The Ontario Trial Lawyers' Association is asking for a bigger role in the making of regulatory changes to the province’s auto insurance, and specifically is calling on Queen’s Park to repeal a regulation that defines permanent serious impairment of an important physical, mental or psychological function for the purpose of lawsuits for health care costs resulting from injuries from vehicle operation.
“Unfortunately there is a recent and troubling trend for changes to be made to the auto insurance system in Ontario without any consultation whatsoever,” the OLTA states in its submission to the Ontario Auto Insurance Three-Year Review. “It is not surprising that those changes related to the removal or substantial diminution of the rights of accident victims and the benefits to which they are entitled.”
Of immediate concern to the OTLA is the regulation that defines permanent serious impairment.
“OTLA seeks to have the defining regulation, which offends fundamental principles of justice and equality as recognized in our Charter of Rights, repealed in its entirety,” the OLTA stated in its submission to the Ontario Auto Insurance Three-Year Review. “This can be achieved through an amendment to the Insurance Act.”
The ‘defining regulation’ OLTA is referring to is contained in Ontario Regulation 381/03, which amended Ontario Regulation 461/96, which pertains to court proceedings for auto collisions that occurred after Nov. 1, 1996.
Essentially, for lawsuits arising from such collisions, vehicle owners and occupants are not liable for health care expenses resulting from bodily injury unless the injured person either has a ‘permanent serious disfigurement’ or a ‘permanent serious impairment of an important physical, mental or psychological function.’ (continued.)
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But that is only a small part of what the OTLA sees as a larger problem – being excluded from the consultation process.
“OTLA understands that changes need to be made to the auto insurance system from time to time,” states the OTLA. “In recent years, the majority of those ‘changes’ have been in the form of cuts to benefits and restrictions of tort rights. But consultation with knowledgeable stakeholders, such as OTLA, must be a precondition before any changes of substance ought to be made to the auto insurance system.”
Submissions to the Financial Service Commission of Ontario (FSCO)'s three-year review were due March 31. These will be used to prepare a report FSCO plans to release later this year.
Currently, a permanent impairment is only serious if it meets one of three criteria. It must:
- ‘Substantially’ interfere with a victim's “ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment;”
- Substantially interfere with their “ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her career training;”
- Or substantially interfere with “most of the usual activities of daily living, considering the person's age.” (continued.)
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In order to meet the threshold, the function that is permanently seriously impaired must fall into one of four categories:
- Be necessary to perform the activities that are essential tasks of the person's regular or usual employment, taking into account reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment;
- Be necessary to perform the activities that are essential tasks of the person's training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her career training
- Be necessary for the person to provide for his or her own care or well-being
- Or be important to the usual activities of daily living, considering the person's age.
