The court backlog and the financial impact on plaintiffs: Easy Legal
By Jennifer Pritchett, Associate Editor
With the backlog in Ontario civil courts, personal injury plaintiffs have to wait longer for their cases to be processed, putting a growing number of them in financial hardship, says Easy Legal Finance Inc. president and CEO Larry Herscu.
“I don’t think people realize how long it takes for cases to be heard in the court system, and the financial impact this is having on them.”
“The length of the process is forcing more people into financial difficulty or to settle claims prematurely.”
Herscu says the litigation process can be long and so cumbersome that it often compounds the financial strain many feel as they wait for the outcome of their case. “As a result, we are seeing a growing number of people coming to us because of the backlog in the court system,” he says.
They are seeking third-party funding to help them through litigation so they can fund their day-to-day living and treatment expenses, he adds.
Earlier this year, Ontario civil lawyers sounded the alarm about what they describe as excessive court delays that are hurting their clients, reports the Toronto Star. Some of that delay has been attributed to judicial vacancies, the article says.
For many cases, the process can take more than two years to reach trial, says the Star.
Litigation is most often started after an individual is injured in an accident and calls a lawyer to seek legal advice, Herscu explains.
“The lawyer begins an investigation process with the individual to try to determine what happened, the injuries, whether those injuries are a result of the accident, and to assess whether these injuries are objective and easily seen, or more subjective,” he says.
“The lawyer then files the statement of claim, which sets out the damages the claimant is seeking for the accident and the facts that support their entitlements to the damages.”
In Ontario, individuals have up to two years after the accident to file a statement of claim, Herscu adds.
“Many people wait 12 months or longer to file their statement of claim,” he says.
After that document is filed, the defendant, typically the insurance company, has an opportunity to file a statement of defence, which outlines the factual contention of the issues, Herscu says. The time limit to file that document is 30 days however, it’s often extended up to an additional 90 days to allow the insurance company to collect its facts, he says.
“Now we’re at least a year and a quarter before you get the statement of defence,” Herscu says.
After the statement of claim is filed, there is mandated mediation in Ontario where the parties get together to try and work out an agreement. Herscu says the wait time to get a mediation can be as long as nine months. If the issues aren’t settled during mediation, there is a further wait of up to 12 months to schedule a trial.
Over the next few months, the parties get together for pre-trial motions and examinations for discovery where each side is questioned under oath by the opponent’s lawyers. At that point, there is still hope the matter will be settled before the trial begins, Herscu says.
Meanwhile, the clock is ticking — two years may have passed by this point — and plaintiffs who can’t work because of their injuries, have no money coming in to pay their bills, Herscu says.
“Their debts are piling up and they still need rehabilitation,” he says. “Many have no way to manage the gap between the amount of money they have and what they need. Some even have to claim bankruptcy because they can’t afford to cover their debts.”
The longer the litigation process, the bigger the advantage the defendants have over the plaintiffs whose financial hardship often forces them to settle, Herscu says.
Third-party funding companies such as Easy Legal often become involved in such matters around the six-month mark — sooner if the injuries are objective — after the claim is made to help ease the financial strain of those going through the litigation process, he says.
“Traditional lenders such as banks typically won’t lend money to clients without an income stream or asset base because they have no means to repay,” he says.
“However, our firm aligns our interests with those of the plaintiffs, to be on the same side of the table as them to give them an advance against their future settlements,” he says.
“If they lose their case, they don’t have to pay their principal or their interest, and in between the outset of their case and its conclusion we collect no payments.”