Insurance lawyers having “sleepless nights” over Ontario auto insurance report

Published: April 29, 2017

Updated: July 24, 2018

Author: Luke Jones



An insurance defence lawyer says auto insurance recommendations for Ontario made by the former head of the government-run workers’ compensation insurance system are “extraordinary”. The opinion comes as the Ontario government said on Thursday it will review the 35 recommendations made by David Marshall.

Marshall became the advisor or auto insurance and pensions in February 2016. provide advice and recommendations to governing and regulatory bodies in an effort to reduce auto insurance costs in Ontario, while the role also involves him overseeing the roll out of the Ontario Retirement Pension Plan (ORPP). He worked as a direct advisor to Ontario finance minister Charles Sousa.

The Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario final report, written by David Marshall, is now being reviewed by the liberal government:

“The government is reviewing the recommendations and will be hosting consultations in the coming months,” the ruling Liberals said Thursday in their budget 2017-18 budget document.

His report has “some extraordinary recommendations which have most of the lawyers not sleeping at night,” said Philippa Samworth, a lawyer whose work includes representing insurers in auto accident benefits claims disputes.

In general, Marshall’s report has been praised, especially amongst auto insurance companies. Earlier in the week, the Insurance Bureau of Canada CEO Don Forgeron described the report as “probably the best description we have to date of what is wrong” with auto insurance in the province.

In his report, Marshall advised the province against exploring a public insurance model like other Canadian provinces.

The Statutory Accident Benefits Schedule was “never intended the auto insurance system to be a cash jackpot,” he wrote. “Many insurance companies, however, are not incented to see their role as providing medical care to clients. Rather, they are incented to close their liability with as little cash cost as possible and hence they introduce the practice of negotiating cash settlements with claimants in lieu of medical treatment, future wage and other future benefits under the SABS.”

The solution to this problem “lies in focusing on timely, appropriate medical care, not cash settlements,” Marshall suggested. “Where the programs of care don’t apply, or don’t work, a roster of hospital-based independent examination centres should be established by the regulator to provide diagnoses and future treatment plans. Insurers must provide the treatments prescribed in the programs of care or those that are stipulated by the independent examination centre without dispute. The advice given by the independent examination centres should be taken as mandatory in accident benefits and tort disputes and courts should afford those opinions a zone of deference in tort cases.”

However, while speaking at the BDO AB conference, Samworth suggested that the finance or infrastructure is lacking in Ontario to supply such lifetime care:

“When you have no more of your (catastrophic impairment coverage) money left and when you are seriously injured, there’s going to be a care program that allows you to be covered under (Ontario Health Insurance Plan)” is how Samworth characterized Marshall’s recommendation to BDO AB conference attendees. “I think that alone may allow us to suspect that some aspects of (the Marshall report) may be buried because I don’t think the OHIP system can afford these care programs.”