Concerns expressed in 2015 about the Licence Appeal Tribunal (LAT) assuming responsibility for accident benefits disputes have been validated, says Barrie-area personal injury lawyer Steve Rastin.
“Four years ago, as president of the Ontario Trial Lawyers Association, I made submissions to the previous Liberal government at Queen’s Park and questioned the logic behind this change,” says Rastin, managing partner of Rastin Gluckstein Lawyers. “I told them the proposed system wasn’t going to be fair and was not going to work, but the government went ahead with this major transformation anyway, and now accident victims are suffering because of it,” he adds.
Before 2015, disputes under the Statutory Accident Benefits Schedule (SABS) were subject to the jurisdiction of the Financial Services Commission of Ontario (FSCO), Rastin says. That responsibility was given to the LAT, which previously adjudicated decisions in such areas as fishing licences and liquor licensing.
“Many people sounded the alarm back in 2014-15,” he says. “The FSCO arbitrators were very specialized, and they knew their material better than anybody, but rumour has it some people within the insurance industry felt they were ruling in favour of claimants too often.”
Because the FSCO arbitrators enjoyed tenure, their jobs were effectively safe, Rastin says, which was a good thing.
“You couldn’t just remove them because you didn’t like their decisions,” says Rastin. “It is a hallmark of judicial independence that judges and arbitrators should be free to rule without having to worry about losing their jobs,”
In 2015, he says the government took the responsibility to deal with auto accident benefits away from FSCO and gave it to the LAT.
“Many of us were concerned the system being proposed would be unfair to the point that it would be unworkable,” says Rastin. “We worried about procedural safeguards, and a recent Ontario Court of Appeal decision shows that those concerns are valid.”
According to court documents, a woman injured in a car accident applied to her insurer for a determination as to whether her injuries met the 55 per cent threshold for catastrophic impairment provided in the SABS. Following a hearing before the LAT, the woman was told her she was only at the 51 per cent level, and therefore did not meet the threshold.
Two months later, according to the judgment, her counsel received an anonymous letter alleging the decision in her case was “reviewed and changed” by the executive chair of Safety, Licensing Appeals and Standards Tribunals Ontario, which oversees the LAT, and that the adjudicator who heard the case was reluctant to sign the decision. The woman asked for judicial review, which the Divisional Court granted, setting aside the LAT’s decision, court documents state. The appeal court agreed there was a reasonable apprehension of lack of independence with respect to the decision, and ordered a new hearing before the LAT.
“When you read this document, it looks like bureaucrats inside the LAT were involved in reviewing and rewriting the decision, even though they didn’t personally hear the case,” says Rastin.
“It’s like arguing a case in front of a judge and then having that judge go to the regional senior justice and say. ‘Before I render a decision, can you read it over for me and make any changes you desire?’ That is completely inappropriate, yet it seems to have happened,” he says.
Rastin says the current system includes measures that discourage plaintiffs from requesting a hearing before the LAT.
“Under the old system, if I won a case, my clients would get some compensation for their legal costs and get their disbursements back to cover the cost of bringing in doctors or having an expert write a letter,” he says.
“Under the LAT, there is no legal expense or disbursement recovery,” Rastin says. “Doctors and other experts won’t testify or write reports for free, so the claimant might end up spending thousands of dollars even if they win, and so there’s a real disincentive.”
He says he is also displeased that the LAT wants to conduct hearings in one day by teleconference in an attempt to cut costs.
“How do I cross-examine somebody and decide if they are telling the truth or not by teleconference?” Rastin asks. “As a lawyer, you want to look at people and see their body language, and you want the arbitrators to see that also, which is impossible in a teleconference.”
The automatic statutory deductible of almost $40,000 taken from any damage award is the final insult to accident victims, he says.
“When you add all those things up, one has to worry if the changes that the Liberals introduced in 2015 are designed to make it unlikely that people will try to pursue the insurance benefits they are entitled to,” Rastin says.
“The current government needs to completely gut the system and redo it,” he says. “We have reached the point where it’s time for a rewrite.”