Bill 198 Reforms - October 2003


Bill 198 Reforms - October 2003 Catherine Zingg Many significant changes toto automobile insurance were brought about by Bill 198 Reforms, most of which came into effect October 1, 2003. Of course, with a new provincial government in power, everything is subject to change. The Liberals, for example, have stated that they will do away with Designated Assessment Centres. For those of you who attended the 7^th Annual Key Current Issues Seminar, this may not be new information. For those of you who were unable to attend, this newsletter sets out the highlights of the Bill 198 Reforms. The regular newsletter will resume on November 1, 2003. SABS 1996 Superintendent’s Bulletin A-04103, issued on July 4, 2003, stated that “changes that effect benefit entitlement will apply to accidents that occur on or after October 1, 2003". All other changes “to the SABS are effective October 1, 2003, regardless of the date of occurrence of the accident”. S.2 - Catastrophic Impairment The definition of “catastrophic impairment” has changed. Sections 2 (b) and (c) now refer to the loss of use of “ both legs”. In addition, the new definition is intended to assist health practitioners in assessing injured children, as an impairment suffered by an applicant under the age of 16 “ that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (1.2) (e) (f) or (g), after taking into consideration the developmental implications of the impairment” - O Reg 281/03, s.1.5. The change from 3 years to 2 years with respect to the 55% whole person impairment test fills the gap for catastrophically injured insured’s whose condition had not stabilized at the 2 year point. The new wording still refers to the 4^th edition of the AMA Guideline to Permanent Impairment. The medical profession, however, uses the 5^th edition both in the United States and Canada. Most Workers Compensation Boards also use the 5^th edition. S.4 - Income Replacement Benefits The maximum is to be reduced from $400.00 to $300.00 - subsection 7(1)2. (i). This applies to policies issued or renewed after January 1, 2004 in respect of accidents that occur on or after January 1, 2004. Insureds who renew their auto insurance up until January 1, 2004, will continue to be entitled to the higher rate of income replacement benefits until their next renewal. Pre-Approved Framework - s.24 Major changes have been made to section 24. A Pre-Approved Framework (PAF) has been developed, which is intended to apply to most WAD I and WAD II injuries. Treatment for aWAD 1 will be completed within 28 days and will cost $1,070.00, including supplemental benefits. Treatment for a WAD II will be completed within 6 weeks of the initial assessment and will cost $1,910.00, not including x-rays. In order to receive benefits under the PAF, the applicant must complete an application for benefits and have the initiating health care practitioner (IP) submit a treatment confirmation form within 21 days for a WAD 1 and within 28 days for WAD II. Within 5 business days of receiving a treatment confirmation form, the insurer is to respond to the IP and indicate whether the policy was in force at the time of the accident. Where there is a problem with coverage, however, the legislation does not present a mechanism for resolution, nor does it offer guidance with respect to the treatment of applicants who have multiple accidents. Presumably the first insurer to receive a completed application will pay benefits until issues of entitlement or priority are resolved as they have been in the past pursuant to section 268 of the Insurance Act. Fees for the preparation of assessment and reports relating to ancillary goods and services under s.37.1 and s.37.2 must be paid. Reasonable fees must also be paid for DAC assessments and for the preparation of treatment confirmation forms, prepared under the PAF by health practitioners or members of the health professions. The time lines are more restrictive than in the past. Where a request is made to an insurer for an assessment or examination required for the purposes of preparing a treatment plan, the insurer will have to respond within 2 business days after receiving their request if the amount to be charged is under $180.00 and within 5 business days after receiving the request, if the amount to be charged is over $180.00 - subsection 24 (1.3). Approval may be given verbally - subsection 24 (1.4). Where the time lines are not met, the insurer shall be deemed to have agreed to pay for the assessment or examination - subsection 24(1.5). Professional Services - Superintendent’s Bulletin Number 05/03 The existing fee guidelines were revoked when this bulletin was issued. The hourly rates for health professions or providers are as follows: chiropractors - $95 massage therapists - $49 occupational therapists - $84 physiotherapist - $ 84 – (formerly $95 - $120) podiatrists - $84 – (formerly $110 - $120) psychologists (other than Master’s level) - $ 126 – (formerly $180) Masters of psychology - $ 93 speech language therapists - $ 94.50 – (formerly $135) registered nurses, registered practical nurses and nurse practitioners - $ 77 unregulated providers - $ 49 The maximum rates to be paid for the completion of forms are as follows: Disability Certificate – OCF 3 $62 Treatment Plan – OCF 18 $62 Form 1 – Assessment of Attendant Care Needs $62 Automobile Insurance Standard Invoice - OCF 21 $0 Application for Approval of an Examination – OCF-22/198 $0 Vocational Assessment under s.15(5)(f) are not payable under this section, pursuant to subsection 24(5). S.25 - Death Benefits Subsection 25(4.1) has been added. Now, when a dependant dies the $10,000 death benefit is to be divided equally “among the persons in respect of whom the insured person was a