"AvoidAClaim" Blog

Mediation is a powerful tool. When managed by a capable mediator, it can shine a bright light on a dispute, illuminating for all parties the strengths and the weaknesses of their respective positions.

The dynamic nature of mediation can also create unintended hazards.

To read the article click here or on the image above. The article orginally appeared in the the Winter 2006 “Delivering on the Client Service Promise” issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives

Here at LAWPRO, we monitor the news, especially legal journalism, to better understand the challenges facing lawyers. It’s rare that a week goes by without a story about barriers to access to justice. Indeed, while doing research for a feature about the challenges facing family lawyers in August 2012 (read it here), we were struck by how many of the lawyers we interviewed cited access to justice concerns as the most pressing issue in their field today.

But this week, two access-to-justice stories caught my attention by making the point that poor access to justice harms not only the individuals experiencing who experience it directly, but rather all of us. By restricting the pool of parties able to seek judicial remedies, barriers to justice slow the development of the caselaw, thereby allowing outdated or unsatisfactory practices, regimes and principles to remain in place, affecting the interests of the broader community.

The first story was Alan Shanoff’s commentary (Law Times, April 29 edition) about the costs backstory to the Jones v. Tsige privacy tort case. Successful plaintiff Jones was awarded $10,000 damages, but the litigation cost her over $160,000, and because of the novelty of the cause of action, she was required to bear her own costs. Shanoff points out that Jones developed the law with respect to privacy, but that the change was narrow, and exorbitantly expensive − inefficient progress, and incredibly burdensome for a single individual.

The second article, by Lawyers’ Weekly writer Cristin Schmitz (Lawyers’ Weekly, May 3 edition), tells the tale of an injured worker’s thirteen-year battle to obtain judgment against two insurers whose behaviour the court deemed a “reprehensible” display of bad faith. The result for the plaintiff was a record-breaking $4.5 million judgment (one of the first offers from one of the two insurers had been just $22,500). The court expressed doubt that many plaintiffs in the worker’s position are equipped to withstand “the financial and psychological pressure” of the kinds of defense tactics that were used in the dispute. How did this particular plaintiff manage? His daughter funded the litigation for as long as her funds held out, and then the law firm representing the plaintiff, Fasken Martineau, agreed to suspend billing its fees when the plaintiff hit the point where he could no longer pay.

While the firm’s forbearance was admirable in that case, we know that few law practices can afford to regularly postpone billing or gamble on receipt of fees, especially in practice areas where contingent fee arrangements don’t predominate. But as a profession, we cannot fall back on the excuse that we can’t afford to help promote access to justice. Not all forms of help cost money. Solutions to the increasing access to justice problem are likely to be complicated, piecemeal, and will require creativity and innovation.

Do you have creativity and innovation to spare? Keep reading and thinking about ways to improve access to justice while preserving quality in legal representation. And when you do have the capacity to assist an individual client (for example, by providing pro bono representation), remember that individual client wins often advance the law in ways that support the interests of society at large.

The number of claims we’re seeing based on the administrative (Rule 48) dismissal of an action continues to grow at an alarming rate, as do the costs for these claims.

As the new procedure for these dismissals becomes old news, courts are becoming less amenable to our repair efforts. The list of acceptable excuses for delay continues to shrink; the incidence of delay does not. Lawyers need to have reliable systems in place to identify languishing files, and need to take the initiative to move those files along.

Our analysis of claims reveals certain factors and patterns that contribute to administrative dismissals. One factor is insufficient supervision of junior lawyers.

In some cases, a senior lawyer who is ultimately responsible for a file delegates it to a junior who is overwhelmed by his or her workload, but may be too embarrassed or intimidated to speak up. The junior lawyer misses deadlines, but the senior lawyer is not supervising him or her closely enough to notice. Another dangerous scenario arises when a lawyer’s unexpected hiatus from legal practice (for example, due to an illness, injury, or family emergency) triggers a “cluster” of administrative dismissals. When we see these clusters it appears that the lawyer’s active files are not being monitored by a staff person or not transferred to colleagues for interim handling. Has a colleague or peer taken an unexpected leave? Be nosy and find out what is happening with his or her work-in-progress. Also, ask yourself if your office systems would catch an inactive file or make sure any necessary steps would be taken if necessary. Your inquiries may help ensure that your colleague does not return to an overwhelming mess and a large number of costly claims.

