Law Times

Law Times • January 16, 2017 Page 9 www.lawtimesnews.com Lack of costs awards limits access to justice, says lawyer Licence Appeals Tribunal simplified but skewed? BY MARG. BRUINEMAN For Law Times E ven as Ontario's Li- cence Appeals Tribunal has proven to offer the speedy resolutions it had promised, lawyers say they have concerns the lack of cost awards limits access to justice and threatens to skew decisions in favour of insurance companies. The Auto Insurance Dispute Resolution System was trans- ferred to the LAT from the Fi- nancial Services Commission of Ontario in April 2016 to quickly resolve accident benefits dis- agreements between individuals and insurance companies. The new process is stripped down and simplified. Toronto personal injury law- yer Charles Gluckstein says the process is now so fast he makes sure that all his documentation and research is completed prior to filing an application with the LAT, so all his evidence is in place beforehand. "You don't want to start this process unless you are ready to go," says Gluckstein. "Because of the delays in the old system, the knee-jerk reaction of a prac- tising personal injury lawyer was simply to get the process started, and [to] figure it out as [they went] along." That's now changed, says Gluckstein. But the promise of a speedy resolution doesn't do an acci- dent victim any good if they are unable to get before the LAT to make their claim, says Toronto personal injury lawyer David Preszler. The LAT's Rules of Practice indicate that costs can only be awarded if the other party acts "unreasonably, frivolously, vex- atiously, or in bad faith." So only in rare occurrences will either party be granted le- gal costs. "Any legal expenses that are incurred are basically borne by both of the parties," says Preszler. "Essentially, it's a huge dis- incentive to [dispute] anything, especially when the amounts of money are minor, and typi- cally, most treatment plans that are denied, we're talking about $2,000. So to spend $20,000 worth of time on $2,000 worth of treatment makes no sense. "So what happens is access to justice is actually not achieved." This is complicated by the fact that the right to sue has been removed through the new process, Preszler says, and that there is now a $100 dispute ap- plication cost. He also says the process now relies heavily upon written submissions, which pre- vent cross-examination. "It appears to be essentially a scheme by the Liberal govern- ment to prevent access to justice by normal everyday people be- cause of the cost limitations," he says. The tribunal is not bound by previous decisions, he also notes. Markham, Ont. personal in- jury lawyer Darryl Singer says he is now accepting fewer acci- dent benefit dispute cases, large- ly because of the costs issue. He says the files that are be- ing turned away have legitimate concerns, but there's not enough compensation to justify the time and cost of a lawyer to present the dispute. So accident victims with disputes at the lower end of the benefits scale are not going to be able to get representation, he says. "It's made it harder right across the board for accident victims," says Singer. Like Preszler, Singer is con- cerned that the LAT's reliance on written hearings reduces the opportunities for plain- tiff 's lawyers. He says the issue of credibility is more difficult to determine when there is no witness in the witness box, and there is no opportunity to read their body language, what they say and how they come across. He calls the move "a denial of fundamental justice." Dutton Brock LLP insurance defence lawyer Philippa Sam- worth sees how the lack of costs will be a disincentive for plain- tiffs to dispute denial of benefits from insurance companies. "I have concerns," she says. Scheduling has also become an issue. While the tribunal seeks to resolve the disputes quickly, some lawyers have experienced conf licts with court appearances that were set months earlier. Insurance Bureau of Canada communications director Steve Kee says that rescheduling is of- ten not being permitted in the LAT. "We have raised this issue and hope in future there could be more done to provide for more f lexibility in scheduling," he says. And while the Insur- ance Bureau is generally satis- FOCUS David Preszler says there is a 'huge disin- centive' to dispute findings at the Licence Appeals Tribunal, because only in rare occurrences will either party be granted legal costs. CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com You work hard to ensure your clients get the best possible settlements. Help them maintain their income-tested government benefits/credits by encouraging them to structure! OAS BENEFIT HYDRO REBATE SENIOR HOMEOWNERS' PROPERTY TAX GRANT ONTARIO TRILLIUM BENEFITS HST/GST CREDIT WITHOUT A STRUCTURE GOVERNMENT BENEFITS ARE THROWN AWAY CANADA CHILD BENEFIT McKellar puts more money in your client's pocket GIS RDSP BOND/ GRANT Untitled-6 1 2017-01-10 2:51 PM See E-filing, page 12 Because of the delays in the old system, the knee-jerk reaction of a practising personal injury lawyer was simply to get the process started, and [to] figure it out as [they went] along. Charles Gluckstein

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