dependant”. The change is not retroactive. Previously, the case law was divided with respect to this issue. S. 30 - Exclusions Changes to this section have the potential to change the manner in which occupants are treated. Subsection 2(c)(ii) has been added, permitting the insurer to withhold income replacement or non earner benefits from “an occupant of an automobile that was being used in connection with an act for which the person is convicted of a criminal offence”. S.32 - Procedures For Claiming Benefits An applicant will now be required to notify the insurer no later than “the 7^th day after the circumstances arose that give rise to the entitlement of the benefit, or as soon as practical after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003”. Clauses have been added to this section. An insurer is to notify an applicant if an application is incomplete within 14 days after receiving the incomplete application and is to indicate the information that is missing. The insured is then given 30 days after receiving the additional application forms from the insurer. The key amendment is clarification that no benefit is payable until the person provides the missing information pursuant to subsection 32(5). In addition, subsection 32(6) states that where an insured has missed the 7 day notice period, the insurer may delay determining if the person is entitled to a benefit under s.35(IRB’s, non-earner or caregiver benefits), s.38 (medical and rehabilitation benefits), s.39 (attendant care benefits) or s.41 (other benefits) for a maximum of 45 days after the day the insurer receives the person’s application. S.33 - Duty of Applicant to Provide Information This section has been amended to provide for an examination under oath of the applicant, s.s. 33(1.1). The applicant is entitled to be represented by counsel or other representative, subsection 33 (1.2). Subsection 33(2) provides that the insurer will not be liable to pay a benefit were the insured has failed to comply with the application requirements or has failed to attended an examination under oath. This change may be capable of use for recent accidents (before October 1, 2003) given the lack of an express statement that it applies only to accidents after October 1, 2003. S.42 - Insurer Assessments The ability of the insurer to request an insured to attend examinations under this section is restricted under the new legislation. An insurer may not request an examination with respect to PAF benefits set out in s.37.1 and s.37.2 or for a medical rehabilitation benefit under s.14 or s.15 unless the claim is the subject of proceedings under s.279 to s. 284 of the Act - s.s 42(1.1). The notice requirement has also changed and now the date of the examination must be at least 5 business days after the person receives the notice -s.s 42(2). When the insurer has received the report, it must provide the insured with a copy within 5 days - s.s 42(7). Previously, subsection 42(8)(b) stated that no benefit was payable after notice of the IE had been given or if the insured had failed to provide information or attend the examination. Repayments to Insurer - s.47 The following clauses have been added to this section: (d) if subsection 37(4) applies, any income replacement benefit non earner or caregiver benefit that is paid for the period after the insurer gives notice under subsection 37(1) and before the date of the report of the designated assessment centre referred to in subsection 37 (4); or (e) fees paid by the insurer under paragraph 2 of subsection 24(1), if the insured person fails, without a reasonable explanation, to attend a designated assessment that has been arranged, or cancels a designated assessment without providing such notice as may be specified in the pre-assessment cancellation fee Schedule established by the committee referred to in s.52, as it may be amended from time to time, that he or she will not be attending the designated assessment. Designated Assessment Centres - s.52 and s. 53 (Note that the Liberals have stated that they will do away with Designated Assessment Centres) The powers of the Minister’s Committee are expanded under ss.52.1 and ss.52.2. The committee “may suspend or modify” designations of assessment centres made under s.52. DACs will be required to provide information to the Superintendent as the committee requires. There is a new process for selecting a DAC, which allows an assessment to be conducted by a DAC that is located within 30km of the insured person’s residence if they live in Toronto or the regional municipalities of Durham, Halton, Peel or York and within 50km of the insured person’s residence if they are outside of those areas. There are also provisions for allowing the Superintendent to select the DAC where the parties cannot agree. The parties will be “deemed not to agree in the case of a designated assessment described in ss.43(11) unless they agree by the end of the third business day after the day the insurer receives the notice under subsection (2), whichever day is later. A DAC must begin an assessment within 14 days after receiving the request for a DAC-ss.53(9). If the DAC is unable to start an assessment within 14 days, the parties may require that, “subject to subsections (1.1), (1.2) and (2), the designated assessment be conducted by another designated centre selected by the Superintendent.” Fee Guidelines for Fast Track DACs have been established by Superintendent’s Guideline No.03/03. This is a further attempt to reduce costs and add certainty to the process. Participation in Rehabilitation and Employment – s.55 and s.56 This section has been amended to give the insurer the power to discontinue the benefits without having to comply with the process for stopping benefits in s.37, where the insured