Join Hamish Mills-McEwan and Stanford Cummings as they intertwine their deep legal knowledge with rich personal interests in the latest episode of ‘Civil Banter’, discussing everything from ancient history to modern AI's impact on cooking.
Hosts: Hamish Mills-McEwan and Stanford Cummings
Topic: Dive into the intricacies of civil law with Hamish and Stanford, associate lawyers at Nelligan Law, in this engaging episode of Civil Banter. This episode delves into the intersection of personal interests with professional legal practice, featuring discussions on ancient history, AI technology, and personal injury law.
What You'll Learn
Discussion Points
Navigating Complex Legal Waters: Detailed analysis of 'Kidane vs. the City of Toronto,' highlighting the intricacies of personal injury law.
Community Engagement: Discussion on the significance of the Lawyers Play and the role of Nelligan Law in supporting community activities and professional growth through student recruitment.
Personal Interests and Professional Insights: Exploration of how Stan’s interest in the Roman Empire and Hamish’s thoughts on AI reflect on their professional lives.
Integration of AI in Daily Life: How Hamish uses AI like ChatGPT to streamline cooking processes, demonstrating the practical applications of technology.
Contact Information:
Email: civilbanter@nelliganlaw.ca
Social Media:
Hamish:
I'm Hamish, this is Stan and you've joined us for our third episode of Civil Banter. We are two associate lawyers at Nelligan Law, practicing insurance, civil litigation, and all things injury. So we start off-
Stan:
As we always do.
Hamish:
As we always do with our first segment, which is LARPing.
Stan:
Lawyers are real peopleing, real people. We do normal things.
Hamish:
So Stan, why don't you tell me about how you've been spending your time, what you've been doing outside of work, anything you've been watching.
Stan:
Yeah, so I've become, or I always was, I think, I'm a bit of a meme of a millennial with the aspect there that was going around about how often do you think about the Roman Empire. That was a thing last year I think. And like most millennial guys, I think about the Roman Empire more than I should. And to that end, I bought a book Rubicon by Tom Holland, an excellent podcaster in his own right.
Hamish:
Heard of him.
Stan:
Yeah, he does The Rest is History podcast with Dominic Sandbrook, a couple of English guys, and they talk about a wide range of history, but he's really an expert in Roman history and ancient history. And as somebody interested in that area, I bought the book. It's technically about the Roman Republic, not the Empire. It's about the pre-Empire Roman Republic-
Hamish:
That's maybe a little too inside baseball.
Stan:
Yeah. We don't want to split too many hairs, but you know, right up to Julius Caesar and the end of him and the beginning of the empire with Augustus. But great book, great read. Lots of fun. So, to the question of how often do you think about the Roman Empire, for me lately, every day.
Hamish:
I was hit by that question with my wife last year and being oblivious to the meme, she-
Stan:
This was without knowledge of this is a thing. It is a thing, or it was a thing.
Hamish:
It was a thing. I had no knowledge of it. She knocks on my door to my home office and said, "How often do you think about Ancient Rome?" And my honest answer was, "Once every two weeks, maybe."
Stan:
Just out of nowhere. Right?
Hamish:
Yeah.
Stan:
And that must have seemed an odd question to you, but a very honest answer.
Hamish:
Yeah, it was my honest answer. I wasn't prepared for it. But I mean, there we go. And I think if you're thinking about the Star Wars, really you just-
Stan:
Romans in space.
Hamish:
You're thinking about Romans. If you're thinking about, you know, governments, state governments, US politics at all, I think you're really just thinking about-
Stan:
It doesn't take much of a walk around Washington to see all of the Roman inspiration in the architecture and in the design of the republic.
Hamish:
You turn on your faucet, my mind goes straight to aqueducts.
Stan:
Yeah. Hey, follow the concrete. How about yourself?
Hamish:
So I mean it's, initially I was thinking about ChatGPT, is this going to make lawyers irrelevant?
Stan:
Okay, wow. The AI Rubicon.
