Insurance defence boutiques are increasingly specializing in new emerging areas to stay ahead
“It’s kind of an exciting time to be a lawyer in insurance defence,” says William Chalmers, managing partner at Hughes Amys LLP.
Privacy in the digital realm, regulated by the Personal Information Protection and Electronic Documents Act, and how the market and legal sphere adapt to and govern legal marijuana, is going to produce compelling work in the future, he says.
“What’s going to happen over the next five or 10 years is really going to be amazing. I think you’re going to see a wholesale, 100-per-cent change in how we do business and what kind of cases we deal with.”
Cyber-insurance is Dolden Wallace Folick LLP’s fastest-growing area, according to founding partner Eric Dolden.
Under PIPEDA, there are mandatory security-breach-notice requirements, which were instituted on Nov. 1, 2018. Insurers are developing products that, when a customer has been the victim of ransomware or a successful phishing operation, pay for restoring lost data or forensics to find out who took the data and help the affected party satisfy the demands of the government’s privacy commissioners, says Dolden.
These types of insurance will also cover giving notice of a breach to customers and clients, as there is a variety of torts for invasion of privacy and a statutory cause of action under PIPEDA, and six provinces have their own privacy legislation, which makes one liable if they store someone’s personal information and it’s accessed by an unauthorized third party, he says.
More than that, since 2012, the Ontario Court of Appeal has had a privacy tort called intrusion upon seclusion, providing a common law remedy when dealing with a province that does not have a privacy act statute, he says. He adds that, in Ontario and Newfoundland, plaintiffs can “stack claims,” suing under different laws for the same violation to increase claimant recovery.
“Developments in this area are happening at warp speed. It’s amazing,” he says.
Dolden recently settled a class action against the city of Calgary, after someone in the city workers compensation department sent a spreadsheet with thousands of names, medical information and salaries and workers compensation benefits to another municipality.
New work for lawyers coming out of the regulations around data security is just one aspect of the many opportunities in the cyber realm, Dolden says. For example, his firm is involved in an arrangement called breach coaching, where an insured party calls a 1-800 number if they suspect a breach and someone from the firm provides legal advice on how to proceed. Dolden says the firm has roughly five lawyers in both the Toronto and Vancouver offices and one in Calgary spending at least 50 to 60 per cent of their time in that area.
“We triage it in the sense of diagnosing the problem, identifying what their obligations are to the privacy commissioner and making sure that any requisite breach notice is provided. That’s probably one of our fastest-growing areas, right now.”
Also growing is the fault imposed by the courts on licensed liquor sellers for overserving when an impaired driver leaves an establishment intoxicated, he says. In the future, Dolden sees this area branching off into some compelling configurations, as automated vehicles and artificial intelligence proliferate.
Along with Dolden Wallace Folick LLP and Hughes Amys LLP on this year’s top insurance defence boutiques list are Bell Temple LLP, Benson Percival Brown LLP, Chomicki Baril Mah LLP, Dutton Brock LLP, Flaherty McCarthy LLP, Lindsay LLP Whitelaw Twining Law Corp. and Zarek Taylor Grossman Hanrahan LLP.
“The last 28 years, Ontario in terms of insurance, and in particular, automobile insurance, I think can be described as the only thing permanent is change,” says Todd McCarthy, a partner at Flaherty McCarthy LLP.
McCarthy’s firm was established by the late Jim Flaherty, the former federal finance minister.
Every few years, Insurance Act amendments and amendments to regulations under the act have see-sawed between tort and accident benefit rights, says McCarthy.
“The big change in the last two-and-a-half years has been further scaling back of accident-benefit entitlement. Drastically so,” he says.
Along with that decline, since 1996, McCarthy says, he’s seen an expanded right to sue in tort for motor vehicle insurance claims. In 2016, access to courts for accident benefit claims and the Financial Services Commission of Ontario arbitration process was abolished and replaced with the Licence Appeal Tribunal, known as the LAT system, an arbitration process done through the Ministry of the Attorney General.
The monetary jurisdiction of the Ontario Supeior Court, in relation to a simplified procedure action, which provides for a summary trial in the Superior Court, was doubled to claims seeking $200,000 plus costs from $100,000 because of a recent rule change, and McCarthy predicts that, in 2019, via amendment to the Courts of Justice Act, jury rights for this type of action will be eliminated. This is significant, he says, because around 70 per cent of motor vehicle personal injury tort claims are assessable under $200,000, net of deductables and other benefits.
“I think we’re going to see a very significant change in the election in favour of simplified procedure,” he says.
There may be more trials, but they will be shorter, possibly with more settlements, he says.