is not participating in rehabilitation or seeking employment. Assignment of Benefits – s.65 This section has been tightened, and now reads as follows: 65(1) The assignment of a benefit under this Regulation, or the assignment of the right to pursue a mediation, arbitration, appeal or variation proceeding under s.280 to 284 of the act, is void. O Reg 281/03, s.32 (1). Forms - s.69 There is a list of approved forms that are to be used. See s.69 of the SABS. Release The ability to reach a binding settlement of an insured’s claim for accident benefits has been modified by the addition of the following clauses to the settlement regulation: (11) Despite clause (10)(b), a restriction contained in a settlement entered into before the first anniversary of the day of the accident that gave rise to the claim is not void under subsection 279(2) of the Act if, in respect of the claim, (a) the insured person brought a proceeding in a court of competent jurisdiction under clause 281(1)(a) of the Act and examinations for discoveries have commenced; (b) the insured person referred the issues in dispute to an Arbitrator under clause 281(1)(b) of the Act and a pre-hearing conference has been completed; or (c) the insurer and the insured agreed under clause 281(1)(c) of the Act to submit the issues in dispute for arbitration in accordance with the Arbitration Act, 1991 and an arbitration agreement under that agreement has been entered into. (12) Clause (10)(b) and subsection (11) apply to claims that have not settled before October 1, 2003, unless a disclosure notice under subsection(2) in respect of the settlement or purported settlement was given to the insured person before that date. The Threshold The threshold has been amended by O Reg 461/96. The definition is much more comprehensive and is an attempt to raise the threshold. The Regulation is effective October 1, 2003. Health Care Costs The right to sue for health care expenses in tort is one of the most significant changes to be made by the new legislation. Section 120(1) will amend s. 267.5(3) of the Insurance Act. If the plaintiff passes the threshold they can sue for health care benefits in tort. This would be a major reform. The claim for health care benefits in tort will not be subject to any caps. Also, it is not clear whether the $100,000 for rehabilitation benefits under accident benefits will be allowed to be deducted from the tort award for rehabilitation benefits. It is possible that in some circumstances it will be found that the accident benefits were not available to the plaintiff. Thus, you will no longer have to be catastrophically injured to pursue the cost of health care expenses. Vanishing Deductibles The deductibles have been increased from $7,500 to $15,000 for FLA claimants and from $15,000 to $30,000 for non pecuniary loss claims, subject to the “vanishing deductables”. Section 120 of Bill 198 also amends s.267.5(8) of the Insurance Act. If the damages exceed $100,000 for non-pecuniary loss (other than damages for non pecuniary losses under s. 61(2)(e) of the Family Law Act) then the $30,000 deductible will not apply. If damages for non-pecuniary loss under s.61 (2)(e)of the Family Law Act exceed $50,000 then the $15,000 Family Law Act deductible will not apply. Code of Conduct for Paralegals The Code of Conduct will come into effect on November 1, 2003. The Code will apply to “SABS representatives” or “representatives” who engage in the following activities: advising another person about his or her rights under the SABS; completing or assisting in completing application forms; discussing and negotiating with an insurer or adjuster; attending dispute resolution proceedings at FSCO, in Small Claims Court or private arbitration; or negotiating the settlement of SABS claims The Code requires representatives to have a“reasonable understanding of substantive law and procedural requirements governing Statutory Accidents Benefits claims”. Representatives are also required to be courteous and diligent. Representatives are required to maintain E & O insurance in an amount not less than $1,000,000 in respect of any one occurrence with an overall policy aggregate limit of at least $1,000,000 per person. Representatives must disclose conflicts of interest. Representatives are also required to file with the Superintendent. Declaration forms must be filed with FSCO before November 1, 2003. Representatives will not be permitted to continue to participate in existing proceedings unless they have filed. A searchable list of SABS representatives will be posted at www.fsco.gov.on.ca. Other recent regulations include: Automobile (O Reg 664 amended by O Reg 275/03. This Regulation restricts the settlement of SABS claims for future benefits until after 1 year from the accident; limits the criteria to be taken into account by Arbitrators in determining whether to award expenses Unfair or Deceptive Acts or Practices (O Reg 7/00 amended by O Reg 2784/03 This Regulation expands the list of conduct that is considered an unfair or deceptive act to practice under the insurance act to include the following: Using forms not approved by the Superintendent; examinations under oath that do not comply with the Act or Regulations; n demanding, accepting or paying referral fees in SABS claims; charging amounts for goods and services under the SABS which are not provided or which unreasonable exceed amounts charged to others for similar services; failure to disclose a conflict of interest under the SABS The Regulation is effective November 1, 2003 Uninsured Automobile Coverage (O reg 676 amended by O Reg 276/03) The Regulation repeals a provision governing the deduction of other insurance from uninsured motorist coverage limits. The Regulation was effective on July 2, 2003.

