Spring 2018

The High Stakes Cost of Litigation

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$30,000 in damages and $151,045 in costs. $20,414.813 in damages and $237,017.50 in costs.

Litigation is expensive. We all know this to be a fact, but a couple of recent Ontario Superior Court decisions drive home the point. While at first blush one might think that awarding costs worth five and ten times the damages is outrageous, in both cases, the costs awards were fair and reasonable in the circumstances of each case. Had the trial judge awarded anything less, injustice would surely be the result.

The trial judges in both cases referred extensively to my case of Cobb v. Martin Estate, 2017 ONCA 717 — a case that I will never forget. I learned a lot in the 19 day jury trial and subsequent appeal. Many of the issues that were argued in the appeal are up for another hearing at the Court of Appeal, this time before a five-member panel in May 2018. In any event, I digress. Back to the two recent costs decisions. 

The first, Duncan v. Taylor, 2017 ONSC 7445, involved an assessment of costs after the plaintiff accepted a defence offer to settle. What makes this case particularly interesting is that the plaintiff was very seriously injured, but was more at fault. He had turned left in front of an oncoming vehicle. The plaintiff was charged and convicted under the Highway Traffic Act with making an unsafe left hand turn. However, there was evidence that the defendant was speeding and if he had not been speeding could have avoided the collision.

In the end, the plaintiff accepted the defence offer to settle of $30,000 for damages plus costs to be assessed by the trial judge. The plaintiff argued for legal fees of $81,278 and reimbursement for disbursements (cases expenses) of $121,045 for a total costs award of $202,232. The defendant argued for a total costs award inclusive of disbursements of $55,000. The judge assessing the costs felt that the legal fees needed to be proportionate to the amount the plaintiff recovered. In this case, considering that the plaintiff recovered $30,000, the trial judge decided that fees of $72,278 were outside what would be proportionate and awarded legal fees of $30,000. However, the judge did not find that the disbursements of $121,045 were at all unreasonable.

The judge recognized that the plaintiff had the onus of proving liability and this was a difficult case. Over $78,247 of the $121,045 in disbursements was for expert reports. These were all necessary for the plaintiff to prove his case. The judge found no reason to reduce the amount of disbursements and rightfully awarded the plaintiff $121,045 to reimburse plaintiff’s counsel for these costs.

The second case, Persampieri v. Hobbs, 2018 ONSC 368, involved a hotly contested trial. About five years ago, many automobile insurers, lead by Aviva, made a business decision to fight every case that it deemed “defensible”. This is scorched earth litigation at its worst. This case is an excellent example of the high cost of this tactic.

The plaintiff was 84 years old. On February 11, 2009, she was a passenger in a vehicle that was hit from behind by the defendant. The defendant admitted liability. But his insurance company, Aviva, took the position that the 84-year-old plaintiff ought to receiving nothing for her injuries. So, Aviva offered $0 to settle the case. The plaintiff tried to be reasonable, recognized the risks and offered to settle before trial for $10,000 plus costs. Aviva said no. The result a 2 ½ week jury trial. In the end, the jury awarded the injured plaintiff:

- $40,000 for pain and suffering damages

- $25,000 for loss of ability to perform housekeeping and home maintenance

- $2,000 for attendant care; and

- $500 for medical and rehabilitation expenses 

After applying the statutory deductible to pain and suffering damages and collateral benefits, the net judgment was $20,414.813 in damages. Recall that the plaintiff offered to settle for $10,000 in damages. The insurer ought to have settled this case. Instead of paying a reasonable settlement to an injured 84-year-old woman, Aviva forced a trial. As noted by Justice Sanderson, Aviva cannot claim proportionality to reduce costs where it was the reason for the costs of this trial, writing:

[99] Because it had framed its defence in the manner that it had, it knew that the resolution of the issues at a trial would involve the hearing of lengthy and costly evidence, including extensive medical evidence.

[100] Sanctioning insurers’ litigation strategies involving:  

(1) discouraging Plaintiffs from pursuing legitimate but modest claims by refusing to make any meaningful offer to pay damages and forcing those Plaintiffs to trial in circumstances  where, because of defences the insurers have asserted, they cannot possibly be successful unless they call expensive medical and other evidence;

(2) then, raising the spectre of very serious adverse cost consequences of such trials;     

(3) then, even after Plaintiffs have chosen to take the serious adverse costs risks of such trials, and even after they have been successful at trial and have received costs awards under Rule 49.01(1) on a substantial indemnity scale; 

(4) attempting to unduly minimize the quantum of otherwise usual amounts of costs including substantial indemnity costs on the basis of proportionality, would be, in my view, to sanction under compensation of Plaintiffs for costs legitimately incurred to make many lawsuits uneconomic and could generally discourage Plaintiffs with modest claims, even if valid from pursuing them.

