Friday, 30 December 2011 13:39
Rule 48 creates confusion for litigators in new year
LawPRO has issued an alert to litigators advising them of a potential “tsunami” in administrative dismissals of undefended actions next month, saying failing to take “fresh steps” in stagnant cases by Jan. 1, 2012 (that’s MONDAY!) could spell trouble for litigators in the in the New Year.
Under Rule 48.14 of the Rules of Civil Procedure, unless a court orders otherwise, defended actions that aren’t placed on a trial list or terminated within two years after the first defence is filed, will be dismissed for delay by a registrar of the court starting Jan. 1, unless within 90 days of an issued notice, the action is set for trial or terminated. Actions that are placed on trial lists, but were subsequently struck off will also be dismissed, unless the action is put back on the trial list or terminated within 90 days of the notice, according to the rule.
A registrar can also dismiss actions that are abandoned if more than 180 days have passed since the date the originating process was issued or if the action remains largely undefended, according to Rule 48.15.
“As we have done in the past in similar circumstances, we sent the alert in an effort to prevent claims,” said Dan Pinnington, director of practicePRO. “Fifteen or so lawyers called LawPRO further to our blast. A few were perhaps facing dismissals but the majority were seeking direction on what a fresh step on the matter is.”
According to Pinnington, however, Rule 48 isn’t clear on exactly what those fresh steps may be, leaving litigators to wonder just exactly how the rule will effect them in the new year.
“Unfortunately the rule is not clear on this,” said Pinnington. “We won’t know the impact until we see actual claims reported to us and the interpretation of the rule will impact on how those claims are resolved.”
Pinnington added the Ontario Trial Lawyers Association has since lobbied for a notice to lawyers before a dismissal occurs.
Under Rule 48.14 and Rule 48.15, litigators are not currently given notice before a dismissal.
“If you read the whole rule, it appears that the deemed dismissals only applies to undefended actions, thus the number of matters impacted could be somewhat fewer,” Pinnington adds. “Time will tell.”
In the meantime, the legal profession has sent out warnings about the rules throughout the last several months, with Pinnington noting several county law associations had sent out notices similar to LawPRO earlier in the month and the Ontario Bar Association recently hosted a weeklong discussion about the topic in its LinkedIn group.
Under Rule 48.14 of the Rules of Civil Procedure, unless a court orders otherwise, defended actions that aren’t placed on a trial list or terminated within two years after the first defence is filed, will be dismissed for delay by a registrar of the court starting Jan. 1, unless within 90 days of an issued notice, the action is set for trial or terminated. Actions that are placed on trial lists, but were subsequently struck off will also be dismissed, unless the action is put back on the trial list or terminated within 90 days of the notice, according to the rule.
A registrar can also dismiss actions that are abandoned if more than 180 days have passed since the date the originating process was issued or if the action remains largely undefended, according to Rule 48.15.
“As we have done in the past in similar circumstances, we sent the alert in an effort to prevent claims,” said Dan Pinnington, director of practicePRO. “Fifteen or so lawyers called LawPRO further to our blast. A few were perhaps facing dismissals but the majority were seeking direction on what a fresh step on the matter is.”
According to Pinnington, however, Rule 48 isn’t clear on exactly what those fresh steps may be, leaving litigators to wonder just exactly how the rule will effect them in the new year.
“Unfortunately the rule is not clear on this,” said Pinnington. “We won’t know the impact until we see actual claims reported to us and the interpretation of the rule will impact on how those claims are resolved.”
Pinnington added the Ontario Trial Lawyers Association has since lobbied for a notice to lawyers before a dismissal occurs.
Under Rule 48.14 and Rule 48.15, litigators are not currently given notice before a dismissal.
“If you read the whole rule, it appears that the deemed dismissals only applies to undefended actions, thus the number of matters impacted could be somewhat fewer,” Pinnington adds. “Time will tell.”
