Expert Evidence in Accident Benefit Cases: Considerations Under the “New” LAT system

Assisting claimants pursue accident benefits claims used to be a rewarding and popular area of practice. Significant numbers of lawyers and paralegals worked on both plaintiff-side and insurer-side litigation to assist with this highly technical and labour-intensive area of personal injury law. However, recent legislative changes to the system are in the process of changing that reality.Since the passage of Bill 15 [1] and the migration of accident benefits disputes from the Court and the Financial Services Commission of Ontario to the Licence Appeal Tribunal, this has now become one of the more difficult areas of civil litigation in which to practice. Part of the problem brought on by these legislative changes relates particularly to the challenges involved in bringing proper expert evidence to deal with the complex, and highly-technical, questions that drive accident benefits disputes.

So how should you use experts under the “new” system? For the reasons set out below, my view is sparingly or not at all.

The current question needs to be viewed in its historical context. Of course, I approach this question from my own perspective. I consider myself a grizzled veteran, a tin-hat civil litigator who has made a career of representing tort claimants. I approach this analysis from the standpoint of a tort litigator who does some accident benefits work, rather than as a professional, running a high-volume SABS shop. Prior to the introduction of Bill 15, lawyers had the option of litigating SABS disputes in either the Courts or the Financial Services Commission. There were tactical reasons to consider either option, but more often that not, plaintiffs counsel sued tort defendants and SABS insurers jointly in one Ontario Superior Court action. Expert evidence considerations were a key consideration for the decision to proceed jointly. Economic loss and entitlement to income replacement benefits are separate questions, but they are sufficiently similar to allow one expert to address both questions. A plaintiff either can work or she can’t. A forensic accountant can address economic loss and IRB quantum in the same report. Running both disputes under a single claim saved costs, promoted efficiency, and brought both payers to the table at mediation or pre-trial. Given the significant interface / set-off issues involved, unified actions provided a practical route to settlement and allowed reasonable solutions to collateral deductibility problems. [2]

That is not to say that there weren’t times when litigators would choose to proceed by way of arbitration. Sometimes there is not a viable tort claim, or the tort matter would have a significant liability risk. Sometimes the tort defendant would propose early settlement on favourable terms, and leave claimants free to pursue accident benefit claims without an obligation to repay. Sometimes, claimants desperately needed benefits and pursuing AB claims offered the only possibility of getting them relief in a timely fashion. In those cases, the Financial Services Commission [3] offered a means of obtaining a fair hearing, with limited cost recovery and cost risk. In my practice, a case where we made full use of FSCO was G. v. Pilot Insurance Co. [4] where we went to arbitration, appeal, reconsideration and judicial review 9 times on the same case. I struggle to see how Ms. G. could have afforded to retain the experts she needed to use to prevail under the current system. However, the fact is that the prior system provided for limited payment for expert reports and expert testimony, which in turn allowed Ms. G. to succeed in her claims for catastrophic impairments, nanny services, income replacement benefits and other claims.

The entire system that I have been describing was ended by Bill 15. The cost savings and efficient use of experts provided by bringing joint tort and AB lawsuits was abolished. In fact, all cost recovery for legal fees, disbursements and expert costs were abolished. The result is that accident benefits claimants have been reduced to the same precarious situation that other victims face when they attempt to dispute WSIB disputes or CPP applications. The fact is that most lawyers refuse to do WSIB or CPP stand-alone work because they can’t afford to. When claimants in WSIB or CPP cases find a lawyer or community legal clinic that agrees to take the file, the only experts that are utilized are the ones that will provide support for fees far less than are typical in personal injury cases. [5] These practice areas provided guidance as to how lawyers and paralegals are to proceed going forward on lower-value accident benefit disputes. Claimants will be dependant upon the benevolence of treating experts.

When should you retain experts in accident benefits disputes before the LAT? Clearly, the answer is sparingly. In fact, recent legislative and case law developments raise the legitimate question about whether it is a claimant’s best interest to pursue disputes at the LAT at all.

