Personal Injury

Ford not hitting on all cylinders but on the right road: Rastin

By Paul Russell, AdvocateDaily.com Contributor

Ontario’s Conservative government deserves praise for many initiatives announced in its first year in power, though it's at the risk of making serious missteps in some areas, says Barrie-area personal injury lawyer Steve Rastin.

“There's a lot that the Conservatives have proposed in their legislative agenda that will bring definite improvements, but the province appears to be considering some ideas that are not in the public’s best interests,” says Rastin, managing partner with Rastin & Associates.

He applauds the decision to double auto accident benefits coverage for catastrophic impairment to $2 million after it was reduced to $1 million by the previous Liberal government.

A proposal to ensure that all auto insurance policies pay for treatment instead of trying to cash out is another positive move, Rastin tells AdvocateDaily.com.

“They call the initiative, ‘Care, not Cash,’ and I think it offers the potential to benefit people,” he says.

Court reform is high on the Conservative’s agenda, Rastin says, and he praises plans to offer a mandatory simplified process for actions of comparatively modest monetary value, no juries for smaller cases and other initiatives to achieve shorter trials.

“Overall, these changes are going to be good for access to justice, and I give the Conservatives credit for proposing them,” says Rastin.

“This government has shown a willingness to consult. That’s a positive change. Even if they don't agree with you, they tend to listen and invite people to the consultations,” he says.

On auto insurance reform, for example, “accident victims and victims' rights groups have been at the table,” Rastin says.

The government has stumbled in some areas, he says, such as its refusal to get rid of the deductible. Especially unfair is the “stacked deductible” in insurance laws, he says.

Rastin explains the first $39,000 of an award for any pain and suffering won in a lawsuit belongs to the insurance company of the person at fault. But if someone is injured in two or more consecutive accidents, and are completely faultless, the deductible is stacked for each accident, which means the deductible is now $78,000.

“We are the only jurisdiction in the world, that I’m aware of, with a fundamentally unfair deductible system like this,” he says. "Ontario has both a threshold and a deductible. Analysts, including judges, have made it clear we don’t need both, and the result is a system that punishes the public to benefit insurer profits. The current Ontario system is particularly unfair to students and retirees."

Rastin notes the government has opened up the debate about joint and several liability — which allows multiple parties to be held liable for the same event or act and be responsible for all restitution required — especially as it relates to municipalities.

The Advocates Society, the Canadian Bar Association and the Ontario Trial Lawyers Association have all discussed this issue with previous governments, he says, with each group stressing the need to keep the current policy in place.

“It would be fundamentally unjust to get rid of joint and several liability because innocent victims may be under-compensated,” he says.

A private member’s bill that would amend the Occupiers’ Liability Act in the area of slip and falls is a concern, says Rastin.

“Currently, if you slip on someone’s driveway, you have two years to launch a lawsuit, but with these new amendments, you only have 10 days to put the defendant on notice without potentially losing the right to sue,” he says.

Rastin says municipal properties already have the 10-day limit, though many judges and legal experts feel it is arbitrary and unfair.

“If you are seriously injured in a fall, the first thing you do is look after your medical needs, and it can be weeks before you think about talking to a lawyer, especially if you have a head injury,” he says. "If they pass this law, many people are going to find out that because they didn’t consult with a lawyer immediately after their fall, they have lost the right to seek fair compensation."

While the government claims the shorter time limit will reduce frivolous lawsuits, Rastin predicts it will lead to an increase in legal actions.

“There are people now who call injury lawyers before they call a doctor,” he says.

“This change is targeted at everybody, not just frivolous lawsuits. There are going to be seriously injured people with legitimate claims who deserve to be compensated who are going to be caught by this change,” he adds.

Premier Doug Ford has hinted that changes are coming to the Proceedings Against the Crown Act to make it more difficult to sue the government, and Rastin says that is an unwelcome development.

“Some academics believe the changes would make it almost impossible to sue the Crown, by putting legislative roadblocks in place, everything from timing issues to raising the bar of proof that has to be met,” he says.

“Shouldn't we be troubled that in a free and democratic nation, the Crown can fail to meet its obligations to citizens, and then avoid liability by legislation?” he asks. “Surely a government whose slogan is, ‘For the people’ shouldn't be considering a change that benefits business, not citizens."

Rastin says public discussions about the provincial government tend to focus on topics such as bringing beer to corner stores and changes to licence plates, while more substantive issues are sometimes ignored.

“In terms of their long-term impact on society, the issues we're talking about are of much more importance to society than buck-a-beer,” he says.

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