In the meantime, the legal profession has sent out warnings about the rules throughout the last several months, with Pinnington noting several county law associations had sent out notices similar to LawPRO earlier in the month and the Ontario Bar Association recently hosted a weeklong discussion about the topic in its LinkedIn group.
Friday, 30 December 2011 10:00
Top 10 stories of 2011 on lawtimesnews.com
This past year, it was the human stories of lawyers, members of the bench, and wannabe lawyers in Ontario that caught the attention of Law Times readers. 
Here are the top 10 most read articles from lawtimesnews.com in 2011:
1. Lawsuit alleges abusive culture at T.O. firm
2. Associate sues Mathews Dinsdale for $1.3M
3. Lawyers, judges battle at LSUC
4. Law graduate loses human rights case against articling principal
5. Ex-teacher who slept with student now seeks bar entry
6. Ex-Crown loses $1M suit over promised judicial appointment
7. Largest law firms in Canada
8. JP accused of sexually harassing six court clerks
9. Former escort turns life around to become lawyer
10. Colleague gives missing lawyer benefit of doubt
Here are the top 10 most read articles from lawtimesnews.com in 2011:1. Lawsuit alleges abusive culture at T.O. firm
2. Associate sues Mathews Dinsdale for $1.3M
3. Lawyers, judges battle at LSUC
4. Law graduate loses human rights case against articling principal
5. Ex-teacher who slept with student now seeks bar entry
6. Ex-Crown loses $1M suit over promised judicial appointment
7. Largest law firms in Canada
8. JP accused of sexually harassing six court clerks
9. Former escort turns life around to become lawyer
10. Colleague gives missing lawyer benefit of doubt
Friday, 30 December 2011 09:48
News roundup — December 30, 2011
Canada
Quebec poker star's ex-girlfriend among accused in robbery, CBC
Vancouver mayor's foster son facing drug charges, The Province
B.C. court orders new trial in marijuana possession investigation, Vancouver Sun
United States
California court says state can eliminate redevelopment agencies, Reuters
Louisiana court upholds 2009 murder conviction of rapper C-Murder, Reuters
International
Pakistan court to investigate 'memogate' scandal, Reuters
China court accepts compensation case against ConocoPhillips: Xinhua, Reuters
Quebec poker star's ex-girlfriend among accused in robbery, CBC
Vancouver mayor's foster son facing drug charges, The Province
B.C. court orders new trial in marijuana possession investigation, Vancouver Sun
United States
California court says state can eliminate redevelopment agencies, Reuters
Louisiana court upholds 2009 murder conviction of rapper C-Murder, Reuters
International
Pakistan court to investigate 'memogate' scandal, Reuters
China court accepts compensation case against ConocoPhillips: Xinhua, Reuters
Thursday, 29 December 2011 12:09
Most read stories on Canadianlawyermag.com in 2011
Here are the top 10 most read stories of 2011 from canadianlawyermag.com. Some are reproduced from the magazine, such as our Top 25 Most Influential — always a big draw — and some you'll only find online. As usual, the stories that rise to the top of the charts tend to be the rankings and surveys. Everyone wants to know how they measure up and where they fit in! So of course, I encourage readers to participate in all our upcoming surveys and rankings in 2012.
1. The Top 25 Most Influential (2011 edition)
2. Law school star fights LSUC’s good character ruling
3. The 2011 Canadian Lawyer compensation survey
4. The going rate: Canadian Lawyer’s 2011 legal fees survey
5. Behind the scenes: The January 2011 Canadian Lawyer cover story that interviewed defence counsel in the Russell Williams case.
6. A cut above: Canadian Lawyer highlights the best boutiques in the areas of personal injury and trusts and estates.
7. 10 things you really need to know to practise law
8. Useful Google tips and tricks for lawyers
9. Prairie gold: Canadian Lawyer's top 10 prairie law firms are keeping very busy
10. Osgoode student who overcame many obstacles dies
always a big draw — and some you'll only find online. As usual, the stories that rise to the top of the charts tend to be the rankings and surveys. Everyone wants to know how they measure up and where they fit in! So of course, I encourage readers to participate in all our upcoming surveys and rankings in 2012.1. The Top 25 Most Influential (2011 edition)
2. Law school star fights LSUC’s good character ruling
3. The 2011 Canadian Lawyer compensation survey
4. The going rate: Canadian Lawyer’s 2011 legal fees survey
5. Behind the scenes: The January 2011 Canadian Lawyer cover story that interviewed defence counsel in the Russell Williams case.
