Motor Vehicle Accident Law and Practice (Tort and Accident Benefits)

The Legislative Regime That Governs MVA Cases: Tort and AB
An overview of key legislative provisions and the analytical framework, including the Insurance Act, SABS, Evidence Act, and the various procedural rules.
Common rules at LAT and policies under the OAP will also be explored.

The Tort of Negligence
A comprehensive, practical review of the key substantive law for practicing in the MVA claims field:
• Joint and several liability and its impact on contributory negligence and legislated liability
• ‘Protected and unprotected’ defendants
• Causation and standard of proof: “but-for”, material contribution, balance of probabilities, and real and substantial possibility
• Statutory obligations in relation to negligence and their interaction with the common law
• Remoteness, foreseeability, and duty of care in the MVA context

The Threshold and Limitations in the Tort Context
An in‑depth analysis of the threshold to sue for pain, suffering and health care arising from car accidents and related issues, including
• Expert reports/testimony needed
• Discoverability and effect on statutory limitations
• Threshold considerations in non‑jury actions vs.
jury actions
• Establishing or challenging the threshold: key factors
to consider

Liability, Causation, and Burdens of Proof
Overview of the but‑for test of causation and the SCC trilogy on causation and analyzing the but‑for test vs. material contribution test. You will also analyze:
• Do these remain competing tests?
• Is there a new test for material contribution?
• Different burdens of proof
• Reasonable and substantial possibility (the test for future pecuniary loss)

Damages and Deductions
Explaining and clarifying the law in this area of practice, this module will review:
• Punitive vs. aggravated damages: why it matters in practical ways (e.g. in pleadings)
• Common law cap: general nonpecuniary damages
• Statutory deductions you must know
• What are or are not compensatory damages?
• What is or isn’t covered by liability insurance?
• Strict matching approach utilizing silos for the deduction and assignment of collateral benefits

The Family Protection Endorsement, Uninsureds and Underinsureds, and Joint and Several Liability Among Motorists and Other Tortfeasors
• Identifying who it covers
• The relevant limitation period
• Insurance considerations and joint and several liability of Tortfeasors (both protected and unprotected)
• Different coverage for underinsured vs. uninsured
• Timelines regarding notice in the Regulation, in relation to uninsured or unidentified

Principles of First‑Party Insurance (SABS) and the Duty of Utmost Good Faith
We will examine the Duty of Utmost Good Faith, caselaw, and the quest for consumer protection:
• Resolving ambiguous legislation
• The shifting burden of proof when an insurer asserts an exclusion from coverage
• How the Duty cuts both ways and applies in some very practical scenarios, and its effect on course of conduct
• The impact of consumer protection principles

Benefits, Part 1: The “Three Silos” of Benefits (The Relationship between CAT, the Minor Injury Guideline, and Everything In‑Between
The session begins the analysis of benefits and the “Three Silos” of medical/rehabilitation benefits, including:
• Does the applicant fall under CAT, the Minor Injury Guideline (MIG), or in‑between, and what is the burden of proof?
• Monetary limitations (caps) appropriate to each
• The interaction of being in MIG on other benefits
• Does “MIG” define types of injury or severity of injuries?
• Role of chronic pain in being a MIG, CAT, or in between
• The impact of sequelae to a minor injury

Benefits, Part 2: Specified Benefits and Attendant Care
All advocates in MVA matters need a solid understanding of both Tort and AB remedies and the interface between the two, including:
• What is included in a specified benefit?
• The process for applying for, and terminating or denying a specified benefit
• Time duration limits and monetary limits
• Retroactive attendant care entitlement
• IRB, housekeeping, caregiver, and non‑earner benefits

Benefits, Part 3: Optional Benefits
• What is encompassed by the term optional benefits?
• Different types of optional benefits and their monetary limits
• Pursuing lawsuits against brokers and insurance companies

Benefits, Part 4: Collateral Benefits and Post‑Accident Income
• CPP‑Disability benefits
• ODSP Ontario, Ontario Works and LTD, EHC (extended health care), EI, maternity benefits, and CERB
• Post‑accident income as a deduction from payment of AB quantum
The Minor Injury Guideline (MIG)
• An analysis of leading caselaw
• When can an insurer conduct an Insurance Examination
• How to get out of/escape the MIG
• Chronic pain and the MIG
• The MIG determination and its effect on attendant care
• The impact of s. 38(11) of SABS

Catastrophic Injury: A Closer Look
• The two CAT definitions: pre‑ and post‑June 1, 2016
• Meeting the standard for a CAT designation and specific timelines
• The different categories and how they are determined
• CAT or non‑CAT: borderline cases
• Causation and the but‑for test in CAT cases

Loss Transfer and Priority Disputes
Analyzing loss transfer and priority disputes from
both sides:
• The difference between the two and implications on adjustments of claims
• Strategic considerations: should insureds become involved in priority disputes?
• Examinations Under Oath (EUOs) under a priority dispute

Limitations and Discoverability in the AB Context
Address the discoverability of a cause of action, implications on limitation periods, and subsequent LAT jurisprudence in light of Tomec v. Economical Mutual Insurance.
You will also examine whether one benefit can have two different limitation periods, as well as the applicability of the Licence Appeal Tribunal Act

Reconsiderations, Appeals, and Judicial Review
Delve into the options for taking a case to the next stage of the hearing process:
• When are reconsiderations, appeals, and judicial review available?
• Can or should you pursue two or three of these concurrently?
• The standard of review after Vavilov: reasonableness vs. correctness
• What is the test and standard of review on a reconsideration?
• The difference in available options between interim versus final orders

Strategic Considerations and the Tort/AB Interface
What considerations govern whether one pursues remedies in Tort or AB or both?
Learn the implications of choice of remedy, in such practical areas as deductibility of benefits, availability of costs, and timelines. You will also examine the impact on liability in pursuing compensation in Tort versus what you’d normally get in AB.

