Richard Bogoroch is fighting for access to justice

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Despite new challenges and barriers, the managing partner of Bogoroch & Associates remains singularly focused on getting his clients justice, and improving the process while he’s at it

RICHARD BOGOROCH, managing partner of Bogoroch & Associates LLP, relates his personal history with humility and gratitude, and prefers to speak minimally about himself and his significant contributions to the personal injury jurisprudence and practice. “McGill was very kind to me and accepted me into their law school in 1975,” he begins. “I was 19 years old and loved law school. I was in awe of the great professors and the many brilliant students in my class. I was fortunate to be selected as a group teaching assistant in both civil property and constitutional law. In those pre-charter days, I assiduously followed American constitutional law and US Supreme Court decisions, which then, not unlike today, dominated the headlines and influenced every aspect of American life.” Bogoroch left Quebec in 1979, spent two years in Alberta, and landed in Ontario in 1981 where he articled with Thomson Rogers and was hired back as an associate.

Founded by Richard M. Bogoroch, Bogoroch & Associates LLP is a Toronto-based law firm that specializes in civil litigation. The firm has a demonstrated history of providing injured victims and their families with access to justice in the practice areas of serious personal injury, medical malpractice, wrongful death, product liability, and disability claims throughout Ontario, and for victims of medical malpractice throughout Canada. We are proud that our unwavering commitment to our clients and our extensive litigation experience have gained our firm repeated recognition as one of Canada's Top 10 Boutique Personal Injury Law Firms by Canadian Lawyer magazine.

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“Personal injury and the manner in which cases are handled has changed dramatically since the 80s and 90s and early 2000s.… Cases were settled with either the plaintiff’s counsel going to the defense counsel’s office or vice versa”

Richard Bogoroch, Bogoroch and Associates

“I was called to the bar in 1983 after completing the bar admission course. I became a partner in 1987 and then left the firm with members of my team in 1999 to establish what is now Bogoroch & Associates LLP. “I am very privileged to work with brilliant partners and associates who inspire me with their enthusiasm and commitment to fighting the most difficult and challenging cases. I am also very proud of our firm’s contributions to continuing legal education. Education and access to justice are at the core of what our firm is about. As such, Bogoroch & Associates LLP, has made charitable donations now totalling over $300,000 to Osgoode Hall Law School to provide entrance scholarships for students without the financial means to obtain a legal education, $200,000 to Queen’s Law to fund their legal aid clinics, $100,000 to McGill law school for entrance scholarships, among many other gifts and donations.”

What excites Bogoroch and what he clearly wants to talk about are the issues he is passionate about: access to justice, the prohibitive cost of litigation, and the many barriers to the timely resolution of disputes. Bogoroch is wary of complacency when it comes to the status quo. Just because a process worked in the past doesn’t mean it still works today. “While some significant improvements have been made, they are not enough,” he says. But for the process to move quicker, Bogoroch has other ideas. “I am of the view that mandatory case management enhanced by technology should be implemented for personal injury cases in Ontario,” he says. “Every case, except in rare circumstances, should have agreed-to timetables for

In addition to taking far too long, medical malpractice litigation is prohibitively expensive as well. It’s not unusual for a two- to three-week medical malpractice trial to cost $350,000–$500,000 in lawyer time and disbursements, Bogoroch says, with longer trials, like birth trauma or stroke cases, easily costing several million dollars to try. While contingency fees are essential for access to justice and prevent plaintiffs from footing the bill upfront, the cost of medical malpractice litigation and the delay in getting to trial have made all except catastrophic medical malpractice cases few and far between. There are few lawyers and law firms with the financial resources required to shoulder the enormous costs of expert reports and other disbursements required in medical malpractice litigation for the several years it takes to get to trial. Moreover, the financial burden comes with no certainty of outcome and with the real likelihood of appeal from the trial decision. “We, as a firm, have made it our policy in medical malpractice cases not to require any upfront money from our clients to fund the disbursements,” Bogoroch says. “If we decide to take on a medical malpractice case, we fund it completely. Because of our commitment to access to justice, we will take on cases with relatively modest damage assessments – for example, $300,000 – and will take on cases that raise important legal issues or that can impact the law. We think the law relating to loss of a chance needs to be revisited and causation clarified. In our experience, more cases are lost on the issue of causation than on breach of the standard of care. A more liberal approach is required on the causation test if we are to improve access to justice and to hold physicians and hospitals accountable for their actions.”