[101] If pursuing such an approach or strategy were to have the effect of generally discouraging Plaintiffs from bringing and pursuing modest sized claims, [even in cases such as here where liability has been admitted] the  benefits to insurers could  be significant and wide-ranging.

[102] If insurers were incentivized to pursue such a strategy and to generally resist settlement of such cases, in order to generally discourage such Plaintiffs from pursuing such actions, that could seriously jeopardize overall access to justice.

[103] Insurers can, of course, pursue whatever strategy options they deem fit, but especially where such strategies may have wide-ranging and adverse implications involving widespread denial of access to justice, the use such strategies should not be encouraged by the giving of cost breaks on foreseeable costs consequences.

I applaud Justice Sanderson for his principled reasons and judgment. As the saying goes, “…live by the sword and die by the sword”. There is no question that Aviva is entitled to take cases to trial, but if it gambles on a trial and loses, it must pay the costs.

The odds are stacked against injured plaintiffs in Ontario. We need to keep fighting for those innocently injured, to ensure that they receive fair and just compensation. Awarding fair and reasonable costs is necessary to make this happen.

 

Originally Published: June 25, 2018

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Kris Bonn, Contributor and Personal Injury, Insurance Disputes & Criminal Defence Lawyer

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Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges.

Kris was born and raised in Trenton and has strong roots in the local community. Kris graduated from St. Paul’s Secondary School in Trenton. He attended Queen’s University where he obtained an Honours Commerce degree. He went to the big city to the University of Toronto for law school, graduating in 2000. Kris stayed in Toronto after graduation learning the ropes with the national law firm of Fasken Martineau DuMoulin before returning home.

Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges. In 2005, Kris successfully obtained his designation as a qualified breath technician. Kris has successfully argued cases before juries, judges and the Court of Appeal in Toronto. He works with his clients to obtain the best possible results. If that means going to trial, he has the experience and know how to get the job done.

Kris is active in the community as a Director of the Ontario Trial Lawyers Association and the local Brain Injury Association Quinte District. He is a member of the Hastings County Law Association and the Advocates Society. He supports local charities, including the Trenton and Belleville Hospital Foundations.

Outside of the office he tries to make time in the early morning before work to run, bike and swim.



The #1 cause of aging and what to do about it

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What do you think could age you faster? Poor nutrition, lack of exercise, or not enough sleep?

If you picked sleep, you would be right.

Sleep is such an important building block for our health yet in today's modern world it is often considered an inconvenience. How often do hear people get praised for "burning the midnight oil" or consider it a badge of honour to pull an "all-nighter"?

In Tom Rath's book, Eat Move Sleep, he likens the number of hours of sleep deprivation to the number of beers you might drink. Many people wouldn't want their child's teacher to have a few beers before coming to class, but missing a few hours sleep is not even considered, it might even be expected.

If you truly want excellent health, making sleep a priority is essential.

Here are some quick tips to take advantage of sleep as a potent anti-cancer, anti-inflammatory, anti-aging, and cost effective (actually it's totally free!) tool for longevity:

  • Best bedtime is 10 pm. Try to get as close to this as possible, even if it's in small 10 -15 min increments
  • Best time to wake up is 6 - 8am.
  • Set an alarm to go to bed.
  • Expose your eyes to bright light as soon as you can
  • Have protein for breakfast.
  • Make mid-morning your last call for caffeine.
  • Shut off all screens 30 -60 minutes before bed.
  • Take melatonin if you are a shift-worker.
  • Exercise regularly.
  • Make early evening your last call for alcohol. The closer to bed you drink, the more likely your will have disturbed sleep.
  • Keep your bedroom cool and dark.
  • Have a bedtime routine.
  • Dim the lights as evening falls.
  • Try guided meditation to help you fall asleep.
  • Check your blood sugar if you are having trouble staying asleep.
Early to bed, early to rise, makes a man healthy, wealthy, and wise.
— Unknown

 

Originally Published: June 18, 2018

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Dr. Michelle Durkin, BSC(H), ND, Contributor and Bowen Practitioner at Quinte Naturopathic Centre

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Dr. Michelle Durkin attended the University of Guelph and obtained a Bachelor of Science with honours in Biomedical Science. With this medical background, she went on to study at the Canadian College of Naturopathic Medicine in Toronto and graduated as a licensed doctor of naturopathic medicine in 2003. Dr. Durkin founded her clinic, the Quinte Naturopathic Centre. As a Naturopathic Doctor she is very committed to providing excellent individualized health care in a warm and professional environment. Michelle is also a professional Bowenwork® practitioner. In addition, Dr. Durkin holds professional memberships with the Ontario Association of Naturopathic Doctors (OAND), the Canadian Association of Naturopathic Doctors (CAND), and the Association of Perinatal Naturopathic Doctors (APND).



