Law Times

Law Times • June 11, 2018 Page 13 www.lawtimesnews.com the equation, leaving a distorted view of reality," she says. "Nobody sees the aftermath where you had to lie down be- cause of the pain or how you paid for days after with mi- graines," Bent adds. When the inevitable requests for social media production do come from defendants, Gluck- stein says, the worst thing clients can do is try to get rid of photos or other material on their sites. "It's important to preserve accounts, whether they're on Instagram, Facebook, Twitter or whatever. Any kind of active de- struction is going to be frowned upon and will likely be read against you," he explains. "The presumption is that it would have been helpful to the defence." However, Birman says, there are limits on what defendants are entitled to view. "Defence lawyers who are less familiar with how these sites work might ask for an under- taking to produce everything posted to Facebook once they find out the plaintiff has a pro- file, without recognizing that it's more like a filing cabinet, with all sorts of other, irrelevant stuff on there," he says. "They don't get everything just by virtue of the fact that an account exists." Unlike the situation in Pa- pamichalopoulos, where some postings were publicly avail- able and others were hidden to the defendant, Birman says, it's more common for a plaintiff 's entire account to be closed off via privacy settings. "What they have to do is to establish the relevance of what they're requesting, which should happen through a series of ques- tions to find out what's on the site, and determine whether it relates to the litigation," he says. "If the plaintiff is not able to say at discovery what is on the site because it's not top of mind, then I'll give an undertaking to review the material and pro- vide a position regarding its relevancy." In Papamichalopoulos, Bent says, it appears that the assump- tions relied upon in the plain- tiff 's own expert report opened up the lines of enquiry that led to his Facebook pictures. "The defendant is entitled to test the assumption proffered by the plaintiff that, but for the plaintiff 's alleged injury," Abrams wrote, he would have continued earning a six-figure salary, and that his loss of em- ployment "is attributable wholly or in part to his injury." "Lawyers should be aware that the assumptions they ask their expert to make could inad- vertently lead to other requests that the court is going to hon- our," Bent says. LT this decision emphasizes that it's all about the legitimacy of the service provider." By making legitimacy the key determinant, Gilbert says, the decision also takes the pressure off service providers to prove exactly when they entered or re- entered their profession. "Where this case is more helpful than some others is that it accepts the LAT's conclusion that there isn't a need to show that the service provider was working in that capacity on the day of the accident or before that," she adds. "There's a bit of f lexibility, which makes sense. Just because you're unemployed for a week or month [is] not going to de- legitimize the services you pro- vide in a professional capacity. You don't stop being a PSW by trade just because you're out of a job for a particular period of time." Rob Deutschmann, prin- cipal at personal injury firm Deutschmann Law in Kitchen- er, Ont., says the decision was a good one for Helmer, but he la- ments the need for these sorts of determinations at all, calling the incurred expense provision "one of the more cruel changes to the accident benefits regime. "It seems to serve no purpose other than to cut costs and hurt injured people," he says. Until the provisions were added in 2010, Deutschmann says, it was a relatively simple process for family members to step in to provide care, noting that expenses were naturally checked by the insurer's assess- ment of attendant care needs. Further amendments to regulations in 2014 "compound- ed the cruelty," according to Deutschmann, by changing the definition of "economic loss" in the section to cap benefits ac- cording to the lost income of a non-professional family mem- ber, rather than the value of the attendant care services provided. Toomath says the Helmer decision was also notable for confirming that the Divisional Court will review LAT decisions on a standard of reasonableness. "This is one of the first deci- sions where they have been asked to clarify the standard," he says. Belairdirect argued that a correctness was a more appro- priate standard, considering the LAT only took over responsi- bility for accident benefit mat- ters from the Financial Services Commission of Ontario. "We do not agree with the ap- pellant that the presumption of a reasonableness standard is rebut- ted simply because the jurisdic- tion of the LAT is comparatively recent," MacLeod concluded. "In fact the Supreme Court of Canada has indicated that cor- rectness applies only to a very narrow category of legal ques- tions such as questions of central importance to the legal system as a whole, constitutional questions, questions regarding the juris- dictional lines between compet- ing specialized tribunals or true questions of vires or jurisdiction. This is not such a case." LT Continued from page 11 Continued from page 12 Legitimacy key Privacy diminishing for plaintiffs? PERSONAL INJURY LAW What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2018-02-08 2:41 PM Rob Deutschmann says the incurred expense provision in the Statutory Accident Benefits Schedule is 'one of the more cruel changes to the accident benefits regime.'

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