Superior Court decision on costs ‘key’ for access to justice

A recent Ontario Superior Court of Justice decision on costs in a personal injury matter has “massive implications” for legal cost protection providers such as LISC Risk Management Inc. and, more importantly, will improve access to justice for plaintiffs, says John Rossos, chairman and CEO of the company.

“This is an authoritative ruling,” he tells AdvocateDaily.com.

The decision, written by Justice David Salmers, explicitly shifts the burden of paying for legal expense insurance to the defendant, as an assessable cost where the plaintiff has a successful legal claim.

The judge wrote that he disagreed with the defence counsel submission that the plaintiffs’ disbursement for costs insurance not be allowed.

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Judge Requires Defendant to Pay LISC Legal Expense Insurance Premium

Fresh on the heels of the recent win for plaintiffs on the issue of disclosure in Jamieson v. Kapashesit1, we are pleased to announce another resounding plaintiff victory on the legal expense insurance front. In what will no doubt be a game changing decision on point, in Armstrong v Lakeridge Resort Ltd.2, Ontario Superior Court Justice Salmers rejected the existing case law, ordering the defendant to pay the LISC Legal Expense Insurance premium.

Since the introduction of legal expense insurance several years ago, the plaintiff personal injury bar has unsuccessfully sought the recovery of premiums as an assessable disbursement in successful trial or settlement outcomes. In a disappointing decision in 2015 representing the Court’s first (albeit cursory) consideration of the issue, Madam Justice Milanetti found in Markovic v. Richards3 that the premium was not payable by the defendant, noting that it was “nothing more than a discretionary expense”. Markovic has been successfully relied on by defence counsel ever since as the seminal decision on this issue.

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A Solid Win for Plaintiffs on Legal Expense Insurance

There has been great debate in recent years over the issue of disclosure of legal expense insurance (LEI) to defendants who have relentlessly pushed for full disclosure of plaintiffs’ LEI policies (also known as “After the Event” or “ATE” insurance). There have been decisions both for and against, culminating in the January 2017 decision in Fleming v Brown 2017 ONSC 1430 (“Fleming”) which held that a legal expense insurance policy must be disclosed pursuant to Rule 30.02 of the Rules of Civil Procedure. Most lawyers presumed this was the end of the debate, and with it the strategic benefit of maintaining privilege on the terms and details of their clients’ coverage.

Fortunately, Fleming was not the last word!

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