Accident Benefit Reporter Vol. 6 Issue 2
- The Need to Reform Auto Insurance
- Think Your Client is Not "Catastrophically Impaired"? - Think Again
- Home Modifications
- Am I Fired?: Constructive Dismissal and Disabled Employees
- Bill 59 – Bill 198 Comparisons
The Need to Reform Auto Insurance
By Richard Halpern
Partner
Thomson, Rogers
Recent headlines regarding billions of dollars in profits for the insurance industry have confirmed what we have known for some time: the industry is viable and the dramatic erosion of the rights of innocent accident victims has translated into huge profits for insurance companies.
It should be clear to anyone who has followed the auto insurance debate over the last 5 years that when the insurance industry cried "poor", they were really crying "wolf". The reforms introduced as of October 1, 2003 (including a harsh definition of the verbal threshold and an increase in the deductible) were motivated by politics and sparked by threats from the insurance industry. It is clear that the changes which further eroded the rights of innocent accident victims were not necessary to maintain a viable insurance industry.
Publicity about insurers’ good fortune has focussed almost exclusively on premiums. While premiums are vitally important to all (particularly as a hot political issue), it appears that the so-called stakeholders have lost sight of the need to balance an affordable product with the rights of accident victims. The product we buy with our premium dollars is a much-diminished product. Accident victims are almost universally shocked at the inadequacy of the protection they receive; something they do not discover until disaster strikes.
Restoration of some of the rights of innocent accident victims ought to be a priority. This can be done without disgorging all the profits made by the insurers. The insurance industry has failed to concentrate on reduced costs and waste, and reduce its internal expenses of administering such a complex product. The Ontario Government has decided to focus on eliminating DACs. However, it is the entire accident benefits scheme that must be overhauled to really find savings in costs that can translate into a restoration of rights.
In our view the insurance industry has used the wrong approach to seeking reduction in premiums for auto insurance.
The approach taken has resulted in reduced costs through the dramatic reduction in the value of the product the consumer buys. This is done with little or no consumer awareness of the reduced value until they become accident victims. The industry has been involved in "risk transfer" but has called it "insurance reform".
Liability insurance is concerned with protecting the innocent from the guilty. The reason we have generous minimum insurance limits in Ontario is to provide that very protection. The recent changes to auto insurance have moved significantly away from that fundamental principle.
How has Industry Found Savings?
Any costs savings achieved have been at the expense of the accident victim, without addressing other systemic problems with auto insurance.
We have a verbal threshold and a deductible. This is redundant. They are both designed to remove small claims from litigation. One will do so without the other.
We have a deductible that is so high, any objective person can demonstrate that it effectively eliminates many "serious" claims. The October 2003 change has re-introduced the word " continuous" to the threshold. Concern about erosion of the threshold by the courts did not justify this gross overreaction caused by the new definition.
We have a new definition of the verbal threshold which the insurance industry now wants entrenched in legislation. Ontario has the harshest verbal threshold in all of North America. We have an accident benefits system that is so layered with complexity that it makes it virtually impossible for any but the most sophisticated to negotiate through it. It is also worth noting that many experts feel that enhanced accident benefits result in exaggeration and abuse, leading to fraud.
Premiums are a reflection of many factors, primarily "costs". When we talk about costs, we must include: tort payouts; accident benefits payouts; and, administrative costs. The industry has sought to reduce costs relating to tort and SABS, without adequately dealing with administrative costs. Added complexity increases administrative costs. We are not proposing to tell insurers how to run their business. There has been evidence that insurers have been reducing expenses in recent years. At the same time there is clear evidence that some insurers do it a lot better than others. We are talking about the cost to administer an auto insurance system that has become increasingly complex and cumbersome since significant no-fault benefits were introduced in June 1990 under OMPP. More will be said in a moment.
The U.S. experience has shown that states with mandatory no-fault systems have the highest liability premiums. Moreover, premiums rise quicker in mandatory no-fault states.
