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December 4, 2017

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BY ALEX ROBINSON Law Times P ersonal injury lawyers say a recent arbitrator's deci- sion is a strong rebuke of expert bias that highlights the problem of professionally paid experts in insurance dispute cases. In Sopher v. Primmum In- surance, an arbitrator for the Fi- nancial Services Commission of Ontario ruled in favour of an in- surance claimant and discarded testimony of two experts retained by the insurance company, find- ing one of them had actively pro- moted the insurer's case. Personal injury lawyers say the decision and others like it show that expert bias is still a significant problem in these kinds of cases in Ontario. "The problem is that you only learn these things when cases go to trial or cases go to a hearing, and because so few cases go to trial or go to hearing, who knows how many untold stories there are of experts engaging in improper con- duct," says Josh Nisker, a partner with Beacon Law LLP, who repre- sented the applicant in the matter. "Because unless you get them on the stand and cross-examine them, you just won't know." The case concerned whether a 2012 motorcycle accident had left the applicant, Gary Sopher, cata- strophically impaired. The dispute turned on whether a pre-existing injury accounted for a large por- tion of Sopher's post-accident disability. While the insurer con- ceded that Sopher is seriously disabled, one of its experts argued that a pre-existing injury amount- ed for 38 per cent of his disability. The arbitrator, David Snider, however, rejected this and found there were problems with the in- surer's experts' assessments. One expert's testimony on this point "dissolved entirely under cross-examination," Snider found. The other expert, Dr. Kerry Lawson, had trained his daughter, who was a university student in an unrelated field, to be his psy- chometrist. She had engaged in conversation with Sopher's daugh- ter during the tests she conducted. Snider said this "calls into ques- tion any and all results" that Law- son's daughter obtained for the case. The arbitrator found that Law- son had used a single brief test Discipline launched after fees allegedly paid ALEX ROBINSON Law Times T he Law Society of Upper Canada has initiated disci- pline proceedings against a Brampton, Ont. lawyer for allegedly agreeing to pay a Flor- ida-based company for referrals. LSUC investigators have claimed that lawyer John D'Ali- monte has been involved in an arrangement in which he or his firm — the Merricks Law Group — agreed to pay a Florida-based med- ical and legal referral service called 1-800-Ask-Gary for referrals. Pay- ing a referral fee to anyone who is not a lawyer is against the law soci- ety's Rules of Conduct. The law society recently filed a notice of application also alleging the lawyer has been improperly advertising legal services through the Ask Gary service and that his website made misleading or con- fusing claims. The law society recently ap- proved changes to advertising rules that banned the advertising of second-opinion services and made it explicit that licensees can only advertise work they intend to do. While LSUC benchers were considering these regulatory chan- ges, the law society also conducted a number of investigations into complaints concerning advertis- ing that allegedly breached the ex- isting rules. Within the last year, the On- tario Trial Lawyers Association declined D'Alimonte's member- ship application to the organiza- tion, according to Ronald Bohm, the OTLA's president-elect. This was because it was clear the law- yer's marketing practices did not comply with the standards in the OTLA's code, Bohm says. "We have specific provisions requiring marketing be done in a manner that is not potentially mis- leading or confusing and that law- yers are responsible for the manner in which members of their firm or associated with their firm are act- ing," he says. DIVERSITY DEBATE For LSUC coverage, see lawtimesnews.com FOCUS ON E-discovery P9 PM #40762529 $5.00 • Vol. 28, No. 39 December 4, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M PRIVACY RULING Damages awarded after video taken P5 See Cap, page 4 Ronald Bohm says the Law Society of Upper Canada has clearly expressed concern about misleading and confusing advertising. See Singled, page 4 Lawyers say expert bias still significant problem Josh Nisker says expert bias is a huge problem in insurance dispute cases. Photo: Robin Kuniski & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM 5 TH ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS JOIN OUR FULLY ACCREDITED PROGRAM | EXPAND YOUR NETWORK AND OBTAIN CPD HOURS Register online: www.lexpert.ca/Work-Investigations • 416-609-5868 | 1-877-298-5868 *Discount applies to in-class only REGISTER NOW > Untitled-2 1 2017-11-30 1:23 PM

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