Law Times

LaW TIMeS • NOVeMBeR 16, 2015 Page 7 www.lawtimesnews.com COMMENT It's time for a consumer insurance bureau in Ontario BY PETER COZZI AND DARRYL SINGER For Law Times ersonal injury professionals have expressed much consternation of late about the drastic changes to the Insurance Act and the statutory accident benefits schedule. Paralegals, who for years have derived a nice living from accident-benefits work, are expressing worry about their livelihoods, as are the clinic owners, chiropractors, assessment com- panies, and, of course, the tort lawyers who all line up to take a piece of the personal injury pie. Those discussions are focusing misguidedly on how the new personal injury playing field affects us. But lost in all of the concern is the important fact that victims of motor vehicle accidents have less opportu- nity for fair recovery today than ever before. The provincial government's focus for years has been to buy into the insurance industry's rhetoric about how it could contain both high insurance premiums and skyrocketing legal costs if only it would help the companies stop all of the fraud. Yet the government's response, which is to severely reduce available no-fault accident benefits and increase the tort deductible, is akin to bringing a bazooka to a pocket-knife fight. This one-two punch of a government passing leg- islation that's beneficial to the insurance industry at the same time as the companies make blanket corporate decisions to pay out less money to accident victims on the tort side leaves a gaping hole in consumer protection. In fact, if the government really wanted to help acci- dent victims, it could implement a consumer insurance bureau as is already the case in the Nordic countries. The consumer insurance bureau would have a mandate to assist consumers with regard to their rights and benefits after they have been in a motor vehicle accident and also, not incidentally, to act as a sort of special consumer om- budsperson to petition the Ontario government about in- surance issues from the consumers' perspective. A yearly surcharge of $1 per vehicle registered in Ontario could fund such a body. So why hasn't the Ontario government made such a decision on behalf of the Ontario electorate it repre- sents? That same electorate pays insurance premiums from which the insurance companies fund the Insur- ance Bureau of Canada. The insurance bureau spends millions of those dollars a year to train insurance rep- resentatives on how to restrict payouts and, most sig- nificantly, lobby the Ontario government about insur- ance issues from the insurance industry's perspective. One of the authors of this article, Peter Cozzi, first presented the concept to the province about 10 years ago at a Financial Services Commission of Ontario bar dispute group meeting at which a government repre- sentative was present to hear the proposal. Nothing happened. As plaintiff lawyers, we can only work to achieve results for our clients within the legal and regulatory framework that the government has provided. When the government circumscribes that framework to the point that thousands of worthy cases languish due to legislative changes, it's time for it to invoke some cor- rective balancing. Understandably, the insurance industry's power- ful lobby does not want to see legislative changes that would possibly put the plaintiff lawyers in the driver's seat. Admittedly, that might be too much of a correc- tion. The idea proposed here for a consumer insurance bureau that would educate the public, provide in- put to the government on consumers' behalf, and possibly implement an internal regulatory regime to keep minor but deserving disputes out of court places the power in the hands of neither the insurers nor the lawyers but rather the consumers. In a prov- ince with one of the best consumer protection regimes in North America, that is a natural addition. So will the Ontario government support consum- ers' rights to proper representation in the motor ve- hicle insurance debate? In our view, the answer is un- likely given the Ontario government's disinterest in the proposal 10 years ago and the current legislative climate that has leaned in favour of the insurance in- dustry. Do the province's actions signal its disinterest in accident victims or is it that the significant revenue contribution from the HST charged on the millions of dollars paid by consumers in insurance premiums in conjunction with the taxes paid by those insurers and their tens of thousands of employees is the critical fac- tor for a government concerned about fiscal responsi- bility? Those factors are relevant to a provincial govern- ment concerned about revenue to offset a deficit, but the province's actions surely do little to enhance fair- ness to the consumers it represents in the legislative process governing insurance. To correct that by creating a consumer insurance bureau will cost the Ontario government very little and go a long way in protecting the public. LT Peter Cozzi is a Toronto litigation lawyer with 30 years of experience in personal injury law. Darryl Singer runs Singer Barristers PC in Markham, Ont., and has litigat- ed at all levels of court in Ontario. Between them, they have