Although significant delays were affecting the progress of personal injury cases at the start of the pandemic, stakeholders have since adapted, and the system is now running quite smoothly, says Toronto personal injury lawyer Rohan Haté.

When COVID-19 hit in In March, forcing courts to close and non-essential businesses to provide services remotely, Haté says it had a substantial impact on people who had been injured, especially those involved in ongoing litigation.

“For people with claims, it was difficult for them to see their doctor or get the therapy they needed for their recovery,” he says. “The courts weren’t set up to allow us to file a statement of claim electronically. Even bringing simple motions related to servicing a claim or uncontested motions got delayed. Thankfully that has since changed, and things are now running quite smoothly.” 

Adapting to the new normal
As the pandemic progressed through the summer and fall, Haté says everyone started to adapt to the new normal of conducting business virtually. Lawyers are meeting with clients virtually and can move their legal matters forward.

“Until COVID-19, insurance companies wouldn’t accept electronic signatures, either for authorizations or releases. Now everybody’s accepting them, which is helping to speed up the process,” he says.

Ironically, some things are even more efficient now, such as examinations for discovery because they’re happening virtually, eliminating the need for attendees to travel, Haté says.

“We can complete an examination for discovery in a day now. Before the pandemic, when we needed to schedule a trial, you used to have to show up in court and would often be waiting around for two hours, even though your actual attendance was only 15 minutes. Now, we can do that remotely, and it saves lawyers a lot of time,” he says.

Virtual mediations a boon for plaintiffs 
Personal injury plaintiffs also welcome the advent of virtual mediations for their cases because it saves them from travelling, which Haté says is often challenging for people dealing with chronic pain.

“They’re much more at ease knowing they can just turn on their computer and attend from the comfort of their homes. They’ve already been through examinations for discovery, and feel relieved to know they don’t have to face the lawyer on the other side, which can be very stressful,” he says.

Haté, however, says he misses the “energy” of in-person mediations. While remote sessions are getting the job done, he thinks it’s much more effective to have everyone in the same physical location. 

“As a plaintiff lawyer, it’s important for the insurance company to see my client and get a sense of who this person is and how their life has been impacted. There’s a dynamic that happens when all parties are in the same room that Zoom can’t replicate,” he says.

Civil trials delayed
As a result of COVID-19, civil jury selection and jury trials were suspended from mid-March to September. That meant a huge backlog of cases and plaintiffs waiting for their day in court. At this point, it’s still unclear as to when normal operations will resume, Haté notes.

“In Ottawa and Newmarket, jury trials and jury selection started again on Nov. 9 and Nov. 16, respectively. Brampton and Toronto were scheduled to recommence on Nov. 16, but now it’s suspended until Nov. 30 and given the current situation with COVID-19, who knows when that will actually happen. I don’t see jury trials happening in November.”

Haté says while some plaintiffs are prepared to wait it out, there’s a “very real possibility” that some accept unfair settlements given the uncertainty around scheduling of trial dates.

“As a lawyer, it’s a struggle because I can’t give my clients certainty. I had a file recently where I believed my client had a great case, but when she was told by the mediator that they didn’t know when the trial date would be –– three or four years down the road perhaps –– that scares people. If there’s uncertainty as to when they’ll have their day in court, some are opting for a bird in the hand,” he says.

Judge strikes defendant’s jury notice
Although defendants, including insurance companies, have the right to a jury trial and often exercise it, plaintiff lawyers have been pushing back in recent months, arguing that trial delays amid the uncertainty of the pandemic are equivalent to justice denied for plaintiffs.

In a case involving a man who was injured after a horse kicked him, a Hamilton judge ordered that the defendant’s jury notice be struck and that the trial proceed by way of a judge alone.

“COVID-19 has created additional challenges to ensuring access to justice, which, in this case, requires the court to strike the defendant’s jury notice in order to do what is possible to ensure an earlier and more efficient and more affordable trial,” the judge wrote.

This was the first case to strike a jury notice and an important decision that could influence how civil trials are conducted moving forward, Haté says. 

“In this case, the judge found that the plaintiff’s right to more timely access to justice outweighed the defendant’s right to a jury trial.” 

Current landscape for PI claimants
In some ways, Haté says the process for injury victims to receive compensation is arguably more efficient now than before the pandemic.

“If you were in an accident last week and unable to work because of your injuries, the process to get compensation and the timelines to filing the necessary paperwork hasn’t changed. In fact, it’s faster now because the insurance companies are accepting documents electronically,” he says.

Before COVID-19, everything was happening in-person, which meant support staff would have to schedule meetings with clients so they could come to Haté’s office to sign documents. Then the paperwork would have to be couriered to the insurance company.

“The takeaway is that although things were slow from March to May, we’ve been able to adapt,” he says. “If someone is involved in an accident, we can act on their legal matter immediately.”