Law Times

October 2, 2017

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Page 2 OctOber 2, 2017 • Law times Convocation for a vote in June, but that motion was scuttled the night before the meeting after there were calls that not enough consultation had taken place. A number of organizations, such as the Ontario Trial Lawyers Association and the Federation of Ontario Law Associations, quickly submitted letters asking that the motion be deferred until they had a chance to provide further input over the propos- als. As a result, trade unions and member-based organizations, which were originally included in the initiative, were taken out of the motion. There were also a number of caveats included to alleviate some concerns raised by the OTLA. One such concern was that relationships between char- ities and law firms could create exclusive brokerage arrange- ments that could manipulate prospective clients into select- ing the firm in the partnership to represent them. Under the new motion, non-profits and charities will not be allowed to charge clients for legal services, but they will not be able to refer clients to lawyers or paralegals in exchange for donations or pay- ments. Claire Wilkinson, the presi- dent of OTLA, says the organ- ization was pleased to have the opportunity to work with the law society on the proposals. "We certainly want to see greater access to justice for those in need, and this model could help with that laudable goal," she says. The new motion also excluded organizations that are funded by Legal Aid Ontario, after some benchers raised con- cerns about legal aid clinics. LT Lawyers have lingering concerns practising lawyers in this field take a hard look at their cases be- fore they know they can take on a case anymore in these motor vehicle crash cases," he says. In Cobb v. Long Estate, a jury awarded $220,000 in com- pensatory damages to a plaintiff who had brought a claim against the estate of a man who collided with him in a 2008 car crash. The trial judge awarded just a final amount of $34,000 after deducting the rest for collateral benefits the plaintiff had already received from his insurer as well as for the statutory deductible for general damages. The plaintiff appealed the decision, arguing the judge had erred by deducting amounts al- located to income replacement benefits in a statutory accident benefits settlement from the jury awards. The plaintiff also contended that the judge's determination of a three-per-cent prejudgment interest rate was not correct, and that it should be five per cent, which was the rate in effect before the beginning of 2015, when the Insurance Act was amended. On the issue of whether the statutory accident benefits set- tlement should be deducted, the plaintiff argued that amounts for past income loss and future income loss should be treated separately. An award can only be reduced by a corresponding statutory accident benefit on a benefit-by-benefit basis under the Insurance Act, the plaintiff submitted. The Court of Appeal, howev- er, found the legislation does not distinguish between amounts that relate to past or future in- come loss, and that it only refers to amounts received before trial. "The claims are still claims for income loss," wrote Justice Jean MacFarland on behalf of a three-judge panel. "The Insurance Act does not differentiate between past and future losses — it simply refers to 'all payments . . . that the plaintiff has received . . . before the trial of the action for statu- tory accident benefits in respect of the income loss and loss of earning capacity.'" The Court of Appeal upheld the judge's decision to exercise his discretion on a three-per-cent rate for prejudgment interest, but it also clarified that the applicable default prejudgment insurance rate on non-pecuniary dam- ages is 0.5 per cent, regardless of when an accident happened. The decision reduced the plaintiff 's award to $22,136. Chris Paliare, one of the law- yers who represented the defen- dant in Cobb, says this was the first time these new Insurance Act provisions were being con- sidered by the Court of Appeal. "It clarifies them and is of great assistance to anybody who wants to analyze statutory pre-trial ben- efits because the impact of the de- ductibility of those can have pro- found effects on what it is you're going to get at the end of the day regardless of what verdict the jury comes back with," he says. Insurance defence lawyers say the decisions also bring greater certainty to statutory deductibles. In the El-Khodr case, a jury awarded $2.9 million to a plain- tiff after a 2007 car crash in which he was rear-ended and suffered catastrophic injuries. Joseph Obagi, who acted for the plaintiffs in El-Khodr, says his client was disappointed by the court's ruling that the gov- ernment meant for the legisla- tion to apply to accidents that happened prior to the amend- ment. "If you apply that retroactive- ly, then, effectively, the reduction in premiums is coming at the expense of accident victims that were injured in motor vehicle accidents that occurred entirely prior to the date of the amend- ment," he says. "So that's a little disappointing and troubling." Obagi and Bonn say their cli- ents have not decided yet wheth- er they will seek leave to appeal the decision from the Supreme Court of Canada. 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