Author Archives: Admin2

Fixing Auto Insurance -The Agenda with Steve Paikin

Will the Ontario government’s decision to launch a public review of the province’s auto insurance system lead to positive changes for drivers across the province?

Ontario pays among the highest auto insurance premiums in the country, despite having among the lowest accident rates in North America. What reforms are needed?

FSRA speech – Tammy Kirkwood Feb 7 2019

FSRA speech – Tammy Kirkwood Feb 7 2019

Since 2010 our coverage has been slashed and reduced by the insurers lobbying for changes that increases their profits on the backs of MVA survivors and their families and ultimately us, the tax payer. With every cut to coverage we move closer to public auto insurance. With every ‘threshold’ insurers create, there is a new barrier to access recovery tools. 

Our premiums keep rising and now the standard or basic coverage is not enough to provide necessary resources or funding for seriously injured people. 

This has led to an enormous number of auto insurance related cases in our courts and a lack of faith in the industry overall……read more

Hodge v. Neinstein


Class action approved against Neinstein and Associates LLP Jan 4, 2016

Certification of class action over legal fees rejected  Aug 11, 2014


Hodge vNeinstein, 2019 ONSC 439 — 2019-01-16

Superior Court of Justice — Ontario

settlement — class — honorarium — fees — fee

A.     Introduction 

[1]               In 2012, Ms. Hodge commenced a class proceeding pursuant to the Class Proceedings Act, 1992[1] against Gary Neinstein and Neinstein & Associates LLP seeking repayment to Class Members of legal fees and disbursements paid by the Class Members upon the settlement of their motor vehicle personal injury claims. She alleged that Mr. Neinstein and the law firm had breached the Solicitors Act[2] and their fiduciary duties because they charged an amount for costs in addition to a percentage fee under a contingency fee retainer agreement. She further alleged that the lawyers charged excessive or inappropriate disbursements and interest on the disbursements. In September 2018, after six years of litigation and after nine months of negotiations, including three days of mediation before the Honourable Warren K. Winkler, Q.C., the parties reached a settlement. This is a motion for court approval of the settlement and also for court approval of Class Counsel’s request for legal fees and for an honorarium for Ms. Hodge.

B.     Facts

1.      The Class Action Proceedings

[2]               In 2012, Ms. Hodge commenced a class proceeding against Gary Neinstein and Neinstein & Associates LLP seeking repayment to Class Members of legal fees and disbursements paid by the Class Members upon the settlement of their motor vehicle personal injury claims. She alleged that Mr. Neinstein and the law firm had breached the Solicitors Act and their fiduciary duties because they charged an amount for costs in addition to a percentage fee pursuant to a contingency fee retainer agreement. She further alleged that the lawyers had charged excessive or inappropriate disbursements and interest on the disbursements.

[3]               To pursue the proposed class proceeding, Ms. Hodge retained Class Counsel pursuant to a Contingency Fee Retainer Agreement that provided a contingency fee percentage of 33.3% of all amounts recovered for the Class Members or in the alternative at Class Counsel’s option, a multiple of up to 9 of the lawyers’ hourly rates expended on the case.

[4]               Mr. Neinstein and the lawyers of the law firm denied the allegations and opposed the certification of the action. They maintained that the question of whether or not fees charged in each particular client’s case was improper could be determined only on an individual basis following a review of solicitor-client privileged information, which would make a class action unmanageable.

[5]               There were three contested motions prior to certification: an abandoned third-party funding motion, an omnibus motion by the Applicant addressing a number of discovery-related and other matters,[3] and an extensive refusals motion.

[6]               In July 2014, I heard the certification motion. I refused to certify the proceeding. I concluded that it failed to satisfy the commonality and preferable procedure criteria for certification.[4] I concluded that the critical question raised in the case of whether the fees charged to a particular client contravened the Solicitors Act required an investigation from beginning to end of a lawyer and client relationship, between the individuals that formed that relationship and that assessments under the Solicitors Act were available and a preferable way to determine whether the fees in each case were fair and reasonable.

