries. The brain injury victim will no longer be able to qualify based on the early GCS score, but would rather be subject to a longer and more detailed assessment. An assessment which will delay benefits from flowing and costs significantly more.
This means that many people who suffer serious brain impairments, psychological injuries and physical injuries will be denied access to meaningful benefits in the future. The funds normally spent to get the seriously injured victims better or allow them to live with dignity will simply remain within the insurance companies. Of course, this will in turn increase the profitability of the insurance industry and put higher demands on the public health system. 

However, the panel is only the first step in the review. The recommendations are not yet law. FSCO and the Government also requested submissions from the legal and medical communities. The deadline of May 13, 2011 has now passed. The response by these communities has been loud and clear. The recommendations are premature, flawed and ought not to be implemented.

A panel of prominent medical specialists in field of traumatic injuries have taken objection to the recommendations. This panels’ review was endorsed by the Alliance of Community Medical and Rehabilitation Providers of Ontario. The medical outcry is of no surprise, since the recommendations now being made are at complete odds with a 2001 Medical Panel Review. The September 2001 Review was supported by the insurance, legal and medical communities.
The major legal organizations have also stood up and indicated that these recent recommendations ought not to be implemented. They include the Ontario Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.

Based on the resounding objection, one can not imagine the Government giving any weight to the proposed recommendations. What is interesting is that in the submission made by the Alliance, they understand that over half of the panel making these recommendations had been at one time consultants with the Insurance Bureau of Canada.
What is really driving these recommendations?
Voice your Opposition to the Panel’s Recommendation and put people before profits. Send an email to your local MPP today before it is too late!

Avoiding (Legal) Potholes on Your E-Bike

Posted by on April 20, 2011 under Automobile Insurance, Cycling Comments are off for this article

It’s that time of year again. The time when hard-core cyclists say to themselves, “Do I really have to share the bike lane with those scooter-like things?” Like them or not, e-bikes are back on the roads after their annual winter migration to storage. If last year was any indication, the number of e-bikes on the road this spring can be expected to increase yet again.

While the year-round cycling purist may look over the dropped handlebars of his retro fixed-gear bicycle at the e-biker with disdain, e-bikes look like they are here to stay. E-bikes represent a viable commuting option for “suits” who can’t show up to work sweaty and who, unlike me, don’t have the luxury of keeping a wardrobe at the office. They are also a more feasible option for people with physical limitations or who just need a bit of help on steep hills.

To encourage the use of e-bikes, the government allows riders to operate them without a driver’s licence and without the need to purchase insurance. For people who want a cheap, green, and non-sweaty mode of travel there aren’t any apparent drawbacks to using an e-bike – unless your e-bike is not really an e-bike. How do you know if what you are riding is in fact an e-bike? The government certainly hasn’t made it easy. Finding the complete definition means you have to look at the provincial Highway Traffic Act and the federal Motor Vehicle Safety Regulations. That’s a pretty heavy onus to place on someone who just wants to ride a bike with a bit of a power boost.

More importantly, why should you care whether your e-bike fits the definition? As long as you’re riding a machine that suits your needs, who cares if it’s technically an “e-bike” or not, right? Wrong. If your machine turns out not to be an e-bike, you could be operating a motor vehicle without insurance. And the consequences of operating a motor vehicle without insurance are significant.

The first obvious consequence of riding a motor vehicle insurance is a ticket under the Highway Traffic Act or the Compulsory Automobile Insurance Act. This could lead to substantial penalties. But a ticket and its accompanying penalty pales in comparison to what could happen if you are involved in a collision while operating an uninsured motor vehicle. Most significantly, you lose the right to sue. You might think that you aren’t looking to get rich off a lawsuit. But, suing for injuries in Ontario is not about getting rich. If you are severely injured, you could be looking at hundreds of thousands of dollars in health care expenses that are not covered by OHIP. You might also be unable to continue working, or only be able to work in a part-time or reduced capacity – for the rest of your career. If you lose the right to sue, you alone will bear the responsibility for these losses. Even if the driver of the other vehicle is 100% at fault.

That’s why it is so important to know what an e-bike is. Here are the key points you need to know to ensure that what you are riding is really an e-bike:

•It cannot be capable of going faster than 32 km an hour on level ground;
•It must have operable pedals affixed to it;
•You must be able to operate it “solely by muscular power”;
•The power output of the motor must be 500W or less; and
•It must have a label stating (in both official languages) that the vehicle is a power-assisted bicycle.
Take a look around the streets of Toronto and you will see many bikes that match this description, with the exception of the pedals. Because so many e-bike users never actually use pedals to operate the e-bike, they remove the pedals and store them under their seats. If you are considering doing this, don’t. The moment you remove your pedals, they are inoperable. That means that you are no longer riding an e-bike. You’re just operating a motor vehicle without insurance.

