Helping Those Who Need It The Most ™
News & Insights

Blog

At Smitiuch Injury Law, we dedicate our practice to helping clients through difficult periods of their lives. We handle the legal burdens while you focus on healing and your well-being.

motor vehicle accidents Archives

Concussions - Not a "get up and shake it off" injury

The seriousness of concussions cannot be overstated.

Health care providers are becoming more aware of the effects of concussions (also known as Acquired Brain Injury - ABI).  What was once a, "get up and shake it off" occurrence, has now become a proper assessment with protocols for monitoring the status of the individual as they return to work or sports. ABI is a physical injury to the brain (concussions). It can be caused by a blow to the head, severe rotation of the neck or whiplash, or even from a lack of oxygen. Over 160,000 Canadians suffer brain injuries every year and, with better reporting, that number gets more accurate and thus keeps rising.

Insurer Has Obligation to Ensure Graduated Return to Work is Possible: FSCO

A recent arbitration decision from the Financial Services Commission of Ontario (FSCO) has concluded that an accident benefits insurer has an obligation to ensure that a graduated return to work is possible before terminating income replacement benefits. In the decision Nader and State Farm [FSCO A13-003230], Javed Tabey Nader was injured in a motor vehicle accident and was unable to return to his pre-accident job.  His accident benefits insurer, State Farm, sent him to insurer's examinations and the assessors concluded that he could participate in a graduated return to work program.  State Farm then notified Mr. Nader that they were discontinuing his income replacement benefits after the period that the insurer's assessors concluded that the graduated return to work would be completed. No one from State Farm ever checked to see if Mr. Nader's employer was able to accommodate a graduated return to work, which it could not.  Moreover, when State Farm was advised that Mr. Nader did not return to work, State Farm did not find out why this did not happen and simply maintained their denial. Arbitrator Bujold concluded that Mr. Nader was entitled to income replacement benefits for the first two years of his accident benefits claim and made the following comments with respect to a special award of $5,000.00:

Important Changes are Coming to Your Car Insurance Policy

While no one likes to pay car insurance premiums, these are meant to provide you with peace of mind in the event that you are ever injured in a motor vehicle accident. It is very important that you plan for the worst-case scenario so that you will have the funds that you need to cover your medical, rehabilitation, attendant care, and other expenses if you are seriously or catastrophically injured. As of June 1, 2016, all new or renewed automobile insurance policies written in Ontario will significantly lower the standard amount of accident benefits available to an individual who is injured in a motor vehicle accident. Accident Benefits are available to anyone in Ontario injured in a motor vehicle accident, regardless of fault. The most significant changes to the standard policy will be as follows:

Change to Economic Loss Payment Not Retroactive: Court

A judge of the Ontario Superior Court of Justice has ruled that a change to the Statutory Accident Benefits Schedule (SABS) which became effective on February 1, 2014, does not apply to accidents prior to this date. In the decision David v Wawanesa Mutal Insurance Company [2015 ONSC 6624], Quinlan J. considered whether Section 2 of Ontario Regulation 347/13 applies to accidents prior to February 1, 2014, when this regulation came into force. In September of 2010 a change to the SABS allowed for non-professionals (e.g., family or friends) to be compensated for the attendant care that was provided to a person injured in a motor vehicle accident only if that non-professional suffered an "economic loss".  The term "economic loss" was not defined.  The Ontario Court of Appeal later ruled, in its decision on Henry v Gore Mutual Insurance, that if a non-professional suffered an economic loss, they were entitled to the full amount of the monthly attendant care needs (Form 1) and that reimbursement was not limited to the actual amount of the economic loss.  In other words, once a non-professional established that an economic loss had been demonstrated, the full amount of attendant care benefit was payable as assessed. In December of 2013 the Government of Ontario filed Ontario Regulation 347/13 to limit the amount of compensation for a non-professional to the actual amount of the economic loss sustained.  This regulation went into effect on February 1, 2014.  The regulation is silent on whether or not it is retroactive. Quinlan J. states as follows:

