In 2008, significant developments in motor vehicle accident law have generated a great deal of “buzz” among those who practice motor vehicle accident litigation. The potential ramifications are significant, yet there remains a great deal of uncertainty as to how or whether they will impact on future cases and the manner in which we will handle them.
Introduction
The year 2008 was truly extraordinary. We witnessed an extraordinary collapse of the global economy, extraordinary changes in the value of our dollar, an extraordinary proroguing of our federal parliament and the election of an extraordinary new leader south of the border. Although not nearly as extraordinary as the events that took place on the world stage, the year 2008 brought about some significant developments in motor vehicle accident law. These developments include:
a) dismissal by Divisional Court Justice Jane Ferguson in September 2008 of the defence’s leave to appeal application in Arts v. State Farm Insurance Co.1 thereby allowing to stand the decision of Superior Court Justice Robert MacKinnon that psychological/psychiatric impairments may be assigned a percentage rating to be combined with physical impairments for the purposes of calculating catastrophic impairment under criteria 2 (1)(f) of the SABS, affirming Mr. Justice Spiegel’s decision in Desbiens v. Mordini, [2004]O.J. No. 4735 (S.C.J.);
b) the April 2008 Court of Appeal decision in Monks v. ING Insurance Company of Canada2 permitting declaratory relief for future entitlement to goods and services outlined in a future plan of care when the insured can prove that the proposed items are reasonable and necessary, the case before the Court must be genuine and the declaration must be capable of having some practical effect in resolving issues in dispute. The Monks case further concludes that the material contribution test is alive and well in the statutory accident benefits context;
c) two Superior Court cases decided by Justice T.R. Lofchik in Cromwell V. Liberty Mutual Insurance Co.3 and Vanderkop v. Personal Insurance Co. of Canada4 essentially concluding that lump sum payments pursuant to a settlement of a long term disability claim not specifically broken down do not constitute “a payment under any income continuation plan” in accordance with section 7 of the SABS, and consequently need not be deducted from an income replacement benefit that may be ongoing.
These decisions have generated a great deal of “buzz” among those who practice motor vehicle accident litigation. The potential ramifications are significant, yet there remains a great deal of uncertainty as to how or whether they will impact on future cases and the manner in which we will handle them.
In this paper, I will attempt to apply the concepts we glean from these recent decisions to a specific fact pattern, in an effort to illustrate how they impact on tort and accident benefits, and the practical problems they present to us as practitioners.
Notes:
1 Arts (Litigation guardian of) v. State Farm Insurance Co. (2008), 91 O.R. (3d) 394
2 Monks v. ING Insurance Company of Canada, (2008), 235 O.A.C. 1
3 Cromwell v. Liberty Mutual Insurance Co. (2008) 89 O.R. (3d) 352
4 Vanderkop v. Personal Insurance Co. Of Canada [2008] O.J. no. 1937 currently under appeal
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