Law Times

November 16, 2009

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PAGE 2 NEWS November 16, 2009 • Law Times ma to make a crisis even worse. Now, an innovative new pro- SickKids launches legal assistance program W BY TIM SHUFELT Law Times hen a child falls ill, the last thing a parent needs is a legal dilem- gram at the Hospital for Sick Children in Toronto has lawyers working side by side with doctors to help families of ailing children wade through legal quandaries. While matters of health and law commonly overlap, SickKids is the first hospital in Canada to employ on-site legal expertise, ac- cording to program officials. "In dealing with families in crisis, it's really important to have someone on site," says Lee Ann Chapman, the hospital's in-house lawyer. "And often I'm not just see- ing people in my office. I'm up in wards. I'm even in ICU where parents can't leave the bedside." Chapman arrived at SickKids through Pro Bono Law Ontario, a charitable organization offering free legal services and a partner in the hospital's Family Legal Health Program, which officially launch- es this week. The two-year pilot program, funded by the Law Foundation of Ontario, gets its inspiration from programs in the United States, where lawyers commonly work at hospital bedsides. In a trend beginning in the early 1990s, American hospi- tals with on-site legal resources now number in the hundreds, says Wendy Miller, director of PBLO's Child Advocacy Project. U.S. President Barack Obama has since included an expan- sion of legal services in his health reform bill, she adds. Eventually, Miller expects the program will gain traction through- out Canada, and not just at large hospitals. "It's as good a mod- el for a small commu- nity health clinic as it is for a regional [facil- ity]," she says. Ted McNeill, direc- tor of social work and child life at SickKids, says having immediate access to legal advice helps medical staff treat young patients. While legal aid is a resource for many, others can't access legal services when a prob- lem arises while a child is in hospital. "If we don't attend SickKids' on-site lawyer, Lee Ann Chapman, middle, says the Desbiens family was denied tax credits when their daughter required surgeries for a heart defect. to some of those kinds of issues, a number of which have a legal so- lution, then we're not going to be as effective as health-care provid- ers," says McNeill. Cindy and Jeff Desbiens say they spent months travelling back and forth from their home in Waterloo to SickKids to stay with their three-year-old daugh- ter, Charolette, who was born with a serious heart defect requir- ing multiple surgeries. For several months, the girl's mother stayed with her at her bedside, while Jeff looked after their other daughter at home. The couple would trade places on weekends. But when they tried to claim more than $12,000 in travel expenses on their income tax return, they learned the ex- penses were ineligible. According to the Canada Rev- enue Agency, since the little girl wasn't getting treatment on a dai- ly basis while in hospital after her surgery, her parents were merely visiting her rather than accompa- nying her for medical care. "We really felt strongly about this but didn't want to go it alone," Jeff says. PBLO then got in touch with Michael Friedman, a partner in the tax group at McMillan LLP. Friedman says CRA dropped the matter before it went to court and allowed the claim. "[The program] really serves a strong need," Friedman says. "If we can make it easier to deal with legal issues on the way, I think that's a valuable service." He adds that McMillan has made a commitment to sup- port the project at SickKids. Toronto firm Torkin Manes LLP is also participating, and your OFFICE PRODUCTIVITY source the program has the support of Legal Aid Ontario. Chapman says eagerness to participate in the program is building. "There certainly is enthusi- asm in legal circles. Every time the program is mentioned, an- other firm comes out and vol- unteers," she says. However, not every prob- lem requires referral to external lawyers. "Some of them are pretty straightforward. It's had a huge impact, but the solution is not complex." Some parents are simply so traumatized by a serious illness and so consumed with attend- ing to their child, they neglect to provide the information required for income sup- port, Chapman says. "It's easy for me as a lawyer to know where those documents need to come from. I can do them while they're wait- ing in the hospital." Chapman's own background in educa- tion law also comes in handy, she notes, par- ticularly when dealing with school officials who say they can't handle the extensive special needs of a young patient. "Sometimes, it's just knowing the right per- son in the hierarchy who knows when you say 'human rights and accommodation,' bells go off. Suddenly, we're speaking the same language." But other issues involving tax or employment law, for example, may require specialized expertise. Sometimes, a parent is forced to choose between working and attending to a sick child, Miller says. "That's a fairly common scenario. We're talking about people who have low-wage jobs with little flexibility." But a little legal intervention can remove a significant stres- sor, such as the loss of employ- ment, at a time when there are many, Miller adds. Once that threat is gone, "fami- lies are a lot more able to focus on getting their kid better." LT Lawyer exonerated in third-party action BY TIM SHUFELT Law Times T Tidy up and get organized with D&D Storage Boxes Attached hinged lid. Holds letter or legal size folders. Easy to assemble pop open box. 10 per package. 12"W x 15"D x 10"H. 23175-00 .......White 65lb 23174-00 .......Natural 65lb 24100-00 .......Natural 200lb C he Ontario Court of Appeal upheld the sanctity of solicitor- client privilege earlier this month, ruling against an attempt to bring third-party proceedings against a plaintiff's lawyer. In doing so, the court avoided opening a potentially very large can of worms, says J. Brian Casey, a partner with Baker & McKenzie LLP. He represented the respondent in Davy Estate v. CIBC World Mar- kets Inc. facing allegations that his advice as a solicitor was negligent. "A lawyer, to defend himself or herself, must be able to do so," Casey says. Under such circumstances, the lawyer in question "might well have to disclose things that would otherwise be privileged." In the original proceeding, the plaintiff, Deborah Marie Davy, acting as estate trustee, sued her father's wife, Joan Egan, and CIBC investment adviser Grant Neuber for their handling of some of her father's shares. The plaintiff claimed that despite their knowledge of her father's mental incapacity, the pair accepted his instructions to transfer the assets to an account held jointly with Egan. She then allegedly transferred the shares to her own account. While they denied liability, the defendants claimed Davy failed to mitigate any losses by freezing the CIBC account by court order. Davy said she was acting under the advice of her solicitor, Robert Henry. The defendants then attempted to make a third-party claim against Henry. In the appeal court's finding, Justice Robert Sharpe upheld the motion judge's decision to strike the third-party claim. He noted that Henry did nothing to cause the losses but was merely accused of not taking steps to reduce the loss after the fact. "In my view, the defendant has no claim in law against the plain- For more information please contact your Account Executive or contact us at 1-888-393-3874 dyedurhambasics.ca Untitled-2 1 www.lawtimesnews.com 11/11/09 9:41:50 AM tiff's solicitor for advice given to the plaintiff as to how to mitigate the loss caused by the defendant's own wrong," Sharpe wrote. He went on to address the issues of privilege supporting his decision. "Obvious mischief arises from allowing one party to sue an- other party's solicitor," Sharpe wrote. "The solicitor's loyalty to the client is undermined." LT W e Photo: Tim Shufelt ' r e a C a n a d i m a n o p a n y

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