6. A cut above: Canadian Lawyer highlights the best boutiques in the areas of personal injury and trusts and estates.
7. 10 things you really need to know to practise law
8. Useful Google tips and tricks for lawyers
9. Prairie gold: Canadian Lawyer's top 10 prairie law firms are keeping very busy
10. Osgoode student who overcame many obstacles dies
Thursday, 29 December 2011 11:12
Ontario appeal court clarifies definition of catastrophic impairment
The Ontario Court of Appeal has restored clarity on when catastrophic impairment should be considered for accident victims and it could have an impact on what the government may do regarding how the definition is treated by the insurance industry.
On Dec. 23, the Ontario Court of Appeal confirmed in Kusnierz v. The Economical Mutal Insurance Co. that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment.
The case involved Robert Kusnierz who suffered serious physical injuries in a 2001 car accident, including a below-knee amputation. He also suffered from psychological problems including depression. The Court of Appeal found the judge at Kusnierz’ 2010 trial against his insurance company, Economical, erred when he concluded that Kusnierz’ psychological impairments should not be combined with his physical impairments, and that Kusnierz had therefore not sustained a catastrophic impairment.
Under Ontario’s motor vehicle legislation, an accident victim who meets the definition of catastrophic impairment is entitled to claim greater accident benefits, and for life or until the maximum benefits have been paid out. In tort lawsuits arising from car accidents occurring between Nov. 1, 1996 and Sept. 30, 2003, the accident victim must prove he or she sustained a catastrophic impairment to recover health care expenses. A determination of catastrophic impairment often makes a crucial difference to an accident victim’s recovery and quality of life.
In allowing Kusnierz’s appeal it was the first time an appellate court weighed in on the issue of combining psychological and physical impairment.
“On the issue of whether someone has the right to have psychological impairment combined with physical it is clear cut just as it was prior to the Kusnierz trial decision,” says Neil Wheeler, a partner with Lerners LLP in Toronto who acted for plaintiffs Phillipe and Cecille Desbiens in 2004’s Desbiens v. Mordini, which first established the definition for catastrophic impairment combining psychological and physical impairment, which had been adopted by the courts and Financial Services Commission (which regulates accident benefits) up until the Kusnierz case in late 2010.
In that trial Justice Harvey Spiegel found that an accident victim’s psychological impairments should be combined with physical impairments when considering whether he or she suffered a “55 per cent whole person impairment” (one of the definitions of catastrophic impairment). Desbiens confirmed that catastrophic impairment status could be sought by a broader group of accident victims than many in the insurance industry maintained.
Desbiens had been followed by the court and the FSCO until the judge at Kusnierz’s October 2010 trial disagreed. In its ruling in Kusnierz, the Court of Appeal stated that it preferred Spiegel’s conclusion and reasons in Desbiens to those of the trial judge in Kusnierz.
“It really boiled the issue down to as clear as a scenario as one could get,” says Wheeler. “It eliminates some uncertainty on the issue which had been a challenge not just for injured people and their lawyers, but also insurance companies because in the period between the Kusnierz trial decision and appeal court’s decision — about one year — there was a tremendous amount of uncertainty as to what the proper approach to the issue was and whether someone was going to meet the definition or not.
“Uncertainty is not a good thing for insurers or injured people.”
Wheeler says one issue still unresolved is that the government may give some consideration to the definition of catastrophic impairment in the course of amending the Insurance Act.
“The government has been giving consideration to this issue. There was a report put together earlier this year advising potential modifications to the definition. It will be interesting to see what impact the Court of Appeal’s decision has on any future attempts the government may decide to initiate to amend the definition, say Wheeler.
