Howie Sacks & Henry unafraid to take on insurers to ensure clients’ access to justice
Kaitlyn MacDonell’s recent success at the Licence Appeal Tribunal (LAT) in Burton v. Co‑operators General Insurance Co. turned on what adjudicators ultimately found to be egregious conduct by the insurer. In a rare outcome, the LAT not only ruled in favour of her client but also imposed a special award for the insurer’s behaviour, giving him access to enhanced accident benefits of up to $3 million in care over his lifetime.
“This is an unfortunate type of insurer conduct that we’re seeing more often,” says MacDonell, partner at Howie Sacks & Henry LLP. “There’s an expectation that insurers are meeting insureds where their needs are, but in this circumstance, the insurer failed.”
MacDonell’s client was lucky to be alive after a single‑vehicle accident that left him with a brachial plexus injury, resulting in one limp hand, and a degloving injury on the other. With very little remaining function, he was prevented from typing or using his phone, which the insurance company knew.
The client’s claims were escalated to a senior adjuster who, in MacDonell’s view, did the bare minimum in assessing his care needs and took advantage of his sever injuries. The insurer ultimately denied his claim because he failed to fill out a form, despite already having all the necessary information from their phone calls with him. It was simply a formality — and one that was understandably difficult to follow through on given the severity of his injuries.
Despite MacDonell’s involvement, the insurer refused to reverse its decision. With no other option than to take the case to the LAT, the stakes were high: there was no tort lawsuit because it was a single‑vehicle accident, meaning her client was at fault. The case before the LAT was the difference between the insurance company paying her client absolutely zero dollars for his claim or covering the cost of his care.
MacDonell’s strategy was to clearly outline the balance of what the adjudicators needed to look at. Did her client’s failure to meet the formal requirement of filling out the form on time cause any harm to the insurer, versus the harm faced by her client from not getting access to benefits? Highlighting those key differences — and showing the adjudicators the real‑world impact of the denial on her client’s life — helped tip the scales in her favour.
“Holding insurance companies accountable is a really important point,” she says, adding that the law isn’t meant to be applied rigidly.
“It went so far as they found that the way the insurer behaved was egregious — a finding with a success rate close to 1%,” MacDonell says. “I commend these adjudicators for listening to my client’s story and for allowing us to highlight that common conduct we’re seeing with insurance companies.”
While Burton is a success story, MacDonell is quick to point out that it plays out against a bleak backdrop. According to the Ontario Trial Lawyers Association’s latest inHEALTH statistical analysis, insureds’ success rate at the LAT now hovers at just 8% — below even the odds of a coin flip.
The dismal success rate is compounded by the removal of cost awards several years ago. Though the move was meant to improve access to justice, it has had the opposite effect: taking on cases before the LAT is simply not economical for lawyers, which means many applicants are effectively shut out of pursuing legitimate claims.
“These are all-or-nothing propositions,” MacDonell explains. “If we’re not successful, we’re out of time, money, and effort — and there’s really no recourse.”
Despite operating under a positive obligation to act in the best interests of their insured, MacDonell is seeing increasing rigidity from some carriers. In fact, she says, they are “emboldened to make decisions that put people in hardship, forcing them to go and fight denials.” That reality, combined with the low success rate and no cost awards, leads to one conclusion in her view.
“The system is absolutely failing Ontarians in achieving access to justice, access to care, and access to the benefits that they pay for.”
Why education matters
When it comes to positive change, Kaitlyn MacDonell sees one clear priority: education for all stakeholders.
“I see this as an issue of training in a very specialized niche area of law,” she says. “Adjudicators aren’t just the arbitrators of a single issue; they’re the access point to people getting proper care — care they pay for — when they find themselves seriously injured.”
Working with the Ontario Trial Lawyers Association, Howie Sacks & Henry has been involved in proposals and consultations aimed at making LAT processes more procedurally fair. The statistical analyses that lay bare the realities injured Ontarians face at the LAT, combined with decisions like Burton, help shine a light on where the system is falling short — and where education and awareness can move the needle.
“The expectation is that there would be a much more balanced consideration in the success rate for applicants and insurers at the LAT — but the only way out is through,” MacDonell says. “Even if the odds are against us, we must continue fighting the good fight for our clients, taking on insurers for their conduct and moving matters forward so people have access to benefits when they need them. After all, that’s why we have this system in place.”
This article was produced in partnership with Howie Sacks & Henry
