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Bogoroch & Associates

Brent McIntosh
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Articles & Papers

The following are articles and papers authored by Bogoroch & Associates principals.

For additional articles from other publications and authors, click here to go to the Articles section of our Links page.



Heidi Brown's Article ‘'Surveillance in the Selfie Generation” Published in The Advocates’ Quarterly
July, 07 2016
Author: Heidi Brown, Advocates' Quarterly 2016

Congratulations to Heidi Brown on the publication of her article ‘Surveillance in the Selfie Generation” in the prestigious Advocates’ Quarterly.
 

Click here to read the article.


Brown, Heidi R.:  “Surveillance in the Selfie Generation”,

(2016) 45 The Advocates’ Quarterly 195-211.

Reproduced by permission of Thomson Reuters Canada Limited. Subscriptions to The Advocates’ Quarterly are available at 416.609.3800 (Toronto and International); 1.800.387.5164 (Toll Free Canada and United States); www.carswell.com


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How to Interview a Lay Witness
May, 27 2016
Author: Rachel Radomski


1. Introduction

When representing an injured person in litigation, the question of how to maximize the effectiveness of a lay witness will invariably arise. A lay witness that has been carefully selected and thoughtfully interviewed can add immeasurable value to a civil case.

Effective use of a lay witness is strategic and deliberate. The strategy must begin immediately upon being retained by the client. An initial step is to gather a complete picture of the client’s pre and post-accident medical condition, and the mechanics of the accident. Obtaining a copy of all pertinent records will help to guide the selection of the right lay witness. Once the lay witness is selected, it is not only the interview that may add value to your client’s case, but it is the approach taken, and the follow through afterwards.

 

2. How to Identify the Lay Witness: Your Roadmap of the Case

By having a thorough understanding of the nuances of both liability and damages in your client’s case, you can best determine what lay witnesses are needed, and who they may be. Every piece of evidence obtained should be carefully reviewed to determine if there is a relevant witness.

Lay witnesses can be used to support both liability and damages. At the outset of your case, you will want to draft a roadmap of what the issues are, what types of witnesses you may need, and who those witnesses can be.

A liability witness is an individual who is able to comment regarding fault. This witness is not limited to those individuals who are listed on the motor vehicle accident report. This witness may include the mechanic who repaired the Defendant’s car the week prior to the accident, someone who called 911 to report the accident, or it may be an individual who reported a crack in the sidewalk to the City prior to the slip and fall.

A damages witness is equally important. A damages witness can be used to develop your client’s injuries and character. For example, your client’s manager may comment on your client’s inability to maintain modified duties at work. Give life to your client’s case by interviewing teachers, colleagues, friends and family. A damages witness is best obtained through speaking with your client and gathering mentioned names and contact information. Your client may wish to give some witnesses a call first to advise them that you will be calling.

 

3. When to Conduct the Interview

Once the witness list is prepared, it is appropriate to determine when each witness should be interviewed. It is a strategic decision with numerous considerations. Generally, it is best to interview the witness as soon as possible. The reason for this is that memories fade and people can move. It is important to obtain all relevant information from your witness, before it is forgotten and before this individual changes their contact information. 

Another consideration is that witnesses are unpredictable, particularly in the case of liability witnesses. In order to know the case at hand, and avoid surprises at the 11th hour, it is best to obtain your witness’s information at the outset.  Knowledge is power. If discovered early on, you can neutralize an adverse witness by locating additional witnesses, or discussing conflicting information with your client.

 

4. Locating the Witness

In circumstances where the contact information of a witness is unknown, it is best to use an investigator. Alternatively, you may have to attempt to use creative avenues, such as social media, Canada 411, or even calling their place of employment.

 

5. Preparation is Key

You should never contact a witness unless you have prepared, prepared, prepared.

Two pieces of information are vital: who is this witness, and what information do you need from them. It is best to have a cheat sheet ready for when you contact your witness. The cheat sheet should list all pertinent details, so they are easily accessible for your call or meeting.

Liability Witness: When speaking to a liability witness, it is best practice to review the Statement of Claim and any other liability documentation in your possession. For example, if this witness called 911, be sure to review the call sheet and have it with you during the interview so you can refer to it as necessary.

Damages Witness: When speaking to the damages witness, review the Statement of Claim, expert reports, and other relevant documents. For example, if you are speaking with the individual’s employer, review their employment file first. Ensure you have specific questions laid out and that you are familiar with the substance of the records.

Remember, the witness is taking time out of their day to speak to you. Every question asked of them should be precise and bear a purpose. This can only be achieved through thoughtful preparation.

 

6. How to Conduct the Interview

It is best to start with a phone interview to determine what the witness is going to say. If their evidence is useful, an in person interview can then be arranged. For many witnesses, this initial call may be their first interaction with the law. Accordingly, your approach is of the utmost importance:

A.    Introduce yourself: tell them who you are, the firm you work for, and who you represent.

 “Hello, my name is Rachel Radomski. I am calling from the Toronto Law Firm of Bogoroch and Associates LLP. We are the lawyers for an individual who was catastrophically injured in a car accident you may have seen on December 1, 2015.

B.    Advise the witness that they are not obliged to speak to you, but you and your client would certainly appreciate if they would.

“Myself and my client would be appreciative if I could have five minutes of your time to see if you remember any details of this car accident. You do not have to speak, if you prefer not to, but as I mentioned, I would be obliged to have a couple minutes of your time.”

C.    Explain to the witness why their evidence is important:

“As I mentioned, my client was severely injured as a result of this car accident. A large issue in dispute right now is how the accident happened. Your recollection could shed light on this issue, which is important for this case.”

D.    Once the person agrees to speak with you, it is necessary to make them comfortable. This is best done by asking the witness about themselves, including their name, age, occupation, and contact information.

“Before we begin, could you please tell me the correct spelling of your name? How old are you Mr. Doe?”

E.    Ask the witness if they have spoken to anyone else about the accident.

F.    Proceed to ask them about the accident in question. You want to ensure you extract all of the pertinent information. Once they have given you all of their evidence, in their own words, you want to ask them if there is anything else that they remember.

“On December 1, 2015, what intersection did you see the accident occur at? Please tell me what you saw?

Thank you for that. Now, if you don’t mind, I am going to ask you some further specifics based on what you told me. Which direction was the black Ford headed?”

G.   Distinguish between think and know.

“You mentioned that you may have seen the young man crossing the road. Do you specifically remember seeing this?”

H.    Ask them if they have any photographs or notes about the issues in question.

“Did you happen to take any pictures of this accident? What were your photographs of? Would you mind sending me a copy of your photographs, it would be most appreciated.”

I.      Leave the line of communication open. Once all the witness’ evidence is obtained, ask the witness if you can contact them if you have further questions.  When you prepare a summary of the call, you may find gaps in their evidence.

J.     Advise the witness you may also follow up in writing. Be sure to ask if you can send them a summary of the evidence provided, so they can ensure the accuracy, and send you back a signed copy.

K.    Obtain the witness’ contact information:  phone number, e-mail, and mailing address. See if they prefer to be reached at a certain time.

L.     Lastly, thank the witness for their time at the end of the conversation.

 

7. Post-Interview Paperwork

Following the interview, prepare a summary of the witness’ evidence for internal firm purposes. This may be in the form of a memo sent to the lawyers on file. It should include all details that were discussed.

Second, a draft statement should be prepared to send to the witness for them to sign. A copy of their statement can be sent via e-mail, and also by mail. When sent by mail, enclose a pre-paid self-addressed envelope for them to return their statement in.

 

8. Critical thinking

The internal summary of the witness’ evidence should address the following issues:

1.     What does this person add to the case?

2.     Are they credible?

3.     Are they a friendly, neutral or adverse witness? Best to classify them as one of the three.

4.     Is an in person interview required?

 

9. Keep in Touch

Keep in contact with your witness. Send them a letter every 6 months advising them that the case is ongoing. This will help keep them interested in your case, and willing to assist.

 

10. Final Note

Understanding how to select and interview a lay witness can add value to your client’s case. When used strategically, they assist in building the litigation narrative.  It is important to be familiar with these guiding principles, to be in the best position to assist your client. 

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Common Long-Term Care Home Liability Issues
May, 20 2015
Author: Richard Bogoroch

Richard Bogoroch presented on nursing home liability as part of The Osgoode Certificate in Elder Law program, a unique 5 day interdisciplinary program for legal advisors, healthcare professionals and others who work with older persons.

 

Click here to view the presentation.


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When Injury Strikes: Contact a Lawyer Promptly to Protect Your Rights
December, 17 2013
Author: Richard Bogoroch

Published in the 2014 Legal Resource Guide from Canadian Lawyer magazine.

Personal injury claims can be complex and confusing but it is important to understand your rights, the damages you can be compensated for, the lawsuit limitation period, and other related information specific to your claim. By contacting an experienced lawyer, you can ensure you will obtain all the information you need as well as the best possible results for your claim.

 

 


For the full article, click to download: When Injury Strikes

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Addressing Canada Pension Plan Issues in Personal Injury Cases
October, 11 2013
Author: Yoni J. Silberman

When representing an injured person in litigation who was formerly working and now faces limited prospects for a return to the workforce, the question ‘when and how to apply for CPP disability benefits?’ will invariably arise.


Applying for Canada Pension Plan Disability Benefits (“CPP Disability Benefits”), though seemingly straightforward, can present numerous administrative and legal challenges. To initiate the process, various forms are required for submission including, but not limited to, the Application for Disability Benefits, the Questionnaire for Disability Benefits, and the Medical Report. Some applications are not accepted on their face and, often, cases involving disability arising from chronic pain present additional complexities.

In personal injury cases, the outcome of a CPP disability application can bear tremendous influence on the tort, accident benefits and/or LTD proceedings. Namely, approval by Service Canada of a disability benefit that is premised on the notion that an individual has sustained a “severe” and “prolonged” impairment, strongly attests to the nature and extent of an injured person’s state of disability. Though not synonymous with the terms “serious” and “permanent”, as is applicable in tort cases, the tests are somewhat analogous and involve a similar analysis.

As a practical consideration, if you have advised your client to apply for CPP Disability Benefits, it is prudent to review the self-reported portions of their Application and Questionnaire, so as to ensure that the submissions reflect information consistent with evidence given under oath in a related proceeding. Ultimately, the CPP application and its outcome will likely be produced. For one reason, in an LTD proceeding, the contract for benefits may provide the insurer with an offset for CPP Disability Benefits, and in a tort proceeding, CPP Disability Benefits are deductible from income loss claims.

This paper will examine some of the procedural considerations when addressing Canada Pension Plan Disability Benefits.  It will also offer some practical strategies and “case law 101” for applying the procedural rules in order to obtain a successful result for your client.

 

THE APPLICATION PROCESS

Once it has been established through medical evidence that your client is unlikely to return to work as a result of an entrenched physical and/or mental disability, it is appropriate to consider an application. In some cases, disability may arise immediately following a traumatic injury, such as paraplegia or quadriplegia.  Or, as in a chronic pain case, consider evaluating the merits of a CPP Disability Benefits application shortly after the 2-year mark.

To apply for CPP Disability Benefits, the Application Kit, which can be accessed electronically, must be completed and submitted to Service Canada. Upon receipt of the application, Service Canada will generally require approximately 4 months to process and review the application, except in circumstances where individuals are terminally ill. Thereafter, a decision letter is issued to the applicant, citing the reasons for approval or denial of the benefit.

If denied, the applicant’s first right to dispute is in the form of a Reconsideration. A Reconsideration must be filed within 90 days from the date of the decision letter. The Reconsideration involves a review of the application by other members of the department, and will consider additional materials and information submitted by the applicant or on behalf of the applicant. The Reconsideration can take several months to complete, the results of which are again communicated by decision letter.

To qualify for CPP Disability Benefits, it is necessary for an applicant to have made sufficient annual contributions to the Canada Pension Plan. Some applications may be denied on the basis that an individual has failed to make sufficient contributions to qualify for the benefit. This involves a technical and quantitative analysis.

This paper, however, will only address denials based on medical evidence.

 

APPEAL PROCESS

In circumstances where a claim for CPP Disability Benefits is denied following a Reconsideration, the next step is the filing of a Notice of Appeal with the Social Security Tribunal. You must ensure that the Social Security Tribunal receives the appeal within 90 calendar days of receipt of the Reconsideration decision from Human Resources and Skills Development Canada.

Newly introduced is the Social Security Tribunal, which is an administrative tribunal that inherited all appeals not heard by the Office of the Commissioner of Review Tribunals and Pension Appeals Board before April 1, 2013. The Social Security Tribunal is an administrative tribunal that was implemented as an impartial quasi-judicial appeals unit under the Employment Insurance Act, the Canada Pension Plan and the Old Age Security Act. As of April 1, 2013, the creation of the Social Security Tribunal replaces the Office of the Commissioner of Review Tribunals.

 

STATUTORY TEST

To better understand the framework in which CPP Disability Benefits are approved or denied, it is necessary to acquaint the reader with the applicable legislation. Under the Canada Pension Plan, R.S.C. 1985, c. C-8, disability is defined as follows:

42(2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and

(b) a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person — including a contributor referred to in subparagraph 44(1)(b)(ii) — be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.             

 

 

CASE LAW

In addition to the legislative parameters, in preparing for and evaluating the merits of an appeal, it is prudent to review the case law that serves to govern and influence the Tribunal’s decision.

Consider citing the following cases in opening or closing submissions:

 

Case

Reference

Summary

Villani v. The Attorney General of Canada

2001 FCA 248

Statutory Interpretation:

Every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best assures the attainment of its objectives. The legislation has a benevolent purpose and ought to be interpreted in a broad and generous manner with any doubt arising from the language in the legislation being resolved in favour of the claimant.

 

Defining Severe:

An analysis of the severe criterion must take into account the particular circumstances of an appellant including age, education level, language proficiency, and past work and life experience. There is a legislative intention to apply the test in the “real world” context.

 

Moore (Betty) v. MHRD

CP15717

Standard: The claimant must establish the claim on a balance of probabilities. That is, it must be more likely than not that the claimant meets the requirements. Proof beyond a reasonable doubt is not required.

MNHW v. McDonald

CP1527

Disability: The definition includes a disability resulting from a cumulative combination of both mental and physical aspects.

Carvery v. MHRD

CP18772

Gainful Employment: The average work week in Canada is 37 and 40 hours a week. Having capacity to work 14-16 hours per week at $8.40 per hour was not found to be gainful employment.

Inclima v. The Attorney General of Canada

2003 FCA 117

Mitigation: to establish a severe disability, the Appellant must not only show a serious health problem, but where there is evidence of work capacity, must also show efforts that obtaining and maintaining employment has been unsuccessful.

MHRD v. Mulek

CP4719

“It has been consistently held by this board that an applicant for a disability person is obligation to make all reasonable efforts to undertake and submit to programs and treatments recommended by the treating and consulting physicians. Only when those measures fail after reasonable attempts and efforts, can it be determined that the disability is severe as that term is defined.”

Leduc v. MNHW

CP1376

“The board is advised by medical authority that despite handicaps under which the appellant is suffering, there must exist the possibility that he might be able to pursue some unspecified form of gainful employment. In the abstract and theoretical sense, this might well be true. However, the appellant does not live in an abstract and theoretical world. He lives in a real world, peopled by real employers who are required to face up to the realities of commercial enterprise. The question is whether it is realistic to postulate that, given all the Appellant’s well-documented difficulties, any employer would even remotely consider engaging the appellant.”

MNHW v. Bilinski

CP1437

“Even allowing the possibility of light work…the limitations of the movements should render his employment, though possible by a philanthropic employer, not probable in the current modern world.”

 

THE HEART OF THE ISSUE: WHY CAN’T YOU WORK?

To prepare for an appeal hearing, a careful review of the medical reports is essential. This involves highlighting any and all key medical reports that touch on the issues of employability and earning capacity. However, as outlined in the case of Duncan v. MHRD, CP 9220 (PAB), presenting a compelling appeal will require focus on whether the whole of the evidence, including the oral evidence, indicates that the person suffers from a “severe and prolonged” disability.

As such, one of the primary elements for preparation is a proper and thorough briefing of the applicant. Whereas in some appeal hearings, counsel for the applicant is permitted to present evidence to the Tribunal in the form of a quasi Direct Examination, other appeal hearings will be conducted in the form of a question-answer led by the Tribunal panel members. Either way, the most critical question, in one form or another, will be “why can’t you work?” Ensure that your client is prepared to answer this question in a direct, concise and detailed manner that is consistent with the medical evidence. Credibility is essential.

 

THINK OUTSIDE THE BOX

Case law in the area of Canada Pension Plan Appeals emanates the theme real world context. Give life to your client’s appeal by filing documents such as pre-disability photographs, videos, and letters from colleagues, friends and family. Provide appropriate notice to the Tribunal, and present a character witness such as a spouse or former colleague.

Developing the character of your client, and reinforcing documentary and oral evidence with “real world” elements, can offer great depth to the appeal. Indeed, a successful appeal can provide an injured person with a degree of financial security, sometimes well before the conclusion of a related lawsuit. Each case turns on its facts, but practical and procedural preparation will allow both you and your client to deliver a compelling appeal. Good luck!

For the full article, click to download:
Addressing Canada Pension Plan Issues in Personal Injury Cases

(Adobe Acrobat [PDF] file)

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Mediation Strategies: Brief, Preparation, Opening and Tax
February, 01 2013
Author: Richard M. Bogoroch & Heidi Brown

As part of the OTLA Long Term Disability Conference in 2013, this article on mediation strategies was prepared. 

Slaying the LTD Dragon

By: Richard M. Bogoroch and Heidi R. Brown


Over 20 years ago, in response to an inefficient civil justice system, escalating legal fees, and long and excessive delays to reach trial, the concept of alternative dispute resolution was born. Instead of litigating matters, with its inherent uncertainty and runaway costs, a new approach was conceived. Building upon innovations undertaken in the United States, mediations of disputes were slowly introduced in the Province of Ontario. What was initially an exception has evolved into an accepted, admired, and, indeed celebrated feature of contemporary litigation in the Province of Ontario. Indeed, mediation is mandatory in Toronto, Ottawa, and Windsor. 

Click here to continue reading.

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Medical Negligence Claims Face Challenges
March, 05 2012
Author: Richard Bogoroch

Published in the 2013 Legal Resource Guide from Canadian Lawyer magazine

Litigating a medical negligence or malpractice claim is complex and risky. These lawsuits are vigorously defended and supported by the Canadian Medical Protective Association (CMPA), so it's essential to contact an experienced lawyer who specializes in medical negligence to prosecute your claim.


 

Medical Negligence Claims Face Challenges

 

Contact a lawyer promptly to protect your rights

You may have a claim for medical negligence if you have suffered damages as a result of a negligent act or omission by a medical practitioner.

Litigating a medical negligence or malpractice claim is complex and risky. These lawsuits are vigorously defended and supported by the Canadian Medical Protective Association (CMPA), so it's essential to contact an experienced lawyer who specializes in medical negligence to prosecute your claim.

Medical negligence claims are often difficult to prove and there are several obstacles to winning one.

If you do not commence your lawsuit for medical negligence within the appropriate time limit, you risk losing your right to recover any damages and your action will be statute barred. In most cases your claim must be started within two years from the date on which a reasonable person ought to have discovered her or her claim. You should seek legal advice in a medical negligence case as soon as you are aware of an injury, loss or damage. Therefore, it is important to contact a lawyer promptly to avoid missing the limitation period and to ensure your rights are protected.

A medical practitioner is not liable merely because he or she makes an error in judgment. For a mistake to be negligent, it must be proven that the medical practitioner fell below the standard of care expected of a reasonably competent medical practitioner. The court will consider what reasonable, prudent medical practitioners of a similar specialty would have done in similar circumstances. If the accepted standard of practice was not met, the medical practitioner will be found negligent. To prove this, your lawyer will retain other medical practitioners to testify as to what a "reasonable medical practitioner" would have done in the same situation.

The biggest challenge a plaintiff in a medical negligence case usually faces is proving causation, which requires the assistance of expert witnesses. It must be proven that the injuries you suffered were caused by the negligence of the medical practitioner.

In light of the challenges involved in a medical negligence lawsuit, it is important to investigate the case before proceeding with a lawsuit. Your lawyer must obtain all of your hospital and medical records so that a full picture of the circumstances of your care and treatment can be determined. Your lawyer will decide what medical and other experts should review these records in order to provide opinions with respect to whether there has been a breach of the standard of care and whether but for the breach your damages would not have occurred. Your lawyer will then review the medical opinions with you and advise you if your case is worth pursuing.

Bogoroch & Associates offers free consultations to medical negligence victims. We attempt to analyze your legal rights and discuss generally the issues involved in your case. If we agree to take on your case, it will be done on a contingency fee basis – which means we only get paid if we successfully resolve your case - either by out of court settlement of by trial.

