ACCESSING JUSTICE THROUGH LEGAL EXPENSE INSURANCE: A NEW PERSPECTIVE FOR THE INJURED CLAIMANT

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Access to justice plays a vital role in maintaining the rule of law and ensuring fairness and equality within our civil justice system. In a perfect world, justice could be done without regard to the high costs of litigation.

Regrettably, we live in a world that is far from perfect and litigants must be mindful of the high costs and risks of litigation. Despite the challenges, the introduction of the often-underexplored option of Legal Expense Insurance (LEI) in Ontario may provide injured claimants with a greater sense of security to pursue claims with less concern for the financial risks involved.

Legal Expense Insurance is popular in Europe and Quebec and has recently gained some recognition in Ontario.

The following discussion will address some of the difficulties with our civil justice system and the ways that Legal Expense Insurance helps address these problems, with a focus on injured claimants.

CHALLENGES WITH ACCESS TO JUSTICE IN THE CIVIL JUSTICE SYSTEM

The Supreme Court of Canada has recently recognized the problems in our legal system regarding access to justice. In its recent decision of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Justice Karakatsanis speaking for the Supreme Court stated at the outset:

“[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.”

Injured claimants, even those with competent lawyers acting on a contingency fee basis (sometimes referred to as a “no win no fee” arrangement) may still face great financial risks associated with litigation against the deep pocketed insurance companies.  For example, in the event a claim proceeds to trial and is unsuccessful, the injured claimant may end up being responsible for paying the disbursements incurred from both sides and may also be liable to pay the insurance company’s legal bill, which could be very significant. For example, the cost of civil matters can vary but according to an October 2013 report published by the Action Committee on Access to Justice in Civil and Family Matters, national ranges of legal fees may vary from “$13,561 – $37,229 for a civil action up to trial (2 days), $23,083 – $79,750 for a civil action up to trial (5 days), $38,296 – $124,574 for a civil action up to trial (7 days)”

The modernization and expansion of legal services to better promote access to justice is an ongoing challenge. According to the Action Committee on Access to Justice in Civil and Family Matters’ 2013 Report,

“Innovations are needed in the way we provide essential legal services in order to make them available to everyone. The profession — including the Canadian Bar Association, the Federation of Law Societies of Canada, law societies, regional and other lawyer associations — will, together with the national and local access to justice organizations … take a leadership role in this important innovation process.”

One such innovation to reduce the financial risk of litigation is through Legal Expense Insurance.

HOW LEGAL EXPENSE INSURANCE BENEFITS INJURED CLAIMANTS:

This type of insurance can protect those pursuing personal injury claims by providing coverage for expenses and any legal costs that a claimant might otherwise have to pay out of their own pocket in the event that the claim is unsuccessful or abandoned.

For personal injury claims, the premiums for LEI would be deferred until the conclusion of the claim only if the claim is successful. If the claim is unsuccessful, no premium is payable and the policy would still provide coverage to the injured claimant against adverse legal costs and disbursements that they may otherwise be responsible for paying after losing their case.

The Law Society of Upper Canada has referred to Legal Expense Insurance as a “useful insurance product, with the potential to make legal services more accessible and affordable”.

Given the benefits of this innovative option, the insurance industry and its regulators should be encouraged to support greater distribution and sale of LEI as part of more standard insurance products.

In the field of personal injury litigation, the often-cited “David and Goliath” comparison between accident victims and defending insurers creates a financial power imbalance. However, LEI may serve as one such innovative development to level the playing field and reduce the financial power imbalance at play. Although not the cure to the access to justice problem, LEI may be part of the solution. After all, what good are legal rights if you can’t enforce them?

 

Reposted with permission from OTLABlog.com

CASHING IN ON YOUR INJURY CLAIM THIS HOLIDAY SEASON? THINK TWICE!

 

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With the holiday season finally here, a little extra pocket money won’t hurt this time of year. For those handling a personal injury claim on their own without a lawyer, that may mean taking a quick settlement with the insurance company to splurge a little bit more on gifts this holiday season.

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10 KEY LEGAL TIPS TO KNOW FOLLOWING A CAR ACCIDENT

 

There are a number of important tips to be aware of afterMVA a car accident. The actions taken (or not taken) by you can go a long way in deciding the success of your personal injury case. Below are 10 Key Legal Tips to be aware of following a car accident.

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Think Twice Before Releasing the Hounds: Dog Bite Law in Ontario

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The joy and happiness of dog ownership has been proven time and time again. However, with dog ownership also comes legal responsibly. After all, dog breeds of all shapes and sizes have the potential to inflict harm to other people or dogs and the legal consequences must be taken seriously.

In Ontario, the Dog Owners’ Liability Act R.S.O. 1990, Chapter D.16 (the “Act”) governs the law in relation to dog bites and attacks.

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Injured on Municipal Property? Act Fast

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If you are injured on Municipal property in Ontario, there are immediate actions that must be taken failing which you may lose your legal rights to claim against the Municipality. Read more

Words of Wisdom from an Insurance Defence Lawyer: What every injury claimant must know!

Andrew P. Laviolette is an insurance defence lawyer practicing with Brown & Partners LLP

Andrew P. Laviolette is an insurance defence lawyer practicing with Brown & Partners LLP

 

 

 

 

 

 

 

 

 

Lawbubble.com  is privileged to present our recent interview with Andrew P. Laviolette, a brilliant legal mind blazing a trail in the world of insurance defence.  For those considering starting a lawsuit for a personal injury matter, this interview will provide you with critical insight from the perspective of the insurance defence lawyer. Mr. Laviolette says it like it is so take note and prepare to be informed:

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TRUTH ABOUT TRIALS: ARE THEY WORTH THE RISK?

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Contrary to popular belief, most legal cases will NOT go to trial. For those of you who expect a Hollywood style gut wrenching sweat-inducing drama to unfold every time a legal action is started, I’m sorry to disappoint you but you’re better off sticking to your television fantasies.

After all, more than 90% of cases will settle before trial in Ontario. Why might this be? Well, some of the risks of taking a case to trial may just be too great. Some of these risks are outlined below: Read more

‘TIS THE SEASON TO BE JOLLY, NOT TO FALL ON CONCRETE

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With the brisk winter season now upon us, it is important to be aware the dangers of slip and fall accidents particularly for elderly people who will generally face the greatest risks of injury. Each year seniors in Canada report approximately 180,000 falls where injuries are suffered.

By the age of 75, fall injuries are reportedly the leading cause of death among seniors and over 90% of hip fractures in seniors are the result of falls. Unfortunately, 20% of these senior hip fracture victims will die within a year of sustaining their injuries according to the Public Health Agency of Canada.

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NOTHING TO GAIN IF NO ONE TO BLAME

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As an injury victim, the law will generally allow you to recover damages for your injuries if you can prove that they were caused by the fault of someone else. To use legal jargon, someone must be “liable”.

Where nobody is liable for your injuries, you are unlikely to be successful in recovering damages for your injuries no matter how badly hurt you are. After all, why would a court order someone to pay you compensation for injuries they were not responsible for?

For example, if you were hurt in a motor vehicle accident after driving your car through a red light and crashing into another car that was obeying its traffic light, it would be very unlikely you would be successful in advancing a claim for damages against the other driver no matter how badly injured you are. Read more

WHAT IS MY INJURY CASE WORTH?

 

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The goal of the legal system is to compensate injured claimants for their loss as a result of an accident or injury whether it is for economic loss, pain and suffering or both.  In either case, there would also need to be a legally responsible party to blame for the loss/injury suffered before compensation can be recovered. Read more

 
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