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CDL Board of Directors 2017-2018
15 Jun 2017

CDL is proud to announce the new Board of Directors for 2017-2018, as confirmed by the members at the Annual General Meeting in Toronto on June 8, 2017

You can view the current CDL Board Members by clicking HERE

Lee Samis Award of Excellence
8 Jun 2017

CDL is proud to announce the winner of the Lee Samis Award of Excellence - Mr. Clarence A. Beckett Q.C. of Patterson Law in Truro Nova Scotia. A public celebration will be held in Nova Scotia at a later date.

 

Clarence Beckett takes pride in offering over three decades of exceptional legal experience to his clients. He practices in the areas of Civil Litigation and Insurance Law with an emphasis on defence. Clarence has served as Patterson Law's managing partner, Litigation Group Chair, and Insurance Litigation Practice Group Regional Chair. He has made appearances in all Courts in Nova Scotia as well as the Supreme Court of Canada, has taught the insurance section of the Bar Admission course and was recently selected to be published in Lexpert, Canada's respected legal directory. Clary has been recognized in Best Lawyers  since 2006, and was honored as a "Lawyer of the Year" in Personal Injury Litigation in 2010, in Insurance Law in 2012, and Legal Malpractice Law in 2013. He has been recognized as a "Local Litigation Star" by Benchmark Canada Litigation since 2013.

Exceptional Young Lawyer Award
8 Jun 2017


CDL is proud to announce the winner of the Richard B. Lindsay Q.C. Exceptional Young Lawyer Award was presented to Jason Jason Robert Frost , Schultz Frost LLP


Jason was presented with his award at the CDL Annual General Meeting on June 8, 2017 

Jason focuses his practice on insurance defence litigation. He has motion, arbitration, trial and appeal experience at the LAT, FSCO, WSIAT, Superior Court and Court of Appeal. Jason has particular expertise with accident benefits claims, loss transfer arbitrations, priority arbitrations and WSIAT applications. He also specializes in examinations under oath, investigating and prosecuting claims fraud, as well as managing accident benefits litigation risk.

Civil Justice Reform
18 May 2017

CDL participated in consultations with the Ontario Bar Association on Civil Justice Reform, resulting in this letter to the Attorney General.

Click HERE to view the letter.

DRI Massaron Award
16 Jan 2017

The DRI Mary Massaron Award for the Advancement of Women in the Legal Profession. This award is created for a person who stands as an innovator and role model and one who has made significant efforts to advance women in the legal profession. The award is presented to a DRI member who has demonstrated a high regard for diversity and a commitment to advocating the inclusion and promotion of women as well as fostering women's initiatives and actively promoting positive mentoring relationships with other women in the legal profession.

Sandra L. Corbett Q.C

Field Law LLP

Edmonton, Alberta

Rule 76 Simplified Procedure
15 Dec 2016

December 15, 2016

Civil Juries Under Ontario Rule 76 Simplified Procedure

Canadian Defence Lawyers (CDL) is pleased to be granted the opportunity to make submissions on the Ontario Rule 76 Simplified Procedure request for consultations on jury trials.

CDL is a national association of civil defence litigators with members in all Canadian provinces and territories. We speak for a membership of over 1,400 lawyers across Canada (and about half our members are lawyers practicing in Ontario). For the most part, our members’ clients are corporations, including but not limited to insurers, self-insured companies and reciprocal defence associations.

Membership Survey by Canadian Defence Lawyers

To provide the most useful information for this consultation, Canadian Defence Lawyers conducted an online survey of its entire Ontario membership. The response to this consultation was very enthusiastic. Our comments set out in this report summarize the views of all the respondents. Attached to our report are our members’ actual substantive responses.

Click HERE to view the report

Shape the Future of Canadian Insurance Law
7 Dec 2016

Queen’s Law is delighted to announce a Graduate Student Fellowship in Insurance Law at the
Queen’s University Faculty of Law.

The successful candidate will pursue doctoral (PhD) or masters-level (LLM) studies under the
supervision of Professor Erik S. Knutsen on an insurance law topic related to Professor Knutsen’s
research project on Canadian and comparative insurance law: Floods, Fires, Crashes: Resolving Post-Disaster
Insurance Coverage Conflicts in Canada. The project is federally funded by the Social Sciences
and Humanities Research Council.


For doctoral students, he or she may be awarded up to $40,000 in funding for up to three years of
the PhD program ($35,000 scholarship plus a $5,000 Research Assistantship). For masters students
(LLM), she or he may be awarded up to $30,000 in funding for one year of the LLM program
($25,000 plus a $5,000 Research Assistantship). Preference will be given to PhD applicants.
Insurance law affects almost every Canadian through its many facets: commercial, property, liability,
automobile, life, health and more. Queen’s Law is proud to provide this opportunity for advanced
studies in this area.


All applicants to our graduate program who propose to pursue research on insurance law will be
automatically considered for this Fellowship. The deadline for applications for graduate studies at
Queen’s Law is February 15, 2017.


For more information about the Fellowship, or about pursuing PhD studies at Queen’s Law,
please visit http://law.queensu.ca/graduate-program, or write Dianne Flint,
Graduate Studies Assistant, at lawgrad@queensu.ca
 

Queen's University Faculty of Law Kingston, ON Canada 613-533-2220 law.queensu.ca

 

Advertising & Fee Issues Working Group
3 Oct 2016

THE LAW SOCIETY OF UPPER CANADA

130 Queen Street West

Toronto, ON

M5H 2N6

Attention: Juda Strawczynski JStrawcz@lsuc.on.ca

Dear Mr. Strawczynski:

Re: Advertising and Fee Issues Working Group, Call for Input

The Law Society of Upper Canada’s Advertising and Fee Issues Working Group is seeking input from the profession. (Ref. https://www.lsuc.on.ca/advertising-fee-arrangements/) Canadian Defence Lawyers (CDL) is pleased to offer the following input.

WHO WE ARE

CDL is an association of civil defence litigation lawyers with members in all Canadian provinces and territories. We speak for a membership of over 1,400 lawyers across Canada. CDL is affiliated with the Defense Research Institute, a U.S. association of defence lawyers boasting over 22,000 members. For the most part, our members’ clients are corporations, including but not limited to insurers, self-insured companies and reciprocal defence associations. Through a Joint Education Committee and Roundtable Committee, CDL has a privileged leadership role in sharing insurance industry information, claims practices and education with the Canadian Insurance Claims Managers Association and the Canadian Independent Insurance Adjusters Association.

Our members in private practice are not precluded from acting for personal injury clients, but none of our members are under the commercial pressures of a volume plaintiff personal injury practice. Perhaps because of the defence practice, our members in centres across Canada are courted for referrals from plaintiff injury firms. Indeed, CDL cooperates extensively with its main plaintiff counterpart, the Ontario Trial Lawyers Association (OTLA). To its knowledge, CDL does not believe any of its members operate as a business model a referral-fee based practice.

CDL members can therefore provide a unique perspective on these emergent regulatory issues concerning the consumer protection, because they generally act for the adversaries of the consumers of personal injury law. Lawyers practising in the area of civil defence litigation are usually acting for sophisticated consumers of legal services. The objective view from across the negotiating table, tribunal hearing room or the courtroom is seldom articulated to members of the plaintiff bar or to the regulator, because of the confidential and closed nature of the institutional defence retainer. The Public will not see CDL members holding scrums for TV reporters at the court house steps publicizing how little their clients had to pay out to someone injured in an accident, or advertising on talk radio stations expressing empathy for their corporate clients. Defence lawyers’ mandate is to contain and reduce claims and litigation, not to encourage demand in the legal market or seek publicity. Our members do not sell litigation, but rather an end to litigation.

