More feedback needed on Ontario auto dispute resolution

The Ontario Ministry of Finance is seeking written submissions of feedback to an interim report on the auto insurance dispute resolution system delivered Nov. 8.

J. Douglas Cunningham, former associate chief justice of the Ontario Superior Court of Justice, was tasked in August to conduct a review of the DRS, delivering an interim report in the fall and a final report in February 2014.

His interim report outlines some preliminary observations about the system and recommendations for improving it, based on issues of timeliness, proportionately (smaller claims versus larger ones), accessibility to the system, predictability within it, streamlining, costs and overall culture.

While the Financial Services Commission of Ontario (FSCO) recently eliminated its backlog of mediation applications, a significant arbitration backlog remains.

Overall, the report recommends a more streamlined mediation and arbitration system that includes different processes based on the complexity of the case, including the monetary amount at stake.

“I would like to see a future system that could accommodate different processes based on the complexity of the case,” Cunningham suggests. He also recommends eliminating the neutral evaluation stage introduced in 1996, which is “little-used.”

“To a certain extent, the system has been a victim of its own success,” Cunningham writes in the report, noting that easy access, as well as increased use of legal representatives, has created a parallel system to the courts that is only “marginally faster.”

Using legal representatives has slowed down the system, since scheduling with lawyers and paralegals can be challenging, he notes in the report.

The report also points out, based especially on feedback Cunningham has received, that claimants don’t always have a large financial risk involved with the process (for example if their legal representatives are working on a contingency basis). The mediation cost is free, while the arbitration cost is only $100, the report notes.

Cunningham also notes in his report that there has been “strong support among stakeholders for moving dispute resolution to the private sector” or creating a tribunal model similar to the Workplace Safety Insurance Appeal Tribunal.

“I see no reason why the DRS adjudicative function needs to be housed at FSCO,” the report says. “I recommend that the government consider that FSCO’s DRS adjudicative functions be delivered externally.”