After a disability claim is denied or prematurely terminated, a claimant will often first appeal the denial of the decision. Unfortunately, appeals historically have a very low probability of success and thus a claimant will often have no choice but to hire a Toronto disability lawyer and sue the insurance company for their disability benefit.
Most people who need to sue an insurance company have had no prior experience with the court litigation system in Ontario. At first, it may seem like a David and Goliath situation where the insurance company has all the resources and advantages. However, with an experienced disability lawyer in your corner, the court process can be the great equalizer and put you on even footing with even the largest insurance company.
The first step in the lawsuit is to file a Statement of Claim with the Superior Court of Justice in Toronto. This is a formal court document where you list everything that you want from the insurance company. Common demands include the payment of ongoing disability benefits and payment of disability arrears with interest. Other demands include payment of legal fees, aggravated and mental stress damages, as well punitive damages for the willful infliction of mental suffering. The Statement of Claim will also include a description of the supporting facts and reasons for making the above demands.
After the Statement of Claim has been filed and served, the insurance company will prepare a document called a Statement of Defence. This document typically will deny that a claimant is disabled and entitled to any of the demands made in the Statement of Claim.
Commonly, the next step in the lawsuit is an exchange of documents by both sides. Following the exchange is a process called “Examination for Discovery”. This process involves the plaintiff being placed under oath and asked questions about their disability claim. Common topics involve work and education history, symptoms, medications and treatment, as well as activities of daily living. Likewise, the plaintiff’s lawyer has an opportunity to examine a representative of the insurance company and ask questions about the reasons the claim was denied or terminated.
Mediation is a very common event in disability actions and will sometimes even take place prior to the Examination for Discovery. This involves all the parties getting together in the same room and trying to negotiate a deal with the assistance of a neutral third-party mediator. After opening statement by both sides, the parties will typically separate into different rooms and the mediator will shuttle back and forth with offers to settle.
If the lawsuit has not settled, the final steps of the lawsuit will be a pre-trial and then a trial. The pre-trial is technically required so that the parties can determine whether everything is set for trial. However, it often takes the form of a quasi-mediation where the parties again try to settle the case with the assistance of a judge.
If the disability lawsuit does proceed to trial in Toronto, a judge or jury will listen to all the evidence, including testimony by both expert medical witnesses and lay witnesses and decide whether the claimant is disabled as per terms of the long-term disability insurance policy.