top 5 things you need to know about the new aabs...
TRANSCRIPT
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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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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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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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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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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
• 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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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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