Tuesday, June 24, 2014

Respect for Our Courts is of Paramount Importance

Elaine Bright - Pace Personal Injury Lawyer in Kenora: Many people - particularly lawyers - are up in arms about comments made by the Prime Minister of Canada about the Chief Justice of the Supreme Court of Canada:
There's a great deal of puzzlement about why Prime Minister Stephen Harper waited nine months before letting it be known he feels Chief Justice Beverley McLachlin should not have tried to approach him about a Supreme Court appointment... 
Tom Flanagan, once a campaign manager and confidante of Harper's, said in an interview, "It's unprecedented as far as I know for a prime minister in office to make public a professional conversation with the chief justice, same with the Governor General, you just don't do it," Flanagan said.
11 former presidents of the Canadian Bar Association penned a statement in the CBC in response to the Prime Minister's remarks:
The recent comments by Prime Minister Stephen Harper, claiming that the Chief Justice of Canada attempted an inappropriate conversation with him, demonstrate a disrespect by the executive branch for the judicial branch of our constitutional democracy, and for the Chief Justice of Canada as the most senior member of the Canadian judiciary. This is so despite the fact that the discussion in question involved a possible new appointment to the Supreme Court of Canada, a topic well within guidelines for appropriate conversations between prime ministers and chief justices.
The PM's comments seemed to call into question both her integrity and her judgment. Why does this matter? What’s the big deal?

I think that respect for our judiciary matters enormously. I think our safety and security depend on it.

One of the cornerstones of our form of democracy is the “rule of law”. The rule of law means that no one is above the law, not even the ruler. We don’t see ourselves as having any kind of divine ruler that can tell us all what to do. Nations that are governed by the rule of law generally agree that laws should be created where needed to manage our relations; they should be made democratically; they should be made public and that they should apply to everyone, including governments.
Respect for our courts, then, is an essential component of our way of life – our safety, our freedom and our security. 
The rule of law only works if we respect our courts enough to let them settle our disputes according to the laws, rules and practices that have been created by our democratically elected representatives. If we don’t trust our courts to do that, people could choose other means, such as violence, to settle disputes. If the dispute is with the government we could see citizens taking up arms against a government with terrible consequences for us all.

The rule of law also requires that governments respect the courts. If governments don’t respect the courts’ decisions, we could see elected officials or government staff telling employees to do things that are illegal. If such actions expand, our democracy starts to fall apart.

Respect for our courts, then, is an essential component of our way of life – our safety, our freedom and our security. If that respect is weakened or lost, we should all be worried.

Let’s look at the current situation – was there a good reason for Prime Minister Harper to publically criticize Chief Justice McLaughlin in the way he did? The response from the legal community has been a resounding "no." Harper suggested that the Chief Justice of Canada tried to initiate a conversation with him about a matter that she might have to hear in her court.

It is clear, though, that the Chief Justice was doing something she was expected to do: consult with the government about the appointment of a judge to her court. All Chief Justices of Canada have done so. She had no way of knowing that the government was considering bringing the issue of this appointment to court. Even though she is in a powerful position, she cannot see into the future.

Most of us have expressed opinions on court decisions – sometimes we think a sentence for a criminal conviction was too lenient or too harsh; sometimes we think an injured person should have got more compensation or was given too much. But I rarely hear anyone say that a court’s decision should not be respected.

I hope that the Prime Minister of Canada will respond to the chorus of voices calling for him to retract his criticism of the Chief Justice of Canada. We must retain our respect for the judiciary – a lot depends on it.

Elaine Bright is a lawyer with Pace Law Firm. She handles cases in Kenora and throughout Northwestern Ontario. Pace's personal injury lawyers have been helping accident victims in Toronto and throughout Ontario since 1980.

Tuesday, May 27, 2014

Peer Review of Diagnostic Tests a Good Idea

Toronto personal injury lawyer
Toronto lawyer Albert Conforzi: My 30 years in personal injury litigation has left me with both the highest regard for the medical profession in general, as well as the certain knowledge that healthcare practitioners are just human beings; no more and no less.

As such, they are as prone to making mistakes as anyone else. As with any mistakes, there are consequences.  These may be trivial, minor, major or life-threatening. When an engineer makes a mistake while designing a building, a collapse can be devastating. When a doctor makes a mistake, it too can be deadly.

