Law Times

Law Times • sepTember 11, 2017 Page 13 www.lawtimesnews.com PERSONAL INJURY Claimants lost right to sue High hopes for long-shot appeal of the LAT BY MICHAEL MCKIERNAN For Law Times P ersonal injury lawyers are pinning their hopes on a long-shot appeal to restore clients' rights to sue for accident benefits in court. In Campisi v. Ontario, Su- perior Court Justice Edward Belobaba dismissed Toronto personal injury lawyer Joseph Campisi's attempt to have the Licence Appeal Tribunal system for accident benefits disputes declared unconstitutional, finding not only that he lacked standing to bring the case but also that his application failed on the merits. However, Campisi has ap- pealed the verdict. Between 1990, when the no- fault insurance system arrived in the province, and 2016, any Statutory Accident Benefits Schedule dispute that failed to settle at mediation was decided either by arbitration at the Fi- nancial Services Commission of Ontario or by a judge in court proceedings. However, in April last year, claimants lost the right to sue in courts when legislative changes diverted all SABS matters into arbitration at the LAT, without the requirement for mediation that existed under the old sys- tem. "Setting up the tribunal is one thing, but removing the right to go to court is quite an- other," says Brian Cameron, a partner with Oatley Vigmond Personal Injury Lawyers LLP in Barrie, Ont. "It doesn't seem right that people are treated differently depending on the way in which they became disabled. If you break a leg in a slip and fall, you have full rights to sue, but if you break it in a car, there are all sorts of restrictions on what you can recover and how. It doesn't seem like those people are being treated equally. "The playing field is more level in court than anywhere else, and you've got rules of evidence developed over cen- turies, so it's a shame that right has been taken away," Cameron adds. Alon Barda, a lawyer at To- ronto firm Rogers Partners LLP, who works mainly on be- half of insurers, says Campisi will face an uphill battle at the appeal court because of how soundly his case was rejected by Belobaba. "I wasn't surprised the case was brought, because there was a lot of consternation among the plaintiffs' bar from the mo- ment the LAT change was an- nounced," he says. "Losing on the standing was really significant, in my view, and it's going to be very difficult for them on appeal." Campisi argued that two provisions in Ontario's Insur- ance Act fell foul of s. 7 of the Charter, which protects the right to life, liberty and security of the person, as well as s. 15, which provides for equality be- fore the law. He cited s. 267.5(1) of the act, which limits pre-trial recovery of lost income to just 70 per cent of gross earnings, and s. 280, which was altered to give the LAT exclusive jurisdiction over accident benefits disputes. But Belobaba dismissed the challenge, finding Campisi was not directly affected by the law and had no standing to bring it. According to the decision, Campisi's law firm rarely deals with people who have SABS complaints due to its focus on those with more serious inju- ries. Driving a car and having concern for accident victims was "not enough under the ap- plicable case law" to give him private interest standing to bring the challenge, Belobaba found. In addition, Campisi was un- able to demonstrate public in- terest standing because he could not show he had a "real stake or genuine interest in the consti- tutional validity of the two pro- visions in question," Belobaba wrote. The dismissal would not stop other, more suitable applicants from mounting similar chal- lenges, the judge added. "There are literally thou- sands of claimants who are ac- tually and directly affected by this legislation. These claimants do not even have to bring an application in Superior Court," Belobaba wrote, adding that it is preferable for challenges to originate at the LAT "because then the reviewing court has See Informal, page 14 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 Duncan Macgillivray says he supports an appeal of the Licence Appeal Tribunal's approach to accident benefits disputes, where claimants lost the right to sue. There are literally thousands of claimants who are . . . directly affected by this legislation. Justice Edward Belobaba

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