In my office, we still routinely file LAT disputes for denials of income replacement benefits and determinations of catastrophic impairment. We also sometimes proceed with disputes in cases where we also represent the plaintiff in civil actions – but in those cases who are really provided a loss-leader client service. In cases where the client is not CAT, and the tort claim is marginal (or non-existent), there is no viable avenue for hiring outside experts to build an argument. This will become even more apparent when the government proceeds with its proposed “Care, not cash” amendments [6] which will prevent claimants from lumping out claims. The current reality is that even in cases where I have a viable tort claim, there is a powerful incentive to get the denial, sue in tort, and offer an assignment. [7]

Recent decisions also raise the concern that proceeding with a LAT hearing has the potential to negatively impact a tort lawsuit proceeding in Superior Court. While I have confidence that, over time, the Licence Appeal Tribunal, will develop proper procedural and substantive protections, the recent case of Shuttleworth v. Ontario (Safety Licensing Appeals and Standards Tribunals), [8] found that the facts of that case showed a reasonable apprehension of lack of independence [9] and that the review process lacked appropriate procedural safeguards. [10] An analysis of the Shuttleworth decision is beyond the scope of this paper. It is clear, however, that the Court of Appeal found that the LAT had failed to provide sufficient procedural safeguards to provide the necessary “robust protections,” and it is troubling that the LAT disagreed with that finding both at the Divisional Court and the Ontario Court of Appeal. This is not the only recent decision where the LAT has taken positions about its own processes that give me pause. I was privileged to intervene for the Ontario Trial Lawyers Association in the recent Court of Appeal hearing in Tomec v. Economical. [11] One aspect of that decision that is getting little attention is the fact that, in Tomec, the LAT participated not only to put forth its position regarding the standard of review, but it also advanced a substantive argument, not made by Economical, against the Appellant to argue that her case should be dismissed. [12]

In my view, some of the current LAT procedures are similarly problematic when it comes to experts. How can a lawyer properly cross-examine when a hearing is held by teleconference? I have been advised that strict time limits, sometimes as short as 15 minutes, would be imposed for calling witnesses. Further, it is likely effectively impossible to advance a meaningful claim for bad faith conduct or unreasonable withholding of benefits before the LAT or the Courts. How do you deal with improper conduct by experts or adjusters? Circling back to Ms. G, for instance, I was able to advance arguments that the position taken by Pilot/Aviva’s experts and adjusters were unreasonable. This resulted in a significant award for “bad faith damages.” [13] This case was by no means unique. However, the recent Court of Appeal decision of Stegenga v. Economical [14] made it clear that notwithstanding the fact that the LAT was limited to making token awards for special awards; the claimant had no right to proceed in the Courts. The Court of Appeal found,

67. The facts giving rise to Ms. Stegenga’s dispute with the insurer relate to her entitlement to benefits or to the amount of her entitlement, as those terms are used in s. 280(1): they are connected to the category of SABs to which she was entitled, and to the proper amount of her entitlement, and they relate to the insurer’s handling of the claim. Because these matters are covered by the broad language in s. 280(1), they are within the LAT’s jurisdiction under s. 280(2), and are thus within the ambit of the s. 280(3) prohibition on court proceedings. The LAT is specifically empowered to grant relief for claims like Ms. Stegenga’s; the court is barred from doing so. [15]

Notwithstanding all of these concerns, there are some limited situations where claimants will almost always want to proceed with a LAT application. In my view, those situations are where the claim is sufficiently large enough that tort limits are likely exhausted, where there is an income replacement benefit dispute, or where there is a significant likelihood that the claimant will be found to be catastrophically impaired. Given that there is no cost recovery for disbursements at the LAT, how do you fund the cost of obtaining extra reports to prosecute these claims?

In the case of disputes concerning the possibility of being catastrophically impaired, existing jurisprudence provides some relief. Provided that a claimant can establish that a catastrophic assessment constitutes a reasonable expense, then she should be entitled to have the assessment cost funded. Further, the assessment cost should not come out of the medical and rehabilitation benefit limits, which should be considered to be an adjusting expense. A leading case which considers this question is Henderson v. Wawanesa. [16] In Henderson, Wawanesa argued that the OCF-18 for $9,942 submitted by Omega Medical for CAT assessments should be paid out of the med/rehab limits, or in the alternative, limited to $2000. Arbitrator Bowles rejected those arguments, found that it is a reasonable prospect that the insured person would be found to be catastrophically impaired, and the assessments should therefore be funded and treated as adjusting expenses. The arbitrator was unambiguous noting,

“In my view, the statute cannot be any clearer as to its intent and application. There is no room for ambiguity – the insurer shall pay the expenses of a CAT Assessment.” [17]

