Law Times

Law Times • December 11, 2017 Page 5 www.lawtimesnews.com Plan would eliminate cash payouts PI lawyers critical of Ontario's new car insurance plan BY AIDAN MACNAB For Law Times O ntario's new "Fair Auto Insurance Plan" will leave accident victims without an advocate and at the mercy of in- surance companies, say personal injury lawyers. The government is aiming to deliver lower insurance pre- miums by allowing insurance companies to "bully" accident victims, says Darcy Merkur, a partner at Thomson Rogers in Toronto. "It's a smart thing for the gov- ernment to do. It's just totally unfair to accident victims. In so much as they care about helping accident victims, it's horrific," says Merkur. "The recommendations were all about letting the insurance company get away with cheap mistreatment of accident vic- tims, all with the purpose of saving the public auto insurance premiums, but to the total detri- ment of accident victims." On Dec. 5, the Ontario gov- ernment announced it plans to "reduce costs in the system by changing the emphasis from cash payouts to ensuring appro- priate care for victims." Some personal injury law- yers say this shows an intention to eliminate cash settlements between automobile accident victims and insurance compa- nies, which would eliminate the incentive to take on automobile accident insurance claims. The government's recom- mendations follow a report by David Marshall called the "Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario." Marshall is former president and CEO of the Workplace Safety and Insurance Board. In the report Marshall writes: "There should be no cash settle- ments in the accident benefits portion of the Ontario auto in- surance system for those bene- fits specified in the legislation as being for medical and rehabilita- tion care." He also writes: "[T]he system of compensation for catastroph- ically injured persons needs to be substantially changed. Cash settlements are being drained by having to pay legal fees and, in any case, cash settlements of- ten do not adequately meet the needs of catastrophically injured persons." The new plan is an effort to earn votes before the June pro- vincial election, says Darryl Singer of Singer Barristers Pro- fessional Corp. in Markham, Ont. "I think this is really an elec- tion ploy to say, 'Hey Ontario, we're going to bring down your auto insurance premiums,'" he says. "You're paying the highest premiums in the country, on average, and we're going to bring those down and here's how we're going to do it." The Ministry of Finance was contacted for comment but there was no response by deadline. Singer says that in instances in which insurance companies deny treatment to people injured in an accident, under the current system the injured person can get a lawyer to fight for the claim, who often settles with the insur- ance company for a cash payout — a percentage of which goes to the lawyer for their services. Singer says the insurance companies prefer providing treatment over providing a cash payment equal to what the treat- ment costs because victims of- ten do not use all the treatment they are awarded. Taking away cash payments takes the lawyer away from the accident victim, leaving them with no one to fight the insur- ance companies if they then deny the treatment, says Singer. "If you come to me on an acci- dent benefit matter and say, 'My insurance company has denied my treatment and I've got lots of ongoing injuries and I need this treatment,' I can fight for you be- cause if I ultimately get your case settled with a cash payout I get to take a percentage of that and I earn a fee," Singer says. "If you come in the door and say, 'I have to fight to get treat- ment but there's no cash payout and I don't have any money to pay you,' well, then how do I get paid?" The government's plan also includes "creating independent examination centres to provide assessments of more serious auto collision injuries, to help resolve and reduce diagnosis disputes, and to reduce system costs and inefficiencies stemming from disputes." Merkur says these indepen- dent examination centres are the same as the designated assess- ment centre system that used to operate in the province. Instead of accident victims seeing their family doctor or their specialist, they will have an assessment from someone assigned through this system, which Merkur says will not be "thorough, comprehensive or well-reasoned." Singer says that the DAC system was a failure. "If you go back and look at the designated assessment centres of the past, they were dismantled. We know this doesn't work," he says. LT NEWS Darryl Singer says a new plan by the prov- ince will rely on insurance companies to act in good faith with no incentive to do so. It's a smart thing for the government to do. It's just totally unfair to accident victims. Darcy Merkur CRIMINAL DEFENCE OTTAWA We solve our clients' problems with creative, focused, determined advocacy. High-profile experience in trying cases, consulting, and appeals. WWW.AGPLLP.CA INFO@AGPLLP.CA 613-235-9779 AbergelGoldstein_LT_Dec_11_17.indd 1 2017-12-01 12:46 PM 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM BY JENNIFER BROWN For Law Times M cCarthy Tétrault LLP lawyer Paul Boniferro is taking on the role of dep- uty attorney general of Ontario effective Jan. 3, 2018 for a two- year term. Boniferro, a partner in the firm's national labour and em- ployment group, is taking on management of what he says could be considered the "second largest law firm in the country" (second to the federal govern- ment's department of justice). A practising labour and em- ployment lawyer and at one time the national leader of practices and people at McCarthy's, Bon- iferro says he hopes some of the experience he has had in the pri- vate sector in a management role can be leveraged in the MAG's office. "In my private practice, I prided myself on client service and I see this as just serving a new client and that client hap- pens to be the attorney general [Yasir Naqvi] and his premier," he says. The position was left open in May when former deputy at- torney general Patrick J. Mona- han was appointed a judge of the Superior Court of Justice in Toronto. "I've always had a keen inter- est in public service and the gov- ernment and government law. My public service interest stems back to my parents who, when I was growing up, were very active in our local community in Sault Ste. Marie," says Boniferro. With the next Ontario pro- vincial election taking place in June of next year, Boniferro is entering the role at an interest- ing time, but doesn't see any is- sues if there was to be a change in government next summer. "Canadians do a much better job at transition of governments, regardless of the outcome of any political stripe, the public service for the most part is kept intact and continues to serve the government of the day," he says. "I've learned over the years that the beauty of the public ser- vice in Ontario and Canada is that they are truly professionals and serve the government of the day." LT New deputy AG

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