Legal Feeds Blog
The Insurance Corporation of British Columbia has singled out “pervasive lawyer advertising” as a cause in the steady uptick of injury claimants obtaining legal representation.
|Ron Nairne says the current system of compensation is one of the best in North America and wants it to be preserved. ‘We say if ICBC handled files efficiently and fairly, in the long run savings would be achieved.’|
In its recent revenue requirements application to the B.C. Utilities Commission, the provincial insurance provider delved into justifications for a 4.9-per-cent basic rate increase.
ICBC said litigation costs in 2015 hit almost $309 million and made up 20 per cent of total bodily injury claims costs.
“This is the highest level of litigation costs to date, and is expected to continue to grow in part due to the increase in the legal representation rate,” the application reads.
The insurer predicts the legal representation rate will continue to increase and hit 53 per cent in 2016. A chart in the application illustrates a steady rise of legal representation over the years, with the largest jump coming in 2012.
Ron Nairne, partner at Giusti Nairne in Burnaby, B.C., says there’s nothing lawyers or lawyer advertising have done differently in recent years.
“Remember that when ICBC says representative claims cost more, the main reason for that is that lawyers obtain fair and full-value settlements for their clients,” he adds.
“An unrepresented insured has no idea how much his case is fairly worth so ICBC can take advantage of that.”
Nairne, who is also on the board of governors at the Trial Lawyers Association of B.C., says the increase in the representation rate has occurred in the last six years — after ICBC has “centralized decision-making, taking away decision-making authority from adjusters and even their managers.
"Adjusters handle many more files than previously and the result is accident victims are not getting their medical expenses paid and are otherwise treated unfairly, so they turn to lawyers.”
The British Columbia Utilities Commission, in its 2015 decision regarding ICBC’s last revenue requirements application, encouraged ICBC to “explore all possible ways to address controllable as well as external factors that may lead claimants to seek legal representation. The outcome of a successful action plan and program could be that the [legal representation rate] returns to pre-2011 levels before the acceleration began.”
The decision also said the panel was not convinced by ICBC’s claim of how the legal representation rate was affected by factors outside of ICBC’s control.
“. . . we view ‘perceived lawyer benefits’ as at least in part a function of the treatment that claimants believe they are likely to receive at the hands of ICBC in the absence of legal representation” the panel said, and the decision called for a followup customer satisfaction survey to be conducted by ICBC.
In answering the commission, the application looked at the results of a customer satisfaction survey conducted by ICBC in 2014, which shows “perceived lawyer benefits” as the most influential factor when it comes to customers making the decision to call a lawyer. Customers who completed the survey went on to say they see lawyers as increasing the chances of a better settlement, reducing the hassle of dealing with the insurer, providing access to more treatment and enabling customers to more fully focus on their recovery.
“In addition, many customers feel that hiring a lawyer gives them a greater sense of control by having an expert fully ‘on their side,’” said the application.
The application went on to say these factors were far more influential on the legal representation rate than other factors ICBC might have more influence over, such as complex claims processes, biased adjustors or unfair treatment and compensation.
ICBC also pointed to the fact that 80 per cent of customers reporting an injury claim had no previous recent claims, indicating their decision to obtain a lawyer had more to do with outside factors such as advice from friends and family or marketing by legal firms.
“On a regular basis, these people come to me within a short period of time and they say, ‘I can’t get a response from ICBC, they won’t do anything for me, I’ve been treated rudely, I had no intention of coming to see a lawyer but . . .’ Those things are happening so clearly at the front line there’s plenty of room for improvement from ICBC,” Nairne says.
The insurer outlined changes meant to have long-term positive impact on the legal representation rate among its clients, including resolving claims effectively and quickly “in a fair and reasonable manner” through streamlining determination of coverage and payment of benefits, implementing initiatives improving access to benefits and providing education to customers so they have more control over the claims process.
Nairne says he sees very late settlements, with reasonable offers only being made “within a week, days, a few weeks of the trial date.” He says in previous years ICBC would make reasonable offers earlier on, and if that was still happening the cases would go away because “clients don’t want to wait forever.”
As for the prescribed followup customer satisfaction survey, ICBC said it aims to “undertake research to further clarify elements that are key to the customer’s decision to retain legal counsel and to what extent ICBC may be able to influence those elements.”
