Transition to the LAT

Bulletin from SLASTO – March

Members will be aware that the Licence Appeal Tribunal is set to begin receiving applications for SABS disputes as of April 1, 2016. The Safety, Licensing Appeals and Standards Tribunals (SLASTO) Ontario just distributed a memo concerning transition issues including information on sessions for legal and insurance company staff.

More information is available online on these info sessions as well as details on the “Getting Ready” package.

 

New Concerns: Validity of Insurer Terminations and New Challenges for Insureds

Members should be aware that OTLA is addressing significant concerns about the transition to the new procedure under the LAT and specifically an insured’s ability to access the new dispute resolution process.

For some time, insurers have been sending termination of benefits notices that outline the insured’s right to mediate or arbitrate a dispute through FSCO.  Of course, insurers have been aware for many months that FSCO would cease to accept applications as of April 1.  It is unclear why insurers have not modified their termination letters and the accompanying forms to state that all such applications after April 1 must be made to the LAT. It is currently not known whether an application by an insured to FSCO after April 1 (as opposed to the LAT, where such applications ought to be filed) will be sufficient to stop the limitation period from running. Obviously, this could give rise to needless litigation on limitation period issues, as well as substantial inconvenience and delays for insureds.

OTLA has raised these concerns with FSCO. We want to ensure that insureds who follow the process spelled out in the termination letters from their insurers, have access to the dispute resolution through the LAT. We have suggested that FSCO should deem an application to FSCO after April 1, to be an application to the LAT.

FSCO and/or the LAT would need, as well, to inform insureds of the new process after taking the steps outlined in the termination letters. The key is to make sure that no insured is denied an opportunity to dispute a denial of benefits if they follow the process set out in the termination letter.

As of this morning, OTLA has learned that FSCO is reviewing this situation in light of our intervention.

We will keep you informed on developments.

Learn more about the LAT transition

  • ★ Marcel D. Mongeon

    Jeff Musson and I are offering a course on the transitional changes and some tips for the transition.

    http://moodle.ezcpd.ca/enrol/index.php?id=100138

  • Tracy Romanowski

    The only Costs Rules that seem to be in the new LAT/AABS system, is under Rule 19. There does not appear to be any provisions, or Guidelines, or Schedules, or Regulations, that addresses hourly rates, disbursements, costs of expert reports, costs of having a doctor/expert testify – summons – all that fun stuff – costs of experts etc.

    Am I missing something? The only way that costs can be paid for the proceeding is if the costs are requested “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

    Not every denial by an insurance company is done “unreasonably, frivolously, vexatiously, or in bad faith” .

    And yet they want detailed case conference forms.

    And yet they want DOCTORS AND EXPERTS to complete their reports and start signing a “Form 53″ type certification for their reports.

    Where are the costs provisions and guidelines directing the parties as to how costs will be considered or to be awarded?

    And if there are no costs provisions – in all the draft information that came out about transforming the DRS System, where was it ever noted that no costs would be available to the parties, but only in bad faith cases?

    The problem is that not all denials are unreasonable.

    The problems is how are the big in-person hearings, for Post-104 IRBs, or MIG/NON-MIG, or CAT Determinations, going to get paid?

    If the insurer has supporting documentation etc that supports their denial of CAT, or denial of Post-104s, or that the insured is in the MIG, it is not automatic that their denial of same is unreasonable.

    How on earth is the Insured’s representative supposed to recover the $10’s of thousands of dollars in costs in completing a CAT Hearing, or an IRB hearing – doctors/experts will have to provide evidence in person – and then the Insured is supposed to pay for all of that? We are all familiar with what these doctors charge to just show up – which still wasn’t even remotely covered by the previous $1600 allowed under the Arbitration costs system.

    If you need a supporting expert/doctor report – for any claim going through LAT – and the insurer is not unreasonable in their denial – NONE of the costs get paid.

    Possibly some of it could be claimed in tort, since they are the ones getting the benefit of the credit for whatever is awarded or paid from the AB.

    See Moodie v. Greenaway Estate [1997] O.J. No 6525 (Gen. Div.) which says:

    It appears that some of the Plaintiff’s lawyers’ time was spent pursuing the Plaintiff’s long term disability insurer, accident benefit insurer and underinsurer and Mr. Ozere suggests that there should be a reduction on that account. In my view such pursuits are part and parcel of the Plaintiff’s obligations in an action against the tortfeasor by reason of the releases available to the tortfeasor under the Insurance Act and only in very compelling circumstances should the unsuccessful tortfeasor escape responsibility for indemnifying the Plaintiff for the costs of such pursuits.”

    Here is the only Costs Rule in the LAT Rules of Practice

    From the LAT Rules:

    Rule 19

    19 COSTS

    19.1 COST REQUESTS Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

    19.2 HOW COST REQUESTS ARE TO BE MADE A request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.

    19.3 SUBMISSIONS ON COSTS The Tribunal may order that a party making a request orally under Rule 19.2 shall provide written submissions to the Tribunal and all other parties within seven days.

    19.4 CONTENT OF SUBMISSIONS ON COSTS A submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith