Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Special costs possible for the disabled and impecunious

When facing personal, financial and representation challenges, courts may award special costs

The B.C. Court of Appeal recently released a decision in which justice was creatively done in a very sad case.

The case involved a woman named Ms. Tanious. Just before starting a new job in 2005, she was diagnosed with multiple sclerosis (MS). Through her employment, Ms. Tanious had disability insurance through a group policy issued by the Empire Life Insurance Company.

Her condition deteriorated. In 2011, she started using illicit crystal methamphetamine in an effort to self medicate.

In December, 2011, her physician advised that due to anxiety and depression, she was unable to work “until further notice.” About two weeks later, her employer fired her.

Ms. Tanious applied for long-term disability (LTD) benefits under the group policy. Empire Life rejected her claim, taking the position that her disability resulted from her drug use, not MS.

Had it paid the claim, she would have received just over $2,000 per month. Instead, she received only $1,000 per month in CPP disability benefits. This placed her well below the poverty line.

Ms. Tanious needed a lawyer to deal with the insurance company.

Fortunately, she found experienced counsel who took on her case at a substantially discounted rate, essentially on a pro bono basis. The lawyer sued the insurance company on her behalf for disability benefits and aggravated damages.

After she won her case, the lawyer sought an added award of “solicitor client costs” from the insurance company. This means an extra amount, and at a higher level than is typical, to compensate for the legal work.

Often, this higher level of costs is not awarded unless bad faith or litigation conduct has been shown. Ms. Tanious did not argue that in this case.

She did, however, have obvious difficulties accessing justice. She was only able to do so because her lawyer handled her case on a deeply discounted rate, which was at a cost to the lawyer.

The plaintiff had argued at trial:

“It’s obvious … that people in that position may not make it as far as the courtroom. And it’s not a slight chill for these people. It’s a choice. It’s the choices, what food do I give up, what clothes do I not buy, do I live on the street so that I can actually get my case into a courtroom in order to get a decision that I’m entitled to the very thing that I contracted with the insurance company to provide me with.”

The trial judge found that without counsel “the door to the courtroom would be closed.”

He found further that disability insurance claims have unique characteristics which distinguish them from other insurance and other types of personal harm litigation. He observed the “uncompensated financial burden” that was born by the lawyer in representing her client for so little compensation.

He observed that this plaintiff was forced to enforce a disability insurance contract through litigation, and should be put in the position she otherwise would have been in, if litigation had not been needed.

Fortunately for Ms. Tanious, the Court of Appeal decided that when someone faces challenging personal and financial circumstances, including the availability and nature of counsel’s services, courts may depart from ordinary cost rules and award special costs, even without proof of reprehensible conduct by the insurer.

Many changes are needed to increase access to our justice system, particularly access to justice for impecunious disabled individuals. This decision is certainly a step in the right direction.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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