Feedback requested on Ontario auto insurance dispute resolution system

More feedback requested on Ontario auto insurance dispute resolution system recommendations

The Ontario Ministry of Finance is seeking written submissions of feedback to an interim report on the auto insurance dispute resolution system delivered last Friday.

J. Douglas Cunningham, former associate chief justice of the Ontario Superior Court of Justice, was tasking in August to conduct a review of the DRS, delivering an interim report in the fall and a final report in February 2014.

The interim report was released Nov. 8, after Cunningham received stakeholder submissions and consulted with stakeholders in September.

The report outlines some preliminary observations about the system and recommendations for improving it, based on issues of timeliness, proportionately (smaller claims versus larger ones), accessibility to the system, predictability within it, streamlining, costs and overall culture.

While the Financial Services Commission of Ontario recently eliminated its backlog of mediation applications, a significant arbitration backlog remains.

Overall, the report recommends a more streamlined mediation and arbitration system that includes different processes based on the complexity of the case, including the monetary amount at stake.

“I would like to see a future system that could accommodate different processes based on the complexity of the case,” Cunningham suggests. He also suggests eliminating the neutral evaluation stage introduced in 1996, which is “little-used.”

“To a certain extent, the system has been a victim of its own success,” Cunningham writes in the report, noting that easy access, as well as increased use of legal representatives, has created a parallel system to the courts that is only “marginally faster.”

Using legal representatives has slowed down the system, since scheduling with lawyers and paralegals can be challenging, he notes in the report.

The report also points out, based especially on feedback Cunningham has received, that claimants don’t always have a large financial risk involved with the process (for example if their legal representatives are working on a contingency basis). The mediation cost is free, while the arbitration cost is only $100, the report notes.

Cunningham also notes in his report that there has been “strong support among stakeholders for moving dispute resolution to the private sector” or creating a tribunal model similar to the Workplace Safety Insurance Appeal Tribunal.

“I see no reason why the DRS adjudicative function needs to be housed at FSCO,” the report says. “I recommend that the government consider that FSCO’s DRS adjudicative functions be delivered externally.”

The report adds that Cunningham will address where adjudicative functions should be (independent tribunal or private sector) in his final report in February.

Written submissions regarding the interim report can be sent on or before Dec. 2 to contact information listed on FSCO’s website.

Reader Comments

You can hardly tell that there is a discussion ongoing in Canada about access to justice when you read this report. A proposal that paper hearings where expert evidence is admissible in written form but cross-examination not permitted in order to save time. How about saving justice which is already in short supply when it comes to insurers standing behind the contracts they write. It seems that FSCO is determined not to acknowledge the systemic abuse of accident victims by the use of unqualified and biased medical reports (IMEs) used at hearings to decide whether an accident victim is entitled to benefits. We have a total failure in oversight from CPSO who are charged with regulating these doctors for hire - one only has to read the comments on the recent Transparency Project on the CPSO website to see the failures chronicled there by the public. So we have a system where the insurer who has lots of $$$ producing medico-legal reports versus the claimant who is more likely than not going to end up on welfare or going into debt, without the funds for rebuttal medicals. So we would be reduced to the volume of paper to decide a case - no questions asked, literally. The insurers and their for-hire medical opinion vendors must be jumping up with joy at the prospect of hobbling the plaintiff lawyer this neatly efficient and time-saving way, and justice, well sacrifices must be made and claimants, by now, are quite used to being the ones asked to make them.

_{Source: canadianunderwriter.ca}