SR Vol 24 No 5, October 2006 - Nova Scotia Barristers' Society

C o n t e n t sVOLUME 24 | NO. 5 | OCTOBER 20064 From the Editor’s desk5 The President’s View7 BriefstheSocietyRecordis published six timesannually by theNova ScotiaBarristers’ SocietySuite 1101-1645Granville StreetHalifax, NS B3J 1X3(902) 422-1491Copyright ©2006Mailed under CanadaPost publicationsagreement number4006925511 Business as Usual? — Cindy Locke— Three lawyers weigh in on life after the cap— John Rafferty, Q.C.— Anna Marie Butler— Oliver Janson14 A Thorny Issue — donnalee Moulton16 LIANSPullout section — Vol. 31, No. 4 Nova Scotia Law News18 Why We Should Care — Barry Mason20 The Lay of the Land — Ches Crosbie, Gary J. Bigg, and Ed Montague24 The Fine Art of Creating Crisis — Susan Hanrahan26 LAP27 You be the JudgeC o n t r i b u t o r spage 11 page 18page 24 page 27Return undeliverableCanadian addresses to:PublicationsAdministrator,Nova ScotiaBarristers’ SocietySuite 1101,1645 Granville StreetHalifax NS B3J 1X3lneily@nsbs.orgJohn Rafferty, Q.C., is apartner at the Truro firm ofBurchell MacDougall. One ofhis practice areas is PersonalInjury.Anna Marie Butler, fromthe Halifax firm of Wagner& Associates, practisespersonal injury litigation witha preferred area practice inserious motor vehicle claims.Ches Crosbie is a St. John’s lawyerseen as a leader in the fields ofpersonal injury law and medicalmalpractice. He is also pastpresident of the APTLA.Gary Bigg is the FoundingSecretary, Past President, andHonourary Lifetime Member ofThe Alberta Civil Trial LawyersAssociation. He practises law inCalgary, Alta.Susan Hanrahan is the Chair ofthe Nova Scotia Coalition AgainstNo-Fault Insurance and ExecutiveDirector of the Nova ScotiaDesigner Crafts Council.Kim Richardson practices inLower Sackville. His two-memberfirm, Richardson’s Law Office, isa general practice with emphasison litigation and real estateEditor:Pam Sullivanpsullivan@nsbs.orgGraphic Design:Lisa Neilylneily@nsbs.orgNOVA SCOTIABARRISTERS’SOCIETYwww.nsbs.ns.caOliver Janson is a Digbylawyer practising personalinjury, real estate, corporateand family law.Barry Mason is a partner withPresse Mason, practising inthe area of plaintiff personalinjury law. He is leadcounsel on the constitutionalchallenge to the Auto Insurance ReformAct (Hartling et al. v. The Attorney Generalof Nova Scotia) and is the Presidentof the Atlantic Provinces Trial LawyersAssociation.Ed Montague is a Richmond,B.C. trial lawyer with anemphasis on personal injury,insurance and employmentlaw. He is governor andpast-president of the Trial LawyersAssociation of British Columbia and aBritish Columbia representative to theAssociation of Trial Lawyers of America.Ritchie Wheeler is the foundingpartner at the Dartmouth firmWheeler Serbu. His practiceprimarily involves civil litigation.Sean Layden is a partner at theDartmouth firm, Boyne Clarke.He practises in the area ofPersonal Injury law.October 2006

ThePresident’sViewCourse; one which is meant to allow the student to gently easeinto the practice of law and have some type of clue as to what heor she will be facing when meeting with a client for the first timeand actually taking carriage of a file. The exams require preparationand knowledge in order to be able to pass them (as opposed to the“Citadel Hill” experience).Despite the fact that the program is now significantly better than itwas in the past, the Society continues to look at ways in which toimprove it. At this time, the Credentials Committee of the Societyis reviewing the Skills Course in order to recommend suggestionsto Council as to how it can be improved: by streamlining certainprocesses, focusing on other issues, and the like.The Discipline Process has taken on an entirely different format fromyears ago. One of the most significant developments was openingup formal hearings to the public. Although there was a great deal ofdiscussion on the subject by Council, and a certain reluctance fromthe membership, it was ultimately agreed upon [by Council] that theonly true way for the public to appreciate that the process was workingin their interest was to actually allow them access to the proceedings.I think it is fair to state that this decision has not been abused, and, ifanything, has made the process much more transparent, overall.Irecently had the honour and pleasure of speaking to the first yearlaw class at Dalhousie Law School. When I walked through thefront doors of the Weldon Law Building, it brought back fondmemories (mainly) of what it was like when I first entered there. Italso gave me an opportunity to reminisce about what has transpiredsince then, especially in light of the fact that I have a Law Schoolclass reunion scheduled shortly (the number of years since I havegraduated unfortunately escapes me at this particular time).Many people, including lawyers, do not have a proper appreciationof the mandate of the Nova Scotia Barristers’ Society. It is specificallylegislated in the new Legal Profession Act that our primary obligationis to govern in the public interest. It is interesting to note both thechanges as well as the similarities between now and the time when Iwas first admitted to the Bar.One of the most notable differences is the Bar Admission Course.When I took that course as a prerequisite to being admitted to theBar, it involved a six-week experience, some of which was spent onCitadel Hill on a nice sunny fall day making pictures out of theclouds in the sky. The instructors of the course did their best to teachyou what was required in order to pass the Bar exam. Having saidthat, if the questions and answers were not specifically spoon fed toyou, the instructor would do things — such as lift a watch up in theair as he was reading a certain section of the materials — to alert youto the fact that this would be included as one of the exam questions.Needless to say, this was more of a vacation than an actual education.Little was gleaned from this process, and it did little or nothing toprepare you for becoming a lawyer.Today, we have a much more enhanced skills-based Bar AdmissionThe entire professional responsibility process was revamped a numberof years ago. When I sat on Bar Council several years ago, there wasDiscipline Subcommittee A and Discipline Subcommittee B. Whenone Committee referred a matter on to a formal hearing, it was simplysent over to the other Committee, which would constitute a panelto hear the complaint. These days, there is an independent formalHearing Committee which operates totally separate and distinct fromthe Complaints Investigation Committee (CIC). Other significantchanges include allowing Society staff to dismiss complaints (wherewarranted) without it going to the CIC, and an appeal process whichhas been implemented for complainants who are not happy with thedecision of staff and wish to have it reviewed.These are but a few examples of the many changes the Society hasgone through [over the past few years] in working towards fulfillingits legislative mandate of protecting the public. Having said that,many of the new programs and processes — though implementedin the interest of the public — have also had the added benefit ofassisting lawyers. One should not view those two concepts as mutuallyexclusive. On the contrary, there is a considerable amount of overlap.Very often, the initiation of a new project intending to protect thepublic will also help lawyers in their day to day practice.Council intends to continue to advance the various items on theAnnual Plan which will ultimately result in the desired effect of bothprotecting the public and providing tools and assistance to lawyers intheir practice.Philip J. Star, Q.C.October 2006

TMThe new Quicklaw,Visit www.lexisnexis.ca/newquicklawor call 1-800-387-0899.Watson.The legal professional’s most faithful companion.Power your research with the latest investigative technology. Faster, smarteraccess to the authoritative information you need.• A General Search form to power searchacross all subscribed content or multiplecontent types• Content-specific search forms to targetspecific content types such as court decisions,tribunal cases, legislation, and more• Alerts and Legal Update services to stayinformed and prepared• Dynamic display options and results filtering tobetter view, sort, and organize search results• Recent searches and document history tokeep track of important searchesLexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Quicklaw is a trademark of LexisNexis Canada Inc. © 2006 LexisNexis Canada Inc. All rights reserved.The Society Record

BRIEFSc a l l t o t h e b a r — s e p t e m b e r 2 0 0 6Christine Doucet, transfer applicant, with family (L-R) Bernice Doucet-Pearce,Angela Parr, Richard Doucet, Christine, Betty Doucet, and Richarda DoucetJames MacDuff, with sister, Kathryn, and parents Janet and JackPresident Philip J. Star, Q.C., with James MacDuffThe Society Record

BRIEFSc a l l t o t h e b a r — s e p t e m b e r 2 0 0 6Would you like tosee the new guy?Gina Lohnes, transfer applicant, with parents Eugene andWendy, and fiance, Paschal UzochukwuWhen Guy Spavold joined us, we knew he’d be busy,because in the often fast-paced world of commercialand corporate law, he’s a star. Details orientedand a skilled problem-solver, he knowsclients want answers given and problemssolved... now. Would you like to see the newguy? Visit our web site, or better still, callGuy. We know he’d like to see you.Planning and counsel fortax, estates and business.1791 Barrington Street, Suite 300,Halifax, Nova Scotia B3J 3K9T 902.425.3500 F 902.425.6663baxterharris.comTricia Barry, transfer applicant, with husband Sean (left),and brother Alec WarrenderOctober 2006

