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September 2018

 

The International Practice Section and the Membership Development committee/international have been hard at work this past year doing our best to grow International awareness, relevance and membership in the FDCC.  In the past 12 months we have co-sponsored and branded numerous events including:

  • Brexit Presentation by Christof Gaudig at the Maui Annual meeting followed by cocktails and networking session;

  • London meeting of our European members with content focused on issues deemed of key concern by our international members;

  • Co-sponsored and branded and hugely successful conference in Singapore with AIDA Australian Chapter (AILA); AIDA New Zealand; AIDA Singapore; and AIDA Hong Kong;

  • Conducted a half day conference in Zurich attended by 100 European and US industry representatives and attorneys with content focused again on issues relevant to those in attendance.

As a result of these efforts, we have expanded our international membership in Australia, Europe, Asia and South America including Uruguay, Brazil and Colombia.  Our International membership has grown by double digits in the past year and we expect the same expansion this year.

In the coming months, we will have representatives marketing the FDCC at the AIDA World Congress in Rio de Janeiro, planning our second annual London conference for April 2019, and this is just the beginning.  Four of our members will be speaking at the World Congress again spreading the FCCC brand.  The FDCC will also be sponsoring the 2022 AIDA World Congress which will be held in magnificent Melbourne, Australia.  In the coming year, we hope to arrange additional regional meetings in locations benefitting all of our growing international members.  We have added programs with an international reach at the summer and winter meetings, designed to appeal to our broader membership. These programs are aimed at giving new international members an opportunity to speak, which makes our meetings more relevant to the international members and of course, gives them an opportunity to get to know the FDCC and its unique membership.

If you are interested in our international efforts, networking with the world at large, developing relationships that will benefit your business, join us in our ongoing efforts and let us know of any and all potential members you may wish to recommend.

Currently we have international members in the following jurisdictions:

Australia, Austria, Canada, Denmark, England, France, Ireland, Israel, Italy, The Netherlands, Portugal, Spain, Taiwan, Turkey, Venezuela, Columbia, Uruguay, Brazil and Hong Kong and we are working to grow this list.

We encourage all our members to use the connections, if you have any work relating to these jurisdictions. You can easily find our international members through our website www.thefederation.org  

Richard K. Traub

Traub Lieberman Straus & Shrewsberry LLP

322 Highway 35, 3rd Floor | Red Bank, NJ 07701

(732) 985-1000 Main

(732) 985-2000 Fax

rtraub@tlsslaw.com

 

March 2018

Submitted by: Debbie Orth

 

On September 6, 2017, Justice Corthorn, sitting as a judge of the Divisional Court granted an appeal from an interim arbitration award that will likely change the processing of loss transfer claims in Ontario, Canada.

A husband and wife were policy holders insuring the husband’s motorcycle, the wife’s a small SUV and a pick-up truck.

The husband’s 17 year old son was a pedestrian when he was hit by a car insured by L’Unique.  He was dependent on both his father and step mother.  The insured was able to claim SABS under either policy.  The claimant had been declared catastrophic, creating high stakes for the parties.  Primmum adjusted the son’s SABS claim under the motorcycle policy.  Subsequently, Primmum sought loss transfer indemnity from L’Unique.

In the ensuing arbitration, L’Unique questioned the reasons for the SABS claim being adjusted under the motorcycle policy.  It relied on the language of s. 9 of Regulation 664 that provides loss transfer is available when “… the person receiving statutory benefits is claiming them under a policy insuring a motorcycle…” (emphasis added). L’Unique brought a pre hearing motion before the arbitrator for a determination as to the underlying reasons as to why the SABS were adjusted under the motorcycle policy and for production of an extensive list of documents.

The arbitrator dismissed the motion as he relied on an OCF-1 form filed with Primmum’s factum which had been forwarded to the claimant’s father by Primmum with the motorcycle policy number on the form.  The arbitrator found that since the form bore the policy number when it was signed, it was sufficient evidence that the insured had selected to claim SABS benefits under the motorcycle policy.