Catherine Zingg

Many significant changes toto automobile insurance were brought about by Bill 198 Reforms, most of which came into effect October 1, 2003. Of course, with a new provincial government in power, everything is subject to change. The Liberals, for example, have stated that they will do away with Designated Assessment Centres.

For those of you who attended the 7^th Annual Key Current Issues Seminar, this may not be new information. For those of you who were unable to attend, this newsletter sets out the highlights of the Bill 198 Reforms. The regular newsletter will resume on November 1, 2003.

SABS 1996

Superintendent’s Bulletin A-04103, issued on July 4, 2003, stated that “changes that effect benefit entitlement will apply to accidents that occur on or after October 1, 2003". All other changes “to the SABS are effective October 1, 2003, regardless of the date of occurrence of the accident”.

S.2 - Catastrophic Impairment

The definition of “catastrophic impairment” has changed. Sections 2 (b) and (c) now refer to the loss of use of “ both legs”. In addition, the new definition is intended to assist health practitioners in assessing injured children, as an impairment suffered by an applicant under the age of 16 “ that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (1.2) (e) (f) or (g), after taking into consideration the developmental implications of the impairment” - O Reg 281/03, s.1.5.

The change from 3 years to 2 years with respect to the 55% whole person impairment test fills the gap for catastrophically injured insured’s whose condition had not stabilized at the 2 year point.

The new wording still refers to the 4^th edition of the AMA Guideline to Permanent Impairment. The medical profession, however, uses the 5^th edition both in the United States and Canada. Most Workers Compensation Boards also use the 5^th edition.

S.4 - Income Replacement Benefits

The maximum is to be reduced from $400.00 to $300.00 - subsection 7(1)2. (i). This applies to policies issued or renewed after January 1, 2004 in respect of accidents that occur on or after January 1, 2004. Insureds who renew their auto insurance up until January 1, 2004, will continue to be entitled to the higher rate of income replacement benefits until their next renewal.

