Law Times

Page 4 April 8, 2013 Law Times • NEWS Malice required for punitive damages award Continued from page 1 remotely establish that he was able to do the heavy continuous labour for long hours for six to seven days per week that he was doing in his bricklaying occupation, before he was injured." Hambly continued: "Avelino is captured on video working for short periods of time at light work. He is never observed working at anything like the heavy demands of bricklaying.  He explained that he was in pain while he was doing this work. He was in pain at night. He took extra painkillers." Penncorp presented more than 140 hours of surveillance evidence, an unusual amount for cases like this, according to lawyer David Share of Share Lawyers in Toronto. "I think the message to the insurance industry is . . . don't fall in love with your own surveillance," he says. "At the end of the day, when it comes to surveillance, unless the surveillance is completely and flatly inconsistent with what the complainant says they can and cannot do, the surveillance has limited usefulness." Once an injury makes it impossible for someone to continue working at one type of job, the legal principle is the person shouldn't have to take another position that pays significantly less or is entirely different from the previous employment.  A vocational expert who assessed Fer- nandes' skills found his ability to read and understand English was poor. The expert found jobs in the market supervising bricklayers he could do without having to perform the work himself. But such jobs required the ability to read a blueprint, something the judge found Fernandes wouldn't be able to do given his limited English skills. The judge also pointed out the emotional impact of income loss on Fernandes, who reported feeling ashamed that he couldn't support himself and his wife Tracy due to his inability to work. "He came from a culture where the man provides," wrote Hambly. "Now that he does not have money, he is dependent on Tracy's income.  He is embarrassed in his relationship with Tracy." Fernandes "loved to work," wrote Hambly. "His not being able to work is very stressful for him. He is greatly embarrassed by his inability to generate income and hence his dependence on Tracy. In my view, if Avelino was able to work, he would be doing so." The judge seemed to like Fernandes, says insurance lawyer Joan Takahashi, a fact she calls a "real danger" for Penncorp. Takahashi, who practises at Gilbertson Davis Emerson LLP, notes the judge was harsh when it came to the punitive damages award of $200,000 against Penncorp. "If Justice Humbly was correct in The decision 'has raised the standard which insurance companies must meet in order to avoid a punitive damages cost,' says Joan Takahashi. Photo: Laura Pedersen awarding punitive damages, I found the amount is too high for this behaviour," she says, adding the insurer's mistakes don't exactly establish malice. Once an insurance claim supervisor herself, Takahashi says the job isn't an easy one. Other cases have established that insurance companies can make poor judgments as long as they don't have a malicious intent, she says, noting there were no punitive damages awarded in previous similar cases. But Hambly's decision, Takahashi adds, "has raised the standard which insurance companies must meet in order to avoid a punitive damages cost." The judge felt the insurer ignored the details of Fernandes' job, relied too heavily on surveillance evidence, and failed to provide compelling expert opinion suggesting the 48-year-old plaintiff could in fact do bricklaying work, says Takahashi. Lawyer Allan Rouben, who represents insurance claimants, agrees the judge was notably unhappy with Penncorp's conduct. "Clearly, this judge was not happy with the manner in which Penncorp handled this claim and seemed to be giving the plaintiff every benefit of the doubt," he says. "When it comes to surveillance that's not completely inconsistent, you're left to judge it on the basis of the credibility of the claimant and here the judge found that Mr. Fernandes explained himself in a credible manner." Hambly's decision is a reaffirmation that disability claims involve an individualized process, says Rouben, noting a one-size-fitsall formula doesn't work. LT TV appearances let judges show human side Continued from page 1 in family court, it's fair game for the show. Once they air on TV, all episodes are available for free viewing on the show's web site at familymatterstv.com. "There was such a hunger for information about family law, about family court, and about separations and divorce," says Brownstone, whose voice rises with enthusiasm when he talks about the show's potential. "I realized that this was an important way for a judge to enhance access to justice. I get so excited." Soon, he realized that the weight of his position as a judge meant people wanted to devour his words regardless of what he was saying. "Nothing that I was saying was that new or different, but when it comes from a judge, people listen," he says. "I noticed that I could use my position as a judge to convey important information to people that wasn't getting through the other ways that people get information." ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • More than 26,000 lawyers • More than 9,000 law firms and corporate offices • Fax and telephone numbers, e-mail addresses, office locations and postal codes Perfectbound • Published December each year On subscription $71 One time purchase $74 L88804-589 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • Miscellaneous services for lawyers Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com The show has opened up the judiciary in a country where judges rarely appear on television, he says. "This was never available before. Judges weren't accessible. The only way to get access to a judge was to come to court." A few judges, including Ontario Court justices Robert Spence and Stanley Sherr, have already been on the show and Brownstone says several others have written to him asking to join him on the set. When judges are on TV out of their judicial robes and sitting on a red couch, their human side comes through, says Brownstone. "Hopefully, we're showing the public that judges are people, too — that they care about these issues." But some judges and members of the bar have a rather ominous view of a Canadian TV judge, says Victoria Starr, a Toronto family lawyer who has appeared on Family Matters. "Is this the proper decorum?" she says in recounting the comments of those who see the show as "completely inappropriate" and fear Brownstone may become Canada's Judge Judy. But that's not the case, she adds. "There are many of us, me included, [who think] as long as it's done tastefully — and this one is — and it improves the lives of those who see it, if it helps them in one little way, we can use all the help we can get." For his part, Brownstone says he has no intention of turning the show into a venue for sensational family drama. On his show, the discussions consider issues only from the point of view of the law, he says. "I'm not out to sensationalize things or to scandalize or to embarrass anybody. I'm really just trying to educate the public." Brownstone's show also provides a realistic depiction of lawyers, says Starr. In an age of shows like Suits, it's time to reveal the average lawyer to the public, she says, adding it helps that Brownstone "isn't a stuffy guy." When family lawyer Erin Crawford went on Family Matters to talk about family finances, she felt slightly nervous and kept the news from her colleagues. But once she was on the set, Brownstone made it easy, she says. "He was a very welcoming host. He made me feel comfortable. He made it so that you forgot there were other people around. It was like having a conversation." Kelly Jordan of Jordan Battista LLP keeps a DVD of Family Matters episodes in her office and encourages clients to borrow it. Brownstone's discussions on the family court are as much about the alternatives to it as what goes on in it, she says. "It's important that he's the messenger." For Brownstone, the show is also good public relations for the family law system, an area he says gets a bad rap. Embroiled in their lawsuits and determined to wage war, family law litigants sometimes don't realize they're seeking vengeance rather than justice, he notes. And when their lawyers don't do as they say, they get angry. "I'm proud that this show gave many lawyers a chance to come on TV," he says. "The public gets to hear the lawyers explain what they do." The next season of Family Matters will air on CHEK TV in British Columbia and CHCH TV in Ontario. LT

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