The arbitrator held that to allow L’Unique to look behind the insured’s choice would interfere with “the economy of the loss transfer indemnity system” and it would “deprive it of the efficiency and speed it is supposed to have”.

On Appeal, Justice Corthorn began her analysis with finding that s. 275 of the Insurance Act makes it clear that entitlement to indemnity, is not absolute and that it is subject to “such terms, conditions, provisions, exclusions and limits as may be prescribed. Terms and conditions not found in s 275 were held to be set out in s. 9 of Regulation 664.  “Only when those criteria are met is an insurer paying SABS entitled to indemnification…”

Her Honour then applied the reasonableness standard wherein she held that the arbitrator’s decision was unreasonable.   She held that the arbitrator had conflated the priority dispute scheme with the loss transfer indemnity scheme.  By doing so, the arbitrator failed to appreciate the evidentiary burden on an insurer seeking indemnity.

Second, in finding that Primmum had determined that the claim was made under the motorcycle policy, the arbitrator dealt with an issue that was not before him, which, in her honour’s opinion, was not a reasonable proposition. The OCF-1 form was not properly admitted in evidence as it was inserted into Primmum’s factum and it was not part of the motion record.  

Further, Justice Corthorn opined that, if she was incorrect, she found that the conclusion drawn by the arbitrator from the content of the OFC-1 was unreasonable in that the form indicated an intention to claim SABS under L’Unique’s policy, a choice that was not open to the claimant.  

Finally, the stamping by Primmum of the motorcycle policy number on the OCF-1 form was an unreasonable attempt by Primmum to claim benefits under L’Unique’s policy.    

The judge concluded that the arbitrator failed to consider that in priority and indemnity disputes, evidence is required to support that a choice was made by a claimant.  Specifically, the choices are whether they: (a) were aware of their choice to claim under more than 1 policy; and (b) did the claimant make a conscious choice armed with that knowledge.

Justice Corthorn held that the arbitrator unreasonably concluded that it was not necessary in this case to consider any evidence as to the insured’s choice of policy, and that he did not look behind the OCF-1 form.

The court noted that equal ranking policies may provide different levels of SABS benefits.  It follows that a claimant must be allowed to make a conscious choice based on all of the available information.

Accordingly, when an insurer is asked to pay SABS that may give rise to a claim for loss transfer indemnity and one that does not, the insurer will have to inform the claimant:

(i)             That SABS benefits may be claimed under two different policies and they must clearly identify the policies;

(ii)           What coverage is available under the respective policies; and

(iii)          That the claimant must choose the policy under which they wish to claim, all the while making it clear that the choice is theirs and theirs alone.

This decision may well affect call centre responses when responding to reported claims. It will require Insurers to have their employees or consultants who respond to SABS claims, inquire as to whether there are other policies issued and available to the claimant.  In the case of a positive answer, the information set out above must be put to the claimant in writing.

 

 


 

 

February 2018

Submitted by: Debbie Orth

 

To Admit or Not to Admit – That is the Question

 

(click here to download a .pdf of this section update)

 

2017 marks a decade since the release of the Report on Civil Justice Reform Project by the Honourable Mr. Justice Osborne. This article reviews the jurisprudence dealing with the proliferation of experts and expert bias to examine whether the Osborne Report’s objective of early dispute resolution and reducing use of judicial resources, has been advanced.

 

In 2015, in the case of the White v Burgess,[1] the Supreme Court of Canada affirmed the previously established test for admitting expert evidence, which requires two steps: (1) meeting the Mohan factors, and (2) the court’s gatekeeping role.[2] The Supreme Court noted the “unmistakable trend of the jurisprudence…has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role”. Unfortunately, this trend has not been demonstrated in the subsequent jurisprudence and instead the issue of bias continues to be dealt with at trial, with some exceptions.

