Law Times

LaW TIMeS • OCTOBeR 19, 2015 Page 7 www.lawtimesnews.com COMMENT Recent auto insurance changes make system more complex L ast July, Law Times published an editorial cartoon depicting three insurance company executives sitting around a table with one suggesting, "Maybe we could sell our customers insurance against future cata- strophic accident benefits cuts!" I laughed at the cartoon, but what's happening to motor vehicle accident victims who suffer catastrophic impair- ments is no laughing matter. In late August, the Ontario govern- ment issued a regulation that will revamp statutory accident benefits as of June 1, 2016. Among the many changes is the reduction of medical, rehabilitation, and attendant-care benefits to a maximum of $1 million from an aggregate ceiling of $2 million. Prior to June 1, 2016, victims suf- fering catastrophic injuries could get up to a maximum of $1 million for medical and rehabilitation benefits and an additional maximum of $1 million for attendant- care benefits. The changes have combined the two and reduced them by 50 per cent. The reduction can only serve to add additional profits to the bottom line of insurance companies while potentially devastating accident victims. By cutting these benefits by 50 per cent, the government is effectively shifting the cost of care requirements to victims' fami- lies or taxpayer-funded programs from insurers. The other consequence will be enhanced claims in tort actions. It isn't as if insurers had to automatically write a cheque for $2 million to all victims suffering from catastrophic injuries. Payments were only for services that were rea- sonable and necessary. And it isn't as if most acci- dent victims qualify as having suffered catastrophic injuries. Less than one per cent of ac- cident victims suffer cata- strophic injuries. Those who suffer lesser injuries could re- ceive a maximum of $50,000 for medical and rehabilitation benefits and up to $36,000 for attendant-care ben- efits. The changes will also combine those benefits and reduce them to an aggregate of $65,000. None of these changes is evidence- based. The government hasn't established that the existing benefits are overly gener- ous or that accident victims don't require the current limits. There's no evidence to establish a need for lower benefits. Rather, the reductions appear arbitrary, almost as if the government chose the numbers at random. Anybody with even limited knowledge of the costs of providing atten- dant care to catastrophically injured vic- tims will know how expensive it is to pay for around-the-clock assistance. At the same time that the government is reducing benefits, it has also chosen to amend the definition of catastrophic impairment. The government has been under intense pressure by the insurance lobby to amend this definition, so the change isn't surprising. Evidence support- ing a need for the changes is lacking, however. The changes effectively overrule case law dealing with mental and behav- ioural disorders and com- bining physical and mental impairments. At the same time, they replace simple definitions with complex ones. For example, paraplegia or quad- riplegia will no longer qualify unless the injuries satisfy certain criteria. In addition, the changes replace the easy-to-administer Glasgow coma scale with other tests showing intracranial pathology. While the new tests may, in some cases, more accurately designate catastrophic impairment, they'll result in more uncertainty and litigation, none of which is in the interests of justice. The amendments to the catastrophic impairment definition follow a f lawed process. The changes f low from a re- port from the superintendent of finan- cial services that in turn followed rec- ommendations submitted by the cata- strophic impairment expert panel. According to Dr. Harold Becker, the person who chaired an advisory panel that wrote the catastrophic impairment assessment guidelines for designated assessment centres in 2001, "the majority of the panel 'experts' were not experts, in fact, in catastrophic impairment." In addition, several members of the ex- pert panel had ties to the insurance lobby or industry. So what we have is a government on summer recess making substantial changes to accident benefits via regula- tion without the benefit of any debate or any apparent reference to the two sets of public hearings on auto insurance held by standing committees of the legislative as- sembly of Ontario. The result of the changes is a di- minishment in accident benefits and increased complexity and difficulty in making a finding of catastrophic im- pairment. In its decision in Kusnierz v. Econom- ical Mutual Insurance Co., the Ontario Court of Appeal said the purpose of the catastrophic impairment definition is to ensure that "those with the greatest need for health care are able to recover the expenses of that health care." Any changes to either benefits or the definition of catastrophic impairment should satisfy that goal. Regrettably, the changes in the recent regulation do not. