December 7, 2017

Ontario Announces “Fair Auto Insurance Plan”

Daniel MacDonald

Daniel Macdonald

Personal Injury Lawyer

 

Here were go again!  More promises to fix the Ontario auto insurance system.  On December 5th, the Ontario government announced their “Fair Auto Insurance Plan”.  The government says this plan will make auto insurance more affordable, and protect injury victims.

 

The Fair Auto Insurance Plan is based at least in part on recommendations made by David Marshall in a report commissioned by the Province titled “Fair Benefits Fairly Delivered”.  Barbara Legate’s review and comments about the Marshall Report from earlier this year can be read here.

 

Two key recommendations of the Fair Auto Insurance Plan are standard treatment plans for minor injuries and a commitment to implement Independent Examination Centres. We have concerns with both of these recommendations.

 

Standard Treatment Plans – the government says these will be implemented for common collision injuries such as sprains, strains and whiplash to help people receive the treatment they need. In 2015, we wrote about a government consultation process for proposed changes to how minor injuries were handled.  This included use of standard treatment pathways.  That sounds similar to what is being proposed now.  Our commentary from 2015 can be read here.

 

A key criticism at that time, which still remains, is the assumption that all “minor” injuries are similar and will respond similarly to treatment. The treatment pathways as part of the 2015 consultation were based on injuries where 50% of people recovered within six months.  This type of scheme would be of limited assistance to the 50% of injured people who don’t recover in six months.  Right off the bat it is a system that only helps 1 in 2 people.  In addition, with standard treatment plans there is a “take it or leave it” approach.  If you want treatment you follow the plan.  If you don’t, then you don’t get treatment.  A standard treatment plan also eliminates any chance to settle claims for medical and rehabilitation benefits for minor injury claims.  The insurer need only fund the standard treatment plan and no more.

 

Independent Treatment Centres – the government says these centres will provide assessments of more serious auto collision injuries, which will help to resolve and reduce disputes, and will ensure the opinions of neutral assessors are respected.  This is supposed to remedy a system where both insurance companies and injury lawyers hire physicians and assessors to evaluate an injured person, and then these opinions are pitted against each other. This system was recently described by The Globe and Mail as one of “duelling assessments”.

 

Will independent treatment centre fix this?  Many questions remain.

 

  • Who will run the centres? If assessment companies which developed to provide assessments to the insurance industry run these centres are they independent?
  • Who decides who the assessors are? If an assessor has been previously criticised by an arbitrator or a judge as being biased or not credible, can they work for an independent treatment centre?
  • Who determines if the assessments are neutral?
  • Who is going to pay the independent assessors? A criticism of the current system is that assessors are beholden to those who pay them. But with independent assessment centres it is still going to be the insurance industry footing the bill.  Accordingly, the criticism of having assessor held accountable to an insurance company remains.

 

What is remarkable, is that the Liberal government is trying to put in place something that it took away in 2005. Back in 1994 the NDP created Designated Assessment Centres (DAC) as part of reforms to the auto insurance system. These were established to provide neutral third-party opinions about claimant injuries. One of the 2003 campaign promises of the Liberals was to eliminate the DAC system. Then Premier Dalton McGunity called the DACs “a costly relic of the NDP’s failed auto insurance reforms” (ref 5). The main criticisms of the DAC system was that it was very expensive, very time-consuming. Neutrality of the system was also questioned.

 

Twelve years later we have a back-to-the-future situation of Independent Assessment Centres in the place of Designated Assessment Centres.  One questions what is going to be done differently this time around? How will the government, which was critical of DACs, make sure that Independent Assessment Centres achieve their goal?

 

It may seem that that we overly skeptical of this plan.  However, when the stated goal of the plan is to reduce auto-insurance premiums, rather than to improve outcomes for injured persons, it is hard not to be skeptical.

 

Additional resources and commentary can be found here:

 

  1. Ontario Government Backgrounder: https://news.ontario.ca/mof/en/2017/12/ontarios-fair-auto-insurance-plan.html

 

  1. Ontario Government News Release: https://news.ontario.ca/mof/en/2017/12/making-auto-insurance-more-affordable.html

 

  1. Toronto Star: https://www.thestar.com/news/canada/2017/12/05/auto-insurance-fraud-has-become-an-industry-and-its-time-to-stop-it.html

 

  1. Globe and Mail: https://www.theglobeandmail.com/news/national/ontario-pledges-independent-system-for-auto-accident-injury-assessments/article37218292/

 

  1. Canadian Underwriter – Demise of the DAC – October 1, 2005: https://www.canadianunderwriter.ca/features/demise-of-the-dac/

 

 

If you have questions or comments about this report, contact Daniel Macdonald at Legate & Associates: d.macdonald@legate.ca