Law Times

Page 2 February 8, 2016 • Law Times www.lawtimesnews.com Trial Lawyers Association calls for inquiry MARG. BRUINEMAN For Law Times T he Ontario Trial Law- yers Association is call- ing for the provincial government to conduct a public inquiry into medical as- sessments of people injured in auto accidents. The OTLA charges medico- legal experts distort evidence to satisfy insurance company clients. It also cites concerns over reduced coverage and delays, as well as un- fair denial of coverage. "There have been several cases before the courts and the Finan- cial Services Commission where judges and arbitrators have found that experts have failed to act as neutral, independent, and impartial witnesses, but rather have acted as hired-gun advo- cates. The judges and arbitra- tors have made it clear that they find this conduct unacceptable," says Steve Rastin, of Barrie, Ont.- based Rastin and Associates and OTLA's immediate past presi- dent. "The expert should give the same opinion whether he or she is hired by the insurance compa- ny or by the claimant. The opin- ion should be the same." Both the OTLA and the FAIR Association of Victims for Ac- cident Insurance Reform have called for a public inquiry. The trial lawyers are pressing the On- tario government to establish a commission to examine the state of medical assessments of in- jured auto accident victims. The victims' group wants the qual- ity of medical evidence used in auto insurance claims explored through an inquiry. David Marshall, former presi- dent and CEO of the Workplace Safety and Insurance Board, began his new role as adviser of auto insurance and pensions to Ontario Finance Minister Charles Sousa on Feb. 1, 2016, and the trial lawyers wasted no time in highlighting what they feel is a critical issue. Rastin says medical experts are under pressure to act favourably on behalf of the insurance compa- nies. Some, he adds, are doing just that, serving as advocates for the insurance companies. Experts are meant to be neu- tral and impartial and serve the courts, not one side or the other. Rastin suggests medico-legal ex- perts who have been found repeat- edly to be an advocate for one side be disqualified from testifying. "Experts have been found to be advocates to certain parties and that is a distortion of the system," says Rastin, adding that wrongly keeps victims from accessing the benefits that they need. But, counters David Festeryga, medical witnesses — those who make a living treating or assist- ing accident victims — advocate on behalf of victims as well. Festeryga, a Hamilton lawyer with Sullivan Festeryga LLP, is also first vice president of the Ca- nadian Defence Lawyers. While he says advocacy does occur, they are the court's experts and are controlled by the courts. "Certainly, anyone who is biased will be vetted out by the court system," says Festeryga. "If a medical examiner is biased, they will not last very long." Rule 53 of the Rules of Civil Procedure clarify the expert's role to highlight that it's up to the trier of facts, be it a judge or ad- judicator, to decide whether the information an expert witness presents is biased or neutral. "I don't think it's a problem," says Festeryga. Peter Karageorgos, director of consumer and industry rela- tions for the Insurance Bureau of Canada, says Ontario's insurance industry has been under examina- tion and that has resulted in many changes with more on the way. "The system as it currently stands has been tweaked and tin- kered with for quite some time," says Karageorgos. "The challenge continues to be that cost pres- sures are impacting the premi- ums that people are paying." And he strikes back at the trial lawyers' request, suggesting that one area that hasn't been examined is the amount of money personal injury lawyers make on claims. In a written response to the OTLA statement, Ontario's Min- istry of Finance says the govern- ment seeks to balance the needs of injured claimants while ensur- ing affordable auto insurance. Recent changes, it adds, will help identify and treat injuries from collisions so the injured can re- ceive the treatment they need while minimizing disputes in the auto insurance system. But auto accident victims have been facing more hurdles on their road to recovery, says Ras- tin. He says it has become more difficult for those seeking general damages for pain and suffering. There is also a statutory deduc- tion removed from any damages awarded, which has increased in recent years. Attendant care benefits were cut in half to $36,000 from $72,000 and caregiver benefits and housekeeping are gone. The maximum limit for rehabilita- tion was also cut. The current medical assess- ment system, Rastin says, further stif les victims' access to compen- sation by requiring letters from doctors and ongoing exams. Rastin says he hopes his group will have a chance to meet with Marshall in his new role as auto insurance advisor as they seek an independent assessment of the current system. LT NEWS Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski page 2 PM #40762529 & $#&!& jmmm$cYa[bbWh$Yec June 15, 2015 L AW TIMES Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover the latest news and benefi t from expert commentary for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issues a year covering Ontario's legal landscape • FREE digital edition and unlimited online access to past issues • FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! To place an order please call 416.609.3800 or 1.800.387.5164 Order online at: www.carswell.com/product-detail/law-times-print-digital *Plus applicable taxes @lawtimes Contact us for more information: Canlawyer.lawtimes@thomsonreuters.com | 416.609.3800 | 1.800.387.5164 Access a free preview at: bitly.com/CanLawyer-FreePreview 'Experts have been found to be advocates to certain parties and that is a distortion of the system,' says Steve Rastin. Certainly, anyone who is biased will be vetted out by the court system. If a medical examiner is biased, they will not last very long. David Festeryga

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