Threshold Motion Successful

Surveillance evidence can be useful in showing that the plaintiff does not meet the Insurance Act threshold.

In Dahrouj v. Aduvala, 2012 ONSC 4090 (S.C.J.), the plaintiff was injured in a minor rear end collision.  She was a homemaker and alleged she developed chronic pain which impaired her functioning in the home and her social interaction in the community.

The evidence at trial was that the plaintiff visited her family doctor on multiple occasions prior to the accident complaining of head, neck and back pain.  She made similar complaints post-accident.  The defendant obtained surveillance showing the plaintiff engaged in a variety of activities, including scraping snow and ice off her car, pumping gas, reaching for groceries on an upper shelf and carrying groceries.  Justice Hackland described the video as “particularly devastating” to the plaintiff’s credibility, as it showed the plaintiff stretching and lifting, the activities she alleged restricted her functioning as a homemaker.

The plaintiff’s expert diagnosed her with “central sensitization”, based on a 45 minute interview and relying only on the plaintiff’s self reports.  Justice Hackland preferred the defence expert, who conducted a more thorough assessment and whose opinion was corroborated by the surveillance evidence.

Justice Hackland held the plaintiff had not proved she sustained a serious, permanent impairment of an important physical function.  As a result, she was not entitled to general damages and her recovery was limited to $32,000, the amount the jury awarded for past housekeeping. 

Surveillance of the plaintiff can be extremely important in defending claims, especially those alleging chronic pain.  When surveillance can be combined with expert opinion, it can be effective in showing that the plaintiff’s claim does not meet the threshold.

Adding an Insurer as a Defendant Rather than a Statutory Third Party

Can an insurer add itself as a defendant rather than as a statutory third party?

In Azad v. Dekran, 2012 ONSC 4257 (S.C.J.), the Personal insured the defendant and brought a motion pursuant to r. 13.01 to intervene as an added defendant.  It wished to allege that the accident did not occur or was staged and to crossclaim against its insured.  It preferred this route rather than being added as a statutory third party since s. 258(14) of the Insurance Act prohibits a statutory third party from taking a position incongruous to its insured.

Master Dash dismissed the motion, holding that it was not a proper use of r. 13.01.  One of the purposes of s. 258 is to permit an insurer to contest the plaintiff’s claim in a situation where it denies coverage.  The plaintiff’s action is not the appropriate forum to decide issues between the insured and insurer.  Any dispute could be decided in subsequent proceedings, including a proceeding to recover the statutory minimum paid to the plaintiff. 

Master Dash noted that if the accident was staged, the plaintiff would not be entitled to damages; on the other hand, if the trial court did award damages, it would mean there was a legitimate accident and there would be no basis for a crossclaim against the insured.  In addition, as a statutory third party, the insurer would have a right to discover its insured.

Master Dash refused to follow the decision in Esho v. Dekran, 2012 ONSC 3638 (S.C.J.), where the insurer was added as a defendant.  Now that there are conflicting decisions on this issue, perhaps it will be up to the Divisional Court to provide clarity.

Production of Statements Made Following an Accident

A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.

In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot.  The accident occurred at 8:55 p.m..  The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m.  At this point, she was aware that two people had been injured.  She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind.  The statement was delivered to the adjuster later that day.

On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.

Justice Hockin held that litigation privilege attached to the document.  The property manager knew there was an accident and that two people had been injured.  She believed that litigation would follow.  It did not matter that the defendant was not represented by counsel at the time.  The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case. 

Privilege was not waived.  Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4^th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.

Failure to Add Property Owner as Additional Insured

Many winter maintenance contracts require the contractor to add the property owner as an additional insured on its policy.  But what happens when the contractor fails to do so and the owner is sued?

In Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506 (C.A.), the plaintiff sued the Cora Group, alleging she slipped and fell on black ice on its property.  Cora contracted with Collingwood Landscape for winter maintenance services.  In the service contract, Collingwood agreed to name Cora as an additional insured on its CGL policy, but failed to do so.  On a motion for summary judgment, Collingwood was ordered to assume Cora's defence and indemnify it for damages.  Collingwood appealed.  Cora conceded that the order to indemnify was premature so the primary issue on appeal was whether the motions judge erred in ordering Collingwood to assume Cora's defence.

The Court of Appeal set aside the original Order and substituted an Order that Collingwood pay for Cora's defence.

