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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. July 11, 2011 • law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaran- teed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 905-713-4342 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at 905-713-4337 sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Putting justice on the agenda in Ontario vote ing pocketbook issues rather than propos- als for the justice system. Opposition leaders talk a lot about the A harmonized sales tax and electricity rates, for example. But what about the various issues aff ecting our courts? In terms of the election platforms, the party with the most to say on justice is the Progressive Conservatives. Th ey're vowing to get tough on criminals through their controversial plan to make provincial pris- oners do 40 hours of manual labour each week. Th ey'll also beef up monitoring of sex off enders; help towns and cities collect unpaid fi nes; provide more compensation for victims of crime; extend the hours at Ontario's busiest courthouses; create a registry of homes used as grow-ops and meth labs; and create an offi ce of fi nancial s Ontarians begin thinking about the upcoming provincial election, the parties are largely emphasiz- crimes prosecution to address fraud. Th e NDP, meanwhile, says little about justice in its platform. However, the party has in recent months staked out positions on a number of issues such as the need to fi x jury-selection problems in northern Ontario and the government's closures of three provincial jails. Of course, it's understandable that pol- iticians would spend more time on bread- and-butter concerns like taxes and health care than the courts. But there are a num- ber of justice issues that require attention from our political parties. Th ey include: • Court interpreters: What will the par- ties do to resolve the ongoing concerns over testing and the lack of people with accreditation? • Legal aid: Did last year's agreement go far enough to resolve the crisis? • Court modernization: What are the proposals to introduce new technology to outdated courtrooms? • Crown discretion: Provincial policies mandate that prosecutors off er little or no leeway on the charges they seek in areas such as guns-and-gangs prosecu- tions. Is that the right approach? Is the move towards charges with mandatory minimum sentences aff ecting people's willingness to plead guilty? • Prison costs: Th e federal government's rash of new laws, some of which are still in the works, will have convicts staying in jail for longer periods of time. How will the province pay for the resulting costs? Is building more super jails while closing down smaller facilities, such as the three prisons already on the chop- ping block, the answer? • Court effi ciency: Is Justice on Target working? Is it time, as a recent Law Commission of Ontario interim report proposed, to move provincial off ences matters for minor infractions like parking tickets out of the courtroom and into an administrative monetary penalty regime? • Fraud prosecutions: Bringing these cases to trial is very diffi cult given the complexity and limited Crown re- sources. As noted, the PC party is pro- posing a special offi ce for this. What do the other parties have to say? We know some of the Liberals' policies based on their record in government. But the party has yet to release its platform, so we'll have to wait for more details. In the meantime, lawyers have a sig- nifi cant role in bringing the issues to light and letting the public know about what's going on in the court system and what might work in terms of reform. Let's hope, then, that we have a vigorous debate on these issues in the coming months. — Glenn Kauth U Report on catastrophic impairment a disappointment Social nder the current statu- tory accident benefi ts schedule, accident vic- tims deemed to be in the catas- trophic impairment category are entitled to a maximum of $1 mil- lion in medical and rehabilitation services. Th ose not deemed catas- trophically impaired are entitled to a maximum of just $50,000 for the same services provided that the injuries aren't so insig- nifi cant as to be deemed minor. While these limits are doubled for the few people electing to pay increased premiums, the vast diff erence in benefi ts renders it vital that those truly catastroph- ically impaired are placed into the correct category. Failure to do so can create tragic results, particularly for those not able to proceed with a tort action. Th at's why I'm disappointed in the proposals from the fi nal report of the catastrophic impair- ment expert panel this year. My disappointment starts with the panel's composition. I under- stand why the insurance indus- try's views should be represented, but was it necessary that two of the eight members are or have been consultants to the Insurance Bureau of Canada? In addition, two others have received research grants from the insurance industry. Yes, all confl icts of interest were de- clared, but why was it necessary to assemble an expert panel with so many issues? Also, why were there no psychiatrists and only one psy- chologist on the panel? Th at the panel's composition had a strong impact on its conclusions is evident in the fact that only six of the eight members agreed that an individual injured in a traffi c accident who becomes paraplegic or quadriplegic is catastrophically impaired. Any exercise in assessing the need to modify the defi nition of catastrophic impairment must begin with a purposive approach. We put accident victims into the category of catastrophic impairment so as to satisfy their medical and rehabilitation needs. Victims Justice By Alan Shanoff needing a prosthesis, wheel- chairs, other assistance devices, attendant care, housekeeping services or home modifi cations may easily and quickly exhaust a limit of $50,000. So how is it that the panel didn't con- sider the adequacy of no-fault benefi ts for the seriously and catastrophically impaired? Why didn't it look at how often vic- tims exhaust their benefi ts or whether the limits provide ade- quate relief for the seriously but not catastrophically impaired? Th e question of whether physical and psychiatric impair- ments should be combined to de- termine whole-body impairment is currently under review. What- ever the Court of Appeal may do in the Kusnierz v. the Economical Mutual Insurance Co. case, there's www.lawtimesnews.com no reason not to look at the issue from a policy point of view. Th at's why the panel's an- alysis of this issue is disappoint- ing. Despite its statement that it didn't have the resources to conduct a comprehensive lit- erature review to determine whether a valid and reliable method of combining physical and psychological impairment exists, the panel concluded that the "impairment ratings systems for physical/behavioural impair- ment are not compatible and cannot be combined." Th at physical and psychiatric impairments should be combined is obvious. Th at it's possible to do so is explained in a straight- forward manner in the Omega Medical Associates' response to the panel's report. Many of the proposals would render the determination of a catastrophic impairment more complex and harder to achieve. For example, spinal-cord injury victims would have to meet an arbitrary threshold in order to be considered catastrophically impaired. Added complexity will lead to even longer back- logs at the Financial Services Commission of Ontario. Fewer deserving accident victims will satisfy the defi nition, which will result in more litigation. Th ose who believe that the defi nition of catastrophic im- pairment ought to be narrower must understand that such a designation doesn't result in a cheque for $1 million to every victim. Th ere are no fi nancial windfalls. Each victim must demonstrate the need and rea- sonableness for every expense. As the fi nancial services com- mission has stated, "the goal for this review should be to ensure that the most severely injured ac- cident victims are treated fairly." Th e panel's proposals fail to heed that goal. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He's currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail ad- dress is ashanoff @gmail.com.

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