Law Times

Law Times • November 13, 2017 Page 11 www.lawtimesnews.com Hasn't become mainstream in Canada yet Legal expenses insurance assists with access to justice BY MICHAEL MCKIERNAN For Law Times T he legal profession should renew its focus on legal expenses in- surance as the product slowly but steadily gains traction in Canada, says the former head of the Canadian Bar Associa- tion's access to justice commit- tee. John Sims headed the com- mittee in late 2013 when the CBA announced its aim to have 75 per cent of middle-income Canadians covered by legal insurance by 2030. The ambi- tious target was unveiled in the committee's "Reaching Equal Justice Report: An Invitation to Envision and Act," which noted the popularity of the product in jurisdictions outside of North America. Legal expense insurance policyholders, which include businesses and individuals, re- ceive coverage for some or all of the costs associated with certain legal situations. The report said that around 40 per cent of Euro- peans had some sort of coverage, including virtually all house- holds in Sweden, where carriage was made mandatory in 1997 to offset the impact of falling legal aid funding. "In principle, it makes a lot of sense. It's not a panacea, but it can bring access to justice to a certain group that wouldn't oth- erwise be able to meet their legal needs," says Ottawa-based Sims, a former deputy minister of jus- tice and deputy attorney general of Canada. "I think it may be time for us to come back and have a fresh look," he adds, noting that the concept has yet to hit the main- stream in this country. At the time of the CBA re- port, estimates put the total Canadian market for legal ex- penses insurance at around $11 million to $12 million in annual premiums, with the bulk of that amount paid in Quebec, where the Barreau du Quebec had pre- viously spent $2 million in its drive to promote the idea to con- sumers. "That was a massive and very expensive campaign by the Barreau, but even after that, the take-up was still only around 10 per cent of Quebecers," Sims says. Kevin Le Messurier-Girling, president of legal expenses in- surance company Sterlon Un- derwriting Managers, says the Quebec bar set the gold standard in terms of promotion of the in- dustry. "There's plenty more the le- gal profession can do. Outside Quebec, law societies have done some things to raise awareness, but they've never advanced in the same way, which I think was a huge mistake," he says. "I always thought lawyers should be doing more, because the end result is a client who walks through their door with money to spend on a legitimate case." Despite that, Le Messurier- Girling says the industry is fi- nally primed to burst into public consciousness. "In the last year, we have seen explosive growth. Insurance brokers and [managing general agents] are really embracing and understanding it, so it's increas- ingly on everyone's radar," he says. Kent Pitkin, vice-president at insurance wholesalers April Canada, says the market has grown significantly since 2013 to more than $20 million in an- nual premiums but that it is still not reaching its potential. He says a lot of his job involves educating potential customers about the idea, since much of the public remains initially skeptical about this type of insurance. "They think they won't need it," Pitkin says. "But once they understand what they're getting for their money, it's a no-brain- er." One group that doesn't need a hard sell on the benefits of the product, according to Pitkin, are those who have had a legal prob- lem in the past. "Their eyes are opened to its potential, because they know how much a lawyer costs per hour and what you can spend on a court case. So it becomes quite apparent to them what a good deal they are getting for an extra few hundred dollars of pre- mium," he says. "Our society is becoming more litigious, and I think that's going to help more people grasp the value of legal expenses insur- ance." Julie Macfarlane, a profes- sor at the University of Wind- sor's faculty of law who runs the National Self-Represented Liti- gants Project, agrees that legal expenses insurance would be a good option for the increasing number of Canadians who earn too much to qualify for legal aid but still can't afford counsel. "People in the legal profession understand very well that legal problems can come at you from nowhere, but if you're outside the system, you think it's not go- ing to happen to you," she says. In addition, she says, the poor reputation of lawyers among laypeople doesn't help matters. "There's a really widespread mistrust of lawyers. Almost ev- eryone has heard a story about someone who went to a law- yer with a problem, thinking it would cost them $1,000 to solve, and they come out of it with a $30,000 bill," she says. "When I run this past people, they always ask why they would want to buy a policy that will give lawyers more money. In their view, it would be like buying hurricane insurance if you thought all the builders in your neighbourhood were corrupt, which is unfortu- nate, because it has lots of poten- tial." LT FOCUS Julie Macfarlane says legal expenses insurance would be a good option for the increasing number of Canadians who earn too much to qualify for legal aid but still can't afford counsel. A dvocacy encompasses a broad range of processes to support a cause. It does not only involve what may be considered the pin- nacle of advocacy for lawyers – trials and appeals. It has be- come more diffi cult for lawyers regardless of your years at the Bar, to enter the arena of a trial or appeal. It is important in certain cases to have a decision. There are oppor- tunities in the area of benefi ts and negligence law to advocate in formal adjudication settings. There are ways to get advocacy experience, despite the present dearth of opportunities to do trials and appeals. There are administrative tribunals, there is the Small Claims Court and there are summary judgment motions in Superior Court, and private arbitrations. Every case that gets adjudicated requires the same skills of the advocate. She must make an opening submis- sion, do examination in chief and cross-examination, and make a closing argument on the law and evidence. The advocate's basic tool-kit is the same, whether the case is before a judge alone, a judge and jury, an administrative tribunal or a private arbitrator. There are differences in the style, in terms of how to present a case most effec- tively, from one forum to another, but the similarities are more important than the differences. The Licence Appeal Tribunal which deals with Statu- tory Accident Benefi ts disputes provides the opportunity to have preliminary and full hearings. Hearings can be in writing, oral, or a combination of both. Hearings can deal with procedural issues, substantive issues, or both. Advo- cates may be afforded the opportunity to enter the arena of a dispute and deliver an opening statement, conduct examination in chief and cross-examination and make a closing argument. In the Superior Court, advocates should be mindful of Hryniak. Summary Judgment may be appropriate in cases involving a limitation period or a strong liability defence. The Supreme Court of Canada has told us that we should be fl exible about the process of getting evidence in the record and getting a case adjudicat- ed. Putting some evidence in by affi davit and some evidence in through live witnesses may provide some clients (and their advocates) with an opportunity to get a case adjudicated with less expense than would be required by the usual trial procedures. For those who want the experience of advocating a case through to adjudication, there are ways to get the ex- perience in a way that benefi ts your client. However, you need to be creative and approach cases as though having a dispute adjudicated in an inexpensive but broadly fair and reasonable way is a good thing. Waiting for a decision is important to your professional development. Under- standing the decision is just as important, and you should experience all aspects of adjudication advocacy in order to make you a better advocate. By Frank Benedetto and J.-C. Rioux Sponsored by Flaherty McCarthy LLP Advocacy Through Adjudication WHEN YOU HIRE ONE OF US, YOU HIRE ALL OF US HONOURED TO BE ONE OF CANADA'S TOP 10 INSURANCE DEFENCE LITIGATION BOUTIQUE FIRMS As Voted By Canadian L awyer Magazine Forward Thinking Strategic Litigators CHOSEN AGAIN TORONTO | WHITBY | OT TAWA | FML AW.CA Untitled-4 1 2017-11-07 2:23 PM

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