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 F E B R U A R Y 2 0 1 8 39 ven though they are all working from the same case law from the Supreme Court of Canada, when it comes to medical mal- practice in Canada, per- sonal injury lawyers say that, with the exception of Ontario and in some instances B.C., a conservative culture exists when it comes to courts awarding appropriate damages awards. In fact, in some provinces, there is a complete lack of any kind of awards in favour of plaintiffs. "It's rather startling that in six prov- inces and three territories there wasn't a single verdict in favour of the plaintiff in 2016," says Gary Wagner of Wagners, a personal injury law firm based in Halifax that does medical malpractice cases in the four Atlantic provinces and some in Alberta. "We see more and more the dispar- ity between Ontario awards reported and those that appear across the rest of the country," he says, pointing to information from the Canadian Medical Protective Association from 2016 that indicate there wasn't a single verdict in favour of a medical malpractice plaintiff in Saskatchewan, Manitoba and Atlantic Canada or the Territories. In fact, some PI firms, such as Lit- winiuk & Company in Calgary, stepped away from medical malpractice three years ago. "We haven't found it's a ben- eficial practice area for us," says Fred Litwiniuk, chief operation officer of the firm. "We have found a lot of the time the benefit doesn't always outweigh the risk for the clients here. Finding the right cases to take to trial was a difficult endeavour." Some personal injury lawyers have been tracking the significant discrepancy in damages awards between provinces. Sonia Nijjar of Neinstein LLP says the firm, which represents plaintiffs only, has recent experience running cases in Alber- ta, British Columbia and Nova Scotia, and it has noted a "fairly obvious discrepancy" in the way that damages awards are calcu- lated and awarded. Nijjar's work is primarily focused on medical malpractice and, in particular, the firm does a lot of work in the area of birth injuries. The firm hasn't obtained any judgments in Alberta, but it has encoun- tered "a discourse about damages" that is very different than what has been pros- ecuted in Ontario. Nijjar recently ran a report using a legal research tool and, in the last 10 years, a summary table for Alberta com- pared to Ontario for severe brain damage L E G A L R E P O RT \ P E R S O N A L I N J U RY MATTHEW BILLINGTON Challenging disparity in medical malpractice Is 'judicial attitude' to blame for discrepancy in damage awards in provinces outside Ontario? By Jennifer Brown E

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