Photo Credit Chuck Stewart NOVEMBER 2015

Hello! I cant believe that it is already November. This means it is time to really start thinking about winter weather and winter driving, something I am sure we all look forward to.

On October 29, 2015 we had speaker Neil Colville- Reeves from Samis and Company speak to us about Subrogation to a packed house with 80 attendees. Neil was able to keep everything going despite the slides not being the same as when he sent it to Dan.

The hosts chose to change up dinner slightly and had turkey as an option and it was delicious. Congratulations to Colin Davy who won the 50/50 draw and took home $50.00.

Next month we are hosting the annual Chili Cook- off which is usually a fairly large event. If you are interested in entering a chili please contact Manish Patel mpatel@larrek.com or Cyndy Craig ccraig@archinsurance.com. Tickets for the event are now available online, please ensure you purchase them in advance.

The Executive committee and I are always available if you have questions or concerns about our organization, you can reach us at: kw-oiaa@yahoo.ca or contact myself at Jennifer.brown@economical.com

Sincerely,

Jennifer Brown Economical Insurance K-W OIAA President

This Months Cover Castle Kilbride in Baden, Ontario is the former residence of James Livingston, a former Canadian Member of Parliament, and owner of flax and linseed oil mills. It was designated a National Historic Site of Canada in 1994.

The castle, built in 1877, was a tribute to its owner, who was known as the 'Flax and Oil King of Canada'. Livingston amassed a fortune cultivating flax seeds which were used in the production of linseed oil and hemp. At that time, linseed oil was used in paints, and hemp was utilized in the production of clothing. By 1881, the Livingston and his brother owned more than 3000 acres in the local area.

Castle Kilbride is significant because it is a wonderful representation of wealth in late 19th century rural Ontario. Built in the Italianate style, the castle is filled with spectacular features. One of these includes decorative murals painted in the trompe-l'il technique. This style of painting, a French phrase meaning fool the eye, provides the viewer with the illusion of a three-dimension item. Other treasures in the castle include a spectacular coloured skylight and an elaborate belvedere that provides a view of the surrounding countryside of Wilmot Township. According to the Castle Kilbride website, this stunning building displays rich and extravagant furnishings and interior artistry unmatched in a private residence in Canada. Castle Kilbride is truly a significant part of our local heritage. Photo: Chuck Stewart

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Jennifer Brown Ryan Potts President VicePresident Economical Insurance ClaimsPro Kitchener 519-570-8500 x 43375 519-501-2478 Email: jennifer.brown@economical.com Email: ryan.potts@scm.ca

Laura Potts Mark Potts PastPresident Treasurer Aviva Insurance ClaimsPro Kitchener 519-883-7579 226-750-0087 Email: laura_potts@avivacanada.com Email: mark.potts@scm.ca Carrie Keogh Stephen Tucker MA, CIP, CRM Secretary Toronto Representative Economical Insurance Economical Insurance Email: carrie.hutter@gmail.com 519-570-8500 X43281 Email: stephen.tucker@economical.com

Gillian Reain, BA Leeann Darke Director Director Economical Insurance The CoOperators 519-570-8500 X43283 519-618-1230 Email: gillian.reain@economical.com Email: leeann_darke@cooperators.ca

Monika Bolejszo Stephanie Storer Social Director Social Director Samis + Company Xpera Investigations 1-844-SAMISKW ext 110 519-884-6352 X233 Email: mbolejszo@samislaw.com Email: stefstorer@hotmail.com

Cyndy Craig Daniel Strigberger Out of Town Liaison Web Director Arch Insurance Canada Ltd Samis & Company 647-293-5436 416-365-0000 x127 Email: ccraig@archinsurance.com Email: dstrigberger@samislaw.com Manish Patel Bulletin Director Larrek Investigations 519-576-3010 Email: mpatel@larrek.com

If you have any questions, concerns or comments, please do not hesitate to contact

any of the above committee members.

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Presidents Message Page 1 20152016 KW OIAA Executive Page 2 Schedule of Events Page 4 Social Chit Chat Page 5 Toronto Delegate Report Page 6 Meet Your Executive Pages 1011 Xpera - This Wilson Does Talk Pages 12 KPMG - Forensic Focus - Combating Spear Phishing Attacks Pages 14-15

Miller Thomson - Threshold Primer: Tips and Tricks in

Assessing Threshold Claims Pages 18-21 IIO Conestoga Chapter: Speakers Luncheon Page 23 Restoration 1 Using the Right Equipment when Dealingwith Water Claims Pages 24-25

Samis + Company - Repair and Storage Liens Act Ammendments: Proposed Fair Market Value Regulation is Foul Pages 27-28 Advertisers Index Page 36

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November 26, 2015 - Chili Cook Off: Manish Patel & Cyndy Craig

December No scheduled events

January 28, 2016 Property Round table discussion- Laura Potts & Mark Potts

February 25, 2016 Accident Benefits Dispute Provisions- Ashleigh Leon, Carrie Keogh & Gillian Reain

March 31, 2016 Desktop Investigation Strategies- Stephen Tucker & Stephanie Storer

April 1st, 2015 - Annual Curling Bonspiel with the Insurance Institute and Insurance Brokers Association.

April 28, 2016 - Election & Fun Night: Ashleigh Leon & Cyndy Craig

May 26, 2016 Accident Benefits/Bodily Injury Accounting Topic: Carrie Keogh & Gillian Reain.

