How do we as a society decide who is responsible to pay for access to justice initiatives and to what extent? Who sets those priorities and through what lens are those priorities ordered?
the only winners are those who continue to reap the benefit of hourly billings and that’s a declining number too as fewer and fewer are able to afford to pay those bills. Meanwhile, the social and personal costs continue to rise for society as a whole and especially, for those caught in the middle who can’t get the help they need.
More/source: http://www.slaw.ca/2015/04/01/choices-and-priorities/
CIN is a non-profit Advocate for Insurance and Health Care Reform. Postings are cut/paste from other sources. @Cinsurancenews #rally4accidentvictims #ABPetition #CPPbacklog
Showing posts with label Ontario’s Rules of Civil Procedure. Show all posts
Showing posts with label Ontario’s Rules of Civil Procedure. Show all posts
Thursday, April 16, 2015
Saturday, March 14, 2015
Remedial Costs for Unreasonable Settlements by Insurers
In the threshold motion in Maxwell v. Luck, previously discussed here,
Justice Howell pushed back against what is increasingly becoming a
routine attempt by insurers to dismiss chronic pain on the basis of the
lack of objective symptoms in personal injury claims.
Justice Howden awarded fixed costs of $150,400, and disbursements of $ 56,332, taking into account that the plaintiff was under a statutory obligation to pursue accident benefits as well. This approach was upheld in Moodie v. Estate of Delores Greenaway, [1997] O.J. No. 6525, where the court stated,
In my view such pursuits are part and parcel of the Plaintiff’s obligations in an action against the tortfeasor by reason of the releases available to the tortfeasor under the Insurance Act and only in any compelling circumstances should the unsuccessful tortfeasor escape responsibility to indemnify the Plaintiff for the costs of such pursuits…However, Justice Howden also made note of the “hard nosed” approach adopted by the insurer, who had not made significant efforts to resolve the dispute. Insurers are required under ss. 258.6(1) and (2) of the Insurance Act to participate in mediation, and ss. 258.5(1) and (5) requires them to “attempt to settle the claim as expeditiously as possible.” Where they fail to do so, the court is required to consider this when awarding costs.
Justice Howden in applying this provisions awarded an unusual “remedial” penalty. This penalty was described by the Ontario Court of Appeal in Keam v. Caddey,
[28] Morden J.A. describes the costs sanction as a “remedial penalty”. It is remedial because it is intended not only to compel compliance by insurers with an important statutory purpose, but also to provide a remedy to the other party who was deprived of the opportunity for an early settlement of the claim. It is a penalty because it is not intended to be merely compensatory of costs unnecessarily incurred by the other party or parties, as that objective is already addressed by other costs provisions of the Rules of Civil Procedure, but to provide a meaningful consequence to an insurer that elects not to comply.
[29] The legislature chose not to provide a specific cost consequence for an insurer’s failure to participate in mediation, such as substantial indemnity costs against a losing defendant or deprivation of full costs of a winning defendant. Instead, the trial judge is accorded the discretion to determine the appropriate cost consequence in each case. In summary, where an insurer breaches s. 258.6(1), s. 258.6(2) requires the trial judge to ascertain the appropriate remedial costs penalty in the circumstances.The purpose of these provisions has been described by Justice Ramsay in Ross v. Bacchus as follows,
[emphasis added]
[6] …I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases…The public policy rationale behind this is that there is inherent power imbalances between insurance companies and public litigants. Without a statutory obligation to settle a claim and explore mediation, insurance litigation would be characterized by an inherent unfairness to the opposite party.
Judges have refused to award remedial costs outside of the context of the Insurance Act. For example, Justice Ramsay rejected that these provisions should apply to the municipality in Williston v. City of Hamilton on the basis that the defendant was not an insurer by name or by subrogation.
However, the Ontario Court of Appeal overturned this decision, stating these provisions are not to be interpreted as applying strictly to insurers, especially where counsel are representing both the municipality and the insurance company.
In Maxwell, Justice Howden assessed the remedial penalty to be $50,000, for a total costs award of $256,732.
Both Ross and Maxwell are currently being appealed, but serve as an additional warning towards insurers. As the decision in Lakew v. Munro illustrates, insurers will not automatically be held liable for remedial costs simply because a file fails to settle. However, insurers should be more reluctant to dismiss subjective pain symptoms on the lack of physically observable objective mechanisms. The medical science itself illustrates that pain perception is far more complicated than that.
The additional warning in the costs decision is that the hard stance taken by insurers since the 2010 insurance reforms and following may have other financial implications. When an insurance company offers no settlement and refuses to mediate outright, courts are likely to express censure to this behaviour. The insurance system is under significant pressure, and legislative amendments were intended to streamline claims and pass on savings to consumers.
Instead, insurance companies have appeared to profit. Hard-line positions by some insurers who are known to largely refuse settlement can result in up to a dozen or more claims which are abandoned by plaintiffs, representing significant savings to the insurer. But neither benefits the clients of the insurer, or those involved in a tort claim benefit. More importantly, the refusal to settle imposes a cost burden on the justice system itself.
Bruce Cran, president of the Consumers’ Association of Canada, stated,
Insurance company margins have increased incredibly over the last decade. The companies are making a lot of money and people are getting less benefits … to be perfectly honest, I don’t know how you’re going to fix Ontario.
Comments
RE: ” the “hard nosed” approach adopted by the insurer…”
This will never end until the insurers’ rogue medico-legal experts upon whom they rely for their (too often) bogus accusations of malingering are purged from the system. But neither the insurer defence lawyers nor the plaintiff lawyers (OTLA) have the slightest interest in cleaning up the shoddy IME/IE system which drives the Ontario auto insurance adjudication system. Better to litigate (talk about) this stuff over and over (on the clock) than to expel the “hired guns” from the system. To do so would result in less work for the lawyers. So it doesn’t matter that “Calling an expert to say that no objective finding equals no pain is on longer acceptable (below)” – the lawyers keep on keeping. This I just one more reason why litigation costs keep escalating while access to justice keeps diminishing.
https://www.canlii.org/en/on/onsc/doc/2008/2008canlii49158/2008canlii49158.html?searchUrlHash=AAAAAQARY2xhc3NpYyBoaXJlZCBndW4AAAAAAQ&resultIndex=1
Guerrero v. Fukuda, 2008 CanLII 49158 (ON SC)
[4] A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
[5] Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
[7] Usually this matter, in jury cases, is left until all of the evidence has been heard. The threshold issue is then argued in the absence of the jury, often while they are deliberating.
[8] This can easily result in conflicting decisions as effectively both judge and jury are separately determining the existence and severity of the alleged injuries. The trial judge may well find that the threshold “was not met” and then be confronted with a substantial jury award which would indicate that the jury believed otherwise.
[9] I suspect this, in many cases, leads to the judge awaiting the verdict of the jury before rendering a decision on the threshold issue and thereby being unduly influenced by the jury findings.
[10] Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions. This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.
[11] This, however, would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.
[24] I reject Dr. Clark’s evidence outright. He was a physiatrist called by the defence. His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.
Source: http://www.slaw.ca/2015/02/22/remedial-costs-for-unreasonable-settlement-on-threshold-motions/
This will never end until the insurers’ rogue medico-legal experts upon whom they rely for their (too often) bogus accusations of malingering are purged from the system. But neither the insurer defence lawyers nor the plaintiff lawyers (OTLA) have the slightest interest in cleaning up the shoddy IME/IE system which drives the Ontario auto insurance adjudication system. Better to litigate (talk about) this stuff over and over (on the clock) than to expel the “hired guns” from the system. To do so would result in less work for the lawyers. So it doesn’t matter that “Calling an expert to say that no objective finding equals no pain is on longer acceptable (below)” – the lawyers keep on keeping. This I just one more reason why litigation costs keep escalating while access to justice keeps diminishing.
https://www.canlii.org/en/on/onsc/doc/2008/2008canlii49158/2008canlii49158.html?searchUrlHash=AAAAAQARY2xhc3NpYyBoaXJlZCBndW4AAAAAAQ&resultIndex=1
Guerrero v. Fukuda, 2008 CanLII 49158 (ON SC)
[4] A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
[5] Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
[7] Usually this matter, in jury cases, is left until all of the evidence has been heard. The threshold issue is then argued in the absence of the jury, often while they are deliberating.
[8] This can easily result in conflicting decisions as effectively both judge and jury are separately determining the existence and severity of the alleged injuries. The trial judge may well find that the threshold “was not met” and then be confronted with a substantial jury award which would indicate that the jury believed otherwise.
[9] I suspect this, in many cases, leads to the judge awaiting the verdict of the jury before rendering a decision on the threshold issue and thereby being unduly influenced by the jury findings.
[10] Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions. This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.
[11] This, however, would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.
[24] I reject Dr. Clark’s evidence outright. He was a physiatrist called by the defence. His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.
Source: http://www.slaw.ca/2015/02/22/remedial-costs-for-unreasonable-settlement-on-threshold-motions/
Monday, February 23, 2015
IBC wants regulation for personal injury lawyers
Monday, 23 February 2015 08:00 | Written By Yamri Taddese
The Insurance Bureau of Canada says it would like to see regulatory oversight of how personal injury lawyers structure their contingency fees due to what it calls a major gap in transparency in the auto insurance system.
“We need to at least review this issue. Why aren’t we talking about this?” says Ralph Palumbo, Ontario vice president for the Insurance Bureau of Canada.
All key players in the auto insurance system, including insurance companies and rehabilitation providers, must adhere to regulations around their fee structures, says Palumbo, who notes additional players like tow-truck drivers are now subject to regulation thanks to changes under Bill 15.
“It appears that the only major stakeholders in the system that really [aren’t] regulated are personal injury lawyers,” he says.
Palumbo says trial lawyers should file their fee arrangements with the office of the superintendent of insurance or another body that will review the financial impact these fees may or may not have on insurance costs and premiums.
