Law Times

Page 6 OctOber 5, 2015 • Law times www.lawtimesnews.com COMMENT A more pessimistic view hile Ontario's chief justices offered a largely sunny view of the state of the province's justice system dur- ing the opening of the courts ceremony last month, Ontario Court Justice Lesley Baldwin offered a more pessimistic outlook in a ruling issued the day before. The chief justices talked of improvements in technology and new practices that are allowing people greater access to the courts and boosting efficiency. In R. v. Drobotenko on Sept. 23, however, Bald- win suggested significant problems remain. She was ruling on Lisa Drobotenko's bid for a declaration of a vio- lation of her right to a trial within a reasonable time. The charges of impaired operation and refusing to provide a breath sample date back to Aug. 3, 2014, but after multiple court appearances, the par- ties set a trial date for Nov. 5 and 6, 2015. While Baldwin found a total delay of 11-1/2 months after accounting for Crown and institutional factors, she took particular umbrage with the suggestion that the trial would, in fact, wrap up on Nov. 6. With three trials scheduled to start in courtroom No. 16 at the courthouse in Milton, Ont., on Nov. 5, she found Drobotenko's matter wouldn't conclude the next day. And with two charges at issue and up to 11 witnesses planned, Baldwin suggested the case is an example of the increasingly com- plex matters that are coming before the court since the days of R. v. Askov and R. v. Morin. As a result, she hinted at the need to rethink how the court assesses delays. "The vast majority of trials in the Ontario Court of Justice have not been simple one-day matters," she wrote. "Time to start the trial is not the same as time to complete the CRITICISM OF IMMIGRATION MINISTER MISSES THE MARK Your editorial criticism of Immigration Minister Chris Alexander (see "A shameful performance," Sept. 8) is misdirected. Yes, Canada does have an obligation to assist in connection with the Syrian crisis; however, you fail to mention that giant economies such as Russia, China, and Japan have accepted no one. What about the vastly wealthy Arab states that one would think would care for their own kind and have not taken in a single refu- gee? European countries have indeed taken on more than their share, but when you fail to acknowledge the total indifference of the Arab League and its constitu- ent members other than Jordan, Lebanon, and Egypt, you totally missed the mark. Bert Raphael, Raphael Barristers, Thornhill, Ont. MORE ON THE HISTORY OF CONTINGENCY FEES I read Prof. Philip Girard's piece ("Debate over contin- gency fees goes back a long time") in the Sept. 21 issue with interest. It is the case that contingency fees, whereby a law- yer or firm can contract for a retainer that will pay it a percentage of a recovery, were only recently permitted by legislation in Ontario, the last province to do so. But contingency fees in personal injury cases in Ontario go back many decades, likely coincident with the coming of the motor car to Ontario roads, and perhaps even earlier. The contingency involved was that if there was no recovery of damages, the lawyer did not get paid and was out of pocket for the disbursements necessary to take the case to trial. When I began practice in 1961, after clerking for chief justice James McRuer, a significant portion of the work at my firm was plaintiff 's personal injury, as it re- mains today. Virtually none of the injured people who sought to hire us could afford to pay disbursements, let alone our fees. None of them could retain us, or any other firm, on a fee-for-service basis (hourly rates, docketing, and interim billing were unknown in that segment of the bar). What we told our clients when they retained us was that we were not permitted to charge them a percent- age of the award or recovery, but we would not charge them anything if there was no award or settlement. But they were informed, often in writing, that if there was an award or settlement, they would be charged a fair fee that would depend on the degree of success achieved, the size of the award, and the amount of work done to achieve it and that it would consist of the party-and- party costs recovered from the defendant and some portion of the award itself that we could not commit to in advance. We told them: "In our experience, in cases like yours, that figure usually is in the range of 10 per cent of the amount recovered." And, they were told that if they were dissatisfied with our fee, it could be taxed (assessed) by a court official. No prospective client who could not afford to pay a lawyer ever had a problem with that arrangement. Nor did any of the defence counsel complain. Per- sonal injury cases in those days were defended by many of the most senior and respected counsel in Ontario, many of whom were benchers and subsequently be- came judges. They were well aware of how the system worked and had no issue with it. Personal injury de- fence work was an important part of the business of the many insurance defence firms, and it would have been devastating to their income if the area of practice did not exist. The late Martin Wunder and I were counsel for Di- ane Teno, of Teno v. Arnold fame, who was catastrophi- cally injured as a four-year-old in 1968. Her case was not resolved until it was dealt with by the Supreme Court of Canada in 1978, and no fees were charged to her until there was final recovery. In the meantime, our firms bore all of the disbursements. Without the system that then existed, Teno and many others would have had no possibility to access the justice they most certainly deserved and needed. The system worked. Contingency-fee legislation that permits a true contingency fee, properly regulated with full disclo- sure, was and is a welcome development. But it is not new. Earl Cherniak, Lerners LLP, Toronto ©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. 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It is the responsibility of the Ministry of the Attorney General to address these prob- lems. The Court, which has responsibility for trial scheduling, cannot do so without adequate facili- ties and resources." Baldwin, who stayed the charges against Drobo- tenko, has had a habit lately of expressing her frus- trations in her rulings. In this case, her comments offer a welcome look at how the courts are actually working and highlight the need to continue work- ing on trial efficiency and resources. LT u Letters to the editor LETTERS.indd 1 1/25/12 11:22 AM W

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