[7]               My decision was reversed by the Divisional Court, and it certified the proceeding.[5] Subject to deleting one common issue, the Court of Appeal affirmed the Divisional Court’s decision.[6] The Supreme Court of Canada dismissed a motion for leave to appeal from the Court of Appeal’s decision on December 7, 2017.[7]

[8]               The certified class includes clients of the law firm dating back almost 15 years. The class definition is as follows:

A client of Neinstein & Associates LLP or Gary Neinstein Q.C. that:

(a) signed or amended a contingency fee agreement or arrangement after October 1, 2004, and

(b) who has paid before December 9, 2015, being the date of certification, the respondents for their legal services on the completion of the matter in respect for which services were provided,

(c) except a client:

(i) for whom the court has approved the respondents’ fee;

(ii) for whom the court has assessed the respondents’ account; or

(iii) that have signed a release or settled any claim with respect to his or her contingency fee agreement or arrangement.

[9]               On March 2, 2018, Mr. Neinstein and the law firm served a Statement of Defence and Counterclaim to the Amended Amended Notice of Application. They advanced several substantive defences including:

  1.   that the Solicitors Act provides a complete code which bars the claims;
  2.   that Class Members cannot bring an independent cause of action for statutory breach;
  3.   that the Limitations Act, 2002 bars a majority of claims;
  4.   that in the alternative, there is no breach of the Solicitors Act as the fees charged were fair and reasonable;
  5.   that the aggregate fees charged between tort and accident benefits typically do not exceed the percentage fee in the Retainer Agreement and therefore there was no breach; and,
  6.     that disgorgement of fees is not an appropriate or available remedy on a class wide basis.

[10]           Mr. Neinsten and the law firm advanced a counterclaim that included a claim for payment of fees on a quantum meruit basis.

[11]           The merits of the Class Members’ claims remain to be resolved. A significant risk factor for Class Members is that if the litigation proceeds, the need for individual assessments will substantially delay recovery. Neinstein and his law firm submitted that the ultimate issue is whether the amount of compensation they received was fair and reasonable in light of the work they performed for each client in the circumstances of each individual.

[12]           The litigation was complex and it involved novel points of law, including the unresolved issues of whether breaches of sections 28.1(8), 28.1(9) and33 of the Solicitors Act could be pursued by way of a class action and whether disgorgement of overcharged legal fees and disbursements was a viable remedy. There was considerable litigation risk.

[13]           For fees, Class Counsel has expended approximately $1.3 million in lawyers’ time inclusive of HST but exclusive of time for preparation of the approval of the settlement motion and exclusive of the anticipated time to implement the settlement. To date, Class Counsel has received $361,702.98 inclusive of HST in partial indemnity costs from the interlocutory orders and appeals.

[14]           Ms. Hodge has been active participant throughout these proceedings. She attended most hearings at each level of court, reviewed most of the court filings with Class Counsel and attended the two-day mediation. She has been cross-examined at length during the proceedings. Ms. Hodge’s participation in the proceeding has involved extensive travel. Over the course of the proceeding, Ms. Hodge made many trips from her home in Brooklin, Ontario to meet with Class Counsel in Toronto. Each round-trip commute was over 135 km and took 3 hours or more.


  • 2.
    Hodge vNeinstein, 2017 ONCA 494 — 2017-06-15
    Court of Appeal for Ontario — Ontario
    common — class members — solicitor-client privilege — contingency fee — certification
  • 3.
    Hodge v Neinstein2015 ONSC 7345 — 2015-12-09
    Divisional Court — Ontario
    contingency fee agreement — class — unenforceable — fees — motion
  • 4.
    Hodge vNeinstein2014 ONSC 6366 — 2014-11-04
    Superior Court of Justice — Ontario
    certification motion — contingency fee — costs — class proceeding — access to justice
  • 5.
    Hodge vNeinstein2014 ONSC 4503 — 2014-07-29
    Superior Court of Justice — Ontario
    contingency fee agreement — client — solicitor — class proceeding — disbursements
  • 6.
    Hodge vNeinstein2014 ONSC 1723 — 2014-03-18
    Superior Court of Justice — Ontario
    costs — indemnity — omnibus motion — docketed — refused this request sought
  • 7.
    Hodge vNeinstein2014 ONSC 706 — 2014-01-30
    Superior Court of Justice — Ontario
    certification — refusals — motion — cross-examination — oppose
  • 8.
    Hodge vNeinstein2012 ONSC 7181 — 2012-12-18
    Superior Court of Justice — Ontario
    motion — third-party funder — third party funding — abandoned — costs