“There is a sense that often providers, whether they’re lawyers or rehab providers, push claims to a higher level so that the awards are higher. That’s the sort of thing that we need to guard against,” says Palumbo.
“No one is saying the claimant shouldn’t get what is reasonable in the circumstances, but we want to make sure there aren’t outside financial pressures that will drive up those costs.”
Barbara Taylor, director of policy at Insurance Bureau of Canada, says the change will protect consumers while allowing the government to track the impact of lawyers’ fees on the auto insurance system.
“First off, we’re asking for a consumer-friendly fee disclosure statement,” she says.
“So that’s something where we want to make sure the consumer has clear transparency on that arrangement that they have with the lawyer. Then we’re asking that that information also be shared with someone like the [Financial Services Commission of Ontario] superintendent, who can then use that information to assess the impact on auto insurance as well as perhaps issue an annual report.”
Ontario Trial Lawyers Association president Steve Rastin says the Insurance Bureau of Canada is suggesting lawyers work harder in order to maximize the value of the case if they have a stake in it.
“You know what, that’s an insult to lawyers,” says Rastin.
“It implies that I won’t do my utmost for my client unless I have a piece in the action. You know what, I think lawyers everywhere should be insulted by the allegation that we’ll work harder for our clients when we have a stake in it.”
He adds: “I work to the best of my ability for every client whether I’m doing the file on a pro bono basis or an hourly rate or contingency rate. To argue that I work harder for somebody because I have a contingency fee, it would be a fundamental violation of the professional code of conduct, our ethical obligations, and I think there are right-thinking lawyers everywhere who put their best effort in for the client no matter how they’re going to be paid.”
Rastin also says there are already sufficient oversight mechanisms in place to guard against improper conduct by lawyers. He calls the Insurance Bureau of Canada’s call for more regulation “a smokescreen” to mask the hefty profits earned by insurance companies.
“I can tell you that what I bill my clients is absolutely transparent,” says Rastin.
“My client knows in the beginning what I’m going to bill them and at the end. For people that are under disability, minors or people in vulnerable situations, we have to get court approval for our accounts. There is already an oversight body in place.
There are lawyers [who] are disciplined for not billing according to proper practices. I don’t want the insurance industry, which meddles in every private area of our lives already, I don’t want them meddling in my personal relationship with my clients.”
Contingency-fee arrangements between lawyers and their clients aren’t to blame for insurance companies’ costs, he adds, noting there are caps in place for the damages plaintiffs can collect for several types of injuries.
Plaintiffs often opt to settle for fear of cost orders that would mean losing their life savings, Rastin adds.
To Rastin, the noise around the issue is a distraction from what he calls “way more serious” concerns with the auto insurance system. “For instance, why are there government-mandated returns on capital for the insurance industry that are something like 11 per cent?” he asks.
Palumbo, however, says it’s only “natural” that lawyers are resistant to regulatory oversight around their fees.
“It’s pretty natural. They have a vested interest in making sure there is no regulatory oversight on their pricing schemes,” he says.
“We don’t think that’s appropriate,” he adds.
Part of the issue, he says, is transparency. “At the end of the day, if the government decides not to impose a cap [on contingency fees], that’s fair enough. But why is this a problem to talk about transparency? I don’t quite understand that.”
The issue isn’t contingency fees themselves, according to Palumbo, but whether those arrangements are always appropriate. “We’re not suggesting for a moment that any of this shouldn’t happen; we’re not against contingency fees. All we’re saying is that the last piece of the [transparency] puzzle is personal injury lawyers, really. No one is reviewing that aspect of the auto insurance system.”
COMMENTS
Discuss IBC wants regulation for personal injury lawyers:
Moira Gracey says:
2015-02-23 07:15 PM
is the IBC suggesting that injured people who have been thrown out of work and are subsisting on the much-reduced accident benefits available be required to pay lawyers up front by the hour? How can the IBC suggest - or the Law Times uncritically report - that lawyers' contingency fees are not regulated? Does Ontario Regulation 195/04 (appropriately entitled "Contingency Fee Arrangements") not count as regulation? Until the insurance industry agrees to a specific tax to fund enough legal aid clinic with enough salaried lawyers to represent all the customers from whom the insurance companies are inappropriately denying benefits, there isn't much alternative to contingency fee arrangements that won't leave injured people high and dry - and insurers laughing all the way to the bank. Insurers should try spending less money fighting claims than they do paying them - that might be a more effective way to lower premiums!
Devils Trumpet says:
2015-02-23 06:30 PM
Sorry to get you excited,the comments were intended for another post that had nothing to do with regulation of lawyers or insurance.My post here was copy and paste,it included a line from a seperate post entirely. I have no knowledge of any insider information regarding Ontario auto insurance.If I did,I doubt very much that I would announce it in this forum. I apologize for my inadvertent mistake,I will double check before I post in the future.
Peter Cozzi says:
2015-02-23 06:05 PM
I have advocated at FSCO for a Consumer Bureau mirroring the Insurance Bureau of Canada to advance the interests of consumers to Government funded by a levy per insurance policy paid for by the same consumers who pay their insurance premiums to Insurance companies every day which in part are used by those insurance companies to fund the IBC. Such a consumer body, properly funded, like the IBC, will be able to inform Government concerning insurance issues from the consumers perspective and thereby provide Government with a balanced view when considering legislative and regulatory changes such as the IBC proposal concerning contingency fees and more.
Tim Boyle says:
2015-02-23 05:56 PM
That Mr. Francis is a shill for the insurance industry is obvious, the only thing unclear is how much he is being paid for being so.
Stew Daroux says:
2015-02-23 05:36 PM
It just amazes me that someone can hold such a lofty position in the insurance industry and really not have a clue regarding the degree to which lawyers are regulated and fee arrangements are scrutinized. In British Columbia there is legislating specifying the maximum percentage fee a lawyer can charge without prior court approval. In addition, clients are notified as part of any Contingency Fee Agreement that they have the right to have the fee ultimately charged reviewed by the Court. They also have recourse to the Law Society of any Province which overseas the practice of lawyers in that jurisdiction. Where is the lack of "regulation" that Mr. Palumbo refers to?
Curious Cat says:
2015-02-23 04:47 PM
What kinds of documents are you alluding to?
Devils a Trumpet says:
2015-02-23 04:10 PM
Another attempt to control every aspect of a claim,the insurance industry once again portrays everyone but themselves as theives while they defraud rate payers and the public.Of course lawyers rip off clients,just not as bad as the government sanctioned theft by the insurance companies. Not one participant other than the claimant has one scintilla of integrity,their just a bunch of criminals running the system. Wait till insurance insider documents begin to surface soon.
Brian Francis says:
2015-02-23 12:30 PM
RE: "Plaintiff lawyers are the only ones fighting for the clients' rights... Plaintiff lawyers (OTLA) advocate for their own interests - not the interests of injured claimants. They aren't always the same. If that weren't true OTLA would long ago have fought against the proliferation of rogue experts who inhabit the system - rather than happily profit from shoddy assessments and endless assessment battles. The only people buying OTLA's "fearless champions of the injured" rhetoric are the plaintiff lawyers.Maybe if OTLA revoked the membership of lawyers who over-bill so badly they are written up in even the mainstream press - and revoked the membership of lawyers who blame dead students for the firm's failings - these indignant protestations wouldn't ring so hollow.
Darryl Singer says:
2015-02-23 12:11 PM
The entire personal injury system is stacked against plaintiffs. The statutory threshold, $30,000 deductible, powerful insurers who sit on AB money for years before they pay it out for necessary treatment. Plaintiff lawyers are the only ones fighting for the clients' rights and attempting to level the playing field. Certainly the insurers do not care. And the provincial government has continually made changes that benefit only the insurers and make it more difficult for the victims to collect.
Darryl Singer says:
2015-02-23 12:06 PM
Lawyers are already regulated by the Law Society and in many cases the Superior Court. The insurance industry has no place in the lawyer-client relationship. If the insurers actually paid what they were supposed to pay to accident victims, when they were supposed to pay, then there would be no need for personal injury lawyers in the first place. Lawyer's fees have no bearing on insurance rates. And the marketplace dictates. If my fees are patently unfair then I will not have any clients.
Brian Francis says:
2015-02-23 10:10 AM
How ironic. This column (Court rejects attempt to blame articling student for delay) in today's Law Times offers even more reasons why Ontario personal injury plaintiff lawyers need oversight. OTLA talks about oversight as an "insult". It is insulting to consumers (injured auto accident victims) to hear plaintiff lawyers trying to download their failings on to students.
Brian Francis says:
2015-02-23 09:41 AM
Raston characterizes oversight of personal injury plaintiff OTLA lawyers as an "insult". What is an insult is systemic over-billing - staggering unreglated, self-awarded premiums - and unfair CFAs. A glance at the FAIR website offers ample illustration of endless plaintiff lawyer over- billing problems. Added to the over-billing problem is another "insult" to clients in the form of OTLA's stubborn, obstructionist stance toward cleaning up the IME/IE system (proliferated with rogue "experts") which is driving up Ontario's auto insurance litigation costs by causing endless assessment battles. But what,exactly, is wrong with a"a consumer-friend ly fee disclosure statement". How is that an "insult"? And what do accident victims think? Why not ask FAIR? Perhaps on this issue (if no other) the IBC and FAIR can find common ground?
Source: http://www.lawtimesnews.com/201502234500/headline-news/ibc-wants-regulation-for-personal-injury-lawyers
The Insurance Bureau of Canada says it would like to see regulatory oversight of how personal injury lawyers structure their contingency fees due to what it calls a major gap in transparency in the auto insurance system.
“We need to at least review this issue. Why aren’t we talking about this?” says Ralph Palumbo, Ontario vice president for the Insurance Bureau of Canada.
