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Page 12 January 16, 2017 • Law Times www.lawtimesnews.com FOCUS port potential of vulnerability to legal insurer LawPRO, which will then retain another lawyer to act as agent to the plaintiff 's lawyer to respond to the motion on behalf of the plaintiff. William Scott, a Toronto- based lawyer with Brown & Partners LLP whose practice concentrates on defending pro- fessional liability claims, often acts in this capacity for Law- PRO. "My purpose is to oppose the motion for summary judgment and have it dismissed," says Scott. "If the action is dismissed be- cause it was issued too late, then the client would sue the lawyer for the damages that he other- wise would have recovered had the action been commenced on time and proceeded to settle- ment or judgment." Ultimately, there is only one safe route, concludes Birman. "It is a tricky situation, but at the end of the day, the safest thing to do is to do it within two years," he says. LT and the plaintiff faces the po- tential of a summary judgment motion to have the action dis- missed. But waiting beyond the two years can attract a challenge from the defence, he says. He also says there is risk to the lawyer as well. "As soon as they bring these motions that you sued too late, lawyers end up in a bit of a co- nundrum because if they did in fact sue too late, if the claims are dismissed on these motions, the next thing they are probably go- ing to do is bring a solicitor neg- ligence case against the lawyer," says Birman. Lawyers are obliged to re- Continued from page 8 Waiting beyond two years a risk to client and lawyer fied with the new process, it is concerned that several cases have been withdrawn. That has led to speculation that perhaps these are frivolous complaints that are serving more as placeholders for claim- ants' legal counsel, he says. Kaitlin Troisi, spokeswoman for the Safety, Licensing Appeals and Standards Tribunals Ontar- io, says the new service is expect- ed to improve by further simpli- fying processes and procedures. For example, she says the new Automobile Accident Benefits Service "will be working towards the development of e-filing." Gluckstein sees some strate- gic advantages to the plaintiff in the new system because it is usually the plaintiff who decides when to start the process. He says they could have the advantage of taking the time they need — up to the two-year limitation period — to prepare all the evidence prior to launch- ing the application. But he points out the insurer must submit a response 10 days after the complaint is made. That, he says, means the insurer may not have time to get all the re- ports, previous medical records and all the documents they'd like to have prior to the hearing. "I think the process has the ability to be helpful to the plain- tiff because there are such short turnaround times," he says. At the same time, he says there may also be instances in the new system where it might be prudent to wait, in case the accident victim is denied anoth- er benefit so they can be stacked together in the same hearing. Gluckstein says another stra- tegic consideration is if there is a bodily injury or tort component before the courts, in addition to the accident benefit dispute. "You have to strategically de- cide on the timing on how these cases affect one another be- cause a decision from the LAT in such short term may have a negative effect on your tort claim or a positive effect," says Gluckstein. "You don't want to rush into an LAT case only to find it now burns you with your tort claim." LT E-filing on horizon? Continued from page 9 Stephen Birman says any time a lawyer launches a suit more than two years after an accident there is a chance that it could be challenged by the defence. Fresh Ontario legal news and analysis Get More Online LawTimesNews.com Untitled-2 1 2017-01-12 2:35 PM 7KHXOWLPDWHVRXUFHIRUWRGD\·VOHJDOSURIHVVLRQ Subscribe to Canadian LawyerWRGD\IRURQO\ Each issue of Canadian Lawyer is packed with unbiased in-depth case analyses, valuable strategies, expert insights, and a wealth of information that will allow readers to prepare for cases and effectively manage their practice. The integration of compelling features and columns convey unique perspectives to legal professionals that are both fun and entertaining, which is why Canadian Lawyer is the premier publication for covering the Canadian legal landscape. 2QH

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