Law Society of Ontario v. Kerr

Andrew Robert Kerr Status – Suspended

Conduct Proceeding – May 17, 2018

Andrew Robert Kerr (the Respondent), was found to have committed professional misconduct on the following established allegations: (1) With respect to four Law Society investigations, the Respondent failed to reply promptly and completely to 11 Law Society communications, over a period of almost 12 months, contrary to s. 49.3(2) of the Law Society Act and Rule 7.1-1 of the Rules of Professional Conduct. On May 17, 2018, the Law Society Tribunal – Hearing Division ordered that: (1) The Respondent’s licence to practise law shall be suspended for one month, effective May 22, 2018, and shall continue to be suspended indefinitely thereafter until, to the satisfaction of the Executive Director, Professional Regulation of the Law Society or her designate (the “Executive Director”), he has provided a complete response to the Law Society requests dated May 3, 2017 and May 4, 2017 in relation to the four following Law Society investigations: Case No. 2016-200275; Case No. 2017-204157; Case No. 2017-206039; and Case No. 2017-208003. (2) While suspended pursuant to this order, the Respondent shall comply fully with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given An Undertaking Not to Practise. (3) The Respondent shall pay costs to the Law Society in the amount of $4,000 on or before the deadline of May 4, 2019. Starting the day following the deadline for the payment of costs, interest shall accrue on any unpaid part of those costs at a rate of 3% per year.

Appeal – June 18, 2018

By Notice of Appeal to the Law Society Tribunal – Appeal Division, dated June 18, 2018, Andrew Robert Kerr (the Appellant) appealed the Order of the Law Society Tribunal – Hearing Division, dated May 17, 2018.


Law Society of Ontario v. Kerr, 2018 ONLSTH 139 (CanLII), <


KERR – Procedure – Adjournments – The Lawyer’s adjournment request was granted so that he could file a medical report, which he submitted would support his argument that his disability was a relevant factor with respect to any finding of misconduct or any potential penalty.


Law Society of Ontario v. Kerr, 2018 ONLSTH 65 (CanLII), <


KERR – Failure to Co-operate – The Lawyer failed to reply promptly and completely to the Society’s inquiries in relation to four investigations, over a period of almost 12 months – He admitted his misconduct and he had no prior disciplinary record – The Lawyer described a series of staff disruptions and personal misfortunes, but there was no evidence from a health care practitioner about the medical condition he reported – In any event, during the period of his non-compliance, he was able to continue practising successfully – The Lawyer’s licence was suspended for one month, continuing indefinitely until he has provided a complete response to the Society’s requests regarding the four investigations.



[1]           Raj Anand:– The Law Society alleged that Mr. Kerr (the respondent) failed to reply promptly and completely to its inquiries in relation to four of its investigations. Its evidence was contained in an affidavit of the Law Society’s investigator, which was admitted on consent. I made a finding of professional misconduct, which the respondent did not oppose, and I indicated that short written reasons would follow.

[2]           Proceeding to penalty, Mr. Kerr testified and submitted additional evidence. Duty counsel submitted that the penalty should be a reprimand with conditions, while the Law Society asked for a one-month suspension. After argument, I reserved my decision.

[3]           After considering the matter further, I order a one-month suspension, together with the agreed to amount of $4,000 in costs. These are my reasons.


[4]           The affidavit evidence showed that over a period from May 3 to October 18, 2017, the investigator requested Mr. Kerr’s responses to the Law Society’s inquiries in order to proceed with five investigations. She received a response in one investigation on October 25, 2017, and none in the other four. During this period, the investigator wrote three letters and exchanged nine phone calls or messages with the respondent. The Law Society gave Mr. Kerr about six time extensions for response between May and October 2017.

[5]           Based on this evidence, I made a finding of professional misconduct relating to the respondent’s failure to submit a full and timely response to the Law Society’s inquiries.




