4. Cunningham Report
• Appointed August 23, 2013
• Interim report released Fall 2013
• Final report was meant to be released
February 28, 2014, but government asked for
it a month early
• Not asked to review or consider the specific
benefits themselves, nor PJI rate
6. Bill 171
• First reading March 4, 2014
• Second reading began March 17 and 19, 2014
• Now at the clause-by-clause Committee
review stage (as of April 14, 2014)
• Uncertain when it will go to third reading (if
ever)
• The Bill currently does not appear on any
agendas for the upcoming Committee sittings
(at least for the next week)
7. Key Features of Bill 171
• Elimination of the right to sue for disputed claims for accident
benefits – all claims must be arbitrated.
• Arbitrations will be handled by the Licence Appeal
Tribunal, instead of FSCO.
• An appeal lies to the Divisional Court (not clear if to single
judge or panel). The Director’s Delegate level of appeal is
abolished. An appeal may still only be on a question of law.
• The Superintendent loses the ability to appoint arbitrators.
• Clarifies that an insured person, for the purposes of dispute
resolution, includes someone seeking death or funeral
benefits.
8. • Either insurer or insured may apply to Licence Appeal Tribunal
for dispute resolution.
• Regulations can be made re: costs, including costs against the
lawyer personally (no draft text yet).
• Regulations can be made to pay amounts, even if those
amounts are not costs or amounts to which a party is entitled
under the SABS (no draft text yet).
• Elimination of the 5% pji rate on claims for non-pecuniary
losses in motor vehicle cases. The current pji rate is 1.3%.
Does not affect the 5% pji rate for any other personal injury
claim.
9. Cunningham’s philosophical approach is that
SABS should move from being a system aimed at
procuring a financial payment to a system aimed
at providing timely benefits during the first
couple of years. He has a bias against lump-outs
and the practice that has developed, by both
sides, to use a dispute over a benefit to then
discuss a full and final resolution.
12. Features not included in Bill 171, but
which may still be enacted
• Statutory timelines and sanctions regarding settlement
meetings, arbitration hearings and the release of arbitration decisions
should be created.
• An adjournment fee should be established, which could be charged to the
party requesting an adjournment in the absence of exceptional
circumstances.
• The settlement of future medical and rehabilitation benefits should be
prohibited until two years after the date of the accident.
13. • Experts should be required to certify their duty to the tribunal and to
provide fair, objective and non-partisan evidence. Arbitrators should
ignore evidence that is not fair, objective or non-partisan and, in such
instances, the expert should not receive compensation for appearing as a
witness.
• Each insurer should establish an internal review process and be required
to inform a claimant how to access it following a benefit denial.
• The tribunal should develop an electronic filing system to expedite the
filing of settlement meeting and arbitration applications.
14. • Arbitration hearings should be conducted as paper reviews in cases where
there are $10,000 or less of medical and rehabilitation benefits in
dispute, or where the dispute involves a determination as to whether the
claimant’s injuries meet the minor injury definition.
• Arbitration hearings should be conducted as an expedited in-person
hearing in cases that do not qualify as either a paper review or full in-
person hearing. This determination should be made by an arbitrator and
not subject to appeal.
• Arbitration hearings should be conducted as full in-person hearings for
disputes involving catastrophic impairment determinations and whether
the claimant still qualifies for 24-hour attendant care or income
replacement benefits beyond 104 weeks.
15. Questions for the future, if passed:
• Stand-alone claims for punitive damages?
• Increased costs with two parallel
streams, often on the same issue (like income
losses)?
• Is it good to prevent lump-outs of med/rehab
for two years?
• Internal review?