Christine DoucetAtlantic Canada’s Legal RecruiterProviding recruitment and human resources servicesto legal professionals seeking new career opportunitiesand to firms and organizations that need them.Christine Doucet, llbTalentworks Inc.5248 Morris Street, Halifax, NS B3J 1B4T: (902) 491-7603 | F: (902) 491-7610christine.doucet@talentworks.bizwww.talentworks.biz | www.comehometons.comCertified Court Reporters for:Federal Court of Canada TrialsTax Court of Canada TrialsTransportation Appeal Tribunal HearingsNova Scotia Utility and Review Board HearingsExaminations For DiscoveryWe provide daily transcripts upon requestWe have extensive overseas experience.We do not charge expenses for Toronto area discoveries.PROFESSIONAL CourtREPORTING ANDTRANSCRIPTION SERVICESServing the legal community since 1983Drake Recording Services Limited1592 Oxford StreetHalifax, Nova Scotia, B3H 3Z4ph: 1-902-421-1913fax: 1-902-422-6336e-mail: mark@drakerecording.comCall us Toll Free: 1-866-421-191310 The Society Record

Personal Injury Lawyers –Business As Usual?In nearly four decades of practice Walter Newton has handledhundreds of personal injury claims for people involved inmotor vehicle accidents. But after the provincial governmentintroduced the soft tissue injury cap three years ago, the Kentvillelawyer watched his personal injury caseload all but disappear.“There is a big empty space of cases that used to be so common,”says Newton, owner of the Newton Law Firm. “I used to see aboutfive cases a month. Now I see maybe half a dozen a year.”Luckily for Newton he was able to fill his practice with other areasof law and says his business hasn’t suffered from the decrease inpersonal injury work. But, while he hasn’t been dramatically affectedby the legislation, he feels that those unfortunate enough to beinvolved in an accident today are in much worse shape than theywould have been before the cap was introduced.“The average person today who is injured in a car accident is worseoff, with no chance to recoup their losses,” says Newton.Bedford lawyer, Barry Mason, says he definitely saw a drop in his personalinjury cases after the cap, but in spite of that is busier today thanhe was three years ago. He agrees with Newton that while some lawyersmay have felt a pinch as a result of the legislation, it’s those whohave been injured in an accident who have suffered the greater loss.“Some of these people are facing significant discrimination,” saysMason, a partner at Presse Mason.Mason feels that the reduction in personal injury cases across theprovince is largely due to the fact that many people don’t thinkthey have a right to fight the cap and will often settle for whatan insurance adjustor offers. Mason also believes that a fear ofrepercussion keeps people from going after the insurance companies.“I think that people got nervous about advancing claims becausethey thought it would increase their rates,” says Mason. “Peoplewho have been involved in a motor vehicle accident who may besignificantly injured are settlingclaims themselves, sometimes for lessthan $2500.”Cindy LockeFreelance WriterMark Dempsey, a partner at Power Dempsey Cooper & Leefe inBridgewater, says his workload was reduced significantly after theintroduction of the cap and it forced him to shift his focus to otherpractice areas.“My personal injury case load is 80 per cent less. It has had a majorimpact on my practice,” says Dempsey, adding that while he madea successful transition to other areas of law, not all personal injurylawyers were able or willing to do so.“I know of lawyers who have left the province or gone togovernment because of the cap. Some have left the practice of law.”Like Newton and Mason, Dempsey worries most about the effectthe cap has had on people who have been injured. Dempsey saysthe broad definition of a ‘minor injury’ set out in the legislationencompasses between 90 and 95 per cent of people who are injuredin car accidents.“The definition is so far reaching,” he says. “There is nothing minorabout the injuries some of these people receive.”In the first year following the introduction of the cap, Mason saysthe number of claims dropped dramatically. But he says he hasnoticed an increase in claims recently and expects that as time goesby more people will challenge the legislation.The possibility of an increase in cases may translate into newpersonal injury work for lawyers. Newton says he believes lawyersstill have an important role to play in the personal injury process,because many people don’t understand their rights and may settlewithout fully understanding what they are entitled to be paid.“No one wants motor vehicle accident litigation to be a cash cow,but there has to be representation for injured people.”October 2006 11

Business As Usual? Three lawyers weigh in on life after the capJohn Rafferty, Q.C.Burchell MacDougall, Truro, NSsuspect that my experience withI personal injury claims since theamendments to the Insurance Actand regulations is no different thanthat of any other personal injurylawyer. The number of claimantscontacting me for advice has dramaticallydropped. I inform thosewho do contact me about the newreality since tort reform and the legal issues surrounding thecourt challenge to the validity of the amendments. I tell themthat if the challenge to the legislation is not successful, thereis unlikely to be enough money recovered to justify the substantiallegal fees which may result from the management of allaspects of their claim. These people are then confronted withthe uncertainties of whether their injuries, some very serious,will nonetheless be “minor injuries” as defined in the Act and,if so, whether the Act and Regulations will withstand the legalchallenge currently being mounted. Typically, the tort claim thengoes into a “holding pattern” pending resolution of their injuriesand of the challenge.While claimants wait for their injuries to heal or reach a plateauwith varying amounts of chronic difficulties, they often have anumber of other legal issues which require immediate attention.They may need help with their Section B auto insurance claims forboth medical benefits and loss of income. They may be entitled toprivate disability insurance benefits, employment insurance, CanadaPension, Workers Compensation, or disability insurance onloans or other benefits. They often need help coordinating thesebenefits where there is an overlap, especially with Section B benefits;the rules for and interrelationship between these programscan be a maze.When a person injured in a car accident seeks my help, they typicallydo not have the financial ability to pay my regular hourly rateto assist with these ancillary issues. Even if they do, the legal costsare often greater than the amounts in dispute. In the past, adviceand legal services on all of these matters was generally providedwithout charging a direct fee, recognizing that our time would berecouped in the contingency fees charged for the tort claim. NowI undertake to provide a base level of service, without a realisticexpectation of payment, because the individuals are in need. I seethis as an access to justice issue.I believe the legislation has delivered a double whammy to bothpersonal injury litigators and the injured. For the lawyer, fees generatedfrom personal injury files have largely dried up. In addition,much of the new work is done pro bono or at greatly reduced rates.For the injured party, not only are they denied a recovery appropriateto their pain and suffering, but, because they often do notbother to seek legal help, they deal with the indirect consequencesof their injuries alone and without adequate information.Anna Marie ButlerWagner & Associates, Halifax, NSSince the cap legislation andregulations were introduced,practising motor vehicle personalinjury cases has become full ofuncertainty, but also challenge andopportunity.The uncertainty relates to our clientsand the advice we give them.It’s difficult to explain that we have to “wait and see” for theresults of the ultra vires constitutional application and/or definitioncases to evolve. We would all prefer to give more specificguidance and counsel than we can right now.I believe the legislation and regulations discriminate againstwomen, children, the elderly, persons with psychological injury,and generally those less fortunate. People who may fall underthe cap for damages are left waiting. The people whom the legislationmost affects are people that in the past persevered in spiteof barriers, and they continue to do so. They are very acceptingof the “wait and see” advice I am so uncomfortable giving. However,the fact is that the cap of $2,500 is so low, there really is verylittle for them to lose by waiting.Persons with severe injuries clearly outside the cap are facedwith allegations that their injury may fall under the cap despiteoverwhelming evidence to the contrary. Applications for partpaymentsand negotiation to resolve a severe injury case are oftenan exercise in futility.Our clients are the victims of careless drivers. The cap legislationre-victimizes the client with all degrees of injury for the benefitof big business profits. Every person who has been or might beinjured in a motor vehicle accident is at risk, which leaves everymember of the public vulnerable to the legislation.As lawyers we have an obligation to challenge this victimizationand imposition on the public’s right to make a claim. This obligationgives us all the opportunity and challenge we are trainedto take. Whether it is the constitutional challenge or arguing thata case is not “minor”, we are going to have to work, think, andchallenge ourselves more than we have in the past. Every barrierbrings opportunity, with this being no exception, as it’s exciting tohave the opportunity to stand up for people’s rights.Members of the Bar have stepped forward to take the challengefor the purpose of public interest. Barry Mason will be arguingthe Application regarding the ultra vires constitutional challenge.He deserves much credit for taking on such an immense task.Before the cap, getting lost in the daily grind of practising in thisarea could lead us to question whether or not what we do matteredor made a difference. When the Nova Scotia Government in-12 The Society Record

