Law Times

Page 12 OctOber 17, 2016 • Law times www.lawtimesnews.com Tribunal suffering from growing pains, say lawyers BY JUDY VAN RHIJN For Law Times A fter launching earlier this year, the License Appeal Tribunal has been providing the province's drivers with an acci- dent benefits dispute resolution system. However, lawyers comparing the experience with their previ- ous cases at the Financial Servi- ces Commission of Ontario are saying there is more pain than pleasure. As of April 2016, the LAT — which is part of the Safety, Li- censing Appeals and Standards Tribunals Ontario — handles dispute resolution services re- lated to auto insurance. "From my perspective, it's a combination of good things overall and the 'growing pains' side," says Philippa Samworth of insurance defence firm Dutton Brock LLP. Samworth says issues that exist with the new tribunal in- clude a refusal to accommodate counsel's time and making in- appropriate directions for hear- ings. "My concern is that at the case conference the adjudicator gives incredibly difficult in- structions about how the case is to be done. "I was given 30 minutes to cross-examine a doctor by phone in a CAT [catastrophic impairment] case, and in an- other, I got 1.5 days for a CAT trial," she says. Samworth also laments that there is no avenue for complaints. She finds this particularly frustrating because LAT rules can be changed internally. "You don't need a trip to the legislature. Some of these prob- lems are going to explode," she says. "We need a way for stake- holders to work with the LAT or there will be unnecessary appeals." However, Samworth ap- plauds the tribunal for helping create time savings and cost efficiencies through its enforce- ment of strict timelines. "We need a system that moves insured claims through quickly. Cases are coming up faster and we get to the case conference faster, where we are pressured to settle," she says. "It's the number one reason for being there. If we can't set- tle, we get a hearing a couple months later. "It certainly costs less. From the time we open the file, give an opinion, attend a case con- ference and have an arbitration, it takes six months." Ryan Murray, partner at Oatley Vigmond LLP, says the new tribunal system slows down lawyers from applying in the first place. For example, he says he has yet to complete the entire arbi- tration process because of the extensive preparation required before an application to dispute a denial of a claim is even filed. "Generally, in my experience, plaintiffs' lawyers are making sure that they have got all of their expert reports ready before they even apply. When you filed a matter at FSCO, it would take years. You could build up a case while you waited," he says. "With the tight time frames at the LAT, you have to have all of your evidence ready be- fore you even file. That's why, even though the process is six months old, many plaintiffs' lawyers don't have much experi- ence with the LAT." Murray has observed that many lawyers are gun-shy about filing applications with the tri- bunal at all. "Anecdotally, people appear to be applying less often. Pre- viously, we would file multiple arbitrations and later consoli- date them into one," he says. "Now you pay a $100 fee every time, and you have a deci- sion on the first one before the others are ready to proceed to arbitration. Lawyers are making sure there is a sufficient volume of benefits and a sufficient dollar figure in dispute before they file. I'm concerned that people aren't applying when they would have before." Kaitlin Troisi, a spokes- woman for Safety, Licensing Appeals and Standards Tribu- nals Ontario, said in an email statement, "The transfer of the automobile insurance dispute resolution system from the reg- ulator to an independent tribu- nal is a significant change for all parties. "In response to concerns raised about automobile acci- dent benefits process within the Financial Services Commission of Ontario (FSCO), an indepen- dent review was conducted un- der the direction of the Ministry of Finance," said the statement. "A number of changes were recommended to improve the outcomes, including separating the regulatory and adjudicative functions within FSCO and sig- nificantly shortening timelines to ensure claimants can access the benefits they require and are entitled to, sooner." In the statement, Troisi noted that before AABS launched, the LAT "held various public infor- mation sessions that provided the context for the transfer and outlined the tight timelines and case conference/hearing process for applications to AABS. "AABS is now in an imple- mentation phase and over the next 18-24 months will con- tinue to improve the efficiency and effectiveness of the system by focusing on initiatives such as e-filing," said the statement. "LAT will continue to take into consideration the feedback received from parties to ensure greater access to justice for those appearing before the Tribunal." Troisi also said in the state- ment: "The regulatory role of the FSCO and the policy role of the Ministry of Finance remains unchanged, as do the access points for stakeholders." Brian Goldfinger, owner of Goldfinger Personal Injury Law of Toronto, has had several ex- periences with the LAT system and describes it as "absolutely dreadful." Goldfinger's first complaint came at the scheduling stage where the LAT unilaterally as- signed a hearing date and re- fused what he considered were reasonable requests for an ad- journment. "The LAT assigns a hearing date unilaterally. If you then wish to adjourn, it is a big has- sle," he says. Goldfinger says he met with inf lexibility regarding one of his client's appearances. In that case, the client was not fit to at- tend the full case conference. "The form sent out said the applicant 'and/or' their repre- sentative must be in attendance, yet the adjudicator was very aggressive and adamant that he must be in attendance," says Goldfinger. "I warned him that the client suffers from post-traumatic stress disorder and suggested he be available over the phone when needed, but the adjudi- cator insisted that he be there for the whole thing. He was ag- gressive and harsh and made my client cry on multiple occa- sions." Goldfinger has had some cli- ents who had experience with the FSCO system, and he says they preferred it. "They are asking what hap- pened to mediation," he says. "They said the LAT system was longer and more painful and for zero results." LT Philippa Samworth says there are issues with the License Appeal Tribunal, includ- ing a refusal to accommodate counsel's time and making inappropriate directions for hearings. 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