All key players in the auto insurance system, including insurance companies and rehabilitation providers, must adhere to regulations around their fee structures, says Palumbo, who notes additional players like tow-truck drivers are now subject to regulation thanks to changes under Bill 15.
“It appears that the only major stakeholders in the system that really [aren’t] regulated are personal injury lawyers,” he says.
Palumbo says trial lawyers should file their fee arrangements with the office of the superintendent of insurance or another body that will review the financial impact these fees may or may not have on insurance costs and premiums.
“There is a sense that often providers, whether they’re lawyers or rehab providers, push claims to a higher level so that the awards are higher. That’s the sort of thing that we need to guard against,” says Palumbo.
“No one is saying the claimant shouldn’t get what is reasonable in the circumstances, but we want to make sure there aren’t outside financial pressures that will drive up those costs.”
Barbara Taylor, director of policy at Insurance Bureau of Canada, says the change will protect consumers while allowing the government to track the impact of lawyers’ fees on the auto insurance system.
“First off, we’re asking for a consumer-friendly fee disclosure statement,” she says.
“So that’s something where we want to make sure the consumer has clear transparency on that arrangement that they have with the lawyer. Then we’re asking that that information also be shared with someone like the [Financial Services Commission of Ontario] superintendent, who can then use that information to assess the impact on auto insurance as well as perhaps issue an annual report.”
Ontario Trial Lawyers Association president Steve Rastin says the Insurance Bureau of Canada is suggesting lawyers work harder in order to maximize the value of the case if they have a stake in it.
“You know what, that’s an insult to lawyers,” says Rastin.
“It implies that I won’t do my utmost for my client unless I have a piece in the action. You know what, I think lawyers everywhere should be insulted by the allegation that we’ll work harder for our clients when we have a stake in it.”
He adds: “I work to the best of my ability for every client whether I’m doing the file on a pro bono basis or an hourly rate or contingency rate. To argue that I work harder for somebody because I have a contingency fee, it would be a fundamental violation of the professional code of conduct, our ethical obligations, and I think there are right-thinking lawyers everywhere who put their best effort in for the client no matter how they’re going to be paid.”
Rastin also says there are already sufficient oversight mechanisms in place to guard against improper conduct by lawyers. He calls the Insurance Bureau of Canada’s call for more regulation “a smokescreen” to mask the hefty profits earned by insurance companies.
“I can tell you that what I bill my clients is absolutely transparent,” says Rastin.
“My client knows in the beginning what I’m going to bill them and at the end. For people that are under disability, minors or people in vulnerable situations, we have to get court approval for our accounts. There is already an oversight body in place.
There are lawyers [who] are disciplined for not billing according to proper practices. I don’t want the insurance industry, which meddles in every private area of our lives already, I don’t want them meddling in my personal relationship with my clients.”
Contingency-fee arrangements between lawyers and their clients aren’t to blame for insurance companies’ costs, he adds, noting there are caps in place for the damages plaintiffs can collect for several types of injuries.
Plaintiffs often opt to settle for fear of cost orders that would mean losing their life savings, Rastin adds.
To Rastin, the noise around the issue is a distraction from what he calls “way more serious” concerns with the auto insurance system. “For instance, why are there government-mandated returns on capital for the insurance industry that are something like 11 per cent?” he asks.
Palumbo, however, says it’s only “natural” that lawyers are resistant to regulatory oversight around their fees.
“It’s pretty natural. They have a vested interest in making sure there is no regulatory oversight on their pricing schemes,” he says.
“We don’t think that’s appropriate,” he adds.
Part of the issue, he says, is transparency. “At the end of the day, if the government decides not to impose a cap [on contingency fees], that’s fair enough. But why is this a problem to talk about transparency? I don’t quite understand that.”
The issue isn’t contingency fees themselves, according to Palumbo, but whether those arrangements are always appropriate. “We’re not suggesting for a moment that any of this shouldn’t happen; we’re not against contingency fees. All we’re saying is that the last piece of the [transparency] puzzle is personal injury lawyers, really. No one is reviewing that aspect of the auto insurance system.”
COMMENTS
Discuss IBC wants regulation for personal injury lawyers:
Moira Gracey says:
2015-02-23 07:15 PM
is the IBC suggesting that injured people who have been thrown out of work and are subsisting on the much-reduced accident benefits available be required to pay lawyers up front by the hour? How can the IBC suggest - or the Law Times uncritically report - that lawyers' contingency fees are not regulated? Does Ontario Regulation 195/04 (appropriately entitled "Contingency Fee Arrangements") not count as regulation? Until the insurance industry agrees to a specific tax to fund enough legal aid clinic with enough salaried lawyers to represent all the customers from whom the insurance companies are inappropriately denying benefits, there isn't much alternative to contingency fee arrangements that won't leave injured people high and dry - and insurers laughing all the way to the bank. Insurers should try spending less money fighting claims than they do paying them - that might be a more effective way to lower premiums!
Devils Trumpet says:
2015-02-23 06:30 PM
Sorry to get you excited,the comments were intended for another post that had nothing to do with regulation of lawyers or insurance.My post here was copy and paste,it included a line from a seperate post entirely. I have no knowledge of any insider information regarding Ontario auto insurance.If I did,I doubt very much that I would announce it in this forum. I apologize for my inadvertent mistake,I will double check before I post in the future.
Peter Cozzi says:
2015-02-23 06:05 PM
I have advocated at FSCO for a Consumer Bureau mirroring the Insurance Bureau of Canada to advance the interests of consumers to Government funded by a levy per insurance policy paid for by the same consumers who pay their insurance premiums to Insurance companies every day which in part are used by those insurance companies to fund the IBC. Such a consumer body, properly funded, like the IBC, will be able to inform Government concerning insurance issues from the consumers perspective and thereby provide Government with a balanced view when considering legislative and regulatory changes such as the IBC proposal concerning contingency fees and more.
Tim Boyle says:
2015-02-23 05:56 PM
That Mr. Francis is a shill for the insurance industry is obvious, the only thing unclear is how much he is being paid for being so.
Stew Daroux says:
2015-02-23 05:36 PM
It just amazes me that someone can hold such a lofty position in the insurance industry and really not have a clue regarding the degree to which lawyers are regulated and fee arrangements are scrutinized. In British Columbia there is legislating specifying the maximum percentage fee a lawyer can charge without prior court approval. In addition, clients are notified as part of any Contingency Fee Agreement that they have the right to have the fee ultimately charged reviewed by the Court. They also have recourse to the Law Society of any Province which overseas the practice of lawyers in that jurisdiction. Where is the lack of "regulation" that Mr. Palumbo refers to?
Curious Cat says:
2015-02-23 04:47 PM
What kinds of documents are you alluding to?
Devils a Trumpet says:
2015-02-23 04:10 PM
Another attempt to control every aspect of a claim,the insurance industry once again portrays everyone but themselves as theives while they defraud rate payers and the public.Of course lawyers rip off clients,just not as bad as the government sanctioned theft by the insurance companies. Not one participant other than the claimant has one scintilla of integrity,their just a bunch of criminals running the system. Wait till insurance insider documents begin to surface soon.
Brian Francis says:
2015-02-23 12:30 PM
RE: "Plaintiff lawyers are the only ones fighting for the clients' rights... Plaintiff lawyers (OTLA) advocate for their own interests - not the interests of injured claimants. They aren't always the same. If that weren't true OTLA would long ago have fought against the proliferation of rogue experts who inhabit the system - rather than happily profit from shoddy assessments and endless assessment battles. The only people buying OTLA's "fearless champions of the injured" rhetoric are the plaintiff lawyers.Maybe if OTLA revoked the membership of lawyers who over-bill so badly they are written up in even the mainstream press - and revoked the membership of lawyers who blame dead students for the firm's failings - these indignant protestations wouldn't ring so hollow.
Darryl Singer says:
2015-02-23 12:11 PM
The entire personal injury system is stacked against plaintiffs. The statutory threshold, $30,000 deductible, powerful insurers who sit on AB money for years before they pay it out for necessary treatment. Plaintiff lawyers are the only ones fighting for the clients' rights and attempting to level the playing field. Certainly the insurers do not care. And the provincial government has continually made changes that benefit only the insurers and make it more difficult for the victims to collect.
Darryl Singer says:
2015-02-23 12:06 PM
Lawyers are already regulated by the Law Society and in many cases the Superior Court. The insurance industry has no place in the lawyer-client relationship. If the insurers actually paid what they were supposed to pay to accident victims, when they were supposed to pay, then there would be no need for personal injury lawyers in the first place. Lawyer's fees have no bearing on insurance rates. And the marketplace dictates. If my fees are patently unfair then I will not have any clients.
Brian Francis says:
2015-02-23 10:10 AM
How ironic. This column (Court rejects attempt to blame articling student for delay) in today's Law Times offers even more reasons why Ontario personal injury plaintiff lawyers need oversight. OTLA talks about oversight as an "insult". It is insulting to consumers (injured auto accident victims) to hear plaintiff lawyers trying to download their failings on to students.
Brian Francis says:
2015-02-23 09:41 AM
Raston characterizes oversight of personal injury plaintiff OTLA lawyers as an "insult". What is an insult is systemic over-billing - staggering unreglated, self-awarded premiums - and unfair CFAs. A glance at the FAIR website offers ample illustration of endless plaintiff lawyer over- billing problems. Added to the over-billing problem is another "insult" to clients in the form of OTLA's stubborn, obstructionist stance toward cleaning up the IME/IE system (proliferated with rogue "experts") which is driving up Ontario's auto insurance litigation costs by causing endless assessment battles. But what,exactly, is wrong with a"a consumer-friend ly fee disclosure statement". How is that an "insult"? And what do accident victims think? Why not ask FAIR? Perhaps on this issue (if no other) the IBC and FAIR can find common ground?
