For many Alberta lawyers, the Alberta Lawyers Indemnity Association exists on the edge of consciousness but remains shrouded in mystery.
Imagine this:
On Monday, you realize it is entirely possible that a Statement of Claim you just submitted for filing was filed outside of the limitation period. On Tuesday, you are served with a pleading alleging a limitations defence in response to a Statement of Claim filed on behalf of a different client. By Wednesday these harrowing realizations have sent you into moderate panic and you commence a rather frenzied file review exercise. The thought occurs to you that you may have provided less than sound advice to another client’s detriment. By Thursday, you have realized that you are in breach of an undertaking and on Friday, one particularly skinny file review reveals it has been four years since you took any steps on a personal injury file. On Saturday, you receive an email from another litigation client, accusing you of making a mistake on his file. And on Sunday evening, just as the Sunday scaries are really setting in, you receive by email a copy of a Statement of Claim naming you as a Defendant in a professional negligence claim by a self-represented opposing party in a foreclosure action. You have no idea what to do.
Mistakes happen. Clients accuse their lawyers of mistakes, whether or not mistakes have been made. Lawyers are sued. The good news is that ALIA, the mandatory professional liability indemnity program for those Alberta lawyers required to participate in it, exists to help lawyers through these stressful situations. ALIA is a wholly-owned subsidiary corporation of the Law Society of Alberta. There are certain rights and obligations that come with being an ALIA Subscriber. The best thing you can possibly do to protect yourself when a potential problem arises is report to ALIA.
ALIA Subscribers have an obligation to report claims and potential claims to ALIA “as soon as practicable” and to cooperate with ALIA throughout the process. It is a condition of ALIA’s policy that Subscribers report any circumstance which could reasonably be expected to give rise to a claim, however unmeritorious. ALIA coverage can be denied as a result of failure to report or late reporting causing prejudice. Although not a comprehensive list, every one of the scenarios detailed above requires a report to ALIA, which can be done online. ALIA’s website FAQs provide more examples of situations that ought to be reported to ALIA. ALIA regularly receives reports of potential claims. There is no downside to reporting “abundance of caution” scenarios to ALIA. Doing so creates a record of that report, within a designated file, and protects you from running afoul of the policy in the event that a potential claim evolves into an actual one.
ALIA might be able to help you to repair the mistake. Pay close attention to situations where there may be an opportunity for particular steps to be taken to mitigate the claim or avoid it entirely. These scenarios are called “repairs”. One example of a potential repair is when an application to strike a claim for delay pursuant to Rule 4.31 and/or 4.33 (the “drop dead” rule) of the Rules of Court has been threatened or filed. ALIA may, with the client’s consent, decide to retain counsel to defend against the application. If successful, the underlying claim can proceed and the claim against the Subscriber is avoided altogether. Successful repairs are more likely if there has been a timely report to ALIA.
Other times, there will not be an easy fix. You will need a defence and a team in your corner. In those situations, ALIA will facilitate that and do everything we can to help relieve the stress of the situation for Subscribers. It is not uncommon for Subscribers to express that they feel much better once they have reported to ALIA. We are here to help however we can.
Subscribers would be well-served to develop a practice of keeping ALIA’s Indemnity Claim Report Form. Whatever you do, do not bury your head in the sand! The one thing that will never help is ignoring the potential problem or putting off dealing with it. If the task of reporting feels overwhelming amidst your file load, it is better to spend five minutes providing a very high-level overview of the situation, than delay reporting in order to provide a comprehensive report from the outset.
Sure, knowing what and when to report can feel daunting. But the answer is actually a lot simpler than you may think. When in doubt, report. That applies to both potential claims and actual filed claims. From ALIA’s perspective it is always better to err on the side of caution and report. If you are ever unsure as to whether or not you ought to report, you can reach out to ALIA. Give ALIA a call and run a scenario by the ALIA team if you are having difficulty deciding whether an ALIA report is warranted.
Brett Stuart is Claims Counsel with ALIA. Prior to joining ALIA, she practiced family law in Calgary after completing her articles in Lethbridge.