Law Times - Newsmakers

Proposed changes impact personal injury lawyers in Ontario Shifts to fees and advertising on the agenda in 2017 BY GABRIELLE GIRODAY, LAW TIMES PROPOSED CHANGES to contingency fees, referral fees and advertising were front and centre in 2017 for members of the personal injury bar. In November, the Law Society of Upper Canada released a slew of proposed changes to contingency fee rules, but stated that a cap would not be part of the plans. "The empirical evidence from the U.S., where caps have been introduced in several states, indi- cates that lawyers who rely on con- tingency fees often stop represent- ing certain clients and handle few- er cases generally," said Bencher Malcolm Mercer, chairman of the LSUC's Advertising and Fee Ar- rangements Issues working group. Proposed reforms in the group's November report include "introducing new transparency measures at the outset of the retainer and in the final reporting to the client," as well as improving "the transparency of contingency fees to facilitate consumer searches for contingency fee arrangements." "After significant consultation and deliberation, the proposed re- forms do not include caps on contingency fees. Caps are not an effec- tive way of better ensuring fairness and reasonableness," said the report. The report also recommended making the calculation of contingency fees easier and more-straightforward, to assist consumers. For example, for lawyers working with inidividual people and small businesses, it was advised that they state the maximum percentages that they charge on their website, or when they first deal with potential clients. It also rec- ommended that lawyers use a standard contingency form agreement. Referral fees also came under the working group's scrutiny in 2017. In April, LSUC approved a cap on referral fees that set out the maximum amount lawyers can receive for referring cases at $25,000. The sliding cap meant referral fees could not exceed 15 per cent of the first $50,000 charged in legal fees, and five per cent of any fees in ad- dition to that, maximizing at the $25,000 cap. Advertising by lawyers was also another issue the group tackled. "As has been a consistent theme. . .many individuals and organiza- tions raised concerns regarding the rise of personal injury advertis- ing. Some described personal injury advertisements as misleading/ false/embarrassing/degrading and provided specific examples in support of this general concern," said a report by the group from June 2017. For example, Deanna Gilbert, a partner with Thomson Rogers, said she supported a total ban on advertising. "The concern we have is that credentials and other conditions of competency are being lost amongst this noise that's created by this f lood of advertising," said Gilbert. "So we support a ban and I think that will force members of the public to take a closer investigative look at the lawyers that they're choosing." A June report noted while a few submissions to the group supported a ban, most feedback favoured the con- tinuation of advertising, but have it be "regulated in the public interest." — With files from Alex Robinson Malcolm Mercer is part of an LSUC working group that proposes new ways of enhancing consumer knowledge around contingency fees. Individuals could then be asked to submit to a blood or urine test based on the outcome of the sa- liva test. In late November, lawyers said a government proposal to criminalize having a certain amount of THC in your blood two hours after driving (five nanograms) will likely face a Charter challenge if implemented. A group of prominent criminal defence lawyers signed a letter calling on the government to abandon part of the proposed regulations in bill C-46 that would establish a summary offence for people found to have more than two nanograms of THC in a milli- litre of their blood within two hours of driving a car. The proposal, they say, would disproportionately affect people who consume the drug for medical purposes and is contrary to s. 7 of the Charter. "There are a lot of f laws in the legislation," says Caryma Sa'd, a criminal defence lawyer and one of the letter's signatories. "I wouldn't be surprised to see a constitutional challenge." The letter points to two studies from 2009 that found a large number of regular can- nabis users still have two ng of THC in their blood after abstaining from the drug for a week. Sa'd said that while it is important to keep roads safe, the court system should not be clogged up with people facing charges who weren't driving in a dangerous way, but simply had THC in their bloodstream. "A more individual case by case is a more appropriate solution than sort of an arbi- trary number that doesn't necessarily ref lect what the reality is." More than 50 lawyers from across the country have signed the letter. In a backgrounder on the regulation, the government acknowledged that the pro- posed summary conviction offence "is not directly linked to impairment, but [it] is, rather, based on a precautionary or crime prevention approach." Meanwhile, employers shouldn't let uncertainty around the legalization of marijua- na stop them from crafting workplace policies about its use. With details of the new legal regime only gradually emerging as the deadline quickly approaches, Shana French, a lawyer with Toronto employment and labour law boutique Sherrard Kuzz LLP, says many employers are feeling overwhelmed. "It presents this fear for them that there's going to be chaos and anarchy, with people smoking up in the middle of the day and nothing they can do about it," she says. "That's not the case, but few employers have given any real thought to what legalization will mean for them." Laurie Jessome, an employment lawyer with Cassels Brock and Blackwell LLP, says some people's fears about rampant absenteeism and impairment among marijuana us- ers following legalization is driven by outdated stereotypes about the drug. "I don't think there's any need to panic. Not much is likely to change in terms of how workers function," she says. top stories 2017 top news, newsmakers and cases 15 Caryma Sa'd says the court system should not be clogged up with people facing charges who weren't driving in a dangerous way, but simply had THC in their bloodstream. AnyWhere AnyTime AnyDevice DM Tools Cloud for child and spousal support calculations. Pay Per Use and Annual Subscription options available. www.divorcemate.com 1.800.653.0925 Ext. 407 • sales@divorcemate.com Straightforward, easy-to-understand printout. Instant, secure access to all of your client files at home, at work, at court. DivorceMate-1/4_LT_Dec11_17.indd 1 2017-12-08 9:54 AM

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