There are good arguments for removing the pedal requirement from the definition of an e-bike altogether. If the goal is to encourage people to use small, green vehicles, why should it matter if they have pedals? It’s not as if you are ever required to actually use the pedals on your e-bike. But regardless of the validity of arguments for changing the definition, the fact is that the law as it stands requires pedals. So, until the legislation is changed, keep those pedals on your e-bike. That way, I can avoid painful discussions with prospective clients who have lost their right to obtain badly-needed compensation for health care expenses and lost income. And riders of e-bikes and pedal-powered bikes can turn their attention back to the endless debate about whether e-bikes belong in bike lanes with the fixies.

Fight Continues for Access to Benefits for Severely Injured Accident Victims

Posted by on April 18, 2011 under Accident Benefits, Automobile Insurance, Insurance Companies Comments are off for this article

The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident.  The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment.  This is not akin to a lottery ticket.  A catastrophically injured person must still prove that the benefits are reasonable and necessary.  All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need.  Last week, an expert medical panel completed a review of the definition of catastrophic impairment.  The recommendations are based on a technical review.  In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.

The text of the article is reproduced below:

‘Catastrophic impairment’: What’s at stake

Published On Sun Apr 17 2011

Dale Orlando
President of the Ontario Trial Lawyers Association

“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”

Read more of this article »

Catastrophic Definition is now under the Microscope: This review will have a serious impact on the Disabled !

Posted by on February 11, 2011 under Accident Benefits, Automobile Insurance, Cycling, Insurance Companies, Medical News, News, Our Firm 2 Comments to Read

The Financial Services Commission of Ontario ( has now commenced a review of the “Catastrophic Definition”. The outcome of this review will have a dramatic impact on the victims who suffer severe disabilities in car crashes. For those deemed to be “catastrophic”, it can mean the ability to access essential services to live independently and with dignity. For those that are not, it can mean a life of limited help, despair and a stalled recovery. The stakes are very high!
The FSCO has now appointed an Expert Medical Panel to make recommendations regarding the definition and the assessment process. Careful attention will be made on people suffering traumatic brain injuries, paralysis, spinal cord injuries, severe mental and psychological disorders, and those suffering from multiple broken bones.
Many lawyers, doctors, rehabilitation professionals and treating providers are looking forward to the review. It is hoped that it will finally address the many holes that are within the system. Holes that have resulted in many seriously disabled victims being left out in the cold when it comes to basic care services and rehabilitation treatment. Treatment that will help them get better and integrated back into society and the workforce.

The last changes made by the Ontario Government to the insurance system was in September of 2010. These changes saw a drastic reduction in benefits to those suffering less severe injuries. The intent was to eliminate and drastically reduce benefits flowing to people suffering minor injuries. By cutting the flow, it would mean insurance companies would not have to raise auto insurance premiums to the driving public. It was also seen as a way of making sure greater benefits could flow to the more seriously disabled victims. As some would say, soft tissue injuries would have to take a back seat to the seriously injured.

Although the review process is to look at ways of making the present system better and more efficient, some fear that it will be used as a vehicle by the insurance industry to make it harder for people to be deemed “catastrophic”. This of course would mean people who otherwise would have up to two million in benefits available to meet their needs, would be reduced down to a bare bones package that is exhausted normally with one to two years. This of course cannot be the intent of the review. The review ought to ensure greater access is given to the seriously injured. Substantial savings have already been afforded to the insurance industry as cited in my previous blogs. To now go after the seriously injured and seek to reduce their benefits is just wrong.

Many are confident that the medical panel, FSCO and the Ministry will ensure these seriously injured persons are protected. An expansive approach with the definition must be done. A definition that recognizes all serious injuries. A definition that takes into consideration the collective impact of all injuries on the disabled. It should never be forgotten that there are no windfalls that happen when one is deemed “catastrophic.” Even if someone is found to suffer a catastrophic injury, they still must prove the need for benefits. It simply does not mean money falls on to their lap and they keep it. The money goes to rehabilitation, home modifications, mobility aids, and attendant care. The disabled person still must prove they need the services ( the wheelchair ramp, the wheel chair lift, the helper to get dressed etc.). If they don’t prove it, they don’t get it. If the definition is expanded, it simply means those who need it can access it beyond the temporal and monetary caps of $3,500 or $50,000 as set out in my previous blogs.

