Written By: Jordan Assaraf, Personal Injury Lawyer.
On April 1, 2016, the Ontario government transitioned away from the Financial Services Commission of Ontario (FSCO) as the tribunal tasked with the adjudication of statutory accident benefits (SABS) disputes, and handed over the responsibility to the License Appeals Tribunal (LAT). The LAT was supposed to cut down the lengthy backlog and delays at FSCO. Instead, we find ourselves experiencing long delays between applications, case conferences and hearings. We also have a quasi-judicial body that has introduced new hurdles for accident victims seeking much-needed benefits, while making things easier for already well-financed insurers. In this blog, I outline the LAT's purpose, some problematic areas and failings, and I explain how these failings hurt accident victims as they attempt to access health care and rehabilitation services.
Time is not on your side.
When the government announced plans to replace the FSCO process (mediation and arbitration) with the LAT (a case conference and hearing), more than a few personal injury lawyers and victim rights activists applauded the effort. FSCO had become so bogged down and slow that some justices observed there did not appear to have any timelines to guide dispute resolution.[1] Initially, the LAT experienced some success in setting and meeting appropriate timelines. The LAT website provides that case conferences should be scheduled to take place 45-60 days after an application is submitted. A hearing should be scheduled to occur approximately 60 – 90 days following the case conference, and decisions are to be received about 90 days after a hearing. A December 2018 article appearing in The Litigator magazine, a publication of the Ontario Trial Lawyers Association, entiteld "LAT Stats" [2] found that while the tribunal, on average, took slightly longer than expected in its first year of operations to set case conferences, it did set hearings and produced decisions on time. As the number of cases in the LAT system grew in its second year, however, the average length of time between application and case conference grew even longer (to about four months), while the time between a hearing and a decision reached similar and unacceptable milestones. By 2020, the LAT's active caseload had grown by 126 percent over two years. Even some modest gains in productivity and efficiency could not offset this growth, and the disposition rate stayed relatively stable at 83 percent.[3] Moreover, even when a decision is eventually reached, the story does not end. The growth in requested reconsiderations by the LAT – which is successful about one-third of the time generally, and about 40 percent of the time when dealing with substantive grounds – has been very troubling for timely justice proponents. I've learned that, in consulting colleagues, I'm not alone in representing clients experiencing significant LAT scheduling delays. Waiting four to five months between application and case conference is commonplace, and one client is currently in the middle of an eight-month wait between the case conference and hearing.
Justice delayed is justice denied.
The old saying "good things come to those who wait" may be apropos in most circumstances , but not always, and what happens to clients while they await the next step in a LAT proceeding? Take, for example, the plaintiff in one of my cases. As I write this, my client is experiencing a year-long wait for a LAT hearing over denial of statutory income replacement benefits. With no money coming in due to the insurer’s denial, he lives in a shared house with strangers to afford a roof over his head. In the LAT process, a medical or rehabilitation treatment plan, or other accident benefit, retains the status of a denial until either the issues settle outside of the LAT or a report is issued following the LAT. When LAT timelines stretch to unreasonable lengths, accident victims are left to pay out of pocket for necessary treatments, or suffer an income void while waiting until a hopefully favourable decision is obtained. Having to wait and not having an alternative, can comprise an accident victim's rehabilitation and recovery trajectory. The pressure on clients to settle for less than is merited can be immense.
A new dawn becomes a dark day.
With the promise of access to timely justice disappearing, are there any other parts of the "update" to the LAT operating system that make it a worthy successor to the former FSCO dispute resolution process? I would say no. The move to the LAT has at least arguably done more harm to car accident victims than good. Unlike FSCO proceedings, the LAT very rarely provides costs to successful applicants. For smaller claims, paying the LAT application fee and any associated costs for medical reports, expert reports, or witness fees can significantly reduce or obliterate the amount of money a successful claimant will be able to keep. In some cases, undertaking the cost of proceeding to the LAT simply makes no economic sense at all, clearly giving insurers the upper hand. Personal injury firms may not pursue LAT claims on behalf of car accident victims unless the claims are tied to cases with tort exposure or larger benefits amounts. While accident victims have the right to represent themselves at LAT hearings, the process can be daunting and confusing. They may be facing the expertise of an experienced defence lawyer with access to the enormous financial resources of the insurer. Even if a car accident victim's lawyer is ready to take on the claim, the lawyer and client are facing somewhat of a black hole of uncertainty at the LAT. Although it is a successor to FSCO, the LAT is not bound by its precedents. While FSCO precedents may be persuasive to LAT adjudicators, they are under no obligation to follow them in considering how the language of the SABS should be interpreted or applied.
Gluckstein Lawyers - compassionate personal injury lawyers.
What once seemed so promising – a process designed to produce shorter wait times for the resolution of SABS cases – has turned out to be a significant setback for accident victims trying to access their benefits. Not only have wait times crept back up – once again, hindering timely access to justice – but the LAT system's limited willingness to award costs to successful litigants makes the process less viable for accident victims and their representatives. Suppose accident victims cannot access benefits, or disbursements eat significantly (or completely) into these benefits when they are provided. In that case, they are forced to make difficult choices about their health care treatments and rehabilitation. No one should be put in this position. The provincial government must recognize the LAT update has failed some of Ontario's most vulnerable accident victims. They must fix these problems with LAT Version 2.0 or go back to the drawing board and develop a system where accident victims' access to justice is neither delayed nor denied by a faulty system.
At Gluckstein Lawyers, we believe people who have suffered personal injuries deserve care, compassion and the right to have champions working on their behalf to access what they need for their recovery. It's part of our commitment to full circle care. To learn more about how we can help, contact Jordan Assaraf.
Sources [1] Cornie v. Security National, 2012 ONSC 905 (CanLII) [2] Duncan Macgillivray. "LAT Stats," The Litigator, December 2018 pp. 32-35. [3] Gibillini, “The Answer Lies Within.” InHealth.ca, July 28, 2020https://inhealth.ca/2020/07/28/the-answer-lies-within/