Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 6 13 \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP I t is a small 18-month study but one that could significantly impact Brit- ish Columbia's clogged courts as the B.C. Law Institute looks at ways to source funding for self-litigants. "The issue is really access to justice," says BCLI research lawyer Alex Blondin. He says the BCLI board looked at the 2013 report on self-represented litigants by University of Windsor Faculty of Law professor Julie Macfarlane, which found the inability to afford counsel was consistently the most cited reason for self-representation and a lack of access to justice. The study will look at what financ- ing solutions are currently available including public, private, and third- party funding (excluding legal aid) for self-litigants who either do not have the financial resources to hire a lawyer or who have run out of money (common in appeal cases). It will evaluate current financing mechanisms and determine whether there are potential opportuni- ties for structural, systemic, or legal changes that can improve the availability of financing to self-litigants. It will also look at what funding options are avail- able in other provinces. The study's focus is on four key areas: third-party funding, litigation insurance, publicly funded class action suits, and unbun- dling, as well as determining what other provinces are doing. The report's findings will also discuss structural and legal changes that could facilitate greater participation of private financing for litigants and increased financing alternatives so as to avoid self- representation. However, the search for new ways to finance self-litigants has raised some legal red flags, Blondin points out. They include champerty and maintenance, which are common law torts based on legal principals originally designed to discourage frivolous lawsuits. Mainte- nance is encouragement by a third party (which has no direct interest) to have an affected individual undertake a lawsuit, while champerty is the practice of third- party individuals financing a lawsuit in return for a share in the damage award. Blondin says the concern behind both of these legal issues remains con- trol of the lawsuit with the plaintiff. Searching for new ways to capture dollars for self-litigants is not a new topic. In 2011, Vancouver lawyer Hea- ther McDonald authored a paper for the Canadian Bar Association that con- cluded third-party funding had merit. "Third-party litigation funding, whether it be a private or public source of fund- ing, is an important means of facilitating access to justice. In certain situations it may give rise to complex legal and social issues. These complexities, however, do not detract from the fact that given the high cost of litigation, there is an essen- tial place in Canada for both private and public third party litigation funding." In "Third Party Litigation Funding: Plain- tiff Identity and Other Vexing Issues," McDonald quoted cases in which law- yers, through contingency agreements, were already assuming a third-party role in a way as they brought forward cases. Blondin says contingency agreements would be examined, but the study would explore new options such as publicly funded large class action suits or invest- ment by private companies that would assess risk and opt for a share in the damages. He says options for third-party funding also included a public fund, created by some assessment mechanism, to which individuals in need could turn. Third-party financing of cases is on a growth path in Canada, he says. "It is happening in B.C., Ontario, and Nova Scotia," where it is becoming more com- mon to see a private sector company provide loans to the plaintiffs in cases or take a role in providing disbursement or bridge financing to help lawyers through hardship or long-running cases. While funds are provided, the control of the case remains with the plaintiff. Canadian company BridgePoint Financial Services has led the way, says Blondin. "They are basically breaking the ground on this issue and they work alongside law firms and provide a little more financial wiggle room." Blondin says litigation insurance is another option the study will examine to determine whether it would be a bene- ficial form of financing. The study will look at how such litigation meshes with the concept of the plaintiff remaining in control of the case when insurance companies often take charge. Currently, he says, insurers keep tight control over cases, assessing the risk and determin- ing if the case should go to court. "The policy terms are so strict and pretty secure. [The insurer] decides who gets to be the lawyer and they consent to any settlement agreement," he says. Unbundling can provide another affordable further option as it allows the individual to purchase specific legal services and not place a retainer on an account with a lawyer. Unbundling does come with ethical considerations for lawyers, Blondin says, as lawyers are charged with knowing the scope of the work undertaken and unbundling narrows that view. He says while the Law Society of British Columbia has recognized the merits of unbundling, the study will look at the impact of unbundling on self-litigants. (In 2008, LSBC benchers passed 17 recommenda- tions from its task force struck to study unbundling, and noted that lawyers were already doing it in various forms for clients.) Blondin says the 18-month study, funded by the Law Foundation of B.C., hopes to have a report available in 2017. "We are optimistic that a good study paper will lead to further funding, and we can do a formal project that will lead to draft legislation at the end,' he says. — JS BCLI looks at ways to fi nd funding for self-rep litigants

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