"Buyer's Remorse" Does Not Entitle Plaintiff to Rescind Settlement

In almost every settlement, there is an element of compromise.  In some cases, there is "settlor's remorse" and one of the parties tries to rescind the agreement.  Fortunately, the courts generally hold litigants to their bargains.

An example is Morant v. Sun Life Assurance Company of Canada, 2014 ONSC 2876 (S.C.J.).  The parties attended a mediation where they reached a settlement.  Approximately two weeks letter, the plaintiff's counsel wrote advising his client wished to resile from the settlement and would bring a motion to set it aside.  Plaintiff's counsel filed an affidavit deposing that at the time of the settlement, the plaintiff was in emotional and physical pain, extremely fatigued and felt unduly stressed and pressured.  The plaintiff herself did not file an affidavit.

Justice Daly dismissed the motion to set aside the settlement.  Justice Daley held that as a general rule parties are held to their agreements, although there are certain situations where courts may exercise discretion not to enforce a settlement: 

[34]           As a general rule parties are to be held to their bargains and to settlements which they negotiate and conclude. The court may exercise its discretion not to enforce the terms of a settlement where there is evidence that:

(a)               the resulting agreement and settlement was unconscionable, fraudulent or based on a party’s misapprehension of a material fact which was known to the opposite party;

(b)               the solicitor representing the party was not retained or did not have authority to settle the action and this limitation was known to the opposite party; and

(c)               the party lacked the legal or mental capacity to enter into the settlement agreement at the material time.

In the circumstances, there was no evidence that counsel did not have authority, that the plaintiff lacked capacity or that the settlement was unconscionable.  At most, the plaintiff's evidence was that she had a change of heart or "buyer's remorse", which does not constitute proper grounds for setting aside a settlement.

Insurance News - Monday, October 6, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, October 6, 2014:

• How do you determine the appropriate premium fro a driverless car?
• Here is a list of America's most ticketed cars.
• Volvo is the only car company on the planet to make a commitment to develop and build cars that result in zero deaths or serious injuries by 2020. But the deadline appears to more marketing than a real goal.
• Some experts think new car technology may not lower insurance rate.
• Ontario health minister orders inspection and investigation reports on private clinics made public.

OWCP changes case jurisdiction for some FECA claims arising in Maryland to the Philadelphia district office

Continuing a trend that started some years ago, OWCP has taken more cases away from the Washington DC district office and assigned them to the Philadelphia district office. This means that anyone with a claim that has been reassigned should assume that their claim is going to receive a renewed level of scrutiny.

It is critical that your file has current narrative medical reports addressing causation and your ongoing need for benefits from OWCP. Many of the cases being transferred to Philadelphia have not gotten much attention in a long time.

As a general rule of thumb, you should be seeing a doctor regarding your conditions not less than once every four months. OWCP expects to see "current" (not more than six months old) medical information from your doctor about your injury.

If there is not current information in your file you should expect to be shopped for a second opinion examination.

Here is the link from OWCP explaining the reassignment of case jurisdiction.

http://www.dol.gov/owcp/dfec/casejurisdiction.htm

Ontario Ministry of Finance Has Provided Notice On Intent To Introduce New Rules For Service Providers

The Ministry of Finance is proposing to amend O. Reg. 7/00  to make it an unfair or deceptive act or practice (UDAP) for a person who provides or offers to provide goods or services for the benefit of a person who claims statutory accident benefits to communicate any false, misleading or deceptive information regarding their business or billing practices, services provided, or any other matter related to licensing.

 This UDAP is intended to apply to both licensed and unlicensed service providers. An unlicensed service provider may not advertise that they are a licensed provider. A licensed provider that has had their licence suspended or revoked may not continue to advertise that they are licensed. This amendment would ensure that consumers can identify licence holders and avoid confusion about what licence holder status means. This will also discourage inaccurate claims about what a licence signifies.

 In addition, the Ministry is proposing regulatory amendment to allow the Superintendent to apply variable administrative monetary penalties (AMP) to deal with significant contraventions of the regulations that can involve or potentially lead to improper billing practices. The service provider would have the opportunity for a hearing before the Financial Services Tribunal on the proposed AMP.

The Ministry is also proposing to amend O. Reg. 90/14 (Service Providers – Standards for Business Systems and Practices) to introduce a duty to report accurately to the Superintendent of Financial Services, in the periodic return established under section 288.4(5) of the Insurance Act, all information necessary to calculate any applicable fees established pursuant to section 121.1 of the Insurance Act.