16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 56677 (ON LAT), <

[17]     The respondent contends the medical note provided by applicant’s counsel was insufficient as it failed to provide a medical opinion to explain why counsel could not make a phone call or email the Tribunal, or give instructions to an assistant to explain he was having medical issues and request an adjournment.  The respondent argues that despite illness it was unreasonable for counsel to fail to advise the Tribunal and/or request an extension until 26 days after the first deadline was missed. 

[18]      The respondent quoted LAT decision B.F. v. Wawanesa Mutual Insurance Company2017 CanLII 9821 (ON LAT) as authority.  In this case, the Adjudicator awarded costs against the respondent for failing to comply with the Tribunal’s production orders twice and for not providing a reasonable explanation until a request had been made for costs.  The Adjudicator found the representative’s conduct was unreasonable as it was disrespectful of the Tribunal’s process and interfered with the Tribunal’s ability to run an efficient hearing. 

[19]      Applicant’s counsel submits that the nature of his illness has impeded his ability to comply with the Tribunal’s orders.  Applicant’s counsel argues that the intention of the legislation is that an award of costs be granted in extreme circumstances.  He acknowledges missing a number of deadlines and was delayed in notifying the Tribunal. Furthermore, he indicates his illness has been corroborated in the doctor’s note submitted.  Therefore, his actions cannot be defined as unreasonable because his actions were not deliberate or a contemptuous course of action, as the term “unreasonable” suggests.


16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 63664 (ON LAT), <

[8]        On February 17, 2017, the respondent wrote to the applicant advising that they had not received any submissions in relation to either hearing. 

[9]        On February 23, 2017, the Tribunal contacted the applicant’s representative to inquire about their intention to proceed as they had not filed any submissions. The Tribunal spoke with the representative’s assistant who confirmed an intention to proceed, and left a voicemail for the applicant’s counsel.

[10]      On March 14, 2017, the Tribunal received correspondence from the applicant’s representative indicating that he had not been in touch with the Tribunal due to illness and requesting an extension to file submissions. This letter also enclosed a FSCO Report of Mediator dated June 21, 2016 in relation to the written preliminary hearing that was scheduled for March 2, 2017.  The applicant had   only recently provided this report to the respondent.

[11]      On the same date, the Tribunal received correspondence from the respondent opposing the applicant’s request for an extension to file submissions and opposing acceptance in evidence of the Report of Mediator.  The respondent cited Rule 9.4 of the Tribunal’s Rules of Practice and Procedure which deals with the Tribunal’s discretion to not accept evidence that is in non-compliance with the Tribunal’s Rules and Orders.  In addition, the respondent indicated an intention to formally request an Order for costs for the applicant’s failure to advise the Tribunal of his medical condition in a timely manner and his subsequent request for an extension to file submissions. 

            Adjournment Request

[12]      On March 16, 2017, the day of the scheduled hybrid hearing, a teleconference was held with the parties. The applicant’s representative advised that he was not prepared to proceed with the hearing and asked for an adjournment.  I asked the applicant’s representative why he had failed to request an extension to file submissions or file a proper request for an adjournment.  The applicant’s representative advised that he has had various medical issues and most recently an illness that rendered him completely unable to work.  He indicated that he could provide a doctor’s note confirming same.  I asked that he provide the Tribunal with a medical certificate no later than March 23, 2017.  

[13]      I further inquired about why he did not provide instructions to someone at his office to communicate his health issues to the Tribunal and request an extension and adjournment.  He replied that he is unfamiliar with Tribunal work and got the dates of the written and preliminary hearing mixed up.

[14]      After hearing the parties submissions, I granted the request for an adjournment of the hybrid hearing.  In coming to this decision, I considered the principles of procedural fairness and the disadvantaged position that the applicant would be in if he was forced to proceed in the absence of the ability to file any submissions or evidence.  I reminded the applicant about the Tribunal’s commitment to providing a fair open and accessible process that is also timely.  I also cautioned the applicant about any further delays.  To balance the rights of the respondent, I have given it the opportunity to provide submissions on costs.   Details with respect to the new dates and deadlines for submissions follow in the attached order.


February 1, 2019

Careful what you wish for when it comes to private insurance

Imagine a land where drivers pay 55 per cent more for auto insurance than other drivers in Canada, a land where an insurance company may not cover you because of the city you live in, a land where your automobile insurance premiums isn’t based on your driving record but your postal code. 