troduced the cap legislation, it forced many of us to go back to thebasic rationale behind the purpose of Tort law. When a person’srights are impinged and limited in the area in which you practice,the importance of that daily grind is highlighted.While there are detractors who will say lawyers are looking out fortheir own interests, (as impacted by the cap legislation) it helps topoint out that the detractors, their friends, family, and neighboursare all vulnerable to the legislation. No one is immune.Life after the cap, while full of uncertainty, has brought a renewedsense of purpose to the practice.Halifax’s BigBattleof theLawyerBandscap, I’ve received four.Oliver JansonBarrister & Solicitor, Digby, NSconduct a general practice inI Digby, Nova Scotia, part of whichincludes personal injury. Thereare approximately 10,000 peoplein the area and only a few lawyersstill practising personal injury law.Prior to the cap coming into effect,I would get a call approximatelyonce every six weeks, since theMost of the injuries would not warrant years of litigation. As istypical of a small town mindset, people would downplay theirinjury and it was often difficult to get an accurate sense of howtheir injury had affected them. Medical reports would often helpsubstantiate a claim.What most concerns me with respect to the cap is that if I wasgetting a call once every six weeks, and am now getting essentiallyzero, where have all the clients gone? It appears thatthey’re either seeking advice out of town or settling for the$2,500, when in fact their injury could be much worse, and warranta much larger settlement.The work that I used to receive as a result of personal injuryhas not been able to be made up in other areas. There are onlyso many property transactions and wills to execute in a smalltown. I have tried to become more efficient in my office andcut down on expenses. I have lowered my projected billings inorder to be able to budget for the upcoming fiscal years. At theend of the day though, the billings are not able to be recovered.It appears to me that the public have been done a disservicewith the cap as they are no longer pursuing legitimate personalinjury concerns and are instead settling for $2,500.In support ofMarch of Dimes Canada’s Conductive Education Program,with proceeds going directly to Haligonianchildren with physical disabilities.Come see bands fromStewart McKelvey Stirling Scales, McInnes Coopeand Cox Hanson O’Reilly Matheson as they compete forbragging rights as Halifax’s best legal band!Thursday, Oct. 26/06the Marquee Clubhalifax, NSDoors open at 6 pmTickets are $20 each and can be purchased at the door,through March of Dimes at 1-800-263-3463, ext. 7380,or through TD Bank branches throughout HRM.The evening includes great entertainment,great food, and a live auction!For more information on the event, contactChip Sutherland (444-8468) or Marc Belliveau (420-3343)Thanks to our sponsors:The Home ofRock n RollThe Home ofRock n RollOctober 2006 13

a Thornyissue14 The Society RecordFor at least three years now, Canadian drivers and insurancecompanies have been tussling over automobile insurance premiums.The former are demanding lower-cost options; the latter, Freelance Writerdonalee Moultonprofits. Governments are caught in the middle, and scrambling to introducelegislation and programs intended to appease both groups but that rarely end up satisfying either.In 2003, the Nova Scotia government enacted Bill 1, the Automobile Insurance Reform Act, which placeda $2500 cap on minor injuries. “Basically your injury had to be permanent and serious,” says Barry Mason,a partner with Pressé Mason in Bedford.John Hamm’s minority government got no support for its legislation from either the NDP or the Liberals.A compromise sealed the deal. The Liberals agreed to sign off on the new law if a third conditionwere attached to the definition of minor: that the injury must resolve within 12 months. Subsequently,however, the government introduced a regulation that essentially stipulated that unless the injury waspermanent and serious, it was “resolved.”“It really took away the whole concession,” says Mason.It also opened the door for legal action. The Bedford lawyer is currently lead counsel for three partieschallenging the provincial legislation on the grounds that it is discriminatory and unconstitutional. Anultra vires motion is expected to be heard this fall, and the legal community is watching with interest.Indeed, says Ray Wagner, “there is a lot of chaos in the system right now. Lawyers are now stockpilingcases. Clients are in limbo. Some cases are clearly outside the cap, but the others, we’re waiting on.”Both Mason and Wagner are confident of victory. “It’s against fundamental democratic principles,” saysWagner. “The rules of engagement were changed in a back room.”The only case to deal with the Charter implications of a threshold/no-fault auto insurance scheme is Hernandezv. Palmer (1992), 15 C.C.L.I. (2d) 187 (O.C.J. G.D.). In that case, however, the court determinedthat there was a replacement entitlement. “Here we have just a straight replacement of rights,” says Wagner.On the discrimination issue, the lawyers are looking to Nova Scotia (Workers’ Compensation Board) v.Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 for support.The focus in this case was on compensation for two injured workers who developed chronic painand were subsequently denied benefits. The Supreme Court of Canada concluded that, “The differential

treatment is discriminatory. It is discriminatory because it does notcorrespond to the actual needs and circumstances of injured workerssuffering from chronic pain, who are deprived of any individualassessment of their needs and circumstances. Such workers are, instead,subject to uniform, limited benefits based on their presumedcharacteristics as a group.”Chronic pain is a thorny issue and at the heart of Nova Scotia’s cap.Do caps work? According to George Jordan, who was appointed inApril 2003 as the province’s first consumer advocate on auto insurance,(a position he held for two years) the caps are working well forinsurance companies but not for people with chronic pain.The other thorny issue at the heart of the debate is profit. Opponentsof the cap are quick to point out that insurance companies foughtfor restrictions on auto injury payments claiming that their ability tomake a profit was seriously affected by escalating payouts. That claimdid not seem to hold up over time. As Liberal leader Francis MacKenzieproclaimed during last summer’s election, “The Canadian (insurance)industry has posted recordedprofits of $16 billion in the last threeyears; $2.3 billion in the year theconservative government took awaythe rights of many Nova Scotians tofair compensation.”Linked to the profit question wasa promise, albeit an ephemeralone, that premiums would declineas costs to insurance companiesdropped. It is difficult to determineif this has happened (to any extent)for a number of reasons, including the fact that governments oftendid more than introduce a cap or deductible in an effort to combatescalating prices. Clearly though, if premiums are down, they arenot down significantly and in no way mirror the significant profitsrecorded by the insurance industry. According to the Financial ServicesCommission of Ontario, for example, in the first quarter ofthis year the average rate for automobile coverage, where there was achange, dipped by only 0.71 per cent.Nova Scotia is not alone in its journey to court, or in its attempts tolimit – in some fashion – auto accident injury claims. Most provincesnow have some form of restriction for compensation in place:PEI and New Brunswick have a cap equivalent to Nova Scotia’s,while Alberta’s cap for minor injuries is $4000. Caps are challenged,and criticized, primarily because they limit payouts without takinginto consideration individual circumstances.Newfoundland and Labrador swerved to avoid this controversialapproach by implementing a $2500 deductible, which reduces everypain and suffering payment, regardless of type or extent of injury,by this set amount. For someone awarded $2000 in damages, thedeductible would effectively wipe out their award. For someoneawarded $70,000 in damages, however, the deductible would onlyreduce their payout to $67,500.It may sound like a reasonable approach, but George Sweeney, OppositionCritic for Government Services in Newfoundland andLabrador, contends the deductible is not working. “It is evidentthat government’s $2500 deductible scheme has not provided the“Clearly though, if premiumsare down, they are not downsignificantly and in no waymirror the significant profitsrecorded by the insuranceindustry. ”necessary limit on claims paid by insurers in the province,” he says.“It is time for government to reevaluate its decision to reject the recommendationof the Public Utilities Board to up the deductible to$10,000 or implement a $2500 cap as used in other provinces.”Veering even further afield in an effort to grapple with auto insurancecosts is Ontario, which has introduced both a threshold and a$30,000 deductible. According to an Ontario Ministry of Financewhite paper, the threshold requires that a victim’s injuries exceed acertain level before they can sue for pain and suffering. The “verbalthreshold,” as it is called in the province, necessitates that a personhas sustained a “permanent serious disfigurement” or a “permanentserious impairment of an important physical, mental or psychologicalfunction”. Once the threshold is met, $30,000 is then deductedfrom any payout.“What is being done on the backs of Ontario motorists is an outrage….The simple fact is that Ontarians are being milked to feed the insuranceindustry’s greed for record profits,”says Russ Howe, immediate pastpresident of the Ontario Trial LawyersAssociation.At the other end of the spectrumis B.C., which has a public autoinsurance system and where thereis no legislated cap, deductible orthreshold. Payment is determinedby negotiation or in court.Nova Scotia’s cap is now beingchallenged in court. A similar legal challenge is under way in Alberta,and New Brunswick lawyers are poised to take legal action.It seems likely Ontario will follow suit and test the legality of thethreshold and deductible in court.One of the people looking forward to seeing the issue tested in thecourts is George Jordan. It is, he believes, the only way the controversywill ultimately be resolved. At the very least, an uneasy trucemay be reached.October 2006 15

