March 2016 | Gluckstein Lawyers | Ontario
If you are injured in a car accident in Ontario, there are two possible routes to obtain compensation for your injuries. The first is to bring a lawsuit against the driver who was responsible for the accident— i.e. a "tort" action. The second is to claim benefits through your own insurance provider—i.e. an "accident benefits" or "AB" claim.
Sometimes your insurance provider will deny your claim for accident benefits. If your AB claim is denied there is a process in place for disputing that denial. Currently, this dispute resolution process (DRP) operates under the Financial Services Commission of Ontario (FSCO). FSCO has been adjudicating AB claims since 1990. Over the past 25 years, the adjudicators at FSCO have become accident benefits experts.
The DRP begins when an application for mediation is filed. If the parties are not able to reach an agreement at mediation then the injured party has the right to apply for arbitration or to launch a Court action to dispute the denial. Before arbitration, there is a further opportunity to resolve disputes at a pre-arbitration hearing.
Why is the DRP changing?
Starting April 1, 2016 accident benefit disputes will no longer be heard by FSCO. Instead, they will be heard by an agency called the License Appeals Tribunal (LAT). The LAT hears appeals from over 25 difference tribunals, and has never adjudicated AB disputes before. The new process is titled the Automobile Insurance Dispute Resolution System (AIDRS).
This change is part of the Ontario government’s "Cost and Rate Reduction Strategy" aimed at protecting consumers and helping them save money on auto insurance. i Justice Cunningham, an Ontario Judge, made a number of recommendations for revamping the DRP for accident benefits. The Ontario Government has followed some of his recommendations in developing its strategy, but ignored others.
The strategy targets a 15% reduction in authorized auto insurance rates, industry wide, within two years, ii and a key element of the government’s Cost and Rate Reduction Strategy to revamp the DRP for accident benefits. iii
Starting April 1, 2016, an injured person will have to make an Application (using an "Application by an Injured Person Form") to their insurer and send that Application to the LAT, with an application fee of $100.00. This is a new fee and it was not recommended by Justice Cunningham. The application is the first step of the AIDRS.
Within 10 days of the application being submitted to the LAT, the insurer is expected to respond (using a "Response by an Insurance Company Form").
As recommended by Justice Cunningham, mediations and pre-arbitration hearings will be eliminated. Instead, a case conference will be scheduled with an LAT adjudicator within 45 days after either the response is received or the date for responding has passed. A typical case conference will be held on the phone for one hour and the purpose is to settle the dispute. This goes against Justice Cunningham’s recommendation that settlement meetings be conducted by video conferencing rather than by telephone in cases where it is not feasible for the parties to meet in person.
If a dispute is not settled at the case conference then a hearing will be scheduled within 60 days. Justice Cunningham recommended that hearings take the form of a paper review, an in-person expedited hearing or an in-person full hearing. Instead, the Ontario Government has given LAT adjudicators the discretion to choose the format of the hearing. The adjudicator that facilitates the case conference will not be the same as the adjudicator who conducts the hearing.
The Ontario Government expects that the entire process, illustrated below in, must be completed within 6 months.
First, when the adjudication of AB claims moves from FSCO to the LAT, we will lose impartiality and expertise.
For the most part, FSCO arbitrators are permanent public servants. This "security of tenure" and financial security, which approaches that of judges, provided FSCO arbitrators with true independence and impartiality in their decision making. iv In contrast, LAT members are, for the most part, paid on a per diem or daily basis with no security of tenure. They do not have permanent positions. Because they are appointed by the government, the fact they can be removed at any time should make us concerned about their impartiality.
FSCO has been adjudicating AB claims in Ontario since 1990. Over the past 25 years FSCO, which only adjudicates AB claims, has developed expertise in this area. In contrast, the LAT does not have experience with the Statutory Accident Benefits Schedule, which continues to inform dispute resolution.
Second, the changes to the DRS eliminate the right of accident victims to sue for accident benefits.
Currently, if mediation fails the parties can chose to commence arbitration with FSCO or commence a lawsuit. The option to commence a lawsuit is eliminated under the new DRP. Instead, parties to a disputed claim will participate in a settlement meeting. If a settlement cannot be reached the claimant may apply for arbitration.
Once an arbitration decision has been rendered the claimant may appeal to the Divisional Court or apply for judicial review. These latter options pose considerable challenges, and the elimination of the right to sue removes protection for vulnerable accident victims in Ontario.
F O O T N O T E S l
i Making Auto Insurance More Affordable for Ontario Drivers,
Government of Ontario News Release dated August 23, 2013
iii Auto Insurance Dispute Resolution System Review, Ontario Ministry of Finance;
iv Response by FSCO Arbitrators to Justice Cunningham’s Interim Report; http://bit.ly/22SyabP