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Top 5 Things You Need to Know About the New AABS System

Moderator: Helen Hall – Practical Law Canada, Personal Injury Litigation

Presenters: Charles Gluckstein – Gluckstein Personal Injury Lawyers Eric Grossman – Zarek Taylor Grossman Hanrahan LLP Darcy Merkur – Thomson Rogers

May 10, 2016

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Our Presenters Darcy Merkur – Thomson Rogers

Darcy is a partner at Thomson Rogers where he handles a multitude of complex, serious personal injury cases.

In addition to being certified by The Law Society of Upper Canada as a Specialist in Civil Litigation, Darcy has been recognized by his peers as an expert in Personal Injury in both The Canadian Legal Lexpert Directory and in The Best Lawyers in Canada publication.

As well, Darcy was the proud recipient of the 2011 Dean Edgell Award, presented by the Ontario Trial Lawyers Association for his significant contribution and excellence in legal writing, continuing legal education, and leadership activities.

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Our Presenters Charles Gluckstein – Gluckstein Personal Injury Lawyers

Charles is a partner at Gluckstein Personal Injury Lawyers with very broad and extensive experience in a range of complex personal injury matters.

Charles is certified as a specialist in Civil Litigation, is a past President of the Ontario Trial Lawyers Association, has been recognized by his peers in the annual Canadian Legal Lexpert Directory and is the recipient of the Lexpert Zenith Award for Leading Lawyer in Practice Excellence for Personal Injury.

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Our Presenters Eric Grossman – Zarek Taylor Grossman Hanrahan LLP

Eric is a partner at Zarek Taylor. He acts primarily for insurers in first party claims under Bill 198 and Bill 59 as well as in a number of loss transfer claims and priority disputes. Eric is recognized as a leader in the practice of auto insurance law. He is recognized as a Certified Specialist in Civil Litigation by the Law Society of Upper Canada, has been recognized by Lexpert in the Lexpert Canadian Legal Directory and in Best Lawyers in Canada.

Eric is also a member of the Advisory Committee for the Automobile Insurance Dispute Resolution System Transformation Project. The role of the committee is to provide SLASTO with expert advice about the transfer in system.

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Agenda

• Introduction

• 5 Top Things You Need to Know About the New AABS System – When to Proceed to LAT and When to Avoid LAT – Need For Speed: AABS may change how you manage and

organize your file – Cracking The Case Conference: Preparation and practice tips to

achieve the best results for your client – Getting Knocked Out Before the First Round – Initial review and

dismissal without a hearing – Settlement: Strategic Issues with LAT

• Questions

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WHEN TO PROCEED TO LAT AND WHEN TO AVOID LAT – DARCY MERKUR

Considerations Before Going to Battle

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Considerations When Deciding to Start an LAT Fight

• Big Issue versus Small Issue

• Kickstarting Treatment

• Forcing the Insurer to Revisit Their Approach

• Evaluating the Client’s “Big Picture” Interests

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Big Issue versus Small Issue

• CAT Fights, but consider: – Tort timing – Changing standards for tests

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Big Issue versus Small Issue

• Weekly Benefits — IRB only (non-earner now modest...but quick resolutions may be possible)

• Attendant Care if truly must be outsourced

• Getting out of the MIG

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Big Issue versus Small Issue

• Avoiding fights over overreaching treatment and assessment plans

• Avoid fights where paperwork isn’t in great shape to support the need, instead advance it differently

• Don’t fight where limits are going to be spent away (call adjuster instead)

• Don’t sweat the small stuff given costs and delays

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Kickstarting Treatment

• To open up the med/rehab fund if treatment stalled by insurer from the outset

• To establish crucial need for tort (willing to fight for it since it is so important)

• To convincingly prove attempts to mitigate

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Forcing Insurer to Revisit Approach

• To overcome causation defences and get a binding decision re accident-related needs

• To get a lawyer/supervisor to oversee a difficult adjuster

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Evaluating Client’s Big Picture Interests