If the panel or FSCO or the Ministry seek to tighten up the definition, which would be contrary to the intent of the review, then many severely disabled individuals will be shut out from accessing the rehabilitation and medical help needed to live with dignity and independence. Of course further restriction would simply mean greater savings to the insurance industry. This time however, it will be on the backs of the severely disabled.

McLeish Orlando Applauds Toronto Star for Balanced Coverage

Posted by on September 14, 2010 under Automobile Insurance, News, Our Firm Comments are off for this article

In an earlier post, we criticized a Toronto Star column for biased coverage of recent auto insurance changes.  The column, which was written by a Joel Cohen, a representative of the auto industry, presented misleading and unsupported facts about accident victims.  We printed Dale Orlando’s response to the column on our blog and urged the Star to do the same.  To its credit, the Toronto Star did publish Dale Orlando’s response.  A link to his response can be found here (Mr. Orlando’s letter appears below the first letter).

We applaud the Toronto Star for presenting an alternate viewpoint on this important issue.

Essential Tips for Consumers renewing their Car/Auto Insurance in Ontario.

Posted by on August 3, 2010 under Accident Benefits, Automobile Insurance, Claims Denial, Disability Benefits, Insurance Companies, News, Our Firm Comments are off for this article

After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals.  A daunting process is ahead.  The insurance system in Ontario is one of the most complicated systems in North America. 

Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have.  After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.  

The new basic auto policy being sold contains far less benefits than what existed before September 1.  With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums. 

Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price.  Like shopping in a supermarket, each item ought to have a price tag. Read more of this article »

Ouch! Injury Victims Get Whacked Twice with Assessment Costs: Changes to Ontario Auto Insurance as of September 1, 2010

Posted by on May 10, 2010 under Accident Benefits, Automobile Insurance, Claims Denial, Disability Benefits, Insurance Companies, News Read the First Comment

[This is the fifth of a five part series by Patrick Brown on upcoming changes to auto insurance]


Injured accident victims will have a significant amount of their benefits reduced due to assessment costs.  Despite the dramatic slashing of benefits reported in my previous blogs, consumers will also face further reductions based on the fact that the cost of assessments will come out of the amount of benefits available.

For example, if a consumer is injured in a car accident and the injuries are not considered to be catastrophic, they presently have $100,000 in benefits for medical and rehabilitation treatment. Any assessment costs to obtain the benefit are over and above the $100,000.

Under the new standard policy without buy ups, the consumer will only have $50,000 available in benefit dollars.  That $50,000 includes assessments costs.  Therefore, if $5,000 is paid for an assessment to obtain the benefit, then the amount available to the injured person is reduced down to $45,000.  Read more of this article »

Save Now, Pay More Later

Posted by on April 29, 2010 under Accident Benefits, Automobile Insurance, News Comments are off for this article

Patrick Brown has made a series of posts recently discussing the changes to auto insurance in Ontario.  In today’s Toronto Star, James Daw provides a useful illustration of what a lower premium may cost you in the long run, in terms of reduced benefits and coverage.

The table below is taken from Mr. Daw’s article:


Caring Family Members Will Feel the Sting of the New Law: Changes to Auto Insurance Effective September 1, 2010

Posted by on April 27, 2010 under Accident Benefits, Automobile Insurance, Claims Denial, Disability Benefits, Insurance Companies, News Read the First Comment

[This is the fourth part of a series by Patrick Brown on upcoming changes to Ontario’s Auto Insurance Laws]

Starting September 1, 2010, many family members who provide basic care needs to their injured family members will be cut out from receiving any compensation for these essential services.  The new law eliminates any benefits going to a family member who help the disabled family member unless they show they suffered an “economic loss” because of it. 

This will have a devastating impact on families who chose to have family members look after their severely injured loved ones.  The new law was passed at the request of the insurance industry.  It will force families to use outside agencies.  Right now for instances, if a family member is hit by a car and suffers serious injury to the extent they can no longer dress, bathe or feed themselves, a benefit is available up to either 3,000 or 6,000 per month so that other families members can help.  Under the new system, this funding will stop unless mom, dad or sibling can show they lost money somehow [i.e. they have to quit work or miss work without pay]. The only way to access the benefit is to have a third party care agency come in and provide the services. Read more of this article »