June 23, 2016 - Golf Tournament- Ariss Valley Golf & Country Club: Jen Brown & Ryan Potts

*All events occur at Golfs Steakhouse: 598 Lancaster St W, Kitchener, ON N2K 1M3, unless otherwise noted.**Please note that topics are subject to change**

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November 2015

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Happy November!!!

With turkey and spooky out of the way, who else out there is thinking about the upcoming holiday season??

With all the merriment to come, is anyone thinking about snow? Ice? Highway traffic? Incident-free holidays?

How can we continue to improve safety and reduce incidents on Ontario highways? Well perhaps Bill 30 can help.

According to Ontario highway incident management the missing piece of auto insurance fraud reform: Critic, an article in the Canadian Underwriters Daily News for Nov 2, 2015, Bill 30 may just be the answer to these questions.

Passing off from the PC initiative, the Liberals promise to continue to examine and implement Bill 30, what many people believe to be the missing piece to our current Bill 15, the Fighting Fraud and Reducing Automobile Insurance Rates Act (passed into law in the fall of 2014).

If passed into law, Bill 30 would focus on clearing out and cleaning up incidents occurring on the provincial highways more efficiently by forming a committee to study and report on incidents, make recommendations for improvement, and increase emergency response times.

According to the article, If Bill 30 gets passed into law, it would require that an advisory committee be established - within two months - by the Minister of Transportation, the Minister of Community Safety and Correctional Services and the Commissioner of the Ontario Provincial Police (OPP).

"Once an incident is detected and confirmed, the response and clearance must be managed so as to preserve and protect human life, maintain a reasonable level of safety for all participants, minimize delays to the travelling public, and minimize damage to public and private property," [Ms Marlow, PC MPP] said at the time [of political discussion and passing of hands to Liberal leaders]. [Marlow continued:] "In a major incident, these are complex and often competing factors. Successful incident management can be facilitated by high-tech equipment, but is largely dependent on inter-agency coordination, education and on-site personnel.

What are you thoughts on Bill 30? How can we continue to improve Ontario driving this Holiday Season?

Food for thought Happy Holidays!!!

Stephanie StorerOIAA Social Director 2014-2015National Account Manager, XPERA Risk Mitigation and Investigations

The November event in Toronto is a joint seminar sponsored by the OIAA and CICMA. The very timely topic is Insurance Exposures in the Sharing Economy. The panel will consist of: Insurance Brokers Association of Ontario Greg Kruk, RIB, CIP, B.Com; Insurance Bureau of Canada Ryan Stein, CIP, Director of Policy; Uber, Curtis Scott, J.D., Insurance Counsel; and, Marc D. Isaacs, LL.B., LL.M., Isaacs & Co. Barristers and Solicitors.

It is hard to believe that the much anticipated OIAA Holiday Party A night amongst the stars taking place at the CN Tower is just around the corner. Tickets went on sale online on October 20th and this event will sell out quickly. Of note, the benevolent portion of the ticket price will be donated to the Alzheimers Society.

As always details and event registration are available at www.oiaa.com and you can stay tuned to OIAA events by following @PresidentOIAA on twitter or on Facebook.

Finally, like the Kitchener-Waterloo bulletin, Without Prejudice is always looking for informative articles. If you are interested in publishing an article in WP please forward possible topics or articles to me and I will submit them to the WP editorial team for consideration. We are looking for articles that are approximately 2000 2500 words. WP is a great way to share informative educational topics with our entire provincial membership. Please feel free to contact me at stephen.tucker@economical.com if you have any questions or would like more information.

Regards, Stephen Tucker Kitchener Waterloo OIAA Chapter, Toronto Delegate

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Carrie Keogh joins the executive team as Secretary for the 2015-2016 year and is excited to be a part of the K-W OIAA. Carrie started her insurance career at the Conestoga Chapter of the Insurance Institute of Ontario. Catching the adjuster bug from her father, she moved to Economical Insurance and is an Accident-Benefits claims adjuster. Carrie is currently on maternity leave enjoying her time off with her sons.

Carrie graduated with Honours from the Dramatic Arts Program at the University of Windsor. She excelled behind the scenes and has written two one-act plays, one that was published and one that was produced as a staged reading. She has also holds a certificate in Fundraising Management for Non-Profit Organizations from Ryerson University. She is very excited to apply her expertise in these areas as part of the executive team!

When not working, Carrie can be found with her two little boys, Jamie and Evan, her husband Aidan and her Golden-Doodle dog Harley! She enjoys traveling, shopping and spending time doing fun family activities.

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Mark Potts is the Chapter Treasurer and was also a Past President, 1988. Mark has a wealth of claims experience with 35 years adjusting experience including handling over 100 total loss fires and has investigated over 100 auto and liability fatality investigations. He has both a Company and Independent Adjusting background. Mark has many successful arson and liability defense investigations to his credit. From lightning damage claims to submarines in Sweden to copper pipe manufacture's product liability claims to employee dishonesty claims, Mark has been involved with all types of claims adjustments.

Mark has also been involved in the management of claims, compliance and training of adjusters. He also obtained his Certified Fraud Examiner accreditation.

