Law Times

lAw Times • April 29, 2013 Page 7 COMMENT Liberals banking on budget to win support T here's nothing like slipping on a pair of pants or a jacket and finding a $20 bill in the pocket. But imagine the joy at finding $5 billion in your old jeans. When Finance Minister Charles Sousa rises in the legislature on Thursday to table his budget, it'll follow the pleasant surprise of finding the current fiscal deficit is running lower than expected at $9.8 billion instead of $14.8 billion. Forgive the cynicism, but it feels like a setup. The budget will either buy Premier Kathleen Wynne more time to establish her brand and put space between her regime and that of predecessor Dalton McGuinty or trigger an election. If it's the first scenario, the government will need NDP Leader Andrea Horwath's support, but at what price? If it's the latter situation, the Liberals will face the jury of voters pleading a defence of a new-found fiscal responsibility along with an agenda for progressive and collaborative change as they argue they've been listening to Ontarians and have already enacted or started the process on a number of key issues. It also brings to mind former Liberal premier David Peterson's 1990 parting gift in claiming a surplus budget. When his government fell and Bob Rae's NDP took power that year, they discovered the province was actually running a $3-billion deficit. It was quite the surprise. This budget will have to buy NDP support and those extra billions could make it seem like it won't cost a dime just as the government claimed it found $63 million catastrophe can be avoided." to settle with the teachers. Sousa knows this all too The problem with spendQueen's well, of course, and he has ing this windfall, notes CanPark telegraphed some of what dice Malcolm, Ontario direcwill be in Thursday's budget. tor of the Canadian Taxpayers Given the political tightrope Federation, is that it's not the he has to walk, it's a difficult deficit that's killing the econotask. The recovery is flagging my but the debt. and growth previously pro"Servicing the debt is the jected at 2.2 per cent is now third-largest expenditure of looking to come in at 1.5 per the Ontario government," cent for 2013. notes Malcolm. Ian Harvey Ontario is third for new "About one in every $10 foreign-direct investment and from Ontario taxpayers pays interest on the debt — over $10.4 it needs to maintain or improve its posibillion last year — and this in a low tion if it's to see any growth in the years interest-rate climate. Our debt-to-GDP ahead. There's little room, then, for new ratio is hovering just below 40 per cent, corporate taxes, but the NDP is insistent exactly where Greece's stood less than on that issue. On the personal side, adding to the middle-class income tax burthree decades ago." Comparing Ontario to Greece is den is a political non-starter. Sousa also must also come up with pretty scary, but when you look at the some ideas on how to pay for tran$255-billion accumulated debt, it's even more frightening. As it stands, Ontario sit without stinging rural Ontarians adds $32.5 million to the debt daily and who don't see how they'll benefit from every penny it borrows goes to paying the streetcars or subways. "People in the north or other parts of interest without touching the principal. Ontario's debt-to-GDP ratio has risen this province will not pay for transit imto nearly 40 per cent today from 15 per provements in Toronto," he pledged in a cent under Peterson. Even Mike Harris' speech last week, although he left some Conservative government only managed room by noting all of Ontario benefits to keep it around the 30-per-cent level when the Greater Toronto Area economy runs efficiently. during its tenure of 1995-2003. Spin it as he might, however, overall "It's time for a debt-reduction payment schedule to be cemented by law," progress on spending has been slow. This year, according to Sousa, 16 out of 25 argues Malcolm. "We're not Greece, not yet anyway. If ministries will spend less than their previthe government acts now, the looming ous allocation, but that means nine others will spend more. In addition, he admitted the government has yet to act on 40 per cent of the recommendations for cutting costs put forward by economist Don Drummond last year. There will be new cuts, to be sure. Business tax credit programs will undergo some surgery, he promised, noting the costs of them have risen 15 per cent over the last decade. At the same time, there will likely be a threshold, probably through some sort of means test, for programs like the clean energy benefit and the Ontario drug benefit. Sousa and Wynne may be tabling the budget, but watch closely and you'll see Horwath calling the shots even though some members of her caucus are itching to bring down the government and take it to the voters. The Liberals have already announced new spending for home care and there are ongoing talks over insurance rates within the existing Financial Services Commission of Ontario framework. Horwath is too astute to demand $5 billion in new spending but will nonetheless press her agenda further and make the Liberals dance more energetically to her tune because the governing party has already shown it's not above spending tax dollars to secure its political survival. And that's the most cynical note of all. