INSURANCE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LES LOIS CONCERNANT LES ASSURANCES
ASSOCIATIVE REHABILITATION INC
HEAD INJURY ASSOCIATION OF WINDSOR AND ESSEX COUNTY
ONTARIO INSURANCE BROKERS AMBASSADOR ASSURANCE BROKERS INC
WINDSOR AND ESSEX COUNTY INSURANCE BROKERS ASSOCIATION
WILSON, WALKER, HOCHBERG, SLOPEN
CONTENTS
Tuesday 2 February 1993
Insurance Statute Law Amendment Act, 1993, Bill 164
Associative Rehabilitation Inc
Joanne Gram, vice-president, operations
Head Injury Association of Windsor and Essex County
Greg Monforton, chairman
Ontario Insurance Brokers; Ambassador Assurance Brokers Inc
Jerry J. Beneteau, secretary-treasurer, Ontario Insurance
Norman Kelk, vice-president and secretary-treasurer, Ambassador Assurance
Windsor and Essex County Insurance Brokers Association
Stephen Savage, president
John Comisso, past president
Bruce MacDonald, insurance broker
Nigel Gilby
Wilson, Walker, Hochberg, Slopen
James H. Cooke, lawyer
Essex County Chiropractic Society
Dr Madeline Crnec, past president
Dr Jan Kempe, chair, insurance committee
Mary Ellen Lockyer-Cheney
STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS
*Chair / Président: Hansen, Ron (Lincoln ND)
Vice-Chair / Vice-Président: Sutherland, Kimble (Oxford ND)
Caplan, Elinor (Oriole L)
Carr, Gary (Oakville South/-Sud PC)
Christopherson, David (Hamilton Centre ND)
Jamison, Norm (Norfolk ND)
Kwinter, Monte (Wilson Heights L)
Phillips, Gerry (Scarborough-Agincourt L)
Sterling, Norman W. (Carleton PC)
*Ward, Brad (Brantford ND)
Wiseman, Jim (Durham West/-Ouest ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Callahan, Robert V. (Brampton South/-Sud L) for Mr Phillips
Eddy, Ron (Brant-Haldimand L) for Mr Kwinter
Haeck, Christel (St Catharines-Brock ND) for Ms Ward
Harnick, Charles (Willowdale PC) for Mr Sterling
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND) for Mr Christopherson
Lessard, Wayne (Windsor-Walkerville ND) for Mr Jamison
Mancini, Remo (Essex South/-Sud L) for Mrs Caplan
Owens, Stephen (Scarborough Centre ND) for Mr Sutherland
Tilson, David (Dufferin-Peel PC) for Mr Carr
Winninger, David (London South/-Sud ND) for Mr Wiseman
Also taking part / Autres participants et participantes:
Kormos, Peter (Welland-Thorold ND)
Owens, Stephen, parliamentary assistant to the Minister of Financial Institutions
Clerk pro tem / Greffier par intérim: Carrozza, Franco
Staff / Personnel:
Chan, Rebecca, assistant to the clerk
McNaught, Andrew, research officer, Legislative Research Service
The committee met at 1000 in the Windsor Hilton, Windsor.
INSURANCE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LES LOIS CONCERNANT LES ASSURANCES
Consideration of Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters / Loi modifiant la Loi sur les assurances et certaines autres lois en ce qui concerne l'assurance-automobile et d'autres questions d'assurance.
The Chair (Mr Ron Hansen): Good morning. Welcome to the standing committee on finance and economic affairs, considering Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters. This is day five, and day two of travelling. We came from Thunder Bay yesterday and we're glad to be here in Windsor.
ASSOCIATIVE REHABILITATION INC
The Chair: I'd like to bring forward the first group, which is Associative Rehabilitation Inc. Please identify yourself for the purposes of Hansard.
Ms Joanne Gram: I'm Joanne Gram, vice-president of operations with Associative Rehabilitation, and this is June Gordon, who is our manager of quality assurance.
The Chair: If you don't mind, we have one half-hour. In that one half-hour, can you leave some time at the end for members of the committee to ask questions?
Ms Gram: Associative Rehabilitation is the largest provider of disability management services in Canada. We have provided vocational rehabilitation and related services to the disabled since 1981. During that period, we've handled more than 8,000 individual cases on referral from insurance companies, lawyers, employers and government agencies. These cases arise from motor vehicle accidents, workplace accidents and other accidents and illness. They encompass disabilities which are major as well minor in degree, being physical, mental and psychological in nature.
In Mr Charlton's strategy publication, Considerations in Reforming Accident Compensation, he cites three cornerstones of the proposed reforms: (1) reasonable treatment for all injured persons; (2) fair compensation which recognizes fault; and (3) affordability.
As our primary focus is disability management, we'll try as much as possible to restrict our comments to this field of expertise and the first of these cornerstones, which is reasonable treatment for all injured persons. We probably have lots of comments on the other sections, but we'll contain ourselves to our area of expertise. In doing so, we're assuming that you've heard from the insurance, legal and medical communities in some detail. Since we've had the opportunity of working in past and present systems in Ontario, we feel we're able to assess both the positive and the negative implications of this legislation.
June and I have been in the business now for over 13 years each, which, if you know anything about private rehabilitation, is an extraordinarily long period of time. We may not look like we've been in that long, but we have. Some days we feel older than others. Largely, our experience is with, and our empathy is for the disabled. We're going to summarize the views of our staff at Associative Rehabilitation, which encompasses some 150 people across Canada.
The issue of public education: One of the major issues we've seen under the Ontario motorist protection plan has been a general lack of knowledge and understanding of overall rights and entitlements under the prevailing OMPP legislation. We refer not only to the average policyholder, but to insurance adjusters, medical advisers, lawyers and people like ourselves, rehabilitation specialists.
The average person simply does not know what is in his policy and specifically what his entitlements are if he is disabled in some sort of motor vehicle accident. Different insurance companies have positioned themselves, understandably so, differently on the same issues, as interpretation of the policy and how the officials of the company make that interpretation seems to be the key.
Therefore, we feel that clarification needs to be available to all parties. Although one could argue that two and a half years into OMPP we're in better shape in terms of that understanding, which of course we are, one could also argue that the stakes are too high, ie, people's livelihoods, to allow a system to take this long to be understood. These impending changes make that understanding and clarification even more complicated.
We strongly recommend, upon passing Bill 164, if in fact that's to happen, that an objective and thorough education campaign be undertaken with the goal of educating the public as to their obligations and rights under Bill 164. Assistance should be given to the insurance companies because this is a very costly endeavour for them as to their rights and legal obligations under the policies, as well as education to the medical community and the rehabilitation specialists as to the key role they play under Bill 164 and, again, the OMPP.
I don't like to present issues and then not present what we feel is a reasonable solution, so I'll try and do that throughout my presentation.
One way to achieve the goal of public education is to have a booklet in layman's terms and available in different languages designed to to be enclosed with the government forms for completion by the insured. It should be mandatory for the insurer to enclose such, and to offer explanation upon request. We find that most of our clients and/or the insurance companies, as long as it's understood by both why they're doing what they're doing, whether it be denying a specific benefit or a specific -- as long as everyone understands why that is happening, then there's less dispute that arises, and all of these disputes cost everyone considerable dollars.
For the insurance companies, a detailed training plan, complete with interpretation, should be afforded them to allow consistency in decision-making; again, across insurance companies. I understand that in private business part of the differences between companies is their interpretation and what not, and that's part of what they sell as their product. However, I feel it's a very, very expensive undertaking for insurance companies to interpret all of these things and to train their staff in the interpretation, and something should be afforded to them with respect to that.
We've just gone through a major change, two and a half years ago, with the OMPP, which cost everyone a lot of money in the insurance industry. Now there's even more complicated changes proposed and this is going to be expensive for everyone.
For the medical community, I think there needs to be some education as to the key role they play so that when they're signing these forms and documents attesting to someone's extent of disability, they understand exactly what that means.
The second point I want to make is the access to benefits. It's our view that basically any claims-driven system by nature is adversarial. Under any such system, which includes that described in Bill 164, there exists an inherent problem of the access of the claimant to that held or controlled by the manager of that claim, or the benefit. Some literature produced by the government with respect to OMPP and Bill 164 has commented on the adversarial nature of the tort system. Obviously, this is true.
However, the role held by lawyers to ensure this access on behalf of their clients has not been replaced in the legislation. The closest the legislation comes to identifying such a role is the role to be played by the medical community in initiating certain rehabilitation and care activities. The type of general education referred to in point 1 certainly would help promote access, but can by no means be relied on to ensure that disabled people have full access to the benefits accorded under Bill 164.
It's our recommendation that if an entitlement-access dispute arises, the insured be afforded the funds to consult with an adviser so that his or her interests are represented. We say this also with respect to those parties who are not capable of representing themselves in mediation. Many of our clients cannot speak English very well and are unable to negotiate in those proceedings and then have to consult with lawyers who are very expensive.
Clearly, entitlement to benefits which are covered under the policy should be accessed, but explanation for those who are not able to receive the benefits or why they can't should be explained to them in writing so they can understand this and, therefore, hopefully resolve the disputes and save everyone extensive dollars on that issue.
The issue of benefits conversion or, I believe they call it, the loss of economics, which is to be implemented at the 104-week point: While the process of the conversion at 104 weeks from income-replacement benefits to loss-of-earning benefits is a step forward in terms of the concept, we're not certain why the definition change of disability has been lessened from 156 weeks to 104 weeks. Also, we feel this part of the legislation is very unclear.
First, it's unclear in its general concepts; maybe you understand it but we certainly don't. It appears that the initiation of the process is at the discretion of the insurer alone.
Second, it appears there's something magic about the 104-week point. Again, it's declined from 156 weeks to 104 weeks. Is it meant to be a review point, or is there an assumption that at 104 weeks it's some sort of watershed on all disabilities?
Third, the assessment process does not appear necessarily to take into account any rehabilitation efforts that have taken place up to that point.
Fourth, the role of the attending physician is not clearly specified.
Fifth, if the goal of rehabilitation is to maximize potential -- again, if -- and to restore as best possible an individual to pre-disability levels of functioning, the two-year assessment process appears less inclined to maximize potential and more inclined simply to expedite some level of earnings or some level of perceived earnings.
Sixth, there do not appear to be any explicit considerations for ongoing or continuing rehab after the two-year point, with a goal of maximizing potential.
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Seventh, referring to the language of sections 25 and 26 in the draft, we're concerned about the uses of words that deem people employable, as opposed to showing it to be so. Phases such as "could earn," "best satisfy the criteria" and "reasonably possible" suggest much subjectivity on the part of this assessment facility that's referred to. This goes against the grain of rehabilitation, which should be dealing, not subjectively in assessing possibilities but objectively in achieving realities. Additionally, what is meant by "assessment facility" is not clearly defined.
We want to talk about the goals of rehabilitation. The goal of rehabilitation is never defined in the legislation. There are lots of definitions at the beginning; "rehabilitation" is not one of them. It seems to me that if presently there is $500,000 available for medical and rehab expenses, as well as an additional $500,000 soon to be uncapped if this goes through, there should be a definition of what exactly this means.
Section 53 suggests that rehabilitation exists to "permit the person to engage in employment that satisfies the criteria of subsection 26(4)," or to "shorten the disability period during which the weekly benefits are payable." Section 33 refers to the goal of "reducing or eliminating disability relating from injury." While all of these are true, these functions need to be reconciled and put in a clear context for all parties to the process.
We would strongly suggest that if not defining the word "rehabilitation," the legislation should contemplate more definitively a goal of rehabilitation to ensure that the insurer, the insured and all other parties are clear on why such activities are to be undertaken. Clear reference should be made to the maximization of potential and restoration of pre-disability level of functioning, and thus earnings, taking into account an individual's physical and psychological limitations, as well as interests and aptitudes.
Emphasis, in our opinion, should be on placement of the individual, if at all possible, not on just determining potential. Prior to OMPP, rehabilitation was hired from the beginning to the end of the rehabilitation process; with OMPP sometimes was put on, off, on and off the file, and to me that's a detriment to the whole process.
The timing of rehabilitation: Section 33 outlines that an insured person who's sustained injury as a result of an accident is entitled to rehabilitation benefits and that payments in this section are for all reasonable expenses occurred. We would suggest that the term "reasonable" be defined.
Section 53 then contains a provision that the insured will participate in rehabilitation if offered and allows for benefit reduction if refused. We believe this is a very positive step. However, there are no guidelines for the insurer to offer rehabilitation. We strongly suggest that parameters be established for insurance companies as to when rehabilitation should be offered. Timing is important for the success of rehabilitation, and we have proven over and over again in studies that early intervention facilitates effective rehabilitation, and thereby return to work, and therefore dollars saved to everyone.
Bill 164 emphasizes timely rehabilitation care as a benefit under this proposal. It acknowledges that rehabilitation should begin immediately. That's in the Considerations booklet. Our suggestion would be that rehabilitation should be mandatory at a certain stage within disability. Surely if an assessment at 104 weeks is the key to continuation of benefits, an assessment of rehabilitation potential and initiation of this activity within two months, which is what we're suggesting, is critical. This is for the protection of the insured as well as the insurer.
This is complicated legislation, as was the implementation of OMPP. For the sake of everyone, so as to prevent the halting of activity or not rendering any activity, time frames should be set on a mandatory basis for each. In other words, if the insurer can offer rehabilitation to the insured at a certain point, if he refused, then the benefits could be stopped at that point, or reduced, whatever. That should be mandatory, in my opinion.
We also feel that the monthly cap on long-term care should be addressed. While removing the 10-year limitation on the attendant care benefit was a positive step, the monthly cap of $3,000 is restrictive. Those who require this, in our experience, being the severely catastrophic injuries such as the quadriplegics, often require 24-hour attendant care. This medical requirement could translate easily into $8,000 per month and, if deemed necessary -- and to me, that would be the key -- by a medical practitioner, it should be payable. Having said this, we should also recognize that most of the clients under this system do not come anywhere near reaching the $500,000 cap. So on one hand, it's a moot point. But for the people to whom it really pertains, it's not effective enough.
The critical issues to us, with respect to this legislation and, quite frankly, the present OMPP legislation, are the independence and the objectivity of the rehabilitation as well as the qualifications of the people rendering this service. As I stated earlier, June and I have been in the business probably the longest of anybody I know, so we've seen different systems come and go, different ways of approaching problems come and go. We feel that we're talking knowledgeably in this area.
With respect to independence and objectivity, interestingly, the legislation makes much of the 104-week assessment being independent but makes no such requirement of the rehabilitation itself. For rehabilitation to be successful, the process must be objective and done independently at arm's length. As we stated earlier, any claims system is inherently adversarial. That's understandable. Any rehabilitation process that works on the side of the insurance company or only works as advocates for the disabled can only bring subjectivity to the process. We strongly suggest that the legislation make reference to this in its definition of the role of rehabilitation.
Prior to OMPP, with rehabilitation, insurance adjusters stayed in their area of expertise; rehabilitation people stayed in their area of expertise. In my opinion, under the OMPP, the waters have got muddied, and we each, on different occasions, try to get into each other's roles. I believe this is very detrimental. Therefore, one of the recommendations we have with respect to this is that emphasis should be placed on standards and qualifications of those administering long-term care and rehabilitation.
As one of the cornerstones of the proposed legislation, Mr Charlton talks about "reasonable treatment for all injured persons." There should be some standards with respect to the providers of rehabilitation and long-term care to help ensure this. Issues such as ethics, qualifications, independence and service standards must be considered. For example, doctors are governed by their own system, as are lawyers, in terms of the OMA and the bar association and the law society. The rehabilitation provider needs to be governed by such a body of regulating officials as well. There is a process in place presently in Canada for those who choose to participate, and the key is, if you choose to participate, there is a regulating body. Not everyone practising in the field -- and I use that term loosely -- is governed by this body and its code of ethics.
Therefore, we would suggest that a rehabilitation provider must (1) be an impartial facilitator of the rehabilitation process; in other words, be hired as a third party adviser, no matter who hires them; (2) provide services as an objective party to ensure the insured receives fair and equitable treatment; (3) be qualified with the Canadian certified rehabilitation counsellor designation or be directly supervised or interned by individuals with these credentials and thus be bound and subject to discipline under the code of ethics as per the CCRC designation.
This is relatively new designation in Canada is an attempt to try to govern rehabilitation providers; the first writing was in April 1991. There are -- I'm guessing just on my last figures, although there's just been another sitting -- approximately 150 to 170 people presently licensed to be able to provide under that governing group and thus by its code of ethics. To me, that's a key point in this legislation and, quite frankly, in the existing OMPP if this legislation wasn't to go through.
Basically, that's all we have to say. There's some time for questions, if there are any.
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The Chair: Mr Mancini, about three minutes.
Mr Remo Mancini (Essex South): I think your brief is well put together. You've hit on a number of themes that we've heard over the past week or so. You mentioned the affordability issue, and that's something that's come up time and again before this committee. Are you aware just how much insurance rates will increase to consumers because of Bill 164?
Ms Gram: I've heard approximately $200 per policy.
Mr Mancini: That's about correct, and if we use the government's own figures, if we use the government's consultant's figures, the firm of Mercer from New York, at 4.5%, and if we factor that through by multiplying that figure by the number of drivers in this province, that amounts to almost $200 million. Do you think, using the government's own figures, that Ontario taxpayers are in the position today in the middle of a four-year recession to fork out $200 million for Bill 164?
Ms Gram: I think I'd rather keep my area of expertise to rehabilitation.
Mr Mancini: That's fine.
Ms Gram: I agree that that's a lot of money, but that's speaking as a private citizen, not as a rehabilitation provider. I agree that that's an astronomical amount.
Mr Mancini: That's using the government's figures.
Ms Gram: Yes.
Mr Mancini: If we use other industry figures, it goes as high as 20%, meaning more than $600 million in rate increases on the people of Ontario. We heard from a group last week, the Coalition of Motorcycling Organizations. They told us that approximately 6% of their members don't buy insurance, and because of Bill 164 they think that's going to go anywhere from 9% to 12%, and that's going to put a lot of strain on health care. It's going to put a lot of strain on people who do the job that you do, because who knows where the money's going to come from to pay for those services?
Ms Gram: Exactly.
Mr Mancini: You also mention the complexity of the legislation.
Ms Gram: Yes.
Mr Mancini: Are you familiar with the regulations?
Ms Gram: I have a copy of the draft legislation, which I've gone through.
Mr Mancini: Do you have all 68 pages with you?
Ms Gram: Yes, I believe so.
Mr Charles Harnick (Willowdale): Tell us what it means.
Ms Gram: If I had the answer to that, I wouldn't be in the rehabilitation business. I mean, it's very complicated. Everybody says that it is. I mean, we know that.
Mr Mancini: The Chair has told me I have one minute left. Are you aware that the most senior officials in the insurance industry, lawyers and other professionals, have told us that it's going to be difficult, if not impossible, to figure out what these 68 pages mean?
Ms Gram: That's exactly why we've recommended some sort of public education, not at the insurance companies' expense but at the government's expense, if they want to implement --
Mr Mancini: You mean at the taxpayers' expense.
Ms Gram: Exactly, but there's nothing you can do about that.
Mr Mancini: Do you think it's necessary?
Ms Gram: I'm sorry, but it's necessary to understand the legislation.
Mr Mancini: I agree. If Bill 164 passes, if the NDP members force Bill 164 through the Legislature, we're going to have to do one of two things, as you said. Either the taxpayers are going to have to pay people to try to understand an incomprehensible document, or people will pay through their insurance rates. Do you think that's fair?
Ms Gram: Well, no, I don't. But, again, that's as a public citizen, not as a --
Mr Peter Kormos (Welland-Thorold): Apparently the government doesn't know either.
The Chair: Okay, I have to go on to Mr Tilson.
Mr David Tilson (Dufferin-Peel): The issue of education, I think, is the message that I've received from your presentation this morning, which I do appreciate. Certainly one can say, "Oh, well, the doctors, they've got lots of money, they can train and retrain themselves on the different workings of this new mysterious system and understanding these regulations that you speak of" --
Ms Gram: But it's not anything to them. I mean, they don't --
Mr Tilson: Well, one can say that and then one can say, "Oh, well, the lawyers, they've got lots of money, they can do the same thing," and one can say, "The insurance companies" --
Ms Gram: They're not going to have any left.
Mr Tilson: There aren't too many left, I'll tell you.
Ms Gram: That's right.
Mr Tilson: One can say, "The insurance companies, they've got lots of money, they can spend lots of money and do all this sort of thing." But you get down to the innocent accident victim. It always gets down to the consumer.
Ms Gram: They're the ones who lose, yes.
Mr Tilson: Who's going to educate those people? Who's going to spend the vast amounts of money to educate those people when they come up against the doctors who say you're okay, the chiropractors who say you're okay, the lawyers who are fighting for the big insurance companies, the insurance companies themselves? You know, they say, "Oh, well, we'll get rid of this tort system because the lawyers have been skimming off the system," so they get rid of that.
