The Statutory Accident Benefits Schedule (SABS) has seen significant changes from 2003 to now. Lobbying efforts by the insurance industry has led to an appreciable reduction in the benefits available to injured claimants[1]. The fundamental issues with Ontario’s no-fault benefits system have never been properly addressed and we currently have a complex entitlement-based system, confusing eligibility criteria, which is difficult to navigate without representation. This was never meant to be the case[2].
Over the same 20-year period, Canada has seen a significant increase in immigration. For example, from 2005 to 2010 immigration increased by 15.34% and by 11.76% from 2010 to 2015. Immigrants make up approximately 23% of the population[3] and 32.8% of the workforce in Ontario[4].
A recent study found that one in twenty people living in Toronto did not have fluency in English or French[5] and this resulted in a decreased ability to find employment or be active in their community. Ontario’s statistics from 2008 indicated that approximately 30,000 immigrants, or approximately 30% of those arriving in the province every year, do not have the ability to communicate in English or French[6].
This article will seek to explore the disparity in accident benefits claim outcomes between claimants with a language barrier when compared with those fluent in English or French.
Treatment
A 2001 study by Health Canada[7] found that patients who did not speak the same language as their provider consistently reported lower satisfaction when compared with those who did. The study also highlighted that the presence of a language barrier had an adverse effect on multiple healthcare measures including: access, quality, patients’ rights, satisfaction, compliance, and outcomes. It also noted the role language barriers play in reduced access to mental health and counseling-related services.
More recent studies in Quebec[8] examining workers’ compensation claims found language barriers are an obstacle in accessing the compensation processes. When compared to claimants who were fluent in English or French, those with a language barrier had increased difficulty with completing forms, self-advocacy, following procedure, and adhering to deadlines. The studies also found inferior claim outcomes such as delays in first payment, and increased denials, where a language barrier was present.
A 2021 study by Professor Premji[9] found obstacles experienced by fluent English and French speakers such as: a lack sufficient access to family doctors and the complexity of the claim filing process, were heightened for those with language barriers. Further, a lack of professional language services increased the likelihood of communication gaps and often led to delays and misunderstandings during the claim process, which in turn prevented proper diagnosis, treatment, and recovery.
Professionally, there is nothing the writer has seen that would suggest the systemic issues faced by those with a language barrier in the context of WSIB would not apply to an equally complex, entitlement based, and often adversarial, system such as accident benefits. Issues with completing forms, communication with treatment providers, inaccurate reporting to insurer’s assessors even with an interpreter present, frequently contribute inferior claim results experienced by non-English or French speakers. Too often those with a language barrier fall through the cracks in a system that is meant to be accessible by everyone.
Bulletin A-23/10, which was issued alongside an updated Professional Services Guideline, stated that the cost of professional language services: “are not intended to be covered under the Statutory Accident Benefits … This does not prevent an insurer from paying or arranging for these services as an adjusting expense”.
A recent blog article highlighting the six best translation services in Toronto for 2022[10] gave an estimate of between $50 to $300 per hour for interpretation services. In an accident benefits context, this increases the cost for all treatments covered under the Professional Services Guideline and this is before any consideration for probable increases in session times when an interpreter is present. Hour-long sessions could increase to an hour and a half, where an interpreter is needed. This results in additional costs for a claimant with a language barrier just to make the same progress as a claimant without one.
While insurers will provide translation services where a claimant requires them, the costs are typically paid from within the medical, rehabilitation, and attendant care benefit limits. To cite two examples, in 16-004616/AABS v Aviva Insurance Canada[11], the disputed Treatment and Assessment Plan (OCF-18) was for a total of $4,306.26, which included $1,476.00 for interpretation services or approximately 34% of the total cost. As a second example, for one claimant with a need for an interpreter a Treatment and Assessment Plan (OCF-18) for massage therapy included $900.00 of a total of $3,072.64, effectively 30%, for translation services.
When considering the monetary limits for accident benefits claims, this is simply not just. Claimants with a language barrier are left with the choice to spend potentially a significant percentage of their limits on, or pay out of pocket for, interpretation services in order to access the treatment they need. In the writer’s experience, the more likely outcome is a cessation of treatment prematurely, further highlighting the probability of an inferior outcome.
Language Barriers and the Licence Appeal Tribunal (LAT)
The Tribunal has, on more than one occasion, preferred the opinions of insurer’s assessors over an Applicant’s treating providers because of the presence of an interpreter[12]. In cases where the Applicant made arguments regarding, for example, the validity of psychometric testing where there is a language barrier present, the LAT has rejected this and, in certain instances, gone as far as to indirectly prioritize the use of interpreters during insurer’s examinations over an Applicant’s treating medical providers[13]. Language barriers have also been referred to at the LAT in assessments of an Applicant’s credibility[14].
In I.G. v Security National Insurance Company[15], the Applicant was statute barred from proceeding with some of the disputed issues and the adjudicator specifically dismissed that a language barrier could be a reasonable explanation for not adhering to timelines. Given the academic evidence cited above, the writer suggests it is time to revisit this.
The above cited examples concerned eligibility for Income Replacement Benefits, Non-Earner Benefits, minor versus non-minor Injuries, as well as Medical, Rehabilitation, and Attendant Care benefits.
In rarer instances, adjudicators have considered language barriers and found in favour of the Applicant. The use of a PSW who had an appreciation for the Applicant’s language and cultural needs[16], where a language barrier disrupted the Applicant’s ability to receive treatment[17], or where interpretation services were denied for the Applicant but used for an insurer’s assessment are some examples.
