Since its release on February 18, 2014, the final report on the Ontario Automobile Insurance Dispute Resolution System (DRS) has been a topic of interest. This is no surprise as each of the report’s 28 recommendations will be considered by the provincial government when contemplating legislative changes that may affect the DRS structure and operation. Any changes to the DRS should be of particular interest to the public—auto insurance consumers—as changes will come to how their claims are processed, should they become injured in an accident and find themselves in a dispute with their insurer.
The report was conducted by The Honourable J. Douglas Cunningham, Q.C., with submissions being made by thirty-three auto insurance stakeholders, including the Ontario Trial Lawyers Association (OTLA).
OTLA’s submissions were thirteen pages in length and addressed a number of concerns from the Plaintiff bar with accident victims in mind. Although many of OTLA’s suggestions were supported by Justice Cunningham’s final report, there are recommendations that remain a cause for concern.
The final report supports the implementation of a public administrative tribunal to promote reliable, competent, and consistent adjudication. OTLA’s submissions support the separation of an adjudicative body from the Financial Services Commission of Ontario (FSCO) as it would eliminate any perceived pressure on adjudicators from the regulatory body and boost confidence in the impartiality of the DRS. That said, it is of great importance to maintain the level of specialization, experience and familiarity that FSCO Arbitrators currently possess to efficiently and fairly adjudicate claims.
There is similar concern for any proposed changes to the appeal process. Currently, FSCO Arbitration appeals are made internally to Director’s Delegates. The final report recommends that appeals should be heard by a judge of the Ontario Superior Court. This may be problematic as it would require a Superior Court Judge to make a decision on specialized issues which the judge may not have a specific understanding. Conversely, Director’s Delegates are routinely presented with these disputes and have a specialized knowledge and understanding of the issues. From my perspective, to eliminate this route of appeal and a Director’s Delegate’s adjudicative expertise is not in the public interest.
Accessibility was also at the forefront of discussion noting that Applications for Mediation increased following the 2010 Statutory Accident Benefits Schedule (SABS) amendments. OTLA proposed that the DRS must remain a simple and cost effective election for their clients. Some insurance industry stakeholders expressed concern with backlog and the DRS becoming burdened with numerous and lengthy Arbitration hearings. OTLA’s objective was to dispel these misconceptions.
The Mediation backlog no longer exists and an Arbitration backlog is unlikely to develop considering that FSCO is currently offering Arbitration dates sooner than most counsel can accommodate. In fact, Arbitrations pertaining to the 2010 SABS amendments, such as the Minor Injury Guideline (MIG), have already been heard and decided. Further, the average Arbitration length is less than two days and can typically be reached within one year following a failed Mediation.
An applicant can only mediate after a benefit has been denied by the insurer. The increase in denial rates for treatment plans has likely lead to increased Applications for Mediation. As stated in their submissions, OTLA believes that many insurance denials are arbitrary, improper or unfair. If claims are being dealt with in a fair, thoughtful, and reasonable manner, there would naturally be fewer applications for Mediation and Arbitration.
Last, to further streamline the DRS, the final report recommends that paper review Arbitrations be conducted not only for medical and rehabilitation claims valued less than $10,000 but also to determine whether a claimant’s injuries fall within the MIG. In my opinion, a restrictive paper review process is not appropriate for MIG determinations due to the importance this decision represents for many claimants. The MIG classification severely limits the amount of benefits available. The process is simply not proportionate to the claimant’s potential consequence. Again, appeals would be directed to Superior Court.
No system is perfect; however, it is our association’s mandate to protect the rights of accident victims and to advocate for access to justice and a fair insurance system in Ontario.
As Justice Cunningham stated in his interim report, injured persons require access to competent legal representation to offset the significant resources available to insurance companies. He referred to lawyers and paralegals as a form of consumer protection for claimants. This OTLA member could not agree more.
Contributed by Michael Giordano, Vice-Chair of OTLA’s New Lawyer’s Division and a lawyer practicing at Sal Guzzo, LL.B., Professional Corp. in Mississauga, Ont.