Ms Gram: Now it's a mediation system.
Mr Tilson: They get rid of that. But who's going to represent these people?
Ms Gram: That's why we recommended advisers of some sort, but again --
Mr Tilson: And who's going to pay for those people?
Ms Gram: It costs money. There's no doubt about it.
Mr Tilson: The government, these people, they bankrupt the province, so who's going to pay for it?
Ms Gram: I don't know anything about that.
Mr Tilson: That's what this whole subject gets down to: Who's going to represent these people? It's sad because there isn't anyone. Mr Harnick has a question for you.
The Chair: One minute, Mr Harnick.
Mr Harnick: It's interesting that in your brief you talk about the role of the rehab counsellor to bring injured people back as close as they were to the situation they were in before the accident.
Ms Gram: Correct.
Mr Harnick: This legislation, I tell you, takes away the right of innocent victims to claim any economic loss they have beyond the benefits that the government is prepared to provide them. Do you agree this will make the job of the rehab worker more difficult, to get him back into the position he would otherwise have been in, if he suffers a shortfall by way of economic loss if he's innocent?
Ms Gram: Yes.
Mr Harnick: Thank you.
Ms Christel Haeck (St Catharines-Brock): Thank you very much for your brief. I do appreciate your comments. I had the privilege of sitting on the range of bills on the Regulated Health Professions Act, so I understand some of your comments around attendant care. There have been some very important comments made by you and a number of the other groups that have come before us.
The St Michael's group who came before us last Thursday indicated that they really support a multidisciplinary approach to the assessment and diagnosis of the patient. I would assume, as a result of hearing your brief, that in fact you would support the same.
Ms Gram: What we try to do as rehabilitation professionals is to work with the attending physician and the people who know the client the best. We try to work as a team, whether it be psychologists or whoever, all together working towards a common goal, which is maximizing the potential. One of the detriments that I see, as I think I understand this, and I preface that, is there are some assessments -- the term "assessment facility" and the independent exam kind of idea may not be working with the attending physician. Again that's a concern to me.
But, yes, I agree that the multidisciplinary approach, if appropriate, should be implemented; but sometimes it isn't. Sometimes the injuries are minor, yet the person continues with limitations, so the only thing you need to do is work with the attending physician. You don't need to draw in all these people at everybody's expense if it's not necessary.
Ms Haeck: The Greater Niagara General Hospital has basically a quick response team to deal with a number of issues like this, and I know they're one of the few in the province. What that has resulted in is a major saving to the health care system and particularly to that hospital.
Ms Gram: That's the early intervention --
Ms Haeck: Early intervention. Ms Gram: Exactly.
Ms Haeck: So at what point does your group actually get involved? Do you actually visit the patient in the hospital?
Ms Gram: We can. It depends. Our fees are paid for by the insurance, the company, the employer, the individual, the family, the lawyer, whoever decides to hire us on the case. The only time we get involved is at their discretion, which is why we're saying that there should be, as much as there are people who abuse the system -- and there are people out there, so if they turn down rehabilitation, it should be mandatory for them. But it should also be mandatory, we feel, for the insurers to at least offer it, and we're suggesting at the two-month point; and again that's not early enough. In some cases -- June does a lot of the file assessment and does the quality control.
Ms Haeck: So immediacy really is the issue?
Ms Gram: Sometimes it's within one week.
The Chair: Ms Haeck, time's expired.
I'd like to thank you for coming to this committee.
Mr Harnick: On a point of order, Mr Chairman: I just wonder if Ms Haeck can enlighten us as to what any of those questions had to do with an examination into Bill 164.
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Ms Haeck: I can enlighten you, Mr Harnick, if you would like an answer.
The Chair: I'm sorry. This is not a point of order.
Mr Kormos: It was a good point just the same.
The Chair: Thank you for coming before this committee.
Mr Robert V. Callahan (Brampton South): On a point of order, Mr Chair: I had raised my hand. I presume you've run out of time, have you?
The Chair: I had recognized Mr Mancini first and then he used up all the time.
Mr Callahan: All right, that's fine. I just wanted everybody to know that I'm here.
The Chair: Yes, okay. Welcome to the committee. Good morning. Mr Callahan, we did go around the first day and introduce everybody.
HEAD INJURY ASSOCIATION OF WINDSOR AND ESSEX COUNTY
The Chair: The next group we have coming forward is the Head Injury Association of Windsor and Essex County. Just for the committee members, there is no brief to be handed out but it will all be in Hansard. You can read it tomorrow.
I'd like to welcome you here to the standing committee on finance and economics. We have one half-hour, until 11 o'clock. As you can see, the members like to ask questions, so if you would leave at least 10 or 15 minutes it would be appreciated. You may begin.
Mr Greg Monforton: My name is Greg Monforton and I'm a lawyer, but I'm not here in my capacity as a lawyer so much as I am as the chairman and president of the board of the Head Injury Association of Windsor and Essex County. This is a community organization dedicated to improving the quality of life of persons suffering from the effects of head injuries.
The goals of the board are to promote public awareness and hopefully reduce the incidence of head injury. But speaking entirely on my own behalf, it's nice to see the broad consensus among the various members of this committee. I'm sure it's a gratifying thing for the electorate to see.
What I'm going to do is briefly address certain parts of the legislation which fall seriously short of addressing and dealing with the needs of head injury victims and persons with head injuries in particular. But in order to understand how Bill 164 wrongs people who live with the effects of brain injury, it's first necessary to understand the nature of brain injury itself. It's permanent. Once a brain cell is damaged or killed it will not regenerate, and the functions performed by that cell are lost for ever.
It's also not generally understood that damages to the brain do not need to be severe or dramatic to be significantly life-changing. Oftentimes, trauma to the brain can cause subtle cognitive and behavioural changes which occur even when there is not a direct blow to the head. People who suffer this type of injury often complain of physical, cognitive and psychosocial difficulties, including problems with dizziness, impaired attention and concentration, fatigue, depression, alcohol intolerance, irritability, impulsivity, headaches, insomnia, memory difficulties and impaired abstract thinking, giving such persons great difficult in processing information. This in turn leads to an inability to react appropriately to events which we all encounter in our daily lives.
At the Head Injury Association of Windsor and Essex County, we call these kinds of deficits hidden disabilities. These people have difficulty functioning independently, but because they're not in a wheelchair and not the victim of any other form of obvious disability, they're often perceived by those who deal with them as uncooperative, stupid or having a bad attitude. Put another way, the words we use to describe these impairments paint dark and ugly portraits of persons suffering with the effects of a brain injury.
A normal person who has no motor, neurological or mental impairment can set and drive life's agenda, but persons suffering with the effects of a head injury have no such freedom.
What I'd like to do is briefly discuss four particular aspects of the proposed legislation which, in the view of our organization, falls seriously short of justly dealing with persons suffering with the effects of head injuries.
The first aspect of Bill 164 that I want to comment on is access to timely and appropriate rehabilitation. Rehabilitation should be a central goal of the legislation, particularly with respect to head injury victims. It's in everybody's interests that injured persons get on with their lives. I don't think there's any disagreement there.
But anyone who lives with cognitive difficulty as a result of a brain injury suffered in an automobile accident is at a severe disadvantage against the insurance company and the insurance industry in ensuring that his interests with regard to rehabilitation are properly considered. Although people in the employ of the insurance company may assist the brain-injured person with the forms, there's an obvious conflict. The company's representatives are motivated to save costs for the insurance company. They always have been and always will be.
If the matter does go to mediation or arbitration, the plight of the victim is worsened. Without legal counsel and available funds to pay for expert witnesses equal to that of the insurance company, the injured person has little hope of winning at arbitration.
A recognition of these inequalities is centrally important to an assessment of the rehabilitative process envisioned in Bill 164. If the victim's family doctor recommends treatment, the victim is usually referred to a service provider. Treatment isn't commenced until funding with an insurance company is arranged. Rehabilitation must be authorized by a doctor, almost always specified by the insurer, before the insurer will undertake the costs. The insurer controls the purse-strings.
It's not uncommon for doctors to view rehab as an unnecessary expense. They're not trained to assess the vocational implications of injuries. Often doctors hired by the insurance companies have their perspective in mind. The accident victim then must convince the insurance company that rehabilitation is necessary. The insurance companies and the adjusters often don't have the background or experience to understand the rehabilitative process. The result is that accident victims often go without effective treatment designed to get them back into the workplace and functioning in life. He or she is told to find another job where the problems won't come into play. The unwillingness to retrain is particularly true where the injured person is an unskilled labourer.
But the problems of head injury victims are compounded further. A common result of head injuries, as I said before, is the inability to process information. These types of injuries often go undiagnosed for long periods of time. The victim, as again said before, is perceived to have motivational problems. Since benefits and rehab are centred around the issue of employability of the victim, correct diagnosis of the symptoms of an injury of this type and appropriate rehabilitation are central. Yet often the insurance adjuster simply is unable or unmotivated to understand the symptoms the accident victim is complaining of. The result is a denial of benefits with the option of rehabilitation being permanently foreclosed, and this is when we're dealing with well-intentioned and motivated people.
It's simply impossible to over-emphasize the competing interests that are at stake here. The insurance industry is interested in saving costs, period. That's what initiated this entire debate three or four years ago, and anybody who thinks it was anything else is either a person of bad faith or, at the very least, very naïve. In effect, as was described by the Ontario Head Injury Association, this legislation turns the innocent accident victim into David and the insurance industry into Goliath. The only difference, though, is that in these cases Goliath will always win.
What we need is a situation in which the victim, the innocent accident victim, has his or her interests represented by a level playing field. Where a person is required to complete forms or any other documentation in order to receive benefits, the insurance company should pay for that person to consult independent legal counsel of his own choosing to assist him.
Mr Mancini, I think, made an excellent point when he held up the 68 pages of legislation. I'm a lawyer; I deal with this type of situation every day. I'm having a tough time with these regulations. Now, something tells me that if I'm having a difficult time with them, a person suffering the effects of a head injury is going to have at least as tough a time.
As another suggestion, penalties incurred by insurance companies where the arbitrator finds that funding for treatment or rehab has been unreasonably withheld must be severe enough to reflect what the injured party suffered as a result of the insurer's refusal to pay.
Mediation and arbitration panels should be entitled to consult with recognized experts in the field of traumatic brain injury, and the insurance companies should bear the costs of those consultations.
Vocational rehabilitation consultants and counsellors should be allowed to present evidence at Ontario Insurance Commission mediation and arbitration meetings. Since vocational rehabilitation is centred around the issue of employability, those counsellors are the only professionals with the insight to determine what work a victim can realistically do and what retraining will be required.
It's important that we all remember that the victim's ability to lead a productive life is at stake here. Every effort must be made in this legislation to facilitate this.
The second aspect of Bill 164 that I want to comment on is attendant care benefits. The monthly cap of $3,000 is, in my submission, totally unrealistic. A survey carried out by the Ontario Head Injury Association shows that persons suffering from behavioural problems arising from a head injury can necessitate care costs as high as $600 per day. The type of care being contemplated by this legislation provides, at best, bare necessities. It's clearly far less than the cost to care for a person who requires more than full-time or even 40-hour-a-week attendant care.
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People who are "lucky enough" to have suffered injuries before the passage of either Bill 68 -- that being the OMPP of course -- or Bill 164 receive compensation for all their losses. But with the attendant care cost limits involved in Bill 164, I'm sure that anyone who sustains injuries in an auto collision has a future devoid of opportunities and choices.
It's quite likely that in many cases, given this limit, the only feasible alternative will be to place insured persons in institutions or group homes, where the cost would be covered by government assistance instead of by those responsible. We at the Head Injury Association of Windsor and Essex County find this completely unacceptable.
Institutionalized care does not provide the opportunity needed by a brain injury survivor, and the quality of that individual's life will deteriorate along with his physical, mental and emotional condition. So I would strongly encourage the government to lift the monthly cap of $3,000, both because it's inadequate in itself and because its deficiencies are likely to be exacerbated by a tendency to view this as the upper limit.
Lastly, it's fundamentally important that the person determining the amount to be paid by the insurance company for home care or future care have recognized expertise in the brain injury field to ensure that the attendant care costs being provided are responsive to the needs of the injured victims and provide the injured victims with a sense of opportunity and choice that non-injured persons take as a right.
The third aspect of the bill I want to talk about is that it prevents victims from obtaining compensations for lost opportunity or lost earning capacity in the future. I imagine this is an aspect of the bill that's going to be commented on by a number of individuals making presentations before you. It's completely contrary to the fundamental principles of this province and this country that an innocent accident victim is not able to pursue and not able to be compensated for the losses, and every loss, he has suffered as a result of an accident in which he was involved through no fault of his own.
I don't think it's hyperbole, I really don't, to say that people have given their lives in world wars to preserve this kind of right for the citizens of this country, and what the government is attempting to do is deal with on a mass or grand scale what has to be dealt with on an individual basis. Justice demands it.
In effect, what the government has done here is treat accident victims with a snapshot, freezing them in one place and station in life. Many people who sustain head injuries in motor vehicle collisions range in age from 16 to 25 years old. Their economic potential has not yet been determined, and many haven't yet completed their education and aren't yet established in their careers. However, they're for ever assigned to a benefit level based on their position at the time of the injury. This is obviously unrealistic and in no sense just.
The last aspect of Bill 164 that I want to address is the $15,000 deduction from awards for pain and suffering. The traditional right of innocent victims to seek redress through our court system has, for all practical purposes, been legislated out of existence by Bill 68, the OMPP. Again, it seems very reasonable to me that people who find themselves injured and disabled and unable to pursue their dreams and their obligations and their responsibilities should be entitled to full compensation for those losses.
The system in the past has recognized the right of persons to go before a court of law and state their case before a jury of six people, who in effect are acting as the conscience of the community, and to seek redress for the loss that they've suffered. But again, the government has chosen to take away this right and in fact under the present legislation allows this right only to persons who have suffered what a recent judicial interpretation categorized as virtually catastrophic injuries.
The result is that we, as licensed drivers, involuntarily pay insurance premiums in the event that we're in need of their protection. When in need, our injuries, although tangible and real and pervasive, are deemed not important enough to warrant compensation.
The insurance industry has spent a lot of time and money, particularly money, over the past three or four years trying to convince the public that innocent accident victims are all motivated by greed and are treating their claim as some sort of personal lottery, thereby enabling them to retire wealthy. In my own experience, virtually nobody is aware, certainly when talking to people on the street, of the relatively modest amounts of money which are awarded for pain and suffering in this country.
Virtually nobody that I've spoken to is aware of the fact that a person who has suffered, for example, a quadriplegic injury, which will result in that person suffering excruciating pain, disability, disappointment and anguish every single day for the rest of his or her life, is restricted to a pain and suffering award of approximately $250,000. People are flabbergasted to hear this.
People are flabbergasted to hear that if a parent loses a child as a result of the negligence of a drunken driver, the most the court will give that parent for the loss of that child's companionship is somewhere between about $15,000 and $30,000. People can't believe it, and yet the insurance industry has, through a very clever and effective course of manipulation, convinced the public that there are multimillion-dollar awards out there for people suffering from hangnails or stubbed toes and that massive reform was necessary. In fact, that's simply not the case.
In closing, the goals of this legislation are laudable, they really are. I think what's trying to be achieved makes a lot of sense, but I think it's another example of something that looks tremendous on paper not working out very well when you apply it to real, live people.
It represents another major step in what I see is an undoing of fundamental human rights to which this province has always been committed. As I said before, under the former system, under the pre-OMPP law, people had a right to seek redress from the courts and from their fellow community members and I'm going to suggest to you that the vast majority of times the decisions rendered were the correct ones.
But the government, in effect, is saying: "We know better. We can do better." What any reasonable examination of this legislation fails to answer, the question that this legislation begs is very simply, who will speak for the victim?
The Chair: Okay, Mr Tilson?
Mr Tilson: How much time?
The Chair: Just close to five minutes.
Mr Tilson: Mr Monforton, I want to thank you for coming to the committee and presenting us with your very concise thoughts. You pretty well covered all the issues that have come before this committee to date, and I will say that the main message that appears to come from your presentation is, what is to become of the innocent accident victim?
That's something we in the Progressive Conservative caucus have been asking ourselves ever since this bill was first introduced, or when it was conceived in the back rooms of some hotel in Honey Harbour. I don't know when it was conceived, but nevertheless it's been a concern we've had. We keep waiting for the NDP -- this was its message a number of years ago, to protect the innocent accident victims, and that seems to have gone by the door.
There's certainly still one member, I suppose, in their caucus who has been trying to speak in this committee. Our caucus is going to allow him our time, Mr Chair, to direct questions because the NDP won't allow him to speak.
The Chair: Mr Kormos --
Mr Kormos: Thank you, Chair. Thank you very much --
The Chair: Mr Kormos, just a minute.
Mr Kormos: Have I got time or not, Chair?
The Chair: Okay. I just want to make a point that you've decided to sit there. You've asked them for time. You have not put your hand up to ask a question.
Mr Kormos: Chair, that's a silly comment and you know better than that.
The Chair: No, it's not. I just want to set it straight. You haven't put your hand up to be recognized on the government side.
Mr Harnick: You keep turning off his microphone.
The Chair: When he's out of order. Go ahead, Mr Kormos.
Mr Kormos: I don't know what cabinet position you're vying for, but the cabinet's getting smaller, not bigger. Trust me.
Mr Monforton, good to see you here. Now, listen, you've been more than charitable about this legislation. I call it "made in Bucharest." It certainly doesn't reflect what Bob Rae and New Democrats promised people, not just in the few months before the last election campaign, but literally for years. And who'd a thunk it was New Democrats, because even though there were a whole lot of people who didn't vote for them, those people still understood that it was New Democrats who fought for the little people, for the victims.
Bill 68 at least left the courtroom door open for the most seriously injured, notwithstanding that it had to be near catastrophic, according to Meyer. This bolts and locks and bars the courtroom door. Even now, to the most seriously injured it says, "No, you're not going to receive full compensation or anywhere near adequate compensation for your losses." This bill is a betrayal, obviously.
I was with Bob Rae when he stood on platforms with some of the largest audiences of his political career when he was advocating the rights of innocent victims, and now we see the most complete betrayal. It was either a lie at the time or a betrayal at the present. And there's been this bizarre Stalinist-style rewriting of history around Queen's Park, something of an attempt to erase the records of the past.
Let me ask you this: The government talks about increasing benefits, yet benefits levels, even on the no-fault schedule, are being reduced to 90% of net from 80% of gross. For most victims, that's going to mean a reduction in the weekly no-fault benefits. They talk about increasing access to the courts, yet the fact is they've imposed a $15,000 deductible because access -- how can courts be good for determining pain and suffering but no good for determining economic loss? It's a pretty whacko bit of sophistry, isn't it?
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Mr Monforton: I agree with you entirely and, again, if you ask the average person on the street, "What does this $15,000 deduction amount to?" I think most people would say, "Well, that will get rid of very minor claims." But in fact $15,000 awards are entirely consistent with people who have suffered one, two or three years of ongoing pain and suffering from soft tissue injuries, from acceleration-deceleration injuries. To suggest that this $15,000 --
Mr Harnick: Fractures.
Mr Monforton: That's correct.
Mr Harnick: Fusions.
Mr Monforton: That's true.
Mr Kormos: Doesn't it really mean that the innocent victim has to pay a $15,000 kickback into the insurance company's coffers? Isn't that what it amounts to in the final analysis?
Mr Monforton: I see it as a taxpayer subsidy to the insurance industry.
Mr Kormos: Holy zonkers. I guess that was a king-size bed and there is room for this government too. It's a ménage à trois.
The Chair: Mr Winninger.
Mr David Winninger (London South): Thank you, Mr Monforton, for your presentation. I'm only going to deal with part of it because I know my colleague Mr Lessard has questions as well.
We dealt, in response to Mr Mancini's comment, with the complexity of the regulation. Isn't it true that legislation and regulations pertaining to auto insurance are generally reduced to a standard automobile insurance policy, and that if people have difficulty with that, often the insurance companies provide flyers that describe the benefits available?
Mr Monforton: Isn't that true? No, I don't think that is true and I think the past two years have shown that. Regardless of whether they're suffering from a head injury or not -- and I'm not reflecting on their intelligence or their ability -- the realities of the situation are that people are completely unable to deal with the complexities of the situation. So no, I don't agree with that.
Mr Winninger: It might interest you to know that yesterday we had a presentation in Thunder Bay by a consumer representing head-injury people, and he addressed the issue of access to support for the head-injured, access to people who could assist them in putting forward their claims. It came to mind that our legislation, Bill 74, the Advocacy Act, actually sets up a commission to provide advocates for vulnerable people, including the head-injured. I wondered if you were aware of that.
Mr Monforton: I don't think that's the issue because, in the final analysis, if an unresolvable conflict arises somebody has to have the expertise and the ability to take it to its ultimate conclusion, which has historically been in the courtroom.