Despite the adversarial role our members play in relation to plaintiff personal injury lawyers, CDL members are proud to foster lasting collegial relationships with their plaintiff counterparts as part of striving for just and fair results for the clients of CDL members. The commercial aspects of retail personal injury law do have an impact on our members’ ability to work on litigation efficiently and to settle claims based on objective, evidence-based norms and standards. CDL members are therefore aware of the impact that the commercialization of retail practice has on the legal process.

CDL RESPONSE

CDL’s response to the Law Society’s Questions for Consideration are as follows:

1. Advertising and fees in real estate law.

CDL does not express an opinion on this subject.

2. Contingency Fees

In consulting with our membership, we asked the following questions, with a view to obtaining answers that deal with the topics raised by the Law Society:

How can contingent fee structures, including the total costs associated with contingent fees be made more transparent to consumers at the outset? Should lawyers and paralegals typically operating on contingency fee arrangements be required to disclose their standard arrangements, including their usual contingent rates and arrangements with respect to disbursements on their websites? How is the Solicitors Act operating in practice?

The CDL members responding to our survey voiced the need for greater standardization and transparency, while at the same time respecting solicitor-client confidentiality. One member pointed out that it was not long ago that the Law Society was sanctioning retail law firms for posting their fees for standard services. Indeed, previous strict limits on advertising until late in the 20th century were a paternalistic way of protecting an unsophisticated public from hiring lawyers based on their own ideas of what they wanted in a lawyer. In fact, the limits protected traditional referral networks ("I’ll scratch your back …") and prevented new lawyers, especially women and those from diverse and racialized backgrounds, from directly marketing their expertise to the public. These arguments are part of the historical debate, and there is no need to revisit the basic concept that lawyers should be allowed to advertise as part of the mandate to inform the public about their rights. The right to advertise is a constitutionally protected form of speech, and there is no turning back that clock.

New Brunswick is a jurisdiction in which a standard-form contingency fee agreement has been adopted by the law society. The diversity of cases as well as the established experience with contingency fees in Ontario would likely make a mandatory agreement cause more difficulties than the problems it would solve. Nevertheless, coming at the problem from the consumer perspective, there is a need to overcome a general lack of public understanding of how contingency fee arrangements are regulated under the arcane legalese of the Solicitors Act requirements.

Given that the plaintiff bar has employed widespread conventional formulae for engaging with the defence bar on settlements, there is no reason why the Law Society cannot impose minimum expectations for contingency fee arrangements, in order to level the bargaining positions between clients and law firms when negotiating a retainer. The Law Society can also provide explanatory public information in the form of website information and brochures for use in law offices. This is the type of effort needed to restore public confidence in the balance between the commercial interests of lawyers and the ethical obligations created by lawyers contracting with vulnerable parties.

CDL has watched with interest the class proceedings in Hodge v. Neinstein, where the issue is the ability under s. 28.1 of the Solicitors Act of a lawyer to collect costs in addition to a contingency fee, without prior approval of the court. CDL members have pointed out three (perhaps dissociated) problems with this provision in the Act as currently formulated:

o The requirement for prior judicial approval interferes with the freedom of contract and creates a disincentive for lawyers to work on and advance personal injury claims where liability may be strongly disputed but damages are likely modest. In such instances, the ability to recover a contingency plus partial indemnity costs would reflect fair remuneration for the lawyer’s efforts and allow access to justice for accident clients who do not have permanent or catastrophic injuries. The potential for abuse can be accomplished by reversing the onus from the solicitor to the client, to complain to the court as opposed to requiring prior court approval.

o If costs are paid to the lawyer in addition to the percentage of recovery, the practice offends the indemnity principle of court-awarded costs and thus artificially drives up the settlement value of every claim in which there is a contingency fee arrangement. Claimants and lawyers are encouraged to inflate damage assessments, to employ future care and other damage assessors with an incentive to facilitate inflated claims, and to delay the resolution of claims until after lengthy and costly examinations for discovery.

o There appears to be no consistent standard on the recovery on which the contingency fee is calculated. Is the rate to be applied to damages and interest only, or is it applied to damages, interest and costs? Whatever solicitors and clients bargain for, the result must be fair and reflect the indemnity principle of costs.

