Law Times

May 9, 2016

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Page 2 May 9, 2016 • Law TiMes accredited by the law society, and he says the idea is to in- ject an element of f lexibility into the licensing process for both articling students and their principals. "It may make it possible for a firm that can't afford a 10-month commitment to take a student for six months instead," says Goldblatt, a partner at Toronto firm Gold- blatt Partners LLP. Internationally trained lawyers would also qualify for an abridgment of up to three months based on prior practice experience abroad, but the new proposal would remove the possibility of a complete articling exemption, which is currently available to international candidates with a minimum of 10 months experience practising in common law jurisdictions. Goldblatt says the proposal will help foreign-trained lawyers acclimatize to practice in Ontario, but he admits there was dissent from some mem- bers of his committee who would rather maintain the op- tion of complete articling exemption for exceptional cases. In addition to the articling changes, the committee also wants to combine the two seven-hour barrister and solicitor licensing examinations into a single five-hour "Practice and Procedure Examination" following a re- validation process to ensure it tests the skills required by new lawyers in practice. Starting in the 2017-2018 licensing year, candidates must also pass the new PPE before progressing to the experiential component of the licensing process: articling or the law practice program. At Convocation, Wright worried about what might be lost in the merger. "In most of the world, solicitors and barristers are completely different professions, and there's a reason for that, so I'm not sure if combining the exams into one is a good idea," he said. Under the plan, the LSUC will also develop a brand new "Practice Skills Examination" as the final hurdle to the call to the bar, designed to assess the skills developed during ar- ticling, as well as practice management, professional respon- sibility, and ethics. Goldblatt wants to see the examination in place by the 2018-2019 licensing year, acknowledging it may take an extra year to get it in place because the law so- ciety will have to start from scratch in developing the test. Maryellen Symons of Toronto firm Symons Law, a long-time critic of the LSUC's licensing process, says she is encouraged by the proposal. Last year, she was one of 15 signatories to a motion at the law society's AGM that called for all firms with more than seven lawyers to take a randomly assigned articling student, protesting the dis- connect between the academic and practical aspects of legal education. "Looking at this proposal, there seems to be a lot more emphasis on the practical aspects of law, which I think is a good thing," Symons says. "It's not the ideal world of legal education as I see it, but it's certainly a step in the right direc- tion, and anything that leads towards the fuller integration of the academic and the practical looks good to me." Candidates would have three years from registration to complete all the licensing requirements, including a maxi- mum of two failures for each examination. However, any- one who doesn't make the grade within the three-year dead- line would be barred from registering for a second time. "When you consider that you get three years and three attempts at each of the exams, I think that's a fair oppor- tunity for candidates," Goldblatt says. "The purpose be- hind all of this is to enhance licensing standards, which benchers have adopted as our top strategic priority." Benchers are scheduled to vote on the plan at their next meeting on May 26 following a consultation period when the professional development and competence commit- tee will accept input from interested parties. Rocco Galati, elected last year to his first term on the law society's governing body, called that "a ridiculous turnaround time for something of this nature," express- ing concern for law students who can't get enough experi- ence to qualify for an articling abridgment. Wright also called for more time to consider feedback before imposing changes he characterized as "quite im- pactful." "I think you're going to need a heck of a lot more time than just two more weeks to think this through and get some input," Wright said. Goldblatt remains confident that everyone who wants to will get their chance to weigh in on the proposals. "We're very open to communication, and I expect we'll have a fair amount of input," he says. LT NEWS Continued from page 1 'More emphasis on the practical aspects of law' Expert target of negative comments independent medical examination by Dr. Monte Bail in particular," writes MacLeod-Beliveau. The plaintiff 's argument was one that clearly persuad- ed the judge, who proceeded to cite six cases in which Dr. Bail is the subject of negative judicial comment. In one particularly stinging rebuke, in Bruff-Murphy v. Gunawardena, Superior Court Justice Paul Kane criti- cizes Bail for lacking credibility and expresses his regret for having allowed the witness to testify — given the ul- timately unfavourable outcome for the plaintiff. Kane states, furthermore, that he "will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case." In Daggitt, MacLeod-Beliveau offers a continuation of the findings in Bruff-Murphy while putting forward her own reasons for theoretically rejecting such a witness: "It could be argued that the court, in the exercise of its discretion, should … consider and determine in appro- priate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert. "While it would be uncommon to find an expert bi- ased … such an expert so found should not be allowed to have any role in the court process." Rhona DesRoches, chairwoman of the Association of Victims for Accident Insurance Reform, calls the decision a "game-changer" for personal-injury claimants, an indi- cation that the courts have "had enough of the manipula- tions of insurers to delay and deny claimants through the use of biased medical evidence." "Ontario's insurers," she says, "have used the partisan medical experts as a tool in their toolbox, and it is the most effective method they have to deny claims. If Dag- gitt is a road map, those days of denial based on bogus medical opinions is coming to an end." Joseph Dart, the lawyer at Bergeron Clifford LLP who represented Daggitt, says he relied heavily on the Supreme Court of Canada's April 2015 decision in White Burgess Langille Inman v. Abbott and Haliburton, wherein the top court grants judges the discretion to disqualify biased reports and expunge the testimony of biased experts. Dart took the SCC's guidance in White Burgess and used it, along with recently revised Rules of Civil Pro- cedure that require expert witnesses to sign affidavits swearing impartiality, to convince MacLeod-Beliveau that she had all the discretionary power required to re- ject an expert witness — prior to trial and prior to seeing any of the testimony itself. In her dismissal of the motion, MacLeod-Beliveau questions the effectiveness of the new Rules of Civil Procedure, which require experts to com- mit in writing to be fair, objective, and non-partisan. MacLeod-Beliveau further notes that, while the testi- mony of biased experts may be expunged at trial, there's no consequence — aside from the embarrassment result- ing from the court's indignation — that would prevent such hired guns from being welcomed back to court over and over again. "There's practically no consequence," says Dart, "and hopefully what will happen now is, if people like this don't get appointed to do the examination in the first place, you'll see them disappear — and that's a con- sequence for sure." Todd McCarthy, senior partner at Flaherty McCarthy LLP, who is representing the defendant Unifund Assurance in Daggitt, says there's little chance that this ruling will be followed by other judg- es. Defence still has time to propose an expert other than Dr. Bail, so McCarthy says there would be no practical purpose in seeking leave to appeal. Still, he strongly suggests that MacLeod-Beliveau's comments are wrong on principle. "If this case weren't so close to trial, and this case wasn't one where we were going to get a defence psych- ological opinion anyway, we would probably seek leave to appeal, because with due respect to the court, it may well be, from an appellate perspective, an exercise of discretion on wrong principles to consider negative ju- dicial comment about a chosen expert, because that's not admissible at trial." McCarthy insists, moreover, that it's not the place of a motions judge to determine — without ever having read a report or listening to testimony — whether an expert witness is biased. "It seems to me the ultimate gatekeeper is not the motions judge but the trial judge," says McCarthy. "So the troubling part of this case is that it takes away the choice and makes the decision on a motion stage that the trial judge should make. "I think that could be seen as an error in principle, so I don't expect this decision to be widely followed, and if it is, ultimately, an appellate court is going to weigh in at the appropriate time." LT Continued from page 1

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