Hamish:
The Rubicon. But I pretty quickly actually went to the more benign use case of ChatGPT, which is if you have a base level of cooking knowledge-
Stan:
Which we know you do.
Hamish:
I have a base level?
Stan:
Well, we heard about your misadventure in the kitchen on episode one and the knife. So maybe you do have a base knowledge or less than that, I don't know, poor knife skills it sounds like.
Hamish:
It could also just being a skeptic I think is important because ChatGPT is excellent at giving you recipes if you have fixed variables. So if you're talking, I have in my fridge right now, I have carrots, tomatoes, I have onions in the pantry, I have some leftover, already cooked bacon. I have some gluten-free noodles. You can give it the variables and ask it to put together a recipe based on what you already have in, and it is really good.
Stan:
Wow. Okay. That is a really interesting use. I have to confess, I am the dinosaur on this podcast. I don't even know where to find ChatGPT. No idea. Never used it. Never seen it. But that might get me on it. That sounds interesting.
Hamish:
As I said, it's perfect for when you know what you have in and you want to use all or some of those ingredients and you don't want to go to the grocery store. And it's also good with, if you want to plug in a specific dietary request or dislike, like my mother can't stand garlic.
Stan:
So you say no garlic.
Hamish:
No garlic.
Stan:
And it cries a little bit in [inaudible 00:05:07]-
Hamish:
Yeah. But it will put something together and we'll put something together that's tasty. But the skepticism comes in is while it will send you in the right direction, and it will give you mostly operational instructions, it can't really be trusted and it can't-
Stan:
Ah, much like it's legal research.
Hamish:
Yeah. Sometimes it'll just give you a ratio or it'll give you a weight of something and-
Stan:
It's just made up.
Hamish:
You're just like, well, I mean, no, that's not going to serve six people. That is very much like a two person meal. So you have to double check. You have to check its homework when it's saying a teaspoon of sage or something, it's like no one's going to be able to taste that, so-
Stan:
So like one leaf of sage.
Hamish:
Yeah. So you have to be the teacher, you have to get some patients, you have to double check it, but it'll put together something really fantastic, especially if you've got some allergies or dietary requests or something like that.
Stan:
Well next episode I'm going to ask you what the last thing ChatGPT told you to cook was and we'll judge it maybe. We'll have a scale. We'll come up with a scoring system because I feel like I'm the only one with the scoring system right now.
Hamish:
Yeah. And talking about scoring systems, we're going to go right into our second segment, which is the reasonable stand. So in this segment I'll be going on, or I've already went on CanLII, the legal research database. I clicked on Ontario, then clicked on ONSC, the Ontario Superior Court. I searched the following term, "general damages" within five words of the word award. And I filtered by decision, date, newest. And I found the spiciest and most interesting and intriguing recent personal injury cases.
Stan:
Awesome. And viewers may remember, or listeners may remember, week one, podcast one, I was quite a ways off on my assessment of generals in that case. That was one where there was a leg fracture and I went too high. Too high.
Hamish:
Yeah, you were the generous stand. So-
Stan:
Yes, not unreasonable, but generous.
Hamish:
Right. So-
Stan:
Stanta Claus.
Hamish:
So how this works is I'm going to give a little synopsis about the case and then it's going to be up to Stan to come up with the general damages, figure out for pain and suffering. In the first episode, the true general damages were $150,000 and Stan's guess was $195,000.
Stan:
Hindsight, just terrible.
Hamish:
So-
Stan:
I got swept up in damages mania through episode one.
Hamish:
And we have a scoring system. And the scoring system is the delta between Stan's assessment and the actual assessment becomes a monetary debt. That's-
Stan:
So I owe you a mid-sized car right now.
Hamish:
You owe me $45,000.
Stan:
Yikes.
Hamish:
Let's see if we can make any headway on at least limiting the damage.
Stan:
Yeah. Limit that damage. By the end of season one I don't want to be owing you like a house, it'd be pretty bad.
