Strength In Unity Men / Speaking Out Against Stigma - Mental Health Promotion in Asian Communities

Major research project, focused on Asian males and mental health, being conducted in Toronto, Calgary and Vancouver.  Research will require 800 Asian adult males.  Toronto adult male volunteers being sought now, completely confidential and an honorarium is paid.  Read attached flyer and visit www.strength-in-unity.ca for more info.  Insurance Law Geek is pleased to support the promotion of this major initiative, designed to help Asian communities deal with mental health issues!

Denial of Stolen Car Claim, Argument Over 1 Yr Limitation Period

If your car is stolen and then you make a claim to your own insurance company for reimbursement, the limitation period pursuant to the Insurance Act (s. 148) and s. 19 of the Limitations Act, 2002, is one year from the date of loss.

Issue:  In what circumstances will the one year limitation period be extended or be considered to have run not from the date of loss but at a later date?

Answer:  In this case, one example of the limitation period starting at a later date is where the insurer has asked its insured/the car owner for an Examination Under Oath under the provisions of the Insurance Act, as well as a request for documentation, in the form of undertakings, arising from that examination under oath.

In L'Esperance, the insurer brought a summary judgment motion seeking dismissal of the action against the tort adjuster, personally, who adjusted this file, as well as the insurer Economical.

The insurer's primary argument was the expiration of the limitation period.  The car was stolen on June 3, 2011 and the lawsuit was not commenced until August, 2012.

The facts, however, seemed to indicate that Economical continued to adjust the claim even when the one year limitation period had passed, which was an important consideration with the reasoning of Mr. Justice Phillips:

• car stolen on June 3, 2011 and reported to insurer;

• June 4, 2011 - police recovered vehicle, damaged to the point of having to be written off

• Aug 18, 2011 - Proof of Loss submitted;

• Aug 21, 2011 - insurer requested an Examination Under Oath;

• April 2012 - examination under oath conducted.  Dispute as to who was to blame for this delay, Mr. Justice Phillips found that the issue of blame was unclear

• July 2012 - insurer asked, on two separate occasions, for undertakings productions arising from the April/2012 examination under oath;

• Aug 15, 2012 - insurer advised, for the first time, that the claim was denied and that the limitation period had expired; and

• late Aug, 2012 - insured commenced an action against Economical.

The critical point here for the Judge was that the insurer continued to engage the insured actively past the limitation period and that the insured was also prohibited, pursuant to the Insurance Act, from commencing an action unless he had complied with the insurer's request for an examination under oath.

A second rationale is that the insured/plaintiff here specifically plead bad faith as an independent tort within the Statement of Claim, which would not be caught by the one year limitation period.


Gregory Chang
Toronto Personal Injury and Insurance Lawyer

Law Times Article: How to Avoid Settler's Remorse

Our thanks to Law Times and Ms. Marg Bruineman for speaking with us as part of their helpful practice point article, "Focus: How to Avoid Settler's Remorse" 

Fight Between Insurers - Insured Car Has Valid Insurance but Dispute Over Ownership

And people say lawyers are geeks.

An interesting case which probably is a cure for insomnia for most, the case of Brown v. Belair v. Wawanesa, 2014 ONSC 5487 (CanLII) is a dispute between insurers as to which insurer is responsible for responding to a 2006 MVA.

The car accident involved two cars and the car (that appears to be) at fault has an insurance coverage problem. So the question is which insurer will have to respond (ie pay) the plaintiff's claim for damages.

The problem is that the driver of the ‘at fault’ car was driving the car which he thought was owned by his parents. His parents had insured that car. Unfortunately, the parents had transferred the car to the adult son some months prior to the MVA - he was in the process of paying them $9,000 for the car but had only paid $7,000 thus far - without changing the insurance coverage and without, apparently, telling the son that his name was now registered as the owner of the car.

8 Years After Accident, Why are the Insurers Still Fighting?

There are frequent arguments between insurers as to who is responsible for responding to car accident claims, usually related to Accident Benefits claims and/or done under the loss transfer provisions.

Normally it does not take 8 years to resolve a dispute between insurers.

What we have, in this Brown case, is fascinating stuff.  In my world on insurance litigation, this is a pretty cool set of facts.