Simmons J.A. held that Collingwood's breach of its contractual obligation to name Cora as an additional insured did not create a duty to defend; rather, it gave rise to a remedy in damages.  The quantum of such damages is the amount Cora will be required to pay for a defence of the claims that Collingwood's insurer would have paid had Collingwood fulfilled its contractual obligations.  The costs would include all of the costs of Cora's defence except for those incurred exclusively to defend claims that do not arise from Collingwood's performance or non-performance of the contract.  Cora was entitled to separate counsel given there were distinct claims against the two parties, which meant there would be an inherent conflict between them.

Withdrawing Deemed Admissions

When will a party be permitted to withdraw deemed admissions arising from the failure to respond to a Request to Admit?

In Epstein Equestrian Enterprises Inc. v. Cyro Canada Inc., 2012 ONSC 4653 (S.C.J.), the plaintiff served a Request to Admit eleven days before trial was scheduled to begin in 2010.  Trial was adjourned initially for one week and then again until 2012.  One of the defendants, Jonkman, failed to respond to the Request to Admit.  Rule 51.02(1) provides that a party is deemed to admit the contents of a Request to Admit if it does not respond to it within 20 days after it is served.  Jonkman sought to either set aside the Request to Admit or to withdraw the admissions.

Justice Morgan held that even though the Request to Admit was not served 20 days before trial, once the trial was adjourned and did not start for 20 days, the deeming provision applied. The main issue therefore centred on whether Jonkman was entitled to withdraw its admissions. The court may grant leave to withdraw the admissions if the following conditions are met:

1. The proposed change raises a triable issue;
2. There is a reasonable explanation for the change of position; and
3. The withdrawal will not result in any prejudice that cannot be compensated for in costs. (citing Antipas v. Coroneos, 1988 CarswellOnt 358)

Justice Morgan permitted the admissions to be withdrawn. At the time the Request was served, Jonkman was basically without legal representation as its counsel was in the process of being removed from the record. It had instructed counsel not to respond to the Request to Admit.  It subsequently brought a coverage application and was now being defended by an insurer.  The plaintiff supported the coverage application and must have understood that if coverage was achieved, a defence would be pursued. Jonkman's new counsel and insurer were unaware of the Request Admit and it would be unable to defend itself if the admissions stood.  The coverage application had been settled, and Justice Morgan speculated that the insurer's position may have been different had it known that Jonkman had effectively deprived itself of a defence by failing to respond to a wide ranging Request to Admit.

Justice Morgan was of the view that any prejudice to the plaintiff would not be inordinate as a trial would have been needed to canvas issues with the co-defendant in any event. The plaintiff further argued it was prejudiced as it had entered into a Pierringer Agreement with the remaining defendants and was concerned Jonkman would attempt to pin liability on those parties at trial. Justice Morgan held that the plaintiff had previously assumed Jonkman was insolvent when it entered the settlement and so this factor was to the plaintiff's benefit not prejudice.  The admissions were withdrawn.

Action Dismissed for Failing to Comply with Municipal Act Notice Requirement

Argue v. Tay (Township), 2012 ONSC 4622 (CanLii)

A municipality was recently successful in having a case dismissed based on the failure of the plaintiff to comply with s. 44(10) of the Municipal Act.  The section requires written notice be given to the clerk within ten days of the incident.  Section 44(12) provides that the failure to give notice can be excused if the plaintiff has a reasonable excuse and the defendant is not prejudiced by the lack of notice.

In Argue v. Tay (Township), the plaintiff alleged she sustained soft tissue injuries in a motor vehicle accident caused by potholes in the defendant municipality's road.  She provided written notice through her lawyer almost two years after the incident.  By that time, the surface of the road had changed materially.  The plaintiff argued the municipality had either actual or constructive knowledge of the accident as the municipal volunteer fire department attended the scene and would have received a copy of the police report.  The municipality brought a summary judgment motion seeking to have the action dismissed for failing to comply with the Municipal Act notice requirement.

DiTomaso J. held the plaintiff did not comply with the notice requirements.  Section 44(10) requires written notice be given to the clerk and the fact that the fire department attended or may have received a copy of the police report was insufficient to comply with the section.  There is no support in the jurisprudence that actual or construction notice pre-empts the requirement to give written notice to the clerk, and the section cannot be dispensed with in favour of notice to a different municipal department.

The plaintiff had no reasonable excuse for the failure to give notice.  She was discharged from hospital the same day as the accident, had no broken bones and was able to return to work two to three weeks after the accident.  She was aware people could bring lawsuits and believed the state of the road contributed to the accident, yet took no steps to inform herself about the law.  She was physically and mentally able to instruct counsel. 

