The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/516087
Page 6 May 25, 2015 • Law Times www.lawtimesnews.com COMMENT an outrageous act of contempt W hile the government of Prime Minister Stephen Harper has done many things to show contempt of democratic processes over the years, it has outdone itself with outrageous provisions related to the long- gun registry in its budget implementation bill. The government had every right to end the long-gun registry in 2012 and, given the years of discord between rural and urban Cana- dians over the issue, it was probably better to let it go. But the gov- ernment has gone too far with the insertion of changes to the End- ing the Long-gun Registry Act to oust the application of the Access to Information Act retroactive to Oct. 25, 2011, into bill C-59 that implements the 2015 budget. Information commissioner Suzanne Legault has sounded the alarm about the bill C-59 provisions in light of a long-running in- vestigation into the RCMP's actions in response to a request under the Access to Information Act for records from the long-gun regis- try. The request dates to March 27, 2012, just before the Ending the Long-gun Registry Act came into force the following month. While the RCMP did turn over some records, Legault found it didn't dis- close all of the information it should have. But in the meantime, the police force destroyed all electronic records of non-restricted fire- arms — with the exception of those belonging to Quebec residents — in October 2012. In doing so, the RCMP violated the requester's right of access under the Access to Information Act, Legault found. a doctor's view: appeal court got it right in Getahun By dr. michael Ford For Law Times T he Ontario Court of Appeal made the cor- rect assertion in Moore v. Getahun that it's entirely necessary for experts to consult with counsel about draft reports. Medical practitioners who are doing this kind of work as experts for the courts are happy to see the appeal court did the right thing so we can continue to liaise with coun- sel prior to the development of a file and a written report. Without the ability for medical experts to speak with counsel, the whole process would take longer and be far more expensive for everyone involved. At trial in Getahun, the judge held it was improper for counsel to assist expert witnesses in the preparation of their report. The appeal court, however, rightly noted that consultation and collaboration with counsel is essential to ensure expert witnesses understand their duties. The issue relates to rules of law and while I am certain- ly no expert on that, I have learned over the last 30 years what does and doesn't work. Discussing a report with legal counsel prior to completing the final version is cer- tainly a useful thing. Many of us in the medical field thought the trial judge's ruling was wrong and we felt confident the appeal court would reverse it. Had it not done so, the case was going to seriously affect the way we've been doing things. It would have been very difficult to work in an environment that had changed in the manner the trial judge had suggested. The appeal decision, however, puts us in a more favour- able light and recognizes that legal counsel aren't going to inf luence medical experts and that we're going to stick to our guns when it comes to the content in our reports. The decision gives medical experts credit as objective professionals. After merely talking to legal counsel, we aren't going to suddenly become pliable, plastic individu- als who are going to accede to anything the lawyers tell us. I've never encountered a situation where someone has tried to change the actual content of my report. Furthermore, if we weren't able to consult with counsel on draft reports, then all sorts of little grammatical and sometimes factual errors with respect to dates and the like would remain in the expert's report. As a result, it wouldn't change until the matter advances to mediation or trial, which means that error is going to be there when we should have eliminated it beforehand. On many occasions, I will call defence or plaintiff counsel for clarification on a file forwarded to me. That's because typically on these malpractice cases, rarely am I seeing the plaintiff. It's usually a file review, so I have to depend heavily on the material forwarded to me. I need to be able to ask for clarification as well as for images or additional information if the file isn't complete. As an example of how the system works as is, counsel will send me a malpractice file and want a preliminary report. I'll call them up and they'll drop the case when I tell them there was no evidence of care below the standard. They'll tell the client there's no case because they know I'm objective and that if the care had been below the standard, I would say so. This is good for the client and counsel because they ob- viously don't want to continue with a case that's ultimately going to be a failure and result in huge costs to the plaintiff and that particular firm. As well, they don't want to take up time in the courts and subject many people to what's a very stressful process when it was totally unnecessary. But by the same token, if they have a strong case, I'll tell them and they'll dig in their heels and go for it. If the ap- peal court had upheld what the trial judge had said in Ge- tahun, none of that would be possible. We wouldn't be able to truncate frivolous cases from potentially going all the way through the court process. The trial judge's suggestion that there shouldn't be any contact between experts and counsel would have sig- nificantly slowed the whole process down and increased costs. The trial judge was trying to fix a problem that sim- ply didn't exist. Everything was functioning just fine and there was no reason to change it. LT uDr. Michael Ford is an orthopedic spine and trauma surgeon at Sunnybrook Health Sciences Centre who has more than 20 years of medical-legal experience. He can be contacted at michael.ford@sunnybrook.ca or 416- 480-6775. u SPEAKER'S CORNER ©2015 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 $199.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. 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 . . . . . . . . . . . . . . . . . . . . . . . . Shannon Kari Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . . James Kang CaseLaw Editors . . Adela Rodriguez & Jennifer Wright 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 After years of wrangling over the issue, Legault referred the matter to the federal attorney general on March 26, 2015, for possible obstruction of the right of access under the Access to Information Act. While she received no response, the govern- ment went ahead with bill C-59 that provides for the retroactive changes to when it first introduced the Ending the Long-gun Registry Act to Par- liament in October 2011. The bill also bars any proceedings against the Crown for the destruction of the records on or after April 5, 2012. In effect, the government is attempting to go back in time to erase the legal obligations that ex- isted at the time of the information request. Its ac- tions are an outrage that Canadians should hold it accountable for when the election campaign be- gins later this year. — Glenn Kauth