Law Times

Law Times • may 5, 2014 Page 9 www.lawtimesnews.com he personal injury bar and the insurance in- dustry have now had time to consider the recommendations in the report by former Superior Court asso- ciate chief justice Douglas Cun- ningham that will relocate and reshape the auto insurance dis- pute resolution system. e February report not only recommended removing the dispute resolution function outside of the Financial Services Commission of Ontario to an administrative tribunal but also flagged a more streamlined ap- proach. While mediation is to remain mandatory, Cunning- ham recommended combining it with the pre-arbitration meet- ing. is proposal has generally met with a favourable response. Personal injury lawyer Charles Gluckstein, president of the Ontario Trial Lawyers Asso- ciation, believes arbitrators will be able to tackle combined me- diation and arbitration proceed- ings through their experience with the settlement function at the pre-arbitration meeting and will probably be more successful because of the stage the case has reached. "Mediation occurs ear- ly in the dispute. It is done over the phone and the success rate is low. It makes perfect sense to eliminate the mediation." Ralph Palumbo, vice presi- dent of the Insurance Bureau of Canada in Ontario, thinks the suggestion is in the spirit of try- ing to streamline the process. "It's not a bad idea. At a settle- ment meeting, at some point the arbitrator is going to say, 'My view is X.' It may spur a party to more readily settle. e parties come to the meeting better pre- pared and will need to disclose the evidence they are going to rely on. at doesn't necessarily happen today." e suggestion for shorter timelines, although seen as praiseworthy, has received a dif- ferent response. "Good luck with that," says Palumbo. "ere isn't anyone who doesn't like that so long as the process remains rigorous and the claimant and insurer have the opportunity to present their case. But given the way these matters have typically gone, it's fairly ambitious to think you can wrap it all up in six months." He refers to the current back- log of 16,000 cases. "at's a lot of decisions that have to be written. I'm very concerned that we're setting ourselves up for failure." "e timelines are really am- bitious," says Mark MacNeill of Brauti orning Zibarras LLP in Toronto. "Six months from start to fin- ish is something everyone wants, but we will need a serious input of resources to achieve it. Trying to herd lawyers like herding cattle is really unrealistic, especially if they are busy." Mike Smitiuch of Smitiuch Injury Law PC worries the pro- posal is too strict and inflexible, particularly for complex cases. "For the easier cases, it's great. If extensions are possible, it re- mains to be seen what the ex- ceptions are and whether every second person will be asking for one." Another controversial pro- posal is that parties should conduct disputes concerning a minor injury classification or in- volving $10,000 or less of medi- cal and rehabilitation benefits via paper review. "We are very concerned about that," says Palumbo. "It really does take away the ability of the parties to fully present their case. ere are lots of decisions where credibility is very much an issue. You need to see the expert and the claimant and carefully listen to what the insurer is saying. ere need to be full oral hearings for certain claims, but that can be equally true for a small claim under $10,000." Smitiuch also has concerns about the proposal. "Sometimes you need to get it from the horse's mouth to assess credibility. It's almost always beneficial for the arbitrator to get a full sense of the situation. is is removing the human element." MacNeill believes that's par- ticularly important when deal- ing with so-tissue injuries for which there's no objective test. "e FSCO arbitrators' submis- sion highlighted that medical evidence is really not all that helpful. ey can see a witness who is believable, credible, and likeable and the people who knew them before and aer the accident. None of that will come through on a paper review." Another proposal that has alarm bells ringing in some quarters is the elimination of the option of initiating court proceedings instead of arbitra- tion. Gluckstein notes this is the greatest concern for the OTLA and its membership. "We have to keep the insur- ance companies in check. If they are pigeonholed through a closed-circuit process that has no ability to enforce punitive damages or comment on the be- haviour of insurance companies the way courts can, the insurers can go without questioning." He also considers it a waste of resources for those who don't live in Toronto and others who have an accident case in court and an accident-benefit case. "At pres- ent, claimants can choose to join the proceedings. It will be costly for litigants and the defence to have two different forums and there will be less chance of settle- ment. In a forced 60-day turn- around with a fast track for arbi- tration, parties will no longer be able to wait for a global meeting — a one-day settlement meeting that resolves the matter on a full and final basis." But Smitiuch applauds the stipulation that an expert's duty is to the tribunal. "ey've al- ready done it with the courts. Experts need to be balanced, fair, and impartial. Any time you have to put that on paper, it drives the point home." MacNeill is curious as to how the two-year prohibition on set- tlement will play out. He fears it will increase transaction costs. "With the backlog, many things settle aer a year because they can." He also has concerns with the requirement to address all outstanding issues in order to proceed to settlement. "at's why the courts back up, because of the vast discovery process. Proceedings get bogged down when we need every last piece of paper." LT New dispute resolution system proposals under scrutiny FOCUS CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com McKellar introduced the concept of structured settlements in Canada in 1979. With almost 40 people at your disposal, we continue to set the standard today, providing safe, reliable, tax-free investment options for injured parties, while lowering claims costs. Billions of dollars invested, not a penny lost. The McKellar Structured Settlement ™ Untitled-1 1 14-03-24 7:06 PM BY JUDY VAN RHIJN For Law Times T

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