Month: March 2014

For the first time in the history of the paralegal profession in Ontario, the Law Society of Upper Canada (“LSUC”), the Ontario regulatory body which governs the legal profession, is permitting paralegals to stand for election as directors (known at the LSUC as Benchers). This LSUC board of governors is made up of 53 members- 8 non-legal or lay members appointed by the provincial government, 40 lawyers elected by all lawyers in Ontario, and now soon to be 5 paralegals elected by their membership. This is an illustrious event in the annals of the paralegal profession. Were I a licensed paralegal, I would at the very least be concerned with which 5 members were going to assist in governing my profession on everything from scope of practice to discipline. The particular 5 to be elected are all the more important on a board with significantly more lawyer members, many of whom, from the get-go, dislike, fear, and disrespect paralegals.

The voting for this election could not be any easier. All of the more than 6000 licenced paralegals in the province need simply log on to the website to cast their votes (each voter can select 5 of the two dozen or so candidates in the mix). I am one of those lawyers who has always benefited from a symbiotic business relationship between lawyers and paralegals. I regularly teach paralegal courses, write for their publications, and speak at their conferences. I was honoured to be selected to moderate one of the two major election debates between the paralegal Bencher candidates last month. So it saddens me, and it should terrify the paralegals themselves, that according the LSUC, with only a few days until the close of voting, that less than 1000 of those eligible to cast their votes actually did so. The actual proportion to have voted as of this writing is 13%.

My lawyer colleagues didn’t fare a whole lot better. In the 2011 Bencher election, there were over 100 candidates for 40 seats. There were over 50,000 lawyers eligible to vote by mail. At the end of the day only 37% cast their ballot.

This particular apathy towards voting within a fairly insular self-governing profession is not only disturbing; it could have profound results. The more interested and informed voters there are, the most likelihood there will be of actually achieving a governing body that is truly representative of the personal, business and geographic diversity within the profession. The more people involved in the debates and dialogues over issues of the day, the more voices will not only be heard but listened to by those in power. And most importantly, an active electorate is the strongest bulwark against the tyranny of the minority in power.

Regrettably, this voter lethargy is not unique to the legal profession. It is in fact merely a symptom of the endemic atrophy of voter interest in the public at large.

There will be shortly a provincial election. In the last such election, the 2011 vote which sent Dalton McGuinty back to the Premier’s office, only 48% of Ontario voters showed up at the polls. Federally, Stephen Harper secured his last majority government in May of 2011 with a respectable but we-can-still-do-better 6 out of every 10 of registered voters bothering to leave their homes or offices to do their civic duty.

Next to self-governing regulatory bodies for the professions, the single most direct impact any level of governing authority will have on an individual is at the municipal level. And yet, municipal elections have abysmal turnouts. In the last province-wide municipal elections of October 2010, less than half exercised their democratic right to select their local government. While I would not expect anything nearing the 100 percent voter turnout in sham elections run by the likes of Saddam Hussein, a turnout of three-quarters of eligible electorate would be more in line with what one would hope for in a vibrant, active democracy.

Not that any of this is new. I recall with a mix of humour and sadness knocking on doors in the 1984 federal election with the late Solicitor General of Canada Bob Kaplan, and us being greeted again and again at the doors with stunned residents who, upon looking at the pamphlet I handed them, would exclaim “oh, there’s an election on?”

I have heard all the excuses- “I don’t know anything about politics”; “I don’t have time to go vote”; “They’re all the same so why waste my time?”; My vote doesn’t count anyway” And every conceivable variation on these and many other excuses.

We live in what is, despite Americans’ claim that they are it, the most free and democratic nation in the world. We are able to elect governments from our small town local council up to our federal government. There are dozens of professional regulatory bodies in the province representing hundreds of thousands of hard-working, tax-paying professionals. For the most part, those in the professions get to vote for their leadership as well. Even the condo I live in has annual elections to ensure the board of directors is democratically elected. But we should not take this democracy for granted. Democracy ignored can turn into democracy denied. We must take to heart our democratic right to vote and when presented the opportunity, we must educate ourselves, involve ourselves and motivate ourselves to be aware of the issues and to cast an informed vote.

When the major overhaul to the Rules of Civil Procedure was introduced in 2010, it seemed a step in the right direction. The emphasis was on making the litigation process more efficient, less time consuming, less costly for litigants, not to mention less taxing on an already overburdened judiciary and court system. The codification of cost proportionality, time limits on discoveries, increases in the ceilings in both Small Claims Court and under the Simplified Procedure, and more discretion to judges hearing summary judgment motions are all steps in the right direction, as are the amendments regarding status hearings under Rule 48.14. However, one significant change designed to speed the process along, Rule 48.15(1), may well work in some litigation matters, but in the majority of personal injury actions, it actually has the opposite effect. In personal injury cases, Rule 48.15(1) has actually resulted in an increase in time and cost to counsel and clients. Most significantly, it may have resulted in what can only be estimated to be thousands of unnecessary motions every year, straining our already limited judicial resources. In fact, the overriding principles of underlying the new Rule 48.15(1), as discussed by Master Dash in Vaccaro v Unifund, are that of prejudice to the defendant; the principle of finality; and public confidence in the administration of justice. The Master goes on to say that the court must “send the right message” and “provide appropriate incentives for those involved in the civil justice system.

