While there have been major changes made to the guidelines for benefits paid under Ontario’s no-fault accident law – known as the Statutory Accident Benefits Schedule or SABS for short – in the past, there has been rampant speculation about the future of the auto insurance system in the province because the Ministry of Finance asked David Marshall to develop a strategic overview with an eye towards any improvements that can be made to SABS.

The key recommendation in the “Marshall Report” sparked considerable controversy in the news media among lawyers, legal experts, and the public about the future of the accident benefit claims process. While the government revealed in December 2017, that it will address the main points in the Marshall Report, it’s unknown whether they will be introduced as legislation by Premier Doug Ford and implemented by Parliament. There are four crucial parts to the Marshall Report’s recommended changes to Ontario accident benefits. This summary explains the key provisions and why they have been so heavily criticized.

1. Implementing Standardized Treatment Plans

A key change recommended in the report would apply to all claims categorized as “minor injuries such as sprains, strains, and whiplash.” The tactic focuses on cutting the time and cost of treating such injuries and shifts the emphasis from cash settlements. Rather, it would require a standard treatment plan for every victim making an accident benefits claim.

An insurance company would not be required to pay for anything beyond the standardized treatment plan. The problem with this – and a reason it has been criticized so heavily – is that it would create a “cookie-cutter” approach to treating accident victims. It assumes that every victim with a defined minor injury requires the same type and amount of treatment.

Not only does this not make sense, applying it in the real world is highly problematic. We’ve worked with clients where two people in one car involved in an accident suffered similar injuries but with very different degrees of discomfort and pain, requiring different treatment plans. More important, a standardized treatment plan slams the door shut on a claim settlement that covers the cost and hardship of future rehabilitation.

What is a victim to do who does not recover within the treatment or time frame provided under a standardized approach? We believe this is poor public policy that will cause serious harm to people involved in an accident.

2. Reduce Disputes Around Diagnosis and Treatment

The second key change recommended in the Marshall Report is nothing more than a step backward in history to an approach that was tried and abandoned in the 1990s because it was too costly and highly inefficient. The report calls for creating “Independent Examination Centers” with supposedly neutral assessors to look at more serious injuries resulting from an accident.

The avowed purpose would be to help in resolving disputes between an insurance company and accident victims over their treatment benefits. The proposal leaves a number of serious questions unanswered, including:

• Would the system truly be impartial? We can envision lobbyists for the insurance industry trying to influence the standards by which the assessors determine the extent of an injury category which opens the door to victims not receiving adequate treatment or compensation.
• Would lawyers for an injured person, as well as the insurance company, be allowed to hire their own medical experts to evaluate injured accident victims, and how would different opinions between the various experts be resolved?
• On a more pragmatic level, what would qualify as a “serious” injury from a motor vehicle accident?
• Who will pay for the cost of the assessment? As we noted, earlier versions of a standardized assessment process in Ontario was scrapped because it was both costly and inefficient.
• Who will run the assessment centers? How many will there be? Will they be located where it is easy for a victim to go for their examination? If an injured person doesn’t have access to transportation, how will they get to a center and who will pay to get them there?

3. Cracking Down on Fraud

No one argues that insurance fraud isn’t a serious problem. It’s bad for the industry and for everyone who pays premiums for their policies. But the creation of a Serious Fraud Office (SFO) would duplicate what is already a responsibility of the provincial police and the Ministry of the Attorney General.

Still, the Marshall Report proposes creating an independent SFO to keep an eye on both the insured and the insurer to uncover fraud in accident benefit claims. But it does not specify how this new department would be any different than other mechanisms tried and implemented in the past.

Public participation is needed on a panel of so-called industry experts to crack down on fraud, whether in medical clinics or because of staged accidents. The public’s involvement would benefit insurance companies, the medical profession, and ordinary citizens.

4. FSCO To Review Risk Factors

Ontarians pay one of the highest rates of insurance premiums of all Canadians, yet the service we receive has been widely criticized as falling short of being even just satisfactory. The Financial Services Commission of Ontario (FSCO) is the government body responsible for reviewing the risk factors used by insurance company actuaries to determine those premiums and sets public policy that ensures we are not subjected to unfair rates as a result of risk factors such as where we live.

Yet for some drivers, their insurance premium is higher than their bill for gasoline. The Marshall Report assigns the FSCO with the responsibility to compel fairness. Yet the FSCO has this duty already so why are our rates so high? Ontarians are looking for – and deserve – better access to treatment and other benefits without having their premiums continue their skyward climb upward. We wonder if the government understands this and can factor this into its goal of reducing the cost of treating injured people.

Keeping You Informed

The proposals in the Marshall Plan have created as much heat as light, triggering widespread rumors about changes that have yet been introduced in legislation. In fact, rumors about changes to SABS and the law have been circulating for nearly 12 months but nothing has happened, yet.

This is why everyone at Gosai Law is committed to keeping tabs on the status of any legislation that may affect or change SABS. We’ve dealt with changes before and are equipped to keep you not just well-informed but well-represented. If you are in an accident – whether in a motor vehicle, at work, or simply going about your business – be sure to seek legal advice.

We will represent you throughout the claims process to ensure that your rights are protected and you receive the compensation you deserve and are entitled to. As your lawyers, we will fight for you to gain access to the accident benefits you need to fully recover from your injuries. If you have any questions, please call us at 905.595.2225.