‘Insurance company looking to overturn 27 years of jurisprudence’

Personal Injury /
M. Steven Rastin
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By Tony Poland, LegalMatters Staff • An upcoming divisional court case could have a profound and lasting effect on personal injury cases and victims’ ability to access benefits, says Barrie-area litigator Steve Rastin.

Rastin, senior counsel and lawyer at Rastin Gluckstein, is one of four lawyers representing the Ontario Trial Lawyers Association (OTLA), which is intervening in the appeal by an insurance provider of a Licence Appeal Tribunal (LAT) decision awarding payment for treatment to the victim of a 2013 motor vehicle accident.

If successful, the appeal could undermine the LAT and the Statutory Accident Benefits Schedule (SABS), he tells LegalMattersCanada.ca.

“The insurance company is looking to overturn 27 years of jurisprudence with this case,” says Rastin, who is co-counsel with Alexander M. Voudouris, Stanley Pasternak and Jessica Golosky. “If their position is accepted, then LAT, the SABS and the dispute resolution system will effectively be out of reach for many people who need and rely on it.

‘SABS is a consumer protection system’

“It’s our position that SABS is a consumer protection system, and it’s supposed to be given a consumer protection interpretation, meaning that people who need the benefits get the benefits.”

The appeal arises from a LAT judgment last March that found a woman was entitled to insurance coverage to cover chiropractic treatment following an accident. The insurance company applied to the tribunal for a reconsideration of the decision, arguing that her claim shouldn’t have been heard since the treatment had not been incurred.

“Effectively, if you accept what they’re saying, it was too early for the accident victim to go to LAT until she has incurred the expense,” Rastin explains. “What that would mean is that SABS is only for people who have the money to pay for the treatment now with the hope of getting reimbursed later.”

He says that an accident victim submits a treatment plan to their insurance company for approval in the usual procedure. If granted, the therapist provides treatment and bills to the insurance company directly. There is no out-of-pocket expense to the victim. If the claim is rejected, the victim can go to the LAT.

Insurer takes issue with the procedure

However, the insurance provider involved in the appeal disagrees with the procedure, Rastin says.

“They are claiming that is a prospective decision and that the adjudicator was wrong in ordering payment for treatment that hasn’t happened yet,” he says.

Rastin says the insurer’s stance is that the victim must pay for treatment before the claim can be contested at LAT.

In some cases, the treatment needed could cost thousands of dollars, he says.

“If the insurance company is successful, that will effectively mean that SABS is only for the affluent,” he says. “Quite frankly, it doesn’t matter how affluent you are before an accident if you are injured and can’t work. You’re probably going to be struggling to have the money to pay for treatment. In such a system, claimants, especially unrepresented claimants, are effectively in a no-win situation.”

Rastin says forcing accident victims to pay upfront before disputing a claim runs counter to how the system was designed.

“SABS is a trade-off. It’s harder to sue in tort because there’s this generous no-fault system in place that is supposed to get you back to work,” he says. 

Rastin says that in looking at past claims, OTLA has discovered the insurance company has made the same argument a dozen times.

“They just keep hitting it and hitting it, hoping to have it catch,” he says. “If it does, we’re going to have a system in place that will make a mockery of the whole concept of access to justice.”

Issue has gone largely unnoticed

Rastin says the issue has gone largely unnoticed, perhaps because “at the end of the day people realize that it’s a Hail Mary that’s being tossed out” by the insurance provider.

“It’s one of those things where I think everybody’s saying, ‘Well, they’re not going to win, so we don’t need to worry about it,’” he says. “But what if they’re wrong? What if the insurance company is successful?”

As intervenors, the OTLA hopes to demonstrate to the Court what a favourable decision for the insurance provider will mean to the public, Rastin says.

“We believe their position is fundamentally unjust,” he says. “It’s contrary to the principles of access to justice and consumer protection. It’s contrary to the governing legislation. It’s contrary to the existing jurisprudence.”

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