Mark worked for one independent adjusting firm and two insurers before opening an Independent Adjusting office in Waterloo in 1988. After growing the business, it was purchased by Adjusters Canada, where he became a shareholder. Mark continues to enjoy the front line adjusting with Claimspro's Kitchener office serving the Kitchener- Waterloo and surrounding areas.

Mark spent much of his younger years playing hockey and has played hockey at both the Junior and University level, and has played in Europe. One piece of trivia is that he scored the first amateur hockey goal at the new Washington's Capital Centre in a University hockey game before 18,000 screaming fans.

Mark enjoys keeping active, walking or riding his bike on a daily basis. He particularly enjoys riding bikes on the hard packed beaches of Daytona Beach, Myrtle Beach and Hilton Head. He also enjoys skiing and hockey in the winter.

This Wilson Does Talk

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THIS WILSON DOES TALK by Chad Hanlon

Its a common sentiment that the allotted vacation time in our work life is never enough and in many cases never will be. Even though in certain occupations the accumulation can potentially add up to the entire summer: the more we get, the more we want.

There may be hunters who need some time in November, or perhaps the skiers in January. The dilemma lies in those that dont prioritize and take it all, one

way or another. As we know however, when the route of deceit is chosen there is always a price to pay, unfortunately the employer is often the victim writing the cheque.

We live in a global village of transparency which brings us at least one advantage; we no longer have to count on a fellow employee or a suspecting neighbor to lead us to valuable evidence. Sometimes an individuals reputation simply cant stay concealed with all our modern technology, often times allowing us an accurate sense of their fraudulent plan. In a recent case we conducted for a client a fairly new employee had asked for a week off, however she had already exhausted all of her vacation time and as a result the request was denied. Shortly after in a bold counter move the employee complained of an injury sustained in the workplace. This had now turned into a well thought out long term plan as she was well aware of the process and knew that modified duties would have to be offered initially. She continued with the course of her scheme and shortly after complained the light duties were also too much for her alleged injury. As expected she then presented the employer with a doctors note stating that the work load was too much and time at home would be necessary. Her strategy was coming together perfectly and this was now heading down the road of vacation town leading this new employee to an all-inclusive vacation courtesy of the employer.

It was at this point we were contacted and after conducting a detailed desktop investigation through various open source methods we found that the individual in question happened to be a beach volleyball player, and the time off she requested matched the dates of a tournament held by the very same organization she happened to be a part of. We decided to follow the bread crumb trail we had created and attend this sporting event. Our research paid off as we were able to capture our subject front and center performing sand acrobats leaving no doubt that she had certainly spiked the truth.

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2015 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (KPMG International), a Swiss entity. All rights reserved. 8204

Peter MacKenzie pmackenzie@kpmg.ca

Veronica Chapman vchapman@kpmg.ca

Paul Ross pross1@kpmg.ca

Karen Grogan kgrogan@kpmg.ca

David Bushell dbushell@kpmg.ca

Claims. Litigation. Investigations. We can help.

KPMG Forensic professionals bring years of experience to help insurers with claims assessment, fraud investigation, and staff training. We offer the resources and knowledge to help you assess claims in an effective, efficient and timely manner.

Contact a local KPMG adviser for more information.

kpmg.ca

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Whats at stake?

The need for sound security practices and controls is imperative to help protect against agrowing swell of sophisticated cyber threats. Targeted attacks, including those perpetrated via e-mail, such as spear phishing, havebecome commonplace. In fact, spear phishing attacks now account for 91percent of all modern attacks.1 Additionally, it isalmost certain that these attacks will increase in frequency and sophistication as companies expand the use of digital assets and unstructured data.

Businesses stand to lose far more than their intellectual property in the aftermath of a spear phishing attack. Damageto reputation and brand can be just as devastating as theft of property and secrets. The media has been replete with reports of cyber attacks against organizations across all industries, ranging from government institutions; small, medium, and large businesses; academia; the entertainment media; and even the news itself.

Phishing and spear phishing a closer look

Recent events help illustrate the damage that can occur given a successful intrusion by sophisticated attackers. Forexample, the major breach of the Internet Corporation for Assigned Names and Numbers (ICANN) began with what is known as a spear phishing attack, which is a special, moresophisticated and dangerous type of the phishing scam.

Phishing: A deceptive process by which a cyber criminal attempts to steal your online identity such as your username, passwords, personal identity number, creditcard information, or bank details by masquerading as a person or organization you trust.

Typically carried out via e-mail, instant messaging, and/or text messages, the phishing correspondence usually appears to come from a legitimate party with whom you may have a relationship

and may include a firms logo and branding. Phishing e-mails or messages usually contain a link to an authentic-looking Web site or e-mail address, and ask you to provide your confidential information. As these e-mails and Web sites evolve and become more authentic looking, more people are falling for phishing attempts and are providing this information to scamartists.

Spear phishing: A more targeted and sophisticated form of phishing. Unlike standard phishing schemes that use mass e-mails, spear phishing schemes target individuals that fit a certain profile. Forexample, theymay only target high-ranking employees of a specific company or governmental agency, or users of a specific site. Furthermore, the request for information may appear to come from a colleague working at the same company.

The goal of these scam artists is to lure recipients into divulging sensitive information about themselves and/or their organization. Sophisticated attackers do extensive research on their targets prior to sending out e-mails, so they not only look realistic, but the information requests seem plausible and do not raise suspicion. This added element of social engineering and relevance makes a spear phishing message particularly effective anddangerous.