The clear wording of this decision did not prevent Unica from litigating the same issue in the recent decision of VK v. Unica Insurance. [18] In this case, VK submitted a treatment plan for a CAT assessment in the amount of $17,005.50, and Unica partly approved the plan agreeing to fund up to $11,752. However, Unica took the position that the assessment should be funded out of the med/rehab limits, and in this case those limits had been exhausted. Further, by the time of the hearing, the CAT assessments had been received and indicated that VK was not catastrophically impaired. The Adjudicator rejected Unica’s arguments, followed Henderson, and found that CAT determinations are not a benefit, neither were assessments required to apply for CAT termination, and therefore payment of same should not be deducted from limits. [19]

Unifund sought to litigate the same issue again in L.G. v. Unifund. [20] Here the adjudicator was again asked to consider whether $15,872 for CAT assessments should come out of the claimant’s $50,000 med/rehab limits. Funding for the CAT assessments was denied on the basis that the applicant had used most of her non-CAT limits and there was insufficient room remaining to cover the cost of the assessments. The applicant argued that the legislative intent cannot have been for this injured person to have to set aside approximately 33% of her medical and rehabilitation benefit maximum in order to fund the CAT assessments. [21] The adjudicator found that the claimant had met the requirement of proving that her request was reasonable, and therefore ordered that the assessments be refunded. Unfortunately, even though this appears to have been another attempt to relitigate a decided issue, the adjudicator declined to grant a special award because the dispute was over a legitimate question of statutory interpretation. [22]

Unless insurers are able to interfere with this well-established body of case law, it seems the claimants who can establish a reasonable basis for proceeding with the request for catastrophic injury determination should be able to compel insurance companies to fund expert reports to examine that question. The case law does not address, however, the legitimate challenge of what will happen if the catastrophic injury reports are not accepted and the case goes to hearing. I would respectfully submit the claimants will still face a challenge when it comes to determining how they will fund the catastrophic injury experts attending at the actual hearing. Those costs may be mitigated if the parties agree that the doctor who prepared the executive summary should be sufficient to testify without the other experts being called. The situation may be complicated, however, if one party or the other requires all of the assessing experts to testify. I note, for instance, in the LG decision, Omega identified six different experts who would be necessary to conduct independent examinations as part of the catastrophic injury determination process.

The other area where we routinely obtain expert reports and go to the LAT in disputes relates to disagreements over income replacement benefit calculations. Particularly in self-employment situations, calculations related to the quantum of income replacement benefits can be problematic. In our office, it is our practice to encourage the insurance company to arrive at a position regarding IRB benefits as quickly as possible. Unfortunately, this can be difficult in self-employment situations. As soon as we have the calculation from the insurer, we have the insurer fund a rebuttal report, relying upon sections 7(4) and (5) of the SABS which state,

Amount of weekly income replacement benefit amount

(4) The insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if all of the following conditions are satisfied:

The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report.

The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.

The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit. O. Reg. 34/10, s. 7 (4); O. Reg. 289/10, s. 2.

(5) The insurer is not required to pay more than a total of $2,500 for the preparation of one or more reports under subsection (4) in respect of an insured person. O. Reg. 34/10, s. 7 (5). [23]

In my office we use this report to obtain an analysis from a reputable forensic accountant concerning the calculation. Sometimes our accountant will come back and indicate that he simply agrees with the math set out by the insurance company. Other times, there will be a significant difference in the calculations. Differences are caused by two things: either a disagreement regarding the facts or in disagreement regarding the application of accounting and/or legal principles to the particular case. If the difference is factual, we can generally determine whether we can provide the evidence to correct the mistake or make a determination that evidence is not forthcoming, and therefore, we cannot prove our position. If the disagreement relates to an accounting principle or legal principle, our experience is that we can usually resolve the disagreement by negotiation or by bringing a motion without having to actually call the experts. We can simply ask the adjudicator to resolve the legal difference. In either way, relying on section 25 of the SABS enables us to get the expert opinion we need to move forward with the dispute.

In other cases, or if claimants are determined to proceed with disputes regarding lower value OCF-18’s, it is crucial the claimants find cost-effective ways of putting expert evidence in front of the LAT. [24] A practical solution is to consider simply filing the expert reports generated in the tort action as well as the clinical notes and records and treating reports generated by treating practitioners such as family doctors, physiotherapist, chiropractors and others. The solution is particularly applicable to the significant number of cases which are resolved at the LAT by written submissions. The relevant procedural provisions are as follows:

9.2 Mandatory Disclosure

A party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party:

Disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing;

Disclose a list of witnesses whom the party may call to give evidence at the hearing and a brief description of each witness’ anticipated testimony; and

Serve a copy of the documents, numbered consecutively, on the other parties.