So the question becomes - what to make of the valid insurance policy, premiums paid, on the adult son's car?

In other words, does the insurance follow the car insured or does it relate to the person(s) insured?

The Problems Raised by this Case

I know both counsel on this case and it is easy to see both sides of the argument.

On the one hand, a principle behind the car insurance industry in Ontario is to cast the net wide to find insurance coverage. That is because the Ontario government guarantees minimum insurance coverage in the event you are hurt in a car accident and there is no insurance coverage (ie you are a pedestrian hit by an uninsured vehicle) - this in in the form of the MVACF, which is the Motor Vehicle Accident Claims Fund, which offers Accident Benefits coverage and also up to $200,000 in tort coverage if no other insurer exists.  The idea is to search for applicability of any private insurance to respond, in priority to government insurance.

On the other hand, a private insurer has to be able to know what risk an insured poses when they offer insurance - ie the problem here is that the parents transferred ownership of the car but did not, unfortunately, change the insurance coverage (word of advice: don't do that. Always notify insurers of change in ownership).  So the insurer is saying that if they were advised of the change in owner, that they may have declined to insure the adult son (ie due to a poor driving history) or charged more by way of premiums.

On the other hand, assuming you had a third, if the parents had kept ownership in their names, would the adult son have been covered as long as he had obtained consent to drive (ie he didn't steal the car)?  Thus the legal wrangling - Wawanesa took the step of naming the adult son as an excluded driver the day after the accident and the emphasis in the argument as to whether consent was sought/given to the adult son to drive that day.

Disposition of this Summary Judgment Motion

Mr. Justice Firestone has drilled down to the lack of evidence on the issue of consent.  The adult son says he had consent. The step-mother denies this and says there was no consent. The father has remained silent on the issue.

The reasoning is as follows:

• The father maintained a monetary interest in the vehicle, despite the transfer of ownership of the car to the adult son, prior to the accident, within the Registry’s system – the father received an insurance rebate on the car insurance policy as a result of the accident and the father accepted the property damage payment of $9,000 for the damaged vehicle;

• The adult son (driver) said he had implied consent from the father and express consent from the step-mother,

• The step-mother expressly denies giving consent that day; and

• The father has remained silent on the issue of consent.

As set out by Firestone, J.:

[34]  Regarding the issue of consent, Brian alleges that Donna (whose consent would satisfy the requirement of s. 239(1) of the IA) provided express consent the morning that he took the vehicle and further that Herbert’s consent can be implied.

[35]  Brian’s version of events on the day of the collision, and his testimony regarding the location and pattern of use of the subject vehicle, is directly contradicted by Donna’s viva voce evidence given at the hearing of this motion. Donna testified that she never gave anybody consent to drive the car. Based on her direct evidence, I find that Donna did not give express consent to Brian to drive the car. Further, based on this testimony her implied consent cannot be inferred. 

[36]  In light of such conflicting evidence between Brian and Donna on the key issues of ownership and the possibility of Herbert’s implied consent, Herbert’s evidence is necessary before a proper determination can be made by way of summary judgment. In the record before me there is no evidence from Herbert regarding the sort of use he allowed Brian to have of the vehicle, or that it was understood between them that the car would be available in the case of an emergency. A finding of the latter would support Belair’s position that because there was an emergency situation, Herbert would have allowed Brian to use the car, and as a result consent can be implied.

[37]  Wawanesa is not attempting to resist Belair’s s. 258(1) claim on the basis of a misrepresentation or other default by the named insured. As a result, the issue in this case is a coverage dispute which turns upon whether Brian, the alleged tortfeasor, was an “insured” under Wawanesa’s policy at the time of the collision. The answer to that question depends on whether Brian had the requisite consent (either express or implied) of the named insured to operate the vehicle on the day in question.

[38]  I do not accept Belair’s submission that Campanaro stands for the proposition that an insurer is absolutely liable under s. 258 of the IA when any automobile listed in its policy is involved in a collision. A third party’s action against an insurer under s. 258(1) must be “a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy.” 