 

Two recent lower court decisions, Giordano[3] and Bruff-Murphy[4], dealt with the issue of bias in the context of a threshold motion and both addressed the concern through the weighting of evidence rather than admissibility of the evidence. In Bruff-Murphy, the court addressed admissibility of a defence expert who had been found to be biased in several prior cases. The court determined, despite concerns with the expert’s report, that the evidence should be proffered. At the threshold motion, Mr. Justice Kane raised significant concerns about the expert’s impartiality. The expert doctor testified that he saw his role as determining whether the plaintiff’s description of their condition was accurate by looking for inconsistencies.  Justice Kane commented that the doctor:

 

·      failed to put to the person the inconsistencies;

·      would not allow any audio recording of the assessment;

·      in addressing credibility of the party, the doctor went outside his terms of engagement;

·      conducted no testing nor requested treating doctors test results;

·      made comments out of context;

·      had a good memory for the points he was defending but not on other points. 

 

Justice Kane was clear that in future cases he would not qualify witnesses as experts whose reports present an approach similar to what was seen in that case. The case highlights the high threshold to have an expert disqualified.

The same expert was the subject of another motion, in Daggit v Campbell,[5] where defence sought an Order to appoint this doctor to do an Independent Medical Examination (“IME”). Madame Justice MacLeod-Beliveau commented in obiter that an extension of the court’s right to name a doctor for an IME is the discretion not to name a particular health practitioner if he/she is found to be biased, which would be uncommon.  

 

These recent cases show clear judicial direction that this level of bias will not be tolerated and will be excluded at trial reinforcing that the “hired gun” methodology of choosing an expert is likely an unsuccessful strategy.  However, leaving the determination of bias till the trial, or even after trial does nothing to address the objective to cut down the time and costs spent getting to trial.

 

A slow shift in addressing these concerns earlier in the process has been seen through parties imposing terms on court ordered assessments. Although, this movement could have its benefits, little is to be gained where the opposing counsel unilaterally imposes restrictive terms not required by the Rules.

 

The terms often incorporate uncontroversial requirements such as providing the expert’s CV, content in the report, form to be completed, an index of the documents or payment of reasonable expenses.  Production of the doctor’s notes and recording the assessment are often requested and can, at times, be contested.  However, parties often request much more invasive terms. Lavecchia v. McGinn[6] dealt with an IME motion where the plaintiff requested that defence agree to the following additional terms:

 

a)     plaintiff was not to be asked to complete any documents such as questionnaires at the examination;

b)    doctor was not to express any opinions dealing directly or indirectly with liability;

c)     doctor was not to express any opinion on the credibility, character or truthfulness of the plaintiff;

d)    health records and information of the plaintiff were not to be disclosed to any other person or entity other than defense counsel

 

The court opined that term (a) has to be decided case by case given that some disciplines utilize standard diagnostic tools and tests which would be appropriate. The plaintiff conceded that terms (b) and (c) were too broad and as such were not ordered. Although, it was recognized that determining issues of credibility are properly the adjudicator’s role.  Term (d) is of particular interest; it was an indirect way to prevent a “ghost written” report.  The parties agreed that the expert report must be written by the expert herself/himself and not by administrative staff or other individuals. The court commented on the need for greater rigour and predictability concerning the role and use of experts so as to save time at trial and promote settlements; it noted the cases of El-Khodr v. Lackie and Elbakhiet v. Palmer which raised concerns at trial about ghost writing and an expert opining on credibility. Master Macleod, in Lavecchia, supra, stated:

 

I do not, however. accept that the best approach is to be found in plaintiffs seeking to unilaterally impose restrictive terms on the conduct of defence medicals.  Nor is it reasonable to have actions grind to a halt while the parties attempt to negotiate terms of a consent order as has happened here.  A standard form of order may well be a very good idea.

 

The 2017 case of Kushnir v. Macari[7] addressed the issue of terms relating to ghost writing.  The plaintiff sought an Order, inter alia, that the expert report be drafted solely and entirely by the assessing doctor, the research and medical record review be done by the assessing doctor and the records not be shared with any third parties. Defence argued that this was an attack on the integrity of the assessor and that the assessor takes responsibility for the report in signing it.  Plaintiff argued that these terms were needed to ensure trial fairness.  No specific wrongdoing was alleged against the proposed assessor. 