Hamish:
So the case we're looking at today is Kidane and the City of Toronto. It's a 2024 case. The site for anyone following along is ONSC 2484.
Stan:
Sounds like a slip and fall or a bus incident or something versus a city. Usually it's a slip and fall or a bus thing.
Hamish:
He's been stewing over his poor performance in episode one. So yeah, this is a slip and fall that occurred on January 2nd, 2014. Not a nice way to start the new year. It was on a sidewalk in [inaudible 00:08:55]-
Stan:
Can you I believe that's 11 years ago now.
Hamish:
Insanity.
Stan:
That's nuts. And this is a 2024 decision. So it took 10 years from the date of loss to the decision.
Hamish:
10 years-
Stan:
That for justice to... Speedy, speedy justice.
Hamish:
Right. And it would be a judge alone versus jury, because that's the way municipal claims work. There's not going to be a jury in there. So we've established that much. A judge alone. Slip and fall on a sidewalk in College Street in Toronto. Now she suffered a minor head injury, a concussion [inaudible 00:09:31]-
Stan:
Towards the lower end of a concussion, I'm guessing. By use of minor there we're not dealing with prolonged post-concussive syndrome.
Hamish:
Well, yes, and I'm telling you, basically what the judge found is fact because there are a whole host of injuries that were claimed. But I'm telling you what the judge found is fact, so-
Stan:
So the finding. Yeah.
Hamish:
The finding was concussion, including headaches, dizziness and nausea, soft tissue injuries to the neck. This is a list, neck, shoulders, back, right arm, including her elbow, right leg, knee, right rib cage, pelvis and hip girdle. And the icing on the cake. Low mood.
Stan:
Low mood. Okay. Well soft tissue is, it means no fractures, no ligament tears, no objective imaging. It's basically just they're in some pain, aches and pains.
Hamish:
And as we discussed in the first episode, soft tissue again is one of those things where we can say we're probably going to be assessing this in the more minor range, but soft tissue can cover such a wide variety of different fundamental injuries.
Stan:
Yeah. I mean, I don't want to be detrimental to this poor plaintiff, but I'm not being swayed by soft tissue on this file. I'm being swayed by head injury. That's reaching out to me a little bit.
Hamish:
Now to give you a couple more facts.
Stan:
Yeah, I think I might have some questions too.
Hamish:
Yeah, well I think we'll go into, before you ask me any questions, I'm going to tell you a bit about what the judge concluded that is no evidence for.
Stan:
That's important.
Hamish:
Okay. So a big portion of this case is a causation case, which basically means did incident cause injuries?
Stan:
Right. And that's the most important thing we can ask on assessing damages because if your injuries are not related to the accident or incident that you are suing about, well then they're compensable at $0.
Hamish:
Right. And it's a tricky exercise because how many of our clients come to us with a totally clean bill of health, like nothing-
Stan:
Zero.
Hamish:
Yeah.
Stan:
Especially if you cross 30, you're going to be dealing with something. So nobody's in perfect health and it's a difficult task at times to decide what is accident related and what isn't. If you ask any random person on the street, on a scale of one to 10, how are you feeling today other than the really, really happy-go-lucky folks, no one's really going to say a 10.
Hamish:
Right. And things happen after... We just heard this took 10 years to get to trial. That mean a number of things that could have happened within those 10 years other than this accident.
Stan:
Right. Was she 66 at the time of the accident or at the time of the decision?
Hamish:
That is a good question. I believe it was contemporaneous. So 66 at the time, so-
Stan:
76 by the time of the decision comes out.
Hamish:
No, sorry, 66 at the time of the decision, 56 at the time of the accident. So the big thing in terms of the other injuries that's in the soup, but not what's served into this particular bowl, is-
Stan:
Look at the food references this episode. I hope you're not hungry while you're listening to this or not on your way to the grocery store because Hamish is going to be making sure you're spending a lot and eating a lot. I like it.
