Law Times

Page 12 January 12, 2015 • Law Times www.lawtimesnews.com Few details on new dispute resolution system Auto insurance bill passes but no sign of transition to Licence Appeal Tribunal By JuDy vAN rhiJN For Law Times ith the passing of the Fighting Fraud and Reducing Au- tomobile Insur- ance Rates Act on Nov. 20, the lobbying is over and the transi- tion period begins. The transfer of staff and cases to the relatively small Licence Appeal Tribunal will be a significant task that will likely take some time to achieve. The hope is that however long the transition takes, the final result will be a speedier dispute resolution system. What seemed like a good idea in theory — the transfer of the dispute resolution system out from under the regulatory umbrella of the Financial Ser- vices Commission of Ontario to an independent adjudicative body — won't be an easy task in practice. The Ministry of the Attorney General will handle the task in co-operation with the Ministry of Finance, FSCO, and the Safety, Licensing Ap- peals, and Standards Tribunals Ontario, which is the cluster the Licence Appeal Tribunal be- came a part of in April 2013. Its fellow tribunals in the cluster are the Animal Care Review Board, the Fire Safety Commission, the Ontario Civilian Police Com- mission, and the Ontario Parole Board. None of them compares to the leviathan that the FSCO dispute resolution system has become in recent years. The government chose the Li- cence Appeal Tribunal because it believes its adjudicators, rules, procedures, and jurisdiction align with many of the recom- mendations from former justice Douglas Cunningham's review of the dispute resolution sys- tem. Yet its current workload is about 700 appeals a year and its responsibilities range from liquor licences to medical suspensions of driver's licences, motor vehicle impoundment, motor vehicle dealers, and disputes under the Ontario New Home Warranties Plan Act. Statistics show it does cope with its workload in an ef- ficient way, completing roughly the same number of appeals it opens each year. It maintains a 30-day standard for hearing ap- peals from the date of receipt of a complete file and 60 days in cases with a mandated prehearing. It achieves these standards almost 100 per cent of the time. By com- parison, FSCO deals with more than 10,000 applications per year and has a backlog of more than 15,000 arbitration cases. All of them deal with complex medical and legal issues. The Ministry of Finance is candid about the fact the gov- ernment has yet to make deci- sions about the details of the new sy stem . It has yet to develop a transition strategy that will allow for a smooth and efficient trans- fer between the existing system at FSCO and the new one at the Licence Appeal Tribunal. Robert Deutschmann of Pa- quette Travers & Deutschmann in Kitchener, Ont., isn't surprised the transition has yet to proceed. "It is an enormous undertaking," he says. His hope is that what looks like a slow transition will result in a very speedy and efficient dispute resolution system. "The problem at the moment is that the system drags on. We do not have quick resolutions. We need a faster dispute resolution pro- cess, and the sooner the better." He believes everyone from insurance providers to plaintiff and defence lawyers all want an efficient dispute resolution sys- tem. "A dispute can drag out for a year or two. Something like a treatment plan for physiotherapy can take two years. At that point, you are wondering if it is even worth pursuing." For those who are looking forward to the change, the light at the end of the tunnel is yet to become visible. Those who have more reservations than hopes can relax and enjoy the knowl- edge and experience of the FSCO mediators and arbitrators for the foreseeable future. One of the main concerns practitioners have been articulating in recent submissions and reports is the potential loss of that expertise in the transition. The Ministry of Finance was unable to answer any questions about the role of the current arbitrators and me- diators under the new system. What lawyers do know is they're now stuck with a dra- matic reduction in prejudgment interest rates and they've lost the option to pursue a matter through the courts. Both the plaintiff and defence bars have voiced strong objections to the removal of the right to sue but to no avail. Many believe it will lead to split trials and will effectively eliminate the ability to rely on case law for interpretation. But that's not a worry for Deutschmann. "At the end of the day, most disputes with acci- dent benefit insurers take place at FSCO. There is still a huge amount of case law from FSCO. The courts will often acknowl- edge that the FSCO arbitrators have specialized knowledge and expertise and are applying the rules correctly. Oftentimes, the court will defer to the ex- perts there. There is not a lot of case law through the courts and there are still lots of decisions through FSCO." LT FOCUS CANADA LAW BOOK ® Now you can rely on expert commentary, analysis and guidance from two of the foremost Canadian class-action jurists, a leading academic in the field and a legal officer of the Court of Appeal for Ontario. Turn to The Law of Class Actions in Canada for a comprehensive multi-jurisdictional perspective on class-action litigation. You'll save time with convenient access to all the relevant legal principles and case law at your fingertips. 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It is simply not acceptable either to the driv- ing public or the law for different driver behaviour to be expected in different parts of the province. It is reasonable for a municipality to expect that drivers will com- ply with the Highway Traffic Act when it maintains its roads. This goes hand in glove with the duty of care owed to a reasonable driv- er, not a negligent driver." The other important part of the judgment is a four-step proce- dure that trial judges are to follow in determining liability. "We have been given a road map for how to go about analyzing these cases," says Boggs. "That will be a very helpful guideline for trial judges going forward. It is a very welcome de- velopment for municipalities." LT W Continued from page 9 Municipal liability

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