LIANSEffective Intake Procedures - Part IIby Deborah E. Gillis, Q.C.Risk and Practice Management AdvisorMy previous Society Record article addressed the importanceof a good conflicts checking system in an effective intakeprocedure. Equally important is your initial interview. This isyour opportunity to screen cases and clients unsuitable to you, therebygreatly reducing your risk of an errors and omissions claim.At the intake stage conduct an in-depth interview to determine if this isa client and a matter that you want to accept. Listen carefully to whatthe client is saying, and not saying. Ask probing questions to learnmore about the client and the matter. Determine the potential client’sexpectations and assess the reasonableness of those expectations.Explain the legal process in detail, including the range of possibleoutcomes, timelines, fees, retainers and ongoing payment schedules.Before accepting a new matter, evaluate the cost and the risk to you ofthis client and this matter. Also evaluate if:• you are qualified to handle the matter• you have the time and resources to handle the matter, givenyour current case load and your other professional and personalresponsibilities• the client’s expectations are attainable• the client is willing and able to pay for your services• the client is someone you want to work with and forSome clients and some client matters are not the right ones for you.Recognize and listen to that negative gut feeling you get when you firstinterview a potential client.Use your best judgment but generally decline a client who:• has unreasonable motives or a hidden agenda• resists paying the required consultation fee or retainer• has unreasonable expectations about the outcome, cost or timeinvolved• wants you to guarantee a particular outcome• has a negative attitude towards lawyers• doesn’t take responsibility for his or her own actions and arrivesat your door at the last minute and expects immediate attention“• doesn’t want to accept an objective evaluation of the case• wants to eliminate necessary steps in the presentation of thecase to reduce costsAt the intake stage conduct anin-depth interview to determine ifthis is a client and a matter that youwant to accept. ”This type of client is generally high maintenance and crisis producing. Heor she consumes a lot of your time and energy and may be slow in payingif they pay at all. Claims against lawyers are frequently filed by this typeof client.If you choose to represent this type of client, use appropriate safeguardsto reduce your risk. Be extra vigilant in documenting all meetings andconversations. As with all clients, write detailed letters confirmingadvice given (including possible outcomes) and instructions received.If you choose not to represent a potential client make this very clear,and do so in writing. Declination letters are crucial to effective riskmanagement. Return any documentation received from the client at theend of the interview or with your declination letter. If there is a relevantlimitation period, advise the client of it and advise them to immediatelycontact another lawyer if they wish to pursue the matter. Keep thecontact information, declination letter, and interview notes.Sample declination letters will be posted on the LIANS website atwww.lians.caDeborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for LIANS. She maybe reached at 423-1300 ext. 345 or at dgillis@lians.ca16 The Society Record

October 2006 17

Why We Should CareIt is pretty clear that the principle of equality was not a majorconsideration by the Nova Scotia Provincial Governmentwhen it passed the Automobile Insurance Reform Act. The Act,which was passed on October 30, 2003, establishes a “cap” on nonmonetarylosses for automobile accident victims suffering “minorinjuries”. In effect, Nova Scotia motor vehicle accident victims whosuffer certain types of pain and discomfort are limited to generaldamages in the amount of $2500, while others who suffer differentinjuries or suffer injuries from different types of accidents (e.g.slip and fall accidents, medical negligence, train accidents, etc.) arecompensated in full. Why the government decided to discriminateagainst certain Nova Scotians is not entirely clear, however, what isclear is that the Legislation discriminates against certain accidentvictims and has decimated the rights of some of the most vulnerablemembers of our community.Why care about the Provincial Government’s attack on the rights ofaccident victims? After all, the Tories say the cap only affects a fewpeople with “minor injuries”. Further, the Government argues, thecap was needed to make insurers profitable, which inevitably has ledto lower insurance premiums for consumers.Let me tell you why all members of the Bar should care.Sixteen months ago I met with Melissa Gionet. Melissa, a youngwoman in her early 20’s, was involved in a car crash in Decemberof 2003 which was not her fault. Melissa, however, who was sevenmonths pregnantat the time of the Barry Masonaccident, was left Presse Masonwith chronic lowback pain following the accident. She was unable to return to work.Melissa could not take care of her new child in the most basic ways -holding, lifting, feeding or bathing her daughter all produced severelow back pain. Melissa had to rely on her parents to help her lookafter her baby.Melissa was approached by an insurance adjuster in January of2005. According to the adjuster her claim was capped under the Act.While the cap was $2500, that amount, according to the adjuster,was reserved for only the most serious injuries. Melissa’s injuries, accordingto the adjuster, were not that serious. Therefore the insurerwas prepared to offer $1900 – take it or leave it.Melissa, without the benefit of legal advice – she thought it wouldcost too much to hire a lawyer and believed the adjuster – acceptedthe offer and signed a release.Today, as a result of her loss of income Melissa has been forced togive up her apartment and move in with her parents. She is still unableto return to her previous work on a full- time basis.Melissa, once an independent young woman, is now left with chronicdisabling low back pain and is dependent on her parents and family18 The Society Record

to look after her and her child. Despite her life altering losses, she hasreceived compensation in the amount of $1900 for general damages.I hear Melissa’s story re-told by accident victims almost on a dailybasis. Vanessa, a woman in her early 20’s who sustained a serious kneeinjury in a car crash (which was not her fault) was offered $1500 bythe insurer to settle her case. Vanessa,according to her orthopedic surgeon,will likely need knee replacementsurgery in the future. Helen, a 62-year-old woman who sustained severeneck and shoulder injuries in a motorvehicle accident following a car crash(which was not her fault) has notreturned to work, and according toher physicians will not be able to returnto work. Every aspect of her lifehas been negatively affected. Helen’sclaim, according to the adjuster,falls within the cap. These are just a few on the many Nova Scotianswhose rights have been decimated by the cap.But insurers were on the brink of bankruptcy in 2003 and were goingto leave the province if substantial reforms (by the way the term “reforms”is always used as a euphemism in this context for taking awayinnocent victims rights) were not implemented, therefore the cap wasnecessary, right? If these “reforms” were not implemented, premiumswould skyrocket and no one would be able to afford auto insurance.However the insurance industry’s own figures prove the opposite.The Insurance Industry turned a profit of over $2 billion dollars in2003 (a record profit at the time), $4.2 billion dollars in 2004, followedby $6.2 billion dollars in 2005. In Nova Scotia, dealing simplywith private passenger auto insurance and based on IBC’s greenbook figures, insurers have earned profits in excess of $450 milliondollars over the past four years. Oh yeah, and premiums – they havedropped a mere 8 per cent between 2003 and 2005.The cap has led to record windfall profits for insurers at the expenseof accident victims in Nova Scotia. Consumers have not benefited.The Tories have decided to turn a blind eye to these facts, repeatedlysaying their “reforms are working”. This is true, if your purpose isto gauge consumers, take away legal rights of accident victims, andpermit insurers to make obscene profits. But for accident victims thelegislation has been devastating and that is why, in my view, the BarSociety needs to get involved.“...I know, up on top youare seeing great sights, Butdown at the bottom we, too,should have some rights.”applications and three case management conferences, we are now ina position to move forward with the application to quash the cap inthe near future.The Government of Nova Scotia turned its back on accident victimsby implementing and maintaining its stand on the cap. In theprocess, the rights of some of themost vulnerable members of ourDr. Seuss, U.S. author,said by a plain turtle named Mack, Yertle the Turtleprovince, i.e. accident victims, havebeen sacrificed. But who will standup for accident victims?It has been said many times that TheBarristers’ Society’s primary duty isto the public at large. In my opinion,the Society owes a duty to accidentvictims to get involved in this case.That involvement could take variousforms – from actively intervening inthe application to supporting the application through funding for theretention of experts, or both. However, sitting on the sidelines waitingfor this issue to be resolved is not an option. Like Mack the Turtle, it istime for us to speak out, Raise the Bar, and protect the rights of NovaScotians who have been abandoned by the Government. As accidentscan happen to anyone, you never know, it may be your rights, or therights of someone you love, that you may be protecting!Mr. Mason is a partner with Presse Mason, is the current President of the Atlantic ProvincesTrial Lawyers Association, and lead counsel in the constitutional challenge of theAuto Insurance Reform Act, Hartling et al. v. Attorney General of Nova Scotia.We’ve MovedI have been retained by three accident victims and the CoalitionAgainst No Fault Insurance to challenge the “minor injury cap” setout in the Auto Insurance Reform Act. The cap is being challengedprimarily on the ground that the legislation discriminates againstcertain individuals suffering distinct types of pain and is therefore aviolation of my clients’ section 15 Charter equality rights. There isa further argument that the legislation places significant hurdles foraccident victims to overcome, thereby denying their right of accessto justice - contrary to the Charter. Certain Regulations passed pursuantto the Act are being challenged on an ultra vires basis (i.e. thatthe Regulations are inconsistent with the Act).The application has been filed, and following three interlocutoryYour one-stop shop has moved. So what’s different?Nothing. We’ll still pickup and deliver any order while offeringthe same great print and legal copy service you’ve come to expect.E-mail us at info@fusionprint.ca for a pickup or call 442 5031.FuSion PriNt + imagiNg26 Crane Lake DriveHalifax, Nova Scotia B3S 1B4t 902 442 5031 f 902 420 9357e info@fusionprint.ca w fusionprint.caOctober 2006 19