10 Expert Witnesses

10.1 Expert Witnesses – General

For the purpose of these Rules, an expert witness is a person who is qualified to provide professional, scientific, training or experience in respect of the matters on which he or she will testify.

10.2 Expert Witnesses (Identification and Disclosure)

A party who intends to rely on or refer to the evidence of an expert witness shall provide every other party with the following information in writing:

The name and contact information of the expert witness;

A signed statement from the expert, in the Tribunal’s required form, acknowledging his or her duty to:

Provide opinion evidence that is fair, objective, and non-partisan;

Provide opinion evidence that is related to matters within his/her area of expertise; and

Provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue

The qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert;

A signed report that sets out the instructions provided to the expert in relation to the proceeding, the expert’s conclusions, and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal; and

A concise summary stating the facts and issues that are admitted and those that are in dispute, and the expert’s findings and conclusions.

10.3 Expert Witnesses (Disclosure Timelines)

The disclosure required by Rule 10.2 shall be made:

By the party who filed the notice of appeal, at least 30 days before the hearing;

By any other party at least 20 days before the hearing; or

As ordered by the Tribunal.

10.4 Expert Witnesses – Challenges to Qualifications, Reports, Statements

A party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal. [25]

A close reading of these rules shows that, unlike the Evidence Act and Rules of Civil Procedure, provided the above provisions are complied with, there is no specific rule that requires an expert who gives evidence to actually testify. In fact, the question as to whether the doctrine of a treating report must testify relates to whether the other party would be prejudiced by the inability to cross-examine that expert.

Although not directly relevant to LAT procedures, the seminal case of Westerhof v. Gee (Estate) [26] provides guidance as to how adjudicators and lawyers should approach the admissibility of opinion evidence provided by treating practitioners such as doctors and rehabilitation workers. In that decision, Mdm. Justice Simmons differentiated between hired experts and the broader group of witnesses, including treating physicians, forming opinions based upon their participation in the underlining events related to the treatment of an accident victim. She referred to this broader group of witnesses as “participant experts.” [27] She found that participant experts and non-party experts should be allowed to provide evidence without complying with the expert evidence rules pursuant to the Rules of Civil Procedure, and that it was an error of law to prevent those experts from providing their opinions. [28] There are compelling public policy reasons why the same analytical framework ought to be employed at the LAT to determine whether participant and non-party experts should be allowed to provide opinion evidence through their reports.

The Westerhof decision has been considered by number of recent LAT rulings.17-002339 v. The Guarantee Company of North America [29] considered a number of procedural issues including whether the applicant should be permitted to file an affidavit from his treating doctor. The insurance company objected filing the affidavit on the basis that it would not have an opportunity to cross-examine the doctor because the applicant was not producing him and argued that this inability to cross-examine resulted in a violation of procedural fairness. The adjudicator rejected this argument on the basis that the insurer had not demonstrated that it would suffer any real prejudice. It is significant that the applicant advised the insurance company more than a month before the hearing that it would not produce the family doctor and no objection was raised before the actual date of the hearing. The insurer also attempted to strike out certain portions of the affidavit on the basis that the doctor had not filed a R.53 Affidavit. The adjudicator also rejected this argument on the basis that the Rules of Civil Procedure, made pursuant to the Courts of Justice Act, only apply to court actions and do not apply to the tribunal. The adjudicator found Westerhof was not of assistance, and that even if it was, it supported the finding that the treating doctor should be allowed to provide evidence. Further, the applicant and his doctor had complied with LAT Rule 10.2, and his clinical notes and records and affidavit “for the most part” [30] fulfilled the requirements of LAT Rules 10.2(d) and (e) where a treating physician can provide a report setting up their conclusions regarding the issues on which they will be providing evidence to the Tribunal. It is an open question as to what would’ve happened if the Guarantee Company had sent an order in advance to compel the treating physician to testify.