Mr Winninger: The head-injured asked us to lower the threshold, and we did, for pain and suffering. We've opened access to a factor of probably 3 to 1 compared to OMPP. We've also increased the loss of earnings benefits so that now 97% of full-time earners are covered compared to only 73% under OMPP. For those who aren't covered, the Insurance Act certainly permits them to purchase excess economic loss coverage.
I know that time is short and I just wanted to draw your attention to a case you're well aware of, adjudicated under the tort system, Teno and Arnold, in 1978, a four-and-a-half-year old girl hit by a car.
Mr Monforton: I'm well aware of the case.
Mr Winninger: For loss of earnings, economic loss, the court awarded $7,500 then and discounted it by 20% for a contingency that she might have earned less due to illness or other reasons. So the final annual award for loss of income was $6,000, which equates to about $13,000 in 1992.
Mr Monforton: I don't think that's correct, Mr Winninger.
Mr Winninger: If you have other figures, we'll talk about it afterwards, but our plan --
Interjection: Talk about it now.
The Chair: Order.
Interjections.
The Chair: Order.
Mr Winninger: We'll deal with Mr Gilby this afternoon. Can I complete my question? Are you aware that under Bill 164 the loss of earnings that child would be entitled to would reach 90% of the net average wage --
Mr Harnick: It's below the poverty line.
The Chair: Order.
Mr Harnick: It's below the poverty line.
Mr Winninger: I know the truth always hurts, Mr Harnick.
Mr Harnick: It's below the poverty line.
Mr Winninger: Which before tax shall be down. If you don't want to hear the facts --
The Chair: Mr Harnick.
Mr Harnick: Shut up.
The Chair: You told me to shut up? I'm sorry.
Mr Winninger: I'm telling you, under Bill --
The Chair: Hold it. I'm going to call a recess.
Mr Harnick: I'm sorry; my apologies.
The Chair: Okay; we'll carry on.
Mr Winninger: Under Bill 164, the child would be entitled to the net average wage before tax of $30,000. Are you aware of that?
Mr Monforton: I think the fundamental premise of your statement is incorrect. I'm not suggesting it's being done intentionally, but I think you're misrepresenting the breakdown of dollars awarded to this child back in 1975 or 1976. I don't have the precise figures in front of me, but a significant portion of that award was on account of future care costs, as well as future loss of earnings.
Mr Winninger: I wasn't dealing with that. I'm sorry; that's a different component of the award.
Mr Monforton: Loss of future earnings.
Mr Winninger: I'm dealing with loss of earnings, which you say we don't cover adequately, and showing how the tort system did not serve this child as well as Bill 164 would.
Mr Monforton: I wouldn't agree with that, and there's no question that the proposed system does not adequately or fully compensate persons who through no fault of their own have suffered very serious injuries.
Mr Winninger: Mr Lessard has a question.
The Chair: I'm sorry. You've run out of time there. You know what happens sometimes? You get so many lawyers here, you're unbalanced. You're overbalanced now with lawyers. So we go to Mr Mancini.
Mr Mancini: Mr Monforton, I want to thank you for coming before the committee. You bring a certain expertise here that is valuable and is needed. I'd like to make a point, though, before my first question.
Over the years, and in particular just before the last election, the Ontario New Democratic Party, now the government of Ontario, promised three things in regard to insurance. They promised (a) government-owned insurance, and they broke that promise. They promised (b) lower rates, and with Bill 164 they're breaking that promise. They promised (c) full access to the courts, and with Bill 164 they're breaking that promise.
I think it's a little bit hard to sit here and take Mr Winninger's arguments that the tort system has not worked well, when only 24 or 30 months ago he was convincing people that was the only system that could work for our citizens and for injured victims and for anyone else who needed insurance.
I want to ask you a direct question. You've had experience in working with the courts pre-OMPP, you've worked with the Ontario motorist protection plan and you may have to work under Bill 164. If you had your choice of any one of those three systems, which one would you take, and why?
Mr Monforton: I would choose the pre-OMPP situation because that system reflected the fact and acknowledged the fact that the way an injury affects a particular person is as personal to that person as his or her fingerprints. The primary problem with Bill 68 is that it deprives a tremendous number of people of the right to seek any compensation whatsoever for their pain and suffering, the net result being you've got people who have been hospitalized for six months to a year to a year-and-a-half to two years, who are left with significant but arguably not devastating residual disabilities and they're entitled to nothing whatsoever for their pain and suffering. I find that to be fundamentally unjust; so does the Head Injury Association of Windsor and Essex County.
Mr Mancini: This is where I would have a serious disagreement with you. I was in the Legislature pre-OMPP, I served constituents pre-OMPP and we had a flood of constituent representation and a flood of constituent phone calls, not orchestrated by any insurance company, but constituents who came to myself and my colleagues who said: "You've got to stabilize insurance rates. Insurance rates are going through the roof." One of the things that we promised and one of the things we did was in fact to stabilize insurance rates. If we were to go back to pre-OMPP, insurance rates would go through the roof.
Now what do you have to say, Mr Monforton? Because this is important. We must address the affordability issue. It's nice to say that everyone should have all of what they need and ask for etc, but somebody's got to pay for it. That's why this province is going to have a $12-billion deficit this year. What do you have to say about the affordability problem that exists today?
Mr Monforton: I think it's a very good question, and if the fundamental premise of your question is, has Bill 68 served to increase the profitability of auto insurance for insurers in the province? absolutely, there's no question about it.
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Mr Mancini: Has it stabilized rates?
Mr Monforton: I can only say this much: We all know that in the, say, one-and-a-half to two-year period prior to the passage of the OMPP, the insurance industry would be out there in the press every three or four months crying about --
Mr Mancini: Has OMPP stabilized rates?
Mr Monforton: It's certainly increased profits.
Mr Mancini: Has OMPP stabilized rates?
Mr Monforton: Has it stabilized rates? I can't answer that.
Mr Mancini: You're not aware of that.
Mr Monforton: Well, stabilization of rates --
Mr Mancini: Mr Monforton, I'm surprised that you would make this a debate between who should make profits and who shouldn't. You're a Windsor resident, are you not?
Mr Monforton: Yes, I am.
Mr Mancini: Did Chrysler Corp make almost $800 million profit in North America this year? Are you against that?
Mr Monforton: Oh course I'm not against that. I don't see what --
Mr Mancini: Fine, that's fine. No, no. Now that we've established, Mr Monforton, that you're for some companies making profits and other companies not making profits, where do you draw the line?
Mr Monforton: No, Mr Mancini, you're misstating my words. I've never said I'm against the insurance industry making a profit.
Mr Mancini: I'm an advocate for the consumer. I want my bias to be very clear. I am an advocate for the consumer. Consumers have told me by the hundreds, if not thousands, that they could not afford insurance rates pre-OMPP, and under Bill 164 they're not going to be able to afford it either. This legislation will take anywhere --
The Chair: Mr Mancini, can you come to the end so he can reply, because your time has run out?
Mr Mancini: I appreciate that, Mr Chair.
Mr Monforton: I've kind of forgotten what the question is.
Mr Mancini: I want to give Mr Monforton the chance to reply directly to consumers. I want Mr Monforton to reply to consumers.
Mr Monforton: Well, is your question about --
Mr Mancini: Do they deserve rate stability?
Mr Monforton: Is your question about Chrysler --
Mr Mancini: Do they deserve to afford insurance?
The Chair: Wait a minute, Mr Mancini. Let him answer, please.
Mr Monforton: First, if your question is, would I like Chrysler to make a profit, yes, no question about it. If your question is, would I like the insurance industry to make a profit, I'm certainly not averse to them making a profit, because over the long haul if they don't make a profit, they're obviously not going to continue to provide insurance.
What I can tell you is that for the two-year period prior to the passage of OMPP, the insurance industry was out there crying every month. They'd be in the newspaper, on the front page of the Globe and Mail and the Windsor Star crying about how they're not making any money. All I can tell you is that since OMPP has been passed, except for the past few months when this has become a hotbed of controversy, they've been deathly quiet. Now we can each, I suppose, come to our own conclusions as to why they've been quiet, but they've been very quiet.
In fact, the reality of the situation is this, Mr Mancini, because I represent injured accident victims every single day, and I can tell you that the insurance industry over the past two years has become more intransigent. They are less willing to settle claims out of court. They are encouraging litigation. I've had numerous experiences in the past two years where I've dealt with very experienced, well-respected insurance counsel who cannot get their companies to back up the recommendations they make on the settlement of personal injury claims. Prior to --
Mr Mancini: One final question --
Mr Monforton: Let me finish. Prior to the passage of the OMPP --
The Chair: There is no final question.
Mr Mancini: He's answering a question I didn't ask.
Mr Monforton: I think it is in response to what's been asked.
The Chair: We're listening --
Mr Mancini: I appreciate that, but it's question and answer and the gentleman has to answer questions that I've asked.
The Chair: I said your time had run out, but I'd like to hear the gentleman's reply.
Mr Monforton: Your question pertained to the profitability or the effects of this Bill 68 on the insurance industry, and what I'm trying to do is tell you how it's affected the people I represent. What I'm telling you is that oft-times now, since the passage of Bill 68, insurance counsel, lawyers hired by the insurance industry, very good lawyers, very well-respected and effective lawyers, are unable to get their companies to agree to settlements which they feel are reasonable and fair.
Prior to the passage of Bill 68, that almost never happened, never, and I'm not talking about $600,000 claims. I'm talking about $30,000 claims, $20,000 claims, claims where you've got insurance counsel who've been doing this work for 30 years and whose opinions and advice have always been sage and appropriate, now being told by their companies, "We'll pay it when a court says we have to pay it," and that's the only thing that'll get the insurance industry to treat people fairly.
Mr Mancini: So you would prefer to go back pre-1990. You would prefer to go back pre-OMPP.
The Chair: I'm sorry, Mr Mancini, your time has run out.
Mr Monforton: If your question is --
The Chair: No, there are no more questions. Sir, I'm going to have to say the time's up. We've gone over about four or five minutes. I was listening to your reply, because we're here to listen to the consumers out there.
Mr Monforton: Thank you all very much.
The Chair: Thank you.
Mr Stephen Owens (Scarborough Centre): I have the case, by the way, if you'd like to review it.
Mr Monforton: I may just want to.
ONTARIO INSURANCE BROKERS AMBASSADOR ASSURANCE BROKERS INC
The Chair: The next group we've got coming forward is the Ontario Insurance Brokers. I'd like to welcome you to the standing committee on finance and economics. We will have until 11:35 since we were a little bit over, so you have your full half-hour. If you don't mind introducing yourselves for the purposes of Hansard, you may begin.
Mr Jerry J. Beneteau: Good morning, ladies and gentlemen. Now that we're all wide awake, I'm sure, my name is Jerry Beneteau of Ontario Insurance Brokers, a local brokerage firm here in Windsor employing a staff of nine people. Our firm has been in business serving the needs of the insurance community here for more than 100 years.
In your travels you've heard from many groups already, including the Insurance Brokers Association of Ontario and the Insurance Bureau of Canada. They have each expressed views which may seem to be divergent at times, yet are unanimous in their concern over the cost to the insuring public.
Today we would like to present some of our concerns as brokers in a slightly different way, the way in which we discuss these issues with our customers. We hope this might ring a bell with you and assist in our mutual goal to provide Ontario citizens, the driving public, with the best auto insurance in Canada at an affordable price.
I would like to introduce to you Mr Norm Kelk. He's the secretary-treasurer of Ambassador Assurance Brokers Inc, another insurance firm here in Windsor. Mr Kelk has 24 years of experience in dealing with the public. While he is a friendly competitor of mine, I have no hesitation in suggesting to you that he will make an effective and meaningful presentation.
Mr Norman Kelk: We're viewing this from the point of view of the kinds of questions we get asked by our people, because I think that's what's important. It's what the consumer is looking for and what he wants.
He asks us, "What's the price?" He asks us, "Is it good coverage?" He asks us, "Will I have a problem collecting if I have a claim?" He doesn't care much about what it says. He doesn't care how long it is or what the policy actually says. Those are the questions he wants us as brokers to answer for him.
"What's the price?" Now I have to tell him I don't know what the changes will cost, but there's universal agreement that the cost will increase since the benefits are increasing. The current system has provided price stability since 1990, and all rate changes must be approved by the Ontario Insurance Commission based on a full cost submission by the company requesting the change before they can be implemented now.
Everyone would like more benefits but they want to know how much. A recent survey shows that over 80% supported increasing benefits in auto insurance, but when they were asked if, with a cost of $50 added, they would support it, the support dropped to just over 50%. Significantly, when the cost was indicated as $100 or more per year, the support dropped below 30%. Cost is an issue in the public's mind and this is what it wants us to address.
"Is it good coverage?" Yes. Your current policy provides the highest level of no-fault accident benefits in Canada, and we believe in the world; I'm not familiar with outside of Canada and the United States, but certainly in North America, and you have the right to sue for economic and non-economic loss if your physical injury is both permanent and serious. There is a need to fine-tune these benefits. For example, there's a clause making workers' compensation claimants ineligible for any OMPP accident benefits even though workers' compensation does not provide all the benefits available under the auto policy and has stricter requirements. So we do have to change some things.
"Will I have a problem when I make a claim?" No, and I can say that unreservedly, despite Mr Monforton's comments about the adversarial nature of the system. Under the current system, you'll be collecting your benefits from your own company in almost all cases. The accident benefits definitions of "disability" are very broad. They're as broad as in any insurance policy I've ever read governing disability insurance. The medical and rehabilitation benefits are available for "all reasonable expenses."
The first presenter suggested that this was too broad and that it should be defined, but it is, for "all reasonable expenses," as are care benefits, currently up to $500,000 for each benefit, and regulations provide for quick resolution of disagreement through the Ontario Insurance Commission which, incidentally, has been underserviced because it's got far less complaints in the first two years than it expected, by a quantum number. They expected to have to be staffed dramatically higher.
Those are the questions the insureds are asking us. Those are the answers we're giving them. It's my experience that OMPP in its current form has been successful in providing more dollars more quickly to insureds and has dramatically stabilized premium costs at a time when other Canadian jurisdictions have experienced sizeable rate increases. British Columbia drivers, for example, are seeing rate increases this year of 9.5% after 19.5% last year, and if you want to go back further, they've had increases every year since 1988. In Ontario we haven't had any since 1991, and in fact decreases.
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OMPP has also been successful in opening the market to so-called grey risks, those in Facility, the problems we've had with availability prior to companies being able to expect to make some kind of profit, whose only problem was that they did not have a clean and continuous driving record.
Unfortunately, when I speak after a lawyer I have to make sure I clarify that am a layman, and as an informed layman, I believe, tackle the issue of the right to sue. I can summarize it all, and I'll try to do it in the end because this may be a little difficult to follow.
The current right to sue for physical injuries of a permanent and serious nature causes concern to the legal profession as an infringement of an individual's right if the threshold is not met since no compensation is available for pain and suffering. The proposed solution in Bill 164 attempts to address this by way of a universal right to sue, but only for pain and suffering and subject to a $15,000 deductible. This bill proposes replacing the right to sue for economic loss when seriously and permanently injured with complex formulas, regulations and unlimited liability on the part of the person's own insurer -- not the at-fault insurer, not the at-fault driver -- to whom he paid the premiums.
This isn't a Cadillac of coverage; it's a Formula 1 racer. Under the laws of Ontario auto insurance it is compulsory, in the amount of $200,000 as a minimum. You must buy $200,000. The majority of auto policies in Ontario, well over 60%, are purchased with $1 million of coverage.
None of this creates any serious problems for insurance companies and reinsurers. It is a benefit that can be costed and priced and sold to the public. But unlimited liability through a combination of accident benefits with no caps and the right to sue will be difficult if not impossible to provide at a reasonable cost, since the current regulations apparently make it impossible to factor in past losses to current rates.
They have to be approved by the OIC, and the example currently that I can tell you is that the Facility Association recently requested approximately 16% rate increases based on its experience. Part of the increase was denied. They said, "No, you can't have 16%, because part of that's because you lost money last year. You can have 8% approximately because that's what we feel you need for the current benefit." In OIC regulations, it's not allowed to take into consideration past losses.
What's the answer to this? I believe personally that you should retain the current right to sue as it is, with the immediate addition of psychological trauma. That's something the Insurance Bureau of Canada has agreed to. They have suggested that it's not a problem to the current definition. This allows the courts the necessary latitude to deal with unusual situations, and here I do agree with Mr Monforton. Let's not regulate every situation so that we've got regulations 250 pages long. Let the courts take care of the unusual situations of economic loss, such as farmers, self-employed, students, any number of others who are unable to be taken care of without great regulation and confusion.
Should you wish to recognize pain and suffering in lesser situations, you could provide compensation on some arbitrary basis. I don't know what: length of time disabled, the type of injury? As Mr Monforton pointed out, every lawyer in every insurance company in Canada knows how much pain and suffering is worth in a certain case, based on pre-Bill 68 rulings of the court. If it's $15,000 and that's what the court would do, make it part of the system. That's fine. It's priced, it's available and the company gets something that you can give a price to.
In that situation, make it subject to a smaller deductible, certainly not $15,000; perhaps to avoid the small cases, a few thousand dollars. But without the necessity of implementing a lawsuit and with predictable payouts, the costs should be reasonable. I want to emphasize that. The point I'm trying to make here, and I know I haven't made it very well, is that before Bill 68, before the no-fault benefits, yes, everybody had the right to sue, but what was the total you could get? Whatever the other driver had. If he had $1 million in coverage, that's all you could get. If he had $200,000, that's all you could get. The insurance industry provided a benefit that you could buy yourself, get yourself. If you had $1 million, you could get $1 million, but you didn't get $5 million, $3 million or $7 million.
No matter what the courts said, you only got what the other person purchased. Under Bill 68, you're getting most of your benefits payable. If you don't think the $500,000 cap is enough, raise it, but don't make it unlimited. It is unfeasible. Leave that to the courts. They're the ones to decide the serious, permanent injuries, both of a physical and psychological nature.
A couple of the other issues that concern us are expanded regulations and cabinet powers. Every time government makes a new regulation, there's a cost attached for compliance. I don't know whether it's $1 or $1 million; I have no idea. I know that the OIC is talking about having to hire 100 new staff. I don't know; that's up to you people to decide.
In the case of the insurance industry, the OMPP has already created additional costs to pay for the Ontario Insurance Commission -- it's paid for by the persons who have the insurance policies; it's assessed to the insurance companies -- and substantial additional costs to many small companies whose requests for rate changes to the OIC must be accompanied by actuarial charts, and which will apparently be required to have an actuary on staff in future. These and other compliance costs must be passed on to the consumer. Additional regulations, particularly as complex as those being proposed, simply add to costs.
With regard to cabinet powers to make regulations, this process we're going through right now is good, but cabinet powers to make regulations with regard to a uniform rating system seem to be counter to the process we're involved in right now. We're all here because we want to see the best for the consumers. As an insurance broker, I don't want to be put in the situation of telling the drivers with good records, or a young female driver, "Your rate's going up because cabinet says so." I want them to be aware of what's happened in this process.
As an industry, we are committed to providing, explaining and servicing whatever product the public wants at an appropriate price. In the last several years, there has been more dialogue between brokers, companies and regulators than ever before. The cooperation level is much higher than most people would lead you to believe. This should be an initial forum for suggested changes, not a massive change in regulation now.
On an issue that I really must admit not being an expert on, because I'm not an actuary or a CA, the insurance industry profits and the ability to absorb part or all of the increase resulting from Bill 164 changes are of paramount importance. The public will not accept large rate increases. I assume that if we had a crystal ball today and knew that rates would increase substantially -- let's say by $150 per policy a year -- if we knew that now for sure and we weren't arguing about that, this committee's deliberations would quickly be focused on how to reduce the costs.
I'm not an actuarial accountant, but the Ontario Insurance Commission has professionals on its staff to review the individual submissions of companies based on their actual experience. The OIC has received requests for increases in rates based on 1991 experience -- that's now; that's not based on Bill 164 increases -- and, in the view of its experts, rate increases are justified and have already been approved. They're not substantial -- 3%, 4% or 5% -- but they have been approved, based on 1991's experience, for 1992 rates.
Obviously, if the Ontario Insurance Commission finds these rates can increase from current levels without Bill 164 costs, it follows that any further cost increase associated with Bill 164 will have to be passed on to the consumer.
Will companies apply part of their "record profits" to mitigate this increase? I don't think they can. I know a lot about insurance companies and finances and small business and big business. First, corporate taxes have to be paid, and 50% of that money went to the federal and provincial governments of Canada. Without that, you would have to find the money someplace else. You've got to tax somebody. It doesn't work very well.
This is in addition, in Ontario's case, to a 3% premium tax that the Liberals removed in Bill 68 and the NDP put back by regulation, so last year the coffers of Ontario profited in excess of $120 million in premium tax. How much tax can the consumer take? He's paying it; we're a pass-through industry.