Source: http://www.lawtimesnews.com/201502234500/headline-news/ibc-wants-regulation-for-personal-injury-lawyers
Monday, February 9, 2015
ONCA Clears Up the Law on Expert Reports
by John O'Sullivan
During the course of cross examination of an expert at the trial of a
medical malpractice claim, it emerged that an expert had reviewed his
draft report with defence counsel in a 90 minute phone call, and made
changes to the draft. The judge took up the issue and directed the
expert to return to court with his draft reports and the notes he made
while discussing them with counsel. The judge questioned the expert on
the precise changes he made as a result of those discussions and
concluded the changes were significant. She found the expert’s opinion
was “shaped by defence counsel’s suggestions”. She wrote:
Her Honour ruled the practice of reviewing experts’s reports should
stop and that all discussions between expert witness and counsel should
be subject to disclosure and production.
In the words of Sharpe J.A. writing for the court (Laskin J.A. and Simmons J.A. concurring), this ruling “caused considerable concern in the legal profession and in the community of expert witnesses.”
After stating there was nothing in the record to indicate any impropriety by defence counsel or the expert, Sharpe J.A. conducted a detailed review of the law governing expert’s reports.
He noted the changes to Rule 53.03 did not create new duties but codified and reinforced basic common law principles. He found the independence and objectivity of experts is sufficiently fostered by the ethical standards of legal and other professional bodies, and by cross examination.
The court concluded the well-established practice of counsel meeting with expert witnesses to review draft reports should not be disturbed.
On the question of the production of notes and drafts of the report, the ONCA ruled these documents, and any records of consultations between experts and counsel, fall into the “zone of privacy ” created by litigation privilege. The privilege is qualified however. Foundational information mandated by Rule 53.03(2.1) must be disclosed. In addition the privilege yields where required to meet the ends of justice, for example where there are reasonable grounds to suspect counsel communicated with an expert in a manner likely to interfere with the expert’s duty of independence and objectivity.
The finding by the trial judge that all changes in the expert’s report should be routinely documented and disclosed, has now been set aside.
Ontario litigators breathed a sigh of relief last Thursday when the Court of Appeal overturned a
trial judge’s ruling that it was improper for a lawyer to review and
discuss draft expert reports with an expert witness, and that such
discussions must be documented and disclosed to an opposing party.
“The practice of discussing draft reports
with counsel is improper and undermines both the purpose of Rule 53.03
as well as the expert’s credibility and neutrality.”
In the words of Sharpe J.A. writing for the court (Laskin J.A. and Simmons J.A. concurring), this ruling “caused considerable concern in the legal profession and in the community of expert witnesses.”
After stating there was nothing in the record to indicate any impropriety by defence counsel or the expert, Sharpe J.A. conducted a detailed review of the law governing expert’s reports.
He noted the changes to Rule 53.03 did not create new duties but codified and reinforced basic common law principles. He found the independence and objectivity of experts is sufficiently fostered by the ethical standards of legal and other professional bodies, and by cross examination.
The court concluded the well-established practice of counsel meeting with expert witnesses to review draft reports should not be disturbed.
On the question of the production of notes and drafts of the report, the ONCA ruled these documents, and any records of consultations between experts and counsel, fall into the “zone of privacy ” created by litigation privilege. The privilege is qualified however. Foundational information mandated by Rule 53.03(2.1) must be disclosed. In addition the privilege yields where required to meet the ends of justice, for example where there are reasonable grounds to suspect counsel communicated with an expert in a manner likely to interfere with the expert’s duty of independence and objectivity.
The finding by the trial judge that all changes in the expert’s report should be routinely documented and disclosed, has now been set aside.
Comments
Monday, January 26, 2015
Personal injury lawyer launches challenge against Bill 15
A lawyer has launched a constitutional challenge on behalf of automobile accident victims aimed directly at Bill 15.
Lawyer and advocate Joseph Campisi is launching a constitutional challenge in the Ontario Superior Courts, seeking a declaration that parts of the legislation that were recently passed by the Liberal Government are discriminatory and unconstitutional and should be inoperative.
“The right to access the Superior Courts is a fundamental right for Canadians. I am concerned that the recent proclaimed legislation will deny this right to individuals who have been severely disabled,” said personal injury lawyer Joseph Campisi. “Historically, the deck has been stacked against automobile victims. The recent amendments to the legislation have turned a bad situation into a worse one for these vulnerable individuals.”
In the fall, of 2014, the Ontario passed Bill 15, which took aim at fraud in the insurance industry with the aim of reducing insurance rates.
One of the legislative amendments changes how disputes between insurers and insured are settled, which has raised the ire of groups like FAIR and those in the health care industry, like the Ontario Rehab Alliance.
Historically, disputes could be brought before the Superior Courts or before arbitrators with expertise in interpreting insurance law. Bill 15 has changed how disputes are resolved by giving the sole adjudicative power to individuals who will be appointed “at the whim of the Liberal Government,” said Campisi.
“No longer will these individuals be allowed to have the assurance of impartiality and independence that is a cornerstone of our justice system when litigating a claim against their own insurance company,” said Campisi. “I could not stand idly by and let this happen.”
These are the same decision makers who jurisdiction on matters ranging from film classification to upholstered and stuffed articles, Campisi went on to say, adding that unlike historical appointments individuals without any specialization or guaranteed independence or impartiality will be ruling on disputes that can run into the millions of dollars and will determine the quality of life that an automobile victim will face going forward.
“This application will challenge Bill 15 on the basis that it violates disabled person’s Charter s.15 (1) right to be free from discrimination,” he said. “Bill 15 is also being challenged based on s.96 of the Constitution which relates to the public’s right to have access to the courts. The way in which Bill 15 is drafted opens the door to political interference. The government of the day can choose who will hear any dispute and if the government does not agree with the arbitrator’s decisions, the government can get rid of the adjudicator the next day. When it comes to lobbying the government there is little doubt as to who has the deeper pockets; automobile insurers or accident victims. Introducing such laws is undemocratic and detracts from the rule of law. This legal challenge will fight for disabled individuals’ right to fair treatment and the public’s right to access the impartial court system.”
Barb Taylor, the director of policy at the Insurance Bureau of Canada, had spoken out last Thursday on what she saw as “strong opponents” of those fighting for change in the insurance industry. Click here for the article, 15 per cent target for Ontario auto 'does not compute'
“We have strong opponents. These groups also have the ear of government and will seek media attention. Specifically, I am talking about trial lawyers, medical rehab providers and the NDP,” Taylor told those gathered for the 2015 Crystal Ball conference. “We are asking the (Ontario) government to require personal injury lawyers and paralegals who represent auto insurance claimants to submit to the Superintendent all information about their fees – including contingency fee arrangements, disbursements, court awarded and settled costs, and referral arrangements."
Source:
Lawyer and advocate Joseph Campisi is launching a constitutional challenge in the Ontario Superior Courts, seeking a declaration that parts of the legislation that were recently passed by the Liberal Government are discriminatory and unconstitutional and should be inoperative.
“The right to access the Superior Courts is a fundamental right for Canadians. I am concerned that the recent proclaimed legislation will deny this right to individuals who have been severely disabled,” said personal injury lawyer Joseph Campisi. “Historically, the deck has been stacked against automobile victims. The recent amendments to the legislation have turned a bad situation into a worse one for these vulnerable individuals.”
In the fall, of 2014, the Ontario passed Bill 15, which took aim at fraud in the insurance industry with the aim of reducing insurance rates.
One of the legislative amendments changes how disputes between insurers and insured are settled, which has raised the ire of groups like FAIR and those in the health care industry, like the Ontario Rehab Alliance.
Historically, disputes could be brought before the Superior Courts or before arbitrators with expertise in interpreting insurance law. Bill 15 has changed how disputes are resolved by giving the sole adjudicative power to individuals who will be appointed “at the whim of the Liberal Government,” said Campisi.
“No longer will these individuals be allowed to have the assurance of impartiality and independence that is a cornerstone of our justice system when litigating a claim against their own insurance company,” said Campisi. “I could not stand idly by and let this happen.”
These are the same decision makers who jurisdiction on matters ranging from film classification to upholstered and stuffed articles, Campisi went on to say, adding that unlike historical appointments individuals without any specialization or guaranteed independence or impartiality will be ruling on disputes that can run into the millions of dollars and will determine the quality of life that an automobile victim will face going forward.
“This application will challenge Bill 15 on the basis that it violates disabled person’s Charter s.15 (1) right to be free from discrimination,” he said. “Bill 15 is also being challenged based on s.96 of the Constitution which relates to the public’s right to have access to the courts. The way in which Bill 15 is drafted opens the door to political interference. The government of the day can choose who will hear any dispute and if the government does not agree with the arbitrator’s decisions, the government can get rid of the adjudicator the next day. When it comes to lobbying the government there is little doubt as to who has the deeper pockets; automobile insurers or accident victims. Introducing such laws is undemocratic and detracts from the rule of law. This legal challenge will fight for disabled individuals’ right to fair treatment and the public’s right to access the impartial court system.”
Barb Taylor, the director of policy at the Insurance Bureau of Canada, had spoken out last Thursday on what she saw as “strong opponents” of those fighting for change in the insurance industry. Click here for the article, 15 per cent target for Ontario auto 'does not compute'
“We have strong opponents. These groups also have the ear of government and will seek media attention. Specifically, I am talking about trial lawyers, medical rehab providers and the NDP,” Taylor told those gathered for the 2015 Crystal Ball conference. “We are asking the (Ontario) government to require personal injury lawyers and paralegals who represent auto insurance claimants to submit to the Superintendent all information about their fees – including contingency fee arrangements, disbursements, court awarded and settled costs, and referral arrangements."
