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Access to Justice

Posted by: Jon

I had a conversation lately with Canadian Lawyer Magazine about why legal costs for correcting insurer errors should be paid by the insurer. If a Court or Commission orders something other than the reimbursement of a claimants' legal costs, it is a barrier to accessing justice because it imposes the cost of success on the claimant.

"Jonathan Abrametz, a personal injury lawyer with The Barrister Group, which has offices in Saskatoon and Outlook, Saskatchewan, says the insurance system in his province causes major issues for access to justice.

In Manitoba, Saskatchewan and British Columbia, the only option for car insurance is the provincial government. Since 1995, Saskatchewan’s primary system for automobile insurance has been the no-fault model, in which both parties receive automatic compensation from the government insurer, Saskatchewan Government Insurance, regardless of who was at fault, with neither side having to sue for damages. There is the tort option in the province, but almost no one elects that route.

The province’s no-fault system has a glaring fault, says Abrametz. If a judge makes an error in awarding benefits to an injured person, even if that person is successful in the appeals process, the system prevents a just solution, he says.

The injured person does not receive the full benefit unless they are awarded costs as well, which Abrametz says never happens.

“The act itself has provisions for reimbursement of costs, but in practice, it just doesn’t happen in Saskatchewan,” he says.

There are two streams available to appeal SGI decisions on injury benefits: the Court of Queen’s Bench and the automobile injury appeal commission.

“In practice, neither of those bodies have ever awarded for and never provided reimbursement of legal costs where a successful appellant was represented by a lawyer,” he says.

“This, to me, represents a barrier to accessing justice and accessing legal services. It’s always irked me, like I said, that somebody who succeeds in correcting an SGI error . . . the cost of their success is imposed upon them,” he says."

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