LAw TIMES
• FEBRUARY 13,
2017
PAGE
13
----------------------------------INSURANCEDEFENCEBOUTIQUES ----------------------------------
Steep learning curve for accident benefits lawyers
BY MICHAEL MCKIERNAN
For Law Times
ccident benefits lawyers
at the province's insurance defence boutiques
are on a steep learning
curve as they deal with the upheaval created by the new process
at the Licence Appeals Tribunal.
Since April last year, all matters under the Statutory Accident Benefits Schedule have
been diverted from the Financial
Services Commission of Ontario into arbitration at the LAT,
without the requirement for mediation that existed under the old
system. As part of the transfer,
claimants also lost their right to
sue in court for accident benefits.
Heather Kawaguchi, chairwoman of the new LAT practice
group at insurance defence boutique Zarek Taylor Grossman
Hanrahan LLP, says it's hard to
underestimate the scale of the
change for all involved.
"We've known the LAT was
coming for a long time, but no
matter how much planning you
do, you can never tell how something is going to go until it's
here," she says. "This is a brand
new tribunal that is supposed
to have expertise in its subject
matter. But the reality, at least for
now, is that they have no experience, because nobody does. We
have new rules, new timelines,
new a~judicators and new language. For people practising in
the area, things are completely
topsy-turvy compared with how
they used to be."
At McCague Borlack LLP's
Toronto office, partner Catherine Korte says lawyers on both
sides of the personal injury bar
have taken their concerns about
the new process to the I\linistry
of the Attorney General in the
hope of spurring changes.
While one of the aims of the
LAT transfer was to speed up the
accident benefits adjudication
process, Korte says the tribunal 's
hard line on case conference adjournments has shocked practitioners. She says the LAT rules
contemplate adjournment requests from counsel to be made
in writing, listing three alternative dates within 30 days of the
slot assigned by LAT schedulers.
''But adjournments on consent are rarely being granted
and, in fact, are refused without reason," Korte says. "That's
problematic, particularly in a situation where a lawyer is unavailable due to a medical emergency
or alternatively because the LAT
has double or triple booked
them for case conferences at precisely the same date and time."
Korte would like to see the
LAT adopt the e-calendaring
system developed under the previous FSCO regime, which she
says was popular among lawyers.
Kaitlin Troisi, a spokeswoman for the LAT, said in a statement provided on Feb. 8 that
the tribunal's accident benefits
division is in the process of clari-
A
- --
- - - - - - --
-
Catherine Korte says lawyers on both sides
of the personal injury bar have had concerns about the new process at the Licence
Appeals Tribunal, and expressed these to
the provincial government.
fying the adjournments process
with parties.
"However, as with other tribunals and the courts, adjournments will not be granted as a
matter of course, even with the
consent of the parties. The de-
cision to grant an adjournment
is within the discretion of individual adjudicators, and one of
the factors they are required to
consider is whether the adjournment might result in a significant risk of delay," Troisi says.
Once the parties attend for
their case conferences, they simply aren't as effective as the old
pre-hearings at FSCO, according
to Cary Schneider, a partner at
Beard Winter LLP, whose practice includes a focus on accident
benefits claims. The FSCO hearings took place in person and
gave defence counsel a chance to
meet the claimant, but case conferences at the LAT now tend to
take place on the phone.
"Negotiation is more difficult, because it's very easy to say
'no' to someone on the phone,
whether you're acting for the insurer or the claimant," he says.
Schneider also finds LAT adjudicators less encouraging of
settlement than their counter-
parts at FSCO, who he says were
often willing to caucus with
both sides privately in order to
bring them closer to resolution.
"The adjudicators have told
us they are prevented from doing that. They want to come off
as neutral and do everything out
in the open, so they're a bit hamstrung as to what they can say in
terms of what they think the case
is worth," Schneider says.
In another statement provided late last year, Troisi acknowledged that the transfer "is a significant change for all parties,"
and said the LAT is focused on
improving "the efficiency and
effectiveness of the system" during the two-year implementation phase of its accident benefits service.
"Over the course of this implementation period, LAT will
continue to take into consideration the feedback received from
parties," she said.
The LAT transfer has also
caused consternation at the
board level of insurance defence
boutiques, says Bill Chalmers,
managing partner at Hughes
Amys LLP.
"It's difficult to know how to
staff your accident benefits department. Right now, we haven't
had a lot ofLAT matters, but it's
difficult to know whether there
is going to be a deluge of applications in the near future," he says.
Part of the problem has been
the suspicion that some plaintiff-side law firms are holding
back from using the LAT, particularly in higher-value cases
involving catastrophic injuries,
either because they're hoping for
changes to the procedure in the
near future or because they have
had problems meeting the LAT's
more stringent requirements.
Claimants must have medical reports from experts and
employment records ready to go
before applying for arbitration
at the LAT.
LT
Kyla A Baxter, esse
PRESIDENT, BAXTER STRUCTURES
BAXTER
Structures
Need more information?
- -------------Contact us at 1 800 387 1686
or baxterstructures.com
- - - - - - - - - -- -- --
wV<:w.lawtimesnews.com - - -- - - - - - - - --
-
- -- - - - -- -- - --