Hamish:
Cognitive deficits, there was no causal link. There was clearly evidence about them, but there was no causal link, so.
Stan:
So there's a head injury, but it's not causing thinking problems to sum it up.
Hamish:
Exactly. So a dislocation of the TMJ. So TMJ, I believe it's where the skull basically interfaces with the jaw.
Stan:
Temporal mandibular joint dysfunction.
Hamish:
Did I get that right in terms of location?
Stan:
It's the two joints that connect your lower jaw to your skull.
Hamish:
Okay. I'd say that's litigation close, I'd say. Yeah. So she was suffering a dislocation of her TMJ and general mouth pain.
Stan:
But not because of the accident.
Hamish:
Not because of the accident. Chipped teeth.
Stan:
Not because of the accident.
Hamish:
Also not because of the accident.
Stan:
Just got into a boxing match or something.
Hamish:
And then this one, to be honest, I didn't read too much into the evidence around this, but the judge found this fact that disfigurement of the tongue was not causally related to this accident.
Stan:
Okay. Maybe forget the boxing match. Possible pirate.
Hamish:
She also suffered from right eye, right inner ear and nose issues and a dislocation of her shoulder, none of which were causally related to the fall.
Stan:
So the list of non-accident related impairments is longer than the list of accident related impairments.
Hamish:
True. But now to put this all in context, to be generous and fair, I'm going to give you probably the most important caveat before I open it up to any more questions. This was a self-represented plaintiff.
Stan:
Okay. All right. That's important.
Hamish:
Okay.
Stan:
Advocacy matters folks, as I self-servingly say, because I want you to retain us. All right. So I'm going to consider that for sure, self-represented. It sounds like a head strike with no lasting cognitive impairments, which leads me to believe there's not really a significant post-concussive syndrome associated with that. There's no objective breaks or tears, some bumps, some bruises, some uncomfortableness on the background of some other pretty intensive impairments that are not related to this incident. I don't see a big award here. The diagnosis of a concussion is her best bet, but I'm going to think maybe I want to say 35, but maybe that's not high enough given it's a 2024 decision. And I'm going to say 40.
Hamish:
Well done, Stan. Close. Very, very close. $45,000.
Stan:
45 is a weird number, but I said 35 earlier, so all right.
Hamish:
I mean I think you said 35 and then inflation adjusted and-
Stan:
And so is this a redemption? Does that count a little bit?
Hamish:
Well, you now owe me $50,000 total, which is not terrible.
Stan:
Still a mid-size car. I'm not into an SUV or anything yet.
Hamish:
So yeah, $45,000, which it's tricky. Self-represented makes this, I almost think it's surprising to me because if you read the decision, it's a really good decision. It's very detailed. It really canvases everything under the sun. And you can't know what went on in the courtroom based on a decision alone. But from reading the decision, I at least got the impression that the plaintiff did a pretty good job corralling evidence and getting the information she needed and articulating her case. There's no indication she didn't do it in a competent way in the decision.
Stan:
No, she didn't get zero.
Hamish:
She didn't get zero. And-
Stan:
Maybe she'd been down that road before with the other injuries.
Hamish:
That's a good one.
Stan:
Here I am speculating.
Hamish:
But $45,000 soft tissue injuries and concussion. That's another thing where concussion is just so hard to assess. And I think the giveaway here is that it was found as fact she didn't have cognitive deficits from the concussion.
Stan:
Yeah, that's going to be tough to say. She probably went through a really brief brutal maybe week or two weeks or a month even. But then to have nothing lingering is going to really impact the recovery there. Still $45,000 over 10 years, $4,500 a year. It's not nothing.
Hamish:
And obviously in all of these cases there's other claims advanced too. A lot of the time we're just focusing on pain and suffering, but she [inaudible 00:18:38]-
Stan:
Wouldn't get any cost award either. So it's probably just $45,000 straight up plus some prejudgment interest.
Hamish:
Yeah, she'll get some PGI, which we'll go into in a later.