Recent cyber attacks in the news highlight danger

Many recent high-profile breaches have notoriously started with spear phishing attacks. For example, in the past quarter, cybercriminals conducted a spear phishing attack against ICANN, which is the organization responsible for managing and coordinating the Internets domain name system. We believe a spear phishing attack was initiated in late November 2014. It involved e-mail messages that were crafted to appear to come from our own domain being sent to members of our staff. The attack resulted in the compromise of the email credentials of several ICANN staff members.2

1 http://www.firmex.com/blog/spear-phishing-whos-getting-caught/ 2 https://www.icann.org/news/announcement-2-2014-12-16-en

Organizations and the public are at risk of increasingly sophisticated cyber attacks, such as spear phishing, as highlighted bysome recent major security breaches that have been in the news.

Companies that fail to invest in preventative measures and do not have a rapid response plan in place are especiallyvulnerable to attacks by cyber criminals.

Businesses need to educate employees about the dangers of phishing and spear phishing and train them on what to lookfor and how to react.

TODAYS REALITY:

ForensicFocusCombating spear phishing attacks

How to protect against this more sophisticated and dangerous form of phishing

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The attackers compromised ICANNs internal network systems, including its internal intranet sites and databases, and gained administrative access to files containing Personally Identifiable Information (PII) such as:

Names

Postal addresses

E-mail addresses

Fax and telephone numbers

Usernames

Passwords

Unfortunately, the compromised ICANN data may have a ripple effect. The cyber criminals may be able to use this information to breach targets outside of ICANN by sending highly customized e-mails, fraudulent letters, or even making phone calls to organizations and individuals who have had dealings with ICANN.

It remains unclear whether the recent security breach at a well-known entertainment giant was the result of a spear phishing attack. What we do know is that the perpetrators stole huge amounts of information that may leave countless consumers and organizations susceptible to future spear phishing attacks.

10 steps to protect against cyber attacks

These cases should serve as a loud wake-up call to organizations as to just how difficult it is to prevent cyber attacks, especially those with social-engineering aspects. A single employee can inadvertently cause a serious breach that could have a cascading effect throughout an organization as well as its customers and clients.

There are, however, several proactive steps a company can take that may minimize the likelihood of a successful attack. Companies must understand that a sound cybersecurity program requires maturity across people, process, and technology, as no one element alone is sufficient:

People

1. Adopt a strategic vision and communicate it An organizations leadership must adopt a clear, strategicvision of how to protect and secure critical and sensitive information assets across people, process, and technology. This message needs to be communicated throughout the company and continually reinforced.

2. Educate and train all employees It is critical to provide ongoing training and education for all employees, including C-level executives, in order to increase cyber awareness. Remember,it only takes one employee opening an attachment in a targeted e-mail message to open the door for cyber criminals and potentially compromise a companys network.

Process

3. Develop a data governance strategy Organizations need to develop a strong data governance regime that includes the classification and monitoring of critical or sensitive data.

4. Perform simulated attacks Organizations should perform simulated spear phishing attacks to measure the effectiveness of their end-user education and information security response. These simulations can help an organization identify individuals and groups that require additional training and help to identify gaps in security controlsandpolicies.

5. Develop incident response planning By developing an incident response plan that defines key roles and responsibilitiesas well as internal and external coordination steps throughout the incident life cycle, an organization can prepare itself for potential cyber attacks. In addition, theorganization should test its plan periodically to help ensure that personnel are prepared to respond to a real-time incident and that the planned steps are effective.

6. Perform periodic audits Periodic, thorough audits of accountsused to access critical systems within their environment should be performed. Similarly, theyshould remove unused andunnecessary accounts to help reduce the number of potential avenues for an attack to occur.

Technology

7. Segment networks In order to reduce the overall impact andbreadth of a successful security breach, organizations should design and configure their networks by segmenting critical systems and datastores.

8. Update patching and antivirus programs Effective patch management and up-to-date applications, including Web browsers, are critical components of an effective defense againstspear phishing attacks. An organization should confirm that its antivirus programs, operating system patches, and application patches are up-to-date in order to increase its overall security posture and protect against cyber attacks.

9. Implement two-factor authentication Organizations should implement two-factor authentication for all critical systems to help protect sensitive data from attackers with stolen credentials. For example, in order for someone to access an organizations compensation or confidential personnel data, he or she would need to have both a physical token, e.g., a card, and a password orsecuritycode.

10. Adopt system monitoring and access control technologyOrganizations should adopt the most up-to-date technologies to help detect and prevent potential threats by monitoring network traffic and controlling access to critical systems. Organizations should implement a layered security approach comprising both intrusion detection and intrusion prevention systems to monitor network traffic at the perimeter and within the firewall.

The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

2015 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (KPMG International), a Swiss entity. All rights reserved. 8729

The KPMG name, logo and cutting through complexity are registered trademarks or trademarks of KPMG International.

kpmg.ca/cybersecurity

Original work published March 2015 by KPMG Forensic, Forensic Focus.Submitted by David Bushell, a senior manager in KPMG's Advisory Forensic practice in Southwestern Ontario. David can be reached at 519 747 8882 or dbushell@kpmg.ca.

