Ont. woman wins appeal after being denied health insurance benefits while self-represented

An Ontario woman denied access to health benefits after being hit by a car and forced to represent herself is now waiting for a new hearing because the process was deemed unfair.

It’s part of a larger issue the Ontario Trial Lawyers Association says highlights “several disturbing trends” at the Licence Appeal Tribunal (LAT). The organization points to a lack of transparency and questions procedural fairness in a system they say is intended to support self-representation.

In the last eight years, 217 out of the roughly 4,500 LAT cases were self-represented individuals and only 33 of those cases were successful.

Ofelia Fernandez, 56, of Mississauga, is among those who have fought their own case at the tribunal. The benefits she sought were initially denied.

In January 2019, Fernandez was struck by a car while crossing the street at a stop light in Aurora. She sustained a brain bleed, concussion, fractured arm, post-traumatic headaches and other injuries to her leg, knee and shoulder.

Victim fighting for benefits that are set to expire

Five years later, she’s still fighting to access benefits that are set to expire soon. Fernandez says she still lives with pain in her back, shoulder as well as headaches and memory issues.

Since then, she’s also been unable to return to work as a dental assistant as doctors have determined her injuries are catastrophic.

Fernandez isn’t seeking a large cash settlement.

Instead, she’s looking to have the insurance company agree with her catastrophic impairment designation. That would give her access to up to $1 million in medical benefits for the rest of her life. Without it, she would be limited to a maximum of $65,000 for up to five years.

Fernandez is also arguing she meets the disability criteria for income replacement since she can no longer work as a dental assistant.

In June of 2023, a LAT hearing for Fernandez was scheduled to take place, but there was what she describes as a “breakdown of the relationship” with her previous lawyer.

That’s when Fernandez retained new legal representation, Julia Vilorio Peguero, who is a lawyer at Campisi LLP in Vaughan, Ont.

Vilorio Peguero said she attempted to get the adjudicator to allow the hearing to be delayed so she could get caught up on the case and represent her client.

But that was denied and Fernandez, who had always been represented by a lawyer during this process, was forced to represent herself.

Fernandez, who spoke to CBC News through a translator, said she felt pressured and it was all too much for her. She explained that she has issues with her comprehension and memory since the accident.

At the time of the hearing, and even today, Fernandez said her ability to speak English since the accident has been reduced dramatically.

A transcript of the hearing shows Fernandez repeatedly asking for help and that her lawyer be allowed to speak for her during the proceeding.

“We did not think it was fair. We thought that it was the tribunal taking the mandate of moving matters at the cost of Ms. Fernandez having the right to counsel and having a fair hearing,” said Vilorio Peguero.

“The transcript [of the hearing] made it very clear that Ms. Fernandez didn’t know what she was doing. [She was] crying at times … pleading saying things like ‘I don’t understand. I want my lawyer present,'” she said.

Upon learning the outcome, Fernandez said she felt “hopeless” and like she had no way of fighting it.

Ontario court orders new hearing for accident victim

After the tribunal denied a motion for reconsideration, Vilorio Peguero filed an appeal with the Ontario Superior Court.

In its decision, the Divisional Court ordered the tribunal to give Fernandez a new hearing.

“The appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself,” the decision read.

A new trial for Fernandez could happen as early as May.

She says she’s hoping it brings her justice this time. 

‘Not a fair playing field’

The Ontario Trial Lawyers Association (OTLA) is calling for an immediate review of the LAT, and address its concerns about fairness, transparency and the ability for self-representation.

“It’s not a fair playing field. Insurance companies have a ton of resources at their disposal,” said Joanna Sweet, co-managing partner at Greg Monforton and Partners in Windsor, Ont.

“The regular person off the street who’s been injured in a car accident, they’re up against a giant and they need rules that will help them navigate that system.”

Sweet, who’s also an OTLA board member, said the LAT system was designed for people to represent themselves. Instead, she said it’s complicated and difficult to navigate.

“A lot of people go through their day-to-day life driving cars, but not getting into collisions and when it happens, it happens in an instant,” said Sweet. “It can happen to anybody and it turns your life completely upside down.”

In some cases, insurance companies are refusing those victims the benefits “that they’re entitled to, that they’ve paid an insurance company for,” she added.

A Tribunals Ontario spokesperson wouldn’t tell CBC News if it’s considering a review of the way the LAT operates.

Instead, it says LAT adjudicators are “independent decision-makers with the exclusive authority to make decisions in accordance with the relevant legislation.”

It also says anyone can ask for a “reconsideration” of any LAT decision by one of its adjudicators.

But Sweet said she’s aware of some instances where the same adjudicator would hear the reconsideration request, prompting questions of proper review processes.