The Ministry is proposing to amend O. Reg. 89/14 (Service Providers – Listed Expenses) to prohibit licensed service providers from invoicing claimants directly - they will receive direct payment from insurers. The proposed amendment will allow licensed service providers to seek payment for outstanding accounts directly from claimants in prescribed situations (where a full and final settlement has been reached and signed between the insurer and the insured person that includes these amounts).

Finally the Ministry is also proposing to amend O, Reg. 34/10 (SABS) to require claimants who go to unlicensed service providers to obtain specified billing information from their service provider and submit this information to their insurer when seeking reimbursement.

The SABS would also be amended to require insurers to provide HCAI the billing information when they reimburse a claimant for a "listed expense". These amendments will ensure the continuity of robust and more complete data collection by HCAI. It will avoid possible loss of data that may otherwise occur when claimants are invoiced directly by service providers who are not licensed to be paid directly through the central processing agency.

The Ontario government's Regulatory Registry is inviting stakeholders and interested parties to provide comments on these proposed regulations (that have yet to be made public). The deadline for comments is November 6, 2014.

 Ontario's Regulatory Registry provides information on new proposed regulatory initiatives that could affect Ontario businesses and recently approved regulations that affect business. Regulations are approved by the provincial Cabinet.

 Once a regulation is approved, a plain language summary of the regulation is posted on the Registry website, with a link to the regulation posted on the Government of Ontario's e-Laws website.

Insurance News - Thursday, October 2, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Thursday, October 2, 2014:

• Death, drones and driverless cars: how Google wants to control our lives.
• Here's how technology is being used to fight insurance fraud.
• Google is Uber's biggest investor. See where this is headed.
• New Minimum Capital Test Guidelines for P&C insurers coming in 2015.
• FSCO has received service provider licensing applications from 2,712 healthcare facilities. FSCO also maintains a public registry of licensed service providers.
• OSFI warns of lower underwriting profits if Ontario auto insurance  rates are reduced by 15%.

Ontario Ministry of Finance Has Provided Notice On Intent To Change The Interest Rate On Disputed SABS Claims

The Ministry of Finance is proposing to amend the SABS (O. Reg. 34/10) so that when there is a dispute in respect of an insured person's entitlement to, or amount of statutory accident benefits, interest on overdue SABS payments is calculated at the prejudgment interest rate described in the Courts of Justice Act that is used for past pecuniary loss, and is payable from the date on which a mediation proceeding is commenced and ends on the date a settlement is reached or a decision is issued that finally disposes of the dispute.

 The Ontario government's Regulatory Registry is inviting stakeholders and interested parties to provide comments on these proposed regulations (that have yet to be made public). The deadline for comments is November 6, 2014.

 Ontario's Regulatory Registry provides information on new proposed regulatory initiatives that could affect Ontario businesses and recently approved regulations that affect business. Regulations are approved by the provincial Cabinet.

 Once a regulation is approved, a plain language summary of the regulation is posted on the Registry website, with a link to the regulation posted on the Government of Ontario's e-Laws website.

Automatic Renewal Section of Policy Does Not Obligate Insurer to Renew

Does an "automatic renewal" section in a home owner's policy require the insurer to renew?  A recent decision says "no".

In Merei v. State Farm Fire and Casualty Company, 2014 ONSC 1960 (S.C.J.), the plaintiffs' home was destroyed by fire eight days after their home insurance policy was cancelled.  The insurer's underwriting department made the decision not to renew the policy after the plaintiffs made three claims and had a history of non-payment.  The policy contained the following clause:

Automatic Renewal – if the policy period is shown as 12 months, this policy will be renewed automatically subject to the premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienholder written notice in compliance with the policy provisions or as required by law.

The plaintiffs alleged that the "automatic renewal" section of their policy obligated the insurer to renew the policy as they were not in arrears, not in breach of any of the rules in the policy and had submitted all forms.

The Court disagreed, relying on the plain reading of the contract (and common sense).  Justice Carey held that the policy was intended to allow for a renewal of the policy when the policy has not been cancelled.  He stated, "It is contrary to all rules of interpretation and normal insurance practice to conclude the insurer intended that they could only cancel the policy if the policy was not in good standing".