“Trial lawyers do share ICBC’s concerns about rising costs,” Nairne says. “The current system of compensation is one of the best in North America and we want to make sure it is preserved. We say if ICBC handled files efficiently and fairly, in the long run savings would be achieved.”
Police arrest one of two men being sought on warrants in Alberta, Canadian Press
The former Canadian ambassador to the United States and past premier of Manitoba, Gary Doer, has joined Dentons in its Toronto office.
|Former ambassador and premier Gary Doer will work with Dentons’ Canada-U.S. trans-border practice. (Photo: Reuters)|
In the role of senior business adviser, Doer will be working with all of the firm’s offices across Canada (including Calgary, Edmonton, Ottawa, Montréal and Vancouver), throughout the United States and around the world.
“I think advocacy through an international law firm, particularly with assets in the United States could be a real advantage for Canadians and for Americans to get stuff done,” says Doer.
Doer served as Canada's ambassador to the United States from October 2009 to March 2016.
Prior to that, Doer was the 20th premier of Manitoba, from 1999 to 2009, leading the New Democratic Party to win three consecutive majority governments. During his 10 years in office as premier, he led strategic investments in health care, education and infrastructure, and worked with both U.S. and Mexico governors to improve trade and energy co-operation.
“I was involved as a premier in the European trade discussions and one of the big issues for Europe was procurement for subnational governments. I was very involved in that process and very aware of what the benefits are for Canada. I was very involved in TPP (Trans Pacific Partnership) negotiations, which gives some certainty and parameters to state-owned enterprises in dealing with free market countries like Canada, the United States and Mexico,” he says.
Doer also referenced Prime Minister Justin Trudeau’s current visit to China.
“For Canada and trade with China, rule of law and reciprocity is very important and Dentons has a large presence in China as well,” he says. “To me, the political, the public and the legal all go together and this firm affords that ability to deal with the challenges and opportunities in an international world.”
With the U.S. election months away, Doer says whatever the outcome — Trump or Clinton — the focus for Canada will be to emphasize that Canada is the largest trading partner Americans have.
“With a $2-billion-a-day trading relationship, it’s very important for Canada to continue to repeat over and over again that we are the U.S.’s largest customer and we buy more goods than the whole European Union put together instead of getting into abstract statistics that don’t mean much to the average consumer,” he says. “That’s our populism in an election with lots of populist sounds emanating from different candidates.”
Doer will work with Dentons’ Canada-U.S. trans-border practice. He will also be deeply involved in the firm’s global public policy initiatives.
“We are honoured to welcome Gary to Dentons — his arrival further strengthens the unmatched talent and scope of our team of business and public policy advisors,” said Chris Pinnington, Dentons’ Canada chief executive officer, in a statement.
“Gary’s experience and widely-respected stature in public service, in government and with cross-border diplomatic and business relations in North America, will be invaluable to our clients.”
"I have worked with Gary in his capacity as Premier and Ambassador. He is an extraordinary talent, whose ability to clearly define public policy challenges and then fashion solutions is virtually unparalleled,” said Gordon Giffin, former U.S. Ambassador to Canada (1997 – 2001), chairman of Dentons' U.S. Public Policy and Regulation practice, and co-chairman of Dentons' global energy sector team. “I have been privileged to work with him in my capacities in and out of government and enthusiastically look forward to teaming with him at Dentons to solve client problems and create client opportunities throughout North America and around the world.”
“We are very proud of the accomplishments and perspective our team brings to the table, and the arrival of former Canadian Ambassador Doer further enhances our unique capabilities and focus with identifying the right solutions and opportunities for our clients,” said Elliott Portnoy, Dentons’ global chief executive officer. “This is an exciting announcement for Dentons and for our clients.”
Massive hack of people's personal information feared in Alberta, Canadian Press
A Toronto lawyer who says he was discriminated against by a Law Society of Upper Canada security guard says he may take the matter to the Human Rights Tribunal of Ontario.
|Selwyn Pieters says he was discriminated against at the Law Society of Upper Canada in July, and is contemplating taking the matter to the Human Rights Tribunal of Ontario.|
Selwyn Pieters says he was racially profiled on July 5 as he was walking into Osgoode Hall to give his intern a tour, and presented an ID card to a guard who approached them.