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Threshold primer: Tips and Tricks in Assessing Threshold Claims

Introduction:

To recover non-pecuniary general damages, a plaintiff in an action arising from a motor vehicle accident must establish that his/her injuries satisfy the statutory threshold established under the Insurance Act (the Act) and associated Regulations. This requires a plaintiff to prove that he/she suffered a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function in accordance with section 267.5 of the Act. If a plaintiff fails to establish that his/her injuries satisfy the threshold, he/she will not be entitled to non-pecuniary general damages.

Over the years, numerous cases have considered whether plaintiffs have satisfied the threshold. Although each case is decided on its own particular facts, certain themes arise in the case law, which enables us to better predict in any given case whether a plaintiff will be able to satisfy the threshold. What follows are various lessons that have been learned from the case law.

Lessons from the Case Law

Credibility/Likeability Perhaps the most important factor in determining whether a plaintiff will be able to satisfy the threshold is his/her credibility and likeability. In numerous cases in which plaintiffs have failed to satisfy the threshold, judges have questioned their credibility and generally found that they did not make

impressive witnesses. This typically arises when plaintiffs overstate their limitations and downplay their abilities in the face of documented evidence to the contrary.

In Gill v. Sivaranjan,1 a plaintiff claimed to have sustained threshold-piercing injuries as a result of a chronic pain disorder (CPD). As noted by experts called by both the plaintiff and defence, CPD is a diagnosis based significantly on subjective information. As such, the credibility of the plaintiff is an important consideration for the diagnosing physician.

The judge deciding the threshold motion had several concerns regarding the plaintiffs credibility. Moreover, when advised of several inconsistencies and provided with various reports he had not previously seen, the plaintiffs expert backtracked on the opinion he had initially offered. As such, the plaintiffs credibility (or lack thereof) also impacted the credibility of his expert.

Gill v. Sivaranjan is also noteworthy for the judges comments to the effect that if the plaintiffs evidence had been credible and supported by the medical evidence, he likely would have accepted the diagnosis of CPD and found the plaintiff to have satisfied the threshold. However, because the plaintiff was not believable, he was found not to have suffered a permanent impairment of an important function and, therefore, did not satisfy the threshold.

In Saleh v. Nebel,2 it was agreed by all parties that if the plaintiff was suffering from chronic pain, it was on the basis of soft tissue injuries alone. In determining the threshold issue, the judge noted that the plaintiff was evasive during cross-examination. Moreover,

1 2015 ONSC 841 (CanLII). 2 2015 ONSC 747 (CanLII).

Authored by:

James Prior Associate, Waterloo 519.593.2429 jprior@millerthomson.com

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the judge generally did not accept the plaintiffs evidence, noting that the plaintiff would break the law and lie for money. Ultimately, it was held that the threshold was not met. The issue appears to have turned on the plaintiffs credibility, as the judge specifically commented that had he accepted the plaintiffs evidence, he may well have met the threshold. Nevertheless, the judge concluded that the plaintiffs complaints of pain were a self-serving effort to maximize his claim.

Finally, in Smith v. Declute,3 the Court found the plaintiff to have been an unreliable and unimpressive witness in deciding the threshold issue. In this regard, there were inconsistencies between the plaintiffs evidence and his medical records. It was specifically noted that he had undergone virtually no treatment in the four years leading up to trial and that he was not candid with his doctors and did not comply with their recommendations. Moreover, he was often found to be argumentative and hostile. The defence had also obtained surveillance of the plaintiff, which showed him being active for extended periods of time without any visible limitations. In a nutshell, the Court found that the plaintiff was neither credible, nor consistent, in his evidence. Moreover, the Court did not accept the evidence of the plaintiffs witnesses who attempted to corroborate that he was unable to participate in his usual activities in light of his ability to work following the accident and the level of activity demonstrated during surveillance. Ultimately, the Court found that the plaintiff did not satisfy the threshold.

Surveillance/Social Media

Given that a plaintiffs credibility is likely the most important consideration in assessing whether he/she will be able to satisfy the threshold, the defence must find ways to attack that credibility. One useful way of doing so is to obtain surveillance demonstrating the plaintiffs abilities when he/she is unaware he/she is being watched. Often, good surveillance can be used to contradict the plaintiffs evidence of his/her alleged limitations. As such, surveillance is often a very important piece of evidence that causes judges and juries to question a plaintiffs credibility, as is demonstrated in the following decisions.

3 2012 ONSC 3308 (CanLII).

In Dahrouj v. Aduvala,4 the defence obtained surveillance of the plaintiff showing her to be capable of various strenuous and sustained activities, including lifting and stretching, which she claimed to be unable to do as a result of her accident-related injuries. The judge deciding the threshold motion found the surveillance to be devastating to the plaintiffs credibility and ultimately held that she did not satisfy the threshold.

Similar to surveillance, plaintiffs social media accounts, such as Facebook, Twitter, YouTube, and the like, can be used to gather important evidence about a plaintiffs condition, both before and after an accident. Whether it is a YouTube video of a severely and permanently injured plaintiff training for a boxing match post-loss, or Facebook photographs of a chronically depressed plaintiff out partying with friends, social media can be a key tool in the defences toolbox to establish that the plaintiffs alleged complaints ought to be taken with a grain of salt.

Pre-Existing Medical Conditions

Often, pre-existing medical conditions can be used to question whether a plaintiffs current functional limitations are attributable to accident-related injuries, or are simply ongoing problems that would have developed in any event. This is why extensive review of all relevant medical records is important when assessing whether a particular plaintiff will be able to satisfy the threshold.

