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 O C T O B E R 2 0 1 5 7 I n 1996, New Brunswick became the first province in Canada to allow courts to award individuals injured in automobile accidents special damages before liability had been estab- lished at trial. Now nearly two decades later, it may become the first jurisdiction in the country to extend those special damages to all personal injury cases. The proposed changes are potentially significant for lawyers and their clients within the province and for other jurisdic- tions looking to see what New Brunswick is doing and why. "It will make a difference in the legal landscape," says Michael Bow- lin, a commercial litigation lawyer with Cox & Palmer in Fredericton. Under the special damages provisions of the province's Insurance Act, plaintiffs in a civil suit who have been injured in a car accident can appear before a judge before there is a trial to request what are called special damages, usually remu- neration for lost salary. If the judge deter- mines the plaintiff is likely to win at trial, the defendant can be ordered to make this advance payment. Alberta is the only other province in the country with simi- lar legislation in place. New Brunswick is now looking to expand the scope of its special damages provisions. In 2012, the attorney general's office released a bulletin announcing the government's intention to apply the law to all claims for damages whatever the cause of action including personal injuries, construction cases, and environ- mental-related claims. "It was everything under the sun," says Bowlin. The province has now taken a step back from its original position. In response to concerns from the legal community, the government in its most recent bulletin, issued in the summer, indicated it is considering moving for- ward to allow special damages only in the case of personal injury claims. "These are, we feel, the cases that most imme- diately come to mind when considering what kinds of plaintiffs are most likely to be in the predicament where advance payments of special damages are most needed — individuals with a valid claim who are suffering financially in the peri- od before they are able to obtain either a summary judgment or a judgment fol- lowing trial," the government stated in its Law Reform Notes on the issue. Lawyers are still concerned about the proposed expansion even in its abbrevi- ated form. "This will be a real challenge for the court system," says Bowlin. The issue is one of intricacy, he notes. "Automobile cases can be straightforward and the courts have lots of experience with these. In non-automobile cases, it can be a lot more complex to determine liability." Despite these concerns and another request for feedback from the legal com- munity, the attorney general's office, which did not return Canadian Lawyer's request for an interview, seems determined to move forward with amendments to the Insurance Act. "The province will bring forward draft legislation that at the very least will expand the rights of plaintiffs to have an advance on damages in any area where you have personal injury," says Bow- lin. "The intention is to affect more people on the plaintiff side." The intention may well be expanded in the future. In its current law reform bul- letin, the province indicates its support for a broader application of special damages. "It is that the rationale for making these advance payments available is equally valid in all kinds of claims, and experience with the auto accident provision has shown that the procedure works. By contrast, the reason for creating limits is, essentially, cau- tion." — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T 'THERE HE GOES AGAIN' N.B. to expand special damages awards C E N T R A L M ontreal lawyer Julius Grey, who just celebrated 40 years at the bar, is a private practitioner but a very public participant in legal, political, and social debates in Quebec and Canada. With the help of no one, he carved a place for himself as an influential, independent, free-thinking intel- lectual both through high-profile court cases he argued at all levels, including the Supreme Court of Canada, and by appearing regularly during the last decades in print and broadcast media. His latest interventions include his support of the former bâtonnière du Québec, Lu Chan Khuong, who recently stepped down after a kerfuffle over leaked confidential information revealing she had been arrested on suspicion of shoplifting, for which she was never charged. He argued in the media that one should not lose credibility on the basis of Continued on page 8 PASCAL ELIE

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