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| Jocelyn Tatebe |
Time
When it comes to time, litigants and those who work within the legal system know all too well that the court system is struggling with a large backlog of cases. Despite numerous recent judicial appointments, some types of urgent motions in Toronto are being booked six months from now. If you want a long motion, be prepared to wait up to 10 months or more. This has led to claims being filed in other jurisdictions with the goal of securing faster motion dates, despite the party (or parties) having no discernible link to the jurisdiction in which the claim is filed.
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Money
The high cost of litigation is not new, nor is the use of litigation loans, particularly in class action proceedings and personal injury claims. It is uncommon, however, for the interest on a litigation loan to be awarded as a disbursement in addition to an award of substantial indemnity costs. This is exactly what happened in Drennan v. Drennan, 2024 ONSC 3905, which was an estate litigation matter that was heard by the Honorable Justice Myers.
In Drennan, the deceased had three adult children. In his will, he left 50 per cent of the residuary estate to his daughter, Maria, 25 per cent to his son, David, and 25 per cent to the children of his third adult child, who had predeceased him. David and the grandchildren of the deceased believed that the estate should be equally divided between his adult children so that each would receive one-third of the residue of the estate. An application was commenced by Maria against David and the deceased’s two grandchildren (Respondents).
Justice Fred Myers noted that Maria had to incur almost $65,000 in costs and her lawyer had to attend six court appearances to deal with the Respondents’ inaction. With no other funding available to her, as a last resort, the deceased’s daughter took out a litigation loan through BridgePoint Financial to protect what the deceased left to her and her children.
The Respondents were jointly and severally liable to pay Maria’s costs on a substantial indemnity basis fixed at $60,000 (all inclusive). Justice Myers further awarded Maria the interest on the litigation loan that was necessitated by David’s failure to administer the estate and his inaction during the litigation process.
Takeaways
So how bad are the wait times? They are severe enough that litigants are actively filing claims in jurisdictions in which they have little to no connection, and some individuals who do not qualify for legal aid are resorting to taking out litigation loans.
There is hope in the judiciary’s awareness of practices such as forum shopping and their willingness to address it to protect the resources and litigants in smaller jurisdictions. It is also encouraging that through the award of substantial indemnity costs plus the interest on a litigation loan as a disbursement, some litigants may benefit from greater access to the justice system.
Want to hear more about costs and litigation loans?
If you are interested in hearing more about the Drennan case and the interest on the litigation loan being awarded, consider attending the Women’s Law Association of Ontario’s Access to Justice Week (A2J) program with the Law Society of Ontario titled “The Missing Middle: The Rising Cost of Legal Fees for Individuals who do not Qualify for Legal Aid.” This free, virtual program is taking place on Oct. 30, 2024, from 4 p.m. to 5 p.m. The panel will be moderated by Jocelyn Tatebe. Speakers include Amanda Bafaro, chief risk officer and general counsel at BridgePoint Financial, which funded the litigation loan in Drennan.
Jocelyn Tatebe is a senior associate at Mills & Mills LLP and a civil litigator whose practice is now focused on estate litigation. Prior to her current role, Tatebe worked for 10 years as a civil litigator in the insurance defence industry where she developed a particular interest in coverage issues. Tatebe has appeared before the Superior Court and various tribunals, including the Licence Appeal Tribunal and the Divisional Court.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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