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Expert Demonstrative Evidence
October, 30 2011
Author: Richard Bogoroch and Melanie Larock

Expert evidence is critical to the outcome of a personal injury case. As the reliance on expert witnesses in litigation increases, new and enhanced techniques are required to communicate complex issues to the trier of fact. Because expert testimony is often difficult to convey to a jury, demonstrative evidence is helpful to explain, illustrate or summarize the evidence of an expert to make it understandable and effective.


 

Expert Demonstrative Evidence

By Richard Bogoroch and Melanie Larock

October, 2010

Introduction

Since “seeing is believing” and demonstrative evidence appeals directly to the senses of the trier of fact, this kind of evidence is a persuasive tool to simplify the technical and legal issues and improve both juror comprehension and retention. Before allowing demonstrative evidence of an expert into evidence, the court must be satisfied that the opinion evidence of the expert is admissible. One of the goals of the amendments to Rule 53.03 of the Rules of Civil Procedure is to promote expert evidence that is fair, objective, and non-partisan.1 The new Rule 53.03 bears upon the admission of demonstrative evidence used by experts. Demonstrative evidence is inextricably linked to the testimony of the expert witness who authenticates the evidence and establishes its relevancy, accuracy, fairness and probative value.

Notes:

1Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 4.1.01, r. 53.03 as amended by O. Reg. 438/08, s. 8. ["Rules"].

For the full article, click to download:
Expert Demonstrative Evidence
(Adobe Acrobat [PDF] file - ~80K)


For the presentation notes, click to download:
Expert Demonstrative Evidence (presentation)
(Adobe Acrobat [PDF] file - ~1.4 Mb)

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Obtaining Court Approval of a Settlement Under Rule 7.08: What You Need to Know
May, 25 2011
Author: Heidi Brown

Settlement of personal injury claims on behalf of persons under disability has engendered confusion and uncertainty for personal injury lawyers. Counsel for the Plaintiff often negotiates what she is of the view is an excellent result on behalf of her client, however, when the settlement documentation required by Rule 7.08 of the Rules of Civil Procedure is submitted to the Court for approval, said approval is not always forthcoming.


 

Obtaining Court Approval of a Settlement Under Rule 7.08: What You Need to Know

By Heidi Brown

May 26, 2011

Introduction

Settlement of personal injury claims on behalf of persons under disability has engendered confusion and uncertainty for personal injury lawyers. Counsel for the Plaintiff often negotiates what she is of the view is an excellent result on behalf of her client, however, when the settlement documentation required by Rule 7.08 of the Rules of Civil Procedure1 is submitted to the Court for approval, said approval is not always forthcoming.

Court approval may be denied for several reasons which include:

  1. the Court is of the view that the quantum of the settlement is insufficient;
     
  2. the Court is concerned that there is insufficient evidence before it to approve the quantum of the settlement;
     
  3. the Court disagrees with counsel's analysis of liability, damages or litigation risk in determining the quantum of the settlement;
     
  4. the Court disapproves of the manner in which the settlement proceeds are to be paid to the person under disability (ie. inadequate structured settlement, risky management plan being advanced as opposed to a structured settlement, or the absence of a guardian of property or other authorized person to accept payments on behalf of the person under disability).

 

In most cases, the Court simply requests, by way of endorsement, additional information from counsel before approval can be forthcoming. Alternatively, the above issues can be resolved with the assistance of the Children’s Lawyer or Public Guardian and Trustee, if the Court requests a report under Rule 7.08(5) of the Rules of Civil Procedure.2

Most perplexing for Plaintiffs' counsel, however, is when the Court does not approve the settlement solely on account of the quantum of fees the solicitor is proposing to charge.

This paper will address the current state of the law on the issue of solicitors' fees in the context of settlements on behalf of persons under disability, and thereafter will set out practical strategies while drafting the requisite lawyer’s affidavit, to effectively and persuasively state the case for the solicitor's proposed fees.

Notes:
1 R.R.O. 1990, Reg. 194.
2 Ibid.


For the full article, click to download:
Obtaining Court Approval of a Settlement Under Rule 7.08: What You Need to Know
(Adobe Acrobat [PDF] file - ~50K)

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Cleaning Up: Claiming Housekeeping Inefficiency
May, 27 2010
Author: Richard Bogoroch and Sarah Ng

The right of an injured plaintiff to advance a claim for loss of housekeeping capacity is well established in Canadian law. In the Supreme Court of Canada decision of Peter v. Beblow, the Court affirmed that there is no logical reason to distinguish domestic services from other contributions. The Supreme Court recognized that household services are of significant value to the family of the injured party.


 

Cleaning Up: Claiming Housekeeping Inefficiency

By Richard Bogoroch and Sarah Ng

May 28, 2010

Introduction

Overview of Housekeeping Claims, The Pre-McIntyre Approach

The right of an injured plaintiff to advance a claim for loss of housekeeping capacity is well established in Canadian law. In the Supreme Court of Canada decision of Peter v. Beblow1, the Court affirmed that there is no logical reason to distinguish domestic services from other contributions. The Supreme Court recognized that household services are of significant value to the family of the injured party.

Although Peter v. Beblow is a trusts case, the decision is judicial recognition of the fact that unpaid work is a valuable commodity that can be quantified. This principle has extended into the realm of personal injury law where loss of housekeeping capacity is a head of damage routinely claimed by plaintiffs.

However, evaluating housekeeping losses in personal injury cases has not always been straightforward.

In the seminal 1991 decision of Fobel v. Dean 2, the Saskatechwan Court of Appeal examined the issue of quantification of housekeeping damages.

In Fobel, the Plaintiff was able to perform approximately 30% of her housekeeping responsibilities in the period before trial with “diminished efficiency, pain and discomfort.” The balance of her housekeeping tasks remained undone. The trial judge awarded non-pecuniary damages, which included damages for past loss of housekeeping.

The Court of Appeal in Fobel held that in the absence of replacement labour, it was incorrect to evaluate a plaintiff’s past loss of housekeeping capacity by reference to replacement value. Where there was no replacement labour, the loss was properly compensated as a component of general non-pecuniary damages. Furthermore, the pecuniary damage claim for future lost housekeeping was based on a replacement cost approach using a combination of the “substitute homemaker” and “catalogue of services” approach, which catalogues the plaintiff’s housekeeping functions and then allocates those functions between direct labour (such as cooking and cleaning) and household management. Each category was then quantified based on the fair market salary of each occupation and totalled to arrive at a weekly salary.

Since 1991, the Fobel case has been considered and applied in numerous cases in different provinces and has remained one of the leading cases in the area of loss of housekeeping capacity. However, the Fobel approach has been criticized as being “unnecessarily complex”.

Notes:
1 (1993), 101 D.L.R. (4th) 621 at pp. 647-8 [1993] 1 S.C.R. 980
2 (1991), 83 D.L.R. (4th) 385

For the full article, click to download:
Cleaning Up: Claiming Housekeeping Inefficiency
(Adobe Acrobat [PDF] file - ~50K)

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Five Essentials for Litigating Chronic Pain
September, 29 2009

As a personal injury practitioner handling chronic pain claims, it is important to understand the essential characteristics of chronic pain and fibromyalgia, and to appreciate that sufferers frequently present with psychological features. In addition, it is important to understand that inherent personality traits may also contribute to enhanced perception of pain and illness behaviour.


 

Know the Basics

Chronic pain symptoms are by and large, subjective, and as such, cannot generally be corroborated by objective findings on physical examination or imaging such as CT scan or MRI. There has been ongoing controversy in the medical community, in particular with regard to the legitimacy of fibromyalgia, largely due to the subjective experience of the complainants’ pain. Nonetheless, despite the ongoing controversy surrounding fibromyalgia, chronic fatigue and chronic pain sufferers are increasingly getting their proverbial “day in court” and are obtaining successful results from the judiciary.

As a personal injury practitioner handling chronic pain claims, it is important to understand the essential characteristics of chronic pain and fibromyalgia, and to appreciate that sufferers frequently present with psychological features. In addition, it is important to understand that inherent personality traits may also contribute to enhanced perception of pain and illness behaviour.

I have read the excellent paper prepared for this conference by Dr. Angela Mailis-Gagnon, Director of the Comprehensive Pain Program at the Toronto Western Hospital, which provides a useful synopsis of the basic concepts involved in understanding chronic pain. I urge you to read this paper and to keep it handy as a guidebook for understanding the litigants who present before our courts claiming to be chronic pain sufferers. In particular, I draw your attention to the section of Dr. Mailis-Gagnon’s report dealing with the DSM IV (Diagnostic and Statistical Manual of Mental Disorders, 4th edition) Classification of Chronic Pain Disorders. In my experience, the experts who tend to be accepted in court have extensive familiarity with the DSM IV and the 3 types of Pain Disorders recognized by the 2004 edition:

  1. Chronic Pain Disorder associated with a Medical Condition;
  2. Chronic Pain Disorder associated with a Medical Condition and Psychological Factors;
  3. Chronic Pain Disorder associated with Psychological Factors.


Dr. Mailis-Gagnon explains in her paper that the latter two types of Pain Disorders (Syndromes) feature psychological factors which are “considered important in the generation, maintenance and exacerbation of the pain.” In the third Pain Disorder listed above, Chronic Pain Disorder associated with Psychological Factors, the underlying disability is actually based on psychological factors.

As such, if you are acting on behalf of a Plaintiff with chronic pain, getting to know your client is essential to establishing a road map for your case.


For the full article, click to download:
Five Essentials for Litigating Chronic Pain
(Adobe Acrobat [PDF] file - ~50K)

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The Annotated Retainer - The Contingency Fee Retainer Agreement
April, 30 2009

This paper provides an annotated template for the contingency fee retainer agreement.


 

What we are retained to do

J. Doe & Associates are being retained by the client to provide the following services, namely, to represent the client in respect to injuries, losses and damages resulting from a medical malpractice which occurred on or about the ____ day of _______, 20___.

Annotation: The Solicitors Act requires a description of the “basic type and nature of the matter” to which the agreement relates (s. 2.2.).

In representing the client’s interest in respect to the above-noted matter, J. Doe & Associates will be incurring a significant amount of time and out-of-pocket expenses for and on the client’s behalf. In retaining the services of J. Doe & Associates, the client has the option of retaining the solicitors other than by way of a contingency fee agreement, including retaining the solicitors by way of an hourly rate retainer. An hourly rate retainer is a retainer whereby the solicitors charge the client for each hour or a portion thereof that they work on the client’s file at a specified hourly rate. Hourly rates may vary among solicitors and the client can speak with other solicitors to compare rates. Notwithstanding that the client has been advised of the hourly rates of J. Doe & Associates and that hourly rates may vary among solicitors and notwithstanding that the client can speak with other solicitors to compare rates, the client has chosen to retain J. Doe & Associates by way of a contingency fee agreement. The client acknowledges and understands that all usual protections and controls on retainers between a solicitor and client, as defined by the Law Society of Upper Canada and the Common Law, apply to this contingency fee agreement.


For the full article, click to download:
The Annotated Retainer - The Contingency Fee Retainer Agreement
(Adobe Acrobat [PDF] file - ~75K)

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The Great Divide: Some Issues to Consider from the Plaintiff's Perspective to Bridge the Gap Between Tort and Accident Benefits
February, 28 2009
Author: Heidi R. Brown

In 2008, significant developments in motor vehicle accident law have generated a great deal of “buzz” among those who practice motor vehicle accident litigation. The potential ramifications are significant, yet there remains a great deal of uncertainty as to how or whether they will impact on future cases and the manner in which we will handle them.


 

The Great Divide: Some Issues to Consider from the Plaintiff's Perspective to Bridge the Gap Between Tort and Accident Benefits

By Heidi R. Brown

February 16, 2009

Introduction

The year 2008 was truly extraordinary. We witnessed an extraordinary collapse of the global economy, extraordinary changes in the value of our dollar, an extraordinary proroguing of our federal parliament and the election of an extraordinary new leader south of the border. Although not nearly as extraordinary as the events that took place on the world stage, the year 2008 brought about some significant developments in motor vehicle accident law. These developments include:

a) dismissal by Divisional Court Justice Jane Ferguson in September 2008 of the defence’s leave to appeal application in Arts v. State Farm Insurance Co.1 thereby allowing to stand the decision of Superior Court Justice Robert MacKinnon that psychological/psychiatric impairments may be assigned a percentage rating to be combined with physical impairments for the purposes of calculating catastrophic impairment under criteria 2 (1)(f) of the SABS, affirming Mr. Justice Spiegel’s decision in Desbiens v. Mordini, [2004]O.J. No. 4735 (S.C.J.);


b) the April 2008 Court of Appeal decision in Monks v. ING Insurance Company of Canada2 permitting declaratory relief for future entitlement to goods and services outlined in a future plan of care when the insured can prove that the proposed items are reasonable and necessary, the case before the Court must be genuine and the declaration must be capable of having some practical effect in resolving issues in dispute. The Monks case further concludes that the material contribution test is alive and well in the statutory accident benefits context;

c) two Superior Court cases decided by Justice T.R. Lofchik in Cromwell V. Liberty Mutual Insurance Co.3 and Vanderkop v. Personal Insurance Co. of Canada4 essentially concluding that lump sum payments pursuant to a settlement of a long term disability claim not specifically broken down do not constitute “a payment under any income continuation plan” in accordance with section 7 of the SABS, and consequently need not be deducted from an income replacement benefit that may be ongoing.

These decisions have generated a great deal of “buzz” among those who practice motor vehicle accident litigation. The potential ramifications are significant, yet there remains a great deal of uncertainty as to how or whether they will impact on future cases and the manner in which we will handle them.

In this paper, I will attempt to apply the concepts we glean from these recent decisions to a specific fact pattern, in an effort to illustrate how they impact on tort and accident benefits, and the practical problems they present to us as practitioners.

Notes:
1 Arts (Litigation guardian of) v. State Farm Insurance Co. (2008), 91 O.R. (3d) 394
2 Monks v. ING Insurance Company of Canada, (2008), 235 O.A.C. 1
3 Cromwell v. Liberty Mutual Insurance Co. (2008) 89 O.R. (3d) 352
4 Vanderkop v. Personal Insurance Co. Of Canada [2008] O.J. no. 1937 currently under appeal

For the full article, click to download:
The Great Divide: Some Issues to Consider from the Plaintiff's Perspective to Bridge the Gap Between Tort and Accident Benefits
(Adobe Acrobat [PDF] file - ~90K)

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Costs: Making Claims and Maximizing Recovery
November, 14 2008
Author: Richard Bogoroch and Tripta Chandler

Costs are an often overlooked aspect of civil litigation until the time comes to negotiate settlement. However, there are many occasions during the course of litigation, from the time the lawsuit is commenced to the motions stage and during trial preparation, where it is important for the parties to consider the various costs provisions and their impact on the decisions made during the litigation process.


 

Costs: Making Claims and Maximizing Recovery

By Richard Bogoroch and Tripta Chandler

November 14, 2008

Introduction

Costs are an often overlooked aspect of civil litigation until the time comes to negotiate settlement. However, there are many occasions during the course of litigation, from the time the lawsuit is commenced to the motions stage and during trial preparation, where it is important for the parties to consider the various costs provisions and their impact on the decisions made during the litigation process.

It is not an understatement to state that the majority of the steps taken in a lawsuit can have costs consequences. The factors a court may take into consideration in awarding costs are broad and wideranging. Rule 57 of the Rules of Civil Procedure, in particular, grants the court broad discretion to consider the parties’ conduct in any of the steps of the litigation and to award or withhold costs based on whether the conduct of a party was, for example, frivolous, vexatious or had the effect of shortening or lengthening the proceeding. It is for this reason that it is essential to consider, at every stage of the litigation, your client’s exposure to costs when conceiving a litigation strategy.

This paper will deal with costs generally and how they can be claimed, as well as certain specific situations in which there are costs consequences to a particular course of action. Although the Rules of Civil Procedure establish a framework for costs, it should always be kept in mind that ultimately, the discretion of the court is paramount.


For the full article, click to download:
Costs: Making Claims and Maximizing Recovery
(Adobe Acrobat [PDF] file - ~35K)

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Dismissing the Jury: Insurers May Find Their Request for a Jury Set Aside by the Court
October, 24 2008
Author: Richard Bogoroch and Kate Cahill

This article, featured in The Lawyers Weekly, discusses how the Ontario Superior Court of Justice recently concluded that the province’s rules allowing judges to discharge juries in civil actions do not infringe the Charter.


 

Dismissing the jury: Insurers may find their request for a jury set aside by the court

By Richard Bogoroch and Kate Cahill

October 24, 2008

The Ontario Superior Court of Justice recently concluded that the province’s rules allowing judges to discharge juries in civil actions do not infringe the Charter.

In Legroulx v. Pitre, [2008] O.J. No. 443, Daniel Legroulx was involved in a motor vehicle accident on Sept. 1, 2000. On Oct. 5, 2000, he suffered complete and permanent paraplegia while engaging in a high school soccer practice. The plaintiffs claimed that the motor vehicle accident was the sole cause or, alternatively, materially contributed to Daniel Legroulx’s paralysis. They asked for $4,000,000 in damages.

At the outset of trial, counsel for the plaintiffs moved to discharge the jury on the grounds of complexity. Justice Power dismissed the plaintiffs’ motion without prejudice to their right to renew it later.

The plaintiffs then called three medical experts, a neuro-radiologist, a paediatric haematologist and a paediatric neurologist. Following this, they renewed their motion to have the jury dismissed.

At this point, Justice Power dismissed the jury, stating: “During the testimony of these experts I closely observed the jurors and at least some of the jurors left me with the strong impression that they were having difficulty with the evidence … I had a significant concern that justice would not be done between the parties unless the jury was struck. I concluded that the complexities of the case would not be solved by any instructions that I might contemporaneously or subsequently give to the jury.”

The trial then continued as a judge-alone trial. However, during the course of the trial, the parties settled the action. They did so on the condition that Justice Power make an order to hear a special case to decide whether Rule 47.02(2) (which permits a party to move to strike out a jury notice) and Rule 47.02(3) (which provides trial judges with discretion to try actions without juries) of Ontario’s Rules of Civil Procedure are constitutionally valid.

Justice Power made the order to hear the constitutional question, and the Ontario Trial Lawyers’ Association and the Advocates’ Society were granted leave to intervene. The Attorney General of Ontario was invited to participate in the argument of the special case, but declined to appear.

Although Justice Power recognized that the right to trial by jury is an important and substantive right and that a jury should not be discharged prematurely, he was not persuaded by the defendant’s argument that Rules 47.02(2) and (3) or the jurisprudence that has developed around them permitting a judge to discharge a jury in a civil action, either before or at trial, contravene the Charter.

Justice Power concluded that even if the rules infringed the Charter, the infringements are reasonably justified because they function to protect the right to a fair trial for all parties to a dispute.

The question of whether to move to strike a jury is always a difficult issue for counsel. In his reasons, Justice Power quotes findings made by Justice Coulter Osborne in his 2007 Civil Justice Reform Project:

“I recognize the unfortunate reality that insurers in most negligence actions require their counsel to deliver a jury notice. I refer to this as ‘unfortunate’ because one clear aim of the strategy is to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs.”

Justice Power also noted that there has been a sharp increase in the use of juries in motor vehicle accidents and that evidence suggests that this trend is a result of the greater use of juries by defendants whose defences are conducted by insurance companies and the apparent tendency of juries in Ontario to award smaller damages than judges.

When considering whether a jury should be discharged, counsel should refer to Cowles v. Balac, [2006] O.J. No. 4177 (C.A.), the leading Ontario authority on setting aside a jury notice.

If counsel are dealing with discharging a jury on the basis of the complexity of the evidence, the trial judge may adopt a “wait and see” approach, which means that the motion will have to be renewed after the introduction of evidence. If opposing counsel has refused to provide copies of medical reports and experts’ reports to the jurors, then there will be a stronger argument that the jury should be discharged. In Legroulx, Justice Power’s decision to discharge the jury was influenced by the fact that he was given copies of the expert reports, and the jurors were not.

Legroulx provides some needed clarity on how and why to dismiss juries in civil actions.

(Featured in The Lawyers Weekly, October 24, 2008)

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Winning the Fibromyalgia Case
November, 20 2007
Author: Richard Bogoroch

Few medical diagnoses have engendered as much controversy as fibromyalgia. Among doctors, lawyers and health care professionals, lines have been drawn as to the existence of this condition. As a lawyer who represents fibromyalgia survivors and their families, I can tell you that the legal and medical dispute is unhelpful. Fibromyalgia sufferers and their families live with its consequences every day. Lives and careers have been shattered and families disrupted because of fibromyalgia. There is no doubt that this condition exists, and there is no doubt that people who suffer from fibromyalgia are entitled to compensation and, in the context of disability claims, payment of disability benefits in accordance with the terms of the policy.


 

Winning the Fibromyalgia Case

by Richard Bogoroch

Few medical diagnoses have engendered as much controversy as fibromyalgia. Among doctors, lawyers and health care professionals, lines have been drawn as to the existence of this condition. As a lawyer who represents fibromyalgia survivors and their families, I can tell you that the legal and medical dispute is unhelpful. Fibromyalgia sufferers and their families live with its consequences every day. Lives and careers have been shattered and families disrupted because of fibromyalgia. There is no doubt that this condition exists, and there is no doubt that people who suffer from fibromyalgia are entitled to compensation and, in the context of disability claims, payment of disability benefits in accordance with the terms of the policy.

