President's Message 10/03
January 22, 2004
A recent message from APTLA President, Ches Crosbie.
Shortly after becoming wartime Prime Minister in 1940, Sir Winston Churchill told the House of Commons "I have nothing to offer but blood, toil, tears and sweat." He was right, because at the time even Churchill did not know how the war with the Nazis, masters of the "big lie", could be won. Churchill?s wartime premiership is an emblem of the fact that hope and resolution shape events. We need not be the supine victims of political forces, but may rise up and rebuff them.
APTLA?s leadership has been acting in this spirit, not perhaps with blood and tears, but certainly with toil and sweat. Due to a unique political dynamic, reverses were suffered in New Brunswick, and perhaps Prince Edward Island. But the Coalition Against No-Fault made the access to justice issue a pivot point in the Nova Scotia election. At time of writing, Nova Scotia has a minority Conservative government. The Liberals are resisting imposition of harsh New Brunswick-style ?caps?, and without support from one of the opposition parties, the Tory plan will falter. This is the best outcome which was available in a practical sense for preservation of access to justice. We should congratulate the Coalition and our clients for hard work and well-directed effort.
On other fronts, the Premier of PEI announced his intention to let bad drivers off the hook, by passing a draconian threshold/no-fault bill, and then called an election, which he handily won. Locally, it was widely assumed that the Government of Newfoundland and Labrador intended to recall the Legislature with a view to passing similar no-fault legislation. The Government abandoned this intention and called an election for October 21, owing to lack of public enthusiasm for the Government?s auto insurance ?reforms?. The Tories under Danny Williams will likely replace the Liberals in Government, but have unexpectedly adopted a pro-?caps? stance aimed at insulating trial lawyer Williams from his past. In the meantime, public opinion remains staunchly hostile to limits on the rights of victims, and the insurance industry has racked up $150 million in profits in the Atlantic region in the first two quarters of 2003. Given the treasure troves of the insurers, the lack of public support for no-fault, and the fact that ?caps? has not been an issue in the Newfoundland and Labrador campaign, the Tories may have maneuver room to not act on their ?caps? promise after the election. In the face of burgeoning insurer profits, it is now clear that not only is ?caps? not a solution, it is a solution without a problem.
The scandal of the last six months is that our provincial governments have been so easily manipulated into attacking victims? rights as a solution to a problem that did not exist. Occasionally, the truth that limiting victims? rights is not a solution to high premiums, even leaks out from the insurance industry: ?I can tell you right now if you took the entire bucket of dollars that we pay out as a company for pain and suffering awards for soft tissue injuries, you wouldn?t get anywhere close to a 20 percent reduction in premium? ? George Cook, President and CEO of The Dominion of Canada General Insurance Co., page 8, Canadian Insurance, August/September 2003.
Governments should mandate lower rates and then demand to look at the books. The regulatory process should be reformed drastically. Auto insurance is a public utility, and large rate swings should not be tolerated by the authorities. If auto insurers have to reserve for anticipated future claims, then they should also have to reserve for anticipated future financial market swings, instead of pocketing the profits during good markets and then crying "wolf" against the injured during bad. If this cannot be achieved under privately administered auto insurance, then perhaps a good hard look at a public system is needed.
Ray Wagner and I, and Libby Baxter, your Executive Director, attended the July meeting of the Association of Trial Lawyers of America in San Francisco. The troubles we have here on no-fault auto, shade in comparison to the attacks the Americans have endured on every aspect of victim's rights. But they have won "narrowly" on almost all fronts. The enduring lesson is that political forces can be turned by those whose rights we are pledged to defend, the victims. Victims testifying at hearings in the highest committees of Congress, victims meeting with senators, victims gaining media attention - victims won the numerous tort battles of the past year in the United States. With our support, our clients, the victims of wrongdoing, will win the battle against corporate greed and political opportunism in Atlantic Canada. If not in the political process, then perhaps yet in the courts. Attend APTLA's November 21 conference and find out more!
Chesley F. Crosbie