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Personal Injury

Lack of costs at LAT hampering some claimants

The lack of costs awards at the Licence Appeals Tribunal (LAT) may scare some injured individuals from fully pursuing deserving claims, says Toronto critical injury lawyer John McLeish

McLeish, a partner with McLeish Orlando LLP, tells AdvocateDaily.com that his firm recently commissioned an expert opinion for a client whose insurer had terminated his income replacement benefits.

The report cost $5,000, approximately the same amount as the arrears in dispute. Following a case conference, the insurance company agreed to pay the arrears and reinstate benefit payments for at least a while.

"The consequences to a person who cannot afford to pay $5,000 for a report are not pretty," McLeish says. “If you’re a self-represented individual who’s not working, or a sole-practitioner paralegal acting for an injured claimant, what are you supposed to do?”

“The injured individual or paralegal would be more inclined to go forward with the claim if there was a good chance they could recover the majority of the majority of their costs,,” he adds.

Costs are not available for parties, despite the fact a report by Ontario's former Associate Chief Justice Douglas Cunningham that precipitated the move to the LAT recommended that when either party is found to be abusing the process they should pay all or part of the case conference and arbitration fees of the opposing party.

In addition to his concerns about costs, McLeish says the depth of adjudicators’ knowledge about the technically demanding area of accident benefits is variable.

“It can be hit and miss. Some are very good, but some others are at the other end of the spectrum,” he says.

But it hasn’t been all bad news in the system’s first 16 months. For example, McLeish says adjudicators have accommodated parties’ wishes when it comes to having hearings proceed in writing, orally, or some combination of the two.

In addition, the tribunal’s speedy deadlines, which are designed to see most cases completed within six months, mean that his clients typically have short turnarounds for case conferences and hearings after filing applications.

“You can get quick dates, which has been just excellent,” McLeish says.

However, he says delays in delivering decisions have undercut some of those gains in efficiency, with claimants suffering disproportionately as a result.

“We can sometimes wait for months, and in the meantime, the benefits have stopped. That creates hardship on injured individuals, whereas the insurance company is unharmed. They’re not the vulnerable ones,” McLeish says.

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