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Gaining access to Ontario Courts in a personal injury or long term disability case? Think again…(Bars to Justice edition)

In Canada, we live in a free and democratic society. We are supposed to have access to the Courts when things go wrong in order to pursue justice and protect our rights and freedoms. When you’ve been wronged, and all else fails, you ought to be able to pursue your remedies before a Judge, in a Court of law.

This concept sounds great. But, the reality is, the idea of access to the Courts to protect our rights and freedoms simply does not exist (notwithstanding any delay in having your case heard, or lack of judicial resources; which is a topic for another day).

Want a few examples? Sure….

Innocent injured worker hurt badly on the job on account of the blatant negligence of their employer. Think you can sue? WRONG! Schedule 1 Employee vs. Schedule 1 employer can’t sue. That claim will likely be statute barred, and the injured worker will need to pursue matters through the WSIB. There are no large awards for pain and suffering (or large awards for that matter) at the WSIB. If you don’t like the result at the WSIB, you may apply for leave to appeal the result to the Court, but your case will NOT be heard by a jury of your peers, if it’s even heard at all.

Involved in a single car motor vehicle accident and your own car insurer is denying your accident benefit claims every step of the way? It would seem reasonable and only logical that the injured motorist can sue their own insurer for benefits denied. WRONG! Those sort of claims are now statute barred under the SABS and the Insurance Act. All disputes must go before the License Appeals Tribunal or LAT. The majority of those proceedings occur in writing, so the injured motorist doesn’t even get their “day in Court” so to say. If the injured motorist isn’t satisfied with the LAT’s decision, they can appeal to the Court, but again, their case won’t be heard by a jury of their peers.

One final example of a personal injury or disability claim being statute barred from getting to the Court, is in the case of a unionized employee suing their Long Term Disability insurer (Sun Life, Manulife, Great West Life, SSQ, Desjardins, Industrial Alliance, La Capital Insurance, RBC Insurance etc.) for denied LTD benefits.

If the terms of the collective bargaining agreement through the union state that LTD disputes have to be resolve through the collective bargaining or grievance process, then the unionized LTD claimant will NOT have access to the Courts. Their claim will be barred from seeing the light of day in the Court.GoldFingerBanner

The Ontario Court of Appeal recently upheld this principal in the decision of Morriseau v. Sun Life Assurance Company 2017 ONCA 567. In this case,

The appellant was a unionized employee of Lakehead District School Board (“LDSB”). Her employment is subject to a collective agreement that provides for certain long-term disability (“LTD”) benefits. The LDSB is self-insured with respect to LTD benefits under the collective agreement. The respondent Sun Life Assurance Company of Canada (“Sun Life”) has a contract with the LDSB whereby it provides administrative services with respect to LTD benefits. Pursuant to that contract, Sun Life acts as agent for the LDSB and the LDSB has ultimate final decision-making power for the payment of LTD benefits.

The appellant sought LTD coverage following a motor vehicle accident she was involved in on November 2, 2015. That request was denied in a letter sent to her by Sun Life. She commenced the within action seeking, among other things, a declaration that she is totally disabled within the definition in the contract between Sun Life and LDSB and an order requiring Sun Life to approve the payment of LTD benefits.

The motion judge and the Ontario Court of Appeal found that the court did not have jurisdiction because the dispute arises from the interpretation, application or administration of a collective agreement. Accordingly, the Courts struck the appellant’s statement of claim from Court. The entitlement to LTD benefits is a product of collective bargaining, and any dispute is therefore arbitrable under the collective agreement. Yet another example of a seemingly innocent accident victim or disability claimant NOT having access to the Courts because of the way which the law has been drafted.

That simple, and most basic notion that when things go wrong, you can seek access to justice and have your rights protected in the Courts is simply wrong and out dated. The reality is that the law is much more complicated. Not factoring in the cost of proceeding with a claim in Court, or the time required to advance that claim before the Courts; the harsh reality is that many claims, particularly  for accident victims and disability claimants are NOT allowed to proceed in Court.

Why is that?

Your guess is as good as mine. Here are a few theories:

With the WSIB, it’s apparent that WSIB protection is a shield for employers so that they can run their operations without the fear of litigation from their employees for getting hurt on the job. This is a cost saving measure for employers to run their operations in Ontario.

For accident benefit insurers, it’s also apparent that denying access to the court to injured motorists is also a cost saving measure. Having disputes in writing before the LAT, without any real cost consequences for denying benefits saves insurers money, and acts as a deterrent to claimant to pursuing their rights.

For LTD insurers, in our experience, it’s apparent that unions lack the drive, understanding and savvy in order to properly represent their members against LTD insurers for individual Long Term Disability Claims. My guess is that if you ask any in house counsel or Long Term Disability defence lawyer who they would rather proceed against: a union rep vs. an experienced Long Term Disability lawyer; my guess is that the insurer and defence lawyer would rather proceed against a union rep because the experienced LTD lawyer knows the law much better. This is not to say that a union rep can’t get the job done for their membership. But the reality is that the union rep handling the LTD case likely wears many hats and has many tasks when representing his/her membership. The experienced long term disability lawyer wears but one hat, and does that one job, really really well.


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