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Decision deals significant blow to minor injury guideline BY ALEXANDER VOUDOURIS For Law Times O u SPEAKER'S CORNER n March 26, an arbitration decision dealt a potentially serious blow to the minor injury guideline. The case represented the first arbitral or judicial decision considering the definition and applicability of the minor injury guideline. It came more than two years after the introduction of the minor injury guideline along with sweeping changes to the statutory accident benefits schedule. The changes have dramatically reduced the accident benefits available to motor vehicle accident victims and have correspondingly resulted in dramatic increases to insurance company profits. The decision at issue involved Lenworth Scarlett and Belair Insurance Company Inc. In it, arbitrator John Wilson forcefully sided with Scarlett, the applicant, in finding his injuries did not fall within the minor injury guideline and thus allowed him to claim up to $50,000 in medical and rehabilitation benefits rather than the paltry $3,500 limit that would otherwise apply. As Scarlett's matter did not fall under the minor injury guideline, he could also claim attendant-care benefits. In the ruling, Wilson determined a number of important matters: • The minor injury guideline, as guidance issued by the superintendent of insurance, was a non-binding interpretive tool despite its incorporation directly into the statutory accident benefits schedule. Wilson reasoned that as the Insurance Act was supreme and it clearly states that guidelines are simply to be "considered," incorporation of the minor injury guideline into the benefits schedule could not take precedence over the legislation itself. In other words, the Insurance Act dog always wags the regulatory benefits schedule tail. Should this ruling survive on an expected appeal, it will have a profound muting effect on the impact of the minor injury guideline and free arbitrators and judges to more liberally determine how to consider its impact on and applicability to the statutory accident benefits schedule. • The minor injury guideline, with its $3,500 limit for medical and rehabilitation benefits and its prohibition on claiming attendant-care benefits, is an exception to or limitation on coverage. As a result, it is the insurer's burden to prove the claimant falls under it. In other words, the default is that claimants injured in motor vehicle accidents are not subject to the minor injury guideline unless the insurer proves otherwise. That finding, if sustained on an expected appeal, would also be a significant weakening of the perceived applicability of the minor injury guideline. The finding is even more significant when considering the fact that Wilson decried a "cookie-cutter" application of the minor injury guideline to every soft-tissue injury. In his view, it makes no sense to allow insurers to veto access to benefits. • The requirement for "compelling evidence" to establish that a pre-existing medical condition was a bar to recovery if treatment was subject to a cap of $3,500 did not change the evidentiary burden of a balance of probabilities. Personally, I have never considered evidence based on a balance of probabilities not to be compelling. • Temporamandibular joint pain, chronic pain syndrome, and post-traumatic stress disorder were separate and distinct injuries rather than a secondary consequence or result of Scarlett's soft-tissue injuries. The significance is that secondary consequences of an injury coming within the minor injury guideline do not take claimants out of that category. Unfortunately, Wilson did not give any reasons for this finding nor did he explain whether or why temporamandibular joint pain, chronic pain syndrome, and post-traumatic stress disorder were Scarlett's predominant injuries. For an injury that does not come within the minor injury guideline to take someone out of that category, it must be the claimant's predominant injury. Other significant findings included the fact that the original disability certificate submitted by Scarlett arguably www.lawtimesnews.com supported Belair's belief that the minor injury guideline applied to him and that actual evidence by way of expert reports that stated the opposite came a year later. Finally, in somewhat of a contradiction, Wilson ruled that any determination related to the minor injury guideline by an insurer could only be an interim one subject to a full arbitration hearing. He then went on to find that Scarlett did not come within the minor injury guideline based on a hearing of a preliminary issue. At its simplest, the Scarlett decision is not particularly revolutionary in that it found Scarlett suffered from injuries that kept him out of the minor injury guideline. At its highest, the case dramatically limits the applicability and impact of the minor injury guideline. As an appeal is likely, together with the fact that many issues related to the minor injury guideline did not arise in the decision, the jury is still out on the final significance of the Scarlett case despite the potentially serious blow to the minor injury guideline. LT Alexander Voudouris is senior litigation counsel at the Pace Law Firm in Toronto. u Editorial corrEspondEncE NO SHORTAGE OF FAMILY LAWYERS A shortage of family lawyers on Bay Street? What about the rest of Toronto? The rest of Ontario? If people are doing without family lawyers, it's certainly not due to a shortage. So many people these days, for various reasons, choose to self-represent and very often it's because they don't understand the value of legal services. They don't know what they don't know. Comment on lawtimesnews.com by Evan about "Law schools, licensing face transformation: Conway."

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