Accident Benefits Disputes after April 1, 2016: The switch from FSCO to LAT
Up until March 31, 2016, the Financial Services Commission of Ontario (FSCO) was responsible for handling accident benefits disputes. The process under FSCO involved applying for mediation (which was supposed to occur within 60 days but in reality, took much longer), followed by a pre-hearing and ultimately an Arbitration. Alternatively an individual could proceed by way of Court action following the mediation.
With the new system, all disputes will now fall under the jurisdiction of the License Appeal Tribunal (LAT) which is an adjudicative tribunal that is part of the Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO). As noted on their website, the LAT “receives appeals, conducts hearings, resolves disputes, and makes decisions on a wide variety of matters, with the most common cases involving liquor licenses, new home warranty claims, medical suspension of driver’s licenses, impoundment of motor vehicles and regulation of various occupations and businesses”. They have not previously dealt with any automobile insurance matters.
The new process, in effect April 1, 2016, requires a claimant to file an Application with the LAT and provide with it “all necessary documentation”. This means that until you have obtained all documents in support of your positon, you should hold off on filing an Application. Within 10 days of receiving a “complete” application, the insurer must then provide a response.
Within 45 days of the response being filed, the parties are to attend a case conference. Each party is to submit a detailed case conference summary at least 10 days in advance. The purpose of the conference is to encourage the parties to reach a settlement. If a settlement cannot be reached however, then the adjudicator determines how a hearing shall take place: in writing, by video conference or in person. The hearing is then supposed to take place within 60 days of the case conference.
Following the hearing, should you disagree with the decision, you can ask the tribunal for a reconsideration of the issues based on various criteria, or an appeal lies to the Divisional Court on a question of law. It should be noted that the LAT is not bound by the prior decisions made by FSCO, although they will be bound by prior case law.
A major concern with respect to the new process is that individuals no longer have the right to proceed by way of Court action against their benefits insurer; an option that was available to them under the old system as an alternative to arbitration. Legal costs will also not be awarded under this system, except in cases where one parties conduct is found to demonstrate bad faith or is unreasonable, frivolous or vexation.
Although the objective appears to be the hearing of disputes in a more timely fashion, we have yet to see where this new system will lead us. It seems clear however that there are to be some growing pains while all parties try to adjust to this new system.
