Canadian Lawyer

December/January 2021

The most widely read magazine for Canadian lawyers

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UPFRONT 4 www.canadianlawyermag.com NEWS BRIEFS PERSONAL INJURY UPDATE Personal injury lawyer discusses benefits of removing most civil juries Cases of defamation, intentional torts, professional negligence in health care may be exempt: OTLA THERE ARE potential benefits to abol- ishing civil juries, subject to certain excep- tions, in Ontario, according to one personal injury lawyer. Ontario Attorney General Doug Downey addressed a letter to stakeholders last June, seeking their comments on potential amendments to the Courts of Justice Act regarding civil juries. Ontario is one of the last Canadian jurisdictions to allow parties to choose whether they want a civil jury trial. In the province, civil juries have already been removed for matters where the claimant is asking for $200,000 or less. Writing in the OTLA Blog, Mary-Anne Strong of Beckett Personal Injury Lawyers shed light on the issues that may arise in civil jury cases. Jury trials take much more time than judge-alone trials because extra effort and co-ordination are needed for the prep- aration of evidence, the logistics of the jury, the giving of opening and closing statements, the interruptions that take place throughout the jury trial and for the review of all the BC Supreme Court rejects opinion it calls 'evidenced bias' The B.C. Supreme Court recently rejected the expert opinion of a doctor routinely hired by the Insurance Corporation of British Columbia to conduct medical exams for the defence. Justice Palbinder Shergill criticized the medico-legal report obtained from the psychiatrist in question as "being tailored to the defence and evidencing bias," wrote personal injury lawyer Erik Magraken. In Moges v Sanderson, 2020 BCSC 1511, the plaintiff experienced three motor vehicle collisions in September 2014, October 2014 and May 2017. Although each incident involved different defendants, the three actions were heard together. All defendants admitted liability. Pandemic increasing psychological impairment claims The mental health impacts of COVID-19, including growing depression and anxiety, are leading to a sharp rise in psychological impairment claims, says personal injury lawyer Ryan Naimark. His three main practice areas — motor vehicle law, long-term disability claims and employment law — are seeing shifting trends associated with the pandemic, he says. Car accidents are becoming more serious and involving more injured or dead passengers. Clients are making many more long-term disability claims over COVID-19-related psychological impairment. And employees are fighting over accommodation and leaves of absence to care for family members. COVID-19 liability protection for Ontario nursing homes proposed As lawyers prepare negligence, breach of contract and other claims — including class actions — against long-term-care homes for the COVID-19 spread in their facilities, the Ontario government has proposed legislation to protect those people and organizations from liability who make a "good faith" effort to prevent exposure to the virus. Bill 218, Supporting Ontario's Recovery Act, 2020 was before the Legislature, in second reading, at press time. The Ontario government said the act protects workers and organizations in health care, retail, charities and non-profits "that make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19." Sexual abuse is often about power, not gratification, says committee An Ontario doctor was recently found to have committed professional misconduct by inappropriately touching the genitals of two underage boys, with one incident taking place in a medical context and the other incident occurring outside of a medical context. In Ontario (College of Physicians and Surgeons of Ontario) v. Taliano, 2020 ONCPSD 42, a doctor was accused of committing professional misconduct when he sexually abused Patient A, a 14-year-old boy. The Discipline Committee of the College of Physicians and Surgeons of Ontario found the doctor's acts regarding Patient A constituted disgraceful, dishonourable or unprofessional conduct. Pandemic no excuse for missing business records: court In Robbins v. Yekani, 2020 ONSC 6148, the plaintiff sought $1 million in damages including claimed loss of income, earning capacity and competitive advantage. She was unable to answer the outstanding undertakings to produce records within the agreed deadline, claiming financial hardship and the effects of the COVID-19 pandemic would excuse her from producing them. The court rejected her contention.

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