Fibromyalgia sufferers need to know that they are not alone, that there are lawyers that not only have experience in representing fibromyalgia sufferers, but are committed to seeing that justice is done. The purpose of this article is to inspire and empower those who are suffering from this terrible condition and to let them know how their claims for compensation can be won.

It has been said that litigation is "not a tea party." For that reason, a fibromyalgia sufferer must ensure not only that he or she is prepared to see the case to conclusion, but that his or her counsel is tenacious and will do what is necessary to see that justice is done.

There are three factors required to win the lawsuit: preparation, preparation and preparation. There is no substitute for the hard work and diligence required of counsel to ensure that the fibromyalgia sufferer is properly briefed for the litigation process, but also to ensure that the appropriate experts are employed to help educate the trier of fact (either judge or jury) about the nature of fibromyalgia and the effects on the fibromyalgia sufferer.

How is this accomplished? Case selection is obviously very important. The cases which have the greatest chance of success are those cases in which the Plaintiff (that is the person suing) has a good work history and is a credible historian about his or her past ailments and conditions and illnesses. Few people, especially fibromyalgia sufferers, have unblemished medical histories. Indeed, in the real world, very few people have had "pristine" medical histories. Most of us have had some ailment, condition, illness or disability at one point in time in our life. That does not mean to say that just because someone has a pre-history of disability or periods of time off work that they are not to be believed; all it means is that the evidence must be documented, collected and disclosed. Credibility problems arise when the trier of fact comes to the conclusion that the Plaintiff has not been "up front" about his or her disability. For that matter, it is essential that the lawyer taking on the case do a complete investigation about the client's medical history and obtain clinical notes and records from the treating physicians.

It is a truism to state that any lawsuit or any claim for compensation involves an intrusion into the privacy of the fibromyalgia sufferer. Unfortunately, if one is suing or claiming compensation, one's life becomes to a certain extent an "open book" and pre-existing medical records are producible. The reason is to safeguard the integrity of the system and to ensure that people who claim are legitimate, and one way to test that is by requesting and obtaining clinical notes and records from the treating physician.

Once that is obtained and appropriate disclosure made, one would think that the insurer would pay the claim. Because there are many doctors today who don't believe in fibromyalgia and deny its very existence and legitimacy, insurers rely on these doctors to deny payment of disability benefits due and owing. It is in that case where we become involved.

We examine the claim, we carefully interview the client and we obtain all of the records. We will then, as a general rule, retain an expert, someone who is skilled in fibromyalgia and knowledgeable about the medical literature that has developed, to examine our client and prepare a report regarding the medical condition of the client. Our client will be sent to these physicians for the purpose of assessment, not treatment, and the report will be used in the lawsuit that we commence on behalf of our client.

Case preparation, attention to detail and selection of the right expert are essential ingredients in winning the fibromyalgia case. I prepare my cases from the time the client comes in the door. Our trial preparation begins immediately. Most cases do indeed resolve before trial but in order to achieve the best result, you not only sometimes have to proceed to trial but you must also prepare the case as if it is going to trial, and that is what we do. We have found over the years that by thorough preparation, attention to detail and a commitment to client service, we are able to achieve just results. Fibromyalgia sufferers and their families must know that there are lawyers who are prepared to fight for the rights of fibromyalgia sufferers and their families and will work hard to ensure that a just result is achieved.

[Ed. Note: Mr. Bogoroch has moved and started his own firm, Bogoroch & Associates, with a support staff of 11 people, and aims to provide fibromyalgia and chronic pain sufferers with the best possible service. They do not charge until the case is concluded, and handle cases throughout Ontario.]

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Accident Benefits: Recent Changes and Developments
October, 18 2007
Author: Richard Bogoroch, Melinda Baxter and Tripta Chandler

This paper reviews the framework for acting for persons under disability and to assist counsel and the insurer in understanding the myriad rules and procedures which inform and govern this aspect of the law.


 

Accident Benefits: Recent Changes and Developments

By Richard Bogoroch, Melinda Baxter and Tripta Chandler

June 18, 2007

October 18, 2007

Approval of Accident Benefit Claims for Parties Under Disability: The Important First Steps and Ensuring an Expedited Conclusion

Introduction

Personal injury lawyers routinely represent clients as against their accident benefits insurer, who do not have the requisite capacity to instruct counsel, whether due to serious and permanent physical or psychological injuries they have sustained or due to the fact that they are a minor, and cannot represent themselves. The implications to an accident benefits case are far reaching; however, it is apparent that their impact at both the onset and conclusion of a case is of utmost importance.

While an individual can be appointed to represent an applicant during the dispute resolution process by an adjudicator at the Financial Services Commission of Ontario (hereinafter referred to as “FSCO”), without the appointment of a litigation guardian or an established Power of Attorney at the outset of a case, this often results in delays in the provision of required and urgently needed accident benefits. Similarly, at the end of the case, when settlement is reached, an established litigation guardian or Power of Attorney is highly effective in the resolution of a file, as court approval is necessary for the party under disability, and the lack of an established litigation guardian or Power of Attorney often results in unnecessary delays.


For the full article, click to download:
Accident Benefits: Recent Changes and Developments
(Adobe Acrobat [PDF] file - ~110K)

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The Latest on Chronic Fatigue Syndrome and Fibromyalgia: Best Practices for Successful Management and Litigation of Chronic Fatigue and Fibromyalgia Claims
June, 18 2007
Author: Richard Bogoroch

Cases involving pain-associated disorders, whether in the context of a tort action, accident benefits claim or long-term disability action, present difficult and unique challenges, not only because of the complexities of this medical condition but also because of the need to explain how an injury that can be assessed subjectively, and without objective medical evidence, can render an individual vocationally and/or functionally disabled.


 

The Latest on Chronic Fatigue Syndrome and Fibromyalgia: Best Practices for Successful Management and Litigation of Chronic Fatigue and Fibromyalgia Claims

By Richard Bogoroch

June 18, 2007

Excerpt

Judicial Treatment of Pain-Associated Disorders

Cases involving pain-associated disorders, whether in the context of a tort action, accident benefits claim or long-term disability action, present difficult and unique challenges, not only because of the complexities of this medical condition but also because of the need to explain how an injury that can be assessed subjectively, and without objective medical evidence, can render an individual vocationally and/or functionally disabled.

Over the last decade, judicial decisions have evolved to recognize pain-associated disorders as disabilities. However, there are still judges and adjudicators that look at these types of disorders with skepticism.

In Swain v. Moore Estate3, the plaintiff suffered from extensive soft tissue injuries, chronic pain, post-traumatic stress, fibromyalgia, anxiety and depression as a result of a motor vehicle accident. After the accident, the plaintiff, despite numerous attempts was unable to continue working in the family business and had difficulty coping with her activities of daily living. Ultimately, Justice Patterson concluded that her injuries were catastrophic and that she was totally disabled. The plaintiff’s damages were assessed at $100,000.00.

In Jones v. Prudential Group Assurance Co. of England (Canada)4, Justice Cusinato commented upon the expert evidence presented and states that “Fibromyalgia is classified as a syndrome, because science has not yet perfected an objective diagnosis for the disease.”

In the FSCO decision, Quattrocchi v. State Farm5, Arbitrator Makepeace reviewed and highlighted some general principles that have emerged in chronic pain cases. She notes the following:

  1. Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, credibility is paramount. In considering the insured person’s credibility all circumstances must be considered, including the consistency of their complaints and apparent functional level;
  2. In order to prove entitlement to weekly benefits, an insured must show that his/her disability resulted from the accident. The accident need not be the only cause, but must be a significant or material contributing factor. Therefore, even if the insured person’s own attitudes or inaction has delayed his/her recovery, he/she may still be entitled to benefits, if the accident remains the more significant factor;
  3. It is not sufficient to dismiss a chronic pain case on the basis that returning to work would not harm the applicant.



Notes:
3 [2000] O.J. No. 1628 (S.C.J.).
4 [1999] O.J. No. 2862 at para. 72 (S.C.J.).
5 (OIC A-006854), September 29, 1997.

For the full article, click to download:
The Latest on Chronic Fatigue Syndrome and Fibromyalgia: Best Practices for Successful Management and Litigation of Chronic Fatigue and Fibromyalgia Claims
(Adobe Acrobat [PDF] file - ~135K)

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Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation
February, 27 2007
Author: Richard Bogoroch and Kate Cahill

This paper reviews a recent case from British Columbia in which the cap on general damages was unsuccessfully challenged and will then consider some recent case law assessing future pecuniary losses. It then turns to a consideration of the court’s approach to assessing damages for family members of individuals who have been injured or killed. Finally, this paper briefly reviews developments in the area of leading evidence to establish damages.


 

Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation

By Richard Bogoroch and Kate Cahill

February 27, 2007

Introduction

A discussion of damages would be incomplete without a reference to the three Supreme Court of Canada cases, known as the “trilogy,” consisting of Arnold v. Teno1, Thornton v. School District No. 572, and Andrews v. Grand & Toy3. All of these cases involved catastrophically injured Plaintiffs who faced a lifetime of dependency on others. The trilogy established the principles applicable to the assessment of damages in personal injury cases and, in particular, set out various “heads of damages” under which an injured person is entitled to recover compensation, as follows:

    1. Non-pecuniary Loss (i.e. compensation for physical and mental pain and suffering).
       
    2. Pecuniary Loss:
      1. Compensation for past and future care costs; and
      2. Compensation for past and future loss of income.


The Andrews case is notable for the establishment of an “upper limit” or “cap” on non-pecuniary general damages of $100,000.00 to be adjusted according to inflation. As a result of this cap, general damages for pain and suffering have slowly risen over the last 29 years. Today, a catastrophically injured plaintiff would be entitled to a maximum of approximately $311,000.00 (as at January 2007) for his or her pain and suffering.

In contrast, over the last 29 years, there have been significant developments in the assessment of damages for pecuniary loss, with the categories of damages expanding and becoming more clearly defined to reflect the general principles established in Andrews; namely, that future care is of paramount importance and that a plaintiff’s pecuniary claim includes all reasonable sums of money that will assist with putting the plaintiff back into the position in which he or she would have been had the injury not occurred.


Notes:
1 [1978] 2 S.C.R. 287.
2 [1978] 2 S.C.R. 267.
3 2 S.C.R. 229 [hereinafter “Andrews”].


For the full article, click to download:
Are Damages Awards on the Rise? Learning Cold Hard Lessons from Recent Negligence-Based Litigation
(Adobe Acrobat [PDF] file - ~125K)

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Practical Strategies for Winning Auto Cases - Mary Carter and Pierringer Agreements
January, 19 2007
Author: Richard Bogoroch and Melinda Baxter

Agreements are powerful and extraordinary tools to achieve settlement. In recent years, with complex multi-party litigation becoming increasingly common, these agreements have performed an indispensable role in the pursuit of justice for injured victims by guaranteeing a minimum result, reducing the expense of litigation and shifting the burden to the non-contracting defendants.


 

Practical Strategies for Winning Auto Cases - Mary Carter and Pierringer Agreements: Powerful and Strategic Settlement Tools

By Richard Bogoroch and Melinda Baxter

January 19, 2007

Introduction

Mary Carter and Pierringer Agreements are powerful and extraordinary tools to achieve settlement. In recent years, with complex multi-party litigation becoming increasingly common, these agreements have performed an indispensable role in the pursuit of justice for injured victims by guaranteeing a minimum result, reducing the expense of litigation and shifting the burden to the non-contracting defendants. This paper and the accompanying materials are intended to assist in the drafting and implementation of Mary Carter and Pierringer Agreements.

Mary Carter Agreements

The potential for the use of a Mary Carter Agreement arises when a plaintiff has sued at least two parties as joint and several tortfeasors and where at least one of the defendants wants to settle with the plaintiff and the other does not.


Mary Carter Agreements are limited only by counsel’s imagination and the exigencies of the case. Mary Carter Agreements owe their genesis to the Florida case of Booth v Mary Carter Paint Co. In the United States, a typical Mary Carter Agreement has these features:1

  1. The Plaintiff is guaranteed a minimum recovery and the Defendant’s exposure is capped at the agreed-upon amount of settlement;
  2. The contracting Defendant remains in the litigation;
  3. The settling Defendant’s liability decreases in direct proportion to any increase in the nonsettling Defendant’s liability; and
  4. The terms of the Agreement are to be kept secret from the non-settling parties.2


Notes:
1 202 So. 2d 8 (Fla. 1967).
2 Wee Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725. - (p. 7 of the Quicklaw version included in the 2 materials)


For the full article, click to download:
Practical Strategies for Winning Auto Cases - Mary Carter and Pierringer Agreements
(Adobe Acrobat [PDF] file - ~85K)

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Understanding and Managing Cases Involving Chronic Pain Syndrome, Chronic Fatigue Syndrome and Fibromyalgia: The Plaintiff's Perspective
November, 08 2006
Author: Richard Bogoroch and Melinda Baxter

The subject of pain remains an elusive and controversial one, largely due to its subjective experience, which poses difficulty in determining its etiology and for diagnosis. Chronic nonmalignant pain is more difficult to understand, assess and treat than acute pain or cancer pain.


 

Understanding and Managing Cases Involving Chronic Pain Syndrome, Chronic Fatigue Syndrome and Fibromyalgia: The Plaintiff's Perspective

By Richard Bogoroch and Melinda Baxter

November 8, 2006

Introduction

The world is full of suffering, it is also full of overcoming it.
        Helen Keller

The greatest evil is physical pain.
        St. Augustine

The subject of pain remains an elusive and controversial one, largely due to its subjective experience, which poses difficulty in determining its etiology and for diagnosis. Chronic nonmalignant pain is more difficult to understand, assess and treat than acute pain or cancer pain. The reality is that most of these patients cannot be cured, and some remain completely intractable to traditional medical treatment. Those that suffer from chronic pain syndrome, fibromyalgia and chronic fatigue syndrome should be seen regularly for trials of any reasonable, safe approach, for psychological support and provided coping strategies that may make life more tolerable.

A diagnosis of a pain-associated disorder includes components of both a physical and emotional or psychological nature. What is of primary importance, and often the most significant barrier, is the largely subjective experience of the disorder. This poses a difficulty for both the medical and legal professions when faced with the difficult task of determining the extent, duration and effect of chronic pain on the Plaintiff. Despite these difficulties, however, there have been numerous developments, both in the medical and legal communities in understanding pain associated disorders including Chronic Pain Syndrome, Fibromyalgia and Chronic Fatigue Syndrome.



For the full article, click to download:
Understanding and Managing Cases Involving Chronic Pain Syndrome, Chronic Fatigue Syndrome and Fibromyalgia: The Plaintiff's Perspective
(Adobe Acrobat [PDF] file - ~125K)

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Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You
April, 27 2006
Author: Heidi Brown

Personal injury lawyers routinely act on behalf of clients who have sustained serious physical and psychological injuries. Often, from the first day you meet a client, it is clear that he does not have the requisite capacity to instruct you in the litigation. In other cases, a client’s incapacity to instruct counsel only becomes apparent over time as the lawsuit progresses


 

Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You

By Heidi Brown

April 27, 2006

Introduction

Personal injury lawyers routinely act on behalf of clients who have sustained serious physical and psychological injuries. Often, from the first day you meet a client, it is clear that he does not have the requisite capacity to instruct you in the litigation. In other cases, a client’s incapacity to instruct counsel only becomes apparent over time as the lawsuit progresses. When a client is incapable of instructing counsel ab initio or when the client is a minor, it is most often a family member who retains the lawyer on behalf of the injured plaintiff, and is later named in the action as litigation guardian on behalf of that plaintiff. If a client subsequently becomes incapable of instructing counsel, a litigation guardian can be appointed at any time in accordance with Rule 7 of the Rules of Civil Procedure.

The role of the litigation guardian, of course, is to instruct counsel on behalf of the incapable plaintiff. In most cases that do not proceed to trial, the litigation guardian usually heeds your good counsel, provides you with instructions to settle the case, and the Court ultimately approves the settlement achieved on behalf of the plaintiff. Things become considerably more complicated, however, when the litigation guardian chooses not to accept your advice, and instructs you to take steps that in your view, are not in the best interests of the incapable client. Similarly, during the course of the litigation, you may become aware of facts and/or information about the litigation guardian that lead you to believe that he/she is not acting in the best interests of the injured plaintiff. The problem will also manifest itself when your injured plaintiff does not have a litigation guardian, gives you instructions that are not in his best interests, and refuses to listen to your advice.

Consider the following scenarios that frequently emerge in a personal injury practice:

Scenario 1 In 2002, 9 year old Liza was a passenger in a vehicle that was involved in a serious motor vehicle accident. Liza sustained a moderate brain injury and is now cognitively impaired. This will impact on her future employability. Her mother, Judy, is her litigation guardian. The case has settled in 2006 subject to Court approval for a substantial sum. Despite your advice to place the bulk of the settlement funds in a structured settlement, Judy refuses to give you instructions to structure any portion of the funds.

Scenario 2 Ricky is 26 years old and was catastrophically injured as a result of a car accident when he was 24. His father, Ozzie, was also injured in the accident and sustained a broken arm. Ricky had no power of attorney at the time of the accident, and since his release from hospital, he resides with his father, Ozzie, who is currently unemployed. Ozzie retained you to act on his own behalf and on behalf of Ricky for both the tort and accident benefit cases. Ozzie is acting as Ricky’s litigation guardian. Ozzie provides attendant care to Ricky and receives money from the accident benefit insurer for performing these services. Ricky also receives income replacement benefits from the accident benefit insurer. You learn from Ozzie’s ex-wife Harriet, that Ozzie is using Ricky’s money to pay off his own creditors. Harriet lives in Calgary. Ozzie has also recently purchased a new sports car. You confront Ozzie about your concerns, and he denies any wrongdoing.

Scenario 3 You act for Sarah who suffers from chronic pain, fibromyalgia and severe depression and anxiety. She also has a history of bipolar disorder. She is suing her long term disability carrier for non-payment of benefits. During the course of the litigation, Sarah becomes increasingly depressed and stops taking her psychiatric medication. On more than one occasion she has come to your office smelling like alcohol. After examinations for discovery, you receive a reasonable offer to settle from the insurer. You meet with Sarah in order to obtain her instructions. Sarah behaves irrationally, will not provide any instructions and says her case is worth twenty times what is being offered. She then says she will never accept any offers from the insurer as her punitive damages alone are worth ten million dollars. She says that if you can’t understand her point of view, she wants another lawyer.

What should you do when your client or her litigation guardian turns on you?

In order to properly answer this question, it is important to appreciate the role of a litigation guardian in the litigation process and the legal definition of incapacity. The following is a brief overview:

Incapacity and the Litigation Guardian

The law presumes that an adult is capable of making his or her own decisions with respect to all important aspects of daily life. The law includes a presumption that an adult has capacity to instruct a lawyer. A lawyer must be certain that her client sufficiently understands:

  1. the nature of the retainer;
  2. the circumstances of the case; and
  3. the consequences and ramifications of the instructions given.

 

A client and a lawyer may disagree, and a lawyer may believe that a client is making unwise choices. However, if the client is sufficiently informed and capable of instructing counsel, the client’s wishes must be respected. The challenge arises once you are well into the litigation process and you conclude that your client no longer has the requisite capacity to instruct you.


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Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You
(Adobe Acrobat [PDF] file - ~120K)

 

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The ABCs of Family Law Act Claims and Their Preparation for Trial in Medical Malpractice Actions
January, 27 2006
Author: Richard Bogoroch and Melinda Baxter

Principally, the key factors in the assessment of Family Law Act claims in a personal injury action, and for the purpose of this paper, a medical malpractice action, are the extent and duration of the loss, and the valuation of associated losses and expenses, applied within the framework of suitably adjusted amounts for inflation. Pecuniary and nonpecuniary losses may be claimed. Over the years the quantum of awards for loss of care, guidance and companionship have tended to be modest, however, the impact of juries and their continued persistence in awarding significant amounts under this head of damage is effecting the range of awards in a positive direction.


 

The ABCs of Family Law Act Claims and their Preparation for Trial in Medical Malpractice Actions

By Richard Bogoroch and Melinda Baxter

January 27, 2006

Introduction

Principally, the key factors in the assessment of Family Law Act claims in a personal injury action, and for the purpose of this paper, a medical malpractice action, are the extent and duration of the loss, and the valuation of associated losses and expenses, applied within the framework of suitably adjusted amounts for inflation. Pecuniary and nonpecuniary losses may be claimed. Over the years the quantum of awards for loss of care, guidance and companionship have tended to be modest, however, the impact of juries and their continued persistence in awarding significant amounts under this head of damage is effecting the range of awards in a positive direction.
Claims by family members resulting from the injury or death of the victim are governed by the Family Law Act, R.S.O. 1990 c.F.3 (hereinafter “FLA”).