Given the uncertainty surrounding the issue introduced by Kusnierz, the government had been soliciting input on how to modify the definition. In an advisory report issued by the FSCO in April, a suggestion was that physical and psychological impairments not be combined.
“However, now we have some clear guidance on this issue it ought to have a tremendous impact on what, if anything, the government decides to do,” adds Wheeler.
He says the Kusnierz trial decision created uncertainty for both accident victims and insurers about the meaning of catastrophic impairment. “It confirms that an accident victim does not have to establish catastrophic impairment on the basis of physical impairments alone, or psychological impairments alone.”
Wheeler says the appeal decision should not open the floodgates to others who think they can claim catastrophic impairment.
“A person has to demonstrate and prove medically and to the court’s satisfaction that they have suffered very severe physical and psychological impairment — that has to be substantiated and proven. The other point is simply being designated catastrophically impaired, in and of itself entitles you to nothing — it simply gives you opportunity in the accident benefits context to access a potentially greater source of benefits and potentially for life. You still have to establish entitlement.”
ed note: updated Dec. 30 to fix name of judge and law firm.
On Dec. 23, the Ontario Court of Appeal confirmed in Kusnierz v. The Economical Mutal Insurance Co. that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment.
The case involved Robert Kusnierz who suffered serious physical injuries in a 2001 car accident, including a below-knee amputation. He also suffered from psychological problems including depression. The Court of Appeal found the judge at Kusnierz’ 2010 trial against his insurance company, Economical, erred when he concluded that Kusnierz’ psychological impairments should not be combined with his physical impairments, and that Kusnierz had therefore not sustained a catastrophic impairment.
Under Ontario’s motor vehicle legislation, an accident victim who meets the definition of catastrophic impairment is entitled to claim greater accident benefits, and for life or until the maximum benefits have been paid out. In tort lawsuits arising from car accidents occurring between Nov. 1, 1996 and Sept. 30, 2003, the accident victim must prove he or she sustained a catastrophic impairment to recover health care expenses. A determination of catastrophic impairment often makes a crucial difference to an accident victim’s recovery and quality of life.
In allowing Kusnierz’s appeal it was the first time an appellate court weighed in on the issue of combining psychological and physical impairment.
“On the issue of whether someone has the right to have psychological impairment combined with physical it is clear cut just as it was prior to the Kusnierz trial decision,” says Neil Wheeler, a partner with Lerners LLP in Toronto who acted for plaintiffs Phillipe and Cecille Desbiens in 2004’s Desbiens v. Mordini, which first established the definition for catastrophic impairment combining psychological and physical impairment, which had been adopted by the courts and Financial Services Commission (which regulates accident benefits) up until the Kusnierz case in late 2010.
In that trial Justice Harvey Spiegel found that an accident victim’s psychological impairments should be combined with physical impairments when considering whether he or she suffered a “55 per cent whole person impairment” (one of the definitions of catastrophic impairment). Desbiens confirmed that catastrophic impairment status could be sought by a broader group of accident victims than many in the insurance industry maintained.
Desbiens had been followed by the court and the FSCO until the judge at Kusnierz’s October 2010 trial disagreed. In its ruling in Kusnierz, the Court of Appeal stated that it preferred Spiegel’s conclusion and reasons in Desbiens to those of the trial judge in Kusnierz.
“It really boiled the issue down to as clear as a scenario as one could get,” says Wheeler. “It eliminates some uncertainty on the issue which had been a challenge not just for injured people and their lawyers, but also insurance companies because in the period between the Kusnierz trial decision and appeal court’s decision — about one year — there was a tremendous amount of uncertainty as to what the proper approach to the issue was and whether someone was going to meet the definition or not.
“Uncertainty is not a good thing for insurers or injured people.”
Wheeler says one issue still unresolved is that the government may give some consideration to the definition of catastrophic impairment in the course of amending the Insurance Act.