Current Approach of Insurance Industry
The insurance industry wants to impose additional limits on accident benefits while at the same time ensuring that innocent accident victims cannot make up those real losses by claiming them in tort.
When it suited their purpose the Insurance Bureau of Canada ("IBC") expressed concern about the huge administrative cost of the accident benefits system. In the IBC submissions to the government of October 17, 2001, it was clearly recognized that the main challenge under Bill 59 was the control of medical and rehabilitation costs (page 6). It went so far as to say that:
"…motorists have unknowingly been required to finance the unjustified enrichment of some healthcare providers… When consumers understand how little of their money goes to seriously injured people, there will be concern…" (page 8)
"The costs associated with the medical, rehabilitation and care components of accident benefits are a great concern to Ontario insurers, threatening to make insurance unaffordable… There is no evidence that victims of Ontario collisions are receiving any tangible benefit from the exorbitant money being spent on their behalf." (page 9)
In spite of these statements, the savings for the system were sought at the expense of innocent accident victims. No real attempt has been made to deal with these concerns. Moreover, many of the changes introduced (i.e., pre-approved framework, pre-approval of assessments, etc.) will have contributed to additional administrative costs, likely without any tangible benefit to injured parties.
In the meantime, the IBC continues to promote changes to auto insurance that will further harm innocent accident victims. The insurance industry is promoting a commutation of future unpaid collateral benefits with a view to deducting the future unpaid total of benefits from tort awards, without making the responsible insurer pay the benefit leaving the problem of collection with the insured. If they don’t collect the benefit, both tort and benefit insurers are unjustly enriched while the injured person does without.
Just when it seemed impossible to erode the rights of innocent accident victims further, the insurance industry also proposes customized coverage. It is worth talking about the fiction of customized coverage.
We must recognize some realities about customized coverage:
- People do not pay premiums for costs that aren’t incurred. Where an insured opts out of coverage that they would never have accessed, and therefore don’t need, there will be no cost savings.
- Costs savings will only be realized where the insured opts not to take coverage that they otherwise would have needed.
- In other words, for there to be cost savings under customized coverage, consumers must choose to give up benefits and therefore accept a lesser product. That is, the insurance industry is saying to the consumer, we are not going to cover you for some real loss you suffer and therefore you don’t have to pay us a premium.
- The reason for savings under customized coverage is because consumers will have to make do with less. Consumers will assume the risk for these losses, even though the underlying rationale for insurance is to avoid and spread risk.
- According to the IBC, insurance is intended to provide for "peace of mind" and "allow Canadians to go about their lives without fear of financial devastation". This means we should buy a quality product for our premium dollar.
- On the chance that a loss is suffered the insured buys insurance so that "the uncertainty connected with it is removed" (these are the words of the IBC, 2004). As we diminish the coverage, and essentially shift the risk of loss back from the insurer to the insured, we increase the uncertainty for the insured.
At the same time, it is proposed that the consumer bear the responsibility for making poor coverage choices by insulating their brokers and the insurance industry from accountability in advising consumers. In other words, brokers will be compensated for their expert advice, but not be expected to stand behind it.
The IBC-promoted changes offend fundamental insurance principles and diminish the value of the product to the consumer because they are effectively shifting the risk back to the insured. As tort rights are further eroded and as more and more money is spent on stakeholders in the process, other than the insured, there is a further shift in risk back to the insured and a diminished product. With customized coverage as proposed by the IBC, there is a further shift of risk to the insured and a devalued product.
This shift in risk is due to a system that is outrageously expensive to administer, confers no significant advantage on the injured party over and above earlier schemes, and undermines the protection consumers think they are buying.
Over-generous no-fault benefits, fraud and impossibly complex claims administration processes are largely behind the difficulties we face in auto insurance. This system is not sustainable and comes at too high a cost to the consumer in relation to the value they receive.
