Written By: Dale Orlando and Jamie Davison, Student-at-Law
The Complexity of the SABS
In Ontario, if you have been injured in a car accident you are entitled to statutory accident benefits irrespective of who caused the crash. The questions to be answered are which insurer will pay the benefits and will the injury be deemed minor, non-catastrophic or catastrophic. These benefits are regulated under the Statutory Accident Benefits Schedule (SABS). There are many intricacies that come along with making a claim for accident benefits under the Ontario system. When navigating this complex regime, you’ll likely have many questions, including:
- What if I do not have a car insurance policy?
- What if I was driving someone else’s vehicle at the time of the accident?
- Which benefits am I entitled to? Income replacement benefits? Medical, rehabilitation and attendant care benefits?
- How much of each benefit am I entitled to?
- When do I have to apply?
- What if my claim is unsuccessful?
This article will highlight the challenges faced by those who do not speak English or French and are attempting to bring a claim for accident benefits in Ontario, and further the changes to the SABS that we, at McLeish Orlando, believe would improve equity for this population.
Language Barriers in a Diverse Ontario
Ontario is the number one destination of immigrants to Canada. By April 1 of this year, 60,828 immigrants settled in Ontario. A significant increase from last year where 50,617 immigrants arrived in Ontario within the same period. With this substantial migration, Ontario’s linguistic diversity continues to grow.
Statistics Canada reports that as of 2021, 15.7% of Ontario’s population (4.6 million people) predominantly speaks a language other than English or French at home. More specifically, a study conducted by Social Planning Toronto in 2018 found that one in twenty Torontonians could not fluently speak English or French.
Despite these statistics, the SABS has not caught up to Ontario’s diversity. The lack of sufficient accommodation for other languages is a failure imbedded within Ontario’s insurance system that is leading to disparities in outcomes.
Exploring the Impact of Language Barriers
The added difficulty of navigating this complex system in another language raises barriers to accessing accident benefitsfrom the beginning of the process to the end. Forms are available only in English or French, there are strict timelines that if missed, can prevent the bringing of a claim all together, and the approach is often adversarial. These added challenges can lead to worse outcomes and increased denials in the face of a language barrier. The system was not designed to be user-friendly, nor was it designed with a non-English/French user in mind.
Barriers to treatment
Those grappling with a language barrier will have increased difficulty filling out the numerous forms required, advocating for themselves before health care providers and the tribunal, following the procedural rules of the tribunal, and meeting deadlines. A Health Canada study of the patient experience for those who do not speak the same language and their health care provider concluded:
- A patient who does not speak the same language as their health care provider will consistently report lower satisfaction as compared to those who do.
- Other health care measures including access to treatment, quality of care, respect for their rights, compliance with their treatment, and health care outcomes are also adversely affected by a language barrier between physician and patient.
- A substantial area of concern is the difficulty of accessing mental health and counseling-related services when there is a language barrier.
When a claimant does not have a good relationship or rapport with their healthcare provider, this can affect their application for accident benefits. Gaps in communication, added delays in receiving treatment, and misunderstandings during care can not only prevent accurate diagnoses and proper treatment which in turn can affect the claim, but can also negatively impact the patient’s potential for recovery.
In the Superintendent’s Guideline No. 08/10 it was stated that the cost of interpreters is not intended to be covered by the SABS; however, insurers have the option to reimburse claimants for all or part of the expenses incurred for interpreter services. In other words, the SABS leaves the reimbursement of the cost of interpreter services in the hands of the insurers. In practice, insurers will provide translation services if there is a language barrier, but the cost of the service will typically be deducted from the monetary limit for medical, rehabilitation, and attendant care benefit of $65,000 for non-catastrophic injuries and $1,000,000 for catastrophic injuries.
For example, in Toronto, the average cost of translation services ranges between $50 and $100 per hour. If a claimant required physiotherapy, their options are:
- Factor in the cost of interpretation services when determining the number of sessions for which they can afford within their accident benefit limits. The consequence of this option is that claimants would receive significantly less therapy than someone who did not require an interpreter. In a recent Ontario License Appeal Tribunal (LAT) decision, nearly 34% of their total cost of massage therapy was paid to an interpreter.
- Pay for the interpreter out of pocket or refuse to use an interpreter all together and risk the consequences of miscommunication.
The lack of accommodation of language barriers by the SABS is a further barrier to treatment that can be detrimental to the health outcome of applicants.
Barriers before the tribunal
If claimants choose not to use an interpreter at their assessments, they take on an added risk that their reports will be discounted.In R.B. v The Guarantee Company of North America, a 2020 LAT decision, the adjudicator gave all four expert reports provided by the Applicant in support of her claim for Income Replacement Benefits “little-to-no weight” because there was no interpreter present at the assessments.
In the M.C.S. v Scottish & York decision from the LAT in 2019, the adjudicator agreed with the insurer’s argument that the assessments completed without an interpreter should not be considered credible evidence that the applicant sustained accident-related psychological impairments. This conclusion was despite the Applicant’s argument that her husband, someone she trusted who interpreted for her at her assessments, was better suited to interpret for her than an unfamiliar Tamil interpreter.
Finally, the LAT has held that language barriers are not reasonable explanations for failing to meet filing deadlines. In I.G. v Security National Insurance Company, the adjudicator found that “I.G.’s argument about the complexity of the Schedule and her English language skills to be unpersuasive grounds for delay”.
While this system was created with the intent to protect all Ontarians, those with language barriers face significant added challenges and receiving inferior claim results to their English and French speaking counterparts.
There has been nothing done to address the systemic issues faced by vulnerable Ontarians regarding their access to treatment and benefits. Possible changes that could be made to the SABS that would better support those experiencing a language barrier include:
- The addition of translation services as a payable expense under the SABS, or a separate budget for translation services similar to amounts available for visitor expenses under the SABSwhere insurers will pay for the expenses of the injured person’s family members that are incurred in visiting them during treatment or recovery [meals, parking, hotels, flights, etc.].
- A shared pool of independent translators could be included in the costs shared across all insurers.
- Video-conferencing or oral hearings, as opposed to written hearings, to be considered standard where there is an identified language barrier which would allow for immediate clarification by treating providers and Applicants.
Until changed to the system are made, a non-English or French speaker can level the playing field with insurers by hiring a competent lawyer at an early stage of the proceedings who will manage the completion of documents and pay for interpreting services as required. At McLeish Orlando, we can help you to navigate this complex system with the help of our team of Spanish, Arabic, Punjabi, Mandarin, and Cantonese interpreters. It is difficult enough to deal with the effects of being involved in a car crash, don’t let the language you speak make the process more challenging?