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BridgePoint Seeks Meaningful Change in Broken Auto Insurance System

Stephen Pauwels, BridgePoint Financial Group | January 16, 2018

Like others seriously affected by the many changes taking place in recent years in the personal injury litigation market in Ontario, we have witnessed with growing concern the dramatic shift in the balance of power towards insurance company defendants at the expense of accident victims. Moved by the tragic stories of the thousands of personal injury plaintiffs who require our financial support each year (all of whom have been re-victimized by our broken auto insurance system), we have decided to add our voice to the chorus of those seeking meaningful changes from legislators to restore access to justice for accident victims.

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The Marshall Report: A Missed Opportunity

Stephen Pauwels | BridgePoint Financial Services | December 4, 2017 | Posted in Commentary

"My settlement has been held up to the point where I'm about to lose the roof over my head, my car, my cell phone. My leg braces are cutting my feet and are being held together by duct tape because I'm waiting for financial approval from the insurance company. I can't afford my medication, my medical equipment or treatment which is affecting the recovery of my spinal cord injury. I'm physically suffering. The last loan I received from BridgePoint was taken from the bank almost immediately because my line of credit went into collections. If there's anything you can so to help, it would be greatly appreciated."

Most would be shocked to read the above plea for financial help from an Ontario resident who is already years into his personal injury claim. Sadly, we at BridgePoint aren't. Why? Because we receive thousands of similar applications each year from people in the same desperate situation: trying to rebuild their lives after their accidents, but thwarted in their efforts by the very insurance companies who are supposed to help them.

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Further lessons from El-Khodr

Grace Tsang & Saleema Kassam | BridgePoint Financial Services | October 27, 2017 | Posted in Commentary

Plaintiffs with tort and Accident Benefit claims should prepare for increased reductions in their awards for damages following the recent Court of Appeal Decision in El-Khodr v Lackie, 2017 ONCA 716 (“El-Khodr”). In the decision, the Court determined that the principle established in Bannon v McNeely (1998), 38 O.R. (3d) 659 (C.A.) (“Bannon”), of matching “apples to apples” in regards to the categories of awards and reduction of the same is no longer relevant.

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Plaintiffs Take Another Hit

Grace Tsang, Saleema Kassam & Amanda Bafaro | BridgePoint Financial Services | October 5, 2017 | Posted in Commentary

At long last, the Court of Appeal has spoken.

We have previously discussed changes to s. 258.3(8.1) of the Insurance Act that on January 1, 2015 reduced the pre-judgment interest rate for non-pecuniary damages from 5.0% to the bank rate at the time the proceeding commenced.

In El-Khodr v Lackie, 2015 ONSC 4766 (“El-Khodr”) the Court was asked to determine if this reduction applied to cases commenced prior to the amendment date. The trial judge determined, to the relief of all plaintiffs with personal injury actions commenced before the amendment date, that the amendment did not apply retrospectively. In the absence of express or implied intention, the Court held that the change in pre-judgment interest rate was to be enacted on a go-forward basis, and to find otherwise would be a windfall for insurance companies and cause disadvantage to insured persons. This was a welcome decision to plaintiff personal injury lawyers already battling defendant insurers on the retroactive application of the rate reduction.

As is often the case with law, however, a conflicting decision followed just months later in Cobb v Long Estate, 2015 ONSC 6799 (“Cobb”). The trial judge in Cobb exercised his discretion under s.130 of the Courts of Justice Act and set a pre-judgment interest rate at 3%.

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Seriously injured client makes rehab gains and returns to part-time work

Brian Ginsler, BridgePoint Financial Services | June 1, 2016

BridgePoint was approached by Findlay Law in Hamilton to obtain a treatment credit line to finance the ongoing costs of care of their client CC, who had suffered numerous fractures, brain injury and psychological trauma in a head-on MVC.

The SABS non-catastrophic funding was exhausted in the first year for both medical and rehabilitation benefits and attendant care, but the GCS and the length of time following injury did not permit a CAT application to be made at that time.

