Personal injury professionals have expressed much consternation of late about the drastic changes to the Insurance Act and the statutory accident benefits schedule. Paralegals, who for years have derived a nice living from accident-benefits work, are expressing worry about their livelihoods, as are the clinic owners, chiropractors, assessment companies, and, of course, the tort lawyers who all line up to take a piece of the personal injury pie.
Those discussions are focusing misguidedly on how the new personal injury playing field affects us. But lost in all of the concern is the important fact that victims of motor vehicle accidents have less opportunity for fair recovery today than ever before.
The provincial government’s focus for years has been to buy into the insurance industry’s rhetoric about how it could contain both high insurance premiums and skyrocketing legal costs if only it would help the companies stop all of the fraud. Yet the government’s response, which is to severely reduce available no-fault accident benefits and increase the tort deductible, is akin to bringing a bazooka to a pocket-knife fight.
This one-two punch of a government passing legislation that’s beneficial to the insurance industry at the same time as the companies make blanket corporate decisions to pay out less money to accident victims on the tort side leaves a gaping hole in consumer protection.
In fact, if the government really wanted to help accident victims, it could implement a consumer insurance bureau as is already the case in the Nordic countries. The consumer insurance bureau would have a mandate to assist consumers with regard to their rights and benefits after they have been in a motor vehicle accident and also, not incidentally, to act as a sort of special consumer ombudsperson to petition the Ontario government about insurance issues from the consumers’ perspective. A yearly surcharge of $1 per vehicle registered in Ontario could fund such a body.
So why hasn’t the Ontario government made such a decision on behalf of the Ontario electorate it represents? That same electorate pays insurance premiums from which the insurance companies fund the Insurance Bureau of Canada. The insurance bureau spends millions of those dollars a year to train insurance representatives on how to restrict payouts and, most significantly, lobby the Ontario government about insurance issues from the insurance industry’s perspective.
One of the authors of this article, Peter Cozzi, first presented the concept to the province about 10 years ago at a Financial Services Commission of Ontario bar dispute group meeting at which a government representative was present to hear the proposal. Nothing happened.
As plaintiff lawyers, we can only work to achieve results for our clients within the legal and regulatory framework that the government has provided. When the government circumscribes that framework to the point that thousands of worthy cases languish due to legislative changes, it’s time for it to invoke some corrective balancing.
Understandably, the insurance industry’s powerful lobby does not want to see legislative changes that would possibly put the plaintiff lawyers in the driver’s seat.
Admittedly, that might be too much of a correction. The idea proposed here for a consumer insurance bureau that would educate the public, provide input to the government on consumers’ behalf, and possibly implement an internal regulatory regime to keep minor but deserving disputes out of court places the power in the hands of neither the insurers nor the lawyers but rather the consumers. In a province with one of the best consumer protection regimes in North America, that is a natural addition.
So will the Ontario government support consumers’ rights to proper representation in the motor vehicle insurance debate? In our view, the answer is unlikely given the Ontario government’s disinterest in the proposal 10 years ago and the current legislative climate that has leaned in favour of the insurance industry.
Do the province’s actions signal its disinterest in accident victims or is it that the significant revenue contribution from the HST charged on the millions of dollars paid by consumers in insurance premiums in conjunction with the taxes paid by those insurers and their tens of thousands of employees is the critical factor for a government concerned about fiscal responsibility?
Those factors are relevant to a provincial government concerned about revenue to offset a deficit, but the province’s actions surely do little to enhance fairness to the consumers it represents in the legislative process governing insurance.
To correct that by creating a consumer insurance bureau will cost the Ontario government very little and go a long way in protecting the public.
Peter Cozzi is a Toronto litigation lawyer with 30 years of experience in personal injury law. Darryl Singer runs Singer Barristers PC in Markham, Ont., and has litigated at all levels of court in Ontario. Between them, they have handled thousands of personal injury files.