Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J A N U A R Y 2 0 1 9 35 How we did it Canadian Lawyer asked lawyers, in-house counsel and clients from across Canada to vote on the top insurance defence, tax and wills, trusts & estates boutiques. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included. To qualify for our list and be voted for in the survey, firms were required to derive a minimum of 80 per cent of their work from as well as self-identify as focusing on insurance defence, tax or wills, trusts & estates law. aspect of the many opportunities in the cyber realm, Dolden says. For example, his firm is involved in an arrangement called breach coaching, where an insured party calls a 1-800 number if they suspect a breach and someone from the firm provides legal advice on how to proceed. Dolden says the firm has roughly five lawyers in both the Toronto and Vancouver offices and one in Calgary spending at least 50 to 60 per cent of their time in that area. "We triage it in the sense of diagnosing the problem, identifying what their obligations are to the privacy commissioner and making sure that any requisite breach notice is provided. That's probably one of our fastest-growing areas, right now." Also growing is the fault imposed by the courts on licensed liquor sellers for overserving when an impaired driver leaves an establish- ment intoxicated, he says. In the future, Dolden sees this area branching off into some compel- ling configurations, as automated vehicles and artificial intelligence proliferate. Along with Dolden Wallace Folick LLP and Hughes Amys LLP on this year's top insurance defence boutiques list are Bell Temple LLP, Benson Percival Brown LLP, Chomicki Baril Mah LLP, Dutton Brock LLP, Flaherty McCar- thy LLP, Lindsay LLP Whitelaw Twining Law Corp. and Zarek Taylor Grossman Hanrahan LLP. "The last 28 years, Ontario in terms of insur- ance, and in particular, automobile insurance, I think can be described as the only thing perma- nent is change," says Todd McCarthy, a partner at Flaherty McCarthy LLP. McCarthy's firm was established by the late Jim Flaherty, the former federal finance minister. Every few years, Insurance Act amendments and amendments to regulations under the act have see-sawed between tort and accident ben- efit rights, says McCarthy. "The big change in the last two-and-a-half years has been further scaling back of accident- benefit entitlement. Drastically so," he says. Along with that decline, since 1996, McCar- thy says, he's seen an expanded right to sue in tort for motor vehicle insurance claims. In 2016, access to courts for accident benefit claims and the Financial Services Commission of Ontario arbitration process was abolished and replaced with the Licence Appeal Tribunal, known as the LAT system, an arbitration process done through the Ministry of the Attorney General. The monetary jurisdiction of the Ontario Supeior Court, in relation to a simplified procedure action, which provides for a summary trial in the Superior Court, was doubled to claims seeking $200,000 plus costs from $100,000 because of a recent rule change, and McCarthy predicts that, in 2019, via amendment to the Courts of Justice Act, jury rights for this type of action will be eliminated. This is significant, he says, because around 70 per cent of motor vehicle personal injury tort claims are assessable under $200,000, net of deductables and other benefits. "I think we're going to see a very significant change in the election in favour of simplified procedure," he says. There may be more trials, but they will be shorter, possibly with more settlements, he says. With all this change, McCarthy says, the firm's founder, ironically a Conservative, instilled a tradition of embracing, rather than fighting, change. "Jim embraced the changes and always taught us to embrace the changes and that's what we've done," he says. "Everybody is spe- cialized in all aspects of litigation in relation to insurance matters. We don't have accident benefits specialists and tort specialists; every- body is a specialist in all aspects of personal injury litigation and the defence of that litiga- tion and that is a legacy of Jim Flaherty." Embracing change for managing partner of Dutton Brock LLP Paul Tushinski has meant staying away from work specialized by the proliferating in-house legal teams he's seen sprouting in recent years. While his firm stays away from commodity work, he says, it does a lot of complex construction, engineering, product liability, environmental and class action, for which in-house depart- ments are not structured, he says. "If you're trying to maintain a business where you're competing directly with the work that the insurers are keeping in-house, you're going to lose," he says. "We've tried to adapt to the changing market but always staying true to our roots." That is why gaining experience in cyber, environmental impairment liability, fidu- ciary liability, technology, errors and omis- sions, securities, class actions and directors and officers liability is important for newer lawyers in the field, Dolden says. "It's really important to develop expertise in these newly evolving areas. I think that's the key for a young lawyer's future if they want to do insurance work," he says.

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