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.[1]
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 changes.
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.[2] 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 Student, 2016).
Footnotes
[1] The Report can be found here http://www.fin.gov.on.ca/en/autoinsurance/drs-final-report.pdf
[2] 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).
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