The Automobile Accident Benefits Service (AABS) came into effect on April 1, 2016. It is administered by the Licence Appeal Tribunal (LAT). The AABS is the new system of dispute resolution under the Ontario Statutory Accident Benefits Schedule (SABS); it has replaced the old dispute resolution system managed by the Financial Services Commission of Ontario (FSCO).
In addition to procedural changes and challenges, the AABS & LAT will require new strategies and approaches to be employed. The AABS mandate is to "deal with your case in a fair, independent and timely manner. Our goal is to reach a final decision about your benefits within 6 months." This lofty mandate will certainly change how we manage and think about AB disputes.
Prior to applying to the LAT counsel will need to be organized. New systems will need to be in place. A lot of thought should be placed on when or if to commence a claim in the LAT. Small issues may not be significant enough to warrant the resources which will be required by the LAT. These issues may include, small low-cost items, denials where alternative treatment exists and denied attendant care where you anticipate the medical and rehabilitation needs will use up the $65,000 combined benefits (Post June 1, 2016). Alternatively, it may make sense to deal with multiple denials in one claim. Previously, there was little risk taking a claim to the mediation stage. It was low risk and low cost. The new system will use a lot more resources, including time, staff and money.
Once you commence a claim with the LAT, things start moving very quickly. A case conference will be scheduled within 45 days, prior to which parties need to:
- Exchange key documents.
- Identify witnesses and provide brief will-says.
- Disclose the experts and the issues they will address.
The LAT has some lofty aspirations with respect to hearings as well. The intention is that written or electronic hearings will occur by day 75. That is two and a half months post application! Oral hearings should take place by day 150, or five months post application!
The LAT system should raise a number of questions for counsel. The first consideration should be organization of firm resources including personnel and new tickler systems to work with the LAT. Document tracking also needs to be in the forefront to manage early and complete productions including an updated medical file, expert opinions, and insurer correspondence.
We also need to change how we work with our colleagues. Adjournment requests are going to be limited and backup counsel will need to be available with short notice.
More contact needs to be made directly with the adjuster. Issues may be able to be resolved outside of an LAT application. This is especially true since updated medical support will be required almost immediately, which should provide a catalyst for conversation. This alone may help an adjuster re-evaluate, without the need of a looming arbitration. This will necessitate the use of our informal advocacy skills. Making an argument to the adjuster may save everyone a lot of time and resources.
The LAT can dismiss claims based on lack of jurisdiction at any time. Possible jurisdictional issues include:
- a claimant failing to attend a section 33 examination;
- seeking optional benefits which were not purchased;
- disputing benefits which were not properly applied for;
- seeking benefits only available once a catastrophic designation has been made.
In order to avoid a dismissal without notice, counsel must anticipate these issues. It will be prudent to carefully assess potential jurisdictional issues, do research in advance of the application and address the issue right in the initial application.
Settlements will continue to occur under the new system. They will continue to benefit all parties; however, settlement strategies need to change. The common practice of applying for mediation in order to get the insurer to the table for settlement discussion may change. Previously, counsel had the opportunity to discuss resolution with the comfort of knowing that should negotiations fail, there was still plenty of time to prepare your case for an arbitration hearing. This is no longer the case. As soon as the application is submitted things start moving very quickly and counsel will need to be in a position to attend a hearing. As mentioned above, claimants' counsel will need to consider initiating settlement discussions outside of an existing LAT application. Insurers and their counsel may need to re-evaluate how and when they entertain settlement discussions. Lastly, both sides may find that there are more partial settlements than ever before; otherwise, we will all find ourselves conducting many more arbitrations at great expense.
By Jan Marin, Personal Injury Lawyer, Gluckstein Lawyers
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