Second, a reasonable return must be paid to investors who are taking the risk of years of losses such as occurred from 1985 until 1990: five successive years of record losses. What happened to the record profits? Are the companies not entitled to some balance here? The OIC says, "You can't charge more next year because you lost money this year." What can you do? There has to be a fairness here. I'm not saying what that level is, but the level that the OIC has set has been met and rate increases have been allowed for this year.
Third, investment income accounts for all of 1990's profits and 80% of 1991's profits. Companies are now experiencing the same declining interest rates on those investments, just like you and me. If you happen to be a retired person and you're worried about your pension and it's all in investment moneys, you're not going to get 11% any more. You're not going to get 12%. You're going to get 6%. They have to plan on that too. So the record profits, if left alone, would be half as much in two or three years, because they're all investment income profits.
Fourth, claims reserves set up in 1991 may be inadequate in light of lengthening periods of disability and rising costs of medical and rehabilitation treatment. The Ontario government itself has found that OHIP cannot be paid at 100% for everything, yet the insurance companies must pay whatever is reasonable. The costs are going up.
I've talked to some company people and I know you'll be hearing from the Economical Mutual Insurance Co in Ottawa later. They have found that the Mercer estimates are way too low in their own absolute experience, and they'll show you those things on Monday. But the number of claimants on disability over one year in their company is twice as high as the Mercer estimates would indicate.
As brokers, I must emphasize, we welcome changes that enhance benefits or make it easier for our clients to understand and use the claims system, but we know that our clients' first concern is affordability. We do not not believe that Bill 164 accomplishes this delicate balance between coverage improvements and affordability.
I thank you for the opportunity to make these comments to your committee.
The Chair: Okay, up first is Mr Ward and then Mr Lessard on the government side.
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Mr Brad Ward (Brantford): Thank you, gentlemen, for your presentation. It was thought provoking, I think, for every committee member here today. Are you a member of the Insurance Brokers Association of Ontario?
Mr Kelk: Yes, I am. Both Jerry and I are.
Mr Ward: You generally support that organization and association?
Mr Kelk: That's correct.
Mr Ward: On January 27 representatives from that association presented a brief to this committee and in that brief a statement was made by the representatives that says, "We agree that improvements are needed" -- and referring to the OMPP -- "and we note that Bill 164 takes some positive steps towards further protecting and enhancing the interests of our clients." Do you agree with that statement made by the representatives of the association?
Mr Kelk: Yes. It is a positive step. In fact some of my comments can be taken as a balance in the cost factor. I think in the presentation that I have read the Insurance Brokers Association of Ontario emphasizes again and again, "We are in favour of them, but the cost has to be there." The cost issue is the biggest factor.
Mr Ward: Would you agree that under Bill 164 over 97% of the full-time earners will receive some form of income replacement compared with 73% under the OMPP? That is a positive step, would you agree?
Mr Kelk: Yes, it is a positive step and I think it may be a little --
Mr Ward: That's fine. That's fine.
Interjection: Let him finish.
Mr Kelk: It may be a little different. I agree that it should be that way. The thing is of course that this is a second-loss coverage in that most high-income earners already have some form of disability insurance and, as such, perhaps should be given some rate decrease because they provide that coverage themselves.
Mr Ward: Would you agree under Bill 164 that it ensures all long-term disabled accident victims will have adequate benefits for life, whereas the OMPP does not? Is that a positive step?
Mr Kelk: Yes, it is positive. I think if you go further in that report, you'll see again that cost is an issue and the unlimited aspect of it does give everyone that, but yes, it is a positive step.
Mr Ward: A positive step?
Mr Kelk: If we can afford it.
Mr Ward: Yes. Under Bill 164, which ensures the seriously injured who are not at fault get recognition for pain and suffering -- OMPP does not. Is that a positive step?
Mr Kelk: It is in the fact that the right to sue, and there should be some recognition of that, is offset in my personal opinion by the fact that the serious cases no longer have access to the courts.
Mr Ward: In reference to supplementary medical benefits and rehabilitation benefits, the association told us, "We are pleased to note the caps on these important coverages have been removed." Do you support that position?
Mr Kelk: I disagree with them because I don't think it's cost-effective. I support the position again if it's affordable, and they have stressed again and again in that presentation that while they agree with those and they're good, positive moves, affordability is a central issue to the consumer.
Mr Ward: Thank you. I'll turn it over to Mr Lessard.
Mr Wayne Lessard (Windsor-Walkerville): Thank you very much for your presentation. You've certainly reinforced the message that cost is an issue, and I don't have any disagreement with respect to that.
With respect to the current legislation, you say it's your experience that you're seeing more benefits being provided more quickly to accident victims. I'm going to suggest to you that there are some people who are left out by the current system as well. There are some losses that aren't being compensated for and part of the reason, I suggest, that the regulations we've presented are as complex as they are is we've tried to address that factor.
The Tories have suggested that perhaps people should have to buy extra insurance for economic loss beyond what Bill 164 might provide. Do you think people would buy that type of insurance and, if they would, how much do you think they might pay? You've given some specific examples from your studies about what people thought the limits were.
Mr Kelk: As a general rule, and I think this applies to most insurance coverages, if people know what the cost is and they're willing to pay additional -- if you're talking about additional, probably no more than about $50. But let me answer the crux of your question. Having two systems in place, you can buy this or you can't, if it was really affordable.
In other words, if it was $20 benefit, then we as insurance brokers and I think most insurance professionals in Ontario, would add it as a matter of course. If it was expensive, nobody would buy it. If it's $100 a year or more, our experience is that people even now don't buy it even though they've been offered it -- the additional benefit for income replacement -- because it costs money. It's expensive and they don't see the benefit.
In that sense, if the benefit is available -- and I think it goes back perhaps to what Mr Kormos has always wanted. He wants all of the enhanced no-fault benefits plus all of the right to sue, no matter what. There has to be a balance in that affordability, in that issue. You can't do that whole thing with what is being proposed. In that issue, you're proposing exactly to do that, to have an unlimited right to sue and unlimited accident benefits on both sides, just as that scenario is difficult to cost with the way it is now, if you add that other benefit back in.
Sure, we can cost it as $8 million of protection for economic loss. That's easy because we know how many are catastrophically injured. It's the unlimited aspect that causes problems, and the cost thing I have no idea because I'm not an actuary, but if it's available and at reasonable cost, I think you'll end up being of benefit on all policies. If it's an expensive benefit, people will not buy it.
Mr Lessard: Okay.
The Chair: I have to go on to Mr Mancini, and Mr Callahan had his hand up also. You've got five minutes.
Mr Mancini: I appreciate the presentation made by the insurance brokers of Windsor and Essex county. You are the people who deal face to face with the consumers. Is that not correct?
Mr Kelk: I'd say so, yes.
Mr Mancini: You are the people who have to hand people their insurance bills and say, "I'm sorry, but Bill 164 has driven up the cost of your insurance." You're the people who are going to have to do that. When Bill 164 is passed by the NDP members and insurance rates go up, when people who have not had accidents, people who have been good drivers ask you why their insurance rates have gone up, what are you going to tell them?
Mr Kelk: Basically we have to tell them that's the law and that's the cost of the product and that while we are in favour of enhanced benefits, we did bring to the attention of the government and the committee the cost issue and that we were representing their best interests in a balanced product.
Mr Mancini: Mr Lessard wants to gloss over what this is going to do to consumers. Let me tell the committee and everyone who's listening what Bill 164 means to the average household consumer living here in Windsor and Essex county. It means an increase in automobile insurance rates of $208. That's what it means. Have you seen figures to substantiate that increase?
Mr Kelk: Yes, I have.
Mr Mancini: Are you aware what this legislation is going to do to senior citizens in this province and are you aware of the United Senior Citizens of Ontario organization?
Mr Kelk: I've seen their presentation, yes.
Mr Mancini: Are you aware that the United Senior Citizens of Ontario, representing 300,000 senior citizens, has said that regardless of who is right or what the final outcome will be, rate increases of 4% to 20% will take place and that seniors can expect further rate increases higher than that? Are you aware of those statements?
Mr Kelk: Yes, I am. I think those come from two issues. Again we reiterate, every person who's studied this knows there are more benefits, and you know you can't get something for nothing, so the cost will go up. How much is a serious issue.
But the second issue of the seniors is going to be addressed also in the cabinet regulations. If the cabinet can do a plan which eliminates all discounts and says everybody gets the same if they're driving 10 years or more, then the seniors are going to pay more because they generally are in receipt of discounts because of long-term good driving and because seniors represent a lower risk.
Mr Mancini: Would you agree with me that most women earn less than most men?
Mr Kelk: Absolutely.
Mr Mancini: Are you aware of statistics that show that under Bill 164 female drivers over the age of 21 and 24 years of age will have substantial rate increases?
Mr Kelk: I understand that's correct.
Mr Mancini: Do you feel that the cost of Bill 164 to the consumer is worth some of the enhanced benefits that the NDP is trying to promote?
Mr Kelk: Not in my opinion, no.
Mr Mancini: Thank you very much.
The Chair: Mr Callahan.
Mr Callahan: Actually, this was for the other gentleman who was here, but I think I'd still like to put it on the record.
Mr Lessard: What do you think? Would you like to give up your space?
Mr Callahan: We ran out of time. I think the government members should listen. Maybe they'll learn something.
I inquired as to the facilities available for head injury rehabilitation in this province outside the room. He indicated to me it's nil. If that's the case, then the NDP's proposal in terms of taking away the right to sue for economic advantage, as well as the $100 per day that's allowed for a person who is brain-damaged, of course creates a situation of, where are we going to send them? Is the NDP going to enlarge the already outrageous deficit in order to provide these facilities, or are we going to send them across the border like we did with drug and alcohol problems?
The additional factor is that with the $15,000 deductible, there isn't going to be a county or town lawyer who is going to be able to deal with a client. It's going to become a very small-knit group, because as was explained to you by Mr Monforton, trying to figure out what fits into that $15,000 category is going to take a great deal of expertise and perhaps a few court decisions to determine that.
The net result could be that some county lawyers might decide to take on a case, get to court and find that they win $14,999, and their client will be ecstatic, but in essence that client has won nothing, except to pay the costs of his own lawyer as well as the costs of the opposition's lawyer. So that's an absolutely looney tunes approach to what the Premier promised, which was public auto insurance, and he sort of got a foot on either side of the bridge and is not accomplishing either one of those, so I'm putting him on the record, Mr Chairman.
The Chair: I'm sorry, Mr Callahan, I didn't hear a question.
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Mr Callahan: Mr Chairman, you're supposed to be independent when I speak about the Premier's promises and his failure to keep them. You should not be coming into the fray.
The Chair: I am independent. The time has run out. I'm sorry. We'll go on to Mr Tilson.
Mr Tilson: I'd like to talk a little bit about the comment on cost and have you clarify some of the remarks you made. There's no question that all of the insurance companies, including yourselves, the brokers, the adjusters, everyone in the insurance industry says that rates are going up. Depending on who you talk to, is it 4%, is it 20%? The insurance industry believes it is closer to 20% that insurance premiums are going to go up.
That can be challenged, I suppose, just like Mercer can be challenged. But the fact is that they're going up over and above the normal increases that rates would normally have. So one wonders about the merit of all that. At the same time, emphasis has been put on what the cost is going to be to educate the brokers, educate the claims people, educate the companies, educate the lawyers, educate the doctors; of course, the innocent accident victim has been left out.
One of the major complaints about the previous system or systems, which I'm not necessarily so sure I agree with, is the tremendous cost of advocacy. This government has taken away the advocate of the innocent accident victim. There's no advocate. I'm getting to my point finally. I believe that the insurance industry is going to be put under so much pressure as to the cost of operating its businesses that rates are going to go up.
The minister has said, "Rates are not going up." He said that numerous times. If rates aren't going up, and yet the industry says they're going up by 20%, all right, so they can freeze it like the Liberals did. I suppose they can make some funny cabinet regulation, as the act's going to allow them to do. You people are going to become more and more difficult to deal with, because you have to survive.
My question again is getting back to the theme that was being developed by some of the earlier delegations. What is going to happen to the innocent accident victims, when you people are being forced to be not as nice as perhaps you have been in the past?
Mr Kelk: I must agree with your comments, but I must say, first of all, that Mr Charlton and Mr Rae are both aware that rates are going up and that the Ontario Insurance Commission has in fact already approved rate increases for companies.
Mr Callahan: That's not what they say.
Mr Kelk: I know. Mr Rae and Mr Charlton would then talk about the profits, and I addressed that issue. Those profits are gone in taxes and in other things. It's a situation where it's nice to talk about one year in isolation, but let's talk about the whole situation.
Mr Tilson: Wait a minute. I'm not talking about the rates from day to day. Let's talk about the projected 20% that this government's going to impose on this province.
Mr Kelk: Again, I am not an actuary, but that 20% estimate, by most estimates, is a combination of a slight increase because of current underfunding. The cost attributed to Bill 164, this is where it's not as wide apart as you think, because Mercer says 4.5% and Wyatt says 12.5%. The other part of that 20% increase is the fact that rates do have to go up even now to fund the lengthening disability periods, the lengthening benefits that consumers are receiving. So the total appears to be around 20% for the total package of rate increases in 1992 if this bill is passed; if it isn't, then there will still be a rate increase of about 4%.
Mr Callahan: The Premier knows that, does he?
Mr Tilson: The difficulty I have is with the whole issue of rates, which is why this whole mess got started in the first place.
Mr Kelk: That's correct. That's exactly right.
Mr Tilson: The OMPP said rates were going to go down.
Mr Kelk: Rates did go down. Rates went down in 1991.
Mr Tilson: I suppose the innocent consumer is going to say: "What in the world's going on? Who do you believe in this world?" I'm not suggesting that you're not telling the truth. I'm just saying that there's a lot of strange stuff going on here.
Mr Mancini: It's the NDP that didn't tell the truth.
Mr Tilson: I have one more question. How much time do I have?
The Chair: About 30 seconds.
Mr Tilson: I'll give it to Mr Kormos.
Mr Kormos: Gentlemen, it's nice to be here with you. You know what's really strange? This committee sat last week in Toronto; it's sitting around the province this week hearing from people. No more than a number I can count on one hand came forward saying there might be some good things here. Nobody supports it; almost everybody opposes this legislation. They didn't receive a single letter, a single note, a single phone call from anybody asking them to jack up premiums and reduce benefits. Who in the Lord's name is the government catering to with this wacko, made-in-Bucharest bill? Do you have any idea? Surely you people didn't call on the government to introduce higher premiums and lower benefits, did you?
Mr Kelk: No. I emphasize that we would love to have unlimited benefits, but we have to answer to the consumers and we have to give them that balance. No, our consumers are not asking for increased benefits. There are some cracks that have to be filled, but this is like tearing down a wall, instead of just filling the cracks.
Mr Kormos: This is a victory of the guilty over the innocent.
The Chair: Mr Kormos, you're out of time.
Mr Kormos: It's bad legislation.
The Chair: I'd like to thank you for appearing before this committee.
Mr Kelk: Thank you for the opportunity.
The Chair: We have a cancellation for 11:30, and the clerk would like to make some announcements here also.
Clerk Pro Tem (Mr Franco Carrozza): This concerns the accommodations here. You have until 3 o'clock to remove your belongings. After that, bring your luggage down to the River Run Bar after 3 pm. It's on the first floor by the front door.
The Chair: Okay, we're going to be recessed until 2 o'clock.
The committee recessed at 1136.
AFTERNOON SITTING
The committee resumed at 1401.
The Chair: Good afternoon. This is the standing committee on finance and economic affairs, Bill 164, An Act to amend the Insurance Act and certain other Acts in respect of Automobile Insurance and other Insurance Matters.
WINDSOR AND ESSEX COUNTY INSURANCE BROKERS ASSOCIATION
The Chair: I'd like to welcome the Windsor and Essex County Insurance Brokers Association. Gentlemen, if you don't mind identifying yourselves for the purposes of Hansard, you may begin. We have until 2:30. In that period of time, at the very end of your presentation, you can leave time for questions from the committee members. You may begin.
Mr Stephen Savage: Mr Chairman, members of the legislative committee, ladies and gentlemen, for the record, my name is Stephen Savage. I'm the president of the Windsor and Essex County Insurance Brokers Association. I'm also representing here Kent and Lambton counties and the Bruce-Grey association. With me today is John Comisso, the past president of the association, and Mr Bruce MacDonald. We are insurance brokers, and in this capacity we wish to welcome you and your committee to a beautiful, sunny day here in Windsor. We want to thank you for the opportunity to express our views regarding Bill 164.
As insurance brokers, our first and foremost concern is for our customers. From a practical point of view, we are dealing daily with their concerns and questions. We advise them regarding product availability, policy wordings and price. We assist them with their buying decisions and help them through the claims process. We are in the best position to know what our customers want, what their concerns are and how legislation may affect them. We are here today to try and provide you with some local feedback regarding this proposed legislation, its strengths and its weaknesses.
In our view, the Ontario insurance consumer is seeking a product that is straightforward and easy to understand and, in the event of a claim, that pays benefits or repairs their vehicles quickly and efficiently and does not involve excessive paperwork, costly delays or the time and expense of court proceedings.
Since the introduction of the Ontario motorist protection plan in June 1990, our customers have experienced a stabilization in the marketplace, premiums have reduced, claims are settled more quickly and efficiently and income replacement benefits are delivered within 10 days of the filing of the appropriate paperwork.
Our sense is that the system seems to be working well. In our office, we've experienced very, very few complaints regarding the new system. This sentiment is common in most brokerage offices. We were therefore surprised that Bill 164 was proposed, with some significant changes from the existing legislation. We are not suggesting that a continuing review of the legislation should not be undertaken; our industry regularly consults with and makes recommendations to the Ontario Insurance Commission. However, we are concerned that some of the proposed changes in the legislation may not be in our customers' best interests.
Our first concern is for the areas that the bill does not address. We believe that in order to control the costs of auto insurance, you must first address the problem. Auto insurance premiums are driven by the cost of claims: the more claims, the higher the cost. This bill does not deal in any way with this issue. Instead, its proposals will add to the cost of the auto insurance product. The government seems to be addressing a problem that the general public has not expressed. It's a bit like the physician providing a patient with another pill for his pain without removing the nail from his foot. The Road Ahead: Ontario's Strategy for Automobile Insurance Reform did place, and we believe rightfully so, a considerable emphasis on safer roads and accident reduction.
Our industry, in the spring of 1992, recommended that graduated licensing should apply to all novice drivers. Statistics from countries that have introduced this plan have indicated a dramatic decrease in fatalities. For example, in New Zealand prior to the implementation of graduated licensing in 1987, fatalities among 15- to 17-year-olds were increasing. The new system halted the trend, and within two years traffic deaths and injuries for this age group dropped approximately 40%. The strengthening of driver test standards, hazard perception testing, compulsory driver education training programs, night curfews and zero blood alcohol content are a number of additional recommendations to address the real problem in auto insurance. Yet there seems to be a reluctance on behalf of the government to take legislative action. We do note, however, that the provinces of British Columbia and Nova Scotia have recently announced that they will be taking action to implement these kinds of road safety plans.
The road safety agency created under Bill 39 -- which, by the way, has not received second reading -- is focused on the promotion of safer driving through licensing, road safety research and education. We believe this should be the priority of the government. We would strongly encourage the government to focus its energies in this area of accident reduction and, ultimately, cost control, instead of proceeding with Bill 164.
As brokers who deal with the public daily, we are painfully aware of our customers' concerns regarding the cost of auto insurance. Times are tough for many, and it becomes more obvious as we see clients stretch their payments, delete coverages or simply drive vehicles without insurance. We know that cost is their primary concern. Our concern is that the introduction of this legislation, with the indexation of benefits, the removal of medical and rehabilitation caps and increased access to the courts, will increase the cost of the product, and eventually this increased cost will be borne by the consumer.
There have been several actuarial reports published to date regarding the impact of Bill 164, and although they may differ in the methodology used to develop their results, they all have reached the same conclusion: Bill 164 will increase the cost of the auto insurance product.
It's not our intention to review with you in detail the specific contents of Bill 164. However, we feel it's important to comment on several areas.
Complexity: We referred earlier in our submission to the consumers and their need to have a straightforward product that is easy to understand. As we worked through the document, we became more and more concerned with its complexity. The 70-odd pages are very detailed and will, in many cases, require interpretation. We do not know the full impact of these new proposals or the additional costs associated with their implementation and regulation. It has been suggested by Don Scott of the Ontario Insurance Commission that it will require 100 additional staff to implement the benefit package of Bill 164 and $5 million more a year.
Our customers are just now becoming familiar with the Ontario motorist protection plan. We are concerned that additional costs and confusion will not be in their best interests. The clients who do not understand what they are buying, what they are entitled to or when it's available are impossible to satisfy. This dissatisfaction will be levelled at the government as it proceeds with the implementation and passing of this legislation.
