Settlement
Continued From Page 2
sought summary judgment, and
both parties appealed a decision
by Superior Court Justice John
Ground dismissing the bid for
summary judgment while finding that the plaintiffs’ claim for
lost interest was not recoverable. In 2003 the Ontario Court
of Appeal set aside Justice
Ground’s orders and ordered
the action to proceed to trial on
all issues. A year later, the
Supreme Court of Canada
refused to hear the defendants’
bid for leave to appeal and at
the end of 2007 the parties were
told the projected eight-week
trial couldn’t be scheduled until
April 6, 2010.
The breakthrough occurred
as the result of a second mediation attempt, this one before
Ontario Chief Justice Warren
Winkler, who was faced with
formal settlement offers of $15
million from the plaintiffs and
$1.5 million by the defendants.
The Chief Justice ultimately
recommended, and the parties
accepted, a resolution based on
the defendants paying $8 million
without any admission of liability.
“The costs and complexity of
the trial were important factors
in pushing all parties to settle
together with the potential
exposure of the losing party to
costs,” Heins told the benchers.
“In the event the Law Society
and LawPRO failed to prove
liability on the part of the
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defendants or that there were
no damages that were legally
compensable, they too were
exposed to paying the costs of
the defendants.”
The CEO said that through-
out the long process, E&Y and
Tillinghast “disputed and never
conceded that they were negli-
gent or breached their profes-
sional responsibilities.
“It was alleged by both
defendants that any issues with
respect to the estimation of lia-
bilities of the insurance pro-
gram during this period were
the responsibility of the Law
Society and LawPRO’s manage-
ment and officers under the
oversight and direction of the
Law Society’s benchers. The
defendants further maintained
that neither of the plaintiffs
sustained any recoverable dam-
ages, and that both interest and
avoided liabilities were not
recoverable. It was further their
position that even if the Law
Society and LawPRO had
known of the true position of
the insurance program’s liabil-
ities, that they would not have
raised the premiums because it
was their wish to minimize the
increase in insurance levies.”
Elimination of the deficit
took more than four years and
involved a combination of
sharply higher premiums and
reduced coverage, including
elimination of coverage for
mortgage brokering, reducing
coverage for vicarious liability
and broadening deductibles.
The insurance levy was
initially set at $4,350 in 1994,
but a supplementary levy of
$1,100 was added that fall when
the size of the deficit had
become known. It reached a
record $5,600 in 1995, but by
the end of 1998, when LawPRO
was fully capitalized, the pre-
mium had dropped to $4,650.
It declined to $3,650 in 1999,
bottomed out at $2,300 in
2008, and is currently $2,950.
“It would be somewhat
of an understatement
to say that the
profession was angry
and disappointed with
the announcement
of the deficit in
June of 1994.
“It would be somewhat of an
understatement to say that the
profession was angry and dis-
appointed with the announce-
ment of the deficit in June of
1994,” Heins said. “There was a
view that some third party must
have been responsible for the
$154 million deficit and that
they should pay.”
The lawsuit involved a con-
tention that if accurate infor-
mation on the claims liabilities
had been provided in time to
make coverage changes at the
beginning of 1992, the plaintiffs
would have avoided claims
totaling $32.5 million. If LSUC
and LawPRO had taken action
in 1993 or 1994, the liabilities
would have shrunk by $18 mil-
lion and $8 million, respect-
ively. However, those figures
made no allowance for a finding
of the plaintiffs’ contributory
negligence.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca ;
No law on whether ‘double D’ is more than ‘busty’
Miller
Continued From Page 5
of the nature of that which I am at
this moment called upon to reprimand, have inspired unfortunate
fathers of families with fears so
great that they have come to us in
confidence, and it is in order to
protect them and save their sons
from the influences of the poison of
immorality that the aid of this tribunal has been accorded to the
policemen who have thought it
proper to interfere” (R. v. Jourdan
(1900), 8 C.C.C. 337).
If you type “busty” into the Can-
LII database, you get six hits,
albeit one of them for a litigant
named Bustin whose physical
endowments are not stipulated or
in issue. He was simply one of a
group of ratepayers opposing
building permits for proposed
strip malls in Moncton—strip
malls in the most non-busty sense.
Another recounts the repri-
manding of a Manitoba physician
for an eccentric breast examina-
tion in which he remarked that the
complainant patient was “busty.”
Jeffrey Miller is a writer,
lawyer, and freelance English-
French translator. His latest
books are a series of comic
novels — Murder at Osgoode Hall,
Murder’s Out of Tune, Murder on
the Rebound — set in Toronto’s
legal community.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca ;
