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T O P 1 0 P E R S O N A L I N J U R Y B O U T I Q U E S

MORE THAN A PAYOUT

Lawyers at the helm of the top personal injury boutiques take a holistic approach to

advocating for injured clientsBy Aidan Macnab

W hile all 90 firms included on Canadian Lawyer’s 2019 Top Personal Injury Boutiques survey have a track record of winning cases for their clients, achieving a top spot takes more than that. Whether it is advancing the law to better secure results for injured people in the future or providing

holistic advocacy where client relationships last past the conclusion of the file, the winners who spoke with Canadian Lawyer talked about goals that go beyond successful judgments and financial compensation.

“Well, everybody comes to see us after they’ve had one of the worst days of

their lives,” says James Cuming, a partner at Cuming & Gillespie, a winning firm from Calgary.

“Our focus is on recovery for the client, whether that be hiring a private occupational therapist to help them out or finding the prop-er treating physicians and specialists for them, as opposed to just trying to maximize their claim. We want them to get better,” he says.

Cuming has been with Cuming & Gillespie since 1995. The six-lawyer boutique firm deals with serious injury, medical negligence, class actions and other tort claims for plaintiffs. Cuming says the firm’s business model involves taking on more serious injuries and having fewer clients, as well as building a reputation through word of mouth rather than marketing.

“We’ve created a brand that’s been very successful for us on the basis of doing a good job and creating a good referral network, as opposed to just advertising on every bus stop and bus and billboard,” he says.

A serious injury will take years to fully recover from and often irreversibly alters a person’s life. Many in the personal injury bar have implemented into their operations an active involvement in the lives and recovery of their clients. Brenda Agnew was a client at

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Gluckstein Personal Injury Lawyers PC after her son suffered a brain injury at birth resulting in severe cerebral palsy and hearing loss. The firm then hired her as a client liaison to work with families who’ve experienced birth trauma. The firm also employs a nurse, Dianne Henderson, formerly the executive director of the brain injury association of Niagara. Henderson acts as a medical consultant, as well as assisting with the clients’ aftercare and transition from the hospital to back home in the community.

“I think one thing that’s unique with us is we continue to want to be in touch with our client as a sort of expanding family of our firm,” says Charles Gluckstein, a partner at Gluckstein Personal Injury Lawyers, whose father Bernard started the firm in 1962 and has since passed on the reins to his son.

Selected by voters from across Canada as the top personal injury boutiques were Bergeron Clifford Personal Injury Lawyers, Bogoroch & Associates LLP, Cuming & Gillespie, Gluckstein Personal Injury Lawyers PC, Howie Sacks & Henry LLP, McKiggan Hebert, Personal Injury Alliance Law (a confederacy of three firms: McLeish Orlando Mara, Oatley Vigmond and Thomson Rogers), Singer Kwinter, Slater Vecchio LLP and Will Davidson LLP. The survey was a month long, with 2,524 participants, who were asked to rank their top-10 list from a long list of 90 firms produced by nominations from Canadian Lawyer readers. Points were awarded based on ranking with 10 points for a first-place vote, nine for second and decreasing at that rate down to 10th place.

Established in 1999, Toronto’s Bogoroch & Associates LLP specializes in motor vehicle accident, medical malpractice, product liability and disability. Founding partner Richard Bogoroch says his firm seizes opportunities to take difficult cases to trial, to advance the law.

“We believe it’s important for us to try difficult and challenging cases no matter the cost, if the cases we try will help advance the law and by so doing provide greater access to justice,” Bogoroch says.

Exemplifying this, he says, was Surujdeo v. Melady, a medical negligence case at the Ontario Court of Appeal from 2017. Richard Bogoroch acted for the plaintiff, the husband of a 35-year-old woman named Rossana Surujdeo, who had died in a Brampton, Ont. hospital from heart inflammation.

A crucial aspect of the case was the law of causation, as the judge and jury had to determine not just that the treatment failed to meet the standard of care but that, but for that substandard treatment, Surujdeo would not have died. This is the “but for” test for establishing causation that comes from the Supreme Court of Canada case Clements v. Clements.

The Superior Court ruled in the plaintiff ’s favour, awarding $600,000 and $450,000 in costs. The defendants appealed on five grounds, one being that the jury instructions on causation were “unbalanced, incomplete and skewed” in the plaintiff ’s favour. The Court of Appeal ruled in favour of Surujdeo and Bogoroch.

“What we’ve noticed over time is that, even when you’re successful in trial and we’ve been fortunate to have much success in front of juries, the Court of Appeal has historically

taken a somewhat narrow view of causation, which has been difficult for plaintiffs to overcome,” says Bogoroch partner Heidi Brown. “And we take that concept seriously and the cases that we take to trial we’re trying to advance the law on causation.”

While personal injury lawyers can have an influence on how case law develops their practice area, legislative changes made by politicians still have a significant impact on their work. In Alberta, the cap on payouts for minor injury — either a sprain, strain or whiplash injury — was raised to $5,202 from $5,080 s of Jan. 1, but with an election set for later this year, Cuming isn’t sure what a possible new government may have in store for injured plaintiffs.

In Ontario, Premier Doug Ford is reviewing the province’s rules under the Negligence Act for joint and several liability — a principle by which, if a person is injured because of multiple defendants and one of those defendants cannot pay, if the remaining defendant is even one-per-cent liable for the injury, they pay the whole judgment. Ford is reviewing the effect the rule has on municipalities who can be liable for injuries on public infrastructure. Ford’s interest is in what it costs for municipalities to insure against this risk and whether he should alleviate the financial burden.

“Given that he used to represent Etobicoke, this appears to be a personal issue for him,” Gluckstein says. “It is likely that the rates will not lower even if changes were made as the payouts are limited to a handful of cases per year for very badly injured individuals.”

Felt widely across practice areas are court delays. Bogoroch and Brown say delays in the system are plaguing the personal injury bar, putting plaintiffs on hold for too long, which is of concern for motor vehicle cases because the plaintiff can only recover 70 per cent income lost before the trial, Brown says.

“If there were a way to speed up the system so that instead of waiting two years for trial you waited only a year, more cases would settle, and I think it would be a much better and fairer system for everyone concerned,” Bogoroch says.

How we did itCanadian Lawyer asked lawyers, in-house counsel and clients from across Canada to vote on the top personal injury boutiques and arbitration chambers. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included on the list. To be considered in the vote, firms were required to have at least 80 per cent of their business come from personal injury or arbitration. The final rankings were determined through a points system, in which firms were rewarded on a sliding scale for the number of first to 10th-place votes received. The quantitative results are combined with feedback from respected senior members of the bar and in-house counsel when applicable.

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TOP 10 PERSONAL INJURY BOUTIQUES

CUMING & GILLESPIE CalgaryCUMINGGILLESPIE.COM

Under the leadership of James Cuming and Craig Gillespie, Cuming & Gillespie has proven itself as a premier boutique firm in western Canada, specializing in catastrophic personal injury, medical malpractice and class action claims. The six-lawyer firm acted as counsel in Alberta’s first certified class action lawsuit. The firm supports various charitable organizations, including the Canadian

Paraplegic Association, Canadian Spinal Research, the Sam Schmidt Paralysis Foundation, the Canadian Cancer Society, the MS Society and Kids Sport. They are also the founding donor of the Foothills Hospital Brain Injury Patient Experience Program.

“The lawyers that work there are courteous, professional and helpful.”