What COVID means for plaintiffs

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With word coming down that jury trials in Ontario won’t resume until  at the earliest September 24th, one personal injury lawyer is concerned about the additional strain this puts on plaintiffs and thinks lawyers need to take steps, now, to make sure their cases are at the front of the line when courts eventually re-open.

Lindsay Charles, an associate at McLeish Orlando LLP, says that measures like extending the statue of limitations and suspending jury trials must force lawyers to work harder and employ creative strategies that will ensure their plaintiffs’ cases are heard as quickly as possible when the courts do eventually open. She says that despite some of the roadblocks erected by the courts, there have been a few significant benefits like allowing for electronic filing of Statements of Claims, and in some instances, using technology like Zoom to complete examinations that would have previously required significant travel time, some even requiring a flight.

“In an auto-accident where the Plaintiff is unable to work due to their injuries, they are first off struggling to get by, and secondly, they are only entitled to 70% of their income up to the date of trial.” Delays in getting a trial date extend that financial hardship, and also extend the length of their pre-judgment “past loss of income” claim, Charles says. It’s not just the lack of income, often times Plaintiffs struggle to take care of their home, and need help with their basic activities, things like that make it challenging on Plaintiffs. 

While the postponement of jury trials is concerning, Charles says the implementation of novel procedures like electronic claims filing, and virtual commissioning of documents, are “great” new additions to the trial system, that will likely last beyond the pandemic.

Nevertheless, Charles says she’s concerned about broader access to justice. Without a set end point, and with no ability to get trial dates for Plaintiffs, people’s lives are going to be put on hold beyond the scope of the lockdown.

Charles is doing her best to make sure her clients don’t feel the delay too acutely. She says she’s been trying to move her cases forward as best she can with the constraints in place. She says that examinations for discovery have already moved online, largely through Zoom video meetings. When other lawyers aren’t as comfortable with the technology, Charles and her colleagues are happy to assist them in getting comfortable in order to make sure the cases continue to progress. Mediation, too, is a crucial step in the personal injury process that’s moved online. Charles says that the mediators she works with have managed to accommodate the shift relatively well. The law society, too, has allowed for the virtual commissioning of affidavits, another potential administrative headache smoothed out. She says, too, that judges in some regions in Ontario are holding case conferences and pre-trial conferences by phone, another major step in the process.

Charles says that the suspension of jury trials should also invite lawyers to develop clever ways to shift their cases to judge alone. Where previously a typical reason to file a motion to strike a jury was the complexity of a case, she hopes lawyers can come up with some new novel new arguments that will allow them to have a Judge as the trier of fact.

“This period is about getting comfortable with technology and making sure you continue to build, and move your files forward,” Charles said. “It's also an opportunity to go through your files, make sure you have all the evidence you need, to marshal further evidence to help build your case. Some things that can be done during this period are to get witness statements and to touch base with your clients at great length. All of these factors will ensure you are continuing to advocate as best you can for them.”