New Inspection Powers to Address Auto Insurance Fraud

New inspection powers that were included in the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 come into effect on April 1, 2015.

The Consumer Protection Act, 2002 has amended to regulate consumer transactions involving tow and storage services and establishes rules for the towing and vehicle storage industries through measures that tackle questionable practices.

As examples, rules are provided for:

1. Disclosure of information to consumers.
2. Requirements that tow and storage services provided to consumers be authorized.
3. Deviating from estimated payment amounts.
4. The provision of itemized invoices.
5. Insurance requirements.
6. Publication of rates.
7. A Tow and Storage Consumers Bill of Rights.
8. Requirements that consumers be allowed to remove personal property from towed or stored vehicles.
9. The establishment of qualifications for tow and storage providers.

New inspectors will be appointed under the Consumer Protection Act in order to take a more preventative and targeted approach to enforcement through the use of education and awareness materials and new tools such as warning letters.

With these new changes, inspectors will be able to:

• Proactively enter a place of business in Ontario Examine documentation relevant to an inspection 
• Require the person being inspected to cooperate in the inspection 
• Issue orders to address and correct consumer issues, where appropriate.

This is part of an ongoing process in implementing recommendations made by the Automobile Insurance Anti-Fraud Task Force.

Westerhof v. Gee - Expert Testimony

The much anticipated appeal decision in Westerhof v. Gee was released yesterday.  It can be found at 2015 ONCA 0206 (C.A.).  In Westerhof, the trial judge refused to let in evidence on history, diagnosis, and prognosis from medical practitioners who were treating practitioners or non-party experts.

The Court of Appeal overturned the Divisional Court decision, which held that the key factor in determining whether r. 53.03 applies is whether the evidence is fact or opinion.  Instead, the Court held:

[60]     Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

·        the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

·        the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Rule 53.03 does not apply to the opinion evidence of a non-party expert where that person has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.  The court retains its gatekeeper function and may require compliance with r. 53.03 if the expert goes beyond the scope of opinion formed in the course of treatment or observation for purposes outside of the litigation.

Given the decision in Westerhof  it will now be permissible for treating practitioners and accident benefits assessors to testify without complying with r. 53.03.

Be sure to update your life insurance beneficiary(s)

I have many clients who unfortunately have serious disabling injuries that will prevent them from returning to work for the rest of their lives. In the madness that is living with a life altering injury and dealing with OWCP, people sometimes never get around to updating their life insurance beneficiary choice. Recently, a client passed away who had never updated his life insurance to list his wife of many years. Instead, his life insurance went to a cousin who had had little involvement with them for many years. The forms to select a beneficiary are available on the OPM website, complete the necessary form and follow the instructions for submitting the forms:
http://www.opm.gov/healthcare-insurance/life-insurance/designating-a-beneficiary/#url=Forms-for-Designations

Surveillance Must be Disclosed Before Trial

A recent decision from the Ontario Court of Appeal dealt with the use of surveillance evidence at trial.

In Iannarella v Corbett, 2015 ONCA 110 (C.A.), the plaintiff (Iannarella) had been rear-ended by the defendant (Corbett) and claimed that he had injured his rotator cuff as a result of the incident. Before trial, the defence filmed 130 hours of surveillance video of the plaintiff, but failed to disclose the existence of this surveillance in an affidavit of documents. Nevertheless, the trial judge allowed the defence to play the surveillance video at trial and to cross-examine Iannarella on its contents for the limited purpose of impeaching his credibility.

The jury found that Corbett was not liable for Iannarella’s injury. In the event that Corbett had been found liable, the jury would have awarded Iannarella $32,000 in general damages, $40,571 for past income loss and nothing for future income loss. Iannarella appealed.

In its decision, the Ontario Court of Appeal first concluded that the trial judge had incorrectly directed the jury on the issue of liability. The Court next turned its attention on the defence’s use of surveillance at trial. The Court explained that the Rules of Civil Procedure require that a party serve an affidavit of documents – whether or not the other side requests it – and this affidavit of documents must disclose the existence of any surveillance. Failure to properly disclose surveillance in this way means that said surveillance cannot be used at trial without leave of the court.

In this case, because the disclosure did not occur until the trial was well underway, the Court held that leave should not have been granted. The Court determined that the plaintiff had lost the chance to factor the surveillance’s existence into pre-trial settlement negotiations and had inadequate time to prepare an examination-in-chief that could properly respond to the surveillance. The Court said that, by allowing the defence to use the surveillance at trial, the trial judge had enabled a “trial by ambush.”

Due to these errors, among others, the Court substituted a finding of liability against the defendant and ordered a new trial on the issue of damages.

Defence counsel who wish to use surveillance at trial should be aware of Iannarella, and serve an updated Affidavit of Documents 90 days before trial in compliance with r. 30.09.

Uber Drivers, Consumers at Risk

I'm featured in the news report below on Uber and insurance.

Mon, Mar 23: Customers who used ride-sharing services like UberX may be at risk if the driver is involved in an accident. As Sean O’Shea reports insurance experts say drivers are violating insurance rules and may be putting themselves and their fares in jeopardy.

Insurance News - Sunday, March 22, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Sunday, March 22, 2015:

• The Court of Appeal for Ontario has ruled in favour of the insurer on a dispute regarding the two-year limitation period and bad faith in Blake v. The Dominion.
• Lying about where you garage your car to save on auto insurance is about to become a crime in New Jersey.
• Ohio becomes 38th state to approve the use of electronic proof of insurance.  Still no Canadian jurisdiction has introduced an electronic insurance card.
• Half of young Britons who drive for work fear being replaced by driverless cars before retirement.
• Another possible impact of driverless cars: Police forces may shrink as there will be no need for traffic enforcement.

Insurance News - Friday, March 20, 2015

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Friday, March 20, 2015:

• Driveless cars may drive down your insurance costs.
• Not surprising, some insurance companies have suggested that driverless cars  may be a possible financial threat.
• Google has announced the introduction of a United States version of its Google Compare auto insurance shopping site, which has been operating in Britain for two years.
• Who is going to own and control the automotive market when driverless cars are introduced? Car manufacturers or technology companies?
• Uber and Lyft fail to convince judges their drivers are merely 'contractors'.
• Uber's "low-cost" UberPop service has been banned in Germany after a court decided it violated transport laws.