Canadian Lawyer InHouse

35 CANADIANLAWYERMAG.COM/INHOUSE MARCH/APRIL 2019 I n d u s t r y S p o t l i g h t "It is about going back to the basics and dealing with the cost of litigation and an ongoing lack of judicial and court resourc- es," says Vaughan, a partner at Benson Per- cival Brown LLP in Toronto and vice chair- woman of the Canadian Defence Lawyers' women's caucus. "Both sides are using more experts. Files are open for a longer period of time [because of a lack of available judges]. That adds costs at a time when there is pressure to reduce expenses," says Vaughan. "As well, I think there is an increase in the vol- ume of personal injury cases, especially smaller ones." According to Vaughan, one explana- tion for this increase may be because of the volume of advertising on the plaintiff side, with commercials that routinely promise that there will not be any fees for the client unless there is a fi nancial settlement. In Ontario, where the volume of cases is the highest, the province's Civil Rules Committee has proposed changes that could increase the number of claims under the "simplifi ed procedure" provisions in the existing rules. The current maximum claim under this process is $100,000. The proposed changes would increase that max- imum to $200,000. As well, costs awards would be capped at $50,000 and disburse- ments at $25,000. Another potential change would be to take away the right to a jury trial for simplifi ed procedure claims. For the proposals to be implemented, the Ontario government will have to enact leg- islation to amend the rules and the Courts of Justice Act. "This would have a signifi cant impact on smaller personal injury cases," says Vaughan, adding that if the changes are put into place, it might free up court resources for litigation involving more serious injuries. The proposals would also likely limit the use of experts in smaller cases because of the cap on disbursements. The use of experts in general and fi nding someone whose evidence will genuinely as- sist the court continues to be an area where there is more scrutiny, as a result of appel- late-level decisions in recent years, such as the Supreme Court of Canada decision in 2015 in White Burgess. Bill Evans, senior practice counsel at Avi- va Canada Inc. in Toronto, says the message is very clear at the trial level. "The courts want experts that will help them and not one side or the other. We are very cognizant of that fact. We try not to go to the same ex- perts again and again. We also try to fi nd new voices," he explains. At the same time, he says, it can be a chal- lenge to fi nd the appropriate expert in some instances. "There are only so many doctors who want to do this. There has been talk of sharing an expert and using a common re- port, although I am not aware of it happen- Untitled-2 1 2019-03-04 4:08 PM

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