A year on from the launch of the Licence Appeals Tribunal (LAT) process for accident benefits matters, Ottawa personal injury lawyer Najma Rashid has mixed opinions on what she’s seen so far.
In April 2016, all disputes under the Statutory Accident Benefits Schedule were diverted from the Financial Services Commission of Ontario (FSCO), where they were subject to mandatory mediation, and into arbitration at the LAT in the biggest shakeup to the practice area in a generation. Claimants also lost their right to sue in court over accident benefits as part of the changes.
Rashid, a partner with Howard Yegendorf & Associates, says the new process has taken some getting used to for her and her colleagues at the personal injury bar.
“There are more disadvantages than advantages,” she tells AdvocateDaily.com.
For example, Rashid says the tribunal’s rigidity with its tight timelines, which are designed to speed up the process, mean that counsel on both sides are simply delivered a date for a case conference.
“It’s disconcerting that they don’t consult with anyone about availability,” she says. “They just select the date, and if counsel is already booked for discoveries or a pre-trial on their other files, for example, then they have to go through the process of seeking an adjournment.”
And the LAT’s tough stance on postponing case conferences has only compounded the difficulty for lawyers involved, Rashid says. While she has had some success with requests, her discussions with other lawyers tell her she’s in the minority.
“It’s still at the adjudicator’s discretion, and I know many people who have not been granted adjournments. It all appears very arbitrary,” she says.
Once parties get to the LAT for case conferences, Rashid says they simply don’t work as well. Under the FSCO system, she says mediators would summarize the details of any agreement between the two sides in writing. That doesn’t happen with the new LAT adjudicators, which leaves room for insurers to subsequently row back on resolutions.
“There are no minutes of settlement and no confirmation in writing that payments will be made. For example, if the insurer agrees to pay for a treatment plan or to reinstate income replacement benefits, all you get is a note from the adjudicator saying ‘the matter is resolved.’
“With a few cases, I’ve noticed I don’t hear from the insurers again, and I have to threaten to bring another LAT application,” Rashid says. “It’s very frustrating that you have to keep spending time and money trying to get the insurer to abide by the resolution of disputes.”
Although she is yet to run a full hearing at the LAT, Rashid says she also worries about the tribunal’s propensity for telephone hearings and the suggestion that it will even accept evidence from witnesses in that manner.
“I understand that examination and cross-examinations of witnesses are being done by phone, which is concerning to me. This is not by video conference or over Skype,” she says.
“It’s questionable how effective an examination of a witness can be if done over the telephone. And if you can’t see them, there’s no way to verify they are who they say they are.
“The insurance company could produce anyone and say they are the witness involved. It’s particularly concerning when you’re dealing with expert witnesses.”