Two provinces now have tribunals to handle some aspects of insurance disputes involving MVA personal injuries.
British Columbia’s Civil Resolution Tribunal (CRT) was set up in 2016 to remove some small claims from the provincial court and some disputes from the B.C. Supreme Court. In 2019, the Attorney-General also moved minor personal injury claims (up to $5,000) out of court and into the CRT. The CRT’s administrative adjudication process is online and curtails the use of lawyers. The province appoints the adjudicators. The Trial Lawyers Association of B.C. is challenging the new system as unconstitutional.
Erik Magraken, a Victoria-based personal injury lawyer, found that the Insurance Commission of B.C. (ICBC), the government’s insurance monopoly, has won 34 of their 35 disputes in 2020.
Shannon Salter, Chair of the CRT, responds that 56 disputes involving ICBC have gone to adjudication. Six (6) were in favour of the applicant on liability and damages. In two (2) cases, the CRT found in favour of the applicant for liability, but dismissed the claim for lack of proven damages. In 19 cases, although the applicant was not successful on liability, the tribunal still would have had to dismiss for jurisdiction or evidence reasons.
These numbers still indicate the insurer wins most of the time.
In Ontario, the Licence Appeal Tribunal (LAT) has been handling the Automobile Accident Benefits Service (AABS) since 2016. Before then, the Financial Services Commission of Ontario (FSCO) handled the Statutory Accident Benefits Schedule (SABS).
We asked the Ministry for a breakdown of LAT’s AABS decisions, but requests for information are on hold until the COVID-19 emergency ends. (In an earlier article, we pointed out that several large insurers appear over-represented in the LAT’s workload.)
Since its inception, plaintiff lawyers and others have expressed concerns about the LAT:
- The denial of access to the courts and right to appeal might be unconstitutional.
- Do LAT appointees have sufficient expertise to address the complexities of SABS disputes?
- The Ontario government decided to abandon 25 years of binding precedent from experienced FSCO arbitrators.
- LAT’s mandate to dispose of disputes quickly and inexpensively raises concerns about the time and resources committed to adjudication.
In addition, LAT hardly ever awards costs, only in cases where a party acts unreasonably, frivolously, or in bad faith. This means injured claimants must commission expert reports out of their own pockets.
There has been a case about improper influence in the LAT.
In the very first claim for catastrophic injuries before the LAT, the claimant’s lawyer, Gary Mazin of Toronto, received an anonymous letter alleging improper influence, saying the adjudicator initially decided to approve benefits, but the adjudicator’s superior ordered a denial. Justice Thorburn found reasonable basis to believe the decision to deny the injured party benefits “did not reflect the independent decision of the adjudicator.” Mr. Mazin said there could be concern about the message the decision might send about the tribunal’s sympathies: to victims, or insurance companies?