Month: May 2016

With any insurance claim, a protracted battle starts — and a personal injury lawyer’s role is to fight with your insurer to oblige them to honour the policy, Toronto-area personal injury lawyer Darryl Singer writes in The Lawyer’s Daily.

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A woman who suffered a brain injury in a car crash will not have to pay the interest on a litigation loan made by the wife of her former personal injury lawyer after the Divisional Court declared the agreement “unconscionable.”

Marta Narbutt was 17 when she hired Niagara Falls, Ont. lawyer Ashley Gnyś’ firm Sharpe Beresh Gnyś on a contingency fee agreement shortly after the 2004 accident that killed her boyfriend when their car was struck by another vehicle. According to the Divisional Court, between 2008 and 2009, Gnyś arranged three loans for his client totalling $13,500 with a company called Health Services Recovery Network.

However, Gnyś did not tell Narbutt that HSRN was owned and operated by his wife Valerie Gnyś, who, according to the firm’s web site, has worked as a paralegal there since 1986, and had done work on Narbutt’s file. Nor did he explain that Timothy Beresh, the man who talked Narbutt through the loan documentation, was actually working for both the law firm and the litigation loan company and not for her.

Narbutt switched lawyers in 2009, and settled for $306,000, but she didn’t repay the loans, so HSRN launched a court action in 2012 to get her to pay up. By June 2015, when a superior court judge granted HSRN’s motion for summary judgment, Narbutt’s bill had ballooned to $41,649, including about $28,000 in interest alone on the loans, which had an effective annual interest rate of 19.5 per cent. After losing the motion, she paid back the entire $13,500 she had originally borrowed, but continued her fight over the interest owed.

On April 29, a 2-1 majority of the Divisional Court granted Narbutt’s appeal, rescinded the loan agreement, and dismissed HSRN’s claim, expressing concern about the way the identity of the lender was concealed from Narbutt, and the lack of independent legal advice offered to her.

“I find that these agreements are unconscionable because there was an imbalance of power, the Respondent took unfair advantage of the imbalance of power and the bargain was improvident.

“Furthermore, the Appellant had every reason to believe that everyone who spoke with her about the loans was representing her interests,” wrote Ontario Superior Court Justice Julie Thorburn in the Divisional Court decision, with Justice Graeme Mew concurring.

“The Appellant dealt with the lender in the belief that the lender was independent of her lawyer, who had been instrumental in the arrangement of the loan and choice of lender. She reasonably understood her law firm as assisting her in borrowing what was for her a substantial sum of money when in fact the Respondent, Valerie Gnyś, was the lender, her lawyer was the lender’s husband and employer and Mr. Beresh, who did accident benefits work for her lawyers, was in fact acting for the lender,” they added.

In a dissent, Justice James Kent, the third member of the panel, saw no reason to interfere with the decision of the motion judge, who found the lack of disclosure around the loan agreement was “irrelevant” because Narbutt could not have got a better deal elsewhere than HSRN gave her, and had, therefore, suffered no loss.

“My client is delighted,” says Margaret Hoy, another Niagara Falls, Ont. lawyer who took over Narbutt’s personal injury case and also acted for her in the loan dispute. “She was always prepared to pay back the principal. The problem was the interest they were charging her. When you have a young vulnerable person, it’s important to get them to realize how much this kind of borrowing will actually cost them.”

In an interview, Ashley Gnyś, who represented his wife at the Divisional Court, tells Law Times they will not appeal the majority verdict. Even in the event of a victory at the Court of Appeal, he says the most likely outcome would be an order for a full trial of the matter.

“A full trial is what we were trying to avoid in the first place with the summary judgment motion. It would be a little bit like winning the battle and losing the war,” he says. “The amount of money at stake in the grand scheme of things is not such a huge amount that you would want to devote those kinds of resources to it.”

Gnyś says his wife continues to offer litigation loans, but they have adjusted their practice to respond to the concerns raised in the judgment.

“We have learned from this case and made changes,” he says. “All we can hope is to make new mistakes, and not repeat old ones.”

Darryl Singer, a Markham, Ont. personal injury lawyer, says the decision highlights the importance of disclosure by lawyers in cases where they have an interest in a litigation lender.

“I’m not aware of any lawyers who are involved to that extent in loans, but if they are, the lesson is that they need to disclose their connection to the lender, and then send the client down the street to another lawyer for independent legal advice. It’s hard at that point for them to come back later and say they didn’t understand the agreement,” Singer says.

