Canadian Lawyer

40 F E B R U A R Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m cases showed the largest award reported in Alberta was $1.74 million for future care costs, which takes up 90 per cent of all judgments. The same query for Ontario showed the largest future care costs awarded was $10.9 million. Also, the damages awards for compro- mised infants in Alberta are much lower than the average award for the same type of injury in Ontario. "We are of the view that there is no real principled reason for such a large discrepancy other than a difference in how damages cases are being advanced by lawyers in the differ- ent provinces, which is in turn impacting different judicial attitudes and perceptions about what is reasonable and what is not," says Nijjar. "Given that the Supreme Court of Can- ada has ruled on these issues in a way that ought to be consistently applied across the country, it gives rise to an interesting discussion," she notes. Nijjar is referring to the trilogy of cases the Supreme Court of Canada decided in 1978 — Andrews v. Grand & Toy Alberta Ltd., Thornton v. Prince George School Board and Arnold v. Teno — one each in Alberta, B.C. and Ontario — all involving catastrophic injuries. The SCC imposed a cap of $100,000 (as of 1978) on non-pecuniary damages. The decision was made on the basis that there should be a limit to the amount of compensation awarded for pain and suffering. As of early 2013, the cap was approaching $350,000 due to inflation. The principles the SCC set out upon which damages are to be assessed should be applied the same across the coun- try, says Richard Halpern, partner with Thomson Rogers in Toronto, who does medical malpractice work across Canada. However, Halpern says he sees a differ- ence. "There's no question about it. "The Supreme Court of Canada described the principles upon which dam- ages are to be assessed across the country, and the principles are as valid today as they were in 1978," he says. "But the dam- ages awarded in Ontario are significantly higher than any other province in the country. The explanation for that though is not clear." Halpern estimates that there are about 1,000 medical malpractice cases across the country each year, out of which one- third end up being dismissed. Many of the remaining ones are settled or for those that go to trial, the doctors win more than the patients, yet there are "hundreds of thousands of errors a year," he says. Nijjar says her concern is that clients in Alberta who are injured as a result of potential negligence are being short- changed. "For what reason? Because of precedent? But what does precedent mean when it comes to future care costs? Every case is supposed to be judged on its unique facts." Neinsteins is trying to change some of that culture when it comes to pros- ecuting cases in Alberta. "We're running them the way we run cases in Ontario, which is with the same type of assess- ment, same type of experts who are eval- uating our client's damages and we're coming up with the same numbers," she says. "But those numbers are just not being well received in Alberta." In Alberta, Nijjar says, it seems that L E G A L R E P O RT \ P E R S O N A L I N J U RY Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. THE LATEST NEWS Keep abreast of essential late-breaking legal news and developments. THE BEST COMMENTARY Access trusted analysis and opinion on the cases and changes that are shaping the legal landscape. DELIVERED WEEKLY Your profession can change quickly, which is why you need the freshest, most recent information. FOR READING ON ANY DEVICE Get the news and opinions you need on any device. Whether you read at work, or on the go, the newswire adapts to your screen. Visit www.canadianlawyermag.com/newswire-subscribe Untitled-13 1 2018-01-23 1:11 PM

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