Law Times

PAGE 4 NEWS OcTOber 4, 2010 • Law Times Few lawyers pay attention to warnings Continued from page 1 profession simply being overwhelmed or unable to deal with the way law is practised today." Kathleen Waters, LawPRO's president and CEO, told Convocation she was open to more co-operation with the law society. "We try to put our descriptions of the systemic issues and the more detailed anal- ysis in our LawPRO magazines and make them available to everyone," she said. Th e problem with that, according to LSUC CEO Malcolm Heins, is that only a select group of lawyers is actu- ally listening to the warnings. "Th ere is a lot of information which, if digested, would largely keep them away from our complaints and the LawPRO processes," he said. "Th e issue is only about 30 per cent of the profession pays attention." Caskey said LawPRO had virtually no other options beyond a rate hike because its only other source of revenue comes from investments that have suff ered in a depressed market. "Anybody got any suggestions?" Cas- key asked jokingly. "Th at's not some- thing we can count on in today's unpre- dictable economy." Th e company has exhausted its premium liabilities. In June, it plunged to 186 per cent, down from 206 per cent at the end of 2009 and perilously close to LawPRO's minimum target of 175 per cent. Caskey said the increased revenue would help the company reach its target of 220 per cent over the next fi ve years. Many oth- er commercial insurers keep their ratio in excess of 300 per cent, he noted. It wasn't all doom and gloom for LawPRO, however. Th e report confi rmed that a proposed $450 HST levy enacted to cover a $10-million shortfall as a result of the new tax wouldn't be necessary af- ter the law society diverted funds from a settlement with its former auditors. Caskey also paid tribute to LawPRO's Source: LawPRO 2010 report to Convocation stabilization fund, which is designed to insulate the program from negative im- pacts. At the same time, things could have been worse, according to LawPRO chairman Ian Croft. "If insurance pre- miums were to increase in lockstep with claims costs, the annual base premium for 2011 would be about $4,000," he wrote in the report. Caskey also explained that LawPRO took its long-term viability into account when increasing premiums. Although the insurer has received an A grade from credit rating agency A.M. Best Co. Inc. in each of the last 10 years, the com- pany gave LawPRO a negative outlook for the future earlier this year. One key indicator of LawPRO's fi - nancial health, the minimum capital test, measures the ratio of its assets to its approach to claims prevention through its risk-management arm, PracticePRO. It reaches the profession with frequent e- mails about frauds and articles on com- mon pitfalls broken down by area of law. "With information like that at our fi ngertips, there is no excuse for not be- ing aware of what we need to be doing to avoid a claim," Caskey said. While he noted it was hard to quantify the amount saved, he maintained the ef- fort "has to be saving the program and the profession millions of dollars." LT Current system creates 'serious inequity' Continued from page 1 court fees for those who choose to litigate and the creation of a provincial lottery to fund the family law system. Th e report comes just weeks after Ontario Chief Justice Warren Winkler called for a dramatic revision of the fam- ily law system in the province at the Opening of the Courts ceremony. His proposals in- clude a demand for compulsory mediation before couples can gain access to the court system. Although her recommenda- tions don't go as far as calling for compulsory mediation, Lan- dau says they should be radical enough to satisfy Winkler, who said "fi ne-tuning and rational- izing the present system" was ineff ective. Landau, who is also a psy- chologist and mediator, says the report aims to turn conven- tional thinking about family law on its head. "Th ere's a lot of talk about alternative dispute resolutions. What we want to talk about is court as the alter- native. It should be the fallback when other, more co-operative processes don't work." Th e court system fuels con- fl ict at a time when vulnerable families actually need support, according to Landau, who notes an increased focus on me- diated or collaborative settle- ments would make it easier for people to live with the results. "After a separation, people make the assumption that they will start with a clean page, but it's not true. If they want to be involved in the lives of their children, they're going to need to fi gure out a way to get along. Th e focus for mediators is how to preserve a co-operative rela- tionship between people who have to deal with each other forever." In Landau's view, the whole system points towards an ad- versarial outcome, including through government-funded supports such as legal aid. "Right now, legal aid is tied to the court: how many hours to prepare an affi davit, how many hours to prepare a motion, how many hours arguing it," she says. "We suggest certifi cates are not just given out to law- yers to litigate but given out to mediators and collaborative lawyers to resolve cases without going to court." At her family law practice The Law of Contracts Sixth Edition A classic text, The Law of Contracts has been cited repeatedly by the courts, including the Supreme Court of Canada. 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English and commonwealth cases that could potentially affect Canadian jurisprudence - Specific Performance - Exemplary and Punitive Damages - Damages for Mental Distress for Breach of Contract in Kitchener, Ont., Glenda McLeod says she has seen too many litigants operate a "scorched-earth policy" in court that leaves one party with all of the spoils: money, the house, and custody of the kids. Th e other party, meanwhile, ends up in ruins. "I don't see how any counsel, on either side, can feel good walking away from that situation," she says. McLeod looks forward to seeing some of the proposed reforms make their way to Kitchener because they'll force lawyers to think about litiga- tion diff erently. "If you go in with that litigious attitude ev- ery time, the client doesn't al- ways benefi t and neither do the kids," she says. "I think it is the responsibility of the bar to put people in a stream that gets them out of court quicker." But McLeod could be wait- canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1004 www.lawtimesnews.com ing for some time. According to the report, the province's family court system "creates serious inequity in access to justice for all families." Th e 17 locations with a Family Court branch of the Superior Court off er access to comprehensive adjunct services, for example, while in other places such as Kitchener, parties must wait longer for them or simply do without. LT Stephen M. W addams

• Cover
• National Action
• Hallway Agreements
• Focus On Litigation