Joint Health as We Age

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As our bodies change with age, there typically is a lot of strain placed on our joints. Not only do we have the aging process but we also go through changes such as pregnancy strain on our joints, weight loss and gain, daily lifestyle, plus our activity levels. These all play a part in how our joints progress and how much deterioration will happen.

We will start with our daily lifestyle effects on our joints. This encompasses our everyday activities such as how much we walk, sit and stand. Our work life accounts for many hours of our day, do you sit at a desk all day? Maybe you have a very strenuous job lifting repeatedly? Both are very harmful to our joints. If we sit most of our day there is constant pressure through our spine and hip joints. If you tend to have poor posture while at your desk, this will cause constant pressure through your Cervicle Spine which could develop into displaced discs between our vertebrae, and deterioration of the vertebral bodies. Make sure you have a postural assessment of your work space and be as ergonomic as possible to avoid these outcomes. If you have a more manual job and perform activities such as lifting, pushing, pulling, climbing, etc, this has more serious effects on the vertebral column if repeated and not performed properly. These activities could result in displaced discs, herniation of a disc, narrowing of a vertebral canal that is vital for nerve paths, and of course deterioration of discs and bones. You always want to make sure you are using proper and safe form while performing these duties. It will make a huge difference in your longevity of your health.

Your activity levels also play a role in how your joints will progress. This includes your workouts, running, walking, yoga, weight lifting, etc. Joint stability is very important when you have an active lifestyle. There are many activities that apply repeated strain to joints, such as running. Your knees and hips can take a lot of impact over time with this activity. As well as playing sports, think of professional athletes and how we often hear about them eventually having to retire due to injuries and wear-and-tear on their bodies. These athletes are pretty young, but have taken their bodies through the extreme strains and they deteriorate at a much quicker rate than the typical person with a typical activity level. Physical activity as we know, is great for our health, but we need to make sure our joints are well protected and we are performing activities within our abilities and safely. If you live an active lifestyle you want to maintain your joint health with regular care such as massage therapy, acupuncture, physiotherapy, and hydro-therapy. Keeping your soft tissue that surround the joints treated is going to make a large impact on how the joint functions and prevent injuries and deterioration.

The aging process is inevitable with joint health. There are many conditions that can develop such as osteoarthritis, degenerative disc disease (DDD), displacement of joints, formations, osteophytes, and bony growths. That being said, it doesn’t always mean the older you are the worse your joints are. If we performed diagnostic imaging on a 22 year old, a 35 year old, a 48 year old and a 70 year old, we would likely find degenerative disc disease in every single person. The level of severity will be the only aspect that is different. As we now know our lifestyle is a large component to how our joints age, so this is dependent on how each of these people lived their life. If the 22 year old plays sports and is in school sitting and studying often, there will be vertebral changes as we discussed. However if this 22 year old treats their body correctly, these changes will be minimal and not cause discomfort or dysfunctions. Joint health is up to how you treat your body through your lifestyle or how much you neglect it.

For conditions such as arthritis and DDD there are many ways you can manage the progression and pain. Therapies that treat the soft tissues again are going to be very beneficial. Many joint conditions can be maintained with a healthy diet as well. Make sure you are working with a Nutritionist or Naturopathic Doctor to discuss what foods and proper supplements are good and bad for your condition. These can make a very large impact of the progression of your joint health.

Make sure you have a team of health professionals you see on a regular basis to keep your body functioning properly and prevent serious conditions and dysfunctions. Prevention is the best medicine.

 

Originally Published: May 21, 2018

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Dana Goodfellow, RMT, Contributor and D.Ac., Meditation Teacher, Owner – Quinte Mind & Body

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Dana is the owner of Quinte Mind & Body, and has been a practicing Registered Massage Therapist (RMT) for many years in the Belleville area. Through Dana’s love of learning and providing superior results for her patients, she has added modalities from her knowledge of the body and medical treatment. Two modalities are Contemporary Medical Acupuncture and becoming a Certified Meditation Teacher and Facilitator. As a graduate of an advanced course of Massage Therapy at Georgian College, Dana takes great pride in treating patients with many different manual techniques. After a year in practice, Dana received her certification from McMaster University for Contemporary Medical Acupuncture.



Living Longer, Living Stronger: Anti-aging wisdom for all generations

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As a species, we are living longer than ever before and the figures for Canada reflect global trends. Governments are worried, health care professionals are starting to feel the effects of an aging population and many others are concerned about the consequences of aging. What happens when a population lives longer than previous generations? What effect will it have on the country, the economy and the healthcare system?

