What is the procedure of an accident benefit lawsuit?

Acquire knowledge of the six main stages of an accident benefit claim

In 2016, the procedure in AB lawsuits fundamentally changed when the Licensing and Appeal Tribunal (“LAT”) took over jurisdiction over ABs from the Financial Services Commission of Ontario (“FSCO”).

Below is our summary of an informative continuing legal education paper entitled “Latest Word on Procedure, Process and Best Practices in Accident Benefit Litigation” (2019) by lawyers Sven Mascarenhas and Catherine Wilde from the 2nd Motor Vehicle Litigation Summit.

  • Claims Stage

Initially, the insured applies to the insurer for one or more benefits, the insured and insurer exchange information, and the claim is either granted or denied.

If the application is denied, the insured may then apply to the LAT. The LAT Application sets out the benefit(s) in dispute and the scope of the insured’s claim, and sets out any production requests and preliminary issues. The LAT application must be served within two (2) years of the insurer’s denial.

The insurer’s counsel will prepare a LAT Response which explains why the insurer takes the position that the benefits claimed are not reasonable or necessary or are in excess of the insured’s reasonable needs. The LAT Response may claim repayment of benefits if the insurer believes that there was a mis-payment. The insurer may make its own Application to the LAT for repayment of benefits.

It is also important to be aware of which version of the Statutory Accident Benefits Schedule (“SABS”) applies to the claim, since there were major amendments to SABS in 2016.

  • Productions Stage

At the Productions Stage, the insured and insurer exchange production requests and prepare Case Conference summaries.

The insurer may require the insured to attend one or more examinations under oath (or EUOs) (please see our blog post on this topic for further information).

By the time of the Case Conference, the insured will have provided to the insurer the OCF-1, OCF-3, OCF-18 and OCF-21 (as applicable) and medical records.

It is important, at this stage, to review this documentary evidence and assess its impact on the case.

The insured (or if they are represented, their counsel) should ask the insurer for the payment summary and the Adjuster’s Log Notes up to the date of the Application.

The insurer may ask for (as applicable) the insured’s OHIP summary, the general practitioner’s clinical notes and records, rehabilitation records, prescription summaries, tax returns, employment files, Ontario Works files, WSIB applications, etc.

The parties each prepare a Case Conference summary. It sets out the documents the party intends to rely upon at the Hearing, documents that have been requested earlier and have not been provided, the names of expert witnesses that the party intends to call at the Hearing and any settlement offers made.

  • Case Conference Stage

The insured and insurer participate in a conference with a LAT adjudicator. The issues are defined, production difficulties and preliminary issues are addressed and a (partial or whole) proposed settlement is negotiated.

The duration of a Case Conference can be anywhere between 1 ½ and 2 hours. It is to be scheduled 45-60 days from when the LAT Response is received. The Case Conference is usually in the form of a teleconference not an in-person hearing.

The purposes of a Case Conference include: identifying and simplifying the issues; resolving any preliminary and jurisdictional issues; making any procedural orders that are necessary; identifying any areas of agreement between the parties on fact or evidence; making any orders on the disclosure of information; determining the next step in the case; determining the hearing type (whether written, in person or hybrid) and its duration; and settling any or all of the issues.

The agenda of a Case Conference includes the LAT adjudicator identifying issues, mediating between the parties, dealing with production issues, scheduling a Hearing and obtaining lists of witnesses.

Parties can sound out their arguments with each other; the insured can let the insurer’s counsel know about any difficulty they are experiencing that is not in the documents; and the parties can exchange offers to settle.

  • Prehearing Stage

If the Application is not resolved at the Case Conference, the LAT adjudicator will prepare a Case Conference Report and Order – which lays out the procedure for the remainder of the lawsuit or (if applicable) until the Preliminary Issue Hearing – and both parties will be given a copy thereof.

The Case Conference Report and Order will address:

  • for a written hearing,
    • the issues in dispute and the page lengths to which the parties will be limited;
    • the dates by which the parties are required to make their submissions, response and reply; and
    • whether the parties have agreed to restrict the usage of affidavit evidence.
  • for a hearing consisting of an in-person component,
    • the issues in dispute,
    • the format of the hearing,
    • a timeline for further exchanges of productions and documents (if necessary),
    • a schedule of documents to be used at the hearing,
    • a list of the witnesses and the estimated time for examination, cross-examination and re-examination,
    • time allocated for opening and closing submissions, and
    • whether a court reporter will attend at the hearing.

At a Prehearing, the insured and insurer are entitled to then argue preliminary issues and motions.

After any Prehearing, the parties prepare for the contested Hearing.

Each party may consider bringing a Summons to Witness – an official court document that compels the attendance of a witness at a hearing. To be effective, a Summons must be served on the witness, filed with the Tribunal within 10 business days of the hearing and provide information the witness is expected to give and the reason why the attendance of the witness at the Hearing is necessary. The Tribunal may not enforce the Summons if it contains a defect.

  • Hearing Stage

A Hearing can take three forms: a written hearing, an in-person hearing or a hybrid hearing (combination of written and in-person components). A written hearing is typically used for minor injury (or MIG) matters and matters with respect to ongoing benefits. An in-person hearing is a traditional courtroom hearing where the LAT adjudicator takes on the role of a judge. A hybrid hearing involves in-person testimony and written legal submissions (arguments).

At a Hearing, the insured’s (or their counsel’s) focus is to ensure that they meet the burden of proof; the insurer’s counsel’s focus is to challenge these attempts by the insured.

A tip is to make use of an Agreed Statement of Fact – a document signed and agreed to by both parties that admit uncontested facts – which can promote time efficiency at the Hearing. Joint Hearing Briefs – which contain documents the parties consent to file – are also recommended.

Each party should, in addition, file a Book of Authorities – containing precedent, or legal cases, that support their respective legal arguments – with the Tribunal.

If the insured requires interpretation services, the Tribunal must be notified at least 14 days before the Hearing that an interpreter is required.

  • Appeal Stage

After the Hearing, the party who was unsuccessful – whether the insured or insurer – will check if there are any grounds of appeal (bases on which the LAT decision can be challenged), what avenue (or appellate pathway) to use and what standard of review is available (a court’s intensity of appellate review depends on the classification of the ground of appeal – for instance, an error of fact attracts more deference to the Tribunal’s decision while an error of law attracts less).