The municipality had been prejudiced by the lack of notice.  There is a presumption of prejudice where notice has not been provided and the plaintiff bears the onus of showing there was no prejudice.  She failed to do so.  Neither she nor the municipality had photos or measurements of the road, the condition of the road had changed materially since the accident and the municipality had lost the opportunity to interview witnesses.  As a result, summary judgment was granted.

Argue is a useful summary of the relevant authorities relating to s. 44(12). Those defending municipal claims with notice issues should consider whether it would be useful to bring a summary judgment motion in the circumstances.

HEALTH INSURANCE – Are YOU Covered in Canada?

ARE YOU VISITING OR LIVING IN CANADA WITHOUT HEALTH COVERAGE OR TRAVEL INSURANCE?

Does your situation fall into one of the following categories?
• You are a visitor to Canada.
• You are in Canada on a residency, working, or student visa.
• You are a resident of Canada waiting to become a legally landed immigrant.
• You are a foreigner married to a Canadian Citizen.
• You are a Canadian Citizen moving back to Canada with a child born outside Canada.
• You are a Canadian Citizen who has spent more than six months out of Canada.
• You are a Canadian Citizen moving from province to province.

If your situation falls in one of the above categories, the information to follow will be of significant interest to you.

Whether you are planning a visit to Canada or living in the country temporarily or permanently, there are some very important facts you need to know about Canada’s medical system to insure you and your family have adequate health coverage.

Despite misconceptions, Canada does not have free health care. If you or a family member should need medical assistance, the costs could be substantial if you do not have medical coverage. If you qualify, you would normally obtain health coverage with the provincial medical plan in the province you are residing. For those of you who do not qualify for provincial medical coverage, I cannot express enough the importance of purchasing travel insurance.

In my work in the health care field, I come across patients daily that have not bothered for whatever reason to obtain medical coverage. Usually they just do not know what questions to ask, or where to find the information they need. As a result, they have incurred medical bills in the tens of thousands of dollars. This creates a great financial burden for the patient, the patient’s family, and on the Canadian health care system. My hope here is to help you avoid such a financially disastrous situation for you and your family. After all, it’s stressful enough when you or someone you love has to seek medical attention.

The Canadian Health Care System

Every province, each having its own yet similar regulations, governs Canada’s Health Care system. The provincial medical plan program under provincial guidelines administers coverage.
Canadian citizens and legally landed immigrants eligible for provincial coverage in their province of residency, pay for that coverage through income taxes and in some provinces by monthly premiums. When valid, provincial coverage will pay for doctor visits, lab and radiology tests, and hospital stays. The plan does not cover prescriptions, some medical procedures, and supplies.

So how is eligibility for provincial coverage determined?

In order to qualify for provincial coverage in Canada, you must meet the following criteria:
- You must be a legal Canadian Citizen, a legally landed immigrant, or a refugee.
- You must also meet the residency criteria of the province you are residing in. This will vary by province but usually depends on you living in the province for at least three months.

Provincial coverage is mandatory in some provinces in Canada. Whether coverage is mandatory or not, provincial coverage will provide full or partial premium subsidy if you are a legal Canadian Citizen and your yearly income for the prior year was less than approximately $28,000. You will have to provide a copy of your previous income tax assessment as proof of income.

Do not confuse the term “residency” with valid citizenship when it comes to provincial eligibility. Just because a person is residing in Canada does not mean they qualify for coverage. A person must be a legal Canadian Citizen; a legally landed immigrant; a legal refugee; or have a residency, working, or student visa to qualify for MSP. They must also have been living in the said province for a length of time as required by the plan of that province. In most cases, this would be a minimum of three months counting the first month as a full month.

Canadian Citizens Moving from Province to Province

In most cases, your medical coverage in one province will expire three months after you have moved to the new province. When you arrive in the new province, you should register with the province’s provincial medical plan right away. In most provinces, you will have a three-month waiting period, which during that time; your medical coverage from the province you moved from should continue to be active. Some provinces do not require this waiting period so you will need to contact the Medical Services Plan in the province to where you are moving to confirm the waiting period criteria.

Canadian Citizens spending more than six months out of Canada

This is a very common situation for Canadian Snowbirds who leave Canada for several months at a time for warmer weather and sunnier skies. When they return to Canada, they often believe their medical coverage is still active. However, once they have left the country for (183 days) six months and one day the provincial plan will cancel their coverage automatically.

