Law Times

Law Times • February 13, 2017 Page 13 www.lawtimesnews.com INSURANCE DEFENCE BOUTIQUES Steep learning curve for accident benefits lawyers BY MICHAEL MCKIERNAN For Law Times A ccident benefits lawyers at the province's insur- ance defence boutiques are on a steep learning curve as they deal with the up- heaval created by the new process at the Licence Appeals Tribunal. Since April last year, all mat- ters under the Statutory Ac- cident Benefits Schedule have been diverted from the Financial Services Commission of On- tario into arbitration at the LAT, without the requirement for me- diation that existed under the old system. As part of the transfer, claimants also lost their right to sue in court for accident benefits. Heather Kawaguchi, chair- woman of the new LAT practice group at insurance defence bou- tique Zarek Taylor Grossman Hanrahan LLP, says it's hard to underestimate the scale of the change for all involved. "We've known the LAT was coming for a long time, but no matter how much planning you do, you can never tell how some- thing is going to go until it's here," she says. "This is a brand new tribunal that is supposed to have expertise in its subject matter. But the reality, at least for now, is that they have no experi- ence, because nobody does. We have new rules, new timelines, new adjudicators and new lan- guage. For people practising in the area, things are completely topsy-turvy compared with how they used to be." At McCague Borlack LLP's Toronto office, partner Cath- erine Korte says lawyers on both sides of the personal injury bar have taken their concerns about the new process to the Ministry of the Attorney General in the hope of spurring changes. While one of the aims of the LAT transfer was to speed up the accident benefits adjudication process, Korte says the tribunal's hard line on case conference ad- journments has shocked practi- tioners. She says the LAT rules contemplate adjournment re- quests from counsel to be made in writing, listing three alterna- tive dates within 30 days of the slot assigned by LAT schedulers. "But adjournments on con- sent are rarely being granted and, in fact, are refused with- out reason," Korte says. "That's problematic, particularly in a sit- uation where a lawyer is unavail- able due to a medical emergency or alternatively because the LAT has double or triple booked them for case conferences at pre- cisely the same date and time." Korte would like to see the LAT adopt the e-calendaring system developed under the pre- vious FSCO regime, which she says was popular among lawyers. Kaitlin Troisi, a spokeswom- an for the LAT, said in a state- ment provided on Feb. 8 that the tribunal's accident benefits division is in the process of clari- fying the adjournments process with parties. "However, as with other tri- bunals and the courts, adjourn- ments will not be granted as a matter of course, even with the consent of the parties. The de- cision to grant an adjournment is within the discretion of indi- vidual adjudicators, and one of the factors they are required to consider is whether the adjourn- ment might result in a signifi- cant risk of delay," Troisi says. Once the parties attend for their case conferences, they sim- ply aren't as effective as the old pre-hearings at FSCO, according to Cary Schneider, a partner at Beard Winter LLP, whose prac- tice includes a focus on accident benefits claims. The FSCO hear- ings took place in person and gave defence counsel a chance to meet the claimant, but case con- ferences at the LAT now tend to take place on the phone. "Negotiation is more diffi- cult, because it's very easy to say 'no' to someone on the phone, whether you're acting for the in- surer or the claimant," he says. Schneider also finds LAT ad- judicators less encouraging of settlement than their counter- parts at FSCO, who he says were often willing to caucus with both sides privately in order to bring them closer to resolution. "The adjudicators have told us they are prevented from do- ing that. They want to come off as neutral and do everything out in the open, so they're a bit ham- strung as to what they can say in terms of what they think the case is worth," Schneider says. In another statement provid- ed late last year, Troisi acknowl- edged that the transfer "is a sig- nificant change for all parties," and said the LAT is focused on improving "the efficiency and effectiveness of the system" dur- ing the two-year implementa- tion phase of its accident ben- efits service. "Over the course of this im- plementation period, LAT will continue to take into consider- ation the feedback received from parties," she said. The LAT transfer has also caused consternation at the board level of insurance defence boutiques, says Bill Chalmers, managing partner at Hughes Amys LLP. "It's difficult to know how to staff your accident benefits de- partment. Right now, we haven't had a lot of LAT matters, but it's difficult to know whether there is going to be a deluge of applica- tions in the near future," he says. Part of the problem has been the suspicion that some plain- tiff-side law firms are holding back from using the LAT, par- ticularly in higher-value cases involving catastrophic injuries, either because they're hoping for changes to the procedure in the near future or because they have had problems meeting the LAT's more stringent requirements. Claimants must have medi- cal reports from experts and employment records ready to go before applying for arbitration at the LAT. LT What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2016-10-12 10:02 AM Catherine Korte says lawyers on both sides of the personal injury bar have had con- cerns about the new process at the Licence Appeals Tribunal, and expressed these to the provincial government.

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