S.M. v. Aviva General Insurance Company [31] was a request for reconsideration with respect to a motion in order to allow the applicant to file an affidavit with respect to her experience at an assessment. The respondent argued strongly that allowing the affidavit to be filed would be prejudicial. The vice chair, in rendering her decision, agreed with the initial tribunal decision that the “tribunal must be flexible in allowing necessary evidence to be adduced by the parties.” [32] The vice chair determined that the affidavit evidence should properly be admitted noting,

27. Considering the submissions of both parties, I find that the respondent has failed to establish that the Tribunal breached the rules of natural justice or procedural fairness. The respondent was given an opportunity to respond. The Tribunal determined that cross-examination was not required to ensure a full and fair hearing and had the discretion to limit cross-examination. I find no breach of the rules of natural justice or procedural fairness.

28. In reaching my decision, I refer to the decision of [2018 17-004229 v. The Guarantee Company of North America CarswellOnt 19838 (Ont. L.A.T.)], 2018 CanLII 112115 at para 7:

29. The Tribunal’s duty of procedural fairness to parties is to ensure they understand the case they have to meet and allow them to respond accordingly. In this case, the respondent has not demonstrated it will suffer any real prejudice in that regard. [33]

In my view, this case establishes a precedent for the argument that participating experts ought to be allowed to provide their opinions through reports without the need to actually appear at a hearing. It would be interesting, however, to see what would happen if one side or the other objected to participating or third-party experts providing opinion evidence via report without being called. Case law makes it clear that these objections should be raised well in advance of the actual hearing date at the LAT.

The final category of cases that identified where claimants might want to participate with LAT disputes relates to actions involving a tort claim that are significant where the available third-party tort limits may be exceeded. The decision about whether to proceed in such cases, however, will require a nuanced cost-benefit analysis. Lawyers considering proceeding with such cases should be aware of a recent Court of Appeal authority which, in my view, places significant procedural challenges before claimants who are considering proceeding with both tort and accident benefit disputes in separate, but related, proceedings. In fact, for the reasons set out below, it may be the claimants who will be placed in the difficult decision, determining whether to proceed in tort or in accident benefits. In such a situation, given the increased opportunity to capture legal expenses and assessable disbursements in civil actions, the best course of action may arguably be to abandon the accident benefits case and proceed with a tort action.

Claimants and their lawyers who are considering how to best proceed in the modern environment should carefully consider these recent Ontario Court of Appeal decisions: El-Kodhr v Lackie, [34] Cobb v. Long Estate, [35] Cadieux v. Cloutier, [36] and Carroll v. McEwen. [37] These cases, taken together, fundamentally change the manner in which tort and accident benefits claims work and the rules with respect to collateral deductibility. A full discussion of those cases is beyond the scope of this paper. I will limit my comments on how the decisions impact the use of experts and the decision regarding whether to proceed with LAT disputes.

El-Khodr and Cobb are relevant for signaling that the Court of Appeal came to the conclusion that the strict qualitative and temporal matching requirements of previous Court of Appeal decisions [38] were no longer good law in the province of Ontario. This stance was unambiguously affirmed by the Court of Appeal in Cadieux which stated,

8. For the reasons that follow in this case, and in Carroll, we affirm the silo approach to both deductibility and assignment of SABs set out at paras. 38-56 of Cobb and at paras. 33-72 of El-Khodr. The silo approach is consistent with the statutory language of s. 267.8, is fair to plaintiffs, defendants and their insurers, and promotes efficiency in motor vehicle accident litigation. The decision of the Supreme Court of Canada in Gurniak questions the jurisprudential underpinnings of Bannon. In that light, and in view of subsequent changes to the Act, Bannon and Gilbert can no longer be regarded as binding authority in relation to the degree of “matching” required between tort damages and SABs for deduction and assignment purposes. [39]

The impact of this change cannot be overstated. Where before past and future benefits could be separated, specific sub headings of benefits could be carved out, and plaintiffs could advance claims for benefits “net” of AB’s paid to date, the Court of Appeal has determined that deductions are now on a gross basis with global past and future benefits applied as a credit to any award.