Rule 48.15 states:

ACTION ABANDONED

Dismissal

48.15 (1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:

1. More than 180 days have passed since the date the originating process was issued.

2. No statement of defence has been filed.

3. The action has not been disposed of by final order or judgment.

4. The action has not been set down for trial.

5. The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.

The problem in the vast majority of personal injury actions is that 6 months after the issuance of the claim, very little may have happened. Let me give the reader a typical scenario in a typical high volume personal injury practice, and one which applies to the largest proportion of MVA claims. Once retained, plaintiff’s counsel will issue a Notice of Intention to Sue to the defendant’s insurer and begin the process of collecting the numerous documentary productions required to advance the plaintiff’s case. Obtaining an OHIP summary can take 3 to 6 months, doctor and hospital records often 2 to 3 months, employment records, income tax returns, school records all take weeks or months to obtain. In most cases neither plaintiff’s counsel nor the adjuster (the defendant for all intents and purposes being an insurer) will be in a position to assess the case for very near to 6 months at the earliest. Consider that some insurers take several months until an adjuster is even assigned and reviews the file. It is obvious that in most cases the plaintiff will be running up against this 6 month administrative dismissal unless immediately after the adjuster is on board the insurer is forced by the plaintiff to appoint counsel. And there is the rub.

Approximately 50% of these types of personal injury files settle at the adjuster level. It benefits the operation of an efficient personal injury practice, the client, and the insurer to, wherever possible, fairly resolve the file without the need for the appointment of defence counsel and continued litigation. Most significantly it benefits the court system. Half of the thousands of MVA claims need not take up precious judicial and administrative time of the system. Yet the Rules require that the plaintiff either force the insurer to appoint counsel, which many of them are reluctant to do. These adjusters will happily provide their consent for a motion to extend the time for dismissal or to reinstate after dismissal if it should become necessary. I have tracked my own files over 2012 and 2013 in an attempt to conduct an ad hoc empirical study.  Approximately 80% of the matters where a Notice of Pending Dismissal is received and where I do not force the insurer to file a defence end up being resolved without the need for a defence to be filed, and thus no motion is necessary. My practice is by no means atypical. Thus, I am bringing only 1 motion on average for every 4 or 5 notices I receive, and thus only 20% as many motions. Extrapolate this across the personal injury Bar and we are saving thousands of motions a year.

Unfortunately there has been, as a result of some decisions of the Masters Court in Toronto, an emphasis put on bringing these motions in a timely fashion, as in during the 45 day notice period, or as soon as possible after dismissal. The fear is that I can no longer essentially ignore the notice and dismissal, and then simply bring the one out of five motions that I will eventually have to bring when it becomes apparent that the negotiations have broken down and there is no prospect of settlement. And almost all of those motions will be on consent or unopposed. There is no prejudice to the defendant as their representative has agreed it was in their, and my client’s, best interests, to hold off on the filing of a defence. The insurer is not relying on any principle of finality. And as to the evidence being preserved, much of it is not even in our possession yet so it is certainly not stale or missing. Moreover, we are talking 6 to 12 months from the commencement of the claim. This article is not meant to address the 2 year dismissl notices, just the 6 month timeline. So any delay can hardly be seen as egregious. Both plaintiff and defendant are actively working to move the file forward. On those bases alone, many of the key factors Master Dash refers to simply would not bear scrutiny in the instances I describe. Obviously those larger claims where it is apparent that settlement will not be possible for years are not going to fall into the category where motions are necessary as a defence will be demanded by plaintiff’s counsel almost immediately.

My conversations with other plaintiff’s counsel reveal similar concerns by those firms. My firm handles approximately 250 to 300 cases at any one time and is a relatively small practice by some standards. The majority of files are could fairly be categorized as falling into the category referred to as needing exclusion from Rule 48.15. I am at a loss to see how bringing up to 5 times as many motions as necessary benefits the efficiency of the system and saves on court resources, both administrative and judicial.

There is a simple solution here. Either, invoke a sub-rule that applies to personal injury actions, say 12 or 18 months, or implement a system whereby plaintiff’s counsel and the insurer can extend the time automatically without a motion simply by filing a requisition confirming their agreement to extend the time. I had heard rumours that the latter process would be implemented, but so far they appear to be just rumours.

Given that Toronto Masters motions are now booking 3 months down the road, ex parte motions court is jammed every day it sits, and a typical motions list is often more than can be handled on a particular day, this change would benefit not only the personal injury Bar but the entire litigation bar as well as the court system. It would save countless amounts of money in terms of time and judicial resources, benefit all parties to the litigation by keeping costs down and encouraging pre-discovery resolution where appropriate, all of which ties in nicely with the new focus on cost proportionality.