Key decision ensures timely access to justice for injured auto accident victims
November 29, 2012 – Burlington – The Ontario Trial Lawyers Association today welcomed the decision of the Ontario Court of Appeal which confirmed that injured accident victims are entitled to timely dispute resolution services when they are denied Statutory Accident Benefits by their auto insurers. At issue in this appeal was the 60-day timeframe within which mandatory mediations are to be completed by the Financial Services Commission of Ontario (FSCO).
In commenting on the decision, OTLA President Andrew Murray said that the court could not have been clearer. “The Court of Appeal has said that 60 days means 60 days,” Murray said. “This is an important decision to ensure timely access to justice for injured auto accident victims, as justice delayed is justice denied,” Murray added.
“When you impose a mandatory dispute resolution system, it’s absolutely critical to ensure the system deals with disputes promptly. What we’ve had is anything but prompt resolution of these matters – mediations have become delayed for more than a year after filing, with nothing else happening in the meantime. Of course, for victims, it’s not just a delay in having ‘their day in court,’” said Murray. “Regrettably, the unconscionable FSCO mediation backlog has resulted in ‘disability due to delay’ as treatments needed soon after an accident can be delayed indefinitely, often until symptoms of chronic pain set in.”
Ontario auto insurers and FSCO have argued that the 60-day timeframe did not start until an application was processed by FSCO and found to be complete. The Court of Appeal disagreed:
“…the act, the regulations and the DRPC [Dispute Resolution Practice Code] make it clear that the process is intended to be completed within sixty days from the filing of an application for mediation with FSCO, unless the parties agree to an extension of time. The scheme postpones the right of insured persons to commence civil actions against their insurers in order to allow the mediation process to be completed within the time prescribed, but leaves them free to commence actions once that period has expired.”
Writing for the Court, Simmons JJ.A. concluded that “The 60-day time limit, as I see it, is an integral part of the legislative scheme that aims to provide a speedy mediation process.”
An estimated 24,000 individual auto insurance claims are currently backlogged in the mandatory dispute resolution service at FSCO.
OTLA is a professional association of more than 1,400 plaintiff, law clerks and law students. Our purpose is to promote access to justice for all Ontarians, preserve and improve the civil justice system and advocate for those who have suffered injury and losses as a result of the wrongdoing of others.