Stan:
And folks for cost award, because she didn't retain a lawyer, she wouldn't have presumably any legal costs other than the amounts used to file the lawsuit, the court filing fees, but no lawyer expenses.
Hamish:
So in my mind that's a pretty big redemption and I'm now terrified for when we roll reverse and you ask me to do this.
Stan:
Yeah, we'll see how my season ends and then we'll go from there. I mean, if I'm way, way off at the end of the year, I'm going to be scouring for some very weird cases.
Hamish:
Okay. So we'll move on to our next segment, which is one thing to rule them all. And in this segment we discuss a rule of civil procedure, a legal practice issue, or a legal bone that we have to pick.
Stan:
Yeah. And we thought something that touches on all of those things. We were talking damages earlier. We talked damages in week one. We'll come back to those to some extent this time in the context of specifically of a car accident, which we do a lot of the type of litigation and there's something that I want to raise about experts and their use, but within, not in the context of accident reconstructionists or anything like that, but because did you know that if you have been in a car accident and you bring a lawsuit, you have to hire a physician to give a report?
Hamish:
I didn't know that. Tell me more.
Stan:
Well you do. So the court system and the insurance act, which governs all of these types of claims involving motor vehicles, it actually requires an injured person to have the opinion of a physician that tells the court that this person has sustained a permanent serious impairment of an important physical or psychological function, which is quite a mouthful, but it's essentially that the courts require a medical doctor to tell them that this person's really badly hurt. Let's sum it up like that.
Hamish:
And within the industry we refer to this as the verbal threshold.
Stan:
Yeah. And that's because it's a verbal test. It's a test where you have to have sustained this permanent serious impairment of an important physical or psychological function. So that is a threshold requirement. You have to get over that. You have to show the judge, and it's the judge, not the court, we'll get to that in a moment, but you have to show the judge that you've sustained this significant injury. And so that's why it's called a threshold. And it's different than the monetary threshold, which will be a different episode probably. But there's a certain amount of money that's a monetary threshold that if you don't exceed that amount of money, well it actually reduces the amount that you're able to recover. But we'll park that.
Hamish:
Yeah, we'll park that one. So lots of different thresholds, lots of different complexities. This one, when you first describe it, I think a lot of people would understand the basic idea. It's that you've been in a car accident, you're going to court, a judge needs to hear from a physician, certainly, or you'd think a medical professional. That wouldn't be shocking to most people.
Stan:
It might not be. But if you think about it, at its core, you think maybe I've had something bad happen to me. We just talked about her, a self-represented person on a slip and fall.
Hamish:
Right.
Stan:
She's absolutely allowed to go to court by herself as her own lawyer, and as the party without any medical experts testifying. She can sit in the witness box and talk about what's happened to her and the court can award her compensation.
Hamish:
Right. So I suppose that's the differentiator. At least one of the big ones is in Ontario we take all of the personal injury claims and we carve out a particular rule set for car accident claims.
Stan:
Yeah. Insured car accident claims.
Hamish:
Insured car accident claims.
Stan:
They're considered protected defendants.
Hamish:
Right. And there's a logic behind this, and the logic is-
Stan:
Lower premiums allegedly.
Hamish:
Well, the logic is that car insurance is mandatory. And so there's a cohesive scheme that specifically governs car insurance, car accidents, and in some cases no fault benefits that you can access instead of going to court or often as well as going to court, which aren't available to you if you have a slip and fall in Toronto as Ms. Kidane had.
Stan:
That's true. Yeah. She would not have had access to interim healthcare. But I guess to bring it back, the issue that we see with respect to car accidents specifically is the evidentiary burden is higher. You have to do more to prove your claim. You can't just show up on your own. You have to hire a doctor, a physician, and that's required by section 267.5 of the Insurance Act. And if you don't do this and you don't have the opinion of a physician that you've suffered a permanent serious impairment, then the judge will actually take away all of the potential award that you would receive for pain and suffering and for healthcare.