[39]  Not every person who operates a listed automobile is “an insured” for whom “indemnity is provided.” To fall into that category, one must not only be driving an automobile listed on the policy, but be either (a) a named insured or (b) driving with insured’s consent. The principle set forth in Campanaro is that once it is established that the operator of a motor vehicle was in fact an “insured,” such that a s. 258(1) claim by a third party is possible, then ss. 258(4) and (5) prevent the insurer from raising a misrepresentation or default by the insured in defense.

This summary judgment motion has been adjourned, to allow for the father to give evidence on the motion, at which point the motion will be decided.

Gregory Chang
Toronto Personal Injury and Insurance Lawyer

Simple But True: Do Not Drive a Car Without Insurance Coverage

It seems obvious that you simply cannot drive a car without valid car insurance. But in today's economy, when times are tough and people require cars to conduct their daily activities, it must be tempting to some to drive, just briefly, without insurance.

But. You. Must. Not.

Only drive an insured car. If you are borrowing a car, ensure it is insured before using it.

This is more than simply 'good' advice.  Good advice is to get 8 hours of sleep per night and to eat more vegetables. Or exercise 4x/week. Or save at least your entire RRSP amount annually and invest in low-cost index funds.

No, driving without insurance is a fool's game. It's a no-win situation, borne of financial difficulty and inattention to detail. But nothing good arises from driving uninsured.

In this sad case of Belbas v Morrow, 2014 ONSC 5739 (CanLII), the uninsured owner/driver of a Mustang was hit by a Greyhound bus.  A bus! And the bus was at fault. And the Mustang driver suffered serious injury, including brain damages and memory loss.  And the Mustang caught fire due to the severity of the impact.

A Sad Ending to this Story, Yet Utterly Predictable

What happens when you drive without insurance?

Answer: you cannot sue for any loss or damage you suffer in a car accident.

Answer #2: if you try to sue for loss and your lawsuit is dismissed, then you might be responsible to pay the other side (who caused your accident) for part of their legal costs.

The end result in this Belbas case:

• the Greyhound bus avoids all liability;
• the Mustang driver’s lawsuit was dismissed; and
• the injured Mustang driver is to pay to Greyhound part of their legal costs for this failed lawsuit.

Background Information to Keep in Mind

As states by Madam Justice Pierce in Belbas, the statutory framework regarding the lack of car insurance pertaining to this situation is as follows:

[8] Central to this motion is section 267.6(1) of the Insurance Act, which states:

Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2(1) of the Compulsory Automobile Insurance Act in respect of that automobile.

 [9] Subsection 267.6(2) clarifies that subsection (1) applies whether or not the person was prosecuted for an offence under the Compulsory Automobile Insurance Act.

[10] Section 2(1) of the Compulsory Automobile Insurance Act provides:

             

 Subject to the regulations, no owner or lessee of a motor vehicle shall, 

(a)   operate the motor vehicle; or

(b)   cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

If you drive an uninsured car and get into an accident, you cannot claim for injuries nor can you receive Accident Benefits.

If you drive uninsured, you are left unprotected and alone. If you are hurt and cannot work, all you have is the universal OHIP health coverage and whatever social program you can successfully access (i.e. CPP disability, ODSP, etc).

But if you are at fault for an accident, then likely you will go bankrupt if the other party was injured and sues you.

This was a sad situation in which the blameless Mustang driver was seriously hurt. But he has lost his lawsuit and now will owe Greyhound bus some of their legal costs which arise from this summary judgment motion

Greg Chang

Toronto Personal Injury and Insurance Lawyer

Ontario Jury Service Questionnaire and Notice Received – What Do I Do?

Dear Prospective Juror:

If / when you are served with an Ontario Jury Service Questionnaire, then simply answer the questions and remember to mail it within 5 days of receipt.  There should be a self-addressed, stamped envelope attached, to make it easy.

I was served with notice that I am included in the Jury Roll potentially for an upcoming jury selection panel.  Here’s a copy my notice, with some redactions of identifying information.

Who Can / Cannot Serve on a Jury?

The decision-making tree for jury service is as follows:

1. Are you 18 years or older and a Canadian citizen?  If yes, go on.
2. Are you disqualified because of any of the following:

a.  You’ve attended court for jury selection in previous 2 years;

b.  Your occupation excludes you from jury service;

c.  You have a physical or mental disability that prevents you from serving as a juror; or

d.  You’ve been convicted of a criminal offence that can be prosecuted by way of an indictment for which you haven’t been granted a pardon.

