Canadian Lawyer

July 2021

The most widely read magazine for Canadian lawyers

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Page 21 of 51

20 BUSINESS STRATEGY TOP PERSONAL INJURY BOUTIQUES SPECIAL REPORT METHODOLOGY Earlier this year, Canadian Lawyer asked lawyers, in-house counsel, and clients from across Canada to vote on personal injury firms. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included on the list. To be considered in the vote, firms were required to have at least 80 per cent of their business come from personal injury work. The final rankings were determined through a points system, in which firms were rewarded on a sliding scale for the number votes by ranking. This year we categorized the winners by geography, including the Top 10 in Ontario and the Top 5 in both Western and Atlantic Canada. The quantitative results are combined with feedback from respected senior members of the bar and in-house counsel when applicable. challenge for the court system. He notes the learning curve that was needed to develop strategies "to have almost everyone in the firm successfully work from home." He adds it will be "interesting to see whether working from home will endure post pandemic and to what extent." David MacDonald at Thomson Rogers LLP in Toronto notes that the desire for social contact has made all parties involved in personal injury cases "much more collegial" and pleasant towards each other. Colleague Darcy Merkur says at a more practical level, communication tools such as Zoom will have an impact on whether firms feel there is an advantage in creating and promoting satel- lite locations of their firm as the playing field has "levelled out." Warren Whiteknight, partner at Bergeron Clifford LLP, which serves eastern Ontario with offices in Kingston, Ottawa, Perth and Carleton Place, notes that the delays in cases caused by the pandemic exposes the increasing difficulty in getting personal injury civil trial through the court system. Delays in trials, potentially even more back- logged when criminal cases are fully up and running, leads to worries that civil cases like the ones his firm works on will be pushed back even further. Future of personal injury jury trials Indeed, the future of jury trials in personal injury cases is potentially at stake, says Whiteknight. He says to there is an increased willingness from judges to agree with plain- tiffs who ask for trials to go ahead on a judge- alone basis. But there is often resistance from defence lawyers representing insur- ance companies who want to hold out for a jury trial. These defence lawyers expect that they will pay out less as jaded jurors who did not want to be on a jury in the first place take a more subjective approach in deciding "routine" automobile accident cases, for example, compared to how a judge trying the case might rule. Whiteknight, along with other award winners, agree that going the judge-alone route in these routine cases might help clear the backlog more quickly. However, they also acknowledge there is still a strong need for juries in cases dealing with more catastrophic injuries, or medical malpractice. "There are certain cases where the issues at stake interact with public policy and the public good," he says, and it is important to have juries for those cases to check the temper- ature of Canadians on these important ques- tions on liability and awards. "I did a case a couple years ago, where, halfway through the trial, the jury was struck. So, we started with a jury and finished with judge alone," he says. "And the tone of that case changed from night to day." These issues existed long before COVID-19, but the pandemic showed the issues in a new light. In Vancouver, Anthony Vecchio of Slater Vecchio LLP says that with British Columbia soon moving towards a no-fault system for setting accident claims, as many jurisdic- tions have done already, this puts a signifi- cant dent in the ability of accident victims to use tort law. "And any time you have a legal system that doesn't allow people to seek proper restitution, you have a fundamental problem that is hurting a cornerstone of democracy." Mass tort claims is "wave of the future" Vecchio says that partly due to what is happening on the no-fault insurance front in his province, his firm has been delving more into mass tort actions, seeing them as "the wave of the future." Unlike class-action lawsuits, where the representative plaintiff pursues the claim on behalf of the class members, mass tort actions allow plaintiffs to pursue their cases individually. Pooling similar cases together allow plaintiffs to bring an individual lawsuit against a defendant alongside what is often hundreds of other individual plaintiffs in the same situation. These plaintiffs may have different interests, and assessments of indi- vidual damages may vary. Paul Miller, head of the mass torts depart- ment at Howie Sacks and Henry notes the same trend, saying clients are showing a "Any time you have a legal system that doesn't allow people to seek proper restitution, you have a fundamental problem that is hurting a cornerstone of democracy." Anthony Vecchio, Slater Vecchio LLP

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