FSCO Announces Amendments to Automobile Insurance Legislation and Regulations

The Superintendent of Financial Services for the Financial Services Commission of Ontario (FSCO) has released a bulletin today (A-05/15) outlining amendments to Ontario's automobile insurance legislation and regulations.  Below is the content of this bulletin: With this bulletin, the Financial Services Commission of Ontario (FSCO) is highlighting a number of recent reforms to automobile insurance legislation and regulations. These reforms are the result of the announcements made by the government in the 2015 Ontario Budget. They include amendments to the Insurance Act, and to Regulation 664 (Automobile Insurance) and Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur on or After November 1, 1996). In the upcoming months, FSCO will issue additional bulletins relating to the implementation of other automobile insurance reforms announced in the 2015 Ontario Budget. The amendments are listed and outlined below: Ontario Regulation 664 (Automobile Insurance) This regulation has been amended to require that all insurers offer a discount to policyholders for the use of winter tires. The winter tire discount must be made available for contracts issued or renewed on or after January 1, 2016, for all eligible private passenger automobile policies. Insurers are encouraged to implement the discount before January 1, 2016, where feasible. Insurance companies that do not currently offer a winter tire discount must file an application for approval with FSCO no later than August 28, 2015. Insurers should use the Private Passenger Automobile Filing Guidelines - Simplified for these applications and not off-balance this discount. Insurers are required to have a process in place to notify their policyholders of this new discount. For inquiries regarding the filing process for this discount, contact your Rate Analyst in the Automobile Insurance Services Branch at FSCO. Ontario Regulation 461/96 (Court Proceedings For Automobile Accidents That Occur On Or After November 1, 1996) This regulation has been amended to ensure that the deductible amounts for damages for non-pecuniary loss (pain and suffering) reflect the effects of inflation since 2003. The regulation amendments include the following: The $30,000 deductible amount prescribed in the case of damages for non-pecuniary loss is adjusted to $36,540 from August 1, 2015 until December 31, 2015. On January 1, 2016 and every subsequent year, this amount will be revised by adjusting the amount by the indexation percentage published under Insurance Act subsection 268.1 (1) for that year.

Client Involved in an "Accident": FSCO Arbitrator

Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO). D.C. (initials are being used, at our client's request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground.  D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle.  The vehicle did not stop and there were no known witnesses. D.C.'s bicycle was damaged to the point that he could not ride it home.  The damage was seen by his wife and his brother-in-law.  Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash.  D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence.  Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses. He went home, scraped and bruised, but otherwise felt fine.  The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy.  Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits.  D.C. called, and then retained, Smitiuch Injury Law. An accident benefits claim was started with D.C.'s insurer, Aviva Canada.  Aviva accepted D.C.'s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits.  However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an "accident", as defined in the Statutory Accident Benefits Schedule (SABS). Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C.  Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle.  Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle. Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C.  As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life. The redacted arbitration decision can be read it its entirety by clicking on the link below. DC and Aviva Canada (Redacted) dated July 3 2015

FSCO Announces Amendments to SABS, Service Provider Regulations, etc.

The Financial Services Commission of Ontario (FSCO) has released a bulletin announcing changes to the Statutory Accident Benefits Schedule (SABS), service provider regulations, administrative penalties and eligibility for transportation expenses. Below are the highlights:

FSCO Releases New Professional Services Guideline

The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline, which applies to expenses related to services provided by health care providers rendered on or after September 6, 2014. A copy of the new guideline can be found at the link below. 2014 FSCO Fee Guidelines

The Winter 2014 issue of disclosure is now available

Get the facts and the truth about some common Traffic Law Myths. Did you know that a traffic ticket cannot simply be dropped even if there was a mistake made on the ticket?Winter 2014 Newsletter Cover   Do you have a favourite lawyer joke? Is it in our list of PG rated jokes?   Although the annual number of impaired driving charges is down, it only takes one impaired driver to cause a traffic incident and destroy a family for life. Read about FAID and Smitiuch Injury Law's support of the Freeze the Keys campaign.   These are just a few of the interesting articles in this issue.   The newsletter is available on our website or to request a hardcopy please call 1-866-621-1551 or email us at [email protected]

  • Contact Our Personal Injury And Disability Benefits Lawyers For A Free Consultation
  • Get the answers that you need, free of charge. We offer a no-risk initial consultation to clients across Toronto, Brantford, Simcoe, Hamilton, and the GTA.

    Get A Free Consultation

Toronto Office
3280 Bloor Street West
Centre Tower, Suite 800
Toronto, Ontario M8X 2X3

Toll Free: 866-621-1551
Phone: 416-621-1551
Fax: 416-621-1558
Toronto Law Office Map

Brantford Office
330 West Street
Unit 6
Brantford, Ontario N3R 7V5

Phone: 519-754-1558
Fax: 519-754-1580
Brantford Law Office Map

Hamilton Office
1 Hunter Street East
Hamilton, Ontario L8N 3W1

Phone: 905-777-7907
Fax: 416-621-1558
Map & Directions

Simcoe Office
16 Norfolk Street South
Simcoe, Ontario N3Y 2V9

Phone: 519-426-9332
Fax: 519-754-1580
Simcoe Law Office Map

Scroll To The Top