The Province of Ontario’s 2015 budget announcement included several items of critical concern to Ontario car accident lawyers, accident victims, and victims’ rights advocates. Chief among those were modifications to the definition of “catastrophic impairment,” and severe proposed cuts to benefits for catastrophically and non-catastrophically injured accident victims.
Additionally, the provincial budget proposed significant procedural changes for disputes under the Statutory Accident Benefits Schedule (SABS). Between 1997 and 2016, such disputes were subject to the adjudication of the province’s Financial Services Commission (FSCO). As of April 1, 2016, the Licence Appeal Tribunal (LAT) took over this responsibility.
The Ontario Trial Lawyers Association (OTLA), a group that includes Ontario car accident lawyers and promotes universal access to justice, expressed ‘significant concerns’ about the new dispute resolution procedure. The LAT, the OTLA argued, had no history of managing conflicts between insurance companies and injury victims seeking compensation.
The OTLA wasn’t alone in their apprehension. “The new adjudicators will be dealing with the same clientele and will need to interpret the same complex and frustrating statutory accident benefits,” wrote Willie Handler of Willie Handler and Associates in an article for Canadian Underwriter. “It will take some time to determine how much different the new system is.”
The story so far
In the nearly one year since the LAT took over SABS dispute resolution from the FSCO, they have released more than 20 decisions, the first of which was published in July 2016.
An OTLA blog post summed up a few trends revealed by the early decisions:
– ‘The LAT is conducting a lot of hearings in writing. Counsel should be ready for that and prepare to tailor their evidence and argument accordingly.
– The LAT is keeping their decisions short.
– The LAT is not ignoring previous case-law.
– Counsel should turn their minds to the costs issue and requires it when merited. Remember, LAT costs are for when a party has acted “unreasonably, frivolously, vexatiously, or in bad faith.” If you are going to request costs, have evidence in support.’
In February, the Tribunal published its first decision on catastrophic impairment, a long-awaited event among Ontario car accident lawyers. The case concerned a woman who sustained severe injuries – subarachnoid haemorrhage; laceration on scalp that exposed skull; multiple pelvic fractures – in October 2015. Her GCS score, a grade that ranks responsiveness from 3 to 15 with three being the least responsive, was 12 en route to the emergency room, where it fluctuated between 13 and 10. During an air ambulance trip to a trauma centre, however, it fluctuated between 7T and 2T, low enough to automatically qualify her as catastrophically injured under the province’s old rules.
The applicant’s insurance company disagreed that she had suffered catastrophic impairment, but the LAT sided with the injured individual.
Exactly what this ruling means for the future of SABS disputes under the LAT remains is anyone’s guess. Certainly, LAT rulings in favour of injury victims will not make up for the benefits lost under Ontario’s new auto insurance policy. But it at least hints at access to compensation under the LAT’s purview.