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Personal Injury News

By Andrew Spurgeon

June 2021

Heads Up

There is a lot to talk about in the world of personal injury these days.  I want to touch on three developments.   (1) Here in Ontario, we are about to embark on a new regulatory framework governing contingency fee agreements (CFA).  I will give you a brief primer on that.  (2) In British Columbia they are about to institute a complete no-fault auto insurance scheme.  This involves eliminating tort rights in respect of auto accidents in BC.  (3) The impact of the pandemic on civil jury trials.  Though the pandemic, along with the phenomenon of Zoom trials has resulted in many plaintiffs successfully moving to strike jury notices, one needs to ask: what are the long-term implications of this trend?    

The New Contingency Fee Agreement Framework

After many years of complexity, prolixity, frustration and confusion we are about to have a new, simpler standard form contingency fee agreement in Ontario.   On July 1, 2021 a new standard form contingency fee agreement will come into effect.  It is simple and written in a plain language format that is understandable for people who did not go to law school.[1]  It is also flexible and can be tailored to the arrangements agreed upon between you and your client.  What is novel about the new agreement is the simplicity of the fee calculation formula.  The formula is:

Total sum recovered;

LESS:               Disbursements incurred;

TIMES:            Agreed contingency fee percentage;

EQUALS:        The fee to be charged.

Once this amount is calculated, the lawyer’s account would be determined as follows:

The fee to be charged as per the CFA

            ADD:               HST onto the prescribed fee;

            ADD:               recovery of disbursements paid or payable by the lawyer;

            EQUALS:         All-in bill to client. 

Calculating the contingency fee based on the total amount recovered removes the inherent conflict of interest that resulted from the exclusion of costs under the repealed subsection 28.1(8) of the old version of the Solicitors Act

In addition to a new method of calculating an account to a client, further reforms are now in place.  You will:

  • Be required to disclose the maximum contingency fee that you charge on your website;
  • Be required to provide potential clients with a standard form consumer guide, called “Contingency Fees: What You need to know” before they enter into a contingency fee agreement;
  • When reporting to your client on settlement of the matter provide certain information to them including:
    • A clear breakdown of the settlement or award including the net amount going to the client and for legal fees, disbursements, and taxes.
    • An explanation of the reasonableness of the fee in light of these factors:
      • Time spent working on the matter;
      • The legal complexity of the matter;
      • The results achieved; and
      • The risk assumed by the licensee, including the risk that the matter would not have been successful.
  • As well, you will be required, in your reporting letter to your client to provide a statement that the client has the right to assess the account.

These are only some of the highlights from the new CFA framework.  To learn more, go to the Law Society’s website:  https://lso.ca/about-lso/initiatives/contingency-fee-reforms.

What’s Going on in BC?

The government of British Columbia is rolling out a substantive reform of its auto insurance system.  As you are aware, there is a single auto insurer in BC.  The auto insurance system in BC is run through a not-for-profit Crown corporation called the Insurance Corporation of British Columbia (ICBC).  Until now, ICBC ran a hybrid tort / no-fault insurance model much like here in Ontario.  No-fault benefits were relatively modest and included medical and rehabilitation benefits as well as income replacement benefits. 

Persons who were injured in motor vehicle accidents could sue at-fault parties for sums in excess of the no-fault benefits.  What is happening now is that the tort component of the system has been removed, rolling the typical tort-based forms of compensation like general damages and loss of earning capacity into a complete no-fault benefit scheme.  The BC Government’s plan was revealed in a policy / consultation paper in February 2020 called: “Better benefits, lower rates: Moving to a care-based insurance model.” [2]

The stated objective of the plan is to remove conflict (read “lawyers”) from the system.  In so doing, many millions of dollars – says government – will be saved, providing care and compensation to victims of road accidents equal to what they would have received, at a lower cost – resulting in reduced premiums.  The primary justification for moving to a no-fault system was premised upon the following explanation:

“Affordability of insurance rates is a big concern for all British Columbians. Addressing this issue is at the heart of these proposed changes. Our current system is still seeing far too much spent on lawyers and legal fees. It’s a major reason why insurance rates are unaffordable for many, and why finding a solution to significantly reduce these costs has been so critical.”[3]

