Ontario’s $2,000 cap on AB assessments could be vulnerable to Charter challenge: AB seminar panelist

By including a health practitioner’s travel and translation costs within a $2,000 limit on auto insurance accident benefits assessments, the new Ontario auto insurance reforms may be heading down the highway towards a Charter challenge.
“On the issue of including the transportation costs and the translation costs, I would think that’s a Charter issue that would be challenged quite quickly, because there’s a [potential] disenfranchisement of people who don’t live in urban centres and people who do not speak English,” said Kadey B.J. Schultz of Hughes Amys, who made the point at a panel discussion on the recent reforms to the Ontario Statutory Accident Benefits Schedule. “They might not get the same value for money out of their policy of insurance as the people living in the Greater Toronto Area and English-speaking people would.”
The panel discussion occurred at the Canadian Defence Lawyers (CDL)’s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010.
Schultz made her comment after fellow panelist Dr. Arthur Ameis of the Multi Disciplinary Assessment Centre (MDAC) criticized the inclusion of travel and translation costs within the $2,000 cap. He noted the inclusion of these costs would make it difficult to find health practitioners willing to perform assessments on behalf of insurers.
For example, Ameis suggested health practitioners would have no incentive to travel to underserviced and/or remote areas to perform at-home assessments, since the cost to do so would be counted against the assessment limit. “Transportation?” he said of the costs. “Well, that basically precludes service in places such as Rainy River, Timmins, Kapuskasing.”
Similarly, he said, health practitioners might choose not to assess claimants whose first language wasn’t English. “Why should I as a physician, when I could at most make $2,000, accept a patient who doesn’t speak English?” he said. “I am going to have to have some of my fee taken out to pay for the translator.”
Ameis noted that even first-year general practitioners bill at $492 per hour, which would reach the $2,000 assessment limit in about four hours.
Ameis emphasized that health practitioners do not perform assessments casually. He noted they are required to do long, extensive reports; receive banker’s boxes of documentation in order to do an assessment; often have their credentials questioned publicly in court and arbitration settings; and could potentially face civil suits or disciplinary hearings as a result.
“So the attractiveness of this work is low,” he said. “We’re facing a situation where a couple of years from now at arbitration, the plaintiff lawyers may or may not have gotten around the cap to get their assessments done, but the insurers are held to the cap, and they are going to be presenting less-than-complete, less-than-expert, less-than-satisfactory, less-than-exhaustive assessment reports to counter the situation. And yet no one has touched the arbitration system, which is exceedingly demanding.”