Articles 2023

For years, there was little, if any, judicial or arbitral interpretation of the issue of "incurred." However more recently, case law has finally emerged to clarify some of the points of contention. Is it certain yet what does and does not constitute an “incurred” expense? The short answer, as with so many legal questions, is both yes and no.

Seemingly out of nowhere, institutional litigants, insurers and the third-party vendors they retain to support their obligations in responding to claims have been inundated with requests for disclosure on pain of complaints or actions to collect damages under PIPEDA. In some instances, parties directly approach non-parties such as medical experts and private investigation companies and demand production of documents separately from any disclosure procedures in the claims or law suits.

The deductibility of the value of sick days is a question that many lawyers have to confront in various personal injury matters. While some counsel believe sick days are deductible, others believe that it depends on the type of loss. This article discusses the varied arguments and law surrounding the deductibility of sick days.

This article discusses the OBA's CPD program on Ethics and Civility featuring speakers Joseph Groia, W.A. Derry Millar, Justice Michael Tulloch, Prof. Constance Backhouse, Prof. David Lepofsky, William S. Chalmer, Alfred Kwinter, and Ian Hu. The speakers tackled contentious issues on civility and professionalism facing litigators.

Since the Supreme Court decision in Hryniak v Maulden, a number of summary judgment motions have come before the courts. However, the recent decision in Anjum v Doe (2016 ONSC 7784) is one of the few decisions that truly follows the Hryniak process as envisioned by Justice Karakatsanis in her ground breaking decision. Jim discusses whether the Anjum decision fulfilled the Hryniak promise to alleviate protracted cost and delay associated with civil trials in Canada.

This particular LAT decision suggests that if applicants do not medically qualify for an IRB, they can still apply for NEB, if not given the option to elect, thus requiring insurers to send out election forms for every claim where IRB may be payable to preclude applicants from claiming both NEB and IRB.

Counsel who act in matters that may be funded by litigation loans will want to be aware of the June 22, 2016 decision of Justice Sloan in this case, in which a litigation lender was found to have breached the Consumer Protection Act, and accordingly was only permitted to recover 5% per annum simple interest, as opposed to the 19.5% to 24% interest compounded monthly that had been set forth in the lending agreements.

Message from the Chair of the OBA Insurance Law Section

This decision highlights the importance of lawyers reviewing the medical records and the medical-legal reports generated during the Applicant’s file, and whether these documents are clear as to why the Applicant is either within or outside the Minor Injury Guideline (MIG). The adjudicator decided that the LAT will not infer information that is not clearly expressed in the medical evidence especially when compelling evidence is required to be discharged from the MIG.