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No Retroactive Application of PJI rates for Ontario MVAs

Grace Tsang, BridgePoint Financial Services | September 25, 2015 | Posted in Commentary

We have written in a previous blog about Bill 171, which proposed several significant amendments that would affect injured parties. One of those amendments would set the pre-judgment interest rate (“PJI rate”) for non-pecuniary damages (damages for pain and suffering) which arose from bodily injury or death caused by a motor vehicle accident at the same rate as the PJI rate set out in the Courts of Justice Act (“CJA”). The result would be a significantly lower interest amount to the plaintiff in those situations. On January 1, 2015, the Insurance Act was amended to reflect this change. It does not appear that this amendment included a transition period. This raises the question as to whether the amendment would apply retroactively to files that are already before the Court.

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Update on Scarlett v. Belair

Bob LaBrecque, BridgePoint Financial Services | July 27, 2015 | Posted in Commentary

This is an update on the continuing saga of Scarlett v. Belair. We had previously written about this action in 2013 with respect to the Arbitrator’s and Director’s Delegate decisions. In 2013, the Arbitrator had narrowly interpreted the application of the Minor Injury Guidelines (“MIG”). By way of background, the MIG limits the medical/rehabilitation amount available to individuals injured in a motor vehicle accident to $3,500.00 unless they have a fracture, full thickness soft tissue tear, or are catastrophically impaired.

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$50,000 Court Penalty for Aviva in Threshold Related Decision

Grace Tsang, BridgePoint Financial Group | April 20, 2015 | Posted in Commentary

On December 12, 2014, the Ontario Superior Court of Justice in Barrie released its decision in Maxwell v. Luck, 2014 ONSC 7179 (CanLII). The endorsement dismissed the defendant’s threshold motion at trial and maintained the jury’s award of $108,000. This decision is significant for the Court’s review of the assessment on chronic pain conducted by the defendant’s expert. The action is also significant as the Court ordered a penalty against the defendant insurer for putting the plaintiff’s file in the threshold program.

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MacKenzie v. Rogalasky: The Recovery of Interest for Litigation Financing is not a Dead Issue

John Rossos, BridgePoint Financial Group | November 21, 2014 | Posted in Commentary

On November 17, 2014, the British Columbia Court of Appeal rejected an appeal seeking the recovery of interest for a loan obtained by the claimant to pay for the cost of disbursements. The claimant borrowed money from a litigation financier to pay for the cost of their counsel’s disbursements and sought recovery of the interest. The B.C. Court of Appeal’s decision is the latest pronouncement on the issue concerning the recovery of financing costs in litigation and unfortunately contradicts a recent decision reached by the New Brunswick Court of Appeal in Leblanc v. Doucet, further adding to the growing number of conflicting decisions across Canada on this issue. Although it is tempting to say that the recovery of financing costs for loans used to finance disbursements incurred in litigation is a “dead issue”, there are very good reasons not to rush to this conclusion.

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Insurer Ordered to Pay Interest on Litigation Loan until Trial

Stephen Pauwels, BridgePoint Financial Group | August 12, 2014 | Posted in Commentary

This decision is significant as it represents the first instance where interest on a litigation loan has been recovered from an insurer here in Ontario with the prospect of a full interest recovery pending the outcome of the trial(s).

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Interest on Litigation Loan Recovered from Defendant
in Supreme Court of Nova Scotia Decision

Stephen Pauwels, BridgePoint Financial Group | July 31, 2014 | Posted in Commentary

A recent Nova Scotia Costs Order represents the first time in that province that a defendant has been ordered to reimburse interest incurred by a plaintiff in full on litigation loans which were “necessary to continue the litigation”. Mr. Lowell Weir was one of a group of plaintiffs who were awarded in 2013 over $2 million in compensatory and $200,000 in punitive damages in a securities-related action against National Bank Financial which arose from the collapse of Halifax technology company, Knowledge House Inc. In order to afford the costs involved in the prolonged litigation, he borrowed approximately $100,000 through three separate litigation loans, incurring total interest costs in excess of $80,000.

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BICO Legal Cost Protection Successfully
Used to Defeat Security for Costs Application

John Rossos, BridgePoint Financial Services | July 24, 2014 | Posted in Commentary

Renée Vinett, a partner at Toronto personal injury law firm, Howie, Sacks & Henry, successfully used legal cost protection issued by BridgePoint Indemnity Company (“BICO”) to defeat an application seeking $180,000 as security for costs from her Ontario-resident client who suffered injuries in a horseback riding accident which took place in Alberta.

