Law Times

Law Times • February 2, 2015 Page 5 www.lawtimesnews.com Bill 15 fallout Toronto lawyer challenges elimination of right to sue By yamri Taddese Law Times Toronto personal injury law- yer is launching a constitu- tional challenge against Bill 15, saying the elimination of the right to sue an insurer for accident ben- efits through the Superior Court violates the Constitution. "Access to justice is fundamental to the rule of law and the provincial government cannot unilaterally deprive vulnerable in- sured individuals the right to access Supe- rior Courts," says Joseph Campisi, a lawyer at Campisi LLP who argues the legislation violates s. 96 of the Constitution that man- dates that the federal government appoint all judges of the Superior Court. Campisi argues the provincial govern- ment is trying to circumvent this require- ment by giving the Licence Appeal Tri- bunal the exclusive authority to rule on monetary disputes that could be worth millions of dollars. "Requiring all claimants to arbitrate their dispute, and not have access to the Superior Court, is equivocal to requir- ing all contractual disputes be settled in Small Claims Court regardless of the amount at stake," according to Campisi's application. "The legislation has the effect of deny- ing the physically and mentally disabled of the procedural safeguards that are available in the Superior Courts." In November, Queen's Park passed Bill 15, also known as the Fighting Fraud and Reducing Automobile Insurance Rates Act. Among other reforms aimed at speeding up the auto insurance dis- pute system, it elimi- nated the option of su- ing an insurer for acci- dent benefits through the court. Under the previous law, a benefits claim- ant whose case didn't settle at mediation could go to arbitration through the Financial Services Commission of Ontario or advance the claim in court. Now, disputes will go to arbitration at the Li- cence Appeal Tribunal. Campisi says there are also doubts about the competence and independence of the Licence Appeal Tribunal. Claimants "are being funnelled to this Licence Appeal Tribunal that has absolutely no experience dealing with auto insurance disputes," he says. "If you look them up, it's really inter- esting. They deal with issues like film classification, upholstered and stuffed goods. What do they know about acci- dent benefits?" The impartiality of tribunal adjudica- tors appointed for two-year terms is also a far cry from Superior Court judges who can stay on the bench until retirement, says Campisi. "The fear is that if the government doesn't like the deci- sions coming from these LAT tribunal members, they won't offer them any more work," he adds. "That goes right to the heart of the issue impartiality and neu- trality." Campisi is also marshalling a chal- lenge under the Char- ter of Rights and Free- doms against Bill 15. He says the bill "wid- ens the gap between the historically disad- vantaged group and the rest of society by depriving insureds the ability to pursue a claim in the Superior Court of Justice." Among other things, Campisi's ap- plication is seeking a declaration that the bill perpetuates disadvantages towards injured people on the basis of personal characteristics in a way that affects their access to justice. "While all individuals that have dis- putes with their insurer are affected by this legislation, the legislation has a dis- proportionate impact on the physically and mentally disabled, due to the mag- nitude of entitlement to benefits and the potential magnitude of disputes that arise," Campisi's application alleges. Bill 15 followed many of the recom- mendations of former Ontario Superior Court associate chief justice Douglas Cunningham on improving the dispute- resolution system. Lawyers have wel- comed some aspects of the changes, in- cluding the regulation of the towing and vehicle-storage industries. There are also practical concerns with eliminating the right to sue through the court, says lawyer David Levy of Howie Sacks & Henry LLP. "One of the reasons you would sue for accident benefits as opposed to going to arbitration is because you had overlap- ping claims with your tort case," he says. "In those situations, it's common prac- tice for lawyers to join those claims and bring them all together. What it allowed was not only avoid any inconsistent re- sults where the arbitrator could make one finding and the court could find an- other, but there was a real practicality to it. You had all the relevant parties dealing with the claim at the same time dealing through the same stages." Addressing the claims through differ- ent forums may in fact work against the efficiencies the government is seeking through the legislative changes, accord- ing to Levy. Campisi says the changes in Bill 15 ap- pear to be a way to make things easier for insurance companies. "You have to ques- tion, you have to wonder if this change is really directed at eliminating a thorn in the insurance company's side," he says. LT NEWS Untitled-2 1 2015-01-06 8:56 AM A 'One of the reasons you would sue for accident benefits as opposed to going to arbitration is because you had overlapping claims with your tort case,' says David Levy.

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