The Lay of the LandThree lawyers from across the countyreport in on the state of automobile insurance in their home provinces.Ches CrosbieChes Crosbie Barristers, St. John’s, NewfoundlandLawyers are governed by a code of professional conductand by rules of court which require that fees shall befair and reasonable. But the business world operatesunder no comparable restraint. There are no excessive profits,and corporate profits are never high enough. So it is with theinsurance world.In the insurance world, the drive for unlimited profit expressesitself through the ideology that claims are out of control.Not only has the public grown more “claims conscious”,but juries have been affected by the virus, with the resultthat judgments are being rendered for larger and largeramounts. The number of awards in automobile accidentcases, personal accident actions and public liability cases hasalso steadily increased.This familiar refrain has a contemporary ring, but it comes from thecover of Canadian Insurance, February 28, 1939!Not so long ago, tort law suffered many infirmities. In a speechreprinted in the November 2003 edition of the Newsletter of theAtlantic Provinces Trial Lawyers Association, the Honourable R. RoyMcMurtry, Chief Justice of Ontario, recalled that when he was calledto the bar:…tort law was in bad shape. There were many rules andeconomic factors that made it very difficult for injuredpeople to succeed in litigation. Tort law also often favoreddefendants. For example, there was a guest passenger lawthat denied all recovery to gratuitous passengers againsttheir drivers. There was no compulsory auto insurance law.Damage awards were generally puny and there were manyimmunities. It was very difficult to get expert witnesses inmedical malpractice cases and harder to succeed. Limitationperiods were short and strictly enforced.In the last quarter of the twentieth century, a tort renewal occurred,and this renewal duly provoked a strong backlash from the insuranceindustry and a legislative attack on claimants’ rights. In AtlanticCanada, the attack peaked in the last five years.Many tort lawyers in other Atlantic Provinces look enviously atcomparatively modest infringements of auto injury claimant rightsimposed by the Newfoundland legislature in 2004. The chief of theserestrictions is a $2,500 deductible on all pain and suffering claims, lostwages recovered 100 per cent of net, collateral source compensationdeducted from the recovery, and minimum reduction of damages by25 per cent for failure to wear a seatbelt.Beginning in 2001, the insurance industry launched three successivecampaigns for auto tort rights restriction in Newfoundland. Thefirst two campaigns gained proponents among politicians, butfailed for lack of public support. The third campaign resulted in therestrictions above. The reason for these insurance industry failuresin Newfoundland was not that Newfoundland politicians weremore receptive to rights-based arguments or backroom lobbyingthan politicians elsewhere. The reason was that an effective coalitionagainst no-fault, composed of numerous organizations, includingAPTLA, waged successful campaigns for public support to preservetort rights, and the politicians smelled which way the votes lay. Thecoalition’s success in defending the civil justice system by shapingpublic opinion is illustrated in the conclusion of an editorial from theSt. John’s Telegram, Saturday, April 10, 2004:The only real way to cut insurance costs is to reduceaccidents. And we forget that at our peril.For the insurance industry, all awards are too high, and all access to20 The Society Record

justice is too much. Canadian constitutionalism may yet provideprotection against these ambitions by invalidating some legislativeassaults on civil justice. But where the winds of public opinion blow,politicians will follow. As Thomas Payne once said, no man’s life orproperty is safe when the legislature is in session. Civil justice is abouttruth, and organized voters armed with the truth about civil justiceare the surest bulwark against oppression.taskforce of the Canadian Bar Association and ACTLA was successfulin persuading government that no-fault insurance was not a solutionwhich Albertans would embrace at the polls. Calls for reform wouldbe largely dormant for the rest of the decade.The cyclical nature of the insurance industry was well-described byProfessor Mark Rahdert as follows:Because certain monopolistic pricing practices are legallypermitted in the insurance industry, it responds to changes inthe business cycle in a unique fashion. When times are good,insurers compete intensely with one another for market share,attempting to attract the maximum number of premiumdollars to invest for those high returns. This competition drivespremium prices down, sometimes to artificially low levels,which insurers rationalize with the prospect of handsomeoffsetting investment returns. When, however, the economyturns sour and return on investment plummets, insurers thatmay have deliberately under-priced their product duringboom times fall back on their ability to engage in legalizedprice collusion, raise insurance premium rates sharply, andthus attempt to restore profitability. During these bad timesthe insurers always find it convenient to blame, not their ownprevious investments or marketing strategy, but the courts andtort doctrine, for the need to raise premiums.Mark C. Rahdert, “Covering Accident Costs: Insurance,Liability, and Tort Reform”, 1995Gary J. Bigg, LLBFounding Secretary, Past President and Honourary LifetimeMember of The Alberta Civil Trial Lawyers AssociationUntil the 21 st century, the process of legislative reform in thelaw of automobile insurance in Alberta was relatively inactive.Wedged between provinces with public automobile insurancecarriers, Alberta had, in 2003, in excess of 125 private property andcasualty insurers, all but three of which were foreign-based. Accordingto Insurance Bureau of Canada figures, for that year, the property andcasualty industry in Alberta had 10,622 employees, and $3.7 billion ofinvested assets.In contrast, on the plaintiff’s side of the personal injury bar, the AlbertaCivil Trial Lawyers Association was inaugurated in the mid-1980s,modelled on the Trial Lawyers Association of British Columbia. Thestated mission of TLABC and ACTLA was to further educate themembership on trial practice, and foster the science of jurisprudence.By 2003, ACTLA’s 600 members had become well-equipped to aidAlberta citizens in accessing adequate compensation.On the defence side, the defence bar was well-served by ongoingcontinuing legal education from the provincial branch of theCanadian Bar Association. Indeed, in the early 1990s, when no-faultinsurance was being advocated by the insurance industry, a jointPressure on premiums in the early 21 st century lead the global privateinsurance industry to increase premiums in those markets in Canadain which they were able to do so without government regulation. Byselectively raising premiums on certain categories of drivers, notablythe young, political pressure was brought to bear on legislators toaddress the need for reform.When the incumbent government in New Brunswick narrowly escapedlosing office on the issue of auto insurance premiums, the AlbertaGovernment went into action. Unlike the Public Royal Commission(the “Osborne Report”) which pre-dated the advent of no-faultinsurance in Ontario in the early 1990s, the Alberta Governmentmet behind closed doors in caucus to decide on a package of reforms.They then established an Implementation Committee, which did notcontain representation from victim’s rights groups, or the plaintiff’sBar. The Implementation Committee met with various stakeholdergroups to fine-tune the policies, the results of which were confidential.After being voted down by a Standing Committee of the Legislature, apackage of revised reforms was presented to the Alberta Legislature inthe fall of 2003, and passed without widespread public debate.In legislation affecting all motor vehicle collisions after January 26,2004, any claims for income loss would henceforth be net of incometax. Collateral benefits and other subrogated losses, with certainstatutory exceptions (such as workers’ compensation benefits) wouldhenceforth be deducted from awards for lost income and cost of care.In more comprehensive changes effective October 1, 2004, “minorinjuries” as defined by regulation, would have non-pecuniary damagescapped at a maximum of $4,000. Associated pecuniary losses wouldstill be recoverable, with full access to the courts to recover those losses.October 2006 21

