However, I saw it as an encouraging sign that may well provide others with the impetus to seek justice in their insurance claims.
As we have seen throughout the years, costs are typically awarded on a partial indemnity basis. But in Baker v. Blue Cross 2023 ONSC 1891, Ontario Superior Court Justice Susan Vella ruled Sara Baker was entitled to full indemnity, stating “insurers must bear the risk if they wrongfully deny coverage in long-term disability policies, forcing an insured, who is economically disadvantaged from challenging the insurer by reason of a wrongful denial of benefits, to pursue costly litigation that can take years to resolve.”
“I find that the wrongful denial of long-term disability benefits by an insurer, given the unique character of long-term disability insurance policies, constitutes special circumstances justifying this elevated award,” she ruled.
A jury had also awarded Baker $1.5 million in punitive damages, $40,000 in aggravated damages for mental distress and $220,000 in retroactive benefits.
It is fitting that we have just recently observed Access to Justice Week because to me, this judgment gives people the courage to proceed with their case and prove their claim.
Seeking justice can come with risk because justice is a bit of a moving target. It can be frustrating to wait years to get your day in court so there is the temptation to take what the insurance company is offering, even if it is an inferior offer.
What this judgment demonstrates is that you don’t always have to settle if you believe you have a good case.
Briefly, court heard Baker was a Toronto hospital director who suffered a sudden brain bleed in 2013. After receiving LTD benefits under her employer’s group disability insurance policy, Blue Cross determined the woman did not “meet the eligibility criteria for ‘total disability’ as defined by its policy” and ended her claim, according to the judgment.
She filed a lawsuit in 2017 with the insurance company insisting on a jury trial that was delayed, chiefly due to the pandemic. In a five-week trial that ended in June 2022, the jury heard Baker was subjected to 375 hours of covert surveillance.
Contesting an insurance claim denial is stressful for even the most determined person. Insurance companies can afford to let a case drag on for years, but claimants are not able to work and likely facing serious financial pressures.
For some, dealing with the insurer just adds to their stress, especially if they find themselves under constant surveillance. Even the thought of being constantly watched can cause people so much anxiety that it may motivate some to settle rather than having to deal with it.
Some of my clients have serious mental health issues and litigation can actually make their condition worse. It can become a balancing act. Is it better for their health to settle now as opposed to continuing to deal with the stress and perhaps worsening their condition?
Settling early may mean accepting an offer that may not adequately address the claimant’s future needs but fighting the insurance company can be daunting.
We warn our clients that if they lose at trial they could be on the hook for the other side's costs. There is adverse cost insurance, of course, but court delays and the stress of a trial remain an issue. There is also the uncertainty of waiting for a claim to be resolved.
In many cases, it seems like the target is moving further and further away and justice can become an illusion that you cannot quite get to.
However, judgments such as in Baker v. Blue Cross could motivate more people to see their claims through to the court stage. It provides hope.
Access to justice can be elusive. After all, what is justice? Is it a claimant getting their benefits? Is it settling and no longer having to deal with the insurance company? To me, justice is getting people back to where they were before their benefits were denied or terminated. Unfortunately, many people never return to where they were initially because of all the harm that results from that denial or termination.
According to the Law Society of Ontario (LSO) “access to justice is a fundamental principle of our justice system, and yet every day many are faced with barriers to getting the help they need.”
“Vulnerable and marginalized populations face additional barriers to accessing justice based on factors like gender, race, culture, age, language, literacy, disability, income support, and geographical location,” states the LSO.
It is important to consider the toll litigation can take on clients. As lawyers, we should always be looking at ways to encourage and accommodate people when they are seeking justice. In a trauma-informed approach to law, there are many ways to serve our clients to help them continue litigation and limit the anxiety so they are not facing the pressure to settle.
Perhaps it is as simple as finding the time of day the client prefers to speak. Some people do not want a videoconference; they need to meet in person in order to process information. Others require plenty of breaks during a meeting. Some want constant updates because they are anxious about knowing what is happening while other clients prefer not to hear from you unless there is something urgent to deal with.
There are so many variables in terms of how people can get through litigation and, as lawyers, we have an obligation to have that conversation.
Courtney Mulqueen, of Mulqueen Disability Law, has over 20 years experience litigating disability claims. Her focus and passion is representing disabled plaintiffs who suffer with complex “invisible conditions” like mental health and chronic conditions that are difficult to prove, diagnose and treat.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis 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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