This is demonstrated in the Gill v. Sivaranjan decision referenced above. In that case, the plaintiff was unable to establish that his alleged ongoing functional limitations were caused by the subject motor vehicle accident or his pre-existing condition of gastritis. As such, the plaintiff failed to meet his burden of proving that his alleged ongoing functional limitations were, in fact, caused by accident-related injuries as opposed to pre-existing and unrelated medical conditions.

Gaps in Treatment/Refusal of Recommended Treatment

Gaps in treatment, or a plaintiffs failure to undergo recommended treatment, also impact the

4 2012 ONSC 4090 (CanLII). 19

determination of whether he/she will satisfy the threshold. Courts are often critical of plaintiffs who, on the one hand, fail to seek ongoing treatment or follow the advice of their health care providers, but on the other hand, claim to suffer from permanent and serious impairments. Therefore, failure to get appropriate treatment can have an impact on a judges determination of whether or not a plaintiffs alleged injuries satisfy the threshold. This sentiment was recently demonstrated in the following case.

In DeBruge v. Arnold,5 the judge deciding the threshold motion found several contradictions between the evidence of the plaintiff and her treating doctors, noting that if the plaintiff was experiencing the extent of pain she claimed, one would expect contemporaneous/corresponding references in her family doctors clinical notes and records (which were missing). The absence of such complaints to her treatment providers called into question the plaintiffs credibility and undermined the opinion of her expert. The judge was openly critical of the plaintiffs expert for being an advocate and went so far as to characterize his evidence as neither fair, objective or non-partisan. Therefore, the opinion evidence of the Plaintiffs expert was rejected and it was held that the plaintiff did not satisfy the threshold, despite the jurys verdict, which awarded the plaintiff $75,000 in general damages, $8,300 in future housekeeping expenses and $5,000 in future medical/rehabilitation expenses.

Independent Medical Opinions

In order to satisfy the evidentiary requirements under the statutory regulations, a party must adduce evidence from a physician confirming that he/she has sustained a permanent serious impairment of an important physical, mental or psychological function. This often leads to situations of competing experts, where a plaintiffs expert will express one opinion and the defence expert will express an opposite opinion. In determining whose evidence to prefer, judges are often hesitant to accept the opinions of experts who have not been properly informed, are not properly qualified or come across as unreasonably unfair or biased. Therefore, it is important to ensure that medical experts:

1) are properly informed by having hadan opportunity to review all relevantrecords and, if necessary, to

5 2014 ONSC 7044 (CanLII).

thoroughly assess the plaintiff in person;

2) are fair and unbiased in providing theiropinions;

3) are properly qualified to provide theopinions they give; and

4) are credible, persuasive and generallylikeable.

A recent example of a case in which the selection of medical expert played a role in the determination of whether the plaintiff satisfied the threshold is Maxwell v. Luck.6 That case involved a plaintiff who claimedto suffer from chronic pain, which was supported by her expert orthopedic surgeon, whose opinion was preferred over the opinion of the defence expert.

In critiquing the defence expert, the judge deciding the threshold motion found that he performed a cursory examination, including a limited history and physical, which did not involve palpating the plaintiffs body. In contrast, the plaintiffs expert performed a thorough examination, including a more extensive examination of her body. The judge specifically stated that the defence expert:

simply dismissed Ms. Maxwell and wrote a report concluding, without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history without any analysis as to what exactly in her past would have caused them but the 2007 collision

In deciding that the plaintiff satisfied the threshold, the judge obviously preferred the plaintiffs experts opinion, as he had better and more relevant expertise and conducted a more comprehensive examination of the plaintiff.

Summary

Although each threshold motion will be decided on its own facts, the case law provides valuable lessons on the factors Courts will consider in making their

6 2014 ONSC 7179 (CanLII). 20

threshold determination. While all of the factors outlined above are relevant, the most important one at the end of the day is the credibility of the plaintiff, as nobody likes a liar!

James Prior practices Insurance Law and is an associate at the Waterloo office of Miller Thomson. James legal practice focuses on the area of insurance defence, including the defence of personal injury and property damage claims, as well as commercial general liability and subrogated recovery matters. James has extensive experience before the Ontario Superior Court of Justice. He has also appeared before various administrative tribunals, including the Workplace Safety and Insurance Appeals Tribunal.

www.millerthomson.com Follow us on:

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Into The Future: Challenges and Opportunities

November 26, 2015, 11 am | Waterloo Inn, Waterloo

Join us for our Annual Speakers Luncheon as we explore:

Challenges from the sharing economy - UBER and AIRBNB Utilizing digital channel opportunities with new and existing customers Emerging technologies for adjusters Challenges facing Farm Mutuals in Ontario Leadership in todays world avoiding mediocrity

Whether you are an organizational leader or an upcoming insurance professional, you will find value in hearing from these prominent industry leaders:

Doug Heaman, CCIB, President, Insurance Brokers Association of Ontario Catherine Groot, CIP, President, Ontario Insurance Adjusters Association Carlos Rodrigues,FCIP, President & CEO North Waterloo Farmers Mutual Javier Ibaez B.A.,M.Ad.Ed, Vice President Economical Insurance

This exciting line-up of speakers will address the wide variety of opportunities in the property & casualty insurance industry.