Source:
Saturday, January 24, 2015
Constitutional Challenge Launched Against Flawed Ontario Liberal Government Auto Insurance Legislation- Discriminatory and Unconstitutional
January 21, 2015
“The right to access the Superior Courts is a fundamental right for Canadians. I am concerned that the recently proclaimed legislation will deny this right to individuals who have been severely disabled.” said applicant and noted Personal Injury Lawyer Joseph Campisi. “Historically, the deck has been stacked against collision victims. The recent amendments to the legislation have turned a bad situation into a worse one for these vulnerable individuals. No longer will these individuals be allowed to have the assurance of impartiality and independence that is a cornerstone of our justice system when litigating a claim against their own insurance company. I could not stand idly by and let this happen.”
In the fall, of 2014, the Ontario Government passed Bill 15 which is titled Fighting Fraud and Reducing Automobile Insurance Rates. One of the legislative amendments changes how disputes between insurers and insured are settled. Historically, disputes could be brought before the Superior Courts or before sophisticated arbitrators with expertise in interpreting insurance law. Bill 15 has changed how disputes are resolved by giving the sole adjudicative power to individuals who will be appointed at the whim of the Liberal Government. These are the same decision makers who have jurisdiction on matters ranging from film classification to upholstered and stuffed articles. Unlike historical appointments, individuals without any specialization or guaranteed independence or impartiality will be ruling on disputes that can run into the millions of dollars and will determine the quality of life that an automobile victim will face going forward.
“This application will challenge Bill 15 on the basis that it violates disabled persons’ Charter s.15 (1) right to be free from discrimination. Bill 15 is also being challenged based on s.96 of the Constitution which relates to the public’s right to have access to the courts. The way in which Bill 15 is drafted opens the door to political interference. The government of the day can choose who will hear any dispute and if the government does not agree with the arbitrator’s decisions, the government can get rid of the adjudicator the next day. When it comes to lobbying the government there is little doubt as to who has the deeper pockets- automobile insurers or accident victims. Introducing such laws is undemocratic and detracts from the rule of law. This legal challenge will fight for disabled individuals’ right to fair treatment and the public’s right to access the impartial court system.”
For more information go to https://www.campisilaw.ca
Source Campisi LLP
For further information contact:
Cesar Carranza cesar@campisilaw.ca
Source: https://www.campisilaw.ca/constitutional-challenge-launched-against-flawed-ontario-liberal-government-auto-insurance-legislation/
Sunday, November 9, 2014
ORA takes aim at proposed benefits changes
by
IBO |
14 Oct 2014
The Ontario Rehab Alliance says that a proposed regulatory amendment will create an incentive for insurers to deny benefit claims for everyone.
What Nick Gurevich of the ORA calls a ‘seemingly minor technical change’ to basic Accidents Benefits will dramatically reduce the interest rate payable by insurers on disputed claims, and will in fact have far-reaching consequences for buyers of auto insurance.
“By reducing the penalty that insurers pay for inappropriately denied claims this proposed regulatory amendment will create a financial incentive for insurers to deny every claim for benefits,” says Gurevich. “It will further impoverish legitimate claimants trying to get the benefits they paid for when they purchased their insurance.”
Currently, insurers must pay an interest rate of 12 per cent per year for claims that have been inappropriately denied. The current proposal – due to come into effect in November – will see this interest rate reduced to 1.3 per cent per year which is well below insurers return on capital invested.
The authors of the original regulation recognized the importance of checks-and-balances in a system where the insurers are financial Goliaths facing off against their injured customers, and employing every possible strategy to retain and invest cash reserves rather than pay out on claims, says Gurevich, adding that a healthy interest rate is intended to discourage insurers from arbitrarily denying claims or stalling on treatment and settlement.
“The increased number of benefit denials will also flood and overwhelm the already broken dispute resolution system,” he says, “which the government is currently trying to fix through the introduction of Bill 15.”
The ORA says that this change follows on the heels of multiple pro-insurance, profit-driven decisions which according to the General Insurance Statistical Agency (GISA) have resulted in record profitability for auto insurers in the past three years.
The ORA is calling on the government to “act decisively” and protect motor vehicle crash victims by “striking this proposed regulatory amendment in its entirety.”
Source: http://www.insurancebusiness.ca/news/ora-takes-aim-at-proposed-benefits-changes-182616.aspx
The Ontario Rehab Alliance says that a proposed regulatory amendment will create an incentive for insurers to deny benefit claims for everyone.
What Nick Gurevich of the ORA calls a ‘seemingly minor technical change’ to basic Accidents Benefits will dramatically reduce the interest rate payable by insurers on disputed claims, and will in fact have far-reaching consequences for buyers of auto insurance.
“By reducing the penalty that insurers pay for inappropriately denied claims this proposed regulatory amendment will create a financial incentive for insurers to deny every claim for benefits,” says Gurevich. “It will further impoverish legitimate claimants trying to get the benefits they paid for when they purchased their insurance.”
Currently, insurers must pay an interest rate of 12 per cent per year for claims that have been inappropriately denied. The current proposal – due to come into effect in November – will see this interest rate reduced to 1.3 per cent per year which is well below insurers return on capital invested.
The authors of the original regulation recognized the importance of checks-and-balances in a system where the insurers are financial Goliaths facing off against their injured customers, and employing every possible strategy to retain and invest cash reserves rather than pay out on claims, says Gurevich, adding that a healthy interest rate is intended to discourage insurers from arbitrarily denying claims or stalling on treatment and settlement.
“The increased number of benefit denials will also flood and overwhelm the already broken dispute resolution system,” he says, “which the government is currently trying to fix through the introduction of Bill 15.”
The ORA says that this change follows on the heels of multiple pro-insurance, profit-driven decisions which according to the General Insurance Statistical Agency (GISA) have resulted in record profitability for auto insurers in the past three years.
The ORA is calling on the government to “act decisively” and protect motor vehicle crash victims by “striking this proposed regulatory amendment in its entirety.”
Source: http://www.insurancebusiness.ca/news/ora-takes-aim-at-proposed-benefits-changes-182616.aspx
B.C. court fees tossed by SCC
| By Cristin Schmitz October 17 2014 issue |
|
The Supreme Court has struck down onerous courtroom user fees in
British Columbia, ruling that provinces cannot administer justice in a
way that denies Canadians access to the superior courts. In an expansive interpretation of superior courts’ “core jurisdiction” that will affect government treasuries, Chief Justice Beverley McLachlin’s groundbreaking Oct. 2 judgment, backed by four other judges, strikes down B.C.’s court hearing fees — the highest in the country — because they impose “undue hardship” on some middle-class litigants (i.e. at least some of those who don’t qualify for an exemption under the Supreme Court Civil Rules because they are not “impoverished.”). Because not everyone who is not impoverished can afford the hearing fees which escalate with the number of days in court, they unconstitutionally impede the right of at least some British Columbians to bring legitimate cases to court, the Chief Justice reasoned in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) [2014] S.C.J. No. 59. “In other words, the effect of the fees is unconstitutional because for many litigants bringing a claim would require sacrificing reasonable [living] expenses,” Chief Justice McLachlin wrote. The majority’s novel recognition of a constitutional right of access to civil justice — which “flows by necessary implication from the express terms of s. 96” of the Constitution Act, 1867, underpinned by the unwritten constitutional principle of “the rule of law” —could spur attacks on other impediments to court access, counsel say. “The court has previously rejected access to justice claims as they relate to lawyers’ fees, but I think that the [court’s] acknowledgement of the barriers for average Canadians suggests we need to look at such things as legal aid eligibility that is set so low as to be available only for the most destitute,” said Cheryl Milne, co-counsel with Paul Schabas for the intervener David Asper Centre for Constitutional Rights. “It is not only the poorest who can’t access justice. This case acknowledges that the middle class are seriously affected as well.” She said the case “challenged the Supreme Court to take a hard look at what is meant by access to justice, and to give weight to concerns that have been voiced for many years about the exorbitant costs of our justice system for the ordinary litigant.” Bryant Mackey of the B.C. Ministry of Justice in Vancouver, who with Gareth Morley represented the respondent B.C. Attorney General in defending the constitutionality of the hearing fees regime, said the “impact and influence” on the civil justice system of the court’s “more expansive” read of s. 96 “will only be truly known in the fullness of time.” “With its decision the court has broadened the application of that constitutional provision to include a right of access for civil litigants to the superior courts that can be infringed by economic barriers,” he said. “And on the flip side, the court did permit generally the use of hearing fees by governments as a ‘justifiable way of making resources available for the justice system and increasing access to justice overall.’” At press time, the B.C. government had not announced whether it will revamp or scrap the fees, which have not been collected since being ruled unconstitutional at trial in May 2012. Sharon Matthews of Vancouver’s Camp Fiorante, co-counsel with Melina Buckley and Michael Sobkin for the B.C. branch of the Canadian Bar Association, which successfully challenged the hearing fees, said the majority affirmed that for s. 96 to be meaningful “it must be interpreted consistently with the rule of law and access to justice.” She added “the court affirmed an analysis that gives ‘access to justice’ a principled constitutional home. For that reason, the case is very important for future access to justice issues because it clears out some of the legal debate that got in the way of moving the issue forward.” The intervener Advocates Society hailed the decision as “a clear win for citizens who are disadvantaged by the prohibitive costs of accessing the justice system.” Saskatchewan, Yukon and the Northwest Territories also charge for court time, but B.C.’s fees (nil for the first three days of trial, $500 per day for days four to 10, and $800 for each subsequent day) are much higher, sparking fears in the legal community that other provinces might enact similar charges. The successful appeal by the B.C. branch of the CBA, and the Trial Lawyers Association of B.C. represented by Darrell Roberts and Chantelle Rajotte of Vancouver’s Miller Thomson, arose from a family law case in which an unemployed, self-represented middle-class woman, with some savings, would have been required to pay $3,640 in hearing fees for a 10-day child custody and matrimonial property trial — close to her family’s total net monthly income. The B.C. Court of Appeal agreed with the trial judge that the hearing fees impeded access to justice, but purported to make the scheme constitutionally compliant by reading in words exempting people who are financially “in need” (i.e. not just those who are “impoverished”). Chief Justice McLachlin held that was not an appropriate remedy because it wasn’t clear that the legislature, faced with the ruling of unconstitutionality, would opt for broadening the indigency exemption to the middle class. Striking down the legislation instead, the Chief Justice, supported by Justices Louis LeBel, Rosalie Abella, Michael Moldaver and Andromache Karakatsanis, said s. 96 also guarantees “the core jurisdiction” of those courts. Neither Parliament nor the provincial legislatures can impinge on that core jurisdiction without amending the Constitution. She reasoned that resolving disputes between individuals, and deciding questions of private and public law, are central to what superior courts do. “It is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867,” she held. “As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.” In his lone but vigorous dissent, Justice Marshall Rothstein would have upheld the hearing fee regime as within the constitutional powers of the province to administer justice. He criticized the majority’s “novel” and “overly expansive understanding of both s. 96…and the unwritten principle of the rule of law.” He warned against “subverting democracy and its accountability mechanisms beneath an overly expansive vision of constitutionalism.” “In engaging, on professed constitutional grounds, the question of affordability of government services to Canadians, the majority enters territory that is quintessentially that of the legislature,” he said. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent, the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text.” Importantly, he noted, unlike Charter rights, “rights read into s. 96 are absolute” because they aren’t subject to justification under s. 1 of the Charter, nor to the Charter’s s.33 ‘notwithstanding’ clause. “The question my colleagues avoid answering is why access to superior courts for civil disputes warrants even stronger protection than those rights expressly enumerated in the Charter.” Source: http://www.lawyersweekly.ca/index.php?section=article&volume=34&number=22&article=2 |
Friday, October 3, 2014
The Failure of Law Societies to Accept Their Duty in Law to Solve the Unaffordable Legal Services Problem
Ken Chasse
Independent
August 10, 2014
Abstract:
Canada’s law societies have a duty in law to solve
the “unaffordable legal services problem,” i.e., that the majority of
the population cannot obtain legal services at reasonable cost. The
problem has been developing over decades during which years the law
societies have failed to act. The problem has caused severe damage to:
(1) the population for lack of legal services; (2) the courts by the
“clogging” caused by self-represented litigants; (3) the legal
profession which is contracting when it could be expanding, in spite of
very negative forecasts for its future; and (4) to the funding of legal
aid organizations because it is not “politically wise” to provide
adequate or increased funding for free legal services for poor people
while the majority of taxpayers have no affordable legal services. The
theme of this article is that the law societies have not acted because
they do not accept the proposition that it is their duty in law to solve
the problem, as are the problems created by incompetent and unethical
lawyers.