Slip-and-slide car accidents: When to tell your insurance and how to negotiate

It’s slip-and-slide season in Canada. Much of the country is covered in ice and snow and facing negative double-digit temperatures — it’s the kind of weather in which even snow plows occasionally find themselves drifting. 

Can My Employer Make Me Pay for a Car Accident?

If you’ve caused a car accident while on the job, you may be wondering who is responsible for any damages or injuries that you, other drivers or pedestrians sustained. Learn about your rights in this situation, as well as the circumstances that could put you at fault.  

The Civil Trial in Ontario: The Culture Shift from the “Sport of Kings” Towards the “One Judge Model”


The Conundrum of the Difficult Client 

In the years that passed, hundreds, maybe thousands, of people have gotten in touch with me for legal information about their family law disputes. Unless I’m drowning in deadlines, I always took – and continue to take – the time to talk or write to them and shine some light into the murky depths of family law. 

January 31, 2019

Ontario court decisions have cut into accident settlements: Rastin

Barrie-area litigator Steve Rastin says recent Ontario court decisions highlight the continuing erosion of compensation for accident victims and the urgent need for the government to legislate an end to deductibles. 

How much is my injury worth and what will it cost me to start a lawsuit?

To better understand you, as a resident of Simcoe County and your questions surrounding the law and your personal rights, our legal team conducted an analysis of all the calls our personal injury intake department received over the past year. In our findings, we noted that one of the most common questions asked of our staff was “is my injury worth starting a lawsuit?” and “what are the fees involved and how much will it cost me?” We completely understand where you are coming from and hope that this post will help answer your most pressing inquiries. 

Why the human touch is sometimes bad for claims

The claims industry in Canada has to be wary about complicating the claims process by putting a “human process” in place where one is not needed, speakers said last week at the Ontario Insurance Adjusters Association’s 2019 Claims Conference in Toronto. 

The Business of Personal Injury Law: The cost of expert reports in personal injury litigation and one solution

When I left law school, I was ill prepared for what it meant to be a lawyer. I knew I wanted to litigate and was keen to make my mark. At the same time, however, I knew nothing about the actual practice of law, or more importantly the business of law. 

January 30, 2019

FAIR Submission to 2019 Pre-Budget Consultation
“It is the unqualified but inordinately powerful adjuster that stands between the insurer benefits and the injured person’s need for recovery resources and it is in that space where insurers make profits. ”   

Helping Families of Injured Ontario Motorists

Since 1936, Thomson Rogers has been helping seriously injured motorists get the treatment and care they need to recover from their injuries and to receive compensation for their losses. We understand that it is not only the injured party that may require assistance, as often it is loved ones that face significant challenges in helping the accident victim. 

Ontario Wide Case Management available for Personal Injury Cases effective Feb 1, 2019

For starters, you’ve needed to retain a lawyer and sue in Court to get the results you need. Because you’ve commenced a legal action, then we can presume that you’ve exhausted every other recourse and Court is your last option. It would have been far easier and less expensive to keep the lawyers out of your dispute and work things out between the parties. 

Ontario consulting on municipalities’ worries on ‘liability chill’

TORONTO — Ontario is taking a look at municipalities’ concerns about a legal rule that they say causes “liability chill” and leads some to ban activities such as street hockey and tobogganing. 

‘Anger, rage, sadness’: Paraplegic drunk driver who maimed Ottawa motorcyclist sentenced to prison

Roy Radke, 37, a paraplegic who uses a wheelchair because of injuries he suffered in a June 2015 suicide attempt, had pleaded guilty to impaired and dangerous driving causing bodily harm in the collision that nearly killed Albert. 

Multiple trucking violations by Humboldt semi driver noted in government report

MELFORT, Sask. – A Saskatchewan government report says the driver of a semi-truck should not have been on the road the day he flew through a stop sign and caused a crash with the Humboldt Broncos team bus. 

The Winter Months Warm-Me-Up

As a post concussion syndrome (PCS) survivor, these long nights have special significance.

Back in the early months of my PCS, the sun setting earlier in the day was something I initially welcomed. I thought, ‘Great, now everyone else will enjoy very dim lighting as much as I do!’ But as the days dragged on, I realized this wasn’t necessarily the case.


