Canadian Lawyer - sample

w w w . c a n a d i a n l a w y e r m a g . c o m M A Y 2 0 1 9 37 A crucial aspect of the case was the law of causation, as the judge and jury had to determine not just that the treatment failed to meet the standard of care but that, but for that substandard treatment, Surujdeo would not have died. This is the "but for" test for establishing causation that comes from the Supreme Court of Canada case Clements v. Clements. The Superior Court ruled in the plaintiff 's favour, awarding $600,000 and $450,000 in costs. The defendants appealed on five grounds, one being that the jury instructions on causation were "unbalanced, incomplete and skewed" in the plaintiff 's favour. The Court of Appeal ruled in favour of Surujdeo and Bogoroch. "What we've noticed over time is that, even when you're successful in trial and we've been fortunate to have much success in front of juries, the Court of Appeal has historically taken a somewhat narrow view of causation, which has been difficult for plaintiffs to overcome," says Bogoroch partner Heidi Brown. "And we take that concept seriously and the cases that we take to trial we're trying to advance the law on causation." While personal injury lawyers can have an influence on how case law develops their practice area, legislative changes made by politicians still have a significant impact on their work. In Alberta, the cap on payouts for minor injury — either a sprain, strain or whiplash injury — was raised to $5,202 from $5,080 s of Jan. 1, but with an election set for later this year, Cuming isn't sure what a possible new government may have in store for injured plaintiffs. In Ontario, Premier Doug Ford is reviewing the province's rules under the Negligence Act for joint and several liability — a principle by which, if a person is injured because of multiple defendants and one of those defendants cannot pay, if the remaining defendant is even one-per-cent liable for the injury, they pay the whole judgment. Ford is reviewing the effect the rule has on municipalities who can be liable for injuries on public infrastructure. Ford's interest is in what it costs for municipalities to insure against this risk and whether he should alleviate the financial burden. "Given that he used to represent Etobicoke, this appears to be a personal issue for him," Gluckstein says. "It is likely that the rates will not lower even if changes were made as the payouts are limited to a handful of cases per year for very badly injured individuals." Felt widely across practice areas are court delays. Bogoroch and Brown say delays in the system are plaguing the personal injury bar, putting plaintiffs on hold for too long, which is of concern for motor vehicle cases because the plaintiff can only recover 70 per cent income lost before the trial, Brown says. "If there were a way to speed up the system so that instead of waiting two years for trial you waited only a year, more cases would settle, and I think it would be a much better and fairer system for everyone concerned," Bogoroch says. 2019-20 TOP 10 Personal Injury BOUTIQUE WE ARE HONOURED to be recognized, for the 5th consecutive time, as one of Canada's Top Personal Injury Law Firms. 1033 Bay Street, Suite 302 | Toronto, ON M5S 3A5 Toll Free: 866-285-6927 | singerkwinter.com Untitled-4 1 2019-04-18 4:16 PM

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