Canadian Lawyer

September 2020

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Page 6 of 51 5 tion is removed from the analysis. He found Strauss liable. The appeal was allowed, examining whether a fiduciary duty was owed and whether Dow erred in saying causation was removed from the analysis. The Court of Appeal found that Dow had erred on the latter issue, but it did not decide on the first issue. "Now in Ontario, the only decision [on an ad hoc fiduciary duty in clinical trials] is Justice Dow's decision," says Gavin MacKenzie who, along with Brooke MacKenzie stood for the respondent at the appeal. "[The decision] was not reversed by the Court of Appeal. The Court of Appeal didn't affirm it either." MacKenzie says that, in any future cases arising out of medical research on human subjects, Dow's decision will be referred. William Black and Christine Wadsworth, who acted for the appellant, say their successful strategy at the appeal was to focus on the question of causation, rather than the fiduciary duty question. They noted, however, that the fiduciary duty question has key rami- fications for clinical research in Ontario. "I do think that that importance of clin- ical research is part of the factual makeup of the case and the court clearly has said now that there is no per se fiduciary duty in the context of clinical researcher and partici- pant," Wadsworth says. "Whether or not there will be an ad hoc duty in any particular case will be very fact dependent." MacKenzie, however, maintains that, if a fiduciary duty is found, then causation should be removed from the analysis and the burden should shift to the defendant. He says the issue requires further clarification by the Supreme Court of Canada. Laura Hillyer on growing up with the Ontario Trial Lawyers Association and guiding it through a pandemic Q&A Called to the bar: 2001 Governance roles: president of Ontario Trial Lawyers Association, board member of Ontario Safety League, past member of the board of the Hamilton Brain Injury Association and Brain Injury Association of Peel and Halton Laura Hillyer partner MARTIN & HILLYER ASSOCIATES Why did you become a personal injury lawyer? The stock answer is that I wanted to help people who have been injured. And the truth is, I really did and do want to help injured people — more so now than ever as things have become more complicated and the scales are not in balance. What was your most rewarding experience early in your career? When I was first called to the bar, I focused on criminal law. I found it extremely rewarding (and challenging) to represent desperate people who needed help to navigate the justice system. How did you get involved with OTLA? I would have found it difficult not to get involved with OTLA given that my father was one of its founding members and I've been hearing about it since I was in elementary school! Since I began my civil practice, I have experienced first-hand the outstanding and unparalleled support OTLA provides to plaintiff personal injury lawyers. I rely on the practical support and camaraderie of OTLA members daily. This has been a trying year for so many aspects of the legal profession. What have you been doing as a lawyer and as OTLA president to navigate these times? I have revamped my day-to-day practice to maximize the benefits of technology and maintain strong relationships with my clients and colleagues. Looking to the future, I have worked with the OTLA board and other justice stakeholders to seize the opportunity the pandemic presents. We are working toward the long-overdue modernization of the justice system. The Ontario AG is exploring removing juries from civil trials. What role have you played in this process and what are you advocating for? I have been working with the OTLA board, with valuable input from the membership, to reimagine the role of the civil jury in Ontario. OTLA's submission recommends that civil juries be reserved for cases where community values and standards need to inform the trial verdict. Most civil cases can effectively be handled by judge alone. What piece of advice would you share with personal injury lawyers across the country? The pandemic crisis has created challenges far beyond our collective experience. As personal injury lawyers, we need to work together. We must embrace technology and modernize the civil justice system to ensure that it serves Canadians now and for generations to come. "Now in Ontario, the only decision [on an ad hoc fiduciary duty in clinical trials] is justice Dow's decision."

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