A Place of Powerlessness

It’s been a really rough few weeks on the personal/health front. I have lost both my dogs, been hospitalized twice, and suffered through a lot of pain. And to cap it off, already physically vulnerable, I was put in a place of emotional powerlessness within the health system. 

January 29, 2019

Designated driver crashes car – and leaves owner with the bill

After a few drinks, it’s probably a good idea to hire a designated driver to drive you home. But as one Toronto resident learned, an accident can leave car owners with steep repair bills and higher car insurance premiums – even when they’re not in the driver’s seat. 

Are Men Paying Less Than Women for Auto Insurance?

There’s a lot of reports and stories about auto insurance out there. The general consensus is that everyone is paying too much for it, but there are those who offer more optimistic advice about how to save. 

Client Trial Preparation Checklist

Prepare your client for the ups and downs of trial with this customizable checklist, which covers topics to discuss with your client, including process, timing, outcomes, risks and costs. From managing emotions to the day-to-day workings of a trial, the checklist covers important topics to discuss with your client in preparation for trial. 

Apple disables group FaceTime amid reports of privacy bug

Apple has made the group chat function in FaceTime unavailable after users said there was a bug that could allow callers to activate another user’s microphone remotely. 

Cioffi v. Modelevich et al., 2018 ONSC 7084 (CanLII), < 

[1]       This is a motor vehicle action. The amount in issue is not large but I expect it is important to the defendant insurer. The issue is whether the insurer is required to pay the full cost of a recent mediation or only half of the cost. There is no dispute that s. 258.6(1) of the Insurance Act provides that where a plaintiff requests a mediation, the insurer shall pay the full cost. However, there is also no dispute that as a Toronto action, a mediation is mandatory pursuant to Rule 24.1 of the Rules of Civil Procedure and that the costs of the mediator are to be shared equally pursuant to s. 4(2) of O.Reg. 451/98 made under the Administration of Justice Act. 
[6]        The clear intention of the Insurance Act was to allow a plaintiff to request a mediation to be paid for by the insurer in the hope that the action might be resolved. The policy reasons seem clear – I do not think it is meant to apply only where a plaintiff is impecunious as suggested by Mr. Sazant. Clearly the legislature assumed that in these circumstances the insurer is in a better position to absorb the costs and pay for the costs of the mediation. 

January 28, 2019

Regarding Common Rules of the Licence Appeal Tribunal  

  Rule 18: Reconsideration of a Tribunal Decision 
  • As permitted by the Statutory Powers Procedures Act, reconsideration requests may now be assigned to any Member of the Tribunal, including the Member who decided the matter which is the subject of the request

Written comments on the LAT rules at:


Auto Insurance Consultation

The Ontario government is reviewing auto insurance! The Minister of Finance, the Hon. Vic Fedeli has said “the previous government’s failed system of stretch goals on auto insurance is clearly broken.” 

Study: Canadian auto insurance rates leapt in the past year

A recent study has found that auto insurance costs across Canada saw a considerable year-over-year increase for the fourth quarter of 2018. 

Torture victim appeal dismissed in fee dispute

“There has been a growing philosophy that personal injury lawyers profit regularly by way of contingency fee agreements. And while that is often true, the opposite proves to be true quite often as well. And a lot of these cases do not turn out to be profitable, especially ones that go to the doorsteps of trial or beyond.”

Cadieux v Cloutier: Deducting Oranges from Apples

It is an essential principle of tort law that an injured plaintiff be returned to the position they would have been in had their injury not occurred. However, a recent Court of Appeal decision may make this task more complicated within Ontario’s auto insurance compensation scheme. 

Summary Judgment Motions in MVA Cases

In Pavlovic v. Vankar, 2019 ONSC 61Justice Nightingale of the Ontario Superior Court of Justice granted a summary judgment motion in favour of the defendant Pavlovic, dismissing the plaintiff’s action and the cross-claim of the co-defendants as against him despite conflicting evidence on a key liability issue. 

FAIR Submission to 2019 Pre-Budget Consultation

So, even if there are no changes in the making right now, things will continue to get worse for Ontario’s patients who are stuck in what can only be called a private insurer hell that is disturbingly similar to the American privatized healthcare system.