Cunningham Report Recommends a New Tribunal to Deal With SABS Disputes

I assisted Justice Douglas Cunningham carry out his review of the Ontario auto insurance dispute resolution system (DRS). His report was recently submitted to the government and included 28 recommendations which if implemented would remove the system from Financial Services Commission of Ontario (FSCO) and create a new government administrative tribunal.

A New Tribunal

Arbitrators would no longer be Ontario public servants but government appointees, similar to adjudicators on a number of other government tribunals. The Insurance Bureau of Canada and a number of member companies proposed that the entire system be privatized. Cunningham’s report did recommend some private sector involvement. He proposed that the tribunal establish tendered contracts with one or more private-sector dispute resolution service providers to address any future backlog.

A More Streamlined Process

Cunningham’s report envisions a radically streamlined and quick process. The report recommends that an insured who submits an application to the proposed tribunal would have an arbitrator’s decision within 6 months if the dispute proceeds to arbitration. The tribunal would have a registrar who would deal with jurisdictional issues at the time the application is received without a hearing.

As well, doing away with many of the preliminary hearings that currently take place, Cunningham recommends that pre-arbitration meetings, neutral evaluation meetings (a step that hasn’t been used since 2008) and appeals to the Director’s delegate be eliminated.

An End to Mediation

A significant change found in the report is the elimination of mandatory mediation as the first step in the dispute resolution process. Instead, a settlement meeting would be scheduled with an arbitrator rather than a mediator. This step would have elements of mediation as well as the current pre-arbitration meeting.

The report also recommends doing away with telephone mediations. Instead settlement meetings would have to take place in person or through video conferencing.

During a settlement meeting, the arbitrator might provide one or both parties with an opinion regarding the likely outcome of a future arbitration if the parties fail to reach a settlement.

Three Arbitration Streams

Justice Cunningham has called for three arbitration streams: paper reviews, expedited in-person hearings and full in-person hearings. The determination would be made by an arbitrator and not be subject to appeal. A paper review would take place cases where there are $10,000 or less of medical and rehabilitation benefits in dispute, or where the dispute involves a determination as to whether the claimant’s injuries meet the minor injury definition. The tribunal would be expected to restrict the length of expert reports and briefs.

Arbitration hearings would be conducted as an expedited in-person hearing in cases that do not qualify as either a paper review or full in-person hearing. An expedited in-person hearing would last no longer than one day and the arbitrator would let parties know how much time would be allocated for them to present their cases.

Arbitration hearings would be conducted as full in-person hearings for disputes involving catastrophic impairment determinations, whether the claimant qualifies for 24-hour attendant care or income replacement benefit claims beyond 104 weeks. The length of a full in-person hearing would be determined by the arbitrator.

The arbitrator’s report should be no longer than five pages for an expedited hearing and ten pages for a full hearing.

Appeals of arbitration decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.

New Penalties for Those Not Meeting Timelines

The report recommends a number of timelines that would be incorporated in legislation along with penalties for those that do not comply. Parties who cannot commit to appear for settlement meetings or arbitrations within the timelines set out would not be eligible to claim their costs at arbitration. If the tribunal is unable to schedule an arbitration within those same timelines, the tribunal would be expected to reduce the arbitration fees it collects from the parties. Parties would also get financial relief if arbitration decisions are late being issued.

A Shift in Culture

Justice Cunningham made it clear he would like to see a change in culture within the DRS. A number of recommendations are expected to accomplish that cultural change.

Every insurer would have to establish an internal company review process and be required to inform an insured how to access the process following a benefit denial. However, insureds would not be required to use the internal company review process before submitting an application to the new tribunal. Companies would be free to determine how their internal review process would to be structured, but must provide an insured with a written response within 30 days.

Justice Cunningham recommends that the settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident which is one year longer than the current prohibition.

The government would be expected to create a sliding scale of fees. Justice Cunningham proposes that incentives be introduced to encourage parties to settle early.

Experts would be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence. Arbitrators would be expected to ignore evidence that was not fair, objective or non-partisan and, in those circumstances, the expert would not receive compensation for appearing as a witness.

What Happens Next

In January 2014, the government indicated that it will propose legislative amendments in the spring session based on recommendations of the Dispute Resolution System Review. However, the legislation may not pass if a spring election takes place. Once legislation finally passes, it will take some time to establish a new tribunal which means DRS users may be waiting some time before they benefit from possible changes.