Law Times

Page 12 November 6, 2017 • Law Times www.lawtimesnews.com Litigation boutiques help with negligence claims BY MICHAEL MCKIERNAN For Law Times L itigation boutiques are employing the power of teamwork in an attempt to buck the rising trend for professional negligence claims in the practice area. LawPRO, the professional indemnity insurer for the prov- ince's lawyers, recently reported that growth of litigation-related claims has outstripped the over- all claims rate, both in terms of total volume and cost. Between 2006 and 2010, the insurer received an average of around 700 litigation claims per year. But between 2011 and 2015, that number jumped 34 per cent to almost 950 claims an- nually and last year accounted for more than 36 per cent of all claims. LawPRO's total claims load over the same period rose by just seven per cent. Chris MacLeod, a founding partner at litigation-focused Cambridge LLP, says the num- bers are not a shock to him. "Litigation is very complicat- ed. There are so many issues and moving parts, especially when you get into complex commer- cial matters, that you need to think of it as a team sport," says MacLeod, who is based out of the firm's Toronto office. "We find the more bodies and minds you can get on a file, the better. It's helpful to be able to catch each other." At Windsor, Ont. civil liti- gation outfit Colautti Landry, partner Anita Landry explains that the firm's focus on claims prevention starts at client in- take, when team members turn their minds immediately to lim- itations issues. One member of the office's support staff is responsible for a central tickler system, with vari- ous additional checklists and charts attached to individual files, where the primary lawyer and law clerk responsible are identified. And four times a year, the en- tire staff gets together for a com- prehensive file status meeting to review every matter outstand- ing on the firm's books. "It takes a full day," Landry says. "If anything is outstanding, we want to know why and what we can do to keep the file mov- ing or whether it's OK to sit on it for strategic reasons." "It's a big team approach. There are a lot of eyes on the file, so you're less likely to miss dead- lines that way," she adds. Dan Pinnington, director of PracticePRO, LawPRO's risk management arm, says admin- istrative dismissals under Rule 48 of the Ontario Rules of Civil Procedure were "by far the big- gest driver" of the recent surge in litigation claims and costs. Between 2007 and 2014, the average cost of litigation claims was almost $6,000 per litigation practitioner, much more than the amount collected in premi- ums from the same lawyers. From January 2018, the insur- er will boost its transaction levy on non-family litigation matters to $100 from $50 to ref lect the recent developments. The levy is triggered either at the outset or defence of a proceeding. "While all insurance pro- grams require a certain amount of cost spreading across the spectrum of program par- ticipants, demanding higher premiums from higher-risk insureds is necessary in the in- terests of fairness. "The results of our risk-rat- ing analysis over the past sev- eral years have made it clear that fairness now demands that the civil litigation bar be asked to shoulder more of the costs of the program," Pinnington explains. However, he says amend- ments to the rule, which came into full effect at the start of 2017, have improved the situa- tion. Under the old version, par- ties had just two years to get their actions on the trial list be- fore the court's registrar sent out a notice of intent to dismiss the claim for abandonment. But the new Rule 48 scrapped the warning in exchange for a longer deadline, making dis- missal automatic after five years. The changes were first made in 2015, giving LawPRO two years to get lawyers up to speed, and its publicity drive, which included the creation of a transi- tion toolkit and a provincewide tour of awareness presentations, appears to have paid off, at least to some extent. "The new Rule 48 slowed the tide," Pinnington says. "However, we continue to see some Rule 48-related claims. "Some are arising as the courts continue to send out dismissal notices for pre-2012 matters. Others are arising on dismissals that are occurring as the five-year automatic dis- missal date under the new Rule 48 moves forward. "Claims arise under the new LITIGATION BOUTIQUES Chris MacLeod says he is not surprised by a jump in the number of litigation claims reported by LawPRO. If anything is outstanding, we want to know why and what we can do to keep the file moving or whether it's OK to sit on it for strategic reasons. It's a big team approach. Anita Landry of accounts, and disputed estate administration. have a proven track record for estate appeals. devrieslitigation.com 416.640.2754 Untitled-9 1 2017-10-31 12:48 PM See Administrative, page 13

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