Doors open at 11:00 with a mini trade show reception. Lunch served promptly at noon. Table Price: $388.00 plus hst | Single Ticket: $56.00 plus hst

Ask us about our mini trade show supporting the John E Lowes Scholarship Fund!

Book now and secure your spot: www.insuranceinstitute.ca/conestoga

Join us for the 37th Annual IIO Conestoga Chapter Speakers Luncheon

Get your tickets early for this sure-to-be-

sold-out event!

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Using the Right Equipment and Technology when Dealing with Water Claims

Aron Pinto | 519.616.2766 | aron@restoration1.ca

Water damage is becoming increasingly more common across the region and province. It is always a top priority to those of us in the emergency services restoration industry to ensure that when water damage strikes that it is attended to immediately. The sooner that the response takes place the more that we are able to reduce drying times and minimize overall damage. As we all know, homes are filled with organic materials, ranging from drywall, to insulation, cardboard boxes and even including

the underlay beneath carpets and many common household belongings. Allowing moisture to persist in such organic materials can within as little as 48 hours begin to result in mould growth. In many situations it is quite obvious what areas of the property have become wet, but we also have specialized tools designed to help us with this important task.

Standard Tools

The moisture sensor is the most basic of the detection instruments and is designed to detect high levels of moisture in carpet and underlay quickly. It is quite handy but only in specific situations where poking the materials with the thick pins leaving marks and when not obtaining numerical readings are both not of concern. Alternatively, moisture meters can also be used in both invasive and/or noninvasive modes and provide numerical values for moisture levels detected. This is quite important for documenting moisture levels in order to ensure that over time the environment is returning to healthy conditions and proper moisture levels. A final tool that is always needed is a thermo-hygrometer which measures the air temperature. It is crucial to closely monitor the humidity ratio in any drying environment to ensure that the area is drying properly and also that the adequate amount of drying equipment is being used. However, it is quite concerning and at times difficult to locate moisture in areas such as behind walls, over ceilings and under subfloors especially when trying to minimize the amount of unnecessary destruction.

IR Technology

Fortunately there is always technology being invented and improved upon that helps us to revolutionize our industry and the way in which we approach these situations. One of these great inventions is the use of infrared cameras and thermal imaging to identify the path traveled by the water. When a substance gets wet it gets significantly cooler than its relative environment. This is due to the movement of air over the wet materials surface, resulting in evaporation. Hence in a non-invasive manner, thermal imaging cameras allow us a quick visual snapshot as to what the relative temperature is on different materials and areas in a picture. Some of the newer camera models, such as the FLIR E-Series and T-Series cameras, utilize a technology known as MSX thermal image enhancement. MSX adds visible spectrum definition to infrared images and superimposes the heat map captured by the camera on top of the actual picture. Using FLIR software that

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comes with the camera we are able to view three types of images 1) the standard picture 2) the thermal image and 3) the thermal image superimposed on top of the standard picture. The quality of the pictures on many of these cameras is so high that you might not need additional photos for reports and documentation.

Practical Scenarios

A typical and useful application of thermal imaging in water damage is determining the path in which water travelled following a burst pipe behind walls. When drying we prefer to be aggressive rather than disruptive as this minimizes the overall demolition work required and reduces the cost to repair. The infrared imaging results are much more drastic during or immediately following the burst, as with the more time that elapses the more that the environment temperature begins to normalize. The IR camera can accurately illustrate the varieties of temperatures in the area by using different colours to represent temperature ranges. This can allow at a quick glance for a technician to identify which specific materials and parts of the property were affected by the sudden water loss.

Another example which happens quite often is a toilet supply line leaking from on one of the upstairs bathrooms. Using an infrared camera it will be quite easy to find and quickly be evident what parts of the ceilings and/or walls and/or insulation in the levels below the water travelled through.

Wet ceiling as show by a FLIR infrared camera

However, it is important not to rely exclusively on any one tool when analyzing a loss as each tool has its own place and specialty. Using thermal imaging exclusively is misleading and not recommended. Combining the tools mentioned earlier with IR yields the best results. Another relatively recent innovation by FLIR is a moisture meter that combines both moisture readings with infrared guided measurement in providing the technician with guidance in capturing more accurate readings. Many of these devices even integrate via WIFI and with most smartphones, making integration of such images and data into reports easier than ever.

Conclusion

If a photo speaks a thousand words I think it would be safe to say that a thermal picture speaks a million. It is our responsibility when servicing our clients and providers to ensure that we are always using the latest and greatest in equipment, technology and software. The benefits of these result in a better initial analysis, a scope optimized to the specific environment dynamics and in a better outcome for everyone involved. The amount of technology that has been released in the past few years alone is astonishing and this seems to be just the beginning in a revolutionary form in dealing with water, mould, fire and other emergency damages. Looking forward for what is to come!

Aron Pinto is the General Manager at Restoration 1, servicing Kitchener, Waterloo, Cambridge Guelph and the surrounding area

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Repair and Storage Liens Act Amendments: Proposed Fair Market Value Regulation is Foul

Michal Baura | 416.365.0000 + 156 | mbaura@samislaw.com

One of the main goals of Bill 15 was to amend the Repair Storage and Liens Act (RSLA) to enhance towing and storage services. The most significant amendment to achieve that goal is the provision granting the provincial government the authority to make regulations regarding the fair market value of services provided by tow truck and storage facility operators. The government released its first draft regulation in September. Unfortunately, the proposed regulation will likely not do much to reduce litigation between

tow truck and storage operators and insurance companies in the near future.