Pieters said he was not allowed in after showing an ID card to the guard, and had to get a renewed card — differential treatment, he says, is based on race.
“I should be retaining counsel in the next couple [of] days. Myself and counsel will be deciding the next course of action,” says Pieters, who adds that bringing an application before the HRTO is “an option that is open at this point.”
Robert Lapper, the LSUC’s chief executive officer, said in a letter to Law Times Aug. 22 that while the LSUC regrets Pieters was “upset by his experience,” Lapper is “satisfied that standard procedures were followed and there was no discrimination.
“The Law Society has standard procedures for all non-staff licensees who seek to enter controlled access areas of the building. Access to these parts of the building is gained through the main reception area of the Law Society,” Lapper said in the letter to Law Times.
“The standard procedures call for security staff to ask licensees to show their Law Society identification card. If this card is expired, security staff will check the Law Society’s database of licensees to confirm the licensee’s status. Once security staff have confirmed the licensee’s status, he or she is permitted entry to those areas of the building.”
Pieters has published a post online calling on the LSUC for information about security procedures. For example, he says other lawyers have told him they have not had LSUC identification cards.
He says the response from the LSUC has been disheartening.
“I, to be quite frank with you, was disappointed, very disappointed, and so I will take the next step,” says Pieters.
Fraud case of former Quebec deputy premier resumes today, Canadian Press
- High costs could deter lawyers from taking on similar claims, lawyers say
While a securities class action lawsuit concerning a Canadian mining company paid out millions in the United States, its counterpart in Ontario could not get off the ground.
|Lawyer Peter Roy says Ontario Court of Appeal decision 'really kills any kind of real initiative in this kind of securities litigation.'|
The Ontario Court of Appeal has dismissed the appeal of plaintiffs challenging the ruling of the motion judge, Justice Edward Belobaba, who refused to certify their proposed class action against Silvercorp Metals Inc.
The court upheld $500,000 in costs against the plaintiffs and added a further $75,000 — a penalty lawyers say could deter others from taking on similar cases in the future.
“This decision really kills any kind of real initiative in this kind of securities litigation,” says Peter Roy, a senior litigation counsel at Roy O’Connor LLP who has represented both plaintiffs and defence in class action proceedings.
“The cost consequences to a plaintiff side firm that generally takes this kind of stuff on spec is crushing.”
Roy says that the risk of the cost consequences for plaintiff lawyers in such suits will make it unlikely that firms will take on anything other than the most obvious cases in the future.
“You’ve got to be pretty brave to put your toe in that water,” he says.
The lead plaintiff on the claim, John Mask, alleged Silvercorp had misrepresented the quality of its mineral resources at a mine in China and that this had inflated the company’s share price. The plaintiffs, who were shareholders, then lost money when the price fell after “corrective disclosures” issued by an anonymous Internet poster in 2011, the decision said.
Belobaba, however, ruled that evidence Silvercorp submitted undermined that of the plaintiffs, whose claim was “so weak or has been so successfully rebutted by the defendants that it has no reasonable possibility of success.”
In their appeal, the plaintiffs argued that Belobaba had misapplied the test to grant leave for the action by “weighing the evidence on a balance of probabilities, turning the leave application into a mini-trial.”
They argued that Belobaba’s approach was inconsistent with the purpose and spirit of the Securities Act to screen out only plainly unmeritorious claims.
In the Court of Appeal decision, Chief Justice George Strathy said that scrutiny of the evidence on such a leave application should not be so limited.
“In my view, the ‘reasonable possibility’ requirement of the leave test requires scrutiny of the merits of the action based on all the evidence proffered by the parties,” he wrote.
“Far from undermining the objective of the legislation, such scrutiny of the entire body of evidence is necessary to give effect to the purpose of the screening mechanism.”
Matthew Fleming, of Dentons Canada LLP, says the decision continues a trend in secondary market securities class action claims where defendants are filing extensive evidence in response at the leave stage.
“In particular, they are rebutting what I might characterize as more speculative evidence that is being advanced by plaintiffs,” he says. “And in doing so, they’re making it far more difficult for plaintiffs to succeed at the leave stage.”