These problems also involve potential conflicts of interest between the lawyer and client between the economic interest of lawyers and their clients’ interest in obtaining fair and prompt settlement of claims. Although the responses from our members are, on the surface, contradictory in some respects, they can be reconciled if the unifying law reform goal is to allow solicitors to be paid for their effort in bringing modest claims, without causing inflation of more significant ones. Most likely, the use of a plain-language and standard contract template with multiple options would allow lawyers to adapt permissible contingency fee arrangements to allow modest but meritorious cases to be advanced, while not distorting the economic incentives in the case of cases involving catastrophic damages.

3. Personal Injury Advertising

In consulting with our membership, we asked the following questions, with a view to obtaining answers that deal with the topics raised by the Law Society:

Personal Injury Advertising: Where a significant portion of the revenue generated by advertising is from referral fees, should the advertiser be required to advertise on that basis, making it perfectly clear that the advertiser may not itself provide the legal services and in such a case may refer clients to others for a fee? In the alternative, should advertising for the purpose of obtaining work to be referred to others in exchange for a referral fee simply be banned?

Advertising second opinion services: Do current requirements balance consumer rights with maintaining professionalism around providing second opinions? If not, should the provider of the second opinion who advertises or markets "second opinion" services be prohibited from taking on the cases where a second opinion is given?

Much of the law firm advertising in major centres is geared toward name recognition, not public legal education about their right to pursue compensation from tortfeasors. Indeed, "victims" are often encouraged to sue despite the absence of a legal cause of action against any defendant. It is for this reason that most advertising in public spaces is purchased by personal injury firms and referral firms: to create demand for legal services, not simply to inform the public that legal services are available. Much of it is presented in poor taste. However, regulation of taste has always been fraught with many perils, not the least of which is the wide latitude for commercial speech protected by s. 2(b) of the Charter. Anecdotally, CDL members are aware of concerns among their plaintiff counterparts that questionable advertising by law firms may have the effect of lessening the credibility of lawyers appearing before juries. Most likely, it would be a waste of revenue from members’ levies to police good taste if the plaintiff bar regulates itself through these corrective "market" effects.

CDL members surveyed did express considerable concern over the ethical dimension of advertising by referral or injury brokerage firms. Many were of the view that such advertising should be banned outright, as opposed to regulating the practice. Others expressed the view that the practice should be permitted, provided the public is made aware in a clear manner that the sponsor of the advertising will be making a referral for a fee. The rationale behind the calls for a ban is that of bait and switch, an unlawful commercial practice under competition and consumer protection law. Bait and switch is a concept members of the public readily understand. That lawyers seem to be allowed to get away with a breach of consumer law derogates from the public image of lawyers.

This discomfort would be mitigated if advertisers were required to be clearer in stating their role in the legal marketplace. Transparency would also have the effect of encouraging lawyers to whom referrals are made to establish at least a minimum level of relationship-building and empathy with their clients, as opposed to the impersonal commoditized relationship between a service provider and a referred customer. A personal injury law suit is not like installing a pre-fab kitchen or a ride to the airport. It should not be a commodity, but rather a legal proceeding dealing with people when they are most vulnerable. The reason this is of importance to CDL members is that defence counsel need to engage with their counterparts with some level of confidence that personal injury plaintiffs have some reasonable expectations of possible outcomes of the legal process for the purpose of pretrial disclosure and settlement.

CDL is concerned about advertising for second opinion services in the personal injury field. There is no evidence that consumers of legal services are unaware of their right to consult another lawyer if they are unsure whether their current lawyer is advising or representing them in the best way. Our members voiced the opinion that it appears unethical for lawyers to advertise legal services on the basis of seeding dissatisfaction with clients’ current lawyers. If the Law Society were to restrict advertising of such services on that basis and charge a fee for that service but should not be able to take on the case in which they have given an opinion. Nor should the Law Society permit lawyers to accept a referral fee after a second opinion prompts the client to seek a referral to different counsel.