In an article published in the Lawyers Weekly in August 2012 (available here), I summarized five steps, suggested by LAWPRO counsel, for managing stagnant files:

• When filing a claim, ensure that the client understands the obligation to keep the litigation moving along and knows the potential consequences of delay.
• Diarize the 180-day period, and ensure that your system provides an action prompt well in advance of the deadline. Don’t rely on receipt of status notices as your prompt. These have been known to go to the wrong lawyer, to disappear in the right lawyer’s inbox, or to be misfiled.
• Instruct staff to bring status notices to your immediate attention.
• As soon as you’re prompted of the approaching deadline, remind your client, in writing, of the obligation to move the matter forward. Explain what instructions, documents, etc., you need from him or her to be able to do so.
• If you don’t receive instructions from your client, take immediate steps to get off the record.

Another tip, not mentioned in that article, is to use the “inactivity monitor” function in your litigation management software to flag these files in the first place.

That article built upon three others. The first, by new claims unit director and counsel Domenic Bellacicco, advised that lawyers contact LAWPRO for help as soon as they discover that an action has been dismissed. In a follow-up article in the summer of 2011, Bellacicco reviewed new case law developments in the area and summarized the key points that must be addressed in the materials a lawyer prepares (with LAWPRO’s help!) to support a motion to set a dismissal aside. In a practice tip in Fall 2011, senior claims counsel Dale Herceg reminded lawyers not to allow progress in settlement negotiations to distract them completely from the running of a limitation period. Negotiations can fall apart unexpectedly, and discovering that the underlying action has been dismissed is a nasty –but completely avoidable – surprise.

This article by Nora Rock, corporate writer & policy anylist at LAWPRO, appeared in the February 2013 edition of the LAWPRO Webzine. All webzine and magazine articles can be found at www.lawpro.ca/magazinearchives

This article by Nora Rock (corporate writer and policy analyst at LAWPRO) originally appeared in the August 31 issue of The Lawyers Weekly published by LexisNexis Canada Inc.

Like fossil fuels and the saber toothed-tiger, judicial patience is a non-renewable resource. We at LAWPRO are especially mindful of the limits of judicial forbearance in the context of motions to overturn the administrative dismissal of an action as permitted under Rule 48.15(1) of the Rules of Civil Procedure.

The administrative dismissal rules help relieve court dockets clogged with abandoned actions unlikely ever to progress to trial. An action risks dismissal once 180 days have elapsed since filing of the originating process without an event that meets the criteria for progress: no disposition, no trial date, no defence filing, and no filing of a motion other than a motion challenging jurisdiction.

When an action is abandoned according to this analysis, a 45-day status notice is sent advising of impending dismissal unless a qualifying step is taken. If no action is taken in response to the notice, the matter is dismissed, and the limitation period runs out, we at LAWPRO often get word… in the form of a claim.

The claim report typically comes with an accompanying plea for LAWPRO’s help to resurrect the dead action. We have, in fact, become known for our track record in setting aside these dismissals. But while we’d love to take full credit for those successful motions (we call them “repairs”), we are keenly aware that an important ingredient in our success so far has been the implicit tolerance of the judiciary, when evaluating the evidence and law presented in support of the motion.

Judicial forbearance often comes with a side helping of admonishment. Where written reasons are provided in these successful motions, they frequently contain a warning that a harder line will be taken next time around. The message implicit in these warnings is that only so many dismissed actions – especially those in which the reasons for the delay are not novel – will be revived before the court loses patience.

Because we are involved with a significant number of these motions, we are well-placed to observe the erosion of judicial patience. That erosion is underway. And we are frustrated to report that there has been an increase of late – and not the hoped-for decrease – in the number of requests we have received to repair these files.