General Principles

Section 61 of the FLA, specifically subsections 61(1) and 61 (2)(e) govern who is entitled to an award of damages and the basis for that award. Section 61(1) identifies that spouses, children, grandchildren, parents, grandparents, brothers and sisters can be awarded damages pursuant to an FLA claim. These limitations were broadened in the Court’s decision in Miron v. Trudel1, where it was held that the legislation has been extended to include unmarried life-partners.

Generally speaking, the requisite family relationship must have existed at the time of the incident. However, there are cases in which the claimant was not an eligible FLA claimant at the time of the incident, but became so afterwards. These decisions are based on the grounds that the FLA should be interpreted liberally so as to give the effect intended, ie. encouraging and strengthening the role of family in society2. For example, in Espinosa v. Garisto3, the Court concluded that a child en ventre sa mere at the time the principal cause of action arose could bring a claim pursuant to section 61 of the FLA.

If a family member meets the requirements of subsection 61(1); pursuant to subsection 61(2)(e) they can sue for the loss of “guidance, care and companionship” which they may reasonably have been expected to receive from the injured party had the injury not occurred. Essentially, subsection 61(2)(e) is available whenever the claimant is psychologically distressed over a loss of quality in family relations4. It is important to note that pursuant to subsection 61(3) of the FLA, the victim’s contributory negligence or failure to mitigate can effect recovery5. Ultimately, the damage amounts awarded are conventional, subject to the evidence advanced and the impact of inflation. If there is no proof of loss then an award will not be granted6, and where the loss appears small damages will be correspondingly modest7. However, where evidence warrants it, damages can be quite substantial.

As discussed, FLA claims may be brought where fatal injuries have occurred. A claim may be brought where the death is caused by the fault or neglect of another. Damages are assessed by reference to loss with a focus on what the claimants’ position would have been but for the death and to restore that position so far as possible.

An action undertaken pursuant to the FLA is derivative in nature or dependant on an action that may be brought by the injured person or his/her estate. The award of damages for an FLA claim are based on the compensatory principle and include the duty to mitigate. Some cases have defined these principles. For example, in Levesque v. Lipskie8, it was concluded that the duty to mitigate has not been extended to the requirement that the claimant seek employment to compensate for income loss following the death of a family member, if the claimant was not employed outside the home or a source of income prior to the incident. Additionally, as identified in Macartney v. Warner9, the Ontario Court of Appeal, in a motor vehicle accident case, concluded that the FLA claimants could maintain an action for loss of income resulting from the death of their son, in association with their claim for nervous shock.

Notes:
1 (1995), 124 D.L.R. (4th) 693 (S.C.C.)
2Mason v. Peters (1982), 139 D.L.R. (3d) 104 (Ont. C.A.)
3 (1986), 38 A.C.W.S. (2d) 155 (Ont. H.C.)
4 Schmidt v. Sharpe (1983), 27 C.C.L.T. 1 (Ont. H.C.)
5 Brain v. Mador (1985), 32 C.C.L.T. 157 (Ont. C.A.)
6 Moore v. Cooper Canada Ltd. (1990), 2 C.C.L.T. (2d) 57 (Ont. H.C.)
7 Heney v. Ontario Superintendent of Insurance (1983), 1 C.C.L.I. 68 (Ont. H.C.)
8 (1991), 80 D.L.R. (4th) 243 (Ont. C.A.)
9 (2000), 46 O.R. (3d) 641 (Ont. C.A.)


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The ABCs of Family Law Act Claims and their Preparation for Trial in Medical Malpractice Actions
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Advocating for the Brain-Injured Individual
November, 02 2005
Author: Richard Bogoroch

Subtitled “A Step-by-Step Approach to Navigating the Insurance Maze and to Obtaining Justice for the Brain-Injured Survivor and His or Her Family”, this paper offers Richard Bogoroch’s observations, impressions, and experience in seeking justice for brain-injured individuals and their families. The paper focuses both on the tort system and on obtaining and accessing statutory accident benefits.


 

Advocating for the Brain-Injured Individual

A Step-by-Step Approach to Navigating the Insurance Maze and to Obtaining Justice for the Brain-Injured Survivor and His or Her Family

By Richard Bogoroch

November 2, 2005

It is a great honour to represent brain-injured individuals and their families and to help them live a better life. Catastrophic injury cases and serious brain injury cases, in particular, present unique challenges to the legal, medical, and rehabilitation team. As a lawyer with over 20 years’ experience in representing brain-injured individuals and their families, I hope that my comments will lend a helping hand to those who care for a brain-injured individual. In offering you comments today, I approach my task humbly and with a full realization that no one, not any lawyer, case manager, physician, occupational therapist, or physiotherapist will ever know what a brain-injured victim and their family experiences or can ever endure what they endure. All we can do is strive to emulate their courage.

What follows below are my observations, impressions, and experience in seeking justice for brain-injured individuals and their families. My topic will focus both on the tort system and on obtaining and accessing statutory accident benefits.

The key questions that family members of brain-injured individuals have are as follows:

  1. What compensation am I entitled to and how long will it take to settle my case?
  2. What funds are available as the tort case makes its way through the litigation process? (e.g. How can we live on $400.00 a week and how can our legal team improve our quality of life?)
  3. What is the role of the lawyer? (i.e. empowering the brain-injured individual and his family)
  4. What accident benefits are we entitled to?



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Advocating for the Brain-Injured Individual
(Adobe Acrobat [PDF] file - ~90K)

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Common Motions
October, 21 2005
Author: Richard Bogoroch and Tripta Chandler

In civil litigation, there are a number of motions which counsel and law clerks can expect to regularly encounter. Preparation for these motions is usually within the purview of the law clerk, who is generally responsible for all correspondence leading up to the motion as well as the preliminary drafting of the motion material itself. In view of the law clerk’s important role in the motions process, a thorough understanding of the rules governing motions, as well as the principles behind some of the most common motions, is essential to proper preparation and drafting of motion materials.


 

Common Motions

By Richard Bogoroch and Tripta Chandler*

October 21, 2005

Introduction

In civil litigation, there are a number of motions which counsel and law clerks can expect to regularly encounter. Preparation for these motions is usually within the purview of the law clerk, who is generally responsible for all correspondence leading up to the motion as well as the preliminary drafting of the motion material itself. In view of the law clerk’s important role in the motions process, a thorough understanding of the rules governing motions, as well as the principles behind some of the most common motions, is essential to proper preparation and drafting of motion materials. In addition, thorough preparation for a motion can often make the difference between a motion’s success or failure, or the difference between being granted, or denied, an award of costs.

The most critical aspect of a motion is the foundation, or grounds, for the motion. The process of establishing grounds for a motion often commences weeks or months prior to the actual motion date and generally takes the form of letters of request, telephone calls and investigation. Much of this process can be performed or initiated by law clerks. In this paper, we will review the general principles underlying motion preparation and we will review a number of common motions, including motions for productions, motions to amend pleadings and motions dealing with issues regarding service. Although these motions are often brought by either plaintiff’s or defence counsel, the motions will be discussed primarily from the plaintiff’s perspective and from the point of view of the moving party. Copies of precedent motion materials have been attached to this paper and may serve as an illustrative guide for preparing motion material.

Notes:
* I gratefully acknowledge the substantial contribution that Tripta S. Chandler has made to this paper.


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Common Motions
(Adobe Acrobat [PDF] file - ~105K)

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Strategies for Effective Cross-Examination
September, 23 2005
Author: Richard Bogoroch

Cross-examining an expert witness is one of the great challenges of trial advocacy. It is more often done poorly than well. Why is that? Perhaps because counsel expect to take the expert head-on in his or her field and expect to turn the witness. Counsel ought not to use cross-examination as an opportunity to highlight his or her intellectual prowess against the expert. The expert knows far more than you will ever know about the topic and you will be made to look foolish and, more importantly, you could cause irreparable damage to your case. The key to an expert cross-examination is no different from any cross-examination, that is, preparation, preparation, and more preparation.


 

Strategies for Effective Cross-Examination

By Richard Bogoroch

September 23, 2005

Expert Evidence: When Admissible22

Four criteria known as the “Mohan test”23 must be satisfied in order for expert opinion evidence to be admissible.

  1. Necessity in assisting the trier of fact.
  2. Relevance.
  3. A properly qualified expert.
  4. The absence of any exclusionary rule that would prohibit the admission of the opinion.

 

Of relevance to our discussion is the third criteria: a properly qualified expert.
Expertise is determined during the qualification phase of the examination-in-chief of the expert, and is “a modest status that is achieved when the expert possesses special knowledge and experience going beyond that of the trier of fact.”24 Although the expert may have scant experience in a particular area, this limitation will effect the weight of the evidence but not its admissibility. In this regard, R. v. Marquard25 is highly important. In Marquard, doctors who had no expertise in burns were allowed to give evidence that a child’s injury was caused by a contact rather than a flame burn26. Moreover, the “expertise” rule was not offended by allowing a plastic surgeon who was not an expert in child abuse cases to testify that the passivity of children to treatment is a characteristic common to abused children27.Marquard altered the landscape for the reception of opinion evidence of experts who testify as to matters beyond their expertise. As Mr. Justice Griffith’s has noted28.

“The test of expertness is the skill in the field in which the expert opinion is sought. The court will not be overly concerned with whether the skill of the witness has been derived from specific studies or by practical training. That is, it does not matter whether the expertise has been acquired through training in the field, studies or by practical observation.”

Notes:
22 David Paciocco and Lee Stuesser, The Law of Evidence, 3 ed., Irwin Law, 2002, at pg. 161
23 (1994) 2 S.C.R. 9, Paciocco and Stuesser, at p. 170
24 Ibid, pg. 170
25(1993) 4 S.C.R. 223
26 Paciocco and Stuesser, at p. 170
27 Ibid, pg. 170
28 Quoted in the Litigator’s Guide to Expert Witnesses by Mark J. Freiman and Mark L. Berenblut, (1997) Canada Law Book, at pg. 32


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Strategies for Effective Cross-Examination
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Strategies, Approaches and Considerations for a Statement of Claim
June, 13 2005
Author: Richard Bogoroch and Emma Holland

Pleadings are an art form. As Plaintiff’s counsel, the Statement of Claim allows you an opportunity to frame the story your client wishes to tell. Done well, a Statement of Claim acts as an important tool of persuasion and establishes the theme of the case. In drafting a Statement of Claim, the Plaintiff is challenged with balancing the need to plead broadly to allow for any changes in the sequence of events or facts unknown at the time of issuance, while at the same time, pleading with enough specificity to establish the cause of action.


 

Strategies, Approaches and Considerations for a Statement of Claim

By Richard Bogoroch and Emma Holland *

June 13, 2005

Pleadings are an art form. As Plaintiff’s counsel, the Statement of Claim allows you an opportunity to frame the story your client wishes to tell. Done well, a Statement of Claim acts as an important tool of persuasion and establishes the theme of the case.

In drafting a Statement of Claim, the Plaintiff is challenged with balancing the need to plead broadly to allow for any changes in the sequence of events or facts unknown at the time of issuance, while at the same time, pleading with enough specificity to establish the cause of action.

The first step in drafting a Statement of Claim is to ensure that you have correctly identified all of the relevant parties, both Plaintiffs and Defendants. As Plaintiff’s counsel, you will have to consider whether family members should be added to the claim as Family Law Act1claimants, with consideration given to the applicable statutory deductions. Where a minor Plaintiff is asserting claims, it is also necessary to ensure that the Litigation Guardian has been appropriately identified in the style of cause.

In determining which parties to identify as the appropriate Defendants in an action, it is wise to err on the side of caution in naming any and all parties who may ultimately be found to be responsible for the proposed claim. Often in a medical malpractice action, the expiry of a limitation period is approaching and counsel must issue the Notice of Action and/or Statement of Claim without receiving all of the relevant documentation needed to fully investigate the claim. In such cases, it is necessary to name as Defendants all primary medical personnel who participated in the alleged negligent treatment, along with additional, yet to be identified Defendants (i.e. “Dr. John Doe” and/or “Nurse Jane Doe”). In doing so, the applicable limitation periods may be protected and the Plaintiff is able to assert the right of discovery over more parties, adverse in interest, who may be able to offer further insight into the alleged negligence.2 It is, however, essential to proceed to discovery only after an investigation has been conducted and only after counsel is in receipt of an expert report favourable to his case.

In many cases, it will also be necessary to plead inconsistent allegations in order to assert multiple causes of action and/or assert the same allegations of negligence against different Defendants when responsibility for the negligence remains unclear. Pleading “in the alternative” is permitted under the Rules of Civil Procedure so long as this inconsistency is acknowledged in the Statement of Claim.”3

Notes:
* Richard Bogoroch would like to thank Emma Holland for her substantial and invaluable contribution to the writing of this paper.

1R.S.O. 1990, c. F. 3, as amended.
2Rule 31.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
3Rule 25.06(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.


For the full article, click to download:
Strategies, Approaches and Considerations for a Statement of Claim
(Adobe Acrobat [PDF] file - ~80K)

See also:

Precedent Statement of Claim A - Long Term Disability (LTD)
(Adobe Acrobat [PDF] file - ~60K)

Precedent Statement of Claim B - Motor Vehicle Accident (MVA)
(Adobe Acrobat [PDF] file - ~60K)

Precedent Statement of Claim C - Medical Malpractice
(Adobe Acrobat [PDF] file - ~90K)

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Cross-Examination: Emerge Intact
May, 27 2005
Author: Richard Bogoroch

The role of cross-examination is to weaken or discredit the testimony of the opposing witness and to obtain from that witness testimony favourable to your case. How can this be accomplished?


 

Cross-Examination - Emerge Intact

By Richard Bogoroch

May 27, 2005

“You will cross-examine the other side’s witness only to the extent necessary to secure the information supporting the argument that you have planned in advance to make in summation about that witness. When you have secured the necessary information, what do you do? The most important word in a trial lawyer’s vocabulary is four letters long: s-t-o-p, stop, stop! When things are going great – stop! When things are going not so great – stop! When you fumble or fail – stop! stop! stop! I put it to you that no trial lawyer in the history of the common-law has ever made a mistake by stopping but frequently you make a mistake by not stopping.”1

The late, great Irving Younger who taught and wrote about advocacy, gave this sage advice 23 years ago at the first advocacy symposium held to commemorate the 150th anniversary of Osgoode Hall. His advice has, of course, stood the test of time and his words should be copied and put in every lawyer’s trial notebook.
The topic I have been asked to talk about, “Cross-Examination – Emerge Intact,” is simpler to write about and talk about than to actually put into practice. Cross-examination remains among the most difficult aspects of advocacy and, in my experience, is more often done poorly than well. During the limited time that I have to speak to you today, I thought it would be useful to set out some rules to assist you to better prepare for cross-examination and allow you to emerge, if not totally unscathed, than with fewer life-threatening injuries.

The role of cross-examination is to weaken or discredit the testimony of the opposing witness and to obtain from that witness testimony favourable to your case. How can this be accomplished?

Irving Younger enunciated a number of rules for effective cross-examination, some of which I have reproduced below: 2

  1. “Be brief. Unless you are Clarence Darrow, your cross-examination should be a commando raid, not the invasion of Normandy.”3 Just make two to three points. You must view the jury’s head as a particularly small cup,4 which once overfilled with information, spills its contents or “runneth-over”. The goal is to persuade. A jury cannot be persuaded if there is too much information to absorb. If they cannot remember what you have told them, you are in trouble.
     
  2. Ask short questions and use plain words.
    Do not say “I suggest to you, that on the day in question, you were operating your motor vehicle without due care and attention.” Rather say, “I suggest to you that you weren’t paying attention when you were driving your car.”
     
  3. Only ask leading questions. As Younger said, “Cross-examination is an aria sung by the lawyer interrupted only by an occasional monosyllable from the witness”.5 You put words in people’s mouths. You make the witness say what you want him to say. Herewith a Younger melody:6

    Q.: “Sir, did you get out of bed at nine in the morning?”7
    A.: “Yes.”
    Q.: “By 10:00, were you dressed?”
    A.: “Yes.”
    Q.: “Did you then go down the street?”
    A.: “Yes.”
    Q.: “And the first place you went to was the supermarket. Isn’t that so?”
    A.: “Yep.”
    Q.: “And you went directly to the fresh fruit counter?”
    A.: “Yes.”
    Q.: “And there you selected one dozen ripe California oranges, did you not?”
    A.: “Yes.”
    Q.: “You put them in a bag?”
    A.: “Yes.”
    Q.: “And there you stood in line waiting to pay for those oranges, didn’t you?”
    A.: “Yes.”
    Q.: “And as you stood in line, you looked out a plate glass window at the street, didn’t you?”
    A.: “Yes.”
    Q.: “And there on the street you saw an octopus crawling out of a manhole?”
    A.: “Yes.”

    Stop and say thank you.

 

Notes:
1 Reprinted from Irving Younger, page 234: Advocacy. A symposium presented by the Canadian Bar Association – Ontario in collaboration with the Law Society of Upper Canada celebrating the 150 Anniversary of Osgoode Hall, 1982. Throughout this paper, I have quoted liberally from the Younger article “Impeachment”, pages 229-244.
Younger, p. 235
3 Ibid.
4 Ibid.
5 Ibid., page 237
6 Ibid.
7 Ibid.

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Cross-Examination: Emerge Intact
(Adobe Acrobat [PDF] file - ~110K)

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Support Offered For Fibromyalgia
May, 13 2005
Author: John Stewart, Staff

Lawyer Richard Bogoroch, who will speak at the next MFS support group session May 24, has successfully fought a number of civil cases for fibromyalgia syndrome (FMS) and chronic pain patients against insurance companies over the past decade. “Nothing shows up on an MRI or on an X-ray, so it’s essentially a rheumatalogical diagnosis. That’s why there’s controversy,” he said.


 

Support offered for fibromyalgia

by John Stewart, Staff
The Mississauga News
Friday, May 13, 2005

Some days Susan Monaco can’t even get out of bed.

The 50-year-old Mississaugan is one of a million Canadians, mostly women, who suffer from fibromyalgia syndrome (FMS), a disease that causes severe muscular pain and fatigue.

Most frustrating for sufferers is that, on the outside, they look fine.

“The problem is that we look healthy,” said Monaco, who heads a local support group for sufferers that meets the last Tuesday of every month at 7:30 p.m. at the Loblaws in the Heartland Centre at McLaughlin Rd. and Matheson Blvd.

“Sometimes even your family doesn’t believe you,” said Monaco.

May 12 is designated Fibromyalgia Awareness Day in Canada.

Asked to described what it feels like to have FMS, the local resident said, “It’s widespread pain, anywhere and everywhere.”

The disease must be diagnosed by a rheumatologist who finds 11 to 18 “trigger points” in the body. When pressed, the result is excruciating pain.

Like many sufferers, Monaco had trouble working after being diagnosed in 1986. Eventually, the bank she worked at tired of her frequent absences and offered her a package, which she accepted. She is now on a disability pension.

Lawyer Richard Bogoroch, who will speak at the next MFS support group session May 24, has successfully fought a number of civil cases for FMS and chronic pain patients against insurance companies over the past decade.

“Nothing shows up on an MRI or on an X-ray, so it’s essentially a rheumatalogical diagnosis. That’s why there’s controversy,” he said.

A landmark ruling by Canada’s Supreme Court in 2005 recognizing chronic pain cases was a major step forward.

While there’s no cure, FMS sufferers can get some relief. That’s one of the reasons for the support group, said Monaco.

Reprinted with permission from The Mississauga News.

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Bill 198 Brings Significant Changes to Automobile Insurance Claims
March, 25 2005
Author: Richard M. Bogoroch and Tripta S. Chandler

In October 2003, the Ontario government passed Bill 198, significantly changing automobile insurance claims. In particular, Bill 198 raised the threshold for non-pecuniary loss claims in tort … While the new threshold permits insurers to attempt to deny more claims for non-pecuniary losses, once the appropriate experts are marshalled, causation is established and the impact of the accident on the plaintiff’s life has been fully explored, the Regulation may have little practical effect, other than to increase the number of ‘threshold motions’. Until the Courts consider the new threshold, its impact will not be known.


 

Bill 198 brings significant changes to automobile insurance claims

While the new threshold permits insurers to attempt to deny more claims for non-pecuniary losses … the regulation may have little practical effect other than to increase the number of “threshold motions.”

by Richard M. Bogoroch and Tripta S. Chandler
The Lawyers Weekly
March 25, 2005


Richard M. Bogoroch In October 2003, the Ontario government passed Bill 198, significantly changing automobile insurance claims. In particular, Bill 198 raised the threshold for non-pecuniary loss claims in tort.

The threshold rule has existed in various incarnations since the implementation of the Ontario Motorist Protection Plan (“OMPP”), on June 22, 1990 and limits claims by imposing a standard of severity of injury to be met for a plaintiff to be entitled to non-pecuniary (general) damages.