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Precedent set in BC for Litigation Funding Agreements

John Rossos & Grace Tsang, BridgePoint Financial Services | June 24, 2014 | Posted in Commentary

On May 28th, 2014, Justice Gropper of the British Columbia Supreme Court approved a Litigation Funding Agreement (“LFA”) in the class action Stanway v. Wyeth Canada Inc. This represents the first time a B.C. court has approved a third party financing agreement for class actions.

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Treatment Financing as a Strategic Tool for Leveraging an Advance from a Defendant Insurer

Grace Tsang, BridgePoint Financial Services | May 23, 2014 | Posted in Commentary

Sloan Mandel, a partner at Thomson Rogers, specializing in serious personal injury and medical malpractice claims, recently secured a significant advance payment from an insurer for rehabilitation expenses using BridgePoint’s term sheet and treatment financing programme to strategically create exposure for the insurer for financing costs incurred as a direct result of denying his client’s request for an advance.

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Proposed Changes coming to SABS disputes

Grace Tsang, BridgePoint Financial Services | March 18, 2014 | Posted in Commentary

On March 4, 2014, Bill 171 (An Act respecting insurance system reforms and repair and storage liens) had its first reading in the Ontario Legislature. The Bill proposes to move disputes pertaining to Statutory Accident Benefits ("SABS") from the Financial Services Commission of Ontario to the Licence Appeal Tribunal.

There are other changes that will be of interest to injured parties and their representatives if this Bill is enacted...

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Insurer's Limitation Defence Upheld

Grace Tsang, BridgePoint Financial Services | February 25, 2014 | Posted in Commentary

Lawyers should be aware of the Court of Appeal's recent decision to uphold the motion judge's finding that the appellant insured's right to claim Non-Earner Benefits was barred by a limitation period.

On November 11, 2005, Tanya Sietzema was involved in a car accident. She filed an application for benefits with the Economical Mutual Insurance Company ("Economical"). Economical provided Ms. Sietzema with its Explanation of Benefits Payable by Insurance Company ("OCF-9"), which allowed her to receive Income Replacement Benefits until March 2, 2006. The OCF-9 also indicated that she would not receive Non-Earner Benefits because she was employed at the time of the accident. At the bottom of the OCF-9, under the heading, "WARNING: TWO YEAR TIME LIMIT", Economical advised Ms. Sietzema that she had two years to dispute Economical's assessment of her claim.

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Significant changes to the MIG and benefits

Grace Tsang, BridgePoint Financial Services | February 10, 2014 | Posted in Commentary

On February 1, 2014, new amendments to the Statutory Accident Benefits Schedule ("SABS") came into force. These changes are of significant note and affect the Minor Injury Guidelines ("MIG"), attendant care and the election of certain benefits.

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FAIR submits paper to the Ontario Legislature outlining concerns regarding potential changes to SABS

Bob LaBrecque, BridgePoint Financial Services | January 28, 2014 | Posted in Commentary

On January 23rd 2014, the FAIR Association of Victims For Auto Insurance Reform ("FAIR") submitted a paper outlining their concerns to the Ontario Legislature as the Legislature prepares to contemplate changes to the current SABS.

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Delegate Rescinds MIG Decision

Grace Tsang, BridgePoint Financial Services | December 10, 2013 | Posted in Commentary

On November 28, 2013, a delegate in the Office of the Director of Arbitrations ordered that the Arbitrator's decision in Scarlett v. Belair Insurance be rescinded1. BridgePoint had reported on the Arbitrator's March 26, 2013, decision as it found that the insured was entitled to seek benefits beyond the Minor Injury Guideline ("MIG") limit because "[w]hen the totality of his injuries is assessed, they come outside of the MIG."

In the appellate decision, the delegate found that the Arbitrator had made several errors in his decision.

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Confirmation on the Recovery of Interest on Disbursement Loans

Grace Tsang, BridgePoint Financial Services | June 13, 2013 | Posted in Commentary

On May 15, 2013, the Supreme Court of British Columbia released its decision on the appeals in Chandi v. Atwell ("Chandi") and MacKenzie v. Rogalasky ("MacKenzie") and allowed the plaintiffs to recover interest on loans obtained to fund disbursements. During the assessment of disbursements, the registrar allowed the plaintiffs in Chandi to recover the interest charged by the third party lender and the law firm while in MacKenzie, the registrar disallowed the interest sought to be recovered.

