We are proud to announce that Patrick Brown and Dale Orlando have been recognized for their excellence in the practice of plaintiffs personal injury law in the 2014 edition of Lexpert ®, Canada’s Legal Lexpert ® Directory.
The Canadian Legal Lexpert ® Directory is considered the pre-eminent peer review-based directory of legal practitioners in Canada. Recommendations for lawyers in the annual publication are based on an exhaustive peer review survey. It identifies leading lawyers in 64 areas of practice across Canada.
Special congratulations go to John McLeish, who since its inception has been named to Lexper t® and who has achieved its highest ranking of “Most Frequently Recommended”.
Find out more at www.lexpert.ca.
On December 9, 2011, Convocation identified as a priority for the coming year the examination of Alternative Business Structures (ABS) as a means of delivering legal services in Ontario. Based on the contents of the first report to convocation of the ABS working group (June 27, 2013) and numerous comments at the Law Society’s ABS symposium in October of last year, some form of ABS is likely to be approved in Ontario in the coming months, and that will likely have implications for the personal injury bar. ABS is a term that applies to any form of non-traditional business structure designed to deliver legal services to the public and includes such things as non-lawyer investment and ownership of law firms as well as bundling the delivery of legal and non-legal services within a single practice. The four models of ABS that are being considered by the LSUC are:
- Multidisciplinary Practice with up to 49% non-lawyer ownership
- Multidisciplinary Practice with over 50% non-lawyer ownership
- Law practice with up to 49% non-lawyer ownership
- Law practice with over 50% non-lawyer ownership
The driving force behind the movement towards ABS as a means of delivering legal services seems to be centred on the notion of facilitating access to justice. It is noted in the last LSUC Annual Report that as many as 70% of litigants are unrepresented in some court houses across the province. The apparent lack of affordability of legal services is paradoxically coupled with statistics that show some solo and small firm practitioners are facing increasing financial difficulty in maintaining their practice. ABS are seen as a means of enhancing competition and driving down the cost of legal services while also promoting innovation in a field that is seen by many to be antiquated. The LSUC makes it clear that their mandate is to protect the public interest in relation to the provision of legal services and not to protect lawyers.
In order to determine the likely impact of some form of ABS on the practice of personal injury law in Ontario, it is important to review the experience in other jurisdictions that have already embraced ABS as a means of providing legal services. Australia was an early adopter of ABS followed by the UK. The experience in these jurisdictions reveals that most of the of ABS firms practice predominantly in the personal injury sector. The biggest example of this is the firm of Slater Gordon, the first publicly traded law firm that got its start in Australia. It now boasts 66 offices across the country and spends 12 to 13 million dollars annually on television and pay per click advertising.
If full blown public ownership of personal injury law firms is allowed in Ontario, it is clear to me that firms that intend to continue to practice in the area will have to make dramatic changes in the way they do business if they intend to survive and compete. I expect to see consolidation of much of the personal injury work into large, well-funded firms with multiple offices across the Province. Ask the owners of all of the small hardware stores what happens when the Home Depot decides to open in their community. Consolidation will be necessary to match the type of investment that large entrants to the field are likely to make. Personal injury lawyer advertising, which has seen a significant spike in the past several years, will continue to grow in prevalence and importance, likely to the detriment to the profession at large. I suspect the ratio of lawyer to non-lawyer employment in the remaining firms to be heavily skewed in favour of non-lawyers with lawyers being restricted to only doing the work that non-lawyers cannot. The prosecution of claims within the firms will by necessity be heavily system driven with very little decision making being made on the front lines. There is a risk that quarterly profit reporting to the board of directors will inform the claims handling decision making process.
I question the necessity and advisability of adoption of the ABS model for personal injury practice. There is an abundance of personal injury lawyers in the Province competing for the available work. Access to justice simply is not an issue since the vast majority of plaintiff’s personal injury lawyers charge clients on a contingency fee basis meaning that meritorious claims of all sizes are readily accepted without clients having to worry about upfront retainers or ongoing payment based on unaffordable hourly rates. The competitive nature of the practice also ensures that the percentage of recovery charged by counsel remains reasonable. Likewise, since most personal injury lawyers charge a percentage of their client’s recovery, there is already incentive to become as efficient as possible. Conversely, if the majority of the personal injury market is controlled by a small number of firms, there is a risk that the lack of competition will lead to firms charging a higher percentage of recovery.
This article orginally appeared in the June 27, 2014 issue of The Lawyers Weekly published by LexisNexis Canada Inc.
Case Summaries provided by: Rikin Morzaria, OTLA Director and personal injury lawyer practising with McLeish Orlando LLP.
