Law Times

Law Times • November 27, 2017 Page 11 www.lawtimesnews.com Contingency fee changes to be hammered out BY SHANNON KARI For Law Times T he benchers of the Law Society of Upper Cana- da are scheduled to vote this week on whether to approve proposed changes aimed at streamlining contin- gency fee retainer agreements and also increasing protection for consumers who enter into these contracts with lawyers. e recommendations of an LSUC working group include a call to cra a standard contin- gency fee agreement, more dis- closure to clients about all fees and expenses and amendments to the Solicitors Act to permit costs to be included as part of a settlement. e working group decided not to recommend a cap on the percentage contingency fee that can be charged. However, it says that lawyers should be required to post the maximum percent- age fee they charge on their web- site or disclose it to potential cli- ents when they first meet. For the most part, the pro- posed changes have been re- ceived positively by lawyers in the personal injury field, since they were introduced earlier this month in advance of the Dec. 1 benchers meeting. Claire Wilkinson, president of the Ontario Trial Lawyers As- sociation, says the organization has been in favour of a standard and simpler agreement template for some time. "Presently, it is very difficult for consumers to 'lawyer shop,' as there is a lot of variety in the manner in which contingency fee agreements are presented and, thus, an 'apples to apples' comparison is very challenging for the client to undertake. How- ever, if a standardized agree- ment is developed, then it will be much easier for a prospective client to compare lawyers and consider if the percentage the lawyer is proposing to charge is acceptable," says Wilkinson, a lawyer at Martin & Hillyer As- sociates in Burlington, Ont. Steve Rastin, who heads Ras- tin & Associates in Barrie, Ont., also welcomes the push for a standard form contingency fee agreement. "e concept of a simple re- tainer agreement is a good idea. e public finds these discus- sions confusing," says Rastin, who is also a former president of the trial lawyers' organization. Both lawyers agree that it would be in the public interest for the province to move quickly to amend sections of the So- licitors Act, as recommended by the working group. "Until the Solicitors Act is amended, the status quo will remain, notwithstanding the recommendations of the law society. Everyone is still required to use the lengthy and somewhat confusing retainer agreements that include all of the requirements of the act," says Wilkinson. "e Solicitors Act is flawed. It needs to be changed," says Rastin. e most pressing issue, he says, has to do with the incorpo- ration of costs in a contingency fee agreement. "I think it is about form over substance," says Rastin and not about personal injury lawyers double dipping, as some media reports have suggested. A provision in s. 28 of the act does not permit a contingency fee agreement to include costs as part of the payment in a settle- ment, unless both the client and lawyer bring an application to the Superior Court for approval or if the court finds extraordinary circumstances. Another section of the act requires only that the overall fee charged by the lawyer is "fair and reasonable." "When I am in a room with potential clients, I explain my billing practices," says Rastin. Some personal lawyers would charge a lower-percentage con- tingency fee as well as a percent- age of costs, he explains. is makes it economically feasible to take on an average case, which may result in a damages award of $50,000 or $60,000, he says. "e real problem is the law- yer who is out there billing 30 per cent and taking costs," says Rastin. e issue of costs in a con- tingency fee agreement was highlighted in an ongoing class action case against the Toronto- based Neinstein and Associates law firm. e Court of Appeal in Hodge v. Neinstein upheld this year a Divisional Court decision certifying a class action lawsuit against the firm over its billing practices with personal injury clients. e court heard that the representative plaintiff, Cassie Hodge, received just less than $42,000 of an "all-in" settlement of $150,000, with no specific itemization of how much was for legal costs. e firm made its own decision to allocate $50,000 of its bill for costs. Its standard agree- ment with clients was to charge 25 per cent of any damages award as well as any partial indemnity costs that are recovered. e law firm is seeking leave to appeal the decision to the Supreme Court of Canada. All documents in the leave appli- cation were filed as of Oct. 30, although, as of press time, the Supreme Court had not made a decision on whether to hear the appeal. e law society working group pointed out that when there are settlements a lawyer is potentially put in a conflict of interest when costs belong solely to the client. "ere is unnecessary risk that fees will not be fair and rea- sonable, unfairly compensating a licensee at the expense of the net amount recoverable by a client; and there is also an un- necessary risk that a client may receive a windfall for legal costs reflecting work done by a licens- ee," the working group stated in its report. As well, in cases where there is likely to be low to mid-level damages awarded, the current system provides a disincentive for a plaintiff 's lawyer to take the matter to trial, even if required, the working group noted. "is raises significant access to justice concerns," it wrote. LT FOCUS U ndoubtedly, there are first-rate health practitioners and facilities available in Ontario. But access to exceptional doctors and hospitals does not guarantee that you'll receive exceptional health care. Harmful medical errors, or "ad- verse events," occur in an estimated 7.5 per cent of hospital admissions across the country. When health care goes wrong, what literally adds in- sult to injury is the secrecy surrounding these mistakes. Consider the numerous instances where medical errors leading to disability or even fatality were not adequate- ly disclosed. "Oral cautions" given by the College of Physicians and Surgeons of Ontario (CPSO) to doctors, warning them to deal with serious issues such as errors in prescribing medication, did not appear on the Public Register until 2015. Hepatitis C outbreaks at three To- ronto colonoscopy clinics between 2011 and 2013 were initially kept out of the public eye. As well, the Quality of Care Information Protection Act (QCIPA), which was meant to encourage medical pro- fessionals to share information about critical incidents and health care quality improvement, has been used by some hospitals to bury medical errors. Secrecy surrounding medical errors has been per- vasive and has on occasion resulted in concealment of alleged negligent misconduct. The Ontario Superior Court of Justice recognized that cover-ups occur when Justice Lederman applied the doctrine of fraudulent misrepresentation to toll the limitation period in Giroux Estate v. Trillium Health Centre [2004] O.J. No. 557, affirmed by the Court of Appeal. Justice Leder- man commented at paragraph 40 that "The course of Dr. Harvey's conduct, beginning with lies, and leading ultimately to the falsification of evidence, was done for the purpose of hiding his alleged negligence and also for the purpose of creating doubt in the plaintiffs' minds about the wisdom of bringing a claim." Resistance to the secrecy surrounding medical er- rors has recently emerged, notably within those insti- tutions that themselves rely on "privacy." The Ontario Hospital Association has stated it wants hospitals to know about all complaints against doctors and nurses, Ontario Health Minister Eric Hoskins pushed for better disclosure regarding public health inspections and outbreaks, and the backlash to the QCIPA's effects was palpable. Steps have been taken in some areas to reduce the secrecy. The CPSO launched a transparency project that culminated in the broadening of the scope of publicly available information on doctors, including the addition of oral cautions to the Public Register. There was a review of the QCIPA that led to propos- als for change that were debated in the legislature on March 3, 2016. What remains to be seen is if these piecemeal pol- icy shifts will lead to cultural ones. Regulatory reform will only go so far. That was the problem with the QCIPA in the first place; the explicit intention was to enable discussion that would improve care and avoid repetition of mistakes, not leave families wondering why their child died. We may be nominally travelling towards transparency, but as we well know, imple- mentation and interpretation are everything. Are we moving towards a brave new world of disclosure, or will we learn, yet again, that old habits die hard? For full references to this article, please visit our website at www.bogoroch.com. Secrecy Surrounds Medical Errors in Ontario Sponsored by By Bogoroch & Associates LLP Personal Injury and Medical Malpractice Lawyers Untitled-2 1 2017-11-20 7:42 PM Steve Rastin says he welcomes the push for a standard form contingency fee agreement.

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