Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Hold off on lawyers' call for tax hikes A s the Ontario government released its austerity-focused budget last week, a few lawyers have come up with a viable solution: raise taxes. Of course, some critics would argue the Ontario government did just that by putting off planned corporate tax cuts. But in an age of troubled government fi nances around the world, arguing that putting off tax cuts aſt er years of already reducing them is going too far. Now isn't the time to cut taxes even more given the massive defi cits the province faces. As Law Times reported on page 2 this week, a new group called Lawyers for Fair Taxation is calling on the government to impose escalating surtaxes on society's wealthiest people. For the very rich earning more than $1.8 million a year, the surtax would be six per cent. Th at levy, along with lower amounts on people earning more than $100,000 a year, would bring in billions, the group argues. It echoes a similar call by a new group formed by doctors. Th e call comes as the government gets set to introduce new spending cuts and, perhaps most controversially, impose wage and pension restraint on the province's public-sector workers. Unions, of course, are vowing to fi ght those plans and are likely to launch litigation at some point should the government legislate the measures. Ontarians, then, can brace themselves for a few years of labour unrest. Th e unions, however, never really lay out how they expect governments struggling with massive defi cits to pay for demands for wage increases and continued pension benefi ts that most taxpayers themselves don't have. Instead, they rail against the governments for imposing restraint and go on strike only to see politicians like former premier Mike Harris and Toronto Mayor Rob Ford take power in subsequent elections. How the unions believe they win in those scenarios is a mystery. A more reasonable scenario might be for those unions to join groups like Lawyers for Fair Taxation in calling for higher taxes. Unions, of course, have always talked about the need for progressive taxation, but it's time for them to be more vocal about that issue if they're not willing to accept meaningful restraint. While that would be the most honest approach, it's clear that the current political environment doesn't favour tax increases. So while the lawyers' group is certainly valiant in calling for higher taxes even for themselves, it's more realistic to expect the government to look for measured spending cuts before going down that route. In terms of public-sector workers, they've had several years of reasonable contract settlements following the cutbacks of the Harris years. Now's the time for them to do their part in putting the province on a better fi nancial footing. If the government still fi nds itself in dire straits aſt er that process, only then should it consider the proposals of the new fair-tax groups given the political realities. — Glenn Kauth COMMENT April 2, 2012 • lAw Times parently necessary to resolve these cases along with the frequent appeals is shock- ing even to my jaded eyes. Two recent cases illustrate the absurd- A ity of the current practice. Th e fi rst, Ediger v. Johnston from the B.C. Supreme Court, started with a decision striking out a jury notice. Apparently, a jury might not have been "capable of understanding the pleth- ora of confl icting evidence and retaining that understanding for the length of the trial and into deliberation." It was then onto a judge-alone trial where the judge ruled in favour of the plaintiff aſt er concluding the defendant obstetrician had breached the standard of care and that this breach had caused an in- fant's brain injuries. Th e Court of Appeal for British Colum- bia reversed the decision and dismissed the action aſt er ruling the trial judge had erred in his causation analysis. Th e Su- preme Court of Canada granted leave to appeal earlier this year. Regardless of how the top court dis- poses of the appeal, we have the ironic Law Times LT Masthead.indd 1 nyone new to the legal pro- cess would be shocked to see how the civil justice system processes medical negligence litigation. Th e time frame ap- situation where a judge de- cided a jury wasn't up to the task of handling the action and it seems neither was the trial judge. Th e second case, Fisher v. Social Justice Victoria Hospital, proceeded before a judge over an eight- month period in 2004 and 2005 with a decision released in February 2007. Th e trial judge concluded the hospital's nurses were negligent in their failure to monitor the fetal heart rate for a 90-minute period during the mother's active labour phase and that this negligence caused or materially con- tributed to the infant's brain injuries. Th e Ontario Court of Appeal allowed an plaintiff s suff er before their negligence actions come to an end? Th e Ediger plaintiff was born in 1998 and her Su- preme Court hearing is pend- ing. Th e Fisher plaintiff was born in 1991 and her second appeal is pending. Another Ontario negli- Alan Shanoff gent birth case, MacGregor v. Potts, was the subject of an appeal earlier this year fol- lowing a trial in 2008. Th e appellate decision is pending. Th e MacGregor plaintiff was born in 1999. Admittedly, this is a small sample, but appeal and ordered a new trial based on the trial judge's faulty causation analysis. Th is error came on top of a failure to adequately consider and provide reasons for her causa- tion fi ndings. Th e second trial took place over 12 days in late 2011 with a decision released on Feb. 14. Once again, the court declared the nurs- es were negligent and there was a connec- tion between the negligence and the injur- ies. Once more, there's an appeal in the case. How many trials and appeals must I believe the cases speak to glaring prob- lems in medical negligence law. Why does it taken an inordinate amount of time for these cases to reach fi nal resolu- tion? Surely, deserving plaintiff s shouldn't be waiting a minimum of 10 years for compensation. Why are so many medical negligence cases the subject of successful appeals or multiple trials? Lorenzo Girones, the med- ical negligence lawyer who handled the Fisher trial, confi rms my belief that a dis- proportionate number of judges' decisions are overturned on appeal. 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 Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. 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., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM Part of the answer relates to the aggressive tactics used by the Canadian Medical Protective Association, the body that supplies legal assistance to most physicians in Canada. But the larger an- swer must take into account the sheer complexity of medico-legal principles. While the top court may clarify the caus- ation tests and their application in the Ediger case, we'll always be leſt with the diffi cult job of parsing complex medical evidence and sorting through confl icting expert testimony. All of that leads me to question whether medical negligence litigation ought to re- main the province of the judiciary. Surely, a panel of two judges and a physician or two doctors and a judge would provide a better forum for these diffi cult cases. Of course, another approach would be to remove medical negligence cases from the zero-sum, winner-take-all adversarial approach to these tragic matters and apply a no-fault standard. But that's the subject for another column. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com T ime to reform treatment of medical negligence cases

• Cover