Tort: The introduction of the right to sue with a deductible may return us to the problem of the 1980s, when higher court awards forced auto insurance premiums upward. We are concerned that the $15,000 deductible will either prohibit our customers from taking an action or cause the courts to inflate awards to compensate for the deductible amount.
Senior citizens: The proposals in the bill will increase the cost of auto insurance, yet there is little in the bill that will benefit senior citizens. Since many seniors are not employed and live on a fixed income, they will not benefit from the higher weekly accident benefits, yet they will be forced to pay the additional costs associated with these benefits.
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Income replacement calculations: We believe that our clients will be disadvantaged by the new formula to calculate income replacement. It seems to us that if the average income for a family with two children is $45,000 and the after-tax income is $33,000, the new 90% of net income calculation will entitle the client to $29,700 annually. Under the existing Ontario motorist protection plan, the same client would be entitled to 80% of the gross income, or $36,000 annually.
Economic loss: The right to sue for economic loss has been replaced by a no-fault benefit capped at $1,000 weekly. We are concerned that the clients whose present or future income potential exceeds this threshold are disadvantaged by the proposed changes. Take, for example, a doctor in a specialty area who is in her last year of residency. Her annual income may be $40,000. The following year, her income could jump to $200,000. Under the proposed plan, she would remain uncompensated for her loss of future income.
Let's take a less extreme example. A young insurance broker two years in the business is building his client base. His income is $30,000. Over the next few years he expects to double his income as he increases his client base. Unfortunately, the proposed legislation does not allow him to sue for this future economic loss, thus placing him and his family at a distinct disadvantage.
Cabinet's power: Bill 164 gives cabinet the power to implement changes to the insurance classification plan and rating method. This bypasses the requirement for parliamentary debate or for public discussion like the one we're having here today. We are unsure how this is in the public interest or why it was introduced to the bill in the first place. We believe the Ontario Insurance Commission has the insurance expertise and that its present consultative approach with the insurance industry provides invaluable assistance in creating and maintaining the insurance system.
The government has indicated that it intends to homogenize or simplify the classification plan. We are concerned that these decisions made by cabinet without public scrutiny or input may result in substantially higher premiums for young female drivers or senior citizens.
In conclusion, we are pleased to hear the government's announcement regarding the task force on rehabilitation and long-term care benefits for those injured in automobile accidents. We think that this type of consultative approach for changes to the Ontario motorist protection plan makes good sense.
Many groups have expressed their opposition to the bill: Mothers Against Drunk Driving, The United Senior Citizens of Ontario, the Ontario Chamber of Commerce, the Canadian Paraplegic Association, the Toronto Taxicab Owners and Operators Association, the Insurance Bureau of Canada. We here in Windsor would add our name to the long list of organizations opposed to the bill in its present form. We have also been asked to include our colleagues the Hamilton insurance brokers, who were not given the opportunity to appear before this committee.
We, the insurance brokers, are on the front line. We act as the liaison between the companies and the public. We have heard few complaints about the Ontario motorist protection plan and its operation. If we hear so few complaints, we are certain that the Ontario Insurance Commission is hearing even fewer. The deputy minister, Blair Tully, indicated that the government did not even take the time to survey the public to determine if the bill is necessary or wanted. We wonder why this plan is being proposed at all. We believe it's the wrong plan at the wrong time.
Thank you for the opportunity to share our thoughts today. Mr Comisso, Mr MacDonald and myself are here to answer any of your questions.
The Chair: Mr Harnick, five minutes.
Mr Harnick: I notice that in your brief you state a concern you have that the $15,000 deductible would possibly prohibit your customers from taking an action. I want some sense from you of where this line or threshold or deductible should be. I appreciate that it's pretty difficult for anybody to be precise, but would you agree with me that when one of your customers suffers an injury that could be considered serious, he should have the right to make a claim?
Mr Savage: Sure.
Mr Harnick: That's pretty basic, I would think, and I would think that in spite of the fact that you haven't heard a great deal of criticism about the OMPP, the one thing you have heard is that some of your customers have probably been involved in accidents and have found out after the fact that the right to claim has been taken away from them. Has that been your experience?
Mr John Comisso: If I may, Mr Harnick, if we assume what you're saying to be true, unfortunately the answer I'm giving you is that we're not hearing from those particular clients or customers that they're concerned or that they're upset that the existing policy does not give the right to sue. It doesn't necessarily follow automatically from your premise that there are complaints. We just don't hear them. There are three brokers here representing thousands of clients, and we're not hearing those complaints.
Mr Harnick: What I'm specifically interested in is the experience of those who have suffered accidents and have suffered serious injuries. You'll acknowledge that under the OMPP only 3% are getting through the threshold. There are 97% who aren't and, of that 97%, there are an awful lot of serious injuries. I suspect that among you three, at least some of your customers might unfortunately have been involved in an accident in which they've suffered some kind of serious injury. What's happening to these people?
Mr Bruce MacDonald: If I could make a comment, it's my experience that most of them, by and large, when they have a $600-a-week coverage, it's getting into their hands very quickly and they're pleasantly surprised at that; it's much better than the previous accident benefits schedule, and it means they don't have to wait around for a year or two or three for the litigation of the court to decide (a) if they were at fault, and (b) how much they're going to get. By and large, initially at least, they're much happier.
Mr Harnick: You see, what concerns me and what's confusing people -- I don't take any objection to the fact that people who are entitled to accident benefits receive accident benefits that are reasonable, but what I really want to know from you is, in addition to the receipt of those accident benefits, if somebody suffers a serious personal injury, shouldn't they be entitled to make a claim for their pain, suffering and loss of enjoyment of life?
Mr MacDonald: Yes, I agree with that. I guess with the current threshold it's serious and permanent, and while I suppose that exact threshold is yet to be determined -- there haven't been that many cases that have tested it -- they still have the right to sue.
Mr Harnick: That's right, and the one thing I am concerned about is that people seem to be saying that the pain and suffering aspect is all part and parcel of the accident benefits aspect, and in reality they're two different things. They may go hand in hand, but you should get your accident benefits on a timely basis; you should get your rehab on a timely basis, but that doesn't detract from your right to get your pain and suffering and loss of enjoyment of life claim in addition to your accident benefits. Correct? One doesn't negate the other, if the injury's serious.
Mr MacDonald: I agree, and actually we as brokers support pain and suffering, and psychological trauma and those things, in some way working their way in if the injury is serious and permanent.
The Chair: Thank you. Mr Lessard.
Mr Lessard: I want to thank you, gentlemen, for taking the time out of your busy schedule to appear before the committee today. I wanted to know whether you were members of the Insurance Brokers Association of Ontario.
Mr MacDonald: Yes, I think three quarters of the brokers in the province are members of the trade association.
Mr Lessard: Are you aware of the presentation they made to the committee last week?
Mr Savage: Sure.
Mr Lessard: In that brief, it says, "We agree that some improvements are needed and we note that Bill 164 takes some positive steps towards further protecting and enhancing the interests of our clients." Would you agree with that statement?
The Chair: Wait a minute. Did you get that, Hansard?
The mike didn't go on. Would you please answer again so we can pick it up?
Mr Savage: Yes. In the affirmative.
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Mr Lessard: In the bottom line of your presentation you say you wonder why the plan is being proposed at all and that it's the wrong plan at the wrong time, but that seems to contradict the submission that's made by the association.
Mr MacDonald: I think the position that Mr Savage is trying to put forward today is that we as brokers do feel that in any system there's always room for reforms that improve the current system. If it can be done in an affordable manner, we're quite in favour of that.
Our concern, from our customers' point of view, is that many of them are crying the blues about their current premiums. There are tremendous economic problems in many area of the province. Some are not working, some are worried about being laid off, and they worry very much about their premiums going up. If we can find a way to fix some of the things that need to be tidied up -- psychological trauma, pain and suffering or whatever -- and still do it in an economic way that makes sense, fine, but the bottom line is that it's got to be affordable to consumers.
Mr Comisso: If I may, Mr Lessard, bring it down to a Windsor level: If an individual is looking at buying a Chrysler minivan and you ask him whether he would like the standard Chrysler minivan or the one with all the bells and whistles and options that are available to it, I don't think there's very much deliberation that has to go on. But when it gets down to the bottom line, what that individual has to pay for the Chrysler minivan and what he can afford may be two different things. While we might be in favour that perhaps there may be some enhancements included in this bill which are nice to have, it's a question of who's going to pay for them.
The Chair: Mr Ward.
Mr Ward: I'm just referring to the brief, gentlemen, so I can get an understanding. I think you mentioned that you do support the association, and it did give a presentation. Some of their suggested positive aspects of Bill 164 obviously deal with the supplementary medical benefits and the rehab. They say, "We are pleased to know that the caps of these important coverages have been removed." I'm assuming you agree that this was a positive amendment to Bill 68, in the sense that the caps are no longer there. I believe that was a concern of brokers throughout Ontario, was it not?
Mr MacDonald: I have read the report you're referring to several times, and yes, we do agree that perhaps it's a positive thing. I do think the same report refers several times to the issue of affordability in many areas, and the balance is that you have to strike the balance that works.
Mr Ward: So you also support the creation of the task force, which will look at long-term costs and ensure that the costs are contained, to a degree, where the driving public obviously can afford that particular benefit. You support the creation of that task force as well, do you not?
Mr MacDonald: Yes, both briefs do.
Mr Ward: Mr Chairman, how much more time do I have?
The Chair: You have one minute.
Mr Ward: Would you not agree, looking at the enhanced benefits, that Bill 164 will offer some type of income replacement for 97% of full-time earners compared with 73% under the OMPP, and that it ensures that the seriously injured who are not at fault get recognition for pain and suffering, which obviously is not in the OMPP? Those two in particular are positive as well, again recognizing that there are no free lunches and every enhanced benefit has a cost to it, but would you not agree that that's a positive as far as Bill 164?
Mr MacDonald: It's positive in theory. Under the current system the standard is $600 and you can buy it up. I as a broker and I think my colleagues here would join with me in saying that we've offered it to many hundreds of clients and hardly any of them buy it. The problem is that when you force it at $1,000, many people who will never ever be able to claim from it have to pay the freight: the seniors, the students or whoever.
Mr Mancini: I want to thank the association for its brief this afternoon. Gentlemen, in your brief you asked a very straightforward question that the NDP has been refusing to answer since the first day of these hearings. You asked, "Why was this bill introduced?" I think I have the answer for you. Do you know who Mel Swart is, the former NDP MPP for Welland-Thorold?
Mr MacDonald: I understand he spoke to you last week.
Mr Mancini: Can I tell you --
Interjections.
Mr Mancini: Can you control the parliamentary assistant, please?
Interjections.
Mr Mancini: Mr Swart said -- and I know this hurts -- "Bill 164 is before the Legislature only because after the NDP leader and members made so much fuss in opposition they couldn't be seen as doing nothing now." "They couldn't be seen as doing nothing now." That's what Mel Swart had to say in answer to your straightforward question as to why this bill is before you.
You are supporters of the road safety program?
Mr MacDonald: Definitely.
Mr Mancini: Are you aware that I and other people who have served in the role of Transportation critic for the opposition parties have more or less given our support for the road safety agency program? Are you aware of that?
Mr MacDonald: Yes.
Mr Mancini: And there is absolutely no reason for the government not to move forward with the road safety program, because we're prepared to join with them in passing this important program.
Are you aware that in the Mercer report, the government's New York consultants, when they came up with their 4.5% increase, actually factored in a road safety program that wasn't even in place? Are you aware of that?
Mr MacDonald: I think I read that somewhere, yes.
Mr Mancini: And are you aware that if they did not factor in that road safety program which does not exist, the government consultants would come up with a rate increase of not 4.5% but almost 10%? Are you aware of that?
Mr MacDonald: Yes.
Mr Mancini: Those are the facts. Are you aware that farmers, particularly farmers in Essex county who are in grave financial distress, will have to pay more to insure their vehicles? Do you insure farmers?
Mr MacDonald: Yes.
Mr Mancini: Do you think farmers are flush with money these days?
Mr MacDonald: Most of them, no.
Mr Mancini: Do you think they can afford $200 per vehicle more just for Bill 164?
Mr MacDonald: No, I do not.
Mr Mancini: Are you aware that senior citizens are going to be hammered by this legislation?
Mr MacDonald: We are.
Mr Mancini: Are you aware that after the government eliminates the age-of-driver rating factor, senior citizens in Windsor -- and I want to highlight this to Mr Lessard because he failed to point it out -- may face a rate increase of up to 23%?
Mr MacDonald: I don't know the exact percentage, but we're expecting seniors to get increases, yes.
Mr Callahan: I'm sure you'll hear about it.
Mr Mancini: You're expecting seniors to pay more. Do you think seniors get any benefits out of Bill 164 in exchange for these higher rates, sir?
Mr MacDonald: Not as many as other groups, no.
Mr Mancini: Are you aware that the Toronto taxi association made a presentation to this committee, and are you aware that it stated before this committee that its rates were lowered because of the Ontario motorist protection plan? Are you aware of that?
Mr Savage: Yes.
Mr Mancini: Is the taxicab business in Windsor flush with business?
Mr Savage: Certainly not.
Mr Mancini: Do you think taxi drivers, people who make that kind of money, taxi owners and people who use the taxi services are able to pay more for these services in exchange for all these grand benefits that the NDP members say we're going to get for Bill 164? Do you think the taxicab industry can pay more?
Mr Savage: No.
Mr Mancini: Would you agree with me that consumers are fed up and have had it with tax increases, with rate increases, and with everybody sticking their hands in their pocketbooks?
Mr Savage: Couldn't agree more.
Mr Mancini: Thank you. Mr Callahan, you have a minute.
Mr Callahan: I find it interesting that all the things my colleague has said, it seems to me, say that the NDP is simply bringing this in rather than public auto insurance, which is what it promised, that this is sort of a halfway measure. I think that's a lie, a lie that's being imposed on the people of Ontario, and I think people in Ontario are looking for politicians who tell the truth.
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Mr Owens: Who's that? Is that you?
Mr Callahan: The parliamentary assistant says, "Who's that?" It's certainly not the parliamentary assistant or his party.
But I'd like to inquire. This morning we had a fellow, a lawyer actually, who was talking about people who had brain injuries. As you're aware --
The Chair: I'm sorry, Mr Callahan, your time is up. You only had one minute.
Mr Mancini: He was interrupted by the parliamentary assistant.
Mr Callahan: That's fine.
The Chair: Okay? Gentlemen, I'd like to thank you for coming before this committee.
You had a short question, Mr Mancini, the one day with a 10-second question. Didn't you get that one out and get an answer right back? You don't remember?
Mr Mancini: I supported Mr Callahan in asking a question.
Mr Callahan: I appreciate that. That's right.
NIGEL GILBY
The Chair: The next group to come forward is Mr Gilby. This will be for 20 minutes. You may begin.
Mr Nigel Gilby: For those of you who do not know me, my name is Nigel Gilby. I am a lawyer. I am also the chairperson of Dale Services, which is a transitional living centre for brain-injured people, and a board member of the Canadian Paraplegic Association. I am and have been for the past four years the chairperson of FAIR for regions outside of Toronto and have been active in fighting for the past four years for innocent accident victims in this province.
I'd like to say that after fighting for accident victims for the past four years, having presented accident victims before the hearings on the present OMPP, having met with the minister, Brian Charlton, personally with a number of accident victims and many other government members, including Mr David Winninger from London, I come here with no illusion of fairness to innocent accident victims. That illusion was shattered when this government failed to keep its pre-election promises to accident victims and the millions of voters like myself who voted for Bob Rae and his party because of those promises.
Instead of keeping its promises, this government has come up with a system that is universally condemned by insurers, innocent accident victims, rehabilitation specialists, members of its own caucus and its own party. I suppose that if they want to congratulate themselves for something, they have been able to find a common bond between insurers and innocent accident victims.
Having said that, I hope there is still some integrity left in this government to at least recognize the inherent problems and change them. Ten minutes is not enough time to deal with all of those problems, so I'm going to deal with only a few of the problems that I see with this legislation.
One of the biggest problems is that it is complex. If the members of this committee have read this legislation, and if they are honest with themselves, I would bet that to a man and woman they couldn't stand up and say that they understand this legislation and all that it entails or means. It is simply too complex. As a person trained to interpret legislation, whose job day in and day out is to interpret statutes, I can tell you it's a very complex piece of legislation. Imagine what the poor, untrained, innocent accident victim is going to have to deal with once this legislation is implemented.
You have to understand that individuals are going to be going up against insurance companies, and insurance companies are going to have experts, people who are well trained, who are going to represent them in mediations, arbitrations and court proceedings. There is nothing in this legislation that I've been able to see that provides for any legal counselling on the part of innocent accident victims.
When you look at section 33, it talks about financial counselling, about rehab counselling, about all sorts of counselling, but there is nothing in there for legal counselling. It may sound self-serving, but legal counselling, in my opinion, is just as important as the other counselling, because it's only through interpretation of the statute that somebody is going to understand what rights he has, what benefits he's entitled to, what rehabilitation he's entitled to.
This piece of legislation is absolutely useless if people don't know what it means and don't know how to use it. In my opinion, you have to, provide for that. All you have to do in section 33 is add to the other counselling "legal counselling." You have to provide for that. You're betraying innocent accident victims if you don't.
The other thing I'd like to talk about is death benefits. I have provided a handout -- I don't know whether everybody has that or not; it's clear-faced -- and I want to show you some examples. If you turn to the first tab, on fatalities, these are actuarial calculations. What they do is show the existing legislation, which is really pre-OMPP as well, because of course you have the right to sue in a fatality under the present legislation, as you did before it, and the proposed Bill 164.
I have taken people earning not a lot of income. The first example: If you take a married person, male or female, aged 30, who has a gross income of $25,000, you will see that under the present legislation that person would receive benefits of $435,000 by way of having a tort claim. Under Bill 164, that same person and his family are going to get $93,000. They've paid $340,000 for this piece of legislation.
Example 2: A married male or female, aged 40, income of $50,000 -- we're not talking large incomes; these are the blue-collar, union workers who are making that kind of money, who have supported this government for years -- $623,000 with the right to sue; $149,000 is all the family's going to get under Bill 164. They're getting ripped off for $450,000.
The last example: A male or female, aged 55, with an income of $35,000; $396,000 if they have the right to sue, $97,000 under this legislation. It's cost that family $300,000.
What's even more abhorrent is that you do not have any exclusion for people who drink and drive or are impaired under part X. So what you've got is a drunk driver coming through a stop sign who kills himself and another person, and the drunk driver is going to get the same or potentially better benefits for his family than the family of the innocent accident victim. What this legislation is doing is saying to the families of people who are killed by drunk drivers, "Not only are we going to take away your husbands and take away your income, we're going to pay it to the guy who killed your husband."
Mr Kormos: Drunks win and victims lose.
Mr Gilby: Exactly. Let's talk about the $15,000 deductible. I have attached, at the next tab on damages, some examples from Goldsmith, and as my friend Mr Winninger will be able to tell you, as a lawyer, that is an authoritative text that deals with personal injury claims for pain and suffering damages. In fact, it is put out and used by the insurers throughout Canada.
We are not talking about damages in this country that are massive, like you read about in the United States. The first example: It's a 1988 case. The person had an amputation of his leg. They get $100,000 for pain and suffering. Anybody here going to say he'll give up his leg for $100,000? Yet you're going to penalize them, not only on the basis that it's not a huge award but by taking $15,000 away from them.
Look at the second example, A 14-year-old who had a laceration on her right forehead of two to three inches, permanent scarring. She had a knee injury that prevented her from participating at school in team activities and is going to be dealing with that problem for the rest of her life: $16,000. You're going to give her $1,000. No action is going to be pursued for $1,000. It absolutely would never be warranted.
The case of Giannone is a six-year-old girl who had a compound fracture of her arm. It was cast improperly. The result was she got gangrene. She had to have her arm amputated. A six-year-old girl under our present damages gets $125,000. You're going to take $15,000 away from that little girl.
The construction worker, aged 46, had a fracture of his left femur, shoulder injury, fractured ribs, an injury to his lower back. It required the insertion and removal of a rod, and it required a bone graft. The court found that he would be unable to return to his old job, which was one requiring heavy labour. The court awarded him for pain and suffering $15,000. You're going to take $15,000 away from him and I can go on and on.
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If you look at the example of Le and Tang, 1992 -- I mean, I'm not picking cases from the 1960s and 1970s here. We're talking current cases. A 23-year-old seasonal fisherman suffered a broken nose, a fracture of his left zygoma, which is the bone in the eye, a cut on the left temple and had a closed head injury and a perforation of the small bowel. The court found that he would have ongoing pain, difficulty breathing, blurred vision in his left eye, pain in the area of the cheekbone and left temple, sharp pain in the stomach: $22,000. You're going to give that person $7,000. I mean, you really should be ashamed of it.
