Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 www.lawtimesnews.com COMMENT I f you ask most people what they love about their jobs, they'll list a lot of things that make their work meaningful. What is most interesting to me is that, most of the time, when I chat with lawyers about why they do what they do (a perk of my job!), they'll list the people around them as the determining factors. (In the thick of the bencher election, one of the most com- mon sentiments I hear from people who have served is that their favourite part of the role is the people they got to meet.) It can admittedly be hard sometimes to think strategically about managing your practice when the paperwork on your desk is stacked up, but this issue provides some invaluable in- sights into long-range planning. Working on writing skills is also crucial. "Written advocacy is prob- ably the toughest job for a litiga- tor. The glamour is in the oral argument, but the written advo- cacy is usually more important," says Greg Temelini, a partner at Wright Temelini LLP in Toron- to. One of my favourite pieces by Shannon Kari is about the im- portance of delegation within a law firm. "I see my role, at least initial- ly, is to teach and to guide," says Lai-King Hum, chairwoman of the April 2 event at the Law Society of Ontario on Practice Management for Litigators, which includes the discussion on training and delegating. "The person with the 'straight As' in law school is not always the best hire. I always look to see whether someone can en- gage with people," she adds. These features were especially meaningful because this issue is the last for managing editor Jennifer Brown. Jen is a prolific writer and a thoughtful leader who knows law inside and out. Her inf luence on this paper, which is produced by a team, was immeasurable. Of the many things she has contributed — in these pages and outside — was a strong legacy for Law Times and its employees. We will miss her. LT BY IAN HARVEY T he Ontario government is once again probing why Ontario's auto insur- ance rates are so high. The good news is British Columbia has recently wrested the dubious honour of being the highest-rate jurisdiction in Canada, following 30-per-cent increases there over the last two years. The increases, however, weren't a cure for the systemic losses. The government-run Insurance Cor- poration of British Columbia says it is still bleeding money to the tune of $935 mil- lion over nine months as of January. In an effort to slash costs by $400 mil- lion a year, B.C. Attorney General David Eby last month capped the use of experts at personal injury trials where less than $100,000 is claimed to one per side. For claims of more than $100,000, the limit is three, Eby said. We may soon see similar solutions proposed in Ontario where the personal injury claims process is baff ling to out- siders, with secret thresholds and judges over-riding jury awards and where hired gun experts sling opinions. Some suggest eliminating jury trials for lesser claims and barring hired guns, who, according to the Globe and Mail, have become a $240-million-a-year in- dustry in British Columbia and Ontario alone. As the Ontario Trial Law- yers Association put it in its submission to the rules com- mittee on Rule 53, it's time for systemic and revolutionary changes not tweaks. Certainly, how civil suits proceed in the future is just one facet of this issue, but it's an important one. Changes to Rule 53 failed to clear things up, the OTLA says, citing Justice Mark Ed- wards' comments in DeBruge v. Arnold, (2014 ONSC 7044), which are as true today as they were five years ago. "Trial judges are constantly reminded about the gate-keeper function which we must perform when dealing with the evi- dence of experts," Edwards wrote. "We are also constantly reminded about how experts have, in many re- spects, become the 'lifeblood' of personal injury litigation. The facts of yesterday's motor vehicle claim are no different than the facts of today's motor vehicle claim. A broken bone 25 years ago is the same broken bone today. A whiplash injury 25 years ago is the same whiplash injury to- day." Dr. Michael Ford, a Toronto orthopedic surgeon and expert witness, goes further, saying it's time to cut to the bone and streamline the court process, especially for minor MVAs where there is no discernable injury. He says there are too many hired guns who are willing to testify for cash yet are unquali- fied to give informed opinions. "Most don't see the type of injury they are testifying about in their everyday practice, yet they will go to court to give an opinion," says Ford, who testifies primar- ily for the insurance companies within his area of orthopedic specialty, spinal injuries. "It's dishonest," he tells Law Times. "And, yes, I'm disappointed with my peers who do that." Further, he says, too much time and money are wasted arguing over low- speed, low-impact motor vehicle acci- dents where no discernible trauma is evi- dent from examination, X-rays or other imaging. The plaintiff 's expectation in many minor MVAs is an easy payout from the insurance company, he says, and that's driven up costs for everyone. His suggestion is to look at the Austra- lian model in which an expert from each side is sent to a room to come up with a consensus opinion. Barrie-area litigator Steve Rastin, managing partner with Rastin & Associ- ates, says he isn't a fan of the concept and he whole-heartedly supports the OTLA recommendations on Rule 53, which, he says, will speed up the process and cut costs for both the public that pays for the administration of justice, the insurance companies and the victims themselves. "Give the treating doctors more leeway to provide more fulsome opinions and narrow the use and scope of experts," says Rastin, who is currently running to become a bencher with the Law Society of Ontario. "Ontario trials are so much longer than elsewhere and expert testimony is a big reason for that. Our system has evolved into an inefficient, expensive sinkhole." Let's hope the end result is more than just a "stretch goal" exercise because we've already been down that road to no- where. LT Ian Harvey has been a journalist for more than 42 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Process a pain for all stakeholders The role of leadership Editorial Obiter Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com ©2019 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. Publications Mail Agreement Number 40762529 | ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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