What to Expect at a Long Term Disability Lawsuit in Canada

If your long term disability (LTD) benefits have been denied by the insurance company you have two options, you can appeal it internally to the insurance company or file an external appeal, also known as a long term disability lawsuit.

Both options have advantages and disadvantages. However, most lawyers recommend opting for a lawsuit since it allows for an independent decision-maker (judge) to make a decision in your case, rather than the insurance company who is evidentally biased. In addition, long term disability lawsuits have a much higher success rate than internal appeals. To learn more about this kind of appeal, check out How to Appeal Long Term Disability Denial in Canada.

In this article, we are going to overview what to expect in long term disability lawsuits, including the major steps, tips for success and links to other relevant articles. After reading this article, you should have a good idea of how long-term disability lawsuits work.

If you have any questions about this article or are interested in hiring an experienced disability lawyer to handle your case, call (888) 480-9050 or click on the button below to schedule a free consultation.

Schedule Your Free Consultation

Table of Contents

What is a long term disability lawsuit?

A long term disability lawsuit falls under the umbrella of a civil lawsuit, which is a legal dispute that occurs between two or more parties when there is a disagreement on a legal matter. The parties can be people, groups of people, businesses or other organizations.

Civil cases can deal with:

disagreements about a contract (such as a long term disability policy)
claims for personal injuries
claims for damage to your property
claims for damage to your reputation

Anyone can initiate a civil lawsuit with a Statement of Claim filed in court. It must have a description of the facts and justifiable reasons for seeking compensation.

In a civil case, the person who files the lawsuit is referred to as the “plaintiff” or “applicant,” and the party they are suing is called the “defendant” or “respondent.” So, in the case of an LTD lawsuit, you would be the plaintiff suing the insurance company, the defendant. A long term disability lawsuit would be titled in the style of Green v. ACME Insurance, where Green is suing ACME Insurance.

Small Claims Court vs. Superior Court

Depending on the amount you are owed, you may have to file your lawsuit through Small Claims Court. Each province has a different cap for small claims court. However, they range from as low as $15,000 to as high as $100,000.

The maximum small claims amount in Canadian provinces at the time of publishing this article is:

British Columbia — $35,000.
Alberta — $100,000.
Saskatchewan — $50,000.
Manitoba — $15,000.
Ontario — $35,000.
Quebec — $15,000.
New Brunswick — $20,000.
Prince Edward Island — $16,000.
Nova Scotia — $25,000.
Newfoundland and Labrador — $25,000.

For any lawsuit owing more than the small claims limit, you would need to file through the Superior courts in your province. You can still file the lawsuit in Small Claims even if you exceed the limit. However, you would have to be willing to waive the amount that exceeds the limit.

Superior courts are the highest level of courts in a province or territory. This is where most LTD lawsuits take place.

Each province has a different name for superior courts. In Ontario and Quebec, this court is known as the Superior Court (Cour supérieure); in Alberta, Saskatchewan, Manitoba, and New Brunswick, as the Court of King’s Bench (Cour du Banc du Roi); and in Newfoundland and Labrador, British Columbia, Nova Scotia, Prince Edward Island, Yukon, and the Northwest Territories as the Supreme Court (Cour suprême).

Now that you know the basics of lawsuits, let’s dive into the steps involved in an LTD lawsuit.

To learn more about long term disability in a general sense, check out Long Term Disability in Canada.

Steps in an long term disability lawsuit

Step 1: Consult a LTD lawyer

Before filing a long term disability lawsuit, it is crucial to consult an experienced long term disability lawyer. While it is not required to have a lawyer represent you, it is highly recommended that you do so. Finding a lawyer with experience in long term disability litigation and a proven track record in cases like yours will give you the best chance at success. They can help you figure out whether you have a case in the first place and provide you with guidance and support in your next steps.

Most long term disability lawyers work on a contingency fee basis, meaning you won’t pay any fees or additional charges until your case is successfully resolved. When a settlement is reached, the lawyer’s fee is a fixed percentage of the recovered benefits minus any fees paid by the insurer. Typically, clients retain more than 80 percent of the settlement amount.

To learn more about working with a long term disability lawyer, check out our What to Expect From Disability Lawyers in Canada and How Much a Disability Lawyer Costs.

Step 2: The lawyer gathers the documents needed to plan your appeal

Once you hire a lawyer, the first thing they will do is order your complete LTD file from the insurance company. The file includes all your communications with the insurance company, any surveillance they may have completed and all other information related to your claim. It is crucial to have this file because it identifies the “real” reasons your claim was denied and what actions are needed to win the appeal. Once your lawyer requests this document, it typically takes the insurance company 30 days to provide them a copy.

Along with the claim file, your lawyer will also gather the following:

A denial letter from your claim representative
A copy of your group insurance booklet outlining your long-term disability benefits
Your union’s collective agreement (if applicable)
A copy of your family doctor’s medical records, dating back to when your symptoms first began impacting your work

Step 3: The lawyer analyzes the file and creates a strategy for your case

Once your lawyer has all the relevant information relating to your case, they will analyze the documents and develop a strategy that will give you your best chance at success. Sometimes, claim files can show obvious mistakes made by the insurance company. However, in most cases, these errors can be subtle. That is why it is extremely critical to work with a lawyer who has experience and knowledge in the area of long term disability.

Step 4: Lawyer issues a statement of claim

Filing a Statement of Claim with the Supreme Court Registry officially kicks off the lawsuit. This document broadly outlines the key issues and specifies what the claim seeks: payment of past disability benefits, interest on those overdue payments, and a declaration that the insurance company must reinstate your benefits.