They have the option of contacting the provicial plan to apply for a term certificate prior to exiting Canada. If not done, they must reapply for provincial coverage upon their return. Depending on the province they are returning to, they may be required to wait the three-month period before their coverage will become active again. This waiting period is a crucial time as this is when they usually do not think to obtain temporary medical insurance. Obtaining travel insurance will provide coverage during the waiting period.

This situation would also apply to anyone who leaves Canada for more than six months to work for an employer in another country. The provincial plan does provide special coverage in cases such as these but you must contact them to get it. If you take employment outside Canada and have plans to return, you may have to provide them with a copy of your work contract that indicates the length of your work term. They may extend your coverage for up to 24 months. Make sure you notify them if your family will be joining you. If you need this particular coverage, make sure you know what the provincial medical plan is willing to cover.

Anyone who had left Canada for this extended period will usually have to provide proof to the provincial plan he or she has been back in Canada for more than three months. Proof would normally include utility bills and rent receipts.

Canadian Citizen moving back to Canada with a child born outside Canada

Just because a child born outside Canada has one parent, who is a Canadian citizen does not automatically qualify the child for medical benefits. The parent must apply for citizenship for the child with proof of the parent's own citizenship. The parent must also provide proof that he or she has been living in the province for the three-month period. Once the child receives citizenship, the three-month waiting period will still apply in certain provinces before the child will qualify for medical coverage. You should obtain travel insurance for the child until the waiting period has expired.

The same situation does not apply to a child born to a mother of Canadian Citizenship, living in Canada permanently and transferred to an out-of-country hospital for special maternity care. In this case, the child has coverage for three months under the mother’s Provincial Health Number providing her own provincial coverage is active. The mother should immediately register the baby as a Canadian Citizen and apply for the child’s own provincial health number (PHN). Three months after birth, the child’s coverage under the mother will become invalid so this is where registering the child at birth and applying for his/her own PHN number will eliminate delays in the child having coverage.

Visitors to Canada

In most cases, visitors from overseas will have purchased travel insurance before their trip. However, there are some cases when a visitor does not have medical coverage. This is common with skiers who have decided to extend their stay after their travel insurance has lapsed.

There are also those visitors who come over the USA/Canada border for a short visit, a seasonal stay at their summer or winter cottage, or for a day or weekend of shopping. These types of visitors are probably the most vulnerable to unexpected medical costs because they do not think they need to protect themselves with health coverage. After all, they may just be crossing the border for a day or so, why will they need insurance? I recommend you obtain travel insurance even if visiting Canada only for a couple hours, or several days.

A foreigner married to a Canadian Citizen

Just because you have married a Canadian Citizen, does not mean you automatically qualify for provincial medical coverage. You must qualify for provincial coverage just like any other person living in Canada.

Until you receive your legally landed immigration documents, you are considered a visitor by MSP and not eligible for coverage. You will have to fulfill the three-month waiting period after you receive your immigration papers. You must obtain travel insurance to protect yourself from any medical surprises during your waiting period.

Residents of Canada waiting to become legally landed immigrants

Many in this position do not know what to do. They realize they do not have any kind of medical coverage but they do not know what alternatives are available to them, so they do nothing. Then the medical crises hits but by then it is too late. Not only are the patient and the family members dealing with the stress of the medical emergency but now they also have the extra financial burden. As I stated earlier, someone waiting to obtain his or her landed immigrant status will not be eligible for provincial medical coverage until three months after the date stamped on the immigration documents. It could take months or even years before you obtain your legal immigration status. Purchase travel insurance to protect yourself in the meantime. Another way to deal with this is to obtain a residency, work, or student visa. However, you will still have to fulfill the three-month waiting period after your receive your visa.

Anyone in Canada on a Residency, working, or student visa

If you plan to come to Canada or are already here on a working, student, or residency visa there are some key factors you need to know.

Working Visa (Permit) – If you receive a work visa that is valid for at least 12 months, you may be eligible for medical coverage as of the date the visa was issued. If the visa is for less than 12 months, you will not be eligible for provincial medical coverage until you obtain an extension that allows you to stay in a province for at least 12 months. Once you get the extension, you will be eligible for coverage as of the date of the extension.

Student Visa (Permit) – To obtain medical coverage while on a student visa, your term of study must be for a period of at least 183 days (six months plus one day). Depending on the province you will be studying in, you may have to fulfill the three-month waiting period before you will be eligible for medical coverage.