It is curious that the maintenance of access to an impartial tribunalwas recognized for pecuniary losses arising from minor injuries,while eliminating the means of getting there for the non-pecuniarylosses. Claimants electing not to follow the new medical protocols asprescribed by regulation, would be deemed to have sustained a minorinjury, with the resulting legislated restriction on compensation fornon-pecuniary loss to a maximum of $4,000.The Canadian Bar Association had commissioned, prior to thelegislation, an independent study performed by Deloitte & Toucheto determine whether upward pressure on premiums was driven bythe increase in bodily injury payouts. In a report dated September16, 2003, based upon Insurance Bureau of Canada data, the authorsconcluded that, adjusted for inflation, claims costs had in fact beenfalling on a per vehicle basis since 1999.system provides. Moreover, a fair analysis of all of the evidenceindicates that any perceived benefits to business from its tortreform initiatives will be largely, if not totally, illusory.Daniel J. Capra “An Accident and a Dream:Problems with the Latest Attack on the Civil JusticeSystem” 20 Pace L.Rev. 339, 340 (2000)The legal profession, on both sides of the Bar, should increase itsefforts to educate right-thinking members of society in positionsof authority to understand why the tort system is the best modelfor loss allocation, and to reject the calls for quick fixes. And judgesand politicians should be encouraged to recognize that our legalinstitutions are not perfect, but need respect for opposing viewpointsto remain in balance.The Deloitte & Touche report was withdrawn from public scrutinyunder pressure from the Toronto partnership of Deloitte & Touche,concerned about the loss of fee revenue from insurance company clientsof the firm. The Canadian Bar Association complained to the Instituteof Chartered Accountants of Alberta. In hearings held in Edmonton inJune of 2006, the Institute exonerated the Edmonton authors of thestudy, but disciplined the Central Canada partnership of Deloitte &Touche for having “acted in conflict of interest in compromising theinterest of a client in favour of the perceived interests of other clients,self-interest, or both.” The firm was fined $40,000.The insurance industry has continued to report record profits. For theyear 2004, those profits were reported in Thompson’s Daily InsuranceNews Service on March 16, 2005 to be $4.2 billion in Canada aftertaxes. This was before the effects of the reforms in Alberta and theMaritime Provinces came into being.The impact on the practising Bar has been widespread, and as mightbe expected, largely negative. The effect of the reforms has been torelegate “minor injury” trauma victims to a trivialized status. Noexplanation has ever been offered on why non-pecuniary damageswere arbitrarily reduced in all minor injury cases to a set figure of$4,000, other than to justify “premium stabilization”. A constitutionalchallenge is before the courts, based on S.15 of the Canadian Charterof Rights and Freedoms.In commenting upon the report of a New York business groupadvocating tort restrictions, Professor Daniel Capra stated:The Public Policy Institute’s case for tort reform is not basedon fact. It is simply another part of the onslaught on publicopinion, generated by tort reformers, to create a mindset thatthe tort system is out of control. The attack looks at the costsof the tort system, but not its benefits. It is a carefully craftedattack, ostensibly looking at what is good for society, but onclose analysis focusing only on corporate financial benefits tobusiness. The attack of tort reformers favors cost savings overquality and emphasizes the corporate bottom line over safety.Any arguable savings to business caused by the tort reformsposed by PPI will not benefit society in the long run. Suchchanges would simply shift the cost of the current system toother places, such as a system of social insurance, withoutgiving nearly the same benefits to victims that the currentEd MontagueCampbell Froh May & Rice LLP. Richmond, British ColumbiaIn contrast to the no-fault juggernaut that has significantlyeroded the rights of innocent accident victims in the AtlanticProvinces, and more recently in Alberta over the past few years,British Columbia consumers have managed to retain the right to fullcompensation for personal injuries caused by the negligence of others,with no soft tissue caps or thresholds, while maintaining insurancepremiums among the lowest in Canada for comparable coverage.This has been accomplished under the public auto insurance schemeestablished by the provincial government in 1973 with the creation ofthe Insurance Corporation of British Columbia (ICBC), a provincialcrown corporation which provides universal auto insurance to B.C.drivers. ICBC is a virtual monopoly, in that B.C. drivers are requiredto buy their base auto insurance policy (Autoplan) from ICBC, and canonly purchase optional and additional coverage from outside privateinsurers. The basic Autoplan policy provides a minimum of $200,000third party liability coverage, a healthy component of no-fault accidentbenefits (including up to $150,000 in medical and rehabilitationbenefits and up to $300/week in total disability benefits), a minimumof $1,000,000 in underinsured motorist protection (UMP), and a22 The Society Record

maximum of $200,000 in uninsured/hit-and-run coverage. MostB.C. drivers supplement their basic Autoplan coverage by purchasingincreased third party liability coverage (most have at least $1 millionthird party coverage) and collision coverage (to cover repair coststo their own vehicle when the collision is their fault). The optionalcoverage can be purchased either from ICBC or private insurers.“... there are no compellinggrounds to justify changes tothe B.C. system that woulderode victims rights throughcaps, thresholds, or otherno-fault models.”There have been a numberof initiatives over the yearsto introduce no-fault autoinsurance into B.C., the mostrecent of which was in 1996-97, when the B.C. governmentof the day, in conjunction withICBC, pushed hard for a changeto a full or modified no-faultscheme, ostensibly in the interestof keeping increasing claimscosts and premiums down. Thegovernment was ultimately influenced to abandon its no-fault plans,largely due to public pressure from various sectors, spearheaded bythe Coalition Against No-Fault in B.C., a broad-based consumersinterest coalition which grew from a small core of 5 organizations toover 200 groups at the height of the no-fault campaign in 1996-97.The B.C. government instead decided to refocus its efforts on trafficsafety and road improvement measures, including such things as agraduated licensing program for new drivers of all ages, rather thanimplement sweeping changes to the insurance system.Despite the incessant “sky is falling” rhetoric from auto insurers whoargue that the tort system is unsustainable, and that curbs on victimcompensation in some form of no-fault auto insurance are necessaryto keep claims costs down and premiums affordable, the B.C.experience has proven that affordable comprehensive auto insurancecan be provided without depriving accident victims of the right tofull compensation under the tortsystem, and while still allowing for ahealthy profit margin to the insuranceprovider (ICBC’s posted profits forthe past 3 years have averaged inexcess of $200 million/year).On a visit to British Columbia atthe request of the Coalition AgainstNo-Fault in B.C. in December 1996,noted U.S. consumer advocate, RalphNader, described ICBC as “one of thegreat auto insurance innovations inNorth America”, and one that should not be tampered with. Giventhe strong financial performance of ICBC within the tort system,there are no compelling grounds to justify changes to the B.C. systemthat would erode victims rights through caps, thresholds, or otherno-fault models. Accordingly, while we remain vigilant of the nofaultphoenix which seems to arise periodically from the ashes everyfew years, we are hopeful that the current system in B.C. will not betampered with for the foreseeable future.CAs do so much more.Sometimes even great teams need more skill and more ability. That’s what you get with Chartered Accountants. CAs bringsuperior financial expertise, strategic thinking, business insight and leadership to become an integral part of the team.Give your team an edge. The CA advantage.To learn more about the Institute of Chartered Accountants of Nova Scotia visit www.CAadvantage.caOctober 2006 23

The fine art ofcreating crisisIt was in the February 2003 issue of CI: Canada’s NationalInsurance Magazine in an article entitled “The ImpoverishedPolitics of Automobile Insurance Reform” that GeorgeAnderson, a former president of the Insurance Bureau of Canada,wrote: “What is really needed is a crisis in pricing on the eve of anelection. That is the opportune time, or so it seems, for change.”Opportune indeed… for the insurance industry. In the leadupto the provincial election in August 2003, the insuranceindustry did all they could to try and convince the Nova Scotiaprovincial government to change from the existing tort system tosome variation of a no-fault system for automobile insurance. Inpresentations to the NS Utility and Review Board, the insuranceindustry claimed it was in a financial crisis. The story becameheadline news after insurance companies dramatically raisedpremiums for auto insurance, claiming the increases were justifiedbecause the industry was losing money, and adding that premiumswould continue to rise unless government passed legislationrestricting the rights of people injured in auto collisions. Someinsurance companies threatened to leave Nova Scotia entirely if theirdemands were not met.The topic became a hot button in the 2003 Nova Scotia provincialelection in which the Progressive Conservatives were returned topower, albeit as a minority government. Following the election, theinsurance industry continued to lobby, and lobby hard, for legislativechange resulting in the passing of the Automobile Insurance ReformAct (Act) andthe AutomobileInsuranceTort RecoverySusan HanrahanChair, NS Coalition Against No-Fault InsuranceLimitation Regulations (Regulations) which passed into law on 30October 2003. The Coalition wasn’t happy with this new legislationsince it capped compensation for certain injuries sustained in autocollisions, but we reluctantly accepted the definitions as outlined inthe Act and Regulations as being a lesser evil than the introduction ofa no-fault system. Less than one month later, Cabinet radically alteredthe Regulations so as to deny victims of auto collisions the protectionthat had been set by the Law Amendments process, and agreed uponby vote of the full Legislature, of a reasonably and coherently definedconcept of “minor injury”. My first question upon hearing that newswas “Can they do that?”It appears that, perhaps, they cannot. The Coalition, togetherwith some individuals who have been affected by these legislativechanges, has given notice that we intend to challenge the Act andRegulations on both Constitutional and Charter grounds. Notonly do we believe that the Regulations were amended withoutproper legislative authority, but we also believe that the legislationdiscriminates against certain categories of people, and peoplesuffering from certain types of pain. This challenge is moving ahead.In the three years since the 2003 election, it has become patentlyclear that the insurance industry had no need to cry poor. The24 The Society Record