Sant v. Sekhon, 2014 ONCA 623
The Ontario Court of Appeal dismissed an appeal by a transport truck driver from a jury verdict. The transport truck driver had entered an intersection on a green light and hit a pickup truck that ran a red light. The jury found the pickup truck driver 95% liable and the transport truck driver 5% liable.
The transport truck driver argued that there was nothing in the circumstances that should have alerted him to the fact that the pickup driver was going to run the red light, and accordingly no basis on which the jury could find negligence.
The Court of Appeal dismissed this ground of appeal on the basis that there was witness evidence and engineering evidence from which a jury could infer that a reasonably prudent driver should have been aware of the hazard posed by the pickup truck.
The Court of Appeal did find that plaintiff’s counsel line of questioning in which he repeatedly asked the transport driver whether is lawyers had instructed him to provide particular answers was improper since its only purpose was to suggest that the transport driver’s evidence had been fabricated. There was no basis for that suggestion. However, this improper conduct did not rise to the level of being “sufficiently serious to undermine the fairness of trial or put the validity of the verdicts into real doubt”. Accordingly, the Court of Appeal dismissed the appeal. Read the full case on CanLII.
Mitusev v. General Motors, 2014 ONSC 2342
This was a motion for summary judgment by the defendant, Johnson Controls. The action arose out of a single vehicle collision. During the course of the collision, the injured plaintiff’s seatback failed. The plaintiff alleged that the failure was the result of a defective recliner mechanism, which was defective both because of its design and its material composition. Johnson Controls was the manufacturer of the seat, but not the recliner mechanism. It brought its motion on the basis that there was no act or omission on its part that could be characterized as negligent. More specifically, it argued that it played no role in the design, manufacture, or assembly of the recliner mechanism, or even in the selection of the mechanism for inclusion in the seat. The plaintiffs argued that Johnson Controls was unable to produce many of the relevant documents surrounding testing of the seatback or recliner, or of any corrective action taken to address concerns raised by such testing.
Justice Edwards dismissed the motion for summary judgment. He found that it would be open to a trier of fact at trial to infer that Johnson Controls, in its capacity as manufacturer of a completed seat, was negligent, and that there was a defect in the seat when it left Johnson Controls’ manufacturing plant. In arriving at this conclusion, Justice Edwards noted that, “Juries are told every day that they may draw reasonable inferences from the evidence even though there is no direct evidence on a particular point.” Read the full case on OTLA.com.
On July 15, 2014, Bill 15 was introduced in the Legislative Assembly of Ontario. The stated aims of the bill are to protect Ontario drivers, tackle fraud, and reduce costs and uncertainty within the auto insurance system. If passed, the bill would further the Liberal government’s goal of a 15% reduction in auto insurance rates within the next two years.
While the changes proposed by the bill may be well intentioned; the implications of the bill are cause for concern for injured individuals and for the rehab community.
One reason for concern is the transformation of Ontario’s auto insurance dispute resolution system. Under Bill 15, FSCO would no longer oversee the adjudicative process for SABS. Instead, the power would be placed in the hands of the Licensing Appeals Tribunal. Much of the transitional and opting out rules remain largely undefined and the changes also include the removal of the right to sue on all SABS disputes.
A second reason for concern is the proposed reduction of prejudgment interest rates from 5% to 1.3%. The current rate of 5% was set back in 1990. The proposed reduction is intended to link prejudgment interest to current market conditions. With such a significant reduction, long-standing criticisms of the application of simple interest, as opposed to compound interest on prejudgment calculations becomes all the more valid.
You can read Bill 15 in its entirety by visiting the Legislative Assembly of Ontario’s website. Those opposed to the changes are urged to contact their MPP as soon as possible.
Families from across Canada, travel to the Hospital for Sick Children, so their kids can receive the specialized treatment that only SickKids Hospital can provide.
These families face a number of financial challenges. This is because public health insurance only covers a fraction of the expense that a family incurs when a child is hospitalized. Families are often overwhelmed by travel, hotel, and restaurant expenses. As well, for working parents, there is often a significant loss of income.
McLeish Orlando has helped these families meet their financial hurdles. The firm has done so by contributing over $15,000.00 to the Carole Harrison Trauma Fund at SickKids Hospital.
The Carole Harrison Trauma Fund is named after a social worker who made a tremendous impact on the trauma unit at SickKids Hospital. The fund is designed to ease the burden of those parents whose child is being treated at the trauma unit at SickKids Hospital. Money from the funds is provided to families to help defray expenses while their child is recovering.
Examples of where money from the fund is used include helping with the purchase of equipment: like motion walkers, bath chairs, shower chairs, protective helmets, collars and rental wheel chairs.
