Should the LSUC limit Contingency Fees?

Update: see previous posts – April 23, 2017 Ontario has the most expensive auto insurance premiums in Canada and their rising again, April 15, 2017 Ontario roads safest in country but drivers pay the highest premiums, new report says, April 15, 2017 Ontario roads safest in country but drivers pay the highest premiums, new report says

A report by David Marshall, former CEO of the Workplace Safety and Insurance Board, found that the rates of death and injuries in Ontario are among the lowest in Canada, yet Ontarians pay the highest auto insurance premiums in the country.

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The report by David Marshall calls for faster and more efficient delivery of care to accident victims to avoid protracted legal disputes over benefits all too common under the current system.

The widespread use of personal injury lawyers to battle insurance companies indicates a “failure” in Ontario’s auto insurance system, says a government-commissioned report.

“There is clear urgency to make the accident benefits system simple and accessible without the need for legal representation,” says the report, written by David Marshall, former CEO of the Workplace Safety and Insurance Board. “In many ways, the need to have lawyers involved to negotiate settlements in what should be a straightforward, no-fault, accident benefits system signals a failure in the system.”

Marshall’s report, titled Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario,” looks at the costs associated with Ontario’s auto insurance system and makes 35 recommendations to improve it. The report calls for faster and more efficient delivery of care to accident victims to avoid protracted legal disputes over benefits — disputes all too common under the current system.

Marshall states that personal injury lawyers charge approximately half a billion dollars in contingency fees annually, while insurance companies spend roughly the same in legal fees and expenses to defend claims. Every year, between 25 per cent and 35 per cent of claimants — about 15,000 to 20,000 people — hire lawyers to deal with their insurance companies, the report says.

“Clearly, a better way to deliver fair benefits to accident victims needs to be found,” the report says.

Claire Wilkinson, a Burlington personal injury lawyer and president-elect of the Ontario Trial Lawyers Association, which represents about 1,200 personal injury lawyers, said she agrees that if the accident benefits system functioned properly, people wouldn’t need lawyers.

“It’s always felt like a David-versus-Goliath battle,” Wilkinson said. “Individuals don’t have the financial ability to fight the power and financial resources of the insurance industry. So they turn to personal injury lawyers because we give them a voice and the ability to fight, to try to level the playing field.”

Marshall was appointed by the provincial government in February 2016 to review Ontario’s auto insurance industry and his report was quietly posted online this month. He is not giving media interviews, according to the Ministry of Finance.

As reported in the Star last week, Marshall’s study found that the rates of death and injuries in the province are among the lowest in Canada, yet Ontarians pay the highest auto insurance premiums in the country.

In the report, he singles out personal injury lawyers as contributing to increasing costs and recommends that contingency fees — “you don’t pay unless we win” — be limited, while advertising and referral fees be banned or restricted.

A Star investigation published in January found that clients were often in the dark about how the contingency system works, including what fees their lawyers were taking versus what fees the lawyers were actually allowed to take. In one case the Star found, a woman injured in a car accident hired a lawyer on contingency and ended up with just 25 per cent of the total settlement paid out by the insurance company.

Marshall recommends measures to improve transparency surrounding contingency fee arrangements, including making insurance settlement cheques payable jointly to lawyers and their clients so victims understand how much of the total payout they will receive. Additionally, Marshall says clients should be informed in writing of their right to appeal fees charged by their lawyers and where to do so. The Star found many personal injury lawyers do not inform their clients in writing that they are entitled to appeal their legal fees to the provincial fee assessment office.

Marshall recommends that contingency fee agreements also be filed with the province’s insurance regulator, which would perform spot checks to ensure fairness.

Under the current system, Marshall notes, lengthy legal battles often mean accident victims do not receive timely assistance with their injuries and as a result suffer financially. Many are forced to turn to “settlement loan” companies that provide temporary funds without a credit check but at high interest rates.

“There should be very little, if any reason to have to hire a lawyer or resort to a finance company to provide a bridge loan, especially in cases where there are minor injuries,” Marshall writes.

Wilkinson, from the trial lawyers association, takes issue with Marshall’s recommendations, saying her group and the Law Society of Upper Canada were already addressing many of the concerns identified in the report. For instance, the law society voted this year to cap referral fees and provide more guidance on acceptable advertising practices, she noted. The ceiling on referral fees has yet to be determined, but recommendations from a law society working group looking at the issue are expected this week.

Wilkinson said making settlement cheques jointly payable to lawyers and their clients could create logistical problems if the two parties live in different cities. And she said clients already have to sign releases that state clearly how much their cases are settling for before they receive their money.

Wilkinson noted that restricting the amount of contingency fees lawyers charge could create “a serious access-to-justice problem.” She said her group is working with the law society to create a standardized contingency fee retainer agreement that would be easy for the public to understand.

“The Marshall report, in a couple of places, seems to suggest personal injury lawyers are part of the problem here,” she said. “We are not in opposition to our own clients. We are working together to try to get our clients fair compensation.”

Although Marshall’s report states insurers spend roughly the same amount on legal fees and expenses that lawyers charge in contingency fees, Steve Kee, a spokesperson for the industry group Insurance Bureau of Canada, says no one really knows how much money lawyers actually take from settlements.

“While our services, products and premiums are regulated, legal fees are not. No one knows exactly what lawyers pay their experts for their own assessments, so we have no idea how much of this money never makes it in the hands of accident victims,” he said.

“In the best interest of all Ontario drivers, we believe lawyers should be required to submit to the Superintendent of Insurance all information about their fees — including contingency fee arrangements, disbursements to expert witnesses, court-awarded and settled costs, and referral arrangements.”

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