April 27, 2017 by Greg Meckbach, Associate Editor
Ontario’s new system for arbitrating auto accident benefits claims disputes has “very significant growing pains,” a lawyer told insurance professionals Thursday.
During BDO Canada LLP’s 21st Annual Accident Benefits Conference, insurance defence lawyer Amanda Lennox questioned whether “access to justice has been achieved” with the Automobile Accident Benefits Service of Ontario’s license appeal tribunal. Until April, 2016, the Financial Services Commission of Ontario provided mediation, arbitration and neutral evaluations for accident benefits disputes. FSCO is still doing this but only for applications received before April, 2016.
Over the past year “just over 6000 applications” were made to LAT, said Lennox, a partner with Laxton Glass LLP, during the BDO AB conference, held at the Liberty Grand conference centre at the Canadian National Exhibition grounds. With the move to LAT, the province’s Insurance Act prohibits parties from bringing accident benefits claims disputes into court, other than an appeal from a LAT decision or an application for judicial review. The move to LAT was based on a recommendation – from a report released in 2014 – that the Ontario government appoint a public sector administrative tribunal for disputed claims under the statutory accident benefits schedule. The report was written by former judge J. Douglas Cunningham.
“If you recall, the purpose of bringing in the license appeal tribunal, at least the purpose that was discussed with everybody … was to find a way that people can access justice in a more efficient and quicker manner,” Lennox said Thursday. “Certainly the system has resulted in quicker determinations but I am not sure that access to justice has been achieved.”
LAT is holding “multiple case conferences a day,” she said. “I have had cases where I receive notice of a case conference, the case conference is four days from now, which makes it difficult to comply with our timeline that we have to get both a response and a case conference summary within 10 days in advance of a case conference,” she said. Requests to adjourn case conferences “were initially a significant problem at the LAT,” Lennox added. “They were extremely strict in allowing adjournments of the case conference.”
In one recent case involving a party represented by Laxton Glass, opposing counsel was a sole practitioner who was doing a four week trial at the time the case conference was scheduled. The plaintiff’s lawyer requested adjournment of the LAT case conference.
“The LAT initially denied the request and suggested he hire an agent in order to complete the case conference,” Lennox said. “We wrote in to support his request for an adjournment because we thought that [LAT’s response] was ludicrous and ultimately the LAT agreed to book a date that he was available.”
Sometimes, she suggested, a lawyer receives notice that LAT has scheduled a case conference at the exact same time as another case conference for another file. “Originally we would make a request for an adjournment,” she said. “Initially the response was, ‘Nope. Find somebody else to do your case conference.’”
Case conferences generally take one hour, she noted.
“In that time you are supposed to deal with settlement, agreed statements of fact, narrowing of issues, witness and disclosure of substantive evidence, disclosure and exchange of documentation, number of experts if more than two are required, other hearing considerations such as interpreters and court reporters, motions and the type of hearing you are going to have,” Lennox said. “And generally in these conferences, the adjudicators only focus on the first one. Their intent is to settle as many files as they possibly they can.”
LAT was also the subject of a panel discussion held in November by InHEALTH Inc. and l Flaherty McCarthy LLP. Cunningham was a speaker at that conference. He noted at the time that many of his recommendations from 2014 were not adopted. For one, Cunningham reported, he recommended that mediation be mandatory and “much more meaningful.” A gatekeeper, Cunningham said, “would be useful to ensure full compliance before these enhanced mediations,” Cunningham added in November. “I thought most users of the system would have welcomed that. Sadly, that recommendation was not adopted by the government.”
At BDO’s AB conference April 27, Lennox noted that LAT “came out with a strong statement that it would be a gatekeeper to certain applications and they would apply this gatekeeper function in order to officially remove those applications that either should not be at the LAT.”|
Some disputes should not go to LAT “because of things such as limitations periods, or whether something is actually an accident under the SABS,” Lennox added.
“They made this strong statement in the belief that they could review the application and the response and provide an immediate determination thereby dismissing an application,” Lennox said. “I think there was one attempt that went through. Ultimately, since then, the gatekeeper function has stopped. They are no longer dismissing applications likely correctly at the outset because access to justice requires submissions (and) the ability to put evidence forth.”