Pre-Approved Framework - s.24

Major changes have been made to section 24. A Pre-Approved Framework (PAF) has been developed, which is intended to apply to most WAD I and WAD II injuries. Treatment for aWAD 1 will be completed within 28 days and will cost $1,070.00, including supplemental benefits. Treatment for a WAD II will be completed within 6 weeks of the initial assessment and will cost $1,910.00, not including x-rays.

In order to receive benefits under the PAF, the applicant must complete an application for benefits and have the initiating health care practitioner (IP) submit a treatment confirmation form within 21 days for a WAD 1 and within 28 days for WAD II. Within 5 business days of receiving a treatment confirmation form, the insurer is to respond to the IP and indicate whether the policy was in force at the time of the accident. Where there is a problem with coverage, however, the legislation does not present a mechanism for resolution, nor does it offer guidance with respect to the treatment of applicants who have multiple accidents. Presumably the first insurer to receive a completed application will pay benefits until issues of entitlement or priority are resolved as they have been in the past pursuant to section 268 of the Insurance Act.

Fees for the preparation of assessment and reports relating to ancillary goods and services under s.37.1 and s.37.2 must be paid. Reasonable fees must also be paid for DAC assessments and for the preparation of treatment confirmation forms, prepared under the PAF by health practitioners or members of the health professions.

The time lines are more restrictive than in the past. Where a request is made to an insurer for an assessment or examination required for the purposes of preparing a treatment plan, the insurer will have to respond within 2 business days after receiving their request if the amount to be charged is under $180.00 and within 5 business days after receiving the request, if the amount to be charged is over $180.00 - subsection 24 (1.3). Approval may be given verbally - subsection 24 (1.4). Where the time lines are not met, the insurer shall be deemed to have agreed to pay for the assessment or examination - subsection 24(1.5).

Professional Services - Superintendent’s Bulletin Number 05/03

The existing fee guidelines were revoked when this bulletin was issued. The hourly rates for health professions or providers are as follows:

chiropractors - $95
massage therapists - $49
occupational therapists - $84
physiotherapist - $ 84 – (formerly $95 - $120)
podiatrists - $84 – (formerly $110 - $120)
psychologists (other than Master’s level) - $ 126 – (formerly $180)
Masters of psychology - $ 93
speech language therapists - $ 94.50 – (formerly $135)
registered nurses, registered practical nurses and nurse practitioners - $ 77
unregulated providers - $ 49

The maximum rates to be paid for the completion of forms are as follows:

Disability Certificate – OCF 3 $62
Treatment Plan – OCF 18 $62
Form 1 – Assessment of Attendant Care Needs $62
Automobile Insurance Standard Invoice - OCF 21 $0
Application for Approval of an Examination – OCF-22/198 $0

Vocational Assessment under s.15(5)(f) are not payable under this section, pursuant to subsection 24(5).

S.25 - Death Benefits

Subsection 25(4.1) has been added. Now, when a dependant dies the $10,000 death benefit is to be divided equally “among the persons in respect of whom the insured person was a dependant”. The change is not retroactive. Previously, the case law was divided with respect to this issue.

S. 30 - Exclusions

Changes to this section have the potential to change the manner in which occupants are treated. Subsection 2(c)(ii) has been added, permitting the insurer to withhold income replacement or non earner benefits from “an occupant of an automobile that was being used in connection with an act for which the person is convicted of a criminal offence”.

S.32 - Procedures For Claiming Benefits

An applicant will now be required to notify the insurer no later than “the 7^th day after the circumstances arose that give rise to the entitlement of the benefit, or as soon as practical after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003”. Clauses have been added to this section. An insurer is to notify an applicant if an application is incomplete within 14 days after receiving the incomplete application and is to indicate the information that is missing. The insured is then given 30 days after receiving the additional application forms from the insurer. The key amendment is clarification that no benefit is payable until the person provides the missing information pursuant to subsection 32(5). In addition, subsection 32(6) states that where an insured has missed the 7 day notice period, the insurer may delay determining if the person is entitled to a benefit under s.35(IRB’s, non-earner or caregiver benefits), s.38 (medical and rehabilitation benefits), s.39 (attendant care benefits) or s.41 (other benefits) for a maximum of 45 days after the day the insurer receives the person’s application.