handled thousands of personal injury files. u SPEAKER'S CORNER Camp's remarks raise questions about the quality of some judges t's not every day in our courts that a judge listening to a woman testifying before him that a man raped her in a bathroom at a house party re- acts so abominably to her sworn testimony. A year ago, an Alberta Pro- vincial Court judge reacted to the testimony of a 19-year old homeless woman with some shocking remarks of his own that have led to a review of his conduct by the Canadian Judi- cial Council. The judicial council launched the review after four law profes- sors, two from Dalhousie Uni- versity and two from the Univer- sity of Calgary, filed a complaint against Justice Robin Camp. Camp has since moved to the Federal Court. The court transcript shows Camp asking the woman who claimed to have been the vic- tim of a sexual assault: "Why couldn't you just keep your knees together?" There were other disparaging and objectionable remarks. The woman told the court the accused had followed her into the bathroom, locked the door, and proceeded to assault her physically on the edge of the bathroom sink. The law professors noted Camp had asked the woman: "Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?" If she had been fearful, she could have screamed, he sug- gested at one point. The judge was "sexist" and "disre- spectful" toward the complainant and showed "disregard for the law applicable to sexual assault," the law professors charged. There were other unusual remarks from Camp, accord- ing to the professors. For exam- ple, he referred more than once to the woman as "the accused." It came out in court that the woman had asked her alleged at- tacker in the bathroom if he had a condom. Camp told the woman the question led to "an inescapable conclusion that if you have one, I'm happy to have sex with you." He suggested she hadn't ex- plained "why she allowed the sex to happen" if she didn't want it. One of the four law professors later described Camp's remarks as "grotesque." "Imagine what she felt like in court. She's a 19-year-old home- less woman." Camp ended up acquitting the accused, Alexander Scott Wagar. That was far from the end of the matter, however. The Alberta Court of Appeal overturned the acquittal. The four lawyers have complained to the judicial council. And now the judge's remarks have circu- lated in the news media around the world. When so- cial media got into it, the story about the judge in Alberta went viral. A tweeter identi- fied as Omaha Steve wrote that the judge should be "horse- whipped." Another tweeter, Hifiguy, wrote: "This guy doesn't belong on the bench of the night traf- fic court in East Jesus Saskatch- ewan. Barf." Someone identified as My- thology wrote: "A question that should be asked of his mother: What a piece of garbage her son turned out to be." Another suggested castration but specified "a set of hog castra- tion equipment." Camp has since apologized for his hurtful remarks and said he would take gender sensitivity counselling and pay for it out of his own pocket. "I also apologize to women who experience feelings of an- ger, frustration, and despair at hearing of these events," media quoted him as saying. "I am deeply troubled that things that I said would hurt the innocent." The Federal Court an- nounced that while Camp's ac- tions and remarks are under re- view by the judicial council, he wouldn't be judging any cases that involve sexual conduct. Camp's appointment to the Federal Court dates back to June when former prime minister Stephen Harper's Conservative government was preparing for the recent general election. His justice minister, Peter MacKay, announced several judicial ap- pointments, including four to the Federal Court, on June 26. Camp, a commercial litigator, had been an Alberta judge since 2012, according to the federal government's announcement at the time. In Canada, it's the politicians who appoint our federal judges. We have fine universities that crank out great lawyers, but unlike in France, we don't have special law schools just to train judges. We train our judges in the same law schools that train lawyers. In business, good workers don't necessarily make good company presidents. Some of them have to attend graduate schools in places called universi- ties. In the United States, it's not al- ways the politicians who choose the judges. The voters elect some of them. But is that any bet- ter than having politically ap- pointed judges who shoot their mouths off in the courtroom? Now, after the fact, we have a Canadian Judicial Council re- view that will decide what should happen with the complaint. He has already apologized. Is that enough? And will the review set a useful precedent for other out- spoken judges? There are many questions. Among them should be the quality of the judicial appoint- ment process. Maybe it's time for reform. LT Richard Cleroux is a freelance reporter and columnist on Par- liament Hill. His e-mail address is richardcleroux34@gmail.com. P The Hill Richard Cleroux I encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 2075 Kennedy Rd., Toronto, Ont. M1T 3V4 E-mail: glenn.kauth@thomsonreuters.com

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