In Cadieux, OTLA made a seemingly reasonable argument that requiring plaintiffs to prove all expenses, even those already paid, would add a needless complexity to trials. However the Court rejected this argument, noting,

88 It follows that we do not accept the intervener’s submission that requiring plaintiffs to prove all expenses, whether covered by SABs or not, will make motor vehicle accident trials lengthier and more expensive. Plaintiffs should be required to claim at trial all damages arising from the accident, including expenses for which compensation has already been received through SABs or will in the future be paid through SABs. As MacFarland J.A. put it in El-Khodr, at paras. 84-85:

Future plaintiffs in motor vehicle accident cases should minimize trial courts’ difficulty in matching damages and statutory benefits by presenting their claims according to the categories in s. 267.8 of the Insurance Act: they should make a claim for past and future income losses, a claim for past and future health care expenses; a claim for other past and future pecuniary losses that have SABs coverage; and a separate claim for any past and future pecuniary losses that lack SABs coverage. In cases involving non-catastrophic injuries, the presentation of the claim should account for the monetary limits and temporal limitations on benefits compensating for such injuries.

Plaintiffs should be required to present their cases in this way. They alone know best what amounts they have expended in relation to their injuries that their SABs insurer did not or will not reimburse. If those items are separately categorized, the matching difficulties disappear – as does any risk of over or under-compensation.

89 Claims should therefore be presented on a “gross” basis, rather than net of SABs. We see nothing unusual or complicated in this approach. It is done as a matter of course in other forms of litigation where a plaintiff brings suit for both insured (subrogated) and uninsured (unsubrogated) claims. It is also commonplace that plaintiffs in personal injury actions will provide proof of underlying goods and services that have already been consumed as a result of their injuries, in order to demonstrate the severity of their injuries and their ongoing need for such expenses. This information will be readily available to counsel, and proof of the expenditures should be uncontroversial. The SABs paid will be a matter of record and can be readily established. [40]

Clearly, in significant claims, plaintiffs are going to proceed to collect their accident benefits and do the extra work at trial. However, in a case that is more modest, and that falls within the new Simplified Rules that limit length of trial and disbursements, it will likely be prohibitive to take the additional steps which the Ontario Court of Appeal inexplicably fails to see will be more expensive.

Another concern about the court’s decision to abolish the long-standing apples to apples approach for dealing with collateral deductions relates to contributory negligence. In Cadieux, the Court of Appeal clearly articulated that they view that the legislation requires that the damages attributable to the plaintiff’s contributory negligence be deducted first from the damages awarded by the jury, then the total SABS amount paid should be deducted, and then the amount outstanding will be awarded with an assignment given to the defendant. Consider this for a moment; what if an individual receives $500,000 in SABS benefits to the date of trial, but is found to be 50% contributory negligent by the jury room. The plaintiff has to prove that he actually received $500,000 in benefits and that he was entitled to this amount. It is not impossible to conceive situations where the jury might award a lesser sum, say $400,000, based on considerations that will never be known to the parties. The 50% contributory negligence percentage will be applied to this amount resulting in an award of $200,000. However, the $500,000 actually received by the plaintiff will be deducted from that amount meaning that the plaintiff will be in a negative $300,000 net position which will be presumably offset against any future entitlement. In my view, this manner of proceeding cannot be fair and will clearly result in claimants abandoning either the other tort or accident benefit claims. It is worth noting that in the Court of Appeal decisions we are considering, awards of several hundred thousand dollars were reduced to almost nothing through the application of these rules.

Finally, claimants who are considering hiring experts to proceed with accident benefit claims, should consider the fact that there is a significant risk that they will not receive credit for the monies that they expend in fighting for accident benefits; notwithstanding the fact that 100% of any monies received (and perhaps more) will be applied to benefit the wrongdoing tortfeasor in the selection and no benefit will accrue to them. I note that the Court of Appeal did appear to leave open the possibility that claimants could apply and argue that they should only have to give credit for the net benefit received, but “that the tort defendant should not be required to pay the costs of the plaintiff’s pursuant of SABS as a general principle or as a matter of course.” [41] The Court identified a number of factors that should be considered when deciding whether costs should be awarded inclusive of fees and disbursements actually billed, whether the litigation involves particular risk or effort, proportionality of legal costs and expenses, whether the accident benefits case resolved by way of settlement arbitration, any cost paid as a result of arbitration, whether any portion of the costs occurred as a result of unusual or labour-intensive steps but should not be reasonably be paid by the defendant.[42] However, in supplemental reasons, the Court declined to allow for any deduction of the $95,000 paid in legal fees by Cadieux notwithstanding the fact that the amount was court approved previously and resulted in a $900,000 accident benefits settlement. [43]