The product must be reformed. It is badly designed. It is wasteful and inefficient. Patch-work changes have made the problem worse. The consumer is not getting value for their premium dollar and is unwittingly assuming greater and greater risk with each successive patch.
Yet the expense to the insurance industry and, therefore, the costs to the driving public, for injury-related expenses are way up. This is due to the industry that has grown up in the wake of nofault. We need to shrink the bureaucracy that has overwhelmed us and consumed so many of our premium dollars. If the system is simplified, you incur less cost for salaries, rent, lighting, paper clips, training, staff turnover etc. There are too many players in the system resulting in waste and inefficiency:
- Insurance adjusters
- More claims people are needed today.
- Those claims people need more training.
The IBC said in October 2001:
- "Some observers have correctly noted that the insurance system has become very complex and that insurers are required to devote a lot of resources to claims management. The human resources challenges are daunting. Administration of SABS claims is a daunting challenge. Insurers estimate that the internal cost of dealing with these claims is two to three times the cost of managing other kinds of complex insurance." (page 8).
- Insurer medical assessments and DACs
- More must be spent on insurer examinations.
- DAC assessment costs are significantly higher than assessments in other systems.
- FSCO
- How much time and money is spent over SABS disputes?
- Multiple proceedings for a single injured person.
To counteract these expenses, the insurance industry has proposed taking away from tort rather than addressing the utility of the no-fault concept. The SABS are too generous and, more importantly, too complex. Each time the insurance industry tries to plug a loophole or problem, another rule is made, more steps are added, and more forms are required. More people need to be trained and more time is spent to administer the claims. Ontario offers a no-fault benefits system that is far more generous than any other province.
Recommended Approach
The opposite approach is needed. We need to do the following:
- Reduce the complexity.
- Reduce the number of forms.
- Reduce the quantum of benefits, except for very serious claims. Experience in the U.S. has shown that repealed mandatory no-fault schemes have resulted in cost savings.
- These changes will also reduce the opportunity for fraud and exaggeration which has developed under SABs.
- Take the insurance industry out of the business of making health care decisions.
- Keep a verbal threshold that effectively eliminates non-serious cases.
- Allow all seriously injured people to claim in tort for real losses actually incurred.
- If commutation of benefits is to occur, fairness demands that they be paid at the time of quantification.
Whatever happened to the approach that required an auto insurance system that is fair, balanced and cost-effective?
In October 2000, the IBC submissions to the government recommended that "tort access should be extended to all injured accident victims for health care costs," yet now the claimant must meet the very harsh threshold to claim for health care costs in tort. The industry promoted this based on the recognition that the definition of catastrophic had serious shortcomings.
In the October 17, 2001 submission to the government, the IBC once again promoted increased tort access to recover health care expenses.
The insurance industry must surely believe it is in the driver’s seat after it extracted every concession from the former Conservative government that could have been on its wish list. The increased deductible, the harsh new threshold and many of the SABS changes would not have been hurried through but for the Tory’s fear of losing the election. It may be difficult now to undo the harm caused to auto insurance and the inadequate protection we all buy as motorists.
Now that the insurance industry is enjoying an up-turn in its fortunes, there may be even less incentive to adopt a new approach to auto insurance. But this product can be improved; we can have enhanced tort rights at the same time as reasonable premiums and a viable insurance industry. Pre- 1990 tort, with some modifications to eliminate non-serious claims, would be cheaper that the current system. We need to stop shifting the risk to the consumer and make sure we provide them with more efficient and effective protection.
Think Your Client is Not "Catastrophically Impaired"? – Think Again
By David A. Payne
Partner
Thomson, Rogers
The compensation that victims of motor vehicle accidents have available to them is fundamentally determined by whether or not the injuries suffered result in a "catastrophic impairment".
For any person injured since 1996, their potential no-fault benefit limits for combined attendant care and medical/rehabilitation needs is either $172,000.00 or $2,000,000.00, depending on whether or not this person is "catastrophically impaired".