Preliminary Considerations: Pre‑Assessment File Review and Assessing the Case
• What is the nature and evidence of the complaint?
• Determining whether the case is within your competence and interest as a practitioner
• First questions to be addressed and spotting of potential red flags
• Economic viability of the case, and if there is a path to compensation open to the client (and to counsel)

Assessing and Managing Client Expectations and Access to Justice Issues
Effective communication and client management are crucial skills required in injury law practice. Review the best practices, as well as pitfalls to avoid, including:
• Representations to avoid making
• For plaintiffs: explaining contingency fees
• For insurers: litigation plans and budgets
• Key factors and information you must explain to the client
• Common areas of potential professional negligence

Identifying All Potential Parties
A critical element of case strategy and management. Learn the essential factors and steps to follow
(and what to avoid):
• Casting a potentially wide net
• Dangers of waiting too long to identify a party
• Third‑party defendants added by defendants
• Family Law Act claimants
• Appointment of litigation guardians and administrators

Shaping the Theory of the Case: Plaintiff and Defendant Perspectives
Every case must be viewed through the lens of “what will this look like at trial”, even if it never gets that far. Keys for getting the best from every case:
• Drafting effective pleadings
• Jury or no jury?
• Lawyers as storytellers: what’s the story and how to present it best

The Big Picture: What Will You Have to Prove or Disprove and What Evidence Is Required?
• Evidence needed for each element of the case
• Before and after witnesses
• Lay and expert witnesses
• For defence: the importance of external events

Investigations, Surveillance, Non‑Expert Witnesses, and the Affidavit of Documents
A comprehensive overview of investigations and surveillance in litigation:
• The science and art of surveillance and working with private investigators
• Common ethical and professional issues
• Obtaining and understanding medical information
• How to make the most of social media
• Obtaining criminal records/background searches
• Different types of affidavit of documents
• Useful tips for municipal cases

Discoveries (Tort) and Examinations Under Oath (AB)
• Conduct of the discovery/EUO
• Post‑discovery/EUO to‑do list (including undertakings, refusals and post-discovery memoranda)
• Rule 36: videorecorded examinations for parties and witnesses

Experts: Drilling Further Down
• When are experts required? What areas of expertise to pursue? How many should you use?
• Educating the expert in the law
• What is required in a report and laying the foundation for testimony
• Related ethical and professional obligations
• Critically evaluating one’s own expert

The Advocacy Process

Mediation
• Preparing for mediation: practical tips and step‑by‑step guidance
• How to determine whether to proceed as a global mediation (dealing with AB and Tort issues together) or separate mediation
• Parties at global mediations: a who’s who
• Conduct of the mediation – realistic best practices
• Settling the case and documenting the settlement at mediation

Pretrials and Case Conferences
• Purpose of pretrial/case conferences and differences between these versus mediation
• Conduct of the pretrial/case conference – realistic best practices
• Settling the case at pretrial or case conference and documenting the settlement

Common Motions in MVA Cases
What are the most common motions in motor vehicle accident cases and when/how to use them in:
• Appointing litigation guardian for infants or persons under disability
• Threshold motions
• Motions in chambers

Preparing for the Trial and/or Arbitrations
• Witness preparation
• Filing of documents
• Demonstrative evidence
• Jury selection
• Online trials and arbitrations

Openings and Closings
How to bookend your case with effective and evocative presentations. The session will also discuss the different approaches involved depending on the type of hearing.

Examinations and Cross‑Examination in the MVA Case
Cases often hinge on how you question witnesses. Learn the do’s and don’ts and official and unofficial rules to know when questioning witnesses and key strategies and approaches.

Issues Commonly Arising During and After Trial or LAT Arbitration
Review the common issues encountered at the hearing stage and afterward, including:
• Settlement during the course of trial
• How many defence medicals?
• “Doubling up” on experts
• Mid‑hearing strategies
• Assessing the prospects for appeals

Ethical and Professional Issues Panel
Get practical instruction from experts with diverse practice experience on how to handle common ethical and professional issues which arise in injury law practice:
• Knowing where the line is and how to avoid crossing it
• Relations with other parties and their counsel
• Cultural competency for injury lawyers
• The key elements of ethical advocacy

Applied Skills: Putting it All Together – Where the Rubber Meets the Road*
Case Studies
Over this intensive day, you will work in small groups and apply what you’ve learned over the previous four modules, in a series of hands‑on and practical exercises facilitated by faculty members.
Using fact scenarios drawn from real‑world Tort and AB cases, you will work your way through the life of a file from start to finish, focusing on important issues and facets of the case and reinforcing their knowledge and skills. You will draw on the course materials to apply the law, concepts, and learned strategies, while moving through all the steps of a case.

Individualized feedback, and breakout groups and discussions moderated by faculty will be combined with debriefs and sharing of views to enhance your learning.

Workshops
• Limitations in the MVA context
• Leveraging technology for better practice management
• The evolution of injury litigation and practice from a technology and innovation perspective
*This session will be delivered in hybrid format (live online and in person)