Law Times

Law Times • January 13, 2014 Page 7 COMMENT Fix system by addressing root causes of insurance disputes L ast summer, Ontario Finance Minister Charles Sousa appointed former Superior Court associate chief justice Douglas Cunningham to conduct a review of Ontario's auto insurance dispute resolution system. Cunningham delivered his interim report late last year and a final report is due in February. The interim report states the obvious when it concludes that "it takes too long to resolve disputes," but Cunningham understands that obtaining funding to pay for treatment has become a challenge as claimants' lives "can be put on hold for years" waiting for resolution of their claims. He's sympathetic to the plight of accident victims when he warns insurance companies that disputes and settlements "need to be focused on getting claimants timely access to necessary treatment and assessments." Cunningham has proposed a solution to the delay problem involving a process that takes up to six months. "Cases would follow a different stream based on the benefits in dispute and the complexity of the issues involved. Ensuring access to timely and necessary treatment would be benefits to boost their bottom a first principle." lines? While a six-month timeSocial Determining the truth won't line sounds inviting, shouldn't Justice be easy but it's essential that we we first attempt to determine ascertain the root causes of why we have such a high volthe proliferation of disputes. ume of disputes before we Doing so will require drilling change the process? Put difdown into specific disputes to ferently, perhaps it isn't the ascertain why they arose and dispute resolution system that how the parties could have requires a review and an overavoided them. haul but rather the high numWe need to review not only ber of disputes that requires Alan Shanoff arbitration decisions from an examination. How is it possible that, with approxi- the Financial Services Commission of mately 60,000 injuries attributed to mo- Ontario but also files settled prior to artor vehicle accidents each year, we gener- bitration to determine the root causes ated an average of 30,606 mediation ap- of the disputes. A review of FSCO arbiplications per year in the last three fiscal tration decisions provides a clue to one years? In addition, there were 23,521 auto reason for the high number of disputes. insurance-related lawsuits filed in Ontario A recurrent theme in many decisions relates to the independent medical excourts in 2012. Each mediation request represents a aminations conducted on behalf of indispute and approximately 45 per cent of surers. Too many experts retained by the mediations relate to requests for medi- insurers to conduct these examinations cal treatment. Are claimants abusing the seem to wear an adversarial hat. Some system by seeking unnecessary treatments provide opinions outside their sphere or accessing benefits to which they aren't of expertise. Some appear to have little entitled or are insurers using tactics to sys- or no expertise in the treatment of the tematically deny and delay treatment and specific disorder. Many appear to lack impartiality. Some specialize in providing opinions to insurers rather than practising medicine. They earn a significant portion of their income from providing opinions to insurers. Whether consciously or not, they provide the opinions desired by their paymasters and that serves to increase the number of disputes and delay their resolution. Ensuring insurers obtain quality impartial independent medical examinations should lower the number of disputes. It's not the only thing we need to consider, but dealing with this chronic problem should be high on the list of potential solutions to the proliferation of accident benefits disputes. Reforming the accident benefits dispute resolution system without first fixing the root causes of such disputes will only serve to create additional problems that no doubt will require further study in another review. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Does workers' compensation undermine other civil remedies? BY DAVID HARRIS & KEN ALEXANDER For Law Times C Generally, human rights legislation is considered quasi-constitutional and, as such, supersedes any conflicting statute unless specifically stated to the contrary in the human rights enabling legislation. Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, that are not available through a workers' compensation claim. Does this then mean that civil actions would not be allowed in such circumstances while a human rights complaint would be? As difficult as it may be to contemplate that such may be the result of judicial amendments to the workers' compensation regime, there is considerable risk that such a conclusion may indeed follow and perhaps even have an impact on the human rights remedy itself. In its 1996 decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., the Supreme Court of Canada considered a similar issue. The plaintiff had commenced a civil action against the alleged harasser and her employer based on improper sexual advances. She had also filed and received compensation under the Quebec workers compensation legislation with the Commission de la santé et de la sécurité du travail for an employment injury. The employer argued that due to waiver of civil remedy under this legislation, she was barred from civil action. The plaintiff 's remedy in the civil claim was based on the