In March of this year, the Ontario Minister of Finance Charles Sousa introduced Bill 171: Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014. The Bill proposes concerning changes to the process that an injured person must follow in order to receive accident benefits under the Statutory Accident Benefits Schedule (“SABS”).
First, Bill 171 takes away the responsibility of the Financial Services Commission (FSCO) to decide SABS claims and shifts that responsibility to the License Appeal Tribunal. FSCO currently adjudicates complex disputes about various financial services, such as insurance, credit unions, and pension benefits. The License Appeal Tribunal, on the other hand, hears appeals of diverse licensing decisions, such as liquor licenses, construction permits, and registration of commercial vehicles. The arbitrators who currently preside over FSCO have developed extensive expertise in the area of accident benefits disputes. Since there is no guarantee that these arbitrators will be transferred to the License Appeal Tribunal if Bill 171 becomes law, there is a very real risk that the expertise developed by FSCO will be lost. As the new Tribunal gets up to speed with accident benefits law – a process that could take years – the adjudication of accident benefits claims will potentially suffer a backlog. This will be extremely difficult for injured claimants to bear, as he or she may be relying on payment of benefits to get by. In addition, the change in the adjudication venue may have unintended consequences on the previous law developed by FSCO, as it is not clear whether the License Appeal Tribunal would follow any of FSCO’s prior legal conclusions and practices.
Bill 171 also takes away the right of an accident benefits claimant to bring that claim before the civil courts. Currently, a claimant may bring an accident benefits claim before the civil courts, so long as he or she has participated in mediation with the insurance company. This may be useful to a claimant with both a tort and an accident benefits claim. The new Bill 171 seeks to limit the claimant’s choice in this regard by mandating that the claimant can never bring an accident benefits claim in the civil courts.
Finally, the Bill reduces the amount of pre-judgment interest that an injured victim can claim while they wind their way through the slow legal process.
Bill 171 is currently in its relatively early stages, and has yet to pass its second reading. Given the possibility of a spring election, it is possible that Bill 171 will not become law. Should there be a subsequent attempt to reform the adjudication of accident benefits claims, we recommend that it take into account the access to justice concerns that adversely affect accident victims.