Alison Burrison, a partner at personal injury firm McLeish Orlando LLP, says her firm views litigation loans as a last resort. She says Narbutt got a competitive interest rate, since typical annual rates are currently around 24 per cent. However, she adds that Gnyś may have got more sympathy from the judges if the law firm had explored other options apart from a litigation loan, such as an advance from the tort insurer or a personal line of credit.

“The average case takes at least three to four years, so a loan at 24 per cent compounding monthly is going to add up pretty quickly. You don’t want clients incurring that kind of rate if you can avoid it,” Burrison says. “At the same time, a litigation loan can be important for access to justice. If one side is forced into settling prematurely because they are running out of funds, that puts them in an unfair position.”

Hoy says she was stunned to find out the hidden identity behind HSRN in 2012, soon after negotiating Narbutt’s final settlement.

The revelation prompted her to file a complaint with the Law Society of Upper Canada about Ashley Gnyś’ conduct, which in turn prompted HSRN to seek costs against Hoy personally after its original success at the summary judgment motion.

However, Ontario Superior Court Justice Robert Nightingale wrote in his Sept, 30, 2015 judgment on costs that the claim was undermined by the fact that the LSUC investigation concluded that the law firm was in an actual or potential conflict of interest regarding the loan situation.

According to the Divisional Court, the law society concluded no disciplinary action was required, deeming the failures matters of “best practice.”

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Given that an adverse cost award for a two-week long personal injury trial could be as high as $100,000, it is hard to argue against purchasing a cost protection product for clients, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.

Adverse cost protection products — which cover the risk that a trial might result in an adverse cost award — is a concept imported from Britain, which is now being marketed to personal injury plaintiffs and lawyers in Canada, the article explains.

Recovery notes that personal injury lawyers who have incorporated these products into their practices say mitigating the risk of an adverse cost order helps clients feel comfortable rejecting an unsatisfactory settlement offer.

“We have insurance for everything else,” Singer, principal of Singer Barristers Professional Corporation, explains. “This is just a form of insurance, and it’s relatively inexpensive if you buy it early enough in the process.”

“It allows people to say, ‘I think I have a meritorious case; my lawyer thinks I have a meritorious case. Let’s go to trial,’” he adds.

Singer has purchased BridgePoint protection to cover all his files and eliminate the risk of having clients frightened into settling suits or walking away from their cases, he says in the article. He bills clients for the premium as part of his disbursements.

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A new system that came into effect April 1 will see accident benefits disputes head to the Licensing Appeals Tribunal (LAT) instead of the Financial Services Commission of Ontario (FSCO) — but as Toronto personal injury lawyer Darryl Singer tells Law Times, he already has a number of key concerns with the new process.

While the system promises a speedy resolution of disputes, Law Times says it remains to be seen if it can deliver on its goal to resolve matters in a six-month time frame. Singer, principal of Singer Barristers Professional Corporation, says the fact that applicants have to pay a $100 fee at the start of the process is a problem.

“FSCO had no fee until an application for arbitration was made. Well over 50 per cent settled quickly at the mediation stage with no out-of-pocket disbursements. When the $100 was paid, the insurer had to file $3,000 to respond and engage outside counsel. It was a leverage to get a lot of files settled,” he says.

As Singer explains, at the LAT, insurers will also pay on a points system, proportional with their usage of the process.

“Under the old system, the payment came out of the reserve the adjuster had set aside for the file. I suspect it will now come out of a different pool and will not affect the adjusters. It is a global amount, not a file-by-file amount,” he says in the article.

Singer thinks that this will prove to be a burden for applicants and law firms who act on a contingency basis.

“It will weed out the firms that will take these files, especially the smaller, paralegal firms. It’s not economically feasible to take a lot of smaller files. The mechanism to fight them is not advantageous. We will end up like family law with so many self-represented parties,” he says.

The FSCO also had a 90-day timeline that worked out to an average of nine months.

“There are just too many applications for the resources. It won’t take very long for the back to break on this system,” he adds.

“Given how long it takes to get records from doctors, hospitals, and OHIP, the timeline isn’t ever able to be met in practical terms.”

Singer also says he is concerned that the new case conference may often be done by phone.

“There is a lot of leverage in face-to-face, in-person meetings. Until the adjuster and defence lawyer meet with the person, there is no human element. When they are there in person, they can see the person has injuries and that they will make a good witness. They see that they have some exposure and should settle. At the LAT, the case conference administrator has the sole discretion to decide whether our hearing is in person or a paper hearing,” he says.

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