Discriminating Against Injured?

By Alan Shanoff ,Toronto Sun

First posted: Saturday, March 29, 2014

 “What kind of government creates laws that discriminate against injured and disabled citizens by denying them the same access to justice that every other citizen enjoys in a democratic society?”

That question was recently posed by FAIR (Fair Association of Victims for Accident Insurance Reform) in an open letter to Ontario Premier Kathleen Wynne concerning Bill 171 — the so-called, Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014.

It’s a valid question that deserves an honest answer. Here’s the background.

Under current law people injured in motor vehicle accidents who wish to dispute their insurance company’s denial of no-fault accident benefits have the right to mediate the dispute.

Failing resolution by mediation they may elect to contest the denial in either an arbitration proceeding or a court action.

But the Ontario Liberal government’s Bill 171 would remove the right to pursue court action, forcing all accident benefits disputes to be determined solely by arbitrators.

Why should we care? There are several good reasons.

Courts have the power to award punitive damages.

They rarely exercise that power, but it is there and insurers have been slapped with punitive damage awards on occasion.

Arbitrators don’t have that power.

In some cases, an injured person may have the right to sue the other driver for negligence in a tort lawsuit.

This is in addition to making a claim for no-fault accident benefits.

Currently, injured people can pursue negligence claims and disputed accident benefit claims in the same court action.

However, by forcing all injured people to pursue accident benefit claims only via arbitration, Bill 171 will force some accident victims to pursue two separate, costly legal actions, one in court, the other via arbitration.

That may be good for lawyers but it won’t help accident victims.

As Progressive Conservative MPP Jeff Yurek (Elgin-Middlesex-London) recently told the Legislature, “(T)his bill proposes that instead of dealing with a dispute with both the tort and no-fault components, people now have to pursue a dispute on two separate fronts. That means two separate files, two separate forums of pursuing the dispute and two separate decisions to be made with respect to the dispute. How can this possibly be more cost-effective and efficient than the current system?”

There have been many court decisions that favour accident victims.

These wide-ranging rulings include the assessment of catastrophic impairment — victims assessed as catastrophically impaired are entitled to greatly enhanced accident benefits — so as to promote fairness to accident victims.

It is likely the Ontario government will be introducing amendments to the catastrophic impairment definition in the future.

But under Bill 171, courts will not have any say in the interpretation of the new definition.

That does not bode well for accident victims.

I expect the Ontario Trial Lawyers Association to criticize this removal of the right to seek recourse to the courts.

They certainly do, by correctly pointing out this proposed law has nothing to do with fighting fraud, “but everything to do with making it easier for insurance companies to wrongfully deny benefits, delay settlements and make it harder for you to collect what you are rightfully owed.” Surprisingly, even Canadian Defence Lawyers, a national organization representing the interests of civil defence lawyers, says that taking away the right to sue in respect of accident benefits “will reduce rather than enhance opportunities to access justice” and will “(r)emove the inherent fairness of allowing a local judge to decide issues in dispute”.

Removal of a person’s rights to seek recourse to the courts should not be undertaken without ample justification.

Forcing the injured and disabled to forego all court action and pursue their accident benefits claims via arbitration is just another way our government is running roughshod over the rights of motor vehicle accident victims.

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