S.33 - Duty of Applicant to Provide Information

This section has been amended to provide for an examination under oath of the applicant, s.s. 33(1.1). The applicant is entitled to be represented by counsel or other representative, subsection 33 (1.2). Subsection 33(2) provides that the insurer will not be liable to pay a benefit were the insured has failed to comply with the application requirements or has failed to attended an examination under oath. This change may be capable of use for recent accidents (before October 1, 2003) given the lack of an express statement that it applies only to accidents after October 1, 2003.

S.42 - Insurer Assessments

The ability of the insurer to request an insured to attend examinations under this section is restricted under the new legislation. An insurer may not request an examination with respect to PAF benefits set out in s.37.1 and s.37.2 or for a medical rehabilitation benefit under s.14 or s.15 unless the claim is the subject of proceedings under s.279 to s. 284 of the Act - s.s 42(1.1).

The notice requirement has also changed and now the date of the examination must be at least 5 business days after the person receives the notice -s.s 42(2). When the insurer has received the report, it must provide the insured with a copy within 5 days - s.s 42(7). Previously, subsection 42(8)(b) stated that no benefit was payable after notice of the IE had been given or if the insured had failed to provide information or attend the examination.

Repayments to Insurer - s.47

The following clauses have been added to this section:

(d) if subsection 37(4) applies, any income replacement benefit non earner or caregiver benefit that is paid for the period after the insurer gives notice under subsection 37(1) and before the date of the report of the designated assessment centre referred to in subsection 37 (4); or

(e) fees paid by the insurer under paragraph 2 of subsection 24(1), if the insured person fails, without a reasonable explanation, to attend a designated assessment that has been arranged, or cancels a designated assessment without providing such notice as may be specified in the pre-assessment cancellation fee Schedule established by the committee referred to in s.52, as it may be amended from time to time, that he or she will not be attending the designated assessment.

Designated Assessment Centres - s.52 and s. 53 (Note that the Liberals have stated that they will do away with Designated Assessment Centres)

The powers of the Minister’s Committee are expanded under ss.52.1 and ss.52.2. The committee “may suspend or modify” designations of assessment centres made under s.52. DACs will be required to provide information to the Superintendent as the committee requires. There is a new process for selecting a DAC, which allows an assessment to be conducted by a DAC that is located within 30km of the insured person’s residence if they live in Toronto or the regional municipalities of Durham, Halton, Peel or York and within 50km of the insured person’s residence if they are outside of those areas.

There are also provisions for allowing the Superintendent to select the DAC where the parties cannot agree. The parties will be “deemed not to agree in the case of a designated assessment described in ss.43(11) unless they agree by the end of the third business day after the day the insurer receives the notice under subsection (2), whichever day is later. A DAC must begin an assessment within 14 days after receiving the request for a DAC-ss.53(9). If the DAC is unable to start an assessment within 14 days, the parties may require that, “subject to subsections (1.1), (1.2) and (2), the designated assessment be conducted by another designated centre selected by the Superintendent.”

Fee Guidelines for Fast Track DACs have been established by Superintendent’s Guideline No.03/03. This is a further attempt to reduce costs and add certainty to the process.

Participation in Rehabilitation and Employment – s.55 and s.56

This section has been amended to give the insurer the power to discontinue the benefits without having to comply with the process for stopping benefits in s.37, where the insured is not participating in rehabilitation or seeking employment.

Assignment of Benefits – s.65

This section has been tightened, and now reads as follows:

65(1) The assignment of a benefit under this Regulation, or the assignment of the right to pursue a mediation, arbitration, appeal or variation proceeding under s.280 to 284 of the act, is void. O Reg 281/03, s.32 (1).

Forms - s.69

There is a list of approved forms that are to be used. See s.69 of the SABS.