“Over the last two years alone, drivers have spent about $1 billion on insurance premiums that have gone directly to lawyers in the form of contingency fees—a key reason why rates in B.C. have continued to increase. Last year alone, the top seven personal injury firms alone received an estimated $100 million in contingency fees.”[4]

The new ICBC plan is premised upon the assumption that a collaborative, constructive and positive relationship will be developed among adjusters, health care providers and insureds.[5]  Benefits are being greatly enhanced notionally in terms of availability.   But what if this assumption is wrong?   What if an adversarial relationship develops among adjusters, health-care providers and insureds? 

The answer for BC residents is the Civil Justice Tribunal which provides aggrieved insureds resolution over claims for denied benefits with no right to sue.  The dispute resolution mechanisms in respect of benefits have all been channeled into an administrative law process.  The only resort to court in this circumstance is judicial review. 

This likely will not be the last word however, as I wrote in the last edition of this column in the HLA Journal, the Chief Justice of the Supreme Court of British Columbia has negatively opined on the jurisdiction of the BC Civil Justice Tribunal in respect of the issue of general damages in auto tort cases in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General).[6]

This will be a rapidly developing story over the next while.  We would all be well advised to watch developments in BC. 

Motions to Strike Juries in the Pandemic.

We have experienced a significant number of successful motions to strike jury notices in civil trials of late.[7]  The pandemic has had an impact upon how we conduct our business before the courts.  Technology enables hearings and trials by video while the pandemic places formidable barriers in the path of in-person hearings.  As the moments of truth arrive and trial dates loom closer and closer, plaintiffs have sought to strike out jury notices.

Courts in the present circumstances have been accommodating of these requests given:

  • The particularly stressed circumstances of court lists;
  • Emergency orders banning in-person contact and restrictions on people congregating in courthouses; and
  • The prejudice that can flow to parties from delay in proceedings.

This phenomenon should not however be taken as evidence that the jury trial in civil cases will go the way of the dodo bird.  Trial by jury is a “substantive right of great importance of which a party ought not to be deprived except for cogent reasons.”[8]  It is guaranteed pursuant to s. 108(1) of the Courts of Justice Act

In England, juries have been absent in civil trials, except for in limited circumstances, since 1984 when Parliament passed the County Courts Act (1984).  Section 62 of that Act indicates that issues of law and fact shall be determined by a judge alone.  S. 66 makes an exception for this proposition in respect of cases of libel and slander, false imprisonment, malicious prosecution and fraud. 

In Ontario we have largely preserved the right to trial by jury in civil cases.  It remains to be seen what the Attorney General may propose in respect of any further reforms of the court system.  In my last PI Update in the HLA Journal, I spoke about Louis v. Portias and the Court of Appeal’s advocacy for a “culture shift” in civil dispute resolution and civil procedure in light of technological changes and opportunities contrasted with scarce resources. 

Any substantive change in the right of a party to trial by jury must come from the legislature.  Procedural decisions of courts to strike jury notices in light of the extraordinary exigencies of the moment should not be taken as the last word on this issue.  As vaccinations ramp up and the pandemic fades in the rear-view mirror, we may find that some events in the course of an action governed by the Rules of Civil Procedure may remain virtual like motions and pre-trial conferences.  However, there may also be a desire for people to come together again in common spaces like court rooms to focus on momentous events like trials.  Time will tell.               



[1] Not that agreements previously used were understandable by people who actually went to law school.

[2] The BC Government Consultation Paper and Plan is set out at:  https://www2.gov.bc.ca/assets/download/000BAC79D98D4E14AAFCBBD582883BAD

[3] Ibid, p. 6

[4] Ibid, p. 2

[5] Ibid, p. 9

[6] 2021 BCSC 348, released: March 2, 2021.

[7] There are many examples.  For an excellent comprehensive catalogue and analysis of the case law please see Mary Grosso’s paper:  “Striking the Jury Notice Today, Louis v. Poitras and the Cases that Have Followed” prepared for the Hamilton Law Association - Advocate’s Conference on April 27, 2021.  

[8] King v. Colonial Homes [1956] SCR 528