Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth W LSUC should back down on Groia costs orde r COMMENT November 26, 2012 • Law Times against a law clerk as well as a number of other acts of misconduct, it or- dered her to pay $10,000 in costs. In the case of Ernest Guiste, another lawyer taken to task for incivility, hen the Law Society of Upper Canada suspended for- mer lawyer Julia Ranieri in 2009 for, among other things, punching a client in the nose, it sought $5,000 in costs. When it later disbarred her for a further civility breach the LSUC issued him a reprimand and didn't make a costs order against him. Th e hearing panel faulted him for using rude and profane language and raising his voice during a mediation session; communicating with people on the opposing side in a manner that was abusive or otherwise inconsistent with the proper tone of a professional lawyer; and failing to treat the court with courtesy and respect. In the case of Joe Groia, whose prosecution by the law society has sparked a vigorous debate over the extent of lawyers' obligations to be civ- il in court, the law society revealed last week that it was seeking $250,000 in costs from him. It justifi es the high amount based on more than 1,000 hours in lawyer, clerk, and student time spent on the fi le. Th ere' s certainly a good argument for basing cost orders on the law society's time spent on a case. But in Groia's matter, the amount sought is were unjustifi ed and therefore constituted conduct that fell below the M s attacks on the prosecution obviously way out of proportion to the severity of the misconduct. Th e law society has found him guilty of misconduct for his aggressive defence of former client John Felderhof during the high-profi le trial related to the Bre-X Minerals Ltd. fi asco. It found "Groia' standards of principles of civility, courtesy, and good faith required by the Rules of Professional Conduct." But while the case may have been a complicated one, Groia's actions in no way approach the serious- good argument that there should be no costs order. Th e fact that his case is a high-profi le one doesn't mean he should be on the hook for costs as he' ness of a lawyer who punched a client in the nose. If the law society ordered the lawyer in that case to pay $5,000 in costs, Groia should surely pay less. In fact, given the signifi cant price Groia has al- ready paid for a prosecution that's obviously seek- ing to make an example out of someone, there's a ready paid the price in other ways. Th e costs issue is quite apart from the question s al- of where the law society should be drawing the boundaries when it comes to regulating civility. But when it comes to costs, at least, it' back down. Ontario should reconsider public auto insurance policy reasons require a regime to put money and medical and rehabilitation benefi ts into the hands of victims regard- less of fault. But social policy also requires the administration of no-fault benefi ts in a fair and expeditious manner. Th at' Ontario's present regime breaks down. In our system, unacceptable delays are otor vehicle accident victims must navigate through two avenues: no-fault benefi ts and the tort regime. Social s where endemic. Too much money goes to claims costs. Much of the blame for this falls on the adversarial nature of insurers who deny legitimate claims as part of the battle against fraudulent ones. Tort claims are, by their nature, adversarial. In principle, how- ever, accident-benefi t claims shouldn't be adversarial in nature as they, for the most part, represent contractual claims by cus- tomers against their own insurers. Attempts to fi x the accident-benefi ts regime take place every fi ve years, but each reform process seems to bleed into the next. In fact, we're currently facing po- tential changes to the defi nition of cata- strophic impairment along with multiple reforms to combat fraud. Th e one thing nobody seems to be considering is a com- plete overhaul of motor vehicle insurance Law Times LT Masthead.indd 1 by moving to public from pri- vate insurance. It' sue again. Ontario has the high- est car insurance premiums in Canada and with the cap of $3,500 on minor injuries and $50,000 on non-catastrophic ones, the majority of victims get the worst accident-benefi ts coverage. Even with high pre- miums and low benefi ts, insur- ers complain about low returns and fraudulent claims. Insurers aren't happy with the status quo and any reader of arbitration decisions of the Fi- nancial Services Commission of Ontario will understand that insurance clients are equally unhappy with how things are. Four provinces — British Columbia, s time we debated that is- Saskatchewan, Manitoba, and Quebec – have instituted public auto insurance. Howard Pawley, former premier of Manitoba, made convincing arguments in favour of public auto insurance in his deputation to Ontario' tee on fi nance and economic aff airs last July. He maintained that private owner- ship doesn't always work better than pub- lic and argued that, in the case of car in- surance, the benefi ts of public ownership s standing commit- Social Justice are clearly demonstrable. Public insurance can pre- vent costly administrative du- plication. Instead of dozens of insurance companies each with its own bureaucracy, there' Alan Shanoff ecutive pool and one computer system, not dozens. Th e surplus premiums and profi ts in private industry would go back to policyholders rather than to in- surance company shareholders. Manitoba' one public institution. Accord- ing to Pawley, "administrative costs of public plans avoid cost- ly administrative duplication and are only one-half as much as those incurred by private in- surance companies." Th ere would be one ex- favourably with Ontario's. Th ere's no cap s accident benefi ts compare on minor injuries as in Ontario. Standard medical and rehabilitation benefi ts have a cap of $100,000 for non-catastrophic cases as compared to Ontario' of $50,000 unless drivers buy optional coverage. In addition, there' catastrophic injuries in Manitoba. Accord- ing to Pawley, public plans return about 20 per cent more to policyholders in terms of claims payments and accident benefi ts. s no limit for Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ................... Michael McKiernan Staff Writer ........................Yamri Taddese Copy Editor ...................... Mallory Hendry CaseLaw Editor ................. Adela Rodriguez Art Director ...................... Alicia Adamson Production Co-ordinator ............. Catherine Giles Electronic Production Specialist ....... Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 11/7/12 11:23 AM d be serves in public institutions. According to Pawley, as of July there was $2.2 billion in reserves invested in schools, hospitals, and municipalities. Interest on the re- serves not invested in public institutions serves to reduce premiums. With lower premiums, stable rates and Manitoba invests its insurance re- benefi ts, surpluses going back to the pub- lic, and reserves invested in public institu- tions, why shouldn't we examine the op- tion of public insurance? It' be driving insurance companies out of Ontario. We'll still have commercial insur- ance as well as home and property cover- age. It' s not as if we'll four other provinces seem to have man- aged these temporary diffi culties. If Manitoba has managed to achieve a s true there'll be some job losses, but s standard reserve of $2.2 billion, a properly run pub- lic system in Ontario should be able to do even better while providing money for use in schools and hospitals. It' It's time to consider real reform. s clear it should — Glenn Kauth s time to stop tinkering with benefi ts. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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