Law Times

June 18, 2018

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Page 2 June 18, 2018 • Law Times able outcome," he wrote. The judge didn't want the government to receive money left in the settlement fund after claims were paid, so he ordered class counsel to make a chari- table donation. This will benefit class members who don't receive settlement money. The Ontario government denied all allegations of wrong- doing, the decision says. The ministry of the attorney general declined an interview with Law Times, saying in an email that it did not want to comment on a case that was subject to appeal. Under the terms of the settle- ment, the maximum one person can receive is $22,500 for the most severe sexual assault and $15,000 for the most severe phys- ical assault, for a total of $37,500, or perhaps up to $45,000 de- pending on how many claims are awarded, the decision says. Susan Vella, a senior litigator who leads the sexual and insti- tutional abuse and Aboriginal Rights groups at Rochan Geno- va LLP in Toronto, says this is very low. The average award in Ontario for pain and suffering caused by childhood sexual assault is be- tween $144,000 and $290,000, she says. This does not include further compensation people can receive for loss of income, treat- ment costs and other damages. "What [the amount in the Welsh case] suggests is that there was a significant discount for litigation risk that must have been taken into account," Vella says. She says non-monetary com- pensation, such as an apology or public commemoration of some sort, helps people heal. Ordering class counsel to do- nate part of the fees to a charity is "a very unusual thing to do," says Jasminka Kalajdzic, a Uni- versity of Windsor law professor who studies class actions. Judges can't change the amount of an approved settlement, she says. They can order counsel to lower their fees if they think they are too high, she says. It's difficult to determine what is reasonable in a tort case like this, she says. "There's no way to identify what the overall damage for the entire class is. You can't measure it by looking at, for example, profit," she says. "This isn't a situ- ation where the government de- fendant profited by their wrong- doing." LT charities that support the deaf a "high point of the decision." "For the survivors of these communities, that's not just a token. That's a real fundamen- tal part of a settlement in a case where their dignity has really been directly violated by the ac- tions of the defendant," she says. Smith objected to the settle- ment because he felt it was too low, she says. He was also con- cerned because only students who were physically or sexually abused receive compensation, she says. Perell certified the lawsuit in 2016, but he hesitated to approve the settlement, calling it "a dis- appointing outcome." The agreed amount is "inade- quate to bring substantive access to justice for class members," he wrote. The distribution plan was "unfair and unreasonable," he wrote, because it only compen- sates students who allege physi- cal and sexual abuse. The origi- nal lawsuit, filed in 2015, had claimed $325 million in dam- ages and sought compensation for various emotional and psy- chological traumas, including alienation from family mem- bers, substandard education and difficulty finding employment. Family members of students could also have applied for com- pensation, the decision says. Since then, class counsel has conceded that only physical and sexual abuse claims would be compensated and that no family members would receive money, the decision says. "This class action was not a class action for the lower-hang- ing litigation fruit of vindicat- ing individual victims of assault perpetrated by the guardians and teachers," Perell wrote. "It was a class action with the aim of achieving substantive access to justice for the victims of sys- temic negligence and systemic breaches of fiduciary duty." Perell approved the settle- ment because it was better than a trial. "The proposed settlement was a product of hard bargain- ing and it was preferable to ap- prove the settlement than to give the class as a whole the false hope that continuing litigation would produce a more favour- Among the shifts that hap- pened, Schabas says, one of his most "under the radar" accom- plishments was forging a rela- tionship with legal aid. While le- gal aid was the LSO's dominion from the 1960s, a 1998 act estab- lished Legal Aid Ontario as its own, independent organization, giving the law society inf luence through the board of directors. "We really disengaged from it," Schabas says. He says many lawyers recog- nized that the stakes between the two organizations were higher than that. Now, he says, there is a clearer path ahead. "We can provide more in- put, provide more support and, sometimes, where it's warranted, we can provide more criticism of what's happening in legal aid," Schabas says. "The idea is to be a constructive voice, to remind everybody of the importance of having a good, robust legal aid plan — and make sure there is a good and robust legal aid plan." Schabas says the law society is also encouraging lawyers to support the unbundling of le- gal services. A major argument in favour of the unbundling or limited-scope retainers — which Schabas supports — is that cli- ents can pick and choose the ser- vices they can afford. The law society's creation of a new family law licence for para- legals also provides an alterna- tive, often more affordable route for Ontarians to access legal ser- vices, Schabas says. For Schabas, the emphasis on access to justice is just one way that the LSO is transforming. "It's not easy for an old, sto- ried, one might say conservative organization that's used to being a regulator to recognize that be- ing a regulator in the public in- terest means that we have to be more proactive," Schabas says. "What I hope I've accomplished is made people more comfort- able with the need to be proac- tive and to be transparent and to be, frankly, progressive." For example, the recent name change — to the Law Society of Ontario from the Law Society of Upper Canada — was a reversal of hundreds of years of tradition. But he says the name served as a symbol that the society was open to change — and necessary to maintain relevance. The adoption of the State- ment of Principles — which re- quires lawyers to acknowledge "obligation to promote equality, diversity and inclusion gener- ally" and professionally — also drew backlash. He says much of the push- back around both changes in the law society was a result of "a lot of debate" but "very little dis- sent." Schabas says the law society has other challenges ahead. He says there are ongoing debates about licensure and governance and the continuing duty to ad- dress disparities in gender, race and Indigenous status within the law profession. "We can't just sit and say, 'Don't worry, discrimination will take care of itself," Schabas says. As the law society changes its views on topics such as technol- ogy and mental health, Schabas says, he hopes the law society takes a leading role, too. He de- clined to make an endorsement for his successor, but Schabas says he does have a piece of ad- vice for the new treasurer. "Enjoy it and press on. Press on in meeting the challenges that the society has for us as a profession," he says. LT CORRECTION The May 28, 2018 print edition of Law Times stated that Elana Fleischmann said that mediation does not apply in situations of criminal sexual assault. This is not accurate. Fleischmann says that mediation can work in situations of criminal sexual assault with the appropriate safeguards in place. Law Times apologizes for the error. NEWS New treasurer to be elected June 28 Continued from page 1 Continued from page 1 Non-monetary compensation helps people heal © 2018 Thomson Reuters Canada Limited 00251KJ-A92244-CM Available risk-free for 30 days Online: Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8617-65203 $185 Hardcover approx. 520 pages May 2018 978-0-7798-8617-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Publication Support Rights and Obligations Under Ontario Family Law Robert M. 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