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 A P R I L 2 0 1 8 7 N ova Scotia has taken the plunge into new legal terrain. In what is a national first, the province has enacted a comprehensive marine renewable energy regulatory regime for waters within its jurisdiction. "We have legislation and regulations for the first time. Nova Scotia is breaking new ground," says Sara Mahaney, an associate with McInnes Cooper LLP in Halifax. The legislation, she adds, creates an enabling regime. "It expands the kinds of technology that can be used to generate energy offshore." This includes ocean cur- rents, in-stream tidal and offshore wind. The Marine Renewable-energy Act applies to two key areas in the prov- ince: parts of the Bay of Fundy (which has the highest tides in the world) and Cape Breton Island's Bras d'Or Lake. "Four marine renewable electricity areas all within the Bay of Fundy have been designated as special priority areas where certain activities can take place," notes Mahaney. Here, in-stream tidal projects can be launched once a call for applica- tions has been issued by the government and the minister of energy gives compa- nies the green light. "This creates the potential for this industry to expand and mature, but the focus is still on in-stream tidal," says Mahaney. At present (and prior to the new legislation), Nova Scotia is exploring in-stream tidal power — technology that uses a turbine to generate electricity — through its Fundy Ocean Research Cen- ter for Energy (referred to as FORCE), which acts as host to developers in this field. The Marine Renewable-energy Act opens the door to other innovative projects because they will no longer need to meet the conditions and restrictions put in place by FORCE or the province's 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 NS enacts country's first marine renewable energy legislation L E T T E R T O T H E E D I T O R Re: Challenging disparity in medical malpractice FEBRUARY 2018 I am writing to you on behalf of the Birth Injury Lawyers Alli- ance in response to your article "Challenging disparity in medical malpractice." BILA is an organization of lawyers from across the country with vast experience representing children who suffer injury from birth trauma. From a damages perspective, these cases tend to be among the largest. The explanation for the discrepancy in medical malpractice damages between Ontario and other regions of the country is not as simple as your article implies. Most troubling in your article is the mistaken impression a reader might have, based on the com- ments from Sonia Nijjar, that lawyers outside Ontario are less adept at representing their clients in these significant cases. This is not the case. It is important to note that there are very few court judgments from Ontario in the last decade that have actually assessed dam- ages in these larger medical malpractice cases, making compari- sons between Ontario and other provinces practically impossible. While it is true that the average payment in Ontario medical malpractice cases is higher than other regions, it would be unfair and unfounded to conclude the reason is that Ontario lawyers are better at their jobs. The reasons for these discrepancies have to do with many other variables. Nijjar's statement that the "largest" award for care costs in Alberta as compared to Ontario demonstrates more than a five- fold difference is completely misleading. In fact, two Alberta cases, and cases from other regions outside Ontario, have result- ed in awards much higher than the number quoted. Although the principles that apply to the calculation of dam- ages are the same across the country, each province has its own rules that affect how damages are to be calculated. There are different rules affecting inflation and interest rates. Mandatory discount rates can significantly decrease damage awards. Ontario has mandatory structured settlements for larger cases. Profes- sional services may be cheaper in some jurisdictions, and so on. In the final analysis, this is not just a numbers game. The issue is whether victims of medical negligence are receiving an amount that is both fair and reasonable, having regard to the important principles enunciated by the Supreme Court of Canada in the 1978 trilogy of cases (Andrews, Teno and Thornton). The notion that Nijjar's firm would "change some of that culture" in Alberta (regarding how these cases are assessed) pre- sumes that there is the need for cultural change and that some- how her firm has some unique insight that Alberta lawyers don't. The misleading nature of these comments is not likely to be well received by other competent medical malpractice lawyers, both in and outside of Ontario, or by our courts. — PAUL MCGIVERN, PACIFIC MEDICAL LAW Continued on page 8

• Cover