I came across an article from a while back in the Globe relating to errors in diagnostic imaging. To check for diagnostic accuracy in the future, the Ontario government plans to roll out a "physician peer review program" to review randomly selected images that have been previously read.

Diagnostic images include such things as X-ray, CT scans, MRI, ECG testing, and mammograms.

This move brings into focus that mistakes do happen. This is particularly important in matters relating to cancer, such as mammography. But mistakes are also seen in matters relating to personal injury, such as the failure to note injuries like disc herniation, or ligament tears. This results in patients being treated by insurers as "questionable claimants," and insurance claims becoming a battle. In turn, treatment ends up either delayed or denied.

While a peer review plan will not result in a review of every diagnostic test, hopefully errors will be caught. This will lead to better people being put into the position of reading these critical diagnostic images.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. Pace's personal injury lawyers have been helping accident victims since 1980.

Tuesday, May 13, 2014

Story of Aboriginal Abuse Claims Is Not Over

Elaine Bright - Pace Personal Injury Lawyer in Kenora: Residential school claims are coming to a conclusion. Will that be the end of abuse claims by aboriginal people in Canada? Definitely not.

Class actions have started across Canada seeking compensation for abuses that took place at “day schools” – schools on reserves that were run by the federal government. Other actions have been commenced seeking compensation for victims of the "Sixties Scoop." During this period, Canadian governments took many children from native families and placed them with non-aboriginal families, where the children grew up without access to their native language and culture.

Individual claims also continue to be made in cases of severe abuse that took place in day schools, foster care, and similar settings.

Compensation for Day School Victims

Well-known lawyer Joan Jack filed a national class action in 2009 seeking compensation for day school students from across Canada for their treatment.

Jack points out that native children who attended day schools suffered much the same treatment as students who attended residential schools: being forced not to use their native language, and being taught that their culture and way of life were inferior to European-Canadian language and culture. This class action has more than 11,000 people signed up to be part of the proceedings.
Aboriginal people in Canada often ask – how long will it take? Non-aboriginal Canadians sometimes ask – haven’t we paid enough? 
Other day school class actions are under way across Canada. The usual steps involved in such actions are: finding representative members of the proposed class, filing the action, and asking a court to certify the action. A certification decision may be appealed through various levels of court. Once certification is finalized, negotiations usually take place to settle the action, and eventually class members are paid.

The whole process can take many years. In the case of the Residential School Settlement Agreement, numerous class actions were filed, and several were certified, before the federal government agreed to negotiate a settlement.

A class action against the government of Canada on behalf of native children taken from their homes in Ontario during the Sixties Scoop was certified conditionally in 2010. The government appealed and the case was sent for a new certification hearing. Once again, the action was certified – this time unconditionally – and once again, an appeal was launched.

How Long Do Class Action Suits Take?

Aboriginal people in Canada often ask – how long will it take? Is the government hoping more people will die so that they do not have to pay as much compensation? The answer is that class actions always take a long time. There is no reason to assume that the government is doing anything other than following the law and taking the steps permitted by the law to defend itself against these lawsuits.

Non-aboriginal Canadians sometimes ask – haven’t we paid enough? The answer I give is this: if I had been taught in school over many years that my language, culture and way of life were inferior; or if I had been taken from my home as a young child and placed in a completely foreign environment, I would want any compensation I could get for the harm those actions caused. Just because Canada has paid for causing other harms does not affect our obligation to pay further compensation that we owe. As a taxpayer, I want our government to pay our debts.

The Residential School Settlement Agreement was a major development in reconciling aboriginal and non-aboriginal relations in Canada. There is still a long road ahead.

Elaine Bright is a lawyer with Pace Law Firm. She handles cases in Kenora and throughout Northwestern Ontario. Pace's personal injury lawyers have been helping accident victims in Toronto and throughout Ontario since 1980.

Tuesday, April 29, 2014

What Is Tort Law?

Elaine Bright - Pace Personal Injury Lawyer in Kenora: What is tort law? Esteemed legal author, Lewis Klar, notes “…despite the fact that the law of torts has an enormous impact on people’s lives, very few probably have even heard of the word ‘tort.’”

What Is Tort Law?

Tort law is the law that requires us to pay damages to someone who suffers harm if we do something that we know, or ought to know, will cause that harm. If we go through a red light and cause an accident that results in serious, permanent harm to someone, we will have to pay compensation for causing that harm (or our insurance will).


