June 1, 2016 marked the end of the old Statutory Accident
Benefits Schedule ("SABS") and the start of
a new system. The impact of the drastic cut of benefits that car
accident victims are entitled to cannot be overstated. In addition
to the slashing of benefits, the dispute resolution procedure has
been significantly changed. Perhaps the two most critical
procedural changes is the virtual elimination of costs being
awarded to a successful party and accident victims' right to
access the courts to sue their insurance company.
In 2012, the Minister of Finance of Ontario commissioned former
Associate Chief Justice of Ontario J. Douglas Cunningham to conduct
a systemic review of the dispute resolution system of the
SABS and to develop firm recommendations for change.
Disputes between an insurer and our clients must now be subject
to the Licensing and Appeal Tribunal (LAT). There are strict
timelines to be followed in an effort to improve access to justice.
While Justice Cunningham recommended that an administrative
tribunal should be given the jurisdiction as this promotes
"independence and impartiality", the Provincial
Government failed to incorporate a number of Justice
Cunningham's recommendations including: mandatory Settlement
Conference, with associated cost penalties, prior to a formalized
dispute resolution. A further recommendation not implemented was
appeal of a tribunal decision directly to a single judge of the
Superior Court of Justice. These are examples of the Government
picking certain insurer friendly recommendations and not following
recommendations that would benefit accident victims.
While the government took into account the majority of the
recommendations, there are number of questions that remain.
Examples include why Justice Cunningham was only asked to review
the dispute resolution system, but not the adequacy of benefits
that were subsequently cut? Additionally, despite the fact that
nowhere in the report did his Honour recommend elimination of costs
to the successful party, this was put in place in the June 2016
Additionally the Province did not consult with legal academics
in the field of "dispute system design." According to
academics in this field, a system should be based on concrete
goals, have multiple procedural options, be voluntary, transparent,
accountable and involve equal input from stakeholders to reflect
the imbalance of power. Does the new system take into
account the imbalance of power between the injured and insurance
corporations? Did the changes take into account input from the
public? Does the system develop a fair level process?
Unfortunately, the victims are left to suffer the consequences of
the answers to these fundamental questions.
This article was co-written by Gerry Antman (HSH Summer
Stephanie Smith and Janet Martinez, "An Analytic Framework for
Dispute Systems Design" (2009) 14 Harv. Negot. L. Rev. 123;
Khalil Shariff, "Designing Institutions to Manage Conflict:
Principles for the Problem Solving Organization" (2003) 8
Harv. Negot. L. Rev. 133; William L. Ury, Jeanne M. Brett &
Stephen B. Goldberg, Getting Disputes Resolved: Designing
Systems to Cut the Costs of Conflict (San Francisco:
Jossey-Bass Publishers, 1988); Cathy A. Costantino & Christine
Merchant, Designing Conflict Management Systems: A Guide to
Creating Productive and Healthy Organizations (San Francisco:
Jossey-Bass Publishers, 1996).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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