Ontario Regulation 381/03 modified the threshold for general damages claims for accidents after October 1, 2003. Although the wording of the threshold test has changed, the essential elements remain the same. However, instead of leaving the interpretation of the elements of the test to the Courts, the legislation defines them and introduces new evidentiary requirements. Further, it confuses the former distinction between the threshold test and the test for loss of income by making the inability to work a condition of almost all general damages claims.

Tripta S. Chandler Under Bill 198, a “permanent serious impairment” is one that substantially interferes with the person's ability to continue her usual employment or to continue training for a career or substantially interferes with most of her usual activities of daily living, considering her age. An “important function” is one that is necessary to perform the essential tasks of the person’s employment, to continue training for a career, or to provide for her own care, or important to her usual activities of daily living, considering her age. A “permanent impairment” is one that has been continuous, is not expected to substantially improve, meets the criteria for “permanent serious impairment” and is expected to continue without substantial improvement when sustained by persons in similar circumstances.

In addition, a plaintiff must adduce evidence from a qualified physician explaining the nature of the impairment, its permanence, the specific function that is impaired and the importance of that function and establishing a causal link between the injuries and the accident. Additional evidence is also required to corroborate the change in function.

The new legislation measures a plaintiff’s entitlement to general damages by her ability to work or care for herself. However, it ignores other significant impairments that may be equally important to those who do not fit within the traditional work model: for example, those who are not employed outside the home, or whose ability to work is not compromised, but have suffered reduced enjoyment of life or undergone extensive medical procedures. Seriously injured plaintiffs, including retirees, homemakers, stay-at-home parents, students and children may have difficulty meeting the threshold. The legislation suggests that, unless a plaintiff is unable to work, his claim will not ‘cross’ the threshold.

The reference to impairment of a plaintiff’s activities of daily living, “considering his age”, is vague and uncertain. The legislation fails to address degenerative changes which may not immediately interfere with a plaintiff’s activities but may worsen with age. Further, it is not clear whether one must consider only those activities the plaintiff performed prior to the accident, or whether one may consider future plans (e.g., marriage or child rearing) which might have been contemplated?

Further, the requirement that the impairment would be expected to continue without substantial improvement when sustained by persons in similar circumstances attempts to impose a wholly inappropriate element of ‘objectivity’. Aside from the practical difficulties of locating such individuals, there are no criteria for identifying them. The term “similar circumstances”, is so vague as to be utterly impractical and is useless as an indicator of the severity of an injury. The legislation fails to consider factors such as pre-existing vulnerabilities, personality type, background and social supports which may affect recovery. General damages are intended to compensate for loss of an individual’s enjoyment of life, amenities of life and quality of life. The introduction of an ‘objective’ component based on the reaction of a theoretical individual in “similar circumstances” is wholly inappropriate and impossible to apply in any sensible way.

While the new threshold permits insurers to attempt to deny more claims for non-pecuniary losses, once the appropriate experts are marshalled, causation is established and the impact of the accident on the plaintiff’s life has been fully explored, the Regulation may have little practical effect, other than to increase the number of ‘threshold motions’. Until the Courts consider the new threshold, its impact will not be known.

However, reviewing Court decisions under previous legislation may assist in determining how Courts will interpret the new threshold. In Meyer v Bright, the Court of Appeal stated that the threshold test cannot be considered using objective criteria, but must be decided on individual facts, and held that the potential impact of an injury on others is irrelevant. The Courts have consistently applied Meyer in determining whether an individual’s impairments ‘cross’ the threshold.

Historically, Courts have distinguished between a plaintiff’s ability to work and the threshold and have accepted general damages claims advanced by plaintiffs who are not employed, including elderly or previously disabled plaintiffs and unpaid caregivers. Since the imposition of the OMPP threshold, Courts have taken a liberal, fact-specific approach. Whether this will continue under Bill 198 remains to be seen, but plaintiffs’ counsel have ample grounds to promote the fact-specific test heretofore supported by Courts.

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Damages for Emotional Distress
February, 24 2005
Author: Richard Bogoroch

This paper was presented as part of the Canadian Institute program entitled “Litigating Personal Injury Damages”. The claims for emotional distress are among the most challenging and difficult for the litigator. Emotional distress refers to mental or psychological trauma and can be occasioned as a result of tortious or non-tortious conduct. This paper focuses on claims for emotional distress occasioned by the negligence of others.


 

Damages for Emotional Distress

By Richard Bogoroch

February 24, 2005

I. Introduction

The claims for emotional distress are among the most challenging and difficult for the litigator. Emotional distress refers to mental or psychological trauma and can be occasioned as a result of tortious or non-tortious conduct. This paper, however, will focus on claims for emotional distress occasioned by the negligence of others1.
Personal injury claims in which the injuries are objective are relatively easy to resolve. The injury is objective, it is visible, and it is easily understood by a jury. Emotional distress claims on the other hand are quite different. They are hard to understand and even more difficult to explain. Psychological and emotional trauma from an accident results in depression, anxiety, stress and great sadness and causes or contributes to the development of psychiatric or psychological disorder. In these circumstances, plaintiff’s counsel faces the daunting task of persuading a jury that his/her client merits compensation and that these injuries are real, significant and permanent.

The aim of this paper is to discuss claims for emotional distress and to articulate strategies and tactics for plaintiff’s counsel to achieve justice for their clients.

II. Claims For Emotional Distress: Origins

Courts have awarded damages for emotional distress as far back as 1897 in the famous case of Wilkinson v Downton2 which concerned a practical joke gone awry. In Wilkinson the Defendant, as a joke, told the plaintiff that her husband had been severely injured in an accident causing her shock and resulting in a period of incapacity3.
In Wilkinson, Mr. Justice Wright enunciated the principle “that if a person wilfully does an act, calculated to cause harm to another, and thereby infringes his legal right to personal safety, and in consequence causes physical harm including mental distress, a cause of action arises in the evidence of lawful justification for the act”4. What is noteworthy about Wilkinson is that this statement of principle was made well before the Court created the tort of negligent infliction of mental distress5.

With the rapid industrialization of Great Britain and North America in the late 19th and early 20th centuries, the development of psychoanalysis and psychiatry and the experience of two world wars, medical science began examining critically the consequence of emotional distress and psychological injury as a result of a traumatic event. War experiences, in particular, have provided fertile ground for the study of emotional disturbances and disorders. Emotional disorders resulting from war, have been described as “battle or flight fatigue, shell shock, neurasthenia, war neurosis, combat exhaustion and post-traumatic stress disorder6”.

Notes:
1 I wish to thank my associates Mr. Cass Litman and Ms. Tripta Chandler for their assistance in the preparation of this paper.
2 [1897] 2 Q.B. 57
3 Fleming, Law of Torts, 9 Edition, p. 38; Linden, Canadian Tort Law, 7 ed., p. 54.
4 Fleming, p. 38.
5 Ibid.
6 Hoffman, B., Rochon, J., Terry J. & Thorsen A. “The Emotional Consequences of Personal Injury” 2nd ed., Butterworth 2001, at p.13 (This textbook is quoted frequently in this paper and for the sake of convenience it will be referred to as Hoffman, et al. &3147;The Emotional Consequences of Personal Injury.”)


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Damages for Emotional Distress
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Preliminary Requirements under Bill 198: The Plaintiff's Perspective
February, 14 2005

This paper was presented as part of the Advocates’ Society’s program entitled “Hurricane Season in Auto Insurance: Practical Strategies to Ensure your Backyard is not a Disaster Area”. Bill 198 has and will continue to dramatically alter the landscape of motor vehicle accident litigation and has impacted on both tort and accident benefits claims, both by imposing new time requirements applicable to statutory accident benefits claims and by narrowing the threshold for non-pecuniary damage claims in tort.


 

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Complex Issues in Tort Litigation – Update on Damages
October, 22 2004
Author: Richard Bogoroch

Prepared as a companion piece to the Complex Issues in Tort Litigation seminar Richard Bogoroch chaired for the Osgoode Professional Development Program, this paper discusses the series of three Supreme Court of Canada cases (known as the “trilogy”) which have provided a baseline for the assessment of personal injury damages for more than twenty-five years. Perhaps the most significant contribution of the trilogy, consisting of Teno v Arnold, Thornton v School District No. 57 and Andrews v Grand & Toy, is the establishment of an “upper limit” or “cap” for non-pecuniary general damages.


Complex Issues in Tort Litigation – Update on Damages

By Richard Bogoroch

October 22, 2004

Introduction

A discussion of damages would be incomplete without a reference to the series of three Supreme Court of Canada cases (known as the “trilogy”) which have provided a baseline for the assessment of personal injury damages for more than twenty-five years. Perhaps the most significant contribution of the trilogy, consisting of Teno v Arnold1, Thornton v School District No. 572 and Andrews v Grand & Toy3, is the establishment of an “upper limit” or “cap” for non-pecuniary general damages.
Mr. Justice Dickson, who gave the majority opinion in Andrews v Grand & Toy, put forward the following rationale for the “cap” or “upper limit”:

“There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical one and policy exercise more than a legal or logical one. The award must be fair and reas5onable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional4.”

Mr. Justice Spence, who authored the majority opinion in Teno v Arnold, echoed these sentiments when he stated that:

“There remains the assessment of the quantum of non-pecuniary damages. These damages are spoken of as ‘compensation’ for pain and suffering, loss of amenities of life, loss of expectation of life – a grant of largely subjective considerations the very naming of which indicates the impossibility of precise assessments.

The real difficulty is that an award of non-pecuniary damages cannot be ‘compensation’. There is simply no equation between paralysed limbs and/or injured brain and dollars. The award is not reparative, there can be no restoration of the lost function5.”

In his paper entitled, Special and General Damages Update6, presented at the Law Society of Upper Canada lectures held on June 11 and 12, 1998, Mr. Roderic G. Ferguson, Q.C., states that the trilogy was initially regarded with great alarm by the Bar, especially the Plaintiffs’ Bar. He comments that with the passing of time, however, thoughtful lawyers began to shift focus and many now regard the trilogy as having revitalized the personal injury damages practice. In Mr. Ferguson’s view, counsel began to see that the real message of the trilogy was not that general damages should be “fair” but that special damages (pecuniary losses) should be assessed in a manner that is “full”.

In his paper, Roderic Ferguson Q.C. also refers to another reaction of lawyers to the “cap”. He describes this reaction as “innovative thinking in transforming non-pecuniary heads of damages into pecuniary ones”. Into this category he places claims for loss of competitive advantage, loss of homemaking, the loss of shared family income and the “Lost Years” claim7. After an introduction of the concept of the “Lost Years” and its development in case law, we turn to a significant recent decision of the Ontario Superior Court of Justice (confirmed by the Court of Appeal), in Crawford v. Penney, which provides further insight into the various facets of a complex damages award where there has been a catastrophic injury. The significant and reasoned approach to damages in Crawford v Penney8 stands in stark contrast to the approach to awards in fatal accident cases where the Court continues to struggle with the value to be accorded for the loss of a loved one.

Notes:
* I acknowledge, with thanks, the substantial contribution of Ms. L. Goldstein and Ms. E. Holland in the preparation of this paper.

1 [1978] 2 S.C.R. 287
2[1978] 2 S.C.R. 267
3 [1978] 2 S.C.R. 229
4 Supra p.261
5 Supra p.332
6 R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions
7 R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions at p.20-8
8 Crawford (Litigation guardian of) v. Penney, [2003] O.J. No. 89 (S.C.J.), aff'd, [2004] O.J. No. 3669 (C.A.).


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Complex Issues in Tort Litigation – Update on Damages
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Managing the Plaintiff's Chronic Pain, Fibromyalgia and Chronic Fatigue Case
May, 18 2004
Author: Richard Bogoroch and Tripta Chandler

Chronic pain, fibromyalgia and chronic fatigue cases present unique challenges for plaintiff’s counsel whose task it is to prove disability, whether within the context of a tort or statutory accident benefits case or when claiming entitlement to long-term disability benefits. The primary symptoms associated with these conditions are pain and fatigue. These symptoms are largely subjective experiences and, as such, the management of cases involving plaintiffs who suffer from these conditions pose difficulty for personal injury practitioners accustomed to relying upon medical assessments to determine pain and quantify damages.


 

Managing the Plaintiff's Chronic Pain, Fibromyalgia and Chronic Fatigue Case

By Richard Bogoroch and Tripta Chandler

May 18, 2004

Introduction

Chronic pain, fibromyalgia and chronic fatigue cases present unique challenges for plaintiff’s counsel whose task it is to prove disability, whether within the context of a tort or statutory accident benefits case or when claiming entitlement to long-term disability benefits. The primary symptoms associated with these conditions are pain and fatigue. These symptoms are largely subjective experiences and, as such, the management of cases involving plaintiffs who suffer from these conditions pose difficulty for personal injury practitioners accustomed to relying upon medical assessments to determine pain and quantify damages.
The difficulties inherent in these cases are the result of several factors: (1) widespread skepticism of the existence of these conditions within the medical community; (2) onset of severe and disabling symptoms even following a relatively minor traumatic incident; and (3) the absence of “objective” physical findings to substantiate the plaintiff’s symptoms and resultant disability.

The challenge posed to plaintiff’s counsel is to develop the plaintiff’s case using highly qualified and experienced experts and to present the case in a manner which demonstrates powerfully and convincingly the plaintiff’s disability. To do so, plaintiff’s counsel must understand the nature of these conditions and marshall the evidence necessary to establish the legitimacy of the plaintiff’s condition. Further, counsel must be aware of the challenges to be faced and must be able to neutralize the impact of the defence experts and, ultimately, to persuade the trier of fact to award the plaintiff fair compensation for his or her losses.

In this paper, approaches to chronic pain, fibromyalgia and chronic fatigue cases will be discussed from the perspective of a plaintiff in a tort case arising out of a motor vehicle accident.

In a motor vehicle accident case, the difficulties in proving disability are further complicated by issues of causation. Individuals who develop chronic pain, fibromyalgia or chronic fatigue following motor vehicle accidents are frequently involved in relatively minor collisions with limited property damage. Further, their “objective” injuries are often limited to soft-tissue or WAD injuries. In addition to marshalling expert evidence which is objective and persuasive, the challenge posed to plaintiff’s counsel is to create a historical framework, based on the plaintiff’s own pre-accident history, in which the plaintiff’s pre-accident qualifications, achievements and work history are invoked to build a framework for establishing credibility.


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Mediating and Settling Claims for Damages
February, 26 2004
Author: Richard Bogoroch

Mediation is the most effective means of resolving a dispute and enjoys wide popularity among the Bench, the Bar and litigants. The long delays and costs which are part and parcel of litigation are avoided by a successful mediation. This paper provides observations and comments formed over the course of my experience in mediating cases.


 

Mediating and Settling Claims for Damages

By Richard Bogoroch

February 26, 2004

Mediations

“Happy are they who maintain justice and do righteousness at all times.” Psalm 106:3

Mediation is the most effective means of resolving a dispute and enjoys wide popularity among the Bench, the Bar and litigants. The long delays and costs which are part and parcel of litigation are avoided by a successful mediation. What follows below are some observations and comments formed over the course of my experience in mediating cases.

Up until 1990, mediation was an exotic and rare adjunct to litigation. There were no mediation courses to speak of in Ontario and few lawyers were skilled in mediation techniques. Learning from the American experience and concerned about the rising costs of claims, the insurance industry and the Plaintiff’s Bar embraced mediation as a new way of resolving claims and as a way to ease the stress and strain of litigation. In recent years, the quality of advocacy, written and oral, has increased substantially. But effective mediation can only be accomplished if the parties, both the insurance company and the plaintiff’s counsel, are prepared for the process.

Preparing for Mediation

Preparation, preparation and more preparation is indispensable for an effective mediation. It is advisable to meet with your clients about one week before the scheduled mediation to review the mediation summary, to discuss strategy and to give your client an assessment of the value of his or her claim. In my experience, mediations are not successful when clients have unrealistic expectations, expectations removed from the reality of the litigation.
During the mediation briefing, it is helpful to review with your client what the mediation process is all about. In our office, the client is advised of the date of the mediation months before. Each client is provided with a written summary describing the mediation process, how long the mediation will take or the length of the mediation and what to expect during the mediation. We also let our client know that there will be lulls during the course of the day and we encourage them to bring books, magazines or “downtime” material to keep them occupied.

During the mediation briefing, we review with our clients how damages are calculated by the courts. We discuss the “cap” on general damages and the principles involved in assessing claims for future economic loss (loss of income; loss of earning capacity; loss of competitive advantage). We also discuss the strengths and weaknesses of their case and stress upon them that a mediation is about compromise and, that if they want to persuade the other side that they are wrong, the mediation will not succeed. We also review with the client what he or she will be asked at the mediation.

In most cases, it is important for the insurance adjuster to meet the client. Mediation is sometimes the only time when the insurance adjuster, or claims examiner, has an opportunity to meet the plaintiff. It is important to humanize the plaintiff. It is also important that the plaintiff express to the claims examiner or adjuster, what he or she has endured as a result of the accident.


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Mediating and Settling Claims for Damages
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Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation
December, 02 2003
Author: Richard Bogoroch and Leanne Goldstein

For most women, the birth process, although difficult, is an exciting and life-changing experience. The emergence of a healthy baby after many hours of intense labour is truly a miraculous event. For some, however, the experience can be extremely frightening particularly when complications arise. One such complication is shoulder dystocia which, if improperly managed, can have disastrous consequences. This paper discusses what this can mean from a medical malpractice standpoint.


Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation

By Richard Bogoroch and Leanne Goldstein

December 2, 2003

1. Introduction

In Kungl v. Fallis1, Justice Callaghan made the following comment:

Birth is a very traumatic event. It is dangerous for the baby. The birth process, even under optimal conditions, is potentially a traumatic crippling event for the baby.

For most women, the birth process, although difficult, is an exciting and life-changing experience. The emergence of a healthy baby after many hours of intense labour is truly a miraculous event. For some, however, the experience can be extremely frightening particularly when complications arise. One such complication is shoulder dystocia which, if improperly managed, can have disastrous consequences.

2. What is Shoulder Dystocia?

Shoulder dystocia occurs when the shoulders of the fetus become trapped behind the mother’s pubic bone or pelvic inlet following delivery of the head.2 Improper management of shoulder dystocia can have disastrous consequences for the mother and the fetus. Some of the complications that can arise from shoulder dystocia include, brachial plexus injury3, erbs palsy4, Klumpke’s palsy5, clavicular or humeral fractures, fetal asphyxia, fetal death or meconium aspiration.6

3. Medical Malpractice

In a medical malpractice action, the plaintiff must prove that the defendants failed to exercise the reasonable degree of skill and knowledge and the reasonable degree of care expected of a normal, prudent physician of the same experience and standing.
The defendant’s conduct is to be judged in light of the knowledge that ought to have been reasonably possessed at the time of the alleged acts of negligence7. Medical science is a constantly developing and evolving field of practice and the courts have accordingly held that, a defendant is not to be judged with the benefit of hindsight but in light of the prevailing standards of professional knowledge at the material time.8

If a defendant physician holds him or herself out as a specialist, possessing special knowledge or expertise in a specific field, a higher degree of skill may be required of that defendant physician.9 An obstetrician may therefore be held to a different standard than a family physician with respect to the management of pregnancy and subsequent delivery of the newborn infant.


Notes:
1 Kungl v. Fallis, [1989] O.J. No. 15
2 Sturdee, D., Otal K. and Keane D., Yearbook of Obstetrics & Gynecology, Volume 9. 2001 Royal College of O & G Press, London.
3 Brachial palsy is a paralysis or weakness of the arm caused by damage to the brachial plexus. The brachial plexus is the network of spinal nerves (from the lower neck and upper shoulder) that supply the arm, forearm, and hand with movement and sensation. In a brachial plexus injury generally all five nerves of the brachial plexus are implicated resulting in paralysis of the entire arm.
(http://www.nlm.nih.gov/medlineplus/ency/article/002239.htm)
4 Erb's palsy is a paralysis of the fifth and sixth cervical nerves (the upper brachial plexus) which usually affects the upper arm and rotation of the lower arm.
(http://www.nlm.nih.gov/medlineplus/ency/article/001395.htm)
5Klumpke palsy is a paralysis of the seventh and eighth cervical and first thoracic nerves (lower brachial plexus) which usually affects the hand.
(http://www.nlm.nih.gov/medlineplus/ency/article/001395.htm)
6 Meconium is the medical term for the first feces of the newborn. Aspiration occurs when the newborn inhales the meconium mixed with amniotic fluid either in the uterus or just after delivery.
(http://www.nlm.nih.gov/medlineplus/ency/article/001596.htm)
7 ter Neuzen v. Korn, (1995) 3 S.C.R. 675 at 696-7
Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.)
9 Crits and Crits v. Sylvester et. al (1956) 1, D.L.R. (2d) 502 (Ont. C.A. ), aff'd (1956), 5 D.L.R. (2d) 601, [1956] S.C.R. 1991 (S.C.C.)