Arguments during both appeals, which were heard together, focussed on the BC Supreme Court's 2010 decision in Milne v. Clarke. In Milne, the plaintiff sought to recover interest charged on a MRI invoice. The Court found that if the invoice giving rise to the interest charge could be assessed as an appropriate disbursement, then the interest itself could be recoverable as a disbursement. Further, the Court found that the interest charged flowed from the necessity of litigation.

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Lenworth Scarlett and Belair Insurance Company Inc.

Grace Tsang, BridgePoint Financial Services | March 26, 2013 | Posted in Commentary

On March 26, 2013, the first decision from the Financial Services Commission of Ontario concerning the Minor Injury Guidelines ("MIG") was released. In this decision, Arbitrator Wilson found that the insured was entitled to seek benefits beyond the MIG limit because "[w]hen the totality of his injuries is assessed, they come outside of the MIG." The arbitrator appears to narrowly interpret the application of the MIG by finding that the insured was not subject to the MIG because he had pre-existing conditions and suffered, in addition to the soft tissue injuries, psychological impairments as a result of the motor vehicle accident. Arbitrator Wilson felt that the insurer had failed to meet its onus of proving that the insured fell within the MIG and disregarded evidence to the contrary as to the severity of the insured's injuries. The decision instructs counsel that use of the MIG must be restricted.

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Overhaul of Auto Insurance Long Overdue in Ontario

Robert LaBrecque, BridgePoint Financial Services | February 20, 2013 | Posted in Commentary

Mr. Allen Shanhoff of the Toronto Sun recently authored an article commenting on the NDP's call for an insurance rate reduction for Ontario's drivers. The article points out that drastic reductions have been made in the cost of insuring a vehicle due to reduced payouts for Med/Rehab benefits for injured drivers. Darcy Merkur, a personal injury lawyer from Thomson Rogers points out in the article that many of his clients have suffered at the hands of the new regulations.

Clearly the new regulations have achieved the goal of making the auto insurance companies more profitable and as no lowering of insurance premiums has been forecast, it seems fair to assume that until the next FSCO review in 3 years, people injured in motor vehicle accidents will continue to pay the same rates for significantly less and often inadequate benefits.

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FAIR Comment on SABS Regulatory Amendments

Robert LaBrecque, BridgePoint Financial Services | February 4, 2013 | Posted in Commentary

Some additional changes to the SABs have added an additional risk to individuals injured in motor vehicle accidents. The changes surround the insurers need for timely information prior to paying for med/rehab and other services. The new wording makes any delay resulting from the lack of all information required to process the claim for benefits the responsibility of the insured and any interest charges resulting from the delay will no longer be the responsibility of the insurer.

This again highlights the need for injured individuals and legal counsel to take a proactive stance with respect to the management of this process. The changes and their impact along with the regulation change is well described in the attached article by FAIR Association of Victims for Accident Insurance Reform.

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LeBlanc v. Doucet: A Step Forward In The Recovery Of Litigation Loan Interest

Stephen Pauwels, BridgePoint Financial Services | December 5, 2012 | Posted in Commentary

On October 18, 2012, the Court of Appeal of New Brunswick released its decision in LeBlanc v. Doucet and permitted the plaintiff to recover interest on its litigation loans where the funds were spent on court approved disbursements. The plaintiff was of limited means and required a loan in order to advance his action. Prior to obtaining the litigation loans from a private lender, the plaintiff had attempted to obtain loans from financial institutions, but was denied because the litigation was perceived as too risky. The decision is seminal to individuals considering obtaining litigation loans to help them advance their litigation or otherwise face settling their litigation prematurely or even abandonment.

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FSCO CAT Designation Update

Robert LaBrecque, BridgePoint Financial Services | June 29, 2012 | Posted in Commentary

The recently released FSCO Superintendent's Report on CAT Assessment and designation has produced some immediate reaction from many stakeholder groups involved in the process. A review of the report highlights that there is no doubt fewer seriously injured individuals will have access to the med/rehab funds required to obtain appropriate treatment needed to maximize their chances of a full recovery...

