Resolving Dispute
Resolution
The recently completed review of Ontario’s auto dispute resolution system offers 28 recommendations, including the creation of a new tribunal to handle disputes involving the Statutory Accident Benefits Schedule (SABS).
Willie Handler
Consultant, Willie Handler and Associates
A review of the Ontario auto insurance dispute resolution system (DRS) carried out by Justice Douglas Cunningham has provided the provincial government with 28 recommendations which, if implemented, would remove the system from the Financial Services Commission of Ontario (FSCO) and create a new government administrative tribunal. Justice Cunningham was appointed by Ontario finance minister Charles Sousa to conduct a review of Ontario’s DRS last August. Based on several consultations and written submissions from 33 groups and individuals, he provided the government with an interim report in October 2013 before making his final recommendations in February of this year.
A NEW TRIBUNAL Justice Cunningham envisions a new tribunal that reports to a Cabinet minister instead of the superintendent at FSCO. 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 the entire system be privatized. The report does recommend some private sector involvement, proposing that the tribunal establish tendered contracts with
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one or more private-sector dispute resolution service providers to address any future backlog.
A MORE STREAMLINED PROCESS Justice Cunningham’s report envisions a radically streamlined and quick process. It recommends that an insured who submits an application to the proposed tribunal have an arbitrator’s decision within six months if the dispute proceeds to arbitration. The tribunal would have a registrar to deal with jurisdictional issues at the time the application is received without a hearing. Currently, many procedural disputes are resolved by way of a preliminary hearing conducted by an arbitrator. Under the proposed system, an insurer could challenge an insured’s refusal to attend an insurer examination at the time an application is submitted. Justice Cunningham further recommends prearbitration meetings, neutral evaluation meetings (a step that has not been used since 2008) and that appeals to the director’s delegate be eliminated.
AN END TO MEDIATION A significant recommended change is to eliminate 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 ele-