When I first began practicing personal injury law, I quickly noticed how COMPLICATED Ontario’s regime of car accident law was. This was completely unnecessary. Our government has made things so complicated, that lawyers need to focus on in car accident law in order to get results.
Car accident law should not be rocket science. In its purest sense, an innocent accident victim is seriously injured by another party who made a mistake or driving error. Rarely is there deliberate intent on the at fault party to cause a serious accident (save for drunk driving cases). There is no requirement for the parties involved to be sophisticated, knowledgeable of the law or wealthy. The at fault party should be responsible to compensate the injured party for the losses and pain and suffering. This sounds easy enough.
At Goldfinger Personal Injury Law, we have always engaged in making the law easy to understand for our clients. We want to break things down, so that people understand how things work, and how their case works.
This task has been made exponentially more difficult since April 1, 2016. The Ontario Government has moved all accident benefit disputes to a new Tribunal. New rules. New forms. More forms. More expensive to start the process for the injured. NO ACCESS TO THE COURT.
It used to be when you had a problem getting paid accident benefits, that you were able to apply for a FREE MEDIATION to the Financial Service Commission of Ontario (FSCO). FSCO was a Ontario Government body responsible for hearing all sort of accident benefit disputes between insurers and injured accident victims. There was a rich body of case law and detailed rules of procedure which had evolved. Insurers, paralegals, lawyers and even some members of the public knew how the system worked. There was familiarity. It was tailored specifically for accident benefit claims. And if matters didn’t pan out of FSCO, it was within the claimant’s power to keep pursuing the claim via Arbitration at FSCO, or leave FSCO entirely and sue instead before the Ontario Superior Court of Justice. There was a level of flexibility and control there which allowed the claimant to control the process to some extent. There were also many opportunities for settlement along the way.
On April 1, 2016, FSCO stopped hearing accident benefit disputes. Instead, all accident benefit disputes were moved to the License Appeals Tribunal or LAT. The Licence Appeal Tribunal (LAT) is an adjudicative tribunal that is part of Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO). Now we have two new acronyms for car accident cases in Ontario: LAT & SLASTO. Here’s a third:
Effective April 1, 2016, the Tribunal began accepting applications to the new Auto Accident Benefits Service (AABS)
system that aims to quickly resolve disagreements between individuals and insurance companies about accident benefits. AABS is the sub-division under LAT and SLASTO to hear these cases.
As an aside, also in 2016, the LAT/SLASTO began handling claims for beer-in-grocery-store licensing appeals, as well as appeals relating to horse racing licences!!! This is significant because it tells you that car accident claims are being lumped in along with a hodge podge of all other claims. While FSCO was tailored specifically for car accident claims, LAT/SLASTO/AABS is NOT.
So, now we have three acronyms, LAT, SLASTO and AABS. Talk about keeping things simple…
The link to the form on the AABS website NOT open in Google Chrome or Firefox. You will need to open the form using Internet Explorer as your web browser.
It costs the injured accident victim $100 to make this Application. Before it was FREE
for the injured party to mediate. This is a barrier to justice for a seriously injured accident victim.
Charter challenge anyone?
The Application needs to be mailed, faxed or delivered in person. The mailing address is different than the in person drop off address, so don’t get confused. In case you were wondering, the only in person drop off address is in Toronto; so if you live outside of Toronto, I would recommend mailing it or faxing it, otherwise, you’re in for a long trip.
But simply mailing or faxing in your Application isn’t enough. In addition, you will also need to submit a “Certificate of Service” as proof of service. If you fail to deliver your “Certificate of Service” form, your claim won’t get filed.
The Application needs to be signed by both the claimant and their lawyer. At FSCO, it only needed to be signed by one or the other.
So, already at LAT/SLASTO/AABS, the claimant needs to file three documents (Application, Filing Fee, Certificate of Service) just to get started.
An insurer then has 10 business days to respond to the Application. If they fail to respond within the 10 days, there is no precedent as to what the repercussions are because FSCO case law is not binding on LAT/SLASTO/AABS.
The next step is for LAT/SLASTO/AABS to set a case conference date. That date used to be picked by the parties through an E-Calendar at FSCO
. It was nice, because both the lawyer and the insurer could get on the phone, and pick a mutually agreeable date when a FSCO mediator could hear their matter. Now LAT/SLASTO/AABS just picks a date and a time unilaterally. This date/time has got to work for the lawyer, injured party, adjudicator, insurance lawyer, insurance adjuster (5 people
). Chances are, the date/time which LAT/SLASTO/AABS will pick won’t work for everyone, but I’m not sure they really care.
As a side note, I’m sure that it cost the government a lot of money to set up that handy E-Calendar system that worked rather well to set up FSCO mediations, arbitrations etc. All of that money has been flushed down the toilet because nobody is going to use the system anymore.
As we continue, the LAT/SLASTO/AABS will issue a Notice of Case Conference. But, 10 days prior to this Case Conference, the parties are required to submit a Case Conference Summary Form. This is another new form, and another step in the process which simply didn’t exist before. Then, with any luck in completing all of these forms and steps, a Case Conference will take place over the phone. It used to be that you could have an in person mediation at FSCO (which were more effective). Those days appear to be gone in favour of the over the phone Case Conference which will likely last 5 minutes. Here is how it will likely go:
ADJUDICATOR to Insurer: Would you like to pay for the claim?
ADJUDICATOR: Sorry I wasn’t able to help. This now concludes the Case Conference.
This review just takes us up to the Case Conference stage, which is akin to the mediation stage at FSCO. Before, as FSCO, all you needed to do was file an Application for Mediation and you would get a mediation date. Now, there are more costs and barriers for accident victims to get their disputes heard. Lawyers and insurer alike still aren’t sure how this system will play out. At first blush, it appears to be more work, more forms, more confusing at a greater cost to the injured. We will see how it plays out.