Canadian Lawyer

38 A P R I L 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m hen it comes to obtaining a truly independent med- ical evaluation for a victim of an auto accident in Ontario, lawyer Loretta Mer- ritt says on the sur- face what has become an expensive and complicated system could actually be very transparent. "The expert should be giving the same opin- ion whether retained by the insurance company or the claimant; the opinion should be the opinion, and there are experts well known to do that," says Mer- ritt, a personal injury lawyer with Torkin Manes LLP who has dealt with many auto accident cases. "There are certain experts that when I see them being retained by the defence I'm actually happy about it because I know they will give a fair and honest opinion." But despite years of case law, plaintiff- side lawyers like Merritt say the system increasingly doesn't work that way and is tipped in favour of insurance companies that maneuver within the current system to obtain reports that go against plaintiffs in an effort to reduce accident benefits. Merritt says there are numerous deci- sions showing medical experts are not acting as impartially as they should. She refers to the 2014 review of the alterna- tive dispute resolution system by Justice Douglas Cunningham in which he said that, while IMEs were not within his mandate for that review, he felt compelled to say that a number of stakeholders had raised the issue. "He said the problem is obvious — an expert retained by an insur- er who supports claimants is unlikely to be retained again," she says. Last fall, the Ontario Trial Lawyers Association welcomed the Ontario gov- ernment's appointment of David Mar- shall as a special adviser on auto insur- ance. On Feb. 1, it called on the province to establish a commission to conduct a public inquiry to examine the current state of IMEs of injured auto accident victims. "After years of changes designed to placate the insurance industry, the government needs to turn its attention to the plight of victims," says Maia Bent, president of the OTLA and a partner with Lerners LLP in London, Ont. The OTLA saw the appointment of a new auto insurance czar as the opportu- nity to restore balance in the auto insur- ance system, starting with a public inqui- ry into medical evidence and reports used in insurance claims. Lawyers like Bent have observed a system of medico- legal experts they say distort evidence including court reports in a bid to satisfy L E G A L R E P O RT \ P E R S O N A L I N J U RY W MATTHEW BILLINGTON Seeking a second opinion Will the Ontario Trial Lawyers Association's call for an inquiry into medical assessments change a system mired in confl ict? By Jennifer Brown

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