Recent changes to the Licence Appeal Tribunal (LAT) process are intended to clear the tribunal’s own backlog, but they have complicated the Automobile Accident Benefits Service (AABS) process, which has in turn created “unfair” costs for insurers, says an prominent accident benefits lawyer in Ontario.
LAT’s procedural issues would be better rectified if insurers, lawyers and other involved parties could hold regular stakeholder meetings with the tribunal to work out the kinks in the process, said Philippa Samworth, insurance defence partner at Dutton Brock LLP.
To help expedite matters, LAT has recently changed its case conference process, Samworth shared at the Ontario Insurance Adjusters Association (OIAA) Conference in October.
“Now, when you go to the case conference, they do not set a date for a hearing for you there…They now have a new process with respect to setting up dates for productions.”
Previously, LAT allowed the adjudicator and both lawyers to compromise and commit to a hearing date. Although lawyers on both sides generally agreed this process worked, Samworth said, the tribunal is now assigning hearing dates.
“Instead of us chatting about the [hearing date] at the case conference and all of us agreeing on dates, [now] when the case conference finishes, about two weeks later, we’ll get a letter from the tribunal saying, ‘Your case conference has been completed, and here are four weeks that you must choose from to book your hearing date,’” as Samworth explained.
“Then, you’ve got to remember to find someone in your office, if not yourself, to backdate the timing from the date of the hearing 90 days to start putting in your scheduling. And often, because the hearing dates are really quite close to the case conference, you’ll find that it’s maybe only 60 days from the date of the conference that you actually have to file your expert reports.”
LAT made these changes to its process because not enough arbitrators were available to keep up with the increasing number of cases, Samworth explained in an interview with Canadian Underwriter. “There were complaints from both [sides of the bar], particularly the plaintiffs’ bar, and [also] from the insurance industry, that the LAT wasn’t doing what it was intended to do, and that was to streamline the process and give fair and quick access to statutory accident benefits.”
However, these changes have made it difficult for both plaintiffs’ and defence lawyers to do a “good job for their clients,” said Samworth.
“It was really bad at the beginning, because they refuse[d] to open up the 2023 calendar,” she said. “So everything was forced on us into 2022,” However, hearing dates have now been opened for April 2023, which has helped to alleviate some scheduling concerns.
“We’re all triple booking, if not quadruple booking, in order to accommodate the LAT time because what will happen if you don’t pick a date is they pick one for you,” she said.
Traditionally, lawyers could ask for adjournments if they couldn’t accommodate a hearing date. But now LAT’s adjournment process has also changed.
“[The LAT has said], ‘We’re not going to give any more adjournments, because that’s causing the system to get backlogged,” said Samworth. “[If] you already have three cases booked that week, it doesn’t matter, their rule is to find another lawyer to do it, and that even applies to plaintiff’s counsel.”
This change is problematic for those who have been injured, Samworth finds. “The right to counsel for someone who has been injured in a motor vehicle accident is significant. There’s a degree of trust that you establish with them when they’ve been handling the case from the beginning.
“It’s hard for you to pass a complicated [catastrophic injury] case down to one of the three of the lawyers that do Cat cases, because they’re all booked up [as well].”
The LAT changes complicate matters for lawyers, but these complications are also being passed down to insurers.
“[Insurers] want their cases to be heard too,” said Samworth. “If the LAT application doesn’t go ahead and is withdrawn because of these issues, then that file continues to bear interest at a certain rate. That’s expensive to the insurer.”
That said, most lawyers and insurers are “not unhappy” with the way the tribunal is being run, Samworth emphasized.
“The process is fine. The hearings are fine. We like the decisions. We think they’ve got good arbitrators. The problem is just really this access-to-justice issue, with their move to eliminate or deny what seemed to be fair request for an adjournment.
“One thing both the insurers and the lawyers would like is to be given an opportunity to have what we call a stakeholder meetings. We may be able to give you an idea of how things might work better for us and for [the LAT].”
Feature image by iStock/bymuratdeniz