The problem is inevitable because of the method used to deliver legal services. The legal profession uses a “handcraftman’s method” instead of a “support services method.” The former has been abandoned everywhere else in the large-scale production of goods and services in favour of the latter, because of its much greater cost-efficiency. The handcraftsman’s method means that, instead of using highly specialized support services, law firms do all of the work themselves to service all of each client’s legal problems. As a result, no law firm has a sufficient degree of specialization, combined with the necessary scaled-up volume of production to prevent the problem from happening. The difference in the two methods is exemplified by the cost-efficiency of a centralized legal research unit servicing lawyers in private practice who provide free legal services to legal aid clients (poor people). Its technology of centralized legal research has enabled it to produce close to 5,000 complete legal opinions per year, thus saving its government-financed legal aid organization millions of dollars that would otherwise have had to be paid out on lawyers’ accounts for legal research services rendered.
The problem is inevitable because of the method used to deliver legal services. The legal profession uses a “handcraftman’s method” instead of a “support services method.” The former has been abandoned everywhere else in the large-scale production of goods and services in favour of the latter, because of its much greater cost-efficiency. The handcraftsman’s method means that, instead of using highly specialized support services, law firms do all of the work themselves to service all of each client’s legal problems. As a result, no law firm has a sufficient degree of specialization, combined with the necessary scaled-up volume of production to prevent the problem from happening. The difference in the two methods is exemplified by the cost-efficiency of a centralized legal research unit servicing lawyers in private practice who provide free legal services to legal aid clients (poor people). Its technology of centralized legal research has enabled it to produce close to 5,000 complete legal opinions per year, thus saving its government-financed legal aid organization millions of dollars that would otherwise have had to be paid out on lawyers’ accounts for legal research services rendered.
Number of Pages in PDF File: 9
Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2478303
Wednesday, October 1, 2014
Province takes slow approach to reforming liability legislation
| Aug 20, 2014 - 7:41 PM |
There
will be no quick relief for Ontario municipalities who are having to
shell out millions due to the rising number of lawsuits filed against
cities -- and the climbing damage awards that accompany them. The
province has said it's open to reform, but change will take time. File
photo.
Current rules driving double-digit increase in municipal insurance rates
Hopes the province would act quickly to help cities stem
soaring insurance costs were dashed at this week's meeting of the
Association of Municipalities of Ontario.
What's known as 'joint and several liability' rules in the province often force municipalities to pay the bulk of multi-million dollar damage awards in lawsuits. Under the 'one per cent rule,' even when cities are found to have played an extremely minor role in an accident, judges can order them to pay most of a damage claim if the other defendants don't have the resources. That's because cities are viewed as having deep pockets when it comes to compensating accident victims.
What's known as 'joint and several liability' rules in the province often force municipalities to pay the bulk of multi-million dollar damage awards in lawsuits. Under the 'one per cent rule,' even when cities are found to have played an extremely minor role in an accident, judges can order them to pay most of a damage claim if the other defendants don't have the resources. That's because cities are viewed as having deep pockets when it comes to compensating accident victims.
In one case a few years ago in southern Ontario, a man who had been drinking – even had a beer in his lap while he was driving – blew threw a stop sign and caused a serious accident. The judge in the case ruled the municipality had to pay the bulk of the award because was partially responsible since the signage alerting drivers about the stop sign was inadequate.
Joint and several liability is particularly costly in Ontario for municipalities because of no-fault vehicle insurance rules. With lawsuit awards usually capped at $1 million for car insurance companies, plaintiffs often will include cities because there's no limit in place on what they can be forced to pay.
That's driving up municipal insurance costs across the province, including Sudbury. Premiums are up this year by 40 per cent in the city's police budget, almost 55 per cent in building services, 37.1 per cent in waste collection, 48.6 in Ontario Works, 40.3 per cent in children's services and 29.1 per cent in emergency services.
In dollar terms, rising premiums cost local taxpayers $300,000 in added costs this year alone. AMO has long lobbied for reform, and there was hope the new Liberal majority government would be receptive.
But in his remarks to delegates meeting this week in London, AMO president Russ Powers said they had been informed that change was not coming any time soon.
“This week the Ontario government informed AMO that it would not act on this,” Powers said, describing the current rules as “immoral and wrong.
“Other provinces have introduced sensible limits on municipal liability and protections for property tax payers. We won’t stop until we get that done.”
While not ruling out changes, Attorney General Madeleine Meilleur told the Ontario Legislature in July the government wants to ensure that whatever changes they make won't end up hurting victims or have other unintended consequences.
That's what happened under the no-fault insurance rules, which were aimed at slowing the rise in automobile insurance rates. Another example is a Supreme Court of Canada ruling that capped general damage awards at $100,000, and tied it to inflation. That prompted judges to look for other parties who could pay compensation to accident victims. So reform will take time, Meilleur said.
“Legal liability reform is an important and complex issue,” she said, in response to a question from PC MPP Randy Pettapiece. Whatever the province does, she said “there will be winners and losers. It’s a very complex matter, and we want to make sure that we have it right before we move forward.”
Ontario is reviewing rules used by Saskatchewan, she said, to see whether they could work here. Under that model, “if there is a shortfall because one defendant is insolvent and the plaintiff’s own negligence contributed to the harm, the shortfall is divided among the remaining defendants and the plaintiff, in proportion to their fault,” says a post on AMO's website.
“Another model will limit municipal liability for negligence in road maintenance to two times the proportion of damage,” Meilleur said. “It could look very simple for some of us, but it’s a very complex issue. Indeed, if this bill is passed, (as I said) there will be winners and losers, and that’s what we have to consider before moving forward with it.”
Accident Benefit Reporter Updater, Issue 20
Cost Proportionality Not Always Kind to Injured Plaintiffs
When it comes to the issue of legal costs, the proportionality concept is a welcome feature in civil litigation but it can serve to penalize personal injury plaintiffs with modest personal injury claims.
For example, in Mayer et al v. Shemon et al, the plaintiffs were awarded $140,600 by a jury at trial, but had their partial indemnity cost claim of $422,055.41 denied by the Honourable Mr. Justice Ian F. Leach of the Ontario Superior Court of Justice in his decision released April 28th, (2014) ONSC 2622 (S.C.J.).
In his reasons denying costs to the plaintiffs, Justice Leach reviewed all of the Rule 57.01 factors in relation to cost awards.
Justice Leach highlights the overriding principle of reasonableness when it comes to the issue of costs. He then proceeds to review in detail the conduct of the trial and raises various criticisms of plaintiffs’ counsel’s approach – for example holding plaintiffs’ counsel largely responsible for the extended length of trial, estimates by plaintiffs’ counsel at 2 weeks and lasting close to 4 weeks.
The undercurrent to the court’s reasoning in denying costs to the plaintiffs in Mayer, appears to be the fact that plaintiffs’ counsel believed the case was a sizeable one, and pursued it as such, when defence counsel and the jury felt otherwise. For example, Justice Leach in reference to the plaintiffs’ unwillingness to comprise from their settlement position, states that, “the plaintiffs seem to have engaged in no meaningful risk-analysis whatsoever, nor any corresponding willingness to compromise their claims in any degree, for the purpose of resolving the parties’ dispute without trial.”
