Law Times

LAW TIMES / APRIL 28, 2008 FOCUS PAGE 21 Issue of entitlement came up after the fact Continued from page 19 nal arbitrator's decision. "Where this is causing problems is that in Mr. McMichael's case he was told no by the insurance com- pany, and this issue of whether he was entitled to it or not came about after the fact," says Samworth. "Now what we're seeing in practice is when people are claiming atten- dant care or housekeeping, both of which are what we call incurred ex- pense, normally the insurance com- pany would say, 'Fine, but send us some invoices to show who is pro- viding the services, proof that you've paid or promised to pay and what the services are.' And we're now finding that the insured, through their lawyer or otherwise are saying to us, 'No, McMichael says that we don't have to prove that we've had these services; you just have to give them to us.'" Samworth says there is a distinc- tion made between an insurance company saying no and then later It's the 'correct approach' Continued from page 16 child, in the event the action was not successful." "I think that is the correct approach,"says Stevens, adding that Smith factored in the financial risk assumed by Cogan; the likelihood of success so the harder the case the higher of a percentage recovery would be justified; the nature and complexity of the case; expense and risk of pursuing the claim; the results achieved; and the amount recovered. He adds that Smith also looked at the way the agreement was ne- gotiated and in this case the par- ents were "very sophisticated peo- ple," and because they had already exhausted funds on another law- yer weren't able to afford this kind of litigation so they "entered into an agreement with the full knowl- edge of what it was, and they had independent legal advice. He found the agreement was made in a fair way." recovery of damages has been ob- tained by the efforts of the solicitor in a situation where following the contingency fee agreement results in the recovery of a large fee for the solicitor, in circumstances where the result obtained was outstanding, where the best interests and future care needs of the child have been met, where substantial financial risk has been assumed by the law firm, where a vulnerable party has obtained access to justice and been fairly compensated for injuries suf- fered, then in those circumstances where the percentage is reasonable and the agreement was fairly entered into, I find that the contingency agreement should be approved even if the recovery by the law firm is very high,"wrote Smith. "It's a case that is well reason- "I find that where a substantial ed,"says Stevens. "It broadens the perspective instead of just bringing the subjective approach to the indi- vidual case." LT CA011 Damages: Estimating Pecuniary Loss Cara L. Brown An original approach to blending economic data with unique, particularized case law from civil litigation cases. Support for each economic principle or assumption is found in cases throughout Canada so counsel will know which economic assumptions judges will accept and which ones they won't. Looseleaf & binders (2) • $279 • Supplements invoiced separately (1-2/yr) P/C 0375030000 • ISBN 0-88804-325-2 Vehicle Cases Roger G. Oatley, John McLeish and contributing authors The Oatley-McLeish Guide to Personal Injury Practice in Motor Find out from today's top personal injury experts how to attain the fairest compensation for your client's injury with this insightful resource. Written by two of Canada's leading personal injury lawyers with contributions by some of Canada's most acknowledged personal injury experts, this resource provides all the essential step-by- step guidance you need to effectively manage the complexities of Ontario's no-fault insurance system. Looseleaf & binder • $307 • Supplements invoiced separately (1-2/yr) P/C 0486030000 • ISBN 0-88804-380-5 Product Liability: Canadian Law and Practice Lawrence G. Theall, J. Scott Maidment, Teresa M. Dufort and Jeffrey A. Brown Written by leading practitioners experienced in representing both plaintiffs and defendants, this is the only looseleaf service that equips the legal practitioner to face, with confidence, the unique challenges of litigating product liability claims. Looseleaf & binder • $161 • Supplements invoiced separately (1-2/yr) P/C 0487030000 • ISBN 0-88804-347-3 Second Edition Roger G. Oatley Addressing the Jury: Achieving Fair Verdicts in Personal Injury Cases, This second edition is completely updated, including the latest case law and new chapters. Gain invaluable insight into the way jurors think and make decisions, with practical tips and special techniques to sway a jury in your favour. Perfectbound • 358 pp. • 2006 • $94 • P/C 0119010002 • ISBN 0-88804-433-X Class Actions in Canada Ward Branch Class Actions in Canada is the leading text and a comprehensive guide to bringing and defending class actions in Canada. Helping you gain the unique skill of successful class action advocacy, this important work provides examples and direction through analysis of hundreds of class action cases litigated across Canada, as well as a comprehensive bibliography of class action articles. Looseleaf & binder • $203 • Supplements invoiced separately (2-3/yr) P/C 0378030000 • ISSN 1206-2375 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com LT0428 being ordered to pay as in the Mc- Michael case, versus an insurance company saying, "Yes, but we need evidence of who's doing what." She says there's a provision under the policy called s.33 that says the insurance company is permitted to request reasonably required infor- mation to help determine entitle- ment. There are a number of cases that say the type of information they are entitled to ask for includes, who's doing the services, what are they doing, when are they doing it, and what are you paying them. "So my position is that you cannot rely on the McMichael case where benefits have been agreed to be paid to refuse to provide informa- tion to the insurer, on the grounds they don't have to prove that they were incurred," she says. "There hasn't yet been a case that has taken McMichael that far," she adds. "One of the questions one would ask before you go to court if the insurance company says no to the benefit and the benefit's in dispute, do you have to offer proof that you had the services in light of McMichael. I really don't know the answer to that." LT Awards 'well supported' on evidence Continued from page 20 Harvinder the maximum considering the na- ture of his injuries, their permanence and the manner in which they have affected the quality of his life," the court concluded. In addition, $100,000 was awarded each to Sandhu's older brother, his mother, and his father. The court also rejected an invitation to reduce the award. The court noted that while Family Law Act claims are not subject to a formal cap comparable to that applied to general pain and suffering damages, they are "subject to limits of reasonableness, must fall somewhere within the range of damages established in comparable cases, and must be supported by evidence of the care and guidance and CA011 4/22/08 1:05 PM Page 1 companionship that the family member has, in fact, been deprived of." Damage awards to parents rarely exceed $100,000 and such amounts are generally reserved for cases in- volving the death of a child, said the court. Awards like this to siblings are generally un- heard of; lower than $50,000. But the court found while the awards are at the "high end of the range for derivative awards, we are satisfied that these particular awards are well supported on the evidence." The appeal court noted the Sandhu family is close in every respect, and Harvinder was a happy playmate to his brother prior to the acci- dent. Since then, however, the contrast in their abilities is "stark." And, in fact, the brother Parminder has "had to sacrifice some of his own independence and ability to interact with his peers" as he is required to include his brother in his activities and provide the necessary care and guidance he needs. "As his parents age he will assume greater care and concern for Harvinder. In their Pun- jabi culture it is the responsibility of sons to care for their parents; Parminder will not have Harvinder's support to rely on," said the court. "Parminder's commitment will be life long and, as the respondents note in their factum, 'The injury to Harvinder in some ways will affect Parminder more profoundly than the death of a sibling.'" The court concluded that, "While the awards are high, they are not so high or inordinate that would call for this court's interference." LT

• Cover