Statistics Canada’s latest figures show a life expectancy of 83 for females and 79 for males—men have always lagged behind women in longevity. In 1980, Canadian women could expect to live on average to age 79, in 1970 the figure was 76 and in 1960, it was 74. In 1950, the average life expectancy for women was 71, in 1940 it was 66 and in 1920 the number was 61. 

Over the course of about 90 years, a woman’s life expectancy in Canada has increased by an astonishing 22 years. Men aren’t far behind at 20 years. Longevity in Canada differs very slightly by province with Ontario and British Columbia holding top spots and Newfoundland and Labrador coming in last place.

Living longer may sound like a positive thing, but if those extended years are miserable, pain-filled, present physical challenges and lack a respectable quality of life, some would argue what point is there to living into our 90s, 100s and beyond if we struggle to sustain a manageable quality of life.

Living a long, healthy, wholesome life is key to maintaining a happy and fulfilled existence well into old age. There are many reasons contributing to longer life expectancy figures, including improved medical care and knowledge, education, better nutrition and so on. When we know better, we tend to do better. 

Typically, what we do in our 20s, 30s and 40s can affect how we age and how we manage our health through our 70s, 80s and 90s. Treat your body well and it should repay you in later life. Call it an insurance policy. Abuse it too often and it may let you down when you least expect it.

Life expectancy from birth has increased dramatically since 1900 in Canada where women could once expect to live to just 50 years of age and men to only 47 years. While life expectancy has undergone dramatic change in the past century, living longer is one thing, living longer in good health is quite another. 

While longevity is often linked to good genes, our DNA is just one small factor in the healthy aging equation. Since we can’t change our DNA, our sex or our age, focus should be on those factors where we have control such as exercise, nutrition and maintaining regular check-ups with a physician or health care provider.  

In Ontario, there are programs in place for women to have regular pap tests and mammograms, and for men, prostate cancer checks. Regular colon cancer checks for both male and females are also recommended as we age. These preventative measures are designed to catch the worst types of cancers early. 

Detecting serious disease in its early stages can mean the difference between life and death—or at least a significantly decreased quality of life living with and managing a serious illness. Early detection in such cases is paramount. 

None of us know what is around the corner when it comes to our health. There is no crystal ball. Sometimes it can just be simply luck. A key component to living well is prevention. It’s far easier to prevent disease than it is to treat it or live with it. 

Along with early detection and prevention, comes moderation. ‘Moderation in everything’ used to be something parents and grandparents would preach to younger generations.

Until recently, smoking and lung cancer were big killers. We live in an age where studies abound on how sitting is the new smoking. It is said loneliness is a modern epidemic. We live in a world where retirement is no longer guaranteed or an automatic requirement. We live in a time where at age 60 or 65, we are no longer put out to pasture where retirees begin a life of slippers and rocking chair once they receive their long service award.

Older generations can teach us a lot about aging dos and don’ts. Ask an older person about their secret to longevity and they may proudly say they never smoked or they remained tee-total—some gleefully insist a tot of whisky is their secret. Others will say having family around makes a difference. Some will say laughter is important. A few will state they kept moving their old bodies even when it hurt to do so. Others will say they did the daily crossword to keep their mind sharp.

Recent studies remind us how loneliness is now the biggest killer of older adults. Social activities, getting involved and staying active is essential. Intimate connections may help us live longer and stronger, but social relationships work just as well. As human beings, we need face-to-face connections and interaction, especially as we age.

Whether baby boomer, Gen Xer, octogenarian or millennial, it’s never too early or too late to begin living and aging well. Treat life as an insurance policy: the more you put in and the longer you contribute, the more you get out of it when you need it the most.   

The secret to longevity, the new anti-aging, might be to never stop moving, never stop learning, never stop doing. The ‘use it or lose it’ philosophy still holds true in the 21st century. Aging well means acting smart, but life without a little a fun, daring to step outside your comfort zone, or taking a giant leap of faith from time-to-time is just plain dull. Get out and enjoy every day to the fullest because life should be a blast at any age.

 

Originally Published: April 26, 2018

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Sharon Harrison, Contributor

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Sharon Harrison is a writer, editor and former intellectual property administrator and consultant. Whether editorialist, columnist or freelance reporter, Sharon is a storyteller, photographer, researcher and contributor to many lifestyle publications and media outlets including Grapevine, The Link, The Wellington Times and Countylive. When not hunting for the next interesting story or capturing the perfect photograph, Sharon has a penchant for nutrition and healthy living — and dark chocolate. A foodie, life-long gardener and art lover with a curiosity for mosaics, her inspiration for life comes from the picturesque beauty of Prince Edward County.