Law Times

Page 6 May 26, 2014 • Law TiMes www.lawtimesnews.com COMMENT Goldkind's refreshing contribution e may be a long shot to replace Toronto Mayor Rob Ford, but criminal defence lawyer Ari Goldkind is at least mak- ing a productive contribution to the election campaign and debate. In a recent profi le in the Toronto Star, Goldkind openly acknowl- edged he's advocating for higher taxes. "We pay far less [property tax] than anywhere else in Ontario by a signifi cant average," he said. "I don't care that people go nuts. I care about doing the right thing," he added. Obviously, it's a risky thing to say from someone who nevertheless has less to lose than, for example, Olivia Chow. But it's refreshing to hear given the current dreamland our political leaders have us living in, particularly during the current provincial election campaign. Pre- mier Kathleen Wynne, while making several worthy proposals, has yet to present a concrete plan to eliminate the defi cit. NDP Leader Andrea Horwath wants us to believe only big business and the very rich should pay. Conservative Leader Tim Hudak wants to decrease corporate taxes and dramatically cut civil service positions, some- thing he suggests will magically spur private sector job creation. In essence, the leaders either want someone else (other than their base of voters) to take the hit or, in the case of Wynne, are denying anyone should suff er even as the debt and defi cit mount. e reality is that people want improved services and decent wages and there's no magic solution to ensuring both under the current tax regime. ere's not that much waste in the system to make the defi cit disappear and Auto threshold, deductible unfair restrictions on access to justice ost of the discussion on auto- mobile insurance in Ontario focuses on premiums, fraud, and no-fault accident ben- efi ts. While those are important issues, we need to broaden the discussion to consider restrictions on access to justice for those in- jured in automobile accidents. e Financial Services Commission of Ontario's three-year review of automobile insurance has provided the Ontario Trial Lawyers Association with the opportuni- ty to raise access to justice as an important issue for those making tort claims against at-fault automobile drivers. While tort laws permit lawsuits against those who negligently cause harm to oth- ers, only people suing to recover damages for injuries suff ered in automobile acci- dents are subject to two laws that reduce access to justice. e fi rst restriction is the verbal threshold. e government intro- duced the threshold in 1996 and amended it to render it more onerous in 2003. Under the threshold, injured people can't succeed in lawsuits against negligent drivers unless they can establish that they suff er "from permanent serious impairment of an im- portant physical, mental or psychologi- cal function." To meet this threshold, they must meet several conditions. As the OTLA points out, the threshold operates in a dis- criminatory manner by making the test more diffi cult to satisfy for those who don't work, such as "homemakers, children, the elderly, and the disabled." Hav- ing a threshold restricts access to justice by preventing people from recovering damages for serious injuries that don't satisfy the threshold. It also complicates litigation by forcing both plain- tiff s and defendants to obtain expert medi- cal evidence on the threshold issue. In the 2007 civil justice reform project, Ontario's former associate chief justice, Coulter Osborne, noted "one direct benefi - ciary of the verbal threshold regulation is the medical profession that provides medi- cal-legal reports on the threshold issue." Of course, this serves to increase costs to both plaintiff s and insurance companies. e second restriction is a deductible that applies only to lawsuits against negli- gent drivers. e deductible increased to $30,000 from $15,000 in 2003 and applies to non-pecuniary damages of $100,000 or less. e deductible on Family Law Act awards also increased to $15,000 from $7,500. e purpose of the deduct- ible is identical to the rationale for the threshold: to reduce negligence lawsuits and keep smaller cases out of court. As a corollary, both also serve to put money into insurance company coff ers. ey also reduce access to justice for injured people who either won't commence litigation to recover compensa- tion for their losses or will re- ceive nothing or a reduced award. As Osborne noted in the civil justice project, "the deductible and the verbal threshold have access to justice implica- tions. Both work to restrict access to the courts by providing an economic disin- centive to making a claim. At the end of the day, for those cases that do proceed, the deductible where applicable saves claims costs (by lopping $30,000 from the plaintiff 's damages) and the verbal threshold, if not met, means that the plaintiff 's action is dismissed." Plaintiff s suff ering serious injuries with non-pecuniary claims worth up to $100,000 will see their claims reduced by the $30,000 deductible. In many cases, it will make little sense for plaintiff s to com- mence lawsuits knowing they must intro- duce complex medical evidence to satisfy the threshold and, even if they're successful in that regard, the court will reduce their awards by the deductible. Many worthy claims will thus be uneconomic to pursue, leaving many with no access to justice. Also, in applying the deductible to claims of $100,000 or less, those with the misfortune of suff ering injuries in an acci- dent and having their damages assessed at $100,000 will see their award reduced to $70,000 while those whose damages total $100,001 won't suff er any reduction. Such injustice cries out for relief. e OTLA has recommended repealing the threshold. It has also suggested reducing the deductible to pre-2003 levels. ese rec- ommendations make sense. Having both a threshold and a deductible is redundant and serves to harm accident victims and benefi t insurance companies. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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, com- pleteness or currency of the contents of this pub- lication 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. LT.Editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Keith Fulford at ........... 416-649-9585 or fax: 416-649-7870 keith.fulford@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief . . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . . . . Arshy Mann Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth to the extent that there's room to cut services, we're still talking about someone's vital program. at doesn't mean there aren't services to cut anyway, jobs to eliminate or wages to hold the line on. But a fair and reasonable solution to restoring Ontario's fi scal health probably involves a shared burden of program reductions, wage restraint, and, yes, so-called revenue tools that aff ect more than just one small subset of society. What we need is a reasonable policy mix that looks for the best o ptions for a balanced approach to resolving the defi cit, investing in the economy, and maintaining vital services. Hudak, of course, has acknowledged the need for very tough decisions but has tilted his policies way too far in one direction. It's good, then, to see people like Goldkind at least acknowledging the tax side of the equation. We'd be in a better long-term position if other political leaders felt safe enough to follow suit. — Glenn Kauth Social Justice Alan Shanoff M H

• Cover