Many factors contribute to delay in this complex area, says Thomson Rogers' Lucy Jackson
Despite COVID-19 restrictions easing and life returning more or less to business as usual, plaintiff-side personal injury lawyers and their clients still face inordinate delays in accessing justice.
One source of delay that became worse since COVID is timely access to trial because a vast majority of PI cases proceed as jury trials, as opposed to judge-alone. The jury trials that were scheduled to proceed during the pandemic were pushed and anything scheduled since then is at the bottom of the docket. But resolving these cases in a timely manner is paramount for personal injury lawyers, given that many if not all of their clients are not able to work — or are working reduced hours — because of their injuries and have additional medical expenses that they need to pay for. It’s especially critical to expedite resolutions when the client has exhausted their accident benefit funds and may not be able to afford necessary medical treatment.
“The delay in getting dates for trial can result in little pressure for defendants (and their counsel) to move the matter forward — but there can be strategic benefits for a defendant to delay a case,” says Lucy Jackson, partner at Thomson Rogers. “The faster the case is resolved, the faster my clients can focus on their recovery without worrying about how they are going to pay for treatment or cover their bills.”
Predating the pandemic, PI cases fall below criminal cases in accordance with the Supreme Court of Canada’s framework in R. v. Jordan and below certain types of family law cases, such as those pertaining to child protection in terms of accessing trial time. But the multiple and complex factors inherently involved in personal injury cases also contribute to the length of time it takes to resolve them.
When there are challenging liability circumstances or disputes, both the plaintiff and the defendant will often retain liability experts. Conducting the investigation and preparing the expert report and any responding reports adds time to a case, Jackson notes, as does a plaintiff’s complicated medical history, such as a pre-existing medical condition that the defendant argues is the cause of their inability to work or their care needs, for example.
In that situation, the plaintiff will need to obtain additional medical experts to opine on how the incident impacted their health and the defendant also has the right to obtain their own medical experts to assess the plaintiff and prepare a report. Scheduling various assessments, drafting medical reports, and responding to reports further delays the resolution of a personal injury case.
If a personal injury case involves multiple parties, it’s also likely to take longer.
“We see this a lot with multi-vehicle collisions, where there are a number of defendant drivers and injured plaintiffs,” Jackson says. “One reason is because when there are multiple defendants, they are often denying liability and pointing the finger at each other. This means liability experts are often going to be retained and if the parties cannot agree on who is responsible, then sometimes proceeding to a liability-only trial is the only option.”
A defendant in a multi-party case can also be less inclined to make offers to settle a case if they believe one of the other defendants should be paying the majority — or all — of the damages, Jackson adds, pointing out that multiple parties also means multiple lawyers “which makes it a challenge to find mutually agreeable dates for the examinations for discovery or a mediation, therefore pushing the dates these critical stages in the case occur.”
Additionally the more witnesses, liability experts, medical experts, and parties there are means there’s more evidence to hear, which translates to a longer trial overall.
Another factor specific to motor vehicle collision cases is the “permanent and serious threshold.” Under the Insurance Act, an injured person is only entitled to damages for pain and suffering and health care expenses if they suffered a “permanent serious impairment of an important physical, mental or psychological function” as a result of the collision. In order for an impairment to be permanent, there must be medical evidence that despite participating in recommended treatment, the impairment is not expected to substantially improve.
“The defendant (and their counsel) will often insist on waiting to see how the plaintiff’s recovery goes and whether the impairments will qualify as ‘permanent and serious’ before they are willing to discuss the resolution of the case,” Jackson says.
Waiting to see how the plaintiff’s recovery goes can also impact the length of other non-motor vehicle collision PI cases too, Jackson notes. The quantum of the plaintiff’s damages depends on their recovery, including their ability to return to work and any future care needs. Therefore, defendants can be motivated to delay the case in hopes that the plaintiff will make a good recovery three or four years post-accident — ultimately reducing the amount of damages they would be ordered to pay. Unfortunately, many plaintiffs’ medical status will simply plateau or even deteriorate, therefore leaving them without necessary resources (damages) for longer.
Settling is often preferred to trial in PI cases because not only does it help get around the significant delay caused by waiting for trial dates, it also provides certainty of the outcome for clients. Many PI trials are jury trials, where six laypeople are the decisionmakers, which can add an additional level of uncertainty to the outcome.
The justice system is also designed to encourage settling before trial in civil cases, Jackson says, adding “it is well known that there are cost consequences for a party who does not accept an offer made pursuant to Rule 49 of the Rules of Civil Procedure and does not achieve a more favourable result at trial.”
“The purpose of Rule 49 is to encourage the parties to try and resolve the case before trial to help preserve court resources. That said, sometimes you have to take a case to trial — or to the eave of trial — to get a fair result.”
It’s critical that plaintiff-side personal injury lawyers find ways to expediate resolution for their clients whenever possible, and there are a few ways counsel can do this without interference from other parties. Chief among them is, simply, getting the ball rolling as soon as possible: while the statement of claim in PI cases must be issued with the court within the two-year limitation period — save for some exceptions — it’s important not to wait that long.
If you are having difficulty agreeing to dates with opposing counsel, causing further delay, an option is to attend a civil case conference and set a timetable with the presiding judge, Jackson says, as this can help to ensure that the case moves forward in a more timely manner.
“Given the delay in getting dates for examinations for discovery, mediations, and trial, the key is to get the claim started as soon as possible,” she stresses. “This helps ensure that the case moves forward as quickly as possible and that the earliest possible trial dates are secured.”