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Niqab became unexpected justice issue during election campaign Y ou can never tell ahead of time what's going to be an issue in an election campaign. Conservative Leader Stephen Harper's cam- paign wasn't going anywhere until he came up with an announcement that women would no longer be able to wear a facial cov- ering at citizenship ceremonies. Forget that only four women had done that last year. And forget that they went into a backroom with a female government offi- cial to slip off the covering brief ly to identify themselves. It became a key issue of the campaign. Forget about the Sen. Mike Duffy trial or any of the other Conservative party or prime minister's office staffers. The niqab was all the public could talk about. During the campaign, NDP Leader Thomas Mulcair went on the air defend- ing the right to wear the niqab on the basis of religious protection under the Charter of Rights and Freedoms and it cost him a lot of votes. It may have even cost him the election. Liberal Leader Justin Trudeau also weighed in. "We've got to stop this before someone truly gets hurt. We've had women attacked in the streets for wearing niqabs. This is not Canada," he told CBC Radio. "I don't think you use that kind of thing to discredit legitimate political debate," said Harper, whose cabinet ministers kept on talking about the "dangers to our security" of letting in certain people. We can figure out who they meant. One justice issue that usually came up in recent election campaigns was the idea that judges on the Supreme Court of Canada and the federal courts should be bilingual. We used to count on New Brunswick NDP MP Yvon Godin to bring up the issue every election, but he retired this year. Godin's law would have made compre- hension of both of Canada's official lan- guages an essential requirement to sit on either court. Finding a transla- tor and an interpreter would no longer be enough. The reasoning was that it's always better for those appear- ing before a court to know and understand what their lawyer is saying. It's even better if the judges know and understand what's going on as well. Godin based his bilingual judges law on the fact that Eng- lish and French are both official languages, both have equal standing in our highest courts, and service in both languages is available to all Canadians no matter which one they speak and understand. For Godin, the equality of both official languages is paramount to ensure unre- stricted access to justice. But Parliament defeated Godin's pro- posed law after every election over the past decade. The last time was in March 2011. The legislation passed the House of Com- mons, but Conservative senators blocked it until a general election could take place. It never became law. The Conservative justice minister at the time, Rob Nicholson, who happens to be a unilingual anglophone, once wrote a letter to a constituent saying that "merit" was more important than bilingualism in becoming a judge. Harper had no difficulty choosing two unilingual anglophone judges for the nine-member Supreme Court: Justice Michael Moldaver in 2011 and recently retired justice Marshall Rothstein five years earlier. While Godin's proposal never became law, there was one prominent justice issue in this election that could lead to a new federal law. Trudeau promised that if the Liber- als win the election, he would legalize marijuana. Canada ranks first among Organisation for Eco- nomic Co-operation and De- velopment countries in the use of marijuana. At first, Trudeau's promise hurt his standing in the polls, but then it gained support and the NDP sort of endorsed the idea. Harper, of course, has made it clear he's not going to legal- ize marijuana no matter what. It's "infinitely worse" than tobacco, he said. The Canadian Cancer Society says smoking tobacco claims about 37,000 lives a year in Canada. Most are from cancer, heart disease, stroke, and lung disease. Tim Stockwell, director of the Centre for Addictions Research of B.C., says no deaths have been directly attributed to marijuana use in Canada, but there may have been a few fatal auto crashes involv- ing people who had smoked the drug. That didn't stop the Conservatives from using the Trudeau pot promise in TV ads against him early in the campaign. They even had him passing it out to kids. But in recent weeks, the party has replaced the ad. Conservative ad masters have other justice issues to use against Trudeau. This election, robo calls weren't a big justice issue. After the 2011 campaign, they made the Conservatives look bad. In the aftermath, the court sentenced Conservative campaign worker Michael Sona to nine months in jail, but he only served two weeks after appealing the sever- ity of his sentence. The Crown prosecutor saw it differently and is instead demanding a stiffer sentence in order to dissuade organizers from doing the same thing in future elections. It's still early to tell, but as of last week, there had been no evidence of any similar voting fraud anywhere in Canada this elec- tion. Sometimes in our system of justice, it does work to send somebody to jail even if it's for two weeks. When the election campaign began, the big justice issue in Canada was the Duffy trial. Every day, hundreds of journalists and camera operators charged over to the court- house on Laurier Street in Ottawa. It was a major trial, and people were already saying it would force Harper and his Conservatives out of power. That's not what happened at all. The trial droned on for a couple of weeks. Duffy never got to testify. People began losing interest in it and then the judge an- nounced he had decided to adjourn the trial until some time in November. That's after the current election campaign. People stopped talking about it. The Liberals ran a couple of ads about cor- ruption in Conservative ranks but they didn't say much about the Senate payoff in Harper's office. Election campaigns are f luid. If some- thing is working, you keep using the issue and try to improve on it. When the niqab issue worked with great success in Quebec for Harper, he tried to hammer it home, announcing he'd exam- ine legislation to forbid federal public ser- vants from wearing any sort of facial cover- ing while on the job. Who knows how far this one will go? And just like other justice issues during an election campaign, sometimes they work and sometimes they don't. But after more than two months, we'll finally see the re- sults of the current campaign today. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux34@ gmail.com. The Hill Richard Cleroux Social Justice Alan Shanoff

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