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Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation
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Understanding and Managing the Increase in Chronic Claims and Newly Classified Disabilities
October, 22 2003
Author: Richard Bogoroch and Leanne Goldstein

This paper discusses how even though the subject of pain remains an elusive and controversial one, there has been a growing recognition in recent years of pain-associated conditions such as Chronic Pain, Fibromyalgia and Chronic Fatigue Syndrome. The paper observes that in recent years, our legal system has moved towards encouraging and facilitating early resolution of cases which may develop as a result of the claimant's involvement in an accident or as a result of an injury.


 

Understanding and Managing the Increase in Chronic Claims and Newly Classified Disabilities

By Richard Bogoroch and Leanne Goldstein

October 22, 2003

Introduction

In 1924, Emily Dickinson1 wrote the following of pain:

PAIN has an element of blank;
It cannot recollect
When it began, or if there were
A day when it was not.

It has no future but itself,
Its infinite realms contain
Its past, enlightened to perceive
New periods of pain.

For both medical science and the legal profession, the subject of pain remains an elusive and controversial one. Pain has been defined by the International Association for the Study of Pain (“IASP”)2 as “an unpleasant sensory and emotional experience which is primarily associated with tissue damage or described in terms of tissue damage, or both.”

What can be extrapolated from this definition is that pain is comprised of both physical and emotional components. What complicates things further, is that the perception of pain remains largely a subjective experience. This poses a difficulty for the medical profession when faced with the prospect of measuring pain and determining its etiology. This, in turn, poses a difficulty for those in the legal profession who rely upon these medical assessments in order to determine causation and quantify damages.

Despite these difficulties and although there remains significant controversy, there have been numerous developments, both in medical science and in our law, in the form of recognizing pain associated conditions and disorders and their effects on an individual's ability to function in the work place and to perform his or her activities of normal life. Some of the pain associated conditions and disorders that the medical and legal profession have grappled with in recent years are Chronic Pain Syndrome, Fibromyalgia and Chronic Fatigue Syndrome.


Notes:
1 Dickinson, Emily. The Complete Poems of Emily Dickinson. Boston: Little, Brown, 1924; Bartleby.com, 2000.
2 The IASP is an international, multidisciplinary, non-profit professional association dedicated to furthering research on pain and improving the care of patients with pain. It is a Non-Governmental Organization (NGO)and an affiliate of the World Health Organization (WHO).


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Auto Insurance Claims Litigation – The Lost Years
May, 13 2003
Author: Richard Bogoroch and Leanne Goldstein

This paper discusses the “Lost Years” claim in personal injury cases, detailing the innovative thinking that has gone into transforming non-pecuniary damages into pecuniary ones.


 

Auto Insurance Claims Litigation – The Lost Years

By Richard Bogoroch and Leanne Goldstein

May 13-14, 2003

Introduction

A discussion of damages would be incomplete without a reference to the Trilogy of Supreme Court of Canada cases which have provided a baseline for the assessment of personal injury damages for more than twenty years. Perhaps the most significant contribution of the Trilogy, consisting of Teno v Arnold1, Thornton v School District No. 572 and Andrews v Grand & Toy3, is the establishment of an “upper limit” or “cap” for non-pecuniary general damages.

Mr. Justice Dickson, who gave the majority opinion in Andrews v Grand & Toy, put forward the following rationale for the “cap” or “upper limit”:

“There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical one and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional4.”

Mr. Justice Spence, who authored the majority opinion in Teno v Arnold, echoed these sentiments when he stated that:

“There remains the assessment of the quantum of non-pecuniary damages. These damages are spoken of as 'compensation' for pain and suffering, loss of amenities of life, loss of expectation of life - a grant of largely subjective considerations the very naming of which indicates the impossibility of precise assessments.

The real difficulty is that an award of non-pecuniary damages cannot be 'compensation'. There is simply no equation between paralysed limbs and/or injured brain and dollars. The award is not reparative, there can be no restoration of the lost function5.”

In his paper entitled, Special and General Damages Update6, presented at the Law Society of Upper Canada lectures held on June 11 and 12, 1998, Mr. Roderic G. Ferguson, Q.C., states that the Trilogy of cases were initially regarded with great alarm by the Bar, especially the Plaintiffs’ Bar. He comments that with the passing of time, however, thoughtful lawyers began to shift focus and many now regard the Trilogy as having revitalized the Personal Injury damages practice. In Mr. Ferguson’s view, counsel began to see that the real message of the Trilogy was not that general damages should be “fair” but that special damages (pecuniary losses) should be assessed in a manner that is “full”.

In his paper, Roderic Ferguson Q.C. also refers to another reaction of lawyers to the “cap”. He describes this reaction as “innovative thinking in transforming non-pecuniary heads of damages into pecuniary ones”. Into this category he places claims for loss of competitive advantage, loss of homemaking, the loss of shared family income and the “Lost Years” claim7.


Notes:
1 [1978] 2 S.C.R. 287
2 [1978] 2 S.C.R. 267
3 [1978] 2 S.C.R. 229
4 Supra p.261
5 Supra p.332
6 R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions
7 R.G. Ferguson Q.C., “Special and General Damages Update”, Special Lectures 1998, Personal Injury Law: Current Practices and Emerging Directions at p.20-8

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Auto Insurance Claims Litigation – The Lost Years
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Reflections on the Role of the Expert Witness
March, 27 2003
Author: Richard Bogoroch and Leanne Goldstein

As science and technology have become more complex, the role of the expert witness has become increasingly more important. This paper discusses how the selection and preparation of the expert witness has been and will prove to be at the cornerstone of much successful litigation.


 

Reflections on the Role of the Expert Witness

By Richard Bogoroch and Leanne Goldstein

March 27, 2003

Introduction

In R v. Abbey1, Dickson J. held:

Witnesses testify as to facts. The judge or jury draws inferences from facts. With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with the ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert’s opinion is admissible to furnish the court with scientific information, which is likely to be outside the experience and knowledge of a judge or jury.

As science and technology have become more complex, the role of the expert witness has become increasingly more important. The selection and preparation of the expert witness has been and will prove to be at the cornerstone of much successful litigation.

The Ikarian Reefer

The British decision commonly referred to as The Ikarian Reefer2, a 1993 decision of Justice Cresswell, has been referred to in a number of Canadian decisions as providing certain guidelines for expert evidence and as setting out certain duties of the expert witness.

The first two duties referred to by Justice Cresswell are as follows:

  1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; and
  2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise.
     

The courts tend to be wary of an expert who assumes the role of an advocate or advances a self-serving viewpoint. Expert testimony that appears objective and well-balanced is likely to be accorded more weight and is more likely to be relied upon by the trier of fact.


Notes:
1[1982] 2 S.C.R. 24

2The Ikarian Reefer [1993] 2 Lloyds Rep. 68 (Comm. Ct. Q.B. Div.) (full style: National Justice Compania S.A. v. Prudential Assurance Co. Ltd.)

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How Canadian Courts Have Turned “Thin Skull” Damages into “Crumbling Skull” Damages: What are the Implications?
September, 01 2002

The Supreme Court of Canada’s ruling in Athey v. Leonati is a definitive commentary on the manner in which liability and damages should be apportioned in tort actions. The Court discusses a myriad of possible scenarios in which tortious and non-tortious factors, pre-existing conditions and subsequent incidents may contribute to a plaintiff’s ultimate condition following a tortious act. The Court also addresses the difficult and often misunderstood issue of damage awards in cases involving thin skull and crumbling skull plaintiffs.


 

How Canadian Courts Have Turned “Thin Skull” Damages into “Crumbling Skull” Damages: What are the Implications?

By Richard Bogoroch and Tripta Chandler

September 20, 2002

The Supreme Court of Canada's ruling in Athey v. Leonati1 is a definitive commentary on the manner in which liability and damages should be apportioned in tort actions. The Court discusses a myriad of possible scenarios in which tortious and non-tortious factors, pre-existing conditions and subsequent incidents may contribute to a plaintiff’s ultimate condition following a tortious act. The Court also addresses the difficult and often misunderstood issue of damage awards in cases involving thin skull and crumbling skull plaintiffs.

This paper deals with the principles established in the Athey decision and their implications in the areas of causation and damages. The paper begins with a detailed analysis of the Athey case and then discusses the implications of the decision in determining liability in the case of tortious and non-tortious factors contributing to a plaintiff’s injury, and the judicial treatment of the Athey decision in this context, with a particular focus on thin skull and crumbling skull plaintiffs. The final sections of the paper are a commentary on the courts’ assessment of damages in two recent decisions, the Ontario Court of Appeal’s decision in Robinson v. Sydenham District Hospital Corp. and the Alberta Court of Queen’s Bench Decision in Moser v. Derksen, and the difference between the approach taken in those cases and the principles established in Athey.


Notes:
1 Athey v. Leonati, [1996] 3 S.C.R. 458 (QL) [hereinafter Athey].

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How Canadian Courts Have Turned “Thin Skull” Damages into “Crumbling Skull” Damages: What are the Implications?
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Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective
September, 01 2002
Author: Richard Bogoroch and Rachel J. Urman

This insightful paper, newly updated, focuses on the plaintiff’s perspective in handling catastrophic accident benefit claims. It discusses, considers and analyses the tactical considerations to employ when acting for the catastrophically injured.


 

Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective

By Richard Bogoroch and Rachel J. Urman

September, 2002

With the enactment of the Automobile Rate Insurance Stability Act, commonly known as Bill 59, and with the promulgation of O. Reg. 403/96, a two tiered system of benefits was created with profound consequences to injured persons and their families.

This paper will focus on the plaintiffs’ perspective in handling catastrophic accident benefit claims and will discuss, consider and analyse the tactical considerations to employ when acting for the catastrophically injured.

The Statutory Framework

“Catastrophic impairment” is defined in subsection 2(1) of the Statutory Accident Benefits Schedule-Accidents On or After November 1, 1996 as follows:

  1. paraplegia or quadriplegia,
     
  2. amputation or other impairment causing the total and permanent loss of use of both arms,
     
  3. amputation or other impairment causing the total and permanent loss of both an arm and a leg,
     
  4. total loss of vision in both eyes,
     
  5. subject to subsections (2) and (3), any impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment…results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behaviourial disorder Subsection 2(3) provides that, for the purposes of clauses (f) and (g) of the definition of “catastrophic impairment” in subsection (1), and impairment that is sustained by an insured person but is not listed in the American Medical Association's Guides to the Evaluation of Permanent Impairment shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.
     

The definition of “catastrophic impairment” creates interpretive difficulty because of its utilization of both subjective and objective criteria. Clauses (a) through (d) are objective and there is little interpretive difficulty. The other categories are restrictive and, with respect, unfair. Any amputation of a limb should be considered catastrophic. The loss of one or two legs of one arm is catastrophic and, even with the aid of a prosthetic device, results in a significant, if not total, disruption to an injured person’s life. Yet, the legislature requires not only that there be an amputation, but that it be a double amputation – loss of not only a leg, but both arms or an arm and a leg.

Clauses (e) and (f), which involve subjective criteria, are recipes for uncertainty, confusion and litigation. Surprisingly, with the exception of Unifund Assurance Company v. Michael Fletcher (discussed in detail below), which was not a court decision, but a decision of a private arbitrator, there have been no cases which have interpreted clauses (e), (f) and (g).

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Catastrophic Accident Benefit Claims – The Plaintiff’s Perspective
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Forceps and Caesarean Deliveries and Informed Consent: New Issues and Dangers in Child Delivery Methods
March, 26 2002
Author: Richard Bogoroch and Simone Levine

This paper provides insight into the standard of care required of hospitals, nurses and obstetricians regarding child delivery methods and informed consent in the context of child delivery.


 

Forceps and Caesarean Deliveries and Informed Consent: New Issues and Dangers in Child Delivery Methods

By Richard Bogoroch and Simone Levine

March 26, 2002

In a medical malpractice action against a physician, the plaintiff must establish on a balance of probabilities that the physician departed, in a blameworthy way, from the normal standards of skill, judgement, or knowledge prevailing in the medical community at the material time. Where the physician holds himself or herself out as a specialist, a higher degree of skill is required, and the physician is judged based on the conduct of the average specialist in the field who has acquired the knowledge, competence and skill expected of that specialist at the material time. Once the injured plaintiff has proven the requisite standard of care and that this standard was negligently breached by the physician, the plaintiff must then prove that the breach was the actual cause of the plaintiff’s injuries.

This paper provides insight into the standard of care required of hospitals, nurses and obstetricians regarding child delivery methods and informed consent in the context of child delivery. My co-presenter, Dr. Jon Barrett, has addressed some of the medical issues involved in the risks of delivery with forceps and vacuum extraction, as well as the timeliness of a caesarean section. To gain an understanding of how the Courts approach causation in this context, the following is a brief summary of recent court decisions from Canada and the United Kingdom.


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Forceps and Caesarean Deliveries and Informed Consent: New Issues and Dangers in Child Delivery Methods
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Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Lawsuit – From the Plaintiff’s Perspective
June, 30 2001
Author: Richard Bogoroch

When Mr. Justice Riddell famously said that a lawsuit is not “an afternoon tea” he could not have anticipated but must have had in mind fibromyalgia litigation. The clash and clamour of conflicting views, the ferocious attempts to impugn the credibility of both the plaintiff and the plaintiff’s experts alike have made this type of litigation one of the most difficult, complex and expensive cases to prosecute.


 

Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Lawsuit – From the Plaintiff’s Perspective

By Richard Bogoroch

June, 2001

Introduction

“A jury trial is a fight and not an afternoon tea.”1

When Mr. Justice Riddell famously said that a lawsuit is not “an afternoon tea” he could not have anticipated but must have had in mind fibromyalgia litigation. The clash and clamour of conflicting views, the ferocious attempts to impugn the credibility of both the plaintiff and the plaintiff’s experts alike have made this type of litigation one of the most difficult, complex and expensive cases to prosecute. The purpose of this paper is to enable plaintiff’s counsel to more fully understand the complex nature of fibromyalgia, how to prepare their case for trial and, ultimately, to obtain a just and appropriate result for their clients.

What is Fibromyalgia?

While the medical experts will be providing more detailed and explicit definitions and discussions of this “syndrome”, it may be usefully noted that the American College of Rheumatology2 described fibromyalgia as a “syndrome of widespread pain3 and unknown to the patient, decreased pain threshold at site-specific soft tissue tender points. Among the symptoms most frequently associated with fibromyalgia are sleep disturbance, poor memory, morning stiffness, fatigue and psychological distress, along with headaches, irritable bowel and bladder, joint swelling and numbness4.” It is to be noted that in literature disseminated by The Canadian Arthritis Society, fibromyalgia is ranked second only to osteoarthritis as the most common musculoskeletal condition afflicting Canadians5. According to a 1994 study, approximately three out of 100 Canadians suffer from fibromyalgia and it is a widespread and common affliction.
According to the American College of Rheumatology6 the specific conditions necessary for a diagnosis of fibromyalgia are as follows:

 

  1. History of Widespread Pain

    Pain will be widespread when all of the following are present:

    1. pain in the left side of the body;
    2. pain in the right side of the body;
    3. pain above the waist;
    4. pain below the waist. 
       

    As well, axial skeletal pain must be present. In addition, shoulder and buttocks pain is considered pain for each side involved.

     

  2. Tender Points

    Pain in 11 of 18 tender point sires on digital palpation. The ACR recommendation require digital palpation to be performed with an approximate force of 4 kilograms and further require that for a tender point to be considered “positive” the subject must state that the palpation was painful.

 

Patients will be said to have fibromyalgia if both of these criteria are met. Finally, widespread pain must be present for at least 3 months.

 

Notes:

1 Dale v. Toronto R.W Co., (1915) 34 O.L.R. 104 at 108.
2 D.A. Gordon, “Chronic Widespread Pain as a Medico-Legal Issue” in Balliere’s Clinical Rheumatology (Vol. 13, p. 531-543,1999).
3 Ibid. at 532
Ibid.
5 Arthroscope, The Arthritis Society, 1998, p. 7
6 Wolfe et al. “Arthritis Rheumatology” in The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia Report of the Multicenter Criteria Committee. (1990) 33:160-172

 

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Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Law Suit – From the Plaintiff’s Perspective
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Recent Developments in Obstetric Negligence Law
April, 30 2001
Author: Richard Bogoroch and Rachel Urman

In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a summary from the principals underlying the litigation in these types of cases.


 

Recent Developments in Obstetric Negligence Law

By Richard Bogoroch and Rachel Urman

April, 2001

In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a summary from the principals underlying wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death litigation.

1. Wrongful Pregnancy

Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant1. They typical wrongful pregnancy case involves a negligently performed sterilization procedure that has resulted in the conception of an unexpected and, at least initially, unwanted child2. Still other cases arise in the context of sterilization procedures which failed, but not through any fault on the part of the defendant. In these cases, the allegations of negligence are based on a duty fully to inform the patient of the risk of failure of even a properly performed sterilization procedure3.

One of the first reported wrongful pregnancy cases in Canada was Cataford4 in which the defendant surgeon negligently conducted a ligature of the fallopian tubes. The female plaintiff already had 10 children at the time this sterilization procedure was performed. Four months post-surgery, the plaintiff was found to be pregnant and subsequently gave birth to a healthy baby boy.

A. Whether a Recognized Action Exists

In Cataford, claims were advanced on behalf of the female plaintiff who underwent the surgery, her husband and the unexpected child. Deschenes C. J. held that, in principle, the plaintiffs had the right to recover damages that constituted an immediate and direct consequence of the defendant’s fault5.

It is clear from Cataford and the subsequent case law that, in wrongful pregnancy claims, the adult female plaintiff, the mother of the unexpected child, has a viable claim. The adult male plaintiff, the father of the unexpected child, also has a claim, but this claim is derivative in that it flows from the mother’s loss6. The unexpected child, however, does not have any claim. Such claims, which are asserted on the child's behalf for damages suffered in being born, and are broadly known as wrongful life claims, are rejected as being entirely without foundation. In Cataford the child plaintiff's claim is denied on the basis that it is clearly impossible to compare the situation of the infant post-birth with the situation he would have been in if he had not been born7. Thus the law is clear that no duty is owed by a doctor to a fetus not to allow it to be conceived and then born.

B. Factors Considered in Determining Liability

The following factors are considered by the courts in determining whether the defendant surgeon conducted a sterilization procedure is negligent:

1. Standard of Care

Whether the procedure is recognized within the medical community8.

Expert testimony as to whether the manner in which the procedure was conducted was appropriate9.

Those criteria are the same as those employed in all obstetric negligence cases, including those for injuries arising during labour and delivery, which do not fall within any of the categories delineated in this paper, for example, cases of should dystocia, breech birth and consequences of fetal-maternal blood loss or fetal asphyxia10.

2. Standard of Disclosure

Whether the defendant surgeon advised of the chance that the procedure would not succeed and that an unwanted pregnancy might occur and recommended use of alternate methods of birth control11;

3. Causation

The effect of non-disclosure on the plaintiff as determined via application of the Riebl v. Hughes12 modified objective standard for disclosure (discussed in greater detail below under the heading “Wrongful Birth”)13;

How long after the sterilization procedure the pregnancy occurred14.

As in other classes of medical malpractice claims, the issue of medical record keeping is relevant to finding a breach of the standard of disclosure in the obstetric negligence context. In Kealey15, Lax J. states that, where notes are absent, there is no reason for a physician to recall the details of conversations with patients. She further notes that a patient is likely to recall at least the substance of the discussion with a doctor and that, where the patient’s recollection is supported by other evidence, there is no reason not to rely on it16.

 

Notes:

The Honourable Madam Justice Lax (Ontario Superior Court), Wrongful Life, Wrongful Pregnancy, Wrongful Birth, Ontario Trial Lawyer's Association Spring Conference 1997.

2 See, for example, Cataford et al. v. Moreau (1978), 114 D.L.R. (3d), 585 (Que. S.C.-Deschenes C.J.) (hereinafter “Cataford”): Kealey et al. v. Berezowski et al. (1996), O.R. (3d) 37 (Ont. Gen. Div.)(hereinafter “Kealey”).

3 An example of this type of case is Joshi (Guardian ad litem of) v. Wooley, [1995] B.C.J. No. 113 (B.C.S.C.)(hereinafter “Joshi”)

4 Supra note 2.

5 Supra note 2 at p.10 of the Quicklaw judgment. Such recovery is based on the language of article 1075 of the Civil Code which parallels that used to define the common law concepts of causation and remoteness.

6 The distinction between the mother's and father's claims is based on the notion that a duty of care is owed by the defendant doctor to the mother and is not deemed to extend to the father.

Cataford, supra note 2 at p.9.