“The government has been giving consideration to this issue. There was a report put together earlier this year advising potential modifications to the definition. It will be interesting to see what impact the Court of Appeal’s decision has on any future attempts the government may decide to initiate to amend the definition, say Wheeler.
Given the uncertainty surrounding the issue introduced by Kusnierz, the government had been soliciting input on how to modify the definition. In an advisory report issued by the FSCO in April, a suggestion was that physical and psychological impairments not be combined.
“However, now we have some clear guidance on this issue it ought to have a tremendous impact on what, if anything, the government decides to do,” adds Wheeler.
He says the Kusnierz trial decision created uncertainty for both accident victims and insurers about the meaning of catastrophic impairment. “It confirms that an accident victim does not have to establish catastrophic impairment on the basis of physical impairments alone, or psychological impairments alone.”
Wheeler says the appeal decision should not open the floodgates to others who think they can claim catastrophic impairment.
“A person has to demonstrate and prove medically and to the court’s satisfaction that they have suffered very severe physical and psychological impairment — that has to be substantiated and proven. The other point is simply being designated catastrophically impaired, in and of itself entitles you to nothing — it simply gives you opportunity in the accident benefits context to access a potentially greater source of benefits and potentially for life. You still have to establish entitlement.”
ed note: updated Dec. 30 to fix name of judge and law firm.
Thursday, 29 December 2011 09:58
News roundup — December 29, 2011
Canada
B.C Crown stays arson charges against son of ex-GG Schreyer, The Province
Lawyer of ex-Calgary Parking Authority bosses hopes to settle patent fight, Calgary Herald
Sex assault suspect arrested in northeast Calgary, Calgary Herald
United States
Family of Marine jet crash victims awarded $17.8M, Reuters
U.S. gov't sues Yankees co-owner for $670,000 in taxes, Reuters
International
Nigerian court dismisses challenge to Jonathan election victory, Reuters
Mexican court annulls election defeat for displayed logo on boxer's shorts, Reuters
B.C Crown stays arson charges against son of ex-GG Schreyer, The Province
Lawyer of ex-Calgary Parking Authority bosses hopes to settle patent fight, Calgary Herald
Sex assault suspect arrested in northeast Calgary, Calgary Herald
United States
Family of Marine jet crash victims awarded $17.8M, Reuters
U.S. gov't sues Yankees co-owner for $670,000 in taxes, Reuters
International
Nigerian court dismisses challenge to Jonathan election victory, Reuters
Mexican court annulls election defeat for displayed logo on boxer's shorts, Reuters
Wednesday, 28 December 2011 11:27
The top 10 Legal Feeds blog posts of 2011
In its first year, Legal Feeds has brought legal news from across Canada to our readers. Seems lawyers like to read about what's going on with their collegues, from appointments to the bench to lawyers in trouble and more, here are the 10 most read stories of 2011 from the blog.1. Tale of dead dog’s ashes not enough to save lawyer
2. Toronto criminal lawyer Marshall Sack dies
3. Top 10 tips for the well-dressed (male) lawyer
4. Judge lays into insurance lawyer
5. Six new judicial appointments
6. B.C. judge calls Justice lawyer’s conduct ‘reprehensible’
7. Feds announce seven judicial appointments
8. Young Women in Law hosts charity gala
9. Tax Court nixes lawyer’s attempt to write off internet poker losses
10. Crush of Chinese homebuyers create legal issues in B.C.
Wednesday, 28 December 2011 10:22
Courthouses of Canada: Pictou, N.S.
Lawyers and judges in the Pictou Justice Centre are seeing things in a whole new light. Nova Scotia’s newly renovated courthouse, about a two-hour drive from Halifax, features three painted glass windows from the town’s original court.
The windows were originally imported from England in the mid-1800s, but were badly damaged in a fire at the original Pictou County Courthouse a few years later. Thanks to the efforts of community members — including two lawyers, a court administrator, and a retired provincial court judge — they now once again look down over the dispensation of justice in Pictou.
