Financial Services Commission of Ontario (FSCO) stopped taking applications for Mediation and Arbitration effective March 31, 2016. All disputes filed as of April 1, 2016 are now being handled by the Automobile Accident Benefits Service (AABS) through the License Appeal Tribunal (LAT). The goal of the AABS is to have the issues in dispute resolved within six months of filing an Application.
As it stands today, if you currently have matters in dispute with FSCO, new issues will not be added to it. It remains to be seen if this will be changed. FSCO Arbitrators are not required to hear all of the issues arising on a claim. They are only required to hear all the issues in dispute when the matter is in front of them. Thus, an insured may have both a FSCO and a LAT proceeding. The dual proceedings may lead to inconsistent results which could lead to Judicial Review.
The filing of the Application is critical because the timelines are so tight. You will want to have all of the documents you will be relying on before you file your Application. Within ten business days the Insurer must file a Response. Any jurisdictional issues must be dealt with in the Response.
Within 45-60 days of receiving a Response a Case Conference will be scheduled between the parties, usually by phone, with the AABS Adjudicator. This date is set without consulting the parties. If one side needs an adjournment, it will only be granted up to 30 days from the original date. Both sides must provide three alternative dates within that window. No further extensions will be granted. All parties, including the insurer and insured, must participate in the Case Conference.
Both parties are responsible for submitting a Case Conference Summary at least 10 days before the scheduled conference. The parties list the documents they will be relying on, confirming that these documents have been provided to the other side, provide the name of the witnesses and their anticipated evidence, specify the format of the Hearing they prefer, advise of any documents required from non-parties, advise if a party will need to be summoned and details of any settlement offers. The case will move forward whether a party has the documents or not, even if the defense does not have all of the documents they want to rely on.
Experts are now required to submit a letter confirming they are fair, objective and non-partisan. A Rule 53 Form is not sufficient. The experts must list their education, training and the expertise that qualifies them as an expert. Their report must set out the instructions they received, their conclusions and the basis for those conclusions. In addition, they must provide a concise summary of the facts and issues that are agreed upon, those that are in dispute, as well as the expert’s findings and conclusions.
If the matter does not settle at the Case Conference, a Hearing is the next step. This is designed to occur 60- 90 days after the Case Conference. It is expected that most will be in writing. Of note, the Tribunal is not bound by the Decisions of other Tribunals (ie. FSCO). Instead the Tribunal will be making their own Decisions based on the information they have available. The Tribunal is however bound by case law and the courts’ interpretation of the legislation.
Costs do not automatically go to the successful party. Costs are allowed when the other party’s conduct is found to be unreasonable, frivolous, vexatious or in bad faith. Otherwise no other costs are allowed.
There will be a lot of growing pains with this new system. It will also take a while to understand and respond to the AABS on both sides. The goal is to make the system more responsive and timely, which if achieved, will benefit everyone.
For additional information concerning the LAT, Accident Benefits or any related personal injury matter, please contact Sandra Train at 416-361-7573 or strain@hshlawyers.com or Michael Henry at 416-361-0889 or mjhenry@hshlawyers.com.