8 Doiron et al. v. Orr et al.(1978), 20 O.R. (2d) 71 (Ont. H.C.J.) (hereinafter “Doiron”)

9 Grey v. Webster (1984), 14 D.L.R. (4th) 706 (N.B.Q.B.)(hereinafter “Grey”)

10 In this regard see the shoulder dystocia/brachial plexus nerve injury cases, Fashola (Next friend of) v, Salvation Army Grace Hospital, [1992] O.J. No. 1107 (Ont. Gen. Div.); Pierre (Next friend of) v. Marshall, [1993] A.J. No. 1095(Alta. Q.B.); Fleury (Next friend of) v. Woolgar, [1996] A.J. No. 52 (Alta. Q.B.); and Brown (Litigation Guardian of) v. Sarraf, [1998]O.J. No. 3746 (Ont. Gen. Div.); see also breech birth cases such as Anderson v. Salvation Army Maternity Hospital, [1989], N.S.J. No. 339 (N.S.T.D.); Gleason (Guardian ad litem of) v. Bulkley Valley District Hospital, [1996] B.C.J. No. 1744 (B.C.S.J.); Martin v. Listowel Memorial Hospital [1998] O.J. No. 3126 (Ont. Gen. Div.)(varied on appeal with respect to damages at [2000] O.J. No. 4015)(C.A.)); Brimacombe v. Mathews, [1999] B.C.J. No. 90 (B.C.S.C.) and Bauer (Litigation guardian of) v. Seager, [2000] M.J. No. 356 (Man. Q.B.). The causation analysis in these cases also parallels that employed in wrongful pregnancy cases and wrongful birth cases (See factors relevant in determining causation as outlined below). Some also emphasize the “material contribution” analysis of causation set out in cases such as Athey v. Leonati (1996), 140 D.L.R, (4th) 235 at pp. 239-240.

11 bid; Suite v. Cooke, [1995] A.Q. no. 696 (Que. C.A.).

12 [1980] 2S.C.R. 880 (Laskin C.J.). This application of this test in the obstetric negligence context was more recently reiterated in Hollis v. Dow Corning Corp. [1995] 4 S.C.R. 634 (La Forest J.).

13 Grey, Supra note 9 at p.6 of the Quicklaw judgment. In this particular case the Court has the advantage of knowing the plaintiff's behaviour following a second tubal ligation, namely, her failure to use alternate methods of birth control despite her knowledge that the success of the procedure was not guaranteed. Indeed, the defendant's failure to inform was not deemed to be the cause of her damages in this circumstance. See also Dendaas (Taylor) et al. v. Yackel (1980) 109 D.L.R. (3d) 455 (B.C.S.C.) (hereinafter “Dendaas”).

14 Mummery v. Olsson, [2001] O.J. No. 226 (Ont. S.C.J.)

15 Supra note 2.

16 Supra note 2 at page 7 of the Quicklaw judgment. See also the unreported decision of Juriansz J. in Simon v. Lusis (oral reasons for judgment delivered October 20, 2000), currently under appeal, regarding record keeping obligations beyond obstetric context.

 

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Recent Developments in Obstetric Negligence Law
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Strategies for Chronic Pain and Emotional Injuries: Coping With the OMPP Threshold
February, 28 2001
Author: Richard Bogoroch

This in-depth paper focuses on strategies and tactics to employ in chronic pain cases arising from car accidents, in light of the Ontario Motorist Protection Plan.


 

Strategies for Chronic Pain & Emotional Injuries: Coping With the OMPP Threshold

By Richard Bogoroch

1. Introduction

Chronic pain cases are challenging, difficult and complex. They are fraught with great risk to both plaintiffs and defence counsel. A chronic pain case represents “a roll of the dice,” the outcome of which cannot be predicted with any degree of certainty. The objective of this paper is to assist plaintiff’s counsel in taking the “roll” out of the dice.

The Ontario Motorist Protection Plan, which came into effect June 22, 1990, and which hereinafter shall be referred to as the OMPP, has, as a result of the Court of Appeal’s decision in Meyer v Bright et al (hereinafter referred to as the “trilogy”), engendered a host of difficulties which require different strategic and tactical considerations. To provide perspective, I propose briefly to canvass strategies and tactics to employ in a chronic pain case arising from car accidents prior to June 22, 1990. (I use the paradigm of a car accident as opposed to a slip and fall or other mishap giving rise to personal injury since, in my experience, chronic pain following a car accident is more frequently encountered than from other traumatic events.)

I acknowledge with thanks the helpful comments of my associate, Ms. Franceen Rogovein.

2. Tactical Considerations in Handling the Chronic Pain Case: Pre-OMPP

a. Definition of Chronic Pain

What is chronic pain? Chronic pain, quite simply, is pain which has not abated. It frequently arises in cases where the injured victim sustained soft tissue injuries to the neck or back. The injuries do not improve over time and indeed over a period of time the victim is immobilized by constant pain and discomfort which renders him or her dysfunctional or which severely affects his or her health and general well being. Dr. David Corey in his article “Chronic Pain Syndrome: Identification and Management,” defines chronic pain as “pain persisting for more than six months from its onset1.”

Chronic pain syndrome is indicative of a serious, vocational and psychological disability2.

Corey defines chronic pain as follows3:

 

  1. “The chief complaint is of severe and prolonged pain in excess of what could be expected on the basis of organic findings.
     
  2. At least six of the factors listed below are exhibited:
    1. Diagnosis of a soft tissue injury;
    2. Multiple symptom complaints, e.g. headaches, fatigue;
    3. An unsuccessful attempt to return to work;
    4. Guarded movements or avoidance of many activities, e.g. an invalid-like lifestyle;
    5. Ingestion of multiple analgesics, tranquilizers, etc.;
    6. Frequent and multiple physician contacts;
    7. Development of family and marital problems;
    8. A reduction in or loss of libido;
    9. Diffuse anger, frustration and irritability;
    10. Anxiety and/or depressive symptoms;
    11. Sleep disturbance4.”

 

Chronic pain syndrome is not a psychiatric diagnosis, such as post-traumatic neurosis, compensational neurosis, psychogenic regional pain or functional overlay. It is a descriptive label for those who are vocationally and/or functionally disabled5.

Notes:

1 Corey, David: Chronic Pain Syndrome: Identification and Management 1988 9 The Advocates' Quarterly, 223
2 Ibid. p 224
3 Ibid.
4 Ibid.
5 Ibid. p. 225

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Strategies for Chronic Pain & Emotional Injuries: Coping With the OMPP Threshold
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The Child Witness: Tips from the Trenches
February, 01 2001
Author: Heidi Brown

Questioning a child witness is one of the most difficult tasks for the advocate. To do it well requires patience, skill and a thorough command of language so that responsive answers are elicited to the questions asked.


 

The Child Witness: Tips from the Trenches

By Heidi Brown

February 9, 2001

Introduction

Questioning a child witness is one of the most difficult tasks for the advocate. To do it well requires patience, skill and a thorough command of language so that responsive answers are elicited to the questions asked.

Children attract the sympathies of juries who can well appreciate that a court room is a foreign, if not hostile, environment for most everyone, especially children. Many of us lack the experience and sensitivity to deal effectively with the child witness. We forget that children are not little adults. They do not understand the legal system and they lack the ability to speak like adults. The life experiences of children are far more limited than that of adults and, as such, they cannot comprehend the reasoning or motives of adults. In addition, words often have different meanings so that complex and compound questions tend to be out of reach of the child’s ability to understand. Given their desire to please, children are often unwilling to admit that they do not understand a question and will not seek clarification as they will want to be helpful to the adult questioner, and will often provide answers to questions they do not understand.

Outlined below are some of the more common issues confronted by plaintiff’s counsel when dealing with child witnesses in a civil case.

Specific Issues to Keep in Mind when Dealing with Children

1. Memory

“Generally, current research holds that children do not remember as well as adults, but that information provided through a child’s free recollection is generally accurate1.”

From the perspective of the child plaintiff’s counsel, it is critical to interview children promptly and to record their account of events immediately, or as soon as possible after the actionable wrong, as childrenּs memories generally fade over time.

2. Suggestibility

Children, more so than adults, are prone to suggestions made by the questioner. As previously stated, children tend to want to please the adult and to conform to what they believe to be the expectations of the adult questioner. In addition, research confirms that leading questions are likely to elicit inaccurate information from children.

The most successful strategies for obtaining accurate descriptive recall were found to be encouraging and acceptance of unprompted description, accompanied by sparing use of general questions to prompt recall. Questioning for specific details is likely to result in inaccurate information. Above all, when questioning, it is important to convey as strongly as possible to the child that questions do not have to answered, moreover, that it is better to say “I don’t know” than to give an uncertain answer2.(emphasis mine).

When you first meet with the child, ask open-ended questions that do not suggest you know anything about the case. You want to extract his or her version of the events exactly as he or she remembers it. Keep a detailed record each time you meet the child to see if his or her story remains consistent.

3. Fear

Any child will likely be fearful, or at least a little bit apprehensive, about the prospect of meeting with a lawyer, let alone going to court. It is therefore important to interview a child in a comfortable and familiar surrounding. If you must interview the child in your office, try to have some age appropriate items at hand to put the child at ease. For example, when I was counsel to the Children’s Lawyer, I had a collection of trolls on my credenza that always seemed to captivate the interest of my child clients. Always keep in mind that your goal is to make the child feel comfortable and to foster a relationship of trust.

Notes:

1 Ralph Underwager and Hollida Wakefield, The Real World of Child Interrogations (Springfield, 11.: Charles C. Thomas, 1990) at p. 28; as stated in Bryan Finlay, Q.C. and T.A. Cromwell, Witness Preparation Manual, (Second Edition, Canada Law Book Inc., 1999) at p 93.

2 Helen R. Dent, “The Effects of Interviewing Strategies on the Results of Interviews with Child Witnesses,” in A. Trankell , ed. Reconstructing the Past (The Netherlands: Kluwer, Deventer, 1982), at p. 292, as cited in Finlay, supra note 2 at p. 94.

 

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The Child Witness: Tips from the Trenches
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Insurer Ignores Medical Evidence, Hit With $30,000 'Special Award'
February, 14 2000
Author: Eric Atkins for Law Times

Toronto lawyer Richard Bogoroch told Law Times it was one of the larger "special awards" made under Insurance Act s. 282(10), which permits an arbitrator to award a lump sum when an insurer "unreasonably withholds or delays benefits." Special awards are over and above the weekly income replacement, interest and home-care expenses.


 

Insurer ignores medical evidence, hit with $30,000 'special award'

By Eric Atkins for Law Times

February 14, 2000

Toronto - An injured woman whose disability insurer cut off her weekly benefits has been awarded what amounts to punitive damages under a rarely used Ontario Insurance Act Provision.

An arbitrator awarded 37-year-old travel agent Domenica Fimiani $30,000 from Liberty Mutual Insurance, on top of $140,000 in back benefits owing after the insurer stopped paying her $394 weekly benefits. She was unable to work after serious facial injuries suffered in a 1994 car crash.

Toronto lawyer Richard Bogoroch told Law Times it was one of the larger "special awards" made under Insurance Act s. 282(10), which permits an arbitrator to award a lump sum when an insurer "unreasonably withholds or delays benefits." Special awards are over and above the weekly income replacement, interest and home-care expenses.

Bogoroch called his case "important" and a "wake-up call" for insurance companies which treat claimants unfairly.

The Financial Services Commission of Ontario arbitrator David Muir found Liberty Mutual ignored medical evidence stating the woman couldn't work. Bogoroch, along with co-counsel Linda Wolanski, won the award after a seven-day hearing.

The insurance company relied largely on assessments from Bruce Makos, a chiropractor at a disability assessment centre (DAC) Fimiani had gone to. He concluded the woman was not significantly disabled and her injuries were "soft tissue ones which would eventually resolve." His findings were disproved once and for all when Fimiani underwent surgery later.

Muir noted that Makos was neither a dentist nor specialist in facial- and jaw-injury disorders and his opinion was contrary to the view of "many other medical practitioners," most of whom found Fimiani disabled.

Reports from a disability assessment centre "are not the be-all and end-all," said Bogoroch. It's a mistake to simply rely on what the insurer's assessment says when there are conflicting reports from different health professionals, he added.

Muir wrote that once Liberty Mutual "received an opinion supporting a termination of benefits, it chose to remain indifferent to whatever further evidence it received."

Liberty Mutual counsel Michael Muclack told Law Times there's been no decision on an appeal. The appeal deadline is mid-February and its status was not known by press time.

Fimiani's car was rear-ended in her four-year-old Volkswagen in August of 1994. The mother of two was thrown into the dashboard and her face struck the steering wheel.

Fimiani did not see a doctor until the next day, when she awoke with swelling in the right side of her face and neck. She began suffering headaches, neck and back pain and three fingers went numb. But her jaw and face were the worst of her ills and within two weeks she could not close her mouth.

Fimiani was examined by a neurologist and an oral surgeon. Both agreed she had "post-concussion" syndrome" and temporomandibular joint dysfunction (TMJ), a painful condition in the joint that connects the jawbone and muscles to the skull.

She was unable to chew food and here diet was restricted to soups, pasta and soft food.

Before six months had passed, she had seen four doctors and a chiropractor. She was on strong painkillers and complained of depression, mood swings and forgetfulness. On top of that, the pain in her jaw, back, head and shoulder persisted. Still out of work, she began a physiotherapy and "work-hardening program" in April of 1995.

On September 28, 1995, her cheques stopped coming. Fimiani tried mediation with the insurer but that failed, so she applied for arbitration at the Financial Services Commission of Ontario, a remedy available under the Insurance Act.

Liberty Mutual spokesperson Arlene Healy said any comment while the file is being "reviewed" would be "premature."

At the hearing, Liberty Mutual didn't produce a company representative for cross-examination.

"Treating their claimants badly or with indifference may very well expose insurance companies to significant special awards," predicts Bogoroch.

See also:
Domenica Fimiani and Liberty Mutual Insurance Company - Reasons for Decision
(Adobe Acrobat [PDF] file - ~50K)

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Corralling the Experts: Opinion Containment
November, 30 1997
Author: Richard Bogoroch

There are a few things as difficult or as dangerous as the cross-examination of the defendant’s expert. While it is often said that a plaintiff’s case is made or lost on the strength and credibility of the plaintiff’s witnesses, one can never underestimate the damage that the defendant’s experts can do to the plaintiff’s case in compelling a less than advantageous settlement offer during the course of the trial or alternatively, setting the stage for a favourable verdict for the defence. Trials in the 90’s have become in many cases a battle of the experts.


 

Corralling the Experts: Opinion Containment

By Richard Bogoroch

November, 1997

Introduction

There are a few things as difficult or as dangerous as the cross-examination of the defendant’s expert. While it is often said that a plaintiff’s case is made or lost on the strength and credibility of the plaintiff’s witnesses, one can never underestimate the damage that the defendant’s experts can do to the plaintiff’s case in compelling a less than advantageous settlement offer during the course of the trial or alternatively, setting the stage for a favourable verdict for the defence. Trials in the 90’s have become in many cases a battle of the experts.
Trials today are quite different from the way they were 10 or 15 years ago. The stakes are much higher and the cost to the winners and losers are so much greater. Not too long ago, the average personal injury trial lasted between 5 and 8 days. Today a 5 to 8 day trial is rare.

What is also a departure is that experts themselves have entered into the fray, thus betraying their role as independent objective professionals, and often impeding justice for injured and afflicted people. Today, the defence orthopaedic surgeon holds himself out as not simply an expert in orthopaedics, but also in psychology, psychiatry, rheumatology, chronic pain and fibromyalgia. Today the psychologist is not simply an expert in psychology, but also an expert in rehabilitation medicine. In case after case, the expert once qualified, becomes an expert in everything. Expert witnesses have been accorded wide latitude by the courts and have been permitted to offer opinion evidence on matters clearly outside their area of expertise. Containing the expert is a task which is becoming increasingly difficult, particularly in light of the Supreme Court of Canada’s decision in R. v. Marquard [1993] 4 S.C.R., 223, which will be discussed below. The aim of this paper is to shed some light on this complex and controversial aspect of the law of evidence.

The Role of the Expert – A Review of First Principles

  1. In National Justice Compania Naviera S. A. v. Prudential Assurance Co. Ltd. [1993] 2 Lloyd’s Reports 68, also known as “The Ikarian/Reefer”, Mr. Justice Cresswell summarized the duties and responsibilities of the expert (p. 81-82) (as paraphrased):
     
  2. Expert evidence presented to the court should be, and should be seen to be the independent product of the expert uninfluenced as to form or content by exigencies of litigation.
     
  3. An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume the role of advocate.
     
  4. An expert should state the facts or assumptions upon which the opinion is based and should not omit to consider material facts which detract from that opinion.
     
  5. An expert witness should make it clear when a particular question or issue falls outside his area of expertise.
     
  6. If an expert’s opinion is not properly researched because insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.
     
  7. If after the exchange of reports, an expert changes his or her view in a material matter, having read the other side’s expert report, that fact should be promptly communicated to the other side.
     
  8. Where expert evidence refers to photographs, plans, calculations, etc. they must be provided to the opposite party.

 

The “Ikarian/Reefer” has been followed by Canadian courts. It is useful to remind the defence expert of his duty and responsibility. Regrettably, not many experts today in the cut and thrust of litigation, adhere to the principals adumbrated by the “Ikarian Reefer.” Portraying the defendant’s expert as an advocate and not as a disinterested expert trying to assist the court will help to weaken the defendant’s case and hopefully cause the trier of fact to accord little weight to the expert’s opinion.

 

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Corralling the Experts: Opinion Containment
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Cashing Out Accident Benefits Claims Under the Statutory Accident Benefits Schedule
November, 10 1997

With the passage of Bill 68 (the Ontario Motorist Protection Plan), which came into effect on June 22, 1990, the landscape of personal injury litigation in Ontario was forever altered. The right to sue for damages for pain and suffering and for economic loss was substantially restricted with the obvious result that there was a substantial decline in tort litigation. This trend continued with the enactment of Bill 164 and again with Bill 59 which came into force on November 1, 1996.


 

Cashing Out Accident Benefits Claims Under the Statutory Accident Benefits Schedule

With the passage of Bill 68 (the Ontario Motorist Protection Plan), which came into effect on June 22, 1990, the landscape of personal injury litigation in Ontario was forever altered. The right to sue for damages for pain and suffering and for economic loss was substantially restricted with the obvious result that there was a substantial decline in tort litigation. This trend continued with the enactment of Bill 164 and again with Bill 59 which came into force on November 1, 1996.

Ironically, first part claims, which prior to June 22, 1990, excited little attention from lawyers and adjusters alike, has grown in significance and importance as a vehicle to provide compensation for injured persons. The purpose of this paper is to provide you with guidelines as to how "cash out" accident benefits claims, to understand the complexity of the various schemes and to be made aware of the difficulties and risks associated with cashing out claims.

In order to "cash out" an accident benefit claim, it is important to appreciate the peculiarities of the various statutory accident benefit schemes and the interface or interrelationship between the SABS and the various tort compensation rules.

 

Comparison of Benefits Under Three Accident Schemes

 

  BILL 59
(accidents from Nov. 1, '96)
BILL 164
(Jan. 1, '94 - Oct. 31, '96)
O.M.P.P.
(June 22, '90 - Dec. 31, '93)
1 Weekly indemnity or income replacement benefits 80% of net income up to $400.00 per week. May be increased if optional coverage purchased. 90% of netincome up to $1,000.00 per week. 80% of grossincome up to $600.00 per week.
2 Time frame for Short-Term Income Replacement Benefits Payable for 104 weeks after the accident if the insured person suffers a substantial inability to perform the essential tasks of his/her employment. Payable for up to 2 years from the date of the accident if the insured person suffers a substantial inability to perform the essential tasks of his/her employment. Payable for 156 weeks while insured person suffers asubstantial inability to perform the essential tasks of his/her occupation or employment.
3 Long-Term Income Replacement Benefits After 104 weeks, weekly benefit is payable if injury prevents insured from "engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience."Benefits payable to age 65, Then benefits reduced according to a formula. After two years, loss of earning capacity benefit is payable if there is a total or partial restriction on earning capacity. Payable toage 65. At age 65, benefits are generally reduced. After 156 weeks (3 years), if the insured person is continuously prevented from engaging in any occupation or employment for which he or she isreasonably suitedby education, training or experience, he/she is entitled to receive Statutory Accident Benefits for the duration of the disability, i.e. for life.
4 Medical and Rehab Benefits $100,000 basic limit. 10-year limit for adults, or 25 years, minus the age of child, whichever is greater. $1 million cap for catastrophic impairments. $1 millioncap - no time limit. $500,000.00. 10 years for adults. For children 20years less the age of the child at the time of the accident.
5 Attendant Care $3,000.00 per month limit for 2 years for non-catastrophic impairment up to $72,000.00. $6,000.00 monthly limit for catastrophic impairments with overall limit of $1 million. Optional coverage may be purchased. $3,000.00 per month or $6,000.00 per month or $10,000.00 per month depending on extent of injury. No time limit. Indexed to inflation $500,000.00. No time limit but payable $3,000.00 per month.
6 Benefits if no income $185.00 per week. 6-month waiting period. $185.00 per week. $185.00 per week.

1. WHEN TO "CASH OUT"

For the catastrophically injured, their claims can be cashed out as soon as a long-term care cost report and an actuarial report is obtained. In other cases, it is prudent to wait until a prognosis is available. Once the prognosis is determined, the time is ripe to negotiate settlement.