In many cases, the claim also includes requests for punitive, aggravated, and general damages to penalize the insurance company for its actions and compensate for the harm caused.

After filing with the court, the Statement of Claim is served on the insurance company, which then prompts the insurer to hire legal representation. The insurer’s response, a Response to Civil Claim (RTCC), lays out their factual and legal arguments against your claims. Both sides are then required to provide Lists of Documents containing all relevant materials, which, together with the pleadings, help define the scope of the legal dispute.

The timeframe for issuing a Statement of Claim varies by province. In Ontario, for example, you have up to two years from the date of the claim denial to file it.

Step 5: The insurance company retains a lawyer to defend them

After the insurance company is served with the Statement of Claim, they will typically retain a lawyer to handle the case. Often, this lawyer is “in-house,” meaning the insurance company directly employs them and specialize in defending against claims like yours. These lawyers are highly skilled and experienced, with their primary goal being to minimize the amount of money the insurance company has to pay out.

Given their expertise, it’s crucial to have a top-notch long term disability lawyer on your side—someone who can effectively counter their strategies and advocate for your rights. At Resolute Legal, we understand the importance of this. In fact, one of our lawyers, Lisette Leblanc, previously worked as an in-house lawyer for an insurance company. Her insider knowledge of how insurance companies operate gives us a unique advantage in handling these cases.

Step 6: Examinations for discovery

An examination for discovery is a process where one party questions the opposing party about key issues in the dispute. This might include questions about your medical condition, employment, or any unfavourable surveillance evidence they might have.

Though part of the litigation process, examinations for discovery don’t take place in open court. Instead, they occur in a more private setting, with no judges or court officials present. A court reporter is there to record every question and answer, providing a transcript that serves as the official written record. Before answering, the person being questioned must take an oath or make a solemn affirmation to tell the truth. Portions of the transcript may be used later during the trial. It’s important to note, however, an examination for discovery is not the same as a cross-examination.

In many instances, insurance companies choose to skip the examination for discovery and proceed directly to mediation. However, if the defence needs more information from you, an examination may still be required.

Step 7: Mediation

Mediation is essentially a settlement meeting where parties in a dispute work out their differences without going to court. Often referred to as “alternative dispute resolution,” mediation is especially common in long term disability lawsuits, with the vast majority of claims (around 90 percent) being settled this way rather than going to trial.

In a long term disability mediation, a neutral third-party mediator helps you and your insurance company reach a resolution. The mediator is impartial and doesn’t favour either side.

Check out our long term disability settlement calculator to get an estimate of how much you could receive.

Step 8: Attend the pre-trial

As previously mentioned, most LTD cases are resolved at the mediation stage; however, if they are not, the next step is pre-trial. At the pre-trial, a judge will attempt to help the parties settle the claim.

If a settlement can’t be reached, the judge will ensure the case is ready for trial. Very few long-term disability cases actually go to trial. In our experience, less than two percent of cases will reach this stage.

Step 9: Trial

At a long-term disability (LTD) trial, the court examines the facts and evidence to determine whether an insurance company wrongfully denied or terminated a person’s LTD benefits. Here’s a general overview of what happens during a long term disability trial:

Opening Statements

Both parties (the plaintiff, who is the person seeking LTD benefits, and the defendant, the insurance company) present their opening statements. These statements outline what each side intends to prove during the trial.

Presentation of Evidence: Plaintiff’s Case

The plaintiff presents evidence to support their claim that they are entitled to LTD benefits. This can include medical records, expert testimony from doctors, and any other documentation that shows the plaintiff is unable to work due to a disability. The plaintiff may also include expert opinions and independent medical examinations (IMEs) to strengthen their case.

Cross-Examination

The defendant’s lawyer will cross-examine the plaintiff and their witnesses to challenge the credibility and validity of the evidence presented.

Defendant’s Case

The insurance company presents its evidence, which might include medical assessments from their own doctors, surveillance footage, or testimony that suggests the plaintiff is capable of working or that their condition does not meet the policy’s definition of “disability.”

Cross-Examination

The plaintiff’s lawyer will cross-examine the defendant’s witnesses to dispute the insurance company’s evidence.

Closing Arguments

Both sides summarize their cases, emphasizing the evidence and testimony that support their positions. They argue why the court should rule in their favour.

Judge’s Decision

After hearing all the evidence and arguments, the judge will consider the case and issue a decision. The judge may rule immediately, or they may take some time to deliberate before rendering a decision.

If the judge rules in favour of the plaintiff, they may order the insurance company to pay the owed LTD benefits and, sometimes, additional damages or interest. If the judge rules in favour of the insurance company, the plaintiff’s claim is dismissed, and they may not receive any benefits.

Given the complexity and high stakes of LTD trials, having a skilled long-term disability lawyer represent you is crucial. An experienced lawyer can effectively present your case, challenge the insurance company’s evidence, and help you navigate the legal process. They can also help you secure expert opinions and arrange independent medical examinations to strengthen your case and increase your chances of a favourable outcome.

Step 10: Appeal the decision

If either party is dissatisfied with the judge’s decision, they may have the option to appeal the ruling to a higher court.

Contact an experienced long term disability lawyer

If your long term disability beneifts have been denied, we urge you to call us today. Our disability lawyers at Resolute Legal have successfully recovered millions of dollars in denied long term disability benefits. We specialize in long term disability lawsuits and have successfully fought cases against every major insurance in Canada. Our staff is made up of kind, non-judgemental individuals who want to help you through this difficult process. Click on the button below or call (888) 480-9050 for a free consultation. You don’t have to let the insurance company get away with denying the benefits you are entitled to by law.