As a plaintiff, you should have had an ATE policy and here is why.
While there are many conflicting opinions about how beneficial legal expense insurance is, it is important to note that legal expense insurance gives the plaintiff a peace of mind and courage to sue when they are wronged. In Ontario, litigation has become expensive and time-consuming. Many people are discouraged to litigate because of the high costs and risks of litigation. Justice Karakatsanis reasonably points out in Hryniak v. Mauldin:
“Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.”
After the event (ATE) insurance is a type of legal expenses insurance policy that helps claimant financially to pursue a legal claim. ATE can protect the claimant against the risk of paying the defendant’s legal costs and may also be extended to cover the claimant’s own legal costs and disbursements, such as expert fees. Usually, a plaintiff will get this insurance policy for protection if they are unsuccessful at trial. As a plaintiff, you should consider the ATE insurance policy because:
1- Financial stability when litigating.
ATE insurance removes the risk of a claimant having to pay the other side’s costs (and if covered, its own costs and disbursements) if they lose the case. This would mean that if you are a plaintiff you will have the option to litigate when you feel that you have been wronged. ATE insurance promotes access to justice making sure that plaintiffs understand their legal rights and pursue legal action without the fear of high costs associated with litigation.
2- Chances of settlement increase
ATE insurance can be an incentive for the other side to settle, as they will know that the insurer must have already analyzed the case and chances of winning are high. Having ATE insurance will also send a message to the other party that you are well prepared for your case.
3- Flexible ways to get ATE
ATE insurance policies can be arranged at any stage of the case, although they may be more difficult and expensive to secure later in the process. Hence, if you want to wait it out to see how your case is going, you have the flexibility to do it.
However, it seems reasonable to look at some of the issues associated with ATE insurance. It is likely that the number of actions brought by plaintiffs will rise because of the available funding. Howard Borlack, a founding partner of McCague Borlack LLP further adds to this point:
“Although ATE insurance is designed to improve access to justice in principle, it may also increase the number of questionable lawsuits that may otherwise have been settled out of court or abandoned entirely” Plaintiffs might feel that they have more freedom to play around with their cases. They may try to obtain greater recovery than is available through a settlement”
Although many might think that ATE insurance will increase the number of actions brought by plaintiffs, the impact of ATE is still inconclusive. As mentioned above, there are numerous advantages associated with ATE insurance. As a plaintiff, you should always consider options that will help you get what you deserve when you litigate.