“The detail in the windows has been described as the finest of its kind in Canada and it was important to preserve their history and beauty,” said retired provincial court judge Clyde MacDonald. MacDonald was one of the founding members of the Pictou Justice Complex Painted Windows Society.
The light from the restored windows — including one of the Roman Goddess of Justice — will shine over a modern courthouse that cost the provincial government $2 million to renovate and upgrade. Now all justice services in the area are contained under one roof, which features a secure interview room in cells, videoconferencing services, a room for vulnerable witnesses, a suite of secure rooms for legal counsel, and surveillance cameras and equipment with continuous views of inside and outside the courthouse. Not to mention a very special painted lady.
This is the third in our occasional photographic series of the courthouses of Canada. If you have a photo and story of the courthouse in your city or town that you’d like to share, e-mail it to editor This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
The windows were originally imported from England in the mid-1800s, but were badly damaged in a fire at the original Pictou County Courthouse a few years later. Thanks to the efforts of community members — including two lawyers, a court administrator, and a retired provincial court judge — they now once again look down over the dispensation of justice in Pictou.
“The detail in the windows has been described as the finest of its kind in Canada and it was important to preserve their history and beauty,” said retired provincial court judge Clyde MacDonald. MacDonald was one of the founding members of the Pictou Justice Complex Painted Windows Society.
The light from the restored windows — including one of the Roman Goddess of Justice — will shine over a modern courthouse that cost the provincial government $2 million to renovate and upgrade. Now all justice services in the area are contained under one roof, which features a secure interview room in cells, videoconferencing services, a room for vulnerable witnesses, a suite of secure rooms for legal counsel, and surveillance cameras and equipment with continuous views of inside and outside the courthouse. Not to mention a very special painted lady.
This is the third in our occasional photographic series of the courthouses of Canada. If you have a photo and story of the courthouse in your city or town that you’d like to share, e-mail it to editor This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Additional Info
- Subtitle New light shines on Nova Scotia justice centre
Wednesday, 28 December 2011 10:05
News roundup — December 28, 2011
Canada
Crown approves charges against Vancouver Stanley Cup rioters, The Globe and Mail
Four fatal B.C. shootings not related: police, The Globe and Mail
Toronto man facing drug charges after downtown police chase, Toronto Star
United States
BP not negligent in Alaska oil spill: judge, Reuters
Divided appeals court vacates murder conviction, Reuters
International
Thai court jails firebrand 'red shirt,' then releases on bail pending appeal, Reuters
Egypt's Mubarak back in court in landmark trial, Reuters
Crown approves charges against Vancouver Stanley Cup rioters, The Globe and Mail
Four fatal B.C. shootings not related: police, The Globe and Mail
Toronto man facing drug charges after downtown police chase, Toronto Star
United States
BP not negligent in Alaska oil spill: judge, Reuters
Divided appeals court vacates murder conviction, Reuters
International
Thai court jails firebrand 'red shirt,' then releases on bail pending appeal, Reuters
Egypt's Mubarak back in court in landmark trial, Reuters
Friday, 23 December 2011 10:00
News roundup — December 23, 2011
Canada
Top court to hear coma life support case, The Globe and Mail
N.L. court approves residential school lawsuit, CBC News
Chretien to get $200K for sponsorship-scandal challenge, National Post
United States
Ex-players sue NFL for alleged brain damage, Reuters
Delta Airlines faces class action over baggage policy, Reuters
International
Former Ukraine PM loses appeal, Reuters
U.K. court rejects gov't solar panel proposal, Reuters
Top court to hear coma life support case, The Globe and Mail
N.L. court approves residential school lawsuit, CBC News
Chretien to get $200K for sponsorship-scandal challenge, National Post
United States
Ex-players sue NFL for alleged brain damage, Reuters
Delta Airlines faces class action over baggage policy, Reuters
International
Former Ukraine PM loses appeal, Reuters
U.K. court rejects gov't solar panel proposal, Reuters
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