As for factor “2b” above – an excluded profession, Section 3 (1) of the Juries Act reads as follows:

Ineligibility to serve as juror

Ineligible occupations

3.  (1)  The following persons are ineligible to serve as jurors:

1. Every member of the Privy Council of Canada or the Executive Council of Ontario.
2. Every member of the Senate, the House of Commons of Canada or the Assembly.
3. Every judge and every justice of the peace.
4. Every barrister and solicitor and every student-at-law.
5. Every legally qualified medical practitioner and veterinary surgeon who is actively engaged in practice and every coroner.
6. Every person engaged in the enforcement of law including, without restricting the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice. R.S.O. 1990, c. J.3, s. 3 (1); 1994, c. 27, s. 48 (1); 1997, c. 4, s. 82.

As a result, I won’t be serving on a Jury, however, because I am a lawyer actively practicing in Ontario.

For non-lawyers and law enforcement on the above list, I think the idea is that their occupation is a form of valuable public service which ought not to be disrupted by jury service.  The list is somewhat arbitrary, to be sure, as there is a long list of valuable occupations that arguably should be included on the list as well.

While it is not surprising that medical practitioners are given a pass, the inclusion of veterinary surgeons may be unexpected.  Obviously, these vets have a stronger lobbying group that all other professions (i.e. suck it, accountants).

The Importance of Jury Service

Weak jokes aside, there is no doubt that jury service is truly a public service.

If you serve, it is likely that you will not be paid for your time off work, as the legislation only requires employers to allow you to serve; employers are not required to pay you for this time off.

While you can be excused from selection on a specific case due to hardship, such as inability to take time off because you’re caring for an ill family member or specific issues related to your work, understand that the emphasis is to include people in jury service and that being excused is an exception. You may be excused from serving on one case only to go back into the pool and be called for another case.

I have spoken to many people who have served on juries and generally, they have been very positive about the experience.  Generally everyone has found the process to be fascinating and they have understood the critical importance of juries in our civil and criminal system.

One of my relatives served, years ago, as a juror on a serious criminal case.  He took meticulous notes during the entire 4 week Trial and found the deliberation process to be intense.  In fact, the jury seemed to swing from one spectrum to the other (i.e. guilty vs not guilty) a couple of times. Near the end of the deliberations, the jury re-read his notes as to specific testimony of one of the key witnesses before finally deciding the case.  He was amazed at how much information had been forgotten generally by the jurors, himself included – which was not realized until the jury meticulously went through everyone’s notes, day by day, as to what took place.  He walked away with a heightened appreciation of how much information was transmitted during the course of the Trial and thought that both Crown and defence counsel handled themselves well.

If you receive a jury notice, bring a good book with you during the selection process, as you’ll like be waiting for long stretches of time being finally being picked.  But once you’re chosen for a Trial, then enjoy the process and thank you for your service.

More information is found here about jury duty from the Ontario AG, as well as their FAQs.

Greg Chang

Toronto Personal Injury and Insurance Lawyer

E-Bikes Revisited: Remember 3 Things

Further to my previous articles on e-bikes here and here, today there is an amusing article by Peter Cheney of The Globe and Mail detailing his experience riding an e-bike in the central/downtown Toronto area for a week.

As I have previously written, I think that e-bikes are a dangerous contraption given that there is no insurance that you can / have to buy in order to ride.

This makes them dangerous because you can fly along at 32 km/hr (or 60 km/hr potentially, as Mr. Cheney personally experienced with a fellow e-biker whizzing by him effortlessly), yet there’s no guarantee that you have the physical capabilities to be riding that fast.

Put another way, if you’re fit enough to hit speeds of 30 or 35km/hr on a bicycle, then presumably you’re very fit and have been riding for a while – i.e. presumably your reflexes match your level of physical fitness.  Or you’re going down a very steep hill (and it will all be over very quickly).

But that’s the point – if you ride stupidly on a bicycle and whiz down a hill going much too fast for your own good, well, at least you’re making a deliberate decision to put yourself in danger for that particular moment.