 

Citing the facts of El-Khodr, where the expert testified at trial that part of the report was written by somebody else, the court acknowledged the problem of ghost writing. The court was prepared to address same but found the conditions sought were overreaching and suggestive of inappropriate behaviour by the assessor. The Order encompassed a term that the report shall be written solely by its author and health records should not be disclosed to anyone other than defence counsel.  The decision was not appealed.

 

Unfortunately, in the broader context there is little progress in terms of achieving the long term goals of early dispute resolution in order to reduce costs and conserve judicial resources.  In the past 2-3 years, there is clear judicial commentary suggesting a slow shift towards addressing the issue of admissibility and the treatment of bias at an earlier stage of the action in the specific context of court ordered IMEs. At this juncture, this issue often entails the same amount of judicial and legal resources to address the terms and conditions requested by parties. Further, this also fails to have broader implication outside of the medical expert’s field. It is yet to be seen whether courts will provide clear guidance that can result in a standard form terms and conditions for IMEs -  which would at least have the effect of leveling the playing field such that experts on both sides of the dispute would be subject to the same terms.  Suffice it to say that the courts have clearly indicated that they will take a position on admissibility of experts in those extreme cases where it is warranted. Accordingly, it is incumbent upon the parties on both sides of the dispute to do their due diligence in advance of selecting an expert to ensure that that expert will uphold their duty to the court.

 

 

 

Author’s Biography: Debbie Orth is a partner at Bertschi Orth Solicitors and Barristers LLP. Debbie was called to the bar in Ontario in 1993. She practices in the areas of Insurance Defence and Commercial Defence focusing on accident benefits, personal injury coverage, educational malfeasance and property and casualty. Debbie is also a frequent lecturer for various professional organizations.



[1] 2015 SCC 23 (CanLII), .

[2] In R v Abbey, 2016 ONSC 7 (CanLII), http://canlii.ca/t/gmr5x, the Court of Appeal introduced a two step inquiry to admit evidence.

[3] 2014 ONSC 7516 (CanLII), .

[4] 2016 ONSC 7 (CanLII), .

[5] 2016 ONSC 2742 (CanLII), .

[6] 2016 ONSC 2193 (CanLII), .

[7] 2017 ONSC 307 (CanLII), .

 

 


 

 

APRIL 2017

Charleston, South Carolina, the venue for the FDCC Winter Meeting 2017, was the perfect setting for an exceptional meeting of the International Practice and  Law section.

 

I had the honour of chairing a well attended session on the legal, financial and regulatory implications of, Brexit. Three exceptional presentations from three highly qualified experts made for an interesting and thought provoking discussion that engendered a great deal of interest from the audience. The three speakers each presented not only a national perspective, but also looked at the implications of Brexit on the future of the EU. Stephen Carter from the UK, Jorge Angell from Spain and Christophe Adrien from France explored the potential ramifications and indeed projected a view that the Departure of the UK could herald the ultimate exit of a number of other European states.

Many of our US colleagues attended and it generated so much interest (and controversy) that we have all agreed that a further presentation is called for at the Annual meeting in Maui in July /August 2018, when we should have a clearer picture of the ramifications of Brexit.

The international section continues to expand, albeit a little slower that we consider ideal. That said we have a number of exceptional opportunities to enhance our membership with the Montreux ( Switzerland  meeting approaching this Summer ( 23-29 July ) and of course the combined AILA / NZILA /FDCC /ILAS /HKILA /AIDA meeting in Singapore 18- 20 October 2017.We will have a program in place for the upcoming summer meeting and encourage as many of you who are attending Montreux ,to actively participate.

For many of our North American colleagues Singapore will offer a wonderful opportunity to network in the World’s most rapidly evolving insurance and commercial market and, of course, visit a fascinating island nation that many have never seen before.  In Singapore, you will also meet many of my Aussie and Kiwi colleagues…. Should I promote that as a bonus??


Currently our international membership stands at 72 and while I chair the section I am supported by 8 Vice Chairs from a variety of nations, who all share a common goal, and that is to expand our international impact by selectively recruiting well credentialed FDCC members.

 

Chris Rodd – Chair International Practice and Law  

 



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