Residency Visa (Permit) – A visitor residing in Canada on a Residency Visa in most cases is not eligible for provincial medical coverage; however, there are exceptions. Contact the medical services plan of the province you will be residing in to confirm whether you will be able to obtain coverage or not.

As with the working or student visa, do not let your visa lapse. If this happens, you may have to reapply for your provincial coverage and fulfill the three-month waiting period once again. If this happens, you will need to purchase travel insurance while you wait for coverage.

Travel Insurance

I have mentioned several times throughout this report you must obtain travel insurance if you do not qualify for provincial medical coverage. Most visitors traveling to Canada will have purchased travel insurance before coming to Canada.

Those people who have extended their visit; are here on a short term visit; are residing in Canada on a residency visa, or waiting for their legal immigration papers will usually not be eligible for medical coverage. Those here on working or student visas, and Canadians returning after an extended stay outside Canada will need to fulfill the three-month waiting period. These people will need to obtain some type of health coverage for short or long-term protection.

Travel insurance is relatively easy to obtain. Many health insurance companies will sell you medical coverage in and out of Canada. If you are already in Canada, some companies that sell car insurance also sell travel insurance. The best advice I can give you is to check around for the best quote, as some can be very expensive. I have heard of some companies selling travel insurance for $1.00 to $ 1.60 a day depending on your age and health while others charge around $1200 yearly.

How much coverage should you get? You may think $100,000 is a lot but the truth is it can add up quickly if you end up in an Intensive Care Unit for a week or more and need surgery as well. The doctors and surgeons who will be treating you are self employed in Canada and will bill you for their medical services above-and-beyond the hospital fees. Keep in mind, many companies will not cover you for a pre-existing condition, or maternity but the odd company may for an additional fee. Again, check around for quotes.

American Medicare

As a final note for American visitors, it is imperative I point out that USA Medicare will not cover you while you are in Canada. The only time it will pay your medical expenses is if you require medical attention while you are traveling from one state in the continental USA to Alaska and vise versa. Always check with your health insurance provider before traveling to ensure they will cover you in the event of a health emergency.

Medical Debt and Canada Customs and Immigration

There are 50 million visitors to Canada each year with its health care system suffering a loss of more than a billion dollars yearly. The sore spot is the lost revenue could have gone back into health care for much needed improvements to hospitals, better medical equipment, and more doctors.

Canada is stepping up its action to collect on medical debt incurred by uninsured non-Canadians and uninsured Canadians alike.

Now, if you leave a debt behind in Canada, that information is available to Canadian agencies including Canada Customs and Immigration. If you make an application for any one of the visas, to become a legal immigrant, or to enter Canada as a visitor, Canada Customs and Immigration may refuse your application or your entry into Canada until you pay your debt. That is not something you want to find out when you depart from the plane or enter one of the border crossings somewhere in Canada and refused entry.

Provincial Contacts for Medical Coverage:

British Columbia:
1-800-663-7100
Vancouver: (604) 683-7151
Victoria: (250) 382-8406

Alberta:
780-427-1432 (Edmonton)
Toll-free in Alberta, dial 310-0000 then 780-427-1432.

Saskatchewan:
Phone: (306) 787-3475
Toll-Free: 1-800-667-7523

Manitoba:
Phone: (204) 786-7384
Toll free: 1-800-392-1207

Ontario:
1-800-664-8988 (Toll-free in Ontario only)
TTY 1-800-387-5559

Quebec:
Quebec: 418-646-4636
Montreal: 514-864-3411
Elsewhere in Quebec: 1-800-561-9749

Prince Edward Island:
Telephone: (902) 368.6130

New Brunswick:
Phone: 1-888-762-8600 (from within North America)
Or (506) 684-7901 (outside North America)

Nova Scotia:
Phone: (902) 496-7008
Toll free 1-800-563-8880

Newfoundland and Labrador:
Phone: (709) 292-4000

North West Territories:
Toll Free: 1-800-661-0830
Phone: (867) 777-7400

Nunavut:
Toll free: 1-888-252-9869

Yukon:
867-667-5209 or 1-800-661-0408 (toll free within Yukon),

Disclaimer: The information provided in this article is a guide only and does not replace your responsibility to verify your eligibility for coverage by contacting MSP in the province you will be or are currently residing in. While every effort is made to present up-to-date and accurate information, the author is not responsible for any omissions, outdated, or misleading information on this blog or any site connected or linked to this page.