Dale Herceg, senior claims counsel at LAWPRO, noted in “Beware the Ides of Rule 48” (from the Fall 2011 issue of LAWPRO Magazine), that there is a reasonable explanation, in a few cases, behind the delay that triggers the dismissal. For example, where a plaintiff receives a status notice in a case where the defendant is an insurance company, even if the plaintiff acts promptly to urge the defendant to defend, 45 days is scant time for the adjuster to recommend to his or her principal that counsel be appointed, have that recommendation accepted, and have counsel chosen and instructed in time to file an intent to defend. In other cases, the lawyers for the parties involved may have problems obtaining instructions from their clients. This is not only true where clients are hard to locate, but also happens when negotiations are underway and there is optimism that litigation will be avoided.

But even in these “understandable delay” cases, the reality is that the fact of the delay is either known or – with good practice management procedures in place – knowable. The consequences of the delay are also knowable. The effort required to avoid those consequences is modest: Faced with a pending dismissal, the lawyer can either prod the opponent into filing a notice of intent to defend, or draft a summary judgment motion. In other words, unless the responsible lawyer (and his or her staff) are completely incapacitated by some calamity, administrative dismissal claims are avoidable. We at LAWPRO know this, and the judges and masters who hear these motions know this. Lawyers simply cannot count on limitless tolerance for “inadvertent” abandonment of litigation files. Failure to take Rule 48 seriously can easily leave a lawyer holding the bag.

Don’t want to be that lawyer? Dale Herceg and Domenic Bellacicco – director of LAWPRO’s New Claims Unit and author of a 2009 LAWPRO article about handling a Rule 48 dismissal – offer four dead-simple tips for keeping an action alive:

1. Diarize the 180-day period, and ensure that your system provides an action prompt well in advance of the deadline. Don’t rely on receipt of status notices as your prompt. These have been known to go to the wrong lawyer, to disappear in the right lawyer’s inbox, to be misfiled… you get the picture.
2. Instruct staff to bring status notices to your immediate attention.
3. As soon as you’re prompted of the approaching deadline, advise your client, in writing, of the obligation to move the matter forward (and of the consequences of not doing so).
4. If you don’t get instructions from your client, take immediate steps to get off the record.

Prevention methods are straightforward; repair less so. For more information about administrative dismissals, see our resources on the topic at practicepro.ca.

As organizations create increasing amounts of digital data, electronic discovery costs for lawyers can skyrocket. For firms with limited technology budgets, or cases with small amounts of electronically stored information (ESI), e-discovery can be challenging. Electronic Discovery for Small Cases offers effective, budget-friendly solutions for collecting, viewing, and analyzing electronic evidence that will benefit any litigator. With an overview of e-discovery techniques and extensive reviews of software products, this book will help you:

• Determine if you should collect ESI yourself or hire a consultant
• Select the best–and most user-friendly–collection tool for your budget
• Make the most of your e-discovery software with step-by-step guidance
• Process, view, search, and analyze a mixed collection of files
• Learn about affordable cloud-based applications for litigation support
• Publish a searchable document collection on a CD, DVD, or flash drive
• Work with electronic records at mediation, arbitration, or trial
• Learn about emerging ESI trends

The practicePRO Lending Library is a free resource for Ontario lawyers of more than 100 books on a wide variety of law practice management related topics. You can see a full listing of our books here. You may borrow a book in person or via e-mail.

The practicePRO Library is located in our office at 250 Yonge Street, Suite 3101 in Toronto and can be visited during our regular business hours (Mon to Fri, 8:30 to 5:00). We invite you to come by anytime to peruse our selection. All titles in the practicePRO Lending Library can be shipped to Ontario lawyers at our expense, and returned at yours after three weeks.

If you would like to borrow this or any other book please email us. Most of our titles are also available from the ABA Web Store or the major booksellers here in Canada.

This article by Domenic Bellacicco, Unit Director and Counsel, appears in the new Summer 2011 issue of LAWPRO Magazine. It is a follow-up to an earlier article on administrative dismissals by Domenic Bellacicco that appeared in the July 2009 issue of LAWPRO Magazine.

You have just settled a very complicated case on the eve of trial. The preparation leading to trial has left little time to work on other files, but fortunately the two weeks previously blocked off have now opened up. Time to catch up and start returning all those old phone calls and responding to those never ending emails.

You start reading an email from defence counsel on one of your personal injury files who has let you know that the Registrar dismissed your client’s action for delay about six months ago and he is closing his file.