For any person injured between November 1996 and October 2003, this same distinction determined whether this person could claim in court for attendant care and medical/rehabilitation needs (health care), against a person at fault for causing the injuries. Notwithstanding the key importance of a "catastrophic impairment" finding, to properly compensate individuals seriously injured in a motor vehicle accident, there was a lack of judicial guidance and great uncertainty on how to properly make this determination.
On November 17, 2004, Mr. Justice Spiegel, in a detailed and thoughtful judgment in the case of Desbiens v. Mordini, [2004] O.J. No. 4735, provided clear guidance on how the catastrophic determination is to be made. The decision changed many of the approaches and rules that insurers, doctors, lawyers and Designated Assessment Centres have been using when determining whether someone is, or is not, catastrophically impaired.
As a result of this case, many injured victims, who never attempted to be declared catastrophically impaired, or were determined by Catastrophic Designated Assessment Centres (CAT DACs) to not be catastrophically impaired, may find out that in fact they are.
The purpose of this article is to alert all persons seriously injured in car accidents to this change in the law, and to urge them to ensure they revisit this matter. As long as you have not settled your future no-fault entitlement, it is not too late.
The background:
The Law:
In order to be catastrophically impaired, the law states:
"5.(1) For the purposes of subsection 267.5(4) of the Act, "catastrophic impairment" means, … (f) subject to subsections (2) and (3), any impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or (g) subject to subsections (2) and (3), any impairment that in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioral disorder. … (3) For the purposes of clauses (f) and (g) of the definition of "catastrophic impairment" in subsection (1), an impairment that is sustained by a person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 shall be deemed to be the impairment that is listed in that document and that is more analogous to the impairment sustained by the person.
"impairment" means a loss or abnormality of a psychological, physiological or anatomical structure or function."
The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition
The Guides is a book which provides a doctor with a format for analyzing, assessing and recording functional impairments to all parts of the body. After assigning a percentage value to an individual’s particular impairments, a formula set out in a chart is used to combine them into a final "whole person impairment" (WPI). If this whole person impairment is 55% or above, the injured person is deemed to be catastrophically impaired.
In Desbiens, the court made clear what it thought of using the Guides as a determining criteria for the compensation available to individuals seriously injured in a motor vehicle accident,
"While the editors acknowledge the Guides may be used in the litigation process, they caution against using the impairment percentages derived, to make direct financial awards. As Lax, J. pointed out in Snushall v. Fulsang, the insurance legislation in Ontario appears to require precisely what the Guides themselves discourage. It has also been pointed out that the Guides are not designed to assess treatment or rehabilitation service requirements. Therefore, under Bill 59 we have the anomalous situation that the determination of entitlement to recovery of health care expenses in a tort action is governed by a set of guidelines that do not address the need for healthcare or the estimated costs thereof." (see page 22)
Having expressed this view, the court then turned itself to the particular issues.
Can an injured person’s psychological impairments be given an impairment value and used towards achieving a 55% whole person impairment (catastrophically impaired)?
As strange as it may seem, every kind of impairment (injury) is given a percentage in the Guides, except mental or behavioral disorder injuries.
Instead, these injuries have their own separate criteria set out in Chapter 14 of the Guides. They are described as mild, moderate, marked and extreme impairments, arising from a mental and behavioral disorder. The level of impairment is assessed by reference to four separate domains, which are, daily functioning, work, social functioning, and concentration.
The court stated that if you have a marked or extreme impairment in any one of these domains, you are deemed to be catastrophically impaired.
A difficulty arises, however, if somebody injured in a motor vehicle accident has a very serious psychological or psychiatric injury/condition but not so serious as to pass the Chapter 14 "marked" or "extreme" threshold. What do you do with this impairment? Defense lawyers, adjusters and most Designated Assessment Centres, have historically stated or determined that you could not assign any percentage impairment from a psychological or psychiatric impairment in calculating the 55% whole person impairment threshold for a catastrophic impairment finding.