• Consider implications of LAT decision against your client: – Might a causation loss on the lower AB causation standard

destroy your tort case? – Can a formal public decision that treatment isn’t required haunt

your tort claim? – Can adverse credibility findings or surveillance cause havoc on

tort assessment

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NEED FOR SPEED - CHARLES GLUCKSTEIN

The AABS May Change How You Manage and Organize Your File

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AABS INTRODUCES TIGHT TIMELINES

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6 Months from Response to Application to Hearing

RESPONSE TO AABS CLAIM

CASE CONFERENCE HEARINGS

45 DAYS 60 DAYS

6 MONTHS

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Increased Need for Speed and Efficiency • Files must be made ready for hearing much

faster than with FSCO

• Familiarize yourself with the new process ()

• Keep your files organized

• Request and serve documents early

• Have someone in the office available (adjudicator sets hearing date and adjournments will be difficult)

• Retain witnesses and prepare will-says early

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CRACKING THE CASE CONFERENCE Preparation and Practice To Achieve Best Results For Your Client

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Case Conferences

• Scheduled within 45 days of the documents being perfected

• Hearings will be held by phone

• One hour in length

• Case conference briefs are exchanged 10 days prior to the hearing

• Meetings are settlement focused

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Disclosure of Documents

RESPONSE TO AABS CLAIM

CASE CONFERENCE

45 DAYS TOTAL

• Disclosure of documents must take place prior to the submission of case conference summaries

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Summaries and Notices of Motion

RESPONSE TO AABS CLAIM

CASE CONFERENCE

45 DAYS TOTAL

• 10 days before the case conference all summaries must be filed and any Notices of Motion must be served

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Case Conference Summaries

Canvass Settlement

List Witnesses

Summarize Evidence

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Implications:

Your file has to be

ready weeks after submitting an AABS

Claim!

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Preparation Tips: Review your File

Review Documents

Form of Hearing

Motions

Witnesses

Settlement Offers

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Preparation Tips: Organizing your file to be summary friendly

Folders

Tracking Sheets

Document Tracking Sheet:

Witness Tracking Sheet:

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GETTING KNOCKED OUT BEFORE THE FIRST ROUND – ERIC GROSSMAN

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Getting Knocked Out Before The First Round

• Jurisdiction, While Undefined, Consider: – Did the applicant apply for the benefit? – Did the insurer deny the benefit? – Is there entitlement to the benefit?

• Is it an optional benefit, but no optional benefits are available? • Is there a CAT determination in play to potentially increase levels of

benefits?

– Is there an exclusion due to WSIB ( might be a preliminary issue)?

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Getting Knocked Out Before The First Round

• Jurisdiction, While Undefined, Consider: – Failure to comply with a section 33 request for information? – Failure to attend an insurer examination? – No entitlement to Ontario accident benefits at all?

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Make It Go Away!

• Dismissal Without a Hearing

• LAT Rule: Section 3.4, 3.5 and 3.6

• Available for: – Frivolous/Vexations Claims AND/OR – Analysis of Jurisdiction and Statutory Requirements

• Appeal is abandoned

• Rules 20.3 mandates jurisdictional issues be raised in Response

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Thinking About Settlement: Strategic Issues with LAT

Panel Discussion

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Questions

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Practical Law

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About Practical Law Canada

• Practical resources covering a range of practice areas including Personal Injury Litigation, Corporate & Commercial Litigation, and transaction related practice areas such as Capital Markets & Securities.

• Key resource types include: (i) Practice notes (ii) Standard documents (precedents with drafting notes and model documents) (iii) Checklists (iv) Toolkits (v) Updates

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Sample Content • As an attendee of this webinar, you will be sent an email with

active links to a sample of relevant Practical Law Canada resources:

− Practice Note Overview: AABS (Automobile Accident Benefits Service) Overview

− Flowchart: AABS Procedural Flowchart

− Standard Document: AABS Case Conference Summary

Access to these resources expires on Friday May 13th for non-subscribers

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