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Deteriorating Accident Rights in Ontario: Nobody cares until it happens to you or a loved one

Members of Goldfinger Personal Injury Law attended at a legal conference a few weeks ago. It had all sorts of lawyers, spanning a multitude of different practice areas. It was great chatting with different lawyers outside of the realm of personal injury law to hear about their success stories and struggles. Even though we may have practiced in completely different areas, we managed shared a lot of common ground aside from just being “lawyers“.

In one particular conversation, the lawyers at Goldfinger Injury Law were sharing our stories about the delay in having some of our accident cases heard in a timely matter. Even since the landmark Supreme Court of Canada decision in R. v. Jordan, we were still seeing significant delays on the Civil end of things.

The Criminal lawyers we were sharing that story with looked a bit perplexed. Those lawyers had seen a noticeable push by the Courts to have their cases expedited (even if it wasn’t in either party’s best interest).But when he heard that Court resources were being shifted to the criminal sphere at the expense of other areas (like car accident, disability and personal injury law), those lawyers seemed upset.

One lawyer in particular shared with me that he believed the legal system as we know it was rotting away, seemingly faster every day; and that only the lawyers on the front lines truly understood the decay. With the delays in Court, the lack of judicial resources, the depletion of the legal aid system; only the truly rich and wealthy will have the means to advance their claims, and endure the wait time (and associated legal bills) to have their day in Court.

The notion that “only front of the line lawyers know” or get it, rings true for the changes in Ontario Car Accident legislation.

An article penned by Ken Rubin for the Windsor Star on June 9, 2017 entitled “Ontario Needs to Be More Transparent About Auto Insurance Changes” was hopefully, a real eye opener for many average Ontarians. If you haven’t read Mr. Rubin’s article, I suggest you do so. It’s not only a great read, but it would also lay the foundation for a fantastic investigative journalism piece for a show like W5 or Marketplace.

Personal Injury Lawyers have long been declaring that the system in rigged against innocent accident victims (people who pay car insurance premiums, people who pay taxes, people who did nothing wrong other than be in the wrong place at the wrong time); in favour of large, deep pocketed, multi national insurance companies. Keep in mind, insurance companies don’t vote in elections, yet they seem to have an awful lot of sway with politicians ($$$$).

Mr. Rubin made a standard request through Freedom of Information for records which were provided to the Government/Financial Services Commission of Ontario by the Insurance Bureau of Canada (IBC).

FSCO describes the IBC as: a trade association that represents the majority of property and casualty insurance companies operating in Ontario and that it is also a major stakeholder in the automobile insurance industry. Essentially, the IBC is a major lobbying group for the insurance industry.

Mr. Rubin made Freedom of Information request for:

From January 1, 2012 to present (November 17, 2014) any formal submissions/representations or formal correspondence on auto insurance topics received from the Insurance Bureau of Canada (the IBC) to FSCO and FSCO responses to the IBC. Include preparatory meeting notes, – 2 – meeting agenda and meeting notes for meetings with the IBC that arose from such submissions/representations/correspondence.

The request was denied (in part). Mr. Rubin appealed. The IBC challenged the appeal, and the dropped parts of the challenge. FSCO still challenged the appeal. Mr. Rubin won, in part.

Here are links to the appeals decisions from the Information and Privacy Commissioner of Ontario. There are two decisions.

The very fact that Mr. Rubin’s Freedom of Information requests were denied at first instance, and then had to to appealed before the Information and Privacy Commission of Ontario shows you that somebody does NOT want Ontarians knowing too much about how car insurance policy and legislation is influenced and drafted.

Here is some interesting information which came out of Mr. Rubin’s research:

In November 2013, the IBC urged the government to remain firm on a $3,500 cap for minor injury claims it felt were “vulnerable to disputes,” documents show. The bureau offered ways to tighten the cap, so that mediation and medical claims would be confined and protected from “being tested, attacked, expanded and dissected by numerous challenges.”London-Head-Shot-Brian-Goldfinger-201x300

In August 2014, the IBC asked which measures “are ready to be presented to Cabinet” and “which recommended reforms contained in IBC’s submission of July 4 have been reviewed and are ready for constructive discussions with a view of finalizing proposed regulatory and legislative language.

The day before a February 2014 cabinet meeting, the IBC asked – given pre-election “political uncertainty”— to be put on the agenda to discuss the government holding firm to bringing in alternate dispute resolution reform and licensing of rehabilitation clinics

The data and information submitted by the IBC to the government was not subject to public scrutiny. At least, not at that early stage. I would have loved to have seen what sort of “constructive discussions” went in to forming this legislation, and who was having these constructive discussions? Were they hired guns for the insurance industry? Were they other government lobbyists? Was John Doe public car insurance premium payer asked to contribute? Were current or former accident victims consulted? Did anyone ask any lawyers who work in the industry how these legislative changes will impact the market?

The front line personal injury lawyers see the devastating impact which these changes have had on innocent accident victims across Ontario. Telling a new client that their car accident claim will automatically start $36,500 in the hole via deductible before the claim even gets off the ground is lunacy. It’s even more dramatic when the innocent accident victim doesn’t even earn over $36,500/year, and that figure goes up year after year with inflation. On top of that. there is a vigorous medico-legal threshold which needs to be met in order for an accident victim to get compensated for their pain and suffering in Ontario. On top of that, a wait time of anywhere fro. 3-7+ years for their case to go from pleadings to trial is enough to tip the scales of justice in favour of insurers. Which is what they wanted to begin with.

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