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How the LAT is killing access to justice for accident benefit claims in Ontario

For anyone who practices in the field of accident benefit law (dare I now call it litigation), what we all need is more paper work, more records, and more forms to be completed by insureds, and insurers alike. What is already a complicated and confusing system has been rendered even more complex with the shift of accident benefit disputes from the Financial Services Commission of Ontario (FSCO) to the Safety, Licensing Appeals and Standards Tribunals of Ontario (SLASTO) License Appeals Tribunal (LAT). How’s that for a mouthful?

Accident benefits, at their most basic, are designed to protect an insured accident victims following a motor vehicle accident. The Insurance Act is consumer protection legislation supposedly aimed to help rehabilitate and make ends meet for somebody whose livelihood and health has been impaired in an accident. Items in dispute can range from simple physiotherapy treatment, to weekly income replacement benefits, to more complicated catastrophic disputes.

Since 1997, FSCO has been hearing accident benefit disputes between injured car accident victims and their accident benefit insurers. FSCO was mandated to hear these types of cases. FSCO had its own mediators, arbitrators, practice code and a wealth of case law built over the years to guide the public and insurers.

Filing at FSCO for mediation was free, and as easy as completing an Application for Mediation. It was so easy in fact, that claimants didn’t need a lawyer to start the process. All a claimant needed to do was to complete their contact information in the top section of the Application for Mediation Form, tick off a few boxes, and then sign.

There was no charge to having a dispute mediated at FSCO for the injured party. If the mediation failed, the applicant could chose to sue the insurer in Superior Court, apply for Arbitration at FSCO, or opt not to pursue their claim at all.

Effective April 1, 2016 all accident benefit disputes were taken away from FSCO, and transferred to the LAT. LAT is not bound by any of the precedent established at FSCO. LAT has its own set of rules, procedures, forms and timelines.

The Law Society of Upper Canada and the Ontario Provincial Government want to make the civil justice system more accessible and more affordable for everyday people. This is a noble cause. Unfortunately, the introduction of the LAT and the elimination of FSCO achieves the exact opposite.

Whereas with FSCO, having a mediation was free, and only required completing one simple Application; the process to initiate a dispute at the LAT is more onerous on the accident victim. For starters, there is a $100 application fee which the accident victim needs to pay. The applicant can no longer sue their insurer in Superior Court should the LAT hearing fail.

In addition to the initial Application by an Injured Person for Auto Insurance Dispute Resolution Under the Insurance Act (that’s what the initial application is called), the Applicant also needs to complete a Certificate of Service Form. Failure to complete this form and the LAT Application won’t be accepted as complete.  If the Applicant has a lawyer or licensed paralegal, they will also need to complete a Declaration of Representative Form. Prior to the Pre-Hearing, the parties are also required to complete an Automobile Accident Benefits Service Case Conference Summary Form which needs to be submitted 10 days prior to the hearing of the case conference.mmdaf

If we are keeping score, that’s 4 forms plus a $100 application fee which need to be submitted to the LAT just to get the case started, as opposed to 1 form and no application fee for the injured party for a FSCO for a mediation date.

Once all of the forms have been submitted  to the LAT, the parties are assigned a date which is unilaterally selected by the LAT. Limited, to absolutely no consideration is given whether or not the hearing date works for the parties. At FSCO, parties were able to schedule a mutually agreeable date on an E-Calendar. While the E-Calendar had its flaws, it worked.

LAT Pre-Hearings can be adjourned. But again, this means yet another form to be completed and submitted. The Request for an Adjournment Form is available on the SLASTO website. At the time of preparing this article, I trust that they will have corrected the term “Applicant” on the form. Instead, the form reads “Appallent”. I suppose that the LAT is appalled that somebody would consider adjourning a coveted hearing date.

With all of these new forms along with the new application fee, the notion that a self-represented litigant has better access to justice at LAT vs. FSCO is a stretch. If the Government were really concerned with access, costs, and simplifying car accident disputes in Ontario, they ought to take a long hard look at the additional red tape they have created with the LAT.

Accident benefit claims in the province of Ontario for injured accident victims will never be the same. Finding a capable, competent and knowledgeable lawyer may prove more difficult for a variety of legal and economic issues. Essentially, the accident benefit system we have in Ontario is being hollowed out to nothing but an empty shell such that there aren’t many more benefits to fight for anymore. It’s more cost effective for an insurer to simply pay out the total value of the accident benefit claim ($3,500 for med/rehab benefits under the Minor Injury Guideline (MIG)); rather than pay a lawyer to fight over the same $3,500 in benefits.

If you are seriously injured in a car accident, $3,500 in benefits simply isn’t going to cut it for the cost of your rehabilitation and welfare.

Enough law talk? Sure. I would like to comment briefly to the turnout, or lack thereof for the Canadian Men’s National Basketball team. Many notable players (Andrew Wiggins, Kelly Olynyk, Nick Stauskas, Robert Sacre) were off the roster for the consolation qualifying tournament. Many of these players will never make it to the Hall of Fame or win an NBA Championship. Playing for and representing Canada on an international stage is a tremendous honour. For whatever reason, made up or not, these players didn’t answer the call. This is most unfortunate as I believe that had these players competed, Canada would be participating in Men’s Basketball at the upcoming Rio Olympics.

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