Hamish:
And this is, even if a jury has heard all the evidence, you've essentially had a trial and your damages have been assessed. And even if the award is relatively high, you still face the threat of the defendant bringing a motion. And even if you don't bring this, and even if the defendant doesn't bring a motion, a judge still has to essentially deliver a verdict on the issue of despite what the damages are assessed at, is this threshold met?
Stan:
Yeah. So this is done either by way of motion, which is a request of one party to the court for something. In this case, the defendant would go to the court on a motion and say, "I would like your Honor to make a decision about whether or not this person has reached this threshold impairment." And if the judge comes to the conclusion that this person does not satisfy the criteria of a permanent serious impairment of an important physical or psychological function, then that's the end of the general damages claim, that's the end of the healthcare claim. The person is still able to recover money for loss of income, but the majority of the claim is taken away. And as you point out, they can go all the way through a trial and get a verdict from a jury and an award from a jury for money, for pain and suffering, and an award from a jury for future healthcare costs. And that can all be taken away. In practice it doesn't happen that often, but it can.
Hamish:
Yeah. And we were discussing this before the show, but whether or not you'd have to hire a physician is technically no, pragmatically yes.
Stan:
Yes. And there's actually a local Ottawa decision where this happened, and I've got the site, it's a 2018 decision, 2018 OJ number 7348. It's Gero, G-E-R-O and Silcox, S-I-L-C-O-X. And in that decision, the threshold, it was not met, the plaintiff did not have a physician giving an opinion about threshold, and the claim was dismissed. And it was only a claim in that case for general damages. So they went all the way from the date of accident, which was in 2012, to the decision which came out in November 2018, and ultimately recovered nothing.
Hamish:
Right. And that's just, I mean, not just financially devastating, but emotionally devastating too to get to the final boss basically. You've got through every step in the entire proceeding. The jury's heard the evidence, they've in fact made conclusions and assessed damages. And then at the final stage, the defendant comes in and brings this motion. And that's why you-
Stan:
Well, and the law requires it. They have to-
Hamish:
Exactly.
Stan:
They have to bring that motion.
Hamish:
And as plaintiffs counsel, this is a very serious risk that we always have to be cognizant about. And especially the difficulty is when you describe the test in terms of what the words on the page, it sounds very, very alarming. The level of severity needed to even be essentially allowed to sue.
Stan:
Yeah. That's something that we think about at every file, obviously. Is this person going to meet threshold? Typically, yes. But what does it really mean? And I would say most lawyers don't dig up the regulation. It's not even a part of the insurance Act. It's a regulation pursuant to the Insurance Act. So you got to go into that and it's OREG 461/96 for anybody who cares. But it particularizes the test that needs to be met. And it describes what serious is, what important is, what permanent is. And you have to have all three of those. It can't just be one of them.
Hamish:
Right.
Stan:
I'm not going to read the whole regulation. Folks can find that on their own if they want, but for serious, substantially interfere with most of the usual activities of daily living. That's, in my view, most means more than 50% substantially interfere means it can't just be a trifling inconvenience. It has to actually prevent you from doing something. And you're talking about an impairment or an injury causing an impairment that substantially interferes with most of the things you do on a day-to-day basis.
Hamish:
Right. And even with that, again, there's the clear black and white cases, like we know exactly it's very easy to be like, well quadriplegia, that's going to be, if someone's wheelchair bound, that's going to be meeting this test.
Stan:
For sure.
Hamish:
But as very harsh as the wording sounds, and not to make like a depression, but we can also say, I think, if you have a diagnosis of depression, when you really start to apply clinical depression to that test, and you look at the cases, you start to think, well, I mean depression if it hasn't recovered in, for example, in the case we spoke about earlier, if it was a 10-year window and someone was depressed, and it's something you're experiencing every day, if you start to really apply specific conditions to that test, you start to really feel out the parameters of well, okay, well, I mean, even something that maybe at a first blush description sounds more minor. If you start to think about, and we talked about a knee injury, you know, it's very hard to avoid using your knee. If you're standing, you're walking, you're moving upstairs, you're doing any weightbearing, if you have that knee injury, it's going to be implicated.