4. Identification of Type of Licence

The following response has also been informed by responses to the questions posed in Topic #3:

Protection of the public means the elimination of confusion in the legal marketplace. Not only should paralegals identify themselves as such, they should avoid confusing words such as ‘Law Office,’ ‘licensed to provide legal services,’ and the like.

In the personal injury field, there is potential for conflict of interest or disservice where clients might be short-changed into pursuing a smaller claim within the Small Claims jurisdiction when their injuries might in fact require an action in the Superior Court.

5. Use of Awards

The following response has also been informed by responses to the questions posed in Topic #3:

Awards recognizing legal excellence should never be available for sale or tied to the purchase of advertising. The Law Society should investigate the market in questionable awards, not only in personal injury but throughout the legal profession.

CDL itself confers two awards on deserving members:

The purpose of these awards is to recognize and encourage a career based on lifelong service, collegiality and excellence. Commercial concerns to not play a factor in selection. Given the fact that defence lawyers are often called on to take positions that are not popular, there is no element of "people’s choice" or questionable public input based on "likes."

For its part, OTLA confers various awards on members and holds an annual event to celebrate the accomplishments of both plaintiff and defence lawyers (https://www.otla.com/index.cfm?pg=AwardsAndHonours). While it is possible some of the recipients of recognition from OTLA are also recipients of tabloid advertising awards or ‘rate my lawyer’ websites, the lists of recipients do not appear to name lawyers or firms whose advertising appears in public spaces associated with the words ‘Top Rated’ or similar expressions.

There appears to be a disconnect between lawyers actually recognized through real committees of peers, and the lawyers and firms promoting themselves as being highly rated or achieving the best results. If there were not such a divergence between actual deserving lawyers and those advertising themselves as deserving, there would be no need for the Law Society to scrutinize this area of lawyer and law firm advertising. However, this divergence does appear to exist and constitutes a potential harm to the public in diverting consumer choices toward firms boasting about successes and away from those actually achieving them while maintaining a threshold level of professionalism.

6. Referral Fees

The following response has also been informed by responses to the questions posed in Topic #3:

The practice of referral fees remains controversial because it is a safety valve against lawyers holding on to files in which they are out of their depth. CDL members surveyed identified the potential for members of the public to feel deceived if the arrangement is not properly informed of referral fees. Some have recommended putting an end to the practice, while others voiced the view that percentages should be capped.

In order to maintain referral fees for the beneficial purpose they serve, without eroding further public confidence in the provision of legal services in the personal injury sector, the Law Society should require greater information and transparency. Negative public perceptions of professions arise from the notion that someone might be making a secret profit out of a transaction. If there is an active expectation on the part of the referring lawyer, the onus should be placed not only on the lawyer receiving the referral but on the referring lawyer to explain to the client that the referral may result in a financial reward to the referring lawyer, without increasing the overall fee. This type of sharing of information would be seen as invoking a higher level of professional integrity than among realtors, interior designers, and other sectors where referral fees are common but rarely disclosed. The Law Society should also consider caps, either on the rate or the total amount, or some combination of both. This way, the referral fee would compensate the referring lawyer for the commercial value of the referral and the work that goes into a pre-retainer interview, but not more.

Respectfully,

David W. Festeryga

President, Canadian Defence Lawyers

Compiled and prepared by: R. Lee Akazaki Board Member, Canadian Defence Lawyers

CDL welcomes new Board of Directors
31 May 2016

At the CDL Annual Meeting on May 26, 2016, CDL elected a new board of directors for 2016-2017. Click here to see the full list.
 