Anyone practicing in this area of law knows the great frustration of an injured person desperately needing more than the $100,000.00 non-catastrophic level of medical and rehabilitation no-fault benefits. Many injured people have, for example, a purely physical (whole person) impairment below 55% and the Designated Assessment Centre would not assign any percentage impairment, for the person’s clearly disabling psychological or psychiatric injury which, if it did, would result in a whole person impairment finding of 55% or above, and therefore a catastrophic impairment finding.
Justice Spiegel reviewed the law, in detail, and ruled:
"I find that it is in accordance with the Guides to assign percentages to Mr. Desbiens’ psychological impairments and to combine them with his physical impairments in determining whether he meets the definition of catastrophic impairment under clause (f)." (see page 50)
By analogizing the impairments from Chapter 4 of the Guides, the court assigned an additional 25% psychological impairment to the whole person impairment, and this put the injured Mr. Desbiens over the 55% minimum, so that he was deemed to be catastrophically impaired.
How is the whole person impairment calculated for a person who has pre-existing impairments?
Many individuals injured in car accidents have pre-existing impairments. In Mr. Desbiens’ case, they were extreme. Prior to the motor vehicle accident, he was already a paraplegic from a prior work-related accident. The court (having not assessed a 25% psychological impairment to the whole person impairment) determined Mr. Desbiens to have a 40% whole person impairment, thus well below the 55% threshold level for a catastrophic finding. The difficulty, as stated by the court, was:
"The Guides are premised on the assumption that one is dealing with a healthy person who sustains impairments as a result of an injurious event." (see page 36)
It was agreed by all parties:
"The Guides permit and in fact anticipate, that the assessor will exercise discretion where the impairment percentage arrived at does not accurately reflect the real functional impairment sustained by the injured person." (see page 36)
There was a disagreement by the experts for the plaintiff and the defendant on the proper way to exercise this discretion. The court agreed with and adopted the approach and opinion of Mr. Desbiens’ expert physician, and stated:
"A WPI of 40% when superimposed upon Mr. Desbiens’ paraplegia had grave consequences for his ability to function that are not adequately reflected by a WPI of 40%. Viewed in this manner, she was of the opinion that Mr. Desbiens had sustained a catastrophic impairment in the car accident." (see page 36)
Therefore, on a physical basis alone, Mr. Desbiens was deemed to be catastrophic.
Conclusion
Any injured party who had pre-existing injuries or has a psychological or psychiatric component to their injury, and hasn’t applied for a catastrophic impairment designation or has had a Designated Assessment Centre turn them down, should have this matter revisited.
As Justice Spieigel stated:
"The drafters clearly intended the definition of "catastrophic impairment" to be inclusive rather than restrictive." (see page 48)
| By David Tenszen Partner Thomson Rogers |
and | Adrienne Kirsh |
The Legislation
It has been some time since the Accident Benefit Reporter has updated its readers with respect to home modifications for accident victims pursuant to Section 15 of the Statutory Accident Benefits Schedule. Section 15 provides that all reasonable and necessary rehabilitation expenses are to be paid to reduce or eliminate the effects of an accident-related disability. Section 15(5)(i) of the SABS provides that an insurer may be required to purchase a new home for the insured if it is more reasonable to purchase a new home to accommodate the insured person’s needs than renovate his or her existing home. However, Section 15(8) of the SABS states that the amount of the benefit for the purchase of a new home shall not exceed the value of the renovations to the insured person’s existing home that would be required to accommodate his or her needs.
On its face, the legislation provides adequately for insureds who own their own pre-accident homes, which can then be modified to accommodate their post-accident needs. However, challenges arise when a home cannot realistically be modified to accommodate ithe post-accident functional needs of an insured person.
