Law Times

PAGE 18 FOCUS 'Glimmer of hope' lies in Alberta Bumps and roadblocks in auto insurance cases S BY GRETCHEN DRUMMIE Law Times in this province it's at the point that only the most serious get access to justice, says a Toronto lawyer who works in the field. However, a recent decision in o many "roadblocks" have been thrown up in cases in- volving auto accident injuries Alberta and the possibility of a similar challenge in this province provide a "glimmer of hope" to innocent accident victims. But, short of that, the only other so- lution is legislative reform, says Zoran Samac of McPhadden Sa- mac Merner Barry. "I certainly think that timely injury lawyers is the recent Alberta decision Morrow v. Zhang that struck down as unconstitutional a $4,000 cap on auto insurance pay- out for soft-tissue damage claims introduced in 2004. Ontario's system has a long A hot topic among personal history: the province is operating under the third of three no-fault systems, says Samac. The Liber- als created one in 1990, the NDP came up with one in 1993, and the Conservatives brought in the third, and last — although it's undergone changes — in 1996. Samac says the whole idea be- hind the no-fault regime was to save the insurance industry from being "nickeled and dimed" by minor personal injury cases, like whiplashes. By removing the right to sue, in all but the most serious injury cases, premiums would be stabilized. Failing this, warned the insurance industry, premiums would escalate. In the current regime, a per- and appropriate amendments to the Insurance Act would be very helpful," says Samac. son injured in a car accident must meet a verbal threshold by establishing, through medical evidence, that his or her injury constitutes a permanent and se- rious impairment. "That's roadblock number one," says Samac. Once the verbal threshold is met, that is not the end of it, says Samac. A second road- block is thrown up whereby the accident victim is faced with a monetary deductible appli- cable to damages for pain and suffering. That deductible was $15,000 until 2003 when it was doubled to $30,000 for injuries assessed below $100,000. Samac says lawyers now spend a lot of time turning away people rather than taking on new cases, which never used to be the case. "Unless the injuries are cata- strophic and/or there are real issues involving past and future economic loss, most lawyers are loath to take on these cases," he says. He adds that the law "is particu- Halpern told Law Times in February the decision could mean changes to the system in this province. "Our position is, if the Alber- ta cap is unconstitutional, then there are provisions in the In- surance Act in Ontario that are unconstitutional under the same reasoning," said Halpern. Even though the no-fault 'I certainly think that timely and appropriate amendments to the Insurance Act would be very helpful,' says Zoran Samac. larly tough on those who are not in the workforce; namely, the young and the elderly." Enter Morrow. "There is a lot of talk that a similar challenge will be launched in Ontario," says Sa- mac. "Many lawyers feel that the deductible is particularly iniqui- tous in that, during its tenure, in- surance companies have continued to profit while less and less victims have been compensated." In fact, Ontario Trial Lawyers' Association President Richard efits scheme is governed by the Statutory Accident Benefits Schedule enacted pursuant to the Insurance Act. Specifically, the act states that every motor vehicle liability policy in On- tario shall be deemed to provide for the statutory accident benefits set out in the schedule. regimes in Ontario, including the present one, have afforded much more in the way of "no- fault benefits" to car accident victims, the process is compli- cated for the average person and constantly gets bogged down in the completion and exchange of OCF forms. The present no-fault ben- ment, medical and rehabilita- tion expenses, attendant care expenses, and so on. The idea, indeed a "good and APRIL 28, 2008 / LAW TIMES noble" one, is to take care of the accident victim's needs "now or very soon," says Samac, "not two years from now when the case might settle." That is good in theory but what about in practice? Samac says the current no- fault scheme is much more com- plicated and cumbersome than under the initial Ontario no-fault system (1990-1993). "In the context of no-fault claims, one can certainly under- stand the frustration felt by ac- cident victims, particularly those who engage in the process un- represented," says Samac, adding "most adjusters who handle no- fault claims are equally frustrated by the daily challenge of simply keeping up with the phone calls and paperwork." He says what is required is What this means for the in- nocent victim injured in a motor vehicle accident is that, in addi- tion to the possible right to sue the at-fault driver for damages, he or she will also have the right to claim accident benefits from his or her own insurer for such things, including but certainly not limited to, income replace- "commitment and courage by the provincial government to se- riously and comprehensively look at the fault and no-fault schemes in Ontario as the 20th anniver- sary of the first such system in the province approaches." 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