Stan:
Right. And I guess the defense lawyer is going to say, well, is it impacting or preventing things from happening? And you know, on a harsh reading, if it's not doing that, then they might not make the threshold.
Hamish:
So definitely something that defense lawyers are going to continue and should continue to use this as a risk. Because if we're on the eve of trial as a plaintiff's lawyer, it's like, I have to explain that this is a risk that's out there and I should be doing it well before the eve of trial.
Stan:
Yeah. And I want to hear from any defense lawyers who've considered bringing this threshold motion in advance of trial.
Hamish:
Yeah. That's something I had no idea about until we went through... Was it in the act of the regulation?
Stan:
It's in the act where they can bring it on consent before trial, which is actually not a bad tactic for plaintiffs either, because then you have a finding of fact from a judge that your client meets the threshold.
Hamish:
And I guess, you know, pragmatically, I guess it is one of those things where pragmatically, when you've done the whole trial, all the evidence that's going to be used to make that decision is already there. But still I think there's something in principle to be said about from a plaintiff's perspective, taking that tool in that [inaudible 00:32:08]-
Stan:
That's another thing for defense risk-
Hamish:
At the table.
Stan:
To tell us about. How would you respond to a plaintiff bringing their own threshold motion and saying, "I'm confident in my case. I'm going to bring this threshold motion. I want the declaration that I'm seriously and permanently impaired."
Hamish:
I think it would definitely give you pause, right.
Stan:
Well, it might drive up your expenses and drive you to the settlement table too.
Hamish:
Right.
Stan:
Okay. Well, before we abandon this topic, what I wanted to chat about it just from an access to justice perspective, the fact that you have to pay a medical doctor, a physician to get you this report, that adds a level of cost to things where obviously on a really big claim, it's A not a problem, you're [inaudible 00:32:52] the threshold and is it necessary then to get a physician to write this report? I mean, but the law requires it, it seems a little bit like checking the box off and incurring expenses you may not need to incur. You probably need to do that anyway but on a lower end type of claim it could A, be a barrier completely to a self-represented person. They're not going to know about it. They're certainly not going to go out, find, locate and pay a doctor, but if you're considering, with an increase to the simplified procedure rules, if you're considering bringing a claim there and you've got caps on your amounts of disbursements, this is something that could, do we really need this? Should this be revisited?
Hamish:
Yeah. You know, also from the physician requirements specifically, it's conceivable that there are cases where a physician isn't actually the best person to comment on some of these things. Like we spoke about a neuropsychologist, so this is a specialty of psychology that deals with cognitive function and how essentially, and what this boils down to a lot of the time is and is cognitive testing an scores, it's very quantitative and analytical in terms of has someone's thinking, processing speed, memory, has that been impacted by typically a brain injury. But sometimes it could be getting that additional physician opinion is something you might not feel like you need to do as counsel if it wasn't for this requirement, which would then force you to go and get the physician to just go through the rote formula of running through this assessment just so that you've ticked that box.
And as you said, as a self-represented plaintiff it would drive up the cost significantly. And why would you even begin to, while you might have a GP and that's a big maybe in 2025, but other than your GP, why would you even begin to look for a doctor you could pay to write an opinion? Where would you begin?
Stan:
That's not thankfully a problem that we need to worry about.
Hamish:
So I definitely think this is a topic where we could revisit with, I think, having a discussion with defense counsel and seeing how they make use of this and what their opinion is.
Stan:
Yeah. And I'd love to hear from a plaintiff counsel who's brought one of these before trial.
Hamish:
Yeah.
Stan:
That'd be cool.
Hamish:
There has to be someone.
Stan:
Maybe, and it sounds like we should look into that and maybe do a little research, see if there's been any pre-trial plaintiff initiated threshold motions.
