On April 1, all disputes regarding accident benefits began wending their way to the Licensing Appeals Tribunal.
There is considerable anxiety over how the new system will work. It promises a speedy resolution of disputes, but it remains to be seen if it can deliver on its goal to resolve matters in a six-month time frame.
Maia Bent, president of the Ontario Trial Lawyers Association, identifies her biggest concern as the loss of the choice to proceed through the courts.
“Removing the right to sue for accident benefits is very troubling. Accident benefit disputes are often incorporated into existing tort claims, which is an efficient and cost-effective way of resolving these issues,” she says.
“Now, claimants will be forced to bring duplicate proceedings and call the same evidence in two forums with the possibility of inconsistent results.”
This aspect of the LAT system is the subject of a court challenge by personal injury lawyer Joseph Campisi that looks likely to be set down for argument in September.
The application challenges the loss of the right to sue under s. 5 and s. 7 of the Charter and also raises s. 96 of the Constitution Act that deals with the separation of powers. In January, the IBC moved for intervenor status as a party, which is unusual.
“We tend to intervene at the appeal stage if we’re going to,” says Randy Bundus, the senior vice president legal and general counsel of the IBC. “In my 30 years here, this is only the third time we have gone in at the first level.”
He identifies the constitutional and Charter arguments as the cause for concern.
“For those arguments you have to get the correct factual underpinnings. We think we’re in a good position to offer up those underpinnings. We want to make sure there is an appropriate fact situation so there is a proper ground for the constitutional argument,” he says.
In the meantime, the LAT is accepting applications and lawyers are scrambling to work out how the new system works. The IBC has declined to comment on its attitude to the transition to the LAT, given that it is standing for the defence in the court challenge.
Bent considers it telling that there was a spike in arbitration applications at FSCO before the April 1 deadline. “There was a flurry at the end of people wanting to go under the old system. That’s an indication that people feel more comfortable with the old system at this point.”
Darryl Singer of Singer Litigation identifies a key problem at the start of the whole process when applicants have to pay a $100 fee.
“FSCO had no fee until an application for arbitration was made. Well over 50 per cent settled quickly at the mediation stage with no out-of-pocket disbursements. When the $100 was paid, the insurer had to file $3,000 to respond and engage outside counsel. It was a leverage to get a lot of files settled,” he says.
Singer notes that, at the LAT, insurers will pay on a points system, proportional with their usage of the process.
“Under the old system, the payment came out of the reserve the adjuster had set aside for the file. I suspect it will now come out of a different pool and will not affect the adjusters. It is a global amount, not a file-by-file amount.”
Singer thinks that this fee will be a burden for applicants and also for law firms who act on a contingency basis.
“It will weed out the firms that will take these files, especially the smaller, paralegal firms. It’s not economically feasible to take a lot of smaller files. The mechanism to fight them is not advantageous. We will end up like family law with so many self-represented parties,” he says.
Once the hurdle of the fee has been passed and the application lodged, the parties will be faced with a set of tight timelines. The insurer has only 10 days to respond, and a case conference with all the documents, arguments, medicals, and production requests in hand is to take place within 45 days, with a hearing to follow 60 days later.
“If it can work, it will be of benefit to claimants that there is a quick resolution,” says Bent. “Treatment needs to be dealt with in a timely way. It remains to be seen if the timelines can be met. It’s certainly going to be a culture shift. You can’t just file an application and put it on the back burner.”
Singer recalls that the FSCO also had a 90-day timeline that blew out to an average of nine months.
“There are just too many applications for the resources. It won’t take very long for the back to break on this system,” he says.
“Given how long it takes to get records from doctors, hospitals, and OHIP, the timeline isn’t ever able to be met in practical terms.”
Singer is concerned that the new case conference may often be done by telephone.
“There is a lot of leverage in face-to-face, in-person meetings. Until the adjuster and defence lawyer meet with the person, there is no human element. When they are there in person, they can see the person has injuries and that they will make a good witness. They see that they have some exposure and should settle. At the LAT, the case conference administrator has the sole discretion to decide whether our hearing is in person or a paper hearing,” he says.