Fleming says the decision also confirms that motion judges are entitled to weigh that evidence.
“It’s not simply sufficient for a plaintiff to offer up some credible evidence in support of a claim, particularly where the defendants take on and rebut that evidence directly.”
Garth Myers, a class action lawyer with Koskie Minsky LLP, says it has been increasingly common for defendants to file a significant amount of evidence in these types of motions in order to dispute the claims advanced by the plaintiffs.
“As a result of the court’s increasing scrutiny of these claims at this stage, I think the defendants are encouraged to do so, but the downside of that is simply that it increases the cost and the complexity of these motions,” he says.
The settlement in the U.S. paid out US$14 million to investors who bought Silvercorp shares on the New York Stock Exchange between May 20, 2009 and Sept. 13, 2011.
Myers says it is easier in some ways and harder in others to push similar actions forward in the U.S. One difference is that there is a very different preliminary burden in Canada than in the U.S.
“In Canada, it’s evidentiary. You have to prove that there is a reasonable possibility of success and you do that using evidence,” he says.
“In the [United] States, the preliminary motion is typically a motion to strike. That’s just a pleadings motion and they look at whether the claim is capable of satisfying the pleadings requirements in the States, and that’s done without evidence and then subsequently they’re permitted to get discovery.”
Three people killed in crossbow attack in Toronto, Canadian Press
- ‘Significant breakthrough’ after period of intense campaign
After years of resistance, Legal Aid Ontario has agreed to come to the bargaining table to negotiate with its staff lawyers’ chosen union, the Society of Energy Professionals.
|LAO lawyers demonstrate outside a Liberal party fundraiser on July 13 in downtown Toronto. Legal aid has now agreed to negotiate with staff lawyers’ chosen union. (Photo: Alex Robinson, Law Times)|
Legal aid lawyers, who mounted an intense campaign on the LAO and the Ontario government in recent months, are calling this move a “significant breakthrough.” In the days ahead, the lawyers say the union and LAO will enter into negotiations they hope will end in the recognition of the Society of Energy Professionals as their bargaining agent.
“It’s a huge step,” says legal aid lawyer Dana Fisher. “It’s a step that they’ve refused to take until now.”
Legal Aid Ontario says it has agreed to meet with union reps to find out what its employees are looking for.
“At this point, we have agreed to meet with representatives of the Society of Energy Professionals to discuss arranging a vote to determine LAO’s staff lawyers’ wishes with regard to representation,” said Graeme Burk, spokesman for LAO. “We are taking this step because LAO wants to know conclusively what our staff lawyers want with respect to representation.”
Although her colleagues’ efforts are “finally paying off,” Fisher is careful not to declare victory just yet. “Saying that they’ll speak to us is a great first step and we’re really excited about it, but it’s certainly not the end of the road until we have something in writing,” she says.
Unlike most other workers, lawyers are not included in the Ontario Labour Relations Act. In order to unionize, they must obtain voluntary recognition from their employer. In 2013, LAO rejected its lawyers’ bid to unionize, saying it does not have a legal obligation to voluntarily recognize a trade union to represent its staff.
Later, LAO said it respects employees’ right to associate and is willing to consider associations other than the union the employees want to join. Legal aid expressed concerns about the fact that the Society of Energy Professionals is a trade union. But the lawyers were adamant, saying they’ve chosen the union because it is an “experienced and well-resourced association/union to mount an effective campaign.”
Since then, legal aid lawyers continued to pressure legal aid and the Ontario government, including the launch of a Charter challenge against them. They ratcheted up their efforts this summer, staging several demonstrations outside Liberal party fundraiser events and Premier Kathleen Wynne’s constituency office.
“I have never seen a group of workers as determined and dogged in their pursuit of collective bargaining rights as these Legal Aid lawyers,” said union president Scott Travers in a press release. “I am confident this breakthrough would not have been possible without the pressure Legal Aid lawyers and the Society exerted on the Wynne government and Legal Aid Ontario with the help of allies like the Ontario Federation of Labour.”
“Though we will move toward a normal, respectful bargaining relationship with Legal Aid Ontario, we will continue this public campaign until an agreement to recognize these lawyers' collective bargaining rights is final," Travers also said.
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