Law Times

Page 12 OctOber 6, 2014 • Law Times www.lawtimesnews.com Auto-insurance reforms eliminating right to sue a major concern for ontario bar By marg. Bruineman For Law Times espite the death of On- tario's proposed auto insurance legislation following the dissolu- tion of the legislature last spring, major reforms are back on the table with the return of the Liberal government this summer. The government revived the legislation over the summer as the fighting fraud and reducing auto- mobile insurance rates act with a combination of two pieces of leg- islation. And with it, the concept of a new dispute resolution system has resurfaced to the dismay of many lawyers. "I think they dropped the ball at the five-yard line," says Patrick Brown, past president of the Ontario Trial Lawyers Association and a partner at McLeish Orlando LLP. He ap- plauds efforts to examine the idea of searching for efficiencies in an attempt to reduce insur- ance rates. Typically, he says, governments reduce benefits to get the premiums down. In- stead, former Superior Court associate chief justice Douglas Cunningham's report looked within the system for efficien- cies. The report's recommenda- tions led to the legislation. But while the proposed re- forms are an effort to speed up the system, lawyers say it falls short by removing the right to choose to go to court and separating disputed claims for benefits from tort pro- ceedings. That means a system of parallel litigation for those seek- ing to sue in addition to claiming accident benefits. "No one gets, on the major claims, . . . why they would force them in the new dispute reso- lution system to take away the right to sue," says Brown. "You do that and you're going to force more things to be litigated on two fronts." If parties could still bring the more significant accident- benefits cases in the court sys- tem along with the related tort action, there would still be efficiencies, he suggests. In addition to transforming Ontario's auto insurance dis- pute resolution system in order to speed up the process, the pro- posed legislation aims to fight fraud, reduce insurance rates, and regulate the towing and vehicle storage industries. And for the most part, says Eric Grossman of the organiza- tion Canadian Defence Law- yers, the changes are welcome. "I think that the legislation, overall, is exceedingly helpful and long overdue," he says. "This one provi- sion, this one change to eradicate the right to sue is the only thing there's great opposition to." Grossman says there's a rela- tionship between the accident- benefits claim and the tort action, which, if separated, can create all sorts of problems. In the end, he adds, it may cost insurers more. The new framework for the dispute resolution system sees it moving from the Financial Ser- vices Commission of Ontario to the Licence Appeal Tribunal. The move to an administrative tribunal was a key recommenda- tion aimed at helping resolve dis- putes faster by making the pro- cess more effective, efficient, and accessible for accident victims. Its intent is to expedite the reso- lution of disputes as well as reduce financial and administrative pres- sures. The idea of the transforma- tion is to reduce uncertainty, cre- ate long-term stability in claims costs, and provide claimants with faster access to the benefits they require. "Following an unsuccess- ful settlement meeting and the fil- ing of an arbitration application, the arbitrator would inform the parties whether the process will take the form of a paper review, an expedited in-person hearing or a full in-person hearing, depending on the nature of the dispute," says Ministry of Finance spokesman Marc Pichette. Changes based on Cunning- ham's recommendations include mediation services as part of a settlement meeting; creation of statutory timelines and sanctions regarding settlement meetings, arbitration hearings and the re- lease of arbitration decisions; and a streamlining of disputes. Jonathan Schrieder is looking for details on how the new tribu- nal will approach cases. "I am concerned about the process. One must be cautious about eliminating or drastically reducing the ability of the parties to present evidence, including live evidence. Live evidence is crucial to deciding these cases because of the almost singular importance of witness credibility," says Schrieder of Reisler Franklin LLP. But the fact the proposal re- moves an option is a concern, says Mark MacNeill, a partner at Brauti Thorning Zibarras LLP whose practice focuses on plaintiff 's personal injury litiga- tion. He's also skeptical of the move from the Financial Ser- vices Commission of Ontario to the Licence Appeal Tribunal. "This isn't simple stuff; this is complicated," says MacNeill of the issues the tribunal will face. "Lawyers are pretty universally unhappy with that. How is there going to be savings if you have two dispute mechanisms?" The hope, says Pichette, is that the new process will en- courage settlement of combined claims, thereby saving more court time. "Bill 15 does not prevent the parties from entering into ne- gotiations and reaching settle- ments on merged tort and acci- dent claims outside of court. A faster dispute resolution process for accident benefits as proposed by bill 15 may have the result of encouraging more out-of-court settlements, further decreasing delays and burden on the court system," says Pichette. LT FOCUS MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I www.mcleishorlando.com A Noticeable Difference ™ Proud Member Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? jÒSELECTEDÒBYÒPEERSÒFORÒINCLUSIONÒINÒ"ESTÒ,AWYERSÒINÒ#ANADA jÒRATEDÒÒOUTÒOFÒÒ!6Ò0REEMINENTÒÒ-ARTINDALEÒ(UBBELL jÒSELECTEDÒBYÒPEERSÒFORÒINCLUSIONÒINÒ,EXPERTÒ#ANADAgSÒ,EGALÒ,EXPERTÒ$IRECTORY jÒAÒ$IRECTORÒORÒ0ASTÒ0RESIDENTÒOFÒTHEÒ/NTARIOÒ4RIALÒ,AWYERSÒ!SSOCIATION jÒAÒ#ERTIFIEDÒ3PECIALISTÒINÒ#IVILÒ,ITIGATION Untitled-3 1 14-06-09 5:55 PM D 'I think they dropped the ball at the five- yard line,' says Patrick Brown.

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