Focus personaL injury
Third party assessment reports need strict code
In recent years the Ontario gov- ernment and the Insurance
Bureau of Canada have publicly
declared that they are actively
fighting auto insurance fraud.
Stakeholders, including the
personal injury bar, auto victims
and the rehabilitation community have applauded this move.
In the latest crackdown, named
Project Whiplash, a specialized
team of police and prosecutors
were hired to hunt down fraud-sters. Toronto police laid 130
charges and arrested 37 people.
The Finance Minister introduced new measures to prevent
false claims and double billings
and established new licensing
requirements for clinics. Insurance companies have commenced
a number of lawsuits against
alleged fraudulent rehab clinics.
These developments are good and
Despite the progress, some “bad
apples” remain. The insurance
industry has left them untouched,
unregulated and, for the most
Their actions have resulted in the
improper and wrongful denial of
millions of dollars to legitimately
injured claimants. These denials
will continue. In the Ontario auto
insurance system, not everything
seems to be as it appears.
Insurance medical assessment
clinics have existed for decades.
They offer insurance companies
one stop shopping for reports. An
insurer contacts the assessment
clinic who then either provides a
list of doctors to pick from, or simply picks a doctor for the insurer.
The clinic then arranges an assessment either at their site or at the
listed doctor’s office. Not only
does the clinic act as a broker, it
provides an added feature called
“quality control.” The clinic’s quality control specialist reviews the
doctor’s report and then delivers it
to the insurance company and
ultimately, the claimant.
Depending on the opinion,
insurers may use these reports to
stop treatment, cut off income, or
classify an injured person as “
noncatastrophic” (thereby cutting off
access to $2 million in benefits).
The Ontario Superior Court
released Macdonald v. Sun Life
Assurance Co. Of Canada 
O.J. 4977 almost a decade ago.
Justice Spiegel refused to allow
the testimony of an insurer doctor when the court confirmed
that the report produced was
“substantially different” then the
report in his file.
The doctor testified that he had
dealt with a person responsible
for “quality control” at the assess-
ment clinic, Riverfront Medical
Evaluations (Riverfront). Justice
Spiegel found that the doctor did
not “authorize his signature
stamp to be affixed to the report
delivered by Riverfront to the
solicitors for the defendant.”
It came to light that Riverfront
had been preparing 3,500 to
4000 reports per year and had a
roster of 350 doctors.
Justice Spiegel found this clinic’s actions went “far beyond”
quality control and that their
actions constituted an
unwarranted and undesirable
interference with the proper
function of an expert witness.
Almost ten years after the MacDonald decision, the Ontario
Superior Court released Burwash v
Williams,  ONSC 6828. The
plaintiff sought production of the
complete files of a non-party known
as Cira Medical Services Inc. (Cira).
Cira was a national company in
the business of providing medical
assessments. It was created in
2012 when Riverfront combined
with another entity, Medisys IMA.
In ordering that Cira produce
its complete file, Justice Smith
stated: “The Plaintiffs provided
documents that indicate there
may have been third party
manipulation and alteration of
expert reports that the Defend-
ant will rely upon at trial.”
These examples only rise to the
surface when there is a trial or arbi-
tration and production forced on
the third party. However, the vast
majority (well over 95 per cent) of
claims never get to that stage.
For those lawyers practicing in
the area, the third party files are
refused and production never
granted until trial or arbitration.
When something untoward is
discovered, matters settle, hear-
ings are aborted, confidentiality
clauses are placed into releases
and no one hears what happened.
It is shameful that this culling
of the bad apples has fallen solely
on the shoulders of a select few
personal injury lawyers and their
clients who seldom can afford the
risk of litigation.
This very real and ugly aspect of
the present system will only
worsen when more reliance is
placed on “in writing” hearings
which will determine the major-
ity of claims as of June of 2016.
The use of third party insurance
assessment brokers should be
stopped. All insurer assessments
should be conducted under a strict
code that does not allow “quality
control” and reports are prepared
strictly by the doctor engaged. Full
production of files should be made
in all cases to both the represented
and unrepresented claimants.
Unless the same zeal is used to
strike down this ugly side of the
insurance benefit industry, there
will always be doubts and suspicion as to whether claimants
received a fair, just and uncorrupted result.
Patrick Brown is a partner at Mcleish
Orlando LLP and past president of
the Ontario Trial Lawyers
Association. He practices personal
injury law in Ontario.
MAT T_BENOIT / ISTOCKPHOTO.COM
marketability as an employee or a
agent has been substantially
affected by her injury” and that
“her ability to attract and retain
clients is negatively impacted by
her injury.” This 63-year-old
plaintiff was awarded $25,000.
The case law suggests that
loss of competitive advantage
awards are viewed by the courts
as falling somewhere between
non-pecuniary damages (more
akin to lump sum general dam-
age awards), and measurable
economic losses that have yet to
be incurred. Nowhere is this
more evident than in how
courts have dealt with the issue
of pre-judgment interest on
In 2008 (Cerilli v. Ottawa,
 O.J. No. 138), the
Ontario Court of Appeal over-
turned a trial judge’s decision
to award pre-judgment interest
on damages for loss of competi-
tive advantage on the basis that
such an award “looked entirely
to the future.”
Despite this decision, subse-
quent rulings have assessed eligi-
bility for pre-judgment interest on
these awards on a case by case
basis: in Tennant, Justice Di Tom-
aso excluded his award from inter-
est calculations, while in Shaw,
Justice Blishen expressly ruled
that interest was to be applied.
As self-employment, contract
work, freelancing and lifelong
career transitions become
increasingly normalized, injured
workers of every age and stage
come before the courts with chal-
lenging pre- and post-injury
Awards for losses of competitive advantage offer a means of
fairly recognizing the financial
implications for a plaintiff that
might not be wholly contained
within the four corners of their
income tax returns.
Jillian Evans is a lawyer with Torkin
Manes practising in personal injury
and medical malpractice.
Contractors: economic loss not necessary
Continued from page 13
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