I want to also talk about one last thing, and that deals with the idea of first-party insurance. If you're going to bring this legislation in, at least provide for a specific stated piece of legislation that says individuals can buy -- whether you want to call it an endorsement or a rider on the policy -- additional coverage to cover those economic losses they are going to suffer. Insurers will price it out on the basis that they've always priced it out and that is to make some profit on it. Individuals will be able to buy it and will be able to at least have some additional protection. I've also provided you with a paper from the professor that deals with a number of examples of people who are going to be severely disadvantaged.
My friends before me talked about examples, such as the person who is in medical school and about to graduate, the person who is starting off in the brokerage business, the person who is just starting off in farming. This legislation freezes life. It takes a picture of life backwards for one year and says that's the way things were always going to be and always will be and that's how we'll compensate. Well, that's not reality because people's incomes go up, people's incomes go down and people progress through certain stages. A person at 55 is in a far different situation in terms of income than a person at 23 or 24 just starting off, and you're penalizing them.
The paper I have provided to you is the paper by Douglas Welland, so if I can recap before any questions I would ask that you provide for the right to legal counsel. It has to be there. Without it people are going to be victimized once again. If you're going to leave this legislation, you've got to do something with the fatality section. It's a farce, really it is, when you think about any member and the income that you earn if you were killed and what your family would get. You have to do something about the $15,000 deductible. Given what else you're taking away from people, it is far too punitive.
This legislation is so complex. I do agree and I do support what the insurers say in regard to the fact that you're going to have three systems going. You've got pre-OMPP, you've got people falling under OMPP and people who will fall under this new legislation. There is going to be a bureaucratic nightmare in the insurance companies of this province. Unfortunately, it is going to put pressure to put premiums up.
Mr Winninger: It's always a pleasure to hear from you, Mr Gilby. At one point during your --
Mr Mancini: It sure is.
Mr Winninger: I'm sorry; I don't want a repeat of this morning when I take my few minutes allotted and I get constant interruptions. You mentioned that this plan has been universally condemned. I suggest you might want to talk to Judge Killeen in London who calls this plan the best in North America. He claims to have adjudicated 700 jury trials.
Mr Gilby: He may be the only one then.
Mr Harnick: Why doesn't he come before the committee and tell us then.
Mr Winninger: He did testify before the Slater committee. I would suggest also that if the regulation is too complex -- I'm sorry, Mr Chair.
The Chair: Address the Chair. Don't address the opposition.
Mr Winninger: If the regulation is too complex, maybe people who can't afford to retain a lawyer would be able to avail themselves of legal aid in circumstances where they need advice on their policy. But I'd like to cut to the chase here, if I may. You presented many cases here under your damages brief which were foreclosed under OMPP. I think we should be clear on that.
Mr Gilby: Not all of them, but some of them.
Mr Winninger: Death benefits, yes; but most of the others, no.
Mr Gilby: Quadriplegia, loss of legs, no; I would hope those would fit under OMPP.
Mr Winninger: What I'd like to do is draw your attention back to a case that you just had adjudicated --
The Chair: You have about 30 seconds.
Mr Winninger: Where did all the time go?
You had a case in 1987. It went to trial in 1992: Hutchins and Nevin, innocent passenger in his own car. Case dismissed, $14,000 loss of income, which represented half your claim for the differential in income over those years, assessed at 25% contributory negligence. What did he get out of the tort system?
Mr Gilby: Can I answer that question? Number one, that case is under appeal, and you're being unfair when you don't indicate what the facts of that were. That was a case where the defence that was put forward was a defence of insanity. The driver of the car at the time was insane and could not have had civil culpability. The reason that case was decided that way was because of an Ontario Court of Appeal decision from the 1940s which, until the Court of Appeal adjudicates on this case, was and still is the law of this province. You're picking an isolated example --
Mr Winninger: I only had 30 seconds. I think there's somebody there --
The Chair: Mr Mancini.
Mr Mancini: Mr Callahan would like to take the floor.
Mr Callahan: I find it strange that Mr Winninger is asking the questions he's asking, because as I recall in the election, he and his party were behind full tort legislation.
Mr Kormos: You've got it, and it still is.
Mr Callahan: In any event --
Mr Gilby: That's why I voted for them, anyway.
Mr Callahan: That's why a lot of people voted for them. But I'd like to ask you -- you talked about brain-injured people. Can you tell me, from your experience, how many facilities there are in the province of Ontario to treat brain injuries?
Mr Gilby: For services like Dale Services, of which I'm the chairperson, there is the one in London, there is one in Kingston, and I believe there's the one in Hamilton. There are about four.
Mr Callahan: All right. Fairly limited.
Mr Gilby: Yes.
Mr Callahan: So it's going to require this government to come up with a significant amount of additional facilities. Do you think that their changes in the long-term care provisions are going to help these people?
Mr Gilby: They're not going to help them if they don't understand what their rights are and don't have any opportunity to ascertain what their rights are, no. This legislation, without effective representation, is useless.
Mr Callahan: I'm more specifically concerned about the question of approximately $100 per day. That will not deal with a person who has a serious brain injury.
Mr Gilby: Yes, the $3,000 a month. You will not get attendant care taken care of for that kind of money. They will be institutionalized.
Mr Callahan: Okay, the final question --
The Chair: Mr Tilson.
Mr Callahan: Oh, now, come on.
Interjections.
The Chair: Mr Tilson.
Mr Tilson: Mr Chairman, thank you. I'd like to ask the parliamentary assistant to comment on Mr Gilby's second major concern, and that is the issue of fatality, the illustration particularly, which I think is an excellent example, and what his ministry plans to do about resolving that unbelievable discrepancy.
Mr Owens: Which case was this?
Mr Gilby: The tab under "Fatalities"; the three examples that I gave.
Mr Tilson: If he can't, perhaps Mr Winninger could comment on it. I'm just interested in what the government plans to do with an issue that I think is quite real and quite a concern to the people of Ontario.
Mr Winninger: I think the protocol with --
Mr Harnick: This is like a ping-pong game here.
Mr Tilson: Whoever wants to answer it.
Mr Harnick: Somebody should justify this government position.
Mr Owens: I would ask ministry staff to respond.
Mr Harnick: Now it's staff, passing it off to the ministry staff.
Mr Mancini: It's a political decision.
Mr Tilson: I'm interested in the political decision.
Mr Harnick: "After you, Alphonse."
Mr Callahan: I think it's a marvellous brief. It points out the real inefficiency.
Mr Tilson: My time is going, Mr Chairman. Let's try the first question, if no one's prepared to answer that one.
Mr Mancini: The parliamentary assistant should give us an answer. He's here representing the minister.
The Chair: This is the gentleman asking the question: Mr Tilson.
Mr Callahan: Let's send it to Switzerland for an answer.
Mr Tilson: My time's flying. Let's try another question.
The Chair: Okay, I've given you that time, adding it on. So just carry on.
Mr Tilson: All right, I'm going to try the other question, because that's the one that's been raised more frequently; that is the issue of the complexity of this legislation and what the innocent accident victim is going to do. You've taken away the whole issue of the legal people, and you've explained all that. The question is -- and this has been raised in almost every delegation that has come forward, and Mr Gilby has certainly made an excellent presentation on that point -- who is going to provide the legal counselling to the innocent accident victim?
Mr Owens: In terms of the advocacy question, there are a couple of things that will happen. First of all, as Mr Winninger indicated this morning, the Advocacy Commission is in the process of being set up. The Substitute Decisions Act has been passed.
The second leg of this answer is that the ministry is studying ways to provide advocacy to victims, which may or may not include --
Mr Callahan: You guys are out of business. That's it. You're done; you're out of business. They're going to have advocates do this.
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The Chair: Wait a minute.
Mr Callahan: Sorry, Mr Chair, I was just getting back a few of the seconds --
Mr Owens: We are entertaining submissions through various advocacy organizations such as ARCH, and the best system will be worked out.
Mr Tilson: Quite remarkable.
The Chair: I'm sorry, the time has run out.
Mr Tilson: I thought it might.
The Chair: I'd like to thank you for coming before this committee.
Mr Harnick: A point of order, Mr Chairman.
The Chair: Okay, a point of order.
Mr Harnick: The parliamentary assistant says that there's more here being worked out. My understanding is that we have --
The Chair: I don't think it's a --
Mr Harnick: No, it's a point of order. I want you to hear it to the end and then rule. The least you could do is give me the courtesy of listening till you rule me out of order.
The Chair: Okay.
Mr Harnick: The fact of the matter is, we are here examining Bill 164. We're also here examining the regulations. Now I hear the parliamentary assistant telling me that there's more coming and there's more being worked out. What's going on here? Do we have the bill and the regulations in front of us? Are there more coming? What's going on here, Mr Chairman?
Mr Winninger: Are you writing the rules of order, Charles?
Mr Harnick: What's going on here? I thought we had everything in front of us. Now I hear from the parliamentary assistant that there's more coming.
To me, that's a very valid point of order. What are we going to about this, Mr Chair? Are we going to hold the bill up and wait till the rest of it comes so that we can resume these deliberations?
The Chair: For one thing, we're dealing with the bill, not with the regulations.
Mr Harnick: The minister certainly laid the regulations before us and the minister in his speech spoke extensively --
The Chair: Okay, I'm going to rule on that --
Mr Harnick: Let me finish.
The Chair: No --
Mr Harnick: You just raised the regulations. Surely --
The Chair: You're debating with the Chair.
Mr Harnick: No, surely I have a chance to respond. The minister made a speech and referred to those regulations. Is there more coming?
The Chair: Okay, we are not going to debate it. We have other witnesses coming forward. If you want to discuss this with the Chair after and with the parliamentary assistant, fine.
Mr Harnick: We heard what the parliamentary assistant --
The Chair: Okay, I excuse you, sir, and thank you for coming.
Mr Gilby: Thank you, and I hope that more than lipservice will be paid to these comments.
Mr Callahan: I hope so too, but don't hold your breath.
WILSON, WALKER, HOCHBERG, SLOPEN
The Chair: The next group to come forward is Wilson, Walker, Hochberg, Slopen.
We got a call this morning that the London Chamber of Commerce has cancelled out, so this is why we're going to the next group.
I'd like to welcome you before the standing committee on finance and economic affairs. We have one half-hour.
Mr James H. Cooke: My name is James Cooke and I'm an associate member of the firm of Wilson, Walker, Hochberg, Slopen, a firm that represents persons disabled as a result of injuries in the workplace through slip and falls, product liability, medical malpractice and automobile accidents.
Although our clients come from a varied background, the one thing they have in common is that they have experienced a traumatic event in their lives and for the most part they are in a very vulnerable state.
Our role as lawyers is to make our clients' lives whole again after a very traumatic event. As lawyers, we are there to ensure that they are expertly represented and that in making their claim they stand on an equal footing with Ontario's large private insurance companies.
I'm also, as many of you know, related to Dave Cooke, who's my brother and a member of the Ontario government. As difficult as it is for me, as a lawyer representing disabled persons I must oppose both the proposed reforms and the current system that is now in place.
I am not going to go through a lot of what my very able colleagues have indicated are the problems with this legislation. I'd like to focus on one specific area and that is the question of equality of power between victims of accidents and private insurance companies, something which I think is a very serious flaw both in the current and proposed systems.
Automobile insurance was originally created by individuals who are able to afford automobiles but require protection from the potential devastating result of being negligent in an automobile accident and finding that they're liable to an innocent victim for a large sum of damages. When compulsory automobile insurance was introduced, it was recognized in Ontario that all victims of accidents should have access to a stable and large pool of funds to compensate them as a result of someone else's negligence. Any proposed system of auto insurance can protect the negligent driver. Provided that there is a pool of funds which is available to him to compensate a victim, it really doesn't matter what system is in place. The only problem with insurance and insurance reform is ensuring that victims are adequately compensated.
In my respectful view, there is no public interest in a system of automobile insurance which merely protects the so-called right to drive and sacrifices the goal of adequately compensating innocent victims. The goal, especially of this government's automobile insurance reform, should be a system of adequate compensation that makes the victim whole within a system of insurance available to responsible driving adults. No system of automobile insurance will be affordable to all persons. That's simply a fact of life, as no automobile is affordable to all persons.
As a lawyer, I'd like to explain to some of you who may not be fully aware of what it takes to prosecute a claim on behalf of a victim of any tort, but especially a motor vehicle accident. What is required is, first of all, competent medical specialists to assess a victim's injuries. These specialists are often orthopaedic surgeons, psychiatrists, neurologists or neuropsychiatrists.
Secondly, these experts often are required to prepare detailed medical reports after a detailed medical examination. Those reports are then used as evidence in court proceedings or hearings before, under the current system, mediators or arbitrators.
Thirdly, rehabilitation specialists are required in order to assess the future potential of the accident victim in the workplace.
Finally, especially under the proposed system, an economist or actuary is required in order to put some numbers to the proposed or the potential economic loss of the victim.
Without these tools -- without specialists, without medical reports and without the assistance of economists -- the victim of the accident cannot and will not be properly represented.
Lawyers have a very significant role to play in the representation of innocent accident victims and at-fault accident victims under the current and proposed system. Unfortunately, one of the things the lawyers have to do is deal with the myriad of regulations under the no-fault benefits schedule, under the former schedule C of no-fault benefits and under the proposed no-fault benefits schedule.
I've had to deal with all three and still do, and I must frankly say that the worst of the three is the proposed no-fault benefits schedule. It is a 67-page regulation which I can honestly say I've read for the 11th time today and I still don't understand it, and I've been practising law for seven years. I have colleagues of mine in my firm who have practised law for in excess of 20 years and they can't understand the regulations at all. It is impossible to expect that any layperson will be able to understand the proposed regulations.
There is also in place, and will be preserved, a complicated dispute resolution system with uncertain limitation periods which require consultation with lawyers.
Finally, under the proposed system there will be a proposed $15,000 deductible from non-pecuniary damages, which requires a significant input from a lawyer as a victim must be advised whether it is economically justified to bring a lawsuit against the tortfeasor.
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Lawyers are able to assist their clients through the proposed regulatory nightmare. I hope they will. Perhaps after 20 readings of the regulation, I might finally understand it. They are able to advise their clients of the advisability of bringing a claim for non-pecuniary damages. Most importantly, under the former system lawyers were able to financially assist innocent victims with their disbursements and legal costs pending the resolution of the tort action.
Under the current and proposed system, I would like you to imagine the current or any Ontario government decertifying every single bargaining unit in Ontario and outlawing permanently trade unions. Former members of trade unions would become, in effect, powerless against what are typically large and powerful employers. In my opinion, the current and proposed system of insurance reform has decertified victims of accidents.
The plain truth of the matter is that it is not economically justifiable for lawyers to represent victims or for victims to retain lawyers under the current and proposed system. Whereas under the former tort system the cost of prosecuting a claim would be paid out of a lump sum award of damages and costs, there will be no pool of capital to fund the costs of prosecuting a claim on behalf of innocent accident victims under the new and current system.
In those circumstances, the odds are stacked against innocent victims. Limited periodic payments set at an arbitrary level and made in fewer cases can't possibly pay for the significant capital outlay required to properly represent innocent victims of accidents. Lawyers being businessmen, and practical businessmen I hope, will no longer fund these disbursements because they risk never being compensated for their capital outlay in the event that the award cannot cover the cost of disbursements.
Non-pecuniary damages, under the old tort system, were typically a very small component in the overall damage award in respect of the clients I represented who were for the most part very seriously injured and permanently disabled from the workplace. Now, with an arbitrary $15,000 deductible in respect of the personal damage award and a $5,000 deductible in respect of the Family Law Act award and the outright prohibition of making any claim for economic loss against the at-fault driver, it will no longer be economically justifiable to represent most victims of accidents.
Lawyers, my colleagues in Windsor, are already leaving this particular area of practice and entering other areas of practice which are economically justifiable both from the lawyer's point of view and from the client's point of view. Even those victims whose non-pecuniary damages exceed the $15,000 deductible -- and that is a matter of guesswork in some cases -- will not obtain proper representation, as the return on the required outlay cannot possibly be justified from the client's point of view.
In other words, a client who may be entitled to a non-pecuniary award of approximately $25,000 will go unrepresented as an award of $10,000 cannot possibly cover the disbursements and legal fees which must be incurred in order to collect that amount. Insurance companies are going to know this, and it is my view that the insurance companies are not going to be inclined to settle these borderline claims, as many in the government and those who support the legislation have indicated.
The sad truth is that under the current and proposed system most innocent victims are going to go unrepresented, or if they are represented, they will be represented by laypersons or persons claiming expertise in this area without having the formal and important training that lawyers have. In effect, they will be left, metaphorically, to collectively beg, as are workers who are non-unionized, for benefits from a large, private bureaucracy whose only goal is to maximize their employer's profit.
Under the former tort system, despite all its faults, and I must say many of them were administrative and the fault of the government itself, both the former and the current government and the federal government -- ie, inadequate numbers of judges and court staff -- the court was a level playing field between the innocent victim and a large insurance company. The skills of the defence counsel and the plaintiff's counsel were basically the same, and with the access to a lawyer's floating loan account which could fund disbursements, they were fairly equal in terms of the amount of money they could spend on prosecuting a claim as well.
Under the proposed and current regime, the level playing field is gone. Now victims are going to be left on their own. They are left on their own and have been disempowered. Metaphorically speaking, this government and the former government have decertified accident victims.
In conclusion, one of the stated goals of this government has been to redistribute power more fairly in society. The government has taken many concrete steps towards that laudable goal, and I'm thinking in particular of the labour law reforms and other reforms in the areas of pay equity and employment equity. In many instances, the government has been unfairly criticized by what I would call career politicians unwilling to accept the legitimacy of the current government.
As I have stated in my written statement, I do not question the motivation of this government in establishing the proposed reforms. I think there's a genuine belief that these are an improvement from the current and former system. On paper, they may appear to be a substantial improvement from the current plan. However, the sad fact is that this plan does not live up to the government's goal of redistributing power more fairly in society. The proposed plan disempowers one of the weakest groups in society, innocent victims of accidents.
I ask all the members of this committee -- and it doesn't appear that you can, but if you could -- to put aside your partisan differences and cease using victims of accidents as political pawns. I ask you to sincerely consider the valid criticisms of the current and proposed plan which have been put forth by my colleagues and myself, and I especially wish to address the members of the current government, many of whom I am personally acquainted with. I ask, I beg of this government to live up to its potential and to meet its goals and restore the level playing field to victims of accidents.
Mr Mancini: I hardly know where to start. I'd like to say to Mr Cooke that I deeply resent your accusation that some of us are using accident victims as political footballs. The Ontario motorist protection plan was introduced well before the election, and the electorate knew what the plan was and had a choice to decide whether or not to support that plan and the political people who introduced that plan, as Mr Nigel Gilby said just before you sat down.
He voted for that government because it made three specific promises on automobile insurance. They promised government-owned automobile insurance, and they broke that promise, Mr Cooke. They promised full tort, and they broke that promise, Mr Cooke. They promised lower automobile insurance rates, and they broke that promise.
If you're concerned about people not keeping their political promises and if you're concerned about people using accident victims as political footballs, I'd advise you not to look in this direction. Our policy, whether you like it or not, was in place before the election, and you had the choice before the election to decide whether or not you agreed with that plan. You and other people like you listened to promises that you liked, and those men and women sitting across the aisle from us didn't deliver.
Mr James H. Cooke: Do you have a question, Mr Mancini?
Mr Mancini: Yes, Mr Cooke, there is a question.
Mr James H. Cooke: I wish you wouldn't make a speech on my time. I've taken quite a bit of time to prepare this statement, and what I don't need is some pathetic attempt by a member of a failed and incompetent government to justify a sellout to the insurance companies that, I might add, nearly resulted in your losing your seat.
Mr Mancini: I might add, Mr Cooke, that --
Mr James H. Cooke: We've all made our judgement on your government, Mr Mancini. Would you please ask me a question or let somebody else ask me a question.
Mr Mancini: Mr Cooke, you used your time the way you wanted to. The Chair has allocated me a certain number of minutes, which I will use in the manner that I see best fit.
Mr James H. Cooke: The people watching this committee and listening to you, Mr Mancini, are fed up with your type of politicians, and this is exactly what I'm talking about. You're trying to make political points off me, sir. Why don't you just ask a question?
Mr Mancini: Mr Cooke, you are the one who has tried to make all the political points. You've delivered the most political brief of any group, individual or organization that's been before this committee, and you are the person in your brief who accused members of this committee of using accident victims as political footballs. You made that accusation. I have not accused the government members of that. I was not going to bring this matter up until you accused me and my colleagues of that particular action. You should be ashamed of yourself.
The Chair: Mr Mancini, I'm sorry, don't badger the presenter.
Mr Mancini: Don't badger the presenter?
The Chair: You are.
Mr Callahan: I didn't see you intervene when he was badgering the member, Mr Chairman. Be independent. You're supposed to be independent.
The Chair: Okay, go ahead. I'll let Mr Mancini carry on here. You've got one minute more.
Mr Mancini: He has sat there and insulted members of the opposition since the moment he sat down, and if he thinks he can use this platform to protect his brother and his government, he's sadly mistaken.