In Mayer, plaintiffs’ counsel had made a formal offer to settle for $1.5 million in damages after having successfully moved before trial to increase the quantum claimed. Defence counsel, on the other hand, made an all-inclusive offer of $200,000 as well as an offer for damages totalling $150,000 (broken down as $115,000, $15,000 and $20,000 to each of the various plaintiffs), plus partial indemnity costs.
Despite an unwelcome modest jury award, the plaintiffs claimed partial indemnity costs of $265,393.21 for fees inclusive of tax, and $156,662.20 for disbursements inclusive of tax, for a total all-inclusive cost claim of $422,055.41.
Claiming that they beat their offer to settle, defence counsel claimed their partial indemnity costs in the amount of $181,406.76.
In considering defence counsel’s request for costs, Justice Leach ruled that defence counsel failed to establish they beat their formal offer given that their initial offer was improperly framed as an all-inclusive one and given that their subsequent offer did not state whether the offer was severable so as to allow each plaintiff to accept the amount offered.
In the end, Justice Leach ruled that justice would be best served in this case by denying costs to both sides and, accordingly, no cost order was made.
The Mayer case must not been seen as a precedent for denying cost claims of this magnitude in personal injury cases were the damage amounts involved are far less than the amount claimed for costs.
Personal injury litigation is extremely expensive. Even the simplest case is expensive to properly present at trial. With recent court decisions challenging the admissibility of treatment reports that do not formally comply with the expert report rules, disbursements costs have increased drastically.
Access to justice requires personal injury claimants to be able to access the courts. For cases were the amounts involved are expected to be in the $100,000 to $250,000 range, the partial indemnity costs claimed will often fairly and properly exceed the amounts awarded.
The offer to settle rules are there to keep litigants acting reasonably. Defence counsel and insurers know the costs of trial and should not be surprised when cost claims exceed the amounts recovered. The solution is for defence counsel to make more reasonable offers and to make them earlier.
While improvements to the Rules of Civil Procedure to help reduce the cost of trial are welcome, until such rules are in place the cost of a medium size personal injury trial will continue to be out of proportion to the cost of the damages claimed and this reality must not serve to prejudice or constrain access to justice for personal injury claimants.
Darcy Merkur is a partner at Thomson, Rogers in Toronto practicing plaintiff’s
personal injury litigation, including plaintiff’s motor vehicle litigation.
Darcy has been certified as a specialist in Civil Litigation by the Law Society of
Upper Canada and is the creator of the Personal Injury Damages Calculator.
Source: http://www.thomsonrogers.com/accident-benefit-reporter-updater-issue-20?utm_source=2014+TR+In-House+List&utm_campaign=4e5d691309-ABR+Updater+Issue+20&utm_medium=email&utm_term=0_5acf6d43a2-4e5d691309-410815605
| By: |  |
Darcy R. Merkur Partner Thomson, Rogers |
When it comes to the issue of legal costs, the proportionality concept is a welcome feature in civil litigation but it can serve to penalize personal injury plaintiffs with modest personal injury claims.
For example, in Mayer et al v. Shemon et al, the plaintiffs were awarded $140,600 by a jury at trial, but had their partial indemnity cost claim of $422,055.41 denied by the Honourable Mr. Justice Ian F. Leach of the Ontario Superior Court of Justice in his decision released April 28th, (2014) ONSC 2622 (S.C.J.).
In his reasons denying costs to the plaintiffs, Justice Leach reviewed all of the Rule 57.01 factors in relation to cost awards.
Justice Leach highlights the overriding principle of reasonableness when it comes to the issue of costs. He then proceeds to review in detail the conduct of the trial and raises various criticisms of plaintiffs’ counsel’s approach – for example holding plaintiffs’ counsel largely responsible for the extended length of trial, estimates by plaintiffs’ counsel at 2 weeks and lasting close to 4 weeks.
The undercurrent to the court’s reasoning in denying costs to the plaintiffs in Mayer, appears to be the fact that plaintiffs’ counsel believed the case was a sizeable one, and pursued it as such, when defence counsel and the jury felt otherwise. For example, Justice Leach in reference to the plaintiffs’ unwillingness to comprise from their settlement position, states that, “the plaintiffs seem to have engaged in no meaningful risk-analysis whatsoever, nor any corresponding willingness to compromise their claims in any degree, for the purpose of resolving the parties’ dispute without trial.”
In Mayer, plaintiffs’ counsel had made a formal offer to settle for $1.5 million in damages after having successfully moved before trial to increase the quantum claimed. Defence counsel, on the other hand, made an all-inclusive offer of $200,000 as well as an offer for damages totalling $150,000 (broken down as $115,000, $15,000 and $20,000 to each of the various plaintiffs), plus partial indemnity costs.
Despite an unwelcome modest jury award, the plaintiffs claimed partial indemnity costs of $265,393.21 for fees inclusive of tax, and $156,662.20 for disbursements inclusive of tax, for a total all-inclusive cost claim of $422,055.41.
Claiming that they beat their offer to settle, defence counsel claimed their partial indemnity costs in the amount of $181,406.76.
In considering defence counsel’s request for costs, Justice Leach ruled that defence counsel failed to establish they beat their formal offer given that their initial offer was improperly framed as an all-inclusive one and given that their subsequent offer did not state whether the offer was severable so as to allow each plaintiff to accept the amount offered.
In the end, Justice Leach ruled that justice would be best served in this case by denying costs to both sides and, accordingly, no cost order was made.
The Mayer case must not been seen as a precedent for denying cost claims of this magnitude in personal injury cases were the damage amounts involved are far less than the amount claimed for costs.
Personal injury litigation is extremely expensive. Even the simplest case is expensive to properly present at trial. With recent court decisions challenging the admissibility of treatment reports that do not formally comply with the expert report rules, disbursements costs have increased drastically.
Access to justice requires personal injury claimants to be able to access the courts. For cases were the amounts involved are expected to be in the $100,000 to $250,000 range, the partial indemnity costs claimed will often fairly and properly exceed the amounts awarded.
The offer to settle rules are there to keep litigants acting reasonably. Defence counsel and insurers know the costs of trial and should not be surprised when cost claims exceed the amounts recovered. The solution is for defence counsel to make more reasonable offers and to make them earlier.
While improvements to the Rules of Civil Procedure to help reduce the cost of trial are welcome, until such rules are in place the cost of a medium size personal injury trial will continue to be out of proportion to the cost of the damages claimed and this reality must not serve to prejudice or constrain access to justice for personal injury claimants.
Darcy Merkur is a partner at Thomson, Rogers in Toronto practicing plaintiff’s
personal injury litigation, including plaintiff’s motor vehicle litigation.
Darcy has been certified as a specialist in Civil Litigation by the Law Society of
Upper Canada and is the creator of the Personal Injury Damages Calculator.
Source: http://www.thomsonrogers.com/accident-benefit-reporter-updater-issue-20?utm_source=2014+TR+In-House+List&utm_campaign=4e5d691309-ABR+Updater+Issue+20&utm_medium=email&utm_term=0_5acf6d43a2-4e5d691309-410815605
Monday, June 2, 2014
Focus: Bias a hot topic for experts as Getahun debate continues
Bias is once again the hot topic among expert witnesses after an Ontario
Superior Court judge banned lawyers from meeting with their experts to
review draft reports.
Justice Janet Wilson ignited a firestorm with her January decision in Moore v. Getahun, a ruling currently under appeal. Meanwhile, the Supreme Court of Canada will also tackle the issue of expert independence this fall when it hears arguments in the Nova Scotia case of Abbott and Haliburton Co. v. WBLI Chartered Accountants.
James McAuley, an accountant and senior vice president of KPMG Forensic Inc. in Toronto, says such decisions help emphasize the importance of expert independence in a similar way to the change to Ontario’s Rules of Civil Procedure in 2010. Since then, experts must sign Form 53 that confirms their duty to the court above and beyond the party that retained them.
“That may have forced some people to focus on what’s always been their duty,” he says.
“There was a change in form, but it shouldn’t have been a change in substance. Avoiding bias and independence have always been front and centre in how I approach a mandate.”
Carolyn Seaquist, a principal in the litigation accounting and valuation services group at Collins Barrow Toronto LLP, says it’s “absolutely crucial that we are not perceived as advocates.”
“We are keenly aware, in each and every case, that if our reports are not perceived as being fair, objective, and independent, not only will our expert evidence not be accepted by the court, but our professional reputation will be damaged,” she says.
In Getahun, a medical malpractice case, a defence expert faced questions about alterations made to his report following a 90-minute phone call with counsel. While he claimed the changes were minor, the judge concluded the meeting involved “more than simply superficial, cosmetic changes” and condemned the practice of counsel and experts meeting to “review and shape” reports and opinions.
“I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert,” Wilson wrote in the Jan. 14 judgment.
Norm Emblem, a partner at Dentons Canada LLP in Toronto, says he’s confident the Ontario Court of Appeal will overturn the decision because its sweeping nature makes it unworkable in practice. He says most experts, particularly those inexperienced in court proceedings, need help ensuring their reports are helpful to the judge.
“There are some experts who, unguided, wouldn’t have a clue how to properly frame a report that will ultimately assist the court,” he says. “The manner in which a report is structured in certain cases requires assistance of counsel. That is not changing the opinion.”
Darcy Merkur, a personal injury lawyer with Toronto’s Thomson Rogers, says the decision has chilled the medical-legal community and forced him to deal only with experts he has previously used.
“I don’t want to be put in a position where I have to educate them,” he says. “It’s not a good decision for access to justice because it muzzles lawyers and ramps up the costs of litigation by forcing reliance on seasoned veteran expert witnesses.”
Although the decision involved medical experts, Seaquist says it applies equally to accounting specialists like her and is already affecting relationships with counsel. Experts issue draft reports only on demand while defence lawyers are increasingly forgoing that option.