Deductibility of Collateral Benefits
14 Apr 2016

Basandra v. Sforza, a recent decision by the Court of Appeal, revisits the issue of the deductibility of no-fault accident benefits from an award for tort damages.[1]2

Following a three-week Trial, the jury found that the Defendant was negligent and awarded the Plaintiff damages.  However, the jury questions, as negotiated between Trial Counsel and accepted by the Trial Judge, did not oblige the jury to structure its award of damages in a manner that reflected the requirements of section 267.8 of the Insurance Act, R.S.O. 1990, chapter I.8.  As a result, an issue arose as to how to account for the payment of no-fault accident benefits already paid to the Plaintiff by the Insurer.

Section 267.8 of the Insurance Act, provides that pecuniary damages awarded in a tort action “shall be reduced” by payments that the Plaintiff received as collateral benefits, such as statutory accident benefits including payments for health care expenses and other pecuniary losses. The Trial Judge is therefore required to reduce jury damages awards for pecuniary losses by the amount of collateral benefits paid to the Plaintiff.

Since the Defendant benefits from the deduction of collateral benefits, the onus is on the Defence to show whether and how the reductions should be made.

In that case, the jury awarded the following damages to the Plaintiff:

damages for pain and suffering in the amount of $137,000;
damages for the cost of “past care, medical/rehabilitation and housekeeping” in the amount of $55,000;
damages for the cost of “future care, medical/rehabilitation and housekeeping” in the amount of $50,000;
damages for past loss of income of $45,000.

As the jury questions unfortunately lumped together damages for medical/rehabilitation, attendant care, and housekeeping, it was impossible for the Trial Judge to parse the jury’s award in order to make the necessary statutory reductions on a “benefit-by-benefit” basis.

As a result, the parties moved before the Trial Judge for an Order determining whether and how the lumped-up jury awards of $55,000 for “past loss of care, medical/rehabilitation and housekeeping” and $50,000 for “future care, medical/rehabilitation and housekeeping” should be reduced under the provisions of the Insurance Act to account for the statutory accident benefits received by the Plaintiff for healthcare and housekeeping.

The Trial Judge accepted the Plaintiff’s evidence that he had received a total of $81,658.67 for medical rehabilitation benefits, $58,271.76 for attendant care benefits, and $6,939.84 for housekeeping benefits for statutory accident benefits. These amounts included a 2009 lump sum settlement that allocated $30,000.00 for past and future medical rehabilitation and $5,000.00 for past and future attendant care.  The Trial Judge noted that the 2009 settlement did not set out the respective proportions related to past and future costs. This led the Trial Judge to the conclusion that the jury’s awards for past and future attendant care, medical/rehabilitation, and housekeeping costs should be reduced from $105,000.00 to nil.

The Plaintiff appealed; however, the Court of Appeal dismissed the Appeal.

The Court of Appeal found that the Trial Judge made no error in reducing the award to zero.  The Court further held that the Trial Judge’s decision took into account the objectives of full compensation and avoiding “overcompensation.”

The Court of Appeal reiterated that Trial Counsel must ensure that jury questions are structured to permit the Trial Judge to carry out the reductions required by section 267.8 of the Insurance Act, where that is an issue in the action. Specifically, the Court noted that there should be a separate jury question for each past and future award in respect of each of the collateral benefits listed in section 267.8 of the Insurance Act that may arise in the case. According to the Court of Appeal, “anything less would impair the trial judge’s ability to discharge her responsibilities under the section.”

In this case, the Trial Judge was faced with a mandatory statutory direction to deduct collateral benefits under section 267.8 of the Insurance Act. By comparing the quantum of benefits awarded to the Plaintiff by the jury with the benefits that he had already received, she found that the Plaintiff had been fully compensated for the applicable heads of damage, even though they were “lumped up”.

The decision highlights the importance of clearly delineating between “apples” and “oranges” when calculating damages in a tort action.  While one policy objective of the statutory scheme is full compensation, another objective is to avoid double recovery.  If the specific breakdown of the amounts paid in terms of a lump sum settlement are not entirely clear, the Plaintiff runs the risk of having the entire amount deducted from the damages awarded to avoid over compensation.

Leanne Zawadski is a partner at Lerners LLP and an active Member of Canadian Defence Lawyers

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