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Who says that personal injury laws are supposed to be fair?

I’ve had a few interesting conversations over the past few days with some very thoughtful, rational, insightful and logical people. These people are not lawyers. They have no skin in the game when it comes to the field of personal injury law. That means that they are neither lawyers, insurance adjusters, service providers, doctors, or lobbyists. It’s always nice to get someone’s perspective on the law, and how they perceive it works (or doesn’t) from an “outsider“.

For whatever reason, they were thinking about how the law worked in Ontario. And, in particular, how auto insurance claims worked. They were thinking along these lines because recently, a friend or family member had either been involved in a serious car accident, or something bad happened to their car which required that they get the auto insurer involved.

All of their experiences shared some common threads.

For starters, the people didn’t understand why the insurance claims system was so complicated. Why did the system need to be so complex, with so many hard to understand forms? It was like you had to have a law degree or some expertise in personal injury just to get the insurer to approve a benefit. And just because a benefit was deemed approved, does not necessarily mean that the money would be flowing in a timely manner.

The next issue was that items being requested were being denied by car insurers? Didn’t the people at the insurance companies want these injured accident victims to get well, so that they could return to work and resume their normal activities of daily living? That way, if the injured people got better, then they would no longer need to rely on the insurance company for benefits! Further, isn’t that the way car insurance and accident benefits is supposed to work? Someone gets involved in a car accident which is entirely not their fault, and the insurance company pays for their benefits so that they can rehabilitate. What’s so wrong with that. At the end of the day, accident benefits are there for consumer protection. But these denials and the complicated system of accident benefits is the opposite of what consumer protection is all about. There could not be a more complicated system in place.

The point of the denials dovetails nicely into the last common thread. All of these denials created a degree of conflict and tension between the injured accident victim (the insured) and their own the insurer. Often, the system pitted the insured  against his/her insurer who they had been dealing with for decades. They had never had any issue with the insurance company; until that is that they actually needed their benefits. At the end of the day, people quickly learn that insurers are very good at taking premiums. But, when it comes to paying out benefits when you need them the most, things get a bit more tricky.

One of the comments from my colleagues is that as a lawyer, can we not sue the insurer for these denials?linkedin-2-300x300

It seems like common sense. An insurance company denies a benefit. The person then applies to the Court to have that benefit paid out.

Unfortunately, personal injury law and insurance law does not make common sense.

When people first think about the law, they think about natural law. Natural law is based on ethics, morality and what humanity views to be inherently right or just. Not killing, not stealing, equality based on gender, creed or race. These are examples of natural laws which have been codified in our present day laws in Western democracies (like Canada).

Then there are man made laws. These are laws have nothing to do with nature, ethics, morality, or what humanity views to be fair. These are laws are entirely to creation of humans in order to achieve a certain objective. Not all man made laws are wrong or unfair. But fairness does not fall into the equation when creating a man made law.

Examples of man made laws include the Insurance Act, the Income Tax Act or even the Highway Traffic Act.

In order for a modern day society to work, natural law and man made law need to work in unison to ensure for a safe and well working place for everyone to live.

So, when people think that the laws dealing with insurance are not fair, or don’t work properly, that’s because they don’t have to be fair at all. They are entirely a creation of “man made law“, designed to achieve a certain objective and outcome.

The dirty secret is that the creators of these laws are the government. The government is influenced to introduce or modify these man made laws at the requests of powerful lobbyist groups which represent powerful industries (such as the insurance industry). Do you really think that anyone (aside from personal injury lawyers) will notice slight modifications to the Insurance Act which limit the rights of accident victims and instead decrease the exposure of powerful insurers? Of course not! The only ones who catch on to these changes, or the unfair structuring of the laws are those impacted by the laws themselves. Innocent accident victims only catch on that the cards are stacked against them only after they’ve been involved in a serious car accident. People only see that the system is broken when they need to make an insurance claim and need to become part of that system itself.

Why can’t I just sue?

The great thing about Canada is that it’s a free country. You can sue anyone for anything you like. You can sue a stranger for being too friendly and causing you a degree of shock by their kindness.

Just because you can sue, does not mean that you will win your lawsuit.

When it comes to fairness and man made laws, you can certainly sue. But the way these man made laws are created, they have restricted the public’s rights to sue and win. For example, the Liberal Government under Kathleen Wynne’s leadership eliminated the right to sue your own insurer for an accident benefit dispute. Instead, the accident victim needed to proceed to FSCO, and not the License Appeals Tribunal. So, if you are not happy with your insurer, you can certainly try suing. But in all likelihood, the lawsuit will be dismissed from the Court by way of Summary Judgment Motion and you will likely need to pay for the insurer’s legal costs in defending the claim. This does not mean that the law is fair. But that was the point of this Toronto Injury Lawyer Blog entry. The law is not fair. Especially when it’s man made law under the Insurance Act as it relates to accident victims.


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