“Once a draft report is issued, we are very cautious about the nature of changes that are made,” says Seaquist. “For example, new information of which we were previously unaware may affect our opinion and therefore changes are appropriate. Alternatively, we will correct a typo or other error that was noticed by counsel.”
On the rare occasions where a lawyer may attempt to influence her opinion, Seaquist says she’s not shy about standing her ground.
“If we disagree with counsel, we simply state so and explain the reasons. In most cases, counsel is very understanding once the reasons are fully explained. In rare cases, we have lost clients because we were unwilling to manipulate the numbers to satisfy a lawyer.”
Seaquist offers these tips for accountants and other experts who don’t want to be the recipient of judicial ire:
• Never disregard relevant information just because it doesn’t suit your client. “For example, if a plaintiff acknowledges to the accountant that they planned to retire by age 60, the accountant cannot simply disregard this information and assume a retirement age of 65,” she says.
• Stick to your turf: Avoid straying from your area of expertise and, if you must, ensure the report clearly says so. “As professional accountants, we are unable to provide an opinion as to an injured plaintiff’s ability to work or earn. Thus, we must clearly state that any scenarios provided as to his or her ability to work and earn are based on what appear to be reasonable assumptions rather than our opinion,” says Seaquist.
• Always acknowledge assumptions: In cases of insufficient information or data, experts have to make assumptions and should note them. Seaquist says this can come up in loss-quantification cases when financial statements are incomplete or inaccurate for tax reasons. “Clearly state this deficiency in information and any assumptions that had to be made as a result,” she says.
• Play for both teams: “We ensure that we accept both plaintiff and defence assignments,” says Seaquist. “It really just depends on who calls us first. This policy is deliberate, so that we are perceived as unbiased by the trier of fact, but also because working for both plaintiffs and defendants reduces the likelihood that the expert will develop his or her own biases, possibly even unknowingly.”
Source: Monday, 19 May 2014 08:00 | Written By Michael McKiernan
http://www.lawtimesnews.com/201405193970/focus-on/lawyer
Justice Janet Wilson ignited a firestorm with her January decision in Moore v. Getahun, a ruling currently under appeal. Meanwhile, the Supreme Court of Canada will also tackle the issue of expert independence this fall when it hears arguments in the Nova Scotia case of Abbott and Haliburton Co. v. WBLI Chartered Accountants.
James McAuley, an accountant and senior vice president of KPMG Forensic Inc. in Toronto, says such decisions help emphasize the importance of expert independence in a similar way to the change to Ontario’s Rules of Civil Procedure in 2010. Since then, experts must sign Form 53 that confirms their duty to the court above and beyond the party that retained them.
“That may have forced some people to focus on what’s always been their duty,” he says.
“There was a change in form, but it shouldn’t have been a change in substance. Avoiding bias and independence have always been front and centre in how I approach a mandate.”
Carolyn Seaquist, a principal in the litigation accounting and valuation services group at Collins Barrow Toronto LLP, says it’s “absolutely crucial that we are not perceived as advocates.”
“We are keenly aware, in each and every case, that if our reports are not perceived as being fair, objective, and independent, not only will our expert evidence not be accepted by the court, but our professional reputation will be damaged,” she says.
In Getahun, a medical malpractice case, a defence expert faced questions about alterations made to his report following a 90-minute phone call with counsel. While he claimed the changes were minor, the judge concluded the meeting involved “more than simply superficial, cosmetic changes” and condemned the practice of counsel and experts meeting to “review and shape” reports and opinions.
“I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert,” Wilson wrote in the Jan. 14 judgment.
Norm Emblem, a partner at Dentons Canada LLP in Toronto, says he’s confident the Ontario Court of Appeal will overturn the decision because its sweeping nature makes it unworkable in practice. He says most experts, particularly those inexperienced in court proceedings, need help ensuring their reports are helpful to the judge.
“There are some experts who, unguided, wouldn’t have a clue how to properly frame a report that will ultimately assist the court,” he says. “The manner in which a report is structured in certain cases requires assistance of counsel. That is not changing the opinion.”
Darcy Merkur, a personal injury lawyer with Toronto’s Thomson Rogers, says the decision has chilled the medical-legal community and forced him to deal only with experts he has previously used.
“I don’t want to be put in a position where I have to educate them,” he says. “It’s not a good decision for access to justice because it muzzles lawyers and ramps up the costs of litigation by forcing reliance on seasoned veteran expert witnesses.”
Although the decision involved medical experts, Seaquist says it applies equally to accounting specialists like her and is already affecting relationships with counsel. Experts issue draft reports only on demand while defence lawyers are increasingly forgoing that option.
“Once a draft report is issued, we are very cautious about the nature of changes that are made,” says Seaquist. “For example, new information of which we were previously unaware may affect our opinion and therefore changes are appropriate. Alternatively, we will correct a typo or other error that was noticed by counsel.”
On the rare occasions where a lawyer may attempt to influence her opinion, Seaquist says she’s not shy about standing her ground.
“If we disagree with counsel, we simply state so and explain the reasons. In most cases, counsel is very understanding once the reasons are fully explained. In rare cases, we have lost clients because we were unwilling to manipulate the numbers to satisfy a lawyer.”
Seaquist offers these tips for accountants and other experts who don’t want to be the recipient of judicial ire:
• Never disregard relevant information just because it doesn’t suit your client. “For example, if a plaintiff acknowledges to the accountant that they planned to retire by age 60, the accountant cannot simply disregard this information and assume a retirement age of 65,” she says.
• Stick to your turf: Avoid straying from your area of expertise and, if you must, ensure the report clearly says so. “As professional accountants, we are unable to provide an opinion as to an injured plaintiff’s ability to work or earn. Thus, we must clearly state that any scenarios provided as to his or her ability to work and earn are based on what appear to be reasonable assumptions rather than our opinion,” says Seaquist.
• Always acknowledge assumptions: In cases of insufficient information or data, experts have to make assumptions and should note them. Seaquist says this can come up in loss-quantification cases when financial statements are incomplete or inaccurate for tax reasons. “Clearly state this deficiency in information and any assumptions that had to be made as a result,” she says.
• Play for both teams: “We ensure that we accept both plaintiff and defence assignments,” says Seaquist. “It really just depends on who calls us first. This policy is deliberate, so that we are perceived as unbiased by the trier of fact, but also because working for both plaintiffs and defendants reduces the likelihood that the expert will develop his or her own biases, possibly even unknowingly.”
Source: Monday, 19 May 2014 08:00 | Written By Michael McKiernan
http://www.lawtimesnews.com/201405193970/focus-on/lawyer
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http://www.ciws.ca/articles_independent_medical_examiners.htm
https://www.fsco.gov.on.ca/en/drs/counselforum/Pages/2011-03-25.aspx
Macdonald v. Sun Life Assurance Company of Canada, 2006 CanLII 41669 (ON SC) — 2006-12-13
Superior Court of Justice — Ontario
report — highlighted portion — cauda equina compression — straw that broke the camel — deletion
[…] It was only on May 30, 2005 that he discovered that Riverfront had sent out a report with his stamped signature affixed that was different from what he expected. […] Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as […]
“… After the report left the hands of Ms. Lipka, the report was altered, for reasons unclear, by others… ”
from the FAIR website:
There is increasing evidence that Ontario’s auto accident victim’s medical files are being routinely changed to suit the needs of Ontario’s insurers to save money by deflating an MVA victim’s injuries. Portions of reports have been removed, manipulated or even changed entirely without the author’s knowledge or consent. Signatures have been forged or used without permission in many cases. Victims and their legal representatives should be viewing reports and evidence with a critical eye to insurer fraud whether it be an adjuster, an assessor, assessment centers, treatment facility or even your own lawyer’s staff. This abuse of evidence is widespread and should be a major factor in the fight on fraud and yet it isn’t. Accident victims are often re-victimized and defrauded out of the coverage they paid for by the fraudulent acts of others.
******
A leaked document from a discussion forum
I am involved in an Arbitration on the issue of catastrophic impairment where Sibley aka SLR Assessments did the multi-disciplinary assessments for TD Insurance. Last Thursday, under cross-examination the IE neurologist, Dr. King, testified that large and critically important sections of the report he submitted to Sibley had been removed without his knowledge or consent. The sections were very favourable to our client. He never saw the final version of his report which was sent to us and he never signed off on it. more…
******
Ansari and State Farm [+] Arbitration, 2014-12-24, Reg 403/96. Final Decision
Medical Rehabilitation Benefits/Cost of Examinations
10. The Respondent submits that given the Treatment Plan of November 5, 2010, was not signed by a health practitioner and part 4 was admittedly “forged”, the Treatment Plan should not be considered in the context of this arbitration hearing. Additionally, it was also withdrawn; therefore it is not properly in dispute in this proceeding and is not payable [334].
For the purposes of this Hearing, I find the Treatment Plan, as completed and signed by Ms. Lipka, a registered nurse, is valid. After the report left the hands of Ms. Lipka, the report was altered, for reasons unclear, by others as to her designation. No evidence was introduced at the Hearing to show the assessment was withdrawn.
******
Burwash v. Williams, 2014 ONSC 6828 (CanLII) 2014-11-25 http://canlii.ca/t/gfdrp
[10] The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.
[24] The Plaintiffs provided documents that indicate that there may have been third party manipulation and alteration of the expert reports that the Defendants will rely upon at trial. Relevancy is established since this issue goes straight to the heart of the Plaintiffs’ case and the medical evidence they intend to lead to prove damages. more…
******
MC v KE, 2013 CanLII 55435 (ON HPARB), 2013-09-04 http://canlii.ca/t/g0c3g
10. However, the Committee did express concern about the information uncovered during the course of the investigation related to Riverfront having altered the Respondent’s report. The Committee noted the “egregious” impact that these changes could have had on the Applicant’s entitlement to benefits. In the result, the Committee decided to offer advice to the Respondent about the importance of ensuring that she personally reviews and approves any assessment report she completes prior to the report being issued. more…