The Red Rocket’s litigator-in-chief

The Red Rocket’s litigator-in-chief
When you suggest to Brian Leck, the general counsel of  the Toronto Transit Commission, that he’s running the ultimate personal injury practice, he readily agrees. “Oh, I think so,” he says. “We are a target. Toronto is becoming more and more litigious.”  

The third most heavily used mass transit system in North America (after New York City’s and Mexico City’s), the TTC has a team of 18 lawyers, including 10 litigators who specialize in personal injury cases. (Four others are employment and human rights lawyers, while two are solicitors handling corporate/commercial work and construction documents.)

In 2014, the TTC was subject to 2,159 injury claims and paid out $22.3 million in settlements. Leck, who has headed the legal department since 1999, has authority to okay a settlement up to $150,000. (Higher amounts have to be approved by either the CEO or the board.)

In his quarter century at the TTC, Leck, 61, has strived to ensure that the transit system isn’t seen as a soft touch. “It’s important to send the message that we will pay a fair and reasonable amount for legitimate claims,” he says, “but if someone is advancing what we see as a fraudulent claim, we will fight it.”

Leck praises the TTC’s claims group for doing thorough investigations of injury claims. The adjusters rely on background checks, surveillance, and independent medical examinations. “By the time the case goes to a lawyer, we’re well-armed with evidence,” he says. “I find it really helpful not having to develop the case from the get-go.”

In 2012, for example, a jury dismissed a $1.6-million lawsuit by a TTC passenger who claimed she suffered serious neck injuries when a bus stopped suddenly. “That was a real victory for us,” says Leck.

TTC lawyers introduced photo evidence from the rider’s social media page to discredit her claims that the accident damaged her quality of life by impairing her ability to work, play sports, and go on family outings. The TTC then pursued the passenger to recover much of its $250,000 in legal costs.

“We’ve had other cases where juries have come back and found no injuries and we’ve been awarded costs,” says Leck. “And we’ve had cases where, although there was injury, there was a finding of no liability on TTC’s part.”  

Leck admits he’s “become fascinated with uncovering deception in the course of handling a particular file. I enjoyed immensely showing someone to be an out-and-out liar.  With jury trials, the saying is: if you lie, you die.”

Until a 2014 case involving a four-year-old boy struck by a TTC street car, the commission handled all personal injury claims in-house. It departed from its usual practice on that occasion because of what Leck calls “the dynamics of the case” — and prevailed at trial.  

Leck will use external counsel for special expertise, but he says that by keeping injury claims in-house, decisions on whether to settle can be made on the merits of the case rather than on the basis of the billable hours that would be incurred by going to trial.   

Leck’s most memorable experience at the TTC occurred in the months following the fatal subway crash on August 11, 1995. Three people were killed and 60 injured in the worst accident in the subway’s history.

“It was a difficult time, and it consumed my life for two years,” he recalls. “We set up a mediation and arbitration process that resulted in a payout of $7 million, costs included.” There were initially 178 claims, but many were withdrawn. “A lot of people tried to claim soft-tissue injury when there wasn’t any,” he says.

As general counsel, Leck is not only litigator-in-chief but also advocate-in-chief. He successfully lobbied the Ontario government for changes to the no-fault auto insurance regime in 2011. The existing system was afflicting the TTC with drastic cost increases from dubious injury claims.

Leck argued the only kinds of claims that should be settled on a no-fault basis by transit authorities were those where a bus or trolley was in a collision. “No crash, no cash” was the shorthand for Bill 173, which implemented this key change.  

If a passenger falls on a bus (absent a collision), they have a cause of action, but they have to show the transit system was at fault and prove damages. (Partly due to these changes, the amounts paid by TTC for injury claims dropped by one-third between 2011-14.)

Leck has gotten results from the federal Parliament too, leading a campaign for tougher sentences to be meted out to those convicted of assaults on transit drivers. (In 2013, the latest year for which data is available, TTC had 191 assaults against its drivers.)

Last November, Leck went to Ottawa and mobilized all-party support for bill S-221, a Criminal Code amendment which would make it an aggravating factor in an assault if the victim is a transit operator performing their duties. The bill is on track for parliamentary adoption.

Meanwhile, Leck has hired a team of “court advocates” to keep assaulted TTC drivers informed of the progress of prosecutions. The advocates attend sentencing hearings to press for stiff penalties.  

While Leck has the support of the transit workers union for these assault initiatives, he’s at odds with labour over the drug and alcohol testing policy, which the TTC introduced in 2010.  
The policy calls for testing of employees in safety-sensitive positions — not only drivers and mechanics, but also their supervisors and even senior management, right up to the CEO. Testing is based on “reasonable cause” or “post-incident” circumstances. The union has opposed the policy as a violation of worker-privacy rights. Arbitration, which has been in progress for several years, will continue for at least another year, Leck anticipates.

Although Leck is in his 26th year at the TTC, he began his legal career in private practice. In 1989, he had to chart a new course when his firm, Perry & Outerbridge LLP, imploded over a partnership dispute. Leck interviewed with TTC’s legal shop and was offered a job as a solicitor, but “I saw it as a bureaucratic kind of job that would become boring. So I declined.”

Guy Jones, then a corporate counsel at the TTC, took him for a “very long lunch” and “sold me on TTC.” Jones said TTC would give him broad discretion in how he dealt with injury cases. “At that time,” says Leck, “I was interested in doing trials and arbitrations, not just going to a settlement conference and cutting a cheque.”

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