Welcome and Introduction from the Chairs

Leonard H. Kunka, Thomson, Rogers
Susan E. Gunter, Dutton Brock LLP

Proposed Changes to Auto Insurance Legislation

and Their Impact

Moderator
Leonard H. Kunka, Thomson, Rogers

Panellists
Richard C. Halpern, Thomson, Rogers
Philippa G. Samworth, Dutton Brock LLP

On November 2, 2009 the Minister of Finance for Ontario introduced various proposed amendments to automobile insurance. They arise from the Financial Services Commission’s March 2009 Five Year Review
Report for automobile insurance. The Report will be the blueprint for the pending reform of Bill 198 and if implemented will dramatically impact motor vehicle litigation in Ontario. This session will give you the latest information on the Bill 198 reform initiatives and what you need to know to transition to the new legislation.

• Are the changes necessary?
  
• Will the changes actually be implemented?
  
• Changes in the tort deductible
  
• Definition of ‘permanent serious impairment’
  
• Monetary and other limitations on medical examinations
  
• Changes to benefits
  - optional housekeeping and attendant care
  - reduced medical/rehabilitation benefits in non-catastrophic

  cases

Is the 1% Rule Gone? Discussion of the Court of Appeal’s Decision in Loftus v. Robertson

David L. Silverstone, Sigurdson, Courtlander, Burns & Smagata

John R. McCarthy, Will Barristers: Morin & Miller LLP

The recent Ontario Court of Appeal’s decision in Loftus v. Robertson establishes a new interpretation regarding joint tortfeasors in automobile accidents. How will this case change the “1% rule” going forward? Hear from the lawyers who argued the Court of Appeal decision.

Are Mary Carter Agreements Still Relevant? The Aftermath of the Laudon v. Roberts Case

Linda Matthews, Forget & Matthews LLP
L. Craig Brown, Thomson, Rogers

In Ontario, Mary Carter Agreements have been used infrequently but effectively in complex litigation as a risk management tool. Prior to the Court of Appeal decision, these agreements have been used as a tool to guarantee a minimum result for plaintiffs, to cap the potential financial exposure to defendants and to increase the pressure on the non-contracting defendant. Is the rule against double recovery paramount or are there ways to get around it? Are there other tactical or strategic reasons to use a Mary Carter Agreement or Perreinger Agreement? How should contracts be structured to avoid the application of the Laudon reasoning?

The Top Accident Benefits Cases You Cannot Ignore

and Their Implications

Stanley C. Tessis, Laxton Glass LLP

Statutory accident benefits are a complex area of motor vehicle insurance law that has gone through rapid changes in recent years. This area of law is very fast moving in terms of its claims and dispute
resolution processes, and is subject to multiple limitation periods laid down in the Insurance Act and particularized in the Statutory Accident Benefits Schedule legislation. Mr. Tessis will talk about the recent accident benefit cases of note focusing his analysis from both the plaintiff’s and defence counsel’s perspective.

Damages Assessment Panel

Moderator
Frank K. Gomberg, Teplitsky, Colson LLP

Panellists
William C. Wolfe, Fireman Wolfe LLP
D. Keith Smockum, Smockum Zarnett Percival LLP

Staying on top of the most recent trends in damages awards is essential if you want to obtain the best settlement for your client. This panel of experienced litigators will discuss the most recent case law and trends plus give you the insight and strategies you need to assess damages and structure successful settlements.

• Canadian trends in personal injury damage awards: what factors are influencing damage awards?
  
• Calculating future care costs claims
  - when do you need an expert’s report?
  - what are reasonable future care costs?
  - evidentiary foundation for future care costs
  
• Updates on general damages assessments
  
• Proving and defeating loss of income claims

Recap and Introduction from the Chairs

Leonard H. Kunka, Thomson, Rogers
Susan E. Gunter, Dutton Brock LLP

How Will Auto Claims be Impacted by the New Rules

of Civil Procedure?

Moderator
Susan E. Gunter, Dutton Brock LLP

Panellists
S. Wayne Morris, Dutton Brock LLP
Linda Wolanski, Bogoroch & Associates
Catherine A. Bruder, Adair Morse LLP
Dale V. Orlando, McLeish Orlando LLP

On January 1, 2010, significant changes to the Rules of Civil Procedure came into effect. This panel of experienced practitioners will examine the key changes that will impact motor vehicle accident claims, including:

• Simplified procedures and Small Claims Court changes
  
• Changes to monetary limits
  
• Expert Evidence — Rule 53
  - certification requirements
  - serving of reports
  - details required in reports
  - research conducted by experts
• Summary Judgments — Rule 20
  - new court powers on a motion
  - cost sanctions relaxed
  - bad faith penalties
  
• Mandatory Mediation — Rule 24.1
  - changes to applications and timing
  
• Discovery — Rules 29.1, 29.2, 30 and 31
  - proportionality in discovery
  - new time limits for discovery
  - developing a discovery plan
  

Note: There will be a refreshment break at 10:30 a.m.

Litigating Chronic Pain

Dr. Brian Kirsh, Medical Director, Chronic Pain
Management Unit, Hamilton Health Sciences
David J. Levy, Howie Sacks & Henry LLP

Pain is subjective and must be assessed on a case-by-case basis and on its own facts. At the end of the day, success at trial depends on the
credibility of the plaintiff and plaintiff and defence counsel’s preparation and strategy. This session will start with a medical expert’s perspective on how he deals with chronic pain, how to approach a chronic claim patient and the analysis and assessments required. This will then
be followed by several chronic pain hypotheticals which Dr. Kirsh will analyze and which will be discussed by the speakers. Ample time will be
allowed for questions.

• How do experts approach the issue?
  
• What is the success rate for breaking the chronic pain cycle?
  
• How do you test for malingering?

Defence and Plaintiff Strategies for Litigating a Threshold Motion

Richard A. Levin, Levin Barristers
Mark Elkin, Thompson, Tooze, McLean, & Elkin

A Bill 198 “threshold motion” brought by a defendant for a declaration that a plaintiff’s claim for non-pecuniary general damages does not fall within
the exception to s. 267.5 (5) (b) of the Insurance Act places the burden of persuasion on the plaintiff and the standard of proof is a balance of probabilities.

Preparing for a motion requires a great deal of time, energy and financial outlay in order to persuade the trier of fact to arrive at a favourable interpretation of the threshold definition. As well, one must determine the boundaries in terms of “thresholds” and “chronic pain”. What do these terms mean? What kind of objective proof is required? In this session, experienced counsel will provide you with the strategies you need to know to litigate a threshold motion.