Release

The ability to reach a binding settlement of an insured’s claim for accident benefits has been modified by the addition of the following clauses to the settlement regulation:

(11) Despite clause (10)(b), a restriction contained in a settlement entered into before the first anniversary of the day of the accident that gave rise to the claim is not void under subsection 279(2) of the Act if, in respect of the claim,

(a) the insured person brought a proceeding in a court of competent jurisdiction under clause 281(1)(a) of the Act and examinations for discoveries have commenced;

(b) the insured person referred the issues in dispute to an Arbitrator under clause 281(1)(b) of the Act and a pre-hearing conference has been completed; or

(c) the insurer and the insured agreed under clause 281(1)(c) of the Act to submit the issues in dispute for arbitration in accordance with the Arbitration Act, 1991 and an arbitration agreement under that agreement has been entered into.

(12) Clause (10)(b) and subsection (11) apply to claims that have not settled before October 1, 2003, unless a disclosure notice under subsection(2) in respect of the settlement or purported settlement was given to the insured person before that date.

The Threshold

The threshold has been amended by O Reg 461/96. The definition is much more comprehensive and is an attempt to raise the threshold. The Regulation is effective October 1, 2003.

Health Care Costs

The right to sue for health care expenses in tort is one of the most significant changes to be made by the new legislation. Section 120(1) will amend s. 267.5(3) of the Insurance Act. If the plaintiff passes the threshold they can sue for health care benefits in tort. This would be a major reform. The claim for health care benefits in tort will not be subject to any caps. Also, it is not clear whether the $100,000 for rehabilitation benefits under accident benefits will be allowed to be deducted from the tort award for rehabilitation benefits. It is possible that in some circumstances it will be found that the accident benefits were not available to the plaintiff. Thus, you will no longer have to be catastrophically injured to pursue the cost of health care expenses.

Vanishing Deductibles

The deductibles have been increased from $7,500 to $15,000 for FLA claimants and from $15,000 to $30,000 for non pecuniary loss claims, subject to the “vanishing deductables”.

Section 120 of Bill 198 also amends s.267.5(8) of the Insurance Act. If the damages exceed $100,000 for non-pecuniary loss (other than damages for non pecuniary losses under s. 61(2)(e) of the Family Law Act) then the $30,000 deductible will not apply. If damages for non-pecuniary loss under s.61 (2)(e)of the Family Law Act exceed $50,000 then the $15,000 Family Law Act deductible will not apply.

Code of Conduct for Paralegals

The Code of Conduct will come into effect on November 1, 2003. The Code will apply to “SABS representatives” or “representatives” who engage in the following activities:

advising another person about his or her rights under the SABS;
completing or assisting in completing application forms;
discussing and negotiating with an insurer or adjuster;
attending dispute resolution proceedings at FSCO, in Small Claims Court or private arbitration; or
negotiating the settlement of SABS claims

The Code requires representatives to have a“reasonable understanding of substantive law and procedural requirements governing Statutory Accidents Benefits claims”. Representatives are also required to be courteous and diligent.

Representatives are required to maintain E & O insurance in an amount not less than $1,000,000 in respect of any one occurrence with an overall policy aggregate limit of at least $1,000,000 per person.

Representatives must disclose conflicts of interest.

Representatives are also required to file with the Superintendent. Declaration forms must be filed with FSCO before November 1, 2003. Representatives will not be permitted to continue to participate in existing proceedings unless they have filed. A searchable list of SABS representatives will be posted at www.fsco.gov.on.ca. Other recent regulations include:

Automobile (O Reg 664 amended by O Reg 275/03.

This Regulation restricts the settlement of SABS claims for future benefits until after 1 year from the accident;
limits the criteria to be taken into account by Arbitrators in determining whether to award expenses

Unfair or Deceptive Acts or Practices (O Reg 7/00 amended by O Reg 2784/03

This Regulation expands the list of conduct that is considered an unfair or deceptive act to practice under the insurance act to include the following:

Using forms not approved by the Superintendent;
examinations under oath that do not comply with the Act or Regulations;

n demanding, accepting or paying referral fees in SABS claims;

charging amounts for goods and services under the SABS which are not provided or which unreasonable exceed amounts charged to others for similar services;
failure to disclose a conflict of interest under the SABS

The Regulation is effective November 1, 2003

Uninsured Automobile Coverage (O reg 676 amended by O Reg 276/03)

The Regulation repeals a provision governing the deduction of other insurance from uninsured motorist coverage limits. The Regulation was effective on July 2, 2003.