It's no joke—April Fools' (April 1, 2016) marks
the day when accident benefit arbitration applications will begin
to be received by the Licence Appeals Tribunal ("the
LAT") instead of by FSCO.
This significant change in how accident benefit disputes will be
handled has been in the works for quite some time. However, as with
most change, many in the insurance industry seem to be looking at
this new process with hesitation and trepidation, possibly because
it is unfamiliar in comparison to the FSCO dispute resolution
system which many have worked with for their entire careers.
But fear not! The LAT's process, while new and unfamiliar,
is in fact quite similar to that of the dispute resolution process
at FSCO. The goal of the LAT's auto insurance dispute
resolution system (which the LAT has termed "AIDRS") is
to make the arbitration process more streamlined which, by very
definition, should make it more user-friendly.
For starters, there will be no more mandatory mediations in
advance of arbitration (as previously required by section 280 of
the Insurance Act). Instead, an applicant will be able to
apply for arbitration immediately upon his or her benefit being
denied or terminated. The arbitration process will then proceed as
The applicant will file an Application for Arbitration with the
LAT. This new form has been promised to be simplified and fillable.
In fact, it is the LAT's goal to eventually be able to accept
electronic filings and fee payment.
The insurer will retain counsel and file a Response to the
Application for Arbitration. The matter will then be scheduled for
a case conference (the equivalent of FSCO's pre-hearing
Prior to the case conference, the parties will be required to
file a case conference summary outlining the documents to be used
at the hearing, any production issues, the preference of type of
hearing (written, electronic or in-person), a list of witnesses
(including an explanation as to why more than two expert witnesses
are required, if applicable) and the details of the most recent
All parties and their representatives will be required to
attend the case conference, at which all preliminary issues will be
dealt with, settlement will be discussed, the type of hearing will
be decided (if not decided already) and a hearing date will be set.
Similar to FSCO pre-hearings, case conference arbitrators will have
the authority to grant any Order that is considered proper for the
conduct of the proceeding.
If the matter does not settle at the case conference, the
hearing will proceed as scheduled:
Written hearings are expected to be used for
all disputes under $10,000.00 or disputes to determine whether an
applicant falls within the MIG.
Expedited, electronic hearings (e.g. telephone
hearings) are expected for most other disputes.
In-person hearings will be reserved for the
most serious cases and are therefore expected to only be used for
issues such as catastrophic impairment determination, entitlement
to post-104 week income replacement benefits and significant
attendant care claims.
NOTE: Although written and electronic options were available at
FSCO, they were rarely used except for simple motions. For this new
regime, the LAT intends on only 10-percent of cases to proceed by
way of an in-person hearing.
Once a hearing decision is made, either party will have the
option of requesting the Executive Chair of the Safety, Licensing
Appeals and Standard Tribunals Ontario (of which the LAT is a part)
to reconsider the decision. Alternatively, the party can appeal the
decision to the Divisional Court of Ontario, followed by the Court
From the time the Application for Arbitration is filed, the
LAT's goal is to have hearings completed withing the following
These are ambitious goals given the number of applications
expected. To avoid backlogs, the LAT has promised to remain
flexible with respect to resourcing and staffing (thereby
suggesting that it is entirely possible that ADR Chambers could
continue to be used for overflow claims).
Hopefully the system will work as well as it is being touted.
Regardless, though, the intricacies of the new system are nothing
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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