Rentals
Consider a situation in which a person lives in a rented basement apartment and requires the use of a wheelchair after being seriously injured in a motor vehicle accident. At first blush, a benefit would be available only to modify the existing rental accommodation that is owned by someone else, not to purchase a new home to be owned by the accident victim. However, in order to build a ramp or elevator so the insured can gain access to his or her apartment, the owner of the property would have to consent to these modifications. That consent may not be forthcoming or may only be forthcoming at a high price. Owners also may insist that the residence be restored to its original condition upon the insured’s departure, thereby necessitating not only the calculation of modification costs and "consent costs" but also the costs of restoring the property upon the insured’s departure.
Condo Living
Perhaps an insured owned a one-bedroom condominium pre-accident and now requires the assistance of a 24-hour attendant due to his or her injuries. In order to modify the insured’s condominium to create a living space for an attendant, the condominium unit next door likely would have to be purchased and amalgamated with the insured’s unit to create a larger, single living area with extensive modifications. Sufficient financial incentive would have to be offered to the adjacent owner in order for them to sell their unit and even then, the condominium association may not approve the extensive renovations required.
Homeowners
Finally, consider the situation in which an injured person resides in a house with a narrow one-car driveway with steps leading up to the front door. That person will require a modified van to accommodate a wheelchair and, therefore, also would require an oversized sheltered garage with level, paved direct ramp access to the house, to enable smooth transitions into and out of the van. This could be extremely costly to build even if an appropriate building permit and/or the approval of a local municipal by-law committee were obtained.
In each of the above scenarios, the true cost of renovation may well exceed the cost of purchasing an appropriately modified home for the accident victim.
State of the Law
In 2002, a motion was brought before the court by an insured in Wynn v Belair Direct, seeking an urgent Order that the insurer pay for the purchase of a new home, to accommodate her housing needs after a 2000 motor vehicle accident rendered her quadriplegic. In the insured’s existing rental apartment, she was unable to access the bathroom or the second floor, among other difficulties. An occupational therapist submitted that the insured’s existing living situation would "not enable her to maximize her potential with regard to independence and life satisfaction." After reviewing the evidence on possible housing options in the insured’s area, Justice Pedlar decided that it was "more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person’s existing home."
Justice Pedlar ruled that in the insured’s situation, renovations to her existing home were not reasonably possible, therefore the analysis under section 15(8) could not be carried out and, as such, section 15(8) did not apply. Justice Pedlar ordered the insurer to approve the funding of a new home for the insured at a cost of approximately $250,000.00.
The insurer then brought a motion seeking leave to appeal Justice Pedlar’s decision and seeking a stay of Justice Pedlar’s order until the appeal was heard. In granting the motion, Justice Lalonde stated that an analysis of the cost of renovating the insured’s existing home must always be taken into account in deciding how to best meet the living needs of the insured person after an accident. Justice Lalonde stated that in section 15(8) "there is a statutory requirement that obliges the defendant to determine what it will cost to renovate the plaintiff’s home…even though the rented premises of the plaintiff will not be renovated." The case settled before the appeal proceeded and as such, it is arguable that if the pre-accident housing situation of a person cannot be modified to facilitate their post-accident impairments, the insurer may be required to fund the cost of a new home without even taking into account the costs of renovating the insured’s pre-accident residence.
Alternatively, in many cases, such as those examples noted above, the cost of modifying the unmodifiable may well exceed the cost of purchasing a new home for the previously "non-owning" accident victim. In these circumstances, the accident victim may end up owning a modified home where previously they were only renting an apartment or condominium.
Am I Fired?: Constructive Dismissal and Disabled Employees
By Robert Brent
One of the most complicated areas of employment law surrounds the doctrine of constructive dismissal. To paraphrase a leading decision of the Supreme Court of Canada, a constructive dismissal occurs where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms. The employer must be seen to have altered the terms of the employment contract to such a fundamental degree that the very nature of the employment has changed. The employee, where this happens, is entitled to consider her or his employment at an end and to sue for damages.