As well, once the injured person has recovered or has reached a plateau, it is appropriate to commence negotiations with the insurer.

2. WHAT INFORMATION IS REQUIRED FROM THE INSURER?Before any negotiation is undertaken, it is essential that you obtain a letter from the insurer outlining the total amount of benefits paid to date under the following headings:

  • Weekly indemnity or income replacement benefits;
  • Medical and rehabilitation expenses;
  • Attendant care or care-giver expenses;
  • Amounts paid for case management and for other rehabilitation services;
  • Amounts paid for various medical assessments; and
  • Miscellaneous expenses.

In addition, it is vital to obtain a copy of the complete accident benefit file, which contains all of the medical and rehabilitation reports, to ensure that you and the insurer have the same information.

In essence, you want to know what has been paid out. The significance? It give you an indication of what the insurer paid in the past and it may act as a useful indicator of what it may pay in the future.

SOME ILLUSTRATIONS

Illustration #1

Mary is a 50-year-old accounting clerk who was rear-ended in a car accident in 1992. She is unable to return to work and has developed chronic pain syndrome. She has ongoing neck and back pain, depression and anxiety. The insured pays her weekly income replacement benefits for three years, then cuts her off. The Plaintiff applies for mediation, which fails. An application for arbitration is about to be filed.

The Plaintiff's doctors are supportive of her ongoing disability and indeed, Plaintiff's counsel has referred the Plaintiff to a number of doctors who are experts in chronic pain and have confirmed that the prognosis is guarded. In addition, the Plaintiff's counsel refers the Plaintiff to a vocational rehabilitation consultant who has opined that given the Plaintiff's age, injuries and ongoing pain, she is completely unemployable, and if she were employable, she would not be a productive employee given the fatigue, depression and anxiety that she suffers from. The insurer, upon receipt of this report, wishes to negotiate a lump-sum payment.

The insurer has paid $60,000.00 in medical and rehabilitation expenses since the date of the accident, including thousands of dollars for case management services.

The Plaintiff obtains a future-care cost report and an actuarial report, which indicates that the present value of the Plaintiff's entitlement to ongoing med/rehab is $100,000.00. The present value of the Plaintiff's weekly indemnity payments is $300,000.00.

What to Do

  1. Obtain an actuarial report;
  2. Obtain a future-care cost report;
  3. Obtain a Medical/Legal report from vocational rehab consultant regarding employability; and
  4. Obtain copies of all reports in the insurer's possession.

Illustration #2

A 65-year-old female is injured in a car accident which occurred in 1993. She did not work outside the house. For a period of one year, she was incapable of carrying out her housekeeping activities including shopping and looking after the management of the household. While she has improved, she is required to take medication to control her neck and back pain and is incapable of cleaning her house and managing her household chores. The insurer wishes to "cash out" your client's benefits.

The test for non-earner under the O.M.P.P. requires the insurer to pay a benefit of $185.00 week so long as the insured suffers a substantial inability to perform the essential tasks which he or she would normally perform.

In the above example, the Plaintiff returns to her routine, but cannot do any house cleaning and must take pain medication.

What to Do

  1. Obtain a long-term care cost report outlining how often the Plaintiff will require cleaning help and a list of the medication that the insured person requires, together with the cost of same.
  2. Send report to actuary or to an accounting firm, to determine present value of the cost of care.
  3. Negotiate "cash out" based on this information.

Illustration #3

K. is an immigrant to Canada and is 25 on the date of the accident in 1994. He was working as a waiter in a restaurant while taking courses at night time to upgrade his education and to learn English. K. suffered significant soft-tissue injuries in a rear-end collision. He has ongoing back and neck pain, which have persisted. The insurer cuts him off before the two-year mark, based on a medical examination which says the insured can return to work as a waiter. The insurance company is still paying for physiotherapy treatments, but is unwilling to fund any retraining program. Because the insurance company as cut the insured off before the two-year mark and before it was required to make a loss-of-earning capacity benefit, K. must first mediate the termination of his income-replacement benefits. After the application for mediation is submitted, obtain the following:

 

  1. A long-term care cost report outlining the cost of the medication that the insured will require and the duration of this requirement;
  2. The cost and duration of physiotherapy treatments; and
  3. The cost of a retraining course.

When negotiating with the insurer, stress that you will attempt to have the benefits reinstated and then if successful, the insurer will be required to make a loss of earning capacity benefit offer. You can assume that the insurer will offer nothing for residual earning capacity. If the REC offer is indeed zero, you can then require that the insured be seen and assessed in accordance with the regulations at a Residual Earning Capacity DAC, the cost of which may vary between $10,000.00 to $15,000.00.

Assuming that the information obtained is that the insured may not be restricted in his ability to work, but is restricted in his ability to work as a waiter, there is, nonetheless, a significant cost to the insurer with respect to paying for the ongoing medical and rehabilitation expenses, and with respect to retraining expenses. Let us assume that the present value of those expenses amount to $40,000.00. Assume that the insurer has another $10,000.00 to $20,000.00 of expenses to incur on the file for various assessments, including DAC assessments. Use all this information to negotiate the best settlement for your client. Make sure you have updated medical information.

What to Do

  1. Obtain copies of all reports;
  2. Obtain a list of payments made;
  3. Obtain an estimate for retraining courses; and
  4. Request a future-care cost report.

"CASHING OUT" BENEFITS UNDER BILL 164

"Cashing out" benefits under Bill 164 is different than under the O.M.P.P. and Bill 59. Weekly income replacement benefits are indexed to inflation and in addition, the medical and rehabilitation benefits are not limited as to time. This creates tremendous risk and exposure to the insurer because of the "open ended" nature of its statutory obligation and creates a tremendous incentive to negotiate a "cash out" of accident benefit claims.

Some insurers are eager to "cash out", but others, as of late, are reluctant to do so. However, it is in their economic self-interest to put an end to a potentially unlimited and uncertain liability. The minor, moderate, and catastrophic cases provide different challenges to counsel and different considerations apply.

Unlike the O.M.P.P. and Bill 59, which compels deference to the tort claim, with Bill 164 there is no interface or interaction between tort and the SABS because there is no deduction or credit to be given in the tort claim for the accident benefits received.

"CASHING OUT" ACCIDENT BENEFITS IN A CATASTROPHIC CASE - BILL 164

The same principles enunciated above apply in a catastrophic case. The tools to successfully negotiate out of a catastrophic case are future-care cost reports and actuarial reports and payment summaries setting out the total amounts paid to date. Future-care cost reports will frequently include the cost of renovations and appliances necessary to accommodate the needs of the injured person. The future-care cost report will be more lengthy and complex, and will provide for a substantial amount of attendant care benefits, particularly if somebody is either paraplegic, quadriplegic, or severely brain damaged.

Under Bill 164, benefits are open-ended. If a young person has sustained a catastrophic injury and whose life expectancy is not significantly reduced, the cost to the insurer is potentially in the millions of dollars. In addition, wage replacement benefits to which the injured person is entitled are indexed, which indeed creates a lot of host problems for the insurer. It is in their interest to negotiate a settlement. In these cases, a structured settlement must be utilized not only for the protection of your client, but to ensure that the funds necessary to him/her are available on a tax-free basis. If the insurer won't structure - and it is difficult to conceive why it would not - but if, for whatever reason, the insurer will not structure, the insurer is required to "gross up" the settlement to compensate for the effects of taxation on the insured.

"CASHING OUT" UNDER BILL 59

Unless optional coverage of a million dollars for medical rehabilitation and attendant care is purchased, in a non-catastrophic cases, the benefits are modest in comparison to O.M.P.P. and Bill 164 and the size of the "cash out" will be modest. The $100,000.00 limit for medical and rehabilitation benefits is available for a period of 10 years from the date of the accident, or for a period of 25 years (less the age of a child at the time of the accident). Attendant care benefits are limited to $72,000.00. The same principles mentioned above apply.

Because the threshold under Bill 59 is so restrictive, cashing out benefits may be the only vehicle for injured persons, whose claims do not meet the threshold, to receive compensation.

PITFALLS OF "CASHING OUT"

The interface between Statutory Accident Benefits Schedules and tort

Both the O.M.P.P. and Bill 59 present problems to counsel attempting to negotiate a "cash out" of accident benefits while there is a viable tort claim. Section 267(1) of the Insurance Act reads as follows:

"267. (1) Collateral source rule not to apply - The damages awarded to a person in a proceeding for loss or damage arising directly 9r indirectly from the use or operation of an automobile shall be reduced by;

 

  1. all payments that the person has received or that were or are available for statutory accident benefits and by the present value of any statutory accident benefits to which the person is entitled;
  2. all payments that the person has received under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law and by the present value of such payments to which the person is entitled;
  3. all payments that the person has received or that were available for loss of income under the laws of any jurisdiction or under an income continuation benefit plan and by the present value of any such payments to which the person is entitled; and
  4. all payments that the person has received under a sick leave plan arising by reason of the person's occupation or employment."

The decision of Orchover v Wright 1996, 28 O.R. (3d) 263, illustrates the interface of tort and accident benefit claims and the pitfalls of "cashing out" without the consent of the insured.

In Orchover, the Plaintiff was injured in a car accident November 2, 1990. The Plaintiff applied for and received statutory accident benefits from her insurer, for the total amount of $45,641.00. These payments were made between November 9, 1990 and March 31, 1995. Thereafter, the Plaintiff negotiated a settlement or "cash out" of her accident benefits, whereby she received $190,000.000, of which $90,000.000 was allocated to a future loss-of-income and $100,000.00 was allocated to future care.

Mr. Justice Forget held, amongst other things, that the Defendant was entitled to a deduction of the full present value of the benefits that the Plaintiff was entitled to receive and not merely limited to a deduction of the benefits actually received. The result was quite damaging to the Plaintiff's claim.

See also Collee, et al v Kyriacou, et al (1996) 31.05 (3d) 558, which also illustrates the risks to the Plaintiff in "cashing out" his benefits without the consent of the tortfeasor and of making an improvident settlement. In Collee, the "cash out" was held to be improvident and the tortfeasor was entitled to deduct the present value of the future benefits to which the Plaintiff was entitled, notwithstanding that this amounted

 

9. DISCLOSURE REQUIREMENTS

The easiest way around the problem illustrated in Orchover is to obtain the consent of the Defendant to the proposed "cash out". The Defendant must agree that the amounts being paid are reasonable and that all that will be deducted at trial will be the amounts actually paid for by the accident benefits insurer.

If no such agreement can be obtained, the Plaintiff may nonetheless want to negotiate a "cash out" of his accident benefits claim because of the uncertainty of the tort litigation, and particularly when there exists a serious liability issue or if it is unclear whether the Plaintiff's claim crosses the "threshold". In such circumstances, it is essential that appropriate and full disclosure is made to the Plaintiff. Annexed to this paper is a disclosure statement which I have utilized, which explains in simple language the risks involved in cashing out. This does not immunize counsel from a negligence claim, but it provides a written record of what was recommended to and what was discussed with the Plaintiff.

10. PROCEDURAL REQUIREMENTS

A settlement is not effected until Section 9.1 of Regulation 664/90, a copy of which is attached, is complied with. This regulation requires that the insurer provide the insured with a statement outlining:

 

  1. A description of the benefits may be available to the injured person under the SABS;
  2. A description of the impact of the settlement under the benefits described in paragraph a) including the restriction of an insured person's right to mediate, litigate, arbitrate, appeal, or apply to vary an order;
  3. A statement that an insured person may rescind the settlement within two business days after the settlement is entered into by delivering a written notice to the insurer;
  4. A statement that the tax implications of settlement may be different from the tax implications of the benefits described in paragraph (a).
  5. A statement of the insurer's estimate of the commuted value of the benefit and an explanation of how the insured determined the commuted value;
  6. A statement advising the insured person to consider seeking independent legal, financial, medical advice before entering the settlement.

No "deal" is done until this release and disclosure statement is provided by the insurer. Insured persons who "cash out" their benefits have a two-day cooling-off period to change their minds. One of the issues to consider is when the "cooling off" period begins to run.

In Soordhar v. Citadel General Assurance "Cashing out"., (Arbitration #A-006428), a decision of the Arbitrator McMahon, the issue was when the "cooling-off" period applied. On March 28th, 1995, the solicitor for the insurer provided the written notice and release to counsel for the insured, who had 3 days earlier, confirmed acceptance of the insurance company's offer on behalf of his client. On March 31, 1995, three days later, the insured attended at his counsel's office and advised that he did not want to accept the offer.

According to this decision time, the "cooling-off" period does not begin to run until the written notice and disclosure statement is delivered and the release is signed by the insured.

SUMMARY

 

  1. It seems trite, but to successfully negotiate a cash-out of your client's accident benefit claim, it is necessary to know the case completely, to be in receipt of information as to the amount of benefits paid to date, to be armed with a future-care cost report, to obtain an actuarial report or accounting report quantifying the present value of the benefits to which your client is entitled, and to know the insurer's cost of going to arbitration.
  2. Never negotiate a lump out without knowing the value of the case.
  3. While the insurer is not under any obligation to "cash out", your client is entitled to receive benefits for as long as he needs them and as long as he meets the test set out in the legislation and interpreted by the arbitrators and the courts.
  4. Never negotiate in the dark without objective information.
  5. Always be aware of the interface of tort and SABS. If necessary, try and get the accident benefit insurer to "the negotiating table" or the "mediation table".
  6. Always ensure you have copies of the complete accident file including all medical and rehabilitation reports.
  7. Make sure your client is fully informed. Provide your clients with documentation, written in simple language, which they can read and understand. Have them acknowledge that they have received the document. When the client does not understand English, you must arrange for the documents to be translated.

12. CONCLUSION

It is hoped that this paper will assist you in negotiating a "cash out" of your client's accident benefits claim.

 


APPENDIX

APPENDIX "A" Client Instructions re: Settlement of Statutory Accident Benefits under O.M.P.P.

APPENDIX "B" Client Instructions re: Settlement of Statutory Accident Benefits under Bill 164

APPENDIX "C" Section 9.1, Insurance Act Regulation 664/90

 


APPENDIX "A"
INSTRUCTIONS

Re: Settlement of Statutory Accident Benefits Under O.M.P.P.

To: Law Firm

Re:_______________________________________________________

1. I instruct you to accept the offer of settlement of $_________________________, made by the Insurance Company at the mediation on _________________________, for a Full and Final Release of all Statutory Accident Benefits.

2. I understand that by accepting this offer, I will no longer be able to claim for weekly income benefits, medical and rehabilitation benefits, attendant care or other expenses as against Insurance Company as a result of my accident _________________________ on _________________________.

3. I acknowledge that by settling for the lump sum, I have compromised my claim for statutory accident benefits and I will never be able to claim again for medical, rehabilitation, attendant care and weekly indemnity payments that would be available to me.

4. I understand that by settling now, my tort claim may now be of no value since even if my case "crossed the threshold", I would be required to give credit for weekly indemnity payments made by the accident benefit insurer. To date, over $_________________________ in indemnity payments have been made.

5. I acknowledge, as well, that the present value of the benefits due to me may be much more than $_________________________.

6. I agree to settle at this time in order to obtain a lump sum payment in order that I need not become compelled to attend on assessments, medical appointments, and participate in rehabilitation programs mandated by the accident benefit insurer and to avoid the risks of proceeding to arbitration.

Dated at Toronto, the _________________________ day of _________________________,________________.

_________________________
Client Name

 

 


 

 

APPENDIX "B"

 

INSTRUCTIONS

Re: Settlement of Statutory Accident Benefits Under Bill 164 To: Law Firm Re: _________________________________________________________________

1. I instruct you to accept the offer of settlement of $______________________, made by the Insurance Company at the mediation on ______________________, for a Full and Final Release of all Statutory Accident Benefits.

2. I understand that by accepting this offer, I will no longer be able to claim for weekly income benefits, medical and rehabilitation benefits, attendant care or other expenses as against Insurance Company as a result of my accident ______________________ on ______________________.

4. I acknowledge that by settling for the lump sum, I have compromised my claim for statutory accident benefits and I will never be able to claim again for medical, rehabilitation, attendant care and weekly indemnity payments that would be available to me.

4. I understand that by settling now, my tort claim may now be of no value since even if my case "crossed the threshold", I would be required to give credit for weekly indemnity payments made by the accident benefit insurer. To date, over $ ______________________ in indemnity payments have been made.

5. I acknowledge, as well, that the present value of the benefits due to me may be much more than $ ______________________.

7. I agree to settle at this time in order to obtain a lump sum payment in order that I need not become compelled to attend on assessments, medical appointments, and participate in rehabilitation programs mandated by the accident benefit insurer and to avoid the risks of proceeding to arbitration.

Dated at Toronto, the ______________________ day of ______________________, ______________________.

____________________________________________
Client Name

 

 


APPENDIX "C"

RE: REGULATIONS UNDER THE INSURANCE ACT, S.9.1

S.9.1 Regulations under the Act

b) if the person receiving statutory accident benefits from the first part insurer is claming them under a policy insuring a motorized snow vehicle and,

i) if the motorised snow vehicle was involved in the incident of which the responsibility to pay statutory accident benefits arises, or

ii) if motorcycle and motorized snow vehicles are the only types of vehicles insured under the policy.

(3) A second party insurer under a policy insuring a heavy commercial vehicle is obligated under section 275 of the Act to indemnify a first party insurer unless the person receiving statutory accident benefits first party insurer is claiming them under a policy insuring a heavy commercial vehicle. O. Reg. 780/93, ss. 1, 6.

SETTLEMENTS - STATUTORY ACCIDENT BENEFITS

9.1 (1) In this section, "settlement" means an agreement between an insurer and in insured person that finally disposes of a claim or dispute in respect of the insured person's entitlement to one or more benefits under the Statutory Accident Benefits Schedule.

(2) Before a settlement is entered into between an insurer and an insured person, the insurer shall give the insured person a written notice that contains the following:

1. A description of the benefits that may be available to the insured person under the Statutory Accident Benefits Schedule and any other benefits that may be available to the insured person under a contract of automobile insurance.

2. A description of the impact of the settlement on the benefits described under paragraph 1, including a statement of the restrictions contained in the settlement on the insured person's right to mediate, litigate, arbitrate, appeal or apply to vary an order as provided in sections 280 to 284 of the Act.

3. A statement that the insured person may rescind the settlement within two business days after the settlement is entered into by delivering a written notice to the insurer.

4. A settlement that the tax implications of the settlement may be different from the tax implications of the benefits described under paragraph 1.

5. If the settlement provides for the payment of a lump sum in an amount offered by the insurer and, with respect to a benefit under the Statutory Accident Benefits Schedule that is not a lump sum benefit, the settlement contains a restriction on the insured person's right to mediate, litigate, arbitrate, appeal or apply to vary an order as provided in section 280 to 284 of the Act, a statement of the insurer's estimate of the commuted value of the benefit and an explanation of hoe the insurer determined the commuted value.

6. A statement advising the insured person to consider seeking independent legal, financial and medical advice before entering into the settlement.

S.15 Regulation 664

(3) A settlement may be rescinded by the insured person, within two business days after the settlement is entered into, by delivering a written notice to the insurer.

(4) If the insurer did not comply with subsection (2), the insured person may rescind the settlement after the period mentioned in subsection (3) by delivering a written notice to the insurer.

(5) A restriction on an insured person's right to mediate, litigate, arbitrate, appeal or apply to vary an order as provided in sections 280 to 284 of the Act is not void under subsection 279(2) of the Act if,

(a) the restriction is contained in a settlement; and

(b) the insurer complied with subsection (2).0.Reg. 780/93, s. 7.

DISPUTE RESOLUTION

(Sections 280 to 284 of the Act)

10. A mediator is required, under subsection 280(4) of the Act, to attempt to effect a settlement of a dispute within sixty days after the date on which the application for the appointment of a mediator is filed.

11. An insured person shall pay a fee of $100 upon filing an application for the appointment of an arbitrator under subsection 282(1) of the Act. Reg. 850/93,s.1.

12. The expenses set out in the Schedule are prescribed for the purpose of subsection 282(11) of the Act.

13. A person who appeals an order of an arbitrator shall pay a fee of $250 upon delivering the notice of appeal to the Commission under section 283 of the Act. O. Reg. 850/93, s.2.

14. A person who applied under section 284 of the Act to vary or revoke an order shall pay a fee of $100 when the application is made.

APPLICATION OF SECTIONS 412 TO 417 OF THE ACT

15. (1) Sections 412 to 417 of the Act apply in respect of contracts of automobile insurance written on Ontario Policy Form 1 or 2.

(2) Sections 412 to 417 of the Act apply in respect of all types of endorsements to contracts of automobile insurance written on Ontario Policy Form 1 or 2.

(3) Despite subsections (1) and (2), sections 412 to 417 of the Act do not apply to contracts of automobile insurance that insure groups of at least five vehicles that are under common ownership or management and that are used for business, commercial or public purposes or to any endorsements of those contracts.

 

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