“It really is a David and Goliath battle in most instances. But lawyers who practise in the field are providing a fundamental public service and are important to the administration of justice”

Richard Bogoroch, Bogoroch and Associates

Bogoroch has been around long enough to remember when the process was different – when trials were considered long if they exceeded two weeks – and that was when they went to trial at all. “Personal injury and the manner in which cases are handled has changed dramatically since the 80s and 90s and early 2000s,” he says. “The practice of law was much easier, much more collegial. Cases were settled with either the plaintiff’s counsel going to the defense counsel's office or vice versa, or meeting face to face with insurance adjusters. And in those days, the adjusters and insurance company’s counsel had great authority to resolve cases on the spot. And if they didn’t, they made a phone call and got the authority they needed, often within a few days. It was a very efficient, collegial, and fun process. And the amount of documentation was much, much less."

While it likely isn’t possible to return to that era of cooperation, or a time of lower statutory deductibles for auto insurance claims – which are now $44,367.24 for non-pecuniary losses for damages assessed below $147,889.59, and rising, since they are indexed to inflation – there are some ways to bring a bit more balance to the industry. “Regulatory frameworks work best when there is balance,” Bogoroch explains. “We don't think the system is balanced. It isn’t balanced when income replacement benefits haven’t been increased since 1996 and remain at $400 a week. The deductible is a huge barrier to justice, and a compromise must be found to balance properly and fairly the interests of the insurance industry and those of innocent accident victims. The sky won’t fall if income replacement benefits are increased from $400 to $700 a week, and if the statutory deductible is eliminated.” Alternatively, should that not be politically feasible, Bogoroch suggests reducing the statutory deductible to a more reasonable amount, like $15,000, or eliminating the verbal threshold altogether for non-pecuniary damages. “These barriers slowly eat away at the whole focus; they make providing access to justice for car accident victims that much more difficult and that much more exceptional.”

Money and time are barriers to justice

Published 8 May 2023

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discovery, mediation, and trial. Like in the past with its speedy trial list, a trial date should be set within one year from the date the action has been set down. The commercial list is a terrific innovation, effective and efficient and the jewel in the crown of the civil justice system. We envy our commercial litigation colleagues. A specialized personal injury and medical malpractice list, like the commercial list, should be established.”

A simple solution to alleviating the time medical malpractice cases take is to hire more justices, both at the federal and provincial levels. “More judges and associate justices are needed. A mandate is needed for more trials and more courtrooms. The federal government needs to appoint more judges so that cases don’t languish for years before getting to trial. When I was practising in the early 80s and 90s – and even to the first part of the 2000s, cases were proceeding to trial much more quickly. Obtaining a timely trial date was a catalyst to settlement.” Still, while small steps can be taken to make accessing justice easier, Bogoroch is clear-eyed about the inherent difficulties of medical malpractice cases. “These cases are ably and vigorously defended by counsel for the physicians and for the hospital. The cases that proceed to trial command substantial defence resources on the part of physicians and hospitals, so a plaintiff's lawyer must have the resources and the staff, and the lawyers to match,” he says. “It really is a David and Goliath battle in most instances.” Only, with the Canadian Medical Protective Association and the Healthcare Insurance Reciprocal of Canada, it’s as though the proverbial David has two Goliaths to fight, he says. “But lawyers who practise in the medical malpractice field are providing a fundamental public service and are important to the administration of justice. Without access to justice, there is despair and a weakening of the public’s confidence in the administration of justice.”