I doubt whether the plaintiff bar would consider the Saadati judgment as a win.
Usually, in a claim for mental / brain injury, Triers-of-fact, including the Courts, would review an objective evidentiary record, e.g., the reports of medical experts about the plaintiff's diagnosis and prognosis or deficits, the functional analysis, the occupational therapy analysis, the cognitive deficit analysis, psychologist, psychiatrist or other therapists’ reports, the treating family physician notes and records, OHIP records, and subjective evidence of the plaintiff, and the family and friends, before and after the injury. These experts' reports give the Triers-of-fact the whole picture of the plaintiff.
The judgments in these cases engender many questions, including: What is the impact of these judgments on Triers-of-fact, who are steeped in relying on expert opinions, or at least, the family physician's clinical notes and records in these matters? Could a Trier-of-fact readily accept the evidence of a plaintiff or even his family members as sufficiently clear, convincing, and cogent to scrutinize it with care to decide whether a plaintiff did sustain mental injury and the extent of the injury? Would a Trier-of-fact and law have to explore the plaintiff's evidence even further to determine whether there is something that likely could be proven? Can a plaintiff alone who is suffering from a mental injury, unless of course, s/he had achieved marked recovery or the injury is minor, adduce evidence that is always sufficiently clear, convincing, and cogent to meet the test? What if the plaintiff was suffering from a mental injury before? How does the defendant deal with causation? How does the plaintiff deal with his/her obligation to mitigate?
While the tests and the directions from the Court is binding, common sense will guide the plaintiff in determining the type of evidence needed to discharge his/her onus.
Court of Appeal Allows Class Action Suit to Proceed
In a Decision and Reasons released by the Ontario Court of Appeal, on June 15, 2017, the class action against a personal injury law firm will proceed. This judgement upholds the ruling of the Divisional Court that certified the class action lawsuit.
The allegation in that case is that a law firm, Neinstein LLP, had failed to comply with Clause 28.18 of the Solicitors Act in its contracts concerning contingency fees with its client.
Briefly, Cassie Hodge, retained Neinstein LLP firm to represent her in a lawsuit for personal injury she had sustained in a 2002 motor vehicle accident. A settlement was reached in 2010 for $150,000. Hodge received $41,906. Neinstein LLP held back $20,325 for legal fees, $30,000 for the "party-party costs", and $48,924 for disbursements. After settling her claims, Hodge brought the application alleging the contingency fee agreement she signed was improper because the law firm took unauthorized fees from costs without the permission of a judge.
I would imagine that there was a breathless hush throughout the civil litigation bar when this ruling was released. Likely, this ruling will have a far-reaching impact on most, if not the entire personal injury bar.
Many personal injury lawyers ("PILs") operate on a contingency fee basis to be able to represent plaintiffs who, otherwise, may not have access to justice. The practise is that PILs take their fees after a final settlement has been achieved. It is alleged that lawyers take their fees from costs. Nothing seems to be wrong with this practise except, before doing so, counsel must first seek approval from a judge. That is the state of the law.
The OCA not only upheld the Divisional Court's ruling, except one finding, but also added two issues of its own: (i) Whether the law firm breached its fiduciary duties to its clients; and (ii) whether the law firm's conduct warrants an award for punitive damages.
Notably, the OCA rejected the argument that certification of the suit would be antithetical to solicitor-client privilege.
Patricia DeGuire is a founding member of CABL and has served on its Board for over 10 years in different capacities. She is an avid Coach, Advisor,
Mentor, and a sought after Adjudicator, Arbitrator, and mediator. She has served as Vice-President of JusticeNet for the past 10 years. She has served on the OBA Council for the full six-year term and two years on the CBA Council. She speaks internationally on issue concerning Social Justice and the Rule of Law.
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22 BLawyerisH/July, 2017
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