The Problem: Why a Fair Market Value Regulation is Needed

It is a scenario that plays out all over the province every day. It may have even happened to you. An individual is involved in an accident. They are in a temporary state of shock and extremely vulnerable. A tow truck operator appears out of the blue and offers assistance. The individual involved in the accident likely does not appreciate that they are about to negotiate a contract with the tow truck driver that goes beyond the simple tow.

The responding tow truck driver offers to tow the individuals vehicle and store it at their facility until the individuals insurer sends an appraiser to inspect the damage. The tow truck driver never discusses the cost of services with the individual. They simply tell them that the insurance company will cover the costs and ask the individual to sign an invoice that charges excessive rates for the proposed towing and storage services.

The individual usually complies because they typically have no idea of the fair market value of the service. Even if the tow truck driver discloses the price of a service, why should the individual care about the cost? After all, they have just been told that the insurance company will cover the cost and the individual wants to leave the scene of the accident as soon as possible.

Once the towing and storage invoice is submitted to the insurance company for payment, the insurer usually recognizes that the fees are excessive and refuses to pay the invoice. Section 4(b) of the RSLA states that where there is no agreement on the amount for storage, the storer is entitled to the fair market value of the service.

The problem is the caselaw on the fair market value of a storage service has not provided much guidance. The decisions have all been rendered by Small Claims Court Judges and there are very few reported decisions. The decisions have also used different ways of arriving at the fair market value of a storage service, so there is no established test. The decisions have also arrived at different fair market values for storage services ranging from $80 to $25 per day. In short, there has been no consistency in this area of law. This is why a regulation providing

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guidance on the meaning of fair market value is needed.

The Proposed Solution

The governments solution to the problem is to establish a test for determining the fair market value of a storage service. The consultation draft of the regulation states that the following factors are to be considered when determining fair market value:

the expenses incurred by the storer in relation to the storage or storage and repair orstorage and part of the repair of the article, including expenses related to insurance,transportation, labour, weighing and packing

all lawful claims for money advanced and interest on money advanced by the storer inrelation to the article

the storers fixed costs, variable costs, direct costs and indirect costs

the storers profit

any other relevant factors

Unfortunately, the above test is vague, broad and will not produce any consistency in setting a market rate for storage services. It is not clear what, if any, documentation the storer will be required to produce to verify its expenses related to insurance, transportation, labour, weighing, packing as well as its fixed costs, variable costs, direct costs, indirect costs and profits. Moreover, most of these cases will take place in a Small Claims Court context where insurers will not have the benefit of cross-examining the towing and storage facility about its business documents in an Examination for Discovery setting prior to trial.

It is also not clear what effect the storage facilitys business expenses will have on the fee they will be allowed to charge. How much profit should towing and storage facilities be allowed to make? Is this question being delegated to Small Claims Court Deputy Judges? What if one storage facility is more efficiently run than another? Will they be allowed to charge different rates?

The insurance industry desperately needs some level of predictability in this area of law. However, the proposed regulation will not provide it. The most sensible solution is to adopt the City of Mississaugas approach. The City of Mississauga simply passed a By-Law that set a maximum amount that can be charged for the storage of a vehicle. That amount is periodically reviewed and increased. Currently, it is set at $60 per day.

Most municipalities have towing by-laws which set the maximum amount that can be charged for hooking up a vehicle and mileage. Setting a maximum amount for the storage of a vehicle that is brought to a facility by a tow truck is the next logical step. The government should scrap its current draft and work on a regulation that would set a maximum amount that can be charged for the storage of a vehicle.

Michal Baura is a lawyer at Samis+Companys Toronto office www.samislaw.com | @samislaw | #OntInsLaw

Toronto | Waterloo

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Access Restoration Services 16 Arcon Engineering 9 Atlas-Apex Roofing Inc 34 Bayshore Home Health 35 Brodrechts Carpet Department

35 Inside Back Cover

Carstar Caskanette Udall

9 Outside Back Cover

CRDN 32 CSN Regency Davis Martindale Advisory Service Inc

33 Inside Front Cover

First General Services First Response Restoration

31 Inside Back Cover

Forbes Motors 30 Golden Triangle Restoration 16 Ground Force Highland DKI

32 Outside Back Cover

Hrycay Consulting Engineers 8 KPMG 13 Larrek Investigations 17 Lipskie Appraisal Services 9 MD&D 9 Miller Thomson LLP 31 Origin & Cause Inc 7 Pario 7 Parkway Auto Recyclers Paul Davis Systems PriceWaterhouse Coopers

35 Inside Front Cover Inside Back Cover

Relectronic-Remech 32 Restoration 1 17 Samis + Company 26 Strone Restorations 30 We Care Home Health Services 33 Whitehall Bureau of Canada Ltd 13 Winmar 22 Xpera Risk Mitigation & Investigation 29

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Jennifer Brown Ryan PottsLaura Potts Mark PottsCarrie Keogh Stephen Tucker MA, CIP, CRMGillian Reain, BA Leeann DarkeMonika Bolejszo Stephanie StorerCyndy Craig Daniel StrigbergerADP2FA8.tmpMichal Baura | 416.365.0000 + 156 | mbaura@samislaw.com