But with an e-bike with, as Mr. Cheney notes, you likely have a group of riders who are most focused on saving money, but aren’t necessarily fit or capable of managing an underpowered and completely silent machine which chips along at 32 km/hr:

My fellow e-bike customers are a motley crew: there’s a young U of T student with a backpack, a vastly overweight woman in a Cowichan sweater and a guy who looks like he was just released from a detox facility. Already, I can see three key e-bike demographics: seekers of low-cost transportation, would-be cyclists who don’t have the required lung capacity and car drivers who have lost their licences to the breathalyzer.

3 Things to Remember Before Riding an E-Bike

1. Apparently you don’t get respect from drivers or bicyclists.  I have read a number of articles that describe being in a ‘no-person’s land’ when you ride an e-bike.  Plus Mr. Cheney humorously describes that there seems to be missing any sort of camaraderie among e-bike riders.

2. What you save in cost equals the disproportionate risk you are taking.  If you are extremely fit and have good reflexes then….why aren’t you cycling instead of riding an e-bike?  But I digress.  

Owning an e-bike does not require you take any training.  Compared to a motorcycle, which requires training and a test to attain your license, this is the wild west.

If you’re looking to save money, then ride a bicycle and get fit.

If you’re worried about showing up at work in a sweat, then get a cheap membership to a gym that will allow you to shower – probably still cheaper than buying an e-bike.

If you are in Toronto, then probably you’re riding your e-bike around the downtown core. Then you have streetcar tracks to navigate.

About streetcar tracks: a good friend of mine, a former collegiate athlete with much faster reflexes than the average person, was commuting to work on his bike when he was pushed off course by a cab and into streetcar tracks, which stopped him cold.  Up and over he went and he managed, probably because of his reflexes and fitness level, to break his fall with his hand/arm.  He jammed up his wrist /arm / shoulder pretty badly, but otherwise he was fine.  

If you’re riding an e-bike in Toronto outside of the downtown core, then I wish you well.  Go along any major road – Eglinton, York Mills, Sheppard, Finch, Steeles, Bathurst, Dufferin, Bayview, Leslie, Don Mills, etc – that has “60 km/hr” as the speed limit and you’ll find commuting vehicles regularly hitting 75 km/hr when they find a small patch of clear road in front of them.  Cyclists are a less frequent sight on these roads and, at least, I generally see cars pulling out and giving as much space as possible to the hardworking cyclist as they pass.  These are not the best roads for e-bikes to commute on.

3. If you are hurt, there may be no insurance coverage for you.  If you are hit by a car, then you’ll have car insurance coverage.  But what if you’re hurt by losing control going over a pothole?  Or as Mr. Cheney describes, by being unfamiliar with the weight of the e-bike and the existence of faux pedals on the side which impeded your ability to make sharp turns?  In that case, you will have no insurance policy to help you or to claim against.

Why Do You Dislike E-Bikes So, Greg?

My concern about e-bikes is that they put people daily into the most dangerous of situations – commuting during morning and afternoon rush hour.  The very purpose of an e-bike is for transportation; they are not a recreational vehicle.  You don’t buy an e-bike for a leisurely stroll in High Park or through the Bruce Trail.  E-bikes are used to commute to/from work and to run errands.

Given their abilities, e-bikes are likely to be used mostly in the downtown or central Toronto core, where traffic is always present.  You’re fighting for space among delivery trucks, commuting cars, motorcycles, mopeds and cyclists – and remember that almost no one particularly respects you.

In the absence of any barriers to using an e-bike – Mr. Cheney rented his bike and was riding within 10 minutes – there is no guarantee that the rider actually knows how to handle an e-bike going 32 km/hr.

At least on a bicycle, the inexperienced rider would briefly attain 32 km/hr and then drop down to a slower pace, due to simple fatigue.  Presumably this slower pace would be safer for the inexperienced bicyclist to handle.

Greg Chang

Toronto Personal Injury and Insurance Lawyer

Addendum (Oct 14, 2014)

I just discovered this helpful article by Ms. Breanne Nicholson, “Ruling confirms e-bikes are not motor vehicles”, in the Legal Feeds blog for the Canadian Lawyer and Law Times.  It describes the detailed decision of His Worship Donald Dudar, Justice of the Peace of the Ontario Court of Justice issued January 30, 2013.

It’s a useful read for anyone looking into the status of e-bikes.