Law Times

Law Times • May 6, 2013 Page 13 FOCUS Lawyer wants MIG eliminated Continued from page 12 don't have to touch for a year. If they do that now, they will be in a very difficult position when they finally go to court, especially if there is increased mental distress because the injury prevents a person from working or spoils their enjoyment of life." Some lawyers have already noticed a change in insurer behaviour. Corriero is observing a willingness to negotiate that wasn't there before and DiMeo was happy to see a settlement in a mediation on exactly the same point as Scarlett's matter the following week. Merkur has begun sending out copies of the decision with an assertive letter demanding a review and is getting a more receptive response but he warns there will still be a disconnect. "Most people in the [minor injury guideline] don't end up with lawyers. Often their disability certificates are filled out by physiotherapists and chiropractors who hint at or suggest a focus on whiplash. Insurers won't unilaterally review cases unless there are challenges from lawyers and paralegals." However, there's now some optimism that many disputes will settle when they reach mediation, another area where changes are working in the plaintiff 's favour. FSCO advises that since the intervention of ADR Chambers, the backlog of mediation files has decreased to 8,258 files from 29,142 on March 31, 2012. It's expecting to eliminate the backlog by the end of September 2013. At present, though, lawyers are still finding their clients have to wait for long periods before they get to the commission. Lawyers are also noting what the case says about the state of auto insurance in Ontario. "The plaintiff won the case, but was it really a win for him?" asks Goldfinger. "It was 2-1/2 years from the date of the car accident to the date of the arbitration. This plaintiff was not insured with OHIP so had to pay for all his treatment out of his own pocket. From an administrative point of view, it's a big waiting game. Even though you might eventually get out of the [minor injury guideline], no amount of money will ever compensate you for the time spent waiting." Adam Wagman, managing partner at Howie Sacks & Henry LLP, expresses a similar sentiment. "The bigger problem is that treatment delayed is often treatment denied. A physical or psychological injury that could have been helped three months after the accident becomes ingrained three years down the road. I am optimistic that we can win the legal battles but how do we help people who are going without treatment? It is a disservice to legitimately injured people." Charles Flaherty of Flaherty Sloan Hatfield goes further as he says the case should shame the regulator. He points to the amount of time it took Scarlett to obtain a very modest remedy, the total cost of the process, and the approach of the insurer in adjusting the file when it comes to his contention that the whole situation is an abomination. "There is no way that it is justifiable that someone pay so much for a policy of insurance, then take so much time and spend so much money to obtain so meagre a benefit. If the purpose of first-party benefits is to provide medical relief quickly, the case of Scarlett shows that they do not. It should be an embarrassment to the regulator that they allowed this demonstration to occur." Goldfinger is calling for the elimination of the minor injury guideline altogether. Singer agrees. "The amount of $3,500 is woefully insufficient for the vast majority of accident victims. Payment should be based on need, not a formal framework that pegs people into a certain category. Eliminating it would be a positive step for most accident victims." LT Your Partners in Service® Since 1981 1.800.263.8537 www.henderson.ca endersonLT_Sep10_12.indd 1 12-09-05 3:21 PM Korbitec_LT_May6_13.indd 1 13-04-29 2:50 PM Widely respected by the legal profession, Singer Kwinter has obtained record-setting awards and achieved groundbreaking decisions that have changed the law in Canada. Firms that refer traumatic and complex personal injury matters to Singer Kwinter do so with confidence. They know their reputations will be enhanced and their valued relationships will be protected. Alfred M. Kwinter* *Certified by The Law Society as a Specialist in Civil Litigation William A. McMaster Jason F. Katz Ari J. Singer Shane H. Katz Jason D. Singer Veronica S. Marson REPRESENTING ACCIDENT VICTIMS SINCE 1974 | OUR CLIENTS PAY NO FEES UNTIL WE SETTLE OR WIN | REFFERAL FEES RESPECTED Top 5 AL PERSON RY INJU BOUTIQUES 2 20 11 -1 10 Top AL PERSON RY INJU UE BOUTIQ-1 4S 13 20 1033 Bay Street, Suite 214 Toronto, ON M5S 3A5 | 1 866 285 6927 | referrals@singerkwinter.com | singerkwinter.com SingerKwinter_LT_May6_13.indd 1 www.lawtimesnews.com 13-04-29 11:19 AM

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