Law Times

Law Times • sepTember 9, 2013 Page 11 BRIEF: PERSONAL INJURY LAW Does insurance cut mean change to catastrophic impairment? BY GLENN KAUTH Law Times E veryone wants to pay less for auto insurance, but should the government's promised rate cut come at the expense of decreased benefits by restricting the definition of catastrophic impairment? That's among some of the worries for the personal injury bar as the provincial government seeks to make good on a promised 15-per-cent reduction in auto insurance premiums. The government made the promise in response to demands by the NDP in exchange for its support for the provincial budget. Last month, Finance Minister Charles Sousa began outlining his plans for the rate cut. He noted it would take place over two years and would involve a series of measures to make it happen: Cracking down on fraud; giving greater authority to the Financial Services Commission of Ontario; and considering oversight of the towing industry. But according to the Toronto Star, Sousa has admitted the definition of catastrophic impairment is under consideration. That's a prospect that's a concern for Neil Wheeler, practice group leader of the plaintiff personal injury group at Lerners LLP in Toronto. "Any restriction on that definition is arguably going to affect those people most in need of benefits," he tells Law Times. Wheeler acted in one of the key cases on catastrophic impairment, Desbiens v. Mordini, in 2004. The ruling stands for the notion that the court should include a consideration of the government's intention in the legislation when dealing with the issue and that "catastrophic impairment needs to be interpreted broadly," according to Wheeler. Since then, the courts and FSCO have generally followed that line of thinking, he says. In Wheeler's view, then, any revision of the definition "would be a departure from the jurisprudence." In addition, he points out the irony that a change would have a greater impact on "the most seriously injured." And, according to Wheeler, while the insurance industry complains the current approach is too generous, it's important to note that the issue only affects the maximum payout and duration of benefits for those deemed catastrophically impaired. Those injured still have to prove entitlement to specific benefits. One of the issues that have rankled the See Claims, page 13 'Any restriction on that definition is arguably going to affect those people most in need of benefits,' says Neil Wheeler. Woman deemed 'not suitable for group travel' awarded $5K BY MARG. BRUINEMAN For Law Times A recent tribunal decision has reiterated the importance of the duty to accommodate people with disabilities. "The important point there is that the request or the need for accommodation be taken seriously," says David Baker of BakerLaw. The Human Rights Tribunal of Ontario found in Austen v. Senior Tours Canada Inc. that a tour company didn't properly respond to a woman's requests when booking travel tours. Instead of responding to her complaints, the company found them annoying and deemed her "not suitable for group travel" while removing her from its mailing list. The tribunal awarded her $5,000 for injury to dignity, feelings, and self-respect in connection with the refusal to consider accommodation in January 2012 and a breach of the duty to accommodate in January 2013. "The procedural duty to accommodate requires the respondent to make appropriate inquiries into the nature of the applicant's disability-related needs and give thought and consideration to the issue of accommodation, including what, if any, steps can be taken to provide accommodation," wrote adjudicator Ruth Carey on Aug. 16. "It may be true that there is nothing the respondent can do about the booking policies of the airlines, but that does not mean there are no steps it can take to help someone travel who does need advance seat selection. The respondent is fully aware of these steps it can take to accommodate the applicant's needs in the future should she choose to use their services again." In January 2012, Donna Austen inquired about a trip. She said she told the travel company she had multiple disabilities, including claustrophobia and irritable bowel syndrome, and needed an aisle seat near the front when travelling by plane. The company refused its services because it felt Austen's behaviour was unpleasant and combative. The tour operator claimed she disclosed no disabilities, according to the ruling. In a followup telephone conversation, the manager refused to give her additional reasons. Austen offered to provide medical documents to support her need for accommodation when travelling. The manager declined, believing it would have no impact on the decision and that the accommodations requested were beyond the company's control. "I think the message that this case sends is that human rights should not be taken lightly. The case did not deal so much with Ms. Austen's disability as it did with the very poor response, or lack of response, and investigation by Senior Tours," says Cynthia Ingram of Keyser Mason Ball LLP. Human rights are a dynamic part of the law and there's a growing awareness of the issues, she adds. So when it comes to organizations, human rights isn't something they should consider only in relation to their employees but to clients and suppliers as well. She suggests private-sector companies should identify, assess, and address human rights issues and risks in their operations while recognizing that their failure to do so may affect their brand recognition and their future business and services. "Just as poor human rights actions can negatively impact brand recognition, good human rights actions can positively impact brand recognition for businesses. In addition, privatesector parties should realize that they could drive positive movements in the area of human rights," says Ingram. Arthur Zeilikman sees the case as being in line with the recent Ontario Court of Appeal decision in Peel Law Association v. Pieters. "As long as the aggrieved party can make a prima facie case that it has been subjected to discrimination, the onus will shift to the respondent to prove otherwise," he says. This case, he adds, confirms the definition of disability is quite broad and encompasses a variety of medical conditions.   The bottom line here, says Mindy Noble, a staff lawyer with the Human Rights Legal Support Centre who represented Austin, is organizations can't refuse people services because of their disability. In addition, there is an obligation on any organization to conduct an inquiry when faced with a complaint. "Theoretically, if they could establish that they couldn't help, they still had a duty" to investigate the complaint, says Noble. That the tour company dismissed the complaint and offered no evidence at the tribunal suggests it didn't take the complaint and the entire process seriously, lawyers say. Noble says she gets the sense that some people have the perception that a tribunal process isn't as serious as court proceedings because they see it as being less formal. But, she says, "the HRTO deals with very endersonLT_Sep10_12.indd 1 www.lawtimesnews.com Untitled-1 1 important issues and it should be taken very seriously." But there's a trend of organizations increasingly recognizing their responsibilities, says Baker. "Service providers . . . are more clearly recognizing their duty to accommodate. This is the type of case that could have been resolved informally." LT Your Partners in Service® Since 1981 1.800.263.8537 www.henderson.ca 12-09-05 3:21 PM 13-09-04 11:06 AM

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