With all this change, McCarthy says, the firm’s founder, ironically a Conservative, instilled a tradition of embracing, rather than fighting, change.
“Jim embraced the changes and always taught us to embrace the changes and that’s what we’ve done,” he says. “Everybody is specialized in all aspects of litigation in relation to insurance matters. We don’t have accident benefits specialists and tort specialists; everybody is a specialist in all aspects of personal injury litigation and the defence of that litigation and that is a legacy of Jim Flaherty.”
Embracing change for managing partner of Dutton Brock LLP Paul Tushinski has meant staying away from work specialized by the proliferating in-house legal teams he’s seen sprouting in recent years. While his firm stays away from commodity work, he says, it does a lot of complex construction, engineering, product liability, environmental and class action, for which in-house departments are not structured, he says.
“If you’re trying to maintain a business where you’re competing directly with the work that the insurers are keeping in-house, you’re going to lose,” he says.
“We’ve tried to adapt to the changing market but always staying true to our roots.”
That is why gaining experience in cyber, environmental impairment liability, fiduciary liability, technology, errors and omissions, securities, class actions and directors and officers liability is important for newer lawyers in the field, Dolden says.
“It’s really important to develop expertise in these newly evolving areas. I think that’s the key for a young lawyer’s future if they want to do insurance work,” he says.
How we did it
Canadian Lawyer asked lawyers, in-house counsel and clients from across Canada to vote on the top insurance defence, tax and wills, trusts & estates boutiques. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included. To qualify for our list and be voted for in the survey, firms were required to derive a minimum of 80 per cent of their work from as well as self-identify as focusing on insurance defence, tax or wills, trusts & estates law.
Top 10 Insurance Defence Boutique
Bell Temple LLP
Founded in 1945, Bell Temple LLP has, for more than seven decades, been preferred litigation counsel for national and multi-national insurers. Working out of the firm’s office in downtown Toronto, the more than 30 lawyers at the firm are regularly retained to protect the interests of insureds, as well as international corporations, construction companies and health-care professionals. The firm prides itself on working with its clients to develop appropriate litigation strategies for each file with a focus on cost effectiveness and timely resolution of disputes. When court attendance and trials are required, the firm’s partners are recognized as highly skilled counsel who are called upon to handle the most complex disputes and actions. Practice areas include casualty, property losses, municipal and government liability claims and product and professional liability.
Benson Percival Brown LLP
Benson Percival Brown LLP has specialized in personal injury and insurance defence litigation since its founding by Philip Benson and Roy McMurtry in 1956. The firm aims to provide sound, timely legal advice and proactively manage litigation files to assist clients in meeting their organizational objectives. The firm has a stable list of longstanding clients that includes national and international insurers as well as institutional clients. Counsel from the firm have played a pivotal role in both historical and recent judicial decisions that have influenced tort and insurance law in Canada. Alumni include two Ontario attorneys general, a chief justice of Ontario, three Ontario Superior Court justices, two Ontario Court justices and three masters. The firm’s primary practice areas include insurance, personal injury, occupiers’ liability, product liability, family, medical malpractice, government relations, appellate advocacy and class actions.
Chomicki Baril Mah LLP
CBM Lawyers have been in the insurance defence market in Alberta since 1954. Today, the firm has grown to 24 lawyers who handle insurance claim disputes across personal, commercial and specialty lines. Firm lawyers are called to the bars in Alberta, British Columbia, Yukon, NWT, Nunavut and Ontario. Clients include domestic and international insurers and self-insureds who turn to the firm for claims, coverage, subrogation and risk management matters. The firm has acted for one leading insurer for more than 50 years and others for more than 40 years. The firm’s practice areas include commercial insurance and claims, specialty and professional liability insurance and claims, subrogation and business and personal services. Notable alumni include a former chief justice of the Alberta Court of Queen’s Bench and two chief judges of Alberta’s provincial court.
Dolden Wallace Folick LLP
Toronto, Vancouver, Kelowna, Calgary
Dolden Wallace Folick LLP acts for insurers across Canada. The firm is growing at a dramatic pace with approximately 60 lawyers operating from offices in Toronto, Calgary, Vancouver and Kelowna. Since 2010, the firm’s focus has been specialty-insurance lines, including cyberbreach response, directors and officers securities, class actions, high-profile environmental impairment liability cases, sports and recreation claims, liquor-liability cases, the defence of mortgage brokers, insurance brokers, financial planners, design and medical professionals, construction claims (both from a design and contractor perspective) and class action defence. The firm contributes in the academic field, having published leading texts on Canadian liquor liability, Canadian sports and recreation law and a soon-to-be-released text on Canadian cyber- and privacy insurance and claims. Dolden Wallace Folick LLP’s client base is a mix of domestic, London and U.S. insurers.