Mr James H. Cooke: Oh, that is pathetic. You should be ashamed of yourself, Mr Mancini.
Mr Mancini: You should look in the mirror, Mr Cooke.
Interjection: It's more than most members do to come here and say what he did.
Mr James H. Cooke: You should be ashamed of yourself and you know what, Mr Mancini --
Mr Mancini: Mr Cooke, in your time --
Mr James H. Cooke: Will you please let me finish, sir.
Mr Mancini: In your time, Mr Cooke --
Mr James H. Cooke: Sir, I'm paying your salary to be down here. Would you please let me finish.
Mr Mancini: You made not one mention of the road safety program that the government promised; you made no mention of that.
Mr Cooke: I'm not going through your litany of questions, Mr Mancini.
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Mr Mancini: You made not one mention of rate increases that people can't afford to pay; you made not one mention, Mr Cooke, of the increase in rates for senior citizens, of the increase in rates for women, and all of these other things that are affecting people. All you wanted to do was accuse the opposition of badgering or not looking after accident victims. That's what you used your time for.
Mr James H. Cooke: In answer to your question, Mr Mancini, that great quote from Shakespeare, "Methinks he doth protest too much."
Mr Mancini: You're the one who protested too much. We read your brief, Mr Cooke.
The Chair: Mr Harnick.
Mr Harnick: Mr Cooke, I appreciate your coming here today. It was a very courageous thing that you've done in light of who your brother is.
Interjection: Particularly courageous, I'd say.
Mr Harnick: Quite frankly, I like your brief and I think there's a lot of food for thought in this brief. What I want to talk about -- because you are obviously a person who the people sitting opposite me may listen to and may have some respect for -- I want you to explain, if you can, this idea of melding tort and no-fault.
One of the things -- and I'm accused of it every day by my friends opposite because I also make a living the same way you make a living, helping innocent accident victims who've been involved in car accidents. I try to get them as much money as I can to put them back in the position they would be in had they not had the accident. My friends think that what I'm doing for innocent accident victims is somewhat illicit; it's wrong to try to get them back to where they might have been had the accident not happened. They think that because I believe in that system, you can't have a belief in no-fault at the same time, that you can't have a belief in melding these two functions and at the same time ensuring that the innocent accident victim has the opportunity to claim everything he lost.
They won't listen to me and they won't listen to any of the other witnesses. Maybe they'll listen to you if you explain to them what this is really all about.
Mr James H. Cooke: I read and believed in the then opposition New Democratic paper called Highway Robbery. There was a very nice metaphor used in there, and that is that you don't get caviar if you're only willing to fork out enough money for hot dogs or something to that effect. I know it talked about groceries.
What Highway Robbery proposed was a no-fault and tort system combined that provides adequate compensation not only to innocent victims but to those victims who are also at fault because, after all, the victims who are at fault require some sort of stabilization in their lives as well. They too, while they may have been at fault in the accident, are victims of a tragedy in their lives. No one is suggesting that at-fault drivers are in any way intentionally trying to cause an accident. They go out there and something terrible has occurred and, as a result, their lives are destroyed as well.
I might add, as a representative of accident victims, I very often represent people who are at fault. Just last year, before Christmas, I spent an entire day driving out to Chatham representing a young hockey player who, unfortunately through his own fault, got seriously injured in an accident as a pedestrian. I represented him before the Social Assistance Review Board, I might add, at no cost to him.
I think most personal injury lawyers are concerned about adequately compensating all victims of accidents. But the fact is that innocent victims of accidents shouldn't have to pay in order to adequately compensate at-fault victims of accidents. As Highway Robbery stated, if it's explained in a rational and calm fashion, as many of the policies of the current government have to be explained, people in Ontario will be willing to pay increased benefits for more adequate coverage, just as we're willing to pay more for better-tasting groceries, as they said in Highway Robbery.
Mr Harnick: Wasn't Bob Rae the author of Highway Robbery?
Mr James H. Cooke: Yes.
The Chair: I'm sorry, I've got to cut you off. Mr Owens.
Mr Harnick: Can we file Highway Robbery as an exhibit to this committee? May I do that, Mr Clerk?
Mr Owens: I'm being interrupted.
Mr Harnick: Mr Clerk, may I do that?
The Chair: You can file it up here with the clerk.
Mr Harnick: I'd like to file Highway Robbery, submissions to the Honourable Mr Justice Coulter A. Osborne, commissioner, presented by Bob Rae and Mel Swart, MPPs representing the New Democratic Party.
Mr Owens: Mr Chair, I'm being interrupted.
The Chair: Mr Harnick, will you give it to the clerk?
Mr Harnick: It's got the New Democratic logo right there.
Mr Winninger: On a point of order, Mr Chair: I hope this doesn't cut into the government's time.
Mr Harnick: You can have all the time you like.
The Chair: Mr Owens.
Mr Harnick: Take all the time you like.
Mr Owens: I'm being interrupted, Chair.
The Chair: Mr Harnick.
Mr Harnick: Yes, sir.
The Chair: You know, I came close this morning to calling a recess and having a little talk with you.
Mr Harnick: Close only counts in horseshoes.
Mr Owens: I'm being interrupted, Chair.
The Chair: Go ahead, Mr Owens.
Mr Owens: Thank you, Chair.
I'd like to thank you for your presentation. You presented an interesting perspective this afternoon: counsel as businessperson, rather than the heroes that some of my friends opposite want to portray personal injury counsel as. My question to you, sir --
Mr Harnick: Pardon me. Who said that?
Mr Owens: I'm being interrupted.
Mr Harnick: On a point of privilege, Mr Chairman.
The Chair: What's your point of privilege?
Mr Harnick: My point of privilege is that I have been maligned by the parliamentary assistant and I want him to withdraw those last comments.
Mr Mancini: Mr Chairman, on the same point of order: I have been sitting in these hearings since the first moment that these hearings commenced. I cannot recall one member of the opposition even insinuating what the parliamentary assistant has stated, and I would support my colleague and ask him to withdraw that comment.
Mr Winninger: Mr Chair, on a point of order: Yesterday --
Mr Harnick: Will you deal with my point of personal privilege first? I raised the point of personal privilege and I want you to rule on it first. You can't start doing something else. I have the floor.
Ms Haeck: A point of order outweighs your personal privilege.
Mr Harnick: No, it doesn't.
Ms Haeck: Yes, it does.
Mr Harnick: No, it doesn't.
Ms Haeck: A point of order, please.
Mr Harnick: I want him to withdraw that remark.
Ms Haeck: A point of order.
Mr Winninger: Point of order.
The Chair: I haven't got the record in front of me to read --
Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): Did you withdraw yours yesterday, Charles?
Mr Harnick: Which one?
Mr Johnson: The liar one.
The Chair: Wait a minute, Mr Johnson.
Mr Harnick: You didn't ask me to, because you obviously agreed with me.
Mr Johnson: I said it was unparliamentary.
The Chair: Turn the mikes off. A recess for five minutes.
The committee recessed at 1517 and resumed at 1526.
The Chair: Mr Harnick.
Mr Harnick: Go ahead and call me all the names you like. I'm withdrawing my point of privilege.
The Chair: I listened to the tape. Your name wasn't mentioned. It might have been eye contact.
Mr Harnick: Oh, I know my name wasn't mentioned. He was looking right at me, that's right.
The Chair: Okay, eye contact. Thanks a lot. We can carry on.
Mr Harnick: For all my transgressions, I ask forgiveness.
The Chair: We've got five minutes. Mr Owens.
Mr Owens: Just in terms of your comments respecting the courtrooms as a level playing field, how would you see them as a level playing field, when under the former system our calculation is that somewhere in the neighbourhood of only 5% of those who qualify break through the threshold and 95% of victims don't qualify, and those who actually get into court may or may not win? So how is that a level playing field, and why would you not describe that as a minefield?
Mr James H. Cooke: I am not suggesting that the OMPP was a level playing field. In fact, for the majority of innocent accident victims, it wasn't. What I'm suggesting is that the system that was in place before OMPP was a level playing field, and when clients are expertly advised and capable lawyers are able to look at the facts of the case, they are more than able to assess the degree of fault and expertly advise their clients as to what they can expect in the courtroom.
When you're facing a lawyer or a firm, I might add, without bragging, of our calibre -- I can tell you that our firm is on a par with any firm that defends insurance companies from legitimate claims of innocent accident victims. It's the only place where victims are going to get a fair hearing, because they're represented by people who equalize, just the way that unions equalize workers with their employers.
Mr Owens: In response to a question from Mr Tilson with respect to advocacy, I indicated that the government is currently entertaining submissions on how advocacy can be given to those in the system as they work their way through. Do you have any suggestions in terms of the kind of language you would like to see in the regulation with respect to advocacy? Do you see the reg needing to be more directive or do you see the reg needing to be more general in nature?
Mr James H. Cooke: I think that if you're going to try to regulate the advocacy system, you should talk to the victims of industrial accidents, because if you talk to any victims of an industrial accident and you ask them if they'd rather have me represent them or the worker adviser, or have any other lawyer who represents victims of accidents represent them as opposed to the worker adviser, 99% of the time, when they're making an informed decision, they will choose a lawyer.
If you attempt to regulate the advocacy system, you'll regulate it out of existence and accident victims will be even worse off. Lawyers are self-regulated. We've been doing this for a long, long time and we don't need more regulation. Members of the public have been crying out for less regulation of their private lives, and I've urged the government not to interfere with what is a sacred relationship between a client and her lawyer.
Mr Owens: How do you propose the system deal with those victims who lose in court?
Mr James H. Cooke: Hopefully, you will retain a substantial degree of the accident benefits you already have, but if a victim is innocent and has been injured as a result of someone else's negligence, he ought not to lose in court. I can't speak hypothetically. If someone should have won in court and has lost, there are other recourses as well. But innocent victims, to my knowledge, do not lose in court when I represent them.
The Chair: Thank you for appearing before the committee today. I know your brother sometimes -- the name Cooke gets hostility in the House also.
Mr James H. Cooke: If I could add one thing that I've told the media here, this has nothing to do with my brother. I'm not here as Dave Cooke's brother; I'm here as a representative of innocent accident victims.
The Chair: Yes, I understand.
Mr James H. Cooke: I don't want anybody to use this against my brother who, I think, has done an excellent job.
The Chair: Okay, thank you.
The next group to come forward is the Essex County Chiropractic Association.
Interjection.
The Chair: What's that? Can you call them in?
Interjection.
The Chair: They're not here now; they're downstairs.
Interjection: Let's take a short recess.
The Chair: Okay, we've got time because one group didn't come. We'll take a 10-minute recess.
The committee recessed at 1533 and resumed at 1540.
ESSEX COUNTY CHIROPRACTIC SOCIETY
The Chair: Our recess is over and I see that we have the Essex County Chiropractic Society present before us. I'd like to welcome you to this committee. It's been awful warm in this room this afternoon, so that's why we've got the door open. We have one half-hour. In that half-hour, if you can leave some time at the end of your presentation for members of the committee to ask questions, you may begin. Please identify yourselves for the purposes of Hansard also.
Dr Madeline Crnec: Good afternoon. My name is Dr Madeline Crnec. I am a chiropractor here in Windsor and the immediate past president of the Essex County Chiropractic Society. With me is Dr Jan Kempe. He also practises in Windsor and he is the chair of the Ontario Chiropractic Association insurance committee. Many relevant cases pass by his desk every day in the course of his duties in that position.
The Essex County Chiropractic Society is a regional branch of the Ontario Chiropractic Association and represents the chiropractors here in Windsor and in the county of Essex. In this brief submission, the society wishes to address the proposed auto insurance reforms found in Bill 164.
The society is encouraged by several of the proposals therein which are consistent with the multidisciplinary approach fostered in the new Regulated Health Professions Act, 1991, specifically section 44 and section 47 of the statutory accidents benefits schedule which deal with initial and ongoing certification of disability, respectively. These proposals are further supported by the recommendations made by the Osborne inquiry into motor vehicle accident compensation in 1988. Those recommendations are attached to the submission you've been given.
These proposed changes would rectify a great injustice which has discriminated against accident victims who have chosen chiropractic treatment as a right, but who were required by insurers to obtain medical certification for benefits. The hardship arose if, and oftentimes when, the medical certification for chiropractic treatment was unjustly withheld.
It seems imminently more appropriate that the capacity to issue disability certification should encompass chiropractors, dentists, optometrists, psychologists, as it is now proposed, allowing for a more accurate evaluation of these specialized areas of health care.
The society is also in support of the multidisciplinary approach being encouraged in Part VIII, the rehabilitation benefits, section 33, "case management related to the design and coordination of a rehabilitation plan." This would allow, again, a multidisciplinary approach to rehabilitation.
It is now well documented in many fields that soft tissue and joint injuries most commonly sustained in auto accidents respond most effectively to active therapy and to early rehabilitation measures. This coordinated approach is not only cost-effective in the long run for the insurer, but will serve to limit the suffering and loss of quality of life and productivity for the accident victim. Increasing emphasis on this aspect of care must result in a win-win situation for both insurer and accident victim.
A concern which has been raised by the members of this society, as well as in other circles of our profession, is the issue of collateral benefits as it impacts on chiropractic care. Chiropractic is unique in the medicare scheme of Ontario in that there is a modest annual dollar ceiling placed on the services provided. Patients who are involved in auto accidents must exhaust their annual allotment for chiropractic care before the insurer pays for the full fee for service.
This significantly disadvantages patients who are accident victims who, once recovered from an accident injury, develop some other uninsured problem for which no medicare coverage remains. In effect, this allows the chiropractic patient only one problem a year, including the possibility of an auto accident.
Considering the percentage of Ontario accident victims who seek chiropractic care and considering the unique financial arrangement that chiropractic patients have with OHIP, it is our contention that it would be a modest financial impact -- maximum allowed under the OHIP plan is $220 a year per patient -- and much fairer to the insured if the insurer paid the full fee for services for auto accident victims. This would leave the OHIP chiropractic coverage intact for other required services throughout the year.
In conclusion, as health professionals who see accident victims on a daily basis, often over a significant period of time, we are aware of the injustices and hardships that have been created by the current Ontario motorist protection plan. It is the society's impression that several of the proposals in Bill 164 address these injustices, and we would encourage a closer examination of one more.
We are heartened by the increased accessibility to the courts. Perhaps we more than any other health care provider see people whose lives are affected, whose lifestyles are affected, whose quality of life is affected by the pain and suffering related to soft tissue injury. Soft tissue injury is very hard to document and is not well compensated for in the current system, and not having access to courts did, I think, create quite a hardship for many of our patients.
The final paragraph is only our introduction that I put at the end, and you've heard that, so this completes our presentation at this time. We are very anxious to answer any of your questions.
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The Chair: We have seven minutes per caucus; Mr Tilson to start off.
Mr Tilson: I appreciate your remarks, how this deals with your particular industry. One theory that has been put forward dealing specifically with the $15,000 deductible is that all kinds of games will be played, first to qualify for the liability, and second, to qualify for accident benefits, whatever they may mean. We're having lawyers and insurance companies and probably yourself coming forward and saying, "What in the world do these pages and pages of regulation mean?" You may wish to comment on that.
One of the theories that's been put forward is that to try to reach this magic figure for whatever purpose, people are going to be encouraged to seek more and more treatments. In other words, this could be a great boon to your industry. To demonstrate a higher degree of pain and suffering, whether for litigation or whether for benefits, you'll get all kinds of business, because lawyers -- and whether it's the advocates we're now hearing about, this new advocacy group that's going to come forward -- people will be recommending that the innocent victims go and see people like you to qualify for those benefits or to qualify for the $15,000 deductible. Have you any thoughts on that? Do you agree with that? Is that a genuine fear?
Dr Jan Kempe: Under the current regulations, there is no provision for an insurer to monitor what a chiropractor is doing, as far as it relates to the efficacy or the necessity of care.
Mr Tilson: Don't misunderstand me. I wasn't challenging the efficacy of your industry.
Dr Kempe: I think overtreatment may at times be a legitimate challenge. It's my understanding that under these proposed regulations, there will now be some mode for insurance companies or for insurers to ask for or demand an independent opinion, either from another chiropractor or from an MD. I would think that would go a long way to precluding that type of eventuality.
In the Ontario Chiropractic Association we have, over the last number of years, formed what we call an insurance consultants' committee. Their function is solely to intervene in such situations and to judge if one of our members or even one of our non-members might be thought to be overtreating a patient and to make subsequent recommendations.
Mr Tilson: It's going to become awfully tempting, whether it's the advocate or the lawyer or someone else who's trying to assist these people, for the chiropractor who's going through all these difficulties that you're describing. But meanwhile, you're going to get all kinds of business -- I really believe that -- because of this terrible $15,000 deductible issue. I guess that gets to my real question: What do you think of the $15,000 deductible, and not necessarily just from your own industry?
Dr Kempe: I have personal opinions on that. I don't know if they represent society's opinion. Probably $15,000 deductible is a moderate and reasonable scale compared to what it was before the OMPP as we now know it.
Mr Tilson: You support it?
Dr Kempe: Yes.
Mr Tilson: I'd love to have time to debate it with you, because I can tell you that the person who goes all the way to court and receives damages of $20,000 or $25,000, pays his or her legals and comes away with $5,000 -- it's not fair. The innocent accident victim is what we're talking about, sir. I'll tell you that when people suddenly realize what this legislation is doing with this particular claim -- it's penalizing the innocent accident victim.
I respect the concern you have for your industry, but I can tell you that on that last point I've got a great deal of difficulty. I don't see how anyone -- in fact, you're the first person I've heard, other than this group, who comes along and supports the $15,000 deductible. I haven't heard one group come forward to this committee and say that. If it is your personal view, that's fine. I hope it's not the view of your association, because I can tell you that you're all alone. Those are my questions.
The Chair: Before I go to Mr Lessard, did you get a copy of the brief that your association put in, Mr Taylor in Toronto with his presentation? Did you get a chance to see it?
Dr Kempe: I'm aware of their brief and I have a copy. I can't say I've read it.
The Chair: I know it's hard to come across with all the answers, so feel comfortable there if you don't have the answer.
Dr Kempe: I'm not uncomfortable.
The Chair: Okay, fine.
Mr Lessard: Thank you very much for your presentation. We certainly appreciate your taking the time out of your schedule to appear and make your remarks before our committee today. You're fairly critical of the OMPP in your brief, and you refer to the changes in this legislation -- and this is to quote your submission -- that they "rectify a great injustice," and also you refer at the end to "injustices and hardships created by the current OMPP."
Other people have come before us and have used examples of cases that they've run into in their own businesses to either criticize or support this proposed legislation. I wonder if you can give us some examples of situations that you might have run into in your own practice that demonstrate to you those injustices that you're referring to.
Dr Kempe: I see a number of problems that arise between the insured and insurance companies as they relate to chiropractic, certainly on a weekly if not a daily basis. The most recent one that was referred to me within the last week was an instance of a chiropractor treating a patient who had attended him as a primary contact practitioner. The patient was doing well. The patient was satisfied. The chiropractor was satisfied. The rehab counsellor, out of necessity, had to attend an MD to get the various certifications signed.
As it turns out, the rehab counsellor and the medical doctor, without consultation with either the patient or the chiropractor, determined on a prescribed set of services that the chiropractor should render and it is leading to disagreement, of course, between the rehab counsellor, who thought he was being perfectly reasonable in his duties, and the patient, and of course is causing some tension between the two providers, both of whom attend the patient.
Mr Lessard: I guess what we're really talking about is the best course of treatment for the person who's been injured. There may be some disagreements, I suppose, with respect to that, depending on what profession you're in. I wonder whether, in that example, what you're referring to really is a course of treatment that seemed as though it had been begun and then got changed. Is that the example you're referring to?
Dr Kempe: It was changed without consultation with either the practitioner or the patient, the accident victim. In this case, it was changed by the rehab counsellor, again, I don't think with any malice, and an MD who was not really cognizant of the patient's complaints at that time.
Mr Lessard: What sort of impact do you think that might have, changing the procedure or the treatment after it had been begun, or maybe halfway through?
Dr Kempe: Of course, the worst consequence is that the chiropractor and the patient come to the agreement that really they can't continue. If it's been prescribed by another person, without consultation with either one of them, it leads to interrupted care and the patient being sort of steered from pillar to post and to different types of treatment, all of which, again, begin at the beginning and all of which begin with an expensive workup and reports and the like. I think it's an expense, certainly an unjustified expense, to the insurer. It's an inconvenience to the patient and probably prolongs his treatment regime, and it causes undue stress to both the MD and the chiropractor.
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The Chair: Ms Haeck.
Ms Haeck: I appreciate your comments. We've heard from a number of organizations and individuals who in fact are involved in rehabilitation. In fact, one of them was the St Michael's Hospital head injury group, who were very much in favour of the multidisciplinary approach, people basically as service providers, health care providers, getting together and working out what in fact the treatment program will be. One of their major supports of all this legislation was the fact that the rehabilitation program happens immediately. I would suppose from your position that that is something you would strongly support as well.
