Law Times

Page 12 SePtember 8, 2014 • Law Times www.lawtimesnews.com Bill 15 to further curtail right to sue OTLA concerned, but government says system will be more efficient By glenn Kauth Law Times hile MPPs recon- vened in July in large part to pass the provincial budget, the government also re- introduced legislation that will bring in significant new reforms to auto insurance. In July, Finance Minister Charles Sousa introduced bill 15, the fighting fraud and reduc- ing automobile insurance rates act. It's a combination of two pieces of legislation that died on the order paper when Premier Kathleen Wynne called the election in May. Among other things, the bill aims to reform the auto insur- ance dispute-resolution system by introducing administrative changes aimed at speeding it up. It follows the recommendations of former Ontario Superior Court associate chief justice Douglas Cunningham on im- proving the system in his final report this year. While the legislation in- cludes changes many people would support, such as regu- lating the towing and vehicle- storage industries, it also adopts Cunningham's recommenda- tion to eliminate the right to sue an insurer for accident benefits through the court. Currently, a benefits claimant whose case doesn't settle at mediation has the option of going to arbitra- tion through the Financial Ser- vices Commission of Ontario or advancing the claim in court. Under the new plan, disputes would go to arbitration at the Licence Appeal Tribunal. Steve Rastin, president of the Ontario Trial Lawyers As- sociation, has concerns about that aspect of bill 15. "The pro- posed legislation would take away that choice," says Rastin of the current options available to claimants. He says "filing in the courts a lot of times made a lot of sense" because claimants could combine the statutory ac- cident benefits schedule com- ponent against their insurer with any tort action against the allegedly negligent other driver involved in the accident. "The big challenge we're go- ing to face is the interface be- tween the two systems," says Rastin, who argues it's often dif- ficult to deal with the accident- benefits and negligence issues in isolation given that the resolu- tion of one can affect the other, including when it comes to the amount of damages awarded. "In our view, if you're looking at the efficiency of the system, you also run the risk of arriving at different answers," he adds, suggesting the various proceed- ings might result in conf licting results. As a result, he says the new system may make it more difficult to arrive at a settlement. "What it would mean in many cases is we're going to have to start parallel proceedings," he says. "In our view, it's going to put added pressure on the system." The government, however, has another view. In response to the concerns raised, Ministry of Fi- nance spokesman Scott Blodgett noted the aim is to resolve cases faster by adopting strict time- lines for handling matters at the Licence Appeal Tribunal as rec- ommended by Cunningham in his final report this year. "This timeline is significantly faster than pursuing a claim through the court system, where trial dates book several years in advance," said Blodgett, who noted the goal is to resolve even the most compli- cated matters in months. In his final report this year, Cunningham laid out a frame- work that would envision a process taking no more than six months from start to finish. After a benefit denial, every in- surance company would have to establish a formal internal review process with a 30-day window. If the parties can't resolve the dis- pute, the claimant could file an application to the new dispute- resolution body. Once everything was in order, mediation would take place within 45 days. If they don't settle, the arbitrator would immediately schedule a hearing. Options would include a paper review or an expedited or full in- person hearing. Paper reviews would take place within 60 days of the mediation and in-person hearings would happen within 90 days. According to Cunningham, the timeline for decisions would be 30 days for paper reviews and 45 days for an in-person hearing. The Divisional Court would hear appeals of those decisions, according to Blodgett, who not- ed the downsides of the current system of combining accident- benefits and negligence claims against the other driver in court. "If claimants merge their claims together, they may be required to wait years for a court date to resolve their dispute about ac- cident benefits. A longer court process would not help the more immediate needs of accident victims in getting medical, reha- bilitation, and income replace- ment benefits paid sooner." Contrary to Rastin's sugges- tion, Blodgett also said the new system might encourage faster settlements of all of the claims. "A faster dispute-resolution process for accident benefits as proposed may have the result of encouraging more out-of-court settlements, further decreasing delays, legal costs, and burden on the court system." In his final report, Cun- ningham also responded to the concerns about eliminating the right to sue for accident-benefits claims. "The proposed model would provide excellent access to justice and I see no reason to BRIEF: PERSONAL INJURY LAW What do your clients need? The means to move on. 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