To conclude, recent legislative changes and court decisions have resulted in accident benefits litigation becoming a much more difficult area in which to practice and properly represent claimants. Pursuant to the current reality, it is becoming difficult, and will become more difficult, to represent individuals engaged in this type of dispute. In my view, going forward, there may be room to continue to advance cases if you are permitted to file reports from treating doctors without having to call those doctors to give evidence at hearings. Otherwise, cases will likely become less common at the LAT due, in part, to the challenges in obtaining and presenting expert evidence in a cost-effective manner. It is likely that only cases involving income replacement benefits, catastrophic determination and significant damages claims, where tort limits are involved, will justify the expense of proceeding with in person LAT hearings involving the experts. Further, recent Court of Appeal authorities, require lawyers to consider whether incurring expert costs to build accident benefit claims is warranted when success may not result in a net benefit to the claimant (or whether, conversely, success with an accident benefits claim makes the tort action non-viable).

If there is one constant in accident benefits in Ontario, it is that the system is constantly changing. The concerns regarding the use of experts in accident benefits disputes raised in this paper highlights one of the many inadequacies of the current system. I expect that in the near future the current system will again be revisited. With luck, some of the current inequalities will be addressed.

[1] Bill 15, An Act to amend various statutes in the interest of reducing insurance fraud, enhancing tow and storage service and providing for other matters regarding vehicles and highways, 1st Sess, 41st Leg, Ontario, 2014 (assented to 20 November 2014), SO 2009, c 9.

[2] How to properly deal with collateral deductibility was a central issue in recent Ontario Court of Appeal disputes: Cadieux v Cloutier, 2018 ONCA 903; Carroll v McEwen, 2018 ONCA 902.

[3] And prior to that the Ontario Insurance Commission.

[4] G v Pilot Insurance Co, 2006 CarswellOnt 4121 (FSCO Arbitration Decision).

[5] Say, for instance, a family doctor who writes a report to support his patient for a nominal fee.

[6] These proposed amendments would only allow insureds to negotiate lump sum settlements from their SABS insurers if the insured is catastrophically injured, the claim does not pertain to medical, rehabilitation, or attendant care benefits, the insured purchased an optional rider allowing them to negotiate a lump sum settlement, or extenuating circumstances are applicable.

[7] At mediation, I regularly offer assignments. I advise insurers that “you wanted an end to lawyer in AB disputes, and you got it.” In almost all cases, the tort defendants do not want the assignment.

[8] 2019 ONCA 518.

[9] Ibid, para 48.

[10] Ibid, paras 53-56.

[11] Tomec v Economical Mutual Insurance Company, 2019 ONCA 882.

[12] The LAT argued that the appeal should be dismissed because Tomec had not properly availed herself of the reconsideration option prior to launching her Appeal.

[13] G v Pilot Insurance Co, 2006 CarswellOnt 4121 (FSCO Arbitration Decision).

[14] 2019 ONCA 615.

[15] Ibid, para 67.

[16] 2015 FSCO A14-001758, 2015 CarswellOnt 11184 (FSCO Arbitration Decision).

[17] Ibid, para 50.

[18] 2019 ONLAT 18-007227/AABS; 2019 CarswellOnt 7826.

[19] Ibid, para 20(iv).

[20] 2019 ONLAT 18-008089/AABS; 2019 CarswellOnt 17975.

[21] Ibid, para 14.

[22] Ibid, paras 44-45.

[23] O Reg 34/10, ss. 7(4)-(5).

[24] Suggestions the plaintiff’s counsel can simply fund such reports out-of-pocket are not viable in the current climate.

[25] Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017).

[26] 2015 ONCA 206.

[27] Ibid, para 6.

[28] She is referring to Rule 53.03; Ibid, para 14.

[29] 2018 CarswellOnt 19838 LAT.

[30] Ibid, para 10.

[31] 2019 CarswellOnt 10285 LAT.

[32] Ibid, para 16.

[33] Ibid, paras 27-29.

[34] 2017 ONCA 716.

[35] 2017 ONCA 717.

[36] 2018 ONCA 903; additional reasons at 2019 ONCA 241.

[37] 2018 ONCA 902.

[38] Bannon v Hagerman Estate, 1998 CarswellOnt 1755 (ONCA); Gibert v South, 2015 ONCA 712.

[39] Cadieux, supra para 8.

[40] Cadieux, supra, paras 88-89.

[41] Cadieux, supra, para 130.

[42] Ibid, para 132.

[43] Cadieux, supplemental reasons, supra, paras 123-132.