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Back to basics

Use of experts and introduction of technology challenging in defence bar.
|Written By Shannon Kari
Back to basics

For lawyers who practise insurance defence in personal injury cases, both in-house and external counsel, the past 12 months have not been marked by landmark Supreme Court decisions or other major developments that impact this area of the profession on a daily basis.

That does not mean it has been uneventful. Instead, it has been a time of continuing to deal with high volumes of cases, increased competition in the field, courts somewhat inconsistently embracing technology and an increased focus on ensuring the credibility of experts used in any litigation.

Heather Vaughan, a Toronto-based insurance defence lawyer, says “shiny objects” such as the future impact of self-driving cars or anything related to cannabis may attract more attention, but that is not the primary focus on a day-to-day basis for litigators in this area.

“It is about going back to the basics and dealing with the cost of litigation and an ongoing lack of judicial and court resources,” says Vaughan, a partner at Benson Percival Brown LLP in Toronto and vice chairwoman of the Canadian Defence Lawyers’ women’s caucus.

“Both sides are using more experts. Files are open for a longer period of time [because of a lack of available judges]. That adds costs at a time when there is pressure to reduce expenses,” says Vaughan. “As well, I think there is an increase in the volume of personal injury cases, especially smaller ones.”

According to Vaughan, one explanation for this increase may be because of the volume of advertising on the plaintiff side, with commercials that routinely promise that there will not be any fees for the client unless there is a financial settlement.

In Ontario, where the volume of cases is the highest, the province’s Civil Rules Committee has proposed changes that could increase the number of claims under the “simplified procedure” provisions in the existing rules. The current maximum claim under this process is $100,000. The proposed changes would increase that maximum to $200,000. As well, costs awards would be capped at $50,000 and disbursements at $25,000. Another potential change would be to take away the right to a jury trial for simplified procedure claims.

For the proposals to be implemented, the Ontario government will have to enact legislation to amend the rules and the Courts of Justice Act.

“This would have a significant impact on smaller personal injury cases,” says Vaughan, adding that if the changes are put into place, it might free up court resources for litigation involving more serious injuries.

The proposals would also likely limit the use of experts in smaller cases because of the cap on disbursements.

The use of experts in general and finding someone whose evidence will genuinely assist the court continues to be an area where there is more scrutiny, as a result of appellate-level decisions in recent years, such as the Supreme Court of Canada decision in 2015 in White Burgess.

Bill Evans, senior practice counsel at Aviva Canada Inc. in Toronto, says the message is very clear at the trial level. “The courts want experts that will help them and not one side or the other. We are very cognizant of that fact. We try not to go to the same experts again and again. We also try to find new voices,” he explains.

At the same time, he says, it can be a challenge to find the appropriate expert in some instances. “There are only so many doctors who want to do this. There has been talk of sharing an expert and using a common report, although I am not aware of it happening yet,” says Evans.

As a result of major changes to the civil rules in British Columbia in 2010, there has been guidance in this area in the province for a number of years, says Vanessa Gauthier, a partner at Lindsay LLP in Vancouver. “The rules on experts are very specific. Their duty is to assist the court,” she says.

“We exercise a lot of caution in who we choose. We check to see if they have previously been disparaged by a court and we carefully assess their credentials,” adds Gauthier, whose practice focuses on insurance defence litigation.

As well, she notes that access-to-justice issues and the cost of litigation are just as top of mind in B.C. as they are in the rest of the country. “Adverse costs insurance is more common. You are seeing litigants who used to be fearful of being subject to an adverse costs award now going to trial,” Gauthier says.

An increased use of technology is another way to try to reduce costs. In B.C., e-filing has been in place for a number of years, and video technology can be used by the courts if witnesses are in remote sections of the province and the lawyers on both sides agree.

“There are also judges who embrace USB sticks or hyperlinks [to cases] in written submissions. More things are opening up,” says Gauthier.

If there is still a slow pace to embracing the use of current technologies, it is more likely a function of the operation of the courts than any resistance by the legal community.

Eric Grossman, a partner at Zarek Taylor Grossman Hanrahan LLP in Toronto, says the firm has been “paperless” for some time. “We are able to do paperless trials when the courts will allow it,” he says.

At Aviva, the move is also toward being paperless in its in-house litigation department, says Evans. “Everything gets scanned. We go to discoveries without paper,” he adds. For cases that go to trial, “it is still a function of which judge it is. The courts are getting a lot better though,” Evans says.

An ongoing issue for Aviva in cases where it goes to court and is successful is determining the appropriate costs award. “We don’t keep an hour-by-hour record. We find that to be inefficient and we are trying to relieve our lawyers of the tyranny of dockets. But because we don’t docket, we can’t just press a button and generate costs. Sometimes, judges have struggled in determining costs when we have been successful on a motion,” says Evans.

This may be a more significant issue in the years ahead as Aviva and other insurance companies continue to increase the size of their in-house legal departments and rely less on external firms. “There is a big trend toward bringing litigation in-house,” Evans says. “We are getting outstanding applicants from lawyers at very good firms,” he adds.

The increased staffing in-house is also impacting firms in B.C., says Gauthier. “Gone are the days that firms were more generalized. Lawyers are having to become more specialized,” she says.

Grossman, who has been practising for 30 years and co-founded his insurance boutique firm in 1997, says this recent trend has definitely had an impact. “It is a competitive environment. Outside firms cannot rest on their laurels. They must modernize their approach.”

“The practice of law is ever evolving, but these evolving subject areas are no less understood by in-house lawyers,” Grossman says.

“We have to show our clients that we have a competitive advantage, that we can create new efficiencies and that we do excellent work,” he adds. That has led to more specialization, he notes, such as an appellant advocacy practice group at the firm and also an “examination under oath” practice group. He adds that maintaining a presence in the area of continuing legal education is important for outside firms in the current environment.

If there have not been any major changes for insurance defence lawyers in the past year, Grossman says there is likely to be a significant impact depending on how the Supreme Court rules in three cases it heard together last December about the standard of judicial review of administrative decisions.

The Supreme Court decided to revisit its decision in Dunsmuir, issued only 10 years earlier. “A swath of insurance law is now being dealt with by Licence Appeal Tribunal adjudicators and arbitrators,” says Grossman.

The high level of deference to adjudicators under Dunsmuir has meant that, in many insurance cases, especially priority disputes, it could be difficult for the parties to agree on a specific arbitrator, Grossman says. “We have to be very careful how we pick them.”

The disagreements can even lead to litigation on this point. In a case last year where Grossman was acting for an insurer, an Ontario Superior Court judge was required to decide on the adjudicator after the original one died, and the two sides could not agree on who should be selected. In the decision, Justice Grant Dow agreed with the suggestion of Grossman’s client and appointed a former senior Superior Court judge who was now retired, instead of either of two private practice arbitrators with experience in automobile claims, which the other side had put forward.