Dr Crnec: It's also something that all the literature strongly supports: the sooner the better.
Ms Haeck: The other concern raised by a group that was here this morning was in relation to standards and guidelines that a certain number of almost fly-by-night rehabilitative services currently do not abide by. Do you have any comments on what you're seeing out in the rehabilitation field and the kind of guidelines you might be giving to the task force that is dealing with the rehabilitation costs?
Dr Kempe: The rehab industry is somewhat new, not as it applies to head injuries, of course, but certainly as it applies to motor vehicle accidents. There are a number of organizations that have been formed in the last year or two, including a committee by our own profession, to determine what we think are reasonable guidelines for the conveyance of rehabilitation to the patient. We're still in the process of setting up those guidelines as they apply to our own profession, and certainly we've taken a very proactive step in determining those and in policing that, but they're not complete. I have a meeting in two weeks' time to continue with that process. As far as they apply to any other profession, I have no comment.
Ms Haeck: I would encourage you also to keep in touch with the task force, because obviously your input will be sought after. Mr Callahan: I'm curious, because I practised somewhat in this field, and under the tort system lawyers were reluctant -- and this is not a slight of your practice -- to use a health professional unless a doctor had prescribed it, because there could always be the argument by the other side that the procedure used was not the most appropriate one and perhaps added to the injury.
I now look at your brief, paragraph 10 of your brief. In your conclusions you say, "It is the society's impression that several of the proposals of Bill 164 address these injustices, and we would encourage closer examination of one more." I gather you're talking about sections 44 and 47. Is that right?
Dr Crnec: That's right.
Mr Callahan: I've looked at sections 44 and 47, and they're going to make the Workers' Compensation Board look like a picnic. I refer to certain things like 47, which you'd need a Philadelphia lawyer to understand: It's got some 20 provisions to it, and after you go through a whole slew of steps -- I hope your profession is not going to have to send out all these notices, because you're going to need forms; your mailing costs will be outrageous. Just when you get to the stage at item (12), it says, "If the insurer and the insured person have not agreed on a health practitioner to conduct the examination within" -- I mean, these all have time limits, and if you miss the time limit, tough luck. So I hope there are advocates out there to help lawyers, because I'm sure they're going to screw up on time limits or the public is going to screw up on time limits. In any event, the one time limit says:
"If the insurer and the insured person have not agreed on a health practitioner to conduct the examination within fourteen days after the insurer received notice from the insured person under subsection (9), the insurer may require the (insert name of appropriate committee established under section 7 of the Insurance Act) to select the health practitioner."
Then we get into, "The committee shall promptly select a health practitioner who, in the opinion of the committee is independent of the insurer and the insured person and has the expertise necessary" etc, etc, etc.
I don't know about you, but I find it interesting, because recently Minister Churley was saying she wanted to put everything into ordinary language. I hope this isn't going to be part of my policy, because I couldn't possibly carry it around; I'd get tennis elbow. But if what the government is trying to do is make things clearer for the public, do you not agree with us that those things would require probably a master's in law? Are you fully cognizant of these draft regulations? Do you know what's in here?
Dr Crnec: I've reviewed it.
Mr Callahan: You've read it. Do you understand it?
Dr Crnec: I don't have a master's in law, so perhaps I misunderstand it. However, we are accustomed to dealing with deadlines; as you well know, WCB is living with them.
Mr Callahan: Yes, and WCB causes you people a lot of problems.
Dr Crnec: They're equal opportunity aggravators.
Mr Callahan: I see. So you have actually read through these draft regulations?
Dr Crnec: Yes, sir.
Mr Callahan: Well, I commend you for it. Did you read them once or twice?
Dr Crnec: It depends on the paragraph.
Mr Winninger: Better than no times at all.
Mr Callahan: My colleague across the floor says, "Better than no times at all." I wonder if anybody over there has even read them. I doubt it.
In any event, you've said it gives you the impression that several of the proposals of Bill 164 address these injustices. Have you got any definitive opinion from anybody that says they do address it? "Impressions" is a rather minor word. It doesn't tell me that you're sure about this; you're a little fuzzy about it. Is that a fair comment? Are you fuzzy about it?
Dr Crnec: My impression with law and regulations in general is that it's very difficult to know how it's going to work until it's up and running. The intent of the proposals, as I have read them, is encouraging to us. The fact that chiropractors will have the ability to issue disability certification with regard to injuries that are appropriately being treated by chiropractors is encouraging to us.
Mr Callahan: So that's the sum total of what this brief is about: that you're encouraged that no longer will an individual have to have a doctor say that it's all right for a chiropractor to examine the patient and therefore have it extracted from their -- what is it, once a month or something, or a certain amount under OHIP that you're entitled to recover? Is that what it's all about?
Dr Kempe: The new regulations have nothing to do with what's extracted from OHIP. I have no recollection of either myself or Dr Crnec saying that that's the sum total of our impression of these regulations.
Mr Callahan: But what I was getting at, to be fair, is that you're coming here today -- and we certainly encourage anyone to come before this committee -- and my reading of your brief and what has been said -- and I don't want to be unfair, and if I'm wrong, please tell me -- is that the highest it's at, your impression is that with the regulations that have been drafted in conjunction with Bill 164, you will now be able to treat an accident patient without the necessity of a doctor's referral.
Dr Kempe: We can already treat patients without a doctor's referral.
Mr Callahan: I appreciate that, but it comes out of their OHIP allocation.
Dr Crnec: It does now.
Dr Kempe: Nothing is changed by these regulations in that vein.
Mr Callahan: It is. What it does, I suggest to you with the greatest of respect, is that it gives you the opportunity to have another source from which to be compensated other than that OHIP access, which you want to reserve, I think it's fair to say, for people for things that might happen to them during the year other than the accident they have. It gives you another access, another fund out of which to recover that money, isn't that right?
Dr Kempe: It's certainly not another fund. We already bill insured's companies. The regulations, as proposed, don't change what you're alluding to.
Mr Callahan: That's not the impression I got from your brief.
The Chair: Mr Callahan, we've run out of time. I'd like to thank you for appearing before this committee and for being able to get here a little sooner than when you were scheduled.
Dr Crnec: We hope this means your day will be a little shorter.
The Chair: Well, we got it extended a little there for a while.
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MARY ELLEN LOCKYER-CHENEY
The Chair: The next presenter is Ms Mary Ellen Lockyer-Cheney. Would you come forward, please. We have 20 minutes, until 4:30, and we have your brief in front of us. Can you leave some time at the end for questions? It looks like it will take 20 minutes to read this brief, or do you have it so that you can go off the top of your head on this one?
Ms Mary Ellen Lockyer-Cheney: I don't intend to read to you the entire brief.
The Chair: Fine. This will all go in the record.
Ms Lockyer-Cheney: In June 1990, my renewal for my automobile insurance coverage came due. Prior to this occasion, I was aware of proposed changes to the Insurance Act. However, I had not been able to obtain any real facts on the changes, nor had I been contacted by a representative of that industry to give me any information regarding this issue. So much for my understanding of the insurance.
Enclosed with my premium notice was one sparse pamphlet, which at best was very vague, but it did tell me that in the event of need, I would never need to concern myself about benefits; in effect, that the new system should run much smoother than the previous system.
Upon my contacting not one, but several people in the industry, I was given answers such as, "We really don't know what is going to happen" or, "It will be okay. Just renew your policy. You need the coverage anyway," types of scenarios.
On August 9, 1990, I found myself eastbound on Highway 401 just east of Toronto. It was at this time that I became the victim of a motor vehicle accident and began to learn first hand just what our new insurance was and, more to the point, was not about.
At the scene of that accident, I felt very victimized and invaded by the apparent injustice and consequences of the negligent person who had hit me and then proceeded to verbally abuse me. However, what I felt at that time was to become very minor-league compared to the humiliation, degradation and victimization I was to feel and continue to experience as a victim of the system of the "new and improved legislation." I was to continue to learn that this following quote, read prior to this legislation, would become a truthful nightmare:
"The government's publicity about its new plan makes it seem as if it is the solution to automobile insurance in Ontario. It is not and will never be. It is a vicious and mean plan, more unkind to accident victims than any compensation plan in existence anywhere."
I, as a victim, am outraged, as I have gradually become aware of the rights not just violated but stripped away.
At no point in any of this process was I offered encouragement, guidance or assistance with any part of my difficulties. In the beginning, I was bombarded with a ridiculous number of forms -- I ask you to judge for yourselves -- because at this point I was barely able to carry out my own personal hygiene, and I was forced to find ways on my own to procure information from my employer, repeated medicals and in duplicate, week after week, just to survive financially.
Imagine yourselves with both hands swollen, blue, numb and encased in braces because they were sprained on impact; a blinding headache brought on by pressure fractures to vertebrae; bulging discs in my neck; a face swollen to the point that my eyes were all but swollen shut, and to be told bluntly to get it done the best way I knew how and within the time criterion or go without.
At a later date, after much therapy and with the prognosis of returning to my former position looking rather bleak -- in fact, the doctors specifically told me at one point to forget about my former occupation and get on with my rehabilitation -- I began at this point to inquire about this issue of rehabilitation and I was told by the adjuster that I would have to wait for the two-year anniversary and that I should continue to seek the therapy, since my OHIP would take care of that for me -- wonderful news to someone who is self-motivated and progressive. At this point I was finding more relief for my pain with the help of a chiropractor and, with the blessing of my doctor, proceeded to do this and found almost instant resistance to payment on the suggestion that OHIP would pay if only I would be satisfied with the services available at the local hospital.
It was at this point that I continued to pursue this issue of rehab through lawyers, MPPs and rehab people, to find that no one could give me a hard and fast answer as to why or when I could access some form of progressive rehabilitation. In effect, I was very much encouraged to become a couch potato for the next two years. I have found no one to date, either in or out of the industry, who can give me any constructive information, let alone factual, regarding rehabilitation. This, in my opinion, is like unto a lottery in many respects.
Please understand that I am sharing with you my personal experiences of the system, and I do not believe that I am alone in my convictions. The industry has proven to me that not only is it resistant to payments but that the delivery of benefits promised is random at best. No, I'm not looking for charity and I never have. In fact, I dislike being dependent on the system for my very existence.
Prior to my injuries I was involved in a career that was very important to me, not just financially but in many of the same ways that I presume your respective jobs are to you. I feel like I'm begging when, every two months, I have to call Toronto to see where my cheque is, only to talk to a no-name, no-face adjuster who tells me that she has no time to look at or through my file and, "Your cheque is in the mail."
Why must I be subjected to such demeaning treatment when I was not at fault to begin with? I am only asking for what you told me I was entitled to when you proposed this system. I am quite certain that all victims, for the most part, have been handed the proverbial soother in the hopes that we will go away. I ask how many other uninformed, unaware victims have gone on to be brutalized by this system. As a victim of the system, I have been forced to learn the hard way that I must be persistent and assertive to get just a morsel of what was promised to me. I have armed myself with a copy of Bill 68 in an attempt to decipher from it for myself what rights to benefits and rehabilitation there are there for me. You tell us in this bill that there's a lifetime cap of $500,000 for supplementary medical and rehabilitation and that the proposed change would have no cap. Well, lovely. Who is regulating this? From my personal experience, I am at the good graces of the insurance industry and the whim of the individual adjuster.
I feel like I'm playing "roll the dice" to see who can give me an answer, regardless of the medical documentation, as to who will decide whether or not I can have what I may be entitled to and how much they'll spend. Any exposures that I have had to rehabilitation have come about initially from my own efforts and resourcefulness. The one example that I choose to give you is this. When a doctor, who by the way is whom the insurance company sent me to, documented for that company that I would benefit from a water exercise program, no one moved on it. When I questioned that adjuster about this, I met with the proverbial bureaucratic stone wall. Until I was forced into being assertive with them, nothing was done.
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I myself researched and contacted facilities in the area that I live in, and when I was referred to someone with a background dealing in injuries and made mention of this to the adjuster, there was much passing of the buck and the response was, "Well, isn't this service available through the hospital?" Is this the kind of response I should have met with? I think not.
When it was finally agreed upon that I could use this service, I was asked to go ahead and procure this. The policy of that facility is membership, and it is billed annually. This too was agreed upon. Out-of-pocket I paid this fee and, as instructed, presented the bill to my adjuster and was immediately told that the company would not pay for a year in advance but would pay quarterly. I received one quarterly payment at that time and waited an entire year to be reimbursed. It was not paid until I had placed numerous phone calls, written requests, and solicited the advice of a lawyer.
During this process, I was told again in Toronto that she was too busy to look through my file for the original receipts and that I would need to provide her with proof. It was at this time that I was also reminded just how large my file was. I did not appreciate, nor do I feel that I as an innocent victim deserved, this type of demeaning treatment. This example is not isolated to one incident. It has been repeated many times since August 1990. Must I continually remind the industry that I am not brain-dead? My body does not function the same any more, but my mind still works. Since when, in this democratic country of ours, do we waste such a commodity?
I dislike having to resort to using the system. It is my fervent desire to recuperate to the point that I can return to meaningful employment. When asked why I am not working, I feel it necessary to explain about my lack of mobility and the chronic pain that I live with daily, because, as you can see, on the outside I look okay. A common assumption is that I am being rehabilitated, and it was a promise that victims would have access to rehab. Instead, I spend more time and energy fighting for my rights than I do concentrating on full-time recovery. It was my understanding that my full concentration and energy should be on recovery, with the goal of returning to gainful employment, not an all-out war with the insurance industry. Is this a fair and just system? I have personal knowledge of a victim who went to mother's allowance because she could not cope with this frustrating and degrading system.
I find it necessary to address the lousy and uncertain threshold you have set forth. You make no provisions for the victim with debilitating soft tissue injuries, nor do you address retroactivity of those injured at the beginning of the no-fault system. What are we, human guinea pigs? Your main focus seems to be to decrease claims, at any cost to human suffering, and increase profitability. What is to happen to me at the three-year anniversary, when I am to be reassessed? Your policy tells me that my payments will cease because I will probably fall short of your unforgiving threshold due to my soft tissue injuries, which, I am told, will affect me for the rest of my life. I wish I could push a magic button and exchange my aching body for a new one, but I can't.
My specialist told me on my last visit that I can expect to be in therapy for a long time to come, and to continue with what I'm doing. His comment was, "I know how much you want to go to work, but you only have about two hours in a day at best, and then not on a consistently daily basis." My future is to be decided by an industry which has already demonstrated to me that it does not know what it is doing and which does not view me as human, only another dependent liability. I pray that the powers that be will be having a good day. How long shall I be forced to pay for the actions of another human being who, along with his insurance company, has complete immunity? Am I next in the welfare line? Is it my fault I have no job left to go to?
I am not alone in this dilemma. The underlying assumption that as a victim I will be dealt with fairly is a false one. We are not only the neglected consumers; we are opaque victims, not seen and not heard. People injured in accidents in the early stages of this no-fault nonsense live in a grey zone and have indeed been left largely on their own to determine our own rights and to find our own way through the rehabilitation systems and to seek reimbursement for our losses. Is this what I deserve for my expensive premiums?
I thank you for allowing me the opportunity to make this presentation. If you have any questions, I'll do my best.
The Chair: Mr Johnson, two minutes.
Mr Johnson: Thank you very much for your presentation.
I think you've made it very clear in your presentation that accident victims have had a difficult time obtaining the justice they deserve under the system. I want to say that you've pointed out your very specific case and very difficult situation that you were involved in: first of all the accident itself and then trying to get redress and trying to get the rehabilitation that you so badly want.
I don't want this to sound like it's just another comment from another politician. However, I want you to know that the government has set up a task force on long-term care and rehabilitation so that people like yourselves and situations like the one you were involved in, we hope, can be eliminated.
This task force wants to examine exactly situations and circumstances like yours in order -- well, specifically, in order to establish standards and guidelines so that you won't have to go through this undue delay in trying to get the rehabilitation that you so badly need. It's very evident that you want to get back to work. We all laud you on that point and I hope that through your persistence you can get the rehabilitation you need and indeed do get back to work. It's more of a statement than a question, but I just want you to know that.
Ms Lockyer-Cheney: I appreciate your comments and I am aware of the task force.
Mr Callahan: In looking at your previous work experience, you were obviously a person who was on her way up very seriously and enjoyed what she was doing. Looking at your injuries in relation to what we were given this morning by a gentleman who came before our committee, Mr Nigel Gilby, who's a lawyer, you probably would not reach the threshold of the $15,000. If you did it would be very close and you'd wind up taking a risk of perhaps having to pay your lawyer's fees as well as the opposing lawyer's fees.
I feel great empathy for you in that you've lost your opportunities economically, obviously. I'm not quite sure in reading your brief whether these are your objections to the present changes under Bill 164 or not.
Ms Lockyer-Cheney: Yes, they are objections. In the preceding summary I have voiced most of those. I do have other areas; however, time just didn't allow for me to get to them all.
Mr Callahan: I think we can appreciate that. When we look at the regulations that have been shown to us, not a lot of people understand how regulations are made. They're made by the cabinet of the government of the day and they really never get to the floor of the Legislature, so they can change them in the blinking of an eye, which I think adds to the confusion that people in this province will have because of those regulatory changes.
Thank you, Mr Chairman, for those questions.
Mr Tilson: I think we appreciate the victim, which is what you are, coming before this committee and telling us your personal story. The incident appears to deal with OMPP, the existing law before this province, although you obviously, as a result of your unfortunate experience, have become knowledgeable in the current legislation as well and you're probably as much of an expert as the rest of us.
I don't mean to be flippant, but if you were left alone on the previous legislation, this is Left Alone 2 because you're going to be far worse off. If this bill passes and the incidents that you've described occurred under Bill 164, the frustrations that you've had dealing with insurance companies, with legal people, with medical people, will be far worse, if only for the very reason that a lot of people simply don't understand it. It'll take years for courts and advocates, whoever they are, to tell us what all these funny words mean.
I don't know whether you have any thoughts on that. In other words, obviously your demeanour is very bewildered and very frustrated and "Why me?" and I understand that, but looking at Bill 164, having just gone through Bill 68, can you tell us what your thoughts are for Bill 164?
Ms Lockyer-Cheney: How much time do you have?
Mr Tilson: Probably about 30 seconds.
Ms Lockyer-Cheney: I have many areas of concern and I don't like Bill 164 a whole lot better than I liked the previous bill, to be quite honest with you. I find very few positive things there for the victim, and I feel that I'm speaking for a cross-section of victims. It is my personal opinion and the opinion of those few I've spoken to that our main interest is to keep premiums down. Well, if you charged me nothing for my premiums and didn't deliver, it's still not worth it. So I'm concerned about areas of education for the industry at the service levels. I would like to be able to pick up the phone and talk to somebody who knew an answer or who could find one for me.
Mr Tilson: Hopefully the government will listen to your thoughts. Thank you very much.
The Chair: Mr Mancini, you have one little, short one.
Mr Mancini: I have one short question. A lot of the difficulties that you've explained in your brief, and to all the members of the committee, appear to be with the administrative and the follow-through, the policy implementation portion of the existing legislation. How would you feel about the existing legislation if your phone calls had been answered properly, if there were people at the other end of the line who treated you with a little bit of respect and dignity, who were willing to take your file out and say, "Okay, let's go over it together. We're willing to help you meet with your time lines and with your medical needs and all of those things," and if you weren't forced to fight for the income you were entitled to? How would you feel about the existing legislation if those things had been changed and had worked appropriately?
Ms Lockyer-Cheney: I still have grave concerns, even with those amendments, could they be made, about all areas of that system. It falls so short in dealing with people with soft tissue, with people in other areas. Your descriptives, excuse my expression, are lousy.
Mr Mancini: In the bill, you mean, Bill 68?
Ms Lockyer-Cheney: In the bill. You just can't understand them. People in the insurance industry obviously don't understand them. I am a consumer who has bought and paid for. I'm now a victim -- I don't plan to be one again -- who can't get to the root of anything, and you've made no provisions for that.
The Chair: Thank you for appearing before this committee today.
Ms Lockyer-Cheney: Thank you.
Mr Lessard: I just want to take a few minutes to say to the committee members who have attended here how grateful we are that you've attended here in the city of Windsor. I hope that everybody has an opportunity to return when they can spend some more time. I know that you're going to be on your way to Ottawa --
Mr Owens: Where's that casino, Lessard?
Mr Lessard: Yes, we'll invite you all back when the casino is up and running.
I want to thank the staff here who assisted in setting everything up as well, and making sure that everything ran smoothly here in Windsor today.
The Chair: I'd like to thank Mr Lessard for the invite back. This committee will be adjourned until 10 o'clock, in Ottawa, tomorrow morning. Some of the members seem to say that the Chair has a hard time telling time. Anyone who's not there at 10 o'clock, I'll have a session later on in the day on how to tell time. Okay? Thank you. Goodbye.
The committee adjourned at 1634.