Quebec Charter of Human Rights and Freedoms that provided for an award of exemplary damages. Then-Supreme Court justice Charles Gonthier, writing for the majority, determined that there was no remedy under the Charter given the one available under the workers' compensation statute. Ontario's legislation offers remedies not contemplated by the workers' compensation process, including reinstatement and, perhaps more importantly, a public interest perspective. It is difficult to contemplate that the human rights remedy may be dramatically undone for those employed in an industrial work environment or otherwise covered by workers' compensation legislation by a judicial or other reworking of workers' compensation remedies, but clearly the argument remains given the current state of the law. LT u SPEAKER'S CORNER an there be a Workers' Compensation Act defence to civil claims in employment law? In the March 2013 decision of Ashraf v. SNC Lavalin ATP Inc., Master Keith Laycock of the Court of Queen's Bench in Alberta considered a motion brought by the employer to dismiss the civil action brought by the plaintiff alleging bullying by his co-workers. The plaintiff sued for damages for mental anguish without asserting a constructive dismissal claim. He remained an employee and was in receipt of disability insurance benefits. The employer based its motion on the proposition that the Workers' Compensation Act applied and hence no civil action was possible against it. The plaintiff based his civil claim on intentional and wilful wrongdoing by the employer. The court noted s. 21 of the act that denied the right to sue where its provisions cover an employee. In turn, the act also defined "accident" in a manner, as noted by the master, that is contrary to its common meaning as the defined term included a "willful and intentional act" and "disablement." This wording is typical of most similar provincial statutes, including Ontario's. The decision does note that not all provinces allow for workers' compensation claims based purely on psychological stress. Alberta, however, does allow for such claims. The motion succeeded as the court dismissed the claim. On appeal, the court considered and allowed the plaintiff 's motion to amend the action by supplementing a claim of constructive dismissal. In November 2013, Court of Queen's Bench Justice Bryan Mahoney dismissed the amended claim. This included the constructive dismissal allegation as it was founded on the same facts that allowed for a worker's compensation claim. The consequences of the decision may be dramatic. Decisions such as the Ontario Court of Appeal's ruling in Prinzo v. Baycrest Centre for Geriatric Care and indeed the moral or aggravated damage claim as set out by the Supreme Court of Canada in Honda Canada Inc. v. Keays may be relegated to history where the act covers the employee. Ontario's statute presently allows claims for psychological stress only where there has been an acute reaction to a sudden and unexpected traumatic event. This entitlement has been further refined by a guidance statement known as Policy Document 1503-02 that acknowledges that persistent harassment will be covered where the most recent event has led to an acute psychological reaction. Further, a civil claim based on harassment, including sexual harassment, may arguably be caught by the act and the plaintiff may be denied the right to sue the employer and fellow employees where the legislation applies. There have, however, been challenges to various provincial laws. The Nova Scotia legislation that prevented claims based on chronic pain was determined to be contrary to the Charter of Rights and Freedoms in the 2003 Supreme Court of Canada decision in Nova Scotia (Workers' Compensation Board) v. Martin. A similar argument arose in Plesner v. British Columbia Hydro and Power Authority before the British Columbia Court of Appeal in 2009. The British Columbia legislation then contained words that were similar to the Ontario statute that limited the right of the claimant to benefits for mental distress due to a severe reaction to a sudden and unexpected event. The typical example is a situation in which a worker witnesses a colleague falling down an elevator shaft to his death. The majority of the court determined the legislation to be contrary to the Charter and of no force and effect. British Columbia passed amending legislation effective July 1, 2012, to allow for worker's compensation claims due to a mental disorder that arises from a reaction to traumatic events in the employment relationship or bullying or harassment at work. A similar challenge is underway in Ontario before the Workplace Safety & Insurance Board. The employee has also launched a human rights complaint. Given the precedent cases, it is a serious possibility the Ontario legislation will be determined to be contrary to the Charter and hence will then allow claimants with work-related mental distress claims an entitlement to workers' compensation benefits that would deprive them of civil claims for emotional distress due to work-related trauma. There remains a further argument that the workers' compensation statutes may deprive the relevant human rights commission of jurisdiction to award damages. www.lawtimesnews.com Ken Alexander is a Toronto employment lawyer. He and David Harris, a former lawyer, are authors of the upcoming book Disability Issues in Employment Law.

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