three years since November 2003 have seen record-breaking profitsfor the insurance industry in Canada; profits of $16 billion dollars(profit amounts obtained from the Office of the Superintendent ofFinancial Institutions Canada, www.osfi-bsif.gc.ca). Over this sametime, many injured people have lost their rights to any compensationfor pain, suffering, and loss of enjoyment of life. It now seems clearthat insurance companies have benefited more from the legislativechange enacted in 2003 than consumers, and certainly more thanvictims. Some policy holders may have benefited from a slightreduction in premiums, but those reductions were short-lived andamounted to significantly less than the original premium increases.With record-breaking profits rolling in, there was no need forthe insurance industry to generate a “crisis in pricing on the eveof an election” in the most recent provincial election. Indeed,having benefited from the most advantageous and industryfriendlylegislative changes possible, the insurance industry keptsilent in the days leading up to the election hoping that theissue of auto insurance stayed off the radar of the average NovaScotian. However, I have spoken with many individuals who havebeen hugely adversely affected by the current Act and Regulations,and I continue to hear from individuals and organizations whosupport the work of the Coalition. We will continue to fight for fairaccess to justice for all Nova Scotians.The Coalition is a citizen-based organization. Members include more than 16,000individual Nova Scotians, representing the Brain Injury Association of Nova Scotia, theNova Scotia Provincial Injured Workers’ Association, Canadian Pensioners Concerned, theNova Scotia Designer Crafts Council, the Atlantic Provinces Trial Lawyers Association,the Halifax Seniors’ Council, the Nova Scotia Seniors Safe Driving Committee, the Townof Mulgrave, and the Federal Superannuates National Association, NS Region.MassageTherapyRoma McInnisBSc. Kin., RN, RMT7037 Mumford Road, Halifax, NSPH (902) 453-1525 | FAX (902) 453-1571located within PERFORMANCE PHYSIOTHERAPYI n s o lv e n c y c o n s u lta n t s / t r u s t e e s I n B a n k r u p tc your experIenced, understandIng team offersdiscreet advice tailored to suit your clients’personal and business financial difficulties.• free initial consultation• after hour appointments• competitive pricing terms• regular travel to your areaHalifax (principal office)1718 Argyle Street, Suite 620, Halifax, Nova Scotia, B3J 3N6Phone: 902-425-3100 Fax: 902-425-3777E-mail: insol@goodmanrosen.ca Toll-Free: 1-800-337-5764sitting (l-r): Bruce MacLeod (Estate Manager), Shawna Bertin (Estate Administrator), Paul Goodman (Trustee), Mark Rosen(Trustee), Judy Hill (Trust Account Manager), Darlene Coolen (Office Manager) standing (l-r): Pat Charlton (Administrator),Shelley Clee (Administrator), Jim Whittaker (Estate Administrator/Marketing Manager), Kim Burke (Estate Manager), BudRedmond (Estate Manager), Daniel Pink (Administrator)Sydney (non-resident trustee office)295 George Street, Suite 301, Sydney, Nova Scotia, B1P 1J7Phone: 902-539-9850 Fax: 902-539-5373E-mail: insol-sydney@goodmanrosen.ca Toll-Free: 1-888-666-5764w w w. g o o d m a n r o s e n . c aAPPoiNTmENTS HEld iN vAriouS locATioNS THrouGHouT mAiNlANd NovA ScoTiA & cAPE BrEToNOctober 2006 25

After discussing the situation with the LAP Advisor, a referralcan be made to an appropriate community agencyor private counsellor qualified to address the identifiedconcerns.It is generally acknowledged that the sooner assistancebegins, the more effective it will be.What is LAP?LAP stands for Lawyers Assistance Program. It is an informational,confidential referral and counselling serviceprovided through the Lawyers’ Insurance Association ofNova Scotia. LAP is designed to assist members of the legalprofession, their staff and families who may be experiencinghealth or personal problems.Why do Nova Scotia Lawyers need anassistance program?Like anyone, lawyers who experience emotional or personaldifficulties may be unable to resolve their problemson their own, and may find that their personal happiness,work performance or physical health is affected. ThroughLAP, they will receive assistance to find satisfactory solutionsto their problems.What types of problems does LAP dealwith?The source of a problem may be work-related or personal(family, marital, drug, alcohol or gambling).When should I consider contacting LAP?You might consider contacting LAP if you feel as thoughyour problems, or those of someone you know, are becomingoverwhelming and out of control. Some symptoms thatcan appear if emotions or problems get out of controlinclude mood swings, sleeplessness, lack of appetite, poorconcentration, apathy, or anger.How can I access LAP’s services?To get assistance, call 1 866 299 1299 from anywhere inNova Scotia, 24 hours a day. You will not be asked to identifyyourself.Will my call be confidential?Information is not provided to anyone or any organizationwithout your permission. The issue of confidentiality canbe discussed with the LAP Advisor to establish limits forsupport and protection. Your right to privacy is respectedand strictly observed.Who will I speak with when I contact LAP?You will speak to the LAP Advisor. The LAP Advisor is anexperienced counsellor who will carry out an assessmentand, if necessary, refer you to outside counsellors for theassistance required. The LAP Advisor will also be able torefer you to an LAP volunteer for peer support. LAP’svolunteers are members of the legal profession, manyof whom have overcome personal difficulties and subsequentlyvolunteered to help others.Is there a cost for assistance receivedthrough LAP?There is no cost to use LAP. If you are referred to a privatecounsellor through LAP, the cost of five sessions willbe covered by LAP. Billing will be through the LAP Advisorto ensure confidentiality is maintained. The LAP Advisorwill also follow up with the referrals to ensure adequatetreatment is received.26 The Society Record

You bethejudgeQ:Earlier this year, Alberta decided to place restrictions on the way lawyersadvertise and promote their services. Should Nova Scotia follow suit?The Law Society of Alberta recently revised theirCode of Professional Conduct to restrict lawyer ad-A :vertising. In their words, “the L.S.A. is committed toensuring the public has access to legal services, whilerequiring that lawyers advertise their services in a professional manner.”Tactics such as the use of dramatic or graphic scenes, emotionalappeals, or hawkery are specifically prohibited.Without knowing what the Alberta experience has been, we must behesitant to criticize the actions of their society. However, garish andsensationalist promotion has not been a problem in our province, andI would argue that similar action is unnecessary here. We already havestrict advertising standards of long standing. Regulations under the oldBarristers and Solicitors Act, recently incorporated verbatim in the LegalProfessions Act regulations, require our ads to be among other things,“of a dignified nature, in good taste...”. They also remind us to avoidself-aggrandizement. Our Legal Ethics Handbook, Chapter 20 “SeekingBusiness”, expands on this, and to a large extent already prohibitsthe very type of conduct the Alberta Rules seek to prevent. We mustnot, for instance, raise unjustified expectations, misrepresent experienceor competence, nor compare quality of service with that of otherlawyers. Nor may we exploit the vulnerable or traumatized.Ad content for any business or profession includes, by nature, ethicalconsiderations. Our Society has an ethics committee which coulddeal with any perceived transgressions. A quick look at the HalifaxMetro Yellow pages amply demonstrates the conservative approachof lawyers in this province. Nowhere is there any sign of repulsiveKim RichardsonRichardson’s Law Officeor offensive self-promotionalong the lines which the Albertachanges seem to address.Much of our ad content is informational,the very sort of advertising that the Alberta approachencourages.We are a relatively small, congenial Bar, already keenly aware of thepublic perception of lawyers. I would suggest that there is an implicitunderstanding in our profession that hawkery just won’t work here.Ask around to see what people thought of the Jim “The Hammer”Shapiro ads from Rochester a few years back. Radio and T.V. spots areexpensive as well, and given the market size, it is not surprising thatour advertising tends to be limited to print media.Few of us would seriously argue that we aren’t highly regulated already.More restrictions should be a response to a problem. If it ain’tbroke, don’t fix it. Ours is an increasingly specialized profession, andthe public needs and deserves some means to assist in making informedchoices of counsel. Eye-catching ads help serve that purpose.The former dry approach of publishing what amounted to businesscards is simply insufficient in the modern era. While some “puffery”is inherent in such a medium, we all know we aren’t selling soap, andin my view the advertising efforts of Nova Scotia law firms reflectthat sense of decorum and professionalism. A bit of harmless hyberbole,carried out with restraint, actually promotes our efforts to fosterrespect for the law and our role in it. After all, if we can’t say goodthings about ourselves, who will?October 2006 27

