Toronto Personal Injury Lawyer Albert Conforzi: 2012 has been a very active year at the Ontario Court of Appeal in the area of accident benefits decisions.
Last Wednesday, the Court of Appeal released its reasons in Cornie, which dealt with the mediation backlog at the Financial Services Commission of Ontario (FSCO).
The Insurance Act requires all disputes for benefits to be mediated at FSCO before an applicant can proceed to Arbitrate or Litigate such disputes. The backlog of mediations currently sits at around 31,000 files, and from the time that you file your papers to when your mediation is heard, the wait can be approximately one year. That is an eternity when you are waiting for benefits. The Insurance Act and regulations actually require that the mediation be held within 60 days after the mediation application is filed. So what gives?
Thankfully, the Court confirmed that “60 days” means “60 days” and “filing” means “filing.”
In Cornie and 3 other cases that were heard at the same time, the issue was whether a party could proceed to arbitrate or litigate a matter if the mediation was not held within the 60 days. FSCO itself took the position that the 60 days did not run from the filing of the mediation application – as in the regulation – but rather the 60 days ran from when a mediator was appointed to hear the case. The injured parties took the position that 60 days from filing meant 60 days from filing. The insurers opposed the injured parties as well. In my view, their self interest was in seeing the delay extend as long as possible (here’s another post of mine which mentions how insurers view the backlog issue).
Thankfully, the Court confirmed that “60 days” means “60 days” and “filing” means “filing.” Accordingly, a party may ask for a failed mediator’s report 60 days after filing an Application for Mediation if a mediation has not been held.
The danger now is that the backlog in mediations is simply going to be pushed to the Arbitrations unit at FSCO. Time will tell whether that fear materializes and to what extent it happens.