Abstract: Volume 37, Number 1

August 2016

PART II: Case Law, Best Practice and the Post-104 Week IRB Disability Test
Dr. J. Douglas Salmon, Jr., Dr. Jacques J. Gouws & Corina Anghel Bachmann
The following is Part II of a three-part paper presenting holistic models of determining impairment and occupational disability with respect to common “own occupation” and “any occupation” definitions, especially in the motor vehicle accident (MVA) context. This segment of the paper is for the purpose of educating readers regarding pertinent case law and related evolving judicial/arbitral interpretations surrounding the Post 104-week income replacement entitlement within the Ontario MVA insurance system. Best practices in disability assessment methodology and analysis are supported in the context of holistic occupational disability assessment models in relation to the relevant case law. Comparative analysis was also utilized to inform the reader of the emphasis upon the quality of activity engagement across pre- and post-104 week spheres. Beyond the MVA sphere, medically-legally, the reviewed case law and related clinical best practices are fully germane to the long term disability and WSIB (workers’ compensation) sectors. A specific area emphasized by authors is that the assessment of pain is more complex than is generally acknowledged in many disability assessments. Research on the impact of pain on individuals with disabilities and impairments arising from injuries sustained, clearly demonstrates that traditional pain measurements are often inadequate to fully determine the disability arising from pain. Finally, particularly in the context of Insurance Examinations (IEs and Independent Medical Assessments for LTD), the principle of competitive employability is often not considered as it should be in accordance with the existing case law.

Threatened Litigation Returns Abortion Access to Prince Edward Island after 34 Years
Nasha Nijhawan & Kelly McMillan
On March 31, 2016, the government of Prince Edward Island committed to provide medical and surgical abortions in a public health facility in the Province by the end of the year, for the first time since 1982. The Province’s announcement was a direct response to threatened Charter litigation initiated by a group of local veteran activists called Abortion Access Now PEI Inc., which challenged the government’s policy not to provide abortion services in the Province. In this commentary, legal counsel for Abortion Access Now PEI Inc. situate the recent litigation efforts within the history of abortion access and advocacy in PEI. They attribute the reversal of the government’s position to the successful reframing of the Province’s abortion policy in the threatened litigation and the sustained and creative approaches employed by abortion access activists.

Trillium Gift of Life Act and Why the Struggle with Organ Donation Persists in Ontario
Hillary Chan
Despite the creation of Ontario’s Trillium Gift of Life Network Act in 1990, Ontario’s prospect in organ supply remains low. Since 1990, medical findings have informed and changed approaches to organ donation; however, these approaches have not been implemented consistently across hospitals nor have they been integrated firmly into the law. This lack of consistency and integration, as research suggests, prevents organ donation rates from fulfilling their potential. In response to such downfalls, this article suggests areas in the Trillium Gift of Life Network Act that should be updated as a first step to improving organ donation rates.