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May 15th Treatment Financing Seminar in Hamilton a Success

Robert LaBrecque, BridgePoint Financial Services | May 16, 2012 | Posted in Commentary

Excellent presentations were followed by a lively and informative Q & A period which offered some very useful perspectives...

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Settlement Loans in Canada 10 Years On: Cautions and Considerations

Stephen Pauwels, BridgePoint Financial Services | May 8, 2012 | Posted in Commentary

I have been actively involved in the litigation finance business since its inception in Canada over a decade ago. During that time I have witnessed a number of developments in this still evolving market: many of them positive – the use of financing for treatment where an insurer has unreasonably denied med/rehab benefits, for example – and some negative.

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A Step in the Right Direction

Robert LaBrecque, BridgePoint Financial Services | April 25, 2012 | Posted in Commentary

As referenced in the Toronto Star article: Many insurers reject requests - will yours? insurers continue to take a hard line approach in their handling of treatment plans submitted for the funding of medical/rehabilitation benefits for injured motorists in Ontario.

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Treatment Financing Crisis in Ontario

Robert LaBrecque, BridgePoint Financial Services | April 16, 2012 | Posted in Commentary

The past 18 months have witnessed a dramatic decrease in benefit coverage for most accident victims in Ontario under the new provincial Statutory Accident Benefits Schedule, compounded by an unprecedented number of treatment plan denials by insurers. Prior to the September 2011 changes, there were approximately 24,000 meditations scheduled to resolve benefit eligibility disputes. That figure has grown to over 36,000 currently and is increasing by over 1000 per month.

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Case Commentary: Cornie v. Security National (2012 ONSC 905)

Robert LaBrecque, BridgePoint Financial Services | February 24, 2012 | Posted in Commentary

The recent Ontario Superior Court of Justice decision, Cornie v. Security National speaks directly to the extended delays being experienced by injured individuals who are attempting to resolve disputes with their insurers over the funding of med/rehab services through the FSCO mediation process. This decision provides that a delay of more than 60 days will be viewed as a "failed" mediation enabling claimants to proceed to arbitration.

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Settlement Loan Considerations

Stephen Pauwels, BridgePoint Financial Services | November 23, 2011 | Posted in Commentary

We have put together a helpful checklist to determine if a settlement loan is right for you. Have other financing options been explored? Have you discussed your situation with your lawyer? Have you determined your true financial needs before applying?

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Case Commentary: Giuliani v. Region of Halton

John Rossos, BridgePoint Financial Services | August 31, 2011 | Posted in Commentary

On August 31, 2011, the Ontario Superior Court of Justice rejected the recovery of interest on a third party litigation loan financing the cost of disbursements in Giuliani, a personal injury action. Although at first blush it appears this decision is inconsistent with recent Canadian case law allowing interest to be recovered on third party financing for disbursements and treatment costs, one could argue that the Giuliani decision is: (i) correct on its facts; and (ii) consistent with Bourgoin (Bourgoin v. Ouellette, [2009] N.B.R. (2d) TBEd. FE.013), Herbert (Herbert v. City of Brantford, 2010 ONSC C04-12047), and other court decisions allowing recovery for interest costs where third party financing arrangements are reasonable and facilitate access to justice.

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The Recoverability Of Financing Costs In Personal Injury Litigation: Using Third Party Financing As A Shield... And A Sword.

John Rossos, BridgePoint Financial Services | May 15, 2011 | Posted in Commentary

In Canada, third party financing for litigation is a new concept that is increasingly being accepted as a means to facilitate access to justice where there is a substantial imbalance, or Funding Gap, in economic resources between the parties. The global credit crisis of 2008 and the recent amendments to the Insurance Act (Ontario)2 reducing coverage for general medical and rehabilitation expenses from $100,000 to $50,000 for standard motor vehicle accident benefits have aggravated this issue.

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The Challenges of Financing Contingency Fee-Based Legal Practices

Stephen Pauwels, BridgePoint Financial Services | October 15, 2008 | Posted in Commentary

Contingency fee-based law firms are capital-intensive businesses which face unique challenges in sourcing the financing required to operate efficiently. This article explores some of the causes and implications of this situation from a practice management perspective and evaluates various alternatives available to law firms facing financing constraints.

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