Patients’ families have also been provided with meal vouchers, clothing, and accommodation at places like the Ronald McDonald House.
McLeish Orlando is proud to support SickKids trauma patients’ and their families.
Brett Babcock had a bright-looking future as a competitive trampolinist. Brett moved from Kingston to Edmonton to train with a new gymnastics club. He was perfecting his technique. Brett was on track to compete at the national and international levels.
This all changed on October 1, 2012. During a training session, while attempting a triple back pike dismount, Brett under rotated and struck his head on the landing mat during his third rotation. He could not feel or move his legs. The fall caused irreparable damage to his spinal cord. At that instant, Brett’s career as a competitive gymnast was over.
Brett was rendered a quadriplegic. He spent over a month in an acute care hospital and several more months after that in a rehabilitation hospital.
While rehabbing, Brett turned his mind back to competitive sports. He made the decision to pursue track and field. Early in 2014, Brett entered the Paralympic Committee ParAthletics Grand Prix in Switzerland. He competed in the 100m, 200m, and 400m wheelchair races, as well as the discus and club throws. He then competed in the 2014 Track and Field Championships in Moncton, New Brunswick. Brett set a Canadian record in the F51 quadriplegic club throw.
Through hard work, dedication and perseverance, Brett has achieved significant athletic success. In September, Brett began his first year at Carleton University and hopes to continue with his athletic endeavours.
Congratulations Brett. There are no limits to what you can achieve.
By: Josh Nisker
Google’s autonomous (self-driving) car has received quite a bit of attention recently, with some media outlets predicting that the technology will be used in Canada by the year 2020.
Certainly, there are limitations to the technology that will need to be addressed before the product is brought to market. For instance, Google’s self-driving cars cannot be operated in inclement weather conditions such as snow or heavy rain. In addition, the car’s sensors cannot differentiate between a potential road hazard (such as a rock) and a non-hazard (such as a crumpled paper bag), and so the car will swerve around each. While the car can detect a pedestrian in the street, it cannot detect and respond to a police officer waving from the side of the road to direct traffic in an emergency.
Assuming these technical issues are remedied and the product is successfully (and safely) brought to market, accidents will still happen. However, our current laws are ill-equipped to deal with an automotive landscape where cars are self-driven by computers rather than controlled by human operators. For instance, how can a “driver” be held responsible for an accident when he or she did none of the driving? The system, it seems, would require comprehensive reform: either injured parties will have to look exclusively look to vehicle manufacturers, programmers, and municipalities for fault in motor vehicle accident claims, or we will have to set aside issues of liability entirely and turn to an expanded no-fault scheme.
While manufacturers and computer programmers continue to work away, lawmakers and insurers will be carefully looking over their shoulders.
By: Alison Burrison and Odette Ansell
Now that we are well into September and another school year has started, seas of yellow school buses are once again active in our neighbourhoods. School buses can be quite large and make frequent stops, picking up and dropping off students at their homes and schools throughout the day. While it is always important to share the road with pedestrians, cyclists, and other vehicles, it is vital to ensure that you know the law and proper courtesy required when driving around school buses.
In honour of the autumn season and the children in our communities heading back to school, we want to share our top five tips to help you appropriately share the road with school buses. By following these rules, you can help ensure that everybody stays safe this school year, including school bus passengers, pedestrians, other drivers, and you. Read more of this article »
Interview with: Rikin Morzaria of McLeish Orlando & Personal Injury Alliance Published in: The Toronto Metro Newspaper – August 27, 2014 issue
Q: If someone is injured in a car accident and believes they may be at fault, do they still have a case for damages?
A: In many cases, yes. If a person is negligent, they can still recover damages or financial compensation based on the degree of the other party’s fault. Even if the injured person is 100 per cent to blame for the accident, there are no-fault accident benefits called statutory accident benefits. If it’s a catastrophic injury, the benefits can be substantial, up to $1 million for rehab.
Q: Why is retaining a qualified personal injury lawyer so important?
A :Personal injury cases of a serious nature, especially at-fault cases, are extremely complicated and lengthy. Read more of this article »
We are proud to announce that John McLeish, Dale Orlando and Patrick Brown have been selected by their peers for inclusion in the 2015 edition of Best Lawyers in Canada ® as leading legal practitioners in Personal Injury Litigation.
Best Lawyers in Canada® is the oldest and most respected international peer-review publication in the legal profession. Lawyers who are recognized demonstrate a high level of respect amongst their peers for their abilities, professionalism and integrity.
Congratulations to all of the lawyers who were selected to be included in the 2015 edition of Best Lawyers in Canada®.