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May 1, 2017

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Page 6 May 1, 2017 • Law TiMes www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Intervention early A Law Times story this week describes a new study by the Canadian Forum on Civil Justice. In the study, senior research fellow Ab Currie — who has 30 years of experience at Justice Canada — found that a pilot project in South- western Ontario legal clinics has successfully tapped into unmet legal needs, through a community partnership approach with 125 organi- zations and service agencies. The legal health checkup helps workers in the field recognize po- tential legal problems of disadvantaged people they interact with and then asks them if they want to be contacted by a legal clinic. The concept is a familiar one — leveraging community connec- tions to help people figure out when they need help. "Experience so far has proven that the approach works," says Cur- rie. So, why does this study matter to lawyers? In my view, it's a holis- tic approach to law that takes an overall view of the court system into consideration. People with unmet legal needs grapple with serious issues. But by identifying these needs and connecting people to legal clin- ics, early interventions could make good public policy and help the administration of justice on matters such as family law, labour and employment law or housing rights. "Clients that have gone through the intake process appear, on the whole, to be quite favourable toward the LHC form and the process Fickle finger of blame BY IAN HARVEY F irst it was the high cost of accident repairs. Then it was widespread fraud. Now the Ontario government has been told to blame soaring auto in- surance rates on lawyers. Again. The finger pointing is that of David Marshall, former boss of the Workplace Safety and Insurance Board, whose re- port "Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario" has raised the collective ire of the profession. Yet Marshall is not the first to recom- mend getting lawyers out of the accident benefits dispute process. Starting Tues- day, there will be the first of three days of a Charter challenge at the Ontario Supe- rior Court of Justice relating to a previous attempt to whittle lawyers out of the ac- cident benefit dispute process. The challenge traces back to the 2013 "Dispute Resolution System Review" by Justice Douglas Cunningham, who called for "public sector administrative tribunals" to deal with SABS disputes. The government responded in 2014 with amendments to the Insurance Act, among them removing the right of mo- tor vehicle accident victims to sue for benefits. It also introduced statutory caps on economic loss recover- able by a plaintiff up to the date of trial. The plan was to hear disputes at the Licence Appeal Tribunal — a quasi- judicial body originally set up to hear liquor licence appeals. The move triggered a Charter challenge by Toronto lawyers Joseph Campisi, Pe- ter Murray and Rocco Galati, who will argue this week on both those points. The point is, says Campisi, that the LAT — which started up a year ago — isn't serving accident victims. Even Justice Cunningham confessed to being "disap- pointed" as to how the LAT is structured. "Clearly, many of my recommenda- tions were not adopted," he was quoted as saying at a panel discussion last fall, noting that few mediators experienced in accident benefits were appointed to the LATs. "There was a lot of cherry picking that went on here." Campisi is more direct. "Stripping a vulnerable, disabled in- dividual of their right to access the Supe- rior Court is an unwarranted assault on access to justice," he says. It's a highly politically charged issue. Marshall, an accountant by profession, was given a mandate necessi- tated by the appalling inabil- ity of the Ontario government to deliver on its own promise of a 15-per-cent across-the- board reduction in insurance premiums by August 2015. In fact, premiums have been going up, not down, despite the best efforts of the Ontario government to acquiesce to every demand made by the powerful insur- ance lobby over the last de- cade. Now, personal injury lawyers have to fight for bigger awards if only to beat the threshold for their clients and to cov- er their own costs. Yet, this is where Mar- shall puts much of the blame: lawyers on both sides running up billables, battling over what's an appropriate compensation for an accident victim. Granted, con- tingency and referrals have some f laws, the latter addressed by the Law Society of Upper Canada last week capping the amount. But, as Marshall points out, in- surance company lawyers want to con- trol costs, not pay victims. It sets up an adversarial process from the get-go. Mar- shall says the current regulatory regime is too complicated and an invitation to protracted litigation. He calls for a sim- plified process managed by a proactive regulator with a deeper understanding of the impact on insurance costs. "The system needs to adopt a care not cash approach," Marshall writes, which is laudable enough. But, as the Ontario Trial Lawyers Association points out, the system has been broken for a long time and taking lawyers out of the process isn't a magic solution. The association has consistently argued that the root cause of escalating insurance battles is not the le- gal costs but the switch to the current no- fault system from a tort system in 1990. The likelihood of going back to torts, however, is slim to none. The government has promised to con- sult with stakeholders on Marshall's re- port. This is classic political speak mean- ing: "This is too hot to deal with and we're going to punt this down the road." More likely is that the outcome of the imminent Charter challenge will have a bigger immediate impact before any de- cisive action by this provincial govern- ment materializes. LT uIan Harvey has been a journalist for more than 40 years writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. they have experienced," said the study. The law has many facets — including how it serves all Canadians. The profession buzzes about access to justice. It's initiatives like this one that might figure out how such an impossible goal may be achieved, starting with very small steps. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. 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