This Bill amends four pieces of provincial legislation:
The Consumer Protection Act, 2002
The Highway Traffic Act
The Insurance Act
The Repair and Storage Liens Act
Additionally, because of the
changes to the Insurance Act, it also provides for amendments to
the Financial Services Commission Act, 1997, the Licence Appeal
Tribunal Act, 1999, and the Motor Vehicle Accident Claims
The Insurance Act changes have not yet come into effect.
These amendments will only come into force on a date, yet to be
named, by proclamation of the Lieutenant-Governor.
There are substantial changes afoot for injured motorists:
Arbitrations, formerly conducted through the Financial Services
Commission of Ontario ("FSCO"), will be conducted instead
by the Licence Appeal Tribunal ("LAT"), a little known
tribunal that has historically arbitrated matters far removed from
the volume and complexity of statutory accident benefit
claims. It is unclear how FSCO can be disbanded and the LAT
upgraded to handle the volume of disputes that need
resolution. As I have posted in an earlier blog, we currently
have an arbitration backlog at FSCO. It is unclear whether
the FSCO arbitrators will be transferred to LAT, or whether a whole
new slate of arbitrators will be added to LAT. It is
abundantly clear that LAT could never handle the number of disputes
that would need adjudication, absent a significant expansion to its
roster of arbitrators. The existing FSCO arbitrators
possess a great deal of specialized knowledge about statutory
accident benefits. It is hoped that their
expertise will not be lost with this shuffle.
Coupled with the diversion of arbitrations to the Licence
Appeal Tribunal will be a prohibition on the right to sue in the
Superior Court of Justice for any accident benefit dispute.
The appeal path from the LAT will be an appeal directly to the
Divisional Court. It is unfortunate that the government did
not heed the unanimous call of such professional organizations as
The Advocates' Society, The Ontario Trial Lawyers Association,
and the Canadian Defence Lawyers, each of which pleaded with the
government not to implement the prohibition on accident benefit
Currently the prejudgment interest rate on claims for pain and
suffering in personal injury actions is fixed at 5% pursuant to
Rule 53.10 of the Rules of Civil Procedure. Bill 15 now
exempts motor vehicle claims from the 5% prejudgment rate that
would otherwise apply to non-pecuniary claims. Once Bill 15
comes into force, the rate of interest applicable to the pain and
suffering portion of an award will be equal to the prescribed rate
as outlined in the Courts of Justice Act, which, is currently
1.3%. There will be a reduced incentive for insurers to
settle claims. The cost of delay will now be less than the
likely yield on investments made by insurers. No other
personal injury claimants are singled out like this. Injuries
that arise from a slip and fall, or an assault, or by any means
other than as a result of a car accident will still attract the 5%
prejudgment interest rate set by Rule 53.10.
There will be many details to follow, being outlined in
regulations that have yet to be drafted or distributed to the
public. As with much of what the government does "the
devil will be in the details". It is expected that the
uncertainty generated by Bill 15 will require litigation for years
to come. One thing that is not uncertain is the continual
erosion of the rights of injured motorists and those who have been
injured by a motorist
"Or you can trade it all for what's behind door number two..." Be honest – whenever you see this set up on a game show you secretly want the contestant to give up the sure thing and take a peek behind door number two.
The Law Society of Upper Canada, which governs the practice of law in Ontario, has rewritten one of its rules of professional conduct to create greater clarity for lawyers on how assertively they may represent clients...
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