Monday, 31 March 2014

Reforms to Ontario’s Dispute Resolution System Are Long Overdue

Full disclosure here. I worked with Justice Douglas Cunningham on his review of Ontario's Dispute Resolution System (DRS) and fully support his recommendations. In the process of coming up with his recommendations, Justice Cunningham listened to a lot of users of the system, ADR experts and other interest parties. He spent considerable time analyzing what he heard before making his conclusions and recommendations. Obviously, not everyone is going to agree with all the recommendations.

 The current system is definitely broken despite some suggesting to the contrary. The system is too slow, which adds unnecessary costs and hardship. The culture within the system contributes to the problems. Justice Cunningham's report proposes a culture change starting with pulling the DRS out of FSCO and significantly speeding up the process. Should all his recommendations be adopted, we will have a much more responsive and efficient system. In 1990, the government created the DRS specifically to provide accident victims with a cost effective and timely alternative to the courts. The proposed reforms are intended to return the system to those first principles.

A number of stakeholders have come out against Bill 171 which is unfortunate. Some have suggested that Justice Cunningham's report requires more consultation. I've been working in this system a long time and that is just a stall tactic to provide more time to lobby to protect your interests. Trial lawyers are opposed to Justice Cunningham's recommendation to end accident victims' ability to choose to go to court or arbitration to resolve a dispute. However, Justice Cunningham was of the view that a simpler and quicker DRS would provide appropriate access to justice and therefore, the court option would no longer be necessary.

Accident victim groups are understandably disappointed that Justice Cunningham did not address their long-term complaints regarding the independent assessment industry. They believe that unless independent assessment providers are regulated, all other reforms are pointless. I disagree. Many accident victims will benefit from the reforms. Settlements or the restoration of benefits will occur sooner. Justice Cunningham indicated that the type of regulatory system proposed by stakeholders was clearly outside the scope of his review. As such it will have to wait for another day.

The Opposition parties have been critical of Bill 171 but they have shown a willingness to allow the bill to pass at second reading and go to a Standing Committee for review. I believe beyond the rhetoric the Legislature recognizes changes are needed.


  1. But why have you never made an effort to clean up the IME system and purge it of the rogues. Master Short asked when the insurer IME vendors would ever change their partisan stripes. FSCO and the IBC and the successive reviewers all turn a blind eye to unqualified, amateurish and even fraudulent insurer assessments and insurer "hired guns" who call everyone they assess a faker. Why have you so studiously ignored this problem. Is it simply because it isn't a "problem" for the insurers and the IBC?

    1. Although I was the policy lead for the government on auto insurance for many years I did not set the policy agenda. Those decisions were made by others.

      In 2004, I was asked to do work on replacing the Designated Assessment Centre system. A consultation paper was released on a proposed Expert Assessor Network (it's mentioned on my Report page). The proposed system would have required insurers and treating practitioners to use a rostered health care provider to conduct an assessment. The proposal was universally condemned. No one wanted to lose the ability to submit an assessment that supported their position.


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