Dutton Brock LLP
With more than 35 years as a firm, Dutton Brock LLP has substantial expertise in class proceedings, representing defendants and advising their insurers in many major class actions, product liability and professional negligence cases. Its work crosses the spectrum of insurance litigation. Lexpert lists Dutton Brock as the most frequently recommended commercial insurance litigation firm in Canada and Canadian Lawyer has consistently named it as one of Canada’s top insurance defence law boutiques. Managing partner Paul Tushinski has argued cases at all levels of court on products liability, insurance coverage issues, class proceedings, hospital liability and access to information. Tushinski has frequently lectured for the Law Society of Ontario, the Ontario and Canadian Bar associations, The Advocates’ Society, Toronto Lawyers Association and the Canadian Defence Lawyers. Dutton Brock puts on an annual conference on insurance-related topics.
Flaherty McCarthy LLP
Toronto, Whitby, Ottawa
Flaherty McCarthy LLP’s representation in insurance defence litigation spans broad-ranging areas from the right to trial by jury to limitation periods to coverage issues. The firm has produced a federal finance minister, a provincial minister of health, deputy premiers and a judge of the Superior Court of Ontario. Every lawyer works in motor vehicle tort, occupiers’ liability, statutory accident benefits, loss transfer and priority disputes, property claims, subrogated claims and coverage matters. In the proud tradition of the profession, its lawyers are committed to teaching, mentoring and volunteering on boards and organizations involving its communities and the profession. The firm’s lawyers fulfil their dual roles as advocates for their clients and officers of the court with intelligence, preparedness and integrity.
Hughes Amys LLP
Founded in 1918 by Frank Hughes and Jack Agar and joined by Jack Amys in 1930, Hughes Amys LLP has been a leader in insurance defence for more than 100 years. The firm is home to a team of experienced and dedicated trial lawyers who provide full-service insurance defence litigation solutions. Hughes Amys LLP is active in all areas of insurance defence litigation, including class actions, coverage disputes, environmental claims, personal injury, product liability, professional liability, directors and officers liability claims, municipal liability, fraud, cyber and property claims. In addition, the firm has a dedicated cannabis law litigation practice. Hughes Amys LLP is a founding member of The ARC Group Canada, a national affiliation of independent law firms across Canada serving the insurance and risk management communities, and it is a part of Legalign Global, a global network of law firms.
Lindsay LLP opened its doors as a boutique insurance defence firm on Jan. 1, 2013 with the goal of providing the highest level of service to the insurance community in an ever-changing business climate. Their history as an insurance practice began nearly 40 years ago in 1980 as part of a full-service regional law firm. Now, as a litigation firm with a focus on the risk management industry, the firm works with its clients to resolve matters from the first occurrence of the loss through to a trial and appeal if necessary. Lindsay LLP’s lawyers have extensive experience in casualty, property and specialty claims including coverage, D&O, professional liability, environmental and transportation claims. They are prepared to engage in all forms of dispute resolution, both formal and informal.
Whitelaw Twining Law Corp.
Vancouver, Surrey, Calgary
Founded in Vancouver in 1979, Whitelaw Twining Law Corporation started as a small boutique law firm with three partners. It is doing away with traditional law firm hierarchies; from support staff to senior partners, they work side by side in an open-concept office as a team. The firm’s practice areas include abuse litigation, bankruptcy and insolvency, insurance, bodily injury, cannabis, local government, class actions, multi-jurisdictional disputes, commercial litigation, northern Canada, construction, product liability, coverage, professional liability, cyber, retail risks, defamation, road maintenance, employment, sports liability, health and disability, subrogation and recovery, employment, sports liability, health, hospitality, surety, injury, transportation and subrogation and recovery.
Zarek Taylor Grossman Hanrahan LLP
Now in its 22nd year, the firm was founded by four colleagues: David Zarek, Michael Taylor, Eric Grossman and Thomas Hanrahan. Zarek Taylor Grossman Hanrahan LLP has since grown steadily, now with more than 40 lawyers. Acting for many of Ontario’s major insurers, the firm has extensive expertise in every area of insurance defence including MVA, property claims, product liability, priority and loss-transfer issues as well as mediation and umpire services. ZTGH lawyers have appeared for clients at all levels of court including arguing — and winning — before the Supreme Court of Canada. The firm also has expertise in officers liability claims, bond and surety claims, subrogation claims, casualty claims and special investigation defence.