Law unfair to car crash victims. Lawyer argues Ontario’s Bill 15 is unconstitutional
BY ALAN SHANOFF, TORONTO SUN FIRST POSTED:
If you have suffered injuries as a result of an automobile accident in the past five years you have been impacted by reduced no-fault accident benefits.
These benefits have been eroded since September, 2010 largely in the name of reducing fraud, regardless of the impact on legitimate accident victims.
Indeed, one of the pieces of legislation, Bill 15, passed last year by the Ontario government, was given the title “Fighting Fraud and Reducing Automobile Insurance Rates.”
But tucked away in Bill 15 is an odd provision that discriminates against those injured in auto accidents.
Bill 15 removes the right to have no-fault benefits disputes with insurers dealt with by the courts.
Why injured people should lose their right to have such disputes resolved by judges is puzzling.
It is almost as if people accessing no-fault benefits for which they have paid insurance premiums, are not worthy of the same rights as others.
It is good to see that a court challenge has been brought contesting this discriminatory provision.
Joseph Campisi, a personal injury lawyer who has lectured at Osgoode Hall Law School and the Faculty of Law at the University of Toronto, has launched this court challenge in his own name and on his own dime.
The court challenge is largely based on the equality rights section of the Charter of Rights and Freedoms, section 15, which states that every individual is equal before the law and has the right to equal protection and benefit of the law without discrimination based on various grounds, including mental or physical disability.
Campisi argues that people seeking access to no-fault benefits are or may be people with mental or physical disabilities and should not suffer discrimination or prejudice by being denied the right to have their disputes resolved by courts.
While not every auto accident victim suffers significant or permanent injuries, many do suffer significant, if not catastrophic or permanent injuries and there is no reason why they should suffer any form of discrimination.
Prior to Bill 15, no-fault benefits disputes could be brought before either the Superior Court or a sophisticated, full-time expert arbitrator at the Financial Services Commission of Ontario.
However, under Bill 15, these disputes are now to be resolved by part-time decision makers appointed by the provincial government.
Campisi views this as prejudicial, pointing out the new decision makers, members of the Licence Appeal Tribunal (LAT) “are the same decision makers who have jurisdiction on matters ranging from film classification to upholstered and stuffed articles. Unlike historical appointments, individuals without any specialization or guaranteed independence or impartiality will be ruling on disputes that can run into the millions of dollars and will determine the quality of life that an automobile victim will face going forward.”
Members of the LAT serve at the whim of the government. There is nothing to prevent the government from cherry-picking to achieve a pro-insurer body of decision makers.
Of course decisions of the LAT may be appealed to the courts but that is not of much benefit to accident victims as appeals may only be brought by way of a limited judicial review process.
This provides a very narrow basis of review and does not allow a reassessment of the facts of a case as determined by the LAT member.
Why would the government want to take away rights from those injured in auto accidents, to limit their access to justice?
Then again, why would the government want to reduce benefits to those who suffer catastrophic impairments due to auto accidents, something the government announced will take effect later in 2016?
Campisi’s court challenge should be heard in 2016.
But it shouldn’t be necessary.
The government has the power to back-off this discriminatory provision.
Let your MPP know what you think.