Law Times

Law Times • sepTember 9, 2013 Structured settlement advised Continued from page 12 powerless, the Crown has a significant duty to anticipate trouble and intervene on inmates' behalf, she notes. "Prison is a unique environment because there's no way of knowing your cellmate's history or doing anything about it." The number of assaults on prisoners by other inmates is increasing. Figures provided to Law Times by the Ministry of Community Safety and Correctional Services show that in 2009, there were 2,552 inmate-on-inmate assaults in Ontario prisons. The number has climbed steadily each year since to 3,153 assaults in 2012. There are no readily available figures on the number of assaults that have resulted in serious harm or required medical treatment. Some observers blame overcrowding for heightening tensions among inmates. According to ministry statistics released in July, overcrowding is a problem in half of the province's prisons. But the increase in assaults doesn't seem to be leading to a corresponding rise in settlements or trials. According to Shaw's judgment, Brown had been "repeatedly told by counsel for the Crown that the Crown had never settled a claim in respect of a prisoner [on] prisoner assault." Alf Kwinter, founding partner at Singer Kwinter, says the alleged statement by the Crown is pure bluff and describes it as "nonsense." But he admits that representing plaintiffs in these types of cases is "tough" as the province must only show it has taken reasonable steps to protect those in its care and "no one is held to a standard of perfection." However, there would be an access to justice issue if no lawyers were willing to take on these files, he says. Hnatiw says she'd never agree to represent a prisoner who was only launching a claim against another inmate and not the Crown. "That person [the accused] probably doesn't have a great deal of assets to go after," she notes. "And you're still out of pocket for your legal fees and disbursements, not to mention the emotional toll." She says Melvin provides an important lesson for lawyers considering taking on a case against the Crown. "We learn to not be intimidated just because we're looking at naming the correctional services as a defender," she says. She adds: "Sometimes it may require a bit of deeper digging. And we're all aware of the overcrowding issues in the provincial prisons. "But the resource limitations don't relieve the Crown of its duty of care to the inmates in its custody." The case is also likely to be of Page 13 BRIEF: PERSONAL INJURY LAW interest to personal injury lawyers whose clients reject advice to take a structured settlement instead of a lump sum. Melvin's litigation guardian and mother decided she didn't wish to follow the advice of her solicitors to place $366,882 in a structure that would increase by one per cent, compounded, each year. The lawyers referred the settlement decision to the Office of the Public Guardian and Trustee that recommended the structure as the best use of the funds. In a letter to Shaw dated Feb. 13, 2013, the office wrote: "A structured settlement, professionally arranged, enjoys the advantages of tax-free income to the injured person, with predictable monthly payments for future care. "To the contrary, a lump-sum payment is subject to the investment expertise of the person to whom the funds are entrusted, or anyone they hire, and any income earned on the settlement finds is taxable as income to the injured person." Shaw agreed that a structured settlement protected Melvin's interests. Kwinter says it's not uncommon for plaintiffs to reject advice to put settlement money into a structure. It's vital to put this advice in writing in case plaintiffs later change their minds and decide to sue the lawyer, he warns. "We get very carefully written instructions pointing out that we have given advice and the person has rejected it," says Kwinter. There appear to be few, if any, cases in Canada where someone has sued a lawyer on these grounds. But a 1990 U.S. case, Grillo v. Pettiete, provides fuel for Kwinter's warning. In the medical negligence case, the court awarded a $2.5-million cash payment after a child suffered severe injuries during birth. The defendants had offered a structured settlement that could have paid out more than $100 million over the child's lifetime. When the cash payment was gone within a few years, the child's family sued the former attorney and former guardian, who were jointly ordered to pay $4.1 million. Regarding Melvin, Brown says he was simply recommending what he felt was in Melvin's best interests rather than pre-empting a potential lawsuit. "It was more about an obligation to a client who's without capacity," he says, noting he was happy with the overall outcome of the case. "I think Justice Shaw did the right thing," he adds. LT Claims rising Continued from page 11 insurance industry since Desbiens was the court's approach to the question of combining physical and psychological injuries when it comes to determining whether someone has met the threshold for wholeperson impairment. "That was very much in dispute and has continued to be a decision with which the insurance industry does not agree," says Wheeler. In fact, the insurance industry continues to raise concerns about claims costs in its response to the government's promises on rate cuts. "While the government has approved insurance rate reductions, they still haven't outlined how they will address some key cost reforms we need to see implemented," said Ralph Palumbo, Ontario vice president of the Insurance Bureau of Canada. "Reducing costs is the only way to reduce premiums." For Wheeler, catastrophic impairment is an issue that keeps arising every few years as the insurance industry pushes for changes and the government hints it may take action. "I do suspect this issue is going to continue to be there and is going to continue to percolate going forward," he says. LT "McKellar provided peace of mind for the rest of my life." LEANDRE CASSELMAN Development Coordinator Now you're sure. The McKellar Structured Settlement™ Financial security. Guaranteed payments. 100% tax free. Some decisions are easy. Untitled-6 1 www.lawtimesnews.com 13-04-29 11:04 AM

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