Justice Cunningham released his recommendations for the FSCO Dispute Resolution System (DRS) yesterday.
The full report can be found here: http://www.fin.gov.on.ca/en/autoinsurance/drs-final-report.html
What is the Cunningham Report?
The Cunningham Report provides recommendations with the goal of streamlining the FSCO Dispute Resolution Process for Accident Benefits disputes. Justice Cunningham's stated goals include making the process more predictable, accessible, and cost efficient. The overarching goal of the DRS should be geared towards early resolution of disputes; recognizing that early resolution presents the best-case scenario for insured persons.
Charles Gluckstein had occasion to make submissions to Justice Cunningham on the proposed changes in his role as President of the Ontario Trial Lawyers Association. Many of the OTLA recommendations have been incorporated into the Final Report. Click here to take a look at the OTLA submissions.
All and all there were 28 Recommendations; for ease of reference we have excerpted and reproduced Appendix "A" from the Report at the bottom of this blog post.
Amongst the 28 Recommendations there are a number that stand out and represent a significant change from the way that the DRS process works today:
Significant changes to the DRS process
- Recommendation #9: The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
- Recommendation #13: The current pre-arbitration meetings and neutral evaluation should be combined into a new settlement meeting.
- Recommendation #14: Settlement meetings should be conducted by video conferencing rather than by telephone in cases where it is not feasible for the parties to meet in person.
- Recommendation #16: An adjournment fee should be established, which could be charged to the party requesting an adjournment in the absence of exceptional circumstances.
- Recommendation #17: The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
- Recommendation #18: Experts should be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence. Arbitrators should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.
The process as recommended by Justice Cunningham, if it works, could result in significantly quicker dispute resolution times for accident victims. It will be interesting to see which recommendations are ultimately adopted and which ones never make it beyond the pages of this report. The combination of recommendations ultimately selected by the government and the willingness of insurers to cooperate in a new process will determine whether or not the changes are of any benefit to injured accident victims.
2014 Ontario Automobile Dispute Resolution System Review Final Report
Appendix A - List of Recommendations
- A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
- Arbitrators should be appointed by order-in-council on the recommendation of the responsible minister.
- Tendered contracts should be established with one or more private-sector dispute resolution service providers to address fluctuations in demand for services.
- Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
- The person conducting the settlement meeting should not also conduct the arbitration between the same parties.
- Statutory timelines and sanctions regarding settlement meetings, arbitration hearings and the release of arbitration decisions should be created.
- The policy of no application fees for claimants at the settlement meeting stage should be continued.
- A claimant or insurer who abuses the process should be required to pay all or part of the settlement meeting and arbitration fees of the other party. A party should not be able to claim costs in arbitration if they refused a settlement offer that is more favourable than the amount ordered by the arbitrator.
- The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement
- Arbitration decisions should continue to be published.
- An arbitration decision should provide guidance but not be binding on other disputes.
- The government should continue to use binding Superintendent's Guidelines incorporated by reference into the SABS to provide stakeholders and adjudicators with direction as required.
- The current pre-arbitration meetings and neutral evaluation should be combined into a new settlement meeting.
- Settlement meetings should be conducted by video conferencing rather than by telephone in cases where it is not feasible for the parties to meet in person.
- Fees should be established for settlement meetings and the different streams of arbitration. Settlement meeting and arbitration fees should be reduced where the parties settle in advance.
- An adjournment fee should be established, which could be charged to the party requesting an adjournment in the absence of exceptional circumstances.
- The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
- Experts should be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence. Arbitrators should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.
- Each insurer should establish an internal review process and be required to inform a claimant how to access it following a benefit denial.
- Each insurer will determine how their internal review process is to be structured, but must provide a claimant with a written response that includes the outcome of the review and reasons for the company's decision within 30 days of the claimant's request.
- The Superintendent should collect utilization statistics from each insurer. A review should be conducted within two years to determine whether the internal review process leads to fewer disputes.
- Settlement meeting applications should be reviewed by the tribunal's registrar, who will determine if the parties are ready to proceed to a settlement meeting. The application should only be accepted once all outstanding issues have been addressed. The registrar or an arbitrator should be able to consolidate applications involving the same claimant and insurer.
- The tribunal should develop an electronic filing system to expedite the filing of settlement meeting and arbitration applications.
- Following an unsuccessful settlement meeting and the filing of an arbitration application, the arbitrator should inform the parties whether it will take the form of a paper review, an expedited in-person hearing or a full in-person hearing.
- Arbitration hearings should be conducted as paper reviews in cases where there are $10,000 or less of medical and rehabilitation benefits in dispute, or where the dispute involves a determination as to whether the claimant's injuries meet the minor injury definition.
- Arbitration hearings should be conducted as an expedited in-person hearing in cases that do not qualify as either a paper review or full in-person hearing. This determination should be made by an arbitrator and not subject to appeal.
- Arbitration hearings should be conducted as full in-person hearings for disputes involving catastrophic impairment determinations and whether the claimant still qualifies for 24-hour attendant care or income replacement benefits beyond 104 weeks.
- Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.
Authored by Angela Comella, a lawyer practicing with Gluckstein Personal Injury Lawyers.
REFERENCES:
http://www.fin.gov.on.ca/en/autoinsurance/drs-final-report.html
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