Another Slap in the Face for Ontario’s Injured Victims

 

On March 8, 2017, Ontario M.P.P. Mike Colle introduced a Private Member’s Bill, “An Act to amend the Law Society Act and the Solicitors Act with respect to matters related to personal injury claims and client agreements in legislature” (Bill 103).

Bill 103 set out a number of prohibitive measures including the capping of all new contingency fee agreements to no more than 15% of the award, a ban on all referral fees in personal injury matters and requiring Law Society approval of personal injury advertising.

While the purpose of the Bill may be well intentioned, it is very misguided and will only serve to diminish access to justice to Ontario’s most vulnerable.

There is no question that transparency and fairness should be at the heart of every lawyer-client relationship. However, it is simply irresponsible for the government to unilaterally impose such drastic restrictions without proper consultation.

Contingency fee arrangements, commonly used in personal injury cases allow for the payment of legal fees at the end of a case on a percentage from the settlement/award. With such arrangements, the law firm would bear the ongoing expense and risk of litigation until the end instead of the client.

Without these arrangements in place, clients would be expected to pay their lawyer by the hour plus any additional money needed to cover the ongoing costs of litigation. These expenses can add up greatly over the duration of the case. Financial hardships on clients are often apparent in family law and criminal law matters where contingency fee agreements are not used.

With most personal injury cases taking years until completion and often costing thousands of dollars including expert reports, court fees and process server fees, the capping of contingency fees to 15% will simply discourage injury lawyers from taking on anything but the most serious of injury cases.

The consequences of this would either force injured victims with “less serious” cases to find the money to pay legal fees on an hourly basis, represent themselves or simply accept that they cannot afford justice. These choices are less than ideal for injured victims.

This proposed legislation is just another windfall for insurance companies who would benefit the most from otherwise meritorious claims being nipped in the bud.

The Bill also bans referral fees and in doing so, it disregards the Law Society’s earlier Report of February 23, 2017 in which it agreed to cap and further regulate referral fees.

Bill 103 also imposes a requirement on the Law Society to approve all advertising that offers legal representation with respect to personal injury claims. However, the Law Society already has in place comprehensive Rules of Professional Conduct on advertising that licensees must comply with and recently amended those rules further.

In doing so, the Law Society provided even more direction on the type of awards and honours that are permitted in advertising. It also prohibited advertising of second opinion services and imposed requirements that the advertiser specifies whether they are a lawyer or paralegal. The Law Society also made explicit in the amendments that lawyers and paralegals may not advertise for work they are not licensed to do, not competent to do or do not intend to do.

Licensees who fail to comply with the Rules of Professional Conduct ought to be dealt with accordingly but to expect the Law Society to take on a whole new role of approving personal injury lawyer ads is expensive, impractical and those unnecessary costs will be passed on to injured victims.

In a legal climate already stacked heavily in favour of insurance companies, Bill 103 is another slap in the face to injured victims in legal a system that continues to diminish quality representation and access to those who need it the most.