He reminds you that you did not answer his previous letters asking you to move the action along and deliver the pre-accident clinical notes and records of your client’s treating doctors. When you review the file, you find underneath a copy of the police report, a status notice from the court warning of the pending dismissal, but you do not recall ever seeing it before.

Your first reaction is panic, but you then remember that this did happen to you before, and you recall having read an article in the July 2009 LAWPRO Magazine on this very issue. That article stressed that these dismissal orders need to be taken seriously and you should call LAWPRO immediately and ask for help.

You recall that the claims counsel at LAWPRO helped you write the appropriate letter to your client, and vetted your draft motion materials, which were later served on opposing counsel. Fortunately, the action was restored on consent, but you knew that LAWPRO would retain counsel on your behalf should the matter proceed to cross examinations and then be argued on a contested basis.
(more…)

The How Long Should You Keep Your Close Files? article in the December 2010 issue of LAWPRO Magazine was well received by Ontario lawyers. From the emails, phone calls and personal comments we received, it is clear the information we provided was helpful to many lawyers in terms of the decisions they needed to make with respect to the retention and destruction of closed files.

We also received some questions with respect to the side note to the above article concerning the ultimate limitation period and the Court of Appeal decision in the York Condominium and Jay-M Holding case. To make the comments in that side note clearer, we have added three words to the opening sentence in the final paragraph. The full text of that side note with the additional words highlighted in bold appears here:

When the Limitations Act, 2002 was proclaimed in force on January 1, 2004, many lawyers hoped that s. 15 of the Act would provide immediate protection against claims arising from legal services performed more than 15 years before the claim was made.

Section 15(2) of the Act provides that “no claim shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place…”

The judgment of the Court of Appeal in York Condominium Corp. No. 382 v. Jay-M Holdings, 2007 ONCA 49 (also found at 84 O.R. (3d) 414) put an end to this hope.

The Court held that where the allegedly defective services were rendered in 1978, by virtue of s. 24 of the Act (the “transition provision”), the defective services were deemed to have been rendered on January 1, 2004. Therefore, the 15-year “ultimate limitation period” was inapplicable.

By reason of this judgment, it appears that undiscovered claims based on legal services rendered on or before January 1, 2004, will be barred by s. 15 only as of January 2, 2019. As we move through 2019, legal services provided throughout 2004 will begin to be shielded from claims by s. 15. Claims for services rendered throughout 2005 will come under s. 15’s purview through 2020, and so on into the future. In the meantime, s. 15 appears to be of little practical importance.

The Toronto Lawyers’ Association announced today that they will be providing internet access to the Toronto Civil Court lists. Currently you can access Trials, Pre-Trial & Case Conferences, Motions and Masters’ Motions. The Commercial and Bankruptcy Lists will be available soon. The TLA aims to have the next day’s list posted by 5 pm each day (the lists are subject to change).

To access the lists visit the TLA home page at www.tlaonline.ca and click on “Court Lists” link.

To help make this happen the TLA acknowledged the efforts of Regional Senior Justice Then, the assistance of the Court staff including Jacqui Soutar and John Cottrell, then TLA Executive Director Joan Rataic-Lang and immediate past president Nestor Kostyniuk.

Civil litigation accounts for more legal malpractice claims in Ontario than any other area of law. It is also responsible for the second highest percentage of claims costs, after real estate.

From 2000 to 2010, litigation-related claims accounted, on average, for 34 per cent of LAWPRO’s claims count (650 claims per year), and 28 per cent of our claims costs ($17.4 million per year). On average, resolving a litigation claim cost LAWPRO $38,000 over that period.

While the annual number of civil litigation claims has remained relatively consistantly in the 600-700 range over the last 10 years, the cost of litigation claims is on the upswing, with costs in 2005-2008 being much higher than earlier in the decade. We are still assessing costs for 2009 and 2010.

The latest edition of LAWPRO’s webzine examines the most common civil litigation-related errors that LAWPRO sees, and the steps you can take to reduce the likelihood of a claim.

Taran Virtual Associates has updated its SABS chart for the changes which take effect September 1, 2010. This handy practice tool lists the important time periods relevant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996. Lawyers and law clerks can refer to this chart to determine at a glance how much time the regulations provide for the next step in their accident benefits case. The chart is available at http://www.virtualassociates.ca/links/home4.html