Hamish:
And if you find it before we do, the
Stan:
Send it to us. Civilbanter@NelliganLaw.ca. Civilbanter@nelliganlaw.ca.
Hamish:
Okay. Moving on, we're going to go to shout-outs and in this segment we can shout-out a person, thing, news tidbit or event. Stan, let's start with you on the shout-outs.
Stan:
Sounds good. Yeah, I'm going to shout out the Lawyers Play, which is coming up soon. And it's something near and dear to our firm. We have, for many years in a row now, I'm sure a number of lawyers, but for me, I'm aware of Janice, Jonathan and Joyce are all in the play this year. I went last year. It was awesome. A lot of fun. Highly recommend it. And it's going to be held at the Great Canadian Theater Company. As I understand it, this is a special year. It's the 50th anniversary of the Great Canadian Theater Company, and it's the 25th anniversary of the Lawyers Play. So anniversaries abound. The shows are going to be from May 1st to 3rd, and you can contact, I'm sure you can find it online, but great Canadian theater company online. Or if you feel like giving them a phone call, you can call the box office during business hours, 613 236 5196. Highly recommend for everybody. It's a great show.
Hamish:
And what better example of lawyers are real peopleing than-
Stan:
Than this? Yeah. Not just lawyering, but acting as well. And I feel like that's a skillset that goes nicely together.
Hamish:
Yeah. So I'd like to shout out everyone who is involved in the summer student recruitment process here at Nelligan's, so at time of recording we've just had the summer student recruitment process. The summer student recruitment process, I didn't even do it. I did the articling recruit, not an elegance. And you did the same-
Stan:
Same thing. Yeah.
Hamish:
Yeah. And just remembering back to being a second or a third year law student, you're under the microscope, you're being asked questions, substantive legal questions. When you're halfway through contracts class and you're still getting used to law school, you don't really know what's going on.
Stan:
It's a crazy process we put everybody through, honestly. I remember one of the questions I was asked a specific section of a regulation. I had no idea. I was like, I don't know. I could find it in five minutes with the computer, but do I remember that on top of all the other things I need to remember right now, no.
Hamish:
Yeah. At Nelligans we try and make it really inclusive and we try and have the process very transparent from the outset. I did four interviews. I was super impressed with the caliber of the law students out there, and it really made me reflect back on how would I have held up to this level of scrutiny, but-
Stan:
But neither of us got hired here as students, so probably not very well.
Hamish:
But we make it fun. We did a board game this night, so it's not all heavy hitting. We really try and make sure that we have a good fit between the firm-
Stan:
It seems like the dating game really, like you're ranking each other and how much do you like me? I only like you if you like me.
Hamish:
Yeah. There are certainly elements of that, and it is a regulated process by the law society. So there are those rules, but then above and beyond that, we try and really make sure that students do know us to the extent they can, whether or not we'd be a good fit, what the dynamic of the firm is like, and making sure that everyone knows the expectations, but also we give some transparency from the outset to hopefully set us up for a continuing working relationship as we move forward. So it's a fun process. This year's recruit is done, but if you want to find out more about the student recruitment process in general, you can reach us directly if you'd like.
Stan:
Or the website, I think.
Hamish:
The website.
Stan:
We have a section on that.
Hamish:
Yeah, yeah, we have a great section that's pretty fleshed out on the website. So with that, we'll be saying our goodbyes.
Stan:
That's right. You can find me on LinkedIn. I will check the messages. It's a promise.
Hamish:
And you can find me on LinkedIn. My handle is H Mills McEwen, and I post even more regularly than the last episode. And beyond that, Nelliganlaw.ca is where you can find information about us, information about our firm, blog posts, and we have an email set up.
Stan:
Yeah, send your recipes to Hamish. He can't get enough of them, so ChatGPT it, find some random stuff in your fridge. I want to see what you guys can do. Civilbanter@nelliganlaw.ca. I'll look forward to your tips, suggestion, but above all recipes.
Hamish:
Okay, that's a wrap.