Within tort law, the area that affects people the most is the law of negligence. Negligence may exist in law if someone owes a “duty of care” to others. For example, drivers owe a duty of care to others on the road; manufacturers owe a duty of care to people who use their products, and teachers owe a duty of care to their students.

Product Liability

Someone who owes a duty of care to another person has a legal obligation to take reasonable care not to do something - or fail to do something - if the action, or failure to act, would likely cause harm to another person. This is where manufacturer and product liability comes into play. If a car manufacturer learns that the hood on one of its models can pop up unexpectedly, the manufacturer has a legal obligation to take steps to inform anyone driving that model of car of the defect. If the manufacturer does not do so and an accident occurs as a result of the defect, the company could be liable to pay compensation to any injured party.

Even those of us who give references have a duty of care to people who receive those references and rely on them. If someone gives a glowing reference for a former employee who was not really a good employee, the person who gave the reference could be sued by the new employer for expenses related to training the employee, dismissing them and replacing them.

"Reasonable Behaviour" In The Eyes of the Law

Tort law requires us to act “reasonably” to ensure that we do not harm others. But what is “reasonable” behaviour? The courts have said that the standard in law is what would be expected of someone of average intelligence who was taking a normal amount of care. The standard is not what family members of a victim would expect, what witnesses would expect, or what you or I would expect someone to do in the situation that resulted in harm.

In order to determine what reasonable behaviour is, often courts hear evidence as to standards in an industry or occupation. An electrician might be called upon to describe standard practices in a case involving faulty wiring. An engineer might give evidence about standards in bridge design in a case involving a bridge collapse. A legal expert might testify about standards of practice if a client sues a lawyer who represented them.

Ever since I studied tort law in law school, I have had a “reasonable person” in my head. If I am faced with a dilemma that I want to address without over-reacting, I try to step outside the situation and ask myself what others would consider a reasonable response – a response that is cautious but not overly so. I find that this helps a lot with certain types of problem-solving, and I invite you to create such a person yourself. You might not want to talk out loud to your “reasonable person” though, as that could lead to a whole new set of problems…

Elaine Bright is a lawyer with Pace Law Firm. She handles cases in Kenora and throughout Northwestern Ontario. Pace's personal injury lawyers have been helping accident victims in Toronto and throughout Ontario since 1980.

Seminar: Legal and Ethical Issues for Emergency Nurses

Alex Voudouris
Today, Pace senior litigator Alex Voudouris will give a presentation on Legal and Ethical Issues for Emergency Nurses. Details here.

Alex Voudouris was admitted to the Law Society of Upper Canada in 1991. He graduated from York University in 1982 with a Specialized Honours degree in Political Science and History.

In 1989, Alex graduated from the University of Windsor Law School earning an LL.B. He also had the distinction of clerking for the Supreme Court and the Court of Appeal of the Northwest Territories.

Friday, April 25, 2014

Texting While Driving Can Be Deadly

This video highlights the dangers of texting while driving and distracted driving. It also shows how devastating the results can be on someone's family. This young woman was killed after getting into an accident while texting with her friends.

Texting will driving is becoming more and more of a danger on our streets. A recent news story out of British Columbia showed that police handed out 50 distracted driving tickets in a space of ninety minutes.

Don't text and drive. It can wait.


Monday, April 14, 2014

Distracted Driving: Snapping Pics of a Car Accident Gets Drivers a Ticket

texting while driving
RCMP ticketing drivers who take pics
It should probably go without saying, but drivers shouldn't be taking pictures of other people's car accidents as they drive past the scene.

The RCMP is now handing out distracted driving tickets to drivers who have done just that:
The RCMP says a number of registered vehicle owners can expect to receive distracted driving tickets in the mail. 
Police say they were called to a single vehicle rollover near Innisfail late Thursday afternoon, which resulted in the driver receiving minor injuries after investigators say he admittedly fell asleep at the wheel. 
While at the scene, investigators say they saw a number of drivers taking photos with their mobile devices as they passed by the collision.
The story goes on to note that the tickets do not affect someone's driving record. However, the RCMP hopes that people get the message that distracted driving is dangerous.

As we reported on our personal injury site in the past, distracted driving now causes more fatalities on the roads than either speeding or impaired driving.

Pace's personal injury lawyers have been helping accident victims in Toronto and throughout Ontario since 1980.