Moving Forward
As has been clearly established, a language barrier is an impediment to accessing accident benefits. The system’s inherent complexity, forms being available in only English or French, strict timelines, and adversarial approach further compound this impediment and all before the claimant is even able to access treatment. Claimants also have to contend with multiple correspondence from the insurer requesting documents, suspending benefits, scheduling examinations, advising of approval, partial approval, or denial of benefits.
When it comes to treatment, a claimant with providers who speaks the same language are in a better position; however, this is often not the case. In those situations, the issues with self-reporting, credibility, a lack of translation services, and the cost of language interpretation services are brought to the fore. With denials, as with the research conducted on worker’s compensation programs, claimants often lack the knowledge of their rights to dispute them and, without representation, are more likely to accept the insurer’s determination without challenging it.
At the Tribunal, the case law indicates that although language barriers are taken into account with respect to the proceedings, that barrier is often overlooked with insurer’s assessments being preferred because an interpreter was present even if validity measures are challenged.
Accident benefits should be a first party system. Invariably, however, we find claimants without a language barrier reporting a lack of understanding about the decisions of the insurer, their monetary limits, and the applicable eligibility criteria for each benefit to name a few. It is fitting people into a poorly designed system, as opposed to designing a system to fit the people. A claimant with a language barrier has little to no probability of success.
In July 2022, the Financial Services Regulatory Authority (FSRA) published a report on Auto Insurance Data[18] with a focus on fair treatment of consumers. Part of this report looked at how best to support vulnerable consumers and could be seen as a step in the right direction; however, FSRA has yet to properly define who is a vulnerable consumer therefore meaningful change is still some way off. The only references to Accident Benefit system in this report are in the context of fraud and coverage issues. There is nothing that addresses the systemic issues faced by vulnerable consumers with respect to accessing those benefits and getting the treatment they require.
The inclusion of translation services as a payable expense under the SABS, or a separate budget for translation services not unlike the budgets for examinations under Section 44 of the Schedule, visitor expenses, and others, would ensure claimants with a language barrier are not disproportionately disadvantaged. A shared pool of independent translators could also be introduced with the costs being shared across all insurers; however, these ideas are extremely unlikely to be adopted.
For the tribunal, a consideration for video-conferencing or oral hearings as standard where there is an identified language barrier would bridge many of the gaps in the system. Many of the cited decisions came from written hearings and a switch to oral and/or video-conferencing would allow for immediate clarification by treating providers and Applicants.
Given the evidence of poor claim outcomes for Ontarian’s with a language barrier, more needs to be done to ensure the ramifications of being injured in or by a motor vehicle are not amplified by an inability to access the system that is set up to help them.
[1] 2021. Ontario Private Passenger Vehicles Annual Review, at pg. 13
[2] Handler, W. 2015. Ontario’s 25-Year No-Fault Journey – https://www.canadianunderwriter.ca/features/ontarios-25-year-no-fault-journey/
[3] https://www150.statcan.gc.ca/n1/daily-quotidien/221026/dq221026a-eng.htm
[4] https://census.gc.ca/census-recensement/index-eng.cfm
[5] https://www.thestar.com/news/gta/2018/07/08/lost-for-words-one-in-every-20-torontonians-cant-speak-english-or-french-study-finds.html?rf
[6] https://news.ontario.ca/en/release/808/ontario-removing-workplace-language-barriers
[7] Bowen, S. 2001. Language Barriers in Access to Health Care. https://www.canada.ca/en/health-canada/services/health-care-system/reports-publications/health-care-accessibility/language-barriers.html#a2_1
[8] Gravel et al., in 2007 and 2010, and Côté et al., in 2017
[9] Stephanie Premji, Momtaz Begum, Alex Medley, Ellen MacEachen, Daniel Côté et Ron Saunders, « Return-to-Work in a Language Barrier Context : Comparing Quebec’s and Ontario’s Workers’ Compensation Policies and Practices URL : http://journals.openedition.org/pistes/7144
[10] https://torontoblogs.ca/best-translation-services-in-toronto/
[11] 16-004616/AABS v Aviva Insurance Canada, 2018 CanLII 76696 (ON LAT) at p. 37
[12] 16-000670 v Aviva Insurance Company, 2017 CanLII 39433 (ON LAT) at p. 30, R.B. v The Guarantee Company of North America, 2020 CanLII 61458 (ON LAT) at p. 35-36, Deu v Royal & Sun Alliance, 2021 CanLII 76630 (ON LAT) at p. 19,
[13] Chen v Co-operators General Insurance Company, 2022 CanLII 75165 (ON LAT) at p. 31, and M.C.S. v Scottish & York, 2019 CanLII 119768 (ON LAT)
[14] TSW v The Dominion of Canada General Insurance Company, 2019 CanLII 122736 (ON LAT) at p. 28
[15] I.G. v Security National Insurance Company, 2019 CanLII 110085 (ON LAT) at p.13
[16] 17-000848 v Echelon General Insurance Company, 2017 CanLII 85731 (ON LAT) at p. 33
[17] 16-003657 v Certas Direct Insurance Company, 2017 CanLII 59506 (ON LAT) at pp. 23-24
[18] FSRA. 2022. Auto Insurance Data and Analytics Strategy Technical Advisory Committee Report: Fair Treatment of Consumers in Uses of Big Data Analytics in Auto Insurance – July 2022.