You bethejudgeA:Some of you will recall when Nova Scotia cable televisionswitched from Maine based stations to Detroitbroadcasts. Not only did we lose Dick Stacey’sCountry Jamboree, debatably a good thing, but wealso got a feet first introduction into how some lawyers did businessin the big city. I particularly recall a late night commercial aired byone Detroit law office offering a free bicycle with every divorce.Do you want the general publicgrouping you, even if it is undeserved,with lawyers who give away a freebicycle with every divorce?Since that time here are some other equally tacky advertising approaches:Remember Jim “the Hammer” Shapiro, who looked youin the eye and said, “I may be an S.O.B., but I’m your S.O.B.”. Orhow about the Nevada lawyer who was prohibited from referring tohimself as “The Heavy Hitter”. And consider the law firm that rana television spot advertising that it could help accident victims – asbags of money were tossed out of an armoured truckRecently, the Law Society of Alberta revised its Code of ProfessionalConduct to place restrictions on how lawyers advertise their servicesand promote themselves to the public. Should our Barristers’ Societyfollow suit? The short answer is yes. The reasons for such an approachare numerous, but really, it boils down to one word, “dignity”.If we, as a self-governingprofessional body, wantto continue to enjoy thisunique status, we must doR. Ritchie WheelerWheeler Serbu Barristers & Solicitorswhatever is necessary to preserve, nay, promote our image to the publicas responsible practitioners worthy of respect. Do you want thegeneral public grouping you, even if it is undeserved, with lawyerswho give away a free bicycle with every divorce? Personally, I thinkif you want to be known as “the Hammer” you should have gone towrestling school, not law school.Advertising can be a valid means of attracting clients and in this informationage can take many forms. However, new technologies likethe Internet create additional challenges to lawyers because of cyberspace’sability to erase geographic boundaries. Lawyers engaged inthis form of cross-border advertising must give careful considerationto not offending the rules of other Bar Societies.There are several excellent starting points for potential legal serviceadvertisers that provide good advice on the subject. We need rulesthat will not only provide guidance to our members but which willalso preserve the integrity and dignity of our profession.Advertising by lawyers needs to be tasteful in order to be both effectiveand to encourage public confidence in the profession. Our Barristers’Society is best positioned to provide guidance in this regard. If“lawyerly” conduct encompasses our behaviour both in and outsidethe confines of our office walls it must also include how we portrayourselves to the public.28 The Society Record

Alberta Gets Toughon AdvertisingIn December 2005 The Law Society of Alberta decidedto implement tougher advertising rules for theprovince’s lawyers. The following is a list of highlightsof those changes:• Lawyers must not solicit professional employmentfrom a person who is in need of legal services arisingfrom traumatic circumstances. The exceptions areif they are contacted by a close relative or personalfriend of the client or if the lawyer has a personal orprofessional relationship with the client.• Lawyers must not advertise in a way that misleads thepublic about the outcome of a legal matter, such asusing dollar signs in a print ad, and using terms suchas “maximum recovery” or any other statements whichcreate inappropriate expectations about the results alawyer can achieve.• Lawyers must not advertise any statistical data orother information that may indicate past or futuresuccess.• Photographs or images of persons who are notmembers of the firm are prohibited on all advertisingmaterial.• Lawyers are prohibited from using images of dramaticor graphic scenes, emotional appeals, dramatizations,sound effects, hawkish spokespersons, celebrityendorsements or slapstick routines, the primarypurpose of which is to attract public attention.Testimonials containing emotional appeals ormisleading statements also offend the new rules.• An advertisement cannot make reference to a lawyer’sstatus as a former master, justice, or judge unlessthat lawyer restricts his/her practice to mediation orarbitration.BURKE & MACDONALDSEEKING LAWYERBurke & Macdonald is a well-established general service lawfirm located in Lunenburg, Nova Scotia. We are currently seekinga lawyer who will practise primarily in the Property, Corporateand Commercial law fields. The successful applicant should have atleast one to three years’ experience; however, we would consider newlyadmitted members of the bar. Completion of the new land-titles trainingprogram would be a requirement.The successful applicant will be one who is interested not only in practisinglaw, but also becoming part of the local community. Salary is negotiableand it is anticipated that the successful applicant will ultimatelywish to have an ownership interest in the firm. We value hard work, butalso wish to maintain an office where regular work hours and a friendly,professional atmosphere are a priority.Lunenburg is a unique town, being only the second UNESCO-designatedUrban Heritage site in North America. It has many amenities and isa great place to work and live! Interested applicants may apply inconfidence to:Patrick A. Burke, Q.C.Burke & Macdonald, Barristers & Solicitors28 King Street, PO Box 549Lunenburg, Nova Scotia B0J 2C0Fax: (902) 634-4226 | Email: burkelaw@ns.sympatico.ca October 2006 29

Summationa Question of ValuesLike all of you, growing up I was taught certain moral values,one of which was that if you broke your neighbour’s window,even accidentally, you had a responsibility to fix it or at leastoffer to fix it. Applying this moral value to the personal injury situation,if a member of society gets hurt through somebody else’s negligentactivity, the injured person ought to get completely compensatedby the wrongdoer/tortfeasor. Despite the above, however, wehave somehow ended up with a system where the moral value of thewrongdoer compensating the innocent victim is barely recognized,as manifested by the arbitrary $2,500 cap on pain, suffering and lossof quality of life awards, and as manifested by other features of theinsurance reforms that took effect in Nova Scotia on November 1,2003 under the Progressive Conservative Party’s watch.These insurance “reforms” to my mind constitute an abrogation of citizens’rights to have their “broken windows fixed”. Although I wouldlike to take credit for this metaphor, I can’t. Originally made by EdLazarus, of the American Trial Lawyers Association State Affairs andLazarus Strategic Solutions, at a continuing legal education conferenceI attended this past July, it struck me as an effective metaphor when attemptingto expose the absurdity and danger of these “reforms”.So are these “reforms” in the public interest? Brian Tabor, Q.C., aBluenoser who was president of the Canadian Bar Association fromAugust 2005 to August 2006, suggests no. I refer you to an article inthe June 2006 Canadian Bar Association National Magazine wherehe speaks to this as an Access to Justice issue. Other organizations,such as the Nova Scotia Coalition Against No-Fault Insurance andthe Atlantic Provinces Trial Lawyers Association (APTLA), also answerthis question in the negative.It is therefore fitting and timely that this issue of the Society Record profilesthe impact of these insurance “reforms” - an important part of theNova Scotia Barrister’s Society mandate being to act in the public interest.Not only are these insurance reforms a shrinkage of innocent citizens’rights, arguably, they also, implicitly and unfairly, pass a negative judgmenton the evolution of the common law in Nova Scotia. I say unfairlybecause the Nova Scotia judiciary, up until the insurance reforms, to mymind, had done an excellent job of keeping general damage awards andprecedents moderate so as to make the pure tort system affordable andeconomically viable for all of the stakeholders. In the eleven years I practisedplaintiff personal injury law (up until the advent of the reforms)experience had taught me that you had to present credible and compellinglay and expert evidence at trial in order to prove your case and getreasonable compensation. In other words, “run away” or disproportionateawards were at least extremely infrequent, if not non-existent.Our justice system is built on the adversarial model of ascertainingthe truth; a model which the plaintiff and defence bars and triers offact have been ably carrying out in Nova Scotia for almost 250 years.These reforms arguably erode this pillar of our justice system, with nomandate for such erosion.Given these serious ramifications,it therefore behooves usto ask: How did we allow thisto happen? And do we havean obligation to the public toundo what has happened?The former question is less importantthan the latter, thereforeI won’t spend a lot of timetrying to answer it. Suffice itto say some of the answer liesin us taking our previouslyunabridged rights for granted.That fact, combined with apowerful insurance companylobby (with “deep pockets”)which successfully persuadedthe general public and electedSean LaydenBoyne Clarkerepresentatives that innocent victims of motor vehicle negligencewere responsible for both declining insurance profits and rising insurancepremiums, (and that the adversarial model of ascertaining thetruth was also part of the problem) and you’ll see how the insurancecompanies pushed their agenda to both politicians and the public.Question whether the real villains were: a declining return on equityin the stock market for insurance companies, especially, post September11, 2001, and an unrealistic expectation by insurance companieson what their return on equity should be in the first place.Undoing what has happened is where most of the focus should be,which is why I applaud the Barry Masons and the Brian Tabors of theworld. Mason is earnestly pursuing constitutional challenges to thereforms, while Tabor steadfastly and courageously spoke out againstvarious forms of no-fault insurance while he was president of the CanadianBar Association. I also applaud those members of the plaintiffpersonal injury Bar who unflinchingly continue to represent injuredpeople, even though the “reforms” arguably eliminate a significantpart or the tort system, and finally, the Nova Scotia Barristers’ Society,who saw this “rights” issue as important enough to be profiled in thisissue of the Society Record.Philosophical terms such as justice are usually easier to define in thenegative, as in, I do not necessarily know what justice is, but I knowwhat it is not. It is not the insurance reforms that kicked in on November1, 2003. Therefore, let us answer the battle cry and moveforward towards a more just Nova Scotia society by undoing whathas been done in the name of “reform”, and level the scales of justice.I want my window fixed when it gets broken. Do you? I will try todo my part. Will you?30 The Society Record

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