The complexity surrounding this issue arises from two sources: first, whether an employee has been constructively dismissed is not always clear; second, an employee must decide how to respond once it is determined that he or she has been constructively dismissed.
In the case of an employee who has been disabled by an injury or illness, these issues can be triggered when the employee returns to work to find that his or her responsibilities have been altered, or that his or her job has changed altogether. In such circumstances, the employee may have been constructively dismissed. An employer’s obligation to accommodate a disabled employee under Ontario’s Human Rights Code adds another layer of complexity to this situation.
The employee has the onus of proving that a constructive dismissal has occurred. As a rule of thumb, the Courts will ask whether the change effectively amounts to the employee performing a different job.
Whether a constructive dismissal has occurred obviously will depend on the facts of each particular case. In very general terms, grounds of constructive dismissal can include: changes in remuneration, in job duties or in working conditions; geographical relocation; forced resignations, leaves or lay-offs; and/or employer conduct that is incompatible with continued employment, like abusive or humiliating treatment or harassment.
An employee who has been constructively dismissed is faced with several choices:
- the employee can accept the change and continue working for the employer (in which case he or she likely gives up the right to challenge the constructive dismissal); or
- the employee must elect in a timely fashion to reject the change and:
- quit his or her job and commence a constructive dismissal action; or
- communicate his or her rejection of the change clearly to the employer, and continue working under protest while seeking alternate employment. This option may not always be feasible.
If the employee does not elect to reject the change in a timely way, or does not communicate that rejection to the employer in clear and unequivocal terms, then the employee runs the risk of being viewed later by a Court as having condoned the change, which will bar a successful constructive dismissal lawsuit.
All of the foregoing must be viewed in light of the employer’s obligation to accommodate the needs of a disabled employee under the Ontario Human Rights Code. Under section 17 of the Code, people with disabilities have the right to have their individual needs accommodated by their employer, short of undue hardship on the employer, to enable the employee to perform the essential duties of his or her job. This means that an employee has a right to return to work, provided that he or she can perform the essential duties of their job (after being accommodated).
One would hope that employers will not be tempted to rely on their duty to accommodate to justify changes to a disabled employee’s work that might amount to a constructive dismissal. The focus on the essential duties of an employee’s job, under the Human Rights Code, should prevent this from happening. In other words, the focus of accommodation is to preserve the essence of an employee’s job. Similarly, constructive dismissal prevents an employer from changing the fundamental nature of the employee’s job. An employer’s attempts to accommodate the needs of a disabled employee should preserve – rather than alter – the fundamental nature of the employee’s job.
Employees who feel that they might be facing a potential constructive dismissal should consult a lawyer who specializes in employment law, given the complexity surrounding these issues. If you or someone you know has suffered an injury and requires assistance, please feel free to contact Thomson, Rogers for a consultation.
Comparison of Key Changes to Tort from Bill 59 to Bill 198
| Bill 59 (Nov. 1, 1996 to Sept. 30, 2003) |
Bill 198 (Oct. 1, 2003 to present) |
|
| TORT CLAIM | ||
| Monetary Deductibles | Claimant: $15,000 Family members: $7,500 | Claimant: $30,000 (where claim assessed at $100,000 or less) Family members: $15,000 (where claim assessed at $50,000 or less) |
| "Threshold Test" | To claim for pain and suffering, an accident victim must suffer a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement. |
Key terms now defined:
Note: The Regulation also now prescribes the minimum evidence required to prove that the threshold has been meet by a claimant |
| Threshold for Suing for Excess Health Care Expenses | Catastrophic impairment. | Permanent serious impairment. |
The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about "Accident Benefit Reporter", please contact Thomson, Rogers